Volume 13 — Rhode Island Reports

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

Debt. Heard by tbe court, jury trial being waived. This was an action against the sureties in the following bond given to the Probate Court of the city of Newport: “ Know all men by these presents, That we, Benjamin Marsh, 2d, of the city and County of Newport and State of Rhode Island, &c., as principal, George Babcock Hazard and John C. Stoddard, of said city, county, and State, as sureties, are holden and stand firmly bound and obliged unto the Court of Probate, in the…

<p>Exceptions to the Court of Common Pleas.</p> <p>In the first two of the cases under consideration the complaints were as follows, the complaint against Hines being a copy of that against McKenna, except as to names and dates:</p> <p>“ To James W. Blackwood, Esquire, Trial Justice of the Justice Court of the City of Providence, in the County of Providence, in the State of Rhode Island and Providence Plantations.</p> <p>“ Charles H. Hunt, of Providence, in said county, Chief of Police of said city of Providence, on oath complains in the name and behalf of the State, that at said Providence, in said county, on the second day of August, A. D. 1879, with force and arms, John McKenna, of said Providence, laborer, 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 opeh 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 of liquor of foreign production, and selling the same in manner and in quantities permitted and as provided in section 6, chapter 508, of the Public Laws, did unlawfully sell and suffer to be sold to one William A. Kent, and not for the purpose of exportation, ale, 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, without license first had and obtained from the commissioners elected in and for said city of Providence, under and according to the provisions of chapter 508 of the Public Laws, entitled ‘An act to regulate and restrain the sale of intoxicating liquors,’ and contrary to the provisions of chapter 119 of the General Statutes, and chapter 508 of the Public Laws. And it is hereby averred that said liquor was not cider or wines manufactured from currants or grapes, or other fruits or berries grown within this State, and sold in quantities not less than one gallon, and was not liquor of foreign production imported under authority of the laws of the United States, and sold in the original casks or packages in which it was imported, and in quantities not less than those in which the laws of the United States require such liquors to be imported, and against the statute, and the peace and dignity of the State.</p> <p>“Wherefore he prays advice, and that process may issue, and that the said respondent may be apprehended and held to answer to this complaint, and be further dealt with relative to the same according to law.</p> <p>“ Dated at Providence, this twenty-fifth day of August, 1879.</p> <p>“ Charles H. Hunt,</p> <p>“ Chief of Police of the city of Providence.”</p> <p>“ Providence, so. — In Providence, this twenty-fifth day of August, A. D. 1879, personally came Charles H. Hunt, subscriber to the above complaint, and made oath to the truth of the same,</p> <p>“ Before me, James W. Blackwood,</p> <p> Trial Justice of the Justice Court of the city of Providence.” </p> <p>In the third case the complaint for keeping intoxicating liquors for sale was as follows:</p> <p>“ To James W. Blackwood., JEsquire, Trial Justice of the Justice Court of the City of Providence, in the County of Providence, in the State of Rhode Island and Providence Plantations.</p> <p>“ Charles H. Hunt, of Providence, in said county, Chief of Police of said city of Providence, on oath complains in the name and behalf of the State, that at said Providence, in said county, on the sixteenth day of August, A. D. 1879, with force and arms, Daniel Brannigan, of said Providence, laborer, not being then and there a 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 pi-actitioner 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 of liquor of foreign production, and selling the same in manner and in quantities permitted and as provided in section 6, chapter 508, of the Public Laws, did unlawfully keep and suffer to be kept on his premises and possessions, and under his charge, for the purpose of sale, and not for the purpose of sale for exportation, ale, 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, without license first had and obtained from the commissioners elected in and for said city of Providence, under and according to the provisions of chapter 508 of the Public Laws, entitled * An act to regulate and restrain the sale of intoxicating liquors,’ and contrary to the provisions of chapter 119 of the General Statutes, and chapter 508 of the Public Laws. And it is hereby averred that said liquor was not cider or wines manufactured from currants or grapes, or other fruits or berries grown within this State, and kept in quantities not less than one gallon, and was not liquor of foreign production imported under authority of the laws of the United States, and kept in the original casks or packages in which it was imported, and in quantities not less than those in which the laws of the United States require such liquors to be imported, and against the statute, and the peace and dignity of the State. .</p> <p>“ Wherefore he prays advice, and that process may issue, and that the said respondent may be apprehended and held to answer to this complaint, and be further dealt with relative to the same according to law.</p> <p>“Dated at Providence, this twenty-fifth day of August, 1879.</p> <p>Chables H. Hunt,</p> <p> Chief of Police of the city of Providence.” </p> <p>“ Pbovtdence, sc. — In Providence, this twenty-fifth day of August, A. D. 1879, personally came Charles H. Hunt, subscriber to the above complaint, and made oath to the truth of the same,</p> <p>“ Before me, James W. Blackwood,</p> <p> Trial Justice of the Justice Court of the city of Providence.” </p>

<p>Gen. Stat. R. I. cap. 193, § 21, provides, 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>Held, that this section gives no action against a defendant who is only charged with passive neglect or a mere omission of duty.</p> <p>F. owned and for purposes of repair controlled a yard occupied by a tenant. In the yard was a cistern on which F. had put a proper iron cover. This was removed without the knowledge of F., and a wooden cover weighted with a stone but claimed to be insecure was substituted. A child three years old, living in a tenement, the yard of which was contiguous to F.’s yard and connected with it by an open gateway, fell into the cistern and was drowned.</p> <p>In an action by the administrator of the child against F., brought under Gen. Stat. R. I. cap. 193, §21:</p> <p>Held, that F. was not liable.</p>

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

<p>Gen. Stat. R. I. cap. 153, § 2, provides: “ Divorces shall be decreed for impofcency, adultery, extreme cruelty, wilful desertion for five years of either of the parties, or for such desertion for a shorter period of time in the discretion of the court, for continued drunkenness, for neglect or refusal on the part of the husband, being of sufficient ability, to provide necessaries for the subsistence of his wife; and for any other gross misbehavior and wickedness in either of the parties, repugnant to, and in violation of, the marriage covenant.”</p> <p>At the August Term, A. D. 1879, of the Supreme Court for Washington County, a petition for divorce was filed, as follows :</p> <p>“ Washington, sc. Supreme Court,</p> <p>August Term, A. r>. 1879.</p> <p>“ Mercy C. Mumford, of Westerly, county of Washington, humbly petitioning respectfully represents, that she is a domiciled inhabitant of this State she having resided therein for the twenty-five years last past; that on the 11th day of January, A. D. 1857, she was married to her present husband, Uriah S, Mumford, formerly of said Westerly, but now residing at Mystic, in the State of Connecticut, less than one hundred miles from the place of trial of this petition ; and that ever since her said marriage your petitioner has kept and performed all her marriage vows and covenants ; but that the said Uriah S. Mumford, unmindful of his marriage vows and disregarding his marriage covenants, hath violated the same in this: that he has wilfully deserted your petitioner, and neglected and refused, being of sufficient ability, to provide necessaries for the subsistence of your petitioner ; and that he has committed the crime of adultery, and been guilty of other gross misbehavior and wickedness repugnant to, and in violation of, the marriage covenant. Wherefore she prays your Honors to pass a decree dissolving the bond of matrimony subsisting between your petitioner and the said Uriah S. Mumford, and for such other and further relief as to your Honors shall seem meet. And she, as in duty bound, will ever pray.</p> <p>“(Signed) Mercy C. Mumeord.”</p> <p>Whereupon the respondent filed a motion, “ that the said petition be quashed and dismissed out of this court for uncertainty ; or else, that the petitioner be required to file a bill of particulars at a reasonable time before the trial of said petition, and that she be confined on the hearing to the allegations and charges particularly mentioned and described in and by said bill of particulars.”</p>

<p>Under Gen. Stat. R. I. cap. 152, § 5, a sewing-machine is an article of “ household furniture.”</p> <p>So is a piano.</p> <p>In trespass against an officer, who on a writ against a husband persisted in attaching the goods of the wife after being told that they were her property, the value of the goods is not the measure of damages, and the court will not disturb a verdict against such officer for a sum much in excess of snch value.</p>

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

<p>Agreement under seal between A. and B. by which B. was to loan A. $5,000 for one year, or indorse his note for that amount for that time, and also indorse his notes to an additional amount not exceeding $2,000 if B. thought such sums required for A.’s business. Por this A. was to pay B. ten per cent, of his net business profits of the year, and two per cent, of his net profits for each $1,000 indorsed for him over said sum of $5,000. A. also agreeing to conduct his business to the best advantage, and to keep accurate accounts thereof to be at all times open to B.’s examination:</p> <p>Held, an executory agreement which if carried into effect would make A. and B, copartners neither as between themselves nor as to third persons.</p> <p>Held, further, that the lenders having no voice in the management of the business and no interest in the capital, the agreement was for a loan of money or credit in which a percentage of profits took the place of interest.</p> <p>Held, further, that such a contract did not, according to the later English cases, create a partnership at common law.</p> <p>A. brought assumpsit against B. and others whom A. claimed to be copartners of B. for goods furnished them under a sealed agreement executed by A. and B.</p> <p>Held, that the action would not lie. As against B., A. ’s claim rested on a specialty, and as B. alone could not be made liable in assumpsit, so B. in company with others could not be held in assumpsit.</p> <p>Semble, that if a partnership existed between B. and his co-defendants, the partners who did not execute the sealed agreement could only be reached by a bill in equity filed by A.</p>

<p>Trespass on the Case. Heard by the court, jury trial being waived.</p>

<p>Bill in Equity to redeem. On exceptions to a master’s report.</p>

<p>Plaintiff's petition for a new trial.</p> <p>This ease was assum2>sit brought by tbe town of North Providence against the defendant corporation, to recover tbe cost of repairs made on a bridge over which a highway in the plaintiff town crossed a trench of the defendant. ;</p> <p>In February, A. D. 1810, tbe Powder Mill Turnpike Corporation was created. The turnpike road was laid out and built soon afterwards. In some places it was laid out on tbe road-bed of an old public highway, and at tbe bridge in question it was, as was claimed by the plaintiff, coincident with the old highway. This bridge, which carried the turnpike across the trench, was built and kept in repair by the owners of tbe water privilege, the defendant’s predecessors in title.</p> <p>In 1873 the General Assembly passed tbe following resolution, No. 28 of the January session, A. D. 1873 : —</p> <p>“ Resolved, That the sum of one thousand dollars be hereby appropriated for the purpose of making tbe Powder Mill Turnpike road, so called, leading from Providence, through the towns of North Providence, Johnston, and Smithfield, to Greenville in Smithfield, a free public highway, on the conditions following, namely, that the said Powder Mill Turnpike Company shall through their treasurer, and by vote of the company, on or before the first day of April next, file with the general treasurer of the state a release to the state of their corporate rights and franchises under their charter, and in and to their said road ; and also release to the different towns through which said turnpike runs all gravel pits and rights to get gravel which said turnpike may 'own or have rights in for the purpose of maintaining said turnpike; and upon the further condition that the said towns of North Providence, Johnston, and Smithfield shall also, on or before the twelfth day of May, A. D. 1873, file a certified copy of a vote of their respective town councils accepting and agreeing to maintain as a free public highway so much of said road as may be within their respective town limits. Upon compliance with these conditions, the state auditor is hereby directed to draw his order on the general treasurer for the sum of one thousand dollars in favor of and payable to the said turnpike company, to be paid out of any moneys in the treasury not otherwise appropriated.”</p> <p>All the conditions of this resolution were fulfilled and the turnpike became a free public highway. Afterwards the bridge needed repair, and the town authorities notified the defendant to do the work. On its refusal or neglect, the town made the needed repairs and brought this action to recover its outlay. At a trial before a jury at the October Term, A. D. 1878, the presiding judge directed a verdict for the defendant, and the plaintiff filed this petition.</p> <p>Gen. Stat. R. I. cap. 60, § 22, is as follows: “ Whenever any artificial watercourse has been or shall be made under, through, or by the side of any highway previously existing, the proprietors or occupants of such watercourse shall make and maintain all necessary bridges over such watercourse, and all fences which may be necessary along the side of the same.”</p>

<p>Petition for a rehearing of a bill in equity. The facts and former proceedings are reported in 12 R. I. 173.</p>

