Volume 15 — Rhode Island Reports

<p>At the trial of oné indicted for keeping a liquor nuisance, the presiding justice commits no error in refusing to allow a juror to be asked on his voir dire whether he has contributed money for the prosecution of persons generally who are charged with keeping such nuisances.</p> <p>On such trial a request to charge the jury “ that the sale of intoxicating liquor on divers occasions at a place or tenement is not conclusive evidence that the sale was illegal, unless the State prove that the defendant at the time of said sales had no license,” was rightly refused. The guilt of the defendant is to be established, not conclusively, but beyond a reasonable doubt. A statute makes the keeping for sale evidence that the sale or keeping is illegal, and it is for the defendant to produce his license.</p> <p>On such trial a request to charge the jury “that the notorious character of the defendant’s premises, or the notoriously bad or intemperate character of persons visiting the same, or the keeping of the implements or appurtenances usually appertaining to grog-shops, tippling-shops, and places where intoxicating liquors are sold, is not prima facie evidence that such premises, are nuisances,” was rightly refused, because ambiguous and misleading.</p> <p>Th'e credibility of witnesses is a question for the jury, and a “spotter” or informer is not, in contemplation of law, an accomplice.</p> <p>Two persons may be convicted for maintaining the same nuisance if both take part in the maintenance, though one be merely an assistant of the other.</p> <p>A place may be a liquor nuisance if liquor-selling is carried on as an incidental or subordinate purpose of the place, not as the main purpose.</p> <p>Query, whether a single sale of liquor would suffice to make the place of sale a nuisance.</p> <p>It is not error for a judge to refuse a request to charge which is inapplicable to the evidence, or to refuse to charge in the words requested, even if the requested instructions are proper.</p>

<p>A statute required the complainant to give recognizance “to prosecute such complaint to final judgment with effect, or in default thereof to pay the costs which may accrue thereon to the State, or to the person or persons accused.”</p> <p>The complainant gave recognizance “to prosecute the complaint with effect, or in default thereof to pay all lawful costs which may accrue therefrom.”</p> <p>JEfeld, that the difference was immaterial.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This action was trespass on the case brought in the Court of Common Pleas against the defendant for neglect to file an account when garnished in a prior action brought by the plaintiff against one Willis H. Payson in the Justice Court of 'the city of Providence. The defendant in this action pleaded the general issue, “not guilty,” and the action was tried to the court upon an agreed statement of facts, jury trial being waived. After judgment for the defendant, the plaintiff brought this bill of exceptions.</p> <p>The facts involved are stated in the opinion of the court. The statutory provisions referred to by the court are as follows: —</p> <p>Pub. Stat. R. I. cap. 208:</p> <p>“ Sect. 13. If it shall appear by the disclosure of the person making such oath that the person, copartnership, or corporation served with a copy of such writ had, at the time of service thereof, any of the personal estate of the defendant in his or their hands, then and in such case the plaintiff, after having recovered judgment against such defendant, may bring his action against such person, copartnership, or corporation to recover so much as will satisfy such judgment, with interest and costs, if there shall appear by such disclosure to be a sufficiency for the same, otherwise for so much as shall appear by the same to be in his hands.</p> <p>“ Sect. 18. If any person, copartnership, or corporation, after being served as trustee with a copy of any writ, and after having been tendered at the time of such service two dollars and his travelling fees as a witness in the Supreme Court or Court of Common Pleas, and one dollar and like travelling fees in any other court, shall refuse or neglect to render such an account on oath, as aforesaid, of what personal estate of the defendant he had in his hands at the time of the service of such copy, such trustee shall be liable to satisfy the judgment that the plaintiff shall obtain against the defendant in such writ, to be recovered by action on the case, except as provided in section twenty-two, chapter two hundred twenty-two.”</p> <p>Cap. 213:</p> <p>“ Sect. 10. Whenever any person shall be served with a copy of a writ by which he shall be sought to be charged as trustee of the defendant named therein, and such person shall appear and answer to the action so commenced, as to whether he is or is not a trustee of the defendant, the court in which such action is brought or may be pending shall determine whether the person so served is properly chargeable as the trustee of the defendant, and, if chargeable, to what extent.”</p> <p>Cap. 222:</p> <p>“ Sect. 21. In every execution issued against any defendant in an action in which another person shall have been charged, as the trustee of such defendant, under the provisions of section ten of chapter two hundred thirteen, or by the default of the person served with a copy of the plaintiff’s writ for the purpose of charging him as the trustee of the defendant to appear and file his affidavit therein, there shall be inserted next after the words ‘ goods and chattels or real estate of the defendant,’ the words following, namely, ‘ and the personal estate of the said defendant, in the hands and possession of [here insert the name of the trustee], charged as trustee of the said defendant to the extent of [here insert the amount for which the trustee is charged],’ or, if the trustee shall be charged by his default in not filing the necessary affidavit, in said cause, insert, in lieu of the clause fixing the extent to which such trustee shall be charged, the following,'after the word defendant, namely, ‘ by the default of the said trustee to file his affidavit in said action.’</p> <p>“ Sect. 22. If any person named as the trustee of a defendant in any execution, who shall have had a judgment that he be charged as trustee rendered against him by default, shall make affidavit as to whether or not he had personal property of the defendant in his hands or possession at the time of the service of the original writ in said action upon him, and stating the amount, if any, so in his hands, and that he failed to file an affidavit therein before he was charged by the court as the trustee of the defendant, either from want of actual notice of the service of the said writ, or by accident or mistake, and shall give such affidavit to the officer charged with the service of said execution, the officer shall annex such affidavit to his return to the said execution, and if the trustee shall pay to the said officer the money paid for his attendance at the time of the service of the original writ, and another like sum, together with the sum stated in his affidavit to be so in his hands, if any, no further proceedings shall be had therein against such trustee, except as is provided in section eleven of chapter two hundred thirteen, and the officer shall pay the money paid to him by such trustee to the plaintiff.”</p>

<p>Testamentary disposition as follows: —</p> <p>u The remaining one third part of said residuary (estate) X give, devise, and bequeath unto my said nephew, William Ames, in trust for the uses and purposes following, that is to say: The said trustee shall collect and receive all the rents, dividends, profits, and income that may arise or accrue from or out of said one third part, and the same from time to time in his own discretion apply and appropriate for the sole use and benefit of my said } sister, Candace C. Carrington, for and during the term of her natural life; hereby authorizing and empowering my said trustee, in his discretion, and if he shall at any time deem it wise and expedient, to apply and appropriate the whole or any portion of the body or capital of said one third so held in trust as aforesaid, to the use and benefit of my said sister Candace during her lifetime. And upon the decease of my said sister Candace, I hereby direct my said trustee to assign, transfer, and convey the said one third part of my residuary estate, or such portion thereof as shall remain in his hands, unto the children of my said sister Candace, or their descendants, in equal portions, share and share alike, to have and to hold the same unto them, their heirs and assigns forever.”</p> <p>Meld, that Ames took as trustee a fee simple, with power to sell and to convey the fee.</p>

<p>While proceedings were pending against A. and B., copartners, for the appointment of a receiver of their property under Bub. Stat. R. I. cap. 237, § 13, “ Of proceedings in insolvency,” A. made an assignment of his individual property to C. The receiver after his appointment petitioned the court for an order upon A. and G. requiring them to join iuja conveyance to him of the assigned realty, and to transfer to him the assigned personalty.</p> <p>Held, that the assignment was subject to the doctrine of lis pendens.</p> <p>Held, further, that the petition of the receiver should be granted.</p>

Defendant’s petition for a new trial. The plaintiff in this action, while driving along a highway, was injured by his wagon striking a post. He brought suit against tbe town in which the highway was situated, charging that the highway was dangerous, owing to the negligence of the town authorities, and obtained a verdict.

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

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

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

<p>At the trial of A., indicted for stealing from the person of B., it appeared that A., somewhat intoxicated, had been seen fumbling in the pockets of B., who was very drunk, taking money from them and putting it in his own. A. did not account for the possession of money found on him. B., after becoming sober, denied any acquaintance with A., and claimed to have had money which was gone.</p> <p>Eeld, tiiat the question of A.’s intent was rightly left to the jury.</p> <p>The presiding justice at the trial, when asked to instruct the jury that they must be satisfied, the name of the person on whom the larceny was committed was as charged in the indictment, B., did so, adding,u but there is evidence tending to show the man’s name was B. ” Evidence had been introduced that B. gave his name as B.; that some one called at the police station, asked for “B.,” recognized him, and paid a fine imposed on him.</p> <p>Eeld, no error.</p>

Petition for an order of court requiring tbe respondent to pay over certain moneys collected by bim as tbe petitioner’s attorney.

<p>Exceptions to the Court of Common Pleas. The facts involved are stated in the opinion of the court.</p> <p>Providence, May 28, 1885.</p>

<p>Petition for divorce.</p>

<p>When one of two debtors is suret}' for the other, and the common creditor has taken security from the principal debtor, he must give the surety the benefit of the security either by way of payment or subrogation. If the creditor surrenders the security without the surety’s consent, the surety is pro tanto discharged. The surety may show the surrender in defence either at law or in equity.</p> <p>If this relation of principal debtor and surety does not appear on the face of the obligation, it may be shown by extrinsic evidence, as may also notice to the creditor of the relation.</p> <p>But the surrender of the security to discharge the surety must be a surrender of property actually acquired by the creditor for security. Mere non-action on the creditor’s part, or neglect to obtain possession of property for security which with more effort he might have obtained, does not discharge the surety.</p>

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

<p>An assessment list for town taxes was made up as follows: —</p> <p>Names. Description. Real. Personal. Tax.</p> <p>Young, Cyrus, 2A a. home estate, 20 a. T. Young lot, 9 a. woodland, Whipple lot, 800 800 200 12.60</p> <p>With the list was a certificate setting forth the total valuation in dollars and cents, and the amounts in dollars and cents of the total realty tax and of the total personalty tax.</p> <p>Held, that the assessment list sufficiently described the estates taxed, and was not void for uncertainty owing to a lack of dollar signs.</p>

Petition for the removal of the respondents as assignees under a deed of assignment for the benefit of creditors. The Public Statutes of Rhode Island, cap. 287, §§ 3, 11, provide : — “ Sect. 3.

Bill in Equity for partition. On motion for a final decree. The draft decree presented by the complainants in this case contained the following clause: — “ Fourth.

