ed, and for giving which testimony Rowe | Several days before the close of that term was arrested for perjury. the judge died, and they could not be allowed after his death. To hold that it was laches on the part of the petitioner not to have filed them before the death of the justice would be, in substance, to hold that an act of God would make the petitioner guilty of laches. Immediately after Rowe had recognized as above, the trial of the cases against the petitioner was begun. The defense being the same, the counsel for the petitioner requested a continuance upon the ground that the jury having in the preceding case passed upon the same question, and that the defendant intended to call as a witness said James Rowe, and the arrest of him by order of the court had prejudiced the jury against his testimony, were disqualified. The motion was denied by the presiding justice, who allowed an exception to his ruling, and a jury was impaneled, seven of whom had sat in the preceding case. The verdict was for the plaintiff in each case, and a motion for a new trial was made upon the ground that the verdict was against the law and the evidence. The time for filing the report of evidence and exceptions was extended to the February term, 1911, and the case marked "Law." At the February term, the time for filing the report of evidence and exceptions was again extended to the last day of the February term. On the 19th day of February, 1911, the judge of the superior court died, and the exceptions had not been signed by him. The case was entered at the June term of the law court, and motion and exceptions were overruled for want of prosecution. [1] The petitioner claims a review because the judge of the superior court died before the expiration of the time allowed the petitioner to file his exceptions, and that there was no way to have the exceptions allowed, that the law court might pass upon them, because of the death of the presiding justice. The respondent claims there was laches on the part of the petitioner that bars him from being heard upon this petition; that tuere was ample time allowed for the filing of the exceptions; and that the petitioner should have had them signed and allowed in the lifetime of the justice of the superior court. The record shows that the petitioner's right to file his exceptions was extended to the last day of the February term, and further shows that the February term adjourned on February 24th. We cannot hold the petitioner guilty of laches in not presenting his exceptions to the judge for his approval before the 19th day of February, the day of the death of the judge, because he had several days after the 19th day of February in which to present them. All that the law required was that the exceptions should have been presented within the time allowed. No one, in preparing exceptions, would take into consideration the fact that the judge might die before the time fixed for filing the exceptions. The petitioner had until the last day of the Feb In Moulton, Petitioner, 50 N. H. 532, the court allowed an appeal by the administrator, when the party entitled to it had died just before the 60 days allowed for claiming it, saying: "It was no neglect for him to wait, even if he had waited until the last day of the 60 days before claiming an appeal. The statute giving him that right, the appeal would have been well enough if he had lived; but his death, under the circumstances of the case, was a misfortune which defeated it." [2] No authority has been cited, and we venture the assertion that none can be cited, upholding the ruling of the justice that the petitioner should proceed to trial at the time he was compelled to do so. The jury were disqualified by their verdict in the preceding case. The arrest of Rowe, who was a witness in the case of the petitioner, by order of the presiding justice, in the presence of the jury, when the evidence was the same as in his case, and his being placed under bonds in the sum of $2,000 upon the charge against him, could but further prejudice the petitioner's case, and was a palpable error. Garthwaite, Grinnin & Co. v. Tatum, 21 Ark. 336, 76 Am. Dec. 409, was an action upon a note executed at the same time as another note, upon the validity of which the jury had passed. The issues were the same. The plaintiff objected to the jury as disqualified. The court overruled the objection, and the case was taken to the higher court. Fairchilds, J., in delivering the opinion, said: "By their verdict in the other case, the jurors had formed and expressed their opinion upon this case, and the fact that it was done on oath, after hearing all the facts and after full deliberation thereof, amid the solemnities and under the direction of judicial proceedings, could have no other effect than to incline them to render such verdict as they had rendered before. The law presumes them to have been under a disqualifying bias." The same doctrine is laid down in Burke v. State, 66 Ga. 157; Brandon v. State, 75 Miss. 904, 23 South. 517; State v. O'Connor, 105 Mo. 121, 16 S. W. 510; Golden v. State, 75 Miss. 130, 21 South. 