Volume 1 — Rhode Island Reports

<p>This was. an action on the case, in which the plaintiff declared for mon'ey had and received, and also, that the defendant, at Providence, on the 26th day of October, 1826, by his certain order or check, of that date, by him signed, for value received, requested the cashier of the Eagle Bank in Providence, to pay the plaintiff, or bearer, fifty dollars. And the plaintiff averred, that on the 5th day of March, 1827, he presented said check to said cashier, at said bank, who then and there refused to pay the same, of which the plaintiff then and there, on the same day, gave the defendant notice, whereby the defendant became liable, &c.</p> <p>The jury found, that on the said 26th day of October, the plaintiff and defendant made the following bet, to wit: the plaintiff bet the defendant fifty dollars, that Ashur Robins would be elected a senator to the United States senate, at the ensuing senatorial election, and the defendant bet that the said Ashur Robins would not be so elected. They further found, that the plaintiff and defendant thereupon both drew their respective checks for the amount of fifty dollars each check, and delivered both of said checks to a stakeholder, to be delivered to the party who might win the bet; that the check mentioned in- the plaintiff’s declaration was the same check which was signed by the defendant for the consideration aforesaid, and was delivered to the plaintiff by the said stakeholder after the termination of the said senatorial election, the said Robins having been elected. The jury also found, that at the time of making the said bet, neither the plaintiff nor the defendant were members of the legislature of the state, by whom the election was made, but that they were both inhabitants and citizens thereof. The jury further found, that the plaintiff won said bet; and that if, upon the above facts, the court were of opinion, that the law was with the plaintiff, they found for the plaintiff fifty-four dollars and sixty-two cents, and costs; but if the court, upon the above facts, were of opinion, that the law' is against the plaintiff, they then found for the defendant his costs; which said special verdict was accepted by the court; and after-wards the question of law raised by said special verdict, came on to be argued before the court, and after the argument, the opinion of the court, that the defendant recover his costs, was delivered by</p>

<p>Notice of non-payment of a note by the maker, not necessary to be given to a surety.</p>

This was an action of trespass and ejectment, and the ease was submitted to the court on the following agreed statement of facts: George Curbs Mann died seized of the estate whereof his father, Moses Mann, died seized, which estate came to said George by purchase in fee and not by descent, and was subject to the right of dower belonging to his mother, the widow of said Moses.

<p>Held, under the plea, “ that the cause of action did not accrue to the plaintiff at any time within six years next before the commencement of the plaintiff’s action,” that the issuing of the writ is the commencement of the action.</p>

This was an action of dower, wherein the plaintiff demanded against the defendant her reasonable dower in a certain farm.

<p>By the terms of the statute relative to the recording of deeds, the lodging of a deed with the town cleric to be recorded, is equivalent to an actual entry of it upon record, and the title is made complete, and the neglect of the town clerk to record it cannot affect the grantee’s rights under the deed.</p> <p>A deed, though absolute upon the face of it, if it appear to have been given, and to have been treated by the grantee as given, as collateral security, is a mortgage.</p> <p>If a deed has two objects, 1st, to secure the grantee for a debt, and 2d, to cover the grantor’s property from the suits of other creditors, the first is legal, and the other fraudulent.</p> <p>A mortgagee has a right to assign an equity of redemption, even though another mortgagee, claiming under the same title, be in actual possession of the premises.</p> <p>The following principle, laid down in Starkie on Evidence, recognized and applied, viz.: “ Where a party is in actual possession and has a right to possession, under a legal title which is not adverse, hut claims the possession under another title which is adverse, the possession will not in law be deemed adverse.”</p>

This was a bill in equity, in which John H. Cross, Eliza'beth Cross, Benadum Frink, William R. Frazier, John E. Weeden, William D. Wells, George D. Cross, and Wilkins Updike and Nathan F. Dixon, both the last named trustees for and in behalf of the creditors of said John H. Cross, represent, that on the 1st day of January, 1836, and long before, he, the said John H. Cross, was a stockholder in the Phenix Bank in Westerly, a bank legally incorporated and established, and now…

This was an auction of dower in a question raised upon the facts as set forth in the following opinion of the court, delivered by Staples, J. This is an action of dower to recover the dower which the plaintiff, Sarah Potter, is entitled to as the widow of Thomas Rodman, in the premises described in the declaration. After the decease of said Rodman, said premises were sold by his administrator for payment of his debts, the widow not joining in .the deed.

Indictment against the town of Richmond for neglecting to repair a certain highway in that town'.

This was a bill in equity, in which the complainant claimed to redeem premises to which he had title, without paying the whole amount of incumbrances. The facts will appear by the following opinion of the court, delivered by Braxton, J.

<p>This case was an appeal from an order of removal of the town of Warwick of a pauper, to the town of Exeter. The facts are set forth in the opinion of the Court, delivered as follows,</p>

<p>Under the act of Rhode Island, of 1748, it is not more certain that the settlement of the wife follows that of the husband, without regard to the place of her birth, than the settlement of a child follows that of the father, without regard to the place of birth.</p>

<p>It may be considered as now conclusively settled, that the record of a court of a sister state, having jurisdiction over the subject-matter, and the parties thereto, and the parties having legal personal notice of the suit, when properly authenticated, is to be received by the courts of every other state, as conclusive evidence between the same parties; and the merits of the judgment cannot be inquired into.</p> <p>But, if at the time of suing out the writ, service of the samp and rendition of the judgment in an action in Connecticut, the defendant was a citizen of, and domiciled and resident in Rhode Island ; and the writ was not served on him, and he had no knowledge of the suit (unless constructively made so by the laws of Connecticut) ; to consider conclusive, in Rhode Island, a judgment obtained under such circumstances, is against the first principles of justice, and it is to be considered null and void.</p>

<p>The action in this case was assumpsit, the plea the statute of limitations, and the replication a new promise. The facts are fully stated in the opinion delivered by</p>

This was an action of assumpsit, to which was pleaded the statute of limitations, and the facts, as stated in the declaration, are given in the opinion of the Court, delivered by

<p>This was an action of trespass, the facts and the pleadings .in which are minutely set forth in the opinion of the Court, delivered by</p>

This was an action on the case for an injury to the plaintiff’s right of common of sea-weed. The declaration contained three counts, which, with the other pleadings, are given in the opinion of the court, which was delivered by in support of the plaintiff’s demurrer to the defendant’s pleas in abatement, relies on 1 Chitty’s Pleadings, tit.