<p>A lot of land in Providence was devised to A. for life, remainder to B. and C. in fee. Pending the life estate, B. mortgaged his interest to D. While the title remained thus, the collector of taxes levied on the lot, and after advertisement sold “the right, title, and interest of A., B., and C. in and to an undivided seven eighths part,” and subsequently, for another tax, levied again, and after advertisement sold “the right, title, and interest of A., B., and C. in and to three undivided eighths part.” No notice of the sales was given by the collector to D., and D. was the purchaser at both sales.</p> <p>Held, under the provisions of Pub. Stat. E. I. cap. 42, §§ 4,6, and cap. 44, §§ 8,10,12, that the sales were void. As to annual taxes, the estate of the life tenant is first liable. As to both tax levies, the effect of the course pursued was to throw a disproportionate charge on A. and'C., and to relieve pro tanto B. and D., thus selling one man’s estates for another's taxes.</p> <p>C. filed a bill in equity against D. to obtain a reconveyance.</p> <p>Held, that the bill could not be sustained. Equity will not interfere to remove a cloud upon title in favor of a party out of possession, claiming under a legal title against his antagonist who is in possession under the written title which makes the cloud. The remedy at law is sufficient.</p>

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

Case stated for an opinion of the court, under Pub. Stat. R. I. cap. 192, § 28, as follows: — “ William E. Greene, being an inhabitant of North Providence, in said county, died September 19, 1851, leaving a last will and testament, of »which the following is a true copy : “ I, William E. Greene, of the town of North Providence, in the county of Providence and State of Rhode Island, being sick in body, but of a sound and disposing mind and memory, do make and publish this my…

<p>Certain citizens presented to the town council of their town a request that K. might be removed from his office of constable, because: “Jlrsthj, said IC is a man utterly devoid of principle, and uses his office more for the purpose of wreaking his personal spite than for the peace and harmony of the community; secondly, said K. is wholly ignorant of the duties of his office; thirdly, said K. has at various times heretofore maliciously and wickedly assaulted and arrested sundry persons who were entirely innocent of the charges charged by him against them; ” whereupon K. broughtan action for libel against the citizens, and at the trial introduced evidence to show that the statements of the request were false.</p> <p>Heidi that the action eould not be maintained without affirmative proof, which was not produced, of express malice.</p> <p>Held, further, that proof of the mere falsit}r of the statements would not support the action.</p> <p>Held, further, that the statements were not such as, if proved untrue, to imply actual malice.</p>

<p>Trespass on the Case. On demurrer to plea.</p>

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

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

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

<p>A. recovered judgment in assumpsit against B. for money loaned. A. afterwards brought case against B. for alleged fraudulent and false statements made to obtain the Joan. B. pleaded in bar the judgment against him in assumpsit.</p> <p>Eeld, that the plea was not good.</p> <p>Eeld, further, that the value of the judgment in assumpsit was to be considered as pro tanto reducing the damages recoverable in the action on the case.</p> <p>To the action on the case B. also pleaded in bar that he had, after the judgment in assumpsit, taken the poor debtor’s oath, which was administered notwithstanding A.’s objection of the alleged fraudulent and false statements. At the trial the presiding justice excluded the evidence offered to sustain this plea. On petition for a new trial, —</p> <p>Eeld, that, as tbe evidence was not set out on the record, the court, not knowing what the evidence was, must’assume it to have been rightly excluded.</p> <p>Query. Whether the allowance or the refusal of a poor debtor’s oath has any effect as a judgment estoppel beyond the effect given by the statute.</p>

<p>In trespass for mesne profits, two leases offered in evidence by the plaintiff to show the rental value of the premises, and the time when he obtained possession, were excluded by the presiding justice. The plaintiff petitioned for a new trial. The record of the ejectment suit had been put in. The lessee of one of the leases had testified as to his rent, and the petition did not set out the rent reserved in the other lease.</p> <p>Held, that the petition did not show that the plaintiff was injured by the exclusion of the deeds, and should not be granted.</p> <p>In trespass for mesne profits the plaintiff cannot recover counsel fees and expenses paid out in the ejectment suit.</p> <p>In trespass for mesne profits punitive damages are allowed only when the defendant has shown malice or bad faith.</p> <p>In trespass for mesne profits the causes of action accrue when the trespasses are committed, and a recovery can only be had for such time as lies within the limits of the statute of limitations.</p>

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

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

Bill in Equity to set aside certain conveyances of realty as fraudulent, and for an injunction. On demurrer to the bill.

<p>F. took out a life insurance policy payable to M. and the children of F. When F. took the policy[out, M. was his wife, and he had four children living by a former wife. Subsequently a child was born to F. and M. Afterwards F. and M. transferred their right, title, and interest in the policy by an unsealed instrument, signed by them, as collateral security for a debt of F., and the instrument and the policy were delivered to the creditor. No question was made as to the validity of the transfer.</p> <p>On a bill of interpleader brought by the insuring company after the deaths of F. and M., — Held, that the policy was an executed, irrevocable, voluntary settlement in favor of the wife and the children in being when it was taken out.</p> <p>Held, further, that F. and M. could pledge or assign the policy to the extent of their interests in it.</p> <p>Held, further, the policy being for $5,000, that one fifth of this amount was due to the creditor, and one fifth to each of the four children.</p> <p>Held, further, one of the four children having died a minor before F., that the one fifth due this child should be paid to his legal representative, if any, and if none, to the administrator of F., the child’s father, and next of kin.</p>

<p>Appeal from the Probate Court of the Town of Cranston.</p>

Trespass on the Case. On demurrer to the declaration. This is one of several cases brought against the defendant for neglecting to provide fire-escapes, in alleged violation of Pub. Laws R. I. cap. 688, of April 12, 1878, in consequence of which the plaintiff was injured by a conflagration in the building in which he was employed. See Cfrant v. Slater Mill Power Co. 14 R. I. 380 ; Baher v. The Same, 14 R. I. 531.

Debt. Heard by the court, jury trial being waived. The facts found are stated in the opinion of the court. An executor, under the laws of one state, cannot indorse a note so as to enable the indorsee to sue in another state. Bibb v. Skinner, 2 Bibb, 57; Sanford v. Mickles Forman, 4 Johns.

<p>An administrator cannot, in Rhode Island, maintain proceedings to recover property conveyed away by the deceased, though the conveyance may have been in fraud of creditors, and the property may be needed to pay the debts of the estate of the deceased. .</p> <p>In such case the defrauded creditors are the proper parties to act.</p> <p>An administrator is, however, the proper party to act, in order to recover sufficient property to defray the expenses of administration, if the assets in his hands are not sufficient for this purpose.</p> <p>When a bill in equity was brought by an administrator to set aside, as fraudulent against creditors, conveyances made by the deceased, and it did not appear whether the administrator held sufficient assets to pay the expenses of administration, —</p> <p>Held, that the bill, instead of being dismissed, might, if the administrator lacked funds to . defray the expenses of administration, be amended by setting forth this fact, and by adding the creditors, or some of them, suing for themselves and the others.</p>

<p>Articles of separation by husband and wife, which contain no express, stipulation against divorce,- are not per se a bar to a divorce prayed for by the injured party, for causes existing prior to the execution of the articles.</p> <p>That the liberal divorce law of this State influenced a petitioner for divorce to come here does not make him any the less a domiciled inhabitant of the State, if he came here bona fide to reside permanently, and not merely to obtain a divorce and then return to his former home.</p>

<p>An action of debt on a judgment of a Court of Magistrates for $40.09 and $3.45 costs was brought in the Court of Common Pleas, the writ being served by attachment of real estate.</p> <p>Held, that the action was rightly brought under Pub. Stat. R. I. cap. 193, § 3.</p> <p>The cancellation of an administrator’s bond hy the Court of Probate does not revoke the appointment of the administrator, nor does it disqualify him from bringing suit as administrator.</p> <p>Evidence was offered by a defendant, on his motion to dismiss, to show that the action was brought without the plaintiff’s consent. This evidence was rejected by the presiding justice, who ruled that the plaintiff, knowing of the action, should himself appear and object.</p> <p>Held, error, and that the evidence should have been received.</p> <p>Held, further, that this Court would hold the case and hear the evidence, the motion to dismiss being a question for the court.</p> <p>Justice Courts are the successors of Courts of Magistrates, and the clerk of a Justice Court is the proper person to certify records and papers of the Court of Magistrates to which his Justice Court succeeded.</p>

<p>At the hearing of a plaintiff’s petition for a new trial of an action of ejectment, on the ground that the verdict was against the evidence, it appeared that the only evidence on the record, and allowed by the justice presiding at the trial, related to the defendant’s possession. The time prescribed for the allowance of evidence, under the 48th rule of practice at law, had expired.</p> <p>Held, that the plaintiff could not amend the allowed statement of evidencd by affidavits set•ting forth what the other evidence in the case was, and showing that the only matter submitted to the jury by the presiding justice was the question of possession.</p> <p>Held, further, that the plaintiff was entitled to show to the court, by proof, that the only question submitted to the jury was that of the defendant’s possession. *</p> <p>Held, further, it being shown by affidavits that the presiding justice ruled as matter of law in the plaintiff’s favor on all questions save that of possession, which was alone submitted to the jury, that the court would consider the petition for a new trial on the allowed evidence.</p>

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

<p>Trespass on the case to recover damages for the defendant’s refusal to transfer certain corporate stock.</p>

<p>The verdict of a jury will not be set aside when the question of fact is not free from doubt, or when more than one conclusion can be drawn from the facts by reasonable men ; and it is quite immaterial that the court might have come to a different conclusion from that drawn by the jury, or that another jury might on the same evidence find a different verdict.</p> <p>The train on which A. was approaching his home stopped before arriving at the station, to allow a freight train coming in the opposite direction to pass the station. It was dark. A., thinking that the station was reached, got out and was injured by the freight train. The conductor, as soon as he learned the cause of the stop, moved his train forward to the station. It was in evidence that passengers at the station habitually left the train on both sides. A. sued the railroad companj' for his damages and recovered a verdict.</p> <p>Held, that the questions of the defendant’s negligence and of the plaintiff’s contributory negligence were for the jury to decide under proper instructions from the court, which in the case at bar were presumably given.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This was a special action on the case, brought by the collector of taxes of the town of Jamestown, in the Court of Common Pleas. The defendant pleaded specially, and the plaintiff demurred to the special plea. The demurrer was overruled by the Court of Common Pleas, and the plaintiff excepted.</p>

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

<p>A party cannot impeach his own witness by proof through other witnesses of contradictory statements, unless the witness is one whom the law obliges the party to call.</p> <p>A party disappointed in his witness may, to refresh the witness’s recollection, ask him if he has not made contradictory statements, but cannot prove such statements by other witnesses.</p>

<p>Motion in Arrest oe Judgment.</p>

<p>Trespass quare clausum eregit.</p>

<p>Dependants’ Petition for a new trial.</p>

Bill in Equity for tbe administration of a testate estate. Elmira Helme, tbe testatrix, gave, by her will, a life estate to ber husband in her entire property. Her will, after tbis life estate, contained devises and bequests which exhausted tbe property and left a large deficit. She died August 17, 1876. Her bus-band, James Helme, died December 22, 1883.

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

Petition for an order of court requiring the respondent to pay over certain moneys collected by him as the petitioner’s attorney.

<p>Under Gen. Stat. R. X. cap. 53, § 5, Pub. Stat. R. I. cap. 56, § 5, the school committee, after the school district has voted to erect a school-house, may appoint appraisers of the land fixed upon by the committee for»the location of the school-house, but cannot appoint appraisers before the district has so voted.</p> <p>A vote by the district to locate is not a vote to erect.</p> <p>The district has no power to locate; this must be done by the committee.</p> <p>A delegated power of condemning property must be exercised strictfy in accordance with the terms of its delegation.</p> <p>Pub. Stat. R. I. cap. 56, § 5, does not imperatively require that the location of a district school-house shall be fixed 'by the school committee before the district votes to build the school-house.</p> <p>Hence proceedings to condemn land for a school-house cannot be quashed because the district’s vote preceded the school-committee’s location.</p> <p>The record of a district meeting stated that the meeting u was duly notified by posting two notices of the time, place, and object of said meeting in the district for five days previous to the day of meeting.” The notice for the meeting gave the time, place, and object of the meeting, was dated six days before the meeting, and was signed by the trustee.</p> <p>Held, that, under Pub. Stat. R. I. cap. 58, § 11, the record was prima, facie evidence of a. valid meeting.</p> <p>On a motion to quash proceedings, only defects apparent on the record can be considered.</p>

<p>The year mentioned in Pub. Stat. R. I. cap. 221, § 2, within which a petition for a new trial may be filed in the Supreme Court, begins to run on the entry of final judgment, and, in the case of exceptions or appeal, from the entry of judgment of affirmance.</p> <p>Thus, when exceptions were taken to the Court of Common Pleas and sustained, and the case was remitted for a new trial, and, by error of counsel, was not reentered, and the former judgment was affirmed on petition, —</p> <p>Held, that the year ran from the date of the affirmance.</p> <p>When counsel obtained a new trial on exceptions, and failed to reenter the case in the court below, alleging that, deceived by the similarity of the name of another case on the docket of the court below, he supposed the reentry had been made, the court, with some hesitation, granted a new trial, on the ground of accident and mistake.</p>

