Volume 11 — Rhode Island Reports

<p>A tenement was let by the month, to wit, from December 18 to January 18. Notice in writing to terminate the tenancy was given by the landlord, and contained a direction to the tenant to vacate on or before January 17.</p> <p>Held, not a legal notice, the day mentioned in it not corresponding with the day of the commencement of the tenancy.</p> <p>Note by the Reporter. — The foregoing opinion was, immediately after its delivery, loaned by the reporter then in office, and .was mislaid by the borrower. It is therefore now printed. The case, “ Exceptions, No. 255,” is recorded in book 22, p. 15, of the court records, October Term, A. d. 1867.</p>

<p>Proposals made in negotiations for a compromise are privileged communications.</p> <p>Exceptions not fully stated will be dismissed.</p>

Bill in equity to redeem a mortgage, and to secure a balance of account claimed to be due the complainant. The former proceedings in the case are reported in 9 R. T. 401, and in 10 R. I. 382.

<p>A case removed into the United States Circuit Court should be removed as of the day when, motion for the removal was made.</p> <p>A case may be removed after a trial in the state court at which the jury disagreed.</p> <p>Amendments to the declaration are considered as made of the time when the declaration was filed.</p>

<p>Bill in equity to obtain a judicial construction of tbe will of Robert Rogers, and to fix tbe rights of tbe parties in interest under it.</p> <p>In 1862 Robert Rogers made tbe will in question. At that time, he was seventy years of age, and his wife was sixty-seven. He had no children or issue living ; neither had he any near relatives living except his brother Daniel, and his said brother’s eight children. Of these six were sons, and two were daughters. One of the sons, James S., died unmarried and intestate before the testator. When the will was made, one of the daughters was married and one was single. The single daughter subsequently married and died after the testator’s death, leaving a husband and an infant daughter. The ages of these nieces and nephews, at the time the will was made, ranged from forty-six to twenty-two years. The testator died in April, 1870, childless.</p> <p>In the first clause of his will he directed the payment of his just debts. In the second clause he gave to his wife, outright, all his furniture, plate (excepting that belonging to his late mother), his horses and carriages, and all the farming stock and farming utensils on the farm at Papoose-Squaw Point, which was his residence at the time of his death, and which was the property of his wife. In the third clause he gave to his wife, outright, the half of a lot of land, the other half of which was owned by her sister, and he also directed that whatever stood to his wife’s credit on his ledger should be paid to her. In the fifth clause of his will the testator made a specific legacy to his cousin Seraphine E. Noyes of certain indebtedness. In the sixth clause he gave to Martha C. Foster, a quasi ward of his, who had for years resided in his family, the income of fifty-five shares of stock in the Providence and Worcester R. R. Co. during her life, and after her death, the stock to Robert Rogers Howard. In the eighth clause the testator gave to said Robert R. Howard all indebtedness due from him to the testator. In the ninth and tenth clauses the testator gave to certain cousins of his of the Noyes family certain indebtedness due him from them. In the eleventh clause he gave to Wm. Henry Mosher, a former ship-master of his, the income for life of fifty shares of Webster Bank stock, and at said Mosher’s death the stock to Robert R. Howard.</p> <p>The fourth, seventh, twelfth, and thirteenth clauses of the will are as follows : —•</p> <p>'•'■Fourthly. I do give and bequeath to my executors hereafter named, in trust for the use and improvement of my wife Maria Rogers, during her natural life (the income or dividends on which only are to be applied and appropriated to her use and benefit), and in lieu of all claims of dower on any part of my estate, viz.: two hundred full shares of the stock in the Bank of Commerce in the city of New Yoi'k; one hundred shares of the stock of the Bank of the State of New York in the citjr of New York; one hundred shares of the stock in the Hartford and New Haven Railroad Company ; one hundred and twenty shares of the stock of the New York and New Haven Railroad Company ; one hundred and seventeen shares of the stock in the Boston and Providence Railroad Corporation ; one hundred and forty-two shares in the Old Colony and Fall River Railroad Corporation ; all of which stocks, at their par value, amount to seventy-seven thousand and nine hundred dollars; and after my wife’s decease it is my will that fifteen hundred dollars per year of the income or dividends of the stocks aforesaid be paid to Charlotte D’Wolf, her sister, during the term of her natural life, and that the remainder of said income or dividends be divided equally among the children of my brother Daniel Rogers, or their legal heirs-at-law, until the decease of the said Charlotte D’Wolf; and that after that event the said stocks be equally divided among the children of my brother Daniel Rogers, or their legal heirs-at-law, or held in trust by my said brother, with power of naming substitutes at his option, and I do bequeath the same accordingly. And I do desire furthermore and do hereby order and direct that in case the aforenamed bank and railroad stocks, or those which may be hereafter substituted for them, do not produce in dividends or income each and every year of my wife Maria Rogers’s life after my decease the sum of three thousand dollars, that the amount which the said dividends or income may fall short of that sum be paid to her by my residuary legatee, Daniel Rogers, in trust, out of the residue of my estate not specifically and unconditionally given away, at the expiration of each and every year that such deficiency may occur. ^</p> <p>“ Seventhly. I do hereby give and bequeath in trust to Henry A. Rogers, of Providence, with the power of appointing successors or substitutes, for the benefit and use of Robert Rogers Howard, now of Kalamazoo, Michigan (who was .named by my late honored mother, with a request that I would liberally provide for him), one hundred full shares of the stock of the Bank of Commerce in the city of New York ; fifty shares in the Bank of the State of New York in the city of New York; one hundred shares in the Old Colony and Fall River Railroad; one hundred shares in the New York Central Railroad ; one hundred and twenty-five shares in the Eastern Railroad of Massachusetts ; one hundred and twenty-five shares in the Northern Railroad of New Hampshire, the dividends or income on which bank and railroad stocks to be paid to the said Robert Rogers Howard during his life, and after his decease to be equally divided among his lawful issue, or their lawful children ; if any or all of his children be dead, ‘per stirpes ’ and not 1 per capita.’ But in case said Robert Rogers Howard dies without lawful issue, then all said stocks are to be divided equally among the children of my brother Daniel Rogers, now living, and their legal heirs-at-law through their father’s blood, '■per stirpes ’ and not '■per capita,’ and I do give and bequeath the same accordingly.</p> <p>“ Tioelfthly. I do hereby give, bequeath, and devise to my brother Daniel Rogers, in trust, with power to name and appoint a successor or successors, all the residue and remainder of my estate, real, personal, and mixed, not herein otherwise bequeathed and devised, to have and to hold the same for the following purposes, viz. : In the first place and before any other claims on this fund are satisfied, to pay any deficiency each and every year it occurs on the three thousand dollars per year given to my wife Maria Rogers under the fourth bequest of this will. In the second place, to divide all the remainder of the property hereby devised and bequeathed after the decease of my wife Maria Rogers and before his own decease (if he so chooses to do) equally between his eight children now living, or their legal heirs, per stirpes and not per capita, if any of them be dead when this bequest takes effect, and to trustee all or any part of the property so divided among his eight children or their heirs-at-law through his blood, by placing it safely in the hands of two or more honest and competent persons to hold and to pay the income thereof to his eight children or their heirs-at-law through his blood, per stirpes and not per capita, as it is received, and that part of it which may belong to his daughters, married or single, to be so trusteed as that the income thereof shall be paid to them or either of them on their own receipt, and after the same shall have accrued, and without the intervention of any creditor or husband, and all the property so trusteed on the said daughters’ decease to descend to their own children, or in default thereof to their heirs-at-law through their father’s blood, per stirpes and not per capita, and I do hereby devise and bequeath the same accordingly.</p> <p>“ Thirteenthly. I do hereby authorize and empower my executors and the several trustees under this will, whenever they think it necessary for the security of the property, to sell anjr part of it and reinvest the same, and whenever any of the stocks are divided and paid off to reinvest the funds at their discretion ; but it is my will that no sales be made without the assent of the party enjoying the income thereof or their legal representatives. Furthermore, if any of the bank or railroad stocks, given and bequeathed or put in trust for the benefit of others by this instrument, shall not be found at my decease standing in my name on the books of the several institutions and companies or corporations named herein, or on either or any of said books, then my will is that my executors pay over to such legatees and trustees for the benefit of others, the market value of such stocks as may be then found wanting on either or any of the books of the said several institutions in my name, if any, and that they the said legatees and trustees for the benefit of others reinvest the said money paid over to them at their discretion ; and I do hereby give and bequeath to the parties separately, that may be found so affected either as legatees or trustees for the benefit of others, the amount necessary to replace the aforesaid deficient stocks, if any, at their respective market values.”</p> <p>The inventory discloses personal estate amounting to upwards of thirteen hundred thousand dollars, and the testator’s indebtedness was very small, not amounting to five thousand dollars. The -bill sets forth, and the answers admit, that the testator died seised of real estate of the value of fifteen thousand dollars, situated in Rhode Island.</p> <p>The bill was brought by the children of Daniel Rogers, and also by a child of a deceased daughter against Daniel Rogers, Maria D’W. Rogers, Jonas Williams, and A. Ludlow Case. The complainants are the beneficiaries under the residuary clause of the will, all being sui juris except three, one of whom is non compos mentis, one a married woman suing her husband, and the third an infant, who sue by their next friend.</p> <p>The respondent Daniel Rogers is one of the executors, and is also the trustee under the residuary clause of the will. The respondent Maria D’W. Rogers is the testator’s widow and the other executor. The respondent Jonas Williams is the husband of Daniel Rogers’s daughter, who died intestate after the testator’s death, and is the father of the infant complainant He is also administrator of his late wife and guardian of his child. The respondent A. Ludlow Case is the husband of one of the complainants : the question as to him being merely whether, if his wife is entitled to what she claims under the testator’s will, she is entitled to the equity of a settlement as against him.</p>

<p>The sale of intoxicating liquors for exportation is not forbidden by the Revised Statutes of Rhode Island, cap. 78, §§ 1,14, 15.</p>

Bilk in equity to ascertain the respective rights of claimants under the eighth clause of the will of Thomas Andrews). The clause is as follows : — “ JEiyMhly.

<p>Bill in equity. On motion for an injunction.</p>

<p>Appeal from the Court of Common Pleas, heard by the court, jury trial being waived.</p>

<p>Assumpsit. Heard by tlie court, jury trial being waived.</p>

<p>The charter of a company operating cars drawn by horse power upon tracks laid in the streets of the city of Providence provides that “said corporation shall put all streets and highways, and every portion thereof, over or through which they shall lay any rails, in as good condition as they were before the same were laid; and they shall keep and maintain in repair such portions of the streets and highways as shall be occupied by their tracks, and shall be liable for any loss or injury that any person shall sustain by reason of any carelessness, neglect, or misconduct of its agents and servants, in the management, construction, or use of said tracks or streets; and in case any damage shall be recovered against said towns or the said city, by reason of any such misconduct, defect, or want of repairs, said corporation shall be liable to pay to such towns and city respectively any sums thus recovered against them, together with all costs and reasonable expenditures incurred by them respectively in the defence of any such suit or suits, in which recovery may be had; and said corporation shall not incumber any portion of the streets or highways not occupied by said tracks.” In an action against the city to recover damages for injuries caused by a defective highway, which was made unsafe by work done by the railroad company on its track : —</p> <p>Held, that the city was liable for neglecting to keep its streets safe and convenient for public travel.</p> <p>Held, further, that the duty, resting upon a town or city, to keep its highways safe and convenient, is a public duty, and that it has no power, unless authorized by statute, to divest itself, either by contract or ordinance, of its capacity to discharge this duty.</p> <p>Semble, that the liability of the railroad company, as above stated, is a matter which may be considered by the jury in determining whether or not the city has been guilty of any culpable neglect or want of reasonable care.</p> <p>A court, even though it may not agree with the conclusions drawn from conflicting evi•dence by a jury, ought not, without very weighty reasons, to disturb the verdict found.</p> <p>Jurors who are excluded by the common law on account of an interest in the suit are not qualified to serve by Gen. Stat. R. I. cap. 189, §§ 1, 2.</p>

Defendant’s petitions for new trials. The facts are stated in the opinions of tbe court. The case was heard October 10, 1874, on the constitutionality of the auditor’s act, so called, of Rhode Island, Gen. Stat.

<p>Bill in equity to foreclose a mortgage.</p>

<p>The Supreme Court as a court of equity will not appoint a husband trustee under a trust for the separate use of his -wife.</p>

<p>Assumbsit. On demurrer to the declaration.</p> <p>Elizabeth Conway, the plaintiff, sued out a writ of attachment against one Albert D. Wheeler, which was served by attaching the personal estate of said Albert in the hands of Francis Armington, the defendant, as administrator of Darius Wheeler, deceased. This writ bore date April 80,1872, and was returnable to the June Term of the Court of Common Pleas for that year. Annington made his affidavit acknowledging the solvency of the estate in his hands, and a debt due from the deceased to Albert D. Wheeler of $547.61.</p> <p>At the December Term, 1872, of the Common Pleas, judgment ■was given in favor of the plaintiff for an amount sufficient to cover the whole of this sum of $547.61. As Armington neglected to pay over this sum to the plaintiff, suit was brought by her to recover it in this case.</p> <p>Cap. 858, § 1, of Public Laws, March 31, 1870, provides that “ the personal estate of any person lodged or lying in the hands of his attorney, agent, factor, trustee, or debtor shall be liable to be attached,” &c.</p> <p>cited Adams v. Barrett, 2 N. H. 374 ; Piper v. Piper, 2 N. H. 439 ; Quigg v. Kxttridge, 18 N. H. 137 ; Palmer v. Noyes, 45 N. H. 174; Bray v. Wallingford, 20 Conn. 419 ; New Haven Saw Mill Co. v. Powler, 28 Conn. 110; Parles et al. v. Hadley, 9 Yt. 320; Barnes v. Treat, 7 Mass. 271; Brooles v. Coole, 8 Mass. 246, — the last decision causing a change in the statute, after which change the following decisions were made: Holbrook v. Waters, 19 Pick. 354; Wheeler v. Boioen, 20 Pick. 563.</p> <p>cited Drake on Attachments (4th ed.), §§ 451, 461, 493-497; Brooks v. Cook, 8 Mass. 246 ; Colby v. Coates, 6 Cush. 558 ; Thayer v. Tyler, 5 Allen, 94; Porter v. Stevens, 9 Cush. 530; Richards v. Stephenson, 99 Mass. 311; Waite v. Osborne, 11 Me. 185; Adams v. Barrett, 2 N. H. 374.</p>

<p>Assumpsit on a bill of exchange, heard by the court.</p>

Assumpsit on a promissory note. Appeal from the Court of Common Pleas. The writ in this case, dated September 16, 1870, was in the form prescribed by cap. 857 of the Public Laws, passed March 31, 1870. The sheriff’s return of service is as follows: — “ Washington Sc.

