Volume 12 — Rhode Island Reports

Bill IN Equity to set aside a conveyance of certain realty to the city of Providence. The bill was filed February 3, 1872, after the decision of the court in Lewis v. Qity of Providence, 10 R. I. 97. It was brought by several tax-payers of the city of Providence against the city of Providence, Thomas A. Doyle, who was mayor, and Messrs.

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

<p>Under Gen. Stat. R. I. cap. 59, §§ 18-21, empowering town councils to declare lands used as highways for twenty years to be public highways, the plat prescribed by § 21 must be made a part of such declaration.</p>

<p>Bill IN Equity brought by George Williams, administrator of William B. Lawton, against Nicholas C. Briggs and Edwin Winsor, his voluntary assignee, to enforce a Jien on certain personalty purporting to be conveyed by a mortgage executed by Briggs to Lawton, which personalty was acquired by Briggs afte r the mortgage had been executed and delivered, and possession of which had been retained by the mortgagor or his assignee.</p> <p>July 2, 1870, Nicholas C. Briggs mortgaged to William B. Lawton certain tools, fixtures, and his stock in trade, after describing which, the mortgage deed continued, “ and also all and every article and thing that may be hereafter purchased by me to replace or renew the articles and things hereinbefore conveyed, and also all stock, tools, fixtures, and carriages, whether manufactured or in process of manufacture, that may be hereafter purchased by me to be used in or about my business of buying and selling, making and repairing, carriages.” The mortgage was acknowledged and duly recorded.</p> <p>August 14, 1875, Briggs made an assignment of his property to one Frank H. Macreading, in trust, “ to pay all the just debts of himthe said Nicholas C. Briggs, without distinction or preference, which shall be exhibited and proved to said Macreading within six months from tbe date hereof, in full, if sufficient, if not, then ratably and in proportion to said debts. Should any surplus remain after payment of the several debts aforesaid, then to return the surplus to said Briggs.” Subsequently Macreading was removed and the respondent, Edwin Winsor, was appointed trustee in his place by this court, under Gen. Stat. R. I. cap. 181, §§ 11-14.</p> <p>After the execution of the mortgage Briggs carried on his business as usual, using the mortgaged property as his stock in trade.</p> <p>The condition of the mortgage being broken, and Lawton having died, his administrator, Williams, brought an action of trover against Briggs and Winsor, for converting the chattels mortgaged, both those acquired before and those acquired after the execution of the mortgage. See Williams v. Briggs, 11 R. I. 476. After the decision of the court in that case this bill was filed to enforce the mortgage lien on the after-acquired personalty.</p> <p>The prayer of the bill was that the lien might be established ; that the respondents might be directed to surrender the chattels mortgaged, or that the same might be sold under an order of court and the proceeds applied to indemnify the mortgagee; that the respondents might be required to account for the value of all the chattels sold after the assignment, and for general relief.</p> <p>cited: Brett v. Carter, 2 Lowell Decis. 458 ; Williams v. Briggs, 11 R. I* 476 ; Croton Manuf. Co. v. Cardiner, 11 R. I. 626.</p> <p>The provision in this mortgage relating to after-acquired property does not belong to tbe class of contracts of which an Equity Court will decree a specific performance, because such a transaction is against public policy, throwing open a wide door to possible fraud. 2 Story Eq. Jur. § 736 ; Robinson v. Elliott, 22 Wall. 513 ; Moody v. Wright, 13 Met. 17 ; Oollins v. Meyers, 16 Ohio, 547; Mittngcht v. Kelly, 3 Abb. Ct. App. 301; Phelps v. Murray, 2 Tenn. Ch. 746.</p> <p>Registration under our statute is a substitution for delivery of possession ; but as the property in controversy was not in esse when the mortgage was recorded, and when acquired was again disposed of, and the stock replenished many times before the assignment, how could the record of the mortgage operate as a substitute for delivery, when there was nothing in the hands of the mortgagor to deliver? Gen. Stat. R. I. cap. 105, § 9 ; Robinson v. Elliott, 22 Wall. 513 ; Oollins v. Meyers, 16 Ohio, 547.</p> <p>If this mortgage of property to be acquired in future is valid in equity, it is only valid between the parties in the absence of adverse claims, as a contract to assign when the property shall be acquired, no.t as an assignment of a present interest in the property ; and if it is enforcible in equity, it can only be enforced as a right under the contract, and not as a trust attached to the property ; such a mortgage is not a specific lien on the property acquired. Moody v. Wright, 13 Met. 17; Qhapman v. Weimer $ Steinbacher, 4 Ohio St. 481; Ohynoweth v. Penny et al. 10 Wis. 397 ; Bunt v. Bulloch et al. 23 Ill. 320.</p> <p>This mortgage gives to the mortgagor a power of sale and disposition, without any provision requiring an account to the mortgagee, or applying the proceeds to the payment of any part of the debt; therefore, as the property was disposed of by general assignment for the benefit of creditors, the rights of creditors attached before any “ novus actus interveniens,” and the mortgage being invalid as to all the world except the parties thereto, equity cannot interfere to enforce the contract without prejudice to the rights of the general creditors. Pennoch v. Ooe, 23 How. U. S. 117; Beall et al. v. White et al. 4 Otto, 382.</p>

<p>The ordinance of the city of Providence prohibiting the opening of shops, &c., on Sunday, is void because inconsistent with the Sunday laws of the State.</p>

<p>Case, against the defendants as garnishees. Heard by the court.</p>

<p>Bill IN Equity for specific performance.</p> <p>The bill of complaint prayed specific performance of an agreement for the sale and purchase of real estate. It appears from the record that the complainants hold under a deed from the Providence Aqueduct Co. to Zephaniah Wood, which contains the following habendum:</p> <p>“ To have and to hold the above bargained premises to him, the said Zephaniah Wood, his heirs and assigns forever, in special trust, however, to and for the following uses and purposes, to wit:</p> <p>“ The said Wood and his successor or successors in this trust shall hold said premises to and for the sole and separate use and benefit of Charlotte M. Read, wife of Horace Read, of said Providence, for and during the full term of her natural life, separate from and independent of any interference or control of her present or of any future husband, he, the said Wood, paying over to her, and her only, all the rents and profits of said premises, or permitting her to occupy the same according to her sole election. In case the said Charlotte M. shall decease during the lifetime of the said Horace Read, the said Wood, his successor or successors in this trust, shall convey said bargained premises to him, the said Horace Read, his heirs and assigns, in fee simple. In case the said Charlotte M. survives the said Horace Read, then the said Wood, or his successor or successors in said trust, shall, on the decease of said Charlotte M., convey said bargained premises to the rightful and lawful heirs of the said Horace Read in fee simple.”</p> <p>Charlotte M. Read survived Horace Read, and is dead. The complainants are the heirs at law of Horace Read. Zephaniah Wood is also dead, and no conveyance of the realty has been made to the heirs of Horace Read.</p> <p>The respondent admitted the agreement on his part to purchase the realty described in the bill of complaint, but objected to the relief asked for by the complainants, on the ground of their inability to convey to him a good title in the realty.</p>

<p>Debt. Heard by tbe court, jury trial being waived.</p>

<p>Petition presented under Gen. Stat. R. I. cap. 40, §§ 11,12.</p>

<p>Case. Heard by the court under the following agreement signed by the attorneys of the litigants :</p> <p>“ In said case both parties waive a jury trial, and agree that judgment shall be without costs for either party, and that the case shall be tried upon the following statement of facts:</p> <p>“ The property described in the plaintiff’s declaration was taken by Richard Fenner, by virtue of a writ of replevin, as stated in the plaintiff’s declaration, on the 27th day of April, A. D. 1868, and was kept by said Fenner and used by him in and about his business, and taken- care of in the same manner as if he was the owner of the same, until the 15th day of December, A. D. 1869, when it was returned to the plaintiff.</p> <p>“ That the judgment in the replevin suit commenced by said Fenner, and mentioned in the plaintiffs declaration against Davis, was terminated by a judgment in favor of said Davis for a return and restitution of the property replevied, and for damages at the rate of six per cent, per annum on the penal sum of the bond in said suit, as provided in cap. 208 of the Revised Statutes in force at that time.</p> <p>“ That afterwards a suit was commenced against said Fenner on the bond in the replevin suit mentioned in the plaintiff’s declaration for not returning the property in as good order and condition as when taken, in which the plaintiff recovered the sum of ten dollars damages and costs of suit, taxed at sixty dollars, at the October Term of the Supreme Court, A. r>. 1870.</p> <p>“ If the court decide that the plaintiff under the above statement is entitled to judgment for any sum for the use of the property during said time, then the case shall be sent to an auditor.” ....</p> <p>In view of the decision of the court the rest of the agreement is immaterial, and is therefore not given.</p>

<p>Dependant’s petition for a new trial.</p>

<p>One ^vho indorses a writ or process in order to become bail under Gen. Stat. it. I. cap. 196, § 8, must write out his Christian name in full.</p>

<p>By the decree of a Probate Court commissioners were appointed on the insolvent estate of a decedent, and six months were allowed to creditors to prove their claims against the estate. The six months expired on Sunday. The commissioners held their last meeting on the following day:</p> <p>Held, that the acts of the commissioners were according to law.</p> <p>Held, further, that the duty of the commissioners required them to sit on the last day of the six months.</p> <p>"Whenever a given period is fixed within which an act must be done, Sundays, which fall within the period make a part of it; but if the period closes on Sunday the act may be done on the following day.</p>

<p>In equity proceedings the question at issue between the complainant and the respondent resolved itself upon the proof into whether the complainant was entitled to equitable relief for the inundation of his land and of a private pass-way connecting his land with a highway which was caused by a dam built by the respondent, and also whether the complainant was entitled to equitable relief for the interruption thus caused to his access to the highway. It appearing that a new and more convenient highway than the old one had been laid out over and along the dam, and also that the slope of the dam covered part of the old highway, and also that the location of the old highway had never been legally changed by the town authorities :</p> <p>Held, that the dam was a nuisance in law but not in fact.</p> <p>Held, further, that as the public received no detriment, the complainant could only have relief for his individual injury.</p> <p>Held, further, that the complainant was entitled to relief for the inundation.</p> <p>Held, further, that the complainant would be sufficiently relieved by an enlargement of the water aperture of the dam.</p> <p>And it appearing that raising the grade of the private pass-way would give the complainant convenient access to the new highway :</p> <p>Held, that the interruption to the complainant’s access to the highway was capable of pecuniary compensation, and therefore remediable at law;</p> <p>Held, further, that the decree should be without prejudice to the complainant’s legal remedy unless the parties preferred to have a master ascertain the complainant’s damage.</p>

<p>On a testamentary trustee’s bill for instructions:</p> <p>Held, that the court would only instruct the trustee in regard to circumstances actually existing or tolerably certain to arise in the course of his trust management.</p> <p>Held, further, that the court would not decide whether an interest was vested or contingent in a case where the question could only become important to the trustee by the death of a living cestui.</p> <p>Bequest as follows:</p> <p>“ At the period when my youngest living son attains the age of twenty-one years, said trustees shall pay over and convey absolutely all my manufacturing property consisting of all my interest and shares in the Lonsdale Company, the Blackstone Manufacturing Company, and the Hope Company, then remaining in the hands of said trustees, in equal shares unto my sons then living, and the lawrful issue then living of any son then deceased; said issue to be entitled (in equal proportions) to the same share thereof to which said son, if living, would be entitled: ”</p> <p>Held, that the bequest applied only to the three corporations named, although the testator owned other manufacturing property.</p> <p>The residue of the testator’s estate, including the above named manufacturing property, was given to trustees to manage, &c., and to pay certain sums to his widowr from the income. The will then continued:</p> <p>“ The residue of said income, in whole or in part, entirely in the discretion of said trustees, shall be paid over, semi-annually, or as often as convenient, unto my children, and the lawful issue of any deceased child, or applied for their support, maintenance, and education, or otherwise appropriated for their benefit, in such proportions, in such sums, at such times, and in such manner, as said trustees in their discretion may think best, — until my youngest living child shall attain the age of twenty-one years, or until the termination of this trust, upon the decease of my last surviving child, in case he or she shall survive my wife, and shall not live to attain the age of twenty-one years, as hereinafter provided: and such part of said income as said trustees shall see fit may be allowed to accumulate, and be distributed and paid over by said trustees unto my children, and the lawful issue of any deceased child, in such proportions as said trustees shall see fit, at the period when my youngest living child shall attain the age of twenty-one years, or at any time prior thereto, if said trustees shall think best.</p> <p>“And for and during the remainder of this trust, and from and after the period when my youngest living child attains the age of twenty-one years, all the residue of said income shall be paid, semi-annually, or as often as convenient, in equal shares, unto my children, and the lawful issue of any deceased child: such issue taking the parent’s share.”</p> <p>Held, that the income of the manufacturing property specially bequeathed made when received an indistinguishable part of the common income of the estate.</p> <p>Held, further, that the trustees, if they had the power to sell the manufacturing property specially bequeathed, should not exercise such power without reasons of extraordinary urgency.</p> <p>The will contained the following provision:</p> <p>“ At the period when my daughter attains the age of twenty-one years, said trustees shall transfer and convey, in fee simple, unto my said daughter, her heirs and assigns forever, one half part of all my real estate situated in the city of Providence, then remaining in the hands and possession of said trustees, including in said half part my Mansion House Estate, subject to the life estate of my wife. And said trustees are hereby empowered to divide, set off, and make partition of said half part of said real estate, and the division and partition so made shall be final and conclusive : ”</p> <p>Held, that the partition could not be made until the majority of the daughter, and that meanwhile the income of the realty made part of the general income of the estate.</p> <p>The trustees had power given them by the will “ to lease any portion of said real estate for such period, and upon such terms and conditions as they shall think best: ”</p> <p>Held, that they could make long leases with provisions for the purchase of improvements made by the lessees, as agreed, or upon appraisal, and also with provisions for altering the rent from time to time, by arbitration or appraisal.</p> <p>Query, whether they could superadd covenants of renewal.</p> <p>Testamentary trustees had power to “sell,” “vest and reinvest” any part of the principal of the trust fund, and were directed to invest the surplus income in certain specified ways:</p> <p>Held, that the specified investments of the income did not control the trustees in their re-investments of the principal.</p>

<p>The separate statutory estate of a married woman in her realty, under the laws of Rhode Island, is not subject to an equitable charge for her individual contracts in favor of her creditors.</p>

<p>A statute was repealed and was subsequently reenacted in the following terms: “ Section ’ 2 of chapter 73 of the General Statutes is hereby reenacted and declared to bein full force.”</p> <p>Held, that the reenactment was valid.</p>

<p>Troveb. On motion to dismiss an appeal.</p>

<p>Boards of canvassers sitting to correct voting lists exercise judicial functions.</p> <p>Query. Whether they are liable in a civil action for striking a name from the voting list or for refusing to place a name on it.</p> <p>But if they are so liable :</p> <p>Meld, that they are to judge of the proof prescribed by Gen. Sfcat. R. I. cap. 7, § 14, and that in the absence of evidence showing that they struck a name from the voting list without proof of disqualification which was satisfactory to them, judgment must be given in their favor.</p> <p>Gen. Stat. R. I. cap. 7, § 21, provides that the canvassers shall not be answerable for refusing to place on the voting list an omitted name “ unless they shall be furnished with sufficient evidence of the omission and of the qualifications as a voter of the person omitted: ”</p> <p>Held, that the canvassers were to judge of the sufficiency of the evidence.</p> <p>In an action against them for refusing to place a name on the voting lists:</p> <p>Held, that in the absence of evidence showing that they decided dishonestly, or with a wilful purpose to deprive the plaintiff of his rights, although their decision was precipitate and erroneous, judgment must be given in their favor.</p>

<p>Debt. Heard by the court, jury trial being waived.</p>

<p>A voluntary assignment for the benefit of creditors provided that the dividends of such creditors as did not execute a release within three months from the date of the assignment should he paid to the assignors or their appointees. Certain creditors of the assignors exhausted their remedy at law against the assignors, and filed a bill in equity to establish a lien on the dividends of such non-releasing creditors in the hands of the assignee:</p> <p>Seldf that they were entitled to the relief claimed.</p> <p>Held, further, that the lien on the equitable assets dated from the filing of the bill.</p>

<p>Bill IN Equity for an account and to redeem.</p> <p>The facts, as they appear from the pleadings, and so far as they bear upon the decision of the court, are: Francis McLaughlin and James McLaughlin mortgaged certain realty in Providence whereof they were tenants in common in equal shares, to James Hanley, March 1,1873. James McLaughlin deeded to James Han ley his interest in the mortgaged realty, August 9, 1876. Ann McLaughlin sued out a writ from this court against Francis McLaughlin, and served it by attaching his interest in the mortgaged realty, September 5, 1874. She obtained final judgment at the March Term, 1877, for the county of Providence, and levied her execution on the attached realty, April 18, 1877. She bought in the realty attached, and received a deed from the sheriff dated July 23,1877.</p> <p>James Hanley made an assignment of the mortgage given to him by Francis and James McLaughlin to John B. Foley, by deed dated May 1,1877. This assignment was not acknowledged, and was recorded June 21, 1877.</p> <p>John B. Foley sold the mortgaged realty under the powers given in the mortgage, June 4, 1877. Bryan Kiernan being the purchaser.</p> <p>Bryan Kiernan conveyed the mortgaged premises purchased by him to James Hanley, by deed dated June 8, 1877.</p> <p>Thereupon, Ann McLaughlin, with her husband, Patrick, filed the bill in this case against Hanley, Foley, Kiernan, and the mortgagors, praying for an account from Hanley, that she might be allowed to redeem the undivided half of the mortgaged realty which formerly belonged to Francis McLaughlin.</p>

Debt. On motion in arrest of judgment. This action was debt on a guardian’s bond.

