Volume 14 — Rhode Island Reports

<p>A wife may acquire by purchase or gift from a third person the note of her husband, and may enforce payment thereof as such third person might have done.</p> <p>Suit, if needful, may be brought by her in equity by her next friend, or at law by her statutory trustee, appointed under Pub. Stat. R. I. cap. 166, § 18.</p> <p>Matters determined in a decree of reference to a master are not open before the master. They can be reconsidered on a petition for a rehearing, not on exceptions to the master’s report.</p> <p>A. made certain mortgages, and on paying them had them transferred to his wife’s mother, the consideration of the transfer being A.’s indebtedness to his mother in law. she transferred them to A.’s wife as a gift. A. subsequently made another mortgage of the same property to a third person and afterwards died.</p> <p>Meld, that the mortgages held by A.’s widow were a valid lien on the mortgaged property, and took precedence of the subsequent mortgage made by A.</p>

<p>On appeal from the decree of a Probate Court proving a will, the executor named in the will may, if acting in good faith, prosecute the probate in the appellate court at the expense of the estate.</p> <p>The reasonable expenses incurred by such executor in so doing are 11 necessary expenses incident to administration.”</p>

<p>Bill IN Equity for partition. On demurrer to the bill.</p> <p>Pub. Stat. R. I. cap. 230, §§ 2-4 provide:</p> <p>“Sect. 2. All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seized or possessed of any estate of inheritance in any lands, tenements, or heredita-ments, in tbeir own right or in the right of their wives, may be compelled to make partition between them of such lands, tenements, and hereditaments, by writ of partition or bill in equity.</p> <p>“ Sect. 3. All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seized or possessed of any estate for life or years in any lands, tenements, or heredita-ments, in their own right or in the right of their wives, may be compelled to make the partition between them of such lands, tenements, and hereditaments, to continue until the estate of some of the parties to the same shall determine, and no longer, by writ of partition.</p> <p>“ Sect. 4. All joint tenants, coparceners, and tenants in common, who now are or hereafter may be actually seized or possessed of any estate for life or years, in any lands, tenements, or heredita-ments, in their own right or in the right of their wives, with others who have estates of inheritance in possession in the same lands, tenements, and hereditaments, may compel or be compelled to make partition of such lands, tenements, and hereditaments, to continue until the estate of some of the parties shall determine, and no longer, by writ of partition.”</p>

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

<p>EXCEPTIONS to tbe Court of Common Pleas.</p> <p>Pub. Stat. R. I. cap. 207, §§ 16, 18, being tbe reenactment of Gen. Stat. R. I. cap. 196, §§ 16, 18, provide :</p> <p>“ Sect. 16. Tbe defendant in any writ upon which goods and chattels have been attached may, at any time within forty eight hours, exclusive of Sunday, after such attachment, deliver to such officer a bond in the penal sum of the amount of damages laid in the writ, signed by the defendant or some one in his behalf, with sureties to the satisfaction of such officer, with a condition therein that the same shall be null and void if the final judgment in the action in which such writ was served shall be forthwith paid and satisfied after the rendition thereof.</p> <p>“ Sect. 18. Upon accepting a bond given to satisfy a judgment as herein required, such officer shall lodge the same with the clerk of the court, if there be a clerk, otherwise with the justice of the court to which the writ in such action shall be returnable, and shall forthwith surrender the goods and chattels attached by him to the person whose interest therein shall have been attached, or from whose possession the same were taken by virtue of such writ.”</p>

EXCEPTIONS to the Court of Common Pleas. This was scire facias against the defendant as bail. One George D. Nichols was arrested February 14, 1880, on a writ issued in faYor of the plaintiff from the Justice Court of the city of Providence, and the defendant became his bail.

<p>After the defendant’s counsel had left the court room, the jury came in and reported that its members differed on a question of fact and were unable to agree, whereupon the defend* ant being present, but his counsel absent, the presiding justice gave additional instructions to the jury, and caused the phonographic clerk to read to the jury his report of the defendant’s evidence.</p> <p>After verdict for the plaintiff:</p> <p>field, That the defendant had no ground for exception.</p>

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

<p>tíen. Stat. R. I. cap. 41, §§ 2, 3 and 7, provide :</p> <p>“All taxes assessed against any person in any town for either personal or real estate shall constitute a lien on his real estate therein.</p> <p>“ All taxes assessed against the owner of any real estate shall constitute a lien on such real estate in any town for the space of two years after the assessment; and if such real estate be not aliened, then until the same is collected.</p> <p>“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 anj' part thereof; provided that no land aliened shall be sold, if the person taxed have other sufficient property.”</p> <p>These provisions being in force, a tax was assessed against A., who owned three tracts of realty in one town. After the assessment one tract was sold and subsequently the other two. A.’s tax not being paid, levy was made upon one of the last two tracts for A.’s whole tax, whereupon the purchaser paid the tax under protest, and filed a bill in equity for contribution against the purchaser of the first tract sold.</p> <p>On demurrer to the bill:</p> <p>Held, that the demurrer must be sustained, as the purchaser of the last two tracts sold took them subject to the tax lien from which the first tract sold was freed by the prior alienation, as the other tracts were sufficient to pay the tax.</p>

<p>In an equity suit brought by certain stockholders for themselves and such other stockholders as might join them against D., an officer of the corporation, and against the corporation, charging D. with the misappropriation of the corporate funds:</p> <p>It appearing that D. was liable as trustee for converting the funds:</p> <p>Held, that D. was also liable for the profits made by his investment of the funds converted.</p> <p>It not appearing that D. made any profit or more than simple interest from a portion of the converted funds not invested:</p> <p>Held, that as to such portion he was chargeable only with simple interest, not with compound.</p> <p>The complainants moved for an allowance of two per cent, on the amount found due from D. to be given them for “ their costs, expenses, and services.”</p> <p>Held, that such an allowance savored of champerty and was inadmissible.</p> <p>Held, further, that the complainants should be allowed costs as between solicitor and client, to be a first lien on the amount actually recovered.</p> <p>Query, whether the complainants should be allowed their reasonable personal expenses incurred in prosecuting the suit ?</p> <p>It appearing that the corporation was in the hands of a receiver:</p> <p>Held, that the residue of the amount received was subject, first, to the debts of the corporation, and second, to a distribution among stockholders pro rata.</p> <p>Query, whether holders of stock paid for from the converted funds were entitled to share in a pro rata distribution ?</p> <p>A judgment nunc pro tunc in case of death is proper only when a party dies after hearing, while the case is under advisement, or after the case has proceeded so far that judgment can be entered, if not as a merely formal act, at least without the need of further inquiry on evidence into matters of fact involved in the controversy.</p> <p>Motion was made for the entiy of a decree nunc pro tunc against two deceased respondents to a bill in equity, which had been taken against them while living pro confesso, to charge them with liability for the transfers of certain stock made after the bill was filed, and hence not charged in it, because such transfers were in breach of their duty as trustees and in violation of an injunctive order issued against a third respondent who was a co-trustee. The only relief specifically prayed in the bill against the two respondents in question was an injunction against making certain payments and transfers.</p> <p>Held, that this relief specifically prayed for was the only relief warranted without inquiry and evidence aliunde.</p> <p>Held, further, that even if relief could be given on the record it must be by proceedings under an order to account if the decree nunc pro tunc rested on a breach of trust, and in such proceedings the accounting parties having entered an appearance were entitled to be notified and heard.</p> <p>Held, further, that the court had no power to enter an order against a deceased contemnor if the decree nunc pro tunc rested on the violation of an injunction.</p> <p>Held, further, that the respondents could not be affected by the proof adduced in proceedings against a third respondent to which they were not parties.</p> <p>Held, further, that the motion to enter the decree nunc pro tunc must be dismissed.</p>

<p>The word “ child” m the Public Statutes B. I. cap. 164, “of the adoption of children,” means minor child.</p>

<p>A minor who hires a vehicle to drive to a place certain, and after getting the vehicle under this contract drives elsewhere or beyond the place, is liable in trover for a conversion; the conversion taking place not under the contract, but by abandoning it and thus terminating the bailment.</p>

<p>Under Pub. Stat. R. I. cap. 189, § 1, providing that 11 the estate of every deceased person shall be chargeable with . . . the funeral charges of the deceased,” the necessary funeral expenses of a woman, who at the time of her death was a married woman, are properly chargeable to her estate.</p> <p>A creditor of an intestate decedent gave to the administratrix a receipted bill for his debt, saying that he by so doing intended to present the amount of the receipt to the adminis-tratrix personally, not to discharge the estate.</p> <p>Heldy that the administratrix could charge the estate with the amount of the receipt.</p> <p>An administrator may charge in his account against the estate the amount of a debt due to 'him from his intestate, provided such charge does not exceed the personalty of the estate.</p> <p>Jurisdiction to settle an account of personal assets does not extend to the allowance of charges beyond the amount of such assets.</p>

<p>A. sued B. and attached B.’s funds on deposit in a bank. The bank in its disclosure as garnishee showed that the deposit was in the name of “ B., agent,” that it knew nothing of any principal for whom B. was agent, that B. had never made known any principal.</p> <p>It appearing that no one had as principal ever claimed the deposit either before or after the garnishment:</p> <p>Eeldi that the bank was chargeable as garnishee of B.</p>

<p>A. sued B. in assumpsit for services rendered, and attached B.’s estate and interest in certain realty and personalty. B. pleaded the general issue, whereupon C., a mortgagee or trustee of B. under a trust deed for the benefit of B.’s creditors given before the suit was begun, filed in the suit pleas of the general issue and of the statute of limitations. A., with B.’s concurrence, ashed the court to strike out these pleas filed by C.</p> <p>Held, that the pleas should be stricken out.</p> <p>Held, further, that a judgment against B. would not conclude C. as trustee.</p> <p>Held, further, that A.’s claim under the trust deed must be a claim existing when the deed was delivered, and could not rest on a judgment against B. recovered since, and that A.’s claim against C. under the trust deed was, so far as B. and C. were concerned, distinct from A.’s claim against B. existing prior to the deed.</p> <p>Held, further, that if the statute of limitations would bar A.’s claim against B., still A.’s equitable claim under the trust against C. was not subject to the statute.</p> <p>Held, further, tiiat C. could not defend the suit, merely because he, in defending the suit, would defend the trust property attached.</p> <p>Held, further, that the court would allow C. to defend if fraud or collusion should be shown on_the part of A. and B.</p>

Case stated for the opinion of the court under Pub. Stat. R. I. cap. 192,. § 23, as to tbe dower right of Sarah J. Durfee under the following will: “ Know all men by these presents that I, Wanton Durfee, merchant, of the city and county of Providence and State of Rhode Island, being of sound disposing mind and memory, do hereby make and publish this as and for my last will and testament. “ First.

<p>In equity proceedings A. filed a petition for leave to become a party complainant, claiming; to have been a stockholder in a corporation merged in the respondent corporation. No order was ever made on this petition.</p> <p>Meld, that A. never became a party to the suit.</p> <p>Held, further, that A. could not file a petition for a rehearing of the suit : his proper course being to petition for leave to file a petition for a rehearing.</p> <p>Held, further, that A., neither having been a party to the suit nor being in privity with a party, could not petition for leave to file a bill of review, his proper course being to file an original bill in the nature of a bill of review.</p> <p>Before leave will be given to file a bill of review the court must be satisfied that new matter has come to the knowledge of the petitioner which could not have been used at the hearing and which would probably have changed the decision.</p>

<p>Pub. Laws R. I. cap. 315, § -i, of April 21, 1882, provide :</p> <p>“ Whenever dower has been set out ... or when said widow shall be entitled by decree of court to her perception of rents and profits, said court (ú e. the Supreme Court) may, in lieu thereof, on application of the owner of said estate in fee, and after notice to said widow, authorize said owner to give security satisfactory to said court, to said widow, for the payment of the annual value of the dower so set off . . . and upon depositing said security with the clerk of said court, said owner shall be forthwith entitled to the full possession of said estate, relieved of any charge or lien on account of said dower right, except such as may be made by nature of said security, as against said widow and all persons claiming to hold the same by, through, or under her.” . . .</p> <p>Held, that this provision, so far as it relates to dower assigned before its enactment, is unconstitutional and void.</p>

<p>Bill IN Equity for specific performance. On demurrer to tbe bill.</p>

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

<p>An indictment, following the words of the statute, charged the defendant with keeping or maintaining a house “used for the illegal sale or keeping of intoxicating liquor.’*</p> <p>Held, that the charge must be construed to mean keeping for such illegal use or with knowledge that the house was so used.</p> <p>At the trial upon this indictment the presiding justice allowed one of the defendant’s witnesses to be asked in cross examination if the witness did not tell A., a witness for the State, that if A. would mix up the testimony in F.’s case F. would give A. twenty dollars.</p> <p>Held, error, the inquiry being irrelevant, as no connection appeared between F.’s case and the case on trial.</p> <p>The presiding justice instructed the jury, “He, the defendant, is presumed to know the kind of business which was openly being carried on in his establishment by his servants and agents. The defendant admitted that he was the keeper of the place, and that he was there personally in charge of it during the time covered by the indictment. He is not only presumed to know but he is responsible.”</p> <p>Held, error, the knowledge and responsibility of the defendant being for the jury to infer from the evidence, not for the court to determine as a matter of law.</p>

<p>A ■writ of replevin omitted the words “ original writ ” from the clause “ provided the same is not taken, attached, or detained upon original writ, mesne process, warrant of distress, or upon execution as the propel^ of the said ,” in the form prescribed by Gen. Stat. R. I. cap. 395, § 16.</p> <p>Held, that this defect could not be objected to by the plaintiff in replevin.</p> <p>Held, further, that a judgment for return and restoration was good notwithstanding the defect.</p> <p>One of the principals to a replevin bond was a married woman and a minor.</p> <p>Held, that her coobligors could not take advantage of her disability to avoid the bond.</p> <p>Held, further, that only the married minor and the defendant in replevin could take advantage of her disability.</p> <p>A deed signed by B. with A.’s name in A.’s presence and under A.’s direction, is the deed of A.</p> <p>If one whose name is signed by another to a deed so far acknowledges the deed as to induce third persons to act on it as his, he may, without evidence in writing of an estoppel, be held precluded from subsequently denying the deed.</p>

<p>The charter and by laws of a savings bank contained a provision that “no person shall receive any part of his principal or dividend without producing the original book that such payment may be entered thereon.” A. making a deposit assented to the by laws and received a deposit book.</p> <p>After the death of A. his administrator was unable to obtain the deposit book from A.’s family, and on the refusal of the bank to pay A.’s deposit without a presentation of the book, brought suit against the bank.</p> <p>Held, that the administrator was entitled to recover.</p> <p>Held, further, that as no claim to the deposit had been made by any third person, the administrator should not be compelled to give a bond of indemnity to the bank.</p> <p>Held, further, that the administrator could maintain his action without first having A.’s family examined under Pub. Stafc. R. I. cap, 185, §§ 18,19.</p>

<p>A sheriff who suffers an arrested debtor to escape is liable in his official character and not as bail. Hence, if compelled to pay the debt in consequence of his default, he lias no remedy against the debtor.</p> <p>An officer who allows one lawfully arrested to go at large without taking bail suffers the escape of such person.</p>

Bill IN Equity to establish a lien, for an account and foreclosure, and for an injunction. On motion for the appointment of a receiver of tbe Quidnick Company’s estate. The former proceedings in this case are reported in 13 R. I. 442 sq. The circumstances of the present hearing are detailed in the concurring opinion of CarpENTEB, J.