<p>Motion for an order of court.</p> <p>The respondent company, a copartnership, was the tenant of the petitioning company, a corporation, under an indenture of lease that gave to the petitioner a lien on the machinery, stock of goods, &c., which the respondents might put on the leased premises, pledging and binding such machinery and stock for the payment of the rent.</p> <p>This machinery and stock was attached by third parties creditors of the respondents, and sold by order of court under Gen. Stat. R. I. cap. 197, § 2, on the application of the attaching plaintiffs. The rent due to the petitioner being considerably in arrear, application was made in this motion for an order on the sheriff directing him to pay such rent out of the proceeds of the sale in his hands, the petitioner claiming under Gen. Stat. R. I. cap. 197, §§ 3-6..</p>

<p>Plaintiff’s petition for a new trial.</p> <p>Assumpsit against the defendant, who was a subscriber to the following agreement: —</p> <p>“ Providence, June, 1873.</p> <p>“ We, the subscribers, severally agree to and with the War-, wick Railroad Company, that we will take the number of shares of one hundred dollars ($100) each in the capital stock of said company, set opposite our respective names, under the provisions of its charter, and that we will pay for the same in such manner as the board of directors may, under the charter, direct.”</p> <p>At the trial in this court before a jury it-appeared in evidence that the full amount of the plaintiff’s capital stock, as limited by the charter, and fixed by a vote of the corporation, had not been subscribed, whereupon the plaintiff was nonsuited by direction of the presiding judge. ••</p> <p>The defendant’s subscription, as well as the first assessment by the directors, were both prior in point of time to the vote of the corporation fixing the amount of the stock. The directors’ record produced and read at the trial shows that the first assessment was made March 23,1874, payable April 4,1874 ; and the stockholders’ record, also produced and read at the trial, shows that the stockholders’ meeting, at which they voted that the capital stock should be $200,000, was held April 15, 1874.</p> <p>The twofold reference to the charter in the subscription incorporates the provisions of that instrument into the subscription contract, at least as far as relates to the capital stock and assessments on the subscribers. Section two of the charter provides that “ the capital stock should not exceed .two thousand shares of one hundred dollars each ; ” and section three provides for “ such equal assessments from time to time on all the shares as the directors shall deem expedient and necessary in the progress of the work.”</p> <p>The defendant’s contract, then, was that he would take twenty shares of $100 each in a capital stock not exceeding two thousand shares of $100 each, and would pay for the same as ordered by the directors in equal assessments on all the shares actually subscribed for or taken by himself and others in the venture. These were, the only conditions: First. That the shares subscribed for should not exceed two thousand; and second. That the assessments on all the shares subscribed for out of the two thousand should be equal.</p> <p>I. It appearing in evidence at the trial that the shares subscribed for did not exceed the capital limited by the charter (2,000), and that like assessments were made by the directors on all the other shares actually subscribed for as on those of the defendant, it must follow that the defendant is justly liable on his subscription, and the judgment of nonsuit was erroneous.</p> <p>Express conditions in a contract exclude the implication of others not expressed. Inclusio unius exclusio alterius is a maxim of the law as old as the law itself, because it is a maxim of all right reasoning. The defendant’s agreement plainly was to take twenty shares out of any number that should be subscribed, — more or less — within the charter limitation of not exceeding two thousand.</p> <p>For the court to annex a condition to such an agreement, which is not only not expressed, but obviously excluded by what is expressed, would be to substitute a contract for the parties other than that made by themselves.</p> <p>II. Except in cases where the charter or act of the legislature fixes the capital stock of a corporation at a specific sum or number of .shares of a given amount, or imperatively requires that the corporation itself or its directors shall determine the amount, — a subscription to the full amount agreed on by the stockholders, without such requirement of the charter or act of the legislature, is not a condition precedent to valid assessments, or the right of recovery upon a subscription. Hamilton Peansville Plank Road Co. v. Rice, 7 Barb. S. C. 158; Rensselaer £ Washington Plank Road Co. v. Wetsel, 21 Barb. S. C. 56; Schenectady Saratoga Plank Road Co. v. Thatcher, 11 N. Y. 102; Kennebec Portland Railroad Co. v. Jarvis, 34 Me. 360.</p> <p>These four cases appear to be decisive of the question of the plaintiff’s right to recover of the defendant on his subscription, notwithstanding that the whole number of shares, voted by the stockholders as the basis of plaintiff’s capital stock, have not been taken. If so, the nonsuit must be set aside and a new trial granted. We subjoin, however, the following New York cases, in which it does not appear whether all the stock in the respective corporations was subscribed for or not. No allegation that it was or was not appears to have been made in the pleadings, and no proof of the fact appears to have been required or given, and no reference appears to have been made to that point either by counsel or the court, although in several of the cases it affirmatively appears that the amount of stock had been definitely fixed. Sleev. Bloom, 19 Johns. Rep. 456; Mason*v. Petty, 2 Sandf. Ch. 257; L. Ontario f N. Y. R. R. Co. v. Mason, 16 N. Y. 451; Poughkeepsie ‡ Salt Point Plank Road v. Griffin, 21 Barb. S. C. 454; Small v. Herkimer Manuf. Co. 2 N. Y. 330; Spear v. Crawford, 14 Wend. 20 ; Abbott v. Aspinwall, 26 Barb. S. C. 202; Payton v. Borst, 7 Bosw. 115; Goshen ¿f* M. Turnpike Co. v. Hurtin, 9 Johns. Rep. 217; Herkimer Manuf. Co. v. Small, 21 Wend. 273.</p> <p>The New York reports are full of such cases, but these will suffice to show that in the great corporation-creating State of New York the courts do not hold that where the charter does not fix the amount of stock, it must be presumed that the legislature intended that the corporation should fix it, nor that when it is fixed by the corporation, it is necessary to have it all subscribed for before assessments can be made.</p> <p>On the other hand, when such a condition appears in the New York cases as attached to the contract, either by the act of the legislature creating the corporation, or in the subscription paper itself, both the courts , and the bar recognize it. In such cases, it is set out in the pleadings, or appears in the evidence, or is noticed by the judge trying the cause, and is found in the reported t.cases. Sagory v. Dubois, 3 Sandf. Ch. 466; Troy Turnpike JR. R. Co. v. McChesney, 21 Wend; 296.</p> <p>When, therefore, we find in the New York reported corporation cases nothing said about this condition, that the whole of the stock must be subscribed, we are not to infer that such silence is the result of inadvertency or mistake.</p> <p>Nor is the doctrine of the foregoing cases to be regarded as at war with the cases cited by the defendant’s counsel at the trial. Salem Mill Dam Co. v. Ropes,' 6 Pick. 23; Central Turnpike Co. v. Valentine, 10 Pick. 142; Stoneham Branch R. R. Co. v. G-ould, 2 Gray, 277 ; Old Town £ Lincoln R. R. Co. v. Veazie, 39 Me. 571.</p> <p>These were all cases in which the stock was definitely fixed or limited by the charter in such precise and imperative way that the courts held the limitation to be a controlling element in the stock subscription; in which respect these cases are entirely distinguishable from the case at bar.</p> <p>Neither will the two following cases, also cited at the trial, when carefully exan^ined, be found to be authorities against the doctrine for which we contend. In the first, Worcester Nashua R. R. Co. v. JBJinds, 8 Cush. 110, it will be found that the charter, while prescribing that the stock should not be more than a certain amount, imperatively required that that amount should be determined by the directors. The language is, “ shall be determined by the directors.” In Somerset <f* Kennebec R. R. Co. v. Cushing, 45 Me. 524, the subscription to the stock had this peculiarity, that the subscribers “ would pay all assessments on their shares that shall be made in pursuance of the by-laws of the company.” Prior to the date of the subscriptions, the corporation had adopted a by-law fixing the capital stock at 7,000 shares, the whole of which had not been subscribed. The subscription being subsequent to the by-law, and the promise being, in express terms, to pay only “ in pursuance of the by-law,” the court held that the promise was conditioned on all the shares being subscribed for, as fixed by the by-law. And it is to be noticed here that the court, referring to its own prior decision,. 34 Maine, 360, distinguishes the two cases from each other, ]ust as they differ in the form of the subscription.</p> <p>III. But, whatever may be thought of the business propriety or legal effect of having a definite amount of stock fixed by the voluntary act of the corporation, as distinguished from the act of the legislature, it is plainly incompetent for the stockholders, after having subscribed to an indefinite amount of stock, to invalidate their subscription by simply coming together and voting that the stock shall consist of a definite amount.</p> <p>As it requires two parties to make a contract, so does it require the consent of both the same parties to its dissolution. The contract of subscription in this case recognizes two parties to it in express terms. The language is, “ We, the subscribers, severally agree to and with the Warwick Railroad Co.,” &c. It is not simply that they agree to and with each other, but that they severally agree to and with this plaintiff corporation. It must be conceded on the authority of all the cases, that the assessment was valid and reciprocally binding until the act of the subscribers fixed the.capital stock at an amount exceeding the amount of the subscriptions; to hold that it was vacated and not binding after this act of the subscribers — only one of the parties to it — would be as absurd in the law as it would be repugnant to honesty and good morals. But besides this fundamental objection to the competency of the subscribers (stockholders they could.not be unless their subscriptions were binding) to nullify their contract by their own act, it would seem to be more than doubtful whether the stockholders in this corporation could have anything to do with fixing the capital stock. This would rather seem to be exclusively the province of the directors after the subscriptions were made. Section 2 of the charter, immediately following the provision that the capital stock “ shall not exceed two thousand shares,” goes on to say, “the immediate.government.and direction of the affairs of the company shall be vested in five, directorsand section 3 provides that “ the president and directors, for the time being, are hereby authorized and empowered to exercise all'the powers herein granted to the corporation.” To say the least of it, this reads much as if the exercise of all the faculties and powers of the corporation was exclusively vested in the board of directors. In any view of the question, the concurrence of the president and directors in the vote of the stockholders, fixing the amount of the capital, was necessary, in order to give that vote any validity or effect, especially the effect of the financial ruin of the corporation.</p> <p>IY. Even though it could be made to appear that the defendant’s subscription was on the condition that the maximum amount of stock which the corporation could hold should be subscribed for before valid assessments could be made, or that there was irregularity in the organization of the company; yet the defendant has waived both the condition and irregularity by his frequent presence at and participation in the business meetings of the company. N. H. Central B. B. Co. v. Johnson, 30 N. H. 390 and 407; Centre K. Turnpihe Co. v. M' Conaby, 16 S. & R. 140; Chester Class Manuf. Co. v. Dewey, 16 Mass. 94; Dutchess Cotton Manuf. Co. v. Davis, 14 John. Rep. 232; Little v. O'Brien, 9 Mass. 423 ; Hager’s Town Turnpike v. Creeger, 5 H. & J, 122; Union Turnpihe Co. v. Jenkins, 1 Cai. R. 381; Clark v. Navigation Co. 10 Watts, 664; Sheffield ¿f- Manchester Bailway Co. v. Woodcock, 7 M. & W. 578; Chittenham Bailway Co. v. Daniel, 2 Q. B. 281.</p> <p>It is therefore contended that the defendant is estopped from denying the validity of his subscriptions. N. H. Central B. B. Co. v. Johnson, 30 N. H. 390; Penobscot Bailway Co. v. Dwmmer, 40 Me. 172; Littleton Manufacturing Co. v. Parker, 14 N. H. 543; Contoocook Valley B. Co. v. Barker, 32 N. H. 363 ; Som. ‡ Ken. B. Co. v. Cushing, 45 Me. 524.</p> <p>The charge of the judge that the capital stock must all be subscribed before an action could be sustained for an assessment was correct. 1 Redfield on the Law of Railways, page 71 (5th edition); also pages 118, 187, 189, 190, and 191; Shurtz v. The S. ¿f- T. Bailway Co. 9 Mich. 269; The People v. The Troy House Co. 44 Barb. S. C. 625; Salem Mill Dam Co. v. Bojoes, 6 Pick. 23; also in 9 Pick. 187; Central Turnjoike Co. v. Valentine, 10 Pick. 142; Stoneham Branch Bailway Co. v. Gfould, 2 Gray, 277; Cabot $ West Springfield Bridge v. Chapin, 6 Cush. 50; Worcester $ Nashua Bailway Co. v. Hinds, 8 Cush. 110; Lexington West Cambridge B. Co. v. Chandler, 13 Met. 311.</p>

Defendant’s petition for a new trial. After the destruction by fire of certain insured property, the following agreement of adjustment was made by the parties interested : — Cavendish, Yt., Nov. 20, 1873.

<p>A statute of the state, enabling a city to introduce pure water, empowered the city to elect water .commissioners for a fixed term, and for such subsequent terms as the city might determine, to prescribe the duties and compensation of the commissioners, and to regulate the mode and causes of their removal from office. The city owned the water works, received rents for water, and controlled the use and distribution of the water. In an action against the city for damages resulting from an unsafe highway, the damage being caused by a stream of water thrown from a city hydrant across the highway by the employees of the water commissioners, —</p> <p>Held, that the water commissioners and their employees were the servants of the city, and that the city was responsible for their acts.</p> <p>A city or town charged with a public duty in consideration of valuable privileges is liable to an individual who suffers special injury from a neglect of the duty; and a city or town which derives an emolument from the exercise of powers conferred upon it is liable for the negligent or unskilful exercise of these powers by its agents, or for the neglect of a duty which is imposed by or results from the exercise of them.</p> <p>In such cases the officers engaged in the execution of the powers are to be regarded as the agents of such city or town.</p>

<p>Gen. Stat. R. I. cap. 195, §§ 26, 27, requiring security for costs from plaintiffs resident in the state, do not violate art. 1, § 5, of the Constitution of Rhode Island.</p> <p>Security for costs may he required of resident as well as non-resident plaintiffs under Gen. Stat. R. I. cap. 195, §§ 26, 27.</p> <p>An action in the Court of Common Pleas was dismissed because the plaintiff refused to give security for costs after order made.</p> <p>On a petition for certiorari: —</p> <p>Held, that certiorari was not applicable, the remedy being by appeal unless the amount in controversy was too small, which in this case did not appear.</p> <p>Want of property is good cause for requiring security for costs in a doubtful case.</p> <p>Query. In case of extreme poverty, when a resident plaintiff, with a just claim, cannot find security, whether a court would dismiss the case ?</p>

<p>Legacy to testator’s wife of four shares in the W. Manuf. Co. for her life, with gift over after her death, of one share each te five special legatees, three of whom were also residuary legatees. Pending the life estate the directors of the W. Company doubled the number of shares of capital stock, allotting one share of new stock to each share of old on payment of $750. Before this issue of new stock a share was worth from $2,500 to $3,000; after it, a share was worth from $1,800 to $1,900. On a bill in equity brought by one of the special legatees against the administrator, who had taken four new shares and pai'd for them out of the estate: —</p> <p>Held, as between special and residuary legatees, that the special legatee was entitled to so much of the value of the new share as grew out of the accumulated profit, to be ascertained, if necessary, by a master.</p> <p>Meld, further, that on payment by the special legatee of all the money paid by the administrator for a new share, the special legatee could have a share transferred to him.</p> <p>Held, further, that as to the fifth share given to the fifth special legatee, he was entitled to the value of a share or its equivalent in money, calculated on the value of the stock at the time the testator gave it.</p> <p>Semble, that in the present case any other construction would allow the directors of the W. Company to alter the testator’s will.</p>

