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his alleged repetition of the offense a distinct offense for which severer penalties are to be imposed, the word conviction must be given its strict legal meaning of judgment on a plea or verdict of guilty. Neither directly nor by implication is it anywhere in the opinion suggested that a principal's guilt can be established on trial of one charged as an accessory by a record which shows nothing more than a verdict of guilty returned by a jury.

For the reasons we have thus stated, the assignment of error which has regard to this feature of the case must be sustained and the judgment reversed.

party convicted, but when the party should, that case decides is that where one is chargbe discharged according to law without pay-ed in the indictment with a prior conviction ment of costs they shall be paid by the for a similar offense, and the statute makes county. It was there held that conviction applied to the verdict of the jury finding the defendant guilty, and meant conviction before sentence and judgment. But this was simply applying the general rule which requires that, in the construction of statutes, the terms and language thereof are to be taken and understood according to their usual and ordinary signification, as they are generally understood among mankind, unless it should appear from the context and other parts of the statute to have been intended otherwise. School Directors v. Carlisle Bank, 8 Watts, 289; Philadelphia & Erie R. Co. & Penna. R. Co. v. Catawissa R. Co., Western Cent. R. Co., & Atlantic & Great Western Ry. Co., of the States of Ohio, N. Y. & Penna., 53 Pa. 20. So too in Wilmoth v. Hensel, 151 Pa. 200, 25 Atl. 86, 31 Am. St. Rep. 738. There the action was to recover a reward offered by the defendant for the prosecution and conviction of persons for violating the statutes against bribery and corruption at elections. On the trial plaintiff could show no more than that he had arrested and brought to trial one charged with the offense, that this person was bound over, that he was accordingly indicted, and that to the indictment he had pleaded guilty. The record showed that sentence had been suspended, that the prisoner had been allowed to go without day, and that no punishment had ever been imposed. The plaintiff, notwithstanding, recovered in the action. On appeal it was held by this court that, in conditioning the reward upon conviction of the party charged, the word conviction was used in its popular sense, which meant no more than a verdict of guilty. And so in every case where the popular meaning of the word has been allowed to prevail it will be found that the decision has rested on the manifest understanding of the party employing it, whether it be the Legislature or a private individual. The recent case of Com. v. McDermott, 224 Pa. 362, 73 Atl. 427, in which the opinion is written by the present chief justice, is nothing to the contrary. What

[7, 8] Since the case must go back for another trial, it is necessary to rule upon the remaining questions. The supposed errors to which our attention has been directed in the argument relate to the admission of evidence. First, evidence offered for the purpose of showing that at the late hour of night when the offense was said to have been committed, between 12 and 1 a. m., defendant was found but a few feet from the place of the crime. This assignment calls for no consideration. The fact that the defendant offered evidence which to the mind of his counsel was a satisfactory explanation consistent with innocence of his being where he was, has nothing to do with the admissibility of the evidence. The effect was for the jury. Its admissibility is too evident to call for discussion. Second, evidence of threats made by the defendant. With respect to this latter it need only be said that threats and all declarations of personal hostility are admissible in evidence as showing malice and tending to show the criminal intent charged. To this end the evidence in the case was directed and it was properly admitted.

The judgment is reversed, and it is now ordered that the record be remanded to the court of oyer and terminer of Beaver county, together with this opinion containing the cause of such reversal, for further proceedings according to law.

RUTLEDGE et al. v. HAND. (No. 4831.)
(Supreme Court of Rhode Island. Nov. 10,
1915.)

APPEAL AND ERROR 1002-REVIEW-VER-
DICT.

Where the evidence as to undue influence was conflicting, a verdict, setting aside the will, will not be disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.]

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

to the refusal of the trial court to direct a verdict for the appellee, the refusal to grant a new trial, and to certain errors of the trial court in the admission and exclusion of testimony.

We have examined the exceptions of the appellee numbered 1, 2, and 3, which relate to the admission and exclusion of testimony, and we are unable to find any reversible er

ror.

