the information that his note has been dishonored for nonpayment. The notice must identify the instrument and indicate that it has been dishonored. Referring to the certificate under consideration, we see that it contains a copy of the note and declares that payment had been demanded and refused, of which due notice was given to the indorsIt meets the requirements of the statute. If notice of the facts stated in the certificate was given, we have no doubt whatever of its entire sufficiency. The fourth as well as the other authorities referred to | required by the act to convey to an indorser were cited in the opinion to show that mere knowledge by an indorser of nonpayment of a note was not sufficient notice of dishonor. Marshall v. Sonneman was an action by the holder against an indorser, and the defense, as here, was failure to give notice of dishonor. There were two indorsers, and in giving notice the notary handed to the defendant the notice intended for the other in-ers. dorser. The notice in form was sufficient and gave notice to the indorser to whom it was addressed of nonpayment "and that the holders look to you for the payment there-signment must be sustained. of." The trouble arose from the fact that The court was right in holding, as requestthe notary delivered to the defendant the ed in the defendant's point numbered 31⁄2, notice intended for the other indorser, and that the memorandum at the bottom of the it was held that it was not notice to the certificate of protest that the notary sent defendant. The second paragraph of the syl- a notice of protest was no evidence that labus states the decision correctly: "Notice "Moffit ever received that notice." The memof protest signed by a notary public, and per- orandum was not a part of the certificate, sonally delivered by him to the indorser, is nor was it referred to in the certificate. not sufficient to charge the latter, where it The act of 1854, as we have seen, makes only appears that the notice was addressed to such official acts of the notary prima facie another person than the indorser, and stated evidence as are "certified according to law." that the holder looked to such person for the As this memorandum was not a part of the payment of the note." The negotiable in- certificate, nor referred to in it, it was not struments law declares what notice of dis- certified by the notary, and hence was not honor shall contain. The section referred to evidence of what it purported to contain. above, provides, inter alia, as follows: "The Had it been admitted, however, it would not notice (of dishonor) may be given have added any strength to the plaintiff's in any terms which sufficiently identify the case, as the certificate averred the same instrument and indicate that it has been fact. dishonored by nonacceptance or nonpayment." There is therefore no special form The judgment is reversed, with a venire facias de novo. (29 R. I. 441) JACKVONY v. COLALUCA et al. 1909.) ing an extension of time beyond December 1, 1908, if the same became necessary. See (Supreme Court of Rhode Island. March 29, Haggelund v. Oakdale Mfg. Co., 26 R. I. 520, 60 Atl. 106; Hartley v. R. I. Co., 28 R. I. 157, 66 Atl. 63. APPEAL AND ERROR (§ 629*)-RELIEF TO FILE Petition denied and dismissed. (29 R. I. 439) SMITH V. GOFF & DARLING. (Supreme Court of Rhode Island. March 26, 1909.) On a petition for leave to file a bill of exceptions and transcript of testimony, it appeared that the party's attorney relied on his stenographer to procure an extension of time for the filing, as the latter had done before; whereas, the stenographer assumed that the attorney would attend to the matter, and nothing was done. Held, that the attorney was not 1. SALES (§ 481*)-CONDITIONAL SALES-CONthereby relieved from his duty to his client, and that the failure to file in due time was not due to accident, mistake, or unforeseen cause, relief for which is provided for by Court and Practice Act 1905, § 473. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2765; Dec. Dig. § 629.*] Action by Antonio Jackvony against Camillo Colaluca and others. There was a judgment for plaintiff, and defendants petition for leave to file a bill of exceptions and transcript of testimony. Petition denied and dismissed. Antonio A. Capotosto, for plaintiff. James A. Williams, for defendants. PER CURIAM. This is the defendants' petition for leave to file their bill of exceptions and transcript of the testimony, under the provisions of Court and Practice Act 1905, § 473; their claim being that they have been prevented from filing the same in due time through accident, mistake, or unforeseen cause. It appears that at the time fixed for the filing of the transcript of evidence, rulings, etc., in the superior court, viz., De cember 1, 1908, the stenographer had not completed the same, and consequently it was not delivered to the