roborate this the defendant produced the wit- | the affidavits of three apparently disinterestness William W. Whitehead, Jr., who keeps ed persons whose testimony was unknown to a news store in Centredale, who testified that the defendant at the time of the trial and the reporter and another man came to his was not discoverable by reasonable diligence store on April 18th and asked as to the on its part. These affiants state facts which, whereabouts of the plaintiff. Also, Charles if true, show admissions on the part of the A. McCormick, a police officer, testified that plaintiff that he did have the interviews the reporter in company with another young with Mr. Underhill as claimed by the deman asked him where the plaintiff was; fendant. With the evidence upon this vital that he told them that the plaintiff had been issue so closely balanced, if not preponderattransferred that day to Woodville; and that ing in favor of the defendant, I am of the the two young men left in the direction of opinion that if a new trial were granted, and Woodville. The plaintiff brings, in support the testimony of these affiants introduced, of his denial of the interview with the plain- there is a strong probability that such testitiff and his brother on April 18th, a number mony would change the result. It cannot of witnesses who testify as to where the strictly be called cumulative evidence; but, plaintiff was in Woodville during the after- if it were, the rule has been somewhat renoon of the 18th; but the same criticism laxed, and, if a new trial will tend to promay be made of this testimony as was made mote justice, it may be granted although the of the evidence offered to disprove the inter- newly discovered evidence be cumulative in view of April 17th. its nature. This has been recognized in Hughes v. Rhode Island Company, 27 R. I. 591, 65 Atl. 275. From all these considerations I am of the opinion that a new trial should be granted. JOHNSON, J., concurs in the dissenting opinion. CARDARELLI v. PROVIDENCE JOURNAL CO. (Supreme Court of Rhode Island. July 11, 1911.) The court in its opinion lays much too great stress upon the fact that the reporter resorted to artifice in dealing with the plaintiff, and that these interviews constituted propositions on the part of the reporter that both the plaintiff and himself should commit criminal offenses, the plaintiff in leasing a building for the purpose of gaming, and the reporter in keeping a common nuisance. This extended consideration of that phase of the case seems to me to be wide of the mark. There is nothing in the case to indicate that the reporter really intended to hire a building from the plaintiff and open a gambling house. We are not concerned with the question whether in the circumstances of the case the use of dissimulation and misstatement was justifiable or morally defensible. Because of the nature of the plaintiff's testimony, the primary question here is: [Ed. Note.-For other cases, see New Trial, Did the alleged interviews take place, how-Cent. Dig. §§ 221-223, 225, 226; Dec. Dig. §§ ever improper or immoral the conduct of the reporter may have been? If we find that the reporter is blamable in using artifice, and in negotiating with the plaintiff to hire from him a building for the purpose of gaming, we thereby in effect find that the pub lications were true. In considering the reporter's testimony, we should of course bear in mind, as throwing some light upon his character for veracity, that he admits having made misstatements for the purpose of throwing the plaintiff off his guard. It must be remembered, however, that a vital part of the defendant's case is that the reporter did deceive the plaintiff. To say that it shall not be believed that the reporter deceived the plaintiff, and that the interview happened because the reporter admits that he made misstatements for the purpose of deceiving him, is indulging in a circular argument not entitled to quite the importance that the opinion of the majority of the court gives to it. NEW TRIAL (§§ 105, 107, 108*)-NEWLY DIS- A new trial will not be granted for alcharacter, of doubtful credibility, and which leged newly discovered evidence, impeaching in would not shed any light on the issue in the case. 105, 107, 108.*] Action by Pietro Cardarelli against the Providence Journal Company. On petition for leave to file a motion for new trial in the Superior Court for newly discovered evidence, under Gen. Laws 1909, c. 297, § 3. Denied. See, also, 80 Atl. 583. Frank H. Wildes, for plaintiff. Francis B. Keeney, Seeber Edwards, and Edwards & Angell, for defendant. PER CURIAM. A majority of the court are of the opinion that the defendant's petition for leave to file a motion for a new trial in the superior court based upon newly discovered evidence must be denied. The evidence relied upon for this purpose is contained in an affidavit, made by a fellow countryman of the plaintiff, and consists of statements alleged to have been made by the plaintiff and his attorney during a consultation preparatory to a hearing, for the purSince the verdict the defendant has filed pose of inquiring into the conduct of the plaintiff as a police constable, before the town council of his town, which was held some time before the trial of the plaintiff's case