(115 A.) driving his car as a man of ordinary care and prudence would have done in the like circumstances. Therefore, as was said in the beginning, the thing itself speaks, and we are unable to find any adequate evidence of direct negligence on the part of the defendant up to the time the plaintiff car appeared in front of him in the streets. [6] Was he guilty of subsequent negligence? Accepting the plaintiff's version of where the collision occurred, it is evidence that the defendant, when he saw the imminence of a collision, turned his car to the right into the Promenade, but Wright, the driver of the plaintiff's car, said: "Q. No doubt about that? "A. Not a bit." If this language is given its ordinary meaning, it is foolishly absurd. That the defendant should chase him into the Promenade or anywhere else, for the purpose of running into him, is preposterous. On the other hand, it is apparent from the evidence that, when the emergency of the plaintiff's car, directly across his path, confronted French, he immediately turned into the Promenade with the hope of avoiding the collision that appeared inevitable if he kept on; but, as both proceeded up the Promenade, he could not turn his car sharply enough to the right to avoid the accident. oyster leases, under Gen. Laws 1909, c. 203, § 26, properly proceeded in assumpsit. 2. Appeal and error 183-Objections to form of action must be raised in trial court. By pleading to an action in assumpsit without objection to its form, and by proceeding with the trial without objecting thereto at any stage of the proceedings, defendants are precluded from raising in a reviewing court the objection that assumpsit was not the proper form of action. 3. States 191 (2)-Whether action is against state not decided by reference simply to parties of record. Whether an action against shellfish commissioners is one against the state is not to be decided by reference simply to the parties of record, but on consideration of the essential nature of the suit and the effect of the judgment therein. 4. Appeal and error 254-Objection to ruling on demurrer must be taken in lower court. Special pleas, in action against shellfish commissioners, that defendants were agents of state and that money sued for was owing to the state, to which a demurrer was sustained, the state, and no exception taken, must be concourt holding that action was not one against sidered as out of the case in the reviewing court. 5. Fish 7(2) -Doctrine of undisclosed principal not applicable as to lessee of oyster bed. Neither the state nor shellfish commissioners had the right to hold one liable as undisclosed principal for rentals under an oyster lease; there being no written assignment made by named lessee assented to by the commissioners, and the doctrine of undisclosed principal not being applicable, whether or not the leases were under seal. 6. Fish 7 (2)-Oyster leases not to be assigned without permission. [7] It is well-settled law that in an emergency a person is not held to that same de gree of care as he would be required to observe under normal conditions. Bragdon v. Kellogg, 118 Me. 42, 105 Atl. 433, 6 A. L. R. 669. An emergency requires quick judgment and instant action, or the inevitable has takes en place. We are of the opinion that French was within the rules of due care under the circumstances. He was therefore guilty of neither original nor subsequent negligence. A new trial should be granted. Motion sustained. (44 R. I. 69) GLADDING v. ATCHISON et al. (No. 5502.) (Supreme Court of Rhode Island. Dec. 7, 1921.) 1. Fish-Assumpsit proper action to recover proceeds from sale of oyster leases. One suing shellfish commissioners, individually, to recover surplus proceeds from sale of Under Gen. Laws 1909, c. 203, oyster leascannot be assigned or sublet without the consent of the shellfish commissioners; it being the purpose of the act to prevent any one person or firm from securing a monopoly. 7. Fish 7 (2)-Right of shellfish commissioners to sue for oyster lease rentals not exclusive. The authority of the shellfish commissioners to sue in the name of the state for oyster lease rentals, under Gen. Laws 1909, c. 203, § 26, is permissive, but not exclusive, and the state is not restricted to this one action by the commissioners. 8. Fish 11-Shellfish commissioners personally responsible for surplus on sale of oyster lease. The duty of the shellfish commissioners under Gen. Laws 1909, c. 203, § 26, where a surplus of proceeds remains after sale of an oyster lease, is to pay over such surplus to the lessee, and they are individually liable to the lessee therefor, even if they have paid it over to the state treasurer. 9. States 191(2)—Action against fish commissioners held not one against state. Action by personal representative of lessee of oyster beds against shellfish commissioners, individually, to recover surplus proceeds from sale of leases, under Gen. Laws 1909, c. 203, § 26, is not an action against the state, though the money has been turned over to the state; the commissioners being personally responsible. 