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Williams and McCabe to the plaintiff, was addressed to the plaintiff, and received by the plaintiff, the jury will be warranted, as a matter of law, in finding that the plaintiff received due notice of the lease in question, whether he read the letter or not, or whether he caused the same to be read
The court refused the request, and charged that the lease was of no validity as against the plaintiff unless he had actual knowledge of it. The defendant, having duly excepted to this ruling, after verdict in favor of the plaintiff, which the superior court refused to set aside on motion for a new trial, brings his bill of exceptions to this court on the grounds that the ruling was erroneous and that the verdict was against the evidence.
We think the ruling of the court was correct. “Notice" is equivalent to "information," "intelligence," or "knowl.
““ edge”': Wile v. Southbury, 43 Conn. 53. Where the law prescribes written notice as a method of giving information, no doubt the receipt of a letter containing the information would be conclusive proof of knowledge for the purposes of the case. Whether, as a matter of fact, the recipient had read or could read the letter would make no difference, because the sender had fully complied with the direction of the law. But there is no indisputable presumption that a letter, which the law does 321 not require to be sent, is read by the receiver to whom it is delivered. The question is one of fact, to be determined on all the evidence relating to it. Brayton, J., says, in Harris v. Arnold, 1 R. I. 125: “No man would be presumed to have that knowledge which we might be able to prove that he had not, unless as a consequence of the neglect of some known duty."
The law prescribes the recording of a conveyance of title to real estate as the method of giving legal notice of the conveyance to all the world.
If the claimant under such a conveyance chooses to neglect this method and attempts to give actual knowledge of his title to another person, he assumed the task of actually bringing this information to the apprehension of the person to be affected by it. The delivery of the notice in writing to a blind man or to one unable to read is not enough. The delivery of a letter may be ground of inference that the information was communicated, but this inference may be rebutted by contrary evidence. The question was thus properly left to the jury whether, if the letter were received by the plaintiff, he acquired actual knowledge of its contents. The weight of the evidence is not clearly against the verdict.
The defendant's exceptions are overruled, and the cause remanded to the superior court for judgment on the verdict.
Actual Notice is that which consists in express information of a fact: Prouty v. Devine, 118 Cal. 258, 50 Pac. 380; Cleveland Woolen Mills Co. v. Sibert, 81 Ala. 140, 1 South. 773. It is said to be equivalent to knowledge: Strahorn-Hutton-Evans Commission v. Flover, 7 Okl. 499, 54 Pac. 710. Some authorities declare, however, that the terms are not synonymous: Southern Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 557; Clarke v. Ingram, 107 Ga. 565, 33 S. E. 802.
BENNETT v. RANDALL, .
[28 R. I. 360, 67 Atl. 525.] CERTIORARI.—The Action of a Probate Court may be reviewed on certiorari. (p. 745.)
CERTIORARI-Discretion in Issuing.–The issuance of the writ of certiorari is not a matter of strict right, but is discretionary with the court. (p. 745.)
CERTIORARI-Harmless or Formal Errors.-The writ of certiorari will not be granted to correct merely harmless, technical or formal errors, which are not shown to have resulted prejudicially or to have caused substantial injustice. (pp. 745, 746.)
CERTIORARI-Examination on the Return of Citation.-It is a common practice to examine the case upon return of the citation to determine before issuing a writ of certiorari whether it is necessary to prevent substantial wrong. (p. 746.)
CERTIORARI–Irregularity in Appointing Guardian.-Cer. tiorari will not issue to review the proceedings of a probate court appointing a general guardian for an insane person, on the ground that there was no prior appointment of a guardian ad litem, where the guardianship has been an advantage rather than a detriment to the incompetent. (p. 747.)
Elmer J. Rathbun and John P. Beagan, for the petitioner. Gardner, Pirce & Thornley, for the respondent.
360 DOUGLAS, C. J. This is a petition for a writ of certiorari to the probate court of Foster, alleging that a decree of that court, entered on the fourth day of August, 1906, appointing Job Randall of said Foster guardian of the person and estate of the petitioner, a person of full age, residing in said Foster, was erroneous, and ought to be quashed for want of jurisdiction in said probate court to enter the decree.
The petition states that at the time of the filing in the 361 probate court of the petition upon which said decree was entered, the present petitioner, a resident of the town of Foster, was insane, and had been so adjudged by the district court of the eighth judicial district, and was an inmate of the State Hospital for the Insane at Howard, Rhode Island; that since that time, to wit, March 20, 1907, upon examination and inspection by the district court within whose jurisdiction he was committed to said State Hospital for the Insane, he has been declared to be restored to soundness of mind, and to be no longer under the necessity of restraint.
The error assigned by the petitioner as vitiating the proceedings of the probate court is that there was no compliance with the requirement of section 772 of the court and practice act that “whenever application shall be made to a probate court for the appointment of a guardian of any person confined in an asylum for the insane,” certain notices shall be given, “and then the court, having first appointed a guardian ad litem for such insane person, may proceed to act upon the application."