The fourth exception to the refusal of the trial court to direct a verdict in favor of the

appellee and the fifth exception to the denial of the appellee's motion for a new trial will be considered together. An examinaApplication by Michael Hand, as executor tion of the record shows that there was for the probate of the will of Michael Hand, some direct testimony bearing upon the quesSr., opposed by Mary Rutledge and others. tion of undue influence. There was also othFrom a decree of the probate court, admit-er evidence setting forth numerous facts and ting the instrument to probate, contestants circumstances from which undue influence appealed to the superior court. There was a might reasonably be inferred. The evidence judgment setting aside the will, and propo- as a whole was very conflicting. The tesnent moved for new trial, which was denied, timony presented to the jury was such that and he excepted. Exceptions overruled. they might have found either way, upon the question of undue influence, depending upon the credence given to the witnesses upon one side or the other. The jury had the opportunity of listening to the witnesses and of observing their appearance upon the stand, and we cannot say that they reached an erroneous conclusion.

Cooney & Cahill, of Providence, for appellants. Bassett & Raymond, of Providence (Russell W. Richmond, of Providence, of counsel), for appellee.

The case having been decided by the jury upon disputed facts, and the trial judge having reviewed it with much care and denied the motion of the appellee for a new trial, we find no justification or satisfactory rea

son for disturbing the verdict.

The appellee's exceptions are all overruled, and the case is remitted to the superior court, for the entry of a decree in accordance with the verdict of the jury.

(38 R. I. 307) VAUGHN v. CARR. (No. 4880.) (Supreme Court of Rhode Island. Nov. 1, 1915.)

INFANTS

70-ACTIONS-RIGHT TO SUE.

PER CURIAM. Michael Hand, Sr., died in the city of Pawtucket on the 20th of January, A. D. 1911, at the age of about 92 years. He left a last will and testament dated January 12, 1905, to which was attached a codicil, dated July 1, 1907. By his will Michael Hand, Sr., after providing for the payment of debts, funeral charges, and several small legacies, devised and bequeathed all the residue of his real and personal estate to his son, Michael Hand, Jr. The will further provided for the disposition of the estate in the event that Michael Hand, Jr., should not survive his father, but such provisions are not important here; there being no question as to the survivorship of Michael Hand, Jr. By the codicil a legacy of $2,000 was given to each of the three children of a deceased daughter. A decree was duly entered by the probate court of the city of Pawtucket, admitting to probate said will and codicil, and from that decree an appeal was taken to the superior court. The case has been tried to a jury in the superior court, and a verdict has been rendered that the will and codicil were not the will and codicil of Michael Hand, Sr. The appellee made a motion for a new trial before the trial judge on the ground: (1) That the verdict is contrary to the evidence and the weight thereof; (2) that the verdict is contrary to law; and (3) that the appellee has discovered new and material evidence, etc. No affidavits in support of the third ground appear to have been filed. The motion for a new trial was denied by the trial court, and the case is now before us upon the exceptions of the appellee. These exceptions are for defendant.

While an infant cannot ratify a contract so as to be liable to an action thereon, the law is for the benefit of the infant, and he is under no disability to sue to recover sums due him; consequently an infant suing for a sum due on a contract cannot be nonsuited on the ground that until he reached his majority and elected to ratify or confirm the contract no action could be maintained.

[Ed. Note.-For other cases, see Infants, Cent. Dig. § 178; Dec. Dig. 70.]

Exceptions from Superior Court, Kent County; Chester W. Barrows, Judge.

Assumpsit by Gladys W. Vaughn, by next friend, against Alliean B. Carr. There was a judgment of nonsuit, and plaintiff excepted. Exceptions sustained.

Heffernan & Whitman, of Providence, for plaintiff. Quinn & Kernan, of Providence,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PER CURIAM. This is an action in assumpsit brought by the plaintiff, by her father, as next friend, for the purchase price of a one-half interest in a laundry which she sold to the defendant.

In December, 1913, the plaintiff and another were engaged as copartners in a laundry business. On or about December 19, 1913, the plaintiff sold her one-half interest 'n said laundry to the defendant for $1,000,

and executed and delivered to the defendant a bill of sale of the same. The defendant was to deliver to the plaintiff his promissory note for $1,000, payable in 30 days, as soon as he obtained suitable indorsers. The defendant went into possession of the laundry on the day of the delivery of the bill of sale, December 22, 1913. In January, 1914, the laundry was destroyed by fire while the defendant was still in possession. The defendant paid no part of the purchase price. The declaration contained the common

counts, and also a special count setting forth

the terms of the contract of sale. The declaration also alleged that the plaintiff was a minor at the time of suit. The defendant pleaded the general issue.