<p>Bill in Equity to subject a legacy to the payment of a judgment.</p>

<p>A. made a loan of money to B., and received B.’s note, accompanied by a paper signed by B. and his wife, acknowledged and recorded, and which would have been a valid mortgage had it been sealed. C. attached B.’s interest in the realty described in the paper, whereupon A. filed a bill in equity against B. and his wife and C., charging accident and mistake as the cause of the paper not being sealed, actual notice of the paper on the part of C., and praying that the paper might be reformed by affixing seals. C. demurred to the bill. y</p> <p>Held, that the demurrer must be overruled.</p> <p>A man cannot allow another to part with money on the faith of^a conveyance, and then, taking advantage of some defect known to himself, clainyfco have acquired by a subsequent conveyance a title better in equity than that o' ' 'tied by such other.</p>

<p>A declaration in trespass and ejectment must show the nature and character of the plaintiff’s estate.</p>

<p>A pecuniary legatee may, within three years from the grant of letters testamentary, bring an action against the executor for his legacy without giving, or offering to give, bond under Pub. Stat. R. I. cap. 187, § 10.</p> <p>Sketch of the statutory provisions of Pub. Stat. R. I. cap. 187, § 10, from A. d. 1798.</p>

<p>On a bill to foreclose, a decree was entered ordering the respondents to pay a certain sum to the complainant within a certain time, and, in default of such payment, appointing a master to sell the mortgaged premises and to deposit the proceeds in the registry of the court</p> <p>Subsequently an action of debt on judgment was brought by the complainant against the respondents to recover the sum mentioned in the above decree. The respondents pleaded Nnl tiel record.</p> <p>Held, that the action did not lie, the decree being in the alternative and on a bill to foreclose.</p> <p>Foreclosure proceedings in eqluity are of the nature of proceedings in rem, and do not ordinarily act in personam.</p>

<p>Bill op Interpleader.</p>

<p>Constitutional questions certified to the Supreme Court under Pub. Stat. R. I. cap. 220, §§ 1-9.</p>

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

<p>The refusal of a motion to nonsuit is ordinarity no ground for exception.</p> <p>Under Pub. Stat. R. I. cap. 232, § 1, tenants at will or by sufferance must quit on the day named in the notice given them to quit by the owner or lessor.</p> <p>Query, if the notice is not reasonable in time, whether the tenant does not have the right of ingress and egress to remove his effects and emblements, after the tenancy has terminated, without being liable as a trespasser.</p> <p>When in a declaration'before a Special Court of Common Pleas against A. and his wife, the only counts showing a letting, hence the only counts setting out a cause within the jurisdiction of the court, charged the defendants as tenants by hiring, and as tenants at will, and no evidence supported the count against them as tenants by hiring, and the only evidence to support the count against them as tenants at will was their admissions in the answer to a bill in equity against them previously filed by the plaintiff, and these admissions showed them to have been tenants at will of a deceased owner, predecessor in title of the plaintiff: —</p> <p>Held, that the tenancy at will under the deceased owner terminated with his death, and being a personal relation, did not fall to the plaintiff by either descent or devise.</p> <p>There were counts against the defendants as tenants by sufferance, but these counts contained no averment of a previous letting.</p> <p>Held, that a letting could not be presumed, as a tenancy by sufferance does not imply a previous letting, and may exist without one.</p>

<p>Bill in Equity for an account. On a plea of the statute of limitations.</p>

<p>Under Pub. Stat. R. I. cap. 192, § 9, which gives to either party in equity proceedings the right to a jury trial of questions of fact raised by the pleadings, and provides that the verdict shall be conclusive unless set aside for cause, the verdict given must stand unless palpably wrong. That the court might have drawn a different conclusion from the evidence, is immaterial..</p> <p>Pub. Stat. R. I. cap. 173, § 1, of fraudulent conveyances, is a substantial reenactment of the English statutes on the same subject, 13 and 27 Elizabeth, and although it omits the proviso in favor of bona fide purchasers for value in the English statutes, must be construed like the English statutes, and as if the proviso had not been omitted.</p> <p>The evidence at a jury trial of issues in equity under Pub. Stat. R.4I. cap. 192, § 9, was reported to the court on a petition for a new trial:</p> <p>Held, that this evidence was before the court only in support of the petition for a new trial.</p> <p>Held, further, that for the purposes of the equity suit the court could only consider the pleadings and the verdict of the jury.</p>

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

<p>In Rhode Island, when, on a bill to redeem, a decree is entered that the complainant may redeem by paying the amount found due on the mortgage, and the decree fixes the time for such payment, and provides that, in default of payment within the time fixed, the bill “from thenceforth stand dismissed out of court with costs,” such a decree is a final decree.</p> <p>In case payment is not made within the time fixed, neither affidavit of non-payment nor a formal decree of dismissal is needed. The decree already entered acts as a decree of foreclosure.</p> <p>Foreclosure without sale is a satisfaction of the debt secured only to the amount of the value of the property taken in foreclosure.</p> <p>When, after foreclosure without sale, the mortgagee brought suit and obtained judgment, not for a deficiency, but for the whole amount of the debt, —</p> <p>Held, that obtaining the judgment was presumptively a waiver or disclaimer of the foreclosure, and presumptively left the mortgage subject to redemption in equity.</p> <p>A. mortgaged certain shares of corporate stock, which, although personalty, were by the charter of the corporation transferable by deed, and then by deed assigned his property for the benefit of his creditors to B. B. conveyed this property to C. by deed, setting forth the same trusts as those under which B. had received it from A. C. died.</p> <p>Mddy on a bill to redeem brought by the administrator of 4., that the legal title to the shares of stock passed to C., and that the personal representative of C. was a necessary party to the suit.</p>

Bill in Equity to redeem a mortgage and for an account. After the opinion given in the last preceding cases, a trustee was appointed to represent the legal title conveyed to Elisha R. Potter, and the bill of complaint in No. 113 was amended. The respondents answered the amended bill, and the cause was heard on bill, answer, and proofs.

<p>Assumpsit. Heard by the court on an agreed statement of facts.</p> <p>This action was brought to recover the taxes upon personal property assessed by the town of Pawtucket, in the years 1881, 1882,1883, and 1884, upon the plaintiff and paid by it. The assessment rolls of the town of Pawtucket for these years show a tax assessed against the plaintiff on several separately specified tracts of real estate, and then simply “ personal valuation, 170,000; personal tax, 2,266.66.”</p> <p>Pub. Stat. R. I. cap. 42, §§ 10, 11, provide: —</p> <p>“Sect. 10. ■ Personal property, for the purposes of taxation, shall be deemed to include all goods, chattels, debts due from solvent persons, money, and effects, wherever they may be; all ships or vessels, at home or abroad; all public stocks and securities, except those issued by the government of the United States; all stocks or shares in any bank or banking association; in any turnpike, bridge, or other corporation within or without this State, except such as are exempt from taxation by the laws of this State: provided, that no shareholder shall be liable to taxation for shares held in any corporation within this State which in its corporate capacity is taxed within this State for an amount equal to the value of its property, or in any corporation without this State which is, or the shares in which are, liable to taxation in the state where such corporation is located; and provided, that no person shall be liable to taxation on personal property, except upon the surplus of the ratable personal estate owned by him over and above bis actual indebtedness.</p> <p>“ Sect. 11. The fixtures enumerated in section three of this chapter; all picking, carding, spooling,. drawing, spinning, and reeling frames, dressing and warping machines, looms, tools, and machines of all sorts, propelled by steam or water power, in any factory, machine-shop, print-works, or manufacturing establishment of any kind, and all live-stock and farming tools on farms ; shall be taxed to tbe owner in the town where they are situated, in the same manner as if he resided there.”</p> <p>Pub. Stat. R. I. cap. 43, §§ 11, 12, provide: —</p> <p>“ Sect. 11. The assessors of any town may, by written demand, require any corporation in this State to make return to them in writing, within twenty days after such demand is made, of the amount and par value of the stock owned in' such corporation by any stockholder residing in the town represented by such assessors, the name of such stockholder being specified in such written demand; and if any corporation shall refuse or neglect, after such demand, to make such return within the time aforesaid, it shall forfeit the sum of one hundred dollars for the use of the town whose assessors make such demand, to be recovered of such corporation by an action of debt, in the name of the town treasurer of such town.</p> <p>“ Sect. 12. Every corporation which is by law required to make returns to the assessors of any town shall return the par value and the cash market value of the shares of said corporation, and the proportionate amount per share at which its real estate and machinery, if any, were last assessed; and the stockholders in any corporation or national banking association shall be taxed only for the difference between the cash market value of each share by them held, and the proportionate amount per share at which its real estate and machinery, if any, were last assessed.”</p>

<p>A statute allowed the commissioners of shell-fisheries to lease tide-flowed land, “not leasing more than one acre in one lot or parcel to any one person or firm.” The commissioners gave to A. a single lease of “a certain piece of land in . . . covered with "tidewater, containing about ten acres, . . . being lot's numbered . . . said lots were leased separately, but are included in one lease for convenience.”</p> <p>Held, that the lease was ultra vires and void.</p>

<p>Exceptions to the Court of Common Pleas in proceedings for forfeiture under Pub. Stat. R. 1. cap. 87.</p>

<p>A., duly licensed to sell liquors in Providence, sent liquors in balk to B., in Hopkinton, where no licenses were granted, with the agreement that they should remain the property of A., but that B. might draw ten gallons at a time as he wished, paying therefor when drawn.</p> <p>Held, that A. was illegally keeping for sale and selling liquor in Hopkinton, and that the liquors were properly seized, and were forfeited to the State.</p> <p>An information for the forfeiture of liquors under Pub. Stat. E. I. cap. 87 charged that they “were kept for the purpose of sale, without authority, within this State, against the statute.”</p> <p>Held, that the charge was sufficient.</p>

<p>CASE stated for an opinion of the court under Pub. Stat. R. I. cap. 192, § 23.</p> <p>An attorney at law made an assignment for the benefit of his creditors of all his property, “ except so much thereof, other than debts secured by bills of exchange and promissory notes, as is exempt from attachment by law,” and claimed that his law-books used by him in the practice of his profession, and not exceeding the value of two hundred dollars, were, by Pub. Stat. R. I. cap. 209, § 4, clause 2, exempt from attachment, and therefore did not pass to his assignee by the assignment.</p>

<p>Land of A. was taken for a highway. Pending the proceedings of condemnation A. sold the land to B., who claimed damages from the town for the taking. From the decree of the town council awarding compensation both A. and B. appealed to the Court of Common Pleas.</p> <p>jHeld, that A.’s appeal was improper, and should have been dismissed at the request of the appellee.</p> <p>The two appeals were consolidated by the Court of Common Pleas.</p> <p>Meld, error.</p> <p>A judgment was then entered by the Court of Common Pleas on A.’s appeal, but the record showed no judgment of any kind on B.’s appeal.</p> <p>Meld, that the judgment was erroneously entered.</p> <p>Meld, further, that the case must be remanded to the Court of Common Pleas to dispose of B.’s appeal.</p> <p>The front line of lots platted for partition was drawn parallel with and twenty feet from W. Street, and each deed of partition contained the statement, “ The strip of land situated in front of lot No. as designated on said plat, which is intended to be used at some future time to widen W. Street, is included in the above conveyance, and may be improved by the grantee until it shall be laid out for a street, but no building can be erected thereon.”</p> <p>Meld, that the plat and deeds were not an offer to dedicate the strip to highway purposes. Meld, further, affirming Aldrich v. Billings, lí R. I. 233, that the deeds conveyed the strips “ subject to the easement of the other owners on the street to have the strip unincumbered by buildings, and ready at any time to be laid out for a street.”</p> <p>Meld, further, that the strip could not be taken for a street without compensation to the owners.</p> <p>Meld, further, that the measure of compensation was the loss sustained by taking the land for a street, regard being had to the restrictions on the use of the land and to the benefit accruing from widening the street.</p>