<p>This was a bill in equity, the facts set forth in which, with the charge, and prayer of the complainant, and the separate answers of the respondents, will appear in the following opinion of the court, delivered by</p>

Appeal from a decree of the court of probate of the town of Newport, the facts in which are given in the following opinion of the court, delivered by

<p>This was an action of trespass and ejectment, the facts in which are minutely given in the opinion of the court, on a motion for a new trial, which was delivered as follows, by</p>

<p>Where an execution is returned uncertified, the clerk may issue an alias, but he does it at his own peril.</p> <p>The taking in execution of the body of the debtor is in law a satisfaction of the execution.</p> <p>An officer, charged with the service of an execution, took from the debtor a bond to secure the payment thereof, and the said execution being after-wards delivered to another officer, who committed the debtor and took a bond to procure for said debtor the liberty of the prison yard; held that the commitment was legal and the bond executed without duress.</p>

<p>A local usage cannot be considered a part of a contract, when it contradicts that contract.</p>

<p>The third section of the aet concerning mortgages limits the right to redeem, to three years “ next after the mortgagee or other person claiming under him shall, hy process of law or hy peaceable and open entry; made in the presence of two witnesses, have taken actual possession of such mortgaged estate and continued the same during said term.”_ Where after surrender of possession to the mortgagee, pursuant to the statute, the owner of the equity of redemption made an absolute conveyance of a portion of the mortgaged premises, the Court held that this conveyance was not such a disseizin or interruption of the possession under the sat-ute, as would give a right to redeem after three years from the commencement of the possession.</p> <p>The three years possession under the statute, in order to operate a foreclosure, must be accompanied throughout hy a right on the part of the mortgagor to redeem and to prefer a bill for that purpose.</p> <p>Eight days before the lapse of the three years possession under the statute, the owner of the mortgage agreed with the owner of the equity of redemption, for themselves and all claiming under them, in consideration ' that no bill in equity should be filed to redeem, that the right to- redeem should be continued for one year from the 7th of May, 1838 ; and on his-part, the owner of the equity agreed, that during said year no bill should be filed to redeem, and that on the 7th of May, 1839, the principal and compound interest, on the amount secured by the mortgage, including expenses, &c., should be paid to the owner of the mortgage, or, in default thereof, said right in equity should be foreclosed. Before the year elapsed, a bill to redeem was preferred — held</p> <p>That a contract to forbear to prefer a bill to redeem for a limited time, is valid, though not under seal.</p> <p>That the contract to forbear to prefer a hill to redeem, as stated above, must he restricted to the eight days during which the right to prefer a bill remained.</p> <p>That the stipulation not to prefer a bill to redeem during the year, and at the end of the year to be foreclosed, unless the sums stipulated were paid, was void, or at least, voidable.</p> <p>That the agreement carried the right to redeem, not only over the year, but protracted it indefinitely-</p> <p>If by an agreement to postpone the day of foreclosure, the power or right to redeem be interrupted, the mortgagee will be put to a new entry in order to foreclose.</p> <p>That though the stipulation not to redeem daring the year was void c-r voidable, yet, the other stipulations of the contract were valid, and that the owner of the equity of redemption, in order to entitle him to maintain his hill, should pay the amounts agreed upon in said contract.</p> <p>It is the intent of parties that taints a contract with usury, and not the mere words in which that contract is expressed.</p>

This was an appeal from the decree of the Town Council of North Providence, allowing the accounts of Sarah B. Ruggles, as administratrix upon the estate of her husband. All the facts requisite to an understanding of the case are set forth in the opinion of the Court.

This was a motion for a new trial on an indictment for murder. The indictment was found against Nicholas S. Gordon, as accessary before the fact, and against John and William Gordon as principals. John and William were tried jointly, previous to the trial of Nicholas. The murder was committed upon Amasa Sprague, an opulent manufacturer resident in Cranston.

This was an indictment setting forth., that Joel Fletcher, between the twenty-first day of December, 1845, and the twenty-eighth day of December, 1845, and within said time, at Cumberland in the county of Providence, did sell, in the possession of him the said Joel Fletcher, to wit, in a certain tavern situate in the town of Cumberland, strong liquors, to wit: rum, gin, and brandy, by retail, in a less quantity than ten gallons, without license first had and obtained from…

This was an indictment, charging that the respondent, in the city of Providence, between the first day of June, 1846, and the sixth day of July, 1846, did sell strong liquors in quantities less than ten gallons without license first had and obtained from the Board of Aldermen in Providence, &c., against the form of the statute, &c. After conviction the defendant moved an arrest of judgment, on the ground that there was no offence known to the law set forth in the indictment,…

Assumpsit. The declaration alleges that Cyrus Arnold, Thomas J. Lapham and Daniel Hale, were appointed a committee by the town of Smithfield, to build a stone arch bridge over the Branch river at the Branch village, and that the committee by authority of said appointment did employ the plaintiffs to construct a stone arch bridge at the place mentioned, and proceeds to state the performance of the contract.

<p>The acknowledgment of a deed of a wife’s estate, signed by the husband and wife, was in the following words : “ Then the above named Ansel Churchill (meaning the grantor) personally appearing, acknowledged the above-written instrument to be his voluntary act and deed, and the said Lillis (wife) being examined- separately and apart from her husband also acknowledged the same;before me” — signed by -the justice ; held that the deed passed only the life interest of the husband.</p>

<p>The eighth section of the “ Act regulating Marriage and Divorce,” pro* vides that the Court shall have power upon the application of any mar* ried person to them, in the county in which such person shall reside, and for causes for which by law a divorce may be decreed, or for such other causes as may seem to them to require it, to assign to such persen a sepa* rate maintenance out of the estate or property of the husband of wife in such manner as they may deem best: held—</p> <p>That before the petition for separate maintenance can be rightfully prefer* red, the relation of cohabitancy must have been already broken up ; it must appear that the petitioner is in no fault; that the cause of the separation is the unprovoked wrong of the respondent, and such as to necessitate the separation, and, if it do not equal in enormity, yet that it is like in kind with the offences that are causes of divorce.</p> <p>ñeld, further, that to authorize the decree, there must be property out of which the provision can be made, or at least, means or ability for acquiring property, which can bo well estimated and applied by the Court to that end.</p>