10. Set-off and counterclaim 46(1)—Shell fish commissioners cannot set off claims of state against claims of lessee under oyster lease. In an action against shellfish commissioners, individually, to recover surplus proceeds from sale of certain oyster leases, defendants cannot set off claims of the state for rentals due on other leases, under Gen. Laws 1909, c. 288, § 11. Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. money before action was begun had been paid over to the general treasurer of the state. Plaintiff demurred to the special pleas and the demurrers were sustained. It was held that the action was not one against the state, and that plaintiff was entitled to sue the defendants to recover for their failure to pay over to him the surplus proceeds as required by statute. No exception to this decision was taken by defendants. On motion made defendants were then permitted to file a plea in set-off, in which they alleged that plaintiff was indebted to defendants in their cathe state, acting for and in behalf of said pacity as commissioners of shell fisheries of state, in the sum of $4,796.88, by book account, due and owing for rental under certain leases of oyster grounds, for interest and certain other charges and expenses incident to the sale of said leases, as follows: "Account A on leases Nos. 594, 586, 687 issued to Ardelia C. Dewing $639.44." "Account B on leases Nos. 883, 884, 939, 940, 942 not under seal, issued in the name of George D. Gladding, the said George D. Gladding being then and there, the agent for an undisclosed principal, namely, the agent of Ardelia C. Dewing." Action by George D. Gladding, executor of the estate of Ardelia C. Dewing, as trustee, for the use of Brayton A. Round and others, Then follows an itemized statement of trustees in bankruptcy of the M. Dewing rentals due on said leases from 1913 to 1916, Company, against Edward Atchison and oth-inclusive, with interest and other charges; ers. Decision for plaintiff, and defendants bring exceptions. Exceptions overruled, and case remitted, with directions. Curran & Hart, of Providence, for plaintiff. Antonio A. Capotosto, Asst. Atty. Gen., for the State. STEARNS, J. This is an action in assumpsit with the common counts brought by plaintiff, the executor of the estate of Ardelia C. Dewing, as trustee, for the use of Brayton A. Round et al., trustees in bankruptcy of the M. Dewing Company, a Connecticut corporation, to recover the surplus proceeds from the sale of certain oyster leases owned by Ardelia C. Dewing. The sale was made by defendants under the provisions of section 26, c. 203, Gen. Laws, and the proceeds thereof were received by the defendants, who at the time were the shellfish commissioners of the state of Rhode Island. The action was brought against the defendants as individuals. In addition to the general issue defendants filed several special pleas alleging, among other claims, that as such commissioners they were the agents of the state; that the money sued for was owing and belonged to the state and was received by defendants in their capacity as agents of the state acting in the name of and under authority of the state; that all of said the total being $4,796.88, which defendant averred was due and owing from plaintiff to defendants, and which amount defendants claimed by way of set-off. Jury trial having been waived, the case was heard by the presiding justice of the superior court, who disallowed the claim in set-off and gave a decision for the plaintiff for $6,219.65, which is agreed to be the amount due plaintiff unless the set-off claimed should be allowed. [1, 2] The case is in this court on defendants' bill of exceptions, whereby it is alleged that the decision of the superior court is erroneous and contrary to the evidence. There is no allegation in particular of any error in the proceedings. The sole question is in regard to the right of defendants to the benefit of the set-off as claimed. At the hearing in this court defendants for the first time made the claim that the form of action, assumpsit, was wrong. This objection, even if it were valid, which we do not consider it to be, is not properly before this court. Defendants have never raised this question in the trial court. By pleading to the action without objection to its form, and by proceeding with the trial without objecting thereto at any stage of the proceedings, defendants are now precluded from raising this objection. Another claim is that, in effect, the suit is against the state, and the courts are, as a consequence, without jurisdiction in the mat (115 A.) ter. Although this question has already been these leases the sum of $4,157.44. Long prior decided adversely to defendants' claim, and to 1916 the commissioners