comes sufficient to support the finding that the result was due to intoxication. We think that the intoxicated condition of the decedent is fully substantiated by the evidence, and that his reckless and unnecessary act in going into and standing up in a small boat, easily capsizable, was a dangerous act which would be apparent to any sober person. The very fact that he elected to make use of this small boat, instead of the larger yawl, which was lying close to it and was equally available, is further evidence of his condition and of his inability therefrom to properly care for himself. The trial court having denied the petitioner compensation, and such decision being in our opinion supported by substantial testimony, the petitioner's appeal is dismissed, the decree of the superior court dismissing the petition is affirmed, and the case is remanded to said superior court. man to take care of the fires for him because should be excluded before the evidence behe was "in bad condition." In the early evening, Collins made two or three trips to and from the shore in the large row boat belonging to the dredge taking ashore and bringing back members of the crew. On one of the return trips Collins was in such condition that, instead of rowing toward the dredge, he rowed out toward the open sea, whereupon one of the men in the boat took the oars and rowed to the dredge. There is evidence that one of the men in the boat, upon this trip, brought with him a quart bottle of whisky belonging to the cook who had been left on shore, and that upon reaching the dredge Collins and some of the deck hands opened this bottle and proceeded to imbibe its contents. From this bottle Collins had two drinks which were poured into, and each of which nearly filled, a water glass. Later all the men then on board except Collins turned in for the night. Afterwards one of the deck hands heard Collins and the cook, who had then come from the shore, talking about going back again for more whisky. Almost immediately there was a yell, and three men, named Rose, Miranda, and Viera, rushed out on deck. They found the cook struggling in the water and Collins standing up in a very small skiff, a yacht's tender, which did not belong to the dredge. Almost immediately the small boat tipped over and Collins fell into the water. Efforts to rescue Collins and the cook were unavailing. Collins and two other men were drowned. Ap parently when the cook came on board, just prior to the accident, he must have made use of a small yacht's tender, which he had in some way appropriated for that purpose and which was easily capsizable, and when Collins was seen in this small boat immediately before it capsized it was located within three or four feet of the large yawl with which the men were usually transported to and from the shore. SEBILLE et al. v. DUNN. (No. 5016.) (Supreme Court of Rhode Island. Feb. 20, 1917.) 1. DEATH 95(1)—ACTION FOR DAMAGES— In an action for negligent death brought by the next of kin under Gen. Laws 1909, c. 283, § 14, where the fact of liability is established, the tion of arithmetical computation as the circumquestion of damages becomes as nearly a quesstances of the case as disclosed by the evidence will permit, and the lack of accurate figures will not preclude a recovery, if the evidence furnishes sufficient material from which a reasonably fair computation can be made. 95(1).] [Ed. Note. For other cases, see Death, Cent. Dig. §§ 108, 113-115, 120; Dec. Dig. 2. DEATH 77-ACTION FOR DAMAGES-RE COVERY EVIDENCE. Evidence as to the amount of decedent's income and expenses held sufficient to enable the jury to properly assess the damages. [Ed. Note. For other cases, see Death, Cent. Dig. 96; Dec. Dig. 77.] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. and to the ruling and order of the trial justice on his motion for new trial granting such motion unless plaintiff accepted a remittitur which was filed, defendant excepts. Exception overruled and case remanded, with direction to enter judgment for plaintiff in sum of verdict as reduced by remittitur. [3] The petitioner argues that, in order to defeat the petition, the respondent must prove that the death resulted solely and exclusively from intoxication while on duty. If Action of trespass on the case for neglithe petitioner means by that that the re- gence by Fanny Sebille and others, next of spondent must exclude every possibility that kin of Peter A. Sebille, deceased, against death might have resulted otherwise than Charles D. Dunn. Judgment for plaintiff, from intoxication, we cannot agree with her. If Collins was in an intoxicated condition, that is, a condition in which he would be unable to look out for his own safety with that degree of care which a person would otherwise naturally exercise, and that, while so influenced, he did something which a person in a normal condition would not be likely to attempt and which brought about the accident, the trial court would be warranted in finding that the accident resulted ant. from the condition into which he had voluntarily brought himself. We do not think that the statute requires that every possibility pass on the case for negligence brought by Easton, Williams & Rosenfeld and Charles R. Easton, all of