attorney for the defendants. In this condition of affairs the stenographer assumed that the defendants' attorney would obtain a further extension of time, and the attorney assumed that the stenographer would attend to the matter. In consequence of these erroneous assumptions, nothing whatever was done, and the defendants lost the privilege of prosecuting their exceptions. VERSION BY SELLER-MEASURE OF DAMAGES. Where the seller of a piano, sold conditionally on installments, converted the piano after a partial payment of the purchase price, the measure of damages was the actual value of the piano at the time of its conversion, less the unpaid portion of the price; and such actual value may be shown to be in excess of the agreed price, but cannot be shown to be less, unless other than careful use, within a provision in the the piano was damaged by fire, water, or cause contract of sale. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1453; Dec. Dig. § 481.*] 2. SALES (§ 459*)-CONDITIONAL SALES-NEW AGREEMENT MERGER. Where defendants deliver a piano to plaintiff under an agreement for a conditional sale or lease, and afterwards they enter into a new agreement, the rights of the parties will depend ment is merged in the new. upon the new agreement, and the prior agree [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1347; Dec. Dig. § 459.*] dence and Bristol Counties; Willard B. Tan Exceptions from Superior Court, Proviner, Judge. Action by Amey B. Smith against Goff & Darling. A verdict was rendered for plain tiff for partial relief, and she brings exceptions. Exceptions overruled. PER CURIAM. This is an action of trover to recover damages for the conversion of a piano bought on the installment plan by the plaintiff from defendants. Without default on part of plaintiff, defendants converted the piano within two months from the date of the contract. Can we say that their loss was occasioned by accident, mistake, or unforeseen cause? The rule of damages governing the case is We think not. It is the duty of an attorney the actual value of the piano at the time of to look out for the interests of his client and its conversion, less the unpaid portion of the see that the necessary steps are taken to price. The value agreed upon by the parsecure such rights and privileges as the stat- ties in the contract was $285.32. The plainutes confer upon litigants. This duty is not tiff was entitled to show actual value in experformed by delegating the same to an- cess of that sum at time of conversion, if other, or by believing that another will do such was the fact. But the defendants are the duty of the attorney for him, even if estopped from showing that the actual value that other in fact has attended to the same is less than the sum fixed by them as the previously. The fact that the stenographer value in the contract, except as therein prohad procured prior extensions of time for vided by them, viz.: "In case of any damfiling the testimony did not relieve the de- age to said instrument by fire, water, or any fendants' attorney from the duty of obtain-cause other than careful use." See Woods For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes v. Nichols, 21 R. I. 540, 45 Atl. 548, 48 L. R. A. 773, and 22 R. I. 225, 47 Atl. 211. As the plaintiff did not prove that the value of the piano exceeded $285.32, and as the defendants did not prove that the piano had depreciated in value otherwise than by authorized use, the sum of $285.32 was properly taken to be the value of the piano; and as the unpaid portion of the price was $265, the plaintiff's interest in the piano was $20.32, which was the amount of the verdict by the jury. The court charged the jury as follows: "She had paid $20.32, and that is her interest, gentlemen, at that time, which you are to consider as the rule of damages." The court arrived at the correct result, although he did not fully set out the rule as above stated. The plaintiff's second request to charge, "That the interest of the plaintiff in the piano in question relates back to the first agreement and is governed by what payments she had made on both agreements," was properly refused. The court had already correctly charged the jury as follows: "There is no dispute that in the first place this piano was leased upon a certain lease; that some years after that, the relations of the parties not having been satisfactory, they entered into a new agreement; and as I take it, gentlemen, while the other agreement is allowed to go in here, as I might say has almost crept in, I think that the rights of the parties must all depend upon this new agreement, if it is a new agreement, which merges everything that went before it into itself; and you have to look, gentlemen, to this new lease to determine the rights of these parties, and to my mind it wipes out everything that goes before it." The plaintiff's exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict. (75 N. H. 590) HOBBS v. HOBBS et al. (Supreme Court of New Hampshire. Carroll. Feb. 2, 1909.) 