<p>Gen. Stat. R. I. cap. 79, prohibiting the sale and the keeping for sale of intoxicating liquors, contains no exception in favor of importers whose imported liquors remain in the original packages, or of dealers holding outstanding licenses :</p> <p>EM, that the chapter, although void as to such importers, and perhaps void as to license holders, was valid as to others.</p> <p>A law which is constitutional within certain limitations may, if it exceeds those limitations, be valid within them and void only for the excess.</p> <p>Objections to the form of a criminal complaint cannot be taken in proceedings under Gen. Stat. R. X. cap. 209, §§ 1-9, Of taking constitutional questions to the Supreme Court.</p>

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

<p>Gen. Stafc. R. I. cap. 151, § 1, provides that a married woman living in the State without her husband, under certain conditions and in certain circumstances, may be sued as a feme sole: § 5 provides that “if the husband of any such woman shall afterwards come into this State and claim his marital rights, his arrival here shall have the same effect, with regard to any suit then pending in which she is a party, except to abate the same .... as if they had been first married at the time of his arrival here: ,J . . . .</p> <p>Seld, that under this statute a pending suit against the wife abated immediately on the husband’s arrival, if such arrival was coupled with a bond fide claim of his marital rights.</p>

Exception's to tbe Court of Common Pleas. Section 7 of the charter of the defendant corporation, granted May, 1872, directs that after the road shall have been located, the Court of Common Pleas shall appoint commissioners to estimate the land damages, and to make report thereof to the court appointing them. Any person interested may, if dissatisfied, apply for a jury trial in the Court of Common Pleas to fix the amount of his damage.

<p>No action lies against a municipal corporation for allowing the ordinary and natural flow of surface water to escape from a highway on to adjacent land. Nor will an action lie for the results of such usual changes of grade as must be presumed to have been contemplated and paid for at the lay-out of the highway.</p> <p>- A municipal corporation has the same powers over its highways in respect to surface water as an individual has over his land, Inman y. Tripp, 11 [K. I. 520, explained and affirmed.</p>

<p>A. indorsed a note made by W. and delivered it to W. to raise funds on. W.. pledged it to P. for a debt due, which was afterwards paid. W., owing another debt to P., wrote to P., while the note formerly pledged was still in P.’s hands, that W. had arranged with his creditors for a time and wished the debt due to P. carried for a while, P. to hold as collateral as before, the note indorsed by A. A. was secured for his indorsement.</p> <p>In an action by P. against A. the indorser:</p> <p>Meld, that the letter of W. to P. implied an actual pledge, and was not a mere offer to pledge.</p> <p>Meld, further, that P. could recover.</p>

Bill in Equity brought against the respondent, Gower, his wife, and the Rhode Island Hospital Trust Company, as trustee for Mrs. Gower, in order to establish a charge on certain trust funds in the possession of the company, for the payment of a debt alleged to have been contracted by the respondent, Mrs. Gower, in 1871, under her then name of Perry.

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

<p>A married woman bought certain realty of K., and in part payment gave her sole note secured by her sole mortgage. The note not being paid and the record title to the realty remaining in her name unincumbered, K. filed a bill in equity against her and her husband to establish his vendor’s lien for the purchase-money on the realty in question:</p> <p>Held, that he was entitled to the relief claimed.</p>

<p>The relation of attorney and client defined.</p> <p>Champerty condemned.</p> <p>A mandate of the court ordered, directing one of its attorneys to pay to his client certain moneys which he received from the attorney of the opposite party and claimed the right to retain as fees. The money was received on discontinuing an action begun by attachment, the defendant in which became bankrupt more than four months after the attachment was made, and no information of the receipt of the money was given to the plain-tifí by his counsel, the attorney in question.</p>

<p>Trespass quare clausum. Heard by the court, jury trial being waived.</p>

Bilu in Equity charging fraudulent conversion of funds and praying for an account and injunction. The facts and previous proceedings are reported in 9 R. I. 602 and 11 R. I. 195.

Scere EACIAS on a defaulted recognizance. On demurrer to tbe writ and on motion for leave to withdraw demurrer and to plead.

<p>Whether one oí several indorsers on a promissory note is co-surety with the rest for the maker, or surety for the maker and the preceding indorsers, depends on the intention of the parties.</p> <p>Parol evidence is admissible to show this intention.</p> <p>H. made a note which was indorsed by W. and R. and sent to T. To have it discounted T. was obliged to indorse it, which he did without any agreement with the other parties. T. was compelled to pay the note.</p> <p>Held, in equity, that T. was entitled to full reimbursement of his payment from H., W., and R.</p> <p>W. being dead, and his estate insolvent: W.’s administrator holding a trust fund to protect W.’s indorsements for H., although the fund was insufficient, and H. being insolvent :</p> <p>Held, That T. should receive: 1. A. pro rata dividend from the trust fund; 2. A pro rata dividend on the balance of the note from H.’s assignee; 3. A pro rata dividend, not to exceed one half of the residue of the note from W.’s estate; 4. The remainder of the note from R.; or that T. might collect the whole from R., who should be subrogated to the rights of T.</p>

<p>In an action brought by a -workman against the coporation which employed him, to recover compensation for injuries which the plaintiff alleged were caused by the neglience of the defendant in not keeping in proper repair certain machinery operated by the plaintiff, in not keeping this machinery properly protected and boxed, and in not keeping the room in which this machinery was placed properly lighted, it appeared that the plaintiff was a man of mature years and ordinary intelligence, and had worked at the machinery in question for four years; that the room was lighted as usual; that he had operated the machinery for weeks in its imperfect state without protest or complaint; and that no statute in Rhode Island required such machinery to be boxed:</p> <p>Held, that the plaintiff could not recover.</p> <p>Meld, further, that one voluntarily entering a dangerous service, knowing the danger, himself assumes the risk of his employment.</p> <p>- Held, further, that one continuing to work exposed to a known danger, without complaint, without any promise that the danger shall be removed, and not under stress of special exigency, consents to the risk of his employment.</p>

<p>In Rhode Island a plaintiff cannot by process of foreign attachment garnish himself.</p>

<p>In Rhode Island a garnishee may make his affidavit at any time during the term of court next after his garnishment, notwithstanding judgment may have been entered against the defendant in the course of such term and before the affidavit is made.</p> <p>Phetteplace cf Seagram v. Lincoln, 1 R. 1.287, affirmed.</p> <p>A creditor cannot supplement a garnishee’s affidavit by extrinsic testimony and recover partly on the affidavit and partly on the testimony.</p> <p>A copartnership credit cannot be attached by process of foreign attachment for the individual debt of one of the copartners.</p>

<p>Under Gen. Stat. B. I. cap. 184, § 2, which gives jurisdiction: “ Of all actions brought for possession of tenements or estates let, against-tenants and others who have broken the terms or conditions of the lease or agreement under which they held, or who hold or occupy tenements or estates by wrongful entry or detainer, or as tenants at will or by sufferance: 99 Special Courts of Common Pleas have jurisdiction only in cases of letting.</p>

<p>A Justice Court, by rendering final judgment in an action and adjourning, exhausts its jurisdiction over such action.</p> <p>April 24, a Justice Court rendered judgment by default for the defendant, and adjourned. April 27, on motion of the plaintiff and against the protest of the defendant the default was taken off and the case continued. May 8, judgment was entered for the plaintiff. Held, that all proceedings after April 24 were coram nonjudice and void.</p> <p>The refusal or neglect of a garnishee to answer written interrogatories filed under Gen. Stat. R. I. cap. 197, § 12, after he has rendered “the account in writing under oath, required by § 10 of the same chapter,’’ does not make him liable to satisfy the plaintiff’s judgment.</p> <p>Falk v. Flint, ante, page 14, affirmed.</p>

Exceptions to the Court of Common Pleas. Public Laws R. I. cap. 475, April 16, 1875, provides: “The appellant' shall in no case, civil or criminal, be required to obtain or file a copy of the case or proceedings appealed from, but whenever his reasons of appeal are entered in the appellate court, the clerk or jngtice having custody of the original papers shall file the same wi^tbe clerk of such appellate court.” This statute being in force, Matteson sued Chase in the Justice…

<p>Case, against tbe defendant as garnishee. On motion to arrest judgment.</p>

DEFENDANT’S petition for a new trial. The plaintiff sued on the following agreement of guaranty. “ PROVIDENCE, June 29, 18/6. “ Whereas I, Robert Morrow, have this day let the house and store No. 61 Wickenden. Street to John Morris, of Providence, for $42.50 per month.

<p>Assumpsit. On defendant’s motion to stay execution.</p>

<p>Any action which the plaintiff may discontinue as of course may be discontinued by him at any time after the return of the writ by simply filing with the clerk, either in term time or vacation, the notice prescribed by Gen. Stat. R. I. cap. 200, § 1.</p> <p>Query. Whether Gen. Stat. R. I. cap. 200, § 1, applies, when by the discontinuance a claim pleaded in set-off would be outlawed by the statute of limitations.</p>

Exceptions to tbe Court of Common Pleas. This case was a criminal complaint before the Justice Court of Coventry for a violation of Pub.

<p>Public Laws of E. I. cap. 629, March 30, 1877, which, subject to certain exceptions, prohibits the sale of any merchandise within one mile of the place where a religious society is holding an out-door meeting, unless the society consents to the sale, is a police regulation, and as such is constitutional.</p>

<p>Bequest as follows:</p> <p>“I give and bequeath to my brother, Benjamin H. Aldrich, ten of my shares in the capital stock in the Smithfield Lime Rock Bank, in trust for the use and benefit equally of my two brothers, Alpheus B. Aldrich and Dexter A. Aldrich, to be appropriated to each of their sole uses and benefits at his discretion; and if either of them shall die during the lifetime of my said brother Benjamin, my will is that he cause suitable marked stones to be erected at his or their graves, and that the expenses thereof be paid out of this bequest; and if any of this bequest so left in trust shall remain after the decease of my said brothers, my will is that the amount so left, if any, shall be divided equally between my said brother Benjamin H. Aldrich and my brother Cyrus C. Aldrich: ”</p> <p>Seld, to create a trust and not a mere power to be exercised at the discretion of Benjamin H. Aldrich.</p> <p>In doubtful cases the court leans to an interpretation which creates a trust rather than an arbitrary power.</p>

<p>Bill in Equity for foreclosure.</p>

<p>A will after directing the payment of debts and expenses and ordering certain outlays, contained bequests both specific and pecuniary, and closed with a residuary clause which gave “ all the rest, residue, and remainder of the estate and property, not hereinbefore disposed of of whatsoever name and nature, and wherever the same may be,” to H. 0. A., who was a son of the testatrix, and was named as executor:</p> <p>The personalty of the estate sufficed for the debts, expenses, and specific legacies, but was insufficient to pay the pecuniary legacies in addition :</p> <p>Eeld, that the pecuniary legacies were a lien on the realty of the estate.</p> <p>Held, further, that this lien should be enforced in equity.</p> <p>Eeld, further, that the court would not, from the implied lien, imply a power in the executor to sell the realty when this implied power was not necessary to carry out the will.</p>

<p>An allegation in a criminal complaint that tlie defendant did keep . . . . “ for the purpose of sale, and not for the purpose of exportation, ale, wine, rum,” &c., is not equivalent to an allegation that the liquors were kept for sale, and not for sale for exportation.</p> <p>An allegation in a criminal complaint that the defendant did keep, &c., uale, wine, rum, and other strong and malt liquors, and mixed liquors, a part of which was ale, wine, rum, and other strong and malt liquors,” is sufficiently certain, and is supported by proof of keeping, &c., lager bier.</p>

<p>Plants in the plaintiff’s greenhouse, connected with the public sewers, were injured by illuminating gas which escaped from the mains of the gas company, the defendant, into the sewers, and th'ence found its way to the greenhouses. It appeared that when the sewers were built by the city of Providence the earth was not properly packed, and the subsequent settlingopened a leak in the gas-pipes, which caused the injury complained r of. In an action against the gas company:</p> <p>Meld, that being in charge of a dangerous material, the gas company was bound both itself to exercise due care proportioned to the risk, and also to use similar care in preventing careless interference with its pipes by others. The company could not prevent the construction of the sewer, but was bound to see that the earth was properly pu bach; that the pipes were properly supported, and that all needful repairs were made with reasonable speed.</p> <p>Held, further, that the jury was to decide whether the company had exercised such care.</p> <p>Held, further, that evidence of the presence of gas in other greenhouses connected with the same sewers was properly admitted.</p>

<p>Appeal from tbe Probate Court of Pawtucket.</p> <p>Spencer B. Mowry, Senior, died September, 1866, testate. His will made no provision for bis posthumous son, Spencer B. Mowry, Junior, but gave a legacy to Abby P., a sister of tbe testator, and tbe rest of bis estate to bis wife Belinda, who afterwards married James 0. Draper. Under Gen. Stat. R. I. cap. 171, § 12, tbe will was therefore inoperative, there being no personalty. Spencer B. Mowry, Junior, died February 12,1872.</p> <p>Thomas Robinson was appointed administrator of the estate of Spencer B. Mowry, Senior, October 2, 1872. He represented the estate insolvent, and commissioners were appointed December 18,1872. They allowed the widow’s claim of $i,351.85, and reported April 23, 1873. Their report was received by the Probate Court May 21, 1873. Appeals were taken, which were considered by this court, 11 R. I. 420-424. Robinson, as administrator, February 8, 1877, presented his petition for leave to sell the realty of the estate of Spencer B. Mowry, Senior. The Probate Court granted the petition, and this appeal was taken. Spencer B. Mowry, Senior, left two brothers, Erastus R. Mowry and Albert C. Mowry, and two sisters, Abby P. Mowry and Harriet E., wife of George H. Barnes. These brothers and sisters being the next of kin of Spencer B. Mowry, Junior, of the blood of Spencer B. Mowry, Senior, were the heirs at law of Spencer B. Mowry, Junior. Gen. Stat. R. I. cap. 176, § 6. This appeal was taken by Erastus R. Mowry, Albert C. Mowry, and George H. Barnes and his wife.</p>

<p>Bill in Equity. The facts involved and the prayer of the bill are stated in the opinion of the court, and are given in detail) ante, p. 153.</p>

<p>Delegated power requiring the exercise of judgment or discretion cannot be again delegated.</p> <p>A subscription agreement to corporate stock provided that subscriptions “ should be paid in by instalments as may be called by a vote of two thirds of the board of directprs.” The directors authorized the treasurer to call for the subscriptions in such instalments as might be needed, &c.:</p> <p>Held, that the calls made by the treasurer under this authority were invalid.</p>