<p>Bill in Equity to annul certain sewer assessments, and to enjoin tbe sale of the assessed estates.</p> <p>Public Laws R. I. cap. 313, §§ 3 & 4, of March 28, 1873, provide:</p> <p>“ Sect. 3. The said city council may by ordinance confer upon said board ” (i. e. the city council of the city of Providence may by ordinance confer on the board of water commissioners of said city) “ all the authority conferred upon and given to said city by chapters 640 and 784 of the statutes; also all the powers now by law vested in surveyors of highways or highway commissioners; also the power to make all assessments authorized to be made under the provisions of chapters 807 and 931 of the statutes, and of this act, for the payment of the cost of the construction of sewers already built, or which may be hereafter built under the provisions or said chapter of this act.</p> <p>“ Sect. 4. All such assessments shall be made upon all estates abutting upon that portion of any street or highway in which any sewer has been or may be constructed, under the provisions of said chapters and of this act, at the rate of sixty cents for each front foot of such estates, upon such street or highway, and one cent for each square foot of such estates, between such street or highway and a line not exceeding one hundred and fifty feet distant from and parallel with the line of such street or highway; provided, however, that where any estate is situated between two streets or highways, the area upon which such assessment of one cent per square foot is made shall not extend to more than one half the distance between such streets or highways ; and provided, also, that where any estate is situated at the corner of two streets or highways, or otherwise so situated as to be assessed for the expense of making a sewer in one of such streets or highways, that portion of such estate assessed for a sewer in one of such streets or highways shall not be liable to be assessed upon its area for the cost of constructing a sewer in the other of such streets or highways, but only for its frontage upon such street.”</p> <p>Ordinances were adopted giving to the board of water commissioners of Providence the powers above referred to, and in accordance with these powers the board made assessments for a sewer in North Main Street in said city, which had been built before the enactment of said Pub. Laws R. I. cap. 313. The statute provided that assessments for sewers should be a lien upon the estates assessed. The complainants, owners of land on North Main Street, refused to pay these assessments, and, on the city treasurer’s advertising their land for sale to enforce the lien, filed this bill on behalf of themselves and of all others in like circumstances.</p> <p>I. This kind of assessment, if in exercise of the power to tax under our Constitution, must be levied with equality, fairness, uniformity, and proportion. The assessment must be imposed upon estates “ in proportion to a special benefit or advantage which. it may be found that each may receive from the construction of a work of public utility or necessity,” in the language of the court in Merrick et al. v. Inhabitants of Amherst et al. 12 Allen, 500, 507; People v. Mayor of Brooklyn et al. 4 N. Y. 419 ; Chicago v. Lamed, 34 Ill. 203 ; Wright v. Chicago, 46 Ill. 44; Chamberlain v. Cleveland, 34 Ohio St. 551; Mayor, Aldermen, fc. of Mobile v. Largan, 45 Ala. 310; Livingston County v. Weider, 64 111. 427 ; Burr v. Carbondale, 76 Ill.455.; City of Covington v. Southgate, 15 B. Mon. 491, 498; The People v. Salem, 20 Mich. 452, 473 et seq.; Tide Water Co. v. Coster, 18 N. J. Eq. 518; Hammett v. Philadelphia, 65 Pa. St. 146, 153; Boston v. Shaw, 1 Met. 130 ; Morse v. Stocker, 1 Allen, 150, 159 ; Oliver v. Washington Mills, 11 Allen, 268; Lorgan v. Boston, 12 Allen, 223, 237; Jones v. Boston, 104 Mass. 461, 467; Arnold v. Cambridge, 106 Mass. 352; Butler v. Worcester, 112 Mass. 541, 555 ; Workman v. Worcester, 118 Mass. 168, 177; Bex v. Commissioners of Sewers for the Tower Samlets, 9 B. & C 517 ; Yeatman v. Crandall, 11 La. An. 220 ; Wallace v. Shelton, 14 La. An. 498.</p> <p>Thus the right, formerly in New York considered an exercise of power of eminent domain, the judges in the case cited from 4 N. Y. are forced to shelter in the taxing power. In New York it is always exercised subject to revision by some power or tribunal, and even then is so offensive as to call for severe judicial criticism. In the Matter of Van Antwerp, 56 N. Y. 261; Quest v. City of Brooklyn, 69 N. Y. 506, 517. Compare this strained New York doctrine with the contra opinions of Campbell and Christianey, JJ., in Woodbridge v. City of Detroit, 8 Mich. 274, 292, 294, 300.</p> <p>II. This species of assessment is more like an application of the principle of eminent domain, though it is its converse. It is the exaction of compensation for a benefit furnished, instead of payment for an injury inflicted.</p> <p>In fact, this species of assessment is in this State imposed under our Constitution for the protection, safety, and happiness of the people, as a burden, and as such is to be fairly distributed. Constitution R. I. art. I. sec. 2 ; In the Matter of Dorrance Street, 4 R. I. 230. The legislature has power to authorize, by law, the city to contract with its citizens. Drainage is a convenience for the protection, safety, and happiness of the community, like highways, schools, protection from fire, &e., and its benefits shall be extended as population grows denser. See Cone v. Sartford, 28 Conn. 363, 372..</p> <p>The city therefore is empowered to construct sewers for highway drainage, and for the benefit which the estate of each citizen receives above the common benefit, he 'shall pay proportionally. Here, then, is every requisite of a contract: two parties and a consideration of benefit received, the one party conferring the benefit, the other under obligation to pay therefor.</p> <p>This analysis shows that some tribunal, some judicial authority, must determine by a judicial judgment that a benefit is received, and if such authority so determine and fix the amount of the same, then the corporation conferring it may exact payment therefor to the amount of the benefit.</p> <p>III. This burden must then be assessed:</p> <p>(a) On lands benefited by the construction of the sewers. See English cases cited under Point V.; Boston v. Shaw, 1 Met. 130.</p> <p>To compel an estate to contribute for a sewer when the estate cannot use and receives no benefit from the sewer would be palpably unjust.</p> <p>While the legislature may fix a district to be assessed for a sewer, it cannot decide what lands are benefited, but merely that if benefited, an estate shall pay proportionally and in common with other estates benefited.</p> <p>(b) The assessment in gross for benefits derived from a sewer must not exceed the cost of the same, otherwise an estate where the cost of a sewer is small pays a portion of the cost of some sewer where the cost is large, or contributes to a fund for general city expenses, which would be to derive revenue from the construction of sewers.</p> <p>(o') And it must be levied upon the estates benefited in proportion to the benefits received. Wright v. Boston, 9 Cush. 233, 241; Tide Water Co. v. Coster, 18 N. J. Eq. 518 ; Clapp v. Hartford, 35 Conn. 66, 78, 79; Hungerford v. Hartford, 39 Conn. 279, 285 ; Woodbridge v. City of Detroit, 8 Mich. 274, 301; Thomas v. Grain, 35 Mich. 155 ; Chamberlain v. Cleveland, 34 Ohio St. 551; In re Washington Avenue, 69 Pa. St. 352 ; State v. Paterson, 36 N. J. Law, 159, 164; State Agens. pros. v. Newark, 37 N. J. Law, 415, 424; State, New Brunswick Rubber Co. pros. v. Comm'rs of Streets and Sewers, 38 N. J. Law, 190, 193; Dusenbury v. Newark, 25 N. J. Eq. 295, 297 ; Peay v. City of Little Rock, 32 Ark. 31; Baxter v. Tripp, 12 R. I. 310,</p> <p>These acts of the legislature and ordinances do not purport to levy the assessments upon lands that may be benefited, or in proportion to such benefits, nor do they consider the cost of the improvement. They assume that there is no difference in the benefits conferred upon the respective estates bordering upon streets through which the sewers pass, except as the estates vary in frontage and area. Nichols v. Bridgeport, 23 Conn. 189, 204.</p> <p>Benefit received is not the standard, but a geometrical figure is, and the superficial contents of that figure are the elements to determine the amount of the assessment. Boston v. Shaw, 1 Met. 130; Downer v. Boston, 7 Cush. 277; Clapp v. Hartford, 35 Conn. 66.</p> <p>IV. In other words, in prescribing the method of assessments of these several acts in question, the legislature, aiming to authorize the imposition of a burden and apportion the same, in fact exercises a judicial power, which authority is vested in another bi’anch of the govexmment. State v. Newark, 25 N. J. Law, 399, 426 ; Chicago v. Lamed, 34 111. 203, 246. This is equally true if the assessment be regarded as a form of taxation.</p> <p>V. This method of assessment provides no means of revision whereby the owner of an estate, if assessed for wrong frontage, wrongly computed area, or assumed benefits by him denied, may have his assessment reduced to conform to the facts.</p> <p>It is true that the first sewer act, Pub. Laws R. I. cap. 807, passed at the January session, 1869, contemplated a right of appeal to a designated tribunal, but this privilege was, by cap. 313 of March 28, 1873, known as an act establishixxg a Board of Public Works, takexx away.</p> <p>In this State we have always enjoyed this right, even in general taxation. See Gen. Stat. R. I. cap. 40 ; Cooley on Taxation, cap. 2.</p> <p>This right of appeal in this form of assessment was incorporated in the early sewer acts in the mother country, and we received it, and it has been acted on in our State, as a portion of our law.</p> <p>An appeal was always part of tbe English systexn of sewer tax. 23 Henry VIII. cap. 5 ; R. I. Col. Rec. vol. v. p. 289; Sisson v. Seabury, 1 Sumn. 235, 262; 1 Kent Comment. 12th ed. 473, note; Soady v. Wilson, 3 Ad. & E. 248 ; Bex v. Commissioners of Sewers for the Tower Hamlets, 9 B. & C. 517; Right of direct appeal given by Stat. 50 Geo. III. cap. 144, quoted in Board of Works v. Vauxhall Bridge, 7 El. & B. 964, 970.</p> <p>This scheme of assessment, by which the legislature assumes arbitrarily that the benefits to the estates abutting on the line of the sewer are ixi proportion to frontage, and area, and provides for no redress of errors, is an infraction of the Constitution of this State, and of the 14th Amendment to the Constitutioxx of the United States, because it takes property of the complainants by legislative decree, passing beyond the legislative power into the exclusive domain of the judiciary. Wynehamer v. The People, 13 N. Y. 378, 391. And without just compensation. See In the Matter of Application, Spc. between lower Chatham and Little Falls, 35 N. J. Law, 497, 501. And is not therefore due process of law, or by the law of the land. Fletcher v. Pede, 6 Crunch, 87, 135 ; Taylor v. Porter, 4 Hill N. Y. 140; Gfreene v. Briggs, 1 Curtis, 311; Sedgwick Statut. & Constit. Law, 479. Is without judicial determination, trial by jury, or judgment of one’s peers. 18 Amer. Law Register N. S. 705, 706, note. And in violation of the constitutional right to have the assessment or burden fairly distributed.</p> <p>VI. Estates in streets where the sewers were ordered and constructed, while the law provided for an assessment for benefits, and. before the Public Works Act was passed, cannot be assessed under the hard and fast rule of the Public Works Act. 1 Dillon Municip. Corporat. § 46 ; City of Bridgeport v. The Mousatonic B. B. Co. 15 Conn. 475, 497; Penniman, petitioner, 11 R. I. 333. For in these cases owners, and third parties purchasing of them, have a vested right to have the judgment of a commission upon the question of benefit or no benefit, and of the amount thereof, and must be presumed to have in effect made such contract with the city, and on sale or descent of estates, the right is sold or descends.</p> <p>The constitutionality of this species of legislation has been definitely settled in this state, and its want of novelty shown. In the Matter of JDorrance Street, 4 R. I. 230, 253, 254.</p> <p>That the legislature has the power to lay the whole expense of building a sewer upon abutting owners, that is, the expense of building the sewer in front of the respective premises of the abuttors, is affirmed by abundant authority. The greater power includes the lesser one of imposing a less burden. Cooley on Taxation, pages 399, 436-444. Stroud v. Philadelphia, 61 Pa. St. 255; Magee v. Commonwealth, 46 Pa. St. 358; McGfonigle v. Allegheny, 44 Pa. St. 118; Commonwealth v. Woods, 44 Pa. St. 113.</p> <p>An assessment by frontage at a rate per foot for improvements in streets is constitutional. Chambers v. Sdtterlee, 40 Cal. 497 ; Allen v. Drew, 44 Vt. 174.</p> <p>Legislatures can authorize special assessments, and it is an exercise of the right of taxation inherent in every sovereign. That power implies apportionment, and when legislatures have exercised the right and made the apportionment, a court should not assume to declare it void unless the invasion of private right is flagrant and its demonstration clear. Nor can a court determine what manner of apportionment is most equable and just. State v. Fuller, 34 N. J. 227; Upington v. Oviatt, 24 Ohio St. 282.</p> <p>The entire expense of street improvement may be assessed by foot front upon abutting lots. Parlcer v. Challiss, 9 Kansas, 155.</p> <p>King v. City of Portland, 2 Oregon, 146, upholds the doctrine of the power of the legislature to authorize assessments for the probable cost of a street improvement, and holds that it is in the discretion of the legislature to provide the mode of assessment of such expense, and that the exercise of that discretion is not reviewable in the courts. Warren v. Henly, 31 Iowa, 31; Williams v. Mayor of Detroit, 2 Mich. 560; Lefevre v. Mayor of Detroit, 2 Mich. 586; Motz v. Detroit, 18 Mich. 495; Hoyt v. City of Fast Saginaw, 19 Mich. 39; Wallcer v. Qrrand Haven, 30 Mich. 24 ; Thomas v. Grain, 35 Mich. 155 ; In re Washington Avenue, 69 Pa. St. 352, 361; Hammett v. Philadelphia, 65 Pa. St. 146, 154, 155.</p> <p>, Every presumption is to be made in favor of the right of taxation. If the case is within the principles, the proportion of contribution and other details are within the discretion of the taxing power.</p> <p>St. Louis v. Oeters, 36 Mo. 456, sustains an assessment for the whole expense of building a sewer, the cost of work and assessment having been made by the city engineer.</p> <p>The People v. Mayor, <fc. of Brooklyn, 4 N. Y. 419, may be called a leading case upon the principles involved in this bill, holding, that taxation operates upon individuals and without regard to the amount or value exacted from any other individual or class of individuals; that the power to tax implies a power to apportion the tax as the legislature shall see fit, and that the power of apportionment has no limit where there is no constitutional restraint ; that there is nothing in the Constitution of New York (and in this respect it is like the Constitution of Rhode Island) which requires that taxation shall be general so as to embrace all taxable persons within the State or within any district or territorial division of the State, or that it shall be equal as in the case of a capitation tax, or that it shall be in proportion to the value of the property of the persons taxed, or that it shall not be apportioned according to the benefit which each taxpayer is supposed to receive from the object on which the tax is expended; that the remedy against unwise or unjust modes of taxation is to be sought from the legislative department and not from the judiciary.</p> <p>Litchfield v. Vernon, 41 N. Y. 123, 133, affirms the doctrine that the legislature is the exclusive judge as to what district will be benefited by a local improvement, and that the Constitution imposes no restriction.</p> <p>Palmer v. Stumph, 29 Ind. 329, 339, holds that the legislature has the power of assessing the cost of public works upon abutting owners in proportion to the value of land.</p> <p>The power to determine when a special assessment shall be made and on what basis it shall be apportioned is wisely confided to the legislature, and cannot, without the introduction of some new principle in representative government, be placed elsewhere ; and with the wisdom or unwisdom of special assessments when ordered in cases in which they are admissible at all, the courts have no concern unless there is plainly and manifestly such ■an abuse of power as takes the case beyond the just limits of legislative discretion. Cooley on Taxation, 429; Lockwood v. City of St. Louis, 24 Mo. 20,22; The People v. Mayor, ¿•c. of Brooklyn, 4 N. Y. 419, 427, 437, 438 ; Allen v. Brew, 44 Vt. 174 ; Commonwealth v. Wood, 44 Pa. St. 113 ; Stroud v. Philadelphia, 61 Pa. St. 255; State v. Puller, 34 N. J. 227; Litchfield v. Vernon, 41 N. Y. 123, 133 ; Crowell v. Lawrence, 41 N. Y. 137.</p> <p>This power has been frequently exercised in making assessments by front foot as well as by valuation, and sustained.</p> <p>The authorities are well united that frontage may lawfully be made the basis of apportionment. Cooley on Taxation, 451; MeGonigle v. Allegheny City, 44 Pa. St. 118; Magee v. Commonwealth, 46 Pa. St. 358 ; Stroud v. Philadelphia, 61 Pa. St. 255 , Spring Garden v. Wistar, 18 Pa. St. 195; Chambers v. Satterlee, 40 Cal. 497 ; Palmer v. Stumph, 29 Ind. 329; Allen v. Drew, 44 Vt. 174 ; Williams v. Cammaelc, 27 Miss. 209; Smith, v. The Corporation of Aberdeen, 25 Miss. 458 ; Alcorn y. Hamer, 38 Miss. 652; Upington v. Oviatt, 24 Ohio St. 232; Parker v. Challis, 9 Kansas, 155; Motz v. Detroit, 18 Mich. 495 ; In re Washington Avenue, 69 Pa. St. 352, 361; Dillon on Municip. Corporat. § 596.</p> <p>And assessments by the acre for constructing levees have been sustained. Cooley on Taxation, 443; Daily v. Swope, 47 Miss. 367; Egyptian Levee Co. v. Hardin, 27 Mo. 495.</p> <p>Brewer v. City of Springfield, 97 Mass. 152, holds that an assessment for benefits by the value of the land exclusive of buildings is legal.</p> <p>There has been like legislation before the adoption of the Constitution and continued since. Ames, C. J., cites instances In the Matter of Dorrance Street, 4 R. I. 230, 254.</p>

<p>A guardian’s petition to a probate court, for leave to mortgage the realty of his ward, must be in writing.</p> <p>RohUns v. Tafft, 12 R. I. 67, distinguished.</p> <p>When such a petition had been presented, but a part of the probate records were lost, this court, under Pub. Laws R. I. cap. 681, § 2, of April 12,1878, may use the inventory to ascertain what realty the petition covered.</p> <p>A guardian obtained leave, by the usual proceedings before a probate court, to mortgage his ward’s realty. He gave a mortgage containing powers of sale.</p> <p>Held, that the powers of sale were void, the formalities imposed by statute upon probate courts, in case of petitions for leave to mortgage, differing materially from those required in case of petitions for leave to sell.</p>

Trover. On demurrer to the replication. The plaintiff in this case, by writ dated March 1,1879, sued the defendant in trover, for converting certain machinery described in a schedule attached to the declaration, being all the machinery and “tools put by Bliss & Carpenter into the Pawtucket Planing Company’s Mill.” The defendant pleaded actio non, because, as he alleged, he was one of the owners of said mill, and as such executed with his co-owners a lease of said mill to…

<p>Devise as follows: “I give and devise to my son W.” certain specified realty, “to Mm my said son W. to hold during his natural life, and after his decease I give and devise the same to the oldest male heir of my said son W. and to his heirs and assigns forever.”</p> <p>W. had a son and a daughter both living when the devise was made. The son died subsequent to the testator’s death and without issue; afterwards W. died, and then the daughter, without leaving issue.</p> <p>Held, that W. took an estate for life, and W.’s son a contingent remainder dependent on his surviving W.</p> <p>The devise above given was followed by a residuary gift as follows: “I give and bequeath unto my two sons, W. and C., jointly and severally, all the rest and residue of my estate both real and personal to be divided equally between them.”</p> <p>Keld, that the devise “to the oldest male heir ” of W. being contingent, there remained in the specified realty an estate subject to the contingency to be disposed of, and that this estate passed under the residuary clause.</p> <p>Held, further, that the contingent devise having failed, "W". and C. took each an undivided moiety of the specified realty.</p>

<p>A. conveyed to B. certain realty by a deed poll in which specified rents were reserved for periods of time described. B. entered under the deed.</p> <p>Held, that by his entry B. contracted to pay the rents as reserved.</p> <p>Held, further, that B.’s contract being an implication of law was not within the statute of frauds.</p> <p>Held, further, that A. could maintain assumpsit against B. for the rent due and unpaid.</p> <p>Held, further, that by his entry B. adopted the conditions of A.’s deed, and could not terminate his holding by vacating the premises without the consent of A.</p>

<p>Bill in Equity to establish a boundary line between riparian owners and for an injunction.</p>

Bill in Equity for an injunction. Enactments of the General Assembly of Rhode Island authorized the town of Pawtucket to build water-works, and gave to it certain powers for this purpose. The present bill was filed by the complainants as taxpayers of the town to ascertain whether the proceedings of the commissioners appointed under the acts of the legislature were or were not in accordance with law.

