Volume 17 — Rhode Island Reports

<p>Trespass Quare Clausum. Heard by the court, jury trial being waived.</p>

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

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

<p>Agreement between a stockbroker and a customer by which the former, on a margin furnished by the latter, was to receive orders to buy stock and to sell it, the parties to settle by paying reciprocally to each other the difference between the market price at date of buying order and at date of sale, no stock to be actually purchased and delivered.</p> <p>Held, a wagering contract and void, though not forbidden by any statute of the State.</p>

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

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

<p>The rules of Holland v. Gity Savings Bank, 16 R. I. 73Í, as to -when a mortgagee or his assignee can be compelled to assign a mortgage, affirmed.</p> <p>A bill in equity against the assignee of a mortgage asked that a sale under the mortgage be enjoined. The bill did not charge payment of the mortgage debt, but charged over-payments in transactions between the complainant and the copartnership of which the mortgage-holder was a member, which, if applied to the mortgage debt, would discharge it. These over-payments were denied.</p> <p>Held, that the injunction could not issue.</p> <p>Nor should the sale be enjoined, because the mortgaged estate largely exceeded the mortgage debt, and a sale would greatly embarrass the complainant mortgagor,</p> <p>A bill in equity charged no mutual accounts, made only general assertions that the accounts between complainant and respondents were complicated, stated nothing to raise a trust, and waived an answer under oath:</p> <p>Held, that it coidd not be sustained as a bill for an accounting.</p> <p>Pending an action at law on a bond, a bill in equity is filed charging fraud in procuring the bond:</p> <p>Held, that the question of fraud should be examined in the action.</p> <p>A complainant asked that the surplus of a mortgage sale be paid into court to prevent its removal from the jurisdiction:</p> <p>Held, on examining the pleadings, that they contained nothing to raise the question whether the complainant was entitled to such relief.</p>

<p>Pub. Stat. R. I. cap. 186, § 12, allowing the creditor of an insolvent decedent to bring Ids action within sixty days after the report of the commissioners rejecting the claim has been received, makes an exception to Pub. Stat. P. I. cap. 189, § 9, which provides that no action shall be brought against an executor or administrator within one year after administration granted.</p>

<p>New shares of capital stock in a corporation whose stock is at a premium, issued at par to the stockholders, are not income and do not belong to a life tenant. Trustees entitled to such new stock should treat it as a part of the corpus of the trust estate.</p> <p>A testamentary trust directed the trustees to pay to E., the testator’s daughter, personally, for her separate use, and to no one for her, such part of the income as she should desire for her use; to pay such other sums as might be required for her children’s education ; to deposit the residue of the income, and to withdraw the same, if needed, for the support of E., and the support and education of her children.</p> <p>Held, that the trustees should put the money paid to E. at her independent disposal.</p> <p>Held, further, that the trustees in good faith and with reasonable care should pay such moneyas E. required “for her use,” interpreting the words liberally as for herself and the proper maintenance of her household, but not extending them to uses foreign to herself.</p> <p>Held, further, that the trustees had a direct duty as to the education of the children, to be performed by them if the education was neglected by E.</p> <p>Held, further, that the deposits couldbe used only if needed*... the support of E., or the support and education of the children. Otherwise they were to remain subject to the final dispositions of the will.</p>

<p>Petitions for writs of Mandamus. On motions to dismiss the petitions.</p>

<p>Under Pub. Stat. R. I., cap. 74, as amended by Pub. Laws R. I., cap. 819, of July 23, 1889, a justice of tbis court, on tbe finding of a commission, made an order for tbe confinement of a lunatic in a hospital for tbe insane.</p> <p>On application for habeas corpus made by tbe guardian of tbe lunatic,</p> <p>Meld, that tbe detention under tbe order was legal as against tbe guardian’s right to tbe care and custody of bis ward.</p> <p>Held, further, that the general authority of the guardian was limited by the order made under the statute.</p>

<p>In proceedings under Pub. Laws R. I. cap. 816, § 11, of August 1, 1889, to revoke a license for the sale of intoxicating liquors, a license was revoked by the license commissioners after hearing unsworn statements, it being assumed by all parties that an oath was not needful.</p> <p>On certiorari:</p> <p>Held, that “witness ” in § 11 meant witness duly sworn.</p> <p>Held, further, in the circumstances, that the licensee did not waive the oath to the witnesses by not objecting to its omission.</p> <p>Held, further, that the commissioners had implied power to administer the necessary oath.</p> <p>Held, further, that the record, not showing that the witnesses were sworn, was fatally defective, and that the proceedings must be quashed.</p>

<p>A testator directed bis executor, after the death of his widow, to “invest and keep invested in some safe and profitable manner, if the same has not been already invested,” $12,000, and of the income to pay a certain sum to B. and the residue to C.</p> <p>Within a month after the widow’s death the executor made entries in his book of accounts in favor of B. and C. of investments belonging to the estate, adding a small deposit made in a savings bank to complete the $12,000. He paid to B. the certain sum, and to C. the residue of the income for three years, whan a bank whose stock was included in the entries failed, and no further payments were made to C. The executor’s yearly accounts to the probate court'included the $12,000 as part of the estate, but showed the payments to B. and C. The year after the bank failed the executor resigned, and turned over this trust fund, with the rest of the estate, to his successor as administrator.</p> <p>Held, that the trust was constituted by a sufficient setting apart of the required funds, and that the loss by the bank faEure fell on the trust funds set apart, and not on the general estate.</p> <p>Held, further, that the setting apart was not invalid because made without consulting the cestuis, the setting apart being left to the executor by the will, and the property set apart being entered on the books at its market value.</p> <p>The ordinary duties of an executor are to take possession of the chattels and credits of the testator, pay his debts and legacies, and distribute the residue as directed by the wEl. If to these duties the wEl adds the power and duty to invest parts of the estate, and to pay over the income of such parts invested, a trust is created, and the executor as to such parts is not an executor, but a trustee.</p> <p>When no provision is made by the will to pay the taxes and other expenses of a testamentary trust, they must be paid from the income of the trust estate.</p> <p>When a will directed the executor “to invest and keep invested in some safe and profitable manner, if the same has not been already invested, the sum of $12,000,” the executor acts properly in setting aside, at their market value, investments made by the testator and thus constituting the trust fund.</p>

<p>Under Pub. Stat. R. I. cap. 155, §§ 2, 3, 4, which, provide that, if certain certificates are not filed, certain officers of corporations shall be liable for “all debts of the company contracted,” . . .</p> <p>Held, that the words “ debts contracted” do not include torts of the corporation, nor judgments against the corporation founded on such torts.</p> <p>Under Pub. Stat. P. I. cap. 155, § 15, which provides that, if the debts of a corporation exceed its paid-in capital, the directors under whom the excess occurs shall be liable jointly and severally, to the extent of the excess, “ for all the debts of the company then existing, and for all that shall be contracted as long as they shall respectively continue in office,” and until the excess shall disappear,</p> <p>Held, that the directors were not liable for torts of the corporation committed pending the excess, nor for judgments against the corporation founded on such torts.</p> <p>Whether the directors would be liable for a debt arising ex delicto, if it preceded the excess, is not decided.</p>

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

<p>At tbe trial of an appeal from the action of the Board of Aldermen of Providence laying out a highway, neither appellant nor appellee submitted evidence as to the necessity of the highway, the appellant waiving all reasons of appeal except the amount of his damages.</p> <p>The court held that the appellee was the moving party, and instructed the jury that, since neither appellant nor appellee produced evidence as to the necessity of the highway, that question was not in issue, and that a verdict should be rendered on the question of damages simply.</p> <p>Held, no error.</p> <p>Held, further, that the verdict fixing the damages was in the circumstances sufficient to warrant a decree establishing the highway.</p>

<p>Bill in Equity for specific performance of a contract to sell realty. Heard upon bill and answers.</p>

<p>A grocer’s stock in trade was attached and surrendered under Pub. Stat. R. I. cap. 207, § 20, on delivery to the attaching officer of a bond conditioned to be void if the goods should be returned after judgment to satisfy the execution thereon, or if the judgment should be paid.</p> <p>Held, that the bond should be interpreted in the light of Pub. Stat. R. I. cap. 208, .§§ 2, 3, permitting the sale of perishable attached goods under an order of court.</p> <p>Held, further, that the condition of the bond was not fulfilled by a tender of part of the goods attached, and of goods purchased to replace goods which had been sold or had perished.</p> <p>Held, further, that if the goods exceeded in value the amount of the judgment, the amount of the judgment would be the measure of damages on chancerizing the bond after breach ; but as the value of the goods was less than the judgment, the measure of damages was the value of the goods when attached, with interest from the date of demand made for their return.</p>

<p>Bill in Equity for an account and the payment of a surplus after a mortgage sale.</p>

<p>Assumpsit. On motion to amend the certificate to an affidavit.</p>

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

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

<p>Assumpsit. Heard by the court on an agreed statement of facts, jury trial being waived.</p>

<p>In Rhode Island a mechanic's lien cannot be enforced against a building and lot held by a town for the uses of a public school.</p>

<p>To an action brought by A. against B,, a widow, to recover compensation‘for injury caused by the alleged negligence of B.’s servant, B. pleaded coverture at tbe time of tbe alleged negligence. It appeared that B. was, when the injury occurred, a married woman, residing in Newport, B. I., maintaining ber own establishment from ber own income and living apart from ber husband, who resided in New York and had never been domiciled in Bbode Island. Tbe servant was hired by B., and at tbe time of tbe alleged negligence was under ber direction.</p> <p>Held-, that tbe action could not be maintained. B. under coverture was incapable of contracting, and a contract of hiring was necessary to affect ber with tbe servant’s tort. Tbe servant was in law tbe servant of tbe husband, not of B.</p>

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

Bill in Equity for an account, to compel the transfer of mortgages and for an injunction. On demurrer to the bill. After the opinion of March 1, 1890, printed in 16 R. I. p. 734, the complainants filed a request to reargue the demurrer.

<p>Bill in Equity to redeem a mortgage and for an injunction. Heard on bill, answer, and proofs.</p>

<p>A petition to enforce a mechanic’s lien did not set out the particulars of the petitioner’s account, and prayed for a lien on the premises described, not on the respondent’s interest in them.</p> <p>Held, faulty, but amendable.</p> <p>The provision of Pub. Stat. R. I. cap. 177, § 7, that the notice of lien claim should be recorded in a book to be kept for that purpose, is directory to the town clerk.</p>