<p>Pound-keepers, under our Statutes relative to impounding, have no authority to confine cattle taken damage feasant, in any other place than the public town pound. Where sheep, taken damage feasant, were delivered to the pound-keeper, and, there being no public pound, were by him confined in his own yard, such confinement was held not to constitute a legal impounding.</p>

<p>Motion for a new trial in an action brought upon the following agreement: “ Memorandum of agreement made this day, the 29th of May, 1847, between John G. Ladd, of Newport, R. I., on the one part, and Robert King, of Westchester, Pa,, on the other part, respectfully sheweth, that the said John G. Ladd agrees to sell to the said Robert King certain lots of land, bounded, to wit : on the South by Redwood street, on the West by Clark & Potter’s land, on the North by the Town Road, and on ‘the East by Cottage street, together with the new cottage now building and to be finished according to agreement, for the sum of three thousand dollars ; and the ■said John G. Ladd agrees to build the out door kitchen, ■and to finish the cottage in a good workmanlike manner on or before the 1st of July next ; the above named sum to be paid when possession is given. It is also understood by both parties, that the garden is to be laid out. This agreement signed by the two parties named therein, this day the twenty-ninth of May, 1847.</p> <p>(Signed,)</p> <p>John G. Ladd,</p> <p>Robert King.</p> <p>Witness,</p> <p>Nicholas Hazsard.</p> <p>After setting forth this agreement, the declaration proceeds : “ and the plaintiff avers that on or about the 1st day of July, A. D. 1847, at said Newport, said cottage not being finished according to the wishes of said defendant, the said defendant, at that time and place and at other times immediately subsequent, in consideration that the plaintiff would put three coats of paint on said cottage,, and would move back the fence and do divers things not specified, agreed with the plaintiff to extend the time for finishing said cottage until the 14th day of July, A. D. 1847, and further avers, that, relying on the said last named agreement, he proceeded to finish said cottage, which was completed according to said agreement on or before the 14th day of July, A. D. 1847, and was then and there, with proper deeds conveying the same and the lots of land in said agreement mentioned, duly tendered to the said defendant, but that the said defendant, not keeping and observing his said contract with the plaintiff, wholly refused to take and- receive said cottage and lots of land and to pay for the same, according to said agreement, whereby, &c.”</p> <p>The Court ruled that parol evidence was inadmissible to extend the time of performance, designated in the written agreement, and on this ground, the plaintiff asked for a new trial.</p>

<p>Courts of Equity have jurisdiction to award partition of estates, whether corporeal or incorporeal.</p> <p>A. B. & C., owners of lands adjoining to, and with the right reserved by will of passing and re-passing over and upon, the lands of D. & E., in order to cart “ sea weed and sand, at any time when they should see fit, and tip it out in a heap, where it should be most convenient and least prejudicial, and cart it off at their leisure,” together with said D. & E., submitted by rule of Court to referees their differences of opinion as to the nature and effect of the above named reservations and privileges, contained in the will, and as to the manner of enjoying the same, with all questions growing out of the intent and meaning of said will, and the referees reported thereon, declaring the legal effect of the reservations in the will and prescribing the manner of collecting, depositing in heaps, and carting across the lands of said D. & E. the above mentioned seaweed and sand, which report was confirmed by the Court. Held, that said report only defined and settled the joint rights of the parties and provided for their enjoyment as joint rights, and did not operate as a partition.</p>

This was an action on the case for the negligence of the defendant’s intestate, as Attorney. The case was submitted to the Court upon the following facts, given in ■evidence. Daniels, the intestate of the defendant, Peck, received, as an Attorney, a certain note from the plaintiff for collection. The note being endorsed in blank, Daniels sued it in the name of Southwick, and attached, on the original writ, the real estate of Mansfield, one of the payors of the note.

This was a bill in equity. The complainant sets forth, that on the 19th of September 1832, he conveyed to Welcome Aldrich and William Wilkinson, a lot of land for a mill site, with the privilege of building and forever maintaining a dam across the river, on the land of the grantor, about thirty rods above said lot, of such height as would flow “ the water as far back as the westerly line of the grantor’s land, adjoining land of Stephen Gross and Aaron Mowry,” together with…

This was an action of assumpsit on a promissory note. The defendant pleaded a discharge under the Bankrupt act. The plaintiff replied a new promise, which was traversed. Evidence was given, that David Daniels, against whose Administrator this action was brought, had declared in presence of Farnum Harris, that he was owing his wife a confidential note aind meant to pay it.

This is an action for libel. The plaintiff grounds his action mainly upon the following expressions, published by the defendant in a printed circular, viz : “ What do you think of a man who, charged with selling liquor without a license, would sit down beside the witness stand, awaiting an acquittal at the hands of a man who he knew was committing downright perjury at his instigation, to shield himself from the deserved penalty of the law.”' And also : “ Besides you are a…

Action on the case. The testimony for the plaintiffs was to the effect, that the defendant, who was a master mason, agreed with the plaintiffs, for a certain sum, to furnish the materials for and perform the mason work upon a mill which the plaintiffs were designing to build ; that the walls of the building were to be faced with brick and backed with sione : and that, in pursuance of this contract, the defendant entered upon the construction of the mill and completed it.

<p>This was abaction of waste against the defendant as-tenant for life of an estate, under the will of Wright C. Steere, for cutting the timber and wood, more than was necessary for fuel and repairs, and hoop-poles, and selling them off the farm, and for changing meadow land into pasture land, for destroying the fixtures, suffering the buildings to go to decay, pulling them down and converting them to her own use, and suffering the pasture to become overgrown with bushes. The plaintiff claims as reversioner under a conveyance from Stephen Young, devisee of the reversion under the will of Wright C. Steere. The will, after giving to the defendant and her husband, since deceased, during their natural lives all the rents and profits of the real estate of the devisor for their support, devises to Stephen Young all the real and personal estate, subject to the payment of debts and funeral expenses, and also to the support of the defendant, in case the rents and profits should be insufficient ; and, in case the said Young should refuse to provide for them at his expense, directs the executor to sell the real estate, or so much thereof as shall be sufficient to support them comfortably during their natural lives. The plaintiff was executor of the will and a near relative of the defendant.</p> <p>There was much contradiction in the proof in regard to the condition of the buildings at the time they came into the defendant’s possession; some of the .witnesses stating them to be in an irreparable state of decay, and others representing them to be old but capable of being preserved in a tenantable condition. The charges in the declaration were proved for the most part, but there was much evidence tending to prove that the acts were done with the permission, either implied or expressed, of the plaintiff.</p>

The declaration was in assumpsit. It appeared in evidence that the defendant, a resident of Bristol and an owner of a plantation in Cuba, employed his brig, the Neptune, to ply between Bristol and Mantanzas, for the purpose of carrying out supplies to his plantation and returning to bring home its produce.

