THE ATLANTIC REPORTER VOLUME 113 Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge. mony the afternoon was clear, and at the time of the accident there was no traffic on the street. The defendant, the owner and operator of a seven-passenger jitney car, drove up Randall street on his way to Pawtucket and was proceeding at a moderate rate of speed when he entered North Main street. As he approached the junction of Pleasant street, Grace A. Flynn started from the sidewalk on the west side of North Main street and ran rapidly across the street in a diagonal direction and, at the time of the accident, had reached the sidewalk on the other side of the street and had her arms around a telephone pole within a few inches of the curb. The driver of the automobile and his passengers first saw the child when she was 15 or 18 feet ahead of the automobile. There is testimony to the effect that the driver first turned to the right, then to the left, then Action of trespass on the case by William F. Flynn and his wife, Mary M. Flynn, against Marcin Siezega. Verdict for plain-again to the right, and struck the child either tiffs, and defendant excepted. Exceptions overruled, and case remitted, with directions to enter judgment on the verdict. William R. Champlin and Peter M. O'Reilly, both of Providence, for plaintiffs. Brennan & Connolly, of Pawtucket, for de fendant. PER CURIAM. This is an action of trespass on the case for negligence brought by William F. Flynn and his wife, Mary M. Flynn, the father and mother of one Grace A. Flynn, who sue for their own benefit under the statute as the next of kin of said Grace A. Flynn. The action is brought to recover damages for the death of Grace A. Flynn, a minor child, four years and eight months old; who was struck and killed by an automobile driven by the defendant on North Main street, in the city of Providence, on the 10th day of June, 1918. The accident occurred in the afternoon, on North Main street, near the junction of Pleasant street. North Main street is 36 feet wide from curb to curb and runs north and south. Pleasant street runs eastward from North Main street. According to the testi with the fender or mudguard of his automobile as she stood on the sidewalk grasping the telephone post. There was also other testimony that the driver, as soon as he saw the child, applied the brake of his car and turned to the right to avoid striking the child, but was unsuccessful in avoiding the accident. From the testimony there is evidence to support the conclusion that the driver could have avoided the accident by continuing straight on his course, or if he had turned to the left without later turning to the right the accident would have been avoided; also that even after turning to the right he had ample opportunity to continue to the right up Pleasant street, thereby avoiding the accident. On the other hand, there is testimony that he could not have avoided the accident either by continuing straight ahead or by turning to the left, and that the turn to the right was the only way whereby the accident could have been avoided. Whatever view one may take of the testimony, it seems to be clear that the child was on the sidewalk when she was struck, and that the driver of the car drove his car onto For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the sidewalk, and that the same was stopped | brings exceptions. Exceptions overruled, and finally, not by his efforts, but by impact of case remitted, with directions. the car with the telephone pole with such force as to shake up the passengers in the car. The case occupied three days in the trial and at the conclusion of the trial the jury found a verdict in favor of the plaintiff for $3,500. A motion for new trial on the usual grounds was heard by the trial justice, who refused to disturb the finding of the jury. The case is now before this court on bill of exceptions brought by the defendant. In the argument before this court the question with regard to the amount of damages was not raised by the defendant either on his brief or in argument, and with regard to this subject we see no reason to disturb the verdict of the jury. Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for plaintiff. Charles H. McKenna, of Providence, for defendant. RATHBUN, J. This is an action of assumpsit brought to recover for necessaries furnished the defendant's wife. The trial in the superior court resulted in a verdict for The case is before the plaintiff for $598. this court on the defendant's exception to the refusal of the trial court to grant the Said defendant's motion for a new trial. motion alleged that the verdict was against the law and the evidence and the weight thereof. The question of the defendant's liability was a fair question of fact and was propThe defendant was living apart from his erly submitted to the jury. The jury have wife. The evidence warrants a finding that found in favor of the plaintiff and against without justifiable cause the defendant failthe defendant, and this finding has been ap-ed to provide his wife with adequate means proved by the trial justice. Upon consideration of the testimony we see no reason to disturb the