<p>In Rhode Island a creditor who has a claim secured by a lien is entitled to a dividend from the voluntary assignee of his debtor only on such residue of his claim as may remain unpaid after he has exhausted the property subject to his lien.</p>

<p>The statement in a deed of its consideration is so far conclusive on the parties to the instrument that it cannot be disproved in order to avoid the deed; for all other purposes it maybe modified and explained by parol proof.</p> <p>Marriage is in law a valuable consideration. In consideration of marriage a man may convey property to his intended wife, and this conveyance, if bona fide and of a reasonable amount of property, is good against both existing and subsequent creditors.</p> <p>Eor an ante-nuptial settlement to be void as fraudulent upon the settlor’s creditors, both parties to the settlement must have been cognizant of the intended fraud.</p>

Exceptions to the Court of Common Pleas. This action was trespass on the case brought in the Court of Common Pleas. Held: and sent it to the town clerk of West Greenwich, requesting an examination of Johnson’s title, and stating that he understood Johnson to be the owner of one half of the estate in question; that this deed was subsequently returned to the plaintiff with a certificate of the town clerk, the defendant, indorsed upon it; that relying on…

<p>Pending a bill in equity affecting the title of realty, third persons with the consent of the respondent cut, carried off, and appropriated quantities of wood and brush from the realty in question. After a decree in his favor the complainant filed another bill in equity against these third persons to ascertain the amount of stuff cut and carried off by them, which was chargeji to be of the value of five hundred dollars, and to enforce payment from them. This bill charged no conspiracy with the former respondents, nor any attempt to commit actual fraud. The respondents demurred.</p> <p>Held, that the bill was virtually an action of trover and conversion for wood cut pending the former bill, and could not be maintained.</p> <p>The doctrine of ulis pendens'1'1 requires property specifically sued for, to abide the result of the suit. The doctrine cannot be extended to support a bill in equity which, neglecting the specific property, seeks only to recover its value.</p>

<p>In Khode Island, Courts of Probate have the same power to set off dower as courts of common law.</p> <p>A widow may have dower assigned to her at law, in an equity of redemption, so long as the mortgagee remains out of possession.</p> <p>In such a case the widow takes her assigned dower subject to the mortgage.</p>

Assumpsit. Heard by the court on an agreed statement of facts.

Bill in Equity to terminate a trust. November 24,1851, the complainant, then Anna E. Pratt, contemplating a marriage with the respondent Horatio R. Nightingale, joined with him and one Henry A. Rogers in executing a tripartite indenture by which she transferred her property in trust to said Rogers.

<p>Action on the guaranty offered, in .the following letter :</p> <p>“H. R. Horton, Esq.: If Mr. J. G. Haley contracts with yon for lime and plaster to be used in fire-proofing and plastering City Hall and Court House Buildings in Providence, promising to pay your bills from moneys received by him for work done on said buildings, I will guarantee the faithful performance of such contract with you. Yours truly, J. G. Batterson.”</p> <p>3eld, that this offer of guaranty was conditional, and that Batterson was entitled to notice that the conditions were accepted.</p> <p>Meld, further, that without distinct notice of such acceptance, Batterson’s guaranty did not take effect.</p> <p>The lime and plaster were in fact furnished, not by Horton, but by the plaintiffs, the Kings.</p> <p>Meld, that the plaintiffs could not hold Batterson on his guaranty offered to Horton.</p> <p>Meld, further, that they could not maintain their action on the ground that Horton was their agent.</p>

<p>In Rhode Island an officer holding a writ of replevin with the statutory bond will be protected in taking the property described from the defendant in the writ, and in delivering it to the plaintiff, notwithstanding third parties may claim the property.</p> <p>A. purchased certain personalty of B., mortgaged it to B., and kept it in a house occupied by himself. During the absence of A. the house was sold under a mortgage, and with the personalty passed into the possession of G. A. replevied the personalty from C., but while the officer was making an inventory of the personalty to deliver it under the writ to A., B. demanded it. B. had not been in possession of the personalty since its purchase by A., nor was C. an agent of B. The officer refused to comply with B.’s demand, whereupon B. brought trover against A. and the officer.</p> <p>Held, that the action would not lie against the officer.</p>

<p>In accordance with an agreement made between the parties litigant to a bill in equity, a respondent who had been arrested on a writ of ne exeat filed a bond with a surety “ to abide and perform the orders and decrees of the court in the cause,” whereupon the writ was discharged.</p> <p>Subsequently and before final decree the surety moved for an order discharging him from liability on the respondent principal’s putting himself within the jurisdiction of the court and subject to its decrees.</p> <p>Heidi that the motion could not be granted.</p> <p>Held, further, that a bond to a abide and perform ” differs from a bond to “ abide.”</p> <p>Held, further, that on discharging a writ of ne exeat a court may in its discretion require the respondent to give security to perform the decree.</p> <p>In Ehode Island the right of bail to surrender his principal is by statute confined to civil actions. . .</p>

<p>Trover. On motion for an order of service of the writ.</p>

<p>Petitioners for the lay-out of a highway are not “indifferent men,” and therefore cannot act as committeemen to mark out the highway under Gen. Stat. R. I. cap. 59, § 2.</p>

<p>Paying over the proceeds of an auction sale to the person for whom he sells is one of the official duties of an auctioneer.</p> <p>Hence neglect so to pay over constitutes a breach of a bond conditioned simply that the auctioneer shall “well and faithfully perform all the duties of said office during his continuance therein."</p> <p>An official bond need not follow the words of the statute if it uses words of the same legal effect.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This case was trover and conversion brought in the Court of Common Pleas by Daniel S. King against David Patt. The writ bears date June 18,1879, and was served by arrest June 27,1879. The declaration was filed November 18, 1879. The deposition of the plaintiff Daniel S. King was taken June 30, 1879, to be used in the trial of the case, and this deposition, which was not taken “ in perpetuam memoriam,” was opened in court June 25, 1880. While the case was pending and before trial, Daniel S. King died, and M. Nellie King, the administratrix on his estate, assumed the prosecution of the suit. At the trial in the June Term, 1880, the plaintiff offered this deposition of'Daniel S. King as evidence to the jury. The defendant objected to its admission, but the presiding justice overruled the objection and the defendant excepted. Subsequently the defendant offered himself as a witness. The plaintiff objected to the admission of his testimony, the presiding justice sustained the objection, and the defendant excepted.</p> <p>Gen. Stat. R. I. cap. 203, contain the following provisions :</p> <p>“ Sect. 23. The deposition of any person taken pursuant to this chapter shall be used as evidence in the trial of any cause in which it shall have been taken to be used ; and if the party that took the same shall neglect to produce or use it, the adverse party may use in such trial the original, or a copy of such deposition, certified by the magistrate before whom it was taken.”</p> <p>“ Sect. 33. In every civil action or civil proceeding at law, a party thereto, or any other person, may testify by deposition or orally in court, except as otherwise in this chapter provided.”</p> <p>Pub. Laws R. I. cap. 605, of March 28, 1877, provide:</p> <p>“ Sect. 1. Section 32 of chapter 203, of the General Statutes, is hereby amended, and shall read as follows: “No person shall be disqualified from testifying in any action at law, suit in equity, or other proceeding at law or in equity, by reason of his being interested therein, or being a party thereto : Provided, that when an original party to the contract or cause of action is dead, or is shown to the court to be insane, or when an executor or administrator is a party to the suit, the other party may be called as a witness by his opponent, but shall not be admitted to testify upon his own offer, or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely, or unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the decease of the executor’s testate or administrator’s intestate.”</p>

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

<p>Public Laws R. I. cap. 563,' § 7, o£ April 20, 1876, apply to suits pending at the time of enactment as well as to actions subsequently brought.</p>

<p>Defendants’ petition for a new trial.</p>

<p>Trespass on the Case. On demurrers to the declaration and to a special plea in bar.</p>

<p>A. made a pvomissory note payable on demand with interest to the order of B. It was indorsed by B- and then by C. ; B. and C. affixing their names for the accommodation of A. and to enable A. to borrow money from the plaintifi on the note:</p> <p>Held, that G. was liable as an indorser, not as a joint maker, and was entitled to due notice of dishonor.</p> <p>Held, further, that C.’s liability was not varied by the fact that the note was payable on demand with interest.</p>

<p>Pub. Laws R. I. cap. 603, § 11, of March 27, 1877, is not 'unconstitutional, the power conferred by it on the Board of State Charities and Corrections being disciplinary and not judicial.</p> <p>A sentence pronounced subsequent to the enactment of this section is pronounced subject to ■ its provisions.</p> <p>One sentenced to the Reform School and allowed to go at large on probation, but not discharged, remains legally an inmate of the school.</p>

<p>A replevin bond with, but one surety taken under Gen. Stat. R. I.' cap. 224, § 3, is fatally defective.</p> <p>Neither Gen. Stat. R. I. cap. 224, § 4, nor cap. 199, § 4, permits its amendment.</p> <p>A replevin bond is collateral to the process, not a part of it.</p>

<p>A rehearing of a suit.in equity will not be granted at the respondent’s request on account of the complainant’s laches in delaying to file his bill for an account until nearly six years after the dissolution of a partnership when the complainant had called on the respondent for an account soon after the dissolution, and the respondent, the accounting party, ha^ neglected to render it.</p> <p>Nor will a rehearing be granted on the ground of newly discovered testimony when such testimony might as easily have been obtained for the original hearing.</p> <p>Interest on the balance found due to the complainant at the dissolution was allowed, after such time as would give the respondent opportunity to close up the partnership business.</p> <p>Held, on a petition for rehearing, that if such an allowance was error it was an error in the respondent’s favor.</p>

Assumpsit. Heard by the court on the following agreed statement of facts: “ Jury trial in this case is waived, and the parties agree to submit it to the court upon the following statement of facts: “ 1.

<p>Assumpsit. Heard by the court on an agreed statement of facts.</p> <p>Irving Ohamplin Nelson E. Ohureh, for the plaintiff, cited Warren v. Batchelor, 16 N. H. 580; Allis v. Jewell, 36 Vt. 547 ; Marchington v. Vernon, 1 Bos. & Pul. 101, note a; Moar v. Wright, 1 Vt. 57 ; Brainard v. Oapelle, 31 Mo. 428; Arnold v. Sprague, 84 Vt. 402; Grant v. Ellieott, 7 Wend. 227; Qole v. Gushing, 8 Pick. 48 ; United States v. The Bank of the Metropolis, 15 Pet. 377.</p>

<p>In trespass on the case a declaration charged that “said city ... so carelessly and negligently kept and maintained that highway known as . . . and so carelessly and negligently suffered and allowed said highway to be and remain out of repair, as wrongfully and injuriously to turn and cause to flow upon the lands and estate of the plaintiff next adjoining to said highway, the water which otherwise and ordinarily, or naturally and but for the wrongful acts and omissions of the said city, . . . would not have flowed or run upon the plaintiff’s lands and estate aforesaid, whereby, &c.</p> <p>Eeld, on demurrer, affirming Wakefield v. Newell, 12 R. I. 75, that no cause of action was set forth.</p> <p>Requisites of a good declaration in an action for negligence.</p> <p>In case, for the neglect of a statutory duty, the plaintiff must show that the duty was imposed for his benefit or existed for his security from the injury suffered.</p>