Providence, for plaintiffs. Louis W. Dunn, of Providence, for defend PER CURIAM. This is an action of tres the next of kin, under section 14, c. 283, of, self. It does not appear that he kept any the General Laws of Rhode Island 1909, to books or memoranda which would furnish recover damages for negligently causing the death of Peter A. Sebille, the husband of Fanny Sebille, and the father of the other plaintiffs, Ella F. Winsor, Rosa A. Winsor, and Arthur P. Sebille. The case was tried in the superior court upon the question of damages only; the liability of the defendant being admitted. The jury returned a verdict for the plaintiffs in the sum of $7,600. The defendant filed a motion for a new trial, upon which a hearing was had and a decision rendered granting said motion, unless the plaintiffs should remit from their verdict the sum of $2,600, and accept a judgment for $5,000. A remittitur was filed by the plaintiffs, and the case is now before us on the defendant's exception as follows: "To the ruling and order of said trial justice on said motion for a new trial that if within ten days the plaintiffs remit from the amount of the verdict $2,600, and accept a judgment for $5,000, a new trial is denied, otherwise granted.'" The defendant presents to this court two questions: (1) Was the evidence as to the amount of decedent's income and expenses sufficient to enable a jury to properly assess damages? and (2) Are the damages awarded excessive? [1] In fixing the rule of damages in such cases this court said, in McCabe v. Narragansett Electric Lighting Co., 26 R. I. 427, 59 Atl. 112: any assistance in arriving at his income either gross or net. Under these conditions it would naturally be difficult, perhaps impossible, to obtain the exact amount of his income or the amount of his expenses. In McCabe v. Narragansett Electric Lighting Co., supra, the court said, as already quoted: "When the fact of liability is established, the question of damages becomes as nearly a question of arithmetical computation as the circumstances of the case as disclosed by the evidence will permit." In making use of this language it seems to us that the court must have contemplated cases presenting difficulties similar in character to those presented by the case at bar where, from the very nature of things, it would be impossible to determine with accuracy the income and expenses of the deceased. The clear meaning of the language of the court above quoted seems to be that the lack of accurate figures should not in such cases preclude a recovery, provided the testimony furInishes sufficient material from which a reasonably fair computation can be made. [2] In the present case there is much tes timony bearing upon the question of the gross and net income of the decedent. Some made from time to time by Peter A. Sebille of this testimony is based upon statements to his children. This testimony was not objected to at the trial, and therefore must be considered. Little, if any, of it deals with "When the fact of liability is established, the exact figures. It relates and is composed question of damages becomes as nearly a question of arithmetical computation as the circum- mostly of statements claimed to have been stances of the case as disclosed by the evidence made from time to time by Peter A. Sebille will permit, and, consequently, the rule of dam-to his children as to the amount he received ages differs from that which obtains in other tort actions. * The loss sustained by the from certain of his crops and their estimate plaintiff is the present value of the net as to the amount of his personal expenses result remaining after his personal expenses are and the expenses of maintaining the farm deducted from his income or earnings. To as- and harvesting and selling its products. certain this it is, of course, necessary to ascertain first the gross amount of such prospective income or earnings, then to deduct therefrom what the deceased would have to lay out as a producer to render the service or to acquire the money that he might be expected to produce, computing such expenses according to his station in life, his means and personal habits, and then to reduce the net result so obtained to its present value." The defendant argues that the testimony of the plaintiffs' witnesses does not show the income and expenses of the deceased with sufficient accuracy to enable a jury to determine therefrom with any reasonable certainty his net earnings and the consequent loss to his widow and next of kin. In other words, the defendant claims that the verdict of the jury must have been reached through conjecture because there is no sufficient evidence on which it could be based. Peter A. Sebille was the owner of a farm in Greenville, R. I., embracing about 54 acres, upon which he raised vegetables and fruits for the market. The labor in raising Thomas K. Winsor, a son-in-law of Peter A. Sebille, who is engaged in fruit growing and general farming upon rather a large scale, testifies that he is sufficiently familiar with the Sebille farm and its output to estimate the value of its production, and he proceeds to do so, naming gross amounts and the percentage to be deducted for expenses. Without discussing his testimony in