<p>Bills in Equity to construe a will, and to enforce the payment of legacies.</p> <p>The will of Hezekiah Anthony, late of Providence, proved before the Probate Court of the city of Providence, Jan. 22, A. D. 1884, is as follows: —</p> <p>KNOW APT, MEN BY THESE PRESENTS :</p> <p>That I, Hezekiah Anthony, of the city and county of Providence and State of Rhode Island, being of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking and annulling all former wills by me at any time heretofore made, and declaring this and this only to be my last will and testament, in manner following, that is to say: —</p> <p>First: I direct my executors hereinafter named, as soon as may be after my decease, to pay all my just debts and funeral expenses and the expenses of my last illness, also the expense of improving my burying lot at Swan Point Cemetery and erecting to my memory a suitable monument.</p> <p>Second: I give, devise, and bequeath to the Chestnut Street Methodist Church of Providence, Rhode Island, the sum of one thousand dollars.</p> <p>Third: I give to the Hope Street Methodist Church, of said Providence, the sum of five hundred dollars.</p> <p>Fourth: I give to the South Somerset Methodist Church, in Somerset, Commonwealth of Massachusetts, the sum of two hundred and fifty dollars.</p> <p>Fifth: To the Somerset Methodist Church in said Somerset, the sum of two hundred and fifty dollars.</p> <p>Sixth: To the Rhode Island Hospital in the city of Providence, aforesaid, the sum of one thousand dollars.</p> <p>Seventh: To the Providence Association for the Benefit of Colored Children (sometimes called The Shelter), in said Providence, the sum of five hundred dollars.</p> <p>Eighth: I give to the Home for Aged Women, in said Providence, the sum of five hundred dollars.</p> <p>Ninth: I give to Nancy A. Dyer, wife of Elisha Dyer, Jun., in trust for his son, Hezekiah Anthony Dyer, twenty shares of the capital stock of the Boston and Providence Railroad Company, thirty shares of the capital stock of the Chicago, Burlington, and Quincy Railroad Company, twenty shares of the capital stock of the National Bank of Commerce in said city of Providence, and four thousand dollars in money, to have and to hold the same in trust for the use and benefit of the said Hezekiah Anthony Dyer, with the right and power to manage the same and care for the same generally, and to sell and transfer the same or any part thereof for the purpose of reinvestment, and generally with the power to change the investment thereof at any time when in her discretion it shall seem best, and also with the right and power to transfer the same in whole or in part to him according to her discretion, provided that no such transfer shall be made until he has reached the age of twenty-one years.</p> <p>Tenth: I give to the Home for Aged Men, in said Providence, the sum of five hundred dollars.</p> <p>Eleventh: I give to Elisha Dyer, 8d, son of Elisha Dyer, Jun., the sum of two hundred dollars.</p> <p>Twelfth: I give to George R. Dyer, son of Elisha Dyer, Jun., the sum-of two hundred dollars.</p> <p>Thirteenth: I give to Nancy A. Dyer, wife of Elisha Dyer, Jun., the sum of five thousand dollars.</p> <p>Fourteenth: I give to Jane A. Harris, wife of Reverend George Harris, now of Andover, Commonwealth of Massachusetts, the sum of ten thousand dollars.</p> <p>Fifteenth: I give to William Yiall Chapin, of the city, county, and State of New York, in trust for his mother and for his sisters, the sum of three thousand dollars,- to have and to hold the same in trust for the use and benefit of his said mother, Fanny Y. Chapin, and of his sisters Maria B. and Mary A. Chapin, with power to manage the same generally, and generally to use the same, and to invest and reinvest the same and the income thereof, for the use of his said mother and sisters in such way and manner as he may deem best, and with power to pay over to them or to either of them said money, either in whole or in part, and in such parts and proportions to each as he may think best for their interest and happiness.</p> <p>Sixteenth: I give to Sarah Ann Cook, in trust for her grandson, Hezekiah Anthony Cook, the sum of ten thousand dollars, to have and to hold the same in trust for the use and benefit of the said Hezekiah Anthony Cook, with power to manage, invest, and reinvest the same, and to pay over to him from time to time the income thereof, and also with power to transfer and pay over to him said money at such times and in such parts as she may deem most for his interest.</p> <p>Seventeenth: I give, devise, and bequeath to Sarah Ann Cook, in trust for Helen Cook, widow of Enos A. Cook, the sum of five thousand dollars, and also the house and land where said Enos A. Cook formerly lived, on Almy Street, in Eall River, Commonwealth of Massachusetts; to have and to hold the same to her, the said Sarah Ann Cook, her heirs, executors, and administrators, for the use and benefit of Helen Cook, widow of Enos A. Cook, her heirs, executors, and administrators, with power to manage the same generally, and, if need be in her opinion, to sell the same and reinvest the proceeds thereof, and with power to change the investment thereof whenever in her opinion it shall seem best, and with power also to convey said real estate to her, her heirs and assigns, at any time when she may think proper, and with power to pay over to her said money or any part thereof, according to her discretion.</p> <p>Eighteenth: I give, devise, and bequeath one third part of all the rest, residue, and remainder of my estate, real, personal, and mixed; and wherever situate, of which I shall die seized and possessed, or shall be in any way entitled to, at the time of my decease, to Sarah Ann Cook, her heirs, executors, administrators, and assigns, forever.</p> <p>Nineteenth: I give, devise, and bequeath one other third part of said rest, residue, and remainder of my estate aforesaid to Jane A. Eames, her heirs, executors, administrators, and assigns, forever.</p> <p>Twentieth: I give, devise, and bequeath one ninth part of said rest, residue, and remainder of my estate aforesaid to Nancy A. Dyer, aforesaid, her heirs, executors, administrators, and assigns, forever.</p> <p>Twenty-first: I give, devise, and bequeath one ninth part óf said rest, residue, and remainder of my estate aforesaid to Jane A. Harris, aforesaid, her heirs, executors, administrators, and assigns, forever.</p> <p>Twenty-second: I give, devise, and bequeath one ninth part of said rest, residue, and remainder of my estate aforesaid to Elisha Dyer, Jun., aforesaid, his heirs, executors, and administrators, in trust for the support of Mary Eliza Anderson and her son Hamlet; to have and to hold the same to him, his heirs, executors, and administrators, in trust for the use and benefit of the said Mary Eliza Anderson and her son Hamlet, their heirs, executors, and administrators, in manner following: He shall invest, and reinvest if necessary, the same, and keep it as safely invested as he can; and after paying all expenses incident to the management thereof, including a reasonable compensation to himself for his services, he shall, so long as the said Mary Eliza shall live, apply the income thereof to her support, and to the support and education of her said son Hamlet, in such way and in such proportion as he may think proper. After the decease of the said Mary Eliza, her said son Hamlet being under twenty-one years of age, he shall pay and convey in fee simple in equal shares to Nancy A. Dyer and Jane A. Harris aforesaid, their heirs and assigns, forever, discharged of all trusts, all of said property over and above seven thousand dollars, but shall hold seven thousand dollars, should there be so much of said property remaining in his hands, in trust for the support and education of the said Hamlet, until he arrives at the age of twenty-one years, with the right and power to use, according to his discretion, the same or the income thereof, or both, for said purposes; and on his becoming twenty-one years of age he shall pay over and convey the same, or so much thereof as is then in his hands, to the said Hamlet, his heirs and assigns, in fee, discharged of all trusts. In case said Hamlet should not be alive at the death of the said Mary Eliza, he shall then pay over and transfer said property to the persons who would by the laws of descent in the State of Rhode Island inherit the same from the said Mary Eliza had she died seized and possessed thereof in fee. In all cases where I have given property in trust for the use and benefit of other persons, and have not specially provided for'its disposition on their decease, my will is that the trustee holding such property shall on such decease pay and convey the same in fee simple, discharged of all trusts, to the persons who by the laws of the State of Rhode Island would inherit it had the persons for whose benefit it was so given died seized and possessed thereof in fee.</p> <p>I hereby nominate and appoint George Harris of Andover, Commonwealth of Massachusetts, and Elisha Dyer, Jun., aforesaid, to be the executors of this my last will and testament, and request that they be exempt from giving any bond or returning any inventory of my said estate, and from rendering an account to the Court of Probate.</p> <p>In testimony whereof I have hereunto set my hand and seal, in the city of Providence aforesaid, this seventeenth day of November, A. D. 1883.</p> <p>Hezekiah Anthony, [l. s.]</p> <p>Signed, sealed, published, and declared by the said Hezekiah Anthony as and for his last will and testament, in the presence of us, who at his request, and in his presence and in the presence of each other, have hereunto set our names as witnesses, the day and year above written.</p> <p>Benjamin N. Lapham.</p> <p>Mary Ann Kelly.</p> <p>I, Hezekiah Anthony, of the city and county of Providence, do hereby make and publish this codicil to my last will and testament in manner following, that is to say : —</p> <p>Whereas in my said will I gave to the Chestnut Street Methodist Church of Providence the sum of one thousand dollars, and to the Hope Street Methodist Church of said Providence the sum of five hundred dollars, and whereas I have since ascertained that the corporate names of said churches are, “ Trustees of Chestnut Street Methodist Episcopal Church,” and “ The Trustees of Hope Street Methodist Episcopal,” I therefore now affirm and make the gifts and bequests above named to said churches by their respective corporate names; and whereas I have given to .the South Somerset Methodist Church in Somerset, Commonwealth of Massachusetts, the sum of two hundred and fifty dollars, and to the Somerset Methodist Church in said Somerset the sum of two hundred and fifty dollars, and whereas these may not be the exact corporate names of said churches, I now affirm said gifts and bequests to said churches by whatever name they may be known or called, and I hereby order this my codicil to be annexed to and form a part of my last will and testament to all intents and purposes.</p> <p>In testimony whereof I have hereunto set my hand and seal, in the city of Providence, this twentieth day of November, A. D. 1888.</p> <p>Hezekiah Anthony, [l. s.]</p> <p>Signed, sealed, published, and declared by the said Hezekiah Anthony as and for a codicil to his last will and testament, in the presence of us, who at his request and in his presence and in the presence of each other, have hereunto set our names as witnesses, the day and year above written.</p> <p>Benjamin N. Lapham.</p> <p>Mary Ann Kelly.</p>

<p>Bill in Equity for instructions.</p> <p>The will of Gilbert A. Congdon, proved before the Probate Court of the city of Providence, February 3, A. r>. 1885, is as follows : —</p> <p>In the name of God, Amen. I, Gilbert Arnold Congdon, of Providence, Rhode Island, United States of America, at present resident at Florence, Italy, being of sound mind and understanding, do make this my last will and testament: —</p> <p>Firstly. I give, devise, and bequeath to my beloved wife, Elizabeth' Abbott Congdon, during her natural lifetime, all my estate real and personal, of which I die possessed.</p> <p>Secondly. If at my death I should leave a child or children, I hereby appoint my wife, Elizabeth Abbott Congdon, sole guardian of said child or children during his, her, or their minority, leaving to her judgment and discretion to make such provision for said child or children, on reaching his, her, or their majority, as she may see fit. At her death I desire that my estate, real and personal, be left to said child, or equally divided among said children.</p> <p>Thirdly. In the event of my wife dying before me and childless, I desire that my estate, real and personal, be equally divided among the children of my respected uncle, Charles Congdon, and Anna his wife, of Staten Island, State of New York, and to their heirs and assigns forever.</p> <p>Fourthly. I give, devise, and bequeath unto my beloved wife, Elizabeth Abbott Congdon, all and every of my household furniture, linen and wearing apparel, books, plate, and also such sum or sums of money which may be due and owing to me at the time of my decease.</p> <p>Fifthly. I desire that my wife, Elizabeth Abbott Congdon, should give at her discretion some little personal remembrance to the following persons, to wit: —</p> <p>To my beloved sister, Elizabeth Congdon Mason, of Providence, Rhode Island.</p> <p>To my cousin, Dr. George Lewis Collins, Jr., of Providence, Rhode Island.</p> <p>To my friend, Henry Hayes, son of the late Hon. Winthrop Hayes, of Providence, Rhode Island.</p> <p>And I do nominate, constitute, and appoint my beloved wife Elizabeth Abbott Congdon, to be my sole executrix of this my last will and testament, thereby revoking all former or other wills made by me at any time heretofore, and declare this to be my last will and testament.</p> <p>In witness whereof, I, the said Gilbert Arnold Congdon, have to this my last will and testament set my hand.</p> <p>Florence, Italy, April 20,1882.</p> <p>Gilbert Arnold Congdon. [l. s.]</p> <p>Signed and delivered by the said Gilbert Arnold Congdon, the testator, as and for his last will and testament, in the presence of us, who at his request, and in his presence and in the presence of each other, have hereunto subscribed our names as witnesses.</p> <p>G. L. Collins, Jr., Providence, R. I. (U. S. A.).</p> <p>Laura S. Collins, Providence, R. I. (U. S. A.).</p> <p>Spinto Bernadi, witness, 5 Via Agostino, Florence, Italy.</p> <p>The testator died childless, July 17, 1884. His widow married Antonio Greco, and died April 5, 1889, without ever having had a child.</p>

<p>A mortgagor’s grantee of the equity of redemption, entering before sale under the mortgage and in possession, is after sale under the mortgage a tenant by sufferance.</p> <p>Such a tenant is, under Pub. Stat. R. I. cap. 232, § 1, entitled to a notice to quit before being subjected to an action of ejectment.</p> <p>In Pub. Stat. R. I. cap. 232, § 1, the words “ tenants . , . at sufferance ” have their technical meaning.</p>

<p>A., dealing in groceries and liquors, hired B. at an agreed sum per month to act as clerk and bar-tendej, B. worked for some seventeen months. During this time, and when the contract was made, the sale of liquor was forbidden by law.</p> <p>Held, that the contract, being single, was fatally infected with illegality, and that B. could maintain an action against A. neither for his wages nor for the quantum meruit of his services as clerk.</p>