<p>Realty was devised to a trustee in fee to pay over the income to certain named cestuis, no time being limited during which payment was to continue. Provision was made by the will as to one of the cestuis, that in case of his insolvency, or of an attachment of his equitable estate, his right to income should terminate, and his share be paid by the trustee to A., B., and C., their heirs and assigns; also, that the trustee might in certain contingencies pay over to the cestui his whole interest in the trust property, “ in fee simple for his own use,” free from all trusts.</p> <p>Held, that the cestuis que trustent took each an equitable estate in fee simple.</p>

<p>W. died 2, resident of Providence. Letters of administration were granted to A., in Tiverton, where W. had formerly resided. Subsequently letters of administration were granted in Providence to B.</p> <p>In a bill of interpleader against A. and B. to determine which was entitled to the assets of W., —</p> <p>Held, that the letters of administration granted in Tiverton were void.</p> <p>Held, further, that want of jurisdiction in the Probate Court of Tiverton could be shown collaterally, although the decree of the Probate Court described W. as “late of Tiverton.”</p> <p>Probate Courts in Rhode Island are courts of limited jurisdiction.</p> <p>When the jurisdiction over a case, of a court of limited jurisdiction, depends on some fact which can be decided without deciding the case on its merits, the jurisdiction may be questioned and disproved collaterally, although the jurisdictional fact is averred of record, and has been on evidence actually found by the court.</p> <p>But when the question of jurisdiction is so involved in the subject-matter of the suit that it cannot be separately decided, the judgment rendered is conclusive in collateral proceedings.</p>

<p>A., having a contingent equitable interest in certain realty, gave a quitclaim deed of his interest to B., and afterwards a warranty deed of his interest to C. Subsequently, when the contingent interest had become a vested one, A. gave to B. a deed confirming his former deed. C. gave notice of his claim to A.’s-trustee, who, notwithstanding, conveyed the legal estate to B. C.’s grantee then filed a bill in equity against B., claiming the realty by virtue of the warranty in A.*s deed to C.</p> <p>Held, that the bill could not be maintained.</p> <p>The first deed of A. to B. and the deed of A. to C. affected equitable contingent estates, and must be construed as operative in equity according to their intents, i. e. as executory contracts of sale. As B. obtained the legal title, neither A. nor C. nor C.’s grantee had equities sufficient to overthrow it.</p> <p>It was claimed that A.’s first deed to B. was given to compound a felony.</p> <p>Reid, on the evidence, that this claim was not proven : the consideration of the deed might have been an honest desire to make restitution.</p> <p>Reid, further, that B.’s title rested on an executed contract, which, if illegal in its inception, would not, when executed, be disturbed.</p> <p>Reid, further, that B.’s title was a legal one; that this legal title was free from all illegality; and that B. only referred to A.’s first deed to show a holding for valuable consideration and under a claim of right.</p>

<p>A young child strayed from its home on to a railroad track, crossed the track, and fell into an adjoining trench. The track was not fenced on the trench side.</p> <p>In an action against the railroad company for damages, the plaintiff child claimed that its fall was caused by the company’s negligence in not fencing the track on the side of the trench. Held, on demurrer to the declaration, that the company was, as to the plaintiff, under no obligation so to fence its tracks that the plaintiff could not get from them on to the adjoining land, jHeld, further, that the action could not be maintained.</p> <p>On demurrer to a declaration against a corporation, the charter of the corporation is not before the court.</p>

<p>A. executed a bond to B., u her executors, administrators, and assigns,” conditioned on the transfer by A. of certain realty, in certain contingencies, to B. “ or her assigns.”</p> <p>Held, that the administrator of B. was her “ assign ” within the meaning of the word 11 assigns ” in the condition.</p> <p>Held) further, that a transfer to the administrator of B. would satisfy the condition of the bond.</p> <p>Hence the death' of B. did not render the performance of the condition impossible although no assignment of the bond had been made by her.</p> <p>When an agreement is recited in a sealed instrument, the recital will not make the agreement a specialty unless it appears that the recital was intended to renew the agreement under seal.</p> <p>To an action on a bond conditioned upon the transfer of such parts of certain lands as were not needed to pay certain debts, which debts were to be paid from the proceeds of the sale of the lands, the defendant pleaded performance: the plaintiff replied setting out a surplus of sale proceeds in the defendant’s hands above the amount of the debts, and closing with a special traverse. On demurrer to the replication, —</p> <p>Held, that the surplus money in the defendant’s hands was in effect surplus land.</p> <p>Held, further, that the affirmative inducement of the replication was a sufficient answer to the plea, and that the replication with its special traverse was therefore good.</p> <p>Covenant was brought on the promise to pay expressed by the words, “ to which payment well and truly to be made I bind myself,” in a bond with a condition of defeasance.</p> <p>Held, that these words contained a covenant to pay, and that the action of covenant would lie.</p> <p>Held,, further, that no demand was necessary before action brought.</p> <p>The defendant pleaded performance.</p> <p>'Held, that the burden of proof was on the defendant to prove, the allegations of his plea, although a breach of the condition of the bond was alleged in the declaration.</p>

<p>Trespass quare clausum. On demurrer to the plea.</p> <p>The freemen of the town of Middletown, in town meeting, April 16,1746, passed the following vote: —</p> <p>“ Town Meeting Records, Book No. 1, p. 20. April 16,1746.</p> <p>“Voted, that Sechewest Beach be sold to Jonathan Easton, for two hundred pounds, in case he will allow all such privileges as shall be thought necessary for the service of the town by a committee hereafter chosen, and likewise pay all the rents now behind since the devision of the town, and pay all the charge created aboute said beach, since the devision. And that John Allen, John Clarke, Peleg Slocum, Thomas Gould and Peleg Roggers be, and they are hereby appointed a committee, they or the major part of them, to sell the same, and in case they sell the same, they are to reserve the privileges by bond to be recorded with the deed, and they to put the money into the town treasury, and the town clerke to give the deed, and they to make report of their doing to the next town meeting.”</p> <p>The committee reported as follows : —</p> <p>“ Town Meeting Records, Book No. 1, p. 28. August 26, 1746.</p> <p>“Whereas, John Allen, John Clarke, Peleg Slocum, Thomas Gould and Peleg Roggers, were appointed a committee at the town meeting in April last, to sell Sechewest Beach to Jonathan Easton, and make report to the next town meeting, who then reported that they had not finished the same, and desired to be continued, and make report to this meeting, who now report they have sold said beach for two hundred thirty-seven pound and eighteen shillings excluding the rent and charge, and put the money into the town treasury, and likewise presented an account amounting ”...</p> <p>Whereupon the following deed was given. It is recorded in Deed Book 1, p. 76, in the office of the town clerk of Middletown:</p> <p>“ To all people to whom these presents shall come : I, Edward Easton, of Middletown, in the County of Newport, in the Colony of Rhode Island and Providence Plantations, in New England, Yeoman, (Town Clerk of Middletown aforesaid) send greeting: Whereas, at a Town Meeting held in Middletown aforesaid, the sixteenth day of April last past, it was voted that Sechewest Beach be sold to Jonathan Easton, and the Town Clerk to give the deed, as in and by the said vote of the said Town Meeting ; Relation being thereunto had may more fully and at large appear. Now know ye, that I, the said Edward Easton, Town Clerk, for and in consideration of the sum of two hundred and thirty-seven pounds, eighteen shillings, current money of the Colony aforesaid, Old Tenor, to me in hand paid at or before the sealing and delivery hereof by Jonathan Easton, of Newport, in the County and Colony aforesaid, merchant, the recept whereof I do hereby acknowledge, and thereof do acquit and forever discharge the said Jonathan Easton, his Heirs, Executors, Administrators and Assigns, by these presents Have granted, bargained, sold, aliened, enfeoffed, conveyed and confirmed, And by these presents (and by Virtue of the said recited Vote of the Town Meeting aforesaid) Do grant, bargain, sell, alien, enfeoff, convey and confirm unto the said Jonathan Easton, his Heirs and Assigns, A certain Beach, called and known by the Name of Sechewest Beach, Scituate, lying and being in Middletown aforesaid, containing by estimation Eighty Acres, be the same more or less, and is bounded as followeth, viz.: Southerly on the sea or Ocean; Westerly on Land of the said Jonathan Easton; Northerly partly on Land of James Hony'man, Jr., and partly on Land of the said Jonathan Easton ; and Easterly on Land of the said Jonathan Easton; Together, also, with all and Singular Ways, Rights, Liberties, privileges and Appurtainances whatsoever to the same belonging ' or in any wise appertaining. To have and to hold the said Beach hereby granted, with the Appurtenainces, unto the said Jonathan Easton, his Heirs and Assigns, To the only proper use and behoof of the said Jonathan Easton, his Heirs and Assigns, forever. And I, the said Edward Easton, Town Clerk, for myself and my successors in said Office do covenant, promise and grant to and with the said Jonathan Easton, his Heirs and Assigns, by these presents, in manner following (That is to say) : That I, the said Edward Easton, Town Clerk, now, at the time of the sealing and delivery hereof (by virtue of the afore Recited Vote of the Town Meeting), have in my self good right, full power, lawfull and absolute authority, to grant, bargain and sell' tbe said Beach, Hereditament and premises hereby granted, with the appurtainapces, unto the said Jonathan Easton, his Heirs and Assigns, in manner and form as aforesaid. And that the said Jonathan Easton, his Heirs and Assigns, shall or lawfully may from time to time, and at all Times forever hereafter, Quiately and peaceably Have, Hold, use, Occupy, possess and Enjoy the said Beach, Hereditaments and premises hereby granted, with the Appurtainances, Free and Clear, and Freely and Clearly acquitted, exonerated, and forever Discharged of and from all and all manner of former and other Gifts, Grants, Bargains, Sales, Leases, mortgages, Joyntures, Dowries, Wills, Entails, Fines, amerciments, Judgements, Executions, Extents, Titles Charges, Troubles, Claims and Demands, Burthens and Incumbrances whatsoever. Furthermore, I, the said Edward Easton, for myself and my Successors in said Office of Town Clerk, the said Beach, Hereditament and premises, hereby granted, with the Appurtainances, unto the said Jonathan Easton, his Heirs and Assigns, against me, the said Edward Easton, and my successors in said Office, and against all and every other person and persons whatsoever belonging to Middletown, shall and will warrant and forever defend by these presents.</p> <p>“ In Witness whereof, I, the said Edward Easton, Town Clerk, have hereunto set my Hand and seal, the nineteenth day of May, in the nineteenth year of His Majesty’s Reign, George the Second, King of Great Britain, &c., Anno ye Domini one thousand seven hundred and forty six.</p> <p>“ Edward Easton, Town Clerk, j seal. |</p> <p>“ Signed, sealed and Delived</p> <p>In the presents of</p> <p>“William Turner,</p> <p>“Sarah Turner.</p> <p>1 Recorded May 19th, 1746, |</p> <p>“ Pr. Edw’d Easton,</p> <p>“ Town Clerk.</p> <p>“ Middletown, ss : May 19, 1746.</p> <p>“ Edward Easton, Subscriber to the above Instrument, personally appeared and acknowledged the same to be his Act and Deed, hand and Seal thereto set.</p> <p>“ Before William Turner, Just, of peace.</p> <p>“To Edward Easton, Town Clerk of Middletown : We whose names are underwritten, being Chosen a Committee at a Town Meeting, held in said Middletown the 16th of April, 1746, to sell Sechewest Beach to Jonathan Easton, and according to said vote we have sold the same.</p> <p>“ Dated May 12th, 1746. “ John Allen,</p> <p>“Peleg Slocum,</p> <p>“Thos. Gould.”</p> <p>And Jonathan Easton executed the following bond, which is recorded in Deed Book 1, p. 78, in the office of the town clerk of Middletown: —</p> <p>“ Know all Men by these presents : That I, Jonathan Easton, of Newport, in the County of Newport, in the Colony of Rhode Island and Providence Plantations in New England, Merchant, am held and firmly bound unto Thomas Gould, of Middletown, in the County and Colony aforesaid, Esq), (Treasurer of the Town of Middletown aforesaid,) in the full and just sum of Two Thousand pounds, Current money of. the Colony aforesaid, Old Tenor, To be paid to the said Thomas Gould in his capacity aforesaid, or to his successors in said Office: To which payment well and truly to be made, I bind myself, my Heirs, Executors, Administrators' and every of them, firmly by these presents, Sealed with my Seal, Dated the nineteenth day of May, Anno Domi One Thousand Seven Hundred and Forty Six.</p> <p>“Whereas, at a Town Meeting held in Middletown, the sixteenth day of April last past, ‘Voted, That Sechewest Beach be sold to Jonathan Easton, for Two hundred pounds, In Case he will allow all such Priviledges as shall be Thought necessary for the Service of the Town by a Committee hereafter chosen : and likewise pay all the Rents now behind since the Devisión of the Town, and pay all the Charge created aboute said Beach since the .Devision. And that John Allen, John Clarke, Peleg Slocum, Thomas Gould and Peleg Roggers be, and They are hereby appointed a Committee, they, or the Major part of them, to Sell the same, and in case they Sell the same, They are to Reserve the privileges by Bond to be Recorded with the Deed, and they to put the money into the Town Treasury, and the Town Clerk to give the Deed,’ As in and by the said recited Vote of the Town Meeting, aforesaid, Relation being thereunto had may more fully and at large appear. And Whereas, in and by a Certain Deed under the Hand and Seal of Edward Easton, of Middle-town aforesaid, Yeoman, (Town Clerk of Middletown aforesaid,) duly executed, bearing even Date with these presents, He, the said Edward Easton, for the consideration therein mentioned, Did grant and Convey unto the sa= Jonathan Easton, his Heirs and Assigns, A certain Beach, called and known by the Name of Sechewest Beach, Scituate, lying and being in Middletown aforesaid, and is bounded as follows : viz.: Southerly on tbe Sea or Ocean, Westerly on Land of the s- Jonathan Easton, Northerly partly on Land of James Honeyman, Jun., and partly on Land of the said Jonathan Easton, and Easterly on land of the said Jonathan Easton, Together with the Appurtenances.</p> <p>“ To hold to him the said Jonathan Easton, his 'Heirs and Assigns forever, As in and by the said Recited Deed, Relation being thereunto had may more fully and at large appear. Now, the Conditions of this present Obligation is Such, That if the said Jonathan Easton, his Heirs, Executors, Administrators and Assigns, do and Shall grant and allow unto the Inhabitants of the Town of Middletown aforesaid, forever, The following Liberties and privileges out of the above mentioned ■ and described Beach, (That is Say,) A Conveniant Drift way to pass and Repass from the end of the Lane near the place called the Falls, across that called his, the said Jonathan Eastons Ten Acre Lott, down to the Commonage Sold to him. And that there shall be a good large Gate or Gates always kept in good Repair, where it now stands, fit for Carts and Horses to pass through, and that the Surveyors of the Highways shall have Liberty at any time to mend the said Drift way, also a Conveniant Drift way over the said Commonage Sold to him, to the Eastermost part thereof untill it comes to that called Anna Bennetts Lott, and then to go over or across any part of the Southermost part of the said Anna Bennett’s Lot: Together with a Conveniant Drift way down to the Landing place, with Sufficient Room along the North Shore to Land wood, Rails, or what Else any of the Inhabitants aforesaid may have Occasion to Land, with Liberty to Transport it from thence at any time. And y* there Shall be a Conveniant Drift Way to pass and Repass into Sechewest Neck, along said Beach or Common-age, and so to the Northwestermost part of Henry Tews Land. Likewise that any of the Inhabitants aforesaid shall have full and free Liberty of going to and from the said Beach or Commonage, or any part thereof, without mollestation, either on Horse back or on foot, likewise with Carts and Teems of Oxen or Horses, -to fetch and carry away from the said Beach or Commonage, Sand, Seeweed and Shells, and all Such Drift Stuff as any of the Inhabitants aforesaid shall take up in the Surff, or under High Water Mark, against said Commonage or Beach. And that They shall have the Liberty to lay Seeweed and Shells in heaps on any part of the said Commonage, and to carry off the same, as it suits their Conveniancy: Then this present Obligation to be Void and of none effect, otherwise to be and Remain in full force and Virtue. t &emdash;1&emdash; \</p> <p>“ Jonathan Easton, j seal. j</p> <p>. “ Sealed and Delivered ) In the presence of j</p> <p>“ Giles Slocum,. Jun.</p> <p>“ Wm. Turnee.</p> <p>"Recorded May 24, 1746,</p> <p>"Pr. EDW'D EASTON, ~` T. Clerk.</p> <p>"MIDDLETOWN, ss., May 19th, 1746.</p> <p>"Jonathan Easton, Subscriber to th€ above Instrument, personally appeared and acknowledged the Execution of th€ Same to be his act and Deed, hand and Seal hereto set.</p> <p>“ Before Wm. Tuenee, Just, of the peace.”</p> <p>Jonathan Easton’s title under the above deed was devised to his son, and from him, by descent, devise, deeds of conveyance and partition between his heirs, passed to John Alfred Hazard, who by his will gave it to the Newport Hospital.</p> <p>This action was trespass for asporting sand and gravel from Sachuest Beach. The defendant, as his fourth plea, filed one of equitable defence under the statute, setting forth the above bond, averring that he was an inhabitant of the town of Middletown.at the time of the alleged trespasses, and as such lawfully took sand and gravel from the beach, and that the plaintiff derived title from the will of Easton and from devises, deeds, and partitions made betwéen themselves by the successors in title by devise andi descent of Easton’s devisee.</p> <p>To this plea the plaintiff demurred.</p>