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PER CURIAM. Since the filing of the leave of the court have filed a motion for a opinion in this cause the respondents by reargument, setting forth the grounds on which the motion is based. An examination of these grounds does not alter the opinion of this court that no error was apparent in the granting of the preliminary injunction. Consequently the action of the superior court was upheld. In effect its decree was affirmed by this court, although that word was not used in the opinion. The motion is denied.

PURCELL v. ROACH. (No. 4874.)

The case was tried in the superior court in Kent county February 23, 1915, before a justice of said court, sitting with a jury. At the conclusion of the testimony for the plaintiff, a nonsuit was granted by the justice, "on the ground that the right to ratify or confirm the contract must be deferred until the minor comes of age." Plaintiff duly ex-(Supreme Court of Rhode Island. Nov. 3, 1915.) cepted, and the case is before this court on AccoUNT STATED 20 QUESTIONS her bill of exceptions; the sole exception FOR JURY. Where plaintiff, in an action to recover the being to the granting of said nonsuit. amount due on a note, contends that the amount of the note was the agreed sum due under a partnership accounting on winding up the partnership, while the defendant contends that the accounting was later to be had and the true amount due ascertained, the question is one of fact for the jury as to the amount due.

No authority in support of the ruling granting the nonsuit has been cited, and none has come to our notice. True, an infant cannot ratify a contract so as to be liable to an action thereon until he has attained his majority. This rule of law, however, is for the benefit of the infant, and places upon him no disability to sue. An infant may sue for the value of his services on quantum meruit. Dearden v. Adams, 19 R. I. 217, 36 Atl. 3. An infant may disaffirm his contract and recover back the consideration he has given. Chabot v. Paulhus, 32 R. I. 471, 79

Atl. 1103.

"The fact that a person is an infant does not prevent his suing either at law or in equity." 22 Cyc. 627.

"An infant may sue to recover what is due him under a contract, or damages for a breach." 22 Cyc. 628.

In Tyler on Infancy & Coverture, c. 12, § 132, it is said:

"And whenever a party enters into a contract with a minor personally, or purchases property from him, or deals with him on his own account, such party must respond to him in an action the same as though he was an adult. So in all cases where an infant has the possession and control of his property, he may bring his action for its conversion, or any damage or injury to it, the same as though he was of full

TRIAL

[Ed. Note.-For other cases, see Account Stated, Cent. Dig. §§ 3, 40, 94, 95, 97-99; Dec. Dig. 20.]

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Action by Thomas A. Purcell against John F. Roach. From a judgment for plaintiff in the superior court on appeal from the district court, the defendant excepted. Af

firmed.

Charles A. Walsh, of Providence, for plaintiff. Joseph C. Cawley, of Providence, for de

fendant.

PER CURIAM. This is an action of the case in assumpsit brought to recover the amount of a promissory note given by the defendant to the plaintiff, together with the amount of a small loan. The suit was originally brought in the district court of the Seventh judicial district, where the defendant claimed a jury trial. The trial in the

superior court resulted in a verdict for the amount due was to be subsequently ascertainplaintiff for $482.

ed by an accounting between the partners. This presented a pure question of fact for the jury. They have rendered a verdict in favor of the plaintiff for the amount claimed by him, and we see no reason for disturbing it.

We have examined the several exceptions taken by the defendant to the admission and rejection of testimony and to portions of the judge's charge. We do not find any merit in any of them or that they require any special consideration.