<p>Where the assignee of a mortgage transfers it back to a prior holder, who-is in possession of the mortgaged property, the transfer, though not in writing, is a release of the assignee’s claim to the property.</p> <p>An officer’s return, referred to in the certificate annexed to a deposition, is. made part of the certificate for the purpose for which it was referred: to.</p>

<p>Service of a subpcena upon a special Attorney, with pouter over only a portion of the property affected by the suit, is not a sufficient service to bind the principal.</p>

Scire facias against the defendant as bail of Geo. W. Chesley.

<p>The garnishee in a foreign attachment has the whole of the term next after the service of the attachment to come in and make affidavit.</p>

The plaintiff moved for a continuance on the ground of the absence of a principal witness and for a writ of attachment against the witness. The summons had been served upon the witness about a month since and fees for one day paid to him at that time. The defendant’s counsel inquired, whether, in case of so early a summons and no subsequent payment of fees for attendance, the witness was liable to attachment.

<p>What is meant by plaintiff’s costs %</p>

The writ in this case was served upon Andrew A. Angell, as guardian of Benjamin Knight.

<p>Trespass for taking and carrying away a buggy wagon of the value of two hundred dollars, the property of the plaintiff. The defendant pleaded, that, at the time of the trespass, he was collector of taxes of the town of Smithfield, and justified under his warrant, the defendant having been legally taxed in said Town in the sum of thirty dollars for personal estate, and having neglected and refused to pay said tax, the same having been by said defendant legally demanded of him. Issue was joined upon this fact, and the case having been submitted to the jury, their verdict was returned as follows: “ The jury find: That at the time of the alleged trespass in the plaintiff’s declaration set forth, said defendant was collector of taxes for said Town of Smithfield : that said plaintiff was legally taxed in said Town in the sum of thirty dollars for personal estate ; that the Town Treasurer issued his warrant affixed to a tax bill or list of said taxes, in which said sum of thirty dollars was therein expressed against the name of said plaintiff, by which war-, rant said defendant was commanded to collect said tax, and the same was committed to said defendant for collection ; and said plaintiff having neglected and refused to pay said tax, the same being by said defendant legally demanded of him, said defendant did by virtue of his said authority distrain and remove said wagon, and, after due notification, did sell the same for non-payment of said tax and cost of notification, as he lawfully might, and as is in said defendant’s plea set forth, and not in his own wrong, as by said plaintiff in his replication aln leged.”</p> <p>Thereupon the plaintiff moved for a new trial on the following grounds :</p> <p>1st. There was no proof that the defendant left a copy of the warrant directed to him by the Town Treasurer of Smithfield, commanding him to collect said Tax, with a copy of his doings thereon at the plaintiff’s usual place of abode, with some person there, and the Court instructed the jury that it was unnecessary for the defendant so . to do.</p> <p>2d. The warrant was informal and illegal.</p> <p>3d. It did not appear upon the trial of said cause that the said defendant had taken the oath of his said office in the words and form prescribed in the 22d section of the act entitled “ an act in relation to the election and duties of Town Officers.”</p>

<p>This was a bill iu equity to redeem six mortgages executed by Sessions to Richmond, at different dates, between July 10th, 1844, and December 13th, 1845, and conditioned for the payment of several promissory notes and other amounts due the respondent or stipulated to be paid. After 'reciting these mortgages and stating that a large amount had been paid on the various notes secured thereby and that the respondent claimed a balance of f9,883 95, the bill alleged that the account on which this balance was claimed, contained divers items of usurious interest, direct and indirect, of damages erroneously alleged to have been incurred by reason of the non-payment of the notes aforesaid, and sundry other errors and omissions of proper credits of payments made, &c., amounting to $2,743 01, or upwards. The bill further alleged, that on the 24th day of February, 1847, said Sessions paid the sum of $4,250 to said Richmond, and applied a part thereof, sufficient to pay the same, to the payment of the amount secured on a mortgage executed by him and his wife, of property belonging to his wife, and that he claimed that the said Richmond should cancel and discharge the same, and now in the bill, prayed that this mortgage might be declared discharged. The bill concluded by praying that an account might be taken and the complainant be permitted to redeem, upon the payment of what should thus be found to be due.</p> <p>The answer, after admitting the execution of the mortgages and stating the considerations upon which they were given, proceeded to show the manner in which the balance against Sessions originated, by setting forth several contracts. From these it appeared that on the 13th of December, 1845, Sessions agreed to pay Richmond the sum of $500 monthly, the same to be first applied every month to the payment of the interest and rent due to Richmond, and the surplus to the principal, and Richmond agreed to postpone a sale of the mortgaged premises which he had advertised. This agreement not having been kept, Richmond advertised the mortgaged premises for sale, and on the 28th of August, 1846, it was agreed that the indebtment of Sessions was $13,151 67, on which Sessions agreed to pay, until the first of July following, interest monthly in advance, and also to pay rent monthly in advance for a house belonging to Richmond, which he occupied, and Richmond again agreed to postpone the sale. Upon the basis of this contract, Richmond rendered his accounts monthly, which were admitted by Sessions to be correct, but, not being paid, Richmond again advertised the premises for sale, and in consideration of a postponement of the sale, Sessions agreed that the sum due to Richmond on the 1st of December following, 1848, would be $8,906 54, and agreed to pay the same at that date, or in default of payment, to pay the sum of $500, as stipulated damages. This agreement not having been complied with, Richmond again advertised the premises for sale, and on the 1st of February, 1849, Sessions, together with one Henry Whitman, obtained a postponement of the sale, and it was agreed that Whitman should pay the sum of $500, in cash, on account of Sessions, to Richmond ; that the indebtment of Sessions would on the 1st of June, 1849, amount to $9,883 95, and it was further agreed if that sum should be paid on or before the 16th of February, at 10 o’clock, A. M., (deducting rents and interest after that time included in the above sum,) the $500 should be taken as part payment of the said debt; if the said sum was not paid on or before the 1st of June, 1849, the said payment of $500 should be forfeited as agreed damages ; if said sum was paid in full at any time before the 1st of June, a proportional part of the $500, should be applied in part payment of the said debt, in proportion as such payment should be in anticipation of the 1st of June. Whitman guaranteed the payment of rent for the house occupied by Sessions and that possession thereof should be surrendered on or before April 1st, 1849.</p> <p>These stipulations were not complied with, and, on the 14th of June, 1849, this bill was filed and an injunction granted upon the sale of the mortgaged property.</p> <p>This case was argued upon the bill and answer, and on full testimony as to the nature of the dealings between the parties.</p>