1. BOUNDARIES (§ 35*)-LOCATION EVIDENCE. On the issue of the location of a boundary line, evidence of the location of other undisputed lines of known distance from the one in dispute is admissible. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 178-183; Dec. Dig. § 35.*] 2. TRIAL (§ 121*)-REMARKS OF COUNSEL. Where there was evidence of a number of dishonest acts by plaintiff in his efforts to obtain the land in suit, it was not improper for defendants' counsel, after commenting on one of these, to remark, "I will leave the other items, of which I might enumerate a dozen here that have occurred in the course of this trial, which would make his testimony absolutely worthless in any case." [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 294-298, 300; Dec. Dig. § 121.*] Exceptions from Superior Court, Carroll County; Chamberlin, Judge. Writ of entry by Christopher C. Hobbs against Orodon P. Hobbs and another. Defendants had judgment, and plaintiff brings exceptions. Exceptions overruled. Upon the issue of the location of the line between two original town lots the location of other undisputed lot lines in the same range was put in evidence, subject to exception, taken on the ground that the lines were not those in dispute. There was also evidence of a variety of dishonest acts done by the plaintiff in the course of his efforts to get and keep the disputed land. Subject to exception, the defendants' counsel commented upon one of these, and then said: "I will leave the other items, of which I might enumerate a dozen here that have occurred in the course of this trial, which would make his testimony absolutely worthless in any case." Walter D. H. Hill and Arthur L. Foote, for plaintiff. Leslie P. Snow, for defendants. PEASLEE, J. The evidence was admissible. The location of points which were at a known distance from the one in dispute would furnish some information upon the issue being tried. Keefe v. Railroad, 71 Atl. 379. The argument was manifestly proper. It was confined to the evidence in the case, and was a temperate criticism of the devious course which the evidence tended to show the plaintiff had taken. Exceptions overruled. All concurred. (81 Conn. 681) Appeal of MURDOCH et al. (Supreme Court of Errors of Connecticut. March 3, 1909.) 1. WILLS (§ 70*)—VALIDITY-WHAT Law GovERNS-NATURE OF PROPERTY. Whether one dies testate or intestate is to be determined by the law of his domicile as to personalty, and as to realty by the law of the state or country in which it is situated. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 185; Dec. Dig. § 70.*] 2. WILLS (§ 434*) – Probate - PROBATE OF FOREIGN WILL-EFFECT. Gen. St. 1902, § 305, provides that when a will conveying property in this state has been established out of the state, the executor may produce to the probate court, in the district where the property is, a duly exemplified copy of the will, and of the record of the proceedings esand if, upon due hearing after notice, no suffitablishing it, and request that they be recorded, cient objection is shown, the court shall order the copies to be recorded, when they shall have the same effect as if the will had been originally established in this state. Held, that the proceedings in a court of competent jurisdiction in Mississippi, establishing a will conveying property situated in this state, when proven by authenticated copies of the will and proceedings, conclusively established that the paper admitted to probate was entitled to probate in Mississip pi as testator's will, and that the executor ap- | diction from being set aside except by appeal, a pointed by the Mississippi court was designated therein as executor. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 434.*] probate court cannot revoke its own decrees, except under section 203, authorizing it to modify or revoke any ex parte decree made by it, before an appeal therefrom, and section 314, ausubsequently revoked by testator. 3. EXECUTORS AND ADMINISTRATORS (8 14*)-thorizing it to annul orders made under a will APPOINTMENT-POWER of Court. A court cannot make an original appointment of an executor; its power being limited to recognizing and approving or disapproving testator's appointment. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 31; Dec. Dig. § 14.*] 4. EXECUTORS AND ADMINISTRATORS (§ 10*)APPOINTMENT AND QUALIFICATION - JURISDICTION. It is for the court of the domicile to construe a will so far as it relates to matters subject to its jurisdiction, such as the determination whether a will designates executors, and their approval or disapproval. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 22, 23; Dec. Dig. § 10.