<p>DEFENDANT’S petition for a new trial.</p>

<p>A bond jide assignment made prior to the service of process by foreign attachment will de feat such attachment, although the garnishee knew nothing of the assignment until after •his affidavit was filed, provided he has such timely notice thereof as will enable him by permission of court to modify his affidavit so as to conform it to the facts.</p> <p>Noble, v. Smith, 6 R. I. 446, and Northam v. Cartright, 10 It. I. 19, affirmed.</p>

<p>ASSUMPSIT. Heard by the court on the following statement of facts agreed to by the attorneys of the litigants :</p> <p>William W. Brayton purchased of one Alexander O’Toole certain realty and received a deed. O’Toole had previously given three mortgages on the property, and these mortgages are all referred to in the deed. This portion of the deed is recited in the opinion of the chief justice. Urquhart, the plaintiff, was the third mortgagee. After the purchase by Brayton the property was sold under the first mortgage. Prior to this sale and after his purchase Brayton paid two instalments of interest on Urquhart’s note, the money to pay one of which was furnished by O’Toole, and the funds to pay the otherwere furnished by Bray-ton himself. Brayton, hearing that Urquhart was willing to sell O’Toole’s mortgage for $200, offered this sum, which was refused, Urquhart demanding $400 for it, an amount which Brayton refused to give.</p> <p>The action was begun in the Court of Common Pleas and brought into this court by the plaintiff’s appeal.</p>

<p>The charter of a corporation contained the following provisions : “ But no stockholder shall sell liis or her stock, or any portion of the same, without first giving the corporation the refusal of the same for ten days at the price he is willing to sell: ”</p> <p>Meld, that this provision did not apply to a sheriff’s sale on execution against a stockholder.</p> <p>The purchaser, at a sheriff’s sale on execution, of stock in a corporation whose charter gave it a preemption right to its stock, filed a bill in equity against the corporation to compel a transfer of the purchased stock without first demanding such transfer:</p> <p>Meld, no reason for dismissing the bill.</p> <p>The advertisement of an execution sale for July 18, 1870, was first published July 8, 1870, and embraced the stock owned by a judgment debtor, October 17, 1867. July 11, 1870, the word “ October*” was struck out of the advertisement and the word “ September ” substituted, the stock being the same at both dates. The statute required advertisement for at least ten days, and the sale took place July 18, 1870 :</p> <p>Held, that the statute requirements were sufficiently met.</p>

<p>B. & S., manufacturers, were the sole stockholders and officers of the B. Companj--, a corporation. B., the chief owner of the property used by B. & S., transferred this property to the B. Company by a deed which contained the following provision : “ In further consideration for the premises hereby conveyed, the said B. Company agree and are to pay and discharge all the indebtedness now existing against said B. and B. & S., now due, or to grow due: ”</p> <p>Held, that under this provision the B. Company was liable for the outstanding notes of B. & S-, and for renewals of the same, also for the outstanding accommodation indorse-ments of B. & S., whether due or to become due, and for the renewals of such indorse-ments.</p> <p>Held, further, that the holders of these notes, original and indorsed, were either directly or by subrogation entitled to payment from the B. Company.</p> <p>Certain outstanding notes with the accommodation indorsement of B. & S. were held by banks. At their maturity it appeared that other notes for the same amount, and with the same indorsements, were offered for discount and accepted; that the proceeds of the discount were placed to the credit of the makers, who thereupon drew their checks for such proceeds; and with these checks paid their former notes which were returned to them stamped “ paid: ”</p> <p>JECeldf that this transaction made a new credit and a new loan, and that these latter notes were not renewals of the former.</p> <p>Held, further, that these latter notes were not protected by the provision in the deed from B. to the B. Company.</p>

<p>Assumpsit. On motion for leave to file a plea of set-off.</p>

<p>Replevin. On motion for execution.</p>

<p>Bill in Equity for specific performance.</p>

<p>Debt. On motion to dismiss.</p>

<p>ALTERNATIVE WBIT OP Mandamus. On demurrer to the respondent’s return to the writ.</p>

<p>When a replevin bond has been given in accordance with Gen. Stat. B. I. cap. 224, § 3, and the plaintiff in replevin does not enter his suit, an action may be brought on the bond without first obtaining judgment for return and restoration as provided for by Gen. Stat. K. I. cap. 224, § 5.</p> <p>The object of a replevin bond is to indemnify the defendant in replevin.</p> <p>The statutory provision for a judgment for return and restoration on complaint, if the re-plevin suit is not entered, is for the benefit of the defendant in replevin, not of the plaintiff nor of his sureties.</p>

<p>A decree of divorce awarded alimony to the wife “to be paid,” by the husband, “out of his refitl and personal estate: ”</p> <p>Held, that these word's did not create a charge on the husband’s real estate.</p> <p>Held, further, that after the husband’s death the wife’s only claim under the decree was that of a judgment creditor of his estate.</p> <p>Query. "Whether such a claim existed.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This case was a complaint and warrant brought under Public Laws, cap. 288, § 2, of March 19, 1878. The complaint, as provided by the statute, was made by “ George A. Simmons, overseer of the poor of the city of Newport.” The record in the Justice Court of Newport shows that the defendant was arraigned, pleaded not guilty, “ and recognized with surety in the sum of $500, to personally appear at the next term of the Court of Common Pleas after the birth of the child.” Pending the proceedings Simmons died. The case was heard at the May Term of the Court of Common Pleas for the county of Newport, A. D. 1878, and was brought to this court upon the defendant’s exceptions.</p>

Exceptions to tbe Court of Common Pleas. This action was assumpsit brought in tbe Justice Court of tbe town of Scituate and carried by tbe defendant’s appeal to tbe Court of Common Pleas.

<p>Under a statute which punishes as a common nuisance the keeping “ a grog shop, tippling shop, or building, place, or tenement, used for the illegal sale or keeping of intoxicating liquors, or where intemperate, idle, dissolute, noisy, or disorderly persons are in the habit of resorting; ” an indictment charged in one count the keeping a “common nuisance» f,0 a gj.0g six0p and tippling shop, and building,” &c., and in another count the keeping “a certain grog shop and tippling shop,” &c.</p> <p>Held, that the indictment was not bad for duplicity, nor for uncertainty.</p> <p>A defendant embarrassed by not knowing which of several nuisances kept by him in the town is covered by the indictment may have an order for information.</p> <p>A court may in its discretion allow leading questions to be put to a witness.</p>

<p>EXCEPTIONS to the Court of Common Pleas.</p> <p>contra, cited Snydacher v. Brosse, 51 Ill. 357, 360; Filkins v. O'Sullivan, 79 Ill. 524; Collais v. McLeod, 8 Ired. 221; Carpenter v. Stilwell, 11 N. Y. 61; Knott v. Jarboe, 1 Met. (Ky.) 504; Carter v. Harris, 4 Rand. 199 ; Drake on Attachment, § 184.</p>

<p>Bill in Equity, to set aside certain conveyances and to redeem. Heard on a plea to the jurisdiction.</p>

<p>An appeal from a town council order opening a highway was taken to the Court of Common Pleas and tried to a jury. After verdict, but before judgment, the town council passed a resolution discontinuing all proceedings relative to the highway, which resolution was afterwards revoked.</p> <p>Held, that the resolution had no effect on the appeal.</p> <p>Under Gen. Stat. R. I. cap. 59, § 3, the justice of the peace and constable who accompany a committee of lay-out are ministerial attendants, and their absence does not affect the validity of the committee’s action.</p> <p>In an appeal under Gen. Stat. R. I. cap. 59, § 11, the appellant may introduce evidence to show that the committee of lay-out was not composed of “ suitable and indifferent men,” and for this purpose he is not confined to the cross-examination and contradiction of the members of the committee.</p> <p>In such an appeal all the proceedings are before the Court of Common Pleas for adjudication de novo; hence the controlling motives of the town council are in the trial of the appeal irrelevant and immaterial.</p> <p>In such an appeal the jury decides whether the highway is “ necessary.” This means reasonably necessary, the cost and the utility both being considered: hence the presiding judge properly refused to instruct the jury to find the highway not necessary if its cost exceeded “the compensating benefit” to the public, or if a part of the cost was to be defrayed by private parties.</p>

PlaiNtiee’s petition for a new trial. This action was trover brought in the Court of Common Pleas and taken to the Supreme Court by the defendant’s appeal. It was heard by the court in the Common Pleas and was tried to a jury in the Supreme Court. The plaintiff is a deputy sheriff. March 17, 1875, a writ in favor of one Theodore Johnson against one Edgar W. Guild was put into his hands for service and was served by attachment of a piano as the property of Guild.

<p>Exceptions to the Court of Common Pleas.</p> <p>This case was tried in the Court of Common Pleas before a jury, to determine the amount of damage caused to the plaintiff by the construction of the defendant’s railroad over his land and by the defendant’s taking land and material belonging to the plaintiff for such construction.</p> <p>At the trial, the plaintiff, while testifying in his own behalf, was asked by his counsel:</p> <p>1. What is your estimate of your damages ?</p> <p>2. What is your opinion as to the damages sustained by you, and as to the value of the land taken ?</p> <p>To these questions the defendant objected. The presiding judge sustained the objections and the plaintiff excepted.</p> <p>cited Shattuelc v. Stoneham Branch B. B. 6 Allen, 115 ; Vandine v. Burpee, 13 Met. 288 ; Brill v. Flagler, 23 Wend. 354; Kellogg v. Krau-ser, 14 Serg. & R. 137 ; Bobertson v. Knapp, 35 N. Y. 91; Wallace v. Finch, 24 Mich. 256 ; Walker v. Oity of Boston, 8 Cush. 279; 111. f Wis. Ii. B. Go. v. Van Born, 18 Ill. 257 ; Dwight v. County Commissioners of Hampden, 11 Cush. 201; Bussell v. Horn Pond Branch B. B. Corporation, 4 Gray, 607 ; Inhabitants of West Newbury v. Chase, 5 Gray, 421; Fvansville, <fe. B. B. Co. v. Cochran, 10 Ind. 560 ; Cleveland ¿f* Pittsburg B. B. Co. v. Ball, 5 Ohio St. 568 ; Joy v. Hopkins, 5 Denio, 84 ; Clark v. Baird, 9 N. Y. 183.</p> <p>cited Giles v. O’Toole, 4 Barb. S. C. 261; Paige v. Hazard Sf Kelley, 5 Hill, 603 ; Fish v. Dodge, 4 Denio 311; Cook v. Brockway, 21 Barb. S. C. 331; Lincoln v. Saratoga Schenectady B. B. Co. 23 Wend. 425 ; Norman v. Well, 17 Wend. 136; Morehouse v. Mathews, 2 N. Y. 514 ; Van Deusen v. Young, 29 N. Y. 9; Clifford v. Bichardson, 18 Yt. 620; Crane fit ux. v. Northfield, 33 Yt. 124; Fraser v. Tupper, 29 Yt. 409 ; Oakes v. Weston, 45 Yt. 430 ; Town of Bo Chester v. Town of Chester, 3 N. H. 349; Peterboro v. Jaffray, 6 N. H. 462 ; Whipple v. Walpole, 10 N. H. 130 ; Beard v. Kirk, 11 N. H. 397; Atlantic Great Western B. B. Co. v. Campbell, 4 Ohio St. 583; Mitchell v. Allison, 29 Ind. 43; Bissell v. Wert, 35 Ind. 54; Thomas et al. v. Isett, 1 Greene (Iowa), 470 ; Whit-more et al. v. Bowman, 4 Greene (Iowa), 148 ; Gilbert v. Cherry, 57 Ga. 128; Largan v. Central B. B. Co. 40 Cal. 272; Baton v. Woolly, 28 Wis. 628; Hathaway v. Brown, 22 Minn. 214; Tinaley Bros. v. City of Providence, 8 R. I. 493; Buifum v. N. Y. # B. B. B. Co. 4 R. I. 221.</p>

<p>Prior to 1859 surveyors of highways had authority to make and change street grades at pleasure, and an abutting owner had no redress if the surveyors acted carefully and honestly.</p> <p>Public Laws R. I., cap. 310 of 1859, made the town liable for damages suffered by an abutting owner from a change of grade.</p> <p>Public Laws R. L, cap, 634, March 9, 1866, vested in the town councils the power to establish and change street grades.</p> <p>Gen. Stat. R. I. cap. 60 is substantially a digest of Public Laws, R. I., caps. 310 and 634.</p> <p>Hence a town is liable to an abutting owner for damages caused by the change of a grade which was established by the surveyor of highways before March 9, 1866, just as for damages caused by the change of a grade which was established by the town council after that date.</p> <p>An abutting owner is not entitled to compensation for the establishment or working of a grade when none previously existed</p> <p>Grading a highway involves something more than merely fitting it for travel.</p>

<p>Gen. Stat. R. I. cap. 195, § 26, provides that “ the court .... shall at any time before final judgment, .... upon motion of any defendant and for cause shown, require the plaintiff to procure .... a sufficient surety ” for costs.</p> <p>Under this law a defendant asked that a plaintiff, too poor to give security, might be required to furnish it.</p> <p>Seldj that an order to give security would be useless unless the court was prepared to dismiss the case for non-compliance.</p> <p>Held, further, that such a dismissal would violate Art. 1, § 5, of the Constitution of R. I.</p> <p>Held, further, that the court in such a case would require evidence of a probable cause of action before allowing the plaintiff to proceed.</p>

Bill of Interpleader. Pbinebas Potter died August 21, 1852, leaving a widow, Me-bitable, and an only child, Pbinebas.

EXCEPTIONS to tbe Court of Common Pleas. An indictment was found against tbe defendant in tbe Court of Common Pleas as follows : “ The grand jurors of the State of Rhode Island and Providence Plantations, and in and for the county of Providence upon their oaths present: That Patrick Dugan, laborer, Patrick Ma-loney, laborer, and Thomas Maloney, laborer, of Lincoln, in said county, on the fifteenth day of October in the year of our Lord one thousand eight hundred and…

<p>B. brought replevin against H., who pleaded non cepit, whereupon B. submitted to judgment.</p> <p>H. then brought trover against B. for the same property. B. pleaded the former judgment in bar, and H. demurred.</p> <p>Held, that the plea was bad. To make the admission of title implied in the plea of non cepit an estoppel against H., judgment in the replevin action should have been rendered against him and not in his favor.</p>

<p>Plaietiee’s petition for a new trial.</p>

<p>An insurance company has not an absolute right to collect the income of securities deposited with the general treasurer of the State under Gen. Stat. H. I. cap. 143, § 18, but may receive such income with the permission of the treasurer.</p> <p>This permission the general treasurer will grant or refuse as the interests of the policy holders may require. In case of refusal, the income accrues to the principal of the securities to pay, 1st, the policy holders, 2d, the other creditors.</p>

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

<p>Dependant’s petition for a new trial.</p>

<p>A. separated from her husband in 1870, and was divorced in 1874. Prom 1870 to 1875 she received B. asa boarder, and subsequently sued B. for the value of the board:</p> <p>Held, that A. was entitled to sue in her own name for board furnished prior to her divorce and subsequent to her separation from her husband.</p>

<p>Bill in Equity to obtain a construction of a will.</p>

<p>In Rhode Island, one who indorses a promissory note payable to another before its issue is liable to the payee as a joint maker.</p> <p>This liability is not modified by the fact that the payee knew the relation between the maker and indorser to be one of suretyship.</p> <p>Such an indorser is not entitled to notice of dishonor.</p> <p>Nor is he discharged by the payee’s delay in making demand on him, although he has through such delay lost all chance of indemnity from the maker.</p>

EXCEPTIONS to the Court of Common Pleas. This action was assumpsit brought by the plaintiff,- a minor, suing by his next friend, Frederick A. Barker, in the Justice Court of the city of Providence against the defendant, to recover “ the sum of forty dollars paid by the plaintiff, a minor, to the defendant, and wrongfully withheld by the defendant.” It was carried to the Court of Common Pleas by the defendant’s appeal and brought to this court by the defendant’s exceptions.

