(44 R. I. 61) (115 A.) LEVINE v. LEVINE. (No. 369.) (Supreme Court of Rhode Island. Nov. 18, 1921.) her petition for separation or for an allowance for her support, counsel, and witness fees, and praying that said respondent should be restrained from so doing. On the same day a writ of ne exeat was 1. Appeal and error -Right of appeal issued, directed to the sheriffs of our several statutory. An appeal is a creature of statute, and is only available to those to whom the privilege is extended. counties or their deputies, commanding them to cause the respondent to give bail or security in the sum of $500 that he will not go, or attempt to go, into parts beyond this state 2. Sheriffs and constables -Sheriff is a without leave of court, and that in default court officer. of such bail or security to commit the re A sheriff is an officer of the court, and sub- spondent to jail. ject to its orders and directions. [Ed. Note-For other definitions, see Words and Phrases, First and Second Series, Court Officer.] 3. Divorce 84-In proceeding for separation, court may order payment into court of cash bond given in writ of ne exeat. In proceeding for separation, a writ of ne exeat having issued for defendant and a cash bond having been deposited with the sheriff by defendant, it was competent for the court to order the payment of the money by the sheriff into the registry of the court. 4. Appeal and error 150 (4)-No appeal by sheriff from decree directing payment into court of cash bond in writ of ne exeat. In suit for separation, a writ of ne exeat having been directed to the sheriff, under which writ the sheriff accepted from defendant $500 cash bail and on decree was directed to pay the amount into the registry of the court, there being no statute granting the right, the sheriff cannot appeal from the decree. Appeal from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge. Petition for separation by Bessie Levine against Solomon Levine. Decree ordering Jonathan Edwards, Sheriff, to pay cash collected on bond in writ of ne exeat into court, and the Sheriff appeals. Appeal dismissed, and case remitted for further proceedings. Charles A. Walsh, of Providence, for appellant. Charles Z. Alexander, of Providence, for petitioner. On the following day, May 27, 1921, service of this writ was made by a deputy sheriff, who arrested the body of the respondent and accepted from him the sum of $500 in cash as surety. On the 4th day of June, 1921, a decree was entered in the superior court, ordering the respondent to pay to the petitioner, for the support of herself and minor child, the sum of $15 per week, beginning June 4, 1921, and $10 for witness fees and $50 for counsel fees to be paid by September 1, 1921. The respondent having failed to comply with the terms of this decree, an execution was issued in the sum of $300 on September 27. 1921, and placed in the hands of a deputy sheriff, commanding him to levy the same upon the goods and chattels of the respondent, and for want of such goods and chattels to arrest the body of said respondent and commit him to jail. On October 8, 1921, this execution was returned wholly unsatisfied, the officer being unable to find the respondent or any goods and chattels upon which such execution could be levied. On October 8, 1921, the petitioner filed a petition, praying for the entry of an order directing the sheriff to apply from the cash in his hands, offered and paid to him by the said respondent, so much thereof as might be needed to satisfy the arrearages for support, counsel and witness fees. On October 20, 1921, after a hearing upon this last-named petition, a decree was entered thereon in the superior court (1) allowing the Philip V. Marcus, of Providence, for re- sheriff the sum of $75 for the fee of counsel spondent. appearing in his behalf, (2) ordering the sheriff to pay into the registry of the court the balance amounting to $425, and (3) permitting the petitioner to withdraw from the registry of the court the amount due her for support, counsel and witness fees. From this decree the sheriff, Jonathan Andrews, has taken an appeal to this court and says "that said order and decree are against the law." [1-3] A sheriff is an officer of the court, and subject to its orders and directions. If he desires to test the validity of any order made upon him by the superior court, there are well-known proceedings or remedies which he may invoke or pursue. We think it is competent for the superior | cense for unfitness, exact legal procedure is court to order the payment of the money in not required, yet substantial compliance with question into its registry. An appeal is a the fundamental rules of legal proceedings is creature of statute, and is only available to necessary, and where improper and prejudicia those to whom the privilege of appeal is testimony, such as hearsay, is found in the record, it