Volume 16 — Rhode Island Reports

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

<p>A. agreed to sell B. a lot of land for ten cents less per square foot than A. had paid for it. The sale was made, and afterwards B. brought assumpsit against A. to recover an excess of money paid, claiming that A. had charged and received from §., and B. had in fact paid to A., the same price per square foot as A. had paid for the land. The agreements between A. and B. were oral.</p> <p>Held, that B.’s testimony as to the contract with A. was admissible in his action against A., and was not excluded by the Statute of Frauds. The terms of the contract were offered in evidence, not to fix a liability under the contract, but to show a liability outside of it.</p>

<p>When an appeal is taken under Pub. Laws E. I. cap. 596, of May 27, 1886, amended by cap. 634, of May 4, 1887, being “An Act for the Suppression of Intemperance,” the reasons of appeal must be filed in the court appealed to at least five days before the sitting of such court.</p> <p>Nothing in Pub. Stat. E. I. cap. 219, authorizes such reasons to be filed later.</p>

<p>A statute provided that any one three times convicted of indecent intoxication within six months, or proven to have been indecently intoxicated three times within six weeks, should be'deemed a common drunkard, and imprisoned not less than six months nor more than three years.</p> <p>Held, that this statute did not violate the constitutional right of trial by jury.</p> <p>Held, further, that it would not violate the provision of !the Constitution of the United States that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb ” if such provision applied to the state governments.</p>

<p>Appeal from the Probate Court of the town of Johnston'.</p>

<p>When a will is contested on account of the testator’s mental weakness and of undue influence exerted over him, evidence tending to show that the will is unreasonable or unjust as compared with a prior will in favor of the contestants is relevant and admissible.</p> <p>Hence, when a will was made in favor of the testator’s wife and her daughters by a former husband, and a subsequent will gave all the testator’s estate to his sister, and this later will was contested by the wife and her daughters, who alleged that at the time it was made the testator was incapable in mind and under undue influence:</p> <p>Held, that evidence was admissible to show that the realty devised by the last will was in part acquired by the moneys of the wife and daughters.</p> <p>When, from the contradictory evidence given, different minds might fairly draw different conclusions, a new trial will not be granted because the verdict rendered is against the evidence.</p>

<p>A bill in equity charged that the complainants were owners in possession of a lot from which the respondents, town officers, were purposing to remove a building, and then to grade down the lot, to obliterate its boundaries and to make it a part of a highway. The bill prayed for an injunction and for general relief. ,</p> <p>Held, that the case stated fell within the class of cases in which threatened trespasses are enjoined.</p> <p>The respondents admitted their purpose of removal and grading, claiming that the lot had long been a part of the highway, and that the building had stood by the sufferance of the town. They subsequently filed a supplemental answer in which they set forth that they had removed the building and graded down the lot, and claimed that the complainants’ remedy at law was complete. General replications were filed to both answers, and the respondents moved that the bill be dismissed.</p> <p>Held, that the motion should be denied. A respondent cannot pendente lite oust the court from its jurisdiction by committing the very acts which the bill was filed to enjoin.</p> <p>Meld, further, that when respondents so commit such acts the court will give compensation to the complainants and award damages as in a case at law.</p> <p>Held, further, that to obtain such compensation the complainants'should be allowed, if necessary, to amend their bill.</p>

<p>Debt. On defendant’s motion in arrest of judgment.</p>

<p>A general demurrer to a declaration containing several counts is bad, if any count is good.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This action was replevin. It was tried in the Court of Common Pleas on an agreed statement of facts, jury trial being waived. After judgment for the plaintiff, the defendant brought the case into this court on a bill of exceptions.</p>

<p>A testator provided, “It is my will that my executors . . . shall have five years in which to settle my estate.”</p> <p>jHeld, that for five years from their appointment the executors were exempt from suits for legacies. Legatees claiming under a will are subject to its terms. Miter creditors who claim independently of the will.</p> <p>The testator further provided: “ Should my estate diminish in value, then my legacies shall decrease in proportion.”</p> <p>Held, that the provision meant that, if the estate decreased in value between the making of the will and the payment of the legacies, the loss was to be borne by all the legatees proportionately, not to fall wholly on the residuary legatees.</p> <p>The testator by the will gave a legacy to S., if S. survived the probate of the will. By a codicil the testator declared that if S. died before payment of the legacy, the legacy was to become a part of the residuum.</p> <p>Seld, that the legacy was contingent upon S. living either till the expiration of five years from the appointment of the executors or till the payment of legacies, if payment was made within the five years.</p> <p>Held, further, that S. was not entitled to interest on his legacy while the legacy was contingent.</p> <p>Pecuniary legatees, whose legacies are not contingent, and not to be paid at a time fixed by the will, are entitled to interest on their legacies from and after one year from the testator’s-death.</p> <p>Eeld, that this rule applied to the case at bar, notwithstanding the five years which the executors migth “have” to settle the estate.</p>

Plaintiffs’ petition for a new trial. This action was trespass on the case. Held: 2 Sim. N. S. 133, 145-148; Mills v. Hall Sf Richards, 9 Wend. 315; Mayor, Sfc. of Lyme Regis v. Henley, 1 Bing.

<p>Bill oe Interpleader.</p>

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

<p>Exceptions to the Court of Common Pleas.</p> <p>At the March Term A. D. 1887, of the Court of Common Pleas, an indictment was found against the defendants as follows :</p> <p>“ The Grand Jurors of the State of Rhode Island and Providence Plantations, and in and for the county of Providence, upon their oaths present: That on the seventh day of December, in the year of our Lord one thousand eight hundred and eighty-six, at Pawtucket, in the aforesaid county of Providence, meetings of the qualified electors of the several wards of the city of Pawtucket in said county, for the election of a representative in the General Assembly of said State, and of a mayor and other municipal officers of said city, having been duly warned and called according to law, were then and there holden, and at the meeting of the electors of ward five of said city, then and there holden as aforesaid, one Bernard J. Collms was then and there warden, and one James H. Gannon was then and there clerk of said ward five; and that the said Bernard J. Collins and James H. Gannon, both of Pawtucket aforesaid, in the county aforesaid, on said seventh day of December, in the year of our Lord one thousand eight hundred and eighty-six, with force and arms at Pawtucket aforesaid, in the county aforesaid, being then and there respectively warden and clerk of said ward as aforesaid, did then and there maliciously, unlawfully, and knowingly seal up, direct, and send to the city clerk of said Pawtucket a part only of the ballots cast for mayor of said city at said meeting then and there holden as aforesaid in said ward five, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>Preferred by Walter F. Angelí, Assistant Attorney General, and signed by fifteen Grand Jurors.</p> <p>The indictment was found under Pub. Stat. R. I. cap. 10, § 25, as follows: \</p> <p>“ Sect. 25. Every moderator, warden, or town, ward, or district clerk, who shall neglect to seal up and direct the ballots, or to send the same, as hereinbefore or by the Constitution provided, or who shall knowingly seal up, direct, and send a part only of the ballots, shall be fined not less than one hundred dollars, nor more than three thousand dollars, or be imprisoned not more than three years, either or both, at the discretion of the court which shall try such offender.”</p> <p>The defendants asked the Court of Common Pleas to quash the indictment because:</p> <p>“ 1. The legally set time for electing representatives in the General Assembly is in April of each year, and as this indictment alleges that on December 7, 1886, there was held an election ‘ for representatives,’ etc., the indictment is bad for not stating whether said election was a special or a called election.</p> <p>“2. The indictment alleging that the election was ‘for . . . mayor and other municipal officers ’ is bad for not specifying what municipal officers were to be voted for.</p> <p>“ 8. The indictment charges the defendants jointly. They should have been severally indicted.</p> <p>“ 4. The indictment alleges that the defendants returned ‘ a part only of the ballots cast for mayor at said election,’ and does not state whether the ballots not returned were ballots legally cast. The indictment should have stated that the defendants returned a part only of the ballots legally cast at said election.</p> <p>“ 5. The voting lists used at said election were signed by Frederic Clark Sayles, Mayor. Said Sayles was not a member of, nor the presiding officer of, the Board of Canvassers, of said Pawtucket. Hence there was no legal election in said Pawtucket December 7, 1886.”</p> <p>The motions to quash were refused, and the defendants excepted.</p> <p>At the trial before a jury in the Court of Common Pleas it appeared in evidence that at said election, when the ballots were counting, envelopes containing ballots were taken from the ballot-box, and that these envelopes contained ballots both for representative to the General Assembly and for mayor. The defendants, acting on the advice of lawyers present, did not count and did not return the ballots for mayor found in the envelopes.</p> <p>Pub. Stat. R. I. cap. 10, § 11, is as follows:</p> <p>“ Sect. 11. In all elections for general officers, representatives in Congress, electors of President and Vice-President of the United States, and whenever the vote is taken by ballot in the election of senators and representatives in the General Assembly, the ballots may be deposited in the ballot-box in an envelope such as aforesaid, or without an envelope, at the option of the voter: Provided, that all ballots given by any voter on the same voting day, in said election, and in all elections, when enclosed in envelopes, shall be enclosed in one and the same envelope.”</p> <p>Pub. Stat. cap. 37, § 17, is as follows:</p> <p>“ Sect. 17. No envelope shall be used in the election of mayor, aldermen, common councilmen, wardens or ward clerks of cities.” The defendants asked the presiding justice to charge the jury:</p> <p>“ 1. If the jury finds that the ballots unreturned were not legal ballots, the defendants are innocent.</p> <p>“ 2. As an election for representative in the General Assembly was holding, and as the voters had a right to vote for representative in an envelope, the warden and clerk could only assume that the voters knew the law and were only voting for representative, and then when counting the ballots they first discover that there are ballots in the envelopes for mayor, etc., they can only then' decide whether to count said ballots or not; and if these facts are proven the defendants are not guilty.</p> <p>“ 3. As the defendants requested and followed legal advice, they are innocent.”</p> <p>The presiding justice refused these requests for instructions to the jury, and charged that, if the defendants knowingly returned a part only of the ballots cast for mayor, they were guilty.</p> <p>To the refusals to charge, and to the charge given, the defendants excepted. After verdict of guilty they filed in this court an allowed bill of exceptions and a motion in arrest of judgment, because the indictment does not state to whom and where the defendants returned “ a part only of the ballots cast for mayor in said election.”</p>

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

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

<p>A statute provided that “ 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, any ” intoxicating liquors. This statute differs from previous statutes in omitting the words “ within this State ” after the words u for the purpose of sale.”</p> <p>Held, that this statute did not apply to liquors kept by a person for his own use, not for ‘ sale.</p> <p>Held, further, that it did not apply to liquors transporting through this State for sale in another state.</p> <p>Held, further, that it did not apply to liquors simply stored in this State, though intended ultimately to be exported for sale.</p> <p>Held, further, that the statute was within the limits allowed to state legislation by The License Cases, 5 How. XL S. 504.</p> <p>Beld, further, that the statute was not violative of the Constitution of the XJnited States, article I. sect. 8.</p>

<p>The certification to the Supreme Court of constitutional questions under Pub. Stat. R. I. cap. 220, §§ 1-9, only presents the question whether an act of the General Assembly is or is not constitutional. Such a question should be presented by direct reference to the acts or provisions whose validity is disputed.</p> <p>Pub. Laws R. I. cap. 596, § 27, of May 27, 1886, giving a form of information for the seizure and forfeiture of intoxicating liquors, is not violative of the Constitution of Rhode Island because indefinite in description; nor because it vests jurisdiction in the District Courts, which sit without juries, a right of appeal and of jury trial on appeal being reserved ; nor because it is unreasonable; nor because it is severe.</p> <p>Searches and seizures provided for by Pub. Laws R. I. cap. 596, of May 27, 1886, and cap. 634, of May 4, 1887, when conducted in due form, are not unconstitutional.</p> <p>The first ten amendments to the Constitution of the United States apply to the United States government, and not to the state governments.</p>

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

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

<p>a trial in the Justice Court the defendant took an appeal to the Court of Common Pleas. The appeal was dismissed for want of a duly executed bond, and the defendant then asked this court to grant a new trial.</p> <p>Held, that this court could not grant the new trial. Pub. Stat. R. I. cap. 221, § 8, did not apply, as a trial had taken place in the Justice Court. Pub. Stat. R. I. cap. 221, § 2, did not apply, as no trial had taken place in the Court of Common Pleas.</p>

Bill in Equity to charge realty with legacies, and for an account. Heard on bill, answer, and an agreed statement of facts.

Bill in Equity brought by the complainants for themselves and other creditors of the respondent’s assignor for an account, for the removal of the respondent as assignee, and to charge him with the amount bid at an auction sale held by him as assignee. Heard on bill, answer, and proof.

<p>ACTION for rent. Heard by the court, j ury trial being waived.</p> <p>This is the case which was before the court, Sherman v. Cobh, 15 R. I. 570, where the circumstances appear in which this action was brought.</p>

<p>Alternative writ oe mandamus. On the respondent’s return to the writ.</p>

Bill in Equity for an account, and to enforce payment of a promissory note. On demurrer to the bill. The facts are stated in the opinion of the court.