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

<p>Exceptions to the Court of Common Pleas.</p> <p>This action was assumpsit brought in the Court of Common Pleas to recover one per cent, of $140,000, the selling price of the “ Fletcher Building,” under the following agreement: —</p> <p>Providence, January 18, 1886.</p> <p>Charles H. Smith is hereby authorized to hire $90,000 or $100,000 on the Fletcher Building, for one year from July 1,1886, interest not over five per cent, per annum, semi-annually in advance, commission one per cent. And said Smith is authorized to sell said building for not less price than $150,000. His commission when said sale is completed, at whatever price sold, is to be one per cent., whether he or any one else makes said sale.</p> <p>Belvidera F. Lillet.</p> <p>At the trial the plaintiff put in evidence this agreement, and proof that he had acted under it and negotiated a mortgage and received his commission therefor; that, acting under the agreement, he had endeavored to sell the property; that another broker had sold it for $140,000 in the early part of the year 1888; and that the plaintiff had never received his one per cent, of said selling price.</p> <p>The defendant offered evidence to show that after the foregoing agreement was signed by her and received by the plaintiff, but in the course of the same interview, the agreement was modified by an oral agreement. To the introduction of this evidence the plaintiff objected; the court overruled the objection, and the plaintiff excepted.</p> <p>The court instructed the jury that “ when the plaintiff’s power to sell ceased, his right to receive a commission ceased; and if the written agreement was so modified by parol that the plaintiff’s authority to sell under it was limited to six months, then after the six months expired, and he had failed to get a purchaser at the price stipulated, that was the end of his authority; and if after the six months expired, it was sold to somebody else, or if after the time expired, whenever it was, that they had agreed upon within which he might sell, it was sold by another person, then under the modified agreement the plaintiff had no claim for the commission on this sale and no standing in court.”</p> <p>To this instruction the plaintiff excepted.</p> <p>The jury returned a verdict for the defendant.</p>

<p>A declaration in slander contained a count which, purported to set forth the very words used in uttering the slander, and also other counts, that alleged the making of defamatory charges, without purporting to set forth even substantially the words used.</p> <p>Held, that said other counts were bad, and that, on trial to the jury, evidence in support of them was properly excluded.</p> <p>Awarding exemplary damages is discretionary with the jury when the case submitted allows them. The court fulfils its duty in telling the jury whether or not the caso allows them, and in calling attention to the evidence on which the discretion of the jury is to be received. An instruction to the jury that the plaintiff is entitled to them is improper.</p>

<p>Assumpsit. On motic strike out a plea puis darrein continuance, and subsequently c.i demurrer to the plea.</p>

<p>The dismissal of a hill in equity, after hearing, is no bar to a second suit, when the second hill, though asking the same relief as the first, sets forth different facts and circumstances as the reasons for it.</p> <p>A bill in equity to avoid a sheriff’s deed set out that the respondent had brought ejectment against the complainant.</p> <p>Held, no reason for demurrer: the lawsuit was controlled by the respondent, could not remove the cloud of the sheriff’s deed, and might find the complainant estopped by the sheriff’s deed from proving the facts alleged in the hill.</p>

<p>Bill op Interpleader. On plea set down for hearing.</p>

<p>The charter of a street railway company provided “Whenever any estate abutting on a street or highway, upon or over which the rails of said corporation shall be laid, shall be injured thereby, the said corporation shall be liable to pay the owner or owners thereof the damages thereby occasioned to said estate.”</p> <p>Held, that this provision applied to injuries incident to the laying of the rails, whether such injuries were or were not direct physical injuries to the estate.</p> <p>Held, further, that this provision did not apply to injuries resulting from'the use of the rails for travel.</p>

<p>A., injured by falling into an open coal hole in a sidewalk, brought his action for compensation against the owner of the abutting estate. This estate was leased, and the lease provided that the lessee should keep in order the exterior of the building on it. The coal hole was built prior to any legislation, state or municipal, relating to such a matter, and was properly covered when the estate was leased. At the time of A ,’s accident it was open to receive the lessee’s coal.</p> <p>Held, that the coal hole was not a nuisance, though constructed without special authority, so long as it was kept properly covered.</p> <p>Held) further, that the owner was not liable for A.’s injury resulting from the removal of • the cover by the lessee to receive coal.</p>

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

<p>Bill in Equity to establish a trust. On demurrer to the bill.</p>

Case Stated for an opinion of the court under Pub. Stat. R. I. cap. 192, § 23. The last will and testament of George C. Kenyon, late of East Greenwich, duly proven, is as follows : — I, George C. Kenyon, of East Greenwich, in the county of Kent and State of Rhode Island, do make and publish this my last will and testament in manner following: — First.

<p>Trespass and Ejectment. Heard by the court, jury trial being waived.</p>

<p>Damage to an interest by way of Hen or security in property is a damage to personal estate within the meaning of the statute 4 Eclw. III. cap. 7.</p> <p>Damage by a wrongful act to something recognized as personal estate gives rise to an action which survives both for and against an executor or administrator under Pub. Stat. R. I. cap. 204, § 8.</p> <p>A declaration charged that the defendant as mortgagee sold the mortgaged estate under the mortgage powers for a sum in excess of the mortgage debt, conveyed to the purchaser for only the amount of the mortgage debt, fraudulently concealed from the owner of the equity of redemption the fact of the excess, and never accounted therefor ; that the purchaser conveyed to a bond fide purchaser for value without notice, and became insolvent, whereby the excess was lost to the owner of the equity.</p> <p>Held, that, from the facts charged, the owner of the equity of redemption lost his vendor’s Ken through the mortgagee’s tort.</p> <p>Held, further, that from the facts charged arose a right of action which the administrator of the owner of the equity of redemption could enforce against the administrator of the mortgagee.</p> <p>Held, further, that the injury to the vendor’s Ken was a damage to estate which gave a right of action surviving the death of plaintiff or defendant under Pub. Stat. R. I. cap. 204, § 8.</p> <p>Pending a bill in equity and an action at law, the plaintiff was required by the court to make election between his remedies. He thereupon discontinued the action at law and proceeded with his biU, which was subsequently dismissed by the court “ without prejudice.”</p> <p>Held, that neither the discontinuance nor the dismissal “ without prejudice ” precluded the plaintiff from a new action.</p> <p>To an action at law the defendant pleaded the statute of Hmitations, to which the plaintiff repKed, alleging fraudulent concealment by the defendant of the cause of action by means of false representations until within six years, etc.</p> <p>Held, on demurrer, that the repKeation was good.</p>

<p>Debt on bond. On demurrer to the declaration.</p>

<p>Public Statutes R. I. cap. 236, § 1, is broader in scope than the 4 & 5 Anne, cap. 16, and makes a tenant in common who receives more than his share of benefit from the common property, ipso facto, a bailiff of his cotenant for the excess, so far as maintaining an action of account is concerned.</p>

<p>A. hired B. as a workman, and, at the time of hiring, made a verbal promise to C., a storekeeper, to be responsible for B.’s purchases up to the amount of wages due B. One of B.’s creditors sued B. and garnished A. After garnishment A. paid to C., pursuant to the above agreement, the amount due to B.</p> <p>Held, that A. was not liable as garnishee. The statute of frauds does not forbid the voluntary performance of a contract within its provisions, but gives a defence to the person to be charged, which he may adopt or waive.</p> <p>Held, further, that the verbal promise of A. to C. was not an assignment of B.’s wages within the Bhode Island Statute relative to assignments of future wages.</p>

<p>Exceptions to the Gourt of Common Pleas. The case is stated in the opinion of the court.</p> <p>“ Demand of the goods, followed by a refusal to deliver them, is always necessary before an action for conversion can be maintained, unless the plaintiff can establish some other tortious act,” such as selling or letting. Starkie on Evidence, 684; Bigelow on Torts, 200. A demand and refusal do not even constitute conversion, and at the most are but evidence of the fact, and a mere qualified refusal, alleging grounds for not delivering the goods, raises no legal presumption upon which the jury ought to find a conversion. Starkie on Evidence, 842 -. Singer Manufi. Co. v. King, 14 E. I. 511; Magee v. Scott, 9 Cush. 148. “ In case, when the taking of the goods is lawful, demand is absolutely necessary in order to secure sufficient evidence of conversion at the trial.” Slayter v. Williams, 37 How. Pr. 109, Thompson v. Rose, 16 Conn. 71, 84; Watts v. Potter, 2 Mason, 77, 81; Lane v. Crombie, 12 Pick. 176; Murdoch v. Inhabitants of Warwick, 4 Gray, 178; Ryan v. Merriam, 4 Allen, 77; Thacher v. Jones, 31 Me. 528, 534; Aylwin v. Ulmer, 12 Mass. 24, and note ; Sampson v. Smith, 15 Mass. 365; Tufts v. Seabury, 11 Pick. 139, 142.</p>

<p>A husband is not bound to support his wife who wrongfully refuses cohabitation.</p> <p>But a tradesman who has previously furnished goods to the wife and has been paid by the husband, who has neither actual nor imputed knowledge of the wife’s separation from her husband, and who, after the separation, furnishes goods to the wife, may maintain an action therefor against the husband. In such a case the wife’s agency continues until knowledge of the separation is brought home to the tradesman.</p>

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

<p>The trustee of a married -woman’s estate, appointed under Pub. Stat. R. I. cap. 166, § 18, may maintain an action against the husband to recover the wife’s property. In the case at bar it was held that the trustee could bring trover and conversion against the husband to obtain the wife’s jewelry.</p>

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

<p>The statutory exemptions from attachment are privileges personal to the debtor defendant in the action. If not claimed by him, they cannot be claimed by another, such as his mortgagee.</p>

Bill in Equity brought to establish the complainant’s claim against the estate of an insolvent debtor held by the respondent as assignee. On demurrer to the bill. Public Laws R. I. cap. 631, of April 20, 1887, as amended by cap. 820, of July 30, 1889, provide: — “ Sect. 1.

This was an appeal taken by the guardian of Lewis Baker, of full age, from a decree of the Probate Court of the town of Glocester, allowing the accounts of a former guardian. The accounts contained items of charges and expenditure in procuring a pension for the ward.

<p>In trespass on the case for personal injuries caused hy the explosion of a tank, the plaintiff alleged the cause of the explosion to have heen some defect in the tank or in its connections of which he had no knowledge nor means of knowledge, hut of which the defendant knew or was bound to know, which defect was caused by the defendant’s negligence.</p> <p>Held, that the proper allegation would be that the defendant knew, or but for the want of reasonable care and diligence would have known, of the defect. The allegation made was of a legal conclusion, not of a fact.</p> <p>Another count described the accident, but contained no averment of negligence on the defendant’s part.</p> <p>Held, that negligence was the gist of the action, and must be alleged, or must appear by legal intendment from what is alleged.</p> <p>The rule of certainty in pleading is not too rigid to be reasonable, and does not require the statement of facts undiseoverable hy the plaintiff. It permits much generality when the facts lie more in the knowledge of the opposite party than in that of the pleader.</p>

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

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

<p>Bequest to the “Children’s Nursery, so-ealled, in Providence,” contained in a will made prior to the transfer by the Rhode Island Children’s Hospital and Nursery of its property and work to the Saint Mary’s Orphanage. Wood v. Hammond, 16 R. I. 98,113.</p> <p>Held, that the bequest should he paid to the Rhode Island Children’s Hospital and Nursery.</p>

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

<p>An executor was directed by his testator’s will “to pay over to such servants as shall be in my employ at my death, the sum of twelve thousand dollars.”</p> <p>Held, that the word “ servants ” in this provision did not include a woman employed intermittently by the testator to help his regular servants at irregular intervals, though she was actually working for him when he died.</p>

<p>Excavating the cellar and driving foundation piles for a building are the commencement of the erection and construction of such building within the meaning of Pub. Stat. R. I. cap. 177, § 1, and Pub. Laws R. I. cap. 696, § 1, of March 21, A. D. 1888, of mechanics’ liens.</p> <p>After a cellar had been dug, and piles driven for a building, the site was mortgaged.</p> <p>Meld, that a mechanics’ lien for work done and materials furnished in constructing the building after the mortgage was given took precedence of the mortgage lien.</p> <p>The building was built by contract, and the contractors, who were the petitioners for a mechanic’s lien, gave to the landowner their bond to duly perform their contract, and to save him harmless “ from any and all mechanics’ liens ” “in any manner arising out of said contract,” or out of their “acts and omissions in connection therewith,” and “ from all damages, expenses, costs, charges, judgments,” etc., on account of any liens “ arising from, or growing out of, said contract.”</p> <p>Held, that nothing in this bond estopped the contractors from maintaining their petition for a mechanics’ lien. The bond was to protect the owner from the contractors’ default, not to release him from the consequences of his own.</p>

<p>A judgment against a married woman impleaded without her husband is voidable, not void, and is valid against her until reversed. Wliile unreversed it cannot be impeached in a collateral suit or proceeding.</p>