against the defendant. The statements said to have been overheard by the witness are in conflict with the testimony of the plaintiff as a witness in his case against the defendant. The newly discovered witness was alone at the time of the consultation, and his version of the matter is uncorroborated, while the plaintiff and his attorney would undoubtedly deny that such statements were made. It does not seem likely that a private consultation involving matters of importance, such as this witness details, would have been so publicly conducted that outsiders could have participated not only uninvited, but also unknown to the interested parties. Nor is the explanation given for not disclosing the matters so discovered any more satisfactory. To reopen cases which have been determined before the regular tribunals in the usual manner upon affidavits such as this is not to be encouraged. It would be to admit testimony which is of an impeaching character and does not shed any light upon the issue in the case. The petition is therefore denied and dis missed. 1. APPEAL AND ERROR (8 274*)-EXCEPTIONS TO DECISION-SUFFICIENCY. The exception to the decision for plaintiff for a certain amount, that after the decision for plaintiff in such entitled case, and within seven days after notice thereof, defendant comes into court and hereby excepts to said decision, is sufficient and in proper form; reasons for exception having no place in the exception. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 274.*] 2. EXCEPTIONS, BILL OF ($$ 45, 55*)-REQUI SITES-PROCEEDINGS TO ESTABLISH. Defendant's exception being merely to the decision for plaintiff for a certain amount, inclusion in the bill of exceptions of reasons for the exception, as exceptions taken, is improper; and they will be stricken out in a proceeding to establish the truth of the exceptions. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 74, 93; Dec. Dig. §§ 45, 55.*] Action by the Dunn Worsted Mills against the Allendale Worsted Mills. There was a decision for plaintiff, and defendant excepted. Plaintiff petitions to establish the truth of defendant's exceptions, under Gen. Laws 1909, c. 298, § 21. Petition granted. John J. Heffernan and James H. Rickard, Jr., for plaintiff. Bassett & Raymond, for defendant. alleged breach on the part of the defendant of a certain contract between the plaintiff and the defendant. Jury trial having been waived, the case was tried in the superior court before the presiding justice. On a day subsequent to the date of trial the said justice filed a rescript, in which he discusses at some length the testimony given at the trial, and concludes with a "decision for the plaintiff for $6,000." To this decision the defendant duly filed its exception. The defendant's exception was as follows: "And now, after decision for the plaintiff in the above-entitled case, and within seven days after notice of such decision, the defendant comes into court and hereby excepts to said decision." It does not appear that the defendant took any other exception during the progress of said case in the superior court. Within the time fixed by said justice the defendant filed its bill of exceptions in the superior court. In this bill the defendant recites the nature of the action, the fact of the trial, and that "decision was rendered for the plaintiff for $6,000, and after said decision of said case exceptions thereto were duly taken by the defendant, which exceptions set forth in detail are." Then follows in numbered paragraphs an assignment of ten reasons for the defendant's contention that the decision was erroneous. These reasons are chiefly objections to the reasoning of the justice, appearing in the rescript, which led him to render his decision. The bill of exceptions was allowed by said justice, and together with the transcript and the papers in the case has been certified to this court. The case is before us now upon the plaintiff's petition to establish the truth of the defendant's exceptions. The plaintiff's contention is that the truth of said exceptions would be established by striking from said bill "the alleged exceptions numbered 'first' to 'tenth' inclusive," referring to the reasons urged against said decision in the numbered paragraphs of the bill. The plaintiff's counsel argued before us that, as these so-called exceptions were not in fact taken by the defendant, it cannot place them in its bill. The counsel further intimated that if this petition be granted, and the said paragraphs stricken out, leaving only the general exception to the decision, the plaintiff will then move to dismiss the bill, on the ground that the said exception is too general and indefinite. Since the hearing in this case the court has rendered its opinion in Blake, Trustee, v. Atlantic National Bank, 32 R. I. 80 Atl. 181. In that case we denied a motion to dismiss a bill of exceptions as too general and indefinite, which contained a single exception to a decision in the same form as that taken to the decision in this case, and quoted above. This case presents the slightly different question SWEETLAND, J. This is an action of the case, brought to recover damages for the as to whether, if a party in his bill elabo- | It would therefore be a useless procedure rates his exceptions