<p>Alternative writ oe mandamus. On the respondent’s return to the writ.</p> <p>The writ was issued in this case to require the town council to pass an order of notice in accordance with Pub. Stat. R. I. cap. 65, § 38, which is as follows :</p> <p>“Sect. 38. Whenever any abutting owner shall deem himself to be injured by any change in the grade of a highway, and such owner shall make claim for compensation for such injury to the town council within forty days after such change of grade shall have been completed, the town council shall appoint three suitable and indifferent men, not interested in the lands bordering on the highway the grade of which has been changed, who shall be engaged to the faithful discharge of their duties, and who shall go upon the highway when the grade thereof has been changed, and examine the same, and the estate alleged to have been injured by changing the grade of said highway, and endeavor to agree with tbe owner of such estate as to the amount of damage by him sustained by means of sucb change of grade; and if they agree with the owner, they shall reduce sucb agreement to writing and report tbe same to the town council, which report shall be binding upon such owner and upon the town ; but if they fail to agree with the owner as to such damage, they shall report such failure to the town council, whereupon the council, after notice to such owner and offering him an opportunity to be heard, shall proceed to appraise the damage done to such owner by means of such change of grade.”</p> <p>Or to show cause why a peremptory writ should not issue.</p>

Bill in Equity for instructions. The will of Daniel Wanton Lyman, proven before the Court of Probate of the town of North Providence, January 19, 1887, is as follows : “ In the name of the Creator and Preserver of all things.

<p>Petition eor Divorce. The facts involved are stated in the opinion of the court.</p> <p>Condonation covers cruelty as well as adultery.</p> <p>If the wife is living beyond the influence of her husband, as with her father or brother, the same circumstances which would show a condonation by him will show a like condonation by her.</p> <p>There was nothing to prevent the petitioner from leaving the respondent the very day they went to'her father’s house.</p> <p>The condonation was not conditional: there was no continuation of the alleged cruelty after the parties removed to Mr. Farnum’s house.</p> <p>The contagious disease had been communicated to the wife in 1885, according to her testimony.</p> <p>According to the testimony of Mrs. Wilson herself, the offence of cruelty was fully developed and a divorce was determined upon previous to the period of continuous cohabitation at her father’s house in December, 1886, and in January, 1887. See Bishop on Marriage and Divorce, 6th ed. §§ 49-51, and cases there cited.</p>

<p>Bill in Equity to establish a lien.</p>

<p>Case Stated for an opinion of the court under Pub. Stat. R. I. cap. 192, § 23.</p> <p>The last will of George F. Wilson, late of East Providence, as presented for proof before the probate court of that town, is as follows: ■—</p> <p>“ KNOW ALL MEN BY THESE PRESENTS :</p> <p>“ That I, George Francis Wilson, of East Providence, in the State of Rhode Island, being of sound mind and memory, do hereby make and publish my last will and testament in manner and form following, namely:</p> <p>“Item 1st. I direct my executors hereinafter named, as soon as practicable after my decease, to pay all my lawful debts, including funeral expenses, and to erect a suitable monument to mark my last resting place.</p> <p>“ Item 2d. I give and bequeath to my son, Ellery H. Wilson, my gold hunting case Jurgensen watch, No. 12,228, and the gold chain attached thereto.</p> <p>“ Item 3d. I give and bequeath to my son, George F. Wilson, Jr., my gold hunting case chronometer watch, made by Jurgensen, No. 6,341, and the gold chain and key attached thereto.</p> <p>“ Item 4tb. I give and bequeath to my daughter, Clara Frances Penny, my pianoforte.</p> <p>“ Item 5th. I give and bequeath to my daughter, Mary Augusta Wilson, my silver ware and spectroscope, together with the photographs bought with it, and also my portrait of myself in oil, painted by Thomas Robinson.</p> <p>“ Item 6th. I give and bequeath to my daughter, Alice Louise Wilson, all my paintings and engravings except my cattle pieces and those herein otherwise disposed of, and also the silver watch that was given me by my father and the chain attached thereto, and I request her to give said watch and chain, at such time as she shall see fit, to the first male child of either of her brothers or sisters or her own, and, in default of such designation by her, to the one who may be designated by my executors hereinafter named.</p> <p>“ Item 7th. I give and bequeath to my daughter in law, Mary Augusta Wilson, wife of Ellery H. Wilson, my Queen’s Prize Placque, painted by Coleman.</p> <p>“Item 8th. I give and bequeath to my friend, Christine Hood, my copy of the Bible illustrated by Doré, and also the sum of one thousand dollars.</p> <p>“ Item 9th. I give and bequeath to my friend, Henry Stock-bridge, of Baltimore, Maryland, my microscope and the sum of five thousand dollars ; and in case of the death of said Plenry Stockbridge before the receipt by him of this legacy, I give and bequeath the same to his heirs.</p> <p>“ Item 10th. I give and bequeath to my friend, Joseph A. Tucker, of the city of Boston, the Moose Head, now over my writing desk in my Library, and also the sum of five thousand dollars.</p> <p>“ Item 11th. I give and bequeath to my executors hereinafter named the sum of fifteen hundred dollars, or so much thereof as my said executors shall see fit to employ for that purpose, in trust, for the erection of a suitable monument to mark the last resting place of my Grandfather, John Wilson, and his wife, my Grandmother, and my Aunt Lucretia Wilson in the burying-ground in East Providence aforesaid, formerly a part of Seekonk, which lot is marked by granite stones at the corners.</p> <p>“ Item 12th. I give and bequeath to my friend, Mrs. Jane H. Everett, my cabinet for illustrated books, and the picture stand or frame, together with such and so many illustrated books as she may select from my books not otherwise disposed of. Also the gold ring presented me by her at Christmas, 1873. And also the sum of thirty-five hundred dollars per annum to be paid to her as an annuity during her life. I also give and bequeath to the said Mrs. Everett all my clothing of every description, in trust for her to divide and distribute the same, according to her best discretion, among my poorest and most deserving workmen.</p> <p>“ Item 13th. I give and bequeath to my sister, Mrs. Hannah Holbrook, the sum of one thousand dollars per annum during her life.</p> <p>“ Item 14th. I give and bequeath all the rest and remainder of my books, maps, charts, photographs, pictures, bronzes, statuary, theodolite, level, and other surveying instruments, drawing instruments, ornaments, and other articles of the classes named in this devise or of a similar nature, to all my children who will accept the same and share in this devise, to be divided by my executors hereinafter named as nearly as may be into parts of equal value for each of said children, and, so far as may conveniently be done, in such a way as shall be most agreeable to my said children, and distributed and delivered over by my said executors to them.</p> <p>“ Item 15th. I give and bequeath all my household goods and furniture not otherwisé disposed of to my son, Ellery H. Wilson, and direct that he shall keep them if possible during his life at my house in said East Providence, provided, however, that so keeping them is not attended by inconvenience or loss to him.</p> <p>“Item 16th. I will and direct that my executors shall take all my books of account, memorandum books, memoranda, letters, copies of letters, and receipts, and all things of a similar nature, and hold the same so long as the same can be of any service in the adjustment and settlement of my estate, and when of no further use for that purpose the same shall be disposed of as my said executors may think proper.</p> <p>“ Item 17th. I will and dire.ct that the foregoing bequest sshall take effect immediately upon my decease, and the articles specifically devised to be delivered over at once to the persons to whom they are so devised respectively, and the sums of money, except the annuities, be paid by my executors as soon as practicable after my decease, and the annuities specified herein be paid promptly and without any abatement or discount on the days they from time to time become due respectively.</p> <p>“ Item 18th. I will and direct that my household effects not hereinbefore disposed of, including my horses, carriages, wagons, pbffitons, sleighs, robes, saddles, and all personal property appurtenant to my horses and stables, shall be sold by my executors, at such place, in such manner, and at such time, not exceeding two years after my decease, as shall seem to my executors most advantageous and desirable, and my said executors shall apply the proceeds of such sale or sales, together with all moneys on hand or in bank at the time of my decease, so far as may be necessary for the purpose, to the payment of any debts by me owing at the time of my decease and of the legacies hereinbefore contained, the excess of such moneys or proceeds, if any, after such payments, to be added to and constitute part of the estate hereinafter disposed of.</p> <p>“ Item 19th. I give and devise all the rest and residue of my property and estate of every nature and kind to Halsey J. Board-man, of Boston, in the State of Massachusetts, and Ellery H. Wilson, of said East Providence, and in the event of a vacancy, occasioned either by death or otherwise, I nominate and appoint my son, George P. Wilson, Jr., as successor or substitute to fill such vacancy. In special trust and confidence nevertheless, that the said Boardman and Wilson as trustees will use and apply the same to the best advantage for carrying out and accomplishing the objects set forth in this my last will and testament; that is to say, that the said trustees shall sell at such time and in such manner as they deem most advantageous all real estate to which 1 hold title, and all stocks or interests in any and all corporations, companies, or partnerships, in which I have any stock or interest of any kind, — except my interest or stock in the Rumford Chemical Works, — which sales, and all necessary and legal transfers and conveyances of any and all property so sold, the said trustees are hereby authorized and empowered to make. It being, however, my will and direction that the interest and rights of said trustees as aforesaid shall be subordinate to the payment of all my debts, the legacies herein provided for, and the annuities given for the period occupied in the administration of my estate by said executors.</p> <p>“ Item 20th. At the expiration whereof I will and direct my said trustees to continue the payment to each of my daughters, Clara Francis, Mary Augusta, and Alice Louise, the income accruing from fifty shares of stock of said Rumford Chemical Works during their respective natural lives, which income I hereby give and bequeath to them severally.</p> <p>“ Item 21st. After the payments of the foregoing legacies, bequests, and annuities, and the payment annually to each of my said sons, Ellery H. and George F., Jr., the sum of five thousand dollars, which I direct to be paid to them until the legacies hereinafter provided for are satisfied, I direct my said trustees to divide the dividends accruing upon my said stock in the Rumford Chemical Works, one half of said dividends to be held by said Ellery H. Wilson in trust until the aggregate reaches the sum of one hundred thousand dollars ($100,000), when the same shall be paid over to the corporation of Brown University of Providence, in the State of Rhode Island aforesaid, for the purpose of endowing a professorship or erecting a building for irse in connection with said University, as to my said trustees shall seem most desirable, the same to be known and called the Wilson Professorship, or the Wilson Hall.</p> <p>“And the other half of said dividends shall be held by said Halsey J. Boardman in trust until the aggregate shall reach the sum of fifty thousand dollars ($50,000), when the same shall be paid over by him to the Corporation of Dartmouth College of Hanover, in the State of New Hampshire, for the like purposes, with like discretion to my said trustees, and subject to the like provision as to the connection of my name therewith. And it is my wish that, in the event of a building being decided on in either or both of the two last named legacies, by my said trustees in the application thereof, there shall be built into said building over its principal entrance a block of Cumberland granite bearing in plain letters the word ‘ Wilson.’</p> <p>“ Item 22d. After the payment of the foregoing legacies, bequests, and annuitie.s, and all the expenses of said executorship and trusteeships, including a suitable compensation to said executors and trustees, I direct my said trustees to pay over annually in equal proportions to my said sons, or, in the event of the death of either, to the survivor and the heirs of the deceased by right of representation, the balance of the income from said stock, and upon the death of the survivor said trustee shall divide said stock into as many equal parts as may be necessary, and convey one part to each of my said daughters then living, and one to the children of each of my deceased children by right of representation, or to their lawful guardians in the event of their minority.</p> <p>. “And I hereby constitute and appoint Halsey J. Boardman, of Boston, aforesaid, and the said Ellery H. Wilson, to be the executors hereof, and I direct that they shall not be required to furnish sureties upon their official bonds, hereby revoking all former wills made by. me, and ratifying and affirming this and none other to be my last will and testament.</p> <p>“ In witness whereof I hereto subscribe my name and affix my seal this twelfth day of January, A. D. 1883.</p> <p>“George Francis Wilson.</p> <p>“ Signed, sealed, published, and declared to be his last will and testament, by said George Francis Wilson, this 12th day of January, A. D. 1883, in our presence, who in his presence and. at his request, and in the presence of each other, do hereto subscribe our names as witnesses thereof.</p> <p>“ Charles H. Corey,</p> <p>“ Henry A. Greene,</p> <p>• “ James Marshall.”</p> <p>From the decree of the probate court allowing this will an appeal was taken to this court, and the will was finally allowed and approved in this court, with the following modifications sanctioned by a decree 1 entered April 28, 1883, in the equity case, ■ Providence County, No. 2123, Penny et al v. Boardman et ais.:</p> <p>“ Whereas there is now pending, in the Supreme Court in this State for Providence County, an appeal from the probate of the will of the late George F. Wilson, of East Providence, in said State,</p> <p>“ And whereas the parties in interest under said will deem it for the best interest of all parties concerned, and hereby agree to make the following compromise and modification of the provisions of said will, namely: That each of said George F. Wilson’s daughters, namely, Clara Francis, Mary Augusta, and Alice Louise, shall have the income of an additional hundred shares of the Rumford Chemical Works stock, making one hundred and fifty shares instead of fifty shares as provided in said will, during their respective natural lives ; the dividends from said additional hundred shares of stock to be paid over to them from time to time, as they shall be declared, not commencing, however, until after the legacies and bequests contained and provided for, in said will, to Brown University and Dartmouth College are first paid and adjusted, and also that the income on said fifty (50) shares of stock to each of his daughters, provided in item 20 of said Wilson’s will, shall be paid over to said daughters from time to time’ as they shall be declared, commencing from the decease of said George F. Wilson.</p> <p>“ That in all other respects, and subject to the above amendment, said will is to stand in all respects.</p> <p>“ Witness our hands this 13th day of April, A. r>. 1883.</p> <p>“ Executed in presence of Stephen PI. Tyng, to all the first four,</p> <p>Minnie E. Penny, witness to signatures of Arthur and Clara Penny.</p> <p>Halsey J. Boardman, Ex. & Tr. E. PI. Wilson, Ex. & Tr.</p> <p>E. PI. Wilson.</p> <p>Geo. F. Wilson.</p> <p>Mary Augusta Wilson.</p> <p>Clara Francis Penny.</p> <p>Arthur W. Penny.</p> <p>Henry Stockbridge.</p> <p>C. W. Gilmore, witness to signature of James Hood, witness to signature of James J. Crossley, witness to signature of</p> <p>Christine ' Hood.</p> <p>Jennie H. Eyerett.</p> <p>J. A. Tucker.</p> <p>Matthew Dolan.</p> <p>Cora E. Aldrich, witness to signature of In presence of Newton D. Arnold,</p> <p>f Dartmouth College,</p> <p>J By its Att’y, H. J. Boardman. i Brown University, l A. B. Chace, Tr.</p> <p>| Hannah C. Holbrook.</p> <p>| Alice Louise Wilson.”</p> <p>“ Providence, Sc. Supreme Court,</p> <p>March Term, 1883.</p> <p>“In re Will oe George F. Wilson.</p> <p>“ This cause came on to be heard at the aforesaid term before the court, and thereupon and upon consideration thereof, and of the evidence adduced therein, it was adjudged, ordered, and decreed, That the decree of the Probate Court of the town of East Providence, therein appealed from, entered on the 24th day of February, 18.83, be and the same is hereby confirmed, and that the instrument in writing therein referred to, bearing date on the 12th day of January, A. d.,1883, is hereby allowed, approved, and established as the last will and testament of the said George F. Wilson, late of said East Providence, deceased, subject to and controlled by the modifications of and in the agreement of compromise authorized and approved by the decree entered in the Supreme Court for the County of Providence, on the 28th day of April, 1888, in the cause in equity numbered 2123 between the same parties. And that a copy of this decree, attested by the clerk of this court, of and under the seal of this court, be returned to and filed in and recorded in said Probate Court of East Providence. Entered as the decree of court, 27th day M. T. 1883, April 28, 1883.</p> <p>“ By order, CHARLES Blake, Clerk.”</p>