<p>A fireman employed to tend an engine fire was called upon by the engineer to assist in throwing on a belt which worked a pump used to fill the boiler. The fireman being injured by the belt, brought an action for the injury received against the corporation which employed both the engineer and himself.</p> <p>Held, that if the fireman, although employed only for a fireman, was placed under the orders of the engineer, and was by him suddenly called upon to assist in throwing on a belt, out of his own sphere, but within the sphere of duty of the engineer, and was thus subjected to a risk with which he was not acquainted, or to a peculiar and greater risk at that time and of which he was not informed or cautioned, the defendant would be liable.</p> <p>Meld, further, that if the fireman was placed under the engineer as his superior, and this superior had a right to give orders in his department, the case did not come within the principle regulating liability in cases of fellow-servants, and that the engineer must be looked upon as representing the employer.</p> <p>Meld, further, that unless the plaintiff fireman had been instructed not to obey the engineer except in the line of the fireman’s employment, the engineer was authorized to call upon him for assistance in any matter within the engineer’s department, and the defendant would be liable, even if there was another person who might more properly be called upon.</p> <p>■Meld, further, that if the plaintiff fireman was instructed not to obey the engineer out of the line of his employment, and he'chose notwithstanding to obey, he could not hold the defendant liable.</p> <p>Meld, further, that if the throwing on and off of the belts was not within the engineer’s department, but was confined by the corporation to a belt fixer, the defendant would not be liable.</p> <p>Semble, that if the person injured was an inferior servant, and was injured by the negligence of a superior servant in the same department, e. g. if he had been placed under a superior fireman by whose neglect he had been injured, the liability would not have accrued, as it might then be argued that he must have known and calculated the risks of such employment.</p>

<p>In a petition in equity brought under Gen. Stat. E. I. cap. 167, § 7, for the sale of a trust estate:—</p> <p>Held, that all living persons who by any contingency might be entitled to the estate must be made parties, and that following the analogy of Gen. Stat. E. I. cap. 219, § 19, regulating partition by equity process and at law, the interest of persons not in being may be effectually represented by a person appointed by the court for this purpose.</p>

<p>An execution for costs against a plaintiff in trover issued against the body, and was served by arrest.</p> <p>Held, On petition for habeas corpus, that, as it did not appear that the imprisoned plaintiff was about departing from the state without leaving sufficient estate to satisfy the judgment, or that he had fraudulently concealed and detained or disposed of his property, the execution against the body was illegal.</p> <p>A judgment for the defendant for his costs is to be treated, whatever be the form of the action, as judgment for a debt.</p> <p>The word, “defendant,” in Gen. Stat. R. I. cap. 211, § 14, means defendant in execution.</p>

Debt on bond. On demurrers to pleas in abatement and of general performance.

<p>Statutory proceedings relative to opening highways.</p> <p>On motion to vacate decrees.</p> <p>The facts shown and the statutes involved in this case are stated in the opinion of the court.</p> <p>I. As to parties against whom, the commissioners’ reports have been confirmed at former terms of the court, a preliminary question is made that they are not properly in court upon the present applications.</p> <p>It is submitted that they are : —</p> <p>1st. The proceedings are still pending and subject to the control of the court. Compare Harris v. Hardeman, 14 How. U. S. 334, 345.</p> <p>a. The decrees entered are interlocutory only, e. g. if, while the proceeding is pending, the court, either upon the application of any party or of its own motion, should find such fatal irregularity as to quash the whole proceeding db initio (as In the Matter of Mt. Pleasant Avenue, 10 R. I. 320), it could not be contended but that all these intermediate decrees would fall with the proceeding itself.</p> <p>b. They are in the nature of decrees in equity, which, even when final and after enrolment, may be set aside at any time on motion, unless entered on hearing upon the merits. Freeman on Judgments, p. 70, § 100 ; Herbert v. Rowles, 30 Md. 271, and cases cited.</p> <p>2d. But even if regarded as final judgments at law, if irregular or void, they may be set aside at any time on motion, which is not only a common law power incident to every court when no other remedy exists, but in modern practice has superseded the ancient writs of audita querela and of coram nobis and coram vobis. Freeman on Judgments, p. 64, § 93 ; Harris v. Hardeman, 14 How. U. S. 334, 345, 346; Gannan v. Reynolds, 5 El. & B. 301; Shuford v. Gain, 1 Abbott U. S. .302 ; Gaper v. Stoughton, 16 Gray, 364; Marshal v. Merritt, 103 Mass. 45; Joynes v. Scott, 34 Md. 59; Taylor v. Sindall, 34 Md. 38; Franks v. hockey, 45 Yt. 395 ; Goivles v. Hayes, 69 N. C. 406 ; Grane v. Barry, 47 Ga. 476; Foreman v. Garter, 9 Kans. 674.</p> <p>Indeed, the statute recognizes this power in authorizing the court “ upon motion and for cause shown to stay execution upon any judgment or decree until further order.” Gen. Stat. R. I. cap. 211, sec. 5.</p> <p>II. As to the merits of the applications: —</p> <p>1st. These proceedings for condemning lands and making assessments for benefits for public improvements and the jurisdiction of the court over them are purely statutory, and the statutes existing at the time must be strictly followed, or the proceedings are coram non judice, irregular, and void. Thatcher v. Powell, ■6 Wheat. 119, 126, 127.</p> <p>2d. The act of January, 1854,1 empowered and required the commissioners, —</p> <p>a. As to parties whose lands were taken, to offset damages against benefits and benefits against damages, and to award or assess tbe difference only.</p> <p>b. As to parties benefited whose lands were not taken, to assess for such benefits, and they were to report both directly to the court.</p> <p>3d. The act of March 28, 1873, Pub. Laws, cap. 313, changes all this, and expressly, by sec. 13, repeals all inconsistent acts.</p> <p>a. It establishes (sec. 1), not merely authorizes, but directly creates and establishes a board of public works, an independent tribunal, to which in the first instance, the commissioners are (by sec. 7) directed to report their awards of damages.</p> <p>5. By sec. 7, the power to make assessments for benefits is taken from the commissioners and vested in this board of public works alone.</p> <p>And the commissioners are thereafter directed to award full damages for lands taken without deductions for benefits.</p> <p>O. This act carefully distinguishes between powers directly and exclusively vested in this board by the act itself, and other powers which the city council may or not confer upon it as they elect.' Compare secs. 2, 3, 7, and 11.</p> <p>4th. It follows of necessity that all proceedings of commissioners after March 28, 1873, in making assessments for benefits, and their reports of such assessments to this court, and all actions and decrees of this court in reference thereto, have been entirely without jurisdiction, irregular, and void. Compare Freeman on Judgments, pp. 89, 90, § 120 ; Fithian v. MoncTcs, 43 Mo. 502; Beilley v. Lancaster, 39 Cal. 354; Boswell v. Dickerson, 4 McLean, 262; affirmed, 9 How. U. S. 336.</p> <p>1. The court has no jurisdiction over any of these applications; because there is no application properly before the court. See Gen. Stat. R. I. cap. 210, § 2; Vaughan v. Allen, 3 R. I. 122.</p> <p>II. If, however, any of these applications are properly before the court, the relief prayed for cannot be granted, because: —</p> <p>The power of courts over their own judgments and" records, at a term subsequent to the rendition of such judgments is limited, —</p> <p>To the correction of clerical mistakes, misprisions of the clerks, or to making of - such amendments as shall cause the records to conform to the truth. Sibbald v. United States, 12 Pet. 488 ; Washington Bridge Oo. v. Stewart, 3 How. U. S. 413 ; Shepard v. Wilson, 6 How. U. S. 260; Wood v. Luce, 4 McLean, 254; Smith v. Hartwell, 4 McLean, 206 ; Brush et al. y. Durham, 4 McLean, 486.</p> <p>Or where there has been- no service of process so as to give the court jurisdiction. Hx parte Crenshaw, 15 Pet. 119 ; Harris y. Hardeman, 14 How. U. S. 334.</p> <p>III. Courts of last resort have no power to review their own decisions and judgments, except as provided by statute, and after the expiration of the term at which a judgment is rendered it becomes final and conclusive. Bank of United States v, Moss, 6 How. U. S. 31, and cases cited; Sibbald v. United States, 12 Pet. 488; also in 2 How. U. S. 455; Washington Bridge Co. v. Stewart, 3 How. U. S. 413 ; Noonan v. Bradley, 12 Wall. 121; Cameron v. M'Roberts, 3 Wheat. 591; McMicken.v. Rerin, 18 How. U. S. 507 ; Richardson v. Hunt, 7 R. I. 543 ; Crab-tree v. Webb, 1 Bond, 554; Hx parte Sims, 44 Ala. 248; Hx parte Morris, 44 Ala. 361; Hx parte Lange, 18 Wall. 163 ; Comparet v. Hanna, 34 Ind. 74; McNitt v. Turner, 16 Wall. 352 ; Thatcher v. Cannon, 12 Mass. 268 ; Dutchess of Kingston's case, 2 Smith’s Leading Cases, 761 to 828.</p> <p>IV. The court must be presumed to have passed upon all questions necessary to be determined before entering the decree of confirmation, including the question of the supposed repeal of portions of the act entitled “ An act in relation to the laying out, enlarging, straightening, and otherwise altering streets in the city of Providence,”1 by the enactment of Pub. Laws, cap. 313, March 28, 1873: “An act establishing a board of public works in the city of Providence.” Aurora City v. West, 7 Wall. 82 ; Miller v. United States, 7 Wall. 268.</p> <p>V. As a necessary result of the fourth proposition, the court must be presumed to have passed upon the question of the power of these commissioners to make assessments, and further, i. follows that if they were technically disqualified to make such assessments, the final judgment of the court cured all such defects of detail, as it clearly appears that such assessments were to be made by some board.</p> <p>VI. Courts will take judicial knowledge of powers of a public nature, conferred by statute upon a municipal corporation though the act be not in terms declared to be a public one. Fauntleroy v. Hannibal, 1 Dillon, 118.</p>

<p>Petition in equity for the enforcement of a mechanic’s lien. The facts are stated in the opinion of the court.</p>

Exceptions to the Court of Common Pleas. This case was an action of trover, originally brought in the justice court of the city of Providence and appealed to the June Term of the Common Pleas, 1874. It appears from the record that the plaintiffs, being copartners, put a wagon into the hands of the defendant for sale, in the summer of 1873.

<p>Plaintiff’s petition for a change of venue.</p>

<p>What particularity and certainty are required in a probate petition for the appointment of a guardian on account of want of discretion in the ward, and in the citation theieon.</p> <p>A probate court ordered service of a citation in two forms : —</p> <p>Meld, that service made in one form was sufficient, unless the court insists upon absolute compliance with its order, the statute requiring notice in one form only to confer jurisdiction.</p>

<p>Defendant’s petition for new trial.</p>

Trespass and ejectment. The facts and the previous proceedings in these cases are given in 10 R. I. 184 sq. As there stated the cases were heard at the March Term, 1872, for the County of Providence, upon demurrers to the replications.

Bill in equity brought by Isaac P. Hazard, a stockholder in tbe Credit Mobilier of America, on behalf of himself and such other stockholders in said corporation as might become parties, against Thomas C. Durant, charging him with the fraudulent conversion of funds belonging to the corporation.

Bill in equity to enjoin the respondents from filling a dock adjoining the complainant’s wharf in Newport, and from obstructing the said dock, and access to the said wharf from the sea; for a decree ordering the respondents to remove the obstructions already placed by the respondents in the said dock, and for general relief.

<p>Testamentary disposition as follows, the estate being for the most part realty : “ I give, devise, and bequeath all the rents, profits, dividends; or income of my estate, real or personal, to my six sons, or’ to those who represent them legally : to wit, William L., Stephen H., Albert S., deceased, Thomas W., Henry E., and Edwin L., until the decease of the last of my said sons aforesaid, to be divided equally among them, or those who legally represent them, the representatives taking the portion only of him the}' represent. At the decease of the last of my said sons as aforesaid, I give, devise, and be" queath all my estate, both real, personal, or mixed, to all my grandchildren, to be equally divided among them, their heirs, and assigns forever, in fee simple. I direct my executor, hereinafter named, to pay all my just debts and necessary expenses out of the property aforesaid, and to pay all taxes and repairs which are absolutely necessary, and to divide the rents, profits, and income of the real and personal property as aforesaid. I hereby appoint my eldest son, William L. Branch, my executor.”</p> <p>Held, to constitute a trust of the realty and personalty.</p> <p>Query, whether the legal title of the realty vested in the executor.</p> <p>The executor having died and an administrator de bonis non with will annexed succeeding him: —</p> <p>Held, that this administrator did not have the powers over the realty given to the executor by the will.</p> <p>Held, further, that this administrator having exercised these powers, with the assent of the cestuis que trust, was not accountable to the Probate Court for the rents, &e., received. Held, further, that this administrator could not use personalty to repair realty.</p> <p>An administrator succeeding an executor takes only the powers inherent in the executor’s office. Special powers given the executor do not go to such an administrator, unless the will explicitly or implicitly continues them to such administrator.</p> <p>The administrator being removed pending an appeal and a new one appointed ; the court held that it would confine its consideration on the appeal to the account appealed from, as it was when presented for settlement.</p> <p>The account presented not being a final one, the court refused to allow interest for the time after its presentment, or after the period covered by it, such interest being a matter for subsequent accounting.</p> <p>Sureties on the bond of an executor or an administrator may appeal from the decree of a Probate Court, fixing the balance due to the estate of the testator or intestate.</p>

<p>^ s*a*'ute ™ f°roe provided that “Whenever any child shall be born after the execution ^'s ^a**ler’s or mother’s will, without having any provision made for him in such will, he shall have a right and interest in the estate of his father and mother in like manner as ^ ^e father or mother had died intestate, and the same shall be assigned to him accordingly.” A testator, by his will, gave a bequest of $2,000 in trust, the income to be used for his daughter until twenty, or until married, then the trust fund to said daughter. In case, however, of her death under twenty or unmarried, the sum so held in trust, together with the accumulated interest thereon, was bequeathed in equal shares to her brothers and sisters then living. More than a year after the execution of the will a son was bom to the testator, for whom no provision was made in the will except the abo ve described contingency.</p> <p>Held, that the provision was not such as was contemplated by the statute, and that the son was entitled to share in his father’s estate as in case of an intestacy.</p> <p>A general pecuniary bequest in lieu of dower is not subject to abatementi’ro rata with the other pecuniary bequests in case of insufficient assets.</p> <p>Semble, that in case of an insufficient personalty the realty may be charged by implication with the payment of debts and legacies.</p> <p>Held, that in case of such charge the executor is not obliged to enforce it in favor of the legatees.</p> <p>Query. Whether an implied lien on realty for payment of debts and legacies empowers the executor to sell realty in Rhode Island without resorting to an equity court.</p>

<p>An award which is made under a material mistake of fact should be set aside.</p>