had terminated the without objection taken in the lower court, three leases of Mrs. Dewing of the years 1905 yet, as perhaps it is involved to a certain and 1906, and there was due on these leases extent in the decision of the claim of set-off, for rent, interest, etc., $639.44. These leases we will consider it briefly. were not included in the sale made in 1916. The two last-mentioned claims, namely, the Gladding claim and the Dewing claim for $639 44, constitute the basis of defendants' set-off. Chapter 203, Gen. Laws, of "Private and Several Oyster Fisheries," provides for the election by the General Assembly of five commissioners of shell fisheries, who are empowered to lease, in the name of the state, "to any suitable person being an inhabitant of this state," certain designated lands as private oyster grounds, but not more than one acre at a time in one lot or parcel to one person or firm. By section 25 the commissioners are required to see that the terms of the leases are complied with, and, on failure of the lessee to pay rent punctually or on breach of the lease, the commissioners are required to enter on the leased land and terminate the lease. They may in the name of the state (section 26) institute legal proceedings for the collection of rents, take possession of and sell at public auction any lot leased with the oysters thereon, and receive the proceeds of such sale, and they are then directed "from said proceeds to retain all sums due and owing the state for rent as aforesaid, together with all expenses incident to such sale, rendering and paying the surplus of said proceeds of sale, if any there be over and above the amounts so to be retained as aforesaid, to said lessee, his heirs, executors, administrators, or assigns." There is practically no dispute in regard to the facts. Prior to 1914 Ardelia C. Dewing was engaged in the oyster business in this state. In addition to other leases from the state, Mrs. Dewing held twelve leases bearing date at different times from January 5, 1907, to January 27, 1912, each for ten years, which are the particular leases upon which plaintiff's claim is based; she also held three other leases, one dated May 22, 1905, and two dated January 29, 1906. The plaintiff, Gladding, who was the manager of Mrs. Dewing's business, held six leases of oyster lands dated at different times from May 7 to September 27, 1907. In 1913 the M. Dewing Company acquired the oyster business and property used therein belonging to plaintiff and Mrs. Dewing. In 1914 this company was petitioned into bankruptcy. In 1915 Mrs. Dewing died and her estate was declared to be insolvent. In 1916 the commissioners of shell fisheries took possession of the twelve leases of Mrs. Dewing for nonpayment of rent due thereon, and sold the same with the oysters on the lots at public auction for $12,100. The commissioners also sold separately the six leases belonging to Gladding for $37. At the time of this sale there was due to the 41 13-10] The plaintiff, as executor, acting under authority of the probate court, assigned to the trustees in bankruptcy of the M. Dewing Company all of the interest of the estate of Ardelia C. Dewing to the proceeds of the sale of the twelve leases, and brings this suit for the benefit of the assignees. Is this a suit against the state? This question is to be decided, not by reference simply to the parties of record, but upon consideration of the essential nature of the suit and the effect of the judgment therein. In the Matter of the State of New York, 256 U. S. Sup. Ct. 588, 65 L. Ed. -. The special pleas and the facts alleged therein are now out of the case. Wilson v. N. Y., N. H. & H. R. Co., 18 R. I. 598, 29 Atl. 300; Neri v. R. I. Co., 42 R. I. 229, 107 Atl. 84; Ilczyszyn v. Mostecki, 43 R. I. 523, 112 Atl. 785. There is now no plea or any formal suggestion on the record that this suit is one against the state, nor is there any proof that the money sued for is in the possession of the state under claim or color of title. The leases contain covenants by the state, the lessor, for quiet pos session, and by the lessee to pay a fixed that lessee will not underlet or assign the amount annually to the state treasurer, and premises to any person without the assent in It is not writing of the commissioners. claimed that there was any written assignment made by Gladding and assented to by the commissioners. Whatever the relations may have been between plaintiff, Mrs. Dewing, and the M. Dewing Company, the relation of the state with plaintiff remained unchanged, namely, that of lessor and lessee. The doctrine of undisclosed principal is not applicable, and it is immaterial whether the leases were under seal or not. The Dewing Company, being a corporation, is not permitted by the statute to take a lease from the state. If the state can hold Mrs. Dewing for the rents as an undisclosed principal, she would be entitled, if the leases were not under seal, as against the state to hold the leases made to her alleged agent, Gladding. Battey v. Lunt & Co., 30 R. I. 1, 73 Atl. 353, 136 Am. St. Rep. 926. The result would be to make the statutory provisions against subletting and assignment inoperative and of no effect. The purpose of the statute is clear. By limiting the persons who are eligible to receive leases to individuals who are in course in an increased volume upon his neigh- The fact that surface water collected in an increased volume over his own land and by the natural grade of the land upon the land of his does not relieve the landowner who artificially neighbor, to the neighbor's substantial injury, collected the water from liability. 