<p>S., by a sealed instrument dated in 1882, guarantied to the E. Bank the payment of business paper made by his sons, discounted and to be discounted by the E. Bank, and waived demand and notice of non-payment.</p> <p>By another sealed instrument dated in 1884, S. ratified the previous instrument, and agreed that “no extension on any such business paper” should affect “his liability hereunder,” i. e. under the instrument of 1884, or “ under the within agreement,” i. e. the instrument of 1882.</p> <p>After the death of S., the E. Bank, without the knowledge of the administrator of S., received and discounted a note of the sons, payable in four months, in renewal of a note discounted while S. was living.</p> <p>Held, that the guaranties of S. were terminated by his death.</p> <p>Held, further, that the estate of S. was not liable for the note which fell due after his death, as the E. Bank discharged the liability by taking a new note for four months in renewal, after the guaranties were terminated.</p> <p>Guaranties are of two kinds. First, where the consideration passes wholly at one time; such are not revocable and are not terminated by death. Second, where the consideration passes at different times and is separable; such are revocable and are terminated by death and notice of the death. In the case at bar, successive and distinct discounts made the guaranty of the second kind.</p>

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

<p>An auctioneer in making his sale is the Agent of the seller. If, without the seller’s ass.ent, he makes bids for a purchaser, his conduct is fraudulent, and the sale is not enforcible by the purchaser.</p> <p>Whether, if due notice was given that the auctioneer would bid for an intending purchaser and the sale was in other respects unimpeachable, the seller would be estopped from objecting afterwards to the sale, is not decided.</p>

<p>A'written contract can,be reformed by a court of equity only on proof of a mutual mistake of the parties. A mistake made by only one party gives no reason for relief. ( •-?</p> <p>A proven material mistake by one party may enable a court of equity to rescind the contract; as when the parties can be put in statu quo, or when the mistake was caused by the falsehood or concealment or fraud of the other party.</p> <p>Hence, when- a bill in equity was filed to reform a contract, and it appeared that the contract was just what the respondent intended, that the contract had been in part performed, and that the bill contained no charge of fraud:</p> <p>Held, that the bill must be dismissed.</p>

Bill oe Interpleader. On petition for a rehearing. After the proceedings in this case reported in 15 R. I. 204-208, the respondents other than Martha O. Taylor filed a petition for a rehearing. This petition Martha O. Taylor moved to dismiss, a reargument having already been allowed. After hearing counsel, the court filed the following rescript. John Taylor died June 30, 1859, leaving a will by which he devised all his real estate to his wife for life.

Bill in Equity to redeem a mortgage and for an account. On the complainant’s motion for a decree. The former proceedings in this case are reported in 15 R. I. 226, 231, where the facts involved are stated. Such of them as were involved in the present hearing are recapitulated in the head note above.

Bill in Equity to obtain a judicial construction of parts of the will of Stephen T. Olney, and for instructions. On exceptions to the master’s report. The former proceedings in this case are reported in 14 R. I. 449, where such parts of the will as are involved in the present questions before the court are printed.

Bill in Equity to compel the transfer of certain corporate stock and for a receiver. Fanny Sprague, in her lifetime, became an executing party to a certain deed of trust to Zechariah Chafee, dated November 1, 1873, and printed in Austin v. Sprague Manuf. Go. 14 R. I. 464.

<p>At the trial of an indictment for maintaining a liquor nuisance against Pub. Stat. R. I. cap. 80, §§ 1, 2, evidence was submitted by the State, under § 3 of that chapter, as to the “notorious character” of the place. The witnesses stated that the reputation of the place was bad; that they had heard persons say liquor was sold there, and gave the names of the persons, but admitted that those persons spoke only of and from reputation, and not from personal knowledge.</p> <p>Held, that the evidence was rightly admitted.</p> <p>Held, further, that Pub. Stat. R. I. cap. 80, § 3, allowing such evidence, did not violate the constitutional provision that “in all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.”</p> <p>This constitutional provision excludes eic jparte affidavits or depositions, and the written examinations made by coroners and committing magistrates. It does not exclude evidence of the fact of reputation. The witnesses who must confront the accused are the persons testifying against him, not those making or repeating statements about him.</p>

<p>Pub. Laws R. I. cap. 580, of March 17, 1865, was repealed by cap. 495, of April 23, 1885. Hence penalties for violation of municipal regulations made under cap. 580 cannot be enforced. Cap. 495 covers the subject matter of cap. 580, and provides a statutory penalty.</p>

<p>The statute 23 Henry VIII., for the reclamation of marsh' and for drainage, was never in force in Rhode Island, did not provide for what is now called a system of sewers, and did not give a jury trial in the matter of taxes and assessments.</p> <p>Query. What English statutes are in force under the Rhode Island colonial act of A. d. 1749, as modified by subsequent legislation ?</p>

<p>An administrator was authorized by the probate court to sell his Intestate’s realty. To a bill for specific performance brought by the administrator against the purchaser, the latter replied that the members of the probate court had never taken their oaths of office, and hence the authority given to the administrator was void.</p> <p>Held, it appearing that the members of the probate court had been duly elected, had acted as members of the court, had been recognized as such, and that no other persons had so acted or been so recognized, that they were de facto members of tbe court; and that their acts done officially were, as to the public and third persons having an interest in such acts, as valid as if they had^been duly sworn.</p> <p>Held, further, that specific performance should be decreed.</p>

Defendant’s petition for a new trial. The plaintiffs’ petition for a new trial in this case is reported 15 R. I.- 518, 523. The trial took place before a jury at the October Term, A. D. 1887, of this court, and resulted in a verdict for the plaintiffs. The defendant then filed this petition.

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

<p>Residuary testamentary disposition as follows:</p> <p>“All the rest of my estate I give and bequeath to Rebecca G. Knox, widow, of Waterloo, New York, the legal heirs of Benjamin Goddard Mumford, of Providence, and of Thomas C. Mumford, also of Providence, Mary S., wife of James Lawton, of Laconia, New Hampshire, Martha C., wife of George W. Swinburne, Elizabeth R., widow of John Sterne, and Catherine T. Mumford, of Newport, and Sarah S., wife of A. Harwood Bacon, of Detroit, Michigan, share and share alike, to them, their heirs and assigns forever. Should either of my above named children die leaving no legal heirs born of their own body, then I give their shares after their death to my then living heirs, none receiving more than the income of my property during the lifetime of the said Louisa B. Mumford.”</p> <p>Louisa B. Mumford was the testator’s widow. She died in 1887. Rebecca G. Knox, Thomas C. Mumford, Mary S. Lawton, Martha C. Swinburne, Elizabeth R. Sterne,| Catherine T. Mumford, and Sarah P. Bacon were children of the testator. They all survived him and his widow. Benjamin Goddard Mumford was a son of the testator. He was dead when the will was made, but left two children, who survived the testator and the testator’s widow.</p> <p>Held, that the words “of Thomas C. Mumford ” should be read “ to Thomas C. Mumford.”</p> <p>Held, further, that the words “ die leaving no legal heirs born of their own body” should not be construed “ die before the testator leaving no legal heirs born of their own body.”</p> <p>Held, further, that the words “die leaving no legal heirs born of their own body” did not import an indefinite failure of issue, but did import a failure to leave issue living at the death of the first takers.</p> <p>Held, further, that the bequest over was an executory bequest, which, if any child died without issue born of his body living at the time of his death, would carry his share to the testator’s then living heirs.</p> <p>Held, further, that the only persons at present entitled to have their shares of the residuary personalty delivered to them in full are the children of Benjamin Goddard Mumford, and the issue of such of the testator’s other children as may have died; that the executor should hold the rest, paying the income to the legatees to whom the shares are primarily given, and on their death distributing the principal according to the will.</p> <p>Held, further, that the two children of Benjamin Goddard Mumford took together a single share as representing their father.</p> <p>Meanings of the words “share and share alike.”</p>

<p>The statute of frauds does not extend to actions for payment upon contracts which have been wholly executed within one year by one of the parties thereto.</p> <p>A. contracted with B. to build a house. There was a written agreement, signed by A. but not by B., by which the house was to be built for $2,400. B. was to pay $500 when it was begun, $500 when it was finished, and the balance in five yearly payments, with interest, payable semi-annually. A. completed the house, and fully on his part performed the contract within one year.</p> <p>Held, that A. could recover from B. the contract price, and was not compelled to sue B. on a quantum meruit.</p> <p>Interest as an incident of the principal debt is allowed from the day of default whenever the debtor knows precisely what he is to pay and when he is to pay it.</p> <p>Spencer v. Pierce, 5 R. I. 63, approved.</p>

<p>Trespass on the Case. On the defendant’s motions to stay the prosecution and for surety for costs.</p> <p>The plaintiff, Henry Robinson, June 26, 1886, sued out his writ for personal injuries caused by the defendant’s alleged negligence. October 21, 1887, at a trial of his case before Matteson, J., and a jury, after he had put in all his evidence as to the merits of his cause, the presiding justice ordered him to be nonsuited on the defendant’s motion. Judgment was entered for the defendant for $27.50 for its costs.</p> <p>November 14, 1887, the same Henry Robinson sued out a writ returnable to the December term of the Court of Common Pleas, in the county of Providence, against the same defendant and for the same cause of action. On the first day of the term the defendant submitted to judgment and appealed as provided by statute.</p> <p>The defendant filed motions:</p> <p>1. That the plaintiff before being allowed to prosecute his action should be required to pay the judgment of $27.50 above mentioned.</p> <p>2. That the plaintiff be required to give surety for costs.</p>

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

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

Bill in Equity for instructions, and to obtain a judicial construction of the following will, which was proven before the Municipal Court of the city of Providence, sitting as a court of probate,… Held: that these clauses were repugnant, and the last, being the latest expression, must prevail; still it should be given some effect, if possible.

<p>L. in 1885 made an assignment in the usual form in Rhode Island for the benefit of his creditors. In 1882 and 1883 he had given bonds to two probate courts, and breaches of these bonds occurred in 1886. The liability of one of the sureties on the bonds .was fixed in amount by legal proceedings, and in part satisfied by the surety’s administrator, who claimed reimbursement from L.’s assignee.</p> <p>Held, that the probate courts were not creditors of L. at the time of his assignment.</p> <p>Held, further, that the surety could not be subrogated to the place of the probate court without first satisfying the bond given such court.</p> <p>Held, further, that the administrator was not entitled to reimbursement from the assignee.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This action was slander. After verdict for the plaintiff in the Court of Common Pleas, the defendant moved to arrest judgment because the declaration did not set out any cause of action. The motion was dismissed and the defendant excepted.</p>

Dependant’s petition for a new trial. This action is assumpsit against the indorser of a promissory note, brought in the Court of Common Pleas. After verdict for the plaintiff in that court, the defendant filed in this court his petition for a new trial, claiming that the verdict was against the evidence.