971; Railway Co. v. Smith, 60 Ark. 221, 29 S. W. 752; Weeks v. Lyndon, 54 Vt. 638. [3] There are cases which hold that the discretion of the court in refusing or granting a continuance is not subject to exception; but the great preponderance of the been a clear abuse of the discretion to the prejudice of the moving party. As stated in Schwartz v. Drinkwater, 70 Me. 409 which was a case in which exception was taken to the refusal of the court to con tinue the action: "Therefore whether the motion should be granted or not was for the judge to determine as a matter of discretion His ruling, unless palpable error was com mitted, cannot be reviewed here." Also se cases cited in note to Stevenson v. Sher wood, 74 Am. Dec. 140. The petitioner at tempted to reserve for the law court the question of whether there was a clear abuse of the court's discretion in denying the pe titioner's motion for a continuance. He wa prevented from doing so by the death o the judge: and the law court, when it over ruled the exceptions for want of prosecution, did not pass upon the merits, or give judgment upon the merits, as there was not before the court any bill of exceptions, and its order dismissing the exceptions cannot be successfully urged as res adjudicata of The question to be determined is, Has justice been done by the verdict? It is surely equitable and fair that the petitioner shall have a fair trial before a jury that is unprejudiced; and we think there is sufficient evidence in this case to authorize us to say that, under the peculiar circumstances of the case and trial, justice has not been done, and that it is proper that he have the right to present his case to an unprejudiced jury. [6] The petitioner asks for a review of two actions. There should have been a petition for a review in each action; but, as the same facts apply to both cases, the petitioner may discontinue as to one of the cases, without prejudice, and a writ of review issue in the other. Writ of review to issue. CAMPBELL v. CAMPBELL et al. the question presented by the petition in this (Supreme Court of Rhode Island. May 27, case. [4] There being no way that the petitioner could take his cases to the law court upon exceptions, it was his misfortune, not caused by his own act; and it is proper to present them by a petition for review. As said by the court in Reynard v. Brecknell, 4 Pick. (Mass.) 302: "If a party should be seriously injured by any determination of a court of common pleas on matters clearly within its discretion, such as the postponement or continuance of an action, we know of no remedy but by a petition for a writ of review. According to the general statute giving this power to sustain such petitions, on the hearing of which, if it be made to appear that injustice has been done to the party by his being hurried to trial unprepared, a review will be granted." The same doctrine was approved in Todd V. Barton, 117 Mass. 291, and in Converse v. Carter, 8 Allen (Mass.) 568, the last case holding that a petition for review was a proper remedy, but denying the petition; the statute of Massachusetts granting reviews being similar to the statute in Maine. [5] To entitle the petitioner to a review, he must prove to the satisfaction of the court: (1) That justice has not been done. (2) That the consequent injustice through fraud, accident, mistake, or fortune. was mis (3) That a further hearing will be just and equitable. Donnell v. Hodsdon, 102 Me. 420, 67 Atl. 143. We think that the two first propositions are proved by the compelling of the petitioner to proceed to trial before a jury disqualified by law from sitting in his case. 1912.) 1. NEW TRIAL (§ 143*)-GROUNDS-MISUNDERSTANDING OF JURORS. In a proceeding for the allowance of certain claims against a decedent's estate in which there had been previous trials and an appeal, the court charged that all proceedings under the former decree were vacated by the appeal, that the jury were to determine whether decedent's estate was indebted to claimant for $15,550 or any part of that sum, as if the claim was presented for the first time, that the former decree awarding claimant $2,700 was not evidence that he was entitled to any sum, and the fact that the jury disallowed a he was not entitled to receive the full amount large part of the claim was not evidence that thereof, but that the jury would determine the case on the evidence and the law given by the court. Held, that claimant was not entitled to a new trial after a verdict for the estate on the affidavits of certain jurors that they did not understand that the case superseded the previous decree for claimant and that, under their verdict, he would not receive the amount that had been previously awarded him. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 290-296; Dec. Dig. § 143.*] 2. NEW TRIAL. (§ 143*)—AFFIDAVITS OF Ju RORS. In a proceeding to establish a claim against decedent's estate in which a verdict was rendered for defendants, affidavits of jurors filed almost a year after the trial on motion for new trial held to indicate that the affiants had forgotten the actual state of the improper matter had been considered in arfacts as shown by the evidence, and not that riving at their verdict, and insufficient to support the motion on the ground that claimant had not had a full and impartial trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 290-296; Dec. Dig. § 143.