This was an action of Replevin for the recovery of the Brig Perseverance, her tackle, apparel and furniture.

<p>This was a bi]Lin equity brought by the complainant, a member of the New England Screw Company, against the said Screw Company and Richard Waterman, Samuel Boyd Tobey, Daniel Paine, Henry L. Kendall and Henry Anthony, members and directors of said Company.</p> <p>The bill sets forth, that at the October Session of the General Assembly, A. D. 1840, a petition was preferred for “ a charter of incorporation for the manufacture of wood screws by the aid of new and useful machines,” and, at the same session, the petitioners were incorporated by the name of the “ New England Screw Company for manufacturing purposes,” and clothed with the powers and restrictions usual to such corporations, the members thereof being made personally liable for the corporate debts. In 1845, the plaintiff and the defendants became the sole members 'of the company and so continued down to the filing of this bill-= — the plaintiff holding ninety-eight of the five hundred shares into which the stock was divided, at the par value of $100 per share. In 1845, the Company wishing to enlarge their business, obtained an amendment of their charter, increasing their capital to $300,000, and authorizing them to carry on the business of manufacturing and rolling Iron, under the name of the New England Iron Company and under the direction of the officers of the New England Screw Company. Under this charter they erected large Iron Works and carried on the business of manufacturing and rolling Iron, until December, 1847, when it was suspended. At this time they formed the plan of getting up a new corporation and connecting the Screw Company therewith, for manufacturing patent wrought nails. For 'this purpose they called a meeting of the directors, on the 23d of August, 1847, at which all were present, except Anthony, and voted to purchase a certain nail machine and patent right, the plaintiff alone dissenting. The purchase was accordingly made for $2.6,500, and paid out of the Screw Company’s funds. On the 9th of November, 1847, a meeting of the directors was called and a proposal in writing submitted: “ That whereas the Screw Company were possessed of certain Iron Works, and, also, of a patent right of making improved nails, and had proposed to form a new company With a capital of $300,000, to be divided into six hundred shares of $500 each, for the purpose of manufacturing such nails and carrying on other branches of the Iron Business, under the name of the Providence Iron Company, to be incorporated under the general act relative to manufacturing corporations, passed in 1847 it was therefore proposed that said Screw Company should take two hundred shares of the capital stock of said Iron Company, provided two hundred other shares be subscribed for by other persons, and, also, should sell to said Iron Company the rolling mill estate and patent right at cost, to wit, for the sum of $182,000. And it was voted to subscribe for two hundred shares in the proposed Iron Company on the terms stated in this proposal, which Was afterwards done. And the plaintiff avers that at this meeting he proposed a vote that such of the members of the Company, as desired to form and carry on said new Company, should do so on their own individual account, and not on account of the Screw Company, but the meeting refused to adopt the same. At the May Session of the General Assembly, they petitioned for a charter for the new Company. And it appeared in evidence, that this petition was signed by the plaintiff and the defendants, in their individual names, and that the Screw Company did not sign the same, neither was their any intimation in the petition that the stock was to be taken on account of the corporation. The plaintiff avers that he appeared and remonstrated against the granting of the petition, except upon condition that in case any existing corporation should take stock in the new Company, said stock should be divided amongst its members in proportion to their shares. The charter was granted as prayed for, and on the 28th of June, 1848, the rolling mill, patent right and nail machines, were conveyed to the Providence Iron Company for $182,000 — said Company paying $82,000 in cash and the residue in shares of its stock. The Iron Company immediately commenced making wrought nails and has since pursued that and other branches of the iron business.</p> <p>And the bill further charges the defendants with various acts of fraud, to wit: That they took the stock in the Iron Company on account of the Screw Company, before two hundred shares had been bona fide subscribed for; that they and the officers concealed important transactions and papers from the plaintiff, and refused him access to the same ; that they paid more than the market price for the rods furnished them by the Iron Company ; that they had violated the by-laws of the Company; that the business and profits of the Company had been diminished by diverting the time and care of its officers to the concerns of the Iron Company, the officers and agents of one company being likewise officers and agents in the other; and that they had managed the concerns of the two companies with a view to reduce the value of the plaintiff’s stock, in order to force him to sell it to them at a greatly diminished price, and retire from the Company.</p> <p>All these charges are denied in the answer, and were found by the Court not supported by proof.</p> <p>The Bill further charges a diversion of the funds and credit of the Screw Company to the uses and purposes of the Iron Company, by loans of the cash, notes, acceptances and endorsements of said Screw Company, to a very large amount from time to time, and that, at the present time, such loans exceeded $100,000, and were daily continued ; and that in consequence of such diversion of the funds of the Screw Company, and of the attention of its directors and agents to the business of the Iron Company, the prosperity of the Company had declined, and the plaintiff was in danger of irreparable loss and injury.</p> <p>The prayer of the Bill is : That all connection between the two companies be dissolved, at least so far as the plaintiff is concerned; that the defendants may be compelled to pay the plaintiff his proportion of the purchase money of the rolling mill estate, not paid in money, or that he otherwise be made whole; that an account be taken of the losses, &c. the plaintiff has sustained ; that his right of access to the books be restored to him, and for general relief, and for an injunction against all further proceedings of the Screw Company in carrying on the Iron Company, and especially in loaning its endorsements.</p> <p>The answer admitting, for the most part, the allegations in the bill relative to the formation of the different companies, sets forth, that the plaintiff was in 1846, and previously, the agent of the Screw Company, and was chiefly instrumental in engaging it in the business of rolling iron, and in procuring the amendment of the charter for that purpose. That this business proved disastrous; and that in 1847, finding themselves embarrassed by the liabilities of the Rolling Mill, and with an establishment which cost $155,000 on hand, without employment, they conceived the plan of forming the Providence Iron Company, in order to sell to them their Rolling Mill, and thus disembarrass themselves. That for this purpose they purchased the patent right and nail machine, and that the plaintiff, although he at first objected, yet offered no other plan of relief, and in the end approved of the purchase. The answer denies that the plaintiff ever dissented to the formation of the Iron Company, or remonstrated against the same to the General Assembly, or that he ever spoke of these acts as a violation of the charter, but admits that on the 8th of May, 1848, he proposed a division of the Screw Company’s stock in the Iron Company among the members of the Screw Company; which was declined, as the stock was a part of the Company’s assets to meet liabilities, and they were still in debt.