<p>Case against the defendants as heirs of one Joseph Martin. Heard by the court, jury trial being waived.</p> <p>The writs in these cases ordered the attachment of the real estate whereof Joseph Martin died seised, and directed the officer to summon the defendants as his heirs at law to answer the complaints of the plaintiffs, “ for that the said Joseph Martin, deceased, in his lifetime was justly indebted to the plaintiffs in a large sum, which neither he in his lifetime nor his administrator or executor have since his decease paid, the personal estate of said deceased being insufficient for the payment of said deceased’s debts, funeral expenses, and expenses of supporting his family and settling his estate.”</p> <p>The declarations contained counts on promissory notes made by Martin, and on indorsements also made by him. Letters of administration on Martin’s estate were granted May 11, 1875.</p> <p>The realty inherited from Martin was aliened by his heirs, the defendants, July 18, 1878.</p> <p>The attachments in these cases were respectively made August 26, 1878, and September 17, 1878.</p> <p>The cases came before the court on the validity of these attachments.</p> <p>Gen. Stat. R. I. cap. 178, contains the following provisions:</p> <p>“ SECTION. 1. The estate of every deceased person shall be chargeable with the expenses of administering the same, the funeral charges of the deceased, and with the payment of his just debts; and the same shall be paid by the executor or administrator of the estate out of the same, if, and so far as, sufficient therefor.</p> <p>“ Sec. 2. The personal estate shall stand chargeable for such expenses, charges, and debts, in the first instance, and the real estate for all the same which the personal estate shall be insufficient to satisfy, unless the deceased has otherwise directed by his last will and testament.”</p> <p>“ Sec. 14. No heir or devisee of any deceased person shall have power, within three years and six months after the probate of the will, or grant of administration on the estate of such person, to encumber or aliene the real estate of the deceased, so as to prevent or affect the sale thereof by the executor or administrator, if necessary, as prescribed by law: Provided, that after the expiration of three years and six months, the heir or devisee may aliene 'or encumber the same, and the same shall not be liable for the debts of the deceased in the hands of the purchaser thereof, or of any other person.</p> <p>“ Sec. 15. The liability of the real estate of deceased persons for the payment of their just debts may be enforced by actions of the case, to be brought against the heirs at law or devisees of such estate : Provided, the personal estate of the testator or intestate be insufficient for the payment of his debts, funeral charges, and expenses of supporting his family and settling his estate.</p> <p>“ Sec. 16. Such action shall be brought against all the heirs and devisees who took such estate by devise or descent from the testator or intestate, if to be found in,person or estate.</p> <p>“ Sec. 17. The writ in such action shall be served by attaching sucb real estate in tbe first instance, by process of summons and attachment, if sucb estate bas not been aliened by sucb beir or devisee; and in case of alienation, shall be in form and served as writs in‘other cases.</p> <p>“ Sec. 18. Tbe execution in sucb action shall be served upon, and the debt and costs levied and collected out of, tbe estate received from tbe testator or intestate by the several beirs or dev-isees, in tbe same proportion that they bold tbe same, if sucb real estate remain unaliened, and it can be conveniently so done ; and in case it be levied in any other proportion, tbe parties aggrieved thereby shall be entitled to a joint or several action against any person or persons in arrears, to recover sucb arrear-ages, with costs.”</p> <p>“ Sec. 20. If tbe beir or devisee of any sucb real estate shall aliene any sucb estate, before the same shall be attached for the debt of tbe testator or intestate, sucb beir or devisee shall be liable to pay tbe value of tbe estate so aliened to tbe creditor of tbe testator or intestate, to be ascertained by a court or jury, who shall assess tbe damages in tbe suit that may be brought against sucb heir or devisee as aforesaid ; and tbe execution in sucb case shall be served upon tbe beir or devisee who shall have aliened as aforesaid, or shall be levied on bis estate, in manner prescribed by law for bis own proper debt.”</p>

<p>EXCEPTIONS to tbe Court of Common Pleas.</p> <p>This was a criminal complaint brought before the Justice Court of the town of Johnston, and carried to the Court of Common Pleas by the defendant’s appeal.</p> <p>The parts of the complaint considered in the opinion of the court are as follows :</p> <p>“ County oe Pboyidence, &c.</p> <p>“ William A. Carroll, special constable appointed to make complaints for violation of the liquor laws under chapter 508 of Public Laws of Rhode Island, Town of Johnston, in said county, on oath complains in the name and behalf of the State, that at said Johnston, in said county, on the 30th day of November, A. D. 1877, with force and arms, Frank Carver of said Johnston, not being then and there a registered pharmacist, or registered assistant pharmacist in the employ of a registered pharmacist, and not acting as aid under the immediate supervision of a registered pharmacist, or registered assistant pharmacist; and not being then and there a practitioner of medicine, who did not keep open shop for the retailing, dispensing, and compounding of medicines and poisons, or a wholesale dealer supplying medicines and poisons to pharmacists and physicians; and not being then and there an importer,” &c., did “ unlawfully sell,” &c.</p> <p>The defendant asked the Court of Common Pleas to dismiss the complaint because no security for costs having been given, it did not appear of record that Carroll was a person exempt by statute from giving such security, and also asked the court to quash the complaint because no offence was sufficiently set forth, in that “ or ” is used in connection with registered pharmacist, &c. The court refused both requests, and the defendant excepted.</p>

<p>The charter of a railroad company required the corporation, when requested by the owner of land condemned for its use and before entering on such land, to give security for the payment of such damages as might be finally awarded.</p> <p>Held, that this provision neither barred nor suspended the statutory remedy for enforcing the award.</p>

<p>EXCEPTIONS to a Special Court of Common Pleas.</p>

<p>Motion in arrest of judgment.</p> <p>An indictment in tbe following terms was found against tbe defendant:</p> <p>“ PROVIDENCE, Sc. At tbe Court of Common Pleas of tbe State of Rhode Island and Providence Plantations, bolden at Providence, witbin and for tbe county of Providence, on tbe first Monday of September, in tbe year of our Lord one thousand eight hundred and seventy-eight.</p> <p>“ Tbe grand jurors of tbe State of Rhode Island and Providence Plantations, and in and for tbe county of Providence, upon their oaths present, That Charles C. Corbett and Frank E. Corbett, both of Providence, in said county, laborers, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and seventy-eight, with force and arms at Providence aforesaid, in the aforesaid county of Providence, 'unlawfully and maliciously contriving and intending to vilify one Wayland A. Wheaton, of the said Providence, in the aforesaid county of Providence, and to bring him into public scandal and disgrace, and to injure and aggrieve him, the said Wayland A. Wheaton, in the day, month, and year last above written, at Providence aforesaid, in the aforesaid county of Providence, unlawfully and maliciously did compose and publish, and cause and procure to be composed and published, a certain false, scandalous, mischievous, and defamatory libel of and concerning him, the said Wayland A. Wheaton, containing therein, among other things, the false, malicious, defamatory, and libellous words and matters, according to the tenor following, that is to say :</p> <p>“ ‘ Complaints have reached us of disgusting familiar practices being perpetrated upon little girls in the drug-store on the corner of Smith and Jefferson streets kept and run (?) by W. A. Wheaton. More complaints will be followed with a detailed report of how not to run a drug-shop.’</p> <p>“ To the great injury, scandal, and disgrace of the said Way-land A. Wheaton, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>At the trial in the Court of Common Pleas the presiding judge was requested by the defendants to give certain instructions to the jury. Exceptions were taken to his refusal, and after verdict for the State, a motion in arrest of judgment was made and dismissed and the defendants again excepted. The case was heard in this court on the exceptions, and on a motion to arrest judgment.</p>

<p>PlaiNTIEE’s petition for a new trial. The facts are stated in tbe opinion of the court.</p> <p>At common law, a wagering party can recover the money from the stakeholder upon demand, or on giving notice to him before he has paid it over. The Rhode Island statute does not cover this transaction. Ball v. Gilbert, 12 Met. 397-402 ; McKee v. Manice, 11 Cush. 357; Fisher v. Hildreth, 117 Mass. 558; Love v. Harvey, 114 Mass. 80 ; Wheeler v. Spencer, 15 Conn. 28 ; Morgan v. Groff, 4 Barb. S. C. 524; Perkins v. Eaton, 3 N. H. 152. Contracts only indirectly connected with wagers are neither void nor voidable. Turner v. Dodge, 1 Dane’s Abr. 194; Burton v. Gilliam, 2 Ill. 577; Heir-onimus v. Harris, 14 B. Mon. 313 ; Welford v. G-ilham, 2 Cranch C. C. 556 ; Jones v. Sevier, 1 Litt. 50; Bell v. Parker, 3 Dana, 51; Bowen v. JDoggett, 2 Nott & McO. 127.</p>

<p>A., through his agent B., purchased certain merchandise on credit and the day after its delivery made for the benefit of his creditors a general assignment to T. A.’s liabilities were large and his assets small. The seller after demand on T. brought trover for the merchandise.</p> <p>Held, that it was not necessary for the plaintiff to show a particular intent on the part of A. to defraud in the particular transaction in question.</p> <p>Held, further, that it was sufficient for the plaintiff to satisfy the jury of a general intent on the part of A. to defraud by continuing to purchase on credit after he had become hopelessly insolvent.</p> <p>Held, further, that the intervention of the agent was immaterial.</p>

Bill is Equity to terminate a voluntary trust created by the complainant for bis own benefit and to obtain a reconveyance of tbe trust property.

<p>A. made a mortgage oí realty with powers of sale and died intestate. After his death the mortgagee sold the realty and obtained a surplus over his claim. On a bill of interpleader brought by the mortgagee against the administrator with will annexed, the heirs, and the devisees of the deceased:</p> <p>Held, that the heirs and devisees were entitled to the profits of the surplus until legal measures were taken by the administrator to apply the surplus to the payment of the debts of his decedent. *</p> <p>Draper v. Barnes, ante, p. 156, affirmed.</p> <p>Seld, further, that the heirs and devisees were entitled to receive the surplus on giving proper security to repay it, or so much of it as might be needed to pay the debts of the decedent.</p> <p>Seld, further, that if such security was not given the surplus should be paid into the registry of the court.</p> <p>Seld, further, that this court would administer the surplus as the Court of Probate would do.</p> <p>There being under the will certain future and contingent interests:</p> <p>Seld, that these interests should have the same protection as to the principal of the surplus which they would have received if the surplus had not been converted from realty into personalty.</p>

<p>In an action brought by the holder of a promissory note against the first indorser, the defendant under Public Laws R. I. cap. 563 of April 20, 1876, summoned in the maker and second indorser as co-defendants.</p> <p>Held, that judgment should be entered against the maker and first indorser only.</p> <p>Held, further, that the second indorser had been improperly summoned in.</p> <p>As matters of practice under Public Laws, cap. 563:</p> <p>Held, that a time for appearance should be named in the summons.</p> <p>Held, further, that the judgment should in terms be entered against one defendant as principal and the other as indorser.</p> <p>Held, further, that the execution should contain an order to the officer, referring to the statute, to exhaust the property of the maker before levying on that of the indorser.</p>

<p>Case against the defendant as garnishee. Heard by the court, jury trial being waived.</p>

<p>A criminal complaint charged that the defendant did ‘‘revel, quarrel, commit mischief, and otherwise behave in a disorderly manner.”</p> <p>Held, that the word revel has a definite meaning, i. e. “to behave in a noisy, boisterous manner, like a bacchanal.”</p> <p>Held, further, that the complaint was not bad for uncertainty.</p>

Plaintiee’s petition for a new trial. The facts are stated in the opinion of the court. contended : 1. A municipal corporation is no more exempt from liability than an individual when its act results in the invasion of private property..

Assumpsit. Heard by tbe court, jury trial being waived. Of these cases that of Ordway Brothers & Co. was brought in tbe Court of Common Pleas. The case of Markland in tbe Supreme Court.

Dependant’s petition for a new trial. This action was trespass on the case brought by the plaintiffs, owners of a mill, mill privilege, and mill-dam, against the defendant, their tenant, for the destruction of the dam during a freshet, the dam, as they alleged, being carried away through the negligence of the defendant in not opening, the waste-gates.

<p>An award which is made under a material mistake of facts should be set aside.</p> <p>But the mistake of fact must be a wrong assumption made by the arbitrators, not a wrong conclusion drawn by them.</p> <p>A bill in equity to set aside an award, charged that the referees assumed as true what was in reality untrue, and on this assumption made their award. The bill was demurred to.</p> <p>Held, that the demurrer could not be sustained.</p>

<p>S. purchased certain articles of A., under an agreement by which they were to remain the property of A. until fully paid for. They were directed and sent to S. before being fully paid for, and while in transit were attached as the goods of S. The attaching creditor testified that B., A.’s agent to sell such articles in the place of S.’s residence, had told him the goods belonged to S. B. denied making this statement.</p> <p>Meld, that giving the information testified to by the attaching creditor did not fall within the scope of B.’s agency.</p> <p>Meld, further, that such information, even if given by B., would not bind A. unless given under special authority from A. to B.</p>

<p>A clause m a city charter provided that “ nothing in this charter shall be construed .... as giving power to vote money for any object except for the regular ordinary and usual expenses of the city.”</p> <p>This clause being in force the city council resolved to give a ball and banquet in honor of certain strangers. The resolution of the council and the preparations for the ball were well known, and September 9, 1878, the ball took place. September 27, 1878, certain tax-payers of the cityr prayed that the city treasurer might be perpetually enjoined from paying the bills incurred.</p> <p>Seldf that the injunction must issue.</p> <p>Held, further, that neither the fact that the city authorities had without objection given a similar ball in 1875, nor that the complainant tax-payers had waited till the expense had been incurred before filing their bill of complaint, nor that the caterers had acted in good faith and must suffer if the injunction issued, could be urged by the respondent treasurer against the prayer of the bill.</p> <p>Seldy further, that one who contracts with a municipal corporation is hound at his own peril to know the limits of municipal authority.</p>

<p>DEPENDANT’S petition for a new trial.</p>

<p>In an action against a sheriff for refusing to deliver a bail bond:</p> <p>Eeld, that the insolvency of the original debtor cannot be shown in mitigation of damages.</p> <p>Eeld, further, that the insolvency of the bail may be shown in mitigation of damages.</p> <p>B.-sued out a writ of arrest against H., and the sheriff accepted W. as bail. B. obtained judgment against H. The conditions of the bail bond were violated, and the sheriff refused to deliver the bond to B. H. was quite insolvent. W. could pay twenty-five cents on a dollar. In Case, brought by B. against the sheriff:</p> <p>Eeldy that B. should recover against the sheriff twenty-five per cent, of his original judgment against H.</p> <p>In Case, the amount of actual injury is the usual measure of damages.</p>

<p>In an action to recover a balance of an account the account is so far considered a single whole that the plaintiff cannot make its several items the subjects of distinct suits. He may sue for a part of the account, but if he does he cannot afterwards sue for the rest.</p> <p>A statute allowed the issue of a writ of arrest upon a debt contracted before July 1, 1870. The plaintiff sued out such a writ upon the balance of an account some of whose items bore date subsequent to July 1, 1870.</p> <p>Meld, that the arrest was illegal and void.</p> <p>The writ issued from the Court of Common "Pleas, a tribunal of superior jurisdiction.</p> <p>Meld, that the presumption of law was in favor of the validity of the process. Hence an allegation that the debt was incurred before July 1, 1870, was not required in the writ.</p>

Case, under Gen. Stat. R. I. cap. 41, § 26. Heard by tbe court on tbe following statement of facts agreed to and signed by tbe attorneys of tbe litigants: “ Suit by tbe tax-collector of Newport to recover the regular municipal tax ordered June 9, 1874, and assessed against the defendant by the tax assessors of said city during tbe summer, to wit, on tbe 31st day of August, 1874, and ordered to be paid on or before November 14, 1874.

<p>Assumpsit. On motion to strike out pleas.</p>

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

Assumpsit. Heard by the court, jury trial being waived. Gen. Stat. R. I. cap. 246, § 22, allows to sheriffs and their deputies, town sergeants and constables, as a part of their fees, “ if the damage laid in a writ of arrest, attachment, or replevin be over five hundred dollars .... one twentieth of one per cent, for all sums over.” November 10, 1877.