*] Claim by Elisha J. Campbell against George E. Campbell and others. A verdict was rendered in favor of defendants, and plaintiff applies for a new trial. Denied. See, also, 71 Atl. 369, 881. Green, Hinckley & Allen, of Providence the foreman, Knowles, if they had supposed (Rush Sturges, of Providence, of counsel), for the award could be "wiped out" by their plaintiff. Irving Champlin and James Harris, both of Providence, for defendants. He now claims that he did not have a verdict. But it appears by the transcript that the court fully explained the whole matter of the former proceedings to the jury, and instructed them that the findings in the former proceedings were not evidence for them to consider and were to be disregarded by them. PER CURIAM. This is a petition for a new trial, brought by Elisha J. Campbell, appellant, in a certain probate appeal, wherein he sought to obtain from the estate of his father, James Campbell, a larger [1] The court charged the jury, in part. allowance on his claims than was awarded as follows: "Now, when an appeal is takby the commissioners appointed by the muen from a decree of the municipal court, all nicipal court of the city of Providence on proceedings under that decree are vacated, And the question for the estate of James Campbell. The appel- and null and void. lant made claims aggregating $15,550. The you to determine here is whether or not the commissioners allowed $2,700 and the mu- estate of James Campbell is indebted to nicipal court confirmed this allowance. Eli-Elisha J. Campbell for $15,550, or any part sha J. Campbell appealed from this decree, of that sum, or whether or not it is not and upon a trial of the appeal in the superior indebted to him at all. You are to detercourt in December, 1907, the jury awarded mine that question, gentlemen, just exacthim $3,024. This verdict was set aside and ly the same as if this claim was presenta new trial granted upon certain exceptions ed here for the first time. The fact that alleged by the appellant and sustained by the decree of the municipal court of the this court. Subsequently the appeal was city of Providence allowed him $2,700 of again tried before a jury of the superior that claim is not evidence that he is entitled court in November-December, 1910, and the to that sum or any part of it, and it raises jury found against the appellant on his enno presumption in his favor or against him. tire claim, awarding him nothing. The fact that they disallowed $12,850 of the claim that he presented is not evidence that he is not entitled to receive the full amount of his claim, and it raises no presumption for or against his right to have his whole claim allowed. In other words, gentlemen, you are to determine this case upon the evidence that has been presented in this case, and upon that evidence alone, and upon the law as the court gives it to you. You are to pay no attention to what the municipal court did. You are to pay no attention to what you, possibly, may have heard about the evidence in other cases. You are to try this case solely upon the evidence that you have listened to for the last three weeks, as given to you by the witnesses, and the documentary evidence." In view of this clear and explicit charge to the jury, we cannot believe that there was at the time of the trial any such misunderstanding as to the effect of the former award to the said appellant as is now attempted to be set up by the affidavits under consideration; and we are of the opinion that these affidavits are far from showing any just ground for the claim that there was any mistake in the verdict of the jury as rendered or that it failed to record their true and intended finding. We think the affidavits rather show that the several affiants in their statements made almost a year after the trial have forgotten what was the actual condition of the case as submitted to them, and have, out of a sort of good nature, yielded to the importunities of the appellant in an endeav-. or to relieve him from the seeming harshness of their findings. "full, fair, and impartial" trial, and petitions for a new trial on that ground (under Gen. Laws 1909, c. 297, § 2), and supports his petition by six affidavits, five of which are made by jurors who sat at the second trial, and one by William D. Hawkins, who was a witness called by the appellant at said trial. The affidavits of four of these jurors, Patton, Phillips, Johnson, and Knowles, are all to the effect that they considered that "the award of the probate court commissioners and the first superior court jury for approximately $3,000 for Elisha J. Campbell stood and was not disturbed by the verdict of the jury in the said November and December trial." The affidavit of the juror Knowles (foreman) further states that, "if I had considered that the first award to said Campbell could have been wiped out by the verdict of my jury, I should have voted against said Campbell getting anything." The affidavits of the three other jurors above named make no statement as to what they would have done in the event they had not supposed the first award stood, and was not disturbed by their verdict. It appears, therefore, that none of these affidavits support the claim set up in the first ground of the petition that the jury "intended not to disturb the award of the commissioners, * and the verdict of the first superior court jury for approximately three thousand dollars ($3,000)." They only show, if true, that four members of the jury supposed that the award of approximately $3,000 to Campbell was not disturbed by their verdiet; and it is not impossible that the other [2] Two