<p>A disabilit}' to sue “happening by an invincible necessity” is like a disability expressly excepted from the statute of limitations.</p> <p>Under the Revised Statutes of the United States, §§ 5105, 5106, a creditor, after proving his claim against the bankrupt, may bring action upon the claim by writ of summons, and may, unless stayed by an order of the court in bankruptcy, prosecute the action to any stage short of final judgment.</p> <p>Hence, when a creditor proved his claim in bankruptcy, but did not bring suit until a discharge in bankruptcy had been refused:</p> <p>Held, that the statute of limitations was a good defence.</p>

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

<p>Assumpsit. Heard by the court, jury trial being waived.</p> <p>The facts are stated in the opinion of the court. The defendant firm was composed of Clarence Stanhope and Thomas W. Freeborn.</p>

<p>Pub. Stat. R. X. cap. 127, § 5, as amended by Pub. Laws R. I. cap. 276, § 1, of March 23, 1882, provide:</p> <p>ubTo person shall sell or exchange, or have in his possession with intent to sell or exchange, or offer for sale or exchange, adulterated milk or milk to which any foreign substance has been added.”</p> <p>Pub. Laws R. I. cap. 276, § 3, of March 23, 1882, provide:</p> <p>“In all prosecutions under this act, if the milk shall be shown upon analysis to contain more than eighty eight per centum of watery fluids, or to contain less than twelve per centum of milk solids, or less than two and one half per centum of milk fats, it shall be deemed for the purpose of this act to be adulterated.”</p> <p>Held, that § 3 above recited did not establish a rule of evidence, but defined a new offence.</p> <p>Held, further, that the offence lay in the intent to sell or exchange such milk, not in possessing it.</p> <p>Held, further, that § 3 above recited was constitutional and valid.</p>

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

<p>A policy of insurance against fire was issued on articles of furniture described as “all contained in house No. McMillen Street, Providence, R. I.”</p> <p>The insured, without the knowledge of the insurer, removed these articles to a house in another street, where they were consumed.</p> <p>Meld, that the statement of the locality of the furniture was to be construed as a continuing warranty.</p> <p>Meld, further, reversing Lyons v. Providence Washington Insurance Company, 13 R. I. 347, that the insured could not recover.</p>

<p>When a statute allows land to be taken for public uses, or an act to be done which causes injury, and provides a remedy or mode of proceeding to recover compensation or damages, the remedy or mode of proceeding so provided is exclusive.</p> <p>Pub. Laws R. I. cap. 640, of March 8, 1866, empowered the city of Providence to take land for public water works, and provided that the owner of condemned land might recover compensation by filing his petition in the Supreme Court “ at any time within, but not after, one year from the time of the taking,'” if he did not agree with the city upon the price of the land.</p> <p>A., the owner of land taken, permitted the statutory time to elapse without agreeing upon the price, and then brought assumpsit against the city, declaring, first) on an implied promise to pay him just compensation ; second, on a promise to pay the value of the land with interest; and third) on a promise to pa}' for the permissive taking and use of the land. The city pleaded the statute, the failure to agree for the price, and the lapse of the statutory time in bar of the suit. To this plea A. demurred.</p> <p>Held) that the plea was good and that A. was remediless.</p> <p>Held, further, that, the statutory remedy was exclusive.</p> <p>Inman v. Tripp, 31 R. I. 520, explained and distinguished.</p> <p>Held) further, that an express promise on the part of the city provable under the pleadings must have been general in its terms and nugatory, because without consideration, whether made during the year or after its expiration.</p> <p>Held) further, adopting the language of Lord Denman in Beaumont v. Reeve, 8Q. B. 483, that “an express promise cannot be supported by a consideration from which the law could not imply a promise, except when the express promise does away with a legal suspension or bar of a right of action, which, but for such suspension or bar, would be valid.”</p> <p>Held) further, that on the expiration of the year the obligation of the city to pay was extinguished by its own natural determination, not by force- of an}’ interposed legal bar or suspension.</p>

<p>An owner of land may enter on it and expel with reasonably necessaiy force a wrongful occupant without being liable in trespass guare clausum, or for assault and battery, or for injury to the occupant’s goods, even if the force used would subject the owner to an indictment at common law for breach of the peace, or under the statute for forcible entry.</p> <p>When it appears in trespass vi et armis brought by husband and wife that the action is clearly for the wife only, allegations in the declaration proper to an action by the husband only and improper in the action brought may be rejected as surplusage.</p> <p>The replication de mjuriá su&propria is good to a plea of excuse, but bad to a plea of right. Query, whether this distinction is not over refined.</p> <p>When a replication violated this rule, but was complete though inexplicit and was demurred to generally :</p> <p>Seld, that the demurrer should not be sustained.</p>

<p>In covenant brought against the grantor of a deed containing full covenants of warranty by the grantee, who had been evicted by the holder of a paramount title, the parties having .agreed on the value of the land in question, the eviction having occurred within the period of limitation for action of trespass, which was four years, and no action for mesne profits having been brought:</p> <p>Held, that the plaintiff grantee was entitled to interest on the agreed value for four years prior to the entry of his judgment.</p> <p>The grantor had been notified to defend the ejectment suit, but neither defended nor notified the grantee that he preferred to make no defence.</p> <p>Held, that the grantee should recover his reasonable expenses and counsel fees paid in defending the title.</p>

<p>Devise as follows:</p> <p>“ Second. I give and bequeath unto my beloved wife M. G. the lot of land with buildings and improvements thereon, situated on Lockwood Street, in the city of Providence, for and during her natural life, and the expenses of keeping the same in repair, together with, the taxes on the same, shall be paid out of my estate by my executors hereinafter named, and at her decease it is my wish that the same may be given to my two sons, F. E. and A. A., subject to the same conditions as the property mentioned in clause fourth of this my last will and testament.”</p> <p>“Fourth. I give and devise unto my beloved wife M. G. the income arising from one undivided quarter part of all my estate, real, personal, and mixed, and to my three sons, G. E., A. A., and E. E., the income arising from the remaining three quarter parts of all my estate, real, personal, and mixed, until my youngest son then living shall have attained the age of forty years. At the expiration of said time it is my will that all my property, real, personal, and mixed, shall then be divided into four equal quarter parts, and that my said sons, G. E., A. A., and F. E. shall each respectively receive one equal quarter part of said property to them, their heirs, and assigns forever. I give and devise the remaining quarter part of all my property at the expiration of said time to my beloved wife M. G., for and during her natural life, and at her decease it is my wish that said quarter part of the the income (if she should decease before the youngest living son shall have attained the age of forty years) shall be equally divided between my two sons, A. A. and F. E., subject to the same conditions as the income or property herein devised and bequeathed, and to the further condition on the part of my said son G. E. that he shall sell or otherwise dispose of the trotting or sporting horse now owned by him, and shall not buy or replace said horse by another for the purpose of trotting or sporting, and shall attend strictly to his business. And in case he shall not observe and obey these my wishes, he shall not have or draw the said income or have any part thereof, but said income shall be divided equally among my other heirs until the youngest son shall have attained the age of forty years, but this is not to interfere or encroach in any way upon son's (G. E.) quarter part of the property.”</p> <p>Held, that under the second clause A. A. and F. E. took vested remainders in the Lockwood Street property.</p> <p>Held, further, that under the fourth clause G. E., A. A., and F. E. took each a fee simple estate in an undivided quarter part of the realty devised.</p> <p>Held, further, that the death of all the sons before any one of them reaches the age of forty would not defeat the remainders, but would merely accelerate their falling into possession.</p> <p>Query, whether the executors took any implied trust in the realty.</p> <p>Where an absolute property is given and a particular interest given in the mean time, as until the devisee shall come of age, the attainment of majority is not a condition precedent, but denotes the time when the remainder falls into possession.</p> <p>The devise of the rents and profits or of the income of land is in legal effect a devise of the land.</p>

<p>A., dealing in cotton, brought assumpsit against B. upon a balance of account for cotton delivered, and upon a promissory note given by B. to A. for cotton furnished to B. No plea in set off was filed, but B. claimed a right to recoup his damages for the delivery of inferior cotton.</p> <p>that the question of recoupment was confined to the cotton covered by the account and the note.</p> <p>Held) further, that the question of recoupment was not affected by the existence of the note.</p> <p>Held, further, that in Rhode Island a warranty is not inferable from the price paid.</p> <p>There being no evidence to show:</p> <p>Either by what representations, bargain, grade, or sample any particular lot was sold; therefore, nothing to prove any warranty as to the subject of the suit;</p> <p>Or that of poor cotton at B.’s mill any came from lots warranted by A., or did not correspond in quality to that bought from A. by B.; therefore, nothing to show that a warranty if given had been broken;</p> <p>Or that any warranty or breach of warranty related to the cotton in suit:</p> <p>Held) that the claim for recoupment could not be allowed.</p> <p>In the state of evidence above given:</p> <p>Held) that no fraudulent collusion of B.’s treasurer and purchasing agent with A. to receive poor cotton could be inferred from the facts shown.</p> <p>Held, further, that no fraudulent collusion of B.’s treasurer with A. could be inferred from the fact that A. sold the cotton at a price above the market rates.</p> <p>Dealing in “futures” defined.</p> <p>Note. —The above case was heard by Stiness, Tillinghast, and Cak-pentek, JJ.</p>

<p>Assumpsit. On plaintiff’s motion to strike out tbe conclusion of tbe equitable plea.</p> <p>In this case the plaintiff declared in the usual form upon a promissory note. The defendant alleged under Pub. Stat. R. I. cap. 204, § 33, by way of equitable plea, certain agreements with the plaintiff, and concluded his plea as follows:</p> <p>“ But now the defendant avers that the plaintiff, contrary to the truth, denies that he ever made the said agreement with defendant, and refuses to perform the same upon his part, and pretends and claims that the defendant is liable on said note now in suit in this case, and avows his intention to prosecute the same to final judgment against the defendant, all which denials, claims, pretences, and intentions are contrary to equity and good conscience ; and forasmuch as the defendant is remediless except by an appeal to the equitable jurisdiction of the court under the statute aforesaid, he prays the court that the plaintiff may be required to answer the premises but without oath, that he may be enjoined from any attempt to obtain judgment upon the note now in suit, and that upon the payment by the defendant to the plaintiff of the sum of $3,500, the plaintiff may be required to release and discharge the defendant of and from all liability upon the note now in suit in this case, and to cancel said note, and for such other relief as to equity and justice may appertain.”</p> <p>The defendant, subject to his equitable plea, also pleaded the general issue.</p> <p>Pub. Stat. R. I. cap. 204, § 33, is recited in the opinion of the court.</p> <p>Pub. Stat. R. I. cap. 192, § 16, is as follows:</p> <p>“ No cross bill shall be necessary in any suit in equity, but the defendant in any such suit may avail himself of any matter in defence which would be open to him upon a cross bill, by setting up such matter in his answer, and the court, upon the hearing of the case, may make any decree for or against either party, interlocutory or final, warranted by the merits of the case, that it could make in such suit had a cross bill been filed therein.”</p> <p>The plaintiff asked the court to strike out the concluding portion, above given, of the plea.</p>

<p>Residuary testamentary provision as follows:</p> <p>“ Whatever may remain of my estate after the of the charges herein made thereon I give, devise, and bequeath to my said wife M. A. K., and to my several children, and my will is, and I hereby order and direct my executrix and executors and trustees, to add the same to the legacies of my said wife and children herein given to them, in proportion to the legacies I have herein given them; that is, my said wife shall have five times as much thereof as either one of my said children, and the sums which pass under this clause of my will shall be paid to them or to their trustees in the same manner as the legacy of one hundred thousand dollars is to be paid.”</p> <p>The testator in a previous clause of his will gave to each of his children the sum of one hundred thousand dollars, and provided, “ but said legacy shall not be paid to any child until that child shall have arrived at the age of twenty five years.</p> <p>Held) that the gifts to the widow and children vested on the testator’s decease.</p> <p>Held) further, that “after the of the charges herein made” might be construed “subject to the charges.”</p> <p>Held, further, that the residue might be divided and paid to the widow and to the children above the age of twenty five years and appropriated by designation to the children under that age.</p> <p>Held, further, that the divided shares so appropriated to the younger children should each profit by its own gains and bear its own losses.</p> <p>It appearing that the residue, if held undivided, would be chargeable: first, with the legacies till paid; second, with six per centum interest thereon; third, with all the taxes of the estate ; fourth, with the expenses of the trust; so that each child should receive $100,000, with his unpaid balance of interest and be entitled with the other legatees to his share of the residue:</p> <p>'Held, that in case of division and appropriation a guaranty fund should be created either by reservation, from the residue, or by security from the residuary legatees taking their shares, to provide for the interest, taxes, and expenses.</p> <p>Held, further, that each appropriated share was by the provisions of the will entitled absolutely to six per centum interest, and was chargeable proportionately for taxes and trust expenses.</p>

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

<p>A replevin bond was signed by one of three copartners “for and in behalf ” of himself and his copartners, as principals, and by two sureties. The copartners were the plaintiffs in replevin.</p> <p>Held, that the bond was sufficient under Pub. Stat. R. I. cap. 235, § 3.</p>

Bill in Equity for an injunction and an account. Tbe complainants filed this bill to enjoin the respondents from selling medicine in packages made up and labelled in imitation of those used by the complainants, and after obtaining a. preliminary injunction claimed that tbe respondents bad violated tbe injunc-tive order, and moved for an attachment against them for contempt of court.