<p>The three villages of Globe, Bernon, and Hamlet were originally part of the town of Smith-field, and were organized as independent school districts. ,*</p> <p>When these districts were set off from Smithfield and annexed to Woonsocket, they retained their original district organization, suffering no change except that of name, the Globe District henceforth being known as Ho. 8, Bernon as Ho. 9, and Hamlet as Ho. 10. At a legal meeting of the School Committee of Woonsocket, held June 6,1873, it was voted, “ that District Ho. 10 at Hamlet be, and it is, discontinued; also, that the boundaries of District Ho. 9 be established so as to include what formerly belonged to both Hos. 9 and 10.”</p> <p>Meld, that the School Committee had power to take this action.</p>

<p>Title to land between Custom House Street and Aborn’s Gangway in the city of Providence.</p> <p>On a bill in equity praying for an injunction to prevent tbe obstruction of a strip of land forty feet wide extending from Custom House Street, formerly Long Wharf Street, to Aborn’s Gangway, which strip was claimed as a private way under a parol contract made in 1851 between the adjoining owners:</p> <p>Part performance by the complainant and notice to tbe defendant being alleged:</p> <p>Beld, on the evidence adduced, —</p> <p>No contract proved for the private way claimed in the bill.</p> <p>No contract proved for the private way on tbe strip forty feet wide, but this strip is held by the complainant and defendant as tenants in common.</p>

<p>The Court of Common Pleas has power to enforce, by imprisonment, an order made under Pub. Laws, cap. 288, March 19, 1873, of bastardy.</p>

<p>Petition for a writ of mandamus.</p> <p>The board of aldermen of the city of Providence refused the prayer of the petitioner for the appointment of “ three suitable and indifferent men,” as required by Gen. Stat. R. I. cap. 60, § 38, alleging that the petitioner, being a tenant by parol from year to year, was not entitled to compensation as an “ abutting owner,” for damages arising from a change of grade, made on Wickenden Street. On this refusal the petitioner, claiming damages for injury received by him as tenant, prayed that a writ of mandamus might issue to the board of aldermen compelling them to appoint “ three suitable and indifferent men,” &c., as provided by Gen. Stat. R. I. cap. 60.</p>

Exceptions to the Court of Common Pleas. The facts are stated in the opinion of the court. in support of the exceptions, cited Providence Tool Co. v. Corliss Steam Engine Co. 9 R. I. 564, and cases therein referred to; Brown v. Rhodes, 1 C. & M. 438. 1. The grant of a right of way was necessarily implied. Kenyon v. Nichols, 1 R. I. 417; Washburn on Easements, *42, *44, *48 ; Bunkler y. Wilton R. R. Co. 24 N. H. 489. 2. The reservation in Coyle’s deed created an easement.

<p>B. deposited in a savings bank certain moneys in his own name as trustee for R. B.' gave the bank-book to R., who returned it to B., in whose control it remained. B. was childless. R. was his step-daughter. It was in evidence that B. was a man of few words, and that he treated R. as his daughter.</p> <p>In an equity suit by R. against the administrator of B. claiming the deposit as trust funds held by B. for R.: —</p> <p>Held-, that the trust was completely constituted.</p> <p>Held, further, that the trust being constituted, the fact that it was voluntary was no reason for refusing relief.</p> <p>To constitute a trust it is enough if the owner of property conveys it to another in trust, or if the owner of personalty unequivocally declares, either orally or in writing, that he holds it in pnesenti, in trust for another. .»■</p> <p>A bill in equity'to enforce a trust brought against an administrator alleged that the respondent as administrator withdrew a bank deposit, being the trust funds in question. The answer alleged the respondent’s appointment as administrator in Massachusetts, and that as such he withdrew the deposit and held the same as part of his decedent’s estate:—</p> <p>Reid, in the absence of denial by the administrator that he held the deposit as administrator in Rhode Island, that the court would presume lie held it as administrator in Rhode Island, and would order him to account directly with the complainant, the trust having been proven.</p>

<p>An administrator cannot bring suit against himself to recover a debt due to him from his intestate.</p>

Bill IN equity for specific performance. The facts are sufficiently stated in the opinion of the court. The respondents demurred to the bill.

Exceptions to the Court of Common Pleas. This action was assumpsit brought in the Court of Magistrates of the City of Providence, carried by appeal to the Court of Common Pleas, and brought into this court by the defendant’s exceptions.

<p>Motion for an order of the court to compel a garnishee to answer questions filed.</p>

<p>Bill in equity brought by the surviving copartners of the firm of Philip Allen & Sons against the respondent corporation, charging that there had existed between the respondent and 'the complainants a copartnership to carry on the business of calico printing. The prayer of the bill was for an account and settlement. The facts as found by the conrt are sufficiently stated in its opinions.</p>

Motion to amend the declaration. In this case the declaration was indebitatus assumpsit, upon promises to the plaintiff, who was described in the declaration as “ assignee of Walter W. Salter and Max F. Greene, both of said New York, copartners, as W. W. Salter & Company.” The plaintiff moved for leave to amend the declaration by substituting for the name and description of the plaintiff the words, “ W. W. Salter and Max F. Greene, both of the city, county, and State of New…

<p>Exceptions to the Court of Common ‘Pleas.</p>

<p>Agreement between A. and B. by which A. agreed to build five houses for B. at actual cost, to be completed, &c., and the houses and the lots whereon they were built to be sold, and the proceeds of the sale, after deducting the cost of the houses and the value of the land rated at five cents a foot, and other expenses, to be divided between A.and B.: —</p> <p>Held, that if this agreement could be construed as a partnership at all, it was one for disposing of the houses and land, not for building them.</p>

<p>While an exchange o£ realty was negotiating between A. and B., B., a broker already in the employ of A., acted forB. without, so far as appeared, the knowledge of A.: —</p> <p>Held, that B. could not recover for his services to B., notwithstanding an express agreement on the part of B. made before the exchange to pay commissions to B., and notwithstanding a promise made by B. after the exchange to pay a fixed sum to B.</p> <p>A broker acting at once for both vendor and purchaser assumes a double agency disapproved of by law, and which, if exercised without the full knowledge and free consent of both parties, is not to be tolerated.</p>

<p>A statute authorizing the court to grant a new trial in a criminal cause, provided, application therefor shall he made within one year after such cause shall have been tried or decided: —A petition for a new trial was presented and refused. Two years after the refusal, and five years after the conviction of the petitioner, a motion was made to reargue the petition: —</p> <p>Seld, that the motion was equivalent to a petition for a new trial, and was made too late.</p> <p>Seld, further, that, if the words of the statute, “or decided,” are construed to refer to the decision on the petition for a new trial, written motion filed within a year after such decision is, after the close of the term at which such decision was made, the only allowable procedure.</p> <p>Query. Whether on oral motion made during the term at which the petition was refused, a reargument would have been allowed.</p> <p>In an indictment for embezzlement, or in one for aiding and counselling embezzlement, the day named for the commission of the offence is not material, and evidence may be given referring to any other day before the finding of the indictment.</p> <p>An accused indicted for embezzlement will, on application to the prosecutor, be informed of the specific acts to be proven against him. This information, if refused, may be ordered by the court.</p> <p>Arrangements for embezzlement by the fraudulent issue of checks were made between C., the aiding and abetting accomplice, and B., the principal, September 21. The embezzlement was consummated by cashing the checks September 24: —</p> <p>Meld, that C.’s offence was continuous from the arrangements of the 21st to the consummation on the 24th.</p> <p>Note by the Reporter. — The decision above referred to, given at the March Term A. d. 1873, dismissing Cushing’s petition for a new trial, was not printed at that time. It is therefore published in connection with the foregoing opinion, and is as follows: —</p>

<p>Appeal from tbe Probate Court of Providence.</p>

<p>Bill in equity for an account.</p>

<p>Case. On demurrer to plea.</p>

Bill in equity to compel the transfer of certain corporate stock. The complainant purchased of Hiram B. Aylsworth, administrator of the estate of Emanuel Rice, six shares of the capital stock of the respondent corporation. The transfer of this stock was refused by the respondent.

<p>Land bordering on tide water was platted into house lots, some of which extended below low water-mark, all the lots being defined shoreward by a fixed line, outside of which no lots were platted. Conveyance of these lots was made, and subsequently a harbor line was fixed by the state, running in front of the lots: —</p> <p>Held, on a trustee’s bill for instructions, —</p> <p>a. That the fee of the soil below high water-mark was in the state.</p> <p>b. That the establishment of a harbor line was permission given by the state to fill out to it.</p> <p>c. That a grantee of a lot touching tide water who fills out to the harbor line holds the filled land, not under his grantor, but directly from the state.</p> <p>d. That the land between high water-mark and any lot not touching high water-mark, with the right to fill to the harbor line, did not pass by the conveyance made.</p> <p>A trustee’s bill for instructions is not a proper proceeding to settle a disputed title to realty.</p>

Petition for a writ of habeas corpus. The facts are stated in the opinions of the court. contra, cited Marcy v. Clark, 17 Mass. 330 ; Stedman v. Eveleth, 6 Met. 125 ; Richmond v. Willis, 13 Gray, 182; Curtis v. Marlow, 12 Met. 3.

<p>Petition in equity for the appointment of a trustee. The facts are stated in the opinion of the court.</p>

<p>On a bill in equity for partition between two tenants in common, the estate of one being unincumbered and that of the other being subject to various mortgages covering the mortgagor’s undivided interest in various parcels: —</p> <p>Held, that a decree of partition could not extend any mortgage to property not described and included in such mortgage.</p> <p>Held, further, that the aggregate parcels covered by each single mortgage of the one tenant in common must, for purposes of partition, be considered as one separate estate.</p> <p>Held, further, that as between tenants in common a sale or mortgage by one of them is valid, provided such sale or mortgage covers the vendor’s or mortgagor’s interest in the whole of any separate parcel or estate, notwithstanding the tenancy in common may extend to other parcels or estates.</p> <p>Of two tenants in common one mortgaged his interest in the common estate to the other and no entry or foreclosure has taken place : —</p> <p>Held, the mortgagee can have partition in equity.</p> <p>When owelty is required to equalize partition between two tenants in common, the estate of one being mortgaged, it should, if to be paid by the unincumbered owner, be paid to the mortgagee of the other and credited on the mortgage note.</p>

<p>Bill in equity to determine a title.</p>

<p>Statutory proceedings relative to opening highways.</p> <p>Petitions for jury trials to determine the amount of damages due to the petitioners.</p>

<p>One If. made his promissory note to the order of Senior. It was indorsed by Senior, and subsequently by Stone, and by the A. Co. by Stone, treasurer. It passed into the possession of the Bank of America and was taken up by Stone, who brought suit on it against Senior in the name of the bank. At the trial, evidence was admitted by the presiding judge, notwithstanding Senior’s objection, to show that Stone had paid the note to the Bank of America in full, and had left it for collection with the bank, and that the bank authorized Stone to bring suit in its name. Senior also requested the judge to instruct the jury that as the note had been paid to the bank in full, it could neither bring suit on the note nor authorize Stone to do so in its name. This instruction was refused, and the jury was told that if the facts,*as claimed by the plaintiff, were satisfactorily proved, the plaintiff could recover.</p> <p>Held, no error.</p> <p>In an action on a promissory note against an indorser, it is not necessary for the plaintiff to allege in his declaration indorsements subsequent to the defendants, where the plaintiff does not sue upon any title derived through such subsequent indorsements.</p> <p>A formal error is not a sufficient reason for a new trial.</p>

<p>Dowek. On commissioners’ application for instructions.</p>

<p>A receiver of a bank appointed under Gen. Stat. R. I. cap. 140, may bring suit in bis own name for a debt due to tbe bank.</p>

<p>Covenant in a lease whereby the lessee covenants* “ to pay the taxes of every name and kind that should be assessed on the premises at any time during the said term ”: —</p> <p>Held, not to cover an assessment for benefits accruing from street improvements, made under the act of January, 1854, relating to the laying out, &c. of streets in Providence.</p>

<p>Petition in equity to correct a final decree in partition.</p>

<p>Prior to the enactment of Gen. Stat. R. I. cap. 224, § 12, Justice Courts had no jurisdiction in replevin when the goods replevied exceeded fifty dollars in value.</p>

<p>Bill in equity. On motion to amend the bill. The facts are stated in the opinion of the court.</p>

Bill in equity charging that the complainants used a ticket ■containing the words “ Stillman & Co.” as a trade-mark for their woollen goods, and that the respondents, manufacturers of woollen goods, some of which were like those of 'the complainants and some inferior to them, used on their goods a ticket resembling the complainants’ ticket, and containing the words “ Still-man Mills,” with intent to defraud the complainants and the public.

<p>ASSUMPSIT. The facts are stated in the opinions of the court.</p>

<p>Under a statute providing that‘‘every person . . . .-who shall be guilty of dealing‘faro,’ or banking for others to deal ‘faro,1 or acting as lookout, game-keeper, or assistant for the game of ‘faro,5 or any other banking game where money or property is dependent on the result, shall be taken and held to be a common gambler,5’ an indictment was found charging that one M., “ on the 15th day of August, a. d. 1875, at Providence, in said county, ‘ did deal “ faro,55 a certain banking game where money and other property was then and there dependent on the result ; whereby and by force of the statute in such case made and provided, the said M. was then and there taken and held to be a common gambler,5 against the form,” &c., &c.:—</p> <p>Held, that the offence was duly charged.</p> <p>Held, further, that proof of a single offence was sufficient to support a verdict of guilty.</p> <p>It is sufficient if an indictment so charges an act forbidden by statute as to exclude any assumption that the indictment may have been proved, and the accused still be innocent.</p>

<p>Petition in equity praying for the appointment of a new trustee.</p>

<p>Appeal from the Probate Court of Pawtucket.</p>

<p>A statute being in force providing that “No attachment of property shall be made upon mesne process, unless an affidavit of the plaintiff, or of some person in his behalf, shall be indorsed on the writ, setting forth that the plaintiff has a just claim or demand against the defendant, upon which he has a reasonable expectation of recovering in said action a sum sufficient to give jurisdiction thereof to the court to which said writ is made returnable, and that the defendant has property which he does not intend to apply to the payment of the plaintiff’s claim ”: —</p> <p>The plaintiffs sued out a writ of attachment with the following affidavit indorsed thereon: “I, C. C. G., oneof the plaintiffs, and in behalf of the plaintiff copartnership named in the within writ, make affidavit and say, that I verily believe we have a just claim or demand against he defendant named in said writ, upon which we have a reasonable expectation of recovering in said action a sum sufficient to give jurisdiction thereof to the court to which said writ is made returnable; and that the defendant has property which he does not intend to apply to the payment of our said claim.</p> <p>“(Signed) C. C. G.</p> <p>“ Subscribed and sworn to,” &c.: —</p> <p>Held, that the affidavit was insufficient and the attachment void; the.words, “Iverily believe,” not importing the certainty required by the statute.</p> <p>A garnishee cannot be held if the original attachment served on him is void, notwithstanding judgment has been obtained against the debtor defendant.</p> <p>If a writ is served by summons and by foreign attachment, the court having jurisdiction of the case by virtue of the summons cannot, in the original action, consider the validity of the attachment.</p>

Motion to stay execution. A. Houghton and C. J. Allton, copartners, as Houghton & Allton, brought an action against F. W. Whipple, May 8, 1876, in the Court of Common Pleas, Providence County, the writ being served by attachment on that day. Final judgment against Whipple was rendered on appeal in this court, at its October Term, 1876, and execution issued and was levied on the attached property, which the sheriff advertised for sale, to be sold February 5, 1877.