<p>Assumpsit. Heard by the court on an'agreed statement of facts, jury trial being waived.</p> <p>Pub. Laws R. I. cap. 425, of May 2, 1884, provides:</p> <p>“ The town council of any town, or the city council of any city, may grant to any person or corporation the right to lay water pipes in any of the public highways of such town or city for the supplying the inhabitants of such town or city with water ; and may consent to the erection, construction, and the right to maintain a reservoir or reservoirs within said town or city, for such time and upon such terms and conditions as they may deem proper, including therein the power and authority to exempt such pipes and reservoirs, and the land and works connected therewith, from taxation.”</p> <p>September 2, 1886, the town council of the town of Lincoln, acting under the authority of the above chapter, adopted the following vote: “Voted, that tbe pipes, reservoirs, land, and works of the city of Pawtucket, forming part of or connected with the water works of said city, and lying or being within the territorial limits of tbe town of Lincoln, be and tbe same are hereby exempted from taxation.”</p> <p>Tbe pipes had been laid and the reservoirs and works alluded to constructed before tbis vote was adopted. Notwithstanding this vote, the assessors of taxes of the town of Lincoln assessed a tax on the pipes, reservoirs, and works spoken of. The city of Pawtucket refused to pay it, and tbis action was brought to collect it. The writ is dated March 5, 1887. The tax was assessed September 8, 1886.</p>

<p>Pub. Stat. R. I. cap. 43, § 6, directs notice to be given by the assessors of taxes requiring “every person or body corporate to bring in to the assessors a true and exact account of all his ratable estate, describing and specifying the value of every parcel of his real and personal estate.”</p> <p>§ 7 provides, “ every person bringing any such account shall make oatli before some one of the assessors that the account by him exhibited contains, to the best of his knowledge and belief, a true and full account and valuation of all his ratable estate; and whoever neglects or refuses to bring in such account, if overtaxed, shall have no remedy therefor.”</p> <p>Pub. Stat. R. I. cap. 42, §10, provides, “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 his indebtedness.”</p> <p>A corporation rendered an account of its personalty as “ no ratable personal estate over and above the actual indebtedness of the company.”</p> <p>Held, that the account rendered did not comply with the statute.</p> <p>Held, further, that the company had no remedy against an assessment on its personalty made by the assessors of taxes.</p> <p>“Ratable,” in Pub. Stat. R. I. cap. 43, §§ 6, 7, means “capable of being appraised or assessed.”</p>

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

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

<p>Bill in Equity to redeem realty from a tax title, and to remove a cloud upon the complainant’s title. On demurrer to the bill.</p>

Bill in Equity for instructions. Harriet B. Bailey, by her will dated June 27, A. D. 1868, and duly proven, bequeathed certain property to her husband, the complainant, in trust to pay the net income : “ One third thereof to my said husband during his life for his own use. “ And the other two third parts thereof to and for the support, education, maintenance, or use and benefit of my children, or any or either of them for and during the term of twenty-one years after my…

<p>Case Stated for an opinion of the court under Pub. Stat. R. I. cap. 192, § 23.</p> <p>Catharine Lorillard Wolfe, of New York, by her last will made devises and bequests as follows :</p> <p>“ Twelfth, With regard to the two parcels of land which I have recently purchased at Newport, one from the executors and trustees of the will of William Beach Lawrence, and the other from Pierre Lorillard and wife, as by the deeds thereof to me will appear, I give and devise the same, with all the buildings and improvements which may exist thereon at the time of my decease, to my cousin, Louis L. Lorillard, and his heirs and assigns forever. And therewith I also give and bequeath to him all the furniture, linen, books, pictures, and household goods and stores which may be or belong in the dwelling upon said premises at the time of my decease ; and also all horses, carriages, and sleighs, and their equipment, and farming and gardening implements and domestic animals, which may then be on said place (not including, however, in this bequest any silver or other plate, nor wearing apparel or private papers, nor other articles in this my will elsewhere disposed of) ; and hoping that my cousin will use and occupy said place as his summer residence, although it may be an expensive one to maintain and keep in order, I therefore give and bequeath to him the sum of two hundred and fifty thousand dollars ; and I also give to my said cousin, Louis L. Lorillard, all articles ordered by me for the decoration and furnishing of the dwelling and place hereby devised (if any remain undelivered at the time of my decease), including, among other things, any rugs, tapestries, or stained glass which may have been ordered by me for those purposes.” . . .</p> <p>“ Nineteenth. With regard to all the rest and residue of the estate, real and personal, which may belong to me in my own right at the time of my decease, and whether derived to me by purchase, gift, or devise, I give, devise, and bequeath the same in equal shares absolutely and forever to such of the following cousins of mine on the part of both my father and mother as may survive me, that is to say.” . . .</p> <p>The will was dated and executed February 14, 1884. After-wards, May 29, 1884, the testatrix purchased of Pierre Lorillard a tract of land adjoining that mentioned in the twelfth clause of her will as purchased of Pierre Lorillard and wife, and on these two tracts purchased from the Lorillards she built a continuous series of substantial buildings, containing a gardener’s house, stables, hen house, and tool sheds. These buildings were partly on one tract and partly on the other, and were used in connection with her house situated on the land bought of the executors and trustees of Lawrence.</p> <p>The present petition was filed on a case stated by Louis L. Lorillard and the executors of the testatrix, asking the court whether the lot purchased May 29, 1884, by the testatrix, passed to Louis L. Lorillard under the twelfth clause of her will.</p> <p>By the terms of the will, the executors were to equalize residuary gifts, taking into consideration the specific devises made.</p>

<p>When, in direct proceedings before a tribunal, its jurisdiction is denied, the jurisdictional facts must appear on and be shown by the record.</p> <p>Hence, when a school district attempted to condemn land under Pub. Stat. R. I. cap. 56, § 5, and the records of the district did not show that the “ proprietor of the land refused to convey the same, or could not agree with the district for the price thereof,”</p> <p>Held, that the proceedings must be quashed.</p>

<p>A. devised and bequeathed all the residue of his estate to his children, subject to the right of his wife M. to use such parts as she might choose for the residence of herself and his children, and to use the income of the rest for the use of herself and his children during her life and until she should remarry. On her remarriage M. was to have the use and income of one half the estate only. M. was appointed executrix of the will.</p> <p>M. administered the estate, and then filed in the probate court a statement that she still held as executrix certain- specified shares in certain corporations. Afterwards she transferred into her own name and pledged some of these stocks, and subsequently made an assignment for the benefit of her creditors to S. under Pub. Stat. R. I., cap. 237, § 12.</p> <p>The children of A. then brought their bills in equity against the corporations to recover the stock pledged or its value. They also filed a bill against M. and S., claiming an equitable lien on the assigned property to the extent of the conversion of the corporate shares made by M.’s pledging them.</p> <p>Held, that a trust grew out of M.’s appointment as executrix and her holding the stock in her representative capacity after payment of debts, she being a life tenant.</p> <p>Held, further, that the trust continued in equity, notwithstanding the transfer into her own name, and that the pledge was a violation of the trust.</p> <p>Held, further, that the complainant tenants in remainder, the children of A., were entitled as against the assignee to hold M.’s interest in the trust fund for any losses resulting from . her breach of trust.</p> <p>Held, further, that M.’s life interest in the realty of A., not being involved in the trust, was not subject to the same equity of compensation.</p> <p>Held, further, that the children of A., complainants, were not obliged to exhaust their remedy on the bond of M., as executrix, before enforcing their claim for compensation against her life interest.</p> <p>Held, further, that M.’s interest in the shares of stock in the assignee’s hands should be held to await the result of equity suits brought by the children of A. against the corporations.</p> <p>When the corpus of property held in trust for a life tenant and remainder men is, in violation of the trust, impaired for the benefit of the life tenant, the interest of the life tenant may be held for the deficit, both in the hands of the life tenant and in those of his assignee in insolvency or bankruptcy. And this right of compensation from the life interest belongs not only to the trustee but also to the remainder men.</p>

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

<p>R. published a series of books, all but one of which were copyrighted by him. They were published by subscription, with printed and oral statements that the edition of each book was limited to two hundred and fifty copies and would not be reprinted. Subsequently R. made an assignment of all his property for the benefit of his creditors.</p> <p>Held, that R.’s copyright was subject to his agreement with the subscribers not to print more than two hundred and fifty copies.</p> <p>Held, further, that this number of copies having been printed, the copyright had in it nothing of value to pass to the assignee.</p> <p>Held, further, that, whether the copyright passed under the assignment or not, the assignee could not so sell the copyright as to empower a purchaser to republish the books.</p>

<p>K. devised to his wife all his realty, to hold during her life, with power to sell so much and such parts as she might think proper and necessary for her support, if the income was insufficient to maintain her comfortably.</p> <p>Heldy that the wife took a life estate, coupled with a power of sale.</p> <p>Held, further, that this power of sale was personal to the wife, and could not be assigned by her.</p> <p>K. devised the remainder in the realty, after the wife’s life estate, to P. and his heirs, “ provided, however, he pay all my debts of every name and kind, including funeral charges and placing gravestones at my grave.”</p> <p>Heldj that P. took a remainder in fee, and that the condition attached was a condition subsequent.</p>

<p>A., being life tenant of realty under a will, with power to sell in case the rents and income were insufficient for her comfortable support, made deeds:</p> <p>1. Of a part of the realty in execution of the power to sell.</p> <p>2. Of her life estate in the rest to one W., in trust to manage, etc., and to support A. from the income.</p> <p>3. To W. of all her interest in the realty .except that conveyed under deed No. 1. This deed, No. 3, was a quitclaim, and did not refer to the powers given by the will.</p> <p>Seldy that this last deed conveyed only A.’s equitable life estate.</p> <p>If an interest and a power coexist in the same person, an act done without reference to the power will as a rule affect the interest, not the power.</p> <p>Explanatory words of intention in a deed may remove ambiguity of description, but do not enlarge the grant.</p>

Bill in Equity for an account. Pub. Stat. R. I. cap. 214, § 45, provides : “¡Whenever either party to any proceeding at law or equity in the Supreme Court, or to any proceeding at law in the Court of Common Pleas, shall set forth in writing, under oath, upon his knowledge or belief, that the opposite party is in the possession or control of some document to which the applicant is entitled, such court or a justice may order such opposite party, or, if the same be a body…

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

<p>In Rhode Island a non-resident suitor attending court in the matter of his suit is not exempt from the service of a writ of summons against him in another suit.</p>

<p>Plaintiff’s petition for a new trial.</p> <p>This action was assumpsit brought by the plaintiff as executor of the will of Mary E. Burnside against the defendant individually.</p>

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

<p>Deeendant’s petition for a new trial.</p> <p>This is the same case in which a new trial was granted by the decision reported, 15 R. 1. 380. The new trial resulted in a verdict for the plaintiff and the defendant filed this petition.</p>

<p>The proprietors of the town of M. in A. D. 1744 voted to relinquish to the town all their rights in the common land lying on S. beach “to be by the said town managed from time to time as an éstate belonging to said town.” The town accepted the grant and the next year voted in town meeting to sell the beach to E. in case E. would “allow all such privileges as shall be thought necessary for the service of the town by a committee,” which was appointed, and in case of sale the committee was “to reserve the privileges by bond to be recorded with the deed, . . . and the town clerk to give the deed.” The sale was made and the deed to E. referred to the town’s vote. Coincident with the deed E. executed to one G., the town treasurer, his bond, which recited the town’s vote, referred to the deed, and was conditioned on E., his heirs, executors, administrators, and assign's, granting and allowing forever to the inhabitants of the town certain liberties and privileges enumerated, being rights of entry and passage and of collecting and asporting sand, seaweed, shells, and drift stuff. All this was of record in the town. The privileges, after continuous enjoyment from a. d. 1746, were in A. i>. 1877 interrupted by the successor in title of E., and the town of M. filed its bill in equity to establish the “ liberties and privileges ” against E.’s successor in title.</p> <p>Held, that relief could not be given by reformation of the bond; it not appearing that the bond was other than the contracting parties intended, the heirs of the obligor not being parties to the suit, and equity courts not having jurisdiction to reform an instrument because the contracting parties misconceived its efficiency.</p> <p>Held, further, that the bond was the personal contract of E. and was an essential part of his title, that notice of the bond was in the line of title of all E.’s successors in title, who were therefore affected with notice of it, and that all E.’s successors in title with notice of the bond were bound by its provisions.</p> <p>Held, further, that the court could grant relief by injunction. Kejppell v. Bailey, 2 Myl. & K. 517 ; Brewer v. Marshall $ Cheeseman, 18 N. J. Eq. 337, 39 N. J. Eq. 537, disapproved. Held, further, that the mere lapse of time since the bond was executed was no bar to relief; as the statute of limitation could only run from the time of interruption and no laches were found.</p> <p>Held, further, that the bond was to secure performance, not to give an option of performance or breach.</p> <p>Held, further, that the town could maintain its suit in equity without having letters administrative on G.’s estate taken out and suit brought in the name of the administrator.</p> <p>Held) further, that the bond only allowed the material asported by the inhabitants of the town to be used in the town. Such material could not be exported from the town for use or sale beyond the town limits.</p> <p>Held) further, that the complainant was entitled to an injunctive order preventing the respondent, E.’s successor in title, from interfering with the enjoyment by the inhabitants of the town of M. of the liberties and privileges described in the bond; and requiring the respondent to allow the inhabitants of the town of M. the rights and privileges secured by the bond, just as E. if living could have been required to allow them.</p>

<p>Bill in Equity for an injunction. On petition for a preliminary injunction.</p>

Assumpsit. On plaintiff’s motion to strike out a plea in abatement. This action was brought against numerous defendants, doing business as common carriers under the name of the Adams Express Company, upon their joint promise. The defendants pleaded in abatement the nonjoinder of other joint promisors. The plaintiff moved that the plea be stricken out because not verified by affidavit.