and enumerates the rea- to compel the moving party to embody in sons on which they are based, these reasons should be stricken out in a proceeding to establish the truth of the exceptions. Perhaps this question has been sufficiently answered already in Blake, Trustee, v. Atlantic National Bank. We have thought it well, however, to treat the matter thus fully, that there may be no misunderstanding as to the form of taking exception and the form of bills of exceptions under the statute as it now stands. grounds of his exception. The exception to the decision which was actually taken in this case is a sufficient exception to a decision, and is in proper form. his exception an outline of his counsel's argument, or to restrict the counsel in his argument to the reasons given in his exception, if this court in its consideration of the question is not to be limited at all by the reasons stated in the exception. Reasons have their place in argument and in objections, not in an exception. The only duty of an exception to a decision is to bring upon the record the fact that the party has made his legal objection to the decision. We have [1] First, as to the form of the exception: held that a general exception to a charge to The office of the ordinary exception taken a jury is not valid. The reason for such during the preliminary progress of the cause, a rule is plain. The charge generally inwhile the pleadings and the issues are being cludes a number of instructions, and the parsettled, and during the trial, is to bring for- ty desiring to take an exception should specmally upon the record the party's objection ify at the close of the charge to which into the respective rulings of the court. The struction or instructions he objects, that statute makes no distinction as to the form the justice may have an opportunity of corof the exception, whether it be to a ruling recting the misunderstanding or the impropupon a question of pleading, to the admission er statement of law before the jury begins or exclusion of testimony, or to the decision. its deliberations. There has been no prac As far as is provided by the statute, if antice, however, requiring the party excepting exception to the decision is objectionable to any portion of the charge to state the because it does not set out all the grounds of objection which are relied upon, the same may be urged against an exception taken during the trial to the admission of testimony. It would be unjust to deprive a party of the benefit of exception to an erroneous ruling, most prejudicial to him, excluding important evidence, because his counsel in the rush of the trial is unable at the moment to hit upon the efficient ground of objection. In practice during a trial an exception is preceded by an objection overruled. In support of the objection counsel in argument presents to the court the reasons which he has for the objection. The court may ignore all these reasons as unsound, and yet for other reasons, which it regards as sufficient, may sustain the objection. If, on the other hand, the court overrules the objection and the party excepts, upon review before this court counsel will not be restricted in his argument to the reason which he urged before the superior court, nor will this court be compelled to decide the question upon the grounds presented in the argument before it. A similar condition is presented in the case of an exception to a decision. While there has been no objection made before this exception, counsel has had an opportunity to urge upon the court in argument every reason that may occur to him why the decision should be in his client's favor. If the decision is adverse, and the party aggrieved comes to this court upon a bill of exceptions, at the hearing here, whatsoever may be the argument of counsel for the moving party, this court may entirely disregard it, and discard as unsound the reasons contained in it, and still upon a consideration of the record and the law determine that the decision [2] As to the form of a bill of exceptions: Except the formal parts, in which the party clearly identifies the case and the trial and concludes with a prayer for its allowance by the justice, the bill should contain only an enumeration of the rulings and the exin which they were taken, each stated sepceptions thereto actually taken, in the form arately and clearly. See Blake, Trustee, v. In such a Atlantic National Bank, supra. bill the so-called exception contained in this defendant's bill, in the numbered paragraphs referred to, would not appear, first, because these so-called exceptions were not actually taken, and also because it is not good prac tice to confuse the list of rulings and exceptions with an elaboration of the reasons for the exceptions taken. In conforming to the practice indicated in Blake, Trustee, v. Atlantic National Bank, members of the bar and the justices of the superior court, in the preparation and allowance of bills of exceptions, will be relieved from much uncer tainty and their labors will be simplified. The only question before them is as to the truth of the exceptions-whether from the record, or in some cases from their notes and recollection, it appears that the exceptions which the party claims were actually taken. The question of the validity of the exceptions is for this court alone. The plaintiff's petition is granted, and the truth of the defendant's exception is estab lished, by striking from the bill "the alleged exceptions numbered 'first' to 'tenth,' inclu (33 R. I. 71) WARREN v. WARREN. (Supreme Court of Rhode Island. July 10, 1911.) 