<p>Under Pub. Laws R. I. cap. 810, § 2, of August 1, 1889, of Liquor Licenses:</p> <p>Held, that an owner of land within two hundred feet of the building for which a license is asked is sufficiently a party in interest to maintain certiorari against the licensing town council or board of commissioners.</p> <p>Held, further, that when the statutory conditions are fulfilled, due notice given, and the requisite number of landowners do not object, granting the license is a matter of discretion, and this discretion is not reviewable in this court.</p> <p>Held, further, that when the notice given does not specify the particular location for which the license is desired, the proceedings of license grant will be quashed on certiorari.</p> <p>Held, further, that a notice stating the location merely as “ Robert Tripp, High Street, Valley Falls,” was fatally defective.</p>

<p>Judgment creditors, after a return of their execution, nulla bond, brought a bill in equity to avoid a mortgage given to the debtor. This mortgage was kept unrecorded by the mortgagee so as not to affect the credit of the debtor mortgagor, and was recorded just before the debtor made an assignment for the benefit of his creditors. It was while the mortgage was kept unrecorded that the mortgagor became indebted to the judgment creditors, who were ignorant of the mortgage.</p> <p>Held, that the bill could not be maintained. The mortgage was given to secure a valid debt, became a valid lien on its record, and the intentions of the parties to the mortgage in delaying its record were immaterial.</p>

<p>Under a statute empowering the city council of Providence "to make laws, ordinances, and regulations relative to hackney carriages, trucks, carts, and other vehicles, and licensing and regulating the same,” the city council adopted an ordinance forbidding any person to drive a hackney carriage without license, giving to the mayor and board of aldermen power to grant licenses, in their discretion, and giving to the mayor power to revoke any license so granted.</p> <p>Held, that the ordinance was valid, and that a license given under it was revocable by the mayor without notice to the license holder.</p>

<p>A., the owner, leased by a sealed instrument for a term of years to B. certain realty, a part of which was subject to a parol lease to C., who was in possession of this part, holding an unexpired term of tenancy by the month, and who refused to attorn to B.</p> <p>Held, that the notice to qnit, required by Pub. Stat. R. I. cap. 232, § 3, must be given to C. by A., and not by B.</p> <p>Held, further, that B. without the attornment of C. acquired no estate in the land leased to C. during the continuance of C.’s tenancy.</p> <p>Held, further, that the statutes 32 Henry 8, cap. 34, and 4 & 5 Anne, cap. 16, § 9, had no application.</p>

<p>Under Pub. Stat. R. I. cap. 155, §§ 11,12, which require manufacturing corporations to file with the town clerk of the town where their manufactory is situated annual certificates of their condition, otherwise the stockholders shall he liable for the corporate debts, filing a certificate which is not in fact true does not relieve the stockholders from liability.</p> <p>In an action against stockholders to hold them for the debts of the corporation, under Pub. Stat. R. I. cap. 155, evidence is admissible to prove the date at which the corporation contracted its debt to the plaintiff.</p> <p>In such an action the statements of .the treasurer as to the issue of stock to the defendants are admissible as evidence when no stock-book was produced, and none found among the hooks turned over to the receiver of the corporation.</p> <p>In such an action a record-hook of the corporation was produced, made up in part by copies from slips of paper on which the minutes of the corporation meetings, including the signatures of the secretaries, were originally written.</p> <p>Held, that the book was admissible in evidence. The record, though irregular, was accepted and regarded by the corporation as its record, and good at least as secondary evidence.</p>

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

Bill in Equity to establish a lien and for an account. On demurrer to the bill, and subsequently on the sufficiency of the plea. Then heard on bill, answers, and proof. Amos D. Smith, of Providence, died January 21, A. D. 1877, leaving a last will and testament, which was duly proved, February 20, A. d. 1877, before the Probate Court of the city of Providence, and is as follows : — In the Name oe God. Amen.

<p>Bill in Equity for instructions.</p> <p>This bill was preferred by the administrator with will annexed of the estate of Albert J. Jones, who died May 25, 1887, in Florence, Italy. The will was duly proved November 8, 1887, before the Probate Court of the city of Providence. The questions involved are stated in the opinion of the court.</p>

<p>A. and his wife gave to B. a mortgage deed purporting to convey realty. The realty belonged to the wife, but the mortgage deed signed by A. and his wife contained, on her part, only what purported to be a release of her dower, and was void as against the wife. Subsequently, A. and his wife gave a proper deed of mortgage of the same realty to C. This deed stated, “said premises are subject to a mortgage heretofore given” to B.</p> <p>Meld, that the statement in the second mortgage did not make the first a valid, equitable mortgage, either as against the wife or as against C.</p> <p>Meld, further, B. not being a party to the second mortgage, that the statement had no effect in B.’s favor as against the wife of 0., or those claiming under her, or under the mortgage to C.</p> <p>Meld, further, that the first mortgage passed A.’s estate by marital right or by curtesy initiate.</p>

Bill in Equity to establish title to corporate stock or for compensation. Heard on an agreed statement of facts, wliick are stated in the opinion of the court.

<p>The position of fire ward in a fire district is not a “ civil office,” within the meaning of Art. 9, § 1, of the Constitution of Rhode Island, which provides: “No person shall he eligible to any civil office . . . unless he is a qualified elector for such office.”</p> <p>What makes a “ civil officer.”</p>

<p>W. devised his homestead to his sons, C., F., and J., they to pay his debts. With the will, and dated a day or two after it, was found a writing, in form a promissory note, payable twelve years after date to his grandson, S., and signed by the testator. The only consideration for this note was the grandfather’s affection for S. J. sold his interest in the homestead to F. for $200, and F. ’s promise to J. to pay this note. In an action by S. against the executor of F. for the amount of the note:</p> <p>ÉCeld, «that the action could not be maintained.</p> <p>The relationship between S., J., and F. was not a sufficient consideration to sustain a contract.</p> <p>There was no debt due to S. which F. assumed, as the note was a gratuitous promise.</p> <p>No money was received by F. for S., and nothing could be regarded as creating a trust for S.</p>

<p>Under Puh. Laws R. I. cap. 432, of May 2,1884, which requires foreign insurance companies, before doing business in Rhode Island, to make the insurance commissioner of this State their attorney to receive service of any lawful process, a foreign insurance company may be charged as garnishee on process of garnishment served on the insurance commissioner.</p> <p>In the ease at bar the debt of the garnishee to the principal defendant was contracted in tliis State, and, no other place of payment being specified, was regarded as payable here.</p>