<p>A bastardy complaint under Pub. Stat. R. I. cap. 73, made May 6,1882, charged that one “C., an unmarried woman, is with child, which, if born alive, may be a bastard, and that said child was begotten on or about October 6,1881,” and prayed that the defendant, the putative father, “ may be apprehended and held to answer this complaint and be otherwise dealt with according to law.” On this complaint the defendant was arraigned May 7, 1882, and after various continuances was found guilty by the Justice Court, September 1, 1882. He appealed to the Court of Common Pleas, and the jury returned a verdict of guilty. On exceptions to the rulings of the presiding justice :</p> <p>Held, that the proceedings were properly carried on upon the original complaint.</p> <p>Held, further, that the birth of the child did not make a new complaint necessary as the child was living.</p> <p>Evidence was admitted before the jury to prove that the child was born alive and that it was still living.</p> <p>Held, that the evidence of the birth was properly admitted because bearing on the question of pregnancy; that evidence of the child being born alive was properly admitted because possibly pertinent to the question of paternity; that evidence of the child being still alive was irrelevant to any issue before the jury, but was manifestly of no consequence.</p> <p>The mother testified that conception took place late in October or early in November, 1882.</p> <p>Held, that the variance of proof from the allegations in the complaint was immaterial.</p>

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

<p>Bile isr Equity to foreclose a pledge. On motion for the allowance of issues to a jury.</p>

<p>In the Constitution of Rhode Island, article 2, sections 1 and 2, the word “residence” means domicil or home, not the place of actual habitancy.</p> <p>Hence, when a qualified citizen had his domicil in the town of L., but for temporary purposes was residing in another town :</p> <p>Held, that he had the right to vote in the town of L.</p> <p>Domicil is not changed by mere change of habitancy without an intent to change the do-micil.</p>

<p>In a tort action against several defendants jointly charged, the verdict cannot he apportioned among those found guilty, each being liable in solido without reference to the degree in which he contributed to the tort.</p>

<p>An omission to except to the rulings of a judge waives all objection thereto.</p> <p>That a judge, in answer to a written request for instructions sent to him from the jury room, returned his reply in writing when neither the party litigant nor his counsel was in the court room is no reason for granting a new trial to such party.</p>

<p>In assumpsit by A. against B. the defendant pleaded in set off a claim which he supported by the record of a prior judgment recovered against a third party by “A., trustee for B.,” the proceeds of which B. had never received from A. A. denied the trust, and in explanation stated that the former action was so brought by arrangement with B. in order to keep from A.’s creditors the moneys recovered. The presiding justice charged the jury that by the record the prior judgment prima facie belonged to B., and that A. was estopped from setting up his fraudulent plan against the creditors and claiming the money.</p> <p>Held) error, as A. did not admit a trust and set up fraud to defeat it, but denied the trust and stated the fraud in explanation of his denial.</p>

Bill IN Equity to construe a will. Tbe bill in equity in this case was filed by the successors in trust of the testator’s appointees, as trustees under the last will and testament of Rufus Greene, late of Providence, against tbe beneficiaries under tbe will, to obtain tbe instructions of tbe court in administering tbe trusts. Tbe facts involved in tbe case, wbicb was beard on bill and answers, are stated in the opinion of tbe court.

<p>Bill in Equity to foreclose a mortgage. The facts involved are stated in the opinion of the court.</p>

Exceptions to the Court of Common Pleas. This action was trespass on the case brought by the plaintiff against the defendant, as pound keeper of the town of Lincoln, for the unlawful detention of the plaintiff’s horse. The case was brought before the Justice Court of the town of Lincoln, was carried to the Court of Common Pleas by the plaintiff’s appeal, and came before this court on the plaintiff’s exceptions. Pub. Stat. R. I. cap. 108, §§ 7-9, are as follows : “ Sect. 7.

<p>Goods were sold by A. to B. which, owing to a latent defect, proved to he unmerchantable. On discovering the defect, B. returned the goods and A. refused to receive them. The bill for the goods which B. had paid bore a notice in red ink, “All claims for damage must be made immediately.”</p> <p>In assumpsit by B. against A. on A.’s implied warranty that the goods were merchantable:</p> <p>Held, that the notice was not a part of the contract of sale, and did not, therefore, affect A.’s implied warranty that the goods were merchantable.</p> <p>Held, further, that B. was entitled to claim his damages from A. within a reasonable time after discovering the defect.</p>

<p>The charter of a cemetery corporation provided that “ the real estate held by this corporation at their cemetery, for cemetery purposes, shall not exceed two hundred acres of land ; and all the property of this corporation .... shall be forever exempt from all taxes and assessments.” . . . The charter also gave to the corporation “all the powers and privileges granted in and by chapter one hundred and twenty five of the Revised Statutes,” among which was the power of “taking, holding, transmitting, and conveying property, real or personal.”</p> <p>The corporation, in addition to its cemetery lands proper, had acquired title to some old burial grounds in the city of Providence, which it had been clearing up by the removal of graves and the acquisition of burial rights in order to sell the grounds and increase its funds. These grounds had been assessed for a sewer by the city of Providence. The corporation paid the assessment under protest and brought suit for its reimbursement.</p> <p>Held, that the corporation owned the old burial grounds for purposes auxiliary to its corporate ends, and, therefore, rightfully.</p> <p>Held, further, that the entire property of the corporation was free from taxation.</p> <p>Held, further, that sewer assessments, although they did not exist when the charter was granted, were akin to street assessments, which did exist.</p> <p>Held, further, that the corporate realty was exempt from sewer assessments as well as from other assessments.</p> <p>Held, further, that the plaintiff should recover.</p>

<p>A., a workman in the employ of B., was injured by the break of an elevator chain and the fall of the elevator in B.’s machine shop. A.’s business was to load the elevator on the lower floor and unload it on the upper. A staircase near the elevator connected the two floors, and A. was injured while riding with his load on the elevator.</p> <p>It appearing that the chain had broken some six weeks before and had been repaired, and the evidence being conflicting whether B.’s superintendent had been notified of the break, and it also appearing that the ratchets to arrest the fall of the elevator were not in working order:</p> <p>Held, that the question of B.’s negligence was for the jury.</p> <p>Held, further, that B. was not relieved from liability if the defective condition of the chain and ratchets arose from the negligence of one of A.’s fellow workmen, whose duty it was to care for them. The master cannot relieve himself by delegating to another his obligation to keep the machinery operated by his servants reasonably safe.</p> <p>It appearing that the workmen habitually rode on the elevator, there being no evidence that A. had been warned not to do so, and it not appearing that the defects in the chain were manifest or the defects in the ratchets.</p> <p>Held, that the court could not, for A.’s alleged contributory negligence, set aside a verdict rendered in his favor.</p>

<p>A statute provided that payments made and securities given by a debtor, insolvent or in contemplation of insolvencj', within sixty days of the commencement of proceedings against him for the appointment of a receiver of his property, with the view of preferring any creditor upon a preexisting debt or any person under liability for such debtor, should' be void as to all creditors receiving the same who had reasonable cause to believe that the debtor was insolvent when such preference was given. If the preference was by mortgage the sixty days were to run from the time of its record.</p> <p>H. received, February 26, a mortgage from W. which was not recorded till April 12. W., March 19, made an assignment. April 19, H. replevied the assigned property from the assignee, and, May 7, the assignee instituted proceedings against W. which resulted in the appointment of the assignee as receiver of W.’s property.</p> <p>In the replevin suit, on exceptions:</p> <p>Held, that the assignee under proper pleadings could avoid the mortgage by showing that it was made by an insolvent debtor to prefer a creditor within sixtj' days before the commencement of proceedings for the appointment of a receiver, the creditor having reasonable cause to believe the debtor insolvent.</p> <p>Held, further, that the mortgage if made in these circumstances was ab initio void under the statute.</p> <p>Held, further, that the proceedings for the appointment of a receiver, though begun after the inception of the replevin suit, defeated the title of the plaintiff in replevin by rendering his title void ab initio.</p> <p>Held, further, that the defendant in replevin, whatever might be his title under the assignment, could as against the plaintiff show the invalidity of the latter’s mortgage title.</p> <p>The defendant pleaded:</p> <p>1. Property in himself and not in the plaintiff.</p> <p>2. Property in himself as assignee and not in the plaintiff.</p> <p>3. Non cepit.</p> <p>4. His appointment as receiver setting forth the proceedings, and property in himself as such.</p> <p>The plaintiff demurred to the 1st, 2d, and 4th pleas.</p> <p>Held, that the demurrer to the 4th plea was properly sustained.</p> <p>The demurrers to the 1st and 2d pleas were overruled, whereupon the plaintiff replied reaffirming his title under the mortgage, and the defendant rejoined alleging the invalidity of the mortgage, and setting forth the reasons of the invalidity. The plaintiff demurred to the rejoinders, and the court sustained the demurrers.</p> <p>Held, that the court erred in sustaining these demurrers.</p> <p>Held, further, that the replication was bad in that it did not simply reaffirm title and tender issue.</p> <p>There being thus nothing left but the plea of non cepit, the case was heard on the question of property in the replevied goods and the jury found the property to be in the plaintiff.</p> <p>Held, that the trial and the exceptions taken in its course were abortive.</p> <p>Held, further, that the court would order the pleadings to be amended and remand the case for trial under the amended pleadings.</p>

<p>Jurisdiction to award alimony in divorce proceedings is purely statutory. Hence when a judgment for alimony has been made without reserve, and the time within which a new trial can he had has elapsed and there is no statutory provision for modifying the judgment, the judgment is final and cannot be changed.</p> <p>C. obtained in 1879 a divorce a vinculo from her husband G., and a decree awarding her one half the rents of G.’s realty for her life and one half G.’s personalty, as alimony; also one half the rents of G.’s realty and one half G.’s personalty as a provision for her children by G.</p> <p>C. subsequently married again, and in 1883 G. petitioned for a reduction in the amount of alimony, claiming that C.’s husband was well able to support her, and that at the trial of the divorce petition G. was absent from the State, and through accident and mistake was not present.</p> <p>Held, that the court had no jurisdiction to consider the petition.</p>

<p>Courts of probate in settling an administration account ought not to include the payment of legacies or the distribution of the surplus.</p> <p>They should merely adjudicate charges against the estate arising from the payment of the decedent’s debts, statutory allowances to the widow, &c., funeral expenses, and expenses of administration. In cases of intestacy, but not in cases of testacy, they should then make an order of distribution of the surplus found, if any, and here their jurisdiction properly ends.</p>

<p>Under an ancient practice in Rhode Island having the force of law, a sheriff has, incident to his power to sell under a levy, power to adjourn the sale for good cause, duly advertising the adjournment.</p> <p>This power of adjournment is not limited to the case of e< accidents or extraordinary storms ” by Rev. Stat. R. I. cap. 195, § 12; Gen. Stat. R. I. cap. 212, § 18; Pub. Stat. R. I. cap. 223, § 13.</p> <p>Hence when a sheriff’s return showed that on June 8, being unable to complete an execution sale, he adjourned it to July 27, on which day, the adjournment having been advertised by him for one week next prior thereto, he sold and conveyed the property levied on: JSeldj that his action was legal and the sale good.</p> <p>Reynolds v. Soxie, 6 R. I. 463, affirmed.</p>

Exceptions to the Court of Common Pleas. This action was trespass on the case, brought in the Court of Common Pleas, charging the defendant with falsely representing himself to be a person of good credit and safely to be trusted in order to induce the plaintiff to make sales of goods to him, whereby the plaintiff was deceived, made sales on credit, and has failed to obtain payment.

EXCEPTIONS to the Court of Common Pleas. The plaintiff in the Court of Common Pleas declared in assump-sit against the defendant, “ for that the defendant, at said Providence, on the twenty seventh day of November, A. D. 1880, undertook and promised to and with the plaintiff as follows, to wit: “For and in consideration of the agreements hereinafter contained mentioned, I, George H. Hill, of the city and county of Providence and State of Rhode Island, hereby sell to George A.

<p>Statement of the legal rules governing the action of a pledgee who forecloses without legal j, process.</p> <p>These rules may be waived by the pledgor, and a violation of them cured by the pledgor’s ratification.</p> <p>Hence, when it appeared that a pledgor had by parol abandoned the pledge to the pledgee, was present at the sale of the pledge, which had been advertised at “public auction,” and with full knowledge made a bid for it, and ratified the sale by drinking with the pledgee and the purchaser in celebration of the sale, and that the sale took place in a room which, though not usually open to the public, was so open when the sale occurred:</p> <p>On a bill to redeem filed four years after the sale:</p> <p>Held, that the complainant pledgor could not have relief.</p> <p>Held, further, that the omission of the names of the pledgor and pledgee from the advertisement of sale was immaterial, the pledge being stock in a local corporation.</p> <p>The purchaser never paid for the stock, and soon after the sale transferred it to the pledgee.</p> <p>Held, that this questionable conduct would not in the circumstances sustain the bill, the purchaser and the pledgee both swearing that there was no previous understanding between them, and their veracity being unimpeached.</p>

<p>An assignment in good faith of wages to be earned under an existing contract is valid against a garnishment subsequent in time, provided the garnishee have such notice of the assignment as will enable him to disclose it in his affidavit and thus avoid being charged. Notice to the garnished debtor is necessary only for his protection.</p>

<p>Bill in Equity for an injunction. The premises in dispute are sketched upon the accompanying plat, and the questions at issue between the litigants are stated in the opinion of the court.</p>

<p>A., a trader, gave to B. a mortgage on his stock of goods. B., at the foot of the mortgage, signed the following memorandum:</p> <p>“I, B. the afore named, hereby appoint A. within named, to sell and dispose of the within named articles of personal property at public or private sale, and to replace with other property of like kind, and sell and dispose of such new stock in like manner as he may see fit.”</p> <p>Reid, that this memorandum could not as a matter of law be construed as making A. the agent of B. for the purchase and sale of goods, as it might equally well be construed a mere waiver of B.’s right to take possession of chattels sold in the ordinary course of business.</p>

<p>The improper admission of evidence which is merely cumulative to evidence properly admitted of an undisputed fact is no reason for a new trial.</p> <p>A. and B. were injured by driving into a pile of gravel in a highway, and brought suit against the town in which the highway was situated. Atthe trial a surgeon who treated them immediately after the accident testified that they “ smelled of liquor,” and that “he thought they had been drinking.” Another witness testified that he had been bathing their heads with rum.</p> <p>Held, that the evidence of this other witness was properly admitted.</p> <p>The pile of gravel had been accumulating in the highway during an afternoon. To establish the negligence of the town authorities, the plaintiff introduced in evidence the police regulations of the town 'which made it the duty of the police patrolmen to note and report without delay all obstructions in the street.</p> <p>Held, that the evidence was properly admitted. Had the police patrol performed its duty the obstruction could have been made innocuous.</p>