<p>Pub. Stat. R. I. cap. 222, § 14, provides that execution may issue against the body of a defendant whenever it shall be made to appear to the court which rendered the judgment, or to any justice thereof, that the “ defendant has been guilty of fraud ” . . . “ in the concealment, detention, or disposition of his property.”</p> <p>Meld, that such an execution properly issues without notice to the defendant.</p> <p>Meld, further, that such an execution properly issues when the defendant owns a patent right which he refuses to apply to the payment of the judgment against him.</p> <p>Reach, Petitioner, 14 R. I. 571, followed.</p>

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

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

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

Assumpsit. On demurrer to the declaration. This action was brought to recover moneys expended by the city of Providence under an “ Act for filling up certain low grounds covered with stagnant water in the compact part of the town of Providence,” Digest of 1822, p. 480. The first three sections of this act date from A. D. 1797, Schedules General Assembly, May, 1797, pp. 17, 18, and the last three date from A. D. 1817, Schedules General Assembly, October, 1817, pp. 30-32.

<p>The acknowledgment of a debt, when the acknowledgment is made to a stranger and not meant to be communicated to the creditor, will not remove the bar of the statute of limitations.</p>

<p>A private person is liable in damages for a wrongful arrest or imprisonment directed or authorized by him.</p>

Bill in Equity for an account and an injunction. On exceptions to the answer. The questions raised are stated in the opinion of the court. The .charter of the respondent corporation, granted at the May session of the General Assembly, A. D. 1844, contains the following provisions: — “Sect. 15.

<p>When a question was presented by the pleadings in a suit in equity, argued by counsel, urged upon the court, and decided by it, the question is res adjudícala between the parties to the suit, even if the decision of the question was not strictly necessary in determining the suit.</p> <p>Almy v. Daniels, 11 R. I. 250, affirmed.</p> <p>In an action of account under Pub. Stat. R. I. cap. 236, by one tenant in common against his co-tenant, it appeared at the trial that the plaintiff had been excluded from one half of the common realty by the defendant, while plaintiff and defendant occupied the other half in .common.</p> <p>The defendant offered to prove that the plaintiff’s use and occupation of this other half was equal in value to the use of his proper share of the whole.</p> <p>Held, that the evidence could not be received, and was no answer to a demand for an account.</p> <p>When a tenant in common has the entire and exclusive occupation of the whole or any part of the common estate, he is liable to account therefor.</p> <p>When he has the income or profit of more than his share, he is liable to account for the excess.</p> <p>When he uses the estate onljT to an extent less than his share, and not to the extent of an ouster or denial of right of his co-tenant, he is not liable to account. Hence such use cannot be offset against the excessive use by his co-tenant.</p> <p>In an action of account the defendant pleaded the general issue and the statute of limitations. No replication was filed to the plea of the statute of limitations, but a general verdict was rendered for the plaintiff.</p> <p>Held, that the plea of the statute of limitations not being replied to was a bar as to matters of account prior to the six years next before action brought.</p> <p>Held, further, that the plaintiff was entitled to an account for the six years prior to and ending with the date of his action.</p>

<p>Bill in Equity for instructions.</p> <p>Newport, May 14, 1886.</p>

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

<p>Public Laws R. I. cap. 492, of April 23, 1885, known as the “ screen law,” requiring liquor dealers to remove obstructions to a clear view of their premises through the window on Sunday, is constitutional, although it does not define what constitutes an obstruction.</p> <p>Constitutional questions certified to the Supreme Court under Pub. Stat. R. I. cap. 220, §§ 1-9.</p>

Tbespass on the Case. On demurrers to the declaration. The declaration contained two counts : — 1.

<p>A minor inherited certain realty of which his parents had been tenants in common in equal shares. Under the direction of the Court of Probate the minor’s guardian sold the realty. The minor then died childless before attaining majority, and leaving a will which was a valid testamentary disposition of personalty, hut not of realty.</p> <p>Held, under Pub. Stat. R. I. cap. 179, § 14, that the surplus in the guardian’s hands descended as if realty, in equal moieties, to the minor’s paternal and maternal next of kin.</p>

<p>Public Laws R. I. cap. 595, of May 27, 1886, relative to town elections in the town of Cranston, requires voting to be by ballot, and gives no power to reopen the polls on the day of an election in case of failure to elect.</p>

Exceptions to the Court of Common Pleas. Commissioners appointed under Pub. Laws R. I. cap. 349, of March 28, 1883, and acting under the authority given to them by that act, built a bridge across the Seekonk River from Providence to East Providence. Tbe east part of tbe bridge passed over tide-flowed flats, and was supported at its end by a masonry pier which completely blocked Warren Avenue, a street in East Providence that had been a highway since A. D. 1735.