Bill IN Equity praying for the removal of an obstruction in an alleged street, and for an injunction. The pleadings and an agreed statement set forth the facts as stated in the opinion of the court. The answer contains three defences : 1. That the lay out of the street over public tide-waters, as made by the trustees of the Fox Point Association on tbeir plat, was invalid, 2.

<p>Bill IN Equity to establish a boundary line between riparian owners, and for an injunction.</p> <p>For tbe previous proceedings in this ease see 11 R. I. 594. After tbe respondents’ demurrer to tbe bill bad been overruled, they filed an answer and tbe case was beard upon its merits.</p>

<p>One asking relief in equity on tlie ground of fraud must affirmatively prove the fraud alleged.</p> <p>The rule-which forbids the transfer of property'to a donee who holds a fiduciary relation with the donor is relaxed where the relation is not strictly fiduciary.</p> <p>Hence where a step-mother conveyed certain realty to her step-sons, it not appearing that they managed her property or that she relied on their advice in business matters:</p> <p>Meld, that the utmost burden on the donees was to show that the donor when she conveyed the estate understood her act.</p> <p>Query, whether, if she attacked the validity of the conveyance, the burden was not upon her to show affirmatively that she misunderstood the nature of her act when she conveyed.</p> <p>A gift from a wife to a husband will not be set aside except on proof that it was unfairly obtained and the burden of proof lies on the party attacking the gift.</p> <p>Meld, that no more severe rule could be applied in the case of a gift from a step-mother to her step-children.</p> <p>The validity of a deed was attacked on the ground that the grantor never acknowledged it as the magistrate’s certificate stated.</p> <p>Query, whether this could be good ground for equitable relief.</p>

<p>Trespass on the case. On demurrer to the declaration. The facts are stated in the opinion of the court.</p> <p>cited Marble y. City of Worcester, 4 Cray, 395, -397 ; Mangan v. Atterton, L. R. 1 Exch. 239.</p> <p>cited Scott y. Sheperd, 3 Wils. 403; Thomas v. Winchester, 6 N. Y. 397; Vandenburgh y. Truax, 4 Denio, 464 ; Powells. Beveney, 3 Cush. 300 ; McDonald v. Smiling, 14 Allen, 290 ; Higgins y. Dewey, 107 Mass. 494; Qtuille v. Swan, 19 Johns. Rep. 381; Milwaukee ‡ St. Paul R. R. Co. y. Kellogg, 4 Otto, 469 ; Pennsylvania R. R. Co. y. Hope, 80 Pa. St. 373; Webb y. R. W $ O. R. R. Co. 49 N. Y. 420; Kellogg y. Chicago £ N. W. R. R. Co. 26 Wis. 223.</p>

<p>Bill in Equity, praying for an account and for an injunction. On demurrer to the bill.</p> <p>The bill charges that Frederick W. Holbrook and others of Boston, in the State of Massachusetts, formed a copartnership under the name of the New England Oyster Company, to carry on the business of planting and selling oysters ; that wishing to use for this purpose certain upland and tide-flowed ground at Oonimicut Point in Narragansett Bay, and learning that leases of tide-covered oyster grounds from the State of Rhode Island could by statute be granted only to inhabitants of Rhode Island, they arranged with the respondent, allowing him proper compensation, as follows: he to take in his own name, but for them, and at their expense, leases of tide-flowed oyster grounds from the State of Rhode Island, and to obtain for them and in their name a lease of adjacent upland; that the defendant obtained the lease of the oyster beds, but took the lease of the upland in bis own name. The bill continues:</p> <p>“ And after the execution of the said leases, pursuant to the understanding by and between your orators and the said McGar-vey, it was agreed between them that your orators should procure and plant oysters in said grounds, and should procure' and furnish at their expense all the necessary material and supplies for the transaction of, said business, and that said Alexander McGarvey should, under the direction of your orators, procure the necessary laborers, such as were not provided by your orators, at the expense of your orators, and have the general superintendence of said business and laborers; and in consideration of his taking and holding of said lease of grounds under tide-waters, and of such his superintendence, your orators agreed to pay the said Alexander McGarvey the large compensation of eleven hundred dollars the first year, and since then at the rate of twelve hundred dollars per annum.</p> <p>“ That under said agreement it became and was the duty of the said Alexander McGarvey to plant on said grounds, and to take up and forward to your orators in Boston, for the sole and exclusive benefit of your orators, oysters from said grounds from time to time, in such quantities as your orators should request, and at their expense.</p> <p>“ That under said agreement your orators conducted said business from about the day of A. D. 1872, performing on their part all the conditions of said agreement by them to be. performed, and paying to said. McGarvey said salary as agreed, until about the 1st day of January, a. d. 1879, when the said Alexander McGarvey refused to perform the conditions of said agreement by him to be performed : in this, among other things, he refused to take up and forward oysters from said grounds to your orators when requested ; he made claims upon your orators for the expenses of said grounds and business which had not been incurred by him; he made claims upon your orators for the wages of laborers not employed under the direction of your orators ; he took the oysters belonging to your orators and fraudulently converted them to his own use; and while refusing to perform the conditions of said agreement by him to be performed, he claimed possession and control of said grounds, and has forcibly prevented your orators from entering upon said grounds for the purpose of taking up tbeir oysters ; and while refusing to allow your orators to have possession and control of their own property, has demanded of your orators large sums of money as a condition of allowing your orators to have possession and control of the same.</p> <p>“ And your orators further represent that they have been ready and willing to settle all controversy and difficulty arising out of the failure of the said McGarvey to perform his agreements entered into as aforesaid with your orators, and have made what effort in .that direction they have been able to, but the said McGarvey has wholly refused to' comply with the reasonable requests of your orators in that behalf, and through the refusal of said McGarvey all efforts to make a fair and equitable adjustment have failed.</p> <p>“ And your orators further represent that since the refusal of the said McGarvey to perform his agreement with your orators, your orators are informed and believe it to be true, and therefore aver, that the said McGarvey has taken from said grounds leased for the sole benefit of your orators, and secreted large quantities of oysters, which he should have forwarded to your orators, and which your orators requested him to forward to them, and has. converted them or proposes to convert them to his own use.</p> <p>“ And your orators, since said refusal of the said McGarvey to keep his said agreements with your orators, have been further informed and believe it to be true, and therefore aver, for a long time past he has been in the habit of taking oysters from said grounds without permission, direction, or knowledge of your orators, and disposing of them in various ways, for his own benefit and profit.</p> <p>“And now your orators further represent that it is vital to.the prosecution of their said business that they should not only be in receipt of a supply of oysters from said grounds in season to meet the demands of their business, which they have relied upon, but that they should have the use of said grounds as they had anticipated they would have, at once, for the purpose of - planting oysters for the nest season.</p> <p>“ And your orators further represent that they have-expended1 large sums of money in the construction and erection of buildings and improvements upon said upland, leased as aforesaid, for their benefit, and upon tbe upland adjacent to said grounds, for the purposes of conducting said business, and upon the faith of said agreements made with the said McGarvey.</p> <p>“ But now your orators represent and complain that by reason of the refusal as aforesaid of the said defendant to perform the conditions of the agreements entered into with your orators as aforesaid, they are entirely cut off from their supply of oysters, which they had counted upon receiving from the said McGarvey upon their orders ; and by reason of the said McGarvey refusing to allow your orators to go on to said grounds, or to have possession or control of them, they are prevented from taking oysters themselves therefrom ; they are deprived of the use of their said buildings, and improvements made thereon, and on the upland as aforesaid, and they will be also debarred and prevented from using said grounds as they expected to, within a few days, for the purpose of planting oysters therein; all of which is of very great damage and loss to your orators, as well in the present as in the future.</p> <p>“ And your orators aver that all said refusals on the part of said McGarvey, and all his said acts and doings herein set forth, are in violation of the agreements made and entered into between the said McGarvey and your orators, to the effect that said ground, and improvements should be held for the benefit of your orators, the said McGarvey receiving a salary as aforesaid from your orators as compensation for his services, which your orators are and ever have been ready and willing to pay ; and your orators had well hoped that the said McGarvey would have complied with the requests of your orators to fulfil his part of said agreements, and allowed your orators to proceed with their said business, connected with said grounds and improvements, in accordance with said agreements, and that the said McGarvey would have complied with the reasonable requests of your orators, to adjust and settle all difficulties growing out of the refusal of-the said McGarvey to .perform the conditions of his contracts with your orators; but now so it is, that the said McGarvey wholly refuses to perform his part of said agreements made with your orators, declining to forward any oysters to your orators upon their order, but secreting them from your orators, and refusing to allow your orators to exercise any control over said grounds or tbe buildings and improvements connected therewith ; declining to transfer said leases to any other party for the benefit of your orators, pretending that said leases are in some way for his own benefit, without reference to said agreements, and that the oysters upon said grounds are his property, and the buildings and improvements for his benefit, and demanding that your orators shall pay an exorbitant sum of money to him for a transfer of said leases, and the possession of their own property; all which refusals, actings, doings, pretences, and demands are contrary to equity and good conscience.”</p> <p>The bill prays for an account, that McGarvey may be compelled to transfer the leases of the tide-flowed oyster grounds to some citizen of Rhode Island, to be designated by the complainants, and to transfer the lease of the upland to the complainants, the complainants to give bond to protect McGarvey; that McGar-vey may be enjoined from interfering with the complainants’ control and management of the oyster business, oyster grounds, and upland; and that the oyster business may, during the term demised of the oyster grounds, be prosecuted by the complainants, under the direction of a master in chancery, and for general relief.</p> <p>To this bill the respondent demurred for want of equity, also because the contract or trust set forth was illegal, and in violation of the statutes of the State. Gen. Stat. R. I. cap. 132 and cap. 133.</p>

<p>A., carefully driving on Sunday along a highway in Massachusetts, was met by B., also driving, whose recklessness caused a collision, which injured A. A. sued B.,, was non-suited, and excepted.</p> <p>Held, that the nonsuit was error; as, for anj'thing apparent on the record, A. might have been on an errand of necessity or charity.</p> <p>Held, further, that even if A. was obliged affirmatively to show himself free from contributory fault in order to recover, the nonsuit was still error, for the Sunday driving, although in the case at bar a necessary conditional precedent of the accident, was not the efficient cause of the collision.</p> <p>Sundry Massachusetts cases reviewed and disapproved.</p> <p>Held, further, that even if A. was driving on Sunday in violation of law, B. could not show the illegality of A.’s act as a defence.</p>

<p>A recognizance given by an infant under Gen. Stat. R. I. cap. 186, § 19, is binding upon him.</p> <p>Such infant is bound to reimburse his surety the amount of a judgment recovered by the State upon the recognizance and paid by the surety.</p>

Trespass on the case. Heard by the court on an agreed statement of facts. The facts involved in the present controversy are stated, in the opinion of the court. The proceedings of the General Assembly, affecting the sale of the Sewall or Point Judith farm, are concisely given by Brayton, J., in 2 R. I. 202 sq. They may also be found in R. I. Colonial Records, vol. 10, pages 60, 71. The plat accompanying the committee’s report is annexed here.