must clearly appear that after exthereby extended. cluding such testimony there is sufficient legal testimony to satisfy the requirement of 5. Licenses 38-Revocable where the probable use by licensee would be detrimental to the public. [4] There is no provision of our statute for an appeal in a case like the one now be-proof by a fair preponderance. fore us, and we therefore think that it must be dismissed. In reaching this conclusion we have not considered the legality or propriety of taking what is popularly called Under Motor Vehicle Act, § 7, the power of "cash bail" in other cases where bail is re- the Board of Public Roads to revoke or required. Under the command in the writ of fuse a license to operate a motor vehicle is ne exeat the officer could, in his discretion, not restricted to cases where the right of take either bail or security. He saw fit to the public to use the highways in safety is intake a cash deposit in the amount named involved or where the licensee has actually made the writ, and we cannot see how any better security could have been obtained. The appeal is dismissed, and the case is remitted to the superior court for further proceedings. (44 R. I. 54) GLASS v. STATE BOARD OF PUBLIC (Supreme Court of Rhode Island. Nov. 18, I. Licenses 38-Revocation of automobile license held not warranted by evidence. Action of State Board of Public Roads in revoking license to operate automobile under Motor Vehicle Act, § 7, on the ground that licensee was an unfit person because of receipt of stolen goods, held not warranted by evidence. 2. Licenses 38-Revocation requires legal evidence, and only charges made can be considered. Since the hearing required to revoke a license to operate a motor vehicle under Motor Vehicle Act, § 7, is, by virtue of section 27, a judicial hearing, the decision of the Board of Public Roads revoking the license must be based on legal evidence of sufficient weight to support the specific charges made, and the power of the Board is restricted to acting only on the charges made. 3. Licenses 38-Decree of proof requisite for revocation of motor vehicle license for unfitness stated. use of his automobile in the commission of crime, but the Board may revoke or refuse a license whenever in good faith and in the exercise of reasonable discretion they find that the probable use of his automobile by the licensee would be a detriment to public safety, welfare, and morals. Appeal from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge. The license of Leo Glass for operating a motor vehicle was revoked by the State Board of Public Roads, and he appealed to the superior court. From decree overruling the action of the Board, it appeals. Appeal dismissed, decree affirmed, and cause remanded to superior court. Philip C. Joslin and Ira Marcus, both of STEARNS, J. This cause was heard on the appeal of the State Board of Public Roads from a final decree of the superior court, whereby the action of the State Board of Public Roads in revoking the license of Leo Glass for operating a motor vehicle upon the public highways was overruled. Glass, who had received a license to operate a motor vehicle from the State Board of Public Roads, was notified to appear before the Board and show cause why his license should not be revoked. The specific charge was that Glass was guilty of receiving certain goods which had been stolen in this state while in transit on an interstate railroad. After a hearing the license of Glass was revoked on the ground that in the opinion of the Board he was an unfit and Since, under Motor Vehicle Act, § 7, a proceeding to revoke a license to operate a motor vehicle because of unfitness is civil in its nature, even though the charge upon which the unfitness is based is the commission of a crime, the offense may be established by the preponderance of the evidence, and it is not necessary to prove the fact beyond a reasona-improper person to be licensed to operate a ble doubt. 4. Licenses 38-To warrant revocation of, sufficient evidence must appear after excluding improper evidence. Under Motor Vehicle Act, §§ 7, 27, while, in a proceeding to revoke a motor vehicle li motor vehicle. From the transcript of the testimony it appears that at the hearing Glass, who was represented by counsel, entered a plea of not guilty to the charge, that several witnesses were sworn and testified, the examination (115 A.) being conducted by way of examination and I sufficient, enter an order suspending or recross-examination. voking the license of any person to whom a It further appears that Glass, who was license has been issued"; that the license engaged in the jobbing business on North of any person who has been convicted in any Main street in the city of Providence, bought court of any violation of section 17, which the cotton cloth, etc., not from the thieves, relates to the operation of motor