of the jurors, Patton and John or any of them. The fact stated as to the amount formerly awarded to Mr. Campbell was before the jury, as shown by the part of the charge above quoted, and they were fully instructed regarding the same as above shown, after the time when this statement must have been made. In our opinion, while the conduct of this juror, if truly stated in the affidavit, was highly improper in thus seeking information, out of court, as to a case on trial, it utterly fails to show that any information was in fact conveyed, outside of what was in evidence before the jury, or that the information conveyed could have had any effect upon the verdict. This affidavit furnishes no support to the petition. ment, in effect, "that, although no evidence or could have had any effect upon the jury was introduced in the trial tending to warrant the inference or belief that the note for $10,000 on which appellant based part of his cause of action was in fact made at a later date than appeared from the face thereof, I, together with the other jurymen, compared the signature of the maker of said note with his signature made elsewhere and at another time and as a result was of opinion that the note was really antedated, which opinion materially affected the verdict as rendered." With regard to these statements, it is to be noted that none of the other affiants corroborate them, although the statement is that "I, together with the other jurymen, compared,” etc. It is curious, to say the least, that the other three jurors fail to remember this seemingly important matter, if it were true. But the basis of the statement is shown to be untrue, because it appears by reference to at least 13 different pages of the transcript that the appellant himself admits over and over again that, while the note bears date April 1, 1902, it was not signed until the fall of 1902; so that it is untrue that no evidence was introduced in the trial tending to warrant the inference or belief that the note for $10,000 was in fact made at a later date than appeared from the face thereof. The fact being admitted was before the jury, and no comparison of signatures was needed to establish it. We fail to see how these facts as stated in these two affidavits could, if proved, have had any effect upon the verdict | adverse to the appellant; and we are of the opinion that they fail to prove that they did, in fact, have any such effect, or, indeed, to prove to the satisfaction of the court that any such thing happened. In our opinion these affidavits show forgetfulness of the actual state of facts as shown by the evidence about a year before their date, but furnish no support for the petition, as they do not show that the trial was not "full, fair, and impartial." The affidavit of William D. Hawkins, who was a witness at the trial, called on behalf of the appellant, sets forth that he was during the trial questioned on the street by a man whose name he does not know, but whom he identified as a juror, who asked him, "What is this case anyway?" to which he says he replied, "All that I know about it is the note;" that the juryman then inquired if there had not been another trial, and that on receiving an affirmative answer the juryman asked how much Mr. Campbell had been awarded, to which he replied that the sum was "about $3.000." There is no supporting affidavit decree of the probate court allowing an adOn appeal to the superior court from a from any juryman as to this; nor is there ministrator's or executor's account, such repany evidence to show either that this state-resentative has the affirmative under rule 14 ment had any effect upon the mind of the person to whom it was made, or that it was reported to the other jurymen, or that it had In thus discussing the effect of these affidavits on their merits, we are not unmindful of the arguments of counsel as against the legal admissibility of the affidavits of jurors intended to impeach their verdicts; nor are we unmindful of the decisions of this court and other courts in support of the general rule that "affidavits of jurors as to their own misconduct in or out of the jury room during the trial are inadmissible to impeach their verdict." Phillips v. R. I. Co., 32 R. I. 16, 78 Atl. 342, 31 L. R. A. (N. S.) 930. Nor do we, by thus discussing these affidavits upon their merits, intend to imply that they may be of such character, as to come within the exceptions to the rule, as the counsel for the petitioner argues. We have preferred to show that, even if admissible, they do not set forth such facts as to warrant this court in arriving at the conclusion that the jury were misled or mistaken in rendering their verdict, and that they afford no proper ground for the granting of the petition. In our opinion these affidavits show, at most, a forgetfulness on the part of certain jurors as to the facts of the case as it was clearly submitted to them nearly a year before, rather than such facts as would even tend to show that they made any mistake in rendering their verdict as they did. For these reasons, the petition is denied and dismissed. (34 R. I. 297) CARNEY et al. v. HAWKINS. (Supreme Court of Rhode Island. May 27, 1912. On Motion for Reargument, June 11, 1912.) 