detail, we may say that in effect it does not differ materially from that of the other witnesses. We cannot say that from all of the testimony in the case a jury would be unable to make such a computation of the decedent's net income as would be reasonable and fair, taking into consideration the circumstances of the case as disclosed by the evidence. The plaintiffs have presumably presented to the court in the trial of the case all the evidence which they are able to produce upon the question of damages, and it would be futile to remit the case to the superior court for another investigation of that question. to $5,000, is excessive in view of the testimony. (78 N. H. 319) ROSS et al. v. BROWN et al. ham. Jan. 2, 1917.) The defendant's exception is overruled, and (Supreme Court of New Hampshire. Rockingthe case is remitted to the superior court, with direction to enter judgment for the plaintiffs in the sum of $5,000. (6 Boyce, 350) STATE v. SOCKUM. (Court of General Sessions of Delaware. Sussex. Feb. 7, 1917.) WEAPONS 17(2) — CONCEALED WEAPONS In a prosecution for carrying concealed a revolver, a deadly weapon, the burden of showing a license to carry the same, under Rev. Code 1915, § 262, is upon accused, and the state need not, to secure a conviction, prove the contrary. [Ed. Note. For other cases, see Weapons, Cent. Dig. § 26; Dec. Dig. 17(2).] 1. TowNS 151⁄2-SIDEWALKS-STATUTE. The adoption by a town of Pub. St. c. 79, § 10, confers the same powers upon selectmen as those conferred upon mayor and aldermen of a city. [Ed. Note.-For other cases, see Towns, Cent. Dig. 88 65-66; Dec. Dig. 15.] 2. TOWNS 151⁄2-SIDEWALKS-LEGISLATION -PRESUMPTION. Since it is clear that the original statute relating to sidewalks (Laws 1872, c. 25) intended the power of location and construction to be vested in the same board (Laws 1893, c. 29, § 3), providing for highway agents to construct highways and bridges, will not be presumed to have been intended to create another body with conflicting jurisdiction in the matter of constructing sidewalks. [Ed. Note.-For other cases, see Towns, Cent. Dig. 88 65-66; Dec. Dig. 151⁄2.] 3. TOWNS 151⁄2- SIDEWALKS-AUTHORITY TO CONSTRUCT-STATUTE. The power given selectmen to construct sideGeorge U. Sockum was indicted for unlaw-walks under Pub. St. c. 79, § 1, was not withdrawn by Laws 1893, c. 29, § 3, providing highway agents to construct highways and bridges, and selectmen could construct sidewalks without employing such highway agents. fully carrying concealed a deadly weapon, etc. Not guilty. Argued before CONRAD, J. David J. Reinhardt, Atty. Gen., and Daniel J. Layton, Jr., Deputy Atty. Gen., for the State. John M. Richardson and Frank M. Jones, both of Georgetown, for the accused. [Ed. Note. For other cases, see Towns, Cent. Dig. §§ 65-66; Dec. Dig. 15.) ham County; Branch, Judge. Exceptions from Superior Court, Rocking The agreed facts are as follows: Petition for injunction by William T. Ross and others as highway agents of the town of George U. Sockum was indicted for un- Hampton against Joseph B. Brown and othlawfully carrying "concealed a deadly weapers as selectmen of the town of Hampton. on upon or about his person other than an Injunction denied, subject to exception upon ordinary pocket knife, namely, a certain agreed statement of facts. Exceptions overfirearm, commonly called a revolver, he ruled. then and there, not being a policeman or other peace officer," etc. The state proved that at the time and place laid in the indictment, the accused, after having a wordy altercation with the prosecuting witness, went to his overcoat lying on a timber wagon, and took therefrom a revolver and placed it in his hip pocket, placing his hand over it. That he thereupon "dared any one of the three of us to do anything to him." When the state rested, counsel for accused moved that the court instruct the jury to return a verdict of not guilty because it had neither been alleged nor proved that the accused had no license to carry concealed a deadly weapon. Rev. Code 1915, § 262. The state contended that if accused had a license, it was peculiarly within his knowledge, and was a matter of defense. CONRAD, J. The court does not agree with the contention made by counsel for the accused, and declines to give binding instructions. After the usual charge in such cases, The plaintiffs are the highway agents and the defendants the selectmen of the town of Hampton. At the annual meeting in March, 1915, the town appropriated $500 to build a sidewalk, which the defendants are now building without employing the highway agents in the work. The plaintiffs claim the selectmen are not authorized to construct the sidewalk except through the highway agents, and ask that the selectmen be restrained from further construction and expenditure of the appropriation. The town has adopted the provisions of chapter 79 of the Public Statutes. John H. Bartlett and John L. Mitchell, both of Portsmouth, for plaintiffs. Eastman, Scammon & Gardner, of Exeter, for defend ants. PARSONS, C. J. [1] Chapter 79 of the Public Statutes, "Sidewalks and Sewers," is in force in Hampton because of its adoption by the town. By force of such adoption by the terms of this chapter the selectmen of Hampton possess the powers