<p>Assumpsit. On demurrer to the plea.</p> <p>in support of the demurrer.</p> <p>I. An adjustment of a loss made in writing is only binding upon parties when made with full knowledge of all the circumstances, and intended by the parties to be absolute and final. 2 Phillips on Insurance, § 1815, and cases cited.</p> <p>The defendants set forth in their plea that there were certain facts, unknown to them at the time of making the adjustment, which tended to show that the alleged loss arose from the wrongful acts of the plaintiffs. The issue on the plea if traversed would be, not whether the facts set forth in the plea would conclusively establish that the loss arose from the wrongful acts of the plaintiffs, but whether such facts existed unknown to the defendants at the time of making the adjustment, and which might reasonably have operated on the mind of the defendants to have prevented the making of an unqualified adjustment, thereby concluding their liability under the policy.</p> <p>II. The objections to the form of the plea raised by the demurrer are immaterial; for whether sound or not, under our statute of amendments, Pub. Stat. R. I. cap. 210, § 4, the demurrer must be overruled. Marchante Trustee, v. The Valley Falls Baptist Church, 6 R. I. 24.</p>

<p>Bill IN Equity to enjoin an action at law. On demurrer to the bill.</p>

<p>A., who was of improvident habits and unskilled in affairs, applied to B., areal estate and mortgage broker, to procure a loan, having previously had loans from him. B. prolonged the negotiations for a month, objecting to the security offered, which was an undivided interest worth some $10,000 in inherited realty, and finally loaned A. $2,000 instead of $1,000, the sum originally requested by A., taking from A. a note in the following terms secured by a mortgage on his undivided interest in the inherited lands.</p> <p>|? ¿ j§ 3 'g Jj | a m</p> <p>$2,000. November 18,1879.</p> <p>Six months after date, for value received, I promise to pay William H. Hall, or order, Two Thousand Dollars with interest at the rate of five per cent, per month, payable monthly in advance till said principal sum is paid, whether at or after maturity, and all instalments of interest in arrear to carry interest at the same rate till paid.</p> <p>The note was indorsed of its date, Beceived 1 month’s interest to December 18, 1879, $100.00.</p> <p>When this transaction took place a statute allowed parties to make their own agreements as to interest, and prescribed six per cent, in the absence of any agreement.</p> <p>Subsequently A. filed a bill in equity against B. to redeem the mortgage and to reduce the rate of interest.</p> <p>Meld, that in the relation of the parties B. had taken an unconscionable advantage of A., and that A. was entitled to relief.</p> <p>Meld, further, that as the note was drawn by B. with careful provision for its running beyond maturity, as the mortgage did not stale the interest of the note so that the rate of interest did not appear of record, and as B. never demanded payment, B. could not urge against A.’s prayer for relief that the amount due for interest was largely due to A.’s neglect in paying.</p> <p>Meld, further, that as A. admitted his intention to pay five per cent, per month for the first six months, B. should be allowed this interest for this time.</p> <p>Meld, further, that the case should be referred to a master to fix a reasonable rate of interest, not less than six per cent., on the note and unpaid instalments of interest, and to report the amount due.</p> <p>Meld, further, that as many facts bearing on the case were put in evidence without objection, although insufficiently charged in the bill, the complainant should be allowed to amend, if necessary, on proper terms.</p>

<p>Bill IN Equity for partition. On demurrer to the bill.</p>

<p>J. was doing business under the name of the P. W. Co. Moneys due to B. were attached by a writ against B. directing the attachment of the debt due from the P. W. Co. to B., and describing J. as the treasurer of the P. W. Co.</p> <p>The garnishee’s affidavit admitted $60.68 due, and disclosed the identity of the P. W. Co. and J". The minute of judgment was, “Trustee charged for $60.68.”</p> <p>Subsequently the same moneys were attached by another creditor of B. by a writ against him garnishing J.</p> <p>Held, that J. was properly chargeable as trustee in the latter suit.</p>

<p>A., the owner of certain realty, conveyed three undivided fourth parts of it to B., C., and D., one fourth to each. These deeds were not recorded, and A. subsequently sold the whole realty to another party, made conveyance of it, and received the price of it. All of which was done by agreement between A., B., C., and D.</p> <p>B. soon after died, and B.’s widow brought assumpsit against A. to recover the value of her dower in B.’s undivided quarter of the land out of the purchase money received by A.</p> <p>Held, that the action could not be maintained.</p> <p>Held, further, that A. was liable to account to B.’s administrator not to B.’s widow.</p>

<p>Exemption from jury duty is not a disqualification to act as juryman. It is a personal privilege which may be claimed or waived.</p>

<p>INDICTMENT for murder. On demurrer to the replication.</p> <p>At the August Term, A. D. 1883, of the Supreme Court for the county of Kent, an indictment was found by the grand jury charging the defendant with murder. The indictment was preferred by the attorney general, and was signed by fifteen grand jurors. The defendant pleaded in abatement1 of the indictment that one of the grand jurors, naming him, was not a legal juror, but was taken on venire, not being “ qualified to vote upon any proposition to impose a tax, or for the expenditure of money,” in the town of his residence where he was drawn, nor in any town in said county. To this plea the State replied that the name of the grand juror was upon the voting list of property voters in his town, and was placed there by the board of canvassers. The defendant demurred to the replication, and the State joined in the demurrer.</p>

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

EXCEPTIONS to the Court of Common Pleas. An indictment was found against the defendant as follows : “ Providence Sc.

<p>The remedy on a mortgage is not lost because a personal action on the mortgage note is barred by the statute of limitations. The remedy on the mortgage is generally available until payment of the note is shown, or may be presumed, or until the mortgagor has remained in possession for twenty years without recognizing the mortgage.</p> <p>A bill in equity was brought to cancel a mortgage and to enjoin proceedings under it, because the mortgage note was barred by the statute of limitations, because the mortgagee’s delay had caused the loss of the mortgagor’s defensive evidence by the death of witnesses, and because the note had been paid in money and services.</p> <p>Eeld) that the bill could not be maintained; the above named period of twenty years not having run out, the mortgagor being equally with the mortgagee cognizant of the loss of evidence, suit having been brought on the note to which the mortgagor pleaded dilatory pleas, and the evidence showing that the note was not paid in money and that the services gave only a claim in set off which was barred by the statute of limitations.</p> <p>Eeld, further, that no costs should be allowed, the respondent having filed a demurrer which was overruled and having delayed to enforce the mortgage.</p>

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

<p>Exceptions to tbe Court of Common Pleas.</p> <p>An indictment was found against the defendant as follows:</p> <p>“ Newport Sc. At the Court of Common Pleas of the State of Rhode Island and Providence Plantations holden at Newport, within and for the county of Newport, on the third Monday of May, in the year of our Lord one thousand eight hundred and eighty three.</p> <p>“ The grand jurors of the State of Rhode Island and Providence Plantations, and in and for the county of Newport, upon their oaths present:</p> <p>That John McMahon, of Newport, in said county, yeoman, on the sixth day of May, in the year of our Lord one thousand eight hundred and eighty three, with force and arms at Middletown, in the aforesaid county of Newport, did then and there keep divers large numbers of swine, to wit, thirty swine, at a place within said Middletown, a town within said State, to wit, on land of Thomas B. Buffum within said town of Middletown, said swine then and there to be fed on swill, offal, and other decaying substances brought from another town than said Middletown, to wit, from the city of Newport, a town within said State, said place where said swine were then and there kept and fed as aforesaid not having been then and there designated by the town council of said town of Middletown as a place for such keeping and feeding of swine, 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, Attorney General,” and signed by fifteen grand jurors.</p> <p>The defendant moved that the indictment be quashed, and his motion was overruled. After conviction he moved in arrest of judgment, and this motion was also overruled. He then brought the case into this court on exceptions. The statute under which the indictment was preferred is given in the opinion of the court.</p> <p>If the statute, Pub. Stat. R. I. cap. 79, § 9, justifies this indictment, the General Assembly of Rhode Island has made it an offence to intend to do a thing which thing is not in itself unlawful, i. e. to intend to feed swine on offal, &c., is made unlawful, whereas the actual feeding of them is not unlawful.</p> <p>No report of the evidence accompanies the bill of exceptions, but it is fair to assume that the probata agreed with the allegata. The latter would be quite satisfied by proof that the defendant.kept swine and went about saying he meant to feed them on offal, &c.</p> <p>Statutes are to be construed according to the intention of the makers, and a literal construction is not to be adopted if such would be unreasonable. Staniels v. Raymond, 4 Cush. 314, 316 ; Ham v. Me Claws, 1 Bay, 93, 98 ; Potter’s Dwarris on Statutes, 245, note 35 ; Ibid. 144, Rules 4, 6, and 8 ; Commonwealth v. Loring, 8 Pick. 370; Parkinson v. The State, 14 Md. 184; United States v. IViltberger, 5 Wheat. 76.</p> <p>The words “ no swine shall be kept in any town, &c., ... to be fed, &c.,” should be construed, “ no swine kept in any town shall be fed,” &c. State v. Main, 31 Conn. 572; United States v. The Athens Armory, 35 Ga. 344; State v. Powers, 36 Conn. 77; Huffman v. The State, 29 Ala. 40.</p>

<p>A. executed and delivered a deed to his son B. purporting to be made in consideration of a life lease of even date with it, of a reservation contained in it, and of love and affection. In it he conve3red certain described realty to B., “his heirs and assigns forever,” and then provided if “ B. should die without having any lawful heirs of his own body, then and in that case my daughter N. . . . shall come in as equal heir of the aforesaid described and granted premises, that is to say, equal with my two daughters, A. and J. . . . The habendum was to “ B., his heirs and assigns forever, to his and their use and behoof forever.” The deed contained a covenant of warranty to “ B., his heirs and assigns against the lawful claims and demands of all persons.”</p> <p>jHeld, that the provision in the deed in favor of the daughters was bad as a reservation not being in favor of the grantor.</p> <p>Held, further, that the provision in the deed in favor of the daughters was repugnant to the grant and therefore null and void.</p>

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

<p>In a single undivided and continuous negotiation between A. aud B., A. at one time represented one principal and at another time a different one.</p> <p>Weld, that A., notwithstanding the change of principal, was entitled to assume that all statements of fact made to him by B. were repeated so long as they were not corrected.</p> <p>The negotiation resulted in a written contract signed by the parties.</p> <p>Weld, that statements made by B. after the contract were inadmissible to show what influenced A.’s principal to sign the contract, but were admissible to corroborate evidence as to what statements B. made before the contract, it being admitted that B., before and after the contract, made statements as to the same matters, and it being shown that the subsequent statements were asked and given as a repetition and confirmation of the preceding.</p>

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

<p>An assignment made under Pub. Stat. R. I. cap. 237, § 12, to dissolve an attachment excepted out of the grantor’s estate, following the words of the statute, “ so much thereof other than debts secured by hills of exchange or negotiable promissory notes as is or shall he exempted from attachment by statutes of the State and of the United States.”</p> <p>Held, that the words “ as is or shall be exempted ” must be construed to include only such property as was exempt when the assignment was made.</p>

<p>Bill in Equity to compel the transfer of corporate stock. On demurrer to the bill.</p>

<p>Under Gen. Stat. K. I. cap. 183, § 4, Pub. Stat. R. I. cap. 194, § 5, writs of scire facias upon recognizances may be made returnable to any term of the Court of Common Pleas in the county of Providence.</p> <p>A recognizance stated that it was taken before “ W., Justice of the Peace and Trial Justice of the town of J.” The writ of scire facias on this recognizance described it as taken “ before the Justice Court of the town of J.”</p> <p>Held) that the variance was merely verbal and not fatal.</p> <p>Held, further, that in the absence of evidence to the contrary the recognizance was presumably taken in the town of J., although this did not appear affirmatively in the recognizance.</p> <p>The recognizance ran in the name of C. as principal and E. as surety. The condition read, “ Whereas the said respondent,” &c., without naming any person. The writ of scire facias on this recognizance described the condition “Whereas the said C.” &c. It appearing from the statute under which the recognizance was given that the respondent appellant was to be the principal in the recognizance:</p> <p>Held, that the variance was not fatal.</p> <p>In the complaint against C. the offence is described as committed “against the statute and the peace and dignity of the State.” The condition of the recognizance describes it as committed “ contrary to chapter 508 of the General Statutes of Rhode Inland, against the statute and the peace and dignity of the State.” Cap. 508 is one of the Public Laws subsequent to the General Statutes.</p> <p>Held, that the variance was immaterial.</p> <p>The recognizance sent up to the Court of Common Pleas purported to be the original record. It contained a statement of the costs of prosecution and conviction, and was signed by the trial justice.</p> <p>Held) that his signature was a sufficient certification under Pub. Laws R. I. cap. 508, § 24, of June 25, 1875.</p> <p>The court expresses its disapproval of the form of the recognizance although it supports the instrument.</p>

<p>Assumpsit heard by the court, jury trial being waived.</p> <p>This case was heard upon an agreed statement of facts, as follows :</p> <p>“ Saint Mary’s Church of Providence, R. I., was and is the owner in fee of a certain lot of land situate on Barton Street, in the city of Providence, upon which is erected a wooden building; that said building was erected in and ever since that time has been, with the land upon which it stands and surrounding it, occupied and used exclusively for religious and educational purposes, and for no other purpose whatever.</p> <p>“ That the assessors of taxes of the city of Providence, in the year A. D. 1882, assessed said land and building as if liable to taxation, at a valuation of $7,171, and the plaintiff was taxed therefor the sum of $104.40, which sum the plaintiff claims was erroneously levied upon said estate, and it paid the same to the defendant, protesting against the same as illegal.</p> <p>“During the year 1882 the said building was used and occupied primarily for the purpose of religious worship, and during some portions of the time, when not required for the purpose of religious worship, a part of said building, to wit, the basement thereof, was used for educational purposes, but not as a free public school, no income, however, being derived from the same.”</p> <p>Attached to the agreed statement of facts, and forming part of it were :</p> <p>A certificate from the assessors of taxes, showing in detail the several parcels of realty for which the plaintiff was assessed, with the valuation for tax purposes of each parcel;</p> <p>A copy of the protest filed with the city treasurer when the plaintiff paid the tax on the parcel in question ;</p> <p>A certificate from the city treasurer that the tax on the parcel in question had been paid.</p>

<p>Garnishment tbeing a purely statutory proceeding, the garnishee’s liability must be determined in the mode and by the evidence prescribed by statute.</p> <p>Nothing, in Pub. Stat. R. I. cap. 123, § 10, authorizes the introduction of extrinsic evidence to determine the garnishee’s liability.</p>

<p>Exceptions to tbe Court of Common Pleas.</p> <p>Public Statutes R. I. cap. 218, §§ 1 and 6, provide:</p> <p>Sect. 1. Any party aggrieved by tbe judgment of any justice court rendered in any civil action may appeal therefrom to tbe next term of tbe Court of Common Pleas, to be holden in tbe same county, for a final bearing of said action: Provided be shall, within five days after rendition of such judgment, pay costs and give bond in such justice court to the other party, in a sum not exceeding fifty dollars, to prosecute such appeal with effect, or in default to pay costs.</p> <p>Sect. 6. Tbe appellant shall, in all cases, file his reasons of appeal in tbe office of tbe clerk of the court appealed to at least ten days before the sitting of such court, and whenever the reasons of appeal are entered in the appellate court, the clerk or justice having custody of tbe papers in the case shall file the same with the clerk of tbe appellate court.</p> <p>The facts involved in the present case are stated in the opinion of the court.</p>