It appears from the testimony that the plaintiff and defendant in May, 1911, entered into a copartnership, through a verbal agreement, for the carrying on of a moving picture business in East Providence. They were to share equally in the profits and losses. The business was continued from May, 1911, to some time in the latter part of November following. During that time each contributed certain amounts of money as his share of the expenses, amounting, in the aggregate, to several hundred dollars. In November the plaintiff, having reached the conclusion that the business was not sufficiently remunerative for two men, proposed to the defendant that one of them should sell out to the other. The defendant declined to dispose of his share in the business. The plaintiff expressed his willingness to sell, and after an estimate was made with a view to ascertaining the value of his interest, it was agreed that the plaintiff should receive therefor the sum of $400, and that the copartnership 1. should be dissolved. Pursuant to this agreement, the defendant gave to plaintiff his promissory note as follows:

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At the expiration of the three months specified in the note the plaintiff several times demanded payment from the defendant without success, and finally brought suit to recover the amount of the note and the inter

est, together with the sum of $10, which was loaned to the defendant by the plaintiff subsequent to the date of the note, all of which amounted to $482, for which sum the jury rendered a verdict in favor of the plaintiff. The defendant contends that this note was given subject to an accounting, which was to be taken, of the partnership affairs, that no such accounting has ever been taken, and therefore the amount due the plaintiff has never been ascertained. It does not appear that at the time the note was given or during the period of three months following the date of the note the defendant made any claim that there was to be an accounting. That matter seems to have been introduced for the first time in the testimony of the defendant at the trial in the superior court. It certainly would be very unusual for partners, upon a dissolution of the copartnership,

to ascertain the amount to be paid by one to the other, give a note in settlement of the same, and then leave the amount due on the note to be subsequently ascertained by an accounting. However that may be, the plaintiff

claimed that the amount of the note, with interest, together with a loan amounting to $10, was due to him from the defendant without any restrictions or reservations, while the defendant contended that the

The defendant's exceptions are all overruled, and the case is remitted to the superior court for the entry of judgment on the verdict.

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(Court of Chancery of New Jersey. Sept. 29, 1915.)

(Syllabus by the Court.) PARENT AND CHILD -3

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SUPPORT OF CHILD-DUTY OF FATHER-ENFORCEMENT BY COURT-CONTRACTS.

A father cannot relieve himself from his continuing duty to support his infant children by entering into a separation agreement with his wife, which provides for the payment by him to her of a stipulated sum per week for the support of herself and their children, which sum is inadequate for the support of both the wife and the children; and this court will in such a situation, compel the husband to pay a greater sum for the support of his wife and children than that stipulated in the agreement.

[Ed. Note.-For other cases, see Parent and Child, Cent. Dig. §§ 33-62; Dec. Dig. 3.] 2. HUSBAND AND WIFE 280 SEPARATION AGREEMENT SUBSEQUENT DIVORCE — ALIMONY.

When husband and wife enter into a separation agreement which provides for the payment by the husband to the wife of a stipulated their infant children, and the wife brings a suit sum per week for the support of herself and for divorce against her husband on the ground of adultery (which such an agreement cannot operate to bar), she may elect to apply for alimony, rather than to enforce the agreement, pendente lite, especially so if she desires an increased allowance because of children who are dependent upon her.

Wife, Cent. Dig. § 1055; Dec. Dig. 280.]
[Ed. Note.-For other cases, see Husband and
3. HUSBAND AND WIFE 280-SEPARATION
AGREEMENT SUBSEQUENT DIVORCE - ALI-
MONY.

While a separation agreement between husband and wife is not abrogated by the institution by the wife of a suit for divorce, it is no

impediment to awarding the wife temporary alimony in her suit.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 1055; Dec. Dig. 280.]

Suit by Laura Staats Rennie against Elwood C. Rennie for divorce, wherein petitioner applies for alimony and counsel fee pendente, lite. Application allowed.

Charles F. McKinney, of Newark, for petitioner.

The following is the opinion of the Su

WALKER, C. This is a suit for divorce on the ground of adultery, in which the peti-preme Court: tioner has applied for alimony and counsel fee pendente lite.

"The sole question is this: Was there evidence to support the finding of the trial judge that the note had been paid? We think there was. The defendant so testified. That the testimony might, or probably would, have led this court to a different conclusion cannot avail the The rule is that if there is testiappellant. mony to support the judgment, it must be affirmed. The appellant argues that the defendant's testimony must have related to another note. But the difficulty is that defendant testified that there was but one note, and the trial judge saw fit to believe him.

"The judgment will be affirmed, with costs." Louis A. Cowley, of Passaic, for appellant.