<p>Bill m Equity to remove a cloud upon title to realty and to enjoin execution sales. . On demurrer to the bill.</p> <p>The General Statutes of Rhode Island cap. 162, § 1, provide:</p> <p>“ Every gift, grant, or conveyance of land, tenements, hereditaments, goods, or chattels, or of any rent, interest, or profit out of the same by writing or otherwise, and every note, bill, bond, contract, suit, judgment, or execution, had or made and contrived of fraud, covin, collusion, or guile, to the intent or purpose to delay, hinder, or defraud creditors of their just and lawful actions, debts, suits, accounts, damages, or just demands of what nature soever, or to deceive or defraud those who shall purchase “ bond fide ” the same lands, tenements, hereditaments, goods, or chattels, or any rent, interest or profit out of them, shall be henceforth deemed and taken as against such person or persons, his, her, or their heirs, successors, executors, administrators, or assigns, and every of them, whose debts, suits, demands, estates, rights, or interests by such guileful and covinous devices and practices as aforesaid, shall or may be in any wise injured, disturbed, hindered, delayed, or defrauded, to be clearly and utterly void, any pretence, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.”</p> <p>Pub. Laws R. I. cap. 728, of June 20,1878, are as follows :</p> <p>“ Sect. 1. 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 provided 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>“ Sect. 2. 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 or more of his creditors holding not less than one third of the debts in amount of such debtor, may file a petition in equity, either in term time or in vacation, in the Supreme Court in the county where such debtor resides, but which may be heard in any county, and after notice to the debtor and to the creditors sought to be preferred, of the time and place of hearing thereon, the court, sitting in bane, shall proceed summarily to hear the parties, and if it shall appear to the court that such debtor is insolvent, and has been giving, or is about to give, a preference to any of his creditors over others of such creditors, the court shall appoint, from the nominations by the creditors, a receiver, who shall take possession of all the property, evidences of property, books, papers, debts, choses in action, and estate of every kind of the debtor not exempted by law from attachment, including property attached or levied upon, in the manner and subject to the limitation hereinbefore provided, and all property conveyed in violation of the provisions of this act, and convert the same to money, and marshal and distribute the same among the several creditors of the insolvent, whether their claims are due or to become due, who shall come in and prove their respective claims within such- time and in such manner as the court shall direct, and the court shall order such debtor to file a schedule of his debts and to whom due, and of his property, and to do whatever may be necessary and proper to carry this act into effect, and all proceedings therein or thereunder shall be in accordance with the course of equity, and such as the court shall by general rule or by special order prescribe.</p> <p>“ Sect. 3. 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>“ Sect. 4. Conveyances and payments made and securities given by an insolvent debtor, or by a debtor in contemplation of insolvency, within sixty days of the commencement of proceedings against such debtor under this act, with the view of giving a preference to any creditor upon a preexisting debt, or to any person under liability for such debtor over another creditor, shall be void as to all creditors receiving the’ same who shall have reasonable cause to believe that such debtor was insolvent at the time of such preference.</p> <p>“ Sect. 5. The court may, at any time during the pendency of any petition filed under the second section of this act, allow new parties to come in and be joined in such petition.</p> <p>“ Sect. 6. This act shall not apply to any action or proceeding which shall have been commenced before the passage hereof.</p> <p>“ Sect. 7. Costs in cases upon which attachments or levies are made, which are dissolved under the provisions of this act, shall be preferred and be first paid by the receiver to be appointed hereunder.</p> <p>“ Sect. 8. All actions and proceedings to be commenced under the provisions of this act may be commenced and prosecuted in the name of the receiver appointed hereunder.</p> <p>“ Sect. 9. The sixty days mentioned in the fourth section of this act, within which mortgages and other conveyances named in said act shall be liable to be set aside and be made subject to the provisions of said act, shall begin to run from and after the leaving of such mortgage or other conveyance for record at the office of the proper registering officer, provided that such mortgage or conveyance is one required by law to be recorded.</p> <p>“ Sect. 10. All acts and parts of acts inconsistent herewith are hereby repealed.</p> <p>“ Sect. 11. This act shall take effect on the 1st day of September, A. d. 1878.”</p> <p>These statutory provisions being in force, the firm of Sackett, Davis & Co., December 5, 1878, executed and delivered the following trust deed:</p> <p>“ This Indentube, made and entered into this fifth day of December, A. D. 1878, by and between Thomas Davis, Lauriston Towne, George P. Tew, all of the city and county of Providence, in the State of Rhode Island, and George H. Sackett, of Brooklyn, in the County of Kings and State of New York, all copartners doing business in the said city of Providence, under the firm name or style of Sackett,- Davis & Co., parties of the first part, and Henry W. Gardner, Lodowick Brayton, and Joseph B. Mathewson, all of said Providence, of the second part,</p> <p>“ Witnesseth, whereas the said Sackett, Davis & Co. are indebted and under liability to divers persons in divers sums of money, and their assets, although amounting in value to about three times their said indebtedness, cannot immediately be made available for the payment of the same as their said indebtedness shall from time to time mature;</p> <p>“ And whereas, the said parties of the first part are desirous of equally securing and paying all their said indebtedness and liabilities by the conveyance of all their properties to the said parties of the second part, in trust as hereinafter provided, which trust the said parties of'the second part do by these presents accept;</p> <p>“ And whereas, the best interests of the creditors may require that the jewelry business, in which the said Sackett, Davis & Co. have been hitherto engaged, should be for some period continued by the said trustees, and by them gradually discontinued and closed out:</p> <p>“ Now, therefore, the said parties of the first part, in consideration of the premises and of the trusts hereinafter set forth, and of the sum of one dollar to them paid by the said parties of the second part, the receipt whereof is acknowledged, do give, grant, bargain, and sell, assign, transfer, set over, and convey unto said Gardner, Brayton, and Mathewson, and the survivors and survivor of them, their heirs, executors, administrators, and assigns, all and singular, the real and personal estate of every name, nature, and description, wherever the same may be situated, and however described, of which the said parties of the first part, or any or either of them, are seised or possessed, or to which they or any of them are entitled, or have any interest in, either as copartners or otherwise, except such property as is exempt from attachment by law.</p> <p>“ To have and to hold the same with the appurtenances thereof, unto the said Gardner, Brayton, and Mathewson, and the survivors and survivor of them, their heirs, executors, administrators, and assigns, upon the following trust — that is to say: They shall take possession of all the property hereby conveyed, and shall have power to invest, reinvest, and change investments of the same, and to manage, act, and deal with said property absolutely, in their uncontrolled discretion, as they may judge for the best interests of all the creditors. They shall have free, full, and uncontrolled power in their discretion to carry on the said jewelry business of the said parties of the first part, for such time as the said trustees may deem for the best interests of the creditors, and necessary for the purpose of preventing shrinkage and loss, and of closing out and liquidating the same to the best advantage, and herein to draw, make, sign, indorse, and guarantee any and all bills of exchange, promissory notes, br other commercial paper, as well in renewal or extension of any commercial paper on which the said parties of the first part are now liable in any form, or for any other existing debt or liabilities of the said parties of the first part, as for any new indebtedness or liability which may be contracted in so carrying on said business; provided, however, that the foregoing authority to carry on said jewelry business for the purposes above declared shall forthwith cease and determine whenever a majority in amount of the creditors of the said parties of the first part shall so direct the said trustees.</p> <p>“ They shall have free, full, uncontrolled power in their discretion to sell any and all of the real property hereby conveyed, and to sign, seal, acknowledge, and deliver any deed or deeds, conveyance or conveyances of such real property from time to time as they may judge best, and so as to pass the fee thereof, and with or without warranties as they may deem best, and in like manner to lease the same upon such terms as they may see fit, or to mortgage any and all of the said real property, and to sell and transfer, pledge or mortgage any and all of the personal property hereby conveyed, to settle and compound for any debts or other choses in action held in trust under this indenture ; and to give good and sufficient receipts, acquittances, and discharges for the same, and the said parties of the first part hereby declare that the receipt of the said trustees for any rent, interest, dividends, or other moneys whatsoever, shall be a full acquittance and discharge for the same. And the said parties of the first part hereby order and direct that no purchaser, mortgagee, or pledgee of any real or personal property held in trust under this indenture, or other person dealing with or paying money to said trustees, shall be under any obligation to inquire as to the necessity, regularity, or propriety of any sale, mortgage, pledge, or other act or transaction whatever, made, done, or entered into by said trustees, or to see to the application of any purchase money, or.other moneys raised or realized from any such sale, mortgage, pledge, or other act or transaction, or any moneys paid to said trustees, or be bound or liable for the mal-application or misapplication thereof.</p> <p>“ And said parties of the first part hereby direct the said trustees, after paying all taxes and assessments upon said trust property, and for all repairs and improvements they may make, or cause to be made, of or upon the same, and all expenses of managing said property, including the premiums for such insurance upon the insurable property hereby conveyed as the said trustees may keep and maintain, and after reserving to themselves a reasonable compensation for their services hereunder, and paying in full the wages due from the said parties of the first part to all persons who have performed labor within six months previous to the date hereof, not exceeding one hundred dollars to any one person, to retire all of the said indebtedness and liabilities of the said parties of the first part, including such as may be contracted by said trustees in carrying on the said jewelry business, or otherwise in carrying out the provisions of this indenture, as rapidly as in their opinion it can judiciously be done out of the profits, income, and revenue of the said jewelry business, and any investments of said trust property, and by the sale, pledge, or mortgage of such of the real and personal property held in trust under this deed, as they may think desirable; and in so doing to make such dividends or pro rata payments on account of all said indebtedness and liabilities from time to time as the said trustees may deem prudent, and for the best interests of all the creditors, and as rapidly as in the opinion of said trustees it can judiciously be done, to convert the whole of the property hereby conveyed, or so much thereof .as may be necessary, into money, and apply and appropriate the same to the payment in full, if sufficient, otherwise ratably, of all claims and demands against the said parties of the first part, accounting to them, their heirs, executors, administrators, and assigns, for any surplus that may remain after applying the same to the purposes aforesaid.</p> <p>“ It being the true intent and meaning hereof, to convey all of the property and estate of the said parties of the first part to the said parties of the second part, for the equal benefit of all of the creditors of the said parties of the first part in proportion to their respective claims (excepting as a preference is hereinbefore given to the claims for labor above described), and that as soon as may be, having regard to the best interests of the creditors, and avoiding needless sacrifice of the property hereby conveyed (in order that if possible all of said claims may be paid in full), the said trustees shall convert said property, or so much thereof as may be necessary, into money, and apply the same to the equal payment of all said claims, without preference other than the wages of labor aforementioned, the said parties of the first part not intending, however, by this declaration to limit or restrict any of the power hereinbefore given to said trustees, and which they may deem it for the best interests of the creditors to exercise.</p> <p>“And it is hereby further declared, that in case any one or two of the trustees hereinbefore named shall die, resign, or become incapable of acting as such trustee or trustees, the said trust property, and the trusts and powers herein declared and conferred, shall thereupon and thereby .vest in, and the said trusts and powers thenceforth be executed and exercised by, the survivors or survivor of said trustees.</p> <p>“In witness whereof, the parties to this indenture have hereunto set their hands and seals the day and year above mentioned.</p> <p>“ In presence of</p> <p>George Fuller as to George H. Sackett, Thomas Davis, Lauriston Towne, and George P. Tew. “And in presence of C. H. Parkhurst, as to H. W. Gardner, L. Brayton, and J. B. Matkewson. .</p> <p>George H. Sackett, [l. s.] Thomas Davis, [l. s.J Lauriston Towne, [l. s.] > George P. Tew. [l. s.] Henry'W. Gardner, [n. s.] Lodowick Bratton, [l. s.] J. B. Mathewson, [l. s.]</p> <p>“ State oe Rhode Island, &c., ) Providence, Sc. j</p> <p>“ In the city of Providence, on the fifth day of December, A. D. 1878, George H. Sackett, Thomas Davis, Lauriston Towne, and George P. Tew, to me known to be the individuals described in, and who executed the foregoing instrument, personally appeared before me and severally acknowledged -that they executed the same as their free act and deéd.</p> <p>“ George Fuller, Notary Public.</p> <p>“ Recorded December 5, 1878, at 2 P. M.</p> <p>“ G. A. Williamson, Recorder of Reeds.”</p> <p>March 3, 1879, the Commercial National Bank of Providence brought suits against Sackett, Davis & Co., Thomas Davis, and George P. Tew, and claiming that the trust deed above given was void, served its writs by attaching the real estate conveyed by said trust deed. March 6, 1879, the National Exchange Bank of Providence brought suit against Thomas Davis, and attached the realty of Davis conveyed by said trust deed.</p> <p>March 21, 1879, Sackett, Davis & Co. executed and delivered a deed of assignment as follows:</p> <p>“ Know all men by these Presents that we, Thomas Davis, Lauriston Towne, George P. Tew, all of the city and county of Providence in the State of Rhode Island, and George PI. Sackett, of Brooklyn, in the county of Kings, and State of New York, all copartners doing business in the said city of Providence, under the firm name or style of Sackett, Davis & Co., for and in consideration of the sum of one dollar to us paid by Henry W. Gardner, Lodowick Brayton, and Joseph B. Mathewson, all of said city of Providence, the receipt whereof is acknowledged, do hereby grant, bargain, sell, assign, transfer, set over, and convey unto the said Henry W. Gardner, Lodowick Brayton, and Joseph B. Mathewson, and the survivors and survivor of them, their heirs, executors, administrators, and assigns.</p> <p>“ All and singular the real and personal estate of every name, nature, and description, wherever the same may be situated, and however described, of which we, as copartners as aforesaid are seised or possessed, or to which as copartners as aforesaid we are entitled, or in which as such copartners we have any interest, except such property as is exempt from attachment by law.</p> <p>“To have and to hold the same with the appurtenances thereof unto them the said Henry W. Gardner, Lodowick Brayton, and Joseph B. Mathewson, and the survivors and survivor of them, their heirs, administrators, and assigns, forever.</p> <p>“ In trust nevertheless for the equal benefit of all the creditors of our said copartnership in proportion to their respective claims.</p> <p>“ In witness whereof,” &o.</p> <p>Signed, sealed, acknowledged, and recorded.</p> <p>On the same day and the following day, March 22,1879, the copartners of the firm Sackett, Davis & Co. made each an assignment similar to the above and to the same assignees, conveying their individual property for the equal benefit of their respective creditors in proportion to the claims of such creditors against the individual assignors.</p> <p>The above named banks prosecuted their -suits to judgment, took out executions, levied them on the property attached, and advertised it for .sale on the executions. Thereupon the assignees brought this bill against the two banks, setting forth the above facts and deeds, and praying that the sale on execution might be perpetually enjoined, and that the cloud on the complainants’ title caused by the attachments and the execution levies might be removed.</p> <p>The respondents demurred to the bill. The demurrer was heard June 7, 1880, by Dubeee, C. J., and Potteb and Mattesoít, JJ.; but as one of the justices found that he was interested in the matter of the suit a reargument was ordered, which took place November 1, 1880, before Dubeee, C. J., and Matteson and Stiness, JJ.</p> <p>I. The deed of December 5, 1878, was effectual in law to transfer to the complainants all the estates of the.firm of Sackett, Davis & Co., and of the individual members thereof, upon the trust therein declared, and is valid and operative as against creditors.</p> <p>a. The object of the trust declared in the deed was certainly legitimate and meritorious. “ To convey all of the property and estate of the parties of the first part to the said parties of the second part for the equal benefit of all the creditors of the said parties of the first part in proportion to their respective claims.”</p> <p>b. The authority conferred in terms by said deed upon the trustees, “ To carry on the jewelry business of the parties of the first part for such time as the said trustees may deem for the best interests of the creditors, and necessary for the purpose of preventing shrinkage or loss, and of closing out the same to the best advantage,” was a power already in the trustees, implied by law, and was necessarily incident to the principal powers, granted the trustees. It was only ancillary to the winding up of the debtors’ affairs, and promoting the best interests of the creditors by preventing loss to them. Janes v. Whitbread, 11 C. B. 406; Cunningham v. Freeborn, 11 Wend. 240 ; De Forest v. Bacon, 2 Conn. 633; Kendall v. New Fngland Carpet Co. 18 Conn. 383 ; Woodward v. Marshall, 22 Pick. 468; Marks v. Kill, 15 Gratt. 400.</p> <p>c. No power is expressly given to the trustees, nor can any such power be implied in the trust that the trustees were to sell on credit, and the specific power granted to the trustees, uAs rapidly as in the opinion of the trustees it can judiciously be done, to convert the whole of the property hereby, conveyed, or so much thereof as may be necessary, into money," for the payment of debts, is certainly not^er se a fraudulent provision, and does not invalidate the deed. It only states, perhaps with surplusage, the bounden duty of the trustees. Booth v. McNair, 14 Mich. 19 ; Ogden v. Peters, 21 N. Y. 23 ; Jessup v. Kulse, 21 N. Y. 168; iSackett v. Mansfield, 26 Ill. 21; Finlay v. Dickerson, 29 Ill. 9 ; Whipple v. Pope, 33 Ill. 334 ; Burrill on Assignments, 3d ed. 308.</p> <p>d. The power conferred in terms upon the trustees, to mortgage, pledge, or’ lease the assigned estate, even if inoperative, will not avoid the deed. Darling v. Bogers, 22 Wend. 483; Montgomery v. G-albraith, 19 Miss. (11 Sm. & M.) 555 ; Beatty v. Davis, 9 Gill, 211; Nightingale v. Karris Lippitt, 6 R. I. 321.</p> <p>e. The assignors have parted with all their property, and have relinquished all dominion and control over it. There is no reservation of any authority. It is all to be applied to the payment of their debts, and every special authority conferred by deed is broadly stated to be conferred “ to promote the best interests of all the creditors, in order that all the debts of the assignors may be paid, if possible.”</p> <p>f. There is nothing in the deed itself which in any way contravenes any provision of the common law or the statute.</p> <p>II. The only effect that can be given to the subsequent assignments of March, 1879, in case the deed of December 5, 1878, is for any reason inoperative, is a remedial effect in curing the defects of that deed. All these conveyances are to be considered and construed as parts of one and the same transaction, having the same object in view, the equal distribution of all the assignors’ estates among their creditors. Merrill v. Nnglesby, 28 Vt. -150; Hone v. Woolsey, 2 Edw. Ch. 289 ; Macomber v. Weeks, 3 Met. 512; Ingraham v. Wheeler, 6 Conn. 277 ; Mills v. Argali, 6 Paige, 577.</p> <p>III. But if, as is alleged by the respondents, the deed of December 5, 1878, creates a preference of copartnership creditors over individual creditors, still the preference is valid as against the respondents, as their attachments or proceedings against the debtors were not commenced within sixty days after the date and record of the deed of December 5, 1878. Pub. Laws R. I. cap. 723, of June 20, 1878 ; James v. Mechanics’ National Bank, 12 R. I. 460.</p> <p>Preferences allowable at common law in Rhode Island can only be invalidated by proceedings under cap. 723 of the Public Laws. James v. Mechanics’ National Bank,- supra.</p>

<p>Under Pub. Laws R. I. cap. 723, §§ 1, 2, of June 20, 1878, making an assignment which did not purport to create illegal preferences, but which from its terms was adjudged void and fraudulent as against creditors, is not such an act or omission to act as will justify the court in appointing a receiver of the insolvent assignor’s estate, although by such assignment the assignor has disabled himself from vacating attachments laid upon the assigned property after the assignment as he otherwise might have done under § 1.</p>

<p>Petition of James W. Millard for leave to take the Poor Tort Debtor’s Oath.</p> <p>In a petition by a poor tort debtor under Pub. Laws R. I. cap. 544, of April 20, 1876, it is sufficient to set forth the facts prescribed by the act.</p> <p>In the concluding sentence of § 1 of said chapter the words “upon execution” are general in their application, and are not confined to an execution from a Justice Court.</p> <p>In the same sentence the word “ costs ” means only the costs specified in the execution, and does not include the prisoner’s board in jail.</p>

Petition for a writ of Mandamus. One John Donnelly, November 16, 1880, sued out from the Justice Court of the city of Providence a writ against one John E. Harrington commanding the attachment of personalty and returnable November 25, 1880, Thanksgiving Day. November 25 the court was not in session, and the clerk’s office was closed, whereupon the plaintiff’s attorney had the writ and declaration and entry fee pushed under the door of the clerk’s office.

<p>Trespass on the Case. Heard by the court, jury trial being waived.</p>

<p>An assignment to discharge an attachment under Pub. Laws R. I. cap. 723, § 1, of June 20, 1878, must be absolutely without preferences except such as are permitted by cap. 723.</p>

<p>A copartnership composed of A. and B. was dissolved by the death of A. A.’s estate was represented insolvent by his administrators, and was insufficient to pay his private debts. B. then-made a voluntary assignment of the firm property and of his own for the benefit of creditors.</p> <p>A creditor of the firm obtained judgment against B., the surviving partner, took out execution, and had it returned nulla bona. He then presented his judgment to the commissioners on A.’s estate as a claim against it. They rejected the claim, whereupon the creditor brought an action for the amount against A.’s administrators under Gen. Stat. R. I. cap. 175, § 12.</p> <p>Held, that the trusts of B.’s assignment being still unsettled the creditor was entitled to have his execution returned nulla bona.</p> <p>Held, further, that under Gen. Stat. R. I. cap. 193, § 30, the creditor was entitled to prove his judgment against the estate of A.</p> <p>Held, further, that under Gen. Stat. R. X. cap. 193, § 30, joint debts must be paid pari passu with separate debts by the representatives of the deceased joint debtor.</p>

<p>Defendants’ petition for a new trial.</p>

<p>Under Gen. Stat. K. I. cap. 151, § 1, a married woman cannot convey realty as a feme sole if she has ever lived with her husband in this State.</p> <p>No estoppel will avail against a married woman to validate a contract which she is incapable of making.</p> <p>A note given solely in substitution or novation of a note without consideration is also without consideration.</p>

<p>Assumpsit. On motion to discharge a garnishee.</p>

<p>Lager bier being a malt liquor is an intoxicating liquor under Pub. Laws R. I. cap. 508, of June 25, 1875, entitled “An Act to regulate and rcstrairi the Sale of Intoxicating Liquors,” of which § 1 forbids the sale of “ale, wine, rum, or other strong or malt liquors.”</p> <p>An indictment need only negative such exceptions in a penal statute* as by incorporation or reference are made parts of the definition of the offence in the enacting clause.</p> <p>I-Ience, in an indictment under Pub. Laws R. I. cap. 508, § 10, of June 25, 1875, no negative averments covering Gen. Stat. R. I. cap. 119, or said Pub. Laws R. I. cap. 508, § 39, are required.</p>

<p>In A. d. 1794, D. received permission from the General Assembly to build a toll-bridge across one of the navigable rivers of the State. The son of D., who was also his devisee, built at one end of the bridge a mill, using for motive power a water-wheel placed between the west pier of the bridge and the west abutment, which were so extended in length as to make the intervening space a tidal raceway. A subsequent owner of the bridge and mill conveyed the bridge to tbe State in 1870, with full covenants of warranty. Afterwards the mill was conveyed to A. During 1873, the mill-wheel was not in the racewajr, being taken out to make room for a better one, which in November, 1873, was ready to be set up.</p> <p>Meanwhile the town of Warren in 1873, under authority from the General Assembly, proceeded to rebuild the bridge and make rip-rap work around the west abutment: stones were carried into the raceway by the current, into the wheel-pit, and along A.’s water front. A. was obliged to remove these before he could set his new wheel, and after getting it into place in May, 1874, he was obliged repeatedly to take up the wheel to clear away new deposits of stones which formed themselves about it.</p> <p>In an action by A. against the town of Warren for injury caused by the stones in the raceway and for obstruction in the water approaches to his land:</p> <p>Eeld, that A. had no prescriptive right to maintain the mill and water-wheel, nor any prescriptive right to have the water flow unobstructed through the raceway, — the enjoyment of the water-wheel and the water-way depending on the bridge, which was conveyed to the State free from incumbrances.</p> <p>Eeld, further, that the opportunity enjoyed by A. to use tide-water as a motive power was not an easement.</p> <p>Eeld, further, that A. could not maintain his action on the ground of disturbance to his possession or actual enjoyment.</p> <p>Prescription is a legal fiction to quiet ancient possession.</p> <p>Por obstructions in the water approaches to his land A. could maintain his action, but the utmost possible damages being nominal:</p> <p>Eeld, that judgment should be given for the defendant if the defendant would waive costs.</p>

Exceptions to the Court of Common Pleas. The facts involved are stated in the opinion of the court. Public Laws R. I. cap. 797, of March 18, 1880, contain the following provisions: “ It is enacted by the General Assembly as follows : “Sect. 1.