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

<p>Bill in Equity to avoid a trust and for an account. On demurrer to tbe bill.</p> <p>The will of Joseph Greene, formerly of Jamestown, and proven before the Probate Court of said Jamestown, September 19, A. D. 1840, is as follows: —</p> <p>I, Joseph Greene, of the town of Jamestown, on the island of Canonicut, in the County of Newport, and State of Rhode Island, yeoman, considering the uncertainty of time, and the probability, from the long pilgrimage which I have already passed, that the close of my probationary existence is near at hand; and also being desirous, while ability of body and soundness of mind and memory are mercifully continued, which at the present time is the case, of settling my temporal concerns in such manner as shall be consistent with and contribute to my own peace; and also, as far as may be, promote the welfare of others, especially of those who are true believers in, and obedient followers and publishers of, that one, eternal, unchangeable truth and gospel of our Lord and Saviour, Jesus Christ, as it was (after the long and dark night of apostasy from the true faith, doctrine, and practice of the primitive church) again revived, powerfully preached, and faithfully testified unto, both by word and writing, through deep and cruel sufferings, by the early ancient Friends, and valiants for the truth (commonly called Quakers), and their true and genuine successors in the same faith, doctrines, and practices down to the present time; of which truth, gospel, faith, doctrines, testimonies, and practices I am a witness (as well as a member of the Religious Society of Friends), and I do desire the extension of the living knowledge and way thereof, until righteousness shall cover the earth as the waters do the sea; and my will and intent is, that such part of the estate which has been (thro’ divine favor) bestowed on me, and which is hereinafter described, shall, according to the directions, limitations, and instructions hereinafter given, be singly, strictly, and faithfully applied only in the service of the same, and (as far as may or can be the case) to the honor and spread thereof, and to the comfort and relief of such persons as are and shall be true and practical believers in, living witnesses of, and faithful standard-bearers and testimony-bearers to and for the same divine, eternal truth, above mentioned, forever, — I do, therefore, make and declare this my last will and testament, in manner and form following, that is to say: My will is, that after my decease, my body shall be decently interred in the northwest corner of my nether orchard, — the spot which I, and my two sisters hereinafter named, have selected for a place of burial for ourselves; and that the graves shall be from time to time kept in good and decent order and repair, and also inclosed with a good stone wall or fence, by my executors hereinafter named; and that this care shall continue to rest upon their successors, in the trust which I shall bestow upon them; and that all my just debts and funeral expenses be discharged by them, within some convenient time after my decease.</p> <p>And then, first of all, unto my well-beloved, faithful friends, Henry Gould, Thomas B. Gould, and Thomas P. Nichols, I give, devise, and bequeath, all my real and personal estate whatsoever, and wheresoever to be found; particularly my farm on the island of Canonicut, known by the name of the Greene Farm, and the house thereon standing, in which I now live (and where my predecessors of the same name have lived for generations back, if not from the first settlement of the island by the English emigrants) ; and all land which I have bought from time to time and added thereto; together with all and singular the houses, barns, and other outbuildings thereon standing, and all the rights, privileges, and appurtenances, of what kind or nature soever, thereto belonging or appertaining, to be and remain unto the said Henry Gould, Thomas B. Gould, and Thomas P. Nichols, and to their successors forever, in trust.</p> <p>Secondly. My earnest and anxious desire is, and I hereby enjoin it upon my said trustees, that they take the utmost kind and very affectionate care of my ever dear and tenderly beloved sisters, Anne Greene and Mary Greene, during the lives of the said Anne and Mary. And for the purpose of enabling my said trustees to support and take such care of my said sisters, I hereby authorize and empower my said trustees, if necessary, to sell and dispose of any portion of my said estate, real or personal, first exhausting the personal estate.</p> <p>Thirdly. My will is, that after the decease of my said sisters, “my farm and land above mentioned on the island of Canonicut (to all of which I hereby apply the name of the Greene Farm), together with all and singular the houses, barns, and other outbuildings thereon standing, and all the rights, privileges, and appurtenances, of what kind or nature soever, thereunto belonging, shall be and remain unto the said Henry Gould, Thomas B. Gould, and Thomas P. Nichols, and their successors, qualified and chosen in the manner following, forever; that is to say, when it shall happen that one or more of those three trustees decease, the survivors or survivor shall make choice of a man or men of understanding, who shall be sound in the faith of the gospel of Christ, as the same is set forth in the preamble to this, my last will and testament, and in Robert Barclay’s “ Apology for the True Christian Divinity,” as well as in other waitings of the primitive Friends, more particularly hereafter referred to, to succeed in the place of him or them so deceased; and in case the two survivors differ in their choice of the man so to succeed in the place of him so deceased, then they shall agree upon some faithful friend, to whom they shall refer the matter, and he shall by virtue hereof be qualified to act for the time being as one of them, that is to say, in the choice of a successor; and if they three cannot be united in that choice, his voice, together with one of the survivors, shall decide the matter; and the person’s name so chosen shall be recorded on the record-book of the trustees and signed by the clerk; and he shall be the trustee with the survivors of said trustees, and shall have equal power to act with them, or either of them, in all matters relating to the disposal of the rents and profits of the said Greene Farm, from time to time; and so all persons chosen and qualified as above said, to keep good the said number of three trustees, shall be deemed and taken for the trustee or trustees herein with said survivor, which said persons, or their said successor, or successors, chosen and succeeding as above said, shall be seized of the said farm and land (called the Greene Farm), to the use and uses following; that is to say, faithfully and truly to distribute and dispose of the net rents and profits of my said farm forever, according to such directions, limitations, and instructions as I have hereinabove given, or may hereinafter give, and also according to such as I shall more particularly give unto them in an instrument of writing under my hand and seal bearing even date with these presents, and which shall be forever deemed and taken to be of the same force and virtue with this, my said last will and testament.</p> <p>Fourthly. My will is, that after the decease of my sisters above mentioned, my clock shall continue to stand where it now does, in the southeast corner of my east front room, and shall be kept in repair by my trustees above mentioned, or so long as they may deem it proper and practicable; and further, my will is, that inasmuch as my house has been open during my lifetime (as well as for generations back, in the lifetime of my ancestors of the same name) for the reception and entertainment of ministers and others travelling in the service of the truth, so it shall continue to be a place for the reception and entertainment of such forever, in conformity with the preamble of this, my last will and testament, and in the discretion of my trustees. And my will further is, that my west front room chamber shall be kept in constant readiness to lodge such persons as shall cross over or visit this island in the course of their labors in the gospel of Christ, and others who are not ministers, but who are travelling to meetings or otherwise in the service of truth, and that the said room be kept furnished with two good bedsteads, two beds, two bolsters, and two pair of pillows, and other necessary furniture.</p> <p>Fifthly. I give and bequeath to my beloved brother, Jonathan Greene, the sum of one hundred dollars, but in the event of his removal by death before the time hereinafter provided for the payment of these legacies, then the said sum of one hundred dollars to be paid to his son, David Greene; and I also give to the said David the further sum of two hundred dollars.</p> <p>Sixthly. I give and bequeath unto John E. Greene, the son of my brother, Jonathan Greene, the sum of five dollars.</p> <p>Seventhly. I give and bequeath unto William Greene, and Joseph Greene, sons of my brother, Jonathan Greene, the sum of one hundred dollars each.</p> <p>Eighthly. I give and bequeath unto the two .daughters of my said brother, Jonathan Greene, the sum of one hundred and fifty dollars each.</p> <p>Ninthly. I give and bequeath unto my friend and cousin, Henry Gould, above mentioned, the sum of one hundred dollars.</p> <p>Tenthly. I give and bequeath to my beloved cousin, Abigail Gould, the wife of Henry Gould, the sum of one hundred dollars.</p> <p>Eleventhly. I give and bequeath unto my beloved cousin, Mary Gould, the sum of fifty dollars, but in the event of her decease before the time hereinafter provided for the payment thereof, then the said sum of fifty dollars to be paid to my cousin, Thomas B. Gould.</p> <p>Twelfthly. I give and bequeath to my beloved cousin, Lydia Ann Gould, the daughter of my cousins, Henry and Abigail Gould, the sum of fifty dollars.</p> <p>Thirteenthly. I give and bequeath unto my friend and cousin, Thomas B. Gould, above mentioned, the sum of fifty dollars.</p> <p>Eourteenthly. I give and bequeath unto my friend, Thomas P. Nichols, the sum .of fifty dollars; in token of my friendship for him, and also as some degree of compensation for his care and trouble in discharge of the trust to which I have appointed him.</p> <p>Eifteenthly. I give and bequeath unto Hannah Douglas, the daughter of Joseph and Abigail Douglas, the sum of fifty dollars.</p> <p>Sixteenthly. I give and bequeath unto Mary Carr, the daughter of Benjamin and Elizabeth Carr, the sum of fifty dollars; and also the use and actual occupancy, by herself, of my east front room chamber, with the bedroom and the two small rooms adjoining over the kitchen, and a passage up and down both the front and back stairs, and through the kitchen and washroom, together with the privilege in the cellar and woodhouse of putting her vegetables and her wood therein, and a privilege of drawing water out of the well, and to the rain-water also. All of which to be and remain unto her during her natural life, provided she remain single, and continue to live with my said sisters (though not without wages); and to be respectful, kind,- and attentive to them, so long as they, or either of them, live. And if the said Mary should be disposed to have her aunt, Hannah Douglas, to live with her, my will is that she should share with the said Mary in this bequest (except in the sum of money above mentioned), provided she shall conform in all respects to the same conditions imposed upon Mary, but she, the said Mary, shall have no power to let or lease the rooms above mentioned, or to bring in any other person or persons to live with her, contrary to the mind of my trustees.</p> <p>Seventeenthly. The legacies to the children of my brother, Jonar than Greene, are absolute legacies, and in the case either or any of them decease previous to the time of payment, the sum or sums respectively given to him, her, or them so deceased, are to be divided equally among the survivors, or to be paid to the survivor of them; and I direct that the same rule be observed in respect to the payment of those legacies bequeathed to my cousins, Henry, Abigail, Lydia Ann, and Thomas B. Gould, they being also absolute legacies; and further my will is, and I direct, that none of the legacies herein given be paid during the lifetime of either of my said sisters; nor until such periods of time after their decease, in each case, as may suit the convenience of my executors, and they may deem reasonable and proper.</p> <p>Eighteenthly. I give and bequeath unto my cousin, Thomas B. Gould, above mentioned, my desk and bookcase, standing in my east front room (it was my brother David’s), together with all my books and papers, whether printed or in manuscript; the manuscript journal of my late and ever dear brother, David Greene, and all the rest of his books and papers, whether printed or in manuscript ; and all my household furniture of whatever description, together with all the rest and residue of my estate and effects of every kind and nature not hereinbefore disposed of.</p> <p>Lastly. I hereby nominate, constitute, and appoint my friends, Henry Gould, Thomas B. Gould, and Thomas P. Nichols, above mentioned, sole executors of this, my last will and testament, hereby revoking and annulling all other and former wills by me made, and establishing this, and this only, as my last will and testament, contained together with my said instructions on the three preceding and annexed pages.</p> <p>In testimony whereof, I have hereunto set my hand and seal, this fifth clay of the eleventh month, in the year (according to the Christian account) one thousand eight hundred and thirty-nine. 1839.</p> <p>Joseph Greene, [l. s.]</p> <p>Signed, sealed, published, pronounced, and declared by the said Joseph Greene, as and for his last will and testament, in the presence of us, who at the same time at his request, and in his presence, and in presence of each other, hereunto set our names as witnesses to the same.</p> <p>Elijah Anthony,</p> <p>Wm. S. Nichols,</p> <p>H. Y. Cranston.</p> <p>Whereas, I, Joseph Greene, of the town of Jamestown, on the island of Canonicut, in the County of Newport, and State of Rhode Island, yeoman, did on the day of the date hereof make and publish my last will and testament, and therein and thereby did give, grant, and devise my farm and land in said Jamestown, which I have designated as the Greene Farm, unto you, Henry Gould, Thomas B. Gould, and Thomas P. Nichols, and your successors, chosen and qualified as in my said will is provided, for you and them faithfully to distribute the net rents and profits thereof, in the service of truth, as set forth in the preamble to my said will, and according to such directions, limitations, and instructions as I should further give unto you; I do therefore, in pursuance thereof, now signify unto you, that the priuciples, doctrines, testimonies, and practices to which I have all along referred are those which are held and promulgated by George Fox, Robert Barclay, Isaac Pennington, William Penn, George Whitehead, Samuel Fisher, Francis Howgill, Edward Burrough, Richard Claridge, and others, of the early Friends (for they spoke the same language, and bore a faithful, consistent, and united testimony to the truth, as it is in Jesus Christ, who is the way, the truth, and the life, and the true light and life of men, the Alpha and Omega, the first and the last, the beginning and ending) ; and in order to prevent you and your successors from falling into any mistake whatever, in respect to the qualifications of such persons, who are to receive the benefits of this trust, or the nature of those principles which you and they are to be found in the faithful maintenance and support of, I do refer to the published works of those persons above mentioned, severally and collectively; but as they are very extensive, I will particularly refer to George Fox’s Journal, Robert Barclay’s Apology, his “ Catechism and Confession of Faith,” and his “ Anarchy of the Ranters,” etc.; the last has been printed in modern times under the title of “ A Treatise on Church Government,” and all of them have been officially and repeatedly sanctioned by the Society of Friends (commonly called Quakers), and extensively circulated as standard works, containing their principles from the first down to these times. And these are also to inform you, and all whom it may concern, that if any person or persons claiming to be members, ministers, elders, overseers, or committees of the said Society, have avowed and published, or shall avow, publish, maintain, or defend, either by word or writing, any principles or doctrines contrary to and subversive of all those along referred to by me, the mere membership or station of such persons in said Society shall furnish no claim to the benefits of this trust; neither shall the benefits thereof be extended to any individuals who shall unite with and support those personally who have published and do hold such principles, although they may, while giving such personal support, pretend to dissent from their views.</p> <p>Furthermore: if at any future time the Society of Friends generally, or any particular local section thereof, should depart from or deny any of its first principles, as set. forth in the standard works above referred to, and should adopt new and unsound principles contrary to and subversive of those for the support of which they were originally raised up and gathered into a distinct religious society; or if the Society should continue to commit itself co and identify itself with such principles, by officially acknowledging unity with persons, especially as ministers, or in other prominent stations, who have published and do hold them; and in consequence of such weakness, unfaithfulness, and degeneracy, a general or local separation should again take place in the Society; or if the defection in principle should be so overwhelming in its character (which I hope it will not), that those who faithfully bear testimony against it (whether in the particular or in the general), being few in number, shall be deprived of their membership, on account of such, their testimony, and, as it were, be driven into the wilderness, that is, cease to be known as in a gathered and visible church state (while those who have actually departed from that light, spirit, and power of Christ, which alone constitutes a true church, still retain the name) : in either case you are to follow the original principles of truth, in the application of the benefits of this trust, without regard to the outward appearance, mere name, lifeless profession, numbers, or majority of such apostates. It is the support of the principles of truth as originally held by the first Friends, which is to be constantly kept in view, and not of the society in an impure and degenerated state. The particular cases in which you shall apply the means in your hands to the personal relief of the poor, or otherwise in the service of truth, I leave to your judgment, and to that of your successors; only, I would have you and them, as your means shall increase and allow it, to use a part thereof in the reprinting and circulating such of the writings of the early Friends as are likely to be most useful, and otherwise go out of print and be lost, as well as those of more modern times, written in defence of the same principles, and to set forth the purity and spirituality of the gospel dispensation. And I also desire, if it be practicable, that you and your successors would, from time to time, place such tenants upon my farm, and in my house, as shall make it an agreeable and comfortable home, in the best sense, to those whose lots may be cast there in the course of their labors and travels in the service of truth.</p> <p>In testimony whereof, I have hereunto set my hand and seal this fifth day of the eleventh month, in the year one thousand eight hundred and thirty nine. 1839.</p> <p>Joseph Greene, [l. s.]</p> <p>Signed and sealed in the presence of us.</p> <p>Elijah Anthony,</p> <p>Wm. S. Nichols,</p> <p>H. Y. Cranston. -</p> <p>February 16, A. D. 1889, the heirs at law of Joseph Greene brought their bill in equity against Thomas P. Nichols, surviving trustee and the Attorney General of the State, asking that the trusts of the will be declared void, that the trustee be directed to convey the trust estates to the complainants, and for an account. To this bill the respondent trustee demurred, and the case was argued on the question of the validity of the trusts.</p>

Exceptions to Special Court of Common Pleas. February 8, 1889, the Providence & Worcester Railroad Company filed in the office of the clerk of the Court of Common Pleas for the County of Providence, the location of a projected railroad in the town of East Providence, and a request that a Special Court of Common Pleas might be called to consider it under Pub. Stat. E. I. cap. 195, §§ 12-14. Process issued November 30, 1889.

Exceptions to the Court of Common Pleas. The case is stated in tbe opinion of the court. The notice in this case was returned to the jail at five o’clock P. M. Saturday, November 10, 1888, and the prisoner was liberated before midnight of Sunday, November 11, 1888.