<p>PLAINTIFF'S petition for a new trial. The facts involved in the case are stated in the opinion of the court.</p> <p>The defendant was negligent. Better v. N. Y. Harlem B. B. Co. 2 Ab. Ct. App. Dec. 458 ; Beisegel v. N. Y. Central B. B. Co. 14 Ab. Pr. N. S. 29, 35 ; Mo Cully v. Clarke £ Thaw, 40 Pa. St. 399, 406 ; Baltimore City Passenger B. B. Co. v. McDonnell, 43 Md. 534; Karle v. Kansas City, St. Jos. ¿•c. B. R. Co. 55 Mo. 476 ; Wright v. Malden Melrose B. B. Co. 4 Allen, 283, 290.</p> <p>The age of the plaintiff precluded contributory negligence. Wharton on Negligence, §§ 88, 308; Chicago £ Alton B. B. Co. v. Becker, 76 Ill. 25, 32, 33 ; Hestonville, ¿•c. B. B. Co. v. Kelly, 102 Pa. St. 115 ; Plumley v. Birge, 124 Mass. 57 ; 2 Thompson on Negligence, 1180, 1191.</p> <p>Whether or not the plaintiff exercised such care as could be required from a child of his age is for the jury to decide. McMillan v. B. cf M. B. B. Co. 46 Iowa, 231, 233; Baltimore Ohio B. B. Co. v. The State, 30 Md. 47 ; Bailroad Company v. Glad-mon, 15 Wall. 401; Smith v. Atchison, Topeka ¡fi Santa Fé B. B. Co. 25 Kans. 738, 742; Detroit Milwaukee B. B. Co. v. Van Steinburg, 17 Mich. 90; Bernhard v. Bensselaer Saratoga B. B. Co. 1 Ab. Ct. App. Dec. 131, 134; Bigelow on Torts, 320; Costello v. Syracuse ¿-e. B. B. Co. 65 Barb. S. C. 92; Philadelphia <f* Beading B. B. Co. v- Spearen, 47 Pa. St. 301; Chicago Alton B. B. Co. v. Gregory, 58 Ill. 226; Benton v. C. B. I. P. B. B. Co. 55 Iowa, 496; Meeks v. Southern Pacific B. B. Co. 56 Cal. 513; Wyatt v. Citizens’ B. B. Co. 55 Mo. 485; Gray v. Scott, 66 Pa. St. 345.</p> <p>cited Dietrich v. Baltimore Hall’s Springs B. B. Co. 58 Md. 347 ; Hestonville Passenger Bail-way Co. v. Connell, 88 Pa. St. 520 ; Central Branch Union Pa-cifio R. R. Co. v. Henigh, 23 Kans. 347 ; Morrissey v. Eastern Railroad, 126 Mass. 377, 380.</p>

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

<p>Bill IN Equity to annul an award and for an injunction.</p>

<p>When an indictment charges an offence with a continuando, evidence is admissible to prove the commission of the offence at any time within the period, alleged.</p> <p>When an indictment charges an offence as committed on a given day, evidence is admissible to prove the commission of the offence either on the given day or on any other day before the finding of the indictment and within the period of limitation, but only on one day.</p> <p>When an indictment charges an offence as committed on a given day and the prosecutor wishes to introduce evidence of its commission on another day, he should specify beforehand the day to which his proof will apply, otherwise he will by introducing evidence referring the offence to one day he confined to that day.</p> <p>when an indictment charged an offence as committed on a given day and evidence at the trial was admitted tending to prove the commission of the offence on other days also:</p> <p>Held, that the prosecutor should have been required to specify the day on which he would go to the jury.</p> <p>A motion for a bill of particulars is addressed to the discretion of the court.</p> <p>A motion to continue a case on account of surprise is addressed to the discretion of the court. Such motions are not revisable on a bill of exceptions.</p> <p>Pub. Stat. R. I. cap. 204, § 34, providing that “ in any case the court may, and upon the request of either party it shall, direct the jury to return a special verdict upon an issue submitted to the jury,” does not apply to criminal prosecutions.</p>

<p>PETITION for the enforcement of a mechanic’s lien. On exceptions to the master’s report.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This action, brought in the Court of Common Pleas, was debt on a judgment recovered in the Superior Court of the State of New York, for the county of New York. The defendant pleaded : 1. Nul tiel record; 2. Non debet; 8. A discharge in bankruptcy under the United States bankrupt act, granted after the rendition of said judgment. The plaintiff replied tendering issue on the first plea, joining issue on the second, and as to the third alleging that the defendant had been guilty of fraud in contracting the debt whereon the said judgment was recovered. To the replication to the third plea the defendant rejoined that nothing in the record of the New York judgment disclosed any fraud, and that the original debt was merged in said judgment. To this rejoinder the plaintiff demurred. The presiding justice in the Court of Common Pleas overruled this demurrer and the plaintiff excepted.</p>

<p>A. and B. his wife were sued jointly for B.’s tort. No service of the writ was made upon B. Judgment by default was rendered against A.</p> <p>Held, that the judgment was erroneous, and as no judgment could be rendered against B-none should have been rendered against either A. or B.</p>

Trespass oh the case. On demurrer to plea. This action was brought to recover damages for personal injuries received by the plaintiffs when passengers on one of the defendant’s steamers, the Narragansett, which collided with another steamer belonging to the defendant, June 12, 1880, and in consequence of the collision caught fire, burned, and sunk off Cornfield Lightship, in Long Island Sound.

<p>A testator nominated an executor and conferred on him powers and duties which do not belong to an executor, but which are appropriate to a trustee.</p> <p>Held, in the circumstances, that it was not the testator’s intent to annex the powers and duties to the office of executor.</p> <p>Meld, further, that a refusal of the nominated executor to qualify as executor was not a refusal to accept the trusts which were consequently to be executed by him.</p>

<p>Whether land purchased with partnership funds is to be regarded as partnership property or as the individual property of the copartners depends upon the intention of the purchasers at the time of the purchase, payment from the partnership funds being only prima facie evidence of the intention.</p> <p>Hence when land purchased by partnership funds was neither intended nor used for partnership purposes, was treated like other lands held by the partners as tenants in common as individual property, was not claimed as partnership property before a master who took an account of partnership assets and debts, and was claimed as individual property in a sworn bill for partition :</p> <p>Held, that the land was not to be considered as partnership property.</p>

<p>Bill ir Equity for an account. On motion to amend the bill of complaint.</p>

Defendant’s petition for a new trial. This action was trespass on the case charging the defendant with negligence which resulted in the death of the plaintiff’s intestate. He was a workman employed by the defendant, and was riding with other workmen on a hand car from Providence to Olneyville when the car was overtaken by a special train from Providence and be was killed. The accident happened November 27, 1879, as the workmen were returning home from their work.

<p>Bill IN Equity for specific performance and an injunction. On demurrer to the bill.</p>

<p>A. received from B. a deed of certain realty described by reference to a former deed, and mortgaged the realty back to B., describing it by metes and bounds and with full covenants of warranty. Both parties supposed they were dealing with the whole realty, and A. made large expenditures upon it. It turned out that B.’s deed to A. only conveyed an undivided half part.</p> <p>On a bill in equity brought by A. to compel a conveyance by B. of the other undivided half part or an abatement of the price, a reformation of the mortgage and of the note secured by it, and for an injunction forbidding B. to proceed with a sale which he had advertised under the mortgage powers:</p> <p>Held, that the purpose of the bill was to abate the price.</p> <p>Held, further, that the alternative prayer was for B.’s advantage.</p> <p>Held, further, that A. was entitled to relief.</p> <p>Held, further, that the abatement of the price should be applied to reduce the mortgage and the note secured by it.</p>

<p>Bill ih Equity to avoid a transfer of corporate stock. On demurrer to the bill.</p> <p>The demurrer was argued April 6, 1883. Subsequently by order of the court a reargument was had December 11, 1883, on the points considered in the following opinion.</p>

<p>New shares oí capital stock in a corporation, representing its surplus property and distributed to its stockholders, are not to be considered as income and do not belong to a life tenant.</p>

Bill in Equity to affirm an alleged election by a widow of testamentary provision in lieu of dower and for an injunction. On demurrer to the bill.

<p>Habeas corpus for the custody of an infant son.</p>

Trespass on the case. On demurrer to the declaration. The plaintiff's declaration stated that the defendant corporation owned and rented a building in which he was employed as an operative; that the defendant neglected to comply with the provisions of Pub.

<p>A judgment creditor in the absence of fraud, trust, or other ground for equitable relief, and when no statute gives equitable jurisdiction, cannot by proceedings in equity subject a chose in action of his debtor to the payment of his judgment.</p> <p>Hence, when a judgment debtor owned letters patent and arranged with third parties to do business under these letters and to pay to his wife the profits due him under the arrangement; there being no fraud on the part of these third parties, and the payments to the wife being in accordance with a direction given by the judgment debtor, and revocable at his pleasure:</p> <p>Held, on demurrer to a bill in equity filed by the judgment creditor for an account of these profits and for the application of them to the judgment debt, there being no statute authorizing the intervention of equity, that the bill could not be sustained.</p>

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

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

<p>A promissory note bore upon its face a statement that it was issued as collateral to the makers’ draft accepted by a third party. In an action against the indorsers of this note in their character of indorsers:</p> <p>Held, that the undertaking of the makers was a contingent one; that the amount due on the note at its maturity was uncertain; that the note was not negotiable; and that the indor-sers, as indorsers, were not liable.</p> <p>Note — This case and the preceding one were heard together by Stiness, Tillin&hast, and Carpenter, JJ.</p>