finding of the jury as thus approved by the trial justice. We find no merit in the exceptions of the defendant, and all of the exceptions are overruled. The case is remitted to the superior court, with direction to enter judgment on the verdict. of support; that at his request the plaintiff nursed and cared for the defendant's wife for 52 weeks, for which plaintiff charged $5 per week, amounting to $260; that the services rendered were necessary and the charge reasonable; and that plaintiff furnished defendant's wife necessary household supplies and money, which plaintiff saw expended for necessary household supplies for the defendant's wife, to an amount more than equal to the difference between the verdict and $260, the amount charged for care and nursing: that all of said supplies were necessary for the reasonable support of defendant's wife; and that defendant without justifiable cause failed to provide either money to purchase any of said supplies or necessary household supplies which might have been used in the place of supplies furnished by the plaintiff. The verdict has been approved by the justice presiding at the trial. [1] The case was commenced in a district court. The ad damnum as laid in the writ was $100. On the entry day of the writ jury trial was claimed. In the superior court the plaintiff obtained permission to amend the ad damnum from $100 to $500 but the amendment was never made. The plaintiff now moves that she be permitted to amend the ad damnum clause in accordance with the permission granted by the superior court. As the case was tried on the theory that the amendment had been made we will treat the case the same as though the amendment actually had been made before trial. The motion to amend is granted. See Eaton v. Case, 17 R. I. 429, 22 Atl. 943; Cleasby v. Reynolds, 26 R. I. 236, 58 Atl. 786. [2] The verdict was $98 in excess of the jurisdiction of the court in a case commenced See Walker Ice Co. v. in a district court. Blanchard, 18 R. I. 243, 27 Atl. 330. (113 A.) The plainant a mortgage upon the latter's esplaintiff waives the amount of the verdict, tate on Federal street for $1,600. This lastwhich is in excess of the court's jurisdiction. The defendant's exception is overruled, and the case is remitted to the superior court, with direction, after the record has been amended in accordance with permission granted to enter judgment on the verdict as thus reduced by $98, the amount in excess of a district court's jurisdiction. EMERY v. MARIANO. (No. 487.) (Supreme Court of Rhode Island. April 6, 1921.) Mortgages 258-Bona fide holder's transferee takes free from equitable defenses. Under Gen. Laws, c. 200, § 64, relative to the rights of a holder of a negotiable instrument deriving his title through a holder in due course, if a transferee of a mortgage was a bona fide holder for value without notice that it was given to protect the mortgagee against liability on another mortgage, a transfer of the mortgage by her protected her transferee from such defense, whatever knowledge he may have had. Appeal from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge. Suit by Albert B. Emery against J. Edward Mariano. From a decree for defendant, complainant appeals. Appeal dismissed, decree affirmed, and cause remanded. Knauer, Hurley & Fowler, Philip S. Knauer, and John F. Collins, all of Providence, for appellant. named mortgage is dated August 4, 1915, and is accompanied by a negotiable promissory note payable one year from date. Neither the note nor the mortgage deviates from the usual form. In the following November Gugliucci paid to Mrs. Harris the sum of $1,600 on account of the complainant's mortgage to her and obtained a release as to the lot on Brayton avenue which he had purchased. On October 28, 1915, Gugliucci purchased from one Giustino Tortolani 48 shares of the capital stock of a corporation known as the Broadway Tire Exchange and paid for the same with the note and mortgage for $1,600 of August 4, 1915, which he had received from the complainant. In carrying out this transaction the transfer of the mortgage and note was not made to Giustino Tortolani, but to Nunziatina Tortolani. Raffaele, a brother of Nunziatina, furnished the money, $1,600, and took the transfer of the mortgage in the name of his sister, for whom he On July 30, 1917, was attorney in fact. Nunziatina, by her attorney in fact, Raffaele, assigned the mortgage to the respondent. The complainant claims that the mortgage for $1,600, having been given simply as a security to protect Gugliucci against foreclosure by Mrs. Harris, should now be canceled because the danger of foreclosure was removed when Mrs. Harris was paid $1,600 and released from her mortgage the vacant lot. The statements made by the complainant regarding his claim are neither corroborated nor contradicted by the testimony of other witnesses. It seems improbable that the complainant would give a mortgage to Gugliucci before the latter had paid McGovern & Slattery, of Providence, for him for the lot, but we may pass over that, appellee. VINCENT, J. This is a bill in equity brought by the complainant, Albert B. Emery, who seeks to have the respondent, J. Edward