<p>Trespass quare clausum. On demurrer to plea.</p> <p>The defendant justified entering the plaintiff’s close, setting up that he was a duly qualified special constable, whose duty was to kill “ all dogs not licensed and collared according to law and going at large in said city of Newport, and to bury the same; ” that he killed by poison a dog not licensed and collared on a public street, and went on the plaintiff’s close, whither the dying dog had wandered, to obtain the dog’s body for burial.</p>

<p>A recognizance given under Pub. Laws R. I. cap. 819, § 2, of the restraint of the insane, has for its single condition a restoration to soundness of mind, and cannot be discharged until such restoration is shown.</p> <p>The constitutionality of an act, requiring restraint in cases of mental unsoundness which do not call for restraint, was not argued, and is not decided.</p> <p>When uncontradicted professional experts testify to continuing mental unsoundness, the court will act on their evidence though it cannot itself find signs of insanity in the patient’s appearance and examination before it.</p>

<p>Actions to collect taxes amounting to less than one hundred dollars may be brought in the Court of Common Pleas or Supreme Court.</p> <p>Pub. Stat. R. I. cap. 44, § 26, is not repealed by Pub. Laws R. I. cap. 597, §§ 23, 56, of 'May 27,1886.</p> <p>A. neglected to make a return of his ratable estate to the assessors of taxes. It appeared that he owned a watch, and also corporate stock in a corporation whose property was assessed and taxed in New Mexico, and hence the stock was not subject to taxation here. He was assessed here for $5,000, and suit for the tax on this assessment was brought against him.</p> <p>Held, the watch being ratable estate, that the case was one of overtaxation, not one of illegal taxation, and that A. was remediless.</p>

<p>A. trustee resident in Newport held in trust mortgages on realty in Newport. The trustee was 'appointed by a South Carolina court under the will of a deceased resident of that State. The cestui que trusty who had the pernancy of the income of the trust estate, resided in New York.</p> <p>Held, under Pub. Stat. R. I. cap. 42, § 12, that the trust estate was properly taxed in Newport to the trustee.</p>

<p>The commissioners of the North Burial Ground, officers of the city of Providence, had legislative authority to receive funds in perpetual trust, and to apply the income to the care of lots in the North Burial Ground, Subsequently, a legislative act directed the transfer of the trust funds to the commissioners of Sinking Funds of the city of Providence.</p> <p>Held, that the act directing the transfer was valid, and was not violative of any contract with the donors of the trust funds.</p> <p>The commissioners of the North Burial Ground held the trjist funds as the city itself would have held them, had it been empowered to act as trustee.</p> <p>The legislature may invest a municipal corporation with power to act as trustee, and may at pleasure transfer this power and the administration of the trust to another trustee.</p>

<p>Indictment for breaking into the house of one Jeremiah B. P. Proof that the house belonged to Jedediah B. P.</p> <p>Held, that the indictment could not be amended by changing Jeremiah to Jedediah. The amendment is a mátter of substance, and not allowable without the consent of the accused. Pub. Stat. B. I. cap. 248, § 4.</p>

<p>Indictment under Pub. Stat. R. I. cap. 244, § 11, for distributing papers containing obscene matter.</p> <p>Held, that tbe indictment must set out tbe mode of distribution.</p> <p>Held, further, that tbe indictment need not set out tbe obscene matter, if tbe indictment avers tbat the matter -would be offensive to tbe court, and improper to place on tbe court records.</p> <p>Held, further, tbat tbe indictment need not aver an intent on tbe part of the defendant, as tbe intent did not make a part of tbe statutory offence.</p>

<p>Trespass on the Case for personal injuries to the plaintiff’s testator resulting in his death. On demurrer to the declaration.</p>

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

<p>Bill in Equity to construe the last will of Jethro Peckham, proven before the Probate Court of the town of Middletown, January 16, A. D. 1888.</p>

<p>Language which charges a man with intending at some future time to commit an offence is not actionable.</p> <p>Language which merely expresses an opinion as to what a man’s future conduct or character will be is not actionable.</p> <p>To say of a man, “ He is going to start a house of ill fame,” is neither actionable nor a legal defamation.</p>

Quo Warranto. This was an information filed by the Attorney General on the relation of certain persons claiming to have been duly elected town councilmen of the town of Lincoln, against the respondents, who were “ using and exercising the office of town councilmen.” The information is as follows: — To the Honorable Supreme Court for the County of Providence : — Robert W. Burbank, of the city and County of Providence, Attorney General of the State of Rhode Island and…

<p>On the death of A. unmarried and intestate, his mother, brothers, and sister, the last being represented by her husband, agreed in writing that J., one of the brothers, should be appointed administrator, that J. should arrange for the care of the burial lot and the erection of a tombstone, should receive orders for the life insurance of A., should pay the debts of A., and should divide the residue equally among the next of kin of A. J. was appointed administrator, the sister and her husband signing the petition for his appointment. It turned out that the life insurance policies were payable to the sister, and she gave to J. orders to collect the amounts due on them, but afterwards revoked the orders.</p> <p>Held, that the agreement had been ratified by the sister.</p> <p>Held, further, that the agreement was a fair family arrangement, of which the sufficient consideration was the surrender by each of a possibly larger share in the decedent’s estate for a certainly equal one.</p> <p>Held, further, that in such a family arrangement the care of the burial lot was a sufficient consideration. In such arrangements courts do not examine the quantum of consideration.</p> <p>Held, further, that the ratification of the agreement by the sister and her delivery of the orders for the life insurance moneys were an equitable assignment of the moneys to J., for the purposes of the agreement; that the orders were coupled with an interest, and were irrevocable.</p>

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

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

<p>Quo Warranto.</p> <p>This was an information filed by the Attorney General on the relation of C. Fred Crawford, claiming to have been duly elected town clerk of the town of Lincoln, against the respondent, who was “ using and exercising the office of town clerk.” The information affected the same election as did the information in State v. Kearn, ante, p. 391, and the proceedings and orders in the two cases were the same.</p>

<p>A verdict for the plaintiff against a newspaper publisher in an action for libel will not he set aside as excessive unless the jury is shown to have acted from partiality, prejudice, or corruption, or to have greatly mistaken the principles involved in the case.</p> <p>Affidavits of jurors as to occurrences in the jury room cannot be received in order to impeach the verdict rendered.</p> <p>Each member of a jury marked down a sum, and the aggregate, divided by the number of jurymen, made the amount of the verdict rendered, this being done tentatively to ascertain the view of each individual, and to furnish a basis for discussion and agreement. The court held this procedure unobjectionable.</p>

<p>Notwithstanding the provisions in the charter of the town of New Shoreham as to wardens, R. I. Col. Rec. vol. 2, pp. 467, 468, the town clerk may, under Rub. Stat. R. I. cap. 35, § 12, issue warrants for town-meetings when no other mode of warning the electors to convene has been provided by by-law.</p> <p>A notice in the warrant for a town-meeting gave as one of the objects of the meeting “to let the town’s land and beaches.”</p> <p>Held, sufficient, under Rub. Stat. R. I. cap. 35, § 12, to include the bathing beaeh, although similar notices had been given in previous years, when other beaches and not the bathing beach had been leased.</p> <p>A vote of the town council, signed by its clerk, the town council having been made previously the agent of the town by a vote in town-meeting, is a sufficient memorandum in writing to satisfy the statute of frauds.</p>

<p>A plaintiff had leave to amend his declaration hy filling out its ad damnum clause, and hy inserting certain allegations in its counts. The trial proceeded as if the amendments had been made, but they were not in fact written in until after a verdict had been rendered.</p> <p>Held, no reason for a new trial, nor for an arrest of judgment.</p> <p>Held, further, that permission to make such amendments was properly given under Pub. Stat. JR. I. cap. 210, § 5, of jeofails.</p>

<p>Bill in Equitt to terminate a trust.</p>

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

<p>A. deducted from the wages of his servant B. a sum of money which had been lost, and for which A. held B. responsible. Subsequently A. gave B. money to pay his other employees. B. took from it the amount due himself, including the amount deducted from his wages, returned the balance, and announced his intention to leave.</p> <p>Held, that A. could not justify personal violence used to regain the amount given to B, and retained by B.</p> <p>As a general rule, the right to personalty disjoined from the possession will not justify the owner in committing an assault and battery on the possessor to regain possession, even if the possession is wrongfully withheld.</p>

<p>Assumpsit for the value of a package lost by the defendants as common carriers. Heard by the Court, jury trial being waived.</p>

Petition for new trial filed by an intervening claimant. This action was assumpsit. The writ was served by garnishment on the city of Providence, and made returnable to the Court of Common Pleas. One Albert Hainsworth intervened in the case, and under Pub.

Petition presented under Pub. Stat. R. I. cap. 48, § 15, for relief from an assessment upon real estate. On motion to dismiss tbe petition.

<p>A bill of sale was given in form: —</p> <p>S. bought of G.</p> <p>One quarter interest in tbe schooner Chas. H. Sprague, as per above receipt.</p> <p>Ree’d payment, G.</p> <p>Held, that the bill of sale passed the legal title to the one quarter part of the schooner.</p> <p>Held, further, that a trust dependent on the passage of such legal title was therefore completely constituted.</p> <p>Held, further, that after the death of G. the bill of sale would be reformed to allow the registry and enrollment of the schooner under the Revised Statutes of the United States, §§ 4170, 4312.</p> <p>G. conveyed to S. certain property to indemnify S. against liability to pay more than one half the indebtedness of a certain venture of which G. was to pay the other half, and S. gave to G. a declaration of trust providing that the income should be paid to G. until default, and in case of G.’s death, after payment, should he paid to G.’s daughter A.; should she die, to G.’s daughter B.; should both die, to the grandchildren of G. After the death of G. his executors paid his one half of the venture.</p> <p>Held, that the trust continued in favor of the daughter, etc.</p>

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

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

<p>A benevolent society embraced local branches, of which the treasurers were to receipt for payments made to the branches, to report and to remit monthly to the society moneys collected, and to give bond to the society for the moneys in their hands.</p> <p>Held, that moneys paid to these treasurers for assessments made by the society were beyond the control of the local branches, and were subject to garnishment as the moneys of the society in the hands of the treasurers of the branches as trustees of the society.</p> <p>In the case of a general judgment pleaded in bar, parol evidence is admissible to show on what the judgment was founded.</p> <p>Assumpsit for commissions; plea, actio non, reciting a former judgment in an action brought for the same commissions. The verdict in the former action and the judgment on it were general.</p> <p>Held, that parol evidence was admissible to show that the prior action was prematurely brought, and at a time when the claim to the commissions had not accrued.</p>

<p>Assumpsit. ' On demurrers to pleas in abatement.</p>

<p>Aetion brought under Pub. Stat. R. I. cap. 204, §§ 15-20, to recover damages for death caused by negligence must be brought by the executor, administrator, or widow of the deceased. They cannot he brought by the next of kin as such.</p>

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

Bill in Equity for partition. Heard on bill and answer. After this opinion had been given, the respondent Bickerton filed a motion for a reargument. This is the case of a conveyance by one tenant in common of his right, title, and interest in a specific portion of the common subject. The effect of the opinion of the court is to change that conveyance into a certain fractional interest in the whole common subject.

<p>Trespass and Ejectment. On demurrer to plea.</p>

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

<p>Bill in Equity to redeem a mortgage, for an injunction and for an account. On exceptions to the master’s report.</p>

<p>Parties who concur in stating a case for the opinion of the court, pursuant to Pub. Stat. JEt. I. cap. 192, § 23, must be parties adversely interested in the question submitted.</p> <p>A trustee and the holder of a mortgage given by such trustee are not adversely interested in the question whether the trustee had power to make the mortgage.</p>

<p>Case Stated for an opinion of the court under Pub. Laws R. I. cap. 568, § 16, of April 20, 1876.</p>

<p>A judgment for the defendant’s costs, rendered against an administrator who has failed to maintain his action, should he entered against the administrator personally, and the execution should conform to the judgment.</p>

Trespass on the Case. On demurrer to the declaration. The writ in this case ordered the arrest of the defendant, describes the action as “ case for seduction and breach of promise of marriage,” was served by arrest of the defendant, and contained no affidavit.

<p>Bill in Equity to establish a trust. Heard on bill, answer, and proofs.</p>

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

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

<p>Appeal from the Probate Court of the town of Warwick. On motion to dismiss the appeal.</p>

Bill in Equity for the assignment of dower. On petition of Thomas A. Pierce, administrator of the complainant’s deceased husband, for leave to become a party to the suit, and subsequently on demurrer to the bill.

<p>Account. On exceptions to the auditor’s report.</p> <p>The former proceedings in this case are reported 15 R. I. 312 sq.</p>

<p>Trespass on the Case. On defendant’s petition for a new trial, and motion for judgment non obstante veredicto.</p>

Plaintiff’s petition for a new trial in the Court of Common Pleas. After the proceedings already reported in this case, 16 R. I. 689, a new trial took place in the Court of Common Pleas at its September Term, 1890, for the County of Providence, which resulted in a verdict for the defendant under instructions from the presiding justice.