3. Waters and water courses 121-Charge on liability of landowner for rainwater collected in leaders held correct. A charge that, if the gutters and leaders of defendant's house in no way contributed to the change of the natural flow of the surface ble for any damage caused on plaintiff's lower water on his premises, defendant was not lialand thereby, but that, if they contributed to the artificial collection and distribution of the surface water which caused damage to the plaintiff, the defendant would be liable, was correct. 4. Waters and water courses 126(3) — Charge as to diffusion of surface water before the escape to adjoining premises held inaccurate. lease to one lot, it is apparently the intent of the act to enable the commissioners to prevent any one person or firm from securing a monopoly of the oyster lands and to confine the benefits and obligations of the lease to the lessee named or his duly recognized assignee. The debt of Gladding was a debt to the state and not to the commissioners. The authority of the commissioners to sue therefor in the name of the state is permis-artificial volume by a landowner passes in an sive but not exclusive, as the state is not restricted to this one action by the commissioners. The duties of the commissioners under section 26, where a surplus of proceeds remains after possession taken and public sale, are clearly defined by statute and require no exercise of discretion. They are to pay over the surplus arising from the sale to the lessee. This is the mandate of the state, and the lessee has thereby a valid claim given to him by the state against the individuals who have such surplus in their possession. If the commissioners pay over this surplus to the state treasurer, they do this of their own wrong and contrary to law. They cannot claim exemption from suit by the lessee on the ground that by their wrongful act the state has come into possession of money which belongs to the lessee. A judgment in this case would run against the defendants, individually, and the state, not being a party, is not bound by it. Tindal v. Wesley, 167 U. S. 204, 17 Sup. Ct. 770, 42 L. Ed. 137. The mere fact that the state may have possession of the property does not in itself determine the question whether the state is the real defendant, nor does it preclude an inquiry by the courts into the lawfulness of that possession or the right of the state to retain it. U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171; Phila. Co. v. Stimson, 223 U. S. 605, 32 Sup. Ct. 340, 56 L. Ed. 570. The claims in set-off are claims of the state and not of the commissioners. As they are not claims which belong to defendants in their own right for which they might maintain a suit in their own names (section 11, c. 288, Gen.' Laws), they are not properly subjects of set-off in this suit. Defendants' exceptions are overruled, and the case is remitted to the superior court, with direction to enter judgment on the deci sion. (96 Conn. 686) MELIN v. RICHMAN et al. (Supreme Court of Errors of Connecticut. Nov. 30, 1921.) 1. Waters and water courses 119(2)-Surface waters cannot be discharged on adjoining owner's land in artificial volume. A landowner cannot collect surface water in an artificial volume and turn it from its natural lected must be reduced to its original volume landowner must diffuse surface water collected Appeal from Court of Common Pleas, New Haven County; John R. Booth, Judge. Action by Caroline M. Melin against Dora Richman and another to restrain defendants from collecting rainwater and other waters upon the premises and causing it to flow upon the adjoining land of plaintiff and for damages. Judgment for plaintiff after verdict by the jury, and defendants appeal. No error. Action to restrain the defendants from collecting rainwater and other water upon their premises and causing it to flow upon the adjoining land of the plaintiff and for (115 A.) damages, brought to the court of common from its natural course in an increased volpleas for New Haven county and tried to ume upon his neighbor's land to his substanthe jury. Verdict and judgment for the tial injury. Adams v. Walker, 34 Conn. 466, plaintiff, and appeal by the