<p>Bill in Equity to review an administrator’s account, to annul a judgment at law, and for an injunction.</p>

Bill in Equity to establish a lien and for an account. This case was beard upon bill, answers, proofs, and tlie following agreement signed by the solicitors of the litigating parties in interest: “It is agreed that any sums which might be recovered in any suit at law by Goodsell, Budillon & Co., of Robert Benson & Co., may be recovered in this suit in equity. And that no question of equity jurisdiction is to be raised in this suit in equity.

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

Replevin. Heard by the court, jury trial being waived. This case was commenced in the Court of Common Pleas and was brought to this court by the defendant’s appeal. The pleas were: 1. Property in one Richard S. Newcomb. 2. Avowry alleging that the goods in question were attached as the property of said Newcomb by virtue of a writ issued from the Court of Common Pleas against said Newcomb and in favor of Leonard Brothers.

Bill in Equity, to set aside certain conveyances and to redeem. After tbe proceedings in this case reported in 12 R. I. 220, the cause came on for bearing upon its merits, on bill, answers, exhibits, depositions, and oral testimony adduced; before Potter, Matteson, and Stiness, JJ., May 20, 21, 22, and 24, 1880.

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

<p>Bill in Equity to establish a lien., The facts involved are stated in the opinion of the court.</p> <p>It is well settled that where the charter of a corporation, or the general statute law of the State, or a by-law of the corporation made in pursuance of authority conferred by its charter or the general law, prescribes a method for the transfer of corporate shares, they can only be transferred in the method prescribed.</p> <p>Accordingly it has been repeatedly held, where the transfer of stock was required to be entered in the books of the corporation, that an assignment of stock by indorsement on the certificate and delivery of the certificate to the supposed assignee, without entry on the books of the corporation, while it might as between the parties convey the equitable interest in the stock, would not avail as against an attachment of the stock by a creditor of the original holder, but as to such attachment would be null and void. Fisher v. Fssex Bank, 5 Gray, 373, 379, decision by Shaw, C. J.; Rock v. Nichols, 3 Allen, 342; Button v. Connecticut Bank, 13 Conn. 493; Colt v. Ives, 31 Conn. 25; Skowhegan Bank v. Cutler, 49 Me. 315; Weston v. Bear River, ¿-c. Go. 5 Cal. 186; Naglee v. Pacific Wharf Co. 20 Cal. 529 ; Pinkerton v. Manchester, ¿•e. R. R. 42 N. H. 424.</p> <p>The ground upon which the decision is put in some of these cases is, that without an entry of the transfer of the stock 'upon the books of the corporation no delivery of the stock has been made sufficient to satisfy the statute against fraudulent conveyances.</p> <p>In Pinkerton v. Manchester, fc. Railroad, in the Court of New Hampshire, the case last cited, one Holbrook, on the 8th of July, 1854, assigned, by an indorsement on the certificates, ninety-six shares of the stock of the Manchester & Lawrence Railroad to the Granite Bank, Boston, as collateral security for his debts to the bank, amounting to over one hundred thousand dollars, and delivered the certificates to the bank. The certificates were not sent to the office of the railroad for transfer upon its books until the 3d of August, 1854. Meanwhile, between the date of the assignment and the time of sending said certificates to the office of the railroad for transfer, an attachment of the stock was made by another creditor of Holbrook. There was nothing in the charter or by-laws of the corporation in question regulating the mode of making a transfer. But it was held, that the stock not having been transferred on the books of the railroad company the possession of the stock was not changed, and that therefore a secret trust was shown, which avoided the transfer as to the attaching creditor.</p> <p>In this State by Gen. Stat. R. I. cap. 139, § 2, it is provided that the shares of stock of any corporation “ shall be transferable in such manner as shall be prescribed by the by-laws of the corporation.” •</p> <p>The alleged transfer of said two hundred and fifty shares of stock to Lucian Draper not having been made on the books of the American Enamel Company, as required by the by-laws, it follows that the same was, as against the attachment in question, void.</p>

<p>No action lies to recover a minor’s wages earned in violation of Gen. St. B. I. cap. 155, §§ 21, 22, 24, which prohibit the employment of certain minors in manufacturing establishments.</p>

<p>An operative in the mill of the Flax Manufacturing Company had agreed in writing to give “two weeks’ notice of his desire to quit the service of said company at any time, or in default of said two weeks’ notice to forfeit two weeks’ pay.”</p> <p>Meld, that the agreement did not apply to a temporary absence; that in case of a temporary absence without leave the operative might properly be discharged, but that there would be no forfeiture, under the agreement, of wages then earned.</p>

<p>The sheriff of one county cannot make an arrest in another county except on fresh pursuit in case of an escape, nor can he detain in such other county an arrested prisoner, except under a writ of habeas corpus.</p> <p>A sheriff is not obliged to travel about with an arrested prisoner to enable the latter to procure bail.</p>

<p>In replevin, judgment was given for the defendant for return and restoration and for costs, taxed at $2.20. The plaintiff appealed, and in his appeal bond described the judgment as given “ for the return and restoration of property, damages, and cost of suit (including appeal bond), taxed at $9.10.”</p> <p>Held, that the error in the bond did not vitiate the appeal, that the -judgment being otherwise identified, the erroneous parts of the bond could be rejected as surplusage.</p>

<p>A foreign corporation is for purposes of jurisdiction a “ resident ” of the State which creates it; hence under Pub. Laws R. I. cap. 723, § 2, of June 20, 1878, the Supreme Court has no power to appoint a receiver of the estate of a foreign corporation doing business in Rhode Island.</p> <p>Phillips y. Newton, 12 R. I. 489, affirmed.</p>

<p>An assignment made by a non-resident debtor will not suspend nor dissolve a previous attachment under Pub. Laws R. I. cap. 723, § X, of June 20, X878.</p> <p>A foreign corporation doing business in Rhode Island is a non-resident under this statutory provision.</p> <p>The powers of a foreign corporation doing business in Rhode Island are limited by the laws of the State which creates it.</p>

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

<p>A. made a written agreement with B. and C. by which B. and C..were each to receive $5,000 as “ reimbursement ” for money paid by them respectively into a firm business, and $3,500 for claims to profits, and a bond of indemnity, and were to make over to A. the business and property of the firm. This agreement was carried out.</p> <p>Subsequently A. brought assumpsit against B., alleging a deficit of $174 in the $5,000 of B.’s share in the firm capital, claiming $174 from B., and seeking by parol evidence to establish the deficit and a promise by B. to make any such good if found to exist.</p> <p>Meld, that parol evidence was admissible for this purpose, the word “ reimbursement ” implying that the amount had not been withdrawn from the firm capital, and any amount withdrawn being recoverable under the money counts.</p> <p>In the same action A. sought to recover $800 from B., because in stating the firm’s liability B. omitted an outstanding note of this amount.</p> <p>Held, that having aflirmed the agreement and not having revoked it for fraud, A. could not maintain assumpsit for this claim, which in fact rested on B.’s tort.</p> <p>To maintain assumpsit for such a claim A. must show that at once on discovering the tort he repudiated the agreement and restored or offered to restore B. to his original position.</p>

<p>Under Gen. Stat. R. I. cap. 34, §§ 2, 11, towns may in town meeting elect so many surveyors of highways and for such and for so many districts as they please, and the town councils cannot under cap. 60, § 2, assign such surveyors to other districts than those for which they were elected.</p> <p>Under cap. 60, § 2, the town councils may assign districts if the town elects surveyors without specifying for what districts they are elected.</p> <p>A town ordinance cannot control a town meeting in the exercise of its statutory powers.</p> <p>In the town of E. an ordinance required the election of as maiy surveyors of highways as there were highway districts in the town. At the town election the town elected M. surveyor of highways for districts Nos. 2, 15, 16. Subsequently the town council assigned M. to district No. 16, and elected other surveyors for districts Nos. 2 and 15.</p> <p>Held, that the action of the town council was ultra vires and void.</p> <p>Held, further, that M. was duly elected surveyor of highways for districts Nos. 2,15, 16.</p>

Exceptions to the Court of Common Pleas. An indictment was found against the defendants as follows : “ Providence, sc.: At the Court of Common Pleas of the State of Rhode Island and Providence Plantations, holden at Providence, within and for the county of Providence, on the first Monday of March, in the year of our Lord one thousand eight hundred and eighty-one. “ The grand jurors of the State of Rhode Island and Providence Plantations, in and for the county of Providence,…

<p>A statute provided that “ evidence of the sale or keeping of intoxicating liquors for sale in any building, place, or tenement, shall b e prima facie evidence that the sale or keeping is illegal.1’</p> <p>Held) that this statutory provision was constitutional and valid.</p> <p>State v. Beswick, ante, p. 211, affirmed.</p> <p>A person prosecuted for an act generally criminal may, if licensed to perform it, be required to produce his license in defence whenever there is evidence to show his guilt if he has no license.</p>

Plaintiffs’ petition for a new trial. The facts involved are stated in the opinion of the court. I. Fraud, accompanied by damage, is a cause of action, and the proper remedy is an action on the case. The earliest case in this country relating to civil actions for conspiracy is Yates v. Joyce (1814), 11 Johns. Rep. 136. The case of Penrod v. Mitchell, 8 Serg. & R. 522, is an authority exactly in point.

<p>Dower. On exceptions to the report of the commissioners.</p>

Trespass. On demurrer to plea. The facts of the case are stated in the opinion of the court. Edward D. Bassett, in support of the demurrer.

<p>M., a cotton broker in Providence, Rhode Island, at the request of L., telegraphed January 19, to H., a commission merchant in Galveston, Texas, u L. offers 13J f. o. b. and freight for fifty bales; fill part if can’t whole; ” “ f. o. b.” meant free on board.</p> <p>January 21 the offer was accepted. January 24 the cotton was carried to the steamer’s dock and a bill of lading was given January 26. The invoice described the cotton as “ bought by H. by order of M. for account and risk of L.”</p> <p>The parties had before had similar dealings.</p> <p>Part of the cotton was embarked, and the rest was burned on the dock January 29.</p> <p>The steamer arrived at the dock January 24, and did not have time to discharge and reload its freight before the fire.</p> <p>In an action by H. against L. to recover the price of the cotton burned:</p> <p>Held, that the delivery to L. was complete and that H. should recover.</p>

<p>Exceptions to the Court of Common Pleas. The facts involved are stated in the opinion of the court.</p> <p>The words in the policy “ all contained in house No. McMillen Street ” are merely descriptive, and are not a warranty that the goods insured shall not be moved, especially if a removal does not increase the risk. Schmidt v. Peoria Marine f Fire Ins. Co. 41 Ill. 295 ; Bryan v. Peabody Ins. Co. 8 W. Va. 605 ; Everett v. Continental Ins. Co. 21 Minn. 76, and cases cited; 8 Ins. Law Journal, 790, and cases cited; McQluer v. Girard Fire f Marine Ins. Co. 43 Iowa, 349. ■</p> <p>At any event the words can only be considered as a warranty of the state of affairs existing, at the time the policy was given; Gilliat, Trustee, v. Pawtucket Mutual Fire Ins. Co. 8 R. I. 282 ; and cannot be extended by construction.</p> <p>The removal of the goods insured from McMillen Street to Power Street without the written assent of the defendant company, terminated the insurance. Phillips on Insurance, § 757; Eddy Street Iron Foundry v. Hampden Ins. Co. 1 Cliff. 300; Wood v. Hartford Fire Ins. Co. 13 Conn. 533, 544; Boynton v. Clinton f Essex Ins. Co. 16 Barb. S. C. 254; Fowler v. AEtma Fire Ins. Co. 6 Cow. 673; Wall v. East River Ins. Co. 7 N. Y. 370; Lycoming Ins. Co. v. Updegrajf, 40 Pa. St. 311; Annapolis f Elkridge R. R. v. Baltimore Fire Ins. Co. 32 Md. 37; North American Fire Ins. Co. v. Throop, 22 Mich. 146 ; Severance v. Continental Ins. Co. 5 Bissell, 156; Liebenstein v. AEtna Ins. Co. 45 Ill. 303 ; Hartford Fire Ins. Co. v. Farrish, 73 Ill. 166. See also Holbrook v. St. Paul Fire Sf Marine Ins. Co. 25 Minn. 229, and 8 Insurance Law Journal, 789-796.</p>

<p>A lessor’s knowledge at the execution of the lease that premises demised will be used in violation of Gen. Stat. R. I. cap. 73, § 1, does not make the lease void when he neither shares nor furthers the lessee’s illegal acts.</p> <p>Hor does the mere use of leased premises in violation of Gen. Stat. R. I. cap. 73, § 1, avoid, the lease under § 4 of the same chapter. § 4 is for the lessor’s benefit, and he alone, at least when he is not privy to the illegal use, can take advantage of it. .</p> <p>The assignment of a lease by the lessee discharges neither the lessee nor his surety from the covenants contained in it.</p> <p>An agreement pleaded in discharge ef the covenants of a lease must be so set forth that the court can determine the validity of the agreement and its effect.</p> <p>To a declaration in covenant assigning breaches, a plea of general performance is bad.</p>

Exceptions to the Court of Common Pleas. This action was assumpsit on book account for goods furnished by the plaintiffs to the defendant, brought in the Court of Common Pleas. It appeared in evidence that the plaintiffs took in pay for the goods all the standing wood on a farm in Gloucester, the title to which stood upon the record in the name of the defendant and his children.

<p>In an action between A. and B. to determine the title to certain land made by filling in from a former shore line to a harbor line, the upland boundary between A. and B. being a line which would, if prolonged, meet the harbor line obliquely;</p> <p>It appearing: that no agreement existed between the predecessors in title of A. and B. as to the prolongation of the upland boundary, and no such recognition of the prolongation as could effect an estoppel; that whatever recognition there had been was before the establishment of the harbor line, and when such prolongation coincided with the proper line of filling; that the conveyances under which A. and B. held were not made by reference to a plat showing other lots outside the boundaries described in the conveyances with access by land to such lots; and that these conveyances showed no intention to reserve any part of the water front outside the boundaries given to them:</p> <p>Held, that the dividing line between A. 'and B. was to be drawn from the termination on the old shore of their upland boundary, perpendicular to the harbor line.</p> <p>Bailey v. Burges, II R. I. 380, and Adorn v. Smith, 12 R. I. 370, affirmed.</p> <p>Brown v. Goddard, ante, p. 76, distinguished.</p>

Exceptions to the Court of Common Pleas. This action was replevin, brought before the Justice Court of the town of Hopkinton and carried by the defendant’s appeal to the Court of Common Pleas.