<p>The assignee of a fractional part of a residuary interest under a will may appeal from a decree of a Probate Court affecting the testator's estate.</p>

<p>A statute being in force providing that “where the husband and wife, being of lawful age, are seised of any lands, tenements, or other real estate in the right of the wife, they shall be authorized to convey the same by deed or other instrument in writing, signed, sealed, and delivered by them, respectively,” a deed was given, drawn as the individual deed of a married woman, throughout the premises, granting and covenanting parts down to the attestation clause, which was, “In testimony whereof, we have hereunto set our hands and seals, this 11th day of April, A. d. 1867.” The deed was signed, sealed, and acknowledged, by both husband and wife, the wife’s acknowledgment being separately taken: —</p> <p>Held, that the deed was a nullity.</p>

<p>Debt. On motion to dismiss.</p> <p>The defendant died after this action, which was debt, had been commenced. His legal representative appeared, set forth that the estate had been represented insolvent, and that commissioners had been appointed under Gen. Stat. R. 1. cap. 175, objected to the further prosecution of the action, and moved that it be dismissed, referring to various sections of chapter 175 in support of his motion.</p>

<p>Plaintiee’s petition for a new trial. The facts are stated in the opinion of the court.</p>

<p>Assumpsit, tried by tbe court, jury trial being waived. The facts are stated in the opinion of the court.</p> <p>A person cannot purchase and hold for his own benefit, as a matter of speculation, a policy of insurance on the life of another in whose life he has no insurable interest.</p> <p>Nor can a policy, valid in its inception, issued to one holding an insurable interest, be assigned to one holding no such interest so as to sustain an action in favor of the assignee. FranJclin Life Ins. Co. v. Hazzard, 41 Ind. 116 ; Stevens, Adirír, v. Warren, 101 Mass. 564 ; CammaoJc v. Lewis, 15 Wall. 648.</p> <p>A policy may be assigned to a creditor of the insured, he having an interest in the life of the insured.</p> <p>Upon the death of the insured the creditor may collect the policy, but must account to the representatives of the deceased for any surplus above his debt and advance for premiums or otherwise.</p> <p>The cases of St. John v. Am. Mut. Life Ins. Co. 13 N. Y. 31, and Valton v. Nat. Fund Life Ins. Co. 20 N. Y. 32, seem to hold that a policy.valid in its inception may be assigned for value to one having no interest in the life of the insured, and the assignee be entitled to collect the whole amount: that is to say, from the insurers. They do not decide that the assignee of the policy would not be obliged to account to representatives of the insured for any surplus received over amount advanced by him. The later case of Reese v. Mutual Life Ins. Co. 23 N. Y. 516, practically overrules the cases cited from the 13 and 20 N. Y. This case in 23 N. Y. decides that one procuring insurance upon the life of another, if he had-no interest in the life of the insured, cannot recover. The statute of 14 Geo. III. cap. 48, which was passed to remedy the mischief of gambling and wagering policies, the court says was merely declaratory of the common law.</p> <p>We especially refer this case to the consideration of the court, as, with the cases cited under first point, furnishing clear rules to dispose of the present case. Certainly it would be a singular conclusion to say that A. cannot procure a policy on the life of B. having no interest in the life of B., but that he might arrange with A. to take out a policy for $5,000, and then A. purchase the policy for a nominal sum. If the first is a speculating and wagering policy so is the last. See also 3 Kent Comm. * 368-9 ; May on Insurance, §§ 110, 398, and cases cited; § 75, note. See also Mowry v. Home Life Ins. Co. 9 R. I. 346.</p> <p>The principles applicable to fire insurance should be applied to life insurance cases, as in case of a mortgagee’s interest in a policy, whether insurance be by mortgagor and made payable to mortgagee, or assigned to mortgagee, or the mortgagee insures his interest as mortgagee. In all these cases his interest in the policy is, only commensurate with his debt. If th.e mortgagee insures his interest directly, he can only recover to the extent of his debt. If the mortgagor insures his interest in the property and makes the policy payable to the mortgagee, or assigns it to the mortgagee as security; upon collection by the mortgagee for the loss he must pay over any excess to the mortgagor.</p> <p>Where the mortgagee insures directly he can only recover to the extent of his debt. Carpenter v. Washington Ins. Co. 16 Pet. 495; Angelí on Insurance § 59; Phillips on Insurance, vol. 1, § 288 et seq.; vol. 2, §§ 1511 and 1712.</p> <p>Insurance by mortgagor payable to mortgagee in case of loss, or assigned to mortgagee as further collateral security in case of loss, and recovery by mortgagee of amount in excess of debt, makes him a trustee of the mortgagor for the balance. If the debt is paid, the mortgagor is entitled to the whole amount collected. Smith v. Packard, 19 N. H. 575 ; Roberts v. Traders' Ins. Co. 17 Wend. 631.</p> <p>I. A policy of life insurance is not a contract of indemnity, but a contract for the payment of a definite sum at a definite time, supported by a full adequate consideration, to wit, the premium which is the agreed, exact equivalent of the risk assumed. Dolby v. The India London Life Ins. Co. 15 C. B. 365, overruling Gcodsall v. Boldero, 9 East, 72; see Bawls v. Amer. Life Ins. Co. 36 Barb. S. C. 357 ; also, on appeal, 27 N. Y. 282, and cases infra. See also Mowry v. Home Life Ins. Co. 9 R. I. 354.</p> <p>Hence contracts of marine and fire insurance furnish no analogy. These being mere contracts of indemnity, the interest of the insured must exist not only at the inception of the risk but also at the time of the loss. Though, even here, if a mortgagee or a consignee who has made advances insure his own interest alone, he is not accountable for the amount received on the loss to his mortgagor or consignor. King v. State Mut. Fire Ins. Co. 7 Cush. 1; Bank of South Carolina v. Bicknell Skinner, 1 Cliff. 85.</p> <p>II. It is not necessary, therefore, that the party for whose benefit the insurance is effected should have- any interest in the life insured.</p> <p>The contract at common law, and in the absence of any prohibitory statute, is entirely valid. Trenton Mut. Life Ins. Co. v. Johnston, 24 N. J. Law, 576 ; Campbell v. Mut. Life Ins. Co. 98 Mass. 381.</p> <p>The cases in Massachusetts well illustrate the successive steps by which the court of that state, when the case arose (as above, in 98 Mass.), finally affirmed this doctrine. See Lord v. Dali, 12 Mass. 115, where a brother insured for the benefit of a sister dependent on him for support. Loomis, Adm\, v. Fagle Life</p> <p>Health Ins. Co. 6 Gray, 396, where a father insured the life of his minor son nearly of age. Forbes v. Amer. Mut. Life Ins. Co. 15 Gray, 249, where the husband • of the sister of the insured has insurable interest, — precisely the relation of the parties in this case. This relation of itself, therefore, sustains this assignment.</p> <p>III. But it follows, therefore, that a sale of a life policy, with the assent of the company, at least for an actual valuáble consideration, like that of any other chose in action, is a perfectly valid and unimpeachable transaction, and vests the absolute property in the purchaser. Ashley v. Ashley, 3 Sim. 149 ; Grodsal v. Webb, 2 Keen, 99; St. John v. Am. Mut. Life Ins. Co. 2 í)uer, 419; and on appeal, 13 N. Y. 31 ; Vdlton v. Hat. Fund Life Ins. Co. 20 N. Y. 32.</p>

<p>Action against A. for work done for B.: —</p> <p>Held, that if any credit is given to B., the action against A. cannot be maintained without a contract in writing.</p>

<p>A statute being in force providing that “all highways .... lying and being within the bounds of any town, shall be kept in repair and amended, from time to time, so that the same may be safe and convenient for travellers with their teams, carts, and carnages, at all seasons of the year, at the proper charge and expense of such town, under the care and direction of the surveyor of highways for such town.” .... “Such town shall also be liable to all persons who may in any wise suffer injury to their persons or property by reason of any such neglect; to be recovered in an action of the case, to be brought against the town or towns which are bound to keep said road or bridges in repair as aforesaid.”-The city of Providence, under authority given it by the legislature of the state, built by contract a sewer in Washington Street, a highway in said city. The street was obstructed and rendered impassable during and by the construction of this sewer. W., a grocer doing business on the obstructed part of the street, sued the city for loss of profits and increased expense and trouble in the conduct of his business caused by the obstructions in the highway, claiming that the work of construction had been unduly and unnecessarily prolonged. At the trial the court instructed the jury that if the work was done with reasonable care and diligence, taking no more time than was necessary, the plaintiffs, though seriously injured, could not recover at all; but that, if there was unreasonable delay in doing the work, and, during this delay, access to the plaintiffs’ store was cut off or obstructed, in the manner described, there was an injury to the plaintiffs for which they could recover damages ; but only for the prolongation of the obstruction beyond what was reasonably necessary: —</p> <p>Held, that there was no error in the instruction.</p> <p>Held, further, that the injury complained of was not one common to the plaintiff and the rest of the public.</p> <p>Held, further, that the act of the legislature, authorizing the construction of the sewer, implicitly remitted the duty of keeping the highway where the sewer was building “safe and convenient,” but that this implied remission was only for such time as was reasonably necessary for the work.</p> <p>Held, further, that the city, by á contract for its own benefit, could relax the obligation of a duty imposed on it by statute for the public benefit.</p>

<p>A municipal ordinance required the removal of snow, &c., from sidewalks, by the owner of the adjoining premises, and prescribed a penalty for neglect. II., being injured by a fall on a sidewalk, slippery with snow which had not been removed, sued S-, the owner of the adjoining premises, claiming that S. was liable in damages to H. on account of the violation of the ordinance by S. : —</p> <p>Held, that the action would not lie.</p> <p>The violation of a duty imposed by a municipal ordinance, and sanctioned by a fine, will not support an action on the case for special damages in favor of one injured by the violation and against the violator.</p> <p>The power to enact ordinances being delegated must be strictly construed.</p> <p>Semble, that where a statute imposes a duty, unless the duty is for the benefit of particular persons or classes, or is in consideration of some emolument or privilege conferred, a person damnified by the violation of the duty cannot maintain an action on the case against the violator for special injuries caused by the violation, — the only liability arising from the violation of such a duty being the penalty prescribed by the statute.</p> <p>Query. How far does a liability upon a statutory duty arise from Stat. Westm. II. cap. 50 ?</p> <p>Note by the Rbpoktek.— See Amer. Law Review, vol. 12, pp. 189,101, October, 1877, for comments on this.case.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>Trover for the conversion of a horse, buggy, and harness originally brought in the Justice Court of the city of Providence, and appealed by the plaintiff to the Court of Common Pleas. The writ was dated April 24, 1874. The defendant pleaded the general issue.</p> <p>At the trial in the Court of Common Pleas, after the evidence had been closed, the plaintiff requested the presiding judge to charge the jury as follows : —</p> <p>1. When a livery stable-keeper, in the exercise of his ordinary calling, lets a horse and buggy to be driven to a particular place on Sunday, not being called for either by necessity or charity, and the hirer drives them to another place, such use of said property amounts to a conversion thereof by the hirer, for which he will be liable in an action of trover, if the contract of hiring need not be and is not proven as a necessary part of the plaintiff’s case.</p> <p>2. A person who hires a horse and buggy of a livery stable-keeper on a week day to drive to a particular place on Sunday for pleasure, and drives to another place, is liable in trover for the conversion of them.</p> <p>The judge refused so to charge; but did instruct the jury that if the plaintiff, in the exercise of his ordinary business or calling, agreed on a week day to let his horse and buggy to the defendant to be used on Sunday, and not in a case of either necessity or charity, and did, pursuant to said agreement, deliver such horse and buggy to the defendant on Sunday, it was a contract made in violation of law; and that therefore the plaintiff could not sustain an action of trover for the conversion of the property by the defendant’s driving it to a different place from that specified in the contract of hiring; and that the ability of the plaintiff to establish his case without proving the illegal contract was immaterial, if the illegal contract appeared from the whole testimony in the case.</p> <p>The plaintiff excepted, and, after verdict for the defendant, brought his exceptions as allowed to this court.</p> <p>The two questions raised by the bill of exceptions are: 1. Whether a livery stable-keeper who, in the exercise of his ordinary calling, lets a horse and buggy to be driven to a particular place on Sunday for pleasure, can maintain an action of trover against the hirer who drives them to another place and injures them ; and 2. Whether he can maintain such action, if the contract of hiring need not be, and is not, proven by the plaintiff as a necessary part of his case.</p> <p>The only grounds upon which the plaintiff’s right to redress has been denied in this class of cases are, that his cause of action is founded upon his illegal contract, and he must himself show his illegal contract in order to establish his case. Gregg v. Wyman, 4 Cush. 322 ; Whelden v. Chappel, 8 R. I. 230.</p> <p>But these propositions have failed to stand the test of judicial criticism and practice. Woodman v. Subbard, 25 N. H. 67; Morton v. Gloster, 46 Me. 520 ; Nodine v. Doherty, 46 Barb. S. C. 59; Sail v. Oorcoran, 107 Mass. 251; Frost v. Plumb, 40 Conn. 111.</p> <p>The plaintiff’s action is for the conversion of his property. The conversion consists in the use of it by the defendant for his own benefit, without the plaintiff’s permission; and such use is a conversion, because it is in exclusion and defiance of the plaintiff’s right as owner. 2 Greenl. Ev. § 642 ; 1 Chitty on PL 146.</p> <p>The plaintiff’s injury, therefore, is not a violation of any contract or of any right arising therefrom, but of the right of ownership ; and upon that right is his cause of action founded. Somer v. Thwing, 3 Pick. 492; Dwight v. Brewster, 1 Ibid. 50. The last case was approved in Meyers v. Meinrath, 101 Mass. 366.</p> <p>That the plaintiff need not prove his unlawful act is expressly decided by cases heretofore cited, and is illustrated by tbe present case. The only two things necessary for the plaintiff to prove are property in himself, and conversion by the defendant. 1 Chitty on Pleading, 146, citing Lord Mansfield in 1 Burr. 31. And conversion consists only in beneficial use and absence of permission for such use.</p> <p>Evidence of a bailment, therefore, is relevant only to the question of authority in the defendant to use the property. That there was no authority, it is submitted, is quite as properly and effectually proved by the plain, direct, and full statement to that effect of the plaintiff, as by proving authority for one thing, and leaving it to be merely inferred that there was none for another. It may be questioned if a prudent lawyer would trust to the inference and fail to elicit a direct and positive denial of any authority.</p> <p>If such denial be made, then .what necessity is there for evidence of any bailment ? Upon the question of authority, and to disprove conversion, it may be necessary, in a given case, for the defendant to show the bailment, and that he was acting within its terms. But in this case, the fact that there was any contract whatever is not only made to appear solely by the defendant himself, but it is proven for the only purpose of showing it to be in violation of a penal statute made to enforce morality, and of invoking its illegality, in which he participated, to secure immunity from liability for the wrongful destruction of his neighbor’s property.</p> <p>“But he can no more avail himself of that as a defence than the plaintiff can as a cause of action. Either party whose success depends upon proving his own violation of law must fail.” Frost v. Plumb, 40 Conn. Ill; Welch v. Wesson, 6 Gray, 505.</p> <p>The fact that the plaintiff had done an unlawful act in respect to his property does not commit it to the mercy of wrongdoers. That would be practical outlawry, which “ is putting a man out of the protection of the law, so that he is incapable of bringing an action for redress of injuries, and it is also attended with a forfeiture of all one’s goods and chattels.” 3 Bl. Com. 284; Cummings v. Perham, 1 Met. 555; Ewings v. Walker, 1 Gray, 95 ; Steele v. Burkhardt, 104 Mass. 59.</p> <p>The decision in Grregg v. Wyman, 4 Cush. 822, did not distinguish between those cases where the plaintiff’s right grows out of, rests upon, and is ascertained by the unlawful contract, and his injury is a mere invasion of such contract right, i. e. where his cause of action is founded upon his unlawful act; and those cases where the plaintiff’s right is independent of, and separable from, such contract, and his injury is an invasion of that right, i. e. where his cause of action is not founded upon his unlawful act. It takes for granted the only two vital propositions in the case. It cites an imposing array of cases whose authority no one questions, to establish general rules of law whose existence no one doubts, and applies them to assumptions whose correctness every one denies. It has been overruled. Sail v. Corcoran, 107 Mass. 251.</p> <p>The case of Whelden v. Chappel, 8 R. I. 230, was decided'upon the authority of Grregg v. Wyman, 4 Cush. 322, before the latter was reversed, and adopted its conclusions. The attention of the court was apparently not called to the above distinction, nor do the two cases then reported, in which it is pointed out and applied, appear to have been cited. Moreover, the illegal contract was made to appear as a part of the plaintiff’s case..</p> <p>contra, cited Whelden v. Chappel., 8 R. I. 230.</p>