as to sidewalks and sewers conferred by the chapter upon the mayor and aldermen of any city. Id. § 10. The first section of the chapter provides that "the mayor and aldermen of any city, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes upon petition, may construct sidewalks there | bor tax, destroyed the office of surveyor of in." The agreed facts do not show a petition highways, made a money tax compulsory, and for this sidewalk. But the plaintiffs do not rest their objection to the jurisdiction of the selectmen upon the lack of a formal petition, a defect which, if it exists, it is obvious could be easily cured. They contend that the power given selectmen by this chapter was withdrawn by a statute of later date than the public Statutes which were adopted in 1891. Laws 1893, c. 29, § 3. placed the expenditure of the same with highway agents to be selected by the town. Special reference is made in the repealing section to the provisions of chapter 73. Sidewalks are not mentioned, and there is no direct reference to chapter 79. It is clear that the subject then before the Legislature was the change from one method of road repair to the other. [2] The earliest legislation upon the subject of sidewalks that has been discovered is chapter 25 of the Laws of 1872, which author. ized the city councils of any city by ordinance and any town by by-law to provide for the construction and maintenance of sidewalks and the assessment of a just proportion of the expense upon abutting owners. In 1875 by chapter 36 the subject was more elaborately treated and the matter cast in substantially the shape in which it now appears; i. e., the power is first conferred up The section relied upon requires the election of highway agents, and prescribes their duties; i. e., that they "shall have charge of the construction and repair of all highways and bridges within the town." This section was amended four years later by the insertion of the limiting clause, "under the direction of the selectmen." In the insertion of another amendment in 1913 (Laws 1913, c. 14), this limiting clause was by accident, or design, omitted from the section, to be restored by the next Legislature (Laws 1915, c. 171). These amendments, however, do not affect the ques-on the mayor and aldermen of any city, and tion which is whether a reasonable construction of the language used in 1893 substitutes the highway agents for the selectmen as the board having the powers of the mayor and board of aldermen of any city over the construction of sidewalks in towns which adopt the statute. The argument is that, since sidewalks have been considered highways within the town's duty of highway repair (Lambert v. Pembroke, 66 N. H. 280, 23 Atl. 81), the power of constructing highways nec-of abuttors were stricken out to be restored essarily includes that of building sidewalks. And it must be conceded the construction contended for by the plaintiffs is within the letter of the language used in 1893. But while the question is not free from doubt it seems more probable that such meaning was not intended to be given in 1893 to the language then used. by the concluding section like power is given selectmen of towns which adopt the act; with the power to construct is joined the power to widen and straighten the highway, and to assess a portion of the expense upon abuttors. In the revision of 1878, the General Laws, provisions as to sidewalks and sewers are combined into a chapter entitled, "Sidewalks and Sewers." G. L. c. 78. In the Public Statutes the provisions for the assessment by chapter 72, Laws 1895. Section 10 of chapter 79, P. S., is: "The provisions of this chapter shall be in force in such towns and village districts as may adopt the same; and the selectmen shall perform all the duties and possess all the powers in the town or the district, as the case may be, conferred by this chapter upon the mayor and aldermen." Section 1 is: "The mayor and aldermen of any city, upon petition, may construct sidewalks therein, straighten any highway as in other cases." and for that purpose may widen and Chapter 73 of the Public Statutes is entitled "Repairing Highways in Towns," and provides for the payment of taxes for that purpose in labor if the town does not order their payment in money, and prescribes the procedure for such enforcement of the tax [3] From this language it must have been through officers called surveyors of highways. understood that the power to construct was Chapter 29, Laws 1893, is entitled "An act lodged with the body having the power to providing for the construction, improvement, widen and straighten highways. Such powand repair of highways and bridges in towns, er selectmen have, and in imposing upon them and in amendment of chapter 73 of the Pub- the power given city officers having the corlic Statutes." This act abolishes all existing responding duty the statute is harmonious highway districts, requires the raising of the with other legislation and uniform in cities highway tax in money, and substitutes one and towns. To authorize highway agents to or more, not exceeding three, highway agents widen and straighten highways for sidewalk as executive officers in highway work purposes in towns would be to set up in throughout