<p>A statute which prescribes entry fees and continuance fees for suits at law and in equity does not violate the provision in the Constitution of Rhode Island which declares that every person within this State “ ought to obtain right and justice freely and without purchase ; completely and without denial; promptly and without delay.” This constitutional provision prohibits gratuities or exactions given or demanded to influence legal proceedings, not moderate fees such as are prescribed by the statutory fee table.</p> <p>The interpretation of this provision is to be drawn from its history.</p>

<p>Biel in equity to enjoin a mortgagee’s sale.</p> <p>This case was heard upon an agreed statement of facts, as follows:</p> <p>December 23,1873, Daniel Fish, owning certain realty situated in the town of East Providence, in the State of Rhode Island, being the real' estate described in the complainant’s bill, executed and delivered a mortgage conveyance thereof to David F. Goff, to secure a note for $450.</p> <p>In 1875 said Goff assigned the note and mortgage to John P. Walker. Walker brought suit on the note before the Superior Court of the State of Massachusetts, for the county of Bristol, at its December Term, 1878, and attached in said suit, August 22, 1878, certain lands in said county as the realty of Daniel Fish. April 14, 1879, Walker recovered judgment for $475.55 damages and $22.36 costs. ■ Execution issued May 5, 1879, and May 20, 1879, the land attached was set off to Walker in satisfaction of the judgment, whereupon Walker, by his attorneys, gave a receipt in full satisfaction of the execution.</p> <p>But before this, November 28, 1874, Daniel Fish had conveyed one parcel of the real estate subsequently attached to the respondent, James O. Reed, by a deed which was not recorded until September 28, 1878, after tbe attachment had been made.</p> <p>October 1, 1875, Daniel Fish conveyed to the complainant, Jacob H. Horton, the realty situated in East Providence, and described in the bill of complaint; Horton being a bond fide purchaser.</p> <p>July 1, 1880, Walker assigned his title in and to the mortgage, and the note secured thereby, to the respondent, Reed, and also his title in and to the land attached and taken on execution, in order to quiet the claims of Reed, who asserted title to said land under his deed from Fish.</p> <p>Thereupon Reed advertised the mortgaged land for sale, under the powers in the mortgage deed, and the complainant filed this bill in equity to enjoin the sale.</p>

Bill in equity to establish a lien and for an account. By deed of trust, bearing date November 1, 1873, the A. & W. Sprague Manufacturing Company, William Sprague, Amasa Sprague, Mary Sprague, Fanny Sprague, and the firm of A. & W. Sprague, conveyed certain property to Zechariah Chafee, giving him power to execute notes for the indebtedness of the grantors, to sell the property conveyed in case of default in the payment of these notes, and, meanwhile, to carry on the…

Bill in Equity to establish a lien and for an account. The bill in this case set forth substantially the same state of facts as the bill in the last case, and claimed an indebtedness due to the complainant under the contract already given, ante, p. 369.

<p>Bill in Equity to establish a lien, for an account and foreclosure, and for an injunction. On demurrer to the bill.</p>

Bill in Equity for an account. On demurrer to the bill. Alfred H. Willard, one of the firm of Pierce, Willard & Co., doing business in Providence, finding himself insolvent, made an assignment for the benefit of his creditors to the complainant, Stiness. The deed of assignment contained the clause cited in the opinion of the court.

<p>Trespass on the Case. On demurrer to the replications. The facts of - the case and the pleadings are sufficiently stated in the opinion of the court.</p>

<p>A. purchased at a sheriff’s execution sale B.’s equity of redemption in certain realty, subject to a mortgage given by B. to C. B. was also tenant of the realty under a lease from C., the mortgagee. A., unable to get possession of the realty, filed a bill in equity to compel C. to transfer to him the mortgage on receiving the amount of the debt secured by it. To this bill C. demurred.</p> <p>Held, that the bill could not be sustained.</p> <p>B., who was a party respondent to A.’s bill, inserted in his answer certain statements whose sole object was to reopen controversies already settled by a judgment obtained by A. against B.</p> <p>Beld, that these statements should be stricken out of B.’s answer.</p>

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

<p>Exceptions to a special Court of Common Pleas.</p>

<p>Statutory proceedings under Pub. Laws R. I. cap. 529, of April 12, 1876, which are as follows:</p> <p>AN ACT IN AMENDMENT OE AN ACT, ENTITLED “ AN ACT EOR SUPPLYING THE TOWN OE PAWTUCKET WITH PURE WATER.”</p> <p> It is enacted by the Greneral Assembly as follows : </p> <p>Sect. 1. If any owner of lands, waters, or water rights, required for the purposes of said act, shall not agree with said town upon the price to be paid therefor, said town is authorized to take and condemn so much of said lands, waters, or water rights, as may be necessary under the provisions of said act for the purposes thereof.</p> <p>Sect. 2. Any owner of lands, waters, or water rights, so taken as aforesaid, may at any time within, but not after, one year from the time of such taking, unless the owner be a minor, or out of the State, and in such case said owner shall make his claim in one year after his majority or after his return to the State, apply by petition to the Supreme Court holden within and for the county in which such lands, waters, or water rights shall have been taken, at any regular term of such court; and upon such petition being filed, at least twenty days’ notice thereof shall be given to said town by serving the commissioners appointed under the provisions of said act, or either of them, with a certified copy of such petition; and the court may after such notice proceed to the hearing of the petition, and may appoint three disinterested persons, being freeholders and residents of the State, appraisers, to determine, after reasonable notice to the parties, what damages, if any, the petitioner has sustained, and the award of such appraisers, or the major portion of them, shall be returned by them to the court as soon as may be; and upon acceptance thereof by the court, unless a jury trial be applied for, as hereinafter provided, judgment shall thereupon be rendered by said court, for the party prevailing, with costs, and execution may issue accordingly; provided, that if either party shall be dissatisfied with such award, such party may, immediately upon the return thereof to the court, apply for a trial by jury, which shall determine all questions of fact relating to such damages and the amount thereof; and such trial shall thereupon be ordered by said court and had as soon as conveniently may be, and judgment shall be entered upon the verdict of said jury, and costs shall be allowed to the party prevailing, and execution may be issued therefor; provided, that no petition or complaint shall be made as aforesaid for the taking of any land, water, or water rights, until the same shall be actually taken or withdrawn by said town, by virtue of the provisions of this act.</p>

<p>The defendant in an action for slander petitioned for a new trial because the plaintiff’s witnesses, after the trial, admitted their testimony to have been untrue. The defendant petitioner presented affidavits to this effect, but had taken no measures to prosecute the witnesses for perjury. No affidavits were presented from the witnesses in support of 'the petition, and one of the witnesses denied by affidavit the admission charged against him.</p> <p>Held, that the petition should not be granted.</p> <p>A new trial will not be granted because new evidence has been found, if such evidence was discoverable with proper diligence before the trial, especially when such evidence merely impeaches the witnesses of the successful party, or affects the matter of damages, rather than the main issue.</p>

<p>When the Court oí Common Pleas has jurisdiction concurrent with this court of petitions for new trials, the decision of either court upon such a petition presented to it is conclusive, and another petition upon the same grounds will not he entertained by the other court.</p>

<p>Replevin. Heard by the court, jury trial being waived. The facts involved appear in the opinion of the court.</p> <p>The parties litigant waived a jury trial, and stipulated that “ if said Carpenter mortgage is decided to be valid as to said roiling mill, then Carpenter is to have judgment for his costs; if, on such trial, his said mortgage is decided not valid as to said rolling mill, then Charles H. Scott is to have judgment for restoration and costs, and damages not to exceed twenty-five dollars, the case to be tried at the October Term, 1881, of the Supreme Court.”</p>

<p>• August 20, an oral contract was made between A. and B., by which A. was to enter B.’s service for one year, A. to begin the term of service as soon as he could. A. began to work for B., August 27.</p> <p>Held, that the contract was within the statute of frauds, being an oral contract not to be performed within a year.</p> <p>Meld, further, that ai action by A. against B. for a breach of this contract could not be maintained.</p>

<p>A. sold to B. certain personalty on credit, upon the faith of B.’s representations, which proved false and fraudulent. B. soon after the sale mortgaged the personalty to a third party, and also made some payments to A. on account.</p> <p>Held, that A. could maintain trover and conversion against B. without first notifying B. that the contract of sale was rescinded, without demanding the personalty from B., and without tendering to B. the amount received in part payment.</p> <p>Held, further, that the amount received by A. as part of the consideration was, upon his bringing trover against B., retained as part of the indemnity due from B., and was to be deducted from the amount of damages recoverable by A. from B.</p> <p>In trover the rule measuring damages is flexible. If the plaintiff has a qualified interest in the chattel converted, he will recover a sum sufficient to indemnify him, not the whole Value of the chattel with interest from the time of conversion.</p>

Bill in Equity, for an injunction. The bill of complaint in this case was filed December 9, 1880.

<p>The General Assembly may authorize a guardian or trustee to convert realty in his hands into personalty if such conversion is for the benefit of the ward or the cestui.</p> <p>The action of the General Assembly in so authorizing a guardian or trustee is primó, facie valid.</p> <p>Such action is to be judged from the facts and circumstances existing when the action is taken, not from those subsequently developed.</p> <p>Hence when the General Assembly, in 1844, authorized such a conversion into personalty of real estate in the then town of Newport:</p> <p>Held, that the act of the General Assembly was valid, as it may have decided, after inquiry and consideration, that the value of realty, so situated, had reached its culmination and was liable to decline.</p> <p>If, however, the General Assembly should authorize such a conversion when the result must clearly and necessarily be to sacrifice the interests of those entitled to remainders and reversions, and to favor life-tenants: Query, whether the authority given could be sustained.</p> <p>The statute quieting possessions runs against cestuis que trustent in favor of vendees, though it does not usually run against the cestuis in favor of the trustee.</p> <p>Cestuis que trustent who, with full knowledge of the facts, without constraint, and being under no disability, have released their interests in the trust estate, and received the consideration of the releases, are estopped from denying the validity of the transfer, to perfect which their releases were given.</p>

<p>The equitable conversion of a testator’s realty into personalty depends, as to both its existence and its extent, upon the testator’s intention judicially determined from his will.</p> <p>Courts of equity will not change the quality of a testator’s property unless in accordance with his clearly expressed intention.</p> <p>Hence when a surplus of personalty existed over debts and specific legacies, when permissive power was given trustees to sell realty at their discretion, when legatees were empowered to take realty in payment of their legacies, when the word “ devise ” was used in the residuary clause, and no express direction to convert was given:</p> <p>Held, that an out and out conversion of the realty could not be adjudged, though the testator had spoken of “ adding ” devises to legacies, and though some expressions in the will seemed to contemplate a pecuniary division.</p>

<p>Plaintipp’s petition for a trial.</p>

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

<p>A. made an assignment for the benefit of his creditors of all his estate, part of which was under mortgage, and in the deed of assignment empowered the assignee to sell at public or private sale, to buy in the premises, to re-sell without responsibility for loss, and also to mortgage, and from the proceeds to pay, first, the creditors secured by mortgage, and then the other creditors of the assignor.</p> <p>Held, that the deed'of assignment was valid as against creditors, for it did not appear that any benefit accrued to the assignor, at their expense, from the powers given.</p> <p>A plaintiff has no greater rights against the garnishee than the principal defendant debtor would have if himself suing.</p>

<p>An appeal taken under Pub. Laws R. I. cap. 889, § 41, of April 29, 1881, is good, wbetber the recognizance required by § 42 of tile same chapter is or is not given.</p> <p>A complaint alleged that the defendant on “Sunday, the third of July,” unlawfully kept intoxicating liquors with intent to sell.</p> <p>E'eld, that the word “ Sunday ” was surplusage, or at most limited the evidence to that day, but that its insertion was no reason to dismiss the complaint.</p> <p>Under Pub. Laws R. I. cap. 889, of April 29, 1881, Justice Courts have, by necessary implication, jurisdiction over the offences which it creates in §§ 21 and 22.</p>

<p>A statute provided that “every person who shall keep a place in which it is reputed that intoxicating liquors are kept for sale without having a license therefor, . . . shall be fined not more than twenty dollars, or imprisoned not more than thirty days, or both.”</p> <p>Held, that the statute was unconstitutional and void; both as violating the fundamental constitutional rights of property and personal freedom, and as depriving a defendant accused under it of property and liberty without due process of law.</p>

<p>Garnishment being a statutory procedure, parties using it are, at least in the absence of fraud, accident, and mistake, confined to the statutory remedy.</p> <p>A. sucdB. and garnished C., who, after an assignment made bjrB., made affidavit of no funds, whereupon A., having recovered judgment against B., filed a bill in equity against B. and C., to set aside the assignment as fraudulent, and to make C. liable as garnishee, to which bill B. demurred:</p> <p>Held, that the demurrer must be sustained.</p> <p>Held, further, that the bill could not be sustained either on the ground of concurrent jurisdiction in equity, or because the legal remedy was inadequate.</p> <p>Query, whether pending the original action equitable proceedings might not lie in aid of the suit.</p>

<p>In. a common law action of account, exceptions to an auditor’s report after it lias been returned are irregular and void, except so far as they affect errors apparent on the face of the report.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This was an indictment against the defendant for keeping and maintaining a common nuisance in the town of Scituate, “ to wit, a grog-shop and tippling-shop and building, place, and tenement used as a house of ill-fame, resorted to for prostitution and lewdness, and building, place, and tenement used for the illegal sale and keeping of intoxicating liquors, and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons.”</p> <p>Evidence was introduced at the trial to show that the place was kept in the defendant’s name, that she sold liquor there, and that she was not known to be a married woman. To rebut this, evidence was presented that she was married, and that her husband was about the place when liquors were sold by the wife, though not actually present at the spot of sale. The exceptions founded on these facts are set forth in the opinion of the court.</p> <p>The testimony referred to in the last paragraph of the opinion of the court was the statement of one of the witnesses for the prosecution as to the conduct of a female living at the house who was, according to the evidence of the defendant’s husband, the housemaid.</p>

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

<p>A plea of “Not guilty ” to a criminal complaint waives any objection to the complaint, either for misnomer or for neglect to add to the defendant's name the place where he is resident or co’mmoranfc.</p> <p>After a defendant had pleaded Not guilty ” to a complaint against him as John Doe, the court allowed the complaint to be amended by inserting his name.</p> <p>Meld, that the amendment, though superfluous, was no ground for exception.</p>

Exceptions to the Court of Common Pleas. An indictment was found against the defendants as follows: ■“ Providence, sc.

<p>A testator gave the residue of his estate to trustees, to set apart a sum, the income of which was to accumulate till his grandson became twenty-one, then with the income of the accumulations to be paid to the grandson for life; and to hold the remainder of the residue in trust for the testator’s children, with remainders over.</p> <p>No intention appearing to treat the sum to be set apart differently from the rest of the trust ¡* estates: •</p> <p>E'eld, that the sum should, until actually set apart, share with the other trusts the income and taxes of the estate.</p> <p>The realty of the residue passed directly to the trustees.</p> <p>Beld, that they should divide the net income proportionately among the trusts until the above named sum had been actually set apart, when the realty income should go to the testator’s children.</p> <p>As to the personalty of the residue,</p> <p>Beld, that the executors might retain its income until the estate was settled.</p> <p>Beld, further, that from this income of personalty should be paid the taxes on the personalty, and also interest accruing after the first year of administration on all debts remaining unpaid.</p> <p>Beld, further, that the executors, on settlement of the estate, should give the trustees an account of the accrued income and of the original capital of the estate, the former to be divided by the trustees among the cestuis for life, and the latter to be invested as a permanent fund.</p>

<p>Bill in Equity to redeem an alleged mortgage. Tbe facts are stated in the opinion of the court.</p>

Trespass on the Case. Heard by the court, jury trial being waived. This action was trespass on the case for obstructing a right of way over the small triangle of land marked i, k, 1, on the accompanying plat. The plaintiff and the defendant both derived title from the same proprietor, and their lots extended by the descriptions of their deeds to the middle line of the way b, a, c, d, the way being laid out and platted for the common use of all the lot owners on the plat.

<p>The P. & TV. Railroad Company received certain lots of cotton shipped from Louisiana to Providence, paid the freight charges on them, forwarded and delivered the cotton to the consignees. On delivery the cotton was found to be badly damaged by water, and the consignees claimed the right to recoup the damage from the bill of freight and charges of the P. & TV. R. R. Co.</p> <p>It appeared that the P. & TV. R. R. Co. was not associated with the preceding carriers, and it did not appear where on the lines of transit the damage occurred.</p> <p>Meld, that the recoupment could not be allowed.</p> <p>A carrier receiving goods marked for delivery beyond the end of his line is, in the absence of a special agreement, only responsible for safe carriage over his line and safe delivery to the next carrier.</p> <p>When several independent carriers successively receive goods for carriage, each is entitled to demand payment in advance or to a lien on the goods for the carriage price.</p> <p>In such cases each road is by mercantile custom entitled to pay the back charges, and to a lien on the goods for such charges and for its own carriage price.</p> <p>If goods received from a prior carrier are apparently in good order, a carrier is not obliged to open the packages for further examination, but has, for the back charges paid, a lien on the goods.</p> <p>After some parcels had been delivered to the consignees by the P. & W. R. R. Co. and found damaged, they directed the Co. to receive no more parcels of the lot.</p> <p>Eeld, that after such direction the company had no authority to receive the other parcels, or to pay any back freight upon them.</p>

<p>Cotton was forwarded from Louisiana to be delivered in Providence, R. I-, “rates guaranteed to Providence.’’ By tbe error of some intermediate carrier, the destination, Providence, was changed to Chicopee, Mass., whence, by the owner’s direction, the P. & W. R. R. Co., after paying charges, brought it to Providence. The owner refused to refund to the P. & W. R. R. Co. its charges for freight paid, and replevied the cotton.</p> <p>EM, that the P. & W. R. R. Co. had a lien on the cotton for its freight and charges for back freight paid.</p> <p>Sending the cotton to Chicopee raised the freight above the amount guaranteed by the first carrier.</p> <p>EM, that for this the owner might have his action against such first carrier, or against the carrier by whose error the cotton was sent to Chicopee.</p> <p>A carrier receiving goods from a tortious holder has no lien on them against the owner; but a carrier receiving goods from one who, by the owner’s act, has been clothed with an'apparent authority, has a lien on them against such owner.</p> <p>By delivery to the carrier in Louisiana the owner made each successive carrier his agent for forwarding the cotton.</p>

<p>Bill in Equity for discovery, an account, and the establishment of a lien, praying that a deed absolute in form might be declared a mortgage.</p>

<p>Replevin. Heard by the court, on an agreed statement of facts.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Bill in Equity to establish a claim to equitable assets. On demurrer to the bill. The facts are succinctly stated in the opinion of the court. James Tillinghast in support of the demurrer.