<p>Judgments, when irregular, or void for want of jurisdiction, may be set aside upon motion after the term has ended at which they were entered; although, usually, courts after the close of such term cannot on mere motion alter or annul their judgments.</p> <p>The decrees of this court confirming assessments made by commissioners appointed after March 28,1873, when cap. 313 of Public Laws, i£ Board of Public Works Act,” went into effect, by an order of court made under “ An act in relation to the laying out, enlarging, straightening, or otherwise altering streets in the city of Providence,” of January, 1854, as if cap. 313 had not been a law, are, together with the assessments made by such commissioners, null and void.</p> <p>Note by the Repórter. — The foregoing decision, as to the effect of the Board of Public Works Act, supplements In re Dyer Street, ante, p. 166. In that case the commissioners were appointed before, but qualified after, the Board of Public Works Act went into effect.</p>

<p>In Rhode Island a mortgage of personal property to be subsequently acquired conveys no title to such property when acquired, which is valid at law against the mortgagor or his voluntary assignee, unless after acquisition possession of such property is given to the mortgagee, or taken by him under the mortgage.</p>

Plaintiees’ petition for a new trial. Assumpsit. The plaintiffs’ writ was served by attaching certain personal property covered by a mortgage executed by the defendant to one Darwin Almy. The defendant pleaded, in abatement, no service of writ, whiBh plea the plaintiff traversed.

<p>A. covenanted to convey realty to B., with full covenants of warranty. Subsequently B. negotiated a loan on the realty, and the attorney of the lender, to perfect the title, prepared a quitclaim deed from A. to B., which B., supposing it to conform to A.’s covenants, accepted. After discovering his error B. filed a bill in equity against A. for specific performance, praying that A. might be ordered to execute full covenants of warranty of title: —</p> <p>Held, that B., having accepted the quitclaim under surprise and mistake, was entitled to the relief sought.</p> <p>Held, further, that the incumbrances put on the realty by B. did not preclude the relief, as the covenants of warranty could be antedated, or could specially except these incumbrances.</p>

<p>Assumpsit heard by the court, jury trial being waived. The facts are stated in the opinion of the court.</p> <p>claimed that the contract is sufficient to bind the defendant, because the note or memorandum declared on and produced in evidence is in writing, is signed by the party sought to be charged, and shows the terms of the contract. That the defendant understood them, and meant to be bound by them, is evidenced by his signing. Blahesly v. Smith, 11 Sim. 150 ; Johnson v. Dodgson, 2 M. & W. 653; Sanderson v. JaeJsson, 2 Bos. & Pul. 238 ; Schneider v. Norris, 2 M. & S. 286 ; Hawleins v. Chace, 19 Pick. 502; Penniman v. Hartshorn, 13 Mass. 87.</p> <p>contended that the memorandum sets forth a contract by the plaintiff only. The defendant .does not in terms make any contract on his part. His signature may import merely the receipt of the offer. At all events his name does not describe a contract binding on him. The statement of a contract by the other party is not a statement of a contract by him. The statute requires the terms of the contract binding upon, tbe party to be charged to be in writing as well as bis- signature. Browne on tbe Statute of Frauds, 3d ed. § 374, and cases cited; Osborne v. Phelps, 19 Conn. 73; Nichols v. Johnson, 10 Conn. 198; Champion v. Plummer, 1 Bos. & Pul. 252.</p> <p>The cases wbicb allow tbe non-signing party to sue do not make bim liable as defendant.</p>

<p>Plaintiee’s motion that a constable might be allowed to amend his return on an execution.</p> <p>The former proceedings in this case and the facts involved are stated in 10 R. I. 270. After the opinion there-reported, given at the March Term, 1872, the plaintiff moved that the constable might be allowed to amend his return and to set forth in it the advertisement of the execution sale.</p> <p>The motion to amend is always addressed to the discretion of the court, and will not be allowed when injustice would be caused by the amendment. Miller v. Shackleford, 4 Dana, 264; U. S. Digest, First Series, vol. 1, p. 253, 1530.</p> <p>The return cannot be amended in any appellate court; Pilkey v. Gleason, 1 Iowa, 85; U. S. Digest, First Series, vol. 1, p. 255, 1563; much less in another court, in a collateral proceeding where the original judgment is vacated and the court is dead.</p> <p>The numerous decisions which allow amendments almost as a matter of course apply only to cases where no rights have intervened, where no injustice would be done, and where substantial justice requires the amendment, and not to a case where the result might be to deprive a party unlawfully of a large property, and when the officer can repair all the injury which the plaintiff has sustained, if any, by the payment of a few dollars.</p>

<p>Commissioners to set off dower allotted to a widow a larger dower than the decree of the Probate Court appointing them justified. On the application of a oo-tenant of a part of the realty involved, a new trial of the dower proceedings in the Probate Court was ordered, the widow being allowed to substantiate if she could a claim made by her that she was entitled to the full dower set off to her.</p>

Bill in equity filed by Augustus W. Winsor and Almirah his wife, and Welcome A. Potter and Maria his wife, the two female complainants being children of James M. Pettis by his first wife, against Mary PI. Pettis, his second wife, and James L. Pettis and Ednah H. Pettis, his children by her.

Bill in equity against the executors of the last surviving executor of the late Thomas L. Halsey, of Providence, and against the Providence Institution for Savings.

<p>Trespass on the case. Heard under the following agreement signed by the attorneys of the litigants : —</p> <p>“ The plaintiff offers to prove the following facts:</p> <p>“ That, at the time of the grievances alleged in his declaration, he was the owner of an estate on the northerly side of Public Street, in the city of Providence, with a dwelling-house, barn, and other buildings and improvements thereon.</p> <p>“ That said city, prior to said time, caused the grade of said Public Street, which was a public highway, to be changed, and that the highway commissioners cut down a portion of a way called Updike Street, at its junction with Public Street, whereby the surface water, which had collected in a pond at the corner of Greenwich and Daboll streets, was carried through Mawney .Street, a public street and highway, and into and through said Updike Street upon Public Street, and thence flowed upon the estate of the plaintiff, located at the lowest point on said Public Street, and filled his cellars and well, and destroyed his property, and otherwise caused him great annoyance and injury.</p> <p>“ The plaintiff also offers to prove that, prior to said time, said city also changed the grade of Broad Street, which crosses Public Street, and thereby caused the surface water which came on said Broad Street, which formerly had not flowed into Public Street, to be turned into Public Street, which water also flowed along said street, and into and upon the plaintiff’s estate, doing him similar injury. That he presented his claim to the city council1 more than thirty days before this suit was commenced, and no compensation has been made to him for said injuries.</p> <p>“ If, upon these facts being proved, the plaintiff can maintain his action, the cause is to stand for hearing before the court upon the question of damages; otherwise judgment is to be entered for the defendant.”</p> <p>The act of a municipal corporation in grading streets so as to turn surface water upon the land of an individual, which did not naturally flow upon such land, is a taking of private property for public uses within the meaning of the Constitution. Angelí & Durfee on Highways (2d ed.), p. 238; Wood on Nuisances, § 755; 2 Dillon on Municipal Corporations, § 799; Buttery. Peck, 16 Ohio, 334; Pettigrew v. Fvansville, 25 Wis. 223 ; Hoyt y. Hudson, 27 Wis. 656; Nevins y. Peoria, 41 111. 502.</p> <p>I. A corporation is not liable to an action for consequential damages to private property or persons, unless it be given by statute, where the act complained of was done by it or its officers, under and pursuant to authority conferred by a valid act of the legislature, where there has been no want of reasonable care, or of reasonable skill in the execution of the power. Callender v. Marsh, 1 Pick. 418; Rounds y. Mumford, 2 R. I. 154 ; Sprague y. Worcester, 13 Gray, 193; Perry y. Worcester, 6 Gray, 544; Flaggy. Worcester, 13 Gray, 601, 605 ; Dillon on Municipal Corporations, § 781; Badcliffe v. Mayor of Brooklyn, 4 N. Y. 195; Bennett v. New Orleans, 14 La. 120 ; The Governor y. Meredith, 4 Term Rep. 794 ; Hicks v. Born, 42 N. Y. 47 ; Snyder v. Bock-port, 6 Ind. 237.</p> <p>II. There is no liability on the part of a municipal corporation for not exercising powers it may possess to improve streets, to construct gutters, or provide other means of drainage for surface waters, so as to prevent them from flowing upon the adjoining lots. Dillon on Municipal Corporations, § 799 ; Wilson v. Mayor of New York, 1 Denio,. 595 ; Mills v. Brooklyn, 32 N. Y. 489; Roll v. Augusta, 34 Ga. 326 ; Carr v. Northern Liberties, 35 Pa. St. 324; Achison v. Challis, 9 Kansas, 603, 610 ; Bennett v. New Orleans, 14 La. An. 120.</p> <p>III. The duty of providing drainage for surface water is, in its nature, judicial or quasi judicial, requiring the exercise of judgment as to time, &e., best means, plan, &c. It follows that the corporation is not liable to a civil action for wholly failing to provide drainage or sewerage. Dillon on Municipal Corporations, § 801; Child v. Boston, 4 Allen, 41, 52; Wilson v. Mayor of New York, 1 Denio, 595; 5 Am. Law Reg. N. S. 33, note.</p> <p>IY. There is no liability on the part of a municipal corporation for grading or changing the established grade of its streets, although the exercise of the power may be injurious to the adjoining property owners, unless the liability is imposed by statute. Dillon on Municipal Corporations, § 782 ; Rounds v. Mumford, 2 R. I. 154-163; Smith v. Washington, 20 How. U. S. 135, 149.</p> <p>a. Of the necessity or expediency of the exercise of its powers, the governing body of the corporation, and not the courts, are judges. Dillon on Municipal Corporations, § 543 ; Callender v. Marsh, 1 Pick. 416 ; O' Conner v. Pittsburgh, 18 Pa. St. 187 ; Markham v. Mayor of Atlanta, 23 Ga. 402, 406 ; City of New Haven v. Sargeant, 38 Conn. 50; Plum et al. v. The Morris Canal Banking Co. et al. 10 N. J. Eq. 256.</p> <p>b. If the legislature gives a remedy, that remedy alone can be pursued. Dillon on Municipal Corporations, § 543; Hovey v. The Mayor, 43 Me. 322, 332 ; Andover v. Could, 6 Mass. 40 ; Boston v. Shaw, 1 Met. 130.</p> <p>c. The liability of towns and cities in this state for changing the established grade is fixed, and the remedies given, by cap. 60 of the General Statutes, from § 34 to § 41 inclusive.</p> <p>Y. Provisions of law in a city charter, authorizing the opening and improving of streets, or the construction of works of a public nature therein, within the scope of the legitimate uses of streets and highways, are not unconstitutional because they omit to provide compensation for those who, although their property is not taken, suffer indirect or consequential damages. Dillon on Municipal Corporations, § 784, and cases cited in note 1, p. 902, 2d ed.</p> <p>a. But this question has been passed upon and decided, in Rounds v. Mumford, 2 R. I. 160.</p> <p>VI. Authority to establish grades for streets involves the right to make changes in the surface of the ground, which may affect injuriously the adjacent property owners; but where the power is not exceeded there is no liability unless created by statute, and then only in the modes and to the extent provided for the consequences resulting from its being exercised and properly carried into execution. Dillon on Municipal Corporations, §§ 798, 799, 800; Flagg v. Worcester, 13 Gray, 601; Turner v. Dartmouth> 13 Allen, 291; Franklin v. Fisk, 13 Allen, 211; Dickinson v. Worcester, 7 Allen, 19; Barry v. Lowell, 8 Allen, 127.</p> <p>VII. A municipal corporation is not liable for the acts of a surveyor of highways, nor is the city of Providence liable for the acts of the highway commissioners. If. acting within the scope of their authority, without negligence, carelessness, or wilfulness, then there is no liability ; and if their acts are without the scope of their authority, or are negligent, careless, or wilful, then the commissioners may be liable personally, but not the city. Aldrich v. Tripp, ante, p. 141; Walcott v. Swampseott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570.</p>

<p>The complainant in a suit for partition must, if his title is disputed and in doubt, establish his rights at law before proceeding with his bill, notwithstanding the estate in question is in the hands of a receiver appointed in another suit. In such ease leave may be given to bring ejectment, and an order made confining the defence to the question of title, and forbidding the issue of an execution without permission therefor.</p>