<p>PLAINTIFF'S petition for a new trial. So mucb of the facts of tbe case proven or alleged as are involved in the present discussion are stated in the opinion of the court given by the chief justice.</p> <p>The plaintiff contends that the defendant is liable in this action because,</p> <p>The defendant by express contract agreed to care for him and furnish him with such careful and skilful attendance as the nature of his injuries demanded, as is shown by the bill presented to him by the defendant and paid to it.</p> <p>The defendant conducting a hospital for the care and attendance of persons requiring surgical treatment, having received the plaintiff as a patient for reward and hire,, the law implies a contract that the defendant would furnish to the plaintiff the care, attendance and surgical skill that his case required.</p> <p>Whether there was an express or implied contract or not between the plaintiff and defendant does not affect the plaintiff’s case, as an action to recover damages for injuries received through the negligence of another can be maintained without there being any contract, i. e. where the defendant owes or assumes a duty toward the plaintiff, an action lies for negligence in the performance of that duty.</p> <p>The duty which the defendant owed the plaintiff was to furnish him the care and attendance his case required, and this duty existed regardless of there being any contract or any compensation being paid for the services. Having assumed to receive and care for the plaintiff, the defendant was bound to use care, skill, and diligence in that care.</p> <p>The plaintiff asserts that the defendant was negligent towards him in these particulars:</p> <p>1. Because the defendant placed him under the care of an incompetent and unskilful person, in whose selection and appointment the defendant did not use the care that should be exercised in the selection of a servant to be intrusted with human life.</p> <p>2. Because the defendant’s interne unskilfully treated the plaintiff and thus caused a dangerous hemorrhage.</p> <p>3. Because the defendant did not furnish the proper attendance and treatment nor the surgical care required by the plaintiff’s condition. And in this the defendant’s officers and servants neglected to observe the hospital rule which requires, “ in all cases, whether medical or surgical, requiring immediate and important action, or whenever there is any doubt as to the proper treatment, and in all cases of accident requiring immediate operation, the house physician or house surgeon shall send for the visiting physician or surgeon of the day, as the case may be, either medical or surgical, and if he cannot be found, then for any one of the visiting physicians or surgeons of the hospital; ” which rule is imposed upon the defendant by its charter provisions that it “ shall ordain, institute, establish, and put in execution such rules, regulations, and by-laws as may be deemed expedient for the internal government and economy of the institution, and for the well ordering, management, and conduct of all the affairs thereof and of all officers, agents, and persons appointed or employed by them in and about the establishment.”</p> <p>The surgical interne, recognizing the case as a capital one in surgery, neglected to send for an attending surgeon, but, without sufficient skill, performed an operation upon the plaintiff’s hand, and during the operation, by his negligence severed an important artery, occasioning a hemorrhage which would have terminated in the plaintiff’s death, if not arrested. Without sufficient skill he frequently attempted to ligate the bleeding vessel, but failed. Instead of obeying the rules in sending for an attending surgeon, he applied a dangerous instrument, which requires experience and skill in its appliance, known as a tourniquet, to the plaintiff’s arm, and thus left him for nearly seventeen hours.</p> <p>When a private corporation has accepted its charter, it is liable for non-performance and mis-performance of the duties imposed by its charter. Riddle v. Proprietors of Lochs, fc. on Merri-mae River, 7 Mass. 169, 184; Mlis v. Mayor, fc. of Bridg-north, 15 G. B. N. S. 52 ; Mayor, ¿"C. of Savannah v. Oullens, 38 Ga. 334; Fennimore v. New Orleans, 20 La. An. 124; Nebraska City v. Campbell, 2 Black, 590; County Commissioners v. Bucket, 20 Md. 468 ; Providence Bank v. Billings f Pittman, 4 Pet. 514; Sheldon v. Kalamazoo, 24 Mich. 383; Barnes v. Bistrict of Columbia, 1 Otto, 540.</p> <p>The Rhode Island Hospital, is founded and maintained by private benefaction, and although dedicated by its charter to general charity, is a private corporation and liable for the negligence of its servants. 2 Kent’s Comm. *276 ; Trustees of Dartmouth College v. Woodivard, 4 Wheat. 518; Saint Mary's Church, 7 Serg. & R. 517, 559 ; McKim v. Odom, 3 Bland, 407 ; Allen v. McKeen, 1 Sumn. 276 ; Ten Thy oh v. Delaware Raritan Canal, 3 Harr. (N. J.) 200; Miners’ Ditch Co. v. Zellebach, 37 Cal. 543 ; St. Mary’s Industrial v. Brown, 45 Md. 310; Regents of University of Marylandj v. Williams, 9 Gill & J. 365 ; The Rector, ¿•c. of Church of Ascension v. Buchhart, 3 Hill, 193.</p> <p>A corporation may be private although it derives part of its support from the State. Cleaveland v. Stewart, 3 Ga. 283.</p> <p>Where confidence is bestowed and accepted it is a sufficient consideration to support an action for neglect. Wharton on Negligence, §§ 503, 504, 506 ; Bernard v. Coggs, Smith’s Leading Cases, Vol. 1, 346 and notes ; Lannen v. The Albany Gras Light Co. 44 N. Y. 459 ; Me Glandless v. McWha, 22 Pa. St. 261.</p> <p>An employer or master is liable for the negligence of his servant, if committed in the course of the servant’s employment and for his master’s benefit.</p> <p>The master is liable, not only for acts which he either directly or indirectly orders, but also for all the acts or omissions which, even though the master does not order them, are CQmmitted by his servant in the course of his service, or, in other words, which are the results of the master’s employing the servant.</p> <p>“ The liability of a master,” says Mr. Dicey, “ for the acts of his servant is analogous to the liability of an owner for injuries committed by animals belonging to him. Neither the master nor the owner is liable, because he has himself done the particular act complained of. He is responsible because the wrong is the result of his having in the one case employed an incompetent servant, and in the other kept an animal of habits injurious to his neighbors.” Dicey on Parties to Actions, rule 102, *445; Wood on Master and Servant, cap. 13, § 279.</p> <p>The master’s liability does not depend upon his ordering the particular act, for he may be responsible even though he forbid it. The reason of this extended liability is that if the master were not responsible for wrongs committed in his service, the injured person would be constantly without remedy. Dicey on Parties, *447, and cases cited.</p> <p>To say that the defendant corporation is liable for negligence in the choice of its servants, is no more than saying that it is liable for any negligence that causes the injury, whether it is its direct negligence or its servant’s negligence.</p> <p>When it is said that one is liable for negligence in the choice of its servants, there must also be negligence by the servant before liability is incurred. The primary rule always requires this; when the last occurs, liability attaches to the master; where both unite, his degree of negligence is greater.</p> <p>It may, however, be claimed upon the authority of Holliday y. St. Leonard, a case decided in 1861 by the Court of Common Pleas of England, and reported in 11 C. B. N. S. 192, and of McDonald v. Massachusetts Gfeneral Hospital, 120 Mass. 432, which rests entirely upon the case of' Holliday v. St. Leonard, that the defendant corporation is not liable for the negligence of its servants.</p> <p>These cases are in conflict with every principle of law, and entirely without previous authority.</p> <p>The case of Holliday y. St. Leonard was five years prior to its adoption by the Supreme Court of Massachusetts practically overruled by the Plouse of Lords in the case of Mersey Docks v. Qibbs (1866), L. R. 1 H. L. 93, and was directly overruled by the Court of Queen’s Bench in 1871, in the case of Foreman y. Mayor of Canterbury, L. R. 6 Q. B. 214. Coe v. Wise, L. R. 1 Q. B. 711; opinion of Blackburn, J., in Coe y. Wise, 5 B. & S. 458; Campbell et ais. v. Hornsby, I. R. 7 C. L. 82, 540; see opinion of Monahan, C. J., in Campbell v. Tate, I. R. 5 C. L. 193 ; Huck v. Williams, 3 H. & N. 306 ; Proprietors of Northampton Ltehin Bridge y. Southampton Local Board, 8 El. & B. 800; Levingston y. Gruardians of the Lurgan Union, I. R. 2 C. L. 202; White v. Hindley Local Board, L. R. 10 Q. B. 219 ; Mersey Docks v. Cameron, 11 H. L. 443 ; (governors of St, Thomas' Hospital y. Stratton et als. 23 W. R. 882; Gfibbs v. Trustees of Liverpool Docks, 3 H. & N. 164.</p> <p>This immunity is claimed upon the ground of public policy, because if the liability exists, charitably disposed persons would cease to endow the institution and the funds of the hospital would ultimately be exhausted by judgments against it.</p> <p>|Public policy rather demands that such a liability should exist: First, in order to prevent injury to persons and property; second, to compensate for such injury.</p> <p>The suggestion that the funds would be exhausted by judgments, presupposes that the hospital is to be continued under negligent management. If that be so, then the sooner its funds are exhausted by compensating those injured, and persons are deterred from endowing it by being notified of its mismanagement, the better for all persons interested as well as the public. Particularly the public, as charitable persons will always exist, and by the enforcement of this liability the usefulness of institutions are increased, and persons are informed of institutions whose usefulness is impaired by mismanagement and negligence. In this way all charitable institutions that deserve the assistance and encouragement of the public and individuals are promoted, and unmeritorious ones are prevented from imposing upon the public and benevolent persons.</p> <p>/ The case of McDonald v. Massachusetts General Hospital, as far as it decides anything, is not applicable to the present case, for Glavin was not a free patient as was McDonald.</p> <p>The authorities in this country fully sustain what the petitioner claims to be the full limit of the exception from the general rule of liability of the master for his servant’s negligence.</p> <p>The cases are of two classes. First, where the duty performing is a public one, imposed upon the master by the State; such as Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Hill v. Oity of Boston, 122 Mass. 344 ; Altvater v. Mayor, §•c. of Baltimore, 31 Md. 462. Second, when the duty is a public one, and incidental to the general rights and privileges of a municipal corporation, and is for the benefit of the whole public and not for municipal advantage or profit; such as Buttrich v. Oity of Lowell, 1 Allen, 172 ; Oity of Richmond v. Long's Adm'rs, 17 Grat. 375; Hastman v. Meredith, 36 N. H. 284; Commissioners of Hamilton Go. v. Mighels, 7 Ohio St. 109; Hajf ord v. Oity of New Bedford, 16 Gray, 297 ; Fisher v. Oity of Boston, 104 Mass. 87.</p> <p>The present case does not come within either of the above classes.</p> <p>See also 2 Dillon on Municipal Corporations, §§ 772-775.</p> <p>The case of Feoffees of Heriofs Hospital v. Ross, cited on the defendant’s brief, so far as it intimates that trustees of a public charity are not responsible for wrongful acts, rests upon Duncan v. Finlater, which has repeatedly been declared not to be an authority supporting that proposition, as it was decided upon the ground that there was no proof that the person employed by the master in that case was the defendant’s servant.</p> <p>The evidence fails to prove that the undertaking was such as is alleged by the plaintiff’s declaration, and certainly the burden of proof is on the plaintiff.</p> <p>The evidence does show that the defendant undertook merely to provide the plaintiff the shelter, food, warmth, and nursing of a hospital, for a moderate compensation, if he was able to pay. That all medical and surgical attendance was free.</p> <p>The defendant did not undertake the duties of a surgeon in treating plaintiff’s injury, but only to place him in charge of the interne or visiting surgeon.</p> <p>The undertaking by the defendant was not to treat this case, but simply to act in good faith and use due care in appointing its internes and attending surgeon, and to select those suitable for the service to be performed.</p> <p>Even if there was any evidence of the incompetency of the interne, it would not be evidence that the defendant neglected to take the greatest care to ascertain and satisfy itself of his fitness for the place, and that is all that the defendant would be bound to do.</p> <p>The defendant, not undertaking professional charge of the plaintiff, owed him no professional duty, and would not be responsible for a breach of professional duty on the part of the interne.</p> <p>The defendant cannot be liable for any incompetency or negligence of the surgical interne, if in treating this plaintiff he was acting, in so doing, out of the scope of his employment.</p> <p>If this plaintiff was treated in an incompetent manner by the interne, the defendant is not responsible if the defendant never directed the internes to do any such work or such kind of work.</p> <p>The defendant certainly could not be held liable for any incompetency or negligence of an interne whose services were gratuitous, acting as surgeon, and the plaintiff cannot maintain this action.</p> <p>The direction of the court to the jury to return a yerdict for the defendant was right.</p> <p>The case of Mersey Docks v. Cfihbs, L. R. 1 H. L, 93, and the other cases cited at the close of plaintiff’s brief, are clearly distinguishable from the case at bar. They are cases of business and trading corporations taking tolls for profit and the purposes of their creation, which tolls the public were obliged to pay. The House of Lords, in' overruling Holliday y. St. Leonard, simply affirm that such corporations, though created for a public purpose, and discharging the duty without pay, are not necessarily relieved from liability for the negligence of their servants.</p> <p>But see on this point in this country, Hill v. City of Boston, 122 Mass. 344.</p> <p>The exemption from liability of the defendant was not placed by the court in- the charge, on the ground that it was performing without charge a public duty imposed upon it by law; but that on grounds and reasons of public policy, a corporation like the present, whether treated as a private corporation or as a quasi public corporation, is at least á corporation dispensing a public charity, and as such should be exempted. That if the trust funds of such a corporation held by the bounty of the State and individuals, for purposes of charity, are to answer for the negligence of the unpaid servants of the corporation, it would be utterly destructive of the ends of. its being, and there is no other source from which verdicts could be. paid. No case can be found where a hospital like this was ever held thus liable, and only one case, referred to below, where it has been attempted.</p> <p>But if the broad doctrine of the charge be not correct it is certainly true, we submit, that a corporation like the present, having, exercised due care in the selection of its agents, is not liable for injury to a patient caused by their negligence, nor for the unauthorized assumption of one of the hospital attendants to act as a surgeon. McDonald v. Massachusetts Gfeneral Hospital, 120 Mass. 432.</p> <p>The court in that case do not say the corporation would have been liable if they had not exercised due care in the selection of the officers. There being no evidence of the want of due care, there was no occasion to pass upon that question. We think it quite evident from the reasoning that the court would have gone, if required, the full length of the charge in this case. And see Feoffees of Heriot's Hospital v. Ross, 12 Cl. & Fin. 507; City of Richmond v. Long's Adm'rs, 17 Grat. 375.</p> <p>The evidence in the case conclusively shows that due care was exercised by the corporation in the selection of all officers and agents, and the verdict could not have been different with that limited instruction. The court might properly have directed a verdict for the defendant upon that evidence under that law.</p> <p>“ A new trial ought never to be granted, notwithstanding some mistakes or even misdirection, or the giving or refusing irrelevant instructions, provided the court is satisfied that justice has been done, that a new trial ought to produce the same result, that the verdict is conformable to law and "evidence, and that upon the evidence no other verdict could properly have been found.” Hilliard on New Trials, 47 ; Johnston v. The State, 14 Ga. 55 ; Arrington v. Cherry, 10 Ga. 429, and cases cited; Harris Y. JDoe, 4 Blaclrf. 369 ; Morton v. Lawson, 1 B. Mon. 45; Bolán v. Peeples, 1 Brev. 109 ; Craham v. Bradley, 5 Humph. 476; Howard v. Miner, 20 Me. 325 ; French v. Stanley, 21 Me. 512 ; Freeman v. Rankins, 21 Me. 446 ; Reynolds v. Magness, 2 Ired. 26 ; Jewett v. Lincoln, 14 Me. 116 ; Pritchard v. Myers, 11 S. & M. 169.</p> <p>“ The verdict of a jury upon questions of fact, or the judgment of the court, acting in place of a jury, will not be disturbed, unless clearly and palpably wrong.” Mann v. Whitbeck, 17 Barb. S. C. 388.</p> <p>“ A verdict which is in accordance with the weight of the evidence, and with justice, ought not to be set aside on account of an erroneous instruction given by the court to the jury.’’’ In-graham v. South Carolina Ins. Co. 3 Brev. 522 ; Wylly v. King, Ga. Decis. part II. 7 ; Princeton f Kingston Turnpike Co. v. Culick, 1 Harr. 161; Chiles v. Boothe, 3 Dana, 566.</p> <p>“ When the verdict is conformable to the law and the evidence it will not be set aside merely because the court refused to give instructions which might have been properly given.” Breckenridge v. Anderson, 3 J. J. Marsh. 710-717; Rodgers v. Page, Brayt. Yt. 169; Ingraham v. S. C. Ins. Co. S. C. Const. Rep. 1812-16, 707.</p>

<p>The word “inhabitants ” in Gen. Stat*R. I. cap. 38* § 1, includes corporations.</p> <p>A mutual fire insurance company is, in Rhode Island, taxable for the amount of its corporate property, less its declared dividends- and its debts. Such corporate property, although personalty, is not taxable to the members of the corporations.</p> <p>The only remedy for over-taxation in Rhode Island is that given by Gen. Stat. R. I. cap. 40, §§6, 7, 11, 12.</p>

Assumpsit. Heard by the court on an agreed statement of facts, tbe important parts of wbicb are given in tbe opinion of the court. contended that the cause of action arose when the ward avoided the sale, citing Shearman v. Akins, 4 Pick. 283; Angelí on Limitations, 2d ed. cap. 12, § 8, and cases cited.

<p>Piaxñtiee’s petition for a new trial. The previous proceedings in this case are reported in 11 R. I. 411-416. After the opinion of July 28,1877, there given, the case was submitted to a jury to determine the questions of fact spoken of by the court, 11 R. I. 416, bottom of page, arising from the second and third replication, 11 R. I. 415. At the trial certain evidence offered by the plaintiff was ruled out by the presiding judge, and this petition was filed by the plaintiff after excepting to the ruling. The facts involved in the present hearing are stated in the opinion of the court.</p>

<p>In June, a. d. 1871, A., B., and C. bought in partnership and on speculation certain realty: A. and B. to furnish the capital needed; C. to manage the speculation and sell the land, receiving as his compensation one third of the net profits and bearing one third of the loss. The title to the land was taken by A. and B.</p> <p>In June, a. d. 1872, C. agreed to take a portion of the land as his share of the profits, and gave to A. and B. his receipt for such share, specifying the amount and describing it as received by an agreement from A. and B. to convey such portion to him subject to the conditions of the contract of partnership. A. and B. gave to 0. an agreement to convey on demand to C. or his legal representative the portion of land fixed upon.</p> <p>Meld, that by this agreement the portion of land specified was taken out of the partnership account.</p> <p>Meld, further, that A. and B. held the receipt of C. as representing so much money subject to the partnership account and the equities of the copartners.</p> <p>Questions of law and fact arising in equity proceedings in which an account must be taken by a master:</p> <p>Meld, that such questions could best be determined upon exceptions to the master’s report and account.</p>

Plaintipe’s petition for a new trial. The plaintiff sues as administrator of one Martin O’Malley, claiming that O’Malley’s death resulted from the negligence of the town of North Providence, in leaving one of the highways of the town in a dangerous condition and without proper guards. It appears from the record that the town authorities were cutting down a steep ascent on the Wilbur Hill road.