<p>A testator gave his whole estate to trustees, —</p> <p>1. To pay an annuity to his son during life.</p> <p>2. To pay the rest of the income to the son’s wife and children, so far as needed for their support.</p> <p>3. To distribute the capital after the son’s death to the widow and children of the son in equal shares.</p> <p>4. And, if no wife nor child, to hold for the benefit of a church.</p> <p>The son died leaving a widow, but no children.</p> <p>Held, that the widow was entitled to a conveyance of the whole estate in the hands of the trustee.</p>

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

<p>Bill in Equity for discovery, an injunction, and to compel the transfer of realty. On demurrers to the bill.</p>

<p>A statute provided that members of every incorporated manufacturing company should be liable for all debts of the corporation until the whole capital stock was paid in and certain certificates filed.</p> <p>Eddy that this liability extended to all persons who were stockholders when the debt was contracted, and also to all persons who were stockholders when the liability was enforced by legal process, but not to persons becoming stockholders after the debt was contracted and ceasing to be stockholders before the liability was enforced.</p> <p>Another statute gave to a stockholder paying such debt of the corporation an action for contribution against the stockholders “originally liable ” with him for the debt.</p> <p>Edd7 that ail persons who were stockholders when the debt was contracted, and also all persons who were stockholders when the liability for the debt was enforced, could be made to contribute.</p> <p>Executors and administrators may effectively plead the special statute of limitations of three years in their favor to an action against them for such contribution.</p> <p>Trustees holding stock in trust are liable to contribute from the trust funds in their hands.</p> <p>Married women are also liable to contribute, the liability being statutory and incident to the ownership of stock.</p> <p>No record is required to perfect the transfer of stock, unless such record is required by the the charter or by-laws of the corporation.</p> <p>When outstanding notes of a corporation were paid by the proceeds of bonds issued by the corporation to others than the note-holders, —</p> <p>Eddy that the debt represented by the bonds was contracted as and when the-bonds were issued.</p>

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

<p>Exceptions to the Court of Common Pleas.</p> <p>The plaintiffs, copartners under the name of A. E. Arnold & Co., mortgaged certain property to the defendant, who, after condition broken, sold under the mortgage, but did not require cash payment from the purchaser. Nothing in the mortgage authorized a sale upon credit, but credit was given with the consent of Thurs-ton. Greene was obliged to bring suit to recover the purchase-money, and, in his account with the mortgagors, charged them with his expenses. The present action was brought in the Court of Common Pleas to recover the amount due from Greene, the mortgagee, to the plaintiffs, the mortgagors. After it was entered, the plaintiff Thurston filed a written agreement of discontinuance. The court refused to recognize this agreement, and, jury trial being waived, gave the plaintiffs judgment for $144.90 and costs.</p> <p>The defendant excepted to the rulings of the Court of Common Pleas, and the exceptions were heard in this court.</p>

<p>Oe these actions, one was assumpsit and the other trespass on the case for deceit. They were heard together by the court, jury trial being waived in each.</p> <p>The statute of frauds of this state does not extend to the transfer but only to the making of a lease. Since it is a statute taking away a remedy, it is to be construed strictly, and is not to be extended beyond its plain terms. Smith v. Spooner, 3 Pick. 229.</p> <p>The use by the legislature of the words peculiar to our statute, “ or the making of any lease thereof for a longer time than one year,” is significant, and must be considered to have expressed a purpose different from the English statute, the first part of which is like ours, but the last part radically different, — “ sale of lands, tenements, or hereditaments, or any interest in or concerning the same.” See Ewing v. Tees, 1 Binn. 450.</p> <p>The distinction between the transfer and the making of a lease is clear and unmistakable, and there is much reason in the statute extending to the latter and not to the former; since in making a lease the length of time, the amount of rent, when it shall be payable, and numerous conditions and covenants on each side, have to be settled upon ; while, in the transfer of a lease already made, all these have been determined, and there is no more need of a memorandum to prevent fraud or perjury than in the sale of any other piece of personal property. In a case like the present, such an extension of the statute would work a fraud instead of preventing one.</p>

Bill in Equity and cboss-bill, both asking for injunctions. All claim of prescription is precluded by Wetmore’s acceptance from William B. Lawrence of a deed conveying a parcel of land on Lawrence Avenue, and containing the following clause: — “ It is distinctly understood by and between tbe parties hereto, that there shall be no right of frontage on, or access to, the said Lawrence Avenue, for, any land of this grantee, except for the parcel hereby conveyed.” At the time…

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

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

Bill in Equity to redeem a mortgage and for an account. The respondents claim that the right of redemption is barred because, although holding the first mortgage by assignment, but not being in possession of the premises, he bought the title to the estate at a tax sale, July 24, 1877, under which title he entered and held the premises. 1 Jones on Mortgages §§ 711-713 ; Blythe v. Bicharás, 10 Serg. & R. 261; Walthall v. Hives, Battle f Go. 34 Ala. 91; Harrison v. Boberts, 6…

<p>An offer made in Boston, Massachusetts, and to stand until the next day, was accepted by telegram from Providence, Rhode Island. The receipt of the telegram was admitted.</p> <p>Held, that the contract was completed in Rhode Island, though to be performed in Massachusetts.</p> <p>A. sued B. for the price of scrap-iron which A. claimed that B. had purchased and refused to receive. B. denied any negotiations for other than No. 1 iron, while the iron proffered was of inferior quality, such as witnesses testified was only purchased after inspection.</p> <p>Held, that evidence as to the kind of iron used at B.’s works was improperly excluded when offered by the defendant at the jury trial.</p>

<p>A statute may be unconstitutional and void in part, and in part valid.</p> <p>Public Statutes E. I. cap. 87, § 81, forbidding the sale of liquors on Sunday, is not inconsistent with the constitutional amendment Art V. of April 7, A. D. 1886, as § 31 is separable from the rest of the chapter. ■</p>

<p>Public Statutes R. I. cap. 87 enacts a license system for the sale of intoxicating liquors. This system, with its dependent provisions, was annulled by the constitutional amendment, Art. V. of April 7, A. D. 1886. Hence complaints under Pub. Stat. R. I. cap. 87, §§ 25, 26, cannot be sustained.</p>

<p>Bill in Equity for discovery and a declaratory decree. On demurrer to tbe bill.</p> <p>cited Koehler ¡fi Lange v. Hill, 60 Iowa, 543 ; People ex rel. Mitchell v. Warfield, 20 111. 159 ; Boren v. Smith et al. 47 111. 482 ; People v. Wiant, 48 111. 263 ; Dickey et al. v. Reed, 78 111. 261.</p>

<p>The number of town councilmen to be chosen, which by Pub. Stat. R. I. cap. 37, § 6, must be determined before the election begins, may be fixed by common consent or acquiescence, as well as by formal vote.</p>

<p>A constitutional amendment provided, “ The manufacture and sale of intoxicating liquors, to be used as a beverage, shall be prohibited. The General Assembly shall provide by law for carrying this article into effect.”</p> <p>Held, that this constitutional provision did not limit the power which the General Assembly previously had to enact prohibitory laws.</p> <p>Held, further, that nothing in this’constitutional provision gave the right to manufacture and sell intoxicating liquors to be used otherwise than as a beverage.</p> <p>A statute provided, “No person shall manufacture or sell, or suffer to be manufactured or sold, or keep or suffer to be kept on his premises or possessions or under his charge, for the purpose of sale and delivery,” intoxicating liquors “ to be used as a beverage.” The statute contained a form of complaint which omitted the words “to be used as a beverage,” and the words “and delivery,” but charged the keeping for sale to be “ without lawful authority.”</p> <p>Hfitd, it being assumed that “ sale ” and “ sale and delivery ” are the same in meaning, that the complaint sufficiently described the offence, and fulfilled the constitutional requirement that the accused should enjoy the right “to be informed of the nature and cause of the accusation.”</p>

<p>Appeal from the decree of a Probate Court. On motion to reverse the decree.</p>

Constitutional questions certified to the Supreme Court under Pub. Stat. R. I. cap. 220, §§ 1-9. Public Laws R. I. cap. 596, of May 27, 1886, §§ 1, 3, 4, 5, 7, 8, 9, 15, are as follows : — “ Sect. 1.

<p>Pleas in abatement must be certain “to a certain intent in every particular,” leaving nothing to be supplied by intendment or construction, and no supposable special answer unobviated.</p> <p>Hence, when one pleaded in abatement to an indictment that “ one of the grand jurors who participated in the deliberations of the grand jury which has found said indictment, and who was drawn by the town council of the town of N. to serve on said grand jury, to wit, B., was not, at the time he was drawn as aforesaid, qualified to vote upon any proposition to impose a tax or for the expenditure of money in said N.,” —</p> <p>Held, on demurrer to the plea, notwithstanding State v. Davis, 12 R. X. 492, that the plea was bad, as not alleging wherein B. was not qualified, and as involving simply a question of law.</p> <p>State v. Davis explained.</p> <p>Hence, too, when one pleaded in abatement to an indictment that “ one of the grand jurors who participated in the deliberations of the grand jury which has found said indictment, to wit, H., was not drawn to serve upon said grand jury by the town council of any of the towns within and for said county of Newport, nor by the city council of the city of Newport, in said county, nor was the said H. summoned to serve on said grand jury by writ of venire coming out of this honorable court, nor was the said H. upon said jury by virtue of any legal process whatsoever, but improperly intruded himself upon said jury and its deliberations,” —</p> <p>Held, on demurrer to the plea, that the plea was bad, as jurors in the city of Newport are to be drawn by the board of aldermen, not by the city council.</p> <p>Permission to amend these pleas refused, as pleas to the constitution of a grand jury, being usually for delay, are not favored, and the defendant could defend under the indictment found as well as under another charging the same offence.</p>

<p>In a plea in abatement to an indictment, alleging that one H., by presenting himself as grand juryman, prevented the attendance of C. and M., who were drawn as grand jurors according to law, notified to attend, and ready and willing to serve, it is the duty of the defendant to show, affirmatively, by his plea, that C. and M. were legally drawn.</p>

<p>In debt on a judgment rendered in an action brought for necessaries furnished to the defendant, —</p> <p>Held, that the action of debt was, equally with the original action, an action brought for necessaries.</p> <p>Eeld, further, that in such action for debt the exemption from attachment of wages, contained in Pub. Stat. R. I. cap. 209, § 4, clause 12, could not be claimed. k</p>

<p>To make a purchase fraudulent there must be a fraudulent intent. That the purchaser has no reasonable expectation to pay, or is deeply insolvent, is not in itself enough.</p> <p>Hence, when one had for years conducted his business with gross carelessness, without proper books, and ignorant of his liabilities, —</p> <p>Jffeld, that a purchase made by him not long before his voluntary assignment, and apparently in the usual course of his business, was not fraudulent.</p>

<p>When there are no partnership funds, and no solvent partner, the partnership creditors are entitled, pro rata with the separate creditors, to payment from the assignee of one of the partners under an assignment for the equal benefit of his creditors.</p>

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

<p>When by general acquiescence a particular mode of appointing a public officer has been adopted, such acquiescence cannot be assumed unless all the conditions on which it is given are performed or waived.</p> <p>Hence, when by such acquiescence the lowest bidder for the collection of taxes who named satisfactory sureties in open town meeting was to be the tax collector, —</p> <p>Held) that a lowest bidder who refused to name his sureties was not entitled to the office of tax collector, when on such refusal the collection of taxes was again put up and another bid it in, named his sureties, and was declared elected collector.</p>

<p>Agreement whereby A., for money received u for one undivided quarter interest in ” certain land, agreed to pay over to B. 11 one quarter of the net proceeds of any sale or sales whenever I may make sale or sales of ” such land.</p> <p>Seldy that B. was entitled to his share of the proceeds of sale after the whole land bad been sold by A., and that B. was not entitled to a conveyance from A. of one undivided fourth part of the land itself.</p>

<p>Bill in Equity for partition. The case came before the court on the pleadings to determine the estates of the parties.</p>

<p>The assignee in an instrument of assignment executed under Pub. Stat. R. I. cap. 237, § 12, has the same power to vacate preferences made by his assignors, within sixty days before the assignment, as a receiver has who is appointed under § 13 of the same chapter.</p> <p>James v. Mechanics' National Bank, 12 R. I. 460, distinguished.</p>

<p>A., in October, 1885, at 'an execution sale, bought certain realty subject to a mortgage made by B. in August, 1885. B. surrendered the premises to the mortgagee August 6, 1886, under Puh. Stat. R. I. cap. 176, §§ 4, 5. August 7, 1886, A. brought ejectment in a Special Court of Common Pleas against B., who was occupying the realty.</p> <p>Held, that B. could show a permissive occupation under the mortgagee which would make B. a tenant at will of the mortgagee, and thus defeat A.’s action by the mortgagee’s superior title.</p>

<p>A litigant who goes to trial before a jury without making inquiiy as to the qualifications of the jurymen, cannot, after a verdict against him, have a new trial because one of tbe jury was legally disqualified to act.</p> <p>The omission of inquiry is a waiver of all objection on account of disqualification.</p>