<p>A motion to revive an equity ease against an incoming respondent eannot be made after the complainant is dead, and before some other person appears on the record to prosecute the case. Pub. Stat. B. I. cap. 192, § 14; Equity Buie 37. Such a motion should be made after the record shows a complainant in whose favor the suit can be revived.</p>

<p>Under Pub. Stat. K. I. cap. 185, § 4, a decree of a Probate Court set off to a widow parts of her husband’s realty to hold “upon the same terms and conditions and for the same period as she holds her estate of dower.” The decree was appealed from, and was confirmed in this court. Pub. Stat. JEt. I. cap. 181, § 7, provides that, in case of an appeal from a decree of a Probate Court, the operation of the decree appealed from “shall be suspended until the decree shall be affirmed by the Supreme Court.”</p> <p>Held, that the decree setting off the realty to the widow took effect only at the time of its affirmance on appeal.</p> <p>Held, further, that the widow was not entitled to the rente and profits of the realty accruing prior to such affirmance.</p>

<p>Petition for the appointment of a receiver under Pub. Stat. R. I. cap. 287, § 18.</p>

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

<p>Motion to amend the petition by adding the Washington County National Bank as a copetitioner.</p>

<p>An attaching creditor cannot, to protect his rights under the attachment, intervene in an action brought by a creditor with a prior attachment against the common debtor.</p>

Exceptions to the Court of Common Pleas. • This action was trespass on the case against the city treasurer of the city of Pawtucket, to recover damages for an alleged malicious suit brought by the tax collector of the city against the plaintiff. A demurrer to the declaration was sustained in the Court’ of Common Pleas, and the plaintiff excepted.

<p>Under Pub. Stat. R. I. cap. 248, § 9, a boy was sentenced to the state reform school during his minority, or, in the alternative, to the state workhouse and house of correction for six months. The board of state charities and corrections received him into the reform school, and afterwards, under Pub. Stat. R. I. cap. 254, § 9, transferred him as incorrigible to the workhouse and house of correction, where he was kept for more than six months. The board then returned him to the reform school.</p> <p>On Habeas Corpus :</p> <p>Held, that the removal to the workhouse and house of correction, and the time of deten- . tion there, was discretionary with the board.</p> <p>Held, further, that such removal was not under the alternative sentence.</p> <p>Held, further, that his continued detention in the reform school was legal.</p> <p>Comparison made between Pub. Stat. R. I. cap. 253, § 8, and cap. 254, § 9.</p>

Defendant’s petition for a new trial. The contract referred to in the following opinion is as follows, the formal parts being omitted: — “ Said Manchester covenants and agrees with said Davis to employ him as his agent and general manager of the business of selling paper, twine, etc., now owned and conducted by said Manchester at the store numbered eleven on Custom House Street, in said city of Providence, for the space of one year from the date of this indenture. “ Said…

<p>A mortgagee cannot take from an attaching officer mortgaged personalty attached as the mortgagor’s property under Pub. Stat. R. I. cap. 208, § 4. The mortgagee should apply for an order of sale under Pub. Stat. R. I. cap. 208, § 5.</p>

<p>Partition in equity against the wishes of the respondent eo-owners will not be ordered while the realty to be divided is subject to the lien of the deceased owner’s creditors.</p>

Heard by the court on an agreed statement of facts. It appears from the statement of facts filed in the case that a trust deed provided “ no sale at private sale of any of the then trust estate ” should be made “ at a less price than that fixed for the same by a decree of the then Court of Probate of the said town of North Providence.” The Court of Probate, on the application of the trustee, fixed a price, and from the decree fixing this price the appellant, who had an…

<p>When a vendor employs a broker to effect a sale of land, and, relying wholly on the broker, does not exercise his own judgment as to the responsibility of a purchaser found and presented by the broker, but signs a contract of sale which the purchaser is unable to carry out, the broker is not entitled to compensation.</p> <p>Whether, in an action for compensation brought by the broker against the vendor, the burden of proof as to the financial ability or disability of the purchaser is on the plaintiff or defendant, is not decided.</p> <p>But when the defendant adduces evidence to show the purchaser’s irresponsibility, and the plaintiff adduces no evidence on this point,</p> <p>Held, that the jury properly found the purchaser irresponsible, and the presiding judge properly instructed them that they might so find.</p>

<p>Dissensions in a mutual benefit association culminated in a disorderly vote expelling the president from his office. In this action, although, irregular, the president seems ' to have acquiesced. Subsequently a meeting was called by him at which the members present voted to dissolve the society and distribute its fund. The call for this meeting did not state its object, and was not signed by the officer recognized as president by the society.</p> <p>Held, that neither the improper vote of expulsion nor the proceedings at the irregular meeting dissolved the association, and that its funds still were held by it for its purposes.</p> <p>Whether the association is to be considered a partnership or not is, in the circumstances of the case at bar, not decided.</p>

Quo Warranto. On demurrer to tbe information, and subsequently on demurrer to tbe answer. Tbis was an information filed by tbe Attorney General on tbe relation of certain qualified electors of tbe city of Pawtucket against tbe respondent to test bis title to tbe office of mayor of tbe city. Tbe respondent demurred to the information. Pub. Laws R. I. cap. 474, of March 27, 1885, incorporating tbe city of Pawtucket, contain the following provisions : — Sect. 14.

<p>A. transferred personalty to B. to hold, etc., during the life of A., and at the death of A. to convey it as per a written memorandum to be given to B. No such memorandum was ever given to B., but one was found in the trunk of A. after the death of the latter. Evidence showed that A. had spoken of an incomplete memorandum to be finished and given to B.,or left in the trunk of A., and that A. afterwards was about making a will, but failed to do so.</p> <p>Held, that B. took the trust property as trustee for A. during A.’s life, and for A.’s executor or administrator on A.’s death, unless other trusts were constituted before A.’s death.</p> <p>Held, further, that no other trusts were constituted by communication to B. and acceptance by him.</p> <p>Held, further, that the trunk memorandum was testamentary in nature, and ineffectual to constitute a trust.</p> <p>Held, further, that B. held the trust property as trustee for the administrator of A.</p>

<p>Public Statutes R. I. cap. 189, § 2, charges the personalty of a decedent with his debts, etc., and, in case of insufficient personalty, his realty, “ unless the deceased has otherwise directed by his last will.”</p> <p>Held, that the word “ directed” did not necessarily mean an express direction in terms. It is sufficient if the direction is clearly implied in the whole testamentary instrument.</p> <p>Held, further, that the statute is merely declaratory of the common law.</p> <p>A testator having considerable debts gave to his wife all his personalty, “for her own absolute use and disposal forever.” He then devised his realty in trust, with full power in the trustee to lease, mortgage, and sell. He then provided that if his wife should die before him, “ then the personal estate given to her . . . shall, after the payment of my debts, . . . be paid over . . . to the trustees ” of the above-named trust.</p> <p>Held, that, as between the widow and the devisees under the will, the personalty should be exonerated from the payment of the testator’s debts.</p>

Assumpsit. Heard by tbe court, jury trial being waived. The former proceedings in this case are reported in 16 E. I. 658.

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

Bill in Equity for instructions. Caleb Eiske, of Scituate, by his will, dated March 12,1881, and proved November 7, 1834, created a trust as follows : •— “ Item.

<p>A father made, as trustee for his minor son, a deposit in a savings bank. The son after becoming of age demanded the deposit of his father, who replied: u I never want to hear of this matter again. I made the change of investment supposing it was for the best, but it was not. ... If you are not satisfied and want the $500, take it and go; but if you remain here, I do not want to hear of it again.” The son after this remained at home and was supported by his father.</p> <p>In an action for the $500 brought by the son against the father’s executors,</p> <p>Held, that the above facts showed a complete accord and satisfaction as to the $500.</p> <p>A father transferred into his own name, as trustee for his minor son, certain stock, and subsequently drew and used the dividends. The son remained a member of his father’s family, was supported by the father both before and after majority, and knew nothing of the transfer of the stock until the father’s death.</p> <p>In an action for the amount of the dividends brought by the son against the father’s executor,</p> <p>Held, that he could recover.</p> <p>Held, further, that the executors were not entitled to set off the amounts spent by the father on the son after the stock was transferred.</p> <p>Held, further, that the son could recover interest on the dividends only from the date of his writ.</p> <p>When a child after majority remains as before it with his father, supported by the father, and a member of the father’s family, the child has no right of action against the parent for services, nor the parent against the child for support.</p>

Case stated for an opinion of the court under Pub. Stat. E. I. cap. 192, § 23. Amanda S. Miller of Pawtucket died April 27, A. D. 1890, leaving the following will, which was duly proved. The parties in interest presented this petition to construe this will.

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

<p>Testamentary gift in trust to pay net income, One half to testator’s wife, A., and the other one half to testator’s two sons, D. and L., in equal shares during the life of A. On the death of A. the whole trust property to be conveyed equally to the sons, D. and L., and their respective heirs, discharged from the trusts.</p> <p>A., D;, and L. survived the testator. Subsequently D. died while A. was still living.</p> <p>Held, that D. and L. took vested remainders in fee in the trust estate.</p> <p>Held, further, that the gift of one fourth of the income to be paid to D. during the life of A. vested in D. on the testator’s death, and, on the death'of D. intestate, passed to his personal representatives.</p> <p>The trust estate was partly personalty subject to the jurisdiction of this court, partly realty situated in New York. The court confined its decision to the income of the personalty, and expressed no opinion as to the income of the realty.</p>

<p>Petition for a writ of certiorari to review the proceedings whereby the respondent, as mayor of the city of Pawtucket, removed the petitioner from his office of license commissioner.</p>

<p>That for many years mills have "been maintained in connection with a dam furnishes no presumption that the dam was built under the mill act.</p>

<p>Appeal from tbe Probate Court of West Greenwich. On motion to dismiss the appeal.</p>

<p>Boarding or attempting to board a moving railroad train is an improper and dangerous act. The railroad company’s invitation to its passengers to board its train is withdrawn the moment the train begins to move.</p> <p>A., without giving notice of his intention to return, left a train on the east track to check his baggage in the station west of the tracks. On coming out of the station his train had started, and a train on the west track was moving up in plain sight to the station. This train had waited for the train on the east track to start, before it moved up in the opposite direction on the west track to the station. A. ran across the west track in front of the train to board the moving train on the east track, and by one of the trains was fatally injured.</p> <p>Held, that as a matter of law A. was guilty of contributory negligence.</p>

<p>Trespass on the Case for personal injuries caused by the negligence of the employees of the city of Providence. On demurrer to the declaration.</p>

<p>Bill in Equity for instructions and for tbe administration of a trust.</p>

<p>One who has rendered personal service, under an entire contract which the act o£ God has prevented him from fully performing, may on implied assumpsit recover the fair value of his services rendered.</p> <p>In such a case he may recover on the common counts in indebitatus assumpsit without declaring in a special count of quantum meruit.</p>

Dependant’s petition for a new trial. This was an action of trover brought by the plaintiff, who was sole surviving partner of a copartnership known as James A. Ca-pron & Co., against the defendant for the conversion, after Capron’s death, of certain personalty of the firm. The defendant was executrix and sole legatee of Capron.