the whole town in place of high- towns two bodies having jurisdiction over way surveyors, each acting in one of several highway location with a possibility of condistricts into which towns might be divided flict which could not reasonably be inferred under the existing law. Under that law as within the legislative purpose, while it is, money raised by the town for highway repair as suggested, clear by the original statute the could be expended by the selectmen, survey-Legislature intended the power of location ors of highways or committees appointed by the town. P. S. c. 73, §§ 5, 6. The new stat and construction should be vested in the same board. The selectmen may, of course, all the evidence of the legislative intention it is not clear it was intended to require them to do so. The petition therefore was properly denied.· others appeal. The town excepted to finding that certain of testatrix's property was not taxable. Transferred to Supreme Court. Exception of town sustained in part, state's It is not probable the Legislature under- exception sustained, plaintiff's appeal disstood that in providing for the assessment | missed, and decree of the probate court afof the expense of construction upon abutting firmed. owners they were imposing such a duty upPetition for an abatement of the tax ason highway agents instead of upon selectmen sessed against Mrs. Paris, the plaintiff's tes(Laws 1895, c. 72, § 1); but the understand-tatrix, by the town of Charlestown in 1914, ing in 1893 rather than in 1895 is now in and an appeal from a decree of the probate question. court dismissing the plaintiff's petition for Chapter 111, § 1, Laws 1895, giving high- leave to file a copy of Mrs. Paris' will. The way agents charge and supervision of high-court found that Mrs. Paris, who had resided ways and sidewalks, has not been overlooked, in Charlestown for many years, neglected to but this does not relate to new construction, comply with the provisions of P. S. c. 57, in and for the reason last stated bears but 1912, and was doomed. The same thing hapslightly upon the question of legislative in- pened in 1913, and she decided to acquire a tent in 1893. residence in New York City, where she resided before coming to Charlestown. In pursuance of this determination she went to New York some time in September, 1913, and stopped at the Manhattan Hotel, where she was accustomed to stay when in that city. Some time about October 31st she consulted an attorney, and in pursuance of his Exceptions overruled. All concurred. (78 N. H. 301) KERBY et al. v. TOWN OF CHARLES- (No. 1377.) (Supreme Court of New Hampshire. Sullivan. advice did the various things on which the Nov. 8, 1916.) 1. DOMICILE 10-CHANGE-EVIDENCE-INTENTION TO CHANGE. Evidence held to show that a woman who had lived in the town for 30 years did not intend to establish a residence in New York, though she did intend to acquire a legal domicile there, and for that purpose, acting under the advice of attorneys, had hired a hotel room by the year registering from New York, had changed the description of her residence in her will and had changed the label on her trunk. [Ed. Note. For other cases, see Domicile, Cent. Dig. § 39; Dec. Dig. 10.] 2. DOMICILE ~4(2)—CHANGE-INTENTION TO CHANGE "HOME." A person does not acquire a new residence by merely going to another place with the intention of making it his domicile, but must also have the intention of residing there for a more or less definite time and making it his home, home being the principal residence, the place to which he always intends to return or the one place he thinks of as home. [Ed. Note.-For other cases, see Domicile, Cent. Dig. §§ 9, 22; Dec. Dig. 4(2). For other definitions, see Words and Phrases, First and Second Series, Home.] 3. TAXATION 462- ABATEMENT - FAILURE TO COMPLY WITH STATUTE-MISTAKE. A taxpayer who failed to comply with the requirements of Pub. St. 1901, c. 57, can nevertheless maintain abatement proceedings if her failure was due to mistake. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 818-823; Dec. Dig. 462.] Transferred from Superior Court, Sullivan County Chamberlain, Judge. Petition by Margaret Kerby and others against the Town of Charlestown for an abatement of a tax assessed against plaintiff's testatrix, and petition for leave to file copy of will of testatrix. From a decree of the probate court dismissing petition for leave to file a copy of the will, Margaret Kerby and plaintiffs rely to sustain the court's findings The Streeter, Demond, Woodworth & Sulloway, of Concord, for plaintiffs. Jones, Warren, Wilson & Manning, of Manchester, for defendant Town of Charlestown. James P. Tuttle, Atty. Gen., and Joseph S. Matthews, Asst. Atty. Gen., for the State. YOUNG, J. [1] Whether the plaintiffs should be permitted to file a copy of Mrs. Paris' will depends on where she resided at the time of her death. P. S., c. 187, § 13. The court has found that she resided in New York. Consequently the only question raised by the state's exception is whether the evidence warrants that finding. The plaintiffs rely on the fact Mrs. Paris went to New York in the fall of 1913 to acquire a domicile in that city, and, after consulting an attorney as to what she must do to effectu |