Mariano, enjoined from foreclosing a certain mortgage upon a parcel of real estate situate in the city of Providence and to have said mortgage ordered to be delivered up for discharge and cancellation. In 1915 the complainant owned an estate at the corner of Brayton avenue and West Exchange street in said Providence, consisting of two adjoining lots upon one of which was a house. These two lots were covered by a mortgage of $4,200 held by one Emily A. Harris. On April 5, 1915, the complainant sold and deeded to one John W. Gugliucci the vacant lot. In August following Gugliucci, being desirous of building upon the lot which he had purchased, and wishing to protect himself against the foreclosure of the Harris mortgage, procured from the com and, accepting the complainant's version of the matter as true, proceed to discuss the complainant's rights as against the present holder of the mortgage, which is the important question to be determined. If Nunziatina Tortolani was a bona fide holder for value, without any notice of the conditions under which the complainant now claims the mortgage for $1,600 was given, the transfer from her to the respondent, Mariano, would be shielded from the equitable defenses which the complainant now sets up, whatever the knowledge of Mariano might be. Gen. Laws R. I. c. 200, § 64; Hoye v. Kalashian, 22 R. L. 101, 46 Atl. 271. From an examination of the evidence, we think the trial court was fully justified in its finding that the note and mortgage passed to Nunziatina Tortolani without any knowledge upon her part, or upon the part of her attorney in fact, of the conditions or equities which the complainant alleges existed between himself and Gugliucci. The com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plainant knew that both documents were in a form common to such transactions, that upon their face they exhibited no suggestion of extraneous conditions or equities, and that they were capable of being transferred to an innocent holder for value. The complainant has made some attempt to show a want of valuable consideration, but we must agree with the trial court that he has not been successful in so doing. The complainant's appeal is dismissed, the decree of the superior court dismissing the bill is affirmed, and the cause is remanded to said court for further proceedings. sons of appeal that said decree is against the law and against the evidence and the weight thereof, and is erroneous. It is admitted that the dominant and servient estate were both owned by David Manchester, who in 1817 conveyed the servient estate to George Durfee, the respondents' ancestor in title, reserving for the benefit of the land retained, and now owned by the complainant, a right of way across the land conveyed. The deed from Manchester to Durfee contained language as follows: "Excepting and reserving to myself, my heirs and assigns, the pass-way one rod wide on the south side of the premises from the road to the east end thereof, whereon I & my heirs & assigns shall & will have a right to pass and re-pass at all times, with shutting gates & bars when erected on the said way by the said George Durfee." There is no evidence that a right of way was laid out or used, at any time, along the line described in the clause of reservation. The complainant contends that by consent of the owners of the two estates the way in question was substituted for the original way. said: Mr. Justice Barrows, in his rescript, "The evident reason for the use of the substituted way instead of the original was the There are two nature of respondents' land. swampy patches extending north and south, and the substituted way was evidently an attempt to avoid going through these bogs. The evidence was that it would be a matter of ate a road along the original right of way." great difficulty and expense to attempt to cre The respondents, while admitting that the complainant has a right of way across the respondents' land, apparently contend that the complainant, if he wishes to enjoy his right, must now construct at great expense to himself a way along the line described in the reservation clause in the deed from Manchester to Durfee. Mr. Justice Barrows, in his rescript, further said: "We find that for at least 70 years this way has been used by complainant and those who preceded him in title with the knowledge of and predecessors. The road has been filled in at without objection from respondents or their times, and in two places small culverts have been erected for its better use; that the substituted right of way is the only one which has ever been used to reach complainant's premises." RATHBUN, J. This is a bill in equity brought to enjoin the respondents from obstructing an alleged right of way across the respondents' land. The case is before this [1] There was amply testimony to warrant court on respondents' appeal from a decree the above finding of fact. When the eviof the superior court granting relief after dence is conflicting the findings of fact by hearing on bill, replication, issues framed the trial judge sitting without a jury are enand proof. The respondents allege as rea- titled to great weight, and will not be set |