[1] While, doubtless, the separation agreement between the parties annexed to the petition for alimony, which provides for the payment by the husband to the wife of $5 per week for the support of herself and their children, may be specifically performed, as in Aspinwall v. Aspinwall, 49 N. J. Eq. 302, 24 Atl. 926, nevertheless, as the sum is inadequate to support both the wife and the children, and as the court will not relieve the husband from his continuing duty to support his infants, an order will be made requiring him to pay $7 per week for the support of his wife and children. Biddle's N. J. Div. Prac. (2d Ed.) p. 150, note "w." In Roarke v. Roarke, 77 N. J. Eq. 181, 75 Atl. 761, it was held that an order of a police justice, requiring weekly payments to be made for the support of a wife and child, TOWN OF MT. HOLLY v. TOWN OF PLYprecluded an application by the wife to this court for maintenance while the adjudication of the justice was still in force and being obeyed, the implication being that if the order, although in force, was not being obeyed, alimony might be granted here.

[2, 3] In the case at bar the defendant has failed to live up to his agreement to pay the 'weekly sum stipulated therein. The wife, therefore, I think, may elect to apply for alimony, rather than to enforce the agreement, pendente lite, especially as she desires an increased allowance because of children who are dependent upon her. And while such an agreement cannot operate to bar a suit for divorce for adultery, the agreement itself is not abrogated by the institution of such a suit by the wife (Halstead v. Hal

stead, 74 N. J. Eq. 596, 70 Atl. 928), and it is no impediment to awarding the wife temporary alimony in her suit (Id., 74 N. J. Eq. 598, 70 Atl. 928).

A counsel fee of $15 will be awarded, to gether with the costs of this application.

(88 N. J. Law, 386)
SCHOPPER v. KRETSZSCHMAR et al.
(No. 23.)

(Court of Errors and Appeals of New Jersey.
Oct. 19, 1915.)

APPEAL AND ERROR 1001-REVIEW-JUDG-
MENT.

Where there is testimony to support the judgment, it must be affirmed on appeal.

PER CURIAM. The judgment under review should be affirmed for the reasons expressed in the per curiam opinion of the Supreme Court.

MOUTH.

(89 Vt. 301)

(Supreme Court of Vermont. Rutland. Oct. 11.

1915.)

1. APPEAL AND ERROR 274-GENERAL EX

CEPTION TO EVIDENCE.

Where the only exception upon which defendant's argument that the finding of a conditional intention on the part of a pauper to return to a town could possibly be based was "upon the ground that there was no evidence to support the finding of facts and judgment for the plaintiff," such exception was too general to raise the question as to the sufficiency of the evidence to support any particular finding of

several made.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. 274.] 2. PAUPERS 19-SUPPORT-LIABILITY OF TOWN-CHANGE OF RESIDENCE.

in a town, keeping his trunks and personal beWhere a pauper who was actually resident longings there, made a temporary visit to his sisters elsewhere, entertaining a conditional intention to return to another town if he could

find satisfactory employment there, such temporary visit to his sisters, coupled with his condi tional intention not to return to his original residence, did not change his residence to affect the question of liability for his support as a pauper, since a person's purpose to change his residence, unaccompanied by actual removal or change, does not constitute a change of domicile; the fact and the intent must concur; the person must remove without the intention of returning. [Ed. Note.-For other cases, see Paupers, Cent. Dig. §§ 36-81; Dec. Dig. 19.]

Exceptions from Rutland County Court; Leighton P. Slack, Judge.

Assumpsit by the Town of Mt. Holly [Ed. Note.-For other cases, see Appeal and against the Town of Plymouth for money exError, Cent. Dig. §§ 3922, 3928-3934; Dec.pended in the support of a pauper. Plea, the Dig. 1001.] general issue. Trial by court. Judgment for plaintiff, and defendant brings exceptions. Reversed.

Appeal from Supreme Court.

Action by Benno Schopper against Paul Kretszschmar and another. A judgment for Argued before MUNSON, C. J., and WATdefendants was affirmed by the Supreme SON, HASELTON, POWERS, and TAYCourt, and plaintiff appeals. Affirmed.

LOR, JJ.

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