<p>A statute required as the condition of appeal from a district court in certain cases that the defendant should give bond to the plaintiff with sufficient sureties “to the satisfaction of such court.” The papers sent up in an appealed case contained a bond with the indorsement of the clerk of the District Court “filed,” but with no other indorsement or record of approval.</p> <p>Held, that the presumption was that the bond had been found satisfactory by the District Court, as it could not properly have been received and filed until the court had approved it.</p> <p>On motion to dismiss an appeal in the Court of Common Pleas because the statutory bond had not been approved by the District Court, appealed from, the question of approval or nonapproval was submitted to a jury.</p> <p>EM, error. The question was for the court.</p> <p>The jury found that the bond had not been approved by the justice of the District Court.</p> <p>Eeld, irrelevant. Under iPub. Laws R. 1. cap. 597, § 10, of May 27, 1886, the justice of a district court may or may not be the court.</p>

Bill in Equity for a reconveyance of realty, for an account, and for an injunction. On motions relative to the master’s report.

<p>Appeal from the report of commissioners on the estate of an insolvent decedent. On motion to dismiss the appeal.</p>

<p>Bill in Equity for instructions.</p> <p>Marcy Pitcher, a resident of that part of the town of Pawtucket, in the County of Bristol and State of Massachusetts, which has been annexed to the State of Rhode Island, died testate, leaving a will which was duly proved before the Court of Probate, in said County of Bristol. The will appointed as executor Henry P. Knight, who died before the testatrix. The complainant was appointed by the Probate Court of the town of Pawtucket, in Rhode Island, administrator with the will annexed of the estate of said Marcy Pitcher.</p> <p>Her will contains the following clause :</p> <p>“ I give and bequeath to my grandson, George Larned Pitcher, son of my son George W. Pitcher, the sum of five hundred dollars, to be paid by my executor from my estate, in each and every year during the life of my said son, George W. Pitcher, for the support and education of my said grandson.</p> <p>“I hereby authorize my executor at any'time after my said grandson shall have attained the age of twenty one years, to pay to my said grandson, for his advancement in business, any sum of money not exceeding eight thousand dollars, to be paid at once or at different times, and in separate sums or not at all, at the discretion of my executor; and when said payments shall amount to said sum of eight thousand dollars, the payment of the aforesaid annuity to my said grandson shall cease.”</p> <p>The bill set forth that George Larned Pitcher was of the age of thirty seven years; that the annuity was paying to him out of the capital of the estate, which was thus yearly diminishing ; that all the legacies contained in the will of Marcy Pitcher had been paid, except those to George W. Pitcher and George Larned Pitcher; that George W. Pitcher consented to the payment to George Larned Pitcher of the eight thousand dollars, and the bill prayed for instructions whether the complainant could exercise the power given by the will to the executor to make such payment.</p>

<p>A., after certain specific and pecuniary legacies, gave the residue of his estate to three persons, “ they paying out of the same all my just debts, funeral charges, and expense of settling my estate.” The personalty of the testator was exhausted by debts, legacies, and administration expenses, and a creditor holding a promissory note, indorsed by the testator, filed his bill in equity against the three residuary donees to enforce payment from the real estate devised to them.</p> <p>Held, that the bill should be sustained.</p> <p>Query, whether under the R. I. Statute property expressly charged with the testator’s debts does not even for creditors become the primary fund for their payment.</p> <p>A testamentary charge on realty for the payment of debts prevents the statute of limitations from running against such debts as were not barred in the testator’s lifetime.</p> <p>In Rhode Island payments made on a joint note by one of the joint debtors prevent the statute of limitations from running in favor of the other joint debtors whether they authorized such payments or not.</p>

<p>In scire facias against bail, execution issued and tbe defendant was committed to jail. He at once gave bond, under Pub. Stat. R. I. cap. 225, for tbe liberty of tbe jail yard, but allowed tbe statutory period of thirty days to elapse without making an assignment of his property, and without returning to close jail; whereupon a pluries execution issued, the defendant was committed again, and his oiler to give another jail limit bond refused.</p> <p>On his application for habeas corpus,</p> <p>Held, that the commitment under the pluries execution was proper.</p> <p>Held, further, that the offer of another jail limit bond was properly refused.</p> <p>The defendant’s neglect to assign or to return to close jail was an escape; the remedy for which is either commitment on a plw'ies execution or action on the jail limit bond, the latter being statutory and cumulative.</p> <p>In Rhode Island, if the return on an original execution shows it to be unsatisfied, the clerk of court issues an alias on request. If the non-satisfaction of the execution does not appear from the return, the court may order an alias on motion and without notice.</p> <p>Query, if it be good practice to order an alias without notice.</p> <p>Held, that the alias, if issued without notice, is sufficient for the debtor’s arrest and detention notwithstanding the lack of notice.</p>

<p>Bill in Equity to set aside a deed of realty. On demurrer to the bill.</p>

<p>A., acting under the advice of B. an attorney at law and his counsel, gave to B. a voluntary deed of trust for A.’s children. The deed contained no power of revocation, was given to force an advantageous agreement of separation with A.’s wife, and was made when A. had been sick and nervously excited.</p> <p>It appearing that B.’s language led A. to believe that B. could reconvey to A., that A. and his wife had been reconciled, and that B. had made a mortgage of the property:</p> <p>Held, that A. was entitled to have the deed avoided so far as it could be, saving the rights of the mortgagee.</p> <p>This avoidance was required both by the relations of A. to B. and by public policy.</p>

<p>A. sued B. in a district court, serving tlie writ by garnishment. Judgment was given for the plaintiff A., and the garnished trustee was discharged; whereupon, A. appealed from the judgment discharging the garnishee.</p> <p>Seld, that the appeal would not lie. The proceeding against the trustee is incidental to the action against the principal debtor, and can be brought up on appeal only by an appeal from the principal judgment.</p>

<p>Bill in Equity for an account. On complainants’ motion for a final decree confirming the master’s report and on counter motions by respondents.</p>

<p>A bicycle is a “carriage or vehicle ” within the meaning of Pub. Stat. R. I. cap. 66* § 1} which requires any person travelling on a highway with a carriage or vehicle to turn out to the right on meeting another person so travelling.</p>

Petition for a writ of mandamus. Public Laws R. I. cap. 712, of June 1, 1888, provide as follows : “ Section 1. The governor of the State shall, on the passage of this act, appoint five graduates in dentistry, residing and doing business within the State, who shall constitute a board of registration in dentistry.

<p>An indigent widowed mother put her infant child in the care of her deceased husband’s sister, and allowed it to remain there for nine years, when, after a remarriage, she brought hateas corpus to compel its return. Nothing appeared against the mother’s ability and fitness to care for the child, but it appeared that the child had been well cared for by the aunt, who, with her husband, had learned to regard the child as her own.</p> <p>Held, that the court would not rupture the relations of nine years growth, established and continued with the mother’s assent.</p> <p>Held, further, that the mother and child should have full opportunities to see each other.</p> <p>Held, further, that any future change of circumstances might be followed by proper action on the part of the court.</p> <p>Held, further, that the petition for habeas corpus should be dismissed.</p>

Bill in Equity for instructions. This bill was filed by the trustees under the will of Thomas P. Bucklin, which was proved before the Court of Probate of the town of East Providence, February 8, 1870. The questions submitted are stated in the opinion of the court.

<p>In assumpsit in a district court the plaintiff declared for the sum of $152.29 “ on Book Account according to the account annexed,” also on the common counts. After appeal to the Court of Common Pleas the plaintiff was allowed to amend by inserting the words “balance due” before “on book account.” The count filed contained items of debit and credit amounting to some thousands of dollars.</p> <p>Held, that the Court of Common Pleas committed no error in allowing the amendment. Query, whether the amendment was needed, and whether the original count was not within Pub. Laws E. I. cap. 597, § 30, of May 27, 1886.</p> <p>The jurisdiction of District Courts is conferred by Pub. Laws E. I. cap. 597, § 23, of May 27, 1886. ‘Section 30 of this chapter is for the benefit of defendants, and may be waived by them.</p>

TRESPASS on the case to recover damages for injuries to the plaintiff’s intestates, while living, caused by tbe defendant’s alleged negligence. On plaintiff’s motion to reinstate defendant’s demurrers.

<p>Defendant’s petition for a new trial.</p> <p>Criminal complaint brought in the District Court of the eighth judicial district and carried by the defendant’s appeal to the Court of Common Pleas. After conviction in the Court of Common Pleas, the defendant filed this petition in this court.</p>

<p>A statute provided that the word “intoxicating” should include any liquor or mixture of liquors containing more than two per cent, by weight of alcohol, and prohibited the sale of intoxicating liquors.</p> <p>Held, that the statute was constitutional and a valid exercise of the police powers of the State.</p> <p>A justice or clerk of a district court may by an amanuensis reduce a complaint to writing. The justice or clerk makes the work his own by swearing the complainant and issuing the warrant.</p> <p>Pub. Laws R. I. cap. 596, § 1, of Ma3r 27, 1886, as amended by Pub. Laws R. I. cap. 634, § 1, of May 4, 1887, no longer contains the words “within this State, ” so that the words “ within this State ” need not in a complaint be added to the words “for the purpose of sale.”</p> <p>A court received a verdict against A. who was absent and on bail.</p> <p>Held, in the absence of evidence to the contrary, that A. was voluntarily absent and waived his right to be present.</p>

<p>On the trial of an indictment for maintaining a common nuisance, namely, a place used for “the illegal sale and keeping of intoxicating liquors,” evidence was admitted, against the defendant’s objections, that an analysis of the liquors showed them to contain 4.55 to 4.72 per cent, by weight of alcohol.</p> <p>Held, no error. The jury was to determine whether the liquors were intoxicating, and evidence of their alcoholic strength was pertinent.</p> <p>A statute, Pub. Stat. R. I. cap. 80, § 1, made places used for the illegal sale of intoxicating liquors “common nuisances.” A subsequent statute prohibiting the sale of intoxicating liquors, Pub. Laws R. I. cap. 634, § 1, of May 4,1887, provided that the “ words intoxicating liquors . . . used in this act ” should include liquors containing more than two per cent, by weight of alcohol.</p> <p>Held, that the two statutes were to be construed together, and that the illegal sale of liquors containing more than two per cent, by weight of alcohol made the building used for such sale a common nuisance.</p> <p>To convict a defendant under the nuisance act it is not necessary to show that he knew the liquors sold to be intoxicating. The law presumes his knowledge of the kind and quality of the liquors which he sells.</p>

<p>At the trial of an indictment under the nuisance act, Pub. Stat. R. I. cap. 80, for keeping a tenement used for the illegal sale of intoxicating liquors, the evidence showed the liquors to be wine, ale containing 4.94 per cent, by weight of alcohol, and beer containing 2.89 per cent, by weight of alcohol.</p> <p>Held, that the presiding justice properly refused to charge the jury that there was no evidence that the liquors were intoxicating.</p> <p>When two persons are indicted for maintaining a liquor nuisance, and it appears that one was sole proprietor and the other a servant under his direct personal supervision, the servant cannot be convicted.</p> <p>A statute provided that the word intoxicating should include any liquor or mixture of liquors containing more than two per cent, by weight of alcohol, and prohibited the sale of intoxicating liquors.</p> <p>Held, that the statute was constitutional and a valid exercise of the police powers of the State.</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>State v. Kane} 15 R. I. 395, affirmed.</p>

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

<p>Dependant’s petition for a new trial.</p> <p>The defendant, at the June Term of the Court .of Common Pleas, A. D. 1888, was found guilty of maintaining a liquor nuisance. A bill of exceptions taken by him and allowed by the presiding justice was overruled in this court January 4, 1889. He then filed in this court a petition for a new trial.</p>

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

<p>A strict bill of interpleader should show that the respondents have conflicting claims, and that it is doubtful which is right.</p> <p>But a bill in the nature of interpleader may properly be brought by a mortgagor when there are conflicting claims to the money, and in such a bill the mortgagor, complainant, may also ask an account, a decree of redemption, and an injunction staying a sale under the mortgage. Such a bill does not require an affidavit denying collusion.</p> <p>A bill in the nature of interpleader brought by a mortgagor will lie against a husband and wife whose claims to the money are conflicting. In such a case a guardian ad litem will be appointed for the wife.</p>

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

Bill in Equiy for an injunction. On demurrers to the bill. This bill was brought against the City of Providence and the Harbor Commissioners of the State of Rhode Island.