vehicles, but from certain persons who had bought and section 18, which establishes "rules of the property from the thieves. The price the road" for automobile drivers, may be paid was less than the market price, and revoked by the Board upon receipt by it of this fact, in connection with the knowledge a certified copy of such conviction. Section of Glass that the vendors were engaged in 22 provides that records of all violations of the business of selling and buying poultry the act shall be kept by the courts, and a throughout the state, and not in handling certified copy of the abstract of the record in cotton cloth, was sufficient, it was claimed, each case shall be sent by the court within 10 to give notice to Glass that the transaction days of the time when such case is disposed was irregular and improper. The stolen of. The judge of any court may make such goods were delivered to Glass by automobile recommendation to the Board as to the susbelonging to the vendors. Glass testified pension or revocation of the license of the that his suspicions were aroused; that he defendant as he may deem necessary. In insisted on having a bill of sale; that pay- other sections penalties of fine and imprisonment was made by his check, on the face of ment are provided for violations of the act. which appeared a statement of the goods for which payment was made, which payment by check, by agreement, was not made until after Glass had sold the goods; that some of the goods by Glass' order were delivered directly to reputable dealers by the vendors. After the arrest of Glass he gave the authorities the names of the persons from whom he had bought the goods, and as a consequence the vendors were apprehended. After their arrest and at the hearing one of the persons who had sold the goods to Glass made the statement that at the time of the sale to Glass they had told him the goods had been stolen. This was denied by Glass, who claims that the charge thus made was inspired by the desire for revenge. At the time of the hearing the case against Glass, who had been bound over to await the action of a federal grand jury, was under consideration by that grand jury, but no report thereon had been made. By section 8 of the Motor Vehicle Act (chapter 1354, Pub. Laws 1916) it is provided that any person aggrieved by an order of the Board may appeal to the superior court by filing a petition and setting forth therein the grounds of appeal; that said petition shall follow the course of equity so far as applicable, and upon hearing the court "may review the evidence presented before the Board and may in its discretion affirm or overrule or modify the order of the Board." At the hearing in the superior court, the transcript of testimony taken before the Board was presented to that court for review, and upon consideration thereof the action of the Board in revoking the license of Glass was overruled. [1] The first question raised by the appeal is: Was the action of the State Board warranted by the evidence in the case? By section 7 of the act it is provided that "the Board may, after a hearing of which at least three days' notice in writing has been given [2, 3] It thus appears that, after conviction in any court of any violation of section 17 or section 18, the Board may revoke a license after the receipt of a certified copy of the record of conviction without any hearing of the accused. In other cases the Board must give the licensee an opportunity to be heard before revoking his license. The Board, however, may properly in certain cases suspend a license without any hearing; for instance, by section 26 the Board is given authority, when death results from an automobile accident, to forthwith suspend the license of the operator of the car, but the license cannot be revoked until after an investigation is made or a hearing is held by the Board. Throughout the statute a distinction is made between the right of suspension and of revocation. The hearing provided by the statute is judicial in its nature. Section 27. The Board may summon witnesses, administer oaths, order the production of books and documents, and take testimony of witnesses who are entitled to receive fees for attendance and travel. A failure of a witness to appear and testify when summoned is made a misdemeanor. As the hearing is a judicial hearing, it follows that the decision of the Board must be based on legal evidence of sufficient weight to support the specific charges made. By the terms of the act the Board may in its discretion refuse to grant a license to any applicant whom for any reasons it considers an improper person. A broad discretion is thus given to the Board which of course must be exercised in a manner reasonable, and not arbitrary. But the power to revoke a license after a hearing is more restricted. The words of the act "for any cause the Board may deem sufficient" must