<p>Bill in Equity to obtain a judicial construction of tbe following will, wbicb was proven before the Probate Court in Newport, December 4, 1882.</p> <p>“ I, Alexander G. Mercer, of Newport, Rhode Island, do make, ordain, and declare this instrument, which is written with my own band and every page of it subscribed with my name, to be my last will and testament.</p> <p>1st. I appoint my friends, Mrs. Duncan C. Pell, of Newport, Edward King, of Newport, and Frederick W. Rhinelander, of New York, executrix and executors of this my will; and in case of the failure of any one of them I appoint my friend, John J. Townsend, of New York, as a substitute; and, as I regard the execution of this will a work of charity as well as of friendship, I hope that said executors may accept a thousand dollars each in lieu of all other remuneration.</p> <p>“ Section II. I desire my executors to select from my stock investments such of them as it may be most judicious to sell, and to realize from such sales enough money to pay the gifts made in Section III., and afterwards and gradually and to the best advantage to sell all my shares of stock, and to invest the proceeds in the bonds of the State of California, and to deposit said bonds, together with all my other bonds, with the “ Pennsylvania Company for Insurance on Lives and Granting Annuities,” in the city of Philadelphia, for the purposes hereinafter named.</p> <p>“ Section III. I give in cash and bequeath absolutely the following sums to the following persons, namely : to my nieces, Jane, Maria, and Emily, two thousand dollars each, free from the control of their husbands; to Alexander Mercer Biddle, son of Charles I. Biddle, of Philadelphia, five thousand dollars; to Philip Mercer Rhinelander, son of Frederick W. Rhinelander, one thousand dollars ; to James, son of Emily De Blois, $1,000; to Trinity Church, Newport, $1,000, as a fund for the poor of said church; to Zion Church, Newport, $500 ; to Emmanuel Church, Newport, $500 ; to the society or fund meant to assist aged or infirm and indigent clergymen of the Protestant Episcopal Church in Rhode Island, $1,000 ; to Miss Elizabeth Casttoff, daughter of Captain Henry Casttoff, of Newport, $1,000 ; to Rev. Dr. H. A. Boardman, $1,000; to Professor Child, of Cambridge, Mass., $1,000 ; to the Redwood Library, Newport, for the establishment of a case or compartment of books, $1,000; to Miss Juliet Goodwin, of Newport, $500; to Miss Annie Coggeshall, of Mill Street, Newport, $500; to George E. Bullard (clerk with D. S. Curtis, of Boston), $500; to William Ruskton, Jr., Cashier, Philadelphia, $500 ; to Frederick W. Rhinelander, aforesaid, $2,000 ; to the Society for the Aged and Infirm (women or men) in Newport, $1,000 ; and to Alexander Mercer King, my godchild, for a remembrance only (as he will not need money), $1,000.</p> <p>“Section IY. The building called All Saints Church, in Newport, was put in trust by me some years ago, but lest that act should prove invalid I now give and .bequeath the same, together with the organ, furniture, &c., to Benjamin Finch, Mrs. Duncan C. Pell, of Newport, and Frederick W. Rhinelander, of New York, and to their successors in trust forever (the trustees for the time being always appointing those who shall succeed them), for the purposes and uses of religious worship according to the forms of the Protestant Episcopal Church in the United States of America, provided and on condition that the right of the appointment of the rector of said church belong to me and after me to my said trustees and their successors forever.</p> <p>“ Section Y. I give and bequeath my long worn watch and the chain attached, the silver cup my mother gave me, together with the two rings I wear (articles precious to me), to Miss Ja-netta Alexander, only daughter of Dr. A. Alexander, with my ever tender remembrances.</p> <p>. “ Section YI. I give and bequeath all the rest of my personal effects, such as silver, jewelry, furniture, &c., together with my books, to the said Mrs. Duncan C. Pell; desiring her, however, to present from me to each of my friends some book or other article at her discretion. Among the friends thus to whom she is to give some memorial of me I will name my dear cousin William M. Baird, of Phila.; Charles I. Biddle, Craig Biddle, also of Phila.; Frederick W. Rhinelander, John J. Townsend, George P. Putnam, of New York; Mrs. and Miss Hunter, Edward King, Sidney Brooks, Mrs. Clarence Pell and her children, Dr. Linzie Cunningham, Dr. T. Thayer, and Miss Callender, of Newport; also B. Finch and J. T. Langley of Newport; Colonel and Mrs. Pell, Cortlandt Parker, Prof. Child, Rev. J. E. Wood. Beyond these I desire to give some memorial to any other friend whom I have not thought of at this moment. After these gifts are made I desire her to select such of my boobs as she may wish for herself, and then to divide the rest between my namesakes Alexander M. Biddle and A. M. King.</p> <p>“ Section VIL I give and bequeath to the said Mrs. Duncan C. Pell the sole right and property in all my sermons and papers of every description, to her and to her only.</p> <p>“ Section VIII. I do not leave any share of my property to my brother, John C. Mercer, because he will need none of it, but I request him to accept from me my two marble lions, with every kind and earnest good wish.</p> <p>“ Section IX. All my property over and above the gifts made in the preceding sections, consisting of the bonds I now hold or may acquire, and the bonds of the State of California to be purchased by the sale of my stocks as aforesaid, and all of which is to be deposited as aforesaid with the said Pennsylvania Company for Insurance, &c., I divide into thirty (30) shares, to be held and managed by said company, in trust, to pay the interest on these shares to the following persons for the term of their natural lives, to wit: to pay to the said Mrs. Duncan C. Pell the interest on twelve (12) shares, hoping that she will use as much of the same as she needs for her own pleasure and comfort, and dispose of all the rest in deeds of judicious mercy and charity; to pay the interest on five (5) shares, to the said Miss Janetta Alexander; on one (1) share to the said Charles J. Biddle; on one (1) share to Miss K. P. Wormeley, of Newport; on two (2) shares to my niece Jane, Mrs. Brice; on two (2) shares to my niece Maria, Mrs. Boyd; on two (2) shares to my youngest niece Emily, to be held and used by my said nieces free from all control by their husbands; on one share and a half (1|) to Mrs. Mary Hunter and her daughter, Miss Rebecca Hunter, and to the survivor of them; on a half of a share to Mrs. Sophia Little, formerly Miss Robbins, of Newport ; on one (1) share to Mrs. Randolph Latimer, formerly Miss Elizabeth Wormeley; on two (2) shares to my four cousins, Catherine, George, Margaret, and Isabella Hamilton (now Biddle), children of my Aunt Hamilton, but the interest on these two (2) last named shares is to be paid to my said cousins only until the decease of my brother John C. Mercer.</p> <p>“ Section X. I will that on the decease of each person named in the IX. (9th) Section, or in case any of them refuse to accept the benefit offered, or in case of the death of any of them before •it can be received, or in respect to the two shares last named in IX. Section (in case of the decease of said J. C. Mercer), the interest in the shares or share or portion of a share appropriated to said persons be regularly reinvested, and all in the bonds of the State of California, and accumulated in the hands of said Pennsylvania Company until the decease of the last of all the persons entitled during their lifetime to draw the said interest on the said shares, and then I will that the whole of my property thus deposited and falling; in and accumulated in the hands of said £ Pennsylvania Company,5 be disposed of as follows: (1st.) One third of it (-1) to be paid to the managers or directors of the Pennsylvania Hospital on Pine Street, in Philadelphia, and to the managers or directors of the Massachusetts General Hospital, in Boston, to be used by them for the establishment of a hospital of such a character and in such a place as may seem to them most desirable. (2d.) One third Q) of said property to be paid to the President of Harvard University in Cambridge, Mass.; to the President of Yale College in Connecticut, to the Secretary of the Smithsonian Institute at Washington, D. C., and to Alexander Mercer Biddle, Alexander Mercer King, and Philip Mercer Rhinelander, should they or either of them then be alive, to be used by them for the establishment of scholarships or foundations in such colleges as they may select, for the benefit of such poor students as have passed through some of the public schools with the best reputation for character and ability. (3d.) One third (a) of said property to go to such works of religion or benevolence as my executors, after full consideration, shall select.</p> <p>“ Section XI. I appoint the Boards of Domestic Missions in the Protestant Episcopal and Presbyterian Churches in the United States my residuary legatees, so that in case any of my preceding gifts, specially my gifts to public purposes, should fail (for any reason now unimaginable by me), my property shall surely go, in such event, to the work of establishing the knowledge and following of Jesus Christ among our American people. But in case there is no failure as to my purposes in the preceding bequests, and so these residuary legatees receive no substantial amount, then I call the attention of my executors to these two boards aforesaid as a proper object for the whole or a part of the third of my property which I have left to their appropriation for religious or be--nevolent purposes as aforesaid. And I desire that should any ©f my preceding public benefactions be named by any name it shoqid be the name of ‘ Hall,’ the name of my beloved mother and brother.</p> <p>“In conclusion, it is my earnest desire that by the wisdom, honor, and energy of my executors, and of the persons intrusted with the several trusts aforesaid, my property may go in the most prudent, economical, and effectual manner to the permanent good benefit of men in case of the bequests to public objects, and in case of the bequests to persons to their comfort and happiness. I have chosen the Pennsylvania Company for Insurance on Lives and Granting Annuities for the position of trustee, because I thought it might be the safest and best trustee ; but if my executors aforesaid know of any company safer and also more capable and economical in charges, then I empower them to select such trustee for the trust in place of the Pennsylvania Company.</p> <p>“ This will is written on two sheets of eight pages, united at second and third pages by the words ‘ Protestant Episcopal Church,’ and at the 6th and 7th pages by the words ‘ in case any of my preceding gifts; ’ on the first page there is one marginal and. one interlined addition, on the second page the figures $1,000 are interlined, on the third page three names are added in margin, on the fourth page there is one erasure on the sixth line, on the fifth page there is an erasure on the fourth line and the word ‘ half ’ interlined, and an interlineation above the fourth line from the bottom, on eighth page an erasure on seventh line, all of which changes or additions were made by me before the signing and witnessing the will.</p> <p>“ And now in witness of the foregoing will I hereunto set my hand and seal this 28th day of September, in the year of our Lord 1870, at the city of Newport, Rhode Island.</p> <p>“A. G. Mercer, [Seal.]</p> <p>“ Signed, sealed, acknowledged, and declared to be bis last will and testament in tbe presence of all of us whose names are here signed in presence of each other.</p> <p>“ Job T. LANGLEY, [Seal.]</p> <p>“ James B. Finch, [Seal.]</p> <p>“ Alex. N. Barker, [Seal.] ”</p> <p>The complainant asked the instructions of the court on the following state of facts as set forth in her bill:</p> <p>“And your oratrix further shows to your Honors that the estate of the said testator consists almost wholly of personal property, a schedule of which is hereto annexed marked Exhibit B.</p> <p>“ And your oratrix further shows to your Honors that a large portion of said estate, to wit, many of the shares of stock, some of the railroad mortgages, the note and mortgage of Anna Pell and the bond and mortgage of Duncan C. Pell, all mentioned in said schedule, were acquired by the said testator after the execution of his said last will and testament.</p> <p>“Your oratrix further shows that the only bonds of the State of California now outstanding are as follows:</p> <p>“ 1st. Soldiers’ Relief Bonds dated 1863, amount $95,500, carrying interest at seven per cent, and maturing in 1883.</p> <p>“2d. State Capital Bonds dated 1870 and 1872, amount $500,-000, carrying interest at seven per cent, and maturing in 1885.</p> <p>“ 3d. Funded Debt Bonds dated 1873, amount $2,796,000, carrying interest at six per cent, and maturing in 1893.</p> <p>“ But your oratrix also shows that the said State of California holds in trust for school and university funds the above named $500,000 Capital Bonds and also $2,690,000 of the above named Funded Debt Bonds, which the said State has no power to divert from the purposes of the said trust, and that there are therefore only available for purchase the said $95,500 of Soldiers’ Relief Bonds which mature in 1883, and $100,000 of the Funded Debt Bonds due in 1893, which said bonds can only be purchased at a very high price, which would speedily become very much higher if it were known that the estate held by your executrix was to be invested in them. ......</p> <p>“ And your oratrix further shows to your Honors that some of the bonds mentioned in Exhibit B are worth on the market more than their par value, but that the premiums thereon fluctuate from time to time.</p> <p>44 And your oratrix further shows that there is no 4 Society for the Aged and Infirm (Women or Men) in Newport,’ but there is a corporation incorporated as the 4 Association for the Aid of the Aged,’ established in the said city of Newport, the objects of which are the charitable relief of poor aged and infirm persons, and now by recent change of name called 4 The Townsend Aid for the Aged.’</p> <p>“ And your oratrix further shows unto your Honors that there are no such persons as the 4 Managers or Directors of the Pennsylvania Hospital (on Pine Street) in Philadelphia,’ nor is there any corporation known by that name, but there is a hospital on Pine Street, in the city of Philadelphia, in the State of Pennsylvania, which is controlled by 4 The Contributors to the Pennsylvania Hospital,’ which is the corporate name of a corporation established under the laws of said State of Pennsylvania, which said corporation claims that it is meant by the said testator; that there is no such person as 4 The President of Harvard University in Cambridge, Mass.,’ but that one Charles W. Eliot,' who resides in Cambridge, Massachusetts, holds the office of president of a corporation known as 4 The President and Fellows of Harvard College,’ which said corporation is organized under the laws of the State of Massachusetts and is established in said Cambridge, and that said Charles W. Eliot claims that he and his successors in said office of president are meant by the term used by the said testator ; that there is no such person as 4 The President of Yale College ’ in Connecticut, but that one Noah Porter holds the office of president of a corporation organized under the laws of the State of Connecticut, established in the city of New Haven, in said State, known as the 4 President and Fellows of Yale College,’ and that said Noah Porter, who resides in said New Plaven, claims that he and his successors in said office of president are meant by the term used by the said testator; that there is no such person as 4 The Secretary of the Smithsonian Institute at Washington, D. C.,’ but that one Spencer F. Baird, who resides in the city of Washington, in the District of Columbia, holds the office of secretary of a corporation organized under the laws of the United States, and established in the said city of Washington, and known as the 4 Smithsonian Institution,’ and that said Spencer F. Baird claims that be and his successors in said office of secretary are meant by the term used by tbe said testator; that there are no such corporations or boards styled 4 The Boards of Domestic Missions in the Protestant Episcopal and Presbyterian Churches,’ but that there are two corporations organized under the laws of the State of New York, established in the city of New York, and known respectively as 4 The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America,’ and 4 The Board of Home Missions of the Presbyterian Church in the United States of America,’ which corporations claim that they are meant by the terms used in the eleventh section of said last will and testament.</p> <p>44 And your oratrix shows to your Honors that the said last will and testament is uncertain in many respects, and that she needs the advice and direction of this honorable court in regard thereto, and more especially in regard to the following questions :</p> <p>44 First. Do such shares of stock and bonds as were acquired after the execution of said last will and testament, and the bond and mortgage of Duncan C. Pell, and the note and mortgage of Anna Pell, mentioned in Exhibit B, pass under Section IX. of said last will and testament, or did the said Alexander G. Mercer die intestate as to such property ? And did the said Alexander G. Mercer die intestate of any of the property mentioned in said Exhibit B, and if so does such property pass to his next of kin or to the residuary legatees ?</p> <p>44 Second. Ought your oratrix to invest any part of the estate in her hands in bonds of the State of California as directed in Section II. of said last will and testament ?</p> <p>44 Third. Shall your oratrix sell and dispose of any portion of the estate in her hands, and if so what shall she sell ?</p> <p>44 Fourth. In what property shall the said estate now and at all times hereafter be and remain invested ?</p> <p>44 Fifth. Are the persons named in Section IX. of said last will and testament entitled to receive the income of the estate in the hands of your oratrix from and after the decease of the said Alexander G. Mercer ? And if not entitled to all the income of the said estate as now invested, to what income, if any, are they entitled from and after said decease, and bow long shall such income continue to them ?</p> <p>“ Sixth. In what manner shall the selection of the ‘ works of religion and benevolence,’ to which the one third of the estate in remainder is to be devoted under the tenth section of said last will and testament, be expressed ? And who are the persons who shall make the said selection ?</p> <p>“ Seventh. Shall the said legacy to the Society for the Aged and Infirm (Women or Men) in Newport be paid to the said ‘The Townsend Aid for the Aged ? ’</p> <p>“ Eighth. What is meant by the term ‘ The Managers or Directors of the Pennsylvania Hospital (on Pine Street) in Philadelphia ? ’</p> <p>“ Ninth. What is meant by the term ‘ The President of Harvard University in Cambridge, Mass. ? ’</p> <p>“ Tenth. What is meant by the term ‘ The President of Yale College, in Connecticut ? ’</p> <p>“Eleventh. What is meant by the term ‘The Secretary of the Smithsonian Institute at Washington, D. C. ? ’</p> <p>“ Twelfth. Does the expression ‘ Should they or either of them then be alive,’ used in Section X. of said will, refer to the persons now holding the offices mentioned therein as well as to the said Alexander Mercer Biddle, Alexander Mercer King, and Philip Mercer Rhinelander, and in case of the death of all said persons before the death of the last of all the persons entitled during their lifetime to the income of the estate ás directed in Section IX. of said will, did the said Alexander G. Mercer die intestate as to the one third of his estate so bequeathed to said persons ?</p> <p>“ Thirteenth. Have the said corporations ‘ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America,’ and ‘ The Board of Home Missions of the Presbyterian Church in the United States of America,’ any interest, vested or contingent, in the estate of the said Alexander G. Mercer ? And if so what interest and how shall it be exercised ?</p> <p>“ And your oratrix further shows unto your Honors that a difference of opinion exists between the next of kin of the said Alexander G. Mercer on the one hand, and the persons and corporations mentioned in Sections IX., X., and XI. of said last will and testament on the other hand, as to the correct answer to be given to the first question herein stated; that a difference of opinion exists between the persons mentioned in Section IX. of said will on the one hand, and the persons and corporations mentioned in Sections X. and XI. on the other hand, as to the correct answers to be given to the second, third, fourth, and fifth questions herein stated ; that a difference of opinion exists between your oratrix on the one hand, and the persons named as executors of said will on the other hand, as to the correct answer to be given to the sixth question herein stated ; that a difference of opinion exists between the said ‘ The Townsend Aid for the Aged ’ on the one hand, and the persons and corporations mentioned in Sections IX., X., and XI. of said will on the other hand, as to the correct answer to be given to the seventh question herein stated; that a difference of opinion exists between the said ‘ The Contributors to the Pennsylvania Hospital ’ on the one hand, and your oratrix on the other hand, as to the correct answer to be given to the eighth question herein stated; that a difference of opinion exists between the next of kin of the said Alexander G. Mercer on the one hand, and the said Charles W. Eliot, Noah. Porter, and Spencer F. Baird on the other hand, as to the correct answers to be given to the ninth, tenth, eleventh, and twelfth questions herein stated ; and that a difference of opinion exists between the said next of kin on the one hand, and the said corporations ‘ The Domestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States of America ’ and ‘ The Board of Home Missions of the Presbyterian Church in the United States of America ’ on the other hand, as to the correct answer to be given to the thirteenth question herein stated.”</p>