<p>The Constitution of Rhode Island, art. 4, § 17, provides: “When any bill shall be presented to either house of the General Assembly to create a corporation for any other than for religious, literary, or charitable purposes, or for a military or fire company, it shall be continued until another election of members of the General Assembly shall have taken place, and such public notice of the pendency thereof shall be given as may be required by law.”</p> <p>Held, that substantial compliance with this provision was essential to the creation of a corporation to which the provision applies.</p> <p>Query, whether the provision applies to public corporations.</p> <p>Held, that reasonable doubts, were to be resolved in favor of the validity of legislative enactments.</p> <p>Held, further, that the provision was to be construed with regard to legislative practice under it.</p> <p>Held, further, that, so construed, the provision did not apply to public corporations.</p> <p>Hence the court cannot pronounce unconstitutional Pub. Laws R. I. cap. 710, of March 22, 1888, incorporating the District of Narragansett, in the town of South Kingstown, presented and passed without continuance until after an election.</p> <p>Held, further, that cap. 710 was not unconstitutional because no representation in the General Assembly was given to the district, the district being represented in the General Assembly as a part of South Kingstown.</p>

<p>A testator by the fifth clause of his will devised certain realty, subject to legacy charges, to A. and B. “ for and during the term of their natural lives, and after them equally to their children, their heirs and assigns forever.” By the eleventh clause of his will the testator added, “In clause fifth of my will my intention and meaning is that, after the decease of . said A. and B., or either of them, one half of said estates is to descend to said A.’s heirs and assigns, and the other half to descend to said B.’s heirs and assigns.”</p> <p>Held, that, under the eleventh clause explaining the fifth, A. and B., according to the wle in Shelley’s case, took each an undivided half of the realty in fee simple.</p>

Exceptions to the Court of Common Pleas. This action was debt on bond. After judgment for the defendant in the Court of Common Pleas the case was brought by the plaintiff’s exceptions into this court, where it was heard on an agreed statement of facts and a stipulation, which are given in the opinion.

<p>A second foreman in the machine shop of a cotton mill is a fellow servant with the foreman of the slashing room, within the rule exempting the master from liability to a servant for injuries resulting from the negligence of a fellow servant in their common service. Servants under the same master in a common service are fellow servants, though engaged in different departments of labor.</p> <p>The ordinary risks assumed b}r a servant include the carelessness of his fellow servants.</p>

<p>QUO 'WARRANTO.</p>

<p>Petition to modify a decree for alimony.</p>

<p>When, after a defective exercise of the powers -of sale contained in a mortgage, the mortgagors receive the surplus proceeds of the sale, ignorant of the defects in the sale, but after learning the defects continue to keep such proceeds, they are estopped from denying the purchaser’s title. They cannot at the same time repudiate the sale and enjoy the benefits of it.</p> <p>A Iona fide purchaser, at a mortgagee’s sale which proves defective,'is after paying the purchase money subrogated to the rights of the mortgagee. The mortgage is in equity regarded as assigned to such purchaser, even if the mortgagee’s deed to him does not contain language amounting to a legal assignment. Such a purchaser is not a stranger to the estate, but is equitably subrogated to the mortgagee’s rights.</p> <p>These doctrines hold even in case of a minor whose guardian inserted in the mortgage invalid powers of sale.</p> <p>Nor is it in equity material that the mortgage was discharged of record after sale made, and after the purchaser’s right of subrogation had accrued to him.</p>

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

<p>The certificate issued by a mutual benefit corporation to one of its members, C., provided that C. during his membership could surrender the certificate and receive a new one in favor of a different beneficiary, “ complying with the laws of the order on this subject; ” also, that the contract was between the corporation and C., not between the corporation and the beneficiary. A by-law required, in case of a change in the beneficiary, that the consent of the beneficiary should be indorsed on the certificate, but this by-law was after-wards revoked.</p> <p>C. took a certificate in favor of his wife, and, after the revocation of the by-law mentioned, surrendered the certificate without his wife’s knowledge, taking another in his own favor.</p> <p>Held, that the wife had no vested interest in the benefits under the first certificate.</p> <p>Held, further, that the change in the beneficiary was valid; being made in accordance with the by-laws in force when the change was made.</p> <p>Held, further, that in the circumstances a gift of the first certificate by C. to his wife was not proved.</p>

<p>Petition for a writ of mandamus.</p>

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

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

<p>Bill in Equity to reform a written contract for the sale of land, and to enforce it as reformed.</p>

Exceptions to a Special Court of Common Pleas. This action was trespass and ejectment brought by the widow and heirs at law of one Benjamin T. Gorton, to recover from the defendants Potter and one Burdick possession of certain lands owned by said Gorton while living. The first count of the declaration charged a wrongful dispossession by both defendants.

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

<p>A deed unacknowledged and unrecorded, but valid between the parties to it and their heirs, will be deemed valid as to other persons having actual notice of it, so that such other persons with notice will be affected by such deed as if acknowledged and recorded in due form. The statute, Pub. Stat. R. X. cap. 173, § 4, making deeds, etc., unless acknowledged and recorded, void as to others than the parties to them and their heirs, has been and should be construed as if containing the above provision.</p> <p>An unsealed mortgage, though inoperative as a conveyance of land, will in equity be enforced between the parties to it according to its intent, and will also bind the land against a subsequent purchaser for value with nbtice of the unsealed mortgage.</p> <p>A mortgage was given for $45,000. While $35,000 remained unpaid, a further loan of $15,000 was made from the mortgagees, and a new mortgage for $50,000 was given conveying the same property as the former one. The first mortgage was left uncancelled, and the second mortgage contained no statement that it included the indebtedness secured by the first.</p> <p>Held, that, while the court disapproved the proceeding, it could not avoid the second mortgage as against public policy, as violating the registry laws, or, in the absence of fraudulent intent shown, as violating the statute against fraudulent conveyances.</p>

<p>The notice to the town council required by Pub. Stat. R. 1. cap. 34, § 12, before bringing an action against the town, is sufficient, in case of a claim for unliquidated damages, if it states the facts from which the claim arises, though it does not state the amount of the claim.</p>

<p>A testator gave his estate to trustees, subject to certain charges and annuities, to hold for specified purposes, among which was the indorsement of notes to be issued by certain named corporations. All of this was well known to the payees when the notes were issued. The notes were indorsed “í. M. S., C. M. S., Trustees Estate of A. D. S.M Beld} that E. M. S. and C. M. S. were personally liable on the indorsements.</p>

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

<p>Art. 9, § 1, of the Constitution of Rhode Island, which provides, “No person shall be eligible to any civil office . . . unless he be a qualified elector for such office,” requires the qualification as elector to exist at the time of election to office, not at the time of exercising the functions of the office.</p> <p>A complaint charged the defendant at Tiverton, in the County of Newport, with wantonly injuring a building.</p> <p>Held, that the complaint by necessary inference located the building in the town of Tiverton.</p>

<p>A petition to a court of probate for leave to adopt a child charged that the father had wilfully deserted the child, and hart neglected to provide for it for more than a year. A next friend was appointed, and the petition was granted with the consent of this next friend. Thereupon an appeal was taken to this court by the father for the child as its next friend, under Pub. Stat. R. I. cap. 164, § 9.</p> <p>Held, that the appeal was properly taken.</p> <p>Held, further, that this court might dismiss the father as next friend, if shown to be unfit; a “next friend” being an officer of the court.</p>

<p>A testator bequeathed to his daughter J. $40,000 in the notes of the M. company, followed by the direction, “In case any part of said notes are paid at the time of my decease, then I direct that ny executors shall pay to her such sum of money as, with said notes then remaining unpaid, at their face value, shall amount to said sum of $40,000.” Then came a legacy of one note of the M. company for $2,500 to each of the three children of J., and the direction, “In case said notes shall have been paid at the time of my decease, I direct my executors to pay to said legatees the sum of $2,500 in the place and stead of said note or notes that have been paid.”</p> <p>The testator held eighteen notes of the M. company for $2,500 each, and one note for $3,481.55.</p> <p>Held, that the gift of the notes was a specific legacy.</p> <p>Interest on the notes was payable at 5 per cent, per annum until paid.</p> <p>Held, that J. was entitled to the interest which had accrued since the testator’s death on the notes given to her.</p>

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

<p>A complaint was headed (l To A. B., Justice of the District Court of the Sixth Judicial District ; ” the jurat showed that it was subscribed and sworn to before C. D., justice of that court. When the complaint was made A. B. was not, and C. D. was, the justice of that court.</p> <p>Eddy that this court would take judicial cognizance that C. D. was the justice.</p> <p>Eddy further, that the name A. B. should be treated as surplusage.</p>

<p>The surety in a recognizance in a criminal case cannot, after the recognizance has been do-faulted, discharge himself by surrendering his principal.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>This action was seire facias on a defaulted recognizance. The' defendant pleaded nul tiel record, also nil debet, and that he did not acknowledge himself indebted as the State hath declared against him. On motion of the State, all the pleas were stricken out except that of nul tiel record. Under this plea the defendant sought to show that the court which took the recognizance did not have jurisdiction of the complaint in which it was taken, that the defendant was not the recognizor, that the defendant neither recognized nor acknowledged himself indebted as stated in the declaration. The Court of Common Pleas refused to receive evidence offered in support of these defences, and the defendant excepted.</p>

<p>Sale and delivery of a stock of goods “to be paid for as sold,” and the purchaser to “have at least eighteen months to sell the stock.”</p> <p>Held, that, within the eighteen months, the purchaser could be compelledJ to pay only for goods sold by him, but that at the expiration of the eighteen months he must pay for the stock of goods, whether sold or not sold.</p>

<p>Exceptions to the Court of Common Pleas.</p> <p>The bill of exceptions in this case, as allowed by the justice who presided at the trial in the Court of Common Pleas, shows :</p> <p>That the plaintiff occupied as tenant a store in Pawtucket; the defendant was agent of the plaintiff’s landlords; there were no arrears of unpaid rent, but the plaintiff had been duly notified in writing to vacate the hired premises. At the time specified in the notice to quit, the plaintiff refused to surrender the premises, and his lessors brought an action of ejectment against him. While this action was pending, the defendant, as agent of the lessors, entered on the premises during the plaintiff’s absence, removed the plaintiff’s goods into the street, and forcibly prevented the plaintiff from reentering, whereupon the plaintiff brought this action in trespass, and the defendant pleaded the above facts in justification. At the trial the plaintiff requested the presiding justice to charge the jury “that the defendant, under the evidence, had no right to enter the premises occupied by the plaintiff, without process of law, and that such entry was a trespass. The presiding justice refused so to charge, and did charge “ that, at the expiration of the notice to quit, the plaintiff became a trespasser, and that the defendant, as agent of the landlords, had a right to enter said premises, take possession, and eject the plaintiff’s goods therefrom without legal process, and that the plaintiff had no right to reenter.” To the refusal and charge tbe plaintiff excepted.</p>

<p>Petition for a writ of mandamus.</p>

<p>On the trial of an indictment for murder, two statements made by the deceased describing his assailant were admitted in evidence. One was made just after the murderous assault to a man who came at the victim’s call. One was made ten or fifteen minutes later to a friend who was summoned at the victim’s request.</p> <p>Held, that the statements were properly received in evidence.</p> <p>The admissibility of such statements is controlled, not by the fact of intervening time, but by the real and illustrative connection between them and the act committed Of this connection the intervening time is a factor. Declarations shown by common experience to be the instinctive result from an act are part of the act, even if made five or fifteen minutes after the act.</p>

Information filed by the Attorney General. On petition for a preliminary injunction. This information was filed on the relation of certain residents of Newport to enjoin the construction of a street railway, and the erection of poles to carry electrical conductors in connection therewith, in the streets of Newport. The case came before the court on a motion for a preliminary injunctive order to prevent track laying across Bellevue Avenue.

<p>Habeas Corpus. Tbe case is stated in tbe opinion of tbe court.</p>

The Probate Court of the town of Cranston, by a decree made June 9, 1888, appointed J. Erastus Lester administrator of the estate of Jonathan A. Knowles, deceased. From this decree Alden R. Knowles, son and heir at law of the intestate, appealed to this court, giving as reasons of appeal: 1. Because said Lester was not of kin to tbe deceased. 2. Because said Lester was not interested in the estate. 8. Because said Lester was an unfit person to administer. 4.