<p>A. owned certain lots of land subject to three recorded mortgages, two to B. and the third to C. A. sold one of these lots to D., who obtained for valuable consideration a quitclaim from B. B. afterwards sold the other lots under his mortgage powers without obtaining enough to satisfy his claims, and his mortgages remained undischarged. Subsequently C. sold under his mortgage the lot conveyed to D. by A., and this lot by mesne conveyances passed into the hands of E.</p> <p>In equity proceedings brought by D. against C. and E.:</p> <p>Meld, that D. should be subrogated to B.’s mortgage lien to the extent of D.’s payment to B. for B.’s quitclaim.</p> <p>Meld, further, that to this extent D. had a lien on the lot in the hands of E..</p> <p>Meld, further, that C. was an unnecessary party to the proceedings in equity.</p> <p>A mortgage lien purchased by the owner of the equity of redemption will, in the absence of a contrary intention manifest to the court, be kept alive in equity for the purchaser’s protection against an intervening incumbrance, and will not merge: the rule being the same whether the purchaser takes an assignment of the whole mortgage lien or a release or quitclaim of the mortgagee’s interest in the estate held by the purchaser.</p>

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

<p>Usually when the maker of a negotiable promissory note is not allowed to avail himself, as against third parties holding the note, of defences valid against the payee, it is because negligence is imputable to the maker in the inception of the note.</p> <p>That a third party holds a negotiable note for a valuable consideration will not of itself, in an action against the maker, deprive such maker of defences valid against the payee. Hence when A. made a negotiable promissory note to B. which was fraudulently procured by B., and no negligence was imputable to A., and suit was brought on the note against A. by C., a purchaser for valuable consideration, but it did not appear that C. bought the note in the usual course of business or for its full face value:</p> <p>Meld, that A. was entitled against O. to use the defences which he could have employed against B.</p>

<p>The right of a riparian owner to have the water of the stream flow through qe by his land in its natural purity, and without appreciable pollution caused by owners above him, is well settled, is a part of his property, and will be protected by injunction.</p> <p>23or is this right modified by the fact that the flow of the stream has been increased by reservoirs built along its upper course.</p> <p>Richmond Manufacturing Company v. Atlantic Delaine Company, 10 R. I. 106 affirmed.</p>

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

<p>Gen. Stat. R. I. cap. 41, § 7 provide, “If any person is taxed for several parcels of real estate, or for personal and real estate in the same tax, the whole of such person’s tax may be collected, either out of the real or personal estate, or any part thereof : Provided, that no land aliened shall be sold, if the person taxed have other sufficient property.”</p> <p>PCeld, that a mortgage is nothin alienation within the meaning of this section so long as the ' mortgagor remains in possession.</p> <p>A statute in force when a contract is made cannot be considered as impairing the obligation of the contract, as the contract must be subject to the statute.</p> <p>Nor can a mortgagee who takes his mortgage while a statute is in force permitting mortgaged estates to be sold for the mortgagor’s taxes avoid the statute as unconstitutional, because allowing private property to be taken for public uses without compensation.</p> <p>An injunction will not lie against a tax collector to prevent a mode of levy authorized by statute because some other mode may be more equitable.</p> <p>A tax is a privileged lien and will not be marshalled by a court of equity with other liens.</p>

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

<p>A. without authority from B. executed in B.’s name a replevin bond.</p> <p>Held, not to be such a bond as is required by the Statutes of Rhode Island, which prescribe a bond executed by the plaintiff or “ some one in his behalf.”</p> <p>After service of the replevin writ B. under seal ratified the act of A.</p> <p>Held, that the ratification could not, without the defendant’s consent, validate the service of the writ, as a valid bond is a condition precedent of valid service.</p> <p>A plea in abatement of a replevin writ was sustained.</p> <p>Held, that the court could not give judgment for return and restoration.</p>

Exceptions to the Court of Common Pleas. This case was originally brought in the Justice Court of the city of Providence, was carried to the Court of Common Pleas by the plaintiff’s appeal, and came before this court on exceptions taken by the defendant to the rulings of the presiding justice in the Court of Common Pleas.

<p>A., her husband joining in the deed, conveyed her realty to trustees to manage, and after paying the expenses of management to hold for her sole use and benefit, to pay in their discretion to her such portion of the income as they thought proper during her life on her sole receipt, and after her death to convey all said trust estate to her heirs at law.</p> <p>It appearing to the court that the object of the settlor was to protect herself, not to benefit her heirs:</p> <p>Held, that the settlement was subject to the rule in Shelley’s Case, and that under it the settlor took an equitable fee simple in the estates conveyed to the trustees.</p> <p>The Rhode Island cases of voluntary settlements examined and discussed.</p>

Exceptions to the Court of Common Pleas.. This action was trespass on the case, brought in the Court of Common Pleas, and jury trial of the questions of fact involved was waived by the parties litigant. The defendant pleaded specially, and the plaintiff demurred to the pleas. The plaintiff’s demurrers were overruled by the presiding justice of the Court of Common Pleas, and the pleas being substantiated, judgment was entered for the defendant for his costs.

<p>A bill in equity was filed claiming a lien upon certain land, and also on the purchase money paid for it, charging one G. with having purchased it after notice of the lien “ had been given to one” H., “the agent and attorney of said” G., and making H. a party, but charging no fraud against him, and praying for no costs against him. The bill was demurred to.</p> <p>Meld) that 1*1. was not a proper party to the bill.</p> <p>Held, further, that G. was not properly charged to be a purchaser with notice.</p> <p>Meld, further, that the bill was bad for misjoinder of parties and for asking inconsistent remedies.</p>

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

<p>When a vendor of chattels or a mortgagor in possession affirms his ownership thereof, a vendee or mortgagee damnified hy such affirmation can maintain trespass on the case against the vendor or mortgagor, without declaring such affirmation to have been made with knowledge of its falsity or with intent to deceive.</p> <p>Such an affirmation implies a warranty of its truth.</p> <p>A declaration upon such an affirmation charged neither knowledge of falsehood, nor fraud, nor promises broken.</p> <p>Eeld, that the declaration was not in assumpsit, and if good could only be super casum in tort.</p>

<p>Trespass on the Case. On demurrer to the declaration.</p> <p>In this action the plaintiff in his writ summoned the defendant “ in an action of the case in the nature of account, for that the defendant has not accounted to the plaintiff as his copartner.” The declaration is as follows:</p> <p>“ John E. Dowling, of the city and County of Newport, complains of Isaac Clarke, of the city and County of Newport aforesaid, duly held to answer to the plaintiff in an action of the case in the nature of an action of account, for that the plaintiff and the defendant were heretofore copartners and entered into articles of copartnership on the third day of July ” .</p> <p>Follow the articles of copartnership “ and under the said articles of copartnership, and by virtue of the provisions thereof, the plaintiff became entitled to receive from the defendant, by means of the plaintiff having contributed to the said copartnership business and property a large sum of money, to wit: the sum of ten hundred fifty-seven dollars, and by his having paid bills due from the said partnership five thousand nine hundred and fifty-three XW dollars, and for eighty-one days labor by him rendered to the said copartnership, at the rate of two dollars and fifty cents per day, amounting to two hundred and two dollars and fifty cents, and for ice, ice-houses, and other property of the said partnership, with the good-will of the ice business taken by the said defendant from the said partnership, of great value, to wit, of the value of four thousand dollars, and has neglected and refused to account with the plaintiff therefor ; wherefore, the plaintiff hereby demands of the defendant a just and true account of all of the business and property of the said partnership, and of all of the profits and transactions in any way relating thereto or arising therefrom, which he, that said defendant, has hitherto refused to do, to the plaintiff’s damage, five thousand dollars, as laid in his writ, dated October 21, 1880.”</p>

Trespass on the Case. On demurrers to tbe declaration. The plaintiff declared against the defendants as follows : “Nils Neilson, of East Providence, in said county of. Providence, complains of Welcome O. Brown, of tbe city and County of Providence, physician, in the custody of the sheriff, and of Elcy M. Chace, widow, and Huldah M. Beede, spinster, both of the said city and County of Providence, summoned by the sheriff in an action of the case. “ 1.

Trover. Heard by the court on an agreed statement of facts, jury trial being waived.

<p>Exceptions to the Court of Common Pleas.</p> <p>Gen. Stat. R. I. cap. 73, § 1, is as follows:</p> <p>“ All buildings, places, or tenements used as houses of ill-fame, resorted to for prostitution, lewdness, or for illegal gaming, and all grog-shops, tippling-shops or buildings, places or tenements 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, are hereby declared to be common nuisances, and are to be regarded as such.”</p> <p>Under this statute an indictment was found against the defendant as follows:</p> <p>“ Providence, sc. At the Court of Common Pleas of the State of Rhode Island and Providence Plantations, holden at. Providence within and for the County of Providence, on the first Monday of September, in the year of our Lord one thousand eight hundred and eighty-one.</p> <p>“ 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 Theresa Towler, spinster, of Providence, in said county, on the first day of January, in the year of our Lord one thousand eight hundred and eighty-one, and on divers other days and times between said last mentioned day and the day of the finding of this indictment, with force and arms, at Providence, in the aforesaid County of Providence, did keep and maintain a certain common nuisance, to wit, a grog-shop and tippling-shop, and building, place, and tenement used as a house of ill-fame, resorted to for prostitution and lewdness, and building, place, and tenement used for the illegal sale and keeping of intoxicating liquors, and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons, against the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>“And the jurors aforesaid, upon their oaths aforesaid, do further present that the said Theresa Towler, on the first day of January, in the year of our Lord one thousand eight hundred and eighty-one, and on divers other days and times between said last mentioned day and the day of the finding of this indictment, with force and arms, at Providence, in the aforesaid County of Providence, did keep and maintain a certain grog-shop and tippling-shop, and building, place, and tenement used as a house of ill-fame, resorted to for prostitution and lewdness, and building, place, and tenement used for the illegal sale and illegal keeping of intoxicating liquors, and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons, to the great damage and common nuisance of all the good citizens of this State, against the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>“ Preferred by Samuel P. Colt, Assistant Attorney Ceneral.”</p> <p>And signed by fifteen grand jurors.</p> <p>The defendant asked the court to quash the indictment because :</p> <p>1. It set forth plainly and substantially no punishable crime.</p> <p>2. It is bad for duplicity.</p> <p>3. It nowhere charges the defendant with committing the acts charged, intending to vitiate and corrupt the public morals, and nowhere charges any intent.</p> <p>The court sustained the indictment, and the defendant, after verdict for the State, moved in arrest of judgment which motion was overruled. The first two exceptions cover these rulings. Other exceptions were taken which sufficiently appear from the opinion of the court.</p>

Exceptions to the Court of Common Pleas. This case was an indictment found in the Court of Common Pleas for the maintenance of a common nuisance, to wit, a grog-shop and place used for the illegal sale of intoxicating liquor. The defendant filed four pleas in abatement, to which the plaintiff •demurred, and the demurrer was sustained, whereupon the defendant excepted.

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

<p>Bill in Equity for specific performance. On the respondent’s petition for a rehearing.</p> <p>The previous proceedings in this case are reported in 11 R. I. 569.</p> <p>A final decree was entered the 57th day of the October Term, 1880, December 24, 1880, as follows: -</p> <p>“ This cause came on to be heard at the March Term of this court, a. D. 1877, on bill, answer, and proofs, and was argued by counsel, and thereupon, upon consideration thereof, on this 'Ifth day of December, A. JD. 1880, it is ordered, adjudged, and decreed as follows:</p> <p> “ That, the complainant corporation have and recover of the respondent corporation the sum of three thousand two hundred and thirty (J>3,H30j dollars, being the amount of the dividend accruing upon three hundred and twenty-three (3^3j shares of the capital stock of respondent corporation after the date of the award between the parties in the pleadings mentioned. </p> <p>“ It is further ordered, adjudged, and decreed that the complainant corporation have and recover of said respondent corpora tion the further sum of $1,403.59, interest on said three thousand two hundred and thirty ($3,H30j dollars from the B3d day of September, A. D. 1873, to the date of the entry of this decree, making, the total sum of $4,635.59, and that neither party recover costs.”</p> <p>The respondent filed a petition for a rehearing February 17, 1881, which was heard by the court June 7, 1882, and was decided by the following opinion :</p>

<p>A statute provided that “ taxes on real estate shall be assessed to the owners, and separate tracts or parcels shall be separately described and valued as far as practicable.”</p> <p>Meld, that this provision was for the benefit of the taxpayer, and was mandatory. Capwell v. MopMns, 10 R. I. 378, explained and affirmed.</p> <p>A., owning three separate parcels of land in the same town, was taxed for one by distinct assessment and description, and for the other two without any description and without separate assessments. On non-payment of the tax a part of the first parcel was sold for the tax on. the three parcels, whereupon A. brought trespass and ejectment against the purchaser.</p> <p>Held, that the assessment and consequently the levy and sale were illegal.</p> <p>A sale of land for taxes is void unless the land is liable for all the taxes for which it is sold.</p>

<p>A bill in equity was filed by tbe distributees of a decedent against his administrator and a former partner to set aside the report of commissioners on his estate, and for an account. The bill was demurred to.</p> <p>Held, that the bill would not be sustained because the commissioners had allowed a claim of the former partner arising from partnership transactions, as law and equity have concurrent jurisdiction of such claims*</p> <p>Held, further, that the bill would not be sustained by allegations tending to show fraud and collusion on the part of the respondents in procuring the report, fraud not being directly charged, and the allegations being consistent with mere negligence on the part of the administrator, for which he could be made accountable to the Probate Court.</p> <p>Held, further, that the bill would be sustained, because it charged the collection by the former partner of partnership moneys after the date of the claim allowed by the commissioners, and the neglect to collect other partnership moneys, of which, on the refusal of the administrator, the distributees could compel an account.</p>