8. WITNESSES (§ 201*)-CONFIDENTIAL RELATIONS-ATTORNEY AND CLIENT. In a sult for divorce, a question asked a witness for the husband who had formerly acted as attorney for the wife, "Did you at any 1. WITNESSES (§ 244*)-EXAMINATIONS-LEAD-time while acting for Mrs. W. drop the BeneING QUESTIONS-HOSTILE WITNESS. It was within the discretion of the court to permit a party to ask leading questions of his own witness who was hostile. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 795; Dec. Dig. § 244.*] 2. WITNESSES (§ 242*)-LEADING QUESTIONSAID OF MEMORY. A party may ask leading questions of his own witness lacking in memory. [Ed. Note. For other cases, see Witnesses, Cent. Dig. 846; Dec. Dig. § 242.*] 3. WITNESSES (§ 246*)-EXAMINATION-PARTICIPATION BY COURT. It is within the discretion of the court to interrogate a witness on his own account to ascertain the truth. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246.*] 4. WITNESSES (§ 268*)-CROSS-EXAMINATION -SCOPE OFFERS OF COMPROMISE. In a suit for divorce, it was not reversible error as bearing on the question of compromise to admit, on cross-examination, the question, "What were you, in behalf of Mr. W., attempting to get a settlement for?" nor to exclude the question, "Was the question of this money settlement raised until all your efforts failed to get the divorce case settled?" [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 268.*] 5. WITNESSES (§ 201*)-CONFIDENTIAL RELATIONS-ATTORNEY AND CLIENT. dict House matter, or eliminate it from this Cent. Dig. § 754; Dec. Dig. § 201.*] [Ed. Note.-For other cases, see Evidence, Dec. Dig. § 158.*] 11. WITNESSES (§ 236*)-EXAMINATION-INDEFINITE QUESTIONS. witness who had formerly acted as attorney for In a suit for divorce, a question asked a the wife, "What action, if any, had been taken by you prior to that time with reference to M.?" was indefinite. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 817-826; Dec. Dig. § 236.*] 12. APPEAL AND ERROR (§§ 1056, 1058*)— HARMLESS ERROR-EXCLUSION OF EVIDENCE. Exclusion of certain questions was not re In a suit for a divorce, a question asked a witness who had formerly acted as attorney for the wife, "Did you at any time make an investigation into the matter (occurrences at a certain house) while you were counsel for Mrs. W.?" was improperly excluded, as it did not call for information gained by confidential com-versible error where the matter could have had munications, but the question, "As a result of any investigation made by you, or through your office, what action was taken by you with reference to prosecuting this case on the basis of said matter?" was properly excluded as involv-party complaining. ing a consultation with the client, as did also by implication the question, "Did you, through any source, while acting for Mrs. W., get any knowledge with reference to said matter on which you relied?" [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 754; Dec. Dig. § 201.*] 6. EVIDENCE (§ 471*)—OPINION-QUESTION OF LAW. In a suit for divorce, a question asked of a witness for the husband who had acted as attorney for the wife, "Did you, through any source, while acting for Mrs. W., get any knowledge of the Benedict House matter, upon which you relied in acting in this case with reference to eliminating that matter?" was improper, as calling for the opinion of a witness as to value of the evidence regarding a certain part of the petitioner's case. little weight on the determination in any event, and the matters were developed in the testimony of other witnesses, or could have been easily furnished by other witnesses, available to the [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4188, 4204; Dec. Dig. §§ 1056, 1058.*] 13. DIVORCE (§ 184*)-TRIAL BY THE COURTFINDINGS OF FACT-REVIEW. The Supreme Court will not disturb the findings of fact by a justice of the superior court in a divorce case unless clearly failing to do justice. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 570-573; Dec. Dig. § 184.*] 14. EVIDENCE ($ 78*)-SUPPRESSION-EFFECT. The superior court, in passing on facts in a divorce case, was entitled to give much weight to the fact that respondent suppressed testimony of the petitioner, and by improper methods deprived her of important witnesses. [Ed. Note.-For other cases, see Evidence, [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 98, 100; Dec. Dig. § 78.*] Dec. Dig. § 471.*] 7. WITNESSES (§ 236*)-EXAMINATION-INDEFINITE QUESTION. T question was also indefinite. [Ed. Note.-For other cases, see Witnesses, Dec. Dig. § 236.*] Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. Petition for divorce by Mary A. Warren against Edmund M. Warren. Judgment for *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes plaintiff and defendant excepts. Exceptions | which had been permitted the court might overruled, and case remitted. See, also, 79 Atl. 678. Henry W. Hayes and Richard E. Lyman, for petitioner. Irving Champlin, James Harris, H. N. Allin, and John Burke, for respondent. SWEETLAND, J. This cause is a petition for divorce. The petition alleged among other grounds for divorce that the respondent has been guilty of the crime of adultery. The petition was heard in the superior court before Mr. Justice Baker. Said justice gave a decision for the petitioner on the ground of adultery. The cause is before us upon exceptions to certain rulings of the justice made during the trial, and to the decision of the justice granting the petition. The respondent excepted to the rulings of the justice permitting counsel for the petitioner to ask certain leading questions of two of the petitioner's own witnesses and to cross-examine them, and also excepted to the action of the justice in interrogating one of these witnesses. There is no merit in these exceptions. [1-3] It was within the discretion of the court to permit the examination excepted to and also to interrogate the witness upon his own account in an attempt to ascertain the truth. Each of these witnesses, though called by the petitioner, showed themselves either to be hostile to her and deliberately withholding the truth or to be lacking in memory as to the matter of which they were being questioned. In either case the form of examination permitted by the justice was proper. Hildreth v. Aldrich, 15 R. I. 163, 1 Atl. 249. well have allowed the latter question to be asked. [5-11] Counsel for the respondent called as a witness Edward D. Bassett, Esq., formerly attorney for the petitioner, and examined him with reference to certain alleged occurrences at the Benedict House, in the city of Pawtucket. In his direct examination the witness was asked the following questions, all of which the justice excluded on the ground that the answers must be based upon knowledge which the witness had acquired while acting as counsel for the petitioner: "Q. 13. Did you at any time make an investigation into the matter while you were counsel for Mrs. Warren?" We think that this question was improperly excluded. It does not call for the disclosure of information gained by the witness from confidential communications on the part of his client. It concerns the matter upon which he was employed by the petitioner, but his testimony in regard to it would involve no breach of confidence, and is not privileged. "Q. 14. As a result of any investigation made by you, or through your office, what action was taken by you with reference to prosecuting this case upon the basis of the Benedict House matter?" The only action which the witness would have had authority to take would necessarily involve consultation with his client and confidential communications between them. If this question calls for a statement of the witness' action with reference to proceedings in court, the record of the case before the court furnished ample evidence of that matter. We find no error in this ruling. "Q. 15. Did you, through any source, while acting for Mrs. Warren, get any knowledge with reference to the Benedict House matter, upon which you relled, acting in this case, with reference to eliminating that matter?" In the circumstance of the witness' relations with the petitioner, we think that the question should by its terms have excluded information obtained from Mrs. Warren. It also calls for the opinion of the witness as to value of the evidence regarding a certain part of the petitioner's case which, whatever may have been the witness' opinion, was being pressed by her present counsel at the time of the trial. The question is also indefinite. We find no error in the ruling. “Q. 16. Did you at any time, while acting for Mrs. Warren, drop the Benedict House matter or eliminate it from this case for any reason?" So far as this question calls for a statement of the action of the witness in striking out parts of the petition or bill of particulars, the record fully shows his action. So far as it calls for the state of his mind and his professional intention, which must have depeñued upon conferences with his client, it was properly excluded. "Q. 20. Had you taken that action with reference to the Benedict House The respondent excepted to three rulings of the justice presiding made during the examination of the witness Emily G. Rowe. The first one (numbered 19 of respondent's exceptions) appears to be entirely immaterial. The other two, quoted below, related to the efforts of the witness to arrange an interview between the parties. This action at times was referred to by counsel for both parties as an attempt to arrange a settlement of the case, and that appears to have been its purpose. This matter, without objection, had been the subject of extended examination and cross-examination by counsel. It was late for either party to object on the ground that the matter was a negotiation for compromise. The whole subject of the attempted settlement clearly had no influence upon the final decision of the justice. [4] We find no reversible error in admitting the question in cross-examination: "What were you, in behalf of Mr. Warren, attempting to get a settlement for?" Nor in the exclusion of the question in redirect examination: "Was the question of this money settlement raised until all efforts, all your efforts, failed to get the divorce case settled?" |