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

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

<p>"When a litigant desires relief from error of law on the part of the court, and of fact on the part of the jury, he should petition for a new trial, alleging the erroneous rulings of the court as one reason for the new trial, and alleging the verdict to be against the evidence as another reason, supporting the allegations with a report of the evidence.</p>

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

<p>The lien of an unpaid vendor retaining possession of the goods sold is not a right which the vendor acquires, but one which he retains. In its nature it is a right undisposed of in and to the goods sold to the vendee who is in default.</p> <p>Hence, when enforcing this lien, the vendor makes a second sale of the goods, the second purchaser is not liable in trover or in replevin to the first purchaser, so long as the latter is in default in payment.</p> <p>A. sent lumber to Providence consigned to himself. It was for some months in a warehouse for A., who then gave to "W. a receipted bill for the lumber and an order for its delivery on payment of charges, and received from W. a note, which turned out worthless. "W. sold the lumber to B. A. revoked the delivery order, sold the lumber to C-, who was a bond fide purchaser for value without notice. Neither W. nor B. ever offered to pay the price of the lumber or the charges on it, or ever presented A.’s order for delivery. A. retained possession of the lumber until it was delivered to O.</p> <p>In replevin for the lumber brought by B. against C.:</p> <p>Held, that the action would not lie.</p>

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

<p>A deed in the ordinary form of quitclaim, and containing no trusts nor powers, ran: t:I (the grantor), for and in consideration of one dollar to me paid by E, trustee of B., C., D., etc., minor children of said E, do remise, release, and forever quitclaim to him, the said E, trustee as aforesaid, his heirs and assigns forever, all the right, title, etc.....to have and to hold the same, with all the rights, privileges, and appurtenances thereto appertaining to him, the said E, trustee, his heirs and assigns forever.”</p> <p>Held, that this was tantamount to a conveyance to E, to the use of the children, and that the statute of uses at once vested the title in the children, who took at least life estates.</p> <p>After this deed was delivered, the grantor and E joined in executing a declaration of trusts.</p> <p>Held, that this declaration was a nullity. The grantor had parted with his whole title, and E could neither divest the children of an executed trust nor change a naked trust into an active one.</p>

<p>Bill in Equity to define the boundary line between riparian owners. On respondent’s r vtion to amend the final decree.</p>

<p>A. loaned money toa corporation to be repaid in preferred stock which was to be issued, both parties supposing that the corporation had power to issue such stock. It appearing that such power did not exist, A. demanded the return of his money and brought an action therefor.</p> <p>Held, that A. was entitled to recover, and that the corporation could not defend by the offer of preferred stock issued under legislative authority granted pending the action.</p>

<p>A statute gave to any one injured in person, reputation, or estate by the commission of crime an action against the criminal, but provided that complaint should first be made to some proper magistrate, except in cases where an action could be maintained at common law.</p> <p>This statute being in force, A., before complaint had been made to a magistrate, brought an action against B. for expenses and loss of society and service resulting from a fatal abortion produced instrumentally by B. on the body of A.’s daughter :</p> <p>Held, that at common law the action would lie for loss of service, and for expenses incurred before the daughter’s death, though no criminal complaint was made, it not appearing that the woman was “ quick with child.”</p> <p>Held, further, that, so far as expenses and loss of service after the death of A.’s daughter were concerned, B. could, under the general issue, avail himself of the omission to make complaint before a magistrate.</p>

<p>Bill in Equity to set aside conveyances of realty. On demurrer to the bill.</p>

<p>A. by bis will gave all his property to his wife, “ to be and remain to her during her life, or so much of the same as she may need for her support during that time.” The wife after-wards gave a quitclaim deed of all her right, title, etc., in certain land, part of A.’s estate, to M. :</p> <p>Held, that the quitclaim deed applied only to the wife’s life estate, and did not affect the remainder.</p> <p>Held, further, that, even if A.’s will implied a power to sell in fee simple to supply the wife’s needs, the quitclaim deed was not an execution of such power.</p> <p>A. died leaving surviving him neither issue nor parents, but,Reaving two brothers, the issue of two deceased brothers, a sister, and the issue of a bastard half sister born -Qf his mother.</p> <p>Held, that under the Bhode Island statutes the issue of the bastard half sister was entitled to one sixth of A.’s estate in remainder.</p> <p>When of several defendants in trespass and ejectment the evidence showed ouster by but one, who claimed the premises in question by an exclusive title, the action is maintainable only against that one. Under the Rhode Island statutes, judgment may issue against that one and in favor of the other defendants. Ejectment must be brought against the actual occupant, and cannot in Rhode Island be maintained against a sole defendant in possession only constructively as landlord, if such an one defends on\the ground of his not being in actual occupancy.</p> <p>When jury trial is waived and exceptions are taken to the rulings of the trial court, counsel must avoid mingling rulings on matters of fact, which are not revisable on exceptions, with rulings on matters of law which are so revisable.</p>

<p>A. conveyed to B. real estate in fee simple with warranty. After the death of A. his heirs brought a bill in equity against B., alleging that the conveyance was in fact to B. as trustee for the use of A., and was without consideration :</p> <p>Meld, that an express trust must be proved, an implied trust being inconsistent with the warranty of A.’s deed.</p> <p>Meld, further, that such express trust in realty was within the statute of frauds, 29 Car. 2, cap. 3, and must be shown by writing signed by B.</p> <p>When letters are relied on to prove a trust they must identify the property and disclose the terms of the trust. Proof that the letters relate to the property in question must be demonstrative.</p> <p>A. assigned his property for the benefit of his creditors, who were satisfied without exhausting the property, the legal title to which remained in the assignee during A.’s life. After A.’s death the assignee conveyed the residue, being realty, to A.’s heir at law, a daughter. Under Shepard v. Taylor, 15 R. I. 204, this realty, on the daughter’s death intestate, would descend in equal moieties to her’paternal and maternal kindred, not as ancestral estate to her paternal kindred.</p>

<p>A town “voted that a sum of money not exceeding $30,000 be and the same hereby is appropriated to build one half of M. Bridge, westerly, to the iron watering trough near the K. Brook, and to set curbing and pave the gutters on said road,” and afterward the town council appointed a committee “ to cause the old K. road at M. to be graded, gutters paved and curbed, and the bridge over the W. River at M. to be rebuilt.”</p> <p>Held, that the appointment of this committee was not an infringement of the duties and rights of the commissioner of highways of the town.</p>

<p>Bill in Equity to annul a mortgage and for a receiver.</p>

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

<p>Bill in Equity to reform a deed. On demurrer to the bill.</p>

<p>Assumpsit. Heard by the court, jury trial being waived. The facts as found by the court are stated in its opinion.</p>

QUO WARRANTO. This was an information filed by the Attorney General on the relation of Robert Murray to test the title of the respondent, Benjamin H. Lane, to the office of Superintendent of Public Schools of tbe town of Cumberland.

<p>In an action for false warranty, whether it be assumpsit or case in tort, a scienter need not be averred by the plaintiff, and, if averred, need not be proved.</p> <p>This rule of practice is not affected by Pub. Laws R. I. cap. 754, of April 26, 1889.</p> <p>Place v. Merrill, 14 R. I. 578, affirmed.</p>

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

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

<p>Trust estates will not pass under a general devise where there is a charge of debts or legacies, or of debts and legacies.</p> <p>Testamentary provision as follows:</p> <p>“ I give, devise, and bequeath, subject to the payment of my just debts, funeral charges, and expenses of settling my estate, all my property and estate of every name and nature, wherever situate, to my wife E., her heirs and assigns forever, in full confidence that she in her wisdom will make every needful provision for my children.”</p> <p>Held, that the testator’s trust estates did not pass under this devise.</p>

<p>A testamentary power of sale does not give power to make partition.</p> <p>A power to make partition will not be implied from a mere power of sale, because after partition a sale could be more advantageously made.</p>

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

<p>Four out of several tenants in common made a lease of the common estate, covenanting at the end of the term demised to pay to the tenant the fair value of a barn which was to be built on the estate by him. The rents were divided among all the tenants in common. After the expiration of the lease, partition was made by sale under order of this court, and the purchase money paid into the registry of the court.</p> <p>Jdeldy that the value of the barn, so far as it was represented by an enhanced price received from the sale of the premises, should be ascertained and deducted from the money paid into the registry of the court, and the balance of such money divided among the tenants in common according to their interests.</p>

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

<p>Under Pub. Laws R. I. cap. 735, § 2, of April 26, 1889, one not yet a citizen of the United States may register his name in the registry book of the town of his residence on or before the last day of December, provided he can by naturalization become qualified to vote during the ensuing year.</p>

<p>A. gave to his daughter, without indorsement, a note payable to himself or order.</p> <p>Held, a good gift inter vivos. By such a gift the beneficial interest in the note passes to the donee, who may collect and keep the money due, or for his own use sue on the note in the name of the payee, the donor.</p> <p>The Rhode Island statute allowing parties to an action to testify on their own offer does not extend to cases in which an executor or administrator is on one side and the parti” offering to testify is on the other, unless the cause of action is a contract originally made with a person still living and competent to testify, or the testimony offered relates to matters occurring after the death of the testator or intestate.</p>

Trespass on the case. On plaintiff's motion to reinstate the case. This case was dismissed on motion of the clerk for nonpayment of the clerk’s fee for continuance. After the expiration of the term at which the dismissal took place, the plaintiff moved for an order to reinstate the case.

<p>A. copartnership composed of M. and others expired by limitation, and a new copartnership, of which M. was a member, purchased its assets and was empowered to settle its affairs. To the new firm passed, unindorsed, a note payable to the old firm. Afterwards M., in the name of the old firm, indorsed the note to the new firm, which brought suit on it as indorsees. The new firm included all the copartners of the old save one, who had died.</p> <p>Meld, that the indorsement was effectual, although the words “without recourse” were omitted.</p>

<p>A divorce will not be granted when the petitioner proves the respondent to have been guilty of one of the statutory offences for which divorces are allowed, and is himself proven by the respondent to have been guilty of another of these offences.</p>

<p>A corporation was chartered by the name of the Newport. Horse Railroad Company, the name being afterwards changed to the Newport Street Railway Company. The charter provided that notice should be given to abutting owners before the location of tracks, that the road should be operated by “steam, horse, or other power,” as the municipal governments might direct, and that the corporation should “ not incumber any portion of the . streets or highways not occupied by said tracks.” The charter contained no mention of electricity, no permission to erect poles or to condemn property, no provision for compensation to abutters.</p> <p>Notice was given to abutters prior to track laying, and after notice and hearing the city council of Newport authorized the company to locate “railroad tracks to be used with horse power” in certain streets. Without further notice the city council subsequently authorized the company to use electric motive power, and to erect and maintain poles for conducting wires.</p> <p>On a bill in equity brought by abutting owners to enjoin the erection and maintenance of poles and wires in the streets:</p> <p>Held) that no further notice to abutters was needed, notwithstanding the change from horse power to electric power conveyed by suspended wires.</p> <p>Held, further, that, assuming steam not to be permissible, the words of the charter, 11 other power,” properly included electricity, and could not be limited to “ other like power.”</p> <p>Held) further, that the use‘of electricity was properly allowed by the city council under the charter.</p> <p>Held) further, that the use of poles ancillary to the electric motive power was not forbidden by the prohibition to “incumber any portion of the streets or highways not occupied by said tracks.”</p> <p>Held, further, that the erection and maintenance of such poles ancillary to the electric motive power of the street railroad did not impose a new servitude on the highway, and did not require compensation to the abutting owners.</p> <p>Held, further, that the charter, in omitting to provide for such compensation, was not unconstitutional.</p>

<p>Testamentary disposition as follows :</p> <p>“ Second. I give, devise, and bequeath to my wife, A. S., all my real and personal estate or property of every kind and value, wheresoever the same may be found, or in whatsoever the same may consist, including as well any that I may acquire subsequently to the date of this will as that which I am now possessed of, to her and her only.</p> <p>“ Third. I give, devise, and bequeath, and it is my will that whatever of my said estate, real, personal, and mixed, heretofore given, devised, and bequeathed to my wife, A. S., that shall or may remain at her death, shall go to and be the property of my sister, H. B. S ”</p> <p>Held, that the wife, A. S., had the use and enjoyment of the entire estate for life, with full power of alienation and sale.</p>

<p>Appeal from the Municipal Court of tbe city of Providence sitting as a court of probate.</p>

<p>In Pub. Stat. R. I. cap. 189, § 13, which provides that no heir nor devisee shall have power to aliene or incumber the real estate of any decedent so as to affect the executor’s or administrator’s sale thereof “ within three years and six months after the probate of the will, or grant of administration on the estate of such person,” the words “ probate of the will or grant of administration ” mean tender of administration to and acceptance thereof by the executor or administrator.</p>

<p>Petition for the enforcement of a mechanic’s lien.</p>

<p>Petition for the enforcement of a mechanic’s lien.</p>

<p>Petition for divorce,</p>

<p>he clerk of a district court administered a poor debtor’s oath at a time when the justice of the district court was without the district, but within the county.</p> <p>Held, that the administration of the oath by the clerk was unauthorized and void.</p> <p>Pub. Laws R. I. cap. 597, § 10, of May 27, 1886, requiring district court clerks to act in the absence of the justices, applies only to the duties of the justice appertaining to the district. Administering a poor debtor’s oath is not a matter appertaining to the district, as the power of the justice to administer it holds throughout the county.</p>

<p>When the transfer of corporate stock by an executor is apparently in the ordinary course of administration, the transfer officer of the corporation may safely permit the transfer without looking beyond the executor’s letters testamentary.</p> <p>But if the circumstances of the transfer show it not to be in the ordinary course of administration, it is the duty of the transfer officer to inquire into the authority of the executor before permitting the transfer.</p> <p>M., widow and executrix of her testator, and having a life interest in the residue of his estate, nine years after his death, by her attorney W. conveyed to herself bank stock, a part of said residue, to support her indorsement of a note of W. which was discounted by the bank, and the proceeds appropriated by W.</p> <p>Held, that the circumstances of the transfer were such as should have put the transfer officer on inquiry.</p> <p>A bill in equity being filed by the remainder men to establish their title to this stock, the bank insisted on its charter lien upon the stock of debtor stockholders, M. being a debtor by her indorsement.</p> <p>Held} that the bank had a lien only to the extent of M.’s beneficial interest in the stock.</p> <p>In cases of fraud the statute of limitations runs in equity from the discovery of the fraud, not from its perpetration.</p>

<p>The employé of a subcontractor cannot have a mechanic’s lien under Pub. Stat. R. I. cap. 177.</p> <p>The subcontractor, however, may have a lien for the labor of himself and his employes.</p> <p>In Pub. Stat. R. I. cap. 177, § 6, the word “ contract” means original contract, not subcontract.</p>