*] 5. WILLS (§ 434*)-FOREIGN PROBATE-CON CLUSIVENESS. The copies of the proceedings of a Mississippi court of competent jurisdiction probating a will, when presented to a probate court of Connecticut upon being duly authenticated and exemplified, as required by statute, under the laws of the United States, were entitled to the same faith and credit here as in Mississippi, so that a finding there as to what constitutes the will, and what person was designated therein as executor, is conclusive in this state. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 940-944; Dec. Dig. § 434.*] 6. WILLS (8_434*) · VALIDITY - WHAT LAW GOVERNS-PROPERTY PASSING. Under Gen. St. 1902, § 293, providing that all wills executed according to the laws of the state where they are executed may be admitted to probate in Connecticut, and shall pass any estate situated herein, a Mississippi will, duly probated in a court of competent jurisdiction in that state, would pass all of testator's property situated in this state. [Ed. Note.-For other cases, see Wills, Cent. Dig. 937; Dec. Dig. § 434.*] 7. EXECUTORS AND ADMINISTRATORS (§ 517*)APPOINTMENT-FOREIGN EXECUTOR. That a Mississippi will conveying property in this state was duly probated there, so as to pass property in this state, did not require the probate court in this state to issue letters to the Mississippi executrix, as it could approve or disapprove her appointment. [Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 517.*] 8. WILLS (§ 355*)-PROBATE-FOREIGN WILL EX PARTE PROCEEDINGS- NOTICE - "Ex PARTE DECREE." Under Gen. St. 1902, § 305, relating to probate of foreign wills after public notice, and section 208, authorizing probate courts to make any proper order providing for the notice to nonresidents of matters pending before them, and making such notice a legal notice to such person, a decree on notice by publication is not an "ex parte decree," within section 203, authorizing a probate court to modify or revoke an ex parte decree, before an appeal therefrom. [Ed. Note. For other cases, see Wills, Dec. Dig. 355.*] 9. COURTS (§ 202*)-PROBATE COURTS-JURISDICTION-REVOCATION OF DECREES. Under Gen. St. 1902, § 194, prohibiting any order made by a probate court within its juris The insufficiency of the notice required by Gen. St. 1902, § 305, relating to the probate of foreign wills after public notice, and section 208 authorizing the probate court to make any proper order providing for notice to nonresidents of matters pending before it, and making such notice a legal notice thereof, would not be a jurisdictional defect, but would merely make the proceedings ex parte as to those not receiving proper notice. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 269.*] 11. WILLS (§ 252*) — FOREIGN WILLS - PROBATE JURISDICTION. The court of probate has jurisdiction of the application of a foreign executor of a will, which has been duly probated in another state, to probate the will in this state, both as to the subject-matter of the application and the rights of all persons interested therein. [Ed. Note.-For other cases, see Wills, Dec. Dig. § 252.*1 EXECUTORS AND ADMINISTRATORS (§ 517*) FOREIGN ADMINISTRATION - REVOCATION OF LETTERS-EVIDENCE. tamentary of an executor of a foreign will, proOn an application to revoke the letters tesbated in the state of testator's domicile, where letters had been issued to the same executor, the application being based on the ground that the will, which was ambiguous in that regard, did not name as executor the person who qualified as such, evidence that the person who qualified was of unsound mind prior to the making of the will, and so remained till after testator's death, was properly excluded as being in fact addressed to the construction of the will on that point, which was a matter for and decided by the court of testator's domicile. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 517.*] Appeal from Superior Court, New Haven County; Joel H. Reed, Judge. Application by John Murdoch and others against Annie A. Murdoch, executrix of the will of William B. Murdoch, deceased, to revoke a grant of letters testamentary to defendant. From a decree dismissing the application, the applicants appeal. Affirmed. William S. Murdoch, of Mississippi, signed in Mississippi, on August 5, 1891, a holographic paper, reading as follows: "Cain Mount, Claiborne Co., Mississippi, August 5, 1891. This my last will and testa- | liam B. Murdoch be given by publishing the ment: order three times in a newspaper having a circulation in the probate district. This notice having been given, the hearing was continued from July 1st to September 8th, when the application was granted, the will admitted to probate, and ordered on record, "1st. I leave to my wife, Annie A. Murdoch, the entire use and management of all my property, both real and personal during her life. At her death it all goes to my living brothers and sisters, or