</p> <p>And in regard to the loan of the credit of the Screw Company, the answer sets forth, that in consequence of the expense incurred in commencing their business, the Iron Company had to hire money of the Banks, and applied to the Screw Company and other stockholders to endorse their paper, and they had endorsed the paper to such amount as they thought their interest required; that the amount of said paper is between $83,000 and $84,000 ; that the Company has not loaned its accept-: anees or cash, except for a short time in adjusting accounts, and it has been repaid when demanded. The answer denies that the Iron Company is involved in debt, or that there is any loss or danger of loss arising from said endorsements. The defendants further state, that by the sale of the Rolling Mill they materially reduced' the Screw Company’s liabilities, and that the contingent liabilities they now incur by said endorsements, are less than the actual liabilities they would have incurred if they had continued to carry on the business of manufacturing Iron in said Rolling Mill.</p> <p>The defendants deny the plaintiff’s charges of fraud, and aver that they have done all and. every thing for the best interests of the Screw Company and its stockholders according to their best skill and judgment; that though a corporation, they are liable for all obligations of the Screw Company, as members of a co-partnership are, and consequently they have been more cautious and devoted to the interests of the Screw Company.</p> <p>Full evidence was put in on both sides upon all the disputed points of the bill and answer, but the grounds taken in the decision of the Court makes a more explicit statement unnecessary.</p> <p>This case was argued at the last March Term, and continued until the present for advisement.</p> <p>Bradley said, he should consider</p> <p>1st. What were the powers of the New-England Screw Company.</p> <p>2d. Whether or not those powers had been exceeded.</p> <p>3d. Whether the plaintiff had been injured by the excess.</p> <p>The whole power of a Corporation is derived from and must be expressed in or necessarily implied by its charter.</p> <p>If the charter uses language, capable of different meanings, it must'be construed strictly. (2 Kent, 299.) The burthen of proving the existence of a power is upon the corporation. If there is a doubt, whether it has the power or not, it fails in the proof</p> <p>The name of the corporation is an implied limitation upon the powers of the corporation. In this case the Implications from the name are strengthened by the petition for the charter, in which power was asked to make wood screws.</p> <p>This power was extended by amendment, to manufacturing and rolling iron under the name of the New-England Iron Company, but the business was limited to be under the control of the officers of the New-England Screw Company.</p> <p>The chartered powers have been exceeded in this, viz: The corporation has been made a corporator of the Providence Iron Company, and has endorsed the notes of and lent their credit to the Providence Iron Company. They have kept no accounts of the endorsements on the books of the Screw Company, and they have no security for these endorsements. By these means the personal liability of the members of the Screw Company for its corporate debts has been extended to the debts of the Iron Company.</p> <p>The Iron Company acts under the provisions of the general law in regard to manufacturing companies, so that the plaintiff is liable for the acts of its officers in whose appointment he has no voice.</p> <p>There is an express provision that the business of manufacturing and rolling iron shall not be carried on, except under the control of the directors of the Screw Company. The Iron Company has its own agents. This is a vital difference, for in one case the plaintiff has a control over the officers — -in the other he has none.</p> <p>The union of the two companies was effected by a vote of the directors, and not by the act of the corporation. This act was not only illegal, but they were aware of its illegality; and if not, their ignorance is no excuse. That, they knew they had no such power, is apparent from the fact that the petition for the Iron Company is signed- by them individually, and does not mention that the Screw Company is to become a stockholder.</p> <p>The terms- upon which the incorporation was to be 'effected, were not complied with. (Here the counsel contended that the subscriptions for the two hundred shares which were to be obtained before the Screw Company took stock in the Iron Company, were not bona fide subscriptions, a charge which was made in the bill, but denied in the answer, and not sustained by proof.)</p> <p>The damage to the plaintiff is an increased liability, and a depreciation of the value of his stock, by exposing it to new liabilities.</p> <p>Another ground of complaint is the purchase of the Nail Machine and Patent Hight.</p> <p>The defendants are liable for these' illegal acts. The directors are but agents of the corporation, and if they transcend or abuse their powers, they are as much responsible 'to their principal as the agents of an individual. (4 Denio 301. Ang. and Ames, 304.) Robinson vs. Smith, (3. Paige, 231.) The directors who wilfully abuse their powers are personally liable to make good the loss occasioned thereby. Cunningham vs. Pell, (5 Paige, 607.) Directors are liable for a fraudulent breach of trust. Verplanck vs. Mercantile Insurance Company, (1 Edwards, 84.) Directors are trustees to the corpora-tors, and are personally responsible for a dereliction of duty. Attorney General vs. Wilson, (1 Craig & Philip, 1.) Nathan vs. Whitlock, (3 Edwards, 215.)</p> <p>The stockholders of this company are subjected to a co-partnership liability. How far one partner can pledge the partnership credit by accommodation endorsements, may be seen in Laverty vs. Burr & Baldwin, (1 Wend. 529.) Boyd vs. Plumb, (7 Wend. 310.) These cases show, when a partner acts out of the scope of the partnership, he does not bind his partner without his assent; and it is for him to prove such assent. Sumner vs. Marcy,* shows the illegality of a purchase by one corporation in the stock of another.</p> <p>If the directors set up the plaintiff’s acquiescence in their misconduct, they must prove it. Inasmuch as their conduct has been unlawful, the burthen of proving anything set up in excuse, is upon them.</p> <p>First. That the directors of a corporation have control over its funds for the purposes authorized by charter, and for no other. And if they apply the funds for other purposes, they are guilty of a breach of trust, over which Courts of Equity have jurisdiction.</p> <p>Secondly. When the corporation is in the control of the directors, who have committed the alleged breach of trust, a stockholder may bring his bill against them and make the corporation a party. Robinson vs. Smith, (3 Paige, 231 and 232. Ang. and Ames, p. 305.) Bayless vs. Orne, et ais., (1 Miss. (Freeman’s,) pages 174 and 175.)</p> <p>Third. The decision in Solomons vs. Laing, (London Jurist for April, 1850, and for June, 1850,) completely covers the present c^se, and establishes the right of Courts of Equity to grant the relief asked in the bill. See also Arnold vs. Ruggles. (See Supra, p. 165.) Taylor vs. Salmon, (4 Mylne and Craig, 141.) Webb vs. The Manchester and Leeds Railioay Company, (4 Mylne and Craig, 120.)</p> <p>admitted that the directors were liable for a fraudulent breach of trust, and contended that they alone, and not the corporation, were liable ; that the cases cited from the London Jurist went no farther to establish the jurisdiction of the court over corporations than the American cases ; that the corporation was undoubtedly a necessary party to such a suit, for if any relief was granted, the decree must give it to the corporation, through which the individual corporators must work out their rights and equities; that the decision in the Jurist for June, 1850, if it proved anything, proved too much, since according to that decision the Providence Iron Company should have been made a party, as well as the Screw Company.</p>