In Wheeler v. Court of Probate of Westerly, 21 R. I. 49, 41 Atl. 574, a query was suggested whether certiorari is a proper form of proceeding to review the action of a probate court. The doubt was founded upon the opinion of Shaw, C. J., in Peters v. Peters, 8 Cush. 529, decided in 1851, where it was held that in Massachusetts the courts of probate still exercised the jurisdiction in the settlements of estates which was originally possessed by the English ecclesiastical courts, and following the analogy of the English practice, the supreme judicial court of common law could not extend its control by certiorari over them. Another consideration upon which Chief Justice Shaw relied was "that if the probate court, even where it has jurisdiction over the general subject, exceeds its powers, or acts in a manner prohibited by law, its decrees are not regarded as merely irregular, and voidable, but yet good and valid, unless reversed, like other erroneous or irregular judicial proceedings; but they are held entirely and absolutely void and of no effect, and may be set aside in any collateral proceeding by plea and proof. This would 302 not be true if they could be drawn in question and vacated by a writ of certiorari.” But in Rhode Island this objection to the employment of certiorari has been removed by statute.
Section 803 of the court and practice act is as follows: "No order or decree of a probate court which may be appealed from, or in any collateral proceeding when the same shall not have been appealed from, shall be deemed to be invalid, or be quashed, for want of proper form, or for want of jurisdiction appearing upon the record, if the probate court had jurisdiction of the subject matter of such order or decree. The superior court having jurisdiction of the parties to a probate appeal may allow amendments to be made in the papers filed in the case, to supply any deficiency or correct errors therein, upon such terms as it may deem proper.'
With respect to the first objection, it seems to ús more conducive to simplicity and efficiency in our judicial system to recognize the status of probate courts as fixed by present statutes rather than by the limitations of their ancestry. As constituted at the present day, they form a well-defined part of our judicial machinery in due subordination to the supervising authority of the supreme court. An appeal lies from the decree of a probate court to the superior court, and thence by bill of exceptions to this court, with substantially the same effect upon the final decision of the case as a claim of jury trial from a district court to the superior court followed by a bill of exceptions to this court in an action at law.
On deliberate consideration of the question, therefore, we see no reason why the objections urged in Chief Justice Shaw's opinion should be considered valid in Rhode Island; and, indeed, the question has been settled by Pratt v. Probate Court of Pawtucket, 22 R. I. 596, 48 Atl. 943, where this court issued a writ of certiorari to a probate court and quashed its decree.
We may then consider the question whether the present is a proper case for the issuance of the writ. It is well settled, in those jurisdictions where special statutes do not regulate the matter, that the issue of the writ is not a matter of strict 363 right, but is discretionary with the court. It must appear not only that the inferior tribunal has committed some error of law, but also that the error has caused substantial harm, and that the petitioner has been guilty of no laches in seeking his remedy. This court has said, in McAloon v. License Commissioners, 22 R. I. 191, 46 Atl. 1017: “The writ will not be granted for the correction of merely harmless, technical or formal errors, which are not shown to have resulted prejudicially, or to have caused substantial injustice to the relator: 4 Ency. of Pl. & Pr. 34, footnote 1. The matter to be determined is substance and not form. If the error is such that it does not affect the substantial justice of the case, but is in the forms of procedure only, the writ will be refused: 2 Spelling on Extraordinary Relief, see. 1897."
To the same effect are Knapp v. Heller, 32 Wis. 467; Ex parte Buckley, 53 Ala. 42; State of Washington v. Lockhart, 18 Wash. 531, 52 Pac. 315; People v. Mayor of New York, 5 Barb. 43. Accordingly, it is a common practice to examine the case upon return of the citation to determine before issuing the writ whether it is necessary to prevent substantial wrong.
It is said in Farmington R. W. P. Co. v. County Commissioners, 112 Mass. 206: “The uniform practice of this court for many years, as shown in numerous reported cases, has been to hear the whole case upon the petition, in order to avoid unnecessary delay and expense to the parties, and to enable the court to deal with the substantial justice of the case untrammeled by merely formal and technical defects in the record”: See, also, Sampson v. Commissioners of Highways, 115 Ill. App. 443; Petition of Landaff, 34 N. H. 163; Town of Royalton v. Fox, 5 Vt. 458; Haven v. County Commissioners, 155 Mass. 467, 29 N. E. 1083; Stone v. Boston, 2 Met. 220.
We think this principle may be held to have special force in reviewing the acts of a probate court in view of the statute (C. & P. Act, 728), which provides that "irregularity, defective notice, or want or improper exercise of authority" affecting the validity of such acts may be supplied or corrected on notice to the parties interested. We should be very reluctant 364 to quash a decree which the probate court is given the power to validate unless the interests of justice should absolutely require it.
It appears to a majority of the court that the case presented by the petitioner is not one which calls for the interposition of this court.
The appointment of a guardian ad litem is directed by the statute; but the petitioner who is now alleged to be sui juris states the fact that at the time the decree was entered he was insane. The court having jurisdiction of the subject matter of the appointment of guardians of insane persons residing in the town of Foster neglected the requirement of the