<p>Case against the defendant as garnishee. Heard by the court.</p> <p>These actions were brought against the defendant, Millett, as trustee for S. S. Humes & Co., upon his answers to interrogatories. Millett was assignee of S. S. Humes & Co., under the assignment annexed.</p> <p>Joseph Smith & Co. sued S. S. Humes & Co., the writ being served by foreign attachment upon Millett, as trustee, July 18, 1874, at 4 P. M. Judgment for plaintiffs was rendered June 17, 1876, for debt and costs, $441.75.</p> <p>W. Congdon & Sons sued S. S. Humes & Co., the writ being served by foreign attachment upon Millett, as trustee, July 18, 1874, at two minutes past 4 p. M. Judgment for plaintiffs, June 17, 1876, for debt and costs, $3,272.38.</p> <p>Joseph Smith & Co. sued S. S. Humes & Co., the writ being served by foreign attachment upon Millett, as trustee, September 14, 1874, at 2.30 P. M. Judgment for plaintiffs, June 17, 1876, for debt and costs, $12,494.26.</p> <p>Millett, in his answers as garnishee, set out the assignment, and admitted money in his hands, $10,025, and property valued at $13,000,' subject to mortgages for $4,500. At the time of service of the first and' second writs no creditors had executed releases. At time of service of the third writ, September 14, 1874, creditors whose claims amounted to $43,350.52, had executed and delivered releases. Burdett & Greene executed and delivered a release after the service of the third writ, and after the three months limited in the assignment had expired. Their debt was $7,927.07. It was claimed that the total liabilities of S. S. Humes & Co. amounted to $68,846.23, but this was not admitted.</p> <p>“ ASSIGNMENT. — S. S. HUMES & CO. TO THOMAS A. MILLETT.</p> <p>“ Know all men bv these presents : —</p> <p>“ That we, Syra S. Humes, James M. Humes, and Benjamin G. Perkins, all of Pawtucket, in the county of Providence and State of Rhode Island, copartners, and doing business in said Pawtucket, under the firm and style of S. S. Humes & Co., for and in consideration of One Dollar, to us paid by Thomas A. Millett, of the city and county of Providence, in said State of Rhode Island, the receipt .whereof is hereby acknowledged, and in further consideration of the trusts hereinafter named, do by these presents bargain, sell, assign, set over, transfer, and deliver unto the said Thomas A. Millett all our copartnership property, and assets of every kind and description, and wherever the same may be, and also all our individual property, not exempt by law, said assets and property being principally situated in said Pawtucket, and consisting of . real estate, mill machinery, lumber, horses, wagons, buildings, and book accounts.</p> <p>“ To HA ye and TO hold the same to him, the said Thomas A. Millett, his executors, administrators, and assigns, in Special Trust, nevertheless, and for the following purposes: That the said Thomas A. Millett shall take immediate possession of said copartnership and private property and assets, and convert the same into money as soon as he conveniently can, either at private sale or public auction, and after reserving a reasonable compensation for his services and reimbursing himself for all expenses necessarily incurred, he shall pay the balance to all our copartnership creditors in proportion to their respective demands, first paying our private indebtedness, if any, out of the proceeds of our private or individual estates. Provided, however, that such of our creditors as do not within three months from the date hereof execute and deliver to said assignee a full discharge of their claims and demands against us, the said assignors, shall not be entitled to or receive any dividend or profit under this Deed of Assignment, but the dividends on the claims and demands of such creditors shall be paid over to the aforesaid assignors, or to such person or persons as they appoint.</p> <p>“ In witness whereof we have hereunto set our hands and seals this second day of June, A. D. 1874.</p> <p>“ Syra S. Humes. [Seal.]</p> <p>“ James M. Humes. [Seal.]</p> <p>“ Benj. Gr. Perkins. [Seal.]</p> <p>“ Executed in presence of</p> <p>“ Charles Selden,</p> <p>“ Witness to S. S. and J. M. Humes.</p> <p>“ And I, the said Thomas A. Millett, in consideration of the above, do hereby accept said trust, and do covenant to and with the said S. S. Huines & Company that I will honestly and faithfully execute the same according to my best shill and knowledge. Witness my hand and seal this second day of June, A. D. 1874.</p> <p>“Thomas A. Millett. [Seal.]</p> <p>“ In presence of</p> <p>“ Charles Selden.”</p> <p>“ State oe Rhode Island, etc. ) “ Providence, Sc. )</p> <p>In Providence, this second day of June, A. D. 1874. Then personally appeared before me the aforenamed Syra S. Humes and James M. Humes, and Benjamin G. Perkins, and severally acknowledged the foregoing instrument by them signed to be their free and voluntary act and deed, both in their copartnership and individual capacity.</p> <p>“ Charles Selden,</p> <p>“ Justice of the Peace.”</p> <p>1. The assignment not being for the benefit of creditors generally, but only for the benefit of those who within a fixed time should execute and deliver to the assignee a full discharge of their respective claims, no assent of the creditors can be presumed ; and, therefore, until the creditors accepted the assignment, by executing and delivering such discharges, it was simply a trust for the benefit of the assignors, and liable to attachment on trustee process. Sadlier v. Fallon, 4 R. I. 492 ; Halsey v. Whitney, 4 Mason, 206; Drake v. Rogers, 6 Mo. 317 ; Hurd v. Silshee, 10 N. H. 108 ; Skipwith v. Cunningham, 8 Leigh (Va.), 271. See also Hall v. Dennison, 17 Yt. 310, and cases infra.</p> <p>2. When the first and second attachments were made, July 18, 1874, no creditors had released, and the whole amount in the assignee’s hands is therefore held by those attachments. Sadlier v. Fallon, 4 R. I. 492 ; Widgery v. Haskell, 5 Mass. 144 ; Mars-ton v. Coburn, 17 Mass. 454; Hastings v. Baldwin, 17 Mass. 556 ; Vial v. Bliss, 9 Pick. 13; Hooper v. Hills, 9 Pick. 435 ; Russell v. Woodward, 10 Pick. 408; Fdwards v. Mitchell, 1 Gray, 239; Wiley v. Collins, 11 Me. 193 ; Carr v. Dole, 17 Me. 358 ; Leed y. Sayward, 6 N. H. 83.</p> <p>3. After the first and second attachments were made, certain creditors, the amount of whose claims were sixty-three per cent, of S. S. Humes & Co.’s liabilities, executed releases. They are entitled to a pro rata dividend in the funds remaining in the assignee’s hands after satisfying these first two attachments. The dividends of the creditors not releasing, being thirty-seven per cent, of the whole amount to be distributed, are held by the third attachment under the resulting trust for the benefit of the assignors. Borden v. Sumner, 4 Pick. 265, 267 ; Ward v. Lamson, 6 Pick. 358 ; Bradford v. Tappan, 11 Pick. 76 ; Widgery v. Haskell, 5 Mass. 144; JDocJcray v. Booleray, 2 R. I. 547, 557.</p> <p>4. Burdett & Greene’s release was not executed September 14, 1874, at date of third attachment, and that attachment takes priority of their claim. Ward v. Lamson, 6 Pick. 358; Bradford v. Tappan, 11 Pick. 76 ; Leeds v. Say ward, 6 N. H. 83 ; Copeland v. Wells, 8 Me. 411.</p> <p>5. Burdett & Greene not having released within three months from June 2, 1874, i. e. on or before September 2,1874, can take no dividend under the assignment in any event. Brown v. Lyon, 17 Ala. 653.</p>

Assumpsit. Heard under the following agreement signed by the attorneys of the litigants. “1. School District No. 17, of the town of Warwick, is indebted to the plaintiff in the sum of $125, due to said plaintiff as a teacher of the public school in said district. “2.

<p>A complainant suing for specific performance must show that he has not been in default.</p> <p>Hence, when a contract for the sale of land provided for the payment of the “balance of the purchase money ” ata time certain, and the court, from evidence which was conflicting, found the time had been extended by agreement to a day certain, and'the vendee did not then pay, nor did he claim that he had ever tendered the price and demanded a deed ; the court dismissed the vendee’s bill for specific performance.</p> <p>Semble, that in this country the tender of a deed by the vendee is unnecessary in order to put the vendor in default, as the deed is to be prepared by the vendor.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>Assumpsit, originally brought before the Justice Court of South Kingston, taken by the defendant’s appeal to the Court of Common Pleas, and after a trial and verdict brought to this court by the plaintiff’s' exceptions.</p> <p>It appears from the bill of exceptions that one Perkins died without leaving sufficient food for his cattle. The day after the funeral the defendant and another went to the plaintiff and obtained $30 worth of hay to feed the cattle of Perkins. Subsequently the defendant was appointed administrator of Perkins’s estate. At the trial in the Court of Common Pleas the defendant testified fhat he gave the plaintiff express notice when the hay was bought that it was for the Perkins estate, and that the plaintiff must look to the estate for his pay. The plaintiff denied this, saying that he sold the hay to the defendant and did not know where it was going, though he understood from what was said by tbe defendant and his companion that the hay was going to Mrs. Perkins for the stock. The judge instructed the jury that it was wholly a question of fact. If credit was given to the estate, the verdict should be for the defendant; if credit was given to the defendant, the verdict should be for the plaintiff; and the jury should determine to which party credit really was given. To these instructions the plaintiff excepted, and after verdict for the defendant brought the case to this court.</p>

<p>The predecessors in title of the complainant and respondents made, by indenture, partition of a certain lot of land and water privilege held in common, under which the complainant took a mill estate, 11 together with a privilege to build and keep in repair a trench not exceeding seven and a half feet wide, including all necessary materials of stone, plank, or timber from the dividing line to westward into the pond (giving the boundaries), with six tenths of the water appertaining to said divided premises.” The part of the complainant was bounded by the stream below the dam. The dam was wholly on the part taken by the respondents: —</p> <p>Held, that six tenths of the water appertaining to said divided premises meant six tenths of the water power.</p> <p>The trench was built and used to carry water to the complainant’s mill for some forty years, during which time the expense of repairs on the dam and of flowage damage was paid proportionally by the complainant and the respondents.</p> <p>On the respondents attempting to abandon and remove the old dam and build a new one further up the stream, the effect of which would be to deprive the complainant of the use of the water power, a bill in equity was filed to restrain the respondents from so doing: —</p> <p>Held, that the complainant was entitled to the relief sought.</p>

<p>Bill in equity to establish tbe boundaries of a private way. Tbe facts are stated in tbe opinion of the court.</p>

<p>Pleas in abatement may be amended by permission of the court.</p>

Exceptions to tbe report of a master in chancery to whom was referred the accounts of the receiver of the Franklin Institution for Savings.

<p>A., a dealer in sash, blinds, doors, &c., sold under contract .articles of his trade to R. These articles were used in the construction of houses on B.’s land, some incidental work being required in fitting, which was done by A.: —</p> <p>Held, that A. was not entitled to a mechanic's lien, under Gen. Stat. R. I. cap. 166.</p>

<p>Debt. On demurrer to the declaration.</p>

<p>Assumpsit. On demurrer to an equitable plea.</p>

<p>Appeal from the Probate Court of Providence.</p>

<p>Bill in equity. The facts are stated in the opinion of the court.</p> <p>cited: Pooley v. Budd, 14 Beav. 34; Shaw v. Poster, L. R. 5 H. L. 321; Adams Eq. *91; Story Eq. Juris. § 779; Fry on Specif. Perform. § 795; Waters v. Travis, 9 Johns. Rep. 450; Milligan v. Oooke, 16 Yes. Jun. 1; King v. Wilson, 6 Beav. 1; Bouvier v. Stonestreet, 6 Md. 418; Parkhurstv. Van Cortlandt, 1 Johns. Ch. 273; Phillips v. Thompson, 1 Johns. Ch. 131; King v. Thompson, 9 Pet. 204; Pingree v. Boffin, 12 Gray, 288, 305; Andrews v. Brown, 3 Cush. 130; Peabody v. Tarbell, 2 Cush. 226; Prwin v. Myers, 46 Pa. St. 96 ; Hooper v. Smart, L. R. 18 Eq. 683; Barnes v. Wood, L. R. 8 Eq. 424; Bider v. Gray, 10 Md. 300.</p>

<p>Exceptions to the Court of Common Pleas. The facts are stated in the opinion of the court.</p> <p>cited : Commonwealth v. Thurlow, 24 Pick. 374 ; Commonwealth v. Hendrie, 2 Gray, 503 ; Commonwealth v. Blood, 4 Gray, 31; Blodget v. The State, 3 Ind. 403 ; Capritz v. The State of Maryland, 1 Md. 569; State v. Nutwell, 1 Gill, 54 ; Borman .v. The State, 34 Ala. 216 ; Brown v. Mayor of Mobile, 23 Ala. 7 22 ; Starr v. State, 25 Ala. 38 ; Burch v. Republic, 1 Texas, 608; State v. Eaucett, 4 Dey. & B. 107 ; State v. Cox, 29 Mo.475; Commonwealth v. Cook, 13 B. Mon. 149.</p> <p>I. A motion to quash comes too late when not made until the case has reached the appellate court, after a trial of the case on the merits in the'court below. State v. McCarty, 4 R. I. 82; Commonwealth v. Loghlin, 15 Gray, 569 ; Commonwealth v. Henry, 7 Cuph. 512 ; Commonwealth v. Boon, 2 Gray 74.</p> <p>II. In charging an offence created by statute it is sufficient to describe it in the words of the statute. . 1 Wharton Crim. Law, 364, and cases there cited.</p> <p>. III. The defendant is entitled to have the offence with which he is charged “ fully and plainly, substantially and formally described to-him.” The insertion of the name of the person purchasing the liquor in the complaint is not necessary, in order to more fully apprise the defendant of the charge against him.</p> <p>IY. The charge in this complaint is in form the same that has been used in similar cases in this state since liquor prosecutions were first instituted in this state.</p>

Bill in equity to set aside an award. The complainants were lessees of the respondents under an indenture of lease which contained the following provision for a renewal: — . “ Provided also, and it is further agreed, that three months at least before the expiration of said term the rent of said land for a further term of five years from the expiration of said term of ten years, and also the buildings and improvements on said land, shall be appraised by three disinterested…

<p>Assumpsit, heard by the court, jury trial being waived.</p>

<p>Dependant’s petition for a new trial. Tbe facts are sufficiently stated in tbe opinion of tbe court.</p> <p>Evidence as to the imprisonment of tbe plaintiff and acts of tbe defendant after the time of tbe waiving of examination by tbe plaintiff in tbe Justice Court was erroneously admitted upon the question of damages.</p> <p>Had the plaintiff allowed a trial and been bound over, or found guilty by tbe justice, that would bave established a valid defence to this suit. Had he been discharged, then, as a matter of course, tbe imprisonment and further acts on the part of tbe defendant would not bave occurred.</p> <p>Thus, having by his own act either deprived tbe defendant of a valid defence to this suit, or caused bis own imprisonment, he cannot now charge tbe responsibility and damages. Witham v. Gow-en, 14 Me. 362; Whitney v. Peckham, 15 Mass. 243 ; Maddox v. Jackson, 4 Munf. 462-465.</p> <p>Gibson’s testimony upon tlie question of probable cause was erroneously admitted. Scanlan v. Cowley, 2 Hilt. 489 ; Smith v. Ege, 52 Pa. St. 419; Swaim v. Stafford, 3 Ired. 289; Johivson v. Chambers, 10 Ired. 287; Raulston v. Jackson, ,1 Sn. 128, 134.</p> <p>The court properly allowed testimony to pass to the jury as to the peril, imprisonment, annoyance, and suffering the plaintiff sustained, naturally, directly, or indirectly on account, and by reason of, the “ malicious prosecution ” of the plaintiff by defendant. Leading Cases on the Law of Torts, p. 204; Hilliard on Remedies for Torts, 2d ed. p. 624; 2 Greenleaf on Evidence, 5th ed. § 456 ; Jones v. Gwynn, 10 Modern, 214 ; Leach v. Wilbur, 9 Allen, 212, 213 ; Merriam v. Mitchell, 13 Me. 439, 458 ; McOormiclc v. Sisson, 7 Cow. 715.</p> <p>If a good cause of action be established by unimpeachable testimony, a verdict will not be set aside because some improper testimony has been admitted. Baker v. Briggs, 8 Pick. 122; Stiles v. Tilford, 10 Wend. 338.</p> <p>Gibson’s testimony was properly admitted. Hilliard on Remedies for Torts, 2d ed. § 34; Stone v. Orocker, 24 Pick. 81, 84; McBean v. Bitchie, 18 111. 114 ; Thorpe v. Balliett, 25 111. 339 ; Scott v. Simpson, 1 Sandf. 601 ; Adams v.Lisher, 3 Blackf. 445, note; McLaren v..Birdsong, 24 Ga. 265; Gummings v. Baodcs, 2 Ind. 148 ; Willans v. Taylor, 6 Bing. 183-187.</p>