defendants for 91 Am. Dec. 742; Stein v. Coleman, 73 Conn. alleged errors in the charge to the jury. 528, 48 Atl. 206; Shea v. Gavitt, 89 Conn. 359, 94 Atl. 360, L. R. A. 1916A, 689. Charles Cohen, of New Haven, for appellants. John J. Sullivan, of New Haven, for appel- lected than would have naturally flowed upon lee. CURTIS, J. The jury found that the defendant Dora Richman owned the premises complained of, and hence the defendant Isaac Richman may be disregarded. The complaint contains three counts; the first count relates to the alleged artificial collection of rainwater by gutters and leaders upon the roof of a house of the defendant and the discharge of it in great and injurious quantities upon the adjoining land of the plaintiff; the remaining counts relate to water otherwise collected upon the defendant's land and discharged upon the adjoining land of the plaintiff. This appeal relates solely to alleged errors in the charge, dealing with the duty of the defendant in regard to rainwater collected upon the roof of her house. There was no controversy on the trial that the plaintiff and defendant owned and occupied adjoining premises; that the defendant maintained a house on her premises, the easterly side of which was a few feet from the division line between the premises; that the defendant maintained a cement walk along the easterly side of her house, running to within a few inches of the division line, with a pitch of 11⁄2 inches toward the plaintiff's land, so that water falling upon the cement walk from the leaders of the defendant's house or otherwise, flows, in whole or in part, across the walk upon the plaintiff's land. From the finding it appears that the jury could have found that the rainwater artifici "This is true, although no more water is colthe property in a diffused condition, for it is evident that, while a given piece of land may receive a large amount of surface water without injury thereto, when it gently flows thereon from natural causes, yet when collected and discharged in considerable volume at a given point it may become very destructive and injurious." 27 R. C. L. § 79. The first and second reasons of appeal relate to the refusal of the trial court to charge the jury upon the defendant's request, as follows: (1) "The defendant has the legal right to maintain a pitched roof and also an ordinary leader or conductor for the purpose of conducting rainwater from said roof, and if the leader or conductor falls upon the defendants' water coming from said roof or from said own land, said water becomes surface water, and the defendants are not liable if it falls upon the land of the plaintiff, or if it percolates through the ground and into the plaintiff's property." (2) "If you find that the land of the plaintiff was at times lower than that of the defendant, so that rainwater falling upon the defendant's land would naturally flow down upon the plaintiff's land, and if you find that the concrete walk on the defendants' land followed the grade and contour of the land, you will then not hold the defendant liable because water flowed from the defendants' land to the plaintiff's land for the reason that water would act in this way, even if there was no sidewalk laid, because of the natural downward grade of the land." [2] The court correctly refused the first request because the effect of such instruction would be to inform the jury that if rainwater is collected in gutters and leaders from the roof of a house, and the leaders ally collected in the gutters aand leaders of the defendant's house poured directly upon the cement walk and flowed directly upon the plaintiff's land in increased and injurious quantities; that the plaintiff's land was at a lower level than that, of the defendant; that pour it upon the land of the house owner, and it then flows directly in an increased there was a perceptible downward grade from the defendant's land to the plaintiff's and injurious quantity upon the adjoining land, and the water flowing from the defend- land, the house owner, so collecting the waant's land would flow upon the plaintiff's ter, would not be liable for injury so caused land from natural causes because of the to a neighbor's land. downward grade of the land; and that the sidewalk was constructed and laid in accordance with the natural contour of the land and was not graded downward artificially. The fact that surface water collected in an artificial volume by a landowner passes in an increased volume over his own land and by the natural grade of the land upon the land of his neighbor, to his neighbor's substantial injury, does not relieve from liability the landowner who artificially collected the water. 40 Cyc. 651. For substantially the [1] A landowner cannot collect surface same reason the court properly refused to The general principles of law relating to such a situation, gathered from our cases, may be stated as follows: |