<p>Bill in Equitt to obtain a judicial construction of tbe following portions of the will of Stephen T. Olney, proven before this court at its October Term, A. D. 1879.</p> <p>EXTRACTS EROM CLAUSE “SIXTH.”</p> <p>“ 13. There is now by this instrument a provision made for the payment of annuities amounting to a minimum sum of three thousand and five hundred dollars up to a maximum of four thousand nine hundred dollars per annum. There shall be kept an income account, the credit side of which shall show the receipts from earnings on my investments, and the debit stands charged with the payment of the annuities. Whenever this income account shall show a credit balance of four thousand dollars, then the sum shall be paid to the Rhode Island Hospital for the endowment of a free bed in that humane institution, which sum shall be charged to said income account; whenever this income account shall show a further balance of twenty five thousand dollars, then my said trustees shall pay over to any institution that may be established as a Home for Aged Men the said sum of twenty five thousand dollars ; and if this donation be the largest made, then a suggestion is here made that it should be called the Olney Home for Aged Men; whenever a further balance shall be shown of ten thousand dollars, then such sum of money shall be paid to the Children’s Friend Society by my said trustees ; whenever a further balance of ten thousand dollars shall be shown on said income account, then said sum of ten thousand dollars shall be paid to Brown University as a fund, the income of which shall be spent for an increase of plants and botanical books donated to said Brown University ; whenever a further sum of twenty five thousand dollars shall be shown on said income account, then the said sum of twenty five thousand dollars shall be paid to Brown University for the endowment of a professorship of Natural History in said institution; one of the duties of the professor shall be to give regular courses of botanical lectures.</p> <p>“ 14. When my nephew, Stephen T. Olney, shall arrive at the age of twenty five years, and a decision shall be made as to the payment of the sum provided by section twelve of article six, then such annuities as are provided for after such decision in this will may be changed by purchase in some sound trust company, guarding all such purchases that the annuitant in all such cases shall not have the power of disposing of the same, and the annual sum only shall be paid to the annuitant. Then the entire trust property remaining shall be divided as follows :</p> <p>“ One quarter part to be paid to my nephew Frank F. Olney, if living; if not, to his surviving male children or child (male).</p> <p>“ One quarter part to be paid to my nephew Stephen T. Olney, if. living; if not living, to his surviving male child or male children.</p> <p>“ In the event of the decease of either of my said nephews without surviving male issue the half part of said remainder of my trust estate is to be paid to the surviving nephew, if not surviving, male child or male children; and if there be no nephew, or male child of such nephew, then this half of the trust property is to be divided with the portion next to be mentioned.</p> <p>“ One quarter part of my trust property to be given to educational institutions similar to those mentioned in article thirteen, and the remaining quarter part of my trust property to be given to charitable institutions similar to those mentioned in article thirteen.”</p>

<p>The fact that a real controversy exists as to the title of realty claimed in an action to recover possession thereof before a Special Court of Common Pleas does not, under Pub. Stat. R. I- cap. 195, §§ 2, 10, deprive such court of its jurisdiction.</p> <p>A deed conveying a debtor’s land in trust so as to make it security for his debts, with a proviso that if the debtor pays such debts and the expenses of the trust the deed shall be void, is a mortgage.</p> <p>An amendment to a corporate charter changing .the name and business of the corporation and increasing its capital need not, under the Constitution of Rhode Island, Article IV. section 17, be continued until an election of members of the General Assembly shall have taken place, but is valid if adopted by the General Assembly to which it is presented.</p> <p>Note. — The foregoing case was heard by Stiness, Tillinghast, and CARPENTER, JJ.</p>

<p>Testamentary gifts prompted by the personal regard of the testator for the legatees were given by a will made while the following statute was in force :</p> <p>“ whenever any child, grand child, or other person, having a devise or bequest of real or. personal estate, shall die before the testator, leaving a lineal descendant, such descendant shall take the estate, real or personal, as devisee or legatee, in the same way and manner as such devisee or legatee would have done in case he had survived the testator.”</p> <p>The legatees died before the testator, but left lineal descendants.</p> <p>Held, that the statute should be interpreted to supplement not to defeat the testator’s intention.</p> <p>Held, further, that the will must be presumed to have been made in view of the statute.</p> <p>Held, further, that the statute applied to the legacies unless it appeared from the will that the testator’s intent was not to allow the legacies to go to the descendants under the statute.</p>

<p>DEFENDANT'S petition for a new trial in the Court of Common Pleas.</p> <p>After the proceedings reported, ante, p. 267, a new indictment was found in the Court of Common Pleas at its October Term, A. D. 1883, charging tbe defendant with murder. After conviction of manslaughter under this indictment he filed a petition in the Supreme Court for a new trial for the reasons considered in the following opinion.</p>

<p>The A. & W. Sprague Manufacturing Company, the copartnership of A. & W. Sprague, Amasa Sprague, William Sprague, Mary Sprague and Fanny Sprague widows, executed to Z. Chafee a trust deed of all their estate not exempt from attachment, dated November 1, 1873, reciting that the corporation, the copartnership, Amasa and William were largely indebted, that the corporation had made its notes dated January 1,1874, payable in three years with interest semi annually, indorsed by the copartnership, and had placed them in the hands of the trustee to retire their indebtedness if brought in within nine months, and that the preservation of the manufacturing properties of the corporation and the interests of the creditors required that the business should be continued.</p> <p>The deed was to be void if the grantors paid the notes and the expenses of the trust; the grantors were to retain possession until default or entry or sale by the trustee, who at any time before such default and with or without entry had full power of sale, and had full power of entry before or after default, and power to continue or close the business at his discretion. Sixty days after default the trustee could, and on request of one fifth in amount of the note holders should, make sale and hold the proceeds to pay sale expenses, insurance, taxes, trustee’s compensation, counsel fees, and the expense of carrying on the business, and to pay the notes placed in his hands by the grantors and by him issued.</p> <p>Provision was made for the appointment of new trustees if needed.</p> <p>The grantors covenanted to give such further assurances and conveyances as were required, to pay insurance, to pay over profits to the trustee, to pay taxes and assessments.</p> <p>The corporate stock of the grantors was excepted from this conveyance, but such stock was to be transferred to the trustee on his request, by way of pledge and collateral security to secure the performance of the conditions of the conveyance.</p> <p>Meld, that the conveyance was a mortgage deed, was valid, and was not in fraud of non assenting creditors.</p> <p>Provisions in a deed of conveyance not radically fraudulent, but only grima facie dishonest, may be explained by evidence showing the circumstances of its execution and tending to remove the inference of fraud.</p> <p>Note. — The foregoing case was heard by Stinbss and Tillinghast, JJ.</p>

<p>A statute required for the validity of a deed that it should be executed in the presence of two witnesses. The deed bore the signature of one attesting witness. When it was executed a daughter of the grantor was also in and out of the room, but not as it appeared for the purpose of being a witness.</p> <p>Held, that the deed was not executed in the presence of two witnesses.</p> <p>K. died leaving his realty subject to a mortgage which contained a release of dower. The realty was sold by K.’s administrator to pay debts, the sale being subject to the mortgage and “the widow’s dower as by law provided.” The purchaser entered into possession of a part of the land and had the mortgage assigned to himself.</p> <p>In proceedings by K.’s widow for the assignment of dower:</p> <p>Held, that she was entitled to her dower on making a pro tanto redemption of the mortgage.</p> <p>Held, further, that the matter should be referred to a master to ascertain how much of the amount due on the mortgage should be paid by the widow in exoneration of her dower right.</p>

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

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

<p>A legacy ivas given to A., who was also named executor, “ to be by him invested in his name as executor of my estate, and the interest that may accumulate thereon to be paid by him to F. . . . during the term of his natural life,” with remainder over. The executor’s bond was conditioned “well and truly to administer” the personal estate of the testator which should come into his hands “according to law and the provisions of said will.”</p> <p>A. never invested the legacy in his name as executor, but used it in his business without objection from F., who duly received the interest.</p> <p>A. in his first account to the Probate Court charged off the legacy as having been paid to himself. This was allowed, but the court subsequently revoked the allowance and required A. to recharge himself with tbe amount as executor.</p> <p>A. afterwards resigned, settled his account, and turned over the legacy to an administrator with the will annexed.</p> <p>In an action on A.’s bond as executor, in which the pleadings raised the one question of whether there had been a breach of the conditions of the bond:</p> <p>Held, that A. toot the legacy as executor, not as trustee.</p> <p>Held, further, that A. had not changed his relation to the legacy from that of executor to that of trustee, such a change not being effected by a mere mental determination.</p> <p>Held, further, that there had been a breach of the conditions of the bond.</p>

<p>Case stated for the opinion of the court under Pub. Stat. R. I. cap. 192, § 23.</p>

<p>The delivery of a thing given is not necessary when the intended donee is already in possession of it, but in such a case the gift if completed and unambiguous may be effected by a simple oral declaration.</p> <p>The gift of a savings bank pass book is in effect a gift of the deposit.</p> <p>Tillinghast v. Wheaton, 8 R. I. 536, affirmed.</p>

<p>a. in the employ of B., and hired by the day, worked continuously on C.’s house from November 12 to December 10» December 25 A. served notice on C. that he should claim a mechanic’s lien on the house. The statut provided that no one employed as A. was should have such a lien unless he “shall, within thirty days after commencing the work, give notice in writing to the person against whose estate or title he claims a lien that he has commenced the work, and that he shall claim the benefit of the lien.”</p> <p>Held, that A. was not entitled to a lien: the notice of December 25 not being given within thirty days after he commenced the work.</p> <p>Reid, further, that A.’s being hired by the day was immaterial.</p>

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

<p>Under a statute which forbade the sale of intoxicating liquors . . . “except as provided in section 60 of said chapter 87,” an indictment charged the sale and delivery and negatived the exception as follows : “ Said sale and delivery aforesaid not there and then being as provided in section sixty of chapter eighty seven of the Public Statutes of said State, ‘ Of the suppression of intemperance.’ ”</p> <p>Held, that the negative averment was sufficient.</p>

<p>A. had a license to sell intoxicating liquors which expired July 1. He had made application for a new license which was refused August T, on account of objections to it from land owners in the vicinity.</p> <p>In the trial of an indictment against him for the illegal sale of intoxicating liquors, A. offered evidence that it was customary for the town council in granting licenses to date them back to the expiration of former licenses, also that he had been informed by the town council or by some member of it that if the objections of the land owners were withdrawn a license would be granted.</p> <p>Meld, that this evidence was rightly excluded as irrelevant to the question of A.’s guilt.</p>

<p>In Rhode Island the addition in an indictment to the name of the accused of his degree or mystery is unnecessary and may be omitted, but the addition of a false degree or mystery is fatal error upon a plea in abatement.</p> <p>Sketch of the Rhode Island legislation relative to the addition of degrees and mysteries.</p>

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

<p>EXCEPTIONS to the Court of Common Pleas.</p> <p>Dexter B. Potter, for defendant.</p>

<p>Bill IN Equity for an interpleader and instructions.</p>

<p>A., under a contract with the town of W. and under Pub. Laws R. I. cap. 285, of March 30, 1882, condemned certain land for a reservoir to supply the town with water. Part of the land belonged to B., a citizen of the town. A. leased to C. the right to cut ice from the reservoir, whereupon B., an ice dealer, asked for an injunction, claiming that the lease was violative of law and of A.’s contract with the town; that the ice cutting would defile the water and lessen its amount and would injure B.’s business. B.’s bill only set out A.’s contract with the town as one to supply pure water.</p> <p>On demurrer to A.’s bill:</p> <p>Held, that B. was not entitled to relief. B. was not a party to A.’s contract with the town. B. did not allege any special injury to himself resulting from the defilement of the water. B. did not allege that the lease to C. covered the parts of the reservoir fonnerty owned by B., nor did B. show any legal injury from the lease even if it was ultra vires, not being entitled by equitable process to prevent competition.</p>

<p>Bill IN Equity to establish a lien. On demurrer to the bill.</p>

<p>An assignment of wages to fall due from any future employer, with whom no contract nor engagement for employment exists at the time of the assignment, is void. Such wages are a mere possibility, without conjoined interest, and not assignable.</p> <p>A Justice Court in a case of garnishment gave judgment for a specific sum of money against the principal defendant and discharged the garnishee. The plaintiff appealed, assigning as reasons of appeal that the judgment was wrong, against the evidence, should be reversed, and should be given in his favor for the debt.</p> <p>In the court above, the defendant contended that as the appeal and appeal bond stated that the matter appealed from was the judgment in the plaintiff’s favor for the specific sum, and did not mention the discharge of the garnishee, the garnishee’s discharge was res adjudicaia.</p> <p>Held, that the proceeding against the garnishee was incidental and subsidiary to the suit against the principal debtor, and that an appeal from the principal judgment brought up the garnishee’s liability also.</p>

<p>Trespass on the CASE. On demurrer to the declaration.</p>

Trespass and ejectment. Heard by tbe court on an agreed statement of facts. The premises in question are shown on the accompanying plat.

<p>Assumpsit. Heard under tbe following stipulation signed by tbe attorneys of tbe litigants :</p> <p>“ Agreed to try tbe aboye case to tbe court on tbe following stipulation ; tbe question before tbe court being tbe question of wbetber tbe plaintiff bas title in tbe real estate described in tbe declaration.</p> <p>“ One Irene Butler, tbe mother of Cyrus Butler, from whom tbe plaintiff claims title, made and executed ber last will and testament, and after giving certain bequests to ber two grand children made a residuary clause as follows:</p> <p>“ ‘ All tbe rest, residue, and remainder of my property, of every kind, nature, and description, and wherever tbe same may be, I give, devise, and bequeath unto my son Cyrus Butler of Providence.’</p> <p>“ Subsequent to tbe execution of this will said Irene Butler acquired tbe real estate in question, and tbe question before tbe court to be determined is wbetber or not, under said will, said property in question passed to Cyrus Butler.</p> <p>“ All other questions to be left open.”</p>

<p>A statute provided, “atfo order, judgment, or decree of a court of probate or town council, which may be appealed from, or in any collateral proceeding, when the same shall not have been appealed from, shall be deemed to be invalid or quashed for want of proper form, or for want of jurisdiction appearing upon the face of the papers, if the court or council had jurisdiction of the subject matter of such order or decree.”</p> <p>fíe/c?, that under this statute a judgment is to be upheld as primé facie valid, even when the record does not show by allegations or recitals the existence of the jurisdictional facts necessary to its validity.</p> <p>While this statute was in force the Court of Probate of the town of hi. appointed a guardian upon a petition which neither alleged that the person to be put under guardianship resided in K. or had a legal settlement there, nor alleged any legal reason for the appointment of a guardian. In fact, the Court of Probate had jurisdiction to appoint the guardian.</p> <p>Reld} that the appointment was valid.</p> <p>The appointment was made after notice given by newspaper publication only. The statute provided that in the appointment of guardians notice shall be given by citation served by reading it to the intended ward if to be found, or by leaving an attested copy at his last and usual place of abode, or by advertisement for fourteen days, once a week at least, in some newspaper published in the State.</p> <p>Seld, that the statute was constitutional, and that the notice by newspaper publication was sufficient without personal notice to the intended ward.</p>

<p>COVENANT. On demurrer to tbe pleas.</p>

<p>A. borrowed money of B. and gave an absolute deed of certain land to B. on B.’s verbal agreement to reconvey after being repaid the loan and to allow A. to remain in possession. B. was paid by C. and gave to C. an absolute deed of the land, C. making a similar verbal agreement as to A. C., apprehensive of death, conveyed the land to D., from whom he had received the money paid to B., and D. gave to A.’s wife a bond conditioned to convey the land to her after payment of the sums due from C. to D. and from A. to C., or to convey to her so much of said land as should not he required to pay C.’s debt to D. and A.’s to C. A. remained in possession of the realty. D. sold the land in 1871, and the administrator and heir of A.’s wife in 1880 Sled a bill in equity against D., to establish a trust on the surplus funds in his hands.</p> <p>Held, that the bill could not be maintained in favor of the wife’s estate. Since C. held the land as security, his deed to D. could raise no trust in favor of the wife unless A. joined in its execution, for A. held a resulting trust. Hence the agreement in the bond was without consideration and gave rise to no trust enforcible in equity.</p> <p>Held, further, that the statute of limitations was a good defence.</p> <p>Semble, that the surplus was recoverable in an action for money had and received immediately after the sale.</p> <p>A decree sending a cause to a master is open to revision on final hearing.</p>

<p>The decision of this court heretofore given in the case of Boston and Providence Railroad Corporation et al. v. New Torts and New England Railroad Company et als. 13 R. I. 260, affirmed.</p>

Case under the Public Statutes of Rhode Island, cap. 106, § 6. Heard by the court, jury trial being waived. Pub. Stat. R. I. cap. 106, §§ 2, 5, 6, 8, provide: Sect. 2. All partition fences shall run on the dividing line, and the owners shall have the right to place one half of the width thereof on the land of each adjoining proprietor. Such fences shall be kept up and maintained in good order through the year, unless the parties concerned shall otherwise agree. Sect. 5.