<p>Case STATED for the opinion of the court under Public Laws cap. 563, § 16, April' 20, 1876.</p> <p>The question raised was whether the certificate of a married woman’s acknowledgment to a deed of realty satisfied the provisions of Rev. Stat. R. I. cap. 136 § 7. These provisions reappear in Gen. Stat. R. I. cap. 152, § 8.</p> <p>The certificate of acknowledgment referred to is as follows: —</p> <p>“ United States oe America.</p> <p>“ State of New York, | City and County of New York, j</p> <p>■“ By this public instrument be it remembered that on this twenty-ninth day of February, A. D. one thousand eight hundred and 68, before me, the subscriber, Joseph B. Nones, a commissioner in and for the State of New York, appointed by the Governor of the State of Rhode Island' to take proof and acknowledgment of deeds, mortgages, letters of attorney, or any other instrument to be used or recorded in the said State of Rhode Island, and to administer oaths and affirmations, take depositions, &c., &c., appeared Edward Chase, George N. Miller, and Caroline S. his wife, the persons described in, and who executed the annexed instrument (between them as one of the parties thereto and the other party thereto), and acknowledged to me that they severally executed the said instrument voluntarily and freely, for the uses and purposes therein stated. And the said Caroline S. Miller, wife of the said George N. Miller, on being by me made fully acquainted with the contents of said annexed instrument, on an examination by me privately separate and apart from her said husband, acknowledged to me, and agreed, on such private examination as aforesaid, that she did execute the said instrument of her own free will and accord; subscribe, seal, deliver, and without any fear, coercion, or compulsion, or undue influence of her said husband, or from any one, or of any other person or persons whatsoever; and with an intention thereby to renounce, give up, and forever quitclaim her right of dower and thirds, and all her other interest of, into, and to the lands and tenements therein mentioned. And I further certify that I know the persons who made the said acknowledgment to be the identical persons described in and who executed the said annexed instrument. In testimony whereof, I have hereunto subscribed my name and affixed my official seal, the year, month, and day first before written. J. B. Nones,</p> <p> Commissioner of the State of Rhode Island for the State of New York, as aforesaid.” </p>

<p>Assumpsit, heard by the court, jury trial being waived.</p>

<p>The court will take judicial cognizance and without evidence that lager bier is a malt liquor.</p> <p>A criminal warrant should bear the seal of the justice or justice’s clerk who issues it, not the seal of the court to which it is returnable.</p> <p>A criminal complaint and warrant may be upon the same paper, and the former made by reference a part of the latter.</p> <p>Objections to process will not be considered after a trial had upon the merits of a cause and an appeal.</p>

Bill in equity brought by the complainants against tbe respondents, who were coterminous riparian owners.

<p>Trespass. On demurrer to the plea.</p> <p>A district school tax amounting to $2.55 was assessed against the plaintiff which he refused to pay, whereupon payment was enforced by levy and sale of bis land. The plaintiff claiming that all the proceedings were illegal-brought this action against the then school commissioner and the assessors and collector, alleging that the defendants, under color of their respective offices, vi et armis, unlawfully assessed and caused to be assessed against the plaintiff an illegal tax, and unlawfully levied on, advertised, and 'sold at public auction and conveyed the real estate of the plaintiff, situated in Middletown, to enforce the payment of said alleged illegal tax, whereby the plaintiff suffered mortification and pain of mind, and was put to trouble and expense, and was deprived of his real estate, and the title thereto was clouded, and he was otherwise injured.</p> <p>The damnum claimed was $2,000.</p> <p>The defendants pleaded to the force and arms, not guilty; and to the rest of the declaration, justification by virtue of their authority as officers under the Public School Act, and set out the facts of the case at length.</p> <p>To this plea plaintiff demurred specially, and recited thirteen causes of demurrer.</p>

Exceptions to the Court of Common Pleas. This action was Case against the defendant as garnishee, brought originally in the Justice Court of the city of Providence, appealed by the defendant to the Common Pleas, and brought to this court on the defendant’s exceptions. The plaintiffs sued one John Mitchell, and served their writ by foreign attachment on the treasurer of the R. I. Locomotive Works. The garnishee’s affidavit was made by the assistant treasurer.

Bill in equity brought by the complainant, a mortgagor, against Peckham, the administrator of one Pabodie, the mortgagee, to compel him to surrender the mortgage note and to cancel the mortgage, according to an alleged agreement made by Pabodie. Pabodie made a will September 26, 1868, by which he gave the bulk of his property to Olive G. Pettis, the other respondent.. This will was set aside by a decree of this court, and Peck-ham was afterwards appointed administrator.

Bill in equity brought by a voluntary assignee against the different creditors of the assignor and other parties interested in the assigned estate asking for instructions. The facts are stated in the opinion of the court.

<p>Debt. On demurrers to pleas and replication.</p> <p>This action being debt on an attachment bond given under Gen. Stat. R. I. cap. 196, § 20, was brought in the Court of Common Pleas and appealed to this court. The plaintiff declared against Christopher G. Dodge and Charles Williams, who were the sureties, the principal of the bond being dead. No service of process was made on Williams, neither himself nor any estate of his being within the officer’s precinct.</p> <p>The pleas were : —</p> <p>1. Not the defendant’s deed, — closing to the country.</p> <p>2. After craving oyer, the plea stated that one Caleb Rodman was the principal of the bond, that the bond was conditioned on a final judgment against Rodman, and that no such judgment had been rendered, — closing with a verification and prayer for judgment whether the plaintiff ought to maintain his suit.</p> <p>To this second plea the plaintiff replied precludi non, because pending the original action Rodman died, also his executor, whereupon an administrator de bonis non was appointed, who was cited into court and against whom final judgment was recovered ; alleging that execution issued and was returned unsatisfied ; that the judgment was unpaid, and that the defendant refused either to pay the judgment or to return the goods and chattels mentioned in the bond. General demurrer and joinder.</p> <p>8. The plea stated the death of Rodman pending the action against him, and the consequent abatement of the action and dissolution of the attachment, whereby the bond became void, — closing as the second plea. General demurrer and joinder.</p> <p>4. The plea stated the death of Rodman testate, proof of his will, and issue of letters of administration, whereby the title to the goods and chattels mentioned in the bond vested in the executor, — closing as the second plea. General demurrer and joinder.</p> <p>in support of the demurrers to the third and fourth pleas.</p> <p>I. This bond, with its condition, should be construed as if it strictly conformed with the terms of the statute, rejecting all surplus matter, not required by the statute, as surplusage and a nullity.</p> <p>Therefore all parts of said bond and condition, limiting the effect of said bond to any judgment recovered or execution issued against the defendant in the original suit personally, should be rejected, and the bond construed as if in conformity with the statute. Clayton v. Anthony, 15 Grat: 518; United States v. -, 1 Brock. 195; Dixon et al. v. U. S. 1 Brock. 177; Wallcer et al. v. Chapman, 22 Ala. 116.</p> <p>II. The giving of this bond discharged the personal property mentioned therein from the attachment in the original suit of Knobb v. Rodman ; and the obligors assumed the liability under the bond provided by the statute. Jones v. Peasley, 3 Greene (Iowa), 52; Brown v. Clarice, 4 How. ÍJ. S. 4; Schuyler v. Sylvester, 28 N. J. Law, 487.</p> <p>III. The death of the defendant Rodman in the original suit did not discharge the sureties on the bond in question.</p> <p>That an attachment of real estate is dissolved by death of defendant, as decided in Vaughn v. Sturtevant, 7 R. I. 372, does not affect this question ; for the attachment of personal property in this case was dissolved by giving the bond in question (Point II., supra) ; and the definite liability assumed by the obligors in this bond is what this action seeks to enforce.</p> <p>A case closely in point with the present case, and under a similar statute, to which the attention of the court is particularly requested, is Grass v. Smith et al. 6 Gray, 112.</p> <p>contra, and in support of the demurrer to the replication to the second plea.</p>

Bill in equity for an account and for the enforcement of a mortgage lien. The respondent demurred to the bill. The facts are stated in the opinion of the court.

<p>Bill in equity to establish a lien.</p> <p>The complainant corporation on March 19, 1874, executed an indenture of lease of certain land in the city of Providence, with a building thereon, to R. F. Lombard, C. W. Howland, Benj. F. Himes, and T. A. Howland. The lease demised a term of five years from April 1, 1874, reserving a rent payable monthly. It contained the following covenant, and was recorded: —</p> <p>“ And the said parties of the second part hereby pledge and bind all improvements and machinery which they may put on said premises, and the stock of goods which they may have on said premises, for the payment of the rent aforesaid, and for the due performance of all their covenants herein contained.”</p> <p>The lessees formed themselves into a copartnership under the name of the Rhode Island Dairy Company, entered on the premises leased, and put <3n them machinery for the manufacture of oleomargarine.</p> <p>The rent was regularly paid till November 1, 1874. February 1,1875, the lease was cancelled by agreement between the parties thereto. The rent for November and December, 1874, and January, 1875, amounting to $225, was not paid.</p> <p>December 26, 1874, Francisco M. Ballou sued out his writ from this court against the lessees, and served it hy attachment of the machinery and stock placed by them on the leased premises. January 12, 1875, this court, on Ballou’s application, ordered a sale of the attached personalty as perishable property. January 25, 1875, J. Aborn Gardiner, deputy sheriff, pursuant to this order, sold the attached property for $725, and held the proceeds. His return showed a claim for fees and expenses of $169.95. Ballou, at the March Term, 1875, recovered a judgment by default of $450.26 and costs.</p> <p>The complainant company claimed a lien on the fund in the sheriff’s hands prior to the lien of Ballou’s judgment, and asked the court for an order directing the sheriff to pay the rent due. Ante, p. 129. The court refused the order, whereupon this bill was filed to enforce the lien claimed ; the copartners in the R. I. Dairy Co., Gardiner, and Ballou being made respondents.</p>

<p>Under the statutes of Rhode Island, attachment liens perfected by judgment must be satisfied in the order of the attachments, without reference to the time of the execution sales.</p> <p>A sheriff’s deed after execution sale relates back to the time of attachment made.</p> <p>A sale by a mortgagee has the same effect as a sale by the mortgaging debtor. A mortgagee’s sale relates back to the date of the mortgage, so far as to cut off redemption rights under titles or liens subsequent to the date of the mortgage, and to substitute for such redemption rights the pecuniary surplus from the sale, which surplus is treated as the realty would have been.</p> <p>As an attachment of realty in Rhode Island covers only the debtor’s right and interest in the land, a sheriff’s deed conveys only such right and interest, even if it is but a mere right of entry.</p> <p>If after attachment and judgment the realty attached is sold under a mortgage prior in date to the attachment, the attaching creditor may proceed in equity to enforce his lien on the surplus arising from the sale.</p> <p>If an equity of redemption is sold under a first attachment, subsequent attaching creditors must protect themselves by asserting at the sale their claims to the surplus.</p> <p>If an equity of redemption is sold under a second attachment, the purchaser takes subject to the prior right of a first attachment, which, when ratified by a judgment and followed by a sale, avoids the former sale.</p> <p>One M. before marriage mortgaged, April 11, 1867, certain realty with a power of sale. The mortgagee sold under the power, November 22, 1874, and obtained a surplus from the sale.</p> <p>S. attached the realty February 21, 1872, and sold it on execution, June 26,1875.</p> <p>H. attached the realty November 7,1873, and sold it on execution, September 26,1874.</p> <p>M. (then married) made a second mortgage of the realty, November 10, 1873, his wife joining in the deed and releasing dower: —</p> <p>Held, in a bill of interpleader, that S. was entitled to satisfaction of his debt from the surplus, prior to the claims of H.</p> <p>A wife’s inchoate dower right will be protected in Rhode Island, either by investing one third of the proceeds of a mortgage sale to await the perfection or cessation of such right, or by calculating the present value of her chance of surviving her husband and paying to her at once such calculated sum.</p> <p>In the case at bar, as it appeared that the wife had released her dower right in the second mortgage made by M.: —</p> <p>Held, that her inchoate dower right in the surplus arising from a sale under the first mortgage passed to and vested in the second mortgagee.</p>

<p>Case stated for the opinion of the court under Public Laws, cap. 663, § 16, April 20, 1876. Tbe facts are stated in the opinion of the court.</p>

<p>George H. Corliss, chosen in Rhode Island an elector of the President and Vice-president of the United States, in November, A. D. 1876, was, when chosen, the Commissioner from Rhode Island of the United States Centennial Commission. Thereupon the governor, acting under article 10, section 3, of the Constitution of the state, which provides that “ the judges of the Supreme Court shall give their written opinion upon any question of law whenever requested by the governor,” addressed to them the following communication: —</p> <p>“ To the Honorable the Judges of the Supreme Court of the State of Rhode Island:</p> <p>“ The undersigned, Henry Lippitt, governor of said state, respectfully asks for a written opinion upon the following questions of law: —</p> <p>“ First. Is the office of Commissioner of the United States Centennial Commission such an office of trust or profit under the United States as to disqualify its holder for the office of elector of President and Vice-president of the United States ?</p> <p>“ Second. If so, does such a candidate for the office of elector who receives a plurality of the legal votes given, and declines said office, create such a vacancy as is provided for in section 7, chapter 11, of the General Statutes ?</p> <p>“ Third. If no, is the disqualification removed by the resignation of said office of ‘ trust or profit ? ’</p> <p>“ Fourth. If not, does the disqualification result in the election of a candidate next in vote, or in a failure to elect ?</p> <p>“ Fifth. If, by reason of the disqualification of the candidate who received a plurality of the votes given there was no election, can the general assembly in grand committee elect an elector ?</p> <p>“ Please favor me with a reply at the earliest possible moment.</p> <p>“ Henry Lippitt, Covernor.”</p>

<p>Trespass quare clausum. Plea, the general issue, “ Not guilty.” At the trial evidence was'submitted for the defendant which disputed the plaintiff’s title. After verdict for plaintiff, his counsel asked for an execution against the defendant’s body.</p>