be construed in the light of the other parts of the act. The provision for notice and hearing restricts the power of the Board to act only on the charges made. The Board revoked the license on the ground that be licensed. The only support for this find- more difficult. It is conceded that, if the ing is that the Board found him guilty of a automobile is used in the commission of single offense of receiving stolen goods. In crime, the license of the operator may propour opinion the evidence is not sufficient to erly be revoked. But we do not think it was support this finding. As the proceeding in the intention of the Legislature to compel this case is civil in its nature, even though the Board to refrain from action until the the charge is the commission of a crime, the licensee had actually made use of his autooffense may be established by the preponder- | mobile in the commission of crime. By ance of the evidence. Nelson v. Pierce, 18 section 13, c. 345, Gen. Laws, it is provided R. I. 539, 28 Atl. 806. And it is not necessary to prove the fact beyond a reasonable doubt as in a criminal proceeding. that the receiver of stolen goods shall be deemed guilty of larceny; in other words, he is considered a thief and is punished as [4] In weighing the testimony we have such. We think that a thief should not be taken into consideration the fact that the permitted to operate an automobile; for as members of the Board are usually laymen long as his character remains unchanged and not lawyers. Although in the circum- the danger of his making unlawful use of the stances it is perhaps too much to expect that automobile is such that the privilege should the established rules of legal procedure be denied to him. By the act a wide discreshould be followed with the exactness re- tion is given to the Board, both in the quired of a court of law, yet it is only fair to granting and the revocation of licenses. But the accused that there should be a substan- the exercise of the discretion must be reason. tial compliance with the fundamental rules able and is subject to review by the courts. of legal proceedings. The bulk of the tes- Proof of the commission of any crime, regardtimony in this case was mere hearsay tes- less of its nature, however, is not in every timony, which if believed by the Board, was case sufficient to disqualify a person from highly prejudicial to Glass. As this testi- holding a driver's license. Many violations mony was introduced by the Board it un- of law are made crimes regardless of the doubtedly was relied upon by them in reach-intent of the wrongdoer. To refuse to grant ing a decision, Although there was some or to revoke a license because of the comother evidence, yet where, as in this case, improper and prejudicial testimony is found in the record, it must clearly appear that after excluding such testimony there is sufficient legal testimony to satisfy the requirement of proof by a fair preponderance of testimony. [5] The trial justice held that the Board had power to revoke or to refuse to grant a license only in cases where the right of the public to use the highway in safety was involved; that, as the licensee in this case was not accused of any offense which was accomplished by the use of the automobile or which was a result of such use, the action of the Board was unwarranted by the statute. We do not think that the power of the Board is thus limited. The intent of the act is to secure the safety of the public in the use of the public highways, and also, we think, to protect the public by preventing the use of the automobile for purposes and in ways that are injurious to the community. The use of the automobile to-day by the criminal class is a menace to the community. By its use the commission of crime is made easier and the apprehension of the criminal mission of such an offense, we think, would be unreasonable and unwarranted. When, however, the offense is of such a nature, or committed in such a manner, as to show a deliberate disregard of the criminal law, even although the crime is not directly connected with the operation of an automobile, it may properly be held that the wrongdoer is not entitled to hold a license. Without attempting in advance to establish a rule which will govern all possible cases, we think the Board is warranted in revoking or refusing to grant a license whenever in good faith and in the exercise of a reasonable discretion they find that the probable use of the automobile by the licensee would be a detriment to the public safety, welfare or morals. Our conclusion is that, if proper proof of the offense of receiving stolen goods is made, the Board in its discretion may revoke the license of Glass. The proof is insufficient in this case. The appeal of the respondent is dismissed, the decree of the superior court is affirmed, and the cause is remanded to the superior court for further proceedings. (120 Me. 439) (115 A.) RUNDLETT CO. v. MORRISON, (Supreme Judicial Court of Maine. Nov. 7, 1921.) 