1. EXECUTORS AND ADMINISTRATORS (§ 510*) -ACCOUNTING AND SETTLEMENT ACTION-BURDEN OF Proof. (law rules) of the superior court, and, where to prove certain items an executor merely presented as part of the record of the probate court a copy of his sworn account without a PARKHURST, J. This case is a probate appeal from the probate court of the city of Central Falls, which was taken by the ap showing that it was submitted or sworn to by 1 him in open court, or that he was present in court at any time for cross-examination and without a stipulation that it should be accepted as evidence of his account, a decree allow-pellants as residuary devisees under the will ing such items was improper. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 2235-2256; Dec. Dig. § 510.*] 2. EXECUTORS AND ADMINISTRATORS (8 506*) -ACCOUNTING AND SETTLEMENT - - CHARGES AND CREDIT-EVIDENCE. A personal judgment against an executor without other evidence is insufficient to sustain an item of account charged as "paid on execution." [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2169-2177; Dec. Dig. § 506.*] 3. EXECUTORS AND ADMINISTRATORS (§ 281*) -ALLOWANCE OF CLAIM-STATUTE OF LIMI TATIONS. Court and Practice Act 1905, § 891, provides that an action against a solvent estate on a disallowed claim must be brought against the administrator or executor within six months after notice of disallowance. After the disallowance of a claim by an executor, the claimant seasonably attempted to have a judgment against the executor as an individual, and amended it to make it a suit against the estate more than a year after the disallowance. Held, the attempted amendment was the institution of an entirely new suit against the executor, and, as it was not brought within the time required by the statute, no liability to pay the amount of the claim attached to the estate. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1102-1104, 1106-1115; Dec. Dig. § 281.*] of James Gilbane from the allowance of the Paid on execution in case of John J. Paid in settlement of case of Margaret E. De V. O'Connor, Atty. fees. $ 77 20 500 00 600 00 214 00 350 00 After hearing of this appeal before a justice of the superior court, without a jury, jury trial having been waived, the justice allowed all of the contested items except that one specified as, "Paid on execution in case of John J. Gilbane, $77.20," which was disallowed. [1] The appellants excepted to this decision, and the case is now before this court upon the bill of exceptions. The decision of the justice states that "his account, sworn to, is submitted by the executor. There was no cross-examination of him by the appellants." But the transcript of testimony does not show that the executor was present in court, or that the account was submitted by him or sworn to by him in court, or that he was present at any time before the court so that he could be subjected to cross-exam 4. LIMITATIONS OF ACTIONS (§ 175*)-WAIVER-POWER OF EXECUTOR OR ADMINISTRA-ination. The only evidence submitted was TOR. The running of the statute of limitations against a claim against the estate of a decedent will absolutely extinguish the claim, and the effect of the statute cannot be waived by the executor or administrator. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 662; Dec. Dig. $ 175.*] 5. PARTIES (8 59*)-SUBSTITUTION-CAPACITY OF DEFENDANT. offered by the appellants, and consisted of certain papers in several prior suits and proceedings relating to the charges for amounts paid to John J. Gilbane for $77.20, and to Margaret Gilbane for $500. No evidence was offered by the appellants as to the other items of the account set forth in the reasons of appeal. Nor does it appear upon the transcript that the appellants formally consented to the introduction and admission of the account sworn to by the executor as Where a suit against a defendant personally was amended so as to make it a suit against him as administrator, there was a change in the cause of action, and the attempt-prima facie evidence of the correctness and ed amendment and judgment thereon were a nullity, so that a payment by the executor of the amount of the judgment could not be allowed as a charge against the estate. [Ed. Note. For other cases, see Parties, Cent. Dig. §§ 90-94, 165; Dec. Dig. § 59.*] Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. propriety of the items therein charged, and waived the proof of the items of the account, as to which they had taken their appeal. This procedure was highly irregular. The mere presentation of a copy of the sworn account of the executor, produced with other papers from the probate court, as a part of the record of the probate court, to show what the appeal relates to, is not James H. Carney and others appealed to evidence of the propriety and correctness of the superior court from an allowance of the the items of the account, and should not account of John B. Hawkins, executor. have been accepted. as such by the trial From an order of the superior court allow-judge, unless expressly stipulated by the ing items of the account, appellants bring parties. Upon appeal from a decree allowexceptions. Exceptions sustained, and case ing an administrator's or executor's account remitted for new trial. Edward M. Sullivan, of Providence, for appellants. Hugh J. Carroll, of Pawtucket, for appellee. by the probate court, the administrator or executor who presented the account for allowance in the probate court is "the party holding the affirmative" under rule 14 (law |