<p>Proof of demand and refusal to deliver is only prima facie evidence of conversion.</p> <p>Hence, when a watch had been in possession of B., a woman who had lived and died at the house of her brother, and A., after-her death, demanded the watch from the brother, who replied that the watch was safe; that he did not feel at liberty to deliver it to any one till B.’s will had been proved; and that he would as soon as possible attend to the proof; it appearing that B. had treated the watch as hers, and that it was in the brother’s house with the other effects of B. and as a part of such effects, —</p> <p>Held, no evidence of conversion by the brother.</p>

<p>Case Stated for an opinion of tbe Court under Pub. Stat. R. I. cap. 192, § 23.</p>

Exceptions to the Court of Common Pleas. The plaintiff brought his action in the Court of Common Pleas, alleging a breach on the part of the defendant of a contract in writing by which the plaintiff was to make boxes for tbe defendant, the contract to hold good for one year, the plaintiff furnishing the labor; the defendant furnishing lumber, oil, nails, and other materials as required, and paying the plaintiff at the rate of five dollars per thousand feet of lumber used in…

<p>Petition for an order of court requiring the respondent to pay over certain moneys received by him as attorney.</p>

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

<p>Pub. Laws R. I. cap. 582, of April 80, 1886, provided in § 1, that appeal bonds should be sufficient in appeals from a justice court if signed by the appellant, or some person in his behalf or his attorney of record, and provided in § 2 as follows : —</p> <p>“ All appeals from the judgment of any justice court which have heretofore been signed by the attorney or agent of any party appellant for said appellant, are hereby validated.”</p> <p>Reid, that the word “appeals” in § 2 must be construed to mean “appeal bonds.”</p> <p>Query: Whether such bonds so to be validated are bonds signed by the agent or attorney in his own name for the appellant, or bonds signed in the name of the appellant by an agent or attorney ; if the latter, —</p> <p>Held, when an appeal bond had been executed in the name of an appellant by his attorney of record, without authority under seal from the appellant, that the bond was void as an appeal bond $</p> <p>Held, further, that § 2 above given, in attempting to validate such a bond without the con* sent of the obligor, was unconstitutional and void.</p>

<p>To sustain an action oí trover it is sufficient to show a wrongful assumption of dominion by the defendant over the plaintiff’s property, and in violation of the plaintiff’s rights.</p> <p>Hence, when standing grass had been bought, a part bj' A. and another part by B., and no fence separated the parts, and C., the servant of B., unintentionally cut some of A.’s grass, which was afterwards removed, not by C., but by B.,—</p> <p>Held, that A. could maintain trover against C.</p>

Defendant’s petition for a uew trial. This action was trespass on the case to recover for injuries ■ alleged to have been caused by the defendant’s negligence. After verdict for the plaintiff the defendant filed this petition.

<p>Petition for the enforcement of a mechanic’s lien.</p> <p>Public Statutes R. I. cap. 177, §§ 5, 6, referred tó in the following opinion, are as follows : —</p> <p>“ Sect. 5. No person who shall do work for and furnish materials to be used in the construction, erection, or reparation of any building, canal, turnpike, railroad, or other improvement, without written contract, shall have any advantage of any lien therefor created by this chapter, unless he shall commence legal process for enforcing the same, in manner hereinafter provided, within six months from the time of the commencing the doing of such work, or of the commencing the delivery of materials, if payment fob the same shall not then be made.</p> <p>“Sect. 6. No person who shall do work or labor in the construction, erection, or reparation of any building, canal, turnpike, railroad, or other improvement, at the request of any person who had entered into a contract, whether in writing or not, for such construction, erection, or reparation, shall have any lien therefor, unless such person 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 created by this chapter; and the lien thereby created shall be wholly lost unless such person having the same shall, within four months from the time notice shall be given as aforesaid, commence legal process, as is hereinafter provided, to enforce such lien.”</p>

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

<p>Trespass AND ejectment. Heard by the court, jury trial being waived.</p>

<p>A statute authorized assessments for sewers “made in any of the streets,” etc.</p> <p>Held, that “ streets” meant “public streets,” either by lay-out or by dedication and acceptance.</p> <p>An assessment made for a sewer built in a private way cannot be validated by the subsequent lay-out of the way as a public street.</p> <p>A sewer was ordered in a private way. Before the sewer was built, the way was laid out as a public street.</p> <p>Held, that the assessment for this sewer was valid.</p> <p>Lots within the city limits, near the compact part of the city, with houses around them, though not in their immediate vicinity, must, for purposes of sewer assessment, be regarded as city lots, not as agricultural lands.</p> <p>Under Pub. Laws R. I. cap. 313, oí March 28, 1873; cap. 549, of April 2, 1876 ;- cap. 635, of May 31, 1877, if any part of an estate abuts on a sewered street, all the estate within the statutory limits is liable to an assessment on its area.</p> <p>Sewer assessments, like other assessments for benefits, are a kind of tax, and as such sub" ject to the revision of a court, not of a jury.</p> <p>Article 1, § 15, of the Constitution of Rhode Island, in declaring that the right of trial by jury shall remain inviolate, conserves the right, does not extend it.</p> <p>Cleveland v. Tripp, 13 R. I. 50, affirmed.</p>

<p>For a part payment, to take a claim out of the statute of limitations, it must appear that the payment was made on the claim and in recognition of an unpaid balance due.</p> <p>An account was pleaded in set-off which contained two credits, the last of which was dated less than six years before the filing of the plea; the plaintiff replied with the statute of limitations. All the charges except one of the account were more than six years old. The account was admitted to be correct, but no evidence whatever explained the circumstances in which the money of the credit entry was paid.</p> <p>Held, that the court could not infer a new promise to pay the entire account.</p>

<p>Trustee’s Petition for instructions.</p> <p>By a decree entered October 6, 1886, in a petition in equity, Fdward Cr. Farmer v. Farmer, Q-irseh ¿f* Company, Amasa F. Eddy was appointed receiver of the said Farmer, Girsch & Company, pursuant to Pub. Stat. R. I. cap. 237, § 13. The decree appointing the receiver directed him to convert into money the property of which he took possession as receiver, “ and marshal and distribute the same among the several creditors of said Farmer, Girsch & Co., and of said Edward G. Farmer, Jun., and Charles W. Girsch, as this court shall, upon application of the said receiver, hereafter order, who shall come in and prove their claims by making an affidavit of the amount of the same, and filing the same with said receiver within ninety days from the first publication of the notice hereinafter required, and all creditors failing so to prove their claims shall be debarred from all dividends hereunder.” Notice was ordered by mail to all creditors whose names were on the books of the debtors and by publication twice a week for two weeks in a daily paper published in the city of Providence.</p> <p>After the lapse of the ninety days the receiver Eddy filed his petition for instructions, setting forth certain claims which appeared on the debtor copartnership’s books, which were just debts, but which the creditors, through ignorance or inadvertence, had neglected to prove as above provided ; and asking that the time to prove them might be extended, and that he might be allowed to pay a dividend on them ; also setting forth certain other claims which had been sworn to as above provided, but which the receiver believed to be “ pretended and false claims,” and asking what course of conduct he should adopt in regard to them.</p>

<p>Neither an assurance given by a widow when contracting a debt "that she would pay it out of her dower estate, nor an allegation in a bill in equity that the widow, fraudulently colluding with the heirs, occupied lands without assignment of dower, can give a court of equity jurisdiction on the ground of fraud.</p> <p>Mere non-action, in the absence of legal duty to act, is not cognizable in equity as fraud.</p> <p>Maxon v. Gray, 14 B. I. 641, affirmed.</p> <p>Keene, Petitioner, ante, p. 294, distinguished.</p>

<p>-An attachment laid on a vessel under the laws of a state cannot interfere with the rights of mortgagees under a prior mortgage of the vessel duly recorded according to the laws of the United States.</p> <p>Hence, when a vessel had been mortgaged and the mortgage duly recorded under the United States shipping laws, a garnishee cannot set up the garnishment against replevin brought by the mortgagees to obtain the vessel.</p> <p>The omission of a court to charge a garnishee in its judgment against a principal debtor will not affect the garnishee’s right to set up the garnishment, if valid, against replevin brought for the attached personalty.</p>

<p>In Rhode Island a creditor who has a claim secured by a lien is entitled to a dividend from the voluntary assignee of his debtor on the whole amount of his claim.</p> <p>Knowles, Petitioner, 18 R. I. 90, disapproved and overruled.</p> <p>A. made an assignment “ for the equal benefit of all his creditors in proportion to their respective claims.” The assignee made two dividends. Creditors secured by mortgage received nothing of the first dividend; but, as the mortgage did not pay their claims, the assignee recognized them as creditors for the excess of their claims over payments realized from the mortgage, and at the second dividend paid them such percentage of this excess as the unsecured creditors received from the two dividends.</p> <p>Held, that, before the assignee made a third dividend, the secured creditors should receive a percentage on their whole claims equal to that which the unsecured creditors received from the two dividends, provided such percentage did not exceed the amount still due to them, and provided the assignee had sufficient funds.</p> <p>Held, further, that, in case the assignee did not have sufficient funds, he, having followed the rule of Knowles, Petitioner, supra, in good faith and with the acquiescence of the creditors, should not be required to make up the deficiency from his own property.</p>

<p>A. received money from his wife’s separate estate, expended it for household purposes, and, according to promise, repaid it by giving to her a pair of diamond ear-rings.</p> <p>Held, that the assignee of A., under an assignment for the benefit of creditors, was not entitled to the ear-rings.</p> <p>Held, .further, that the assignee could not maintain trover against A. for the ear-rings by merely proving demand, and refusal. After the ear-rings had been given to the wife, A. was trustee of them for her, and at most a naked legal title passed to the assignee, not available for creditors.</p> <p>Held, further, that in the circumstances there was no presumption that the possession of the wife was that of the husband.</p> <p>How evidence should be reported to the court on a petition for a new trial.</p>

<p>Tenants in common of personalty suing to recover it must sue jointly.</p> <p>When an action lies in favor of tenants in common, if the action is in the realty they must sue separately; if the action is in the personalty they must join in suing.</p> <p>The obligees of a covenant expressly joint must sue on it jointly though their interests are several.</p> <p>A power of sale in a mortgage executed by several persons provided that the mortgagee should pay over the surplus from the sale to the mortgagors, “accounting to us and to our heirs and assigns for all sums over and above,” etc.</p> <p>In assumpsit against the mortgagee brought by one of the mortgagors, to recover his share of the surplus, on the mortgagee’s implied promise arising from the legal duty to refund the surplus, —</p> <p>Held} that the action could not be maintained, it being needful for all the mortgagors to join.</p> <p>In actions ex contractu the non-joinder of plaintiffs is not waived by neglect to plead it in abatement. Otherwise in actions ex delicto.</p>

Bill in Equity to set aside conveyances of realty as fraudulent, and for an injunction. The facts found by the court are stated in its opinion. The bill was demurred to, and, after argument, the demurrer was overruled. The case then came before the court for hearing on bill, answer, and proofs. Even if the transfer was fraudulent, as intended to defeat the claims of the creditors of William Boyd, still the complainants cannot succeed.