<p>DEPENDANT’S petition for a new trial.</p> <p>Francis McCaughey, the plaintiff’s intestate, was a laborer employed in building the city hall in Providence. He was killed by the fall of a timber centre on which he was standing, and which had been set to turn a brick arch upon. The plaintiff brought this action under Gen. Stat. R. I. cap. 193, § 21, which is :</p> <p>“ Sec. 21. In all cases in which the death of any person ensues from injury inflicted by the wrongful act of another, and in which an action for damages might have been maintained at the common law had death not ensued, the person inflicting such injury shall be liable to an action for damages for the injury caused by the death of such person, to be recovered by action of the case for the use of his or her husband, widow, children, or next of kin, in like manner and with like effect as in the preceding five sections provided.”</p> <p>The preceding five sections being:</p> <p>“ Sec. 16. If the life of any person, being a passenger in any stage-coach, or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not, in the care of proprietors of, or common carriers by means of, railroad or steamboats, or the life of any person crossing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common carriers, proprietor or proprietors, or by the unfitness or negligence or carelessness of their servants or agents, in this State, such carriers, proprietor or proprietors, shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action on the case, for the benefit of the husband or widow and next of kin of the deceased person, one moiety thereof to go to the husband or widow, and the other to the children of the deceased.</p> <p>“ Sec. 17. If in such case there shall be no children, the whole of such damages shall go to the husband or widow ; and if there be no husband or widow, to the next of kin, according to the law of this State regulating the distribution of intestate personal estate amongst the next of kin.</p> <p>“ Sec. 18. In addition to such action in favor of the widow and kindred of the deceased, a like action may be maintained for damages for such loss of life, by any person having a direct pecuniary interest in the continuance of the life of such deceased person.</p> <p>“ Sec. 19. Actions for the benefit of the widow and next of kin of such passenger or person may, in all cases, be brought by the executor or administrator of the deceased, whether such executor or administrator be appointed and qualified as such within or without this State; but where there is a widow only, she may, at her option, sue in her own name.</p> <p>“ Sec. 20. To maintain such actions it shall not be necessary first to institute criminal proceedings against the defendants.”</p> <p>The declaration charged that the city of Providence, by its agents, so negligently and insecurely set the centre, that it fell and fatally injured the deceased, wbo was exercising due caution.</p> <p>Tbe defendant alleged contributory negligence on tbe part of the deceased; also that the contractor or tbe commissioners in charge of the building could not bind the city by their negligent acts ; and claimed that the action could not be maintained under § 21 above given, “ the wrongful act ” of the statute being the act of the workmen who carelessly put the centre in place, not the act of the municipality.</p> <p>The jury gave a verdict for the plaintiff, and assessed his damages at $2,500.</p>

<p>Dependant’s petition for a new trial.</p> <p>cited Gen. Stat. R. I. cap. 212, § 14; Rorer on Judicial Sales, 2d ed. 256 ; 8 Washburn Real Property, 294 ; Freeman on Executions, 174; Herman on Executions, 137 ; Jarrett v. Tomlinson, 3 W. & S. 114 ; Kelley v. Morgan, 3 Yerg. 437,441; Woodman v. Brodfish, 25 Me. 317; Jackson v. Varich, 7 Cow. 238 ; Inglis v. Trustees of Sailor's Snug Harbor, 3 Pet. 99, 178 ; McConnell v. Brown, opinion of Mills, J., 5 T. B. Mon. 485.</p>

<p>Plaintiee’s petition for a new trial.</p>

<p>When a widow asks a Probate Court to set off to her, in addition to her dower, the portion of her husband’s realty spoken of in Gen. Stat. R. I. cap. 174, § 4, the Probate Court has authority to make such examination and decision of claims against the husband’s estate as may enable it to decide whether the realty prayed for will probably be needed to pay his debts.</p>

<p>Trover. Heard by the court, jury trial being waived.</p> <p>Cushman, Wilcox & Co., brought an action against are John Carroll, and served their writ by attaching the defendant’s personalty. They obtained an order of sale of the attached personalty under Gen! Stat. R. I. cap. 197, §§ 2 and 3, and the property was sold by the sheriff, May 3, 1878, at ten o’clock, A. M. At nine o’clock, an hour previous to the sale, Carroll died. Dwyer was subsequently appointed administrator on Carroll’s estate, and brought this action of trover against the sheriff who conducted the sale, to recover the value of the personalty sold, claiming that Carroll’s death vacated both the attachment and the order of sale. See Upham v. Dodge, and cases cited, 11 R. I. 621.</p>

<p>Bill in Equity to set aside a transfer of personalty. On demurrer to the bill.</p> <p>Public Laws R. I. cap. 723, § 1, of June 20, 1878, provides: “ Whenever the property of any debtor shall have been attached or levied upon by any creditor, the debtor may, at any time before such property shall be sold, and the proceeds thereof applied to the payment of the claim or judgment upon which such attachment or levy shall have been made, within sixty days after such attachment or levy, suspend such attachment or levy by making and having recorded in the records of the town or city where the assignor resides, or where any of the real estate is located, an assignment of all the property and estate of such debtor not exempt by law from attachment, to some citizen of this State for the equal benefit of all his creditors in proportion to their respective claims, except as is pi ovided in the third section hereof. And all attachments and levies so suspended shall be dissolved at the expiration of thirty days thereafter, unless otherwise ordered by the Supreme Court in some proper proceeding.”</p> <p>Section 3 of the same chapter provides : “ No assignment hereafter made for the benefit of creditors shall give to any one creditor any preference over the claims of any other creditor except the creditor be the United States or the State of Rhode Island, or for the wages of labor performed within six months previous to such assignment, not exceeding one hundred dollars to any one person.”</p> <p>Section 4 of the same chapter is recited below in the opinion of the court.</p> <p>The bill charges that one Stephen Brownell, being indebted to the respondent bank on notes maturing but not matured, executed September 3,1878, a power of attorney to one of the clerks of the bank to transfer bis stock in it to one Tingley, in trust to protect the bank, Tingley being the cashier. This power of attorney was dated August 80, 1878. September 6, the creditors of Brownell attached his stock, and the same day Brownell’s attorney, at his direction, transferred the stock to Tingley in trust. November 4, 1878, Brownell made an assignment to Samuel James of all his property for the equal benefit of his creditors. Thirty days thereafter the attachment was dissolved by law.</p> <p>July 19, 1879, James, assignee, filed this bill against the bank and Tingley, claiming that the assignment vitiated the transfer of stock and praying that the respondents might be compelled to return the stock or to account for its value and its profits in favor of Brownell’s creditors. The respondents demurred to the bill.</p>

<p>In case of a separation between husband and wife, the court, in awarding the custody of an infant child to its father or its mother, will consult the welfare of the child rather than the rights of either parent.</p> <p>Hence, when it appeared that the character and circumstances of either parent would secure the child’s education and the satisfaction of its physical wants, but the child was a delicate female infant of four years:</p> <p>Held, That the child should for the time being at least be placed in the custody of its mother.</p>

<p>On the death of A., in 1834, her realty, subject to her husband’s curtesy, descended to her two sons, B. and C. The husband was appointed guardian of the sons’ estate, obtained. legislative permission to sell their realty, and invested the proceeds, with other moneys, in a farm, in his own name. Of this farm he subsequently sold large portions vto Iona fide purchasers without notice, mortgaged a part of the rest, and subsequently died insolvent in 1877. Meanwhile the son C. had died unmarried and intestate.</p> <p>On a bill in equity brought by B. to establish his equitable title to the farm:</p> <p>Held, that the farm was not ancestral realty, and that B. did not therefore take CJ.’s equitable interest by descent under Gen. Stat. B. I. cap. 176, § 6.</p> <p>Held, further, that B. had an equitable title to the farm to the extent of his part of the purchase-money thereof.</p> <p>Meldy further, that after alienation of part of the farm by the husband, B.’s equitable title, or resulting trust, was confined to the unsold residue.</p> <p>Meld, further, that as to the aliened part, B.’s equitable estate had become a mere personal debt due from the husband’s representative.</p> <p>Held, further, that B.’s estate being in remainder after the termination of the husband’s curtesy, B.’s claim was not concluded by the statutes of limitations or possessions.</p> <p>Held, further, that although B. might, on coming of age, have begun proceedings to convert the resulting trust into a legal remainder, yet as no bad faith on B.’s part was shown, he was not estopped by laches from validating his title.</p> <p>B.’s money invested in the farnTamounting to four thirty-third parts of the whole purchase-money :</p> <p>Held, that B. was entitled to four undivided thirty-thirds of the part of the farm unsold and unmortgaged, and to four thirty-thirds of the equity of redemption of the mortgaged part, the other twenty-nine thirty-thirds being primarily chargeable with the mortgage debt.</p> <p>If a trustee purchases partly with his own funds and partly with those of a cestui, the cestui has a resulting trust in the purchase, and the burden rests on the trustee to show the amount of his own funds.</p> <p>A resulting trust arises by operation of law, and cannot be subsequently changed by oral declaration.</p>

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

<p>Bastardy complaints when the mother has no legal residence in Rhode Island, may be brought by an Overseer of the Poor under Public Laws R. I. cap. 288, § 2, of March 19, 1873, or by the Superindent of State Charities under § 15 of the same chapter.</p>

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

<p>Devise as follows:</p> <p>“I give, devise, and bequeath the use, improvement, and income of the farm in Middle-town, containing about forty acres and a half, which farm I purchased of the late John Mitchell, to my four grandchildren, children of my daughter Hepsibah M. Heath, deceased, viz.: Francis M. Heath, James’C. Heath, Sarah M. Heath, and Annie C. Heath, during their natural lives. At their decease, I give, devise, and bequeath said farm to their children, if they, or either of them, should leave any, to them, their heirs, and assigns forever. If my said grandchildren, children of my said daughter Hepsibah, deceased, should leave no children or child, then, in that case, I give and devise said farm to all my grandchildren then living, in equal shares, to them, their heirs, and assigns forever.”</p> <p>Followed by a codicil as follows:</p> <p>“Now, whereas, my granddaughter, Sarah M. Heath, that was, has since died, and left one child. Now if that child shall die without lawful issue, then, in that case, I give, devise, and bequeath the share that that great-grandchild would have heired from his mother to the other three grandchildren, viz., Francis M., James C., and Annie C. Heath, their heirs and assigns forever.”</p> <p>On a case stated to obtain a construction of these testamentary dispositions, Francis M.</p> <p>Heath being dead, and his child, Norma F. Heath, being a party to the proceedings: Held, that James C. Heath and Annie C. Heath were each entitled for life to one undivided fourth part of the farm, as tenants in common and without any right of survivor-ship.</p> <p>Held, further, the great-grandchild being alive, that the contingency on which the codicil was to take effect has failed, and that the great-grandchild was entitled under the will to a fee simple in one undivided fourth part of the farm.</p> <p>Held, further, that Norma F. Heath, daughter of Francis M., was entitled to a fee simple in one undivided fourth part of the farm.</p>

<p>Devise as follows:</p> <p>111 give and devise to my nephew, H. W. G., my undivided half of the Potowomut Mill and mill privilege and the land and dwelling-house occupied as a part of said mill estate: ” . . . .</p> <p>The testator held a fee simple in the realty devised.</p> <p>Held, that H. W. G. took a fee simple, and not an estate for life.</p> <p>Query, whether Gen. Stat. R. I. cap. 171, § 5, applies to wills executed before its enactment.</p>

<p>Bill IN Equity praying for an injunction.</p> <p>The bill was filed by Stephen P. Peck, administrator of Asabel Peck, formerly of Providence, against Emeline Peck, widow of Asahel. It sets forth an antenuptial agreement under seal, executed March 25, 1869, between Asahel and Emeline, then Em-eline Hendrick, by which each of the parties relinquished all claim arising from the marriage to the property of the other; and charges that after the agreement the parties intermarried, and that Asahel Peck died March 2, 1878. At the time of the agreement and marriage both parties were of mature age, and both had living issue by former marriages. The bill also charges that after the death of Asahel, Emeline asked the Probate Court of Providence to make her an allowance from his estate ; that she demands her distributive share from her husband’s estate, and threatens to object to the allowance of the administrator’s accounts unless her claims are complied with.</p> <p>The bill prays that the respondent maybe enjoined from making any claim on the estate of the deceased, and from embarrassing the complainant, as administrator, by submitting to the Probate Court any demand against the estate of her husband for allowance, distributive share, or payment .of any claim arising from the coverture.</p> <p>The answer admits the execution of the agreement, but denies its validity because it was executed under the following circumstances :</p> <p>In 1867, the respondent, then a widow, and Asahel Peck, betrothed themselves by mutual promises, and subsequently cohabited. She became pregnant in 1868, and suffered a miscarriage, the result of an operation, which was proposed by Asahel and consented to by herself. The cohabitation continued, and she repeatedly solicited Asahel to have a marriage ceremony performed. They were married March 25, 1869, just after the execution of the antenuptial agreement, she stating that Asahel made the execution of tbe agreement a condition of tbeir marriage. Tbe answer is under oath and in the nature of a cross-bill. It prays that tbe agreement may be declared void, that tbe respondent may be declared entitled to dower and to her widow’s share of the personalty, and may be allowed a suitable provision from her husband’s estate as provided by statute.</p> <p>The reasons urged for the invalidity of the agreement and the evidence adduced, so far as it bears on the questions at issue, are given in the opinion of the court.</p>

Petition in Equity for the appointment of a receiver. Public Laws R. I. cap. 723, § 2, of June 20, 1878, provides: “ Whenever any debtor, being insolvent, shall do any act or make any conveyance whereby any one of his creditors shall obtain a preference over any other of his creditors, or knowingly omit to do any act which he might lawfully do to prevent one of his creditors from obtaining a preference over his other creditors, contrary to the intent of this act, any three…

<p>Under the General Statutes of Khode Island, •which went into effect in 1872, a charter pro* viously granted is valid, notwithstanding the failure of the chartered corporation to make the payment required by Public Laws B. I. cap. 475, of May 29, 1863.</p>

<p>To an indictment the accused pleaded in abatement, “that one of the grand jurors, who was taken up on venire, to wit: One H., of the city and county of Providence, was not, when impanelled and sworn, and during the sitting of the, grand jury, and when the indictment was found, qualified to act as a grand juror, not being qualified to vote on any proposition to impose a tax, or for the expenditure of money in said city, or in any town in the county: ”</p> <p>Held, on demurrer, that this plea was good both in substance and in form.</p> <p>The word “liable” in Gen. Stat. R. I. cap. 189, § 1, is tantamount to “qualified,” and the section defines the qualification of jurors, as well as the liability to serve.</p> <p>Objections to the qualifications of a grand juror may be taken by a plea in abatement of the indictment.</p>

Exceptions to the report of a master in chancery, to whom was referred the accounts of the receiver of the' Cranston Savings Bank. A special commission was appointed in 1878, by the Governor of Rhode Island, under Gen. Stat. R.T. cap. 140, § 39, to examine the Cranston Savings Bank. The commission reported to the Supreme Court, December 6, 1873, that the bank was insolvent, and on that day a receiver of the bank was appointed by the court.

Exceptions to a Special Court of Common Pleas. The declaration in this case contained two counts: the first charging a wrongful detainer from the plaintiff of the premises described, the second alleging that the defendant, being tenant of the plaintiff, allowed his rent to remain in arrear for more than fifteen days after demand made therefor.

<p>A court of equity will not enjoin a land-owner from malting excavations on his land, when no serious injury to the adjoining realty is imminent, and when there is nothing peculiar in the situation and circumstances of such realty.</p>

<p>Replevin. Plea non cepit, also that the property in the replevied personalty was in the defendant.</p> <p>Meld, that under this plea the defendant was entitled to prove a lien on the personalty for repairs to it made by him and not paid for.</p>

<p>A. loaded B.’s vessel with coal consigned to C. A dispute arising between A. and the master of the vessel, as to a charge made by A. for trimming the cargo, the master refused to sign the bill of lading, and sailed without signing any bill of lading. The coal was delivered to the consignee C., and accepted.</p> <p>Held, that C., the consignee, was liable to B. for the freight.</p> <p>Heldj further, that C. could not deduct from the freight due to B. the charge for trimming made by A.</p>

<p>To a hill in equity for an account, the respondent pleaded a settlement under seal with averments rebutting fraud, and undue influence in obtaining the settlement. The complainant then filed the general replication. Subsequently the complainant asked permission to withdraw the replication, and to amend the bill by inserting charges that the settlement was the result of fraud and undue influence.</p> <p>It appearing, in the circumstances of the case, that no new case would be thus made, nor the respondent subjected to surprise:</p> <p>Held, that the permission should be granted.</p>

On motion to dismiss the appeal. This appeal was taken under Gen. Stat. R. I. cap. 170, § 1, from a decree of the Municipal Court of the city of Providence, the court having probate jurisdiction in that city, appointing commissioners to receive claims against the estate of Edwin L. Howland, which had been represented insolvent by the executor, J. Edward Allen. The reasons of appeal are as follows : -.1.