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

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

Petition for an order of the court. The petitioner was by a decree of this court entered October 25, 1884, appointed receiver of the property of Chadwick & Lester, an insolvent copartnership, under Pub. Stat. R. I. cap. 237, § 13, which is as follows: Sect. 13.

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

<p>Bilí, in Equity to redeem certain corporate stock.</p>

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

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

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

<p>Bill oe Interpleader.</p>

<p>A replication of fraud to a plea of release must set out the fraudulent acts relied on, that the court may determine whether they amount to fraud, and that the defendant may know on what to take issue.</p>

Bill in Equity brought by certain tax payers resident in Providence against tbe city treasurer and the city auditor, asking for an account, an injunction, and an order to compel tbe treasurer to refund certain moneys paid by him from the treasury.

Trespass AND ejectmeNT. Heard by the court, jury trial being waived.

<p>The return of an execution by a sheriff is, in Rhode Island, not necessary to vest in a purchaser at the execution sale the defendant’s interest in realty sold under the execution.</p> <p>Nor does the validity of the purchaser’s title depend on the sheriff’s leaving a copy of the execution with the town clerk, as required by Pub. Stat. R. I. cap. 223, § 12.</p> <p>Where a plaintiff’s case rested on the invalidity of a sheriff’s sale, the burden of proof being on the plaintiff:</p> <p>Held, that the legal presumption that the sheriffs return set forth all which he did, was balanced by the contrary presumption that the sheriff performed his statutory duty. Hence the plaintiff should have shown, by extrinsic evidence, neglect of duty on the sheriff’s part.</p>

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

<p>Trespass on the case for malicious prosecution. On demurrer to tbe declaration.</p>

<p>The condition of a replevin bond was that the plaintiff in replevin should prosecute the writ to final judgment, pay such damages and costs as the defendant might recover against him, and restore the same goods and chattels in like good order and condition as when taken, in case such should be the final judgment on the writ. The replevin writ, upon its face good, was dismissed on appeal for want of jurisdiction in the court below from which it issued.</p> <p>Held, that there had been a breach of the conditions of the bond.</p> <p>Held, further, that to satisfy the conditions of the bond, the plaintiff in replevin must prosecute the writ to a final judgment on the merits of the case, affirming his own right of possession or ordering a return and restoration to the defendant.</p>

<p>A purchaser of real estate at an execution sale may in equity avoid conveyances previously made by the judgment debtor in fraud of his creditors.</p>

Trespass ON the case. On defendant’s motion to dismiss the action. The writ in this case was as follows : “The State oe Rhode Island and Providence Plantations. “ Providence, sc. To the Sheriffs of the several counties or to their deputies.

<p>When a son had been guilty of embezzlement, and his mother made a note and executed a mortgage to the employer from whom he had embezzled, and the court was satisfied that the mother’s controlling motive was to protect her son from exposure and prosecution :</p> <p>Held, that she was not a free agent, and that the note and mortgage should be annulled and cancelled.</p> <p>The maxim, In pari delicto potior est conditio de/endentisf does not apply to such a case.</p>

<p>Bill oe Interpleader. The facts involved are stated in the opinion of the court.</p> <p>All of these debts were contracted, and the credits were given, while the mortgagee withheld his incumbrance from the records. The withholding is a badge of fraud. Bump on Fraudulent Conveyances, 2d ed., 38, 39; Shipman v. Seymour, 40 Mich. 274. Our statute says that no chattel mortgage “ shall be valid ” unless possession be given or the mortgage recorded, that is, shall be void exceptas between the parties thereto. The assignee takes the property subject to all the equities, but there are no equities as against creditors in such a case as this. Some of the cases hold that the assignee himself cannot attack the mortgage for want of recording, and some of the cases make a distinction between a solvent and an insolvent estate where a judgment is a lien. But all the cases hold that an unrecorded chattel mortgage is void as against creditors of an insolvent estate in the hands of a voluntary assignee, especially in equity. Bingham v. Jordan et al. 1 Allen, 373; Putnam v. Reynolds et al. 44 Mich. 113; Ourrie v. Knight, 34 N. J. Eq. 485 ; Lochwood v. Slevin, 26 Ind. 124; Hanes v. Tiffany, 25 Ohio St. 549. We have not the same statute, as to what an assignee shall take, as that quoted in Bingham v. Jordan et al., supra, but our law as to recording is exactly the same, and this case says the as-signee is not a “ party,” and all of the cases say that an unrecorded mortgage is void in such cases as the one at bar, and therefore the assignee takes in this case free of any mortgage. Without the statute the assignee takes as.fully in Rhode Island as in Massachusetts ivith the statute. Even actual notice does not save an unrecorded mortgage. The recording, or possession taken, is a condition precedent to a valid holding. Benny v. Lincoln, 13 Met. 200; Travis v. Bishop, IB Met. 304; Rich v. Roberts, 48 Me. 548; Sheldon v. Conner, 48 Me. 584; Robinson v. Wil-loughby, 70 N. C. 358;. Bevans v. Bolton, 31 Mo. 437; Smith v. Moore, 11 N. H. 55; Bill v. Oilman, 39 N. H. 88; Chenyworth v. Daily, 7 Ind. 284. The mortgage being void the mortgagee has no standing in court, and the creditors will be preferred to him.</p>

<p>Bill in Equity to construe a will, for an account, and for an injunction. On demurrers to the bill.</p> <p>The will of Mary R. Burnside, of the city of Providence, dated September 18, 1871, and proven before the Municipal Court of the city of Providence, April 4, 1876, contains the following provisions :</p> <p>“ I, Mary R. Burnside, of the city and county of Providence, in the State of Rhode Island, wife of Ambrose E. Burnside, make this my last will and testament in manner following, that is to say:</p> <p>“ I give, devise, and bequeath to my beloved husband Ambrose E. Burnside, for and during the term of his natural life, the free use and improvement, rents, profits, and income of all my estate, real, personal, and mixed, wherever or however the same is or may be situated, and including therewith all such other real estate as I may hereafter acquire of which I shall die seized, possessed of, and entitled to at the time of my decease.</p> <p>“ To have and to hold the same to him the said Ambrose E. Burnside, for and during the term of his natural life, with full power and authority, at his pleasure, to change the investment of any of my personal property and estate, and also with power and authority, at his pleasure, to sell, transfer, and convey any portion of my personal property and estate, execute the requisite conveyance and conveyances thereof, receive the proceeds of any such sale or sales, and apply and appropriate the net proceeds thereof to and for his own use, benefit, and behoof forever.</p> <p>“ And from and upon the decease of my said husband Ambrose E. Burnside, I give, devise, and bequeath to my mother Fanny Bishop, if then living, for and during the term of her natural life, the free use and improvement, rents, profits, and income of all my estate then remaining, real, personal, and mixed, wherever or however situated.</p> <p>“ To have and to hold the same to her, the said Fanny Bishop, for and during the term of her natural life.</p> <p>“ And from, after, and upon the decease of them, the said Am-brose E. Burnside and Fanny, I give and bequeath ”...</p> <p>Follow a series of legacies, and a residuary devise and bequest, after which come the appointment of executors and a revocation of prior wills.</p>

<p>Bill in Equity for the partition of realty, with an alternative prayer for the appointment of a new trustee.</p> <p>In April, 1878, Josiah Chapin executed a mortgage deed of certain lands in Providence to trustees, in order to secure his notes held by certain savings banks. After default in the conditions of the mortgage, the trustees sold these lands, and Robert Knight became the purchaser in the interest of the holders of the notes. January 1, 1877, Knight executed an indenture conveying the lands to three trustees in trust for the holders of the notes, who were the Franklin Institution for Savings or its Receiver, the Cranston Savings Bank or its Receiver, the People’s Savings Bank, the City Savings Bank, and the Union Savings Bank. Two of these trustees died, and the third wished to resign the trust. Whereupon the Franklin Institution for Savings and its Receiver filed a bill in equity against its fellow cestuis and the surviving trustee, asking that the trust be terminated and the trust realty divided, with an alternative prayer for the appointment of a new trustee. One of tbe respondents objected to tbe bill on tbe ground that under Pub:, Stat. R. I. cap. 172, § 1, Knigbt’s indenture of trust conveyed an estate in common, not a joint tenancy, and that tbe beirs and devisees of tbe deceased trustees were therefore necessary parties to tbe bill, and were not made parties respondent.</p> <p>Pub. Stat. R. I. cap. 172, § 1, is as follows :</p> <p>Sect. 1. All gifts, grants, feoffments, devises, and other conveyances of any lands, tenements, and hereditaments which shall be made to two or more persons, whether they be husband and wife or otherwise, and whether for years, for life, in tail or in fee, shall be taken, deemed, and adjudged to be estates in common and not in joint tenancy, unless it is or shall be therein expressly said that the grantees, feoffees, or devisees shall have or hold the same lands, tenements, or hereditaments as joint tenants or in joint tenancy, or to them and the survivors or survivor of them, or unless other words be therein used manifestly showing it to be the intention of the parties to such gifts, grants, feoffments, devises, or other conveyances that such lands, tenements, and hereditaments shall vest and be holden as joint estates and not as estates in common.</p> <p>So much of Knight’s deed as is involved in the respondents’ objection is recited in the opinion of the court.</p>

<p>In equity proceedings for an account all the parties, both complainant and respondent, are, after decree for accounting, actors.</p> <p>A. sued B. in account. B. afterwards filed a bill in equity against A. for partition and for an account of the matters involved in the action at law. A. answered the bill and joined in the prayer for an account; whereupon a decree was entered referring the cause to a master. Pending the master’s hearing, A. in the action at law sued out and served a writ of attachment against B. by mesne process. On motion of B. in the equity cause:</p> <p>Held, that A. should he restrained from prosecuting the action at law and be required to discharge the attachment.</p>

<p>Case stated for tbe opinion of tbe court under Pub. Stat. R. I. cap. 192, § 23.</p> <p>Stephen Harris, administrator witb will annexed of tbe estate of Caleb F. Harris, after obtaining permission from tbe Probate Court to sell tbe realty of tbe estate for tbe payment of debts, bad tbe same sold at public auction. Tbe purchaser, Stephen H. Arnold, refused to accept tbe administrator’s deed, alleging that tbe advertisement of tbe sale bad not been such as was required by statute. Tbe will of Caleb F. Harris made bis wife sole devisee. She died before bis death and left no issue.</p> <p>On tbe purchaser’s refusal tbe administrator, tbe heirs at law of Caleb F. Harris, and tbe purchaser Arnold, joined in presenting this case to tbe court.</p> <p>Tbe Public Statutes of Rhode Island, cap. 179, §§ 16,17, provide :</p> <p>Sect. 16. Before making any such sale at auction, tbe executor, administrator, or guardian shall give thirty days’ public notice thereof, by posting up at least three notifications of such sale in three public places in the town where tbe real estate or other property to be sold lies, and at least one in each of tbe adjoining towns and in tbe town where tbe ward dwells, or where the testator or intestate last dwelt, or shall publish tbe same in some public newspaper for four successive weeks, or shall give notice thereof in such other manner, instead of or in addition to the above, as the court may direct.</p> <p>Sect. 17. The executor, administrator, or guardian may, in his discretion, adjourn any such sale to any future day whenever he may deem the same advisable, giving notice of such adjournment in the same manner in which notice of the sale was given, as soon as may be after such adjournment and up to the day of the adjourned sale, unless the adjournment shall be from day to day only, and then by making public proclamation thereof at the time and place of the sale, and by setting up a notice thereof at such place.</p> <p>And in cap. 180, § 4 :</p> <p>Sect. 4. In all cases not specially provided for, in which notice is required, it may be given in either of the following modes, at the discretion of the court, i. e. the Court of Probate:</p> <p>1. By causing a citation to be served by some sheriff, deputy sheriff, town sergeant, or constable upon all known parties interested, at least seven days previous to proceeding, which citation shall give notice of the subject matter of the proceeding and of the time and place thereof, and shall be served by reading the same to the parties, if to be found, or by leaving an attested copy thereof at the last and usual place of abode of each of them.</p> <p>2. By advertisement of such notice for fourteen days, once a week at least, in some newspaper published in the State.</p> <p>3. By causing the clerk of the court to post up such notice in some conspicuous place in his office, or in the place at which the court usually meets, and in three other public places within the town, at least fourteen days before proceeding.</p>

<p>Bill in Equity to satisfy a judgment debt out of a right of dower. On demurrer to the bill.</p>

The Constitution of the State of Rhode Island, of November, 1842, article 2, provides : “Sect. 1.

<p>The Constitution of the State of Rhode Island can be lawfully amended or changed only in the mode which itself prescribes.</p>

Public Laws R. I. cap. 454, of April 2, 1875, being “ An act to revise, consolidate, and amend tbe act entitled, ‘ An act incorporating tbe city of Newport,’ and tbe several acts in amendment thereof and in addition thereto,” contains in section 10 tbe following provisions: “ On tbe third Wednesday in April in every year tbe qualified electors of tbe said city shall give in their votes on separate ballots in tbeir respective wards for a mayor, superintendent of public…