Assumpsit on Book Account. It appeared in evidence that on June 18th, 1850, Ezra G. Brown, a merchant, executed an assignment of his stock of goods to the plaintiff in trust for the benefit of- his creditors. That notice of this assignment was not published in the papers until the twentieth.

. This , was an application, upon A writ of habeas corpus, to have the amount in which the petitioner was held to bail redticed.

This was an appeal from a decree of the Court of Probate of the town of Scituate, refusing .the probate of an instrument purporting to he the last will and testament of Paschal P. Wheeler.

<p>A Bank charter contained the following section : “ The stockholders of said Bank shall be personally and individually liable for all losses, deficiencies and failures of the capital stock of said Bank held, that this-section made the stockholders personally' liable to the creditors of the Bank for its debts, in prbportion to their respective shares in the stock of the sanie.</p> <p>In a petition to the General Assembly, which was acted Upon, the stockholders declared the private property of the stockholders to be holden for the debts of the Bank, and also published upon the bills of the Bank, “ stockholders’ private property holden,” held, these acts were a construction of the charter by the parties themselves, which they could not he permitted afterwards to repudiate.</p> <p>A liability created by statute is a specialty, and an action thereon in Equity is not barred by the statute of limitations, though not commenced within six years after it has accrued.</p> <p>Actions against stockholders for the debts of a Bank involve complex contributions among the stockholders and are the proper subject of Equity jurisdiction.</p> <p>"Where the receiver, appointed to wind up the affairs of the Bank, stated in his answer, that he did not deem it his duty to sue the stockholders on behalf of the creditors, it was held that the creditors were authorized in commencing their suit against the stockholders without first requesting the receiver to sue them.</p>

An action on a promissory note for $165, dated May .17, and made payable to George G. Monroe, or order, signed James F. DeWolf, and endorsed by Monroe to the plaintiff. The defence was, that the note was a forgery. The plaintiff put in evidence of the genuineness of the signature.

<p>Where parts of an answer to a bill in Equity are prima facie scandalous, the Court will order a reference to a Master, without examining- whether or not they are material and responsive to the bill.</p>

Assumpsit on a Bill of Exchange. The Bill was drawn in the following form : “ Providence, Feb. 2, 1848. $ 175 94. Six months after date, pay to the order of myself three hundred seventy five T9g4g dollars, value received, which place to my account. To Messrs. Wyman, Appleton & Co. (Signed) James C. Butterworth.’’ This bill was endorsed by the drawer, and accepted by Wyman, Appleton & Co., of which the defendant was a partner.

Tins was a motion for a new trial. This case was tried at the last term of the Court and a verdict returned in favor of the plaintiff.

This was an action upon a lost bill of exchange, dated at Apalachicola, March 4, 1847, drawn upon John Hart, of Alabama, and payable to James A. Aborn, or order, on presentment. In its transmission to the agent of J. A. Aborn, the bill was lost on board a steamer. Demand was made upon the drawee, June 17, 1847, and payment refused.

<p>A mortgage having been made covering an entire estate, and a part of said estate having been improved after the making of the mortgage, by the erection of a mill and its appurtenances, the said estate was subsequently severed by conveyances to different purchasers; the improved part thereof passing to A. and the other part to B. who was also the assignee of the mortgage; held, that, as the improvements had been placed on the property by the mortgagor before its severance, the amount to be paid by A. in order to redeem his part from said mortgage, must be apportioned according to the improved value of his part of the estate, and not according to its value at the date of the mortgage.</p>

This was a complaint under the third section of “ an act providing for the relief, employment and removal of the poor,” and alleged that Henry Card was the father of one George Card, who was lawfully settled in said town, and, as such father, was bound to support said George, if a pauper, he being of sufficient ability so to do; that previous to March, 1849, said town had been at great expense in supporting said George at the Butler Hospital, and at the poor house in said…

This was an action on the case for an injury to the plaintiff’s right of common of sea-weed. The plaintiff claimed as appurtenant to his farm, (being one of the so-called Sewell farms, which had been confiscated to the State, and under a conveyance from which to Nathan Kenyon, the plaintiff claimed,) the right of taking seaweed or sea-manure in a certain place or common, called the Common Lot, every year and at all times of year.