their heirs. "2nd. No inventory of my estate is to be and letters testamentary issued to Mrs. Murtaken. doch as executrix, on her giving a probate "3rd. My wife has perfect right to sell bond, which was duly approved. The appliany of it as may be for the best. best. cation to the court of probate to reopen the matter and set aside these orders and decrees was made by the appellants October 17, 1905. William H. Ely, for appellants. George D. Watrous, for appellee. BALDWIN, C. J. (after stating the facts Whether a man dies testate or as above). "4th. I ask that my friend James M. Gillespie of Tensas parish, La. and my cousin John W. Bristol of New Haven Connecticut act as coexecutors with my wife and befriend and aid her in her business. They give no bond, nor is it necessary for them to qualify as executors in any court. Simply by furnishing a certified copy of this will, the signature of either of them with the signature of my wife, is all that is necessary to sell or trans-intestate is to be determined by the law of fer any of the property, as they may deem his domicile, in respect to his personal property, and, in respect to his real estate, by that of the state or country within which such real estate is situated. Gen. St. 1902, $8 293, 305, provide that "all wills executed according to the laws of the state or country where they are executed may be admitted to probate in this state, and shall be effectual to pass any estate of the testator situated in this state," and that, "when a will conveying property situated in this state has been proved and established out of this state, in and by a court of competent jurisdiction, the executor of said will, or any person interested in said property, may produce to the court of probate in the district in which any of said property is situated a duly authenticat "5th. No account is to be kept of the disposition or management of my property-my wife to have full use, and manage it the best she can, with advice of the two coexecutors, and at her death, what is left goes to my brother & sisters or their heirs. "6th. I leave with this a letter to certain friends and relatives, asking them to befriend my wife the balance of her life. "[Signed] W. B. Murdoch. "To my brothers and sisters, to my cousin John Butler and Louis Bristol, to my friends John E. Carey, E. W. Constance and Wade Benjamin and my two friends that I have asked to act as coexecutors to my will: "My last request is that you will befriended and exemplified copy of such will, and of my wife and see her protected from some who might be her enemies. I have talked on this subject with some of you. "W. B. Murdoch." the record of the proceedings proving and establishing the same, and request that such copies be filed and recorded; and if, upon due hearing had after public notice and such He died April 24, 1903. By the laws of citation as said court shall order, no suffiMississippi holographic wills are valid, cient objection be shown, said court shall though unattested, and the "court of chan-order said copies to be filed and recorded, cery" has "full jurisdiction" over "matters and they shall thereupon become part of the testamentary and of administration." The files and records of said court, and shall have paper was presented for probate to the court the same effect upon the property so conveyof chancery, which admitted it to probate, ed as if said will had been originally proved and on May 16, 1903, appointed Annie A. and established in said court of probate." Murdoch sole executrix of the will, James The proceedings before the court of chanGillespie being dead, and John W. Bristol cery of Mississippi were such as to entitle having declined to act as executor. On June any person interested in the property of Wil17, 1903, she filed in the court of probate for liam B. Murdoch, within the district of New the district of New Haven an authenticated Haven, to apply to the court of probate for and exemplified copy of the will and the that district to have duly authenticated record of the proceedings in the court of and exemplified copies of the record of them chancery, and an application for its admis- made part of its files and records. They sion to probate by the court of probate and also, when proved by such copies, conclusivethe issue of letters testamentary. At the ly established that the paper admitted to time of his death William B. Murdoch owned probate was entitled to probate in Mississipreal estate in New Haven, and also personal pi as the will of William B. Murdoch, and property in the hands of residents of New that Annie A. Murdoch was designated in it Haven. An order was thereupon issued by as an executor, for no court can make an the court of probate that the application be original appointment of an executor; its heard on July 1, 1903, and that public notice power being limited to recognizing and ap |