<p>Bill IN Equity to remove a cloud on the complainants’ title and for an injunction.</p>

<p>A.’s horse escaped from an inclosure where it was rightfully kept by A. and strayed on to a highway where it injured B.</p> <p>In an action by B. against A. to recover damages for the injury received:</p> <p>Held, that B.’s cause of action rested upon negligence on the part of A.</p> <p>Hold, further, that if the horse escaped without negligence on the part of A., and if A. exercised due diligence in pursuing and recapturing it, B. could not recover.</p> <p>Held, further, that under Gen. Stat. B. I. cap. 96, the presence of the horse in the highway, loose and unattended, was jprimá facie, evidence of negligence on the part of A.</p> <p>Held, further, that unless A. intentionally permitted his horse to stray at large, Trespass would not lie, the proper remedy being Case.</p>

<p>Public Laws R. I. cap. 976, § 1, of April 12, 1872, which appears in Gen. Stat. R. I. as cap. 164, § 4, providing that “ In all suits hereafter brought, in which title to any easement in real estate shall be claimed by virtue of adverse possession of the same for the period of twenty years, or by prescription, the use of the same shall not be admitted as evidence that the party claimed the easement as his right, but the fact of adverse possession shall be proved by evidence distinct from and independent of the use; and that the party against whom the claim is made had express notice thereof; and these provisions shall apply to public as well as private claims,” —is, so far as it applies to easements acquired by adverse user or prescription before its enactment, unconstitutional and void, being in violation of the Fourteenth Amendment of the Constitution of the United States, and of Art. 1, § 10 of the Constitution of Rhode Island.</p>

<p>EXCEPTIONS to a Special Court of Common Pleas.</p>

<p>EXCEPTIONS to the Court of Common Pleas.</p>

<p>Appeal from the Probate Court of Middletown. Heard by the court on an agreed statement of facts.</p> <p>Gen. Stat. R. I. cap. 218, contains the following provisions:</p> <p>“ Section 17. Any Court of Probate in this state which shall have granted letters of administration, or letters testamentary on the estate of any deceased person, shall have power, upon the application of the widow of the deceased, to cause the dower of such widow to be assigned and set off to her in all or any of the lands, tenements, or hereditaments, lying within the State, which belonged to the deceased during his intermarriage, whereof such widow is dowable. Notice of such application shall be given to all parties interested, except the applicant, in the manner prescribed by law for notices by courts of probate: Provided, however, that all the heirs at law or devisees having the next immediate estate of freehold, and all parties interested in all or any of said lands, tenements, or hereditaments, may join in such application, in which case, no notice thereof need be given.</p> <p>“ Sec. 18. Whenever such'an application shall be made to such Court of Probate, such court, upon hearing the parties thereto, shall, in the first instance, decree in what manner the dower ought to be assigned in the premises described in the application, whether by metes and bounds, or in some special and certain manner as set forth in the second section of this chapter ; and any person aggrieved by such decree may appeal therefrom to the next term of the Supreme Court to be holden in the same county ; but if no appeal be made within the time prescribed by law, or if the parties in writing within that time waive their right to appeal, then such decree shall be final.”</p> <p>Gen. Stat. R. I. cap. 170, contains the following provisions:</p> <p>“ Sec. 1. Any person aggrieved by any order, determination, or decree of any Court of Probate, may, unless provision be made to the contrary, appeal therefrom to the Supreme Court, at the term thereof to be holden in the same county next after the rendition of said order, determination, or decree, if said term do not commence within sixty days of said time, and if it do so commence, then at said term, or at the next succeeding term, of the said court in the same county.</p> <p>“ Sec. 2. Such appeal must be claimed by the aggrieved party within forty days next after such order, decree, or determination shall have been made; and bond shall then be given to such Court of Probate, with surety satisfactory to such court, or to the clerk thereof, if such court shall not then be in session, to prosecute such appeal with effect, or in default thereof to pay all intervening costs and damages, and such costs as the Supreme Court shall tax against the appellant.</p> <p>“ Sec. 3. The person so appealing shall, within ten days after giving bond as provided in the preceding section, file his reasons of appeal in the office of the clerk of the court appealed to; and shall cause the adverse party to be served with a copy thereof, and to be cited at least ten days before the sitting of the court appealed to, that such party may prepare to answer the same.”</p> <p>In this case the decree of the Probate Court was made February 17, 1879. The terms of the Supreme Court for Newport County are held on the third Mondays of March and September.</p> <p>The appellant filed two claims of appeal to this court, and two appeal bonds, one to tbe term of March, and one to tbe term of September, 1879, both being filed February 24, 1879.</p>

<p>Bill in Equity for the return of personal estate obtained by improper influence. On demurrer filed by one of the respondents.</p> <p>The bill in this case was brought by the executor and a legatee of Joseph T. Perry, against certain respondents, charging them with baying obtained from said Perry, some years after the execution of his will, and after his mind had been impaired by age and weakness, the transfer of certain personal estate, a part of which was fourteen shares of the capital stock of the First National Bank of Newport. The bill charges that the transfer was obtained without any consideration, and by improper means, and that it covered property specifically bequeathed to the legatee. The bill prays for a decree enjoining any transfer of the property until final decree, ordering the return and re-transfer of the property, either to the executor or to the legatee, and requiring the defendant in possession to account for the profits and income.</p> <p>In addition to the parties against whom these charges were made, and this relief requested, the First National Bank was made a party and was served with process. The individual respondents made answer. The First National Bank demurred to the bill.</p>

<p>Assumpsit by the executor of A. against B., to recover the share of losses, due from B., on a speculation which had been carried on by A., B., and C., but had been closed and the losses ascertained. All the capital had been furnished by A.</p> <p>Held, that the action was properly brought, and could be maintained without proof of a settlement between A., B., and C. as copartners and of a promise by B. to pay the amount due to A. in such settlement.</p>

Bill IN Equity for an account and to obtain payment of a trust fund. The facts involved are stated in the opinion of the court. 1. The executors have failed to comply with the directions of the will. They neglected to invest in their - own names. The loss is wholly due to this neglect. It ought, therefore, to fall on them, not on the plaintiff. No case has yet been found in which the exact meaning of the phrase, “ invest in their own names as executors,” has been defined.

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

<p>Bill IN Equity for instructions. The facts involved are stated in the opinion of the court.</p> <p>The law favors the vesting of estates, and when a gift is made to a person. in esse, it passes to the legatee as a vested estate, immediately in case of a deed, and immediately on the death of the testator-in case of a will, and if there be a prior gift determinable upon-an event certain to take place, and there be a gift over after such determination, the last gift will vest with the first, and it will be held that the enjoyment of the gift is postponed, but not the gift itself. Staples Pearce, Trustees, v. Be Wolf et als. 8 E. I 74; Kelly et al. v. Bihe et als. 8 R-. I. 436, 450; 2 Greenleaf’s Cruise, 209, §§ 35, 36 ; 210, § 40 ; 225, § 76.</p> <p>These cases seem to be conclusive as to the construction of the cause at bar.</p> <p>A mere possible contingency will not, and, indeed, not every probable contingency will prevent the vesting of a remainder. See also 2 Redfield on Wills, 606, § 21, and 608, § 23, and especially 609, § 26, and cases cited, 609-611, §§ 26-29, and cases cited.</p> <p>The gift here, too, though the term is not used, is of a residue, and that has been held to be an important circumstance in favor of a construction that the estate vests. See cases above cited and cases in them cited, 1 Jarman on Wills, 767.</p> <p>The authority given to make advances is also an important fact in favor of the estates vesting. Kelly et al. v. Bihe et als. above cited.</p> <p>It is not necessary to discuss what would have been the effect if Arnold Burges had died before arriving at twenty-one years of age, as no such contingency happened. Arnold Burges, it is admitted, is alive now. But it may be remarked, however, that so strong is the presumption in favor of the vesting of estates in remainder that they have been holden to vest, though liable to be divested upon the happening of some contingency.</p> <p>1. The interest of Arnold Burges in the trust estate was contingent upon his surviving his mother and father and did not vest until that contingency happened, and though not assignable at law to a stranger, yet his deed was good in equity and operated as an estoppel upon him by virtue of the covenants in his deed to prevent him from asserting title to the trust estate in violation of his covenants. Ilolroyd v. Marshall, 10 H. L. 191; Hart v. Farmers’ ¿f1 Mechanics’ BanJc, 33 Yt. 252; Stover v. Fycleshimer, 46 Barb. S. C. 84 ; Pennoeh v. Coe, 23 Plow. U. S. 117 ; Bayler v. The Commonwealth, 40 Pa. St. 37 ; Mitchell v. Winslow, 2 Story, 630 ; Letcher v. Shroeder, 5 J. J. Mar. 513 ; Varíele v. Edwards, 1 Hoff. Ch. 382; Meriweather’s Adm’r v. Her ran, 8 B. Mon. 162; Jaclcson v. Waldron, 13 Wend. 178; Brown v. Williams, 5 R. I. 309 ; MeCusher v. McEvey, 9 R. I. 528.</p> <p>2. Robert Wheaton at his decease was not seised'of the estate purporting to have been conveyed to him by Arnold Burges and therefore it did not pass under his will, but descended to his heir at law. Gen. Stat. R. I. cap. 171, §§ 1, 3.</p> <p>3. No estate having ever vested in Robert Wheaton in his lifetime the trust estate which would have vested in him in equity upon the decease of Mrs. Burges is not liable for his debts as it was not his real estate at his decease. Gen. Stat. R. I. cap. 178, §2.</p> <p>4. The contingent equitable estate of Robert Wheaton in the said trust estate was not and could not be assets in the hands of his executor, when his estate had been represented insolvent by his executor and could not be sold by his executor for payment oLdebts, for the reason that at most it was a contingent estate, liable to be defeated by the death of Arnold Burges in the lifetime of his mother.</p> <p>5. The trustee should be directed to convey one sixth part of said trust estate to Katharine Wheaton, free of all trusts.</p> <p>1. Arnold Burges took nothing but a possibility without an interest, resting upon a double contingency, a. It’ was a contingent remainder, limited upon an uncertain evént: by the trust deed, in case the income was insufficient to support the grantor and bis wife, the trustee was directed to mortgage or sell portions of the estate, and apply the proceeds to their support. There was consequently something more than a life estate in the grantor and his wife, for, under these provisions, the trustee would have been authorized, if necessary, to sell the whole estate and use the proceeds for the benefit of the so-called life tenants. In such an event the remainder would never have vested in the children. 2 Blackstone Comment. Cooley’s ed. 169; 4 Kent Comment. 12th ed. 208, 209. b. It was a contingent remainder, limited to an uncertain person. The trust deed provides that the trustee shall convey the estate to such children of the grantor and his wife as shall be living at the decease of the survivor, and to then living issue of deceased children, the issue to take the share which the parent would have taken if living. In Olney v. Hull, 21 Pick. 311, where a testator gave a life estate to his wife, and provided that at her death the land should be equally divided among his “ surviving sons,” it was held that “ surviving sons ” meant those who survived the wife, and that until her death, it was uncertain who would be 'alive to take, and consequently the sons took only a contingency without an interest. To the same effect Thomson v. Ludington, 104 Mass. 198, citing and affirming Olney v. Hull. In Brown v. Williams, 5 R. I. 309, the devise was to “ such children as shall be living at the time of my said daughter’s decease, the issue of a deceased child to take what the parent, if living, would have taken'; ” it was held that the children who survived the said daughter were alone entitled to participate ; that during her life it could not be ascertained who would be alive to take ; that “ what their parents, if living, would have taken,” strongly implied that the parents were to take nothing unless living at the death of the said daughter; and that it was therefore a mere contingency without an interest. 2 Blackstone Comment. Cooley’s ed. 168, 169; 4 Kent Comment. 12th ed. 203, n. 1, 208, 209. The language of the trust deed in this case indicates, even more strongly than that commented upon in the above cited authorities, the intention of the grantor to create a mere contingency without an interest. The point raised by the respondent Hoppin, that Arnold Burges was in esse at date of the trust deed, is irrelevant, as the question is not who were in esse at that date, but who were so at tlie death of the grantor’s wife ; it leaves out of sight the fact that until her death the parties who were to take were not ascertained. The cases of Staples Pearce, Trustees, v. Be Wolf et al. 8 R. I. 74, and Kelly et ais. v. Pike et als. 8 R. I. 436, are not in point; in those cases the parties who were to take were ascertained by name or description, and it was manifest that it was the intention of the testators to “ annex futurity to the time of payment only, and not to the substance of the gift.”</p> <p>2. A possibility without an interest is not assignable at law or in equity. Watson v. Woods, 3 R. I. 226 ; Brown v. Williams, 5 R. I. 309,. 316. Hence the deed to Robert Wheaton was void ah initio.</p> <p>3. In this case no title by estoppel ever inured to Robert Wheaton or to Katharine Wheaton : a. As Arnold Burges had only a possibility without an interest, resting upon a double contingency, he could convey no greater present right to Robert Wheaton; any future greater right under the deed must rest upon estoppel; but title by estoppel does not inure until the grantor gets the after-acquired title. It is obvious, therefore, that if the grantee dies before the grantor gets any title, the grantee personally will never have any. Hence Robert Wheaton, if he took anything, held the same possibility as Arnold Burges, with the additional contingency in regard to his own survival until Arnold Burges had acquired a title. Consequently he had only a possibility without an interest, resting upon a triple contingency ; and as he died before Arnold Burges had any title, no title ever inured to him personally. Miller v. Ewing, 6 Cush. 34; Trull v. Kastman, 3 Met. 121; Jackson v. Bradford, 4 Wend. 619; Orocker v. Pierce, 31 Me. 177; Blanchard v. Ellis, 1 Gray, 195 ; Ohew v. Barnet, 11 Serg. & R. 389 ; Me dusker v. McKvey, 9 R. I. 528; 3 Washburn Real Property, 103; 4 Kent Comment. 12th ed. 98. b. As Robert Wheaton had only a possibility without an interest, it was neither descendible nor de-visable, either at common law or under the statutes of Rhode Island. Brown v. Williams, 5 R. I. 309, 316-318; Olney v. Hull, 21 Pick. 311; Thomson v. Ludington, 104 Mass. 193. Gen. Stat. R. I. cap. 171, §§ 1, 13, provide that any person lawfully seised of any lands, &c., may devise them, and that all estate not devised shall be distributed as if such person died intestate. Cap. 176, § 1, provides that whenever any person having title to real estate, &e. As Robert Wheaton was never seised nor ever had any title or estate, but only a possibility of such title or estate, there was nothing in him that was devisable or de-scendible ; consequently the possibility perished at his death, and his heir, Katharine Wheaton, has no claim upon the estate. c. The doctrine that there is no estoppel when the truth appears, applies in this case to this extent at least, that the deed of Arnold Burges shows on its face and by reference to the trust deed, that Arnold Burges had nothing but a possibility, without an interest, and consequently Robert Wheaton knew that he took nothing more, and never would take, unless there was an after-acquired estate in his, Wheaton’s, lifetime, to feed the estop-pel. Bigelow on Estoppel, 263, sq.; Gfilmer v. Poindexter, 10 How. U. S. 257, 268; Me dusker v. McEvey, 9 R. I. 528.</p>

Bill IN Equity for an injunction and an account. On the respondent’s petition for a special order.

Statutory proceedings under Gen. Stat. R. I. cap. 55, §§ 1, 2, as amended by Public Laws R. I. cap. 363, March 26, 1874, and cap. 622, March 30, 1877. The following statement was addressed to the Commissioner of Public Schools, and by him submitted to Mr. Justice Matteson, April 2, 1878, under Gen. Stat. R. I. cap. 55, § 2, as amended by Pub.

<p>Under Public Laws R. I. cap. 666, January 31, 1867, incorporating the town of Woon-socket, and Gen. Stat. R. I. cap. 47, § 5, the town council of Woonsocket elects the superintendent of public schools in that town. Only in case the town council fails to elect, can the school committee appoint that officer.</p> <p>For general laws to modify special laws affecting particular towns, the modifying intention of the legislature must be clear.</p>

In March and June, 1877, the General Assembly of Rhode Island passed two acts, the latter in amendment of the former, modifying the registry laws of the State. These acts are as follows: Chapteb 683 oe the Public Laws, passed March 30, 1877, AS AMENDED BY CHAPTER 640, PASSED JUNE 1, 1877.

<p>The marital estate of a husband in his wife’s realty existed in Rhode Island up to December 2, 1872, when the General Statutes went into effect, and was destroyed by Gen. Stat. R. I. cap. 152, § 1; tenancy by the curtesy remaining, however, unimpaired, according to Gen. Stat. R. I. cap. 152, § 14. Hence under the Constitution of Rhode Island, art. 2, sec. 1, and Gen. Stat. R. I. cap. 152, § 1, a husband otherwise qualified may vote by virtue of liis interest in the realty of his wife, provided such realty is a freehold estate of the value prescribed in the Constitution, in the following cases:</p> <p>1. If the husband has a tenancy by the curtesy initiate.</p> <p>2. If no tenancy by the curtesy initiate exists, then if the marriage and the acquisition of the realty by the wife both took place previous to December 2,1872.</p>