<p>On a petition for an appointment of referees, on an insolvent estate, “ to hear, award and determine, all matters and claims, &c., and to make report thereof according to law,” a writ was issused directing the referees to decide as should seem “just and equitable,” and the petition was annexed to the writ and made a part of it: Held, the variance between the writ and the petition, is not a ground for setting aside the report, if the referees have decided according to law, and have not followed the words of the writ.</p> <p>The petition stated that the parties had “ agreed to submit the matters in dispute to the final award of three referees,” and the writ authorized “ three, or a major part” to decide, 'but the report having been signed by all the referees, it was held not to be vitiated by the irregularity in the writ.</p> <p>After referees had been appointed, it was agreed by the parties that two new referees should be agreed upon, and an order was made on the record as follows: “ 5th day, rule amended, see agreement on file,” in order that the additional referees might be agreed upon in vacation, and the rule amended in conformity to such agreement.</p> <p>The parties not being able to agree, and the old referees having heard and reported upon the matters in dispute, under protest of one party, it was held that their report should not be set aside.</p>

<p>A Statute declared: “No bargain, sale, mortgage or other conveyance, of houses or lands, made and executed within this colony, shall be good and effectual to hold such houses and lands against any other person or persons, but the grantor or grantors, or their heirs only, unless the deed or deeds thereof be acknowledged and recorded in manner as is expressed.” Held, that this statute did not extend to a lease for years of land and a right of way.</p>

This was a petition for an injunction upon the sum of ■ $2,724,52, deposited in the “State Bank,” by the defendants, to their individual account, and claimed by the plaintiff as partnership property. Having filed his bill as a co-partner of the defendants for an account of the partnership property and transactions, the plaintiff applied to have this money placed in the hands of a receiver, or in the registry of the Court, to abide the final -decree on the bill.

This was an action of Dower. The husband of the plaintiff, after making for her, certain provisions by will, bequeathed the remainder of his property in trust for his children, and declared that the devises and bequests to his wife were “ to be in lieu of her dower or other interest in my estate.” The plaintiff, having elected to accept these provisions, brought this action for dower in certain real estate, which belonged to her husband and which was purchased by him…

This was an action of assumpsit on the receipt' herein after described, and was submitted to the Court on the following agreed statement of facts : “ The parties agree that the paper, a copy of which is hereunto annexed, was executed by the; defendant that he was, at the time of its execution, the general agent at Providence, of the New Jersey Steam Navigation Company ; that the coal in said paper mentioned, was burnt after its delivery to the defendant, by said New Jersey…

The facts in the case were as follows :— , Some time in the latter part of 1847, Taber, having had his store broken open and his goods taken therefrom, went before a magistrate and made oath that “ he had cause to suspect and did suspect” that the stolen goods were secreted and concealed on “ the premises of Hiram Ide and Henry Ide,” and prayed for process to search “ the houses and buildings” of the Ides.

This was an action of trespass on the case for an injury to the plaintiff’s horse and chaise hitched in a public street, caused by the defendant negligently driving his team against them.

This was an action of assumpsit on a promisory note, and was tried in the Court of Common Pleas at the June Term, 1850, before Staples, J. and came up upon exceptions to the rulings of said Court. The note was dated at Burrillville, May 10, 1847, and was for thirty dollars, payable on or before the first day of August following, with interest if not then paid ; interest to stop if house finished ; and signed by the defendants.

This was an action brought by the guardians of the plaintiff, a lunatic, against the defendants, as assessors of taxes in the city of Providence, for assessing a tax upon the plaintiff as an inhabitant of said city. The guardians claimed to have changed his habitation by removing him to the house of one of the guardians in North Providence.

Assumpsit upon a promissory note of the defendant, dated June 23, 1839, and made payable to the plaintiff’s wife. Hea, statute of limitations. Replication, a new promise. It appeared in evidence that Newell, in a conversation with the plaintiff’s wife, upon being requested to renew his note, replied, “you'need not be concerned, I calculate to pay you all I owe you within a year.” This was in May, 1850 ; the writ was served in June of the same year.

This was a motion for an injunction. It appeared that the original bill was filed on the 22d of February, 1851, and a subpoena granted the same day. At the March Term following, leave was obtained to amend, on condition of furnishing a copy of the amended bill to the defendant. The amended bill was filed on the 1st day of April, and subpoena issued thereon on the 2d day of April. A copy of the amended bill was then proffered to the defendant’s counsel and refused.

This was assumpsit on book account for $554, for professional services as an attorney. It consisted of a large number of items, for drawing a bill in equity and amendments to the same, for motions in Court, consultations, taking depositions, preparing briefs, making abstracts of the bill and answer and evidence, &c., and for services in other cases. The defendant was credited in the account with fifty dollars.

Assumpsit for a breach of promise of marriage. Plea, non assumpsit. There was no express promise of marriage . proved.

<p>If a debtor gives and a creditor receives, in full satisfaction of the debt, the note of a third person for a smaller sum than the amount of the debt, it is a valid discharge.</p> <p>Parol evidence is admissible to show what was the real nature of the transaction to which the words of a receipt apply, and explain their meaning.</p>

Assumpsit for money paid as costs in the Court of Magistrates of the city of Providence, upon an appeal from the judgment of said Court, on a complaint for selling strong liquors without license, to the Court of Common Pleas.

Trover, for the value of a steam engine. Plea — the ■general issue. The action was brought by the plaintiff as Administrator of Launcellot Mitchell.

<p>An acceptance of a highway dedicated to the public may be made at any time, provided the gift continues and the tender is not withdrawn by the owner of the fee before an.actual acceptance.</p> <p>It is not easential to a valid acceptance by «ser, that the entire width of the way dedicated should' be travelled. The fact that there is a travelled path through such way shows an intention of the public to accept the whole way.</p> <p>Semble. That the records of the proprietors are conclusive evidence of the laying out of highways therein recorded.</p> <p>The statute in relation to the laying out of highways, passed May, 1715, and amended in 1767, providing that “ all highways duly laid out and recorded in the records of the proprietors, shall be as good, binding and valid, as though laid out in any other manner whatever,” had a retroactive effect, and highways so laid out, prior to its passage, were adopted by it as public highways.</p> <p>Where a portion of a highway, which was travelled by the public, was enclosed and occupied as private property for more than twenty years; held, that the statute of limitations does not run against the State, and though, if an adverse claim could have had a legal commencement juries are directed to presume that it had, yet, as this enclosure began as a common and public nuisance for which one cannot prescribe, no adverse possession, however long, would give title to individuals against the public.</p>