<p>Bill in Equity to subject certain moneys to the payment of a judgment debt. On demurrer to the bill.</p>

<p>Judgment was given for a defendant in replevin. Tbe plaintiff appealed and entered his appeal.</p> <p>In the appellate court judgment of nonsuit was given in favor of the defendant in replevin and without a “complaint” made by said defendant for judgment in his favor.</p> <p>Held, that the judgment of nonsuit was proper.</p> <p>In debt on a bond the plea set up matters of confession and avoidance, and then averred general performance.</p> <p>Held, that the plea was bad and rightly stricken out.</p> <p>When an action at law is brought to charge or to affect the defendant by a judgment previously rendered in another action to which he was not a party, he may always show by plea or proof that the judgment was procured by fraud or collusion, and is void against him.</p> <p>What allegations are required in a plea setting up such fraud and collusion.</p>

<p>Parties to an action at law in an inferior court cannot correct errors of the court in such action by resorting to equity proceedings.</p> <p>Claimants of garnished property became under Pub. Laws R. I. cap. 433, of May-2, 1884, parties to the action in which the garnishment was made. The garnishee was charged and no exception was taken. The claimants then filed a bill in equity against the plaintiff in the action to restrain him from enforcing his judgment against the garnishee.</p> <p>ffeldf that the bill could not be sustained. For error in law in the action, the remedy is exceptions. For refusal so to hear the claimants as to allow exceptions, the remedy is mandamus.</p> <p>Query, whether, in case it becomes needful for the claimants to contradict the garnishee’s affidavit, equitable proceedings can be resorted to? Pub. Laws R. I. cap. 433, § 2, of May 2, 1884.</p>

<p>In a petition to a probate court for the appointment of a guardian, the reason for the appointment should be set forth.</p> <p>In a petition for the appointment of a guardian to a person of full age, the intended ward is the only person entitled to notice. Hence the wife of such person cannot appeal from the decree of the probate court appointing a guardian, she not being a party to the proceeding. Only a party to a proceeding can be deemed “ aggrieved” by a judgment rendered in it.</p>

Petition for a writ of certiorari. The petitioner alleged that he received in September, 1889, from the Board of License Commissioners of the city of Providence, a license to sell spirituous liquors; that the Board revoked his license January 16, 1890, and in so doing acted illegally, because : 1. The license was not revoked by due process of law. 2.

<p>Bill in Equity for disclosure and for an injunction.</p> <p>The facts involved in this case are stated in tbe opinion of tbe court given below.</p> <p>At tbe March Term, A. D. 1886, the issue of fact between the parties was submitted to a jury, whose verdict was :</p> <p>“ The jury find that there was at the time of the commence ment of this suit an implied contract subsisting and in force between said parties, whereby the plaintiff was and is entitled to the inventions and discoveries made by the defendant during the time of his employment by said plaintiff as alleged in the bill.”</p> <p>After this verdict the case was further heard by the court, which at the April Term, A. D. 1887, filed the following rescript:</p> <p>“ The court is of the opinion .that, under the verdict of the jury upon the issue submitted to them, the complainant is entitled to discovery of the process by which the defendant produces the aniline black color as alleged in the bill.</p> <p>“Whether the defendant, in view of the allegation in the answer, which is not denied, that he was to profit by his discoveries in an increase of salary, will not be entitled to compensation upon making such discovery, is a question which has not been discussed before us, and which we leave open for further consideration if the defendant wishes to be heard thereon.”</p> <p>The case was then heard on the question of compensation.</p>

<p>Bill in Equity for an account, to compel the transfer of mortgages, and for an injunction. On demurrer to the bill.</p>

Plaintiff’s petition for a new trial. The vital question in this case is as to the place of contract, whether in New York or Maryland, as the laws of these states are in conflict with each other. The court below charged the jury that both notes were New York contracts. Hence, if either note was a Maryland contract, the court erred, and a new trial should be granted.

Bill in Equity brought by the complainant in aid of its actions of trespass and ejectment against the City of Providence and the Providence and Springfield Railroad Company.

Under article 10, section 3, of the constitution of the State providing 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,” the governor addressed in October, A. D. 1887, the following communication to the justices of the court : I have the honor to submit the following matters for the consideration of the judges of the court: “ Whereas…

<p>Public Laws R. I. cap. 672, of March 2, 1888, is as follows:</p> <p>“ An Act to approve and publish, and submit to the electors, a PROPOSITION OP AMENDMENT TO THE CONSTITUTION OP THIS STATE.</p> <p>“ Whereas an article of amendment to the constitution of this State was proposed by the last General Assembly, by the votes of a majority of all the members elected to each house, and the same has been published and read to the electors at their annual town and ward meetings in April last, as required by the thirteenth article of the constitution of this State, and is now presented to this General Assembly for their action thereon, and a majority of all the members elected to each house at said annual meeting being present and approving of said pi’oposed amendment,</p> <p> “It is enacted by the General Assembly as follows: </p> <p>“ Section 1. The following proposition of amendment to the Constitution of this State, proposed by the last General Assembly, is hereby declared approved, and for the purpose of publication and submission to the electors shall be designated as follows :</p> <p>“Article YII.</p> <p>“ Section 1. Every male citizen of the United States of the age of twenty one years, who has had his residence and home in this State for two years, and in the town or city in which he may offer to vote six months next preceding the time of his voting, and whose name shall be registered in the town or city where he resides on or before the last day of December in the year next preceding the time of his voting, shall have a right to vote in the election of all civil officers, and on all questions in all legally organized town or ward meetings: Provided, that no person shall at any time be allowed to vote in the election of the city council of any city, or upon any proposition to impose a tax, or for the expenditure of money in any town or city, unless he shall within the year next preceding have paid a tax assessed upon his property therein, valued at least at one hundred and thirty four dollars.</p> <p>“ Sect. 2. The assessors of each town and city shall annually assess upon every person who, if registered, would be qualified to vote, a tax of one dollar, or such sum as with his other taxes shall amount to one dollar, which tax shall be paid into the treasury of such town or city, and be applied to the support of public schools therein : Provided, that such tax assessed upon any person who has performed military duty shall be remitted for the year he shall perform such duty; and said tax assessed upon any mariner for any year while he is at sea, or upon any person who by reason of extreme poverty is unable to pay said tax, shall upon application of such mariner or person be remitted. The General Assembly shall have power to provide by law for the collection and remission of said tax.</p> <p>“ Sect. 3. This amendment shall take, in the constitution of the State, the place of sections 2 and 3 of article 2, ‘ Of the Qualification of Electors,’ which said sections are hereby annulled.</p> <p>“ Sect. 2. The said proposition of amendment shall be submitted to the electors for their approval or rejection, at meetings of the electors to be held on the first Wednesday in April, 1888. The voting places in the various cities and towns shall be kept open during the hours required by law for voting for state officers.</p> <p>“ Sect. 3. The secretary of state shall cause the said proposition of amendment to be published in all the papers publishing the laws of the State for one week next preceding the day of said meetings of said electors ; and the said proposition shall be inserted by the town and city clerks in the warrants and notices by them issued previous to said meetings of the electors, for the purpose of warning the town, ward, or district meetings; and said proposition shall be read by the town, ward, and district clerks to the electors in the town, ward, and district meetings to be held as aforesaid.</p> <p>“ Sect. 4. The secretary of state shall cause seventy thousand copies of said proposition of amendment to be printed with the word ‘ approved ’ upon the same, and a like number with the word ‘reject’ thereon, and shall cause such ballots to be distributed among the town and ward clerks, in suitable proportions, previous to the day of said meeting of electors.</p> <p>“Sect. 5. The town, ward, and district meetings to be held as aforesaid shall be warned, and the list of voters shall be canvassed and made up, and the said town, ward, and district meetings shall be conducted in the same manner as now provided by law for the town, ward, and district meetings for the election of general officers.</p> <p>“Sect. 6. At the close of the polls on said day of said meetings of the electors, the moderator and town clerk, or the warden and ward clerk, or the moderator and district clerk, shall, in open town, ward, or district meetings, count said ballots and seal up the same, and shall certify that the ballots by them sealed up are the ballots given in at said meetings of the electors, the number of such ballots, and that the number of ballots on said proposition does not exceed the number of electors voting at said meetings ; and shall deliver or send such ballots, so sealed up and certified, to the secretary of state on or before the third Tuesday of April, 1888.</p> <p>“ Sect. 7. The governor, secretary of state, and attorney general shall count said ballots after the first Tuesday in November, 1888, and before the third Tuesday, and the governor shall announce the result by proclamation, on or before the fourth Tuesday in November, 1888 ; and if said proposition of amendment shall have been approved by three fifths of the electors of the State present and voting thereon in said town, ward, and district meetings, the same shall be declared to be a part of the constitution of the State, and shall be numbered as an additional article in amendment thereto.</p> <p>“ Sect. 8. This act shall take effect immediately.”</p> <p>November 16,1888, the governor issued bis proclamation announcing the adoption of the proposed amendment, and subsequently, under article 10, section 3, of the constitution of the State, providing 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,” addressed the following communication to the justices of the court :</p> <p>Executive Department,</p> <p>Providence, November 20, 1888.</p> <p> To the Honorable the Judges of the Supreme Court: </p> <p>By virtue of constitutional authority I respectfully request your Honors’ opinion upon the following questions :</p> <p>“1. Does the recent constitutional amendment, entitled article of amendment 7, repeal the provisions of chapter 7 of the Public Statutes, and the amendments thereof, or any of them ?</p> <p>“ 2. Is there any officer or class of officers now authorized to receive the registry of persons entitled to register under the provisions of article of amendment 7 of the constitution ?</p> <p>“ 3. Will the persons (who, I am informed, are numerous) that have registered this year, before article of amendment 7 became a part of the constitution, under authority of law in force at the time of such registering, or who shall register after said article became a part of the constitution, but before the General Assembly shall provide by law with what officers names shall be registered, be legally registered ? or will they be obliged to register anew, after the passage of proper legislation by the General Assembly, in order to become voters under and by virtue of said article 7 ?</p> <p>“ 4. Will persons taxed on personal property to the amount of 1134, who shall not have registered this year, and whose names, but for the adoption of article of amendment 7, would stand upon the voting lists on the 31st day of December, 1888, be entitled to vote in 1889, under and by virtue of the provisions of said article ? ”</p> <p>Royal C. Taet, Governor.</p>

<p>The Constitution of tbe State of Rhode Island provides in article 8, §§ 5, 6, as follows:</p> <p>“ Sect. 6. The ballots for senators and representatives in tbe several towns shall, in each case after the polls are declared to be closed, be counted by tbe moderator, who shall announce the result, and the clerk shall give certificates to the persons elected. If, in any case, there be no election, tbe polls may be reopened, and the like proceedings shall be had until an election shall take place : Provided, however, tbat an adjournment or adjournments of the election may be made to a time not exceeding seven days from tbe first meeting.</p> <p>“ Sect. 6. In the city of Providence, the polls for senator and representatives shall be kept open during the whole time of voting for tbe day, and tbe votes in the several wards shall be sealed up at tbe close of the meeting by tbe wardens and ward clerks in open ward meeting, and afterwards delivered to tbe city clerk. The mayor and aldermen shall proceed to count said votes within two days from tbe day of election ; and if no election of senator and representatives, or if an election of only a portion of the representatives, shall have taken place, the mayor and aldermen shall order a new election, to be held not more than ten days from the day of the first election, and so on until tbe election shall be completed. Certificates of election shall be furnished by the city clerk to the persons chosen.”</p> <p>Pub. Laws R. I. cap. 710, of March 22, 1888,1 incorporated the District of Narragansett in the town of South Kingstown, and provided in § 18 :</p> <p>“ Sect. 18. If no election shall have been made of senator and representative in the General Assembly, or of either of them, upon the day appointed by law for any election, the said town council (of South Kingstown) shall order a new election to be held not more than ten days from the first election, and so on until the election be completed.”</p> <p>The Senate of the State of Rhode Island, acting under article 10, section 8 of the constitution, adopted the following resolution June 1, 1888:</p> <p>“ Whereas, the statutes of this State provide in several instances for the division of towns into voting districts, and for the counting of ballots and announcing results, and for the ordering of new elections; and,</p> <p>“ Whereas, section 18 of chapter 710 of the Public Laws is especially called in question by reason of its alleged conflict with section 5, article 8, of the state constitution ; and,</p> <p>“ Whereas, the constitution provides that either house of the General Assembly may request the opinion of the judges of the Supreme Court upon any question of law: it is therefore hereby</p> <p>“ Resolved, That the said judges of the Supreme Court be and hereby are requested to give their opinion to the Senate upon the following question:</p> <p>“ If no election shall have been made of senator and representatives in the General Assembly, or either of them, upon the day appointed by law for the election of senator and representatives, may the town council of the town of South Kingstown, under section 18, chapter 710, order a new election to be held not more than ten days from the first election, and so on until the election shall be completed ? ”</p>

Public Lavs R. I. cap. 781, “The Ballot Act” of-March 29, 1889, § 6, provide : “ Sect. 6.

A COMMISSION of lunacy was appointed by one of the justices of the Supreme Court, under Pub. Laws R. I. cap. 819, § 3, of July 23,1889, at the request of one Cross, who was, on the certificate of two physicians, confined by his guardian in the Butler Hospital for the Insane, as a person of unsound mind.