1. Master and servant 79 Overpayments for hauling coal held recoverable. Where defendant, engaged in hauling coal screenings for plaintiff at a fixed price per ton, be paying the seller therefor, represented that the price had gone up, and was paid accordingly, when in fact there had been no advance, held, in an action to recover the overpayment, that the evidence did not sustain a verdict for defendant on his theory that he was entitled to retain the money as a retail dealer selling to plaintiff. 2. Payment 86-Plaintiff held not to have notice precluding maintenance of action for recovery of overpayments. Where defendant, engaged in hauling coal screenings for plaintiff at a fixed price per ton, he making payment to the seller, erroneously represented that the price had advanced and charged accordingly, held, in an action to recover overpayments, that the fact that bills were sent daily by the seller to plaintiff, showing the price of the coal, did not preclude recovery; it not appearing that plaintiff's officials dealing with defendant had notice thereof. 3. Parties 76(4)-Plea of general issue admits plaintiff's capacity to sue. A plea of the general issue admits the capacity of plaintiff to sue. 4. Abatement and revival 44-Receivership does not abate action by corporation. An action by a corporation is not abated by the appointment of a receiver, but may be continued for the benefit of the latter, and his name should be substituted by order on summary application, in view of Rev. St. c. 51, § 84. coal screenings purchased of the Lehigh Coal & Navigation Company, which had a The place of business on the same wharf. plaintiff had another place of business on Commercial wharf, where its treasurer's office was located. The following facts are not disputed: In the fall of 1919 the defendant made a contract with the plaintiff to haul screenings from the Lehigh sheds for $1 per ton. The screenings were sold to the plaintiff for $2 per ton. Every Saturday morning the defendant presented to one Black, plaintiff's cashier, the weigh slips of screenings hauled during the week and collected $3 per ton; $2 per ton he paid to the Lehigh Company and received a receipted bill, which, so far as the case shows, he kept. This arrangement was made between the plaintiff and the superintendent of the Lehigh Company. The screenings were sold to the plaintiff, as shown by the weigh slips; the price did not appear thereon. This course of dealing continued until some time in June, 1920; the defendant then be gan to collect $4.50 per ton, paying the Le high $2 as before, and retaining $2.50 for hauling. As to what took place at this time in June the witnesses differ. One Rackleff, the superintendent of the cold storage plant, testifies: "Mr. Morrison told me that the Lehigh was going to charge $3.50 for the coal and he would have to get $4.50-the price would be $3.50 for the coal and $1 a ton for hauling, which would make it $4.50." He testifies further that he knew nothing to the contrary until in the latter part of On Motion from Superior Court, Cumber-October he received a bill from the Lehigh land County, at Law. Ver Action by the Rundlett Company against Marriner S. Morrison. Verdict for defendant, and plaintiff moves for new trial. dict set aside, and new trial granted. Argued before CORNISH, C. J., SPEAR, HANSON, DUNN, MORRILL, DEASY, JJ. and Bradley, Linnell & Jones, of Portland, for plaintiff. Company for a small amount of screenings billed at $2 per ton. Mr. Black, the cashier of the plaintiff tes tifies: "Some time in June he (Morrison) came over with his slips same as he usually does to be paid, and I started to figure them up, and he says, 'You will have to add on $1.50 more, because I have got to pay the Lehigh people $1.50 more.' I says, 'Does Mr. Rackleff know that?' He says, 'Yes.' I called Mr. Rackleff Jacob H. Berman, of Portland, for defend-up to verify it, and he says, 'It is all right.' ant. MORRILL, J. This is an action to recover $350.70, which the plaintiff claims was an overpayment for hauling coal screenings, obtained through the misrepresentation of defendant. The jury returned a verdict for defendant, which the plaintiff moves to set aside for the usual reasons. The motion must be sustained. The plaintiff operated a cold storage plant on Union wharf, Portland, where it used "Q. You paid from then on that basis? A. Yes." Mr. Peightel, to whom the defendant applied for the job of hauling the screenings, testifies that some time in the beginning of the summer the defendant said that the Le high Company was going up on the screenings. The defendant denies these statements in this way: He was asked by his counsel: "Q. Did you at any time tell any one the reason you went up to $4.50 a ton was because |