<p>The offices of justice of a district court and of deputy sheriff are incompatible, and cannot be held by the same person at the same time.</p> <p>An office-holder accepting a second office incompatible with the first, vacates his first office.</p>

<p>Bill on Eeview. On demurrer to the bill.</p>

<p>Exceptions to a Special Court of Common Pleas.</p> <p>This action was brought before a Special Court of Common Pleas against the defendant, as sheriff of Kent County, to recover tbe amount of an execution and of costs incurred in keeping certain chattels levied on. The circumstances in which this action was brought are stated toward the close of the opinion of the court.</p> <p>In the Special Court of Common Pleas the presiding justice gave the plaintiff judgment for the amount of the debt on execution and costs incurred prior to June 7, 1881, but ruled out costs and keeper’s fees incurred after that day by the deputy of the defendant’s predecessor. To this ruling the plaintiff excepted.</p>

<p>Trespass on the case. On demurrer to the declaration.</p> <p>This action was brought March 2, 1886, after the equity suit Reynolds v. Sennessy, ante, p. 215, had been dismissed, and was founded on the same transactions as that suit.</p>

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

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

<p>An indictment for keeping and maintaining a nuisance need not set forth the names of the “intemperate, idle, dissolute, noisy,” etc., persons alleged to frequent the place complained of.</p> <p>An indictment may charge the same offence in two different counts.</p> <p>In an indictment for keeping a nuisance frequented by “intemperate, idle, dissolute, noisy,” etc., persons, it is not necessary to allege that such persons “ then and there ” habitually resorted to such place.</p>

<p>In a tort action against two persons judgment was rendered against both. One paid the judgment, and afterwards the other appealed.</p> <p>Held, that the pajnnent extinguished the judgment, that there was nothing to appeal from, and that the appeal was void.</p>

<p>The Constitution of Rhode Island, art. I. § 7, provides : “No person shall be held to answer for a capital or other infamous crime unless on presentment or indictment by a grand jury, except in cases of impeachment, or of such offences as are cognizable by a justice of the peace.” . . .</p> <p>Held, that the words “infamous crime ” do not include all offences punishable by imprisonment.</p> <p>Held, further, that this constitutional provision was not infringed by the grant to district courts, although without juries, of power to punish by imprisonment.</p> <p>Public Laws R. I. cap. 596, §§ 15, 30, of May 27, 1886, confer by implication on district courts jurisdiction of offences under § 8 of the same chapter.</p> <p>A complaint charging that the defendant did “offer to sell, sell, and suffer to be sold” intoxicating liquors, is not bad on account of duplicity.</p>

Case Stated for an opinion of the court under Pub. Stat. R. I. cap. 192, § 23. Henry Bull owns an estate on Thames Street, in Newport, known as the Engs estate, and Martha S. Cozzens et al. own the the next estate on the north, known as the Gould estate. A strip of land eleven feet in width separates the estates.

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

<p>An indictment under Pub. Stat. R. I. cap. 246, § 5, charged that the accused “unlawfully did keep and suffer to be kept a certain room to be used and occupied for the purpose of gambling, and playing at games of chance for money and other valuable considerations, whereby,” etc.., giving the time and place.</p> <p>Held, that the indictment was sufficient without an allegation that he kept the room to be “then and there” useckfor gambling.</p> <p>The accused was left temporarily in charge of the premises by the lessee and keeper.</p> <p>Held, that it was not necessary for the State to prove that the room was actually used as a gambling room while the accused was in charge. It is enough that he was in charge of the premises for the purpose of having them used for gambling.</p>

<p>An indictment under Pub. Stat. R. I. cap. 86, § 3, charged that the accused did “unlawfully open and keep open a victualling house in the city of Pawtucket . . . without license then and there first had and obtained from the board of aldermen of said city of Pawtucket.”</p> <p>Held, that the indictment was sufficient without allegations that he kept said victualling house open for business, and that he was the keeper or proprietor of said victualling house.</p>

<p>Exceptions to tbe Court of Common Pleas.</p> <p>A complaint and warrant issued against tbe defendant from tbe District Court of tbe First Judicial District for keeping for sale intoxicating liquors. After being adjudged guilty he appealed to the Court of Common Pleas, where be moved that tbe complaint be quashed for uncertainty, and on tbe dismissal of bis motion brought tbe case by exceptions into this court.</p> <p>April 8, 1887, this court requested counsel to submit briefs on the question, “ Whether, witbin the meaning of Pub. Laws R. I. cap. 596, § 1, beeping ‘ for the purposes of sale and delivery witbin this State ’ differs from keeping ‘ for the purposes of sale within this State,’ and if so, whether any punishment is prescribed by said chapter for keeping for the purposes of sale and delivery ? ”</p> <p>The statutory provisions in question are printed in State v. Duggan, ante, p. 403 sq.</p>

<p>Bxll in Equity for specific performance. On demurrer to the bill.</p>

<p>KENT COUNTY.</p> <p>Appeal from tbe Court of Probate of tbe town of Warwick. On appellant’s motion to dismiss the appellee’s petition to tbe Probate Court.</p>

<p>A., owning a defective wharf used in connection with a place of public resort, and knowing the defect, leased place and wharf to B., who learned of the wharf defect after accepting the lease, but continued to use wharf and place for public resort. In an action for damages to C. who was injured by the wharf defect: —</p> <p>Meld, that the action was maintainable against A. and B. jointly.</p>

<p>Bill in Equity to redeem a mortgage and for an account.</p>

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

<p>Action for rent. Heard by tbe court, jury trial being waived.</p>

<p>Trespass and ejectment. Heard by the court, jury trial being waived.</p> <p>The plaintiffs, lessees of the city of Providence, under an indenture of lease dated April 27, 1886, acknowledged April 28, 1886, and recorded May 21, 1887, brought this action against the defendants, who had erected and were occupying a building over the bed of the Mooshassuck River, just north of Railroad Crossing Street in the city of Providence. The action was begun in the Court of Common Pleas, and came to this court on appeal.</p>

<p>Declarations of a petitioner for divorce as to domicil, unaccompanied by acts, are worthless as evidence.</p>

<p>A married woman took out a policy of insurance on her own life, payable ninety days after evidence of her death, or to herself if surviving at the end of fifteen years ; all indebtedness to the company on account of the policy being first deducted. The premium was payable yearly', partly by note and partly' in cash. The policy was to be void in case of default in payment of premiums, or of interest in advance on the premium notes, or of the notes, provided that, after two annual premiums had been paid, the policy might be converted into a “ paid-up ” policy. In case the policy became void, all payments should be forfeited to the company. The policy contained on its margin, “Non-forfeiture endowment policy with profits.” After paying two premiums in notes and cash, the insured applied for a paid-up policy, released by quitclaim to the company all claims on the policy except as to two fifteenths of its face amount, and received the same policy back from the company, with a statement written on it that it was binding for two fifteenths of its face, “subject to the terms and conditions expressed in this policy and in the quitclaim.” . . . She made no further payments on the notes she had given, either of principal or interest.</p> <p>Held, that the policy was forfeited.</p> <p>Held, further, that the marginal words, “Non-forfeiture endowment policy with profits,” could not be read as a part of the contract.</p> <p>1 Held, further, that such a policy was within the scope of Pub. Stat. R. I. cap. 166, § 21.</p> <p>Held, further, that under Pub. Stat. R. I. cap. 166, a married woman could invest her separate estate in insurance on her life.</p> <p>Held, further, that the policy was not void ai initio, though the premiums were in part paid by notes which, as such, did not bind the insured married woman who made them.</p> <p>Held, further, that the company could set up the forfeiture by non-payment of interest in an action on the policy'.</p>

<p>Bill in Equity for an injunction. Tbe facts involved are stated in tbe opinion of the court.</p>

<p>Unless a creditor knows facts which sustain a reasonable belief that his debtor is insolvent, securities given by the debtor to the creditor cannot be invalidated in the creditor’s hands as fraudulent preferences. It is not enough that the creditor has cause to suspect that his debtor is insolvent.</p> <p>Under Pub. Stat. R. I. cap. 237, § 15, amended Pub. Laws R. I. cap. 274, of March 22,1882, knowledge of insolvency which avoids a preference is knowledge which the creditor has when he receives the preference from his debtor, not knowledge subsequently acquired. Hence, when a creditor received a mortgage December 4, which he recorded December 15, — Held, that the creditor’s knowledge was to be judged as of December 4, not as of the date of record.</p> <p>Pub. Stat. R. I. cap. 237, § 21, merely gives creditors reasonable time in which to begin proceedings to test preferences given by a debtor.</p>

<p>The voluntary assignees for the benefit of the creditors of A. filed a bill in equity against B., the copartner of A., for an account of the business and for the amount due A. In the examination before a master it appeared that A. had taken funds from the partnership for his private use, and had lent them on securities taken in his own name. The master reported a balance due from A. to B. The report was confirmed and the bill dismissed. • Subsequently B. filed a bill against the assignees, who had sold the securities, to compel the payment to him as surviving partner, A. having died during the pendency of the former suit, of the price received for the securities.</p> <p>Held, as it appeared from the record of the former suit that such suit involved a complete settlement of the copartnership concerns between B. and the assignees, and that pending the master’s account B. had full knowledge of A.’s transactions, that B. was estopped, by the decree entered, from claiming the securities or their price.</p> <p>The right of a cestui to follow a misapplied trust fund, and his right to hold the trustee as debtor therefor, are alternative, not concurrent rights.</p>

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

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

<p>Bill in Equity to set aside an execution sale of land.</p>

<p>A statute provided for the seizure of liquors and their condemnation by a district court. A jury trial could be had only on appeal, and an appeal was possible only upon condition that it be taken immediately on judgment of forfeiture, and be accompanied by a recognizance with sureties in the sum of $300 to prosecute the appeal, and during its pendency not to violate any of the provisions of the act. If no appeal was taken, the district court was forthwith to order the liquors destroyed. Pub. Laws R. I. cap. 596, of May 27, 1886, §§ 19-26 ; cap. 634, of May 4, 1887.</p> <p>Held, that the statute was not unconstitutional because no time was given to procure sureties and perfect the recognizance.</p> <p>Held, further, that the amount of the recognizance was a matter of legislative discretion, at least unless it is clearly exorbitant.</p> <p>Held, further, that the condition of the recognizance not to violate any provision of the act pending the appeal was in violation of the constitutional guaranty of a trial by jury, but that this condition was separable from the rest of the recognizance, and could be regarded as a nullity.</p> <p>Saco v. Wentworth, 37 Me. 165 ; Greene v. Briggs, 1 Curtis, 311, distinguished.</p>

<p>Special statutory proceedings. On motion- for judgment.</p>

<p>A statute provided that M a census . . . shall be taken ... on the first day of June,” and that at least six months previous the governor shall appoint a superintendent of the census.</p> <p>Held, that the power to appoint a superintendent was incident to the imperative duty of taking the census.</p> <p>Held, further, that the governor, not having made an appointment within the prescribed time, could make it afterwards.</p>

The House of Representatives of Rhode Island, February 3, 1887, adopted the following resolution under article X. section 3, of tbe Constitution of tbe State, which provides that “ the judges of tbe Supreme Court . . . shall . . . give their written opinion upon any question of law whenever requested by tbe governor, or by either house of tbe General Assémbly.” RESOLUTION To ask the opinion of tbe judges of tbe Supreme Court: — 1.

The Public Statutes of Rhode Island, cap. 11, §§ 5, 6, are: — “ Sect. 5. The ballots given in at such elections (i. e. of representatives in Congress) shall be returned to the General Assembly at its session next ensuing such election, and those given in each district shall be separately counted; and .the candidate having a majority of legal votes therein shall be declared elected, and shall be furnished by the governor with a proper certificate thereof. “ Sect. 6.

<p>The House of Representatives of Rhode Island, April 1,188T, adopted the following resolution, under article X. section 3, of the Constitution of the State, which provides that “ the judges of the Supreme Court . . . shall . . . give their written opinion upon any question of law whenever requested by the governor, or by either house of the General Assembly: ”—</p> <p>Whereas, a difference of opinion has arisen as to whose duty it is to call an election of representative in the Western District, ■—</p> <p>Resolved, That the opinion of the Supreme Court is hereby requested by the House of Representatives on the following resolution : “ Resolved, That in case there is a failure at any election to elect a member of the House of> Representatives to represent any district in the Congress of the United States, and no new election is called previous to the expiration of the term of service of the member holding office at the time of such failure to elect, is it the duty of the General Assembly or of the governor to call a new election ? ”</p>

This was an application of Lake, a deputy sheriff of the county of Newport, addressed to the Court of Common Pleas, for permission to amend his return on an execution. The application was heard by the Court of Common Pleas, Durfee, C. J., and Matte-son, J., and the following opinion given thereon : —