<p>Bill in Equity for specific performance. On demurrer to the bill.</p> <p>The case is fully stated in the opinion of the court.</p> <p>James Tillinghast, in support of the demurrer.</p> <p>The defendant demurs to the bill, first, because the complainant, “ as appears by its said bill, has not and cannot make to this defendant a good marketable title to the lands and estate described in its said bill, and in the contract therein referred to ; ” second, generally, for want of equity.</p> <p>I. Mr. Jennings, at the date of the deed, September 25, 1834, not only had by marital right a vested estate in possession of these lots for the joint lives of himself and his wife, but having had by his wife a child previously born, had, also, as tenant by the curtesy initiate, a vested indefeasible estate in possession for his own life. In re the Voting Laws, 12 R. I. 586, 589. And this estate passed by his deed to the purchaser, who thus took an indefeasible title in the lots for the life of Mr. Jennings.</p> <p>It probably will not, or at least cannot successfully be contended, that if Mrs. Jennings herself'had lived, and died at the same time as her husband, the adverse possession could have commenced until her death. Not merely because her coverture would have protected her, but because she could not, during her husband’s life, have questioned the possession of the purchaser under him.</p> <p>Nor can it any more be contended that the possession became adverse to her heirs until her husband’s death.</p> <p>For, as stated in 1 Inst. lib. 1, cap. 4, sec. 35 [a] :</p> <p>“ And albeit the state be not consummate until the death of the wife, yet the state hath such a beginning after issue had in the life of the wife as is respected in the law for divers purposes. . . .</p> <p>“ Secondly. If after issue the husband maketh a feoffment in fee, and the wife dieth, the feoffee shall hold it during the life of the husband, and the heir of the wife shall not during his life recover it in sur cui in vita ; for it could not be a forfeiture, for that the estate at the time of the feoffment was an estate of tenancy by the curtesy initiate and not consummate.”</p> <p>Although at common law it would work a discontinuance of her estate and put her or her heirs, after the husband’s death, to their action. 2 Inst. lib. 3, ch. ii. sec. 594 [366 a]. But this was remedied by 32 Henry VIII. cap. 28. 3 Blackstone Comment. *172. Compare our statute, Pub. Stat. R. I. cap. 166, § 9, first enacted Digest 1798, p. 267, § 7.</p> <p>And so long as this estate pur autre vie continued, the possession of the purchaser, and of those claiming under him, could no more be adverse to the heirs of the wife than if it bad continued in Mr. Jennings himself. The possession of a tenant of a particular estate is never adverse to the tenant in reversion or remainder. Ld. Mansfield in Mshar Taylor v. Prosser, Cowp. 218 ; Roscoe on Real Actions, 502-504; Stearns on Real Actions, 242.</p> <p>For parallel cases of conveyances in fee by the husband alone, or as here by deed ineffectual as against the wife, see Melvin v. Proprietors of Locks and Canals, 16 Pick. 137, 140; Raymond v. Holden, 2 Cush. 264, 269 ; Mellus v. Snowman, 2l Me. 201; Fagan v. Walker, 5 Ired. 634; Jackson v. Cairns, 20 Johns. Rep. 301; McCorry v. King's Heirs, 3 Humph. 267 ; Meramon’s Heirs v. Caldwell's Heirs, 8 B. Mon. 32 ; Gill & Simpson v. Fauntleroy's Heirs, 8 B. Mon. 177, 186, 188. See, also, Doe on dem. Milner v. Brightwen, 10 East, 583; Doe on dem. Colclough v. Hulse, 3 B. & C. 757; Heath v. White, 5 Conn. 228; Foster v. Marshall, 22 N. H. 491 ; Wells v. Prince, 9 Mass. 508; Wallingford v. Hearl, 15 Mass. 471; Tilson v. Thompson, 10 Pick. 359; Miller and others v. Ewing, 6 Cush. 34.</p> <p>II. Section 3, as it now stands, of our statute of possessions, Pub. Stat. R. I. cap. 175, does not at all affect this question. It is really as it was first enacted, and as it always appeared prior to the revision of 1857, but a proviso to the original statute, now section 2 ; and the second clause as to reversioners and remainder-men applies only to cases where the tenant of the particular estate has been himself disseized.</p> <p>An examination of this statute, tracing it back to its origin, it is confidently submitted, conclusively shows this.</p> <p>The original statute, with its first proviso, was first enacted in 1711. This second clause or second proviso was added to it in 1728. Judge Brayton, in his opinion in Clarice v. Cross, 2 R. I. 448, states that the introduction of the English Act, 21 James I. cap. 16, supplied a defect in this statute; but just when this act, particularly that portion of it affecting lands, came into operation here, seems a matter of much doubt. The statute of June, 1726, reenacting that portion of it limiting personal actions, seems to negative the idea that it was supposed to have been in force here prior to that time; and that statute, notwithstanding its somewhat indefinite terms, does not seem capable of a construction which introduces the entire act. And yet, as appears by the report of the committee upon which the declaratory statute of 1749 was based, it was not understood to be then first introduced, but, as Judge Brayton says, it was “rather at that time recognized as having been in force before.” And the same is true of the Act of 32 Henry VIII. cap. 2, limiting writs of right and other real actions, also named in this same statute of 1749, and again in the revision or recompilation of our colonial laws in 1767.</p> <p>But whenever and however introduced, the reasoning of Judge Brayton respecting the effect of these English acts upon the first proviso is equally pertinent to the second. They were introduced with the settled rules and principles of construction and application which prevailed respecting them in the English counts.</p> <p>The material inquiry for our present purpose therefore now is, what, with these statutes in force, was the state of our law as to reversioners and remaindermen.</p> <p>First. We may assume, for it will not, or cannot be controverted, that although our statute does not contain the word “ adverse,” no title could be acquired by possession under it that had not been adverse to the real owner. As strongly stated by Chief Justice Marshall in Kirie v. Smith, 9 Wheat. 288, in construing the similar seven years’ limitation statute of Pennsylvania: “ One of these (rules) which has been recognized in the courts of England, and in all others where the rules established in those courts have been adopted, is, that possession, to give title, must be adversary. The word is not, indeed, to be found in the statutes, but the plainest dictates of common justice require that it should be implied. It would shock that sense of right which must be felt equally by legislators and by judges, if a possession which was permissive and entirely consistent with the title of another should silently bar that title. Several cases have been decided in this court in which the principle seems to have been considered as generally acknowledged. And in the State of Pennsylvania, particularly, it has been expressly recognized. To allow a different construction would be to make the statute of limitations a statute for the encouragement of fraud, a statute to enable one man to steal the title of another by professing to hold under it. No law admits of such a construction.”</p> <p>And Judge Brayton, in Clarice v. Gross, supra, 2 R. I. 442, recognizes the same principle as applied to our statute.</p> <p>Second. It was well settled, as stated above, that the possession of the particular tenant could not be adverse to the reversioner or remainderman.</p> <p>There must, too, to bar the right under the English statute of James, have been an actual disseizin, and not one merely by election. 3 Wash. Real Prop. *488, *499; Doe on dem. Milner v. Brightwen, 10 East, 583 ; Hall v. Doe on dem. Surtees, 5 B. & Aid. 687; Doe on dem. Golclough v. Hulse, 3 B. & C. 757; Zeller’s Lessee v. Eckhert et al. 4 How. U. S. 289.</p> <p>And in the. case of reversioners and remaindermen it was also well settled under the statute of James, that if the particular tenant was disseized, the tenant in remainder had his election either to consider himself then also disseized or not; and if he did not so elect, his right of entry was not by such disseizin accelerated, but he still might await the regular determination of the particular estate, however long, pending that, such disseizin continued ; and had his full twenty years thereafter in which to assert his title. Angelí on Limitations, chap. xxx. and cases in notes ; Miller and others v. Ewing, 6 Cush. 34.</p> <p>Now our Statute of 1711 in general terms declared that the mere adverse possession of lands, claiming title, for twenty years should absolutely pass the title, not merely bar the remedy. That is, it not only barred the right of entry, and possessory action resting upon it, under the Act of 21 James I., but any writ of right under the Act of 32 Henry VIII.</p> <p>It was too sweeping; and as to reversioners and remaindermen, in any view, it required amendment. Containing no exception of them, it might on the one hand be held that a disseizin of the particular tenant, continued against him only for twenty years, would absolutely bar the reversioner or remainderman ; and this view of its possible effect seems by the preamble to have actuated this amendment, and seems also to have been Judge Brayton’s view of it in his dicta to Clarice v. Cross, supra, 2 R. I. 447.</p> <p>But it still remains but a proviso to the principal act, and can only apply where there has been an actual disseizin of the particular tenant.</p> <p>There must still be the full twenty years adverse possession to call the act itself into operation. As Judge Bray ton says, 2 R. I. 444, for his statement applies as well to this as to the first proviso then under consideration by him, “ The proviso supposes the twenty years have run, and the title is barred by the body of the act.” And the only effect of this proviso is to secure to the reversioner and remainderman his full ten years to assert his right “ after his right of action shall accrue,'1'’ as the first proviso secures the same time to those under personal disability, no matter how long the disseizin of the predecessor in title may have continued. But if the adverse possession, as here, first commences at the termination of the particular estate, then there is no scope for the proviso at all. The right in remainder has fallen into a light of immediate possession, the twenty years then first begin to run against it, and when it has run its full course, and not till then, the act itself, if no disability exists, not only bars the right but transmits the title.</p> <p>Further, it is submitted that the heirs of the wife are not reversioners in the sense of this statute, any more than the wife herself would have been had she survived.</p> <p>III. But another question that the bill presents as to this lot, • and this Jennings one fifth of lot No. 5, is this:</p> <p>It appears from the bill that Mrs. Jennings left six children. But assuming the possession to have continued as alleged in the bill, all of these seem now to be barred, except Mrs. Freelove, who married May 14,1862, before the death of her father, as both she and her husband are still living.</p> <p>First. If we are right in the position that the adverse possession as against these children and heirs of Mrs. Jennings did not commence until the death of their father in 1864, then it necessarily follows that Mrs. Freelove, being then under this disability of coverture, is not yet barred of her claim, and cannot be until ten years after the death of her husband.</p> <p>Second. But if we are wrong in this position, still the question remains whether this disability of Mrs. Freelove does not prevent her title being yet barred.</p> <p>For if it be held that the possession of Babcock under the deed from Jennings could have been during Jennings’ life adverse to the children and heirs of Mrs. Jennings, it was an adverse possession commencing in the life of Mr. Jennings, the father and tenant by the curtesy, and the chse is then precisely parallel with Jackson ex. dem. Beekman v. Sellick, 8 Johns. Rep. 202. See, also, Jackson ex. dem. Swartwout v. Johnson, 5 Cow. 74; Stubblefield v. Menzies, U. S. C. C. Oregon, 11 Federal Reporter, 269, 272; Collins v. Riley, U. S. Sup. Court, lb. 352.</p> <p>IV. As to the other undivided fifth part of lot No. 5, the title of which is now questioned, the Ann R. Babcock fifth. .</p> <p>It is alleged that in 1829 Mrs. Ann R. Babcock and her husband, Robert S. Babcock, in her right, were seized of this one fifth of this lot No. 5, but no conveyance from them is shown. It is alleged, however, that October 7, 1835, John W. Babcock “ entered into and upon the said last mentioned one undivided fifth part of and in said lot No. 5, with the appurtenances, and became and was seized and possessed thereof; and being so seized and possessed, he, the said John W. Babcock, continued in and had the uninterrupted, quiet, peaceable, and actual seizin and possession of the said last-mentioned one undivided fifth part of and in the said lot No. 5, with the appurtenances, from thence until the making of the said deed to Albert H. Manchester and Ephraim S. Jackson,” October 8, 1838, with like allegations in subsequent paragraphs as to the seizin and possession of those holding under him, and conveyances of the whole lot by warranty deed, etc.</p> <p>First. At the time of this alleged entry upon this fifth, the bill shows that John W. Babcock already held two other undivided fifths of this same lot No. 5, namely, the Jennings fifth, for the life of Mr. Jennings, under his deed of September 25, 1834, and the Thurston fifth.</p> <p>He was, therefore, then tenant in common with Mrs. Ann R. Babcock, and there is no averment of any actual ouster or disseizin of her or her heirs, unless the above referred to general averments constitute such.</p> <p>And the first question therefore presented is, whether these averments necessarily show such actual ouster or disseizin. If they do not, there is nothing in the bill to show that the heirs of Mrs. Babcock are not entitled as tenants in common to-day.</p> <p>To effect an ouster by one tenant in common of another requires a strong case of actual disseizin brought home to the knowledge of the co-tenant, or so notorious that such knowledge must be inferred. Holley et ux. v. Hawley et al. 39 Vt. 525; Phelan Wife v. Kelly, 25 Wend. 389; Quiver v. Rhodes, 13 Reporter, 405, and cases cited. And cases supra.</p> <p>Second. Assuming that the bill does show such actual disseizin of Mrs. Babcock and her husband, the bill further shows that she died May 8, 1844, and her husband January 8, 1847, and from the facts of her family alleged it would seem that all must now be barred, except possibly the children of Mrs. Taylor, who was married October 81,1831, and who died March 11,1852, but whose husband is still living; and the question is, can her children be barred till ten years after their father’s decease. This question is the same as that in the case of Mrs. Jennings’ daughter, Mrs. Ereelove, considered above, in that the disseizin had also, as now assumed, commenced in the joint lives of Mrs. Taylor’s father and mother, but differs, it may be claimed, from Mrs. Free-love’s case in this: that on the assumption here that Mrs. Ann R. Babcock and her husband were both disseized in their joint lives, Mrs. Taylor herself was never seized so as to give her husband curtesy, and that therefore the statute began to run against Mrs. Taylor’s children at her death, in 1852. But it is submitted that, even assuming that Mr. and Mrs. Babcock were thus disseized, still upon her decease her title descended to her children, and that Mrs. Taylor thus became seized in law sufficiently to give her husband an estate by the curtesy. 1 Washburn Real Prop. *135, *136, and cases cited; Jackson ex. dem. Swartwout v. Johnson, 5 Cow. 74.</p>

<p>A testator’s will directed the executors to invest a certain sum in realty and to take a deed thereof in trust for the use and benefit of a son B. during life, afterward to B.’s children, including those before named, and to his heirs forever. The deed was taken in trust, to permit B. to occupy and enjoy during life without rent and after B.’s death to convey in equal shares to the children or descendants of B., per stirpes, to them and their heirs. B. had four children. B. and one of the children, S., jointly conveyed one undivided fourth of the realty to M., who reconveyed to S., whereupon S. filed a bill in equity against the trustee executor for a release of the legal estate in one undivided fourth of the realty.</p> <p>Held, that the trust of the deed was not executed by the statute of uses.</p> <p>Held, further, that the deed did not conform to the directions of the will.</p> <p>Held, further, that the cestuis were entitled to have the deed conform to the will.</p> <p>Held, further, that the limitations prescribed by the will fell within the rule in Shelley’s case.</p> <p>Held, further, that the complainant, although filing a bill separate from the other cestuis, was entitled to the relief prayed for.</p>

Exceptions to the Court of Common Pleas. This case was an appeal taken to the Court of Common Pleas from an order of the town council of Lincoln laying out a highway across the tracks of the appellants at grade.

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

<p>Devise as follows:</p> <p>“ I give, devise, and bequeath all and singular my real and personal estate, whatsoever and wheresoever, at the time of my decease, unto and to the use of my wife S. for and during the term of her natural life. And from and immediately after the decease of my said wife, I give, devise, and bequeath one half part of my said real and personal estate, unto and to the use of such person or persons, and for such estate and interests therein, as my said wife by her last will and testament in writing, executed in due form of law, shall direct, limit or appoint, and in default of such direction, limitation, or appointment, or if incomplete, so far as the same shall not extend, I give, devise, and bequeath the said half part of my real and personal estate unto my own right heirs forever.”</p> <p>S. executed the powers thus given her, by the following devise:</p> <p>“I give, devise, and bequeath another sixth part of said undivided half of said estate unto my son, T., for his use during the period of his natural life, and upon his decease, to his heirs at law, him surviving, share and share alike, with power, however, to sell and dispose of the same during his life, with the written consent of each of the surviving heirs at law of my said husband. In case of such sale he shall have the use of the proceeds thereof during his life, and upon his decease the same shall go to his heirs at law, share and share alike. . . .</p> <p>“ The foregoing devises and bequests of the said undivided half part of said estate of my deceased husband are and each of them is subject to the proviso and condition, however, that my said daughter M. may and shall have the power to select and appoint some suitable person to collect and receive, and who shall have power to collect and receive, as well the proceeds of the sales of such parts and portions of the estate so devised as may be sold or disposed of in pursuance of the terms and provisions, hereof, as also the rents and profits of such proceeds, and of the estate so devised and bequeathed as aforesaid, and to divide and pay over the same to my said children in the proportions in which they shall be entitled to the same as hereinbefore specified; but she shall in no event be held to be liable for any default in the payment of the same.”</p> <p>Held, that under these devises T. took a life estate only, and that the devise to T. did not fall under the rule in Shelley's Case.</p>

<p>Bill in Equity for an injunction. On demurrer to the bill.</p>

<p>By a will executed in Rhode Island, a testator devised realty in this State as follows:</p> <p>“I give, devise, and bequeath unto my executors hereinafter mentioned, the survivors and survivor of them, all my estate, both real and personal, and all the rents, issues, and profits thereof, to have and to hold the same upon the trusts, and subject to the directions following, to wit:</p> <p>“ To pay to my wife A. the sum of ten thousand dollars for and during her natural life, and the house at Newport in Pelham Street.”</p> <p>Held, that A. took a fee simple in the land on Pelham Street.</p> <p>This land was subject to a mortgage executed by the testator in which A. joined releasing dower.</p> <p>Held, that A. should have the mortgage paid off from the testator’s estate not specifically devised if sufficient, any deficiency to remain a lien on the land.</p> <p>The testator had other realty in Rhode Island not specifically devised. After making his will he removed his domicil to Massachusetts, where he died.</p> <p>Held, that the will as affecting Rhode Island realty was to be construed according to the laws of Rhode Island.</p> <p>Held, further, that A. was entitled to dower in such other realt3r, and was not obliged to contribute her dower to pay the mortgage on the land on Pelham Street.</p>

The Constitution of the State of Rhode Island, of November, 1842, article 2, section 1, provides : “ Every male citizen of the United States, of the age of twenty-one years, who has had his residence and home in this State for one year, and in the town or city in which he may claim a right to vote, six months next preceding the time of voting, and who is really and truly possessed in his own right of real estate in such town or city of the value of one hundred and…

Public Laws R. I. cap. 889, § 2, of April 29, 1881, provide: “ The town councils of the several towns, and the boards of aldermen of the several cities, may grant or refuse to grant licenses, to such number, and so many citizens, resident within their respective town or city for the sale of pure spirituous and intoxicating liquors within the limits of such town or city, as they may think proper.

The following resolution was adopted by tbe Senate of the State of Rhode Island, March 31, 1882 : “ Whereas, Section 2 of article ii. of the Constitution contains a provision in the words following, to wit: “ Provided, that no person shall at any time be allowed to vote in the election of the city council of the city of Providence, or upon any proposition to impose a tax, or for the expenditure of money in any town or city, unless he shall within the year next preceding have…