<p>Exceptions to the Court of Common Pleas.</p> <p>This action was trespass on the case brought in the Court of Common Pleas to recover damages for the illegal expulsion of the plaintiff by and from the defendant society.</p> <p>The declaration is as follows: —</p> <p>“ Paul Lavalle, of Woonsocket, in the County of Providence and State of Rhode Island, complains of the Société Saint Jean Baptiste de Woonsocket, R. I., a corporation duly created and existing by and under the laws of the State of Rhode Island, summoned by the sheriff in an action of trespass on the case, for that the said defendant was originally created a corporation by an act of the General Assembly of the State of Rhode Island on, to wit, May 27, A. D. 1869, by and under the corporate name of St. John Baptist Society of Woonsocket, for the purposes of securing to the memhers thereof mutual aid, and of promoting benevolent objects; and said corporation was thereby authorized to take, hold, and enjoy property not exceeding ten thousand dollars, and to do all things usual and proper to be done by mutual aid and benevolent societies of like character; that said corporation was duly organized under said act of incorporation, and that thereafterwards, by an act of the General Assembly on, to wit, January 28, 1885, the name of said corporation was changed to “ Société Saint Jean Baptiste de Woonsocket, R. I.,” and the said corporation was further empowered by said last-named act to take, hold, transmit, and convey real and personal estate to an amount not exceeding twenty-five thousand dollars; that said defendant corporation, in pursuance of the objects of its incorporation as aforesaid, has provided through its by-laws, which were in force at, and for many years prior to, the time of the committing the grievance hereinafter stated, means for the social and fraternal union, and for the intellectual and social improvement, of its members, and for the raising by assessments upon its members a relief fund, to be used for the benefit of its sick members in good standing therein, and to be paid to them in a stated sum per week during sickness, and also a fund for the benefit of, and to be paid to, the heirs or devisees of any deceased member who was in good standing therein at the time of his death; that, at the time of the committing the grievance hereinafter mentioned, said corporation was the owner and possessor of property contributed by its members, and otherwise acquired; that the plaintiff was duly admitted to membership in said corporation on or about the day of A. D. 1870,</p> <p>and thereby became entitled to all the rights and privileges of a member of the same, and the plaintiff continued to be, and was at the time of the committing of the grievance hereinafter mentioned, a member of said corporation, and in good standing therein, and had, during the whole of said period of membership, performed all his duties and obligations as a faithful member of said corporation; and that, during said period of membership, and in accordance and in compliance with the by-laws of said corporation, he paid into its treasury all his dues and assessments as required by the by-laws of said corporation, amounting in all, to wit, to the sum of one hundred and fifty-three dollars.</p> <p>“Yet the said defendant, well knowing the premises, but contriving and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said plaintiff in respect of his rights and interests as a member of said defendant corporation, and in the property thereof, and in respect of his good name and reputation in the community, and among his neighbors and friends therein, on, to wit, the eighteenth day of March, A. D. 1890, at Woonsocket aforesaid, by a vote thereof of the requisite majority, at a regular meeting of said corporation held at said Woonsocket on said last-named day, a quorum being present, and in the absence of the plaintiff, unlawfully, unjustly, and wrongfully expelled the plaintiff from membership in said defendant corporation, and caused his name to be stricken from the list of members thereof, without lawful cause, and without notice to the plaintiff of any charge or charges against him, and without notice to him of any trial or" contemplated trial, or examination of any charge or charges against him, and without affording to the plaintiff any opportunity whatever to be heard in his own defence against any charge or charges against him, or in opposition to his said expulsion from membership in said corporation as aforesaid ; and the plaintiff avers that at the time of his said unlawful and wrongful expulsion from membership in said corporation as aforesaid, he had no notice nor knowledge thereof, and had no notice nor knowledge of any charge or charges against him, nor of any trial of any charge or charges against him; that the defendant corporation did not give nor cause to be given to him any opportunity to be heard in his defence and in opposition to his said expulsion from membership therein as aforesaid, whereby the plaintiff has been wholly deprived and has wholly lost the rights, privileges, and benefits theretofore rightfully belonging to him as a member of said corporation in good standing therein as aforesaid, and which otherwise, and but for said unlawful and wrongful expulsion, would have accrued to him, the said plaintiff, by reason of his said membership, and of his right and interest in the property of said corporation as a member thereof, and has also thereby been greatly injured and damaged in his good name, and reputation in the community, and among his friends therein and has thereby suffered great public disgrace, and endured great mental distress, to the plaintiff’s damage two thousand dollars, as laid in his writ, dated the fourteenth day of April, a. d. 1890.</p> <p>“ Wherefore he sues by his attorneys.”</p> <p>To this declaration the defendant demurred. The demurrer was sustained by the Court of Common Pleas, and the plaintiff excepted.</p>

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

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

<p>When no statute defines felony, and no statute prescribes a form of indictment, the word u feloniously ” should be used in indictments charging offences which were felonies at common law, but in other indictments the word is not necessary, and if used may be considered surplusage.</p> <p>Forgery at common law was a misdemeanor. Hence in Rhode Island an indictment for forgery need not contain the word “ feloniously.”</p> <p>Semble, The essence of the offence, forgery, being the “intent to defraud,” that for this reason, also, an indictment for forgery need not in Rfiode Island contain the word “feloniously.”</p> <p>When several cognate acts are by statute forbidden disjunctively, an indictment may ordinarily charge them all conjunctively in a single count.</p> <p>Hence, when a count in an indictment charged the defendant with having in his custody a forged order, and also with uttering and publishing it as true,</p> <p>Held, that the count under Pub. Stat. R. I. cap. 243, '§ 1, was not bad for duplicity.</p> <p>But when a count in an indictment for forgery failed to give the name of the person to whom the forged instrument was given, and also failed to state that it was given to some person to the grand jurors unknown,</p> <p>Held, that the count was had from insufficient description.</p> <p>When an indictment for forgery charged the uttering of a forged order on the A. Co., which was a chartered corporation, and the prosecution failed at the trial to prove an organization of the A. Co. under its charter,</p> <p>Held, that a verdict- of guilty was against the evidence, and should he set aside.</p>

<p>A brakeman was injured by a blow from a railroad telltale, which was sufficiently raised above ordinary freight ears, but not sufficiently raised above some of the ears used by the railroad company.</p> <p>Held, that maintaining a telltale of insufficient height or undue rigidity was a breach of the company’s duty to provide safe appliances for its employees.</p> <p>Held, further, that the risk of injury from such a telltale was not one of the ordinary risks of his employment assumed by the brakeman.</p> <p>Held, further, no evidence showing that the brakeman knew the condition of the telltale in question, that the defendant company was liable for the injury.</p> <p>While a jury was deliberating, the presiding judge, wishing to leave at 5.45 p. M., directed the officer in charge to inquire if there was prospect of an early agreement. The foreman said he would knock by 5.45 and let the court know whether the jury had agreed, whereupon the officer replied, “ If you do not, you can take your own time,” adding, in joke, “ all night, if necessary.”</p> <p>Held, that the conduct of the officer was blameworthy, but did not furnish reason for setting aside a verdict in favor of the plaintiff.</p>

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

<p>E., a non-resident of Rhode Island, while in attendance on this court as a party defendant to a ease in order for trial, was arrested on a writ issued against him in another action.</p> <p>Held, that he was privileged from arrest, and that the arrest must be discharged.</p> <p>Held, further, that the action begun by the service of the writ of arrest should not abate.</p> <p>Held, further, that his discharge from arrest was properly made on motion.</p>

<p>Bill of Interpleader.</p>

<p>At the suggestion of the debtor, indorsements were made on two promissory notes, “ Received on the within for renewal $1.” The debtor saw the creditor write the indorsement on one note, and went away while the indorsement was writing on the other. No money was in fact paid.</p> <p>Held, that the indorsements imported new promises sufficient to avoid the statute of limitations.</p> <p>Held, further, that the transaction amounted in law to a payment of $1 on each note.</p>

<p>Bill oe Interpleader.</p>

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

<p>Petition for a writ of mandamus. On return to the alternative writ of mandamus.</p>

<p>In debt on a bond conditioned upon the faithful performance of duty as agent, and payment of all moneys receiyed, etc., breaches were charged that the obligor had not faithfully performed duty, and had not paid over all moneys received.</p> <p>Held, that a plea of non est damnificatus was improper, such a plea applying only to an indemnity bond.</p> <p>The defendant also pleaded, in an equitable plea under the statute, breach of contract on the part of the plaintiff, and refusals on the plaintiff’s part to account.</p> <p>Held, that a demurrer to this plea must be sustained. Affirmative relief cannot be given under it. Hawkins v. Baker, 14 R. 1.139, 142. If an account is sought, the account must be had on bill in equity, or in an action of account. If damages are sought, they are unliquidated and not ascertainable by calculation, and therefore not matters of set-off.</p> <p>Held, further, that no defence was available under the equitable plea which was not open to the defendant under a prior plea of performance.</p>

<p>A party to a bill in equity presenting an account before a master in chancery is a witness called by his opponent, and is not within the prohibition of the proviso to Pub. Stat. R. I. cap. 214, § 33.</p>

<p>Residuary testamentary disposition as follows: —</p> <p>“ I give and bequeath unto Robert Knight, of said Providence, all the residue and remainder of my estate in trust, to be managed by him to the best advantage, and to appropriate the income of the same for the support and maintenance of the aforenamed Julia Ann Maker for and during her natural life ; and if the income thereof is not sufficient to give her a comfortable support and maintenance, then to use the principal for that purpose, to be at his discretion to do as he may think proper and right in regard to the matter ; and if there should be anything remaining at the decease of said Julia Ann Maker, then I give and bequeath such residue and remainder to the aforenamed Mary S. Dean, her heirs and assigns forever, provided the amount does not exceed three thousand dollars ; and all over and above said three thousand dollars I give and bequeath to the children of my nephews and nieces aforenamed in equal proportions, including the children of said Julia Ann Maker and the children of said Mary Field, deceased; and if any of said children should die, then the proportion of such as shall die to go to their surviving brothers and sisters in equal proportions to each.”</p> <p>Held, that the legacy of $3,000 to Mary S. Dean vested on the testator’s death, payment only being deferred till the death of Julia Ann Maker.</p> <p>Mary S. Dean died during the lifetime of Julia Ann Maker.</p> <p>Held, that the legacy of $3,000 to Mary S. Dean should be paid to her administrator, with interest from the death of Julia Ann Maker. •</p> <p>Mary S. Dean and her husband being indebted to the testator’s estate for money borrowed and used in purchasing a farm conveyed to Mary S. Dean,</p> <p>Held, that the amount of this indebtedness should be deducted from the legacy of $3,000 to Mary S. Dean.</p> <p>Of the words in the residuary clause, “I give and bequeath to the children of my nephews and nieces aforenamed,”</p> <p>Held, that the word “aforenamed” referred to “nephews and nieces,” and not to “ children.”</p> <p>Held, further, that Julia Ann Maker in her own right, if living, would not be, and that any the issue or representative of such of the children of the testator’s nephews and nieces as die in the lifetime of Julia Ann Maker is not, entitled to any part of the trust estate, except that the legal representatives of the last surviving child of Mary Field, and of the last surviving child of Calvin Macomber, a nephew, are entitled to share.</p> <p>Specific instructions for the distribution of the trust fund given, and the reasons for them explained.</p>

<p>Assumpsit. On motion to charge the garnishees.</p>

<p>Bill in Equity to annul conveyances of realty and to compel an administratrix to inventory certain personalty. On demurrer to the bill.</p>

Plaintiff’s petition for a new trial. This action was trespass quare clausum fregit for breaking and entering the plaintiff’s close and taking therefrom a horse. It was brought in the District Court of the Sixth Judicial District, and taken by the defendant’s appeal to the Court of Common Pleas. After verdict for the defendant in the latter court the plaintiff filed this petition.

<p>In Pub. Stat. R. I. cap. 189, § 8, and cap. 205, § 9, which provide that no action shall be brought against any executor or administrator within one year after his appointment, the word “action” is used technically for action at law, and does not mean suit in equity.</p>

<p>A Probate Court in 1890 appointed D. guardian of a ward’s estate, and in 1891 guardian of tbe same ward’s person and estate.</p> <p>Held, that the second appointment was valid only as an appointment of a guardian of the person.</p> <p>In 1892 assumpsit was brought against the ward, and the writ was served by attachment and by summons.</p> <p>Held, that the attachment was void, but that the plaintiff could prosecute the action, any judgment to be satisfied out of what property the ward might hereafter acquire ; there being no surplus in the guardian’s hands after paying the debts exhibited to him within the statutory six months from notice given of his appointment.</p>

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

Bill in Equitt for instructions brought by the trustees under the will of Rufus Greene. The will is printed at length, 14 R. I. 181 s(/., in the report of a former suit for construction and instructions.

<p>A bill in equity to ascertain and apportion rights in the water of a pond and stream described the boundary line between complainant and respondent as the middle line of the pond and stream as it formerly was before the area of the water had been increased by raising the dam of the pond. This raising was done by a predecessor in title of the respondent while he owned the land on one side, and held the land on the other subject to a mortgage to the complainant.</p> <p>Held, on demurrer, that the bill could be maintained, was not multifarious, and did not require a prior suit at law to determine the boundary.</p> <p>Held, further, that raising the dam could not affect the mortgagee’s title, nor subject the flowed land to the provisions of the mill act. The mill act operates between strangers, not between those holding in privity of title.</p>

<p>^owns ^eir corporate capacity have, Tinder Pub. Stat. P. I. cap. 64, no power to lay out, alter, or establish highways, and no power to control the town council in doing these things.</p> <p>In laying out, altering, or establishing highways under Pub. Stat. It. I. cap. 64, town councils are public officers, and not servants of the town. Hence towns are not liable for the unauthorized acts of the town councils in these matters.</p>

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

<p>Bill in Equity for specific performance. Heard on bill, answer, and an agreed statement of facts.</p>

<p>In assumpsit on a policy of fire insurance, the defendant pleaded a condition of the policy that the policy should he void in ease the insured had, or should afterwards have, other insurance on the property without the assent of the defendant in writing or in print, and averred that there was, without the defendant’s assent, other insurance on said property in the A. Co. when the defendant’s policy issued, whereby the defendant’s policy became void. To this the plaintiff replied:</p> <p>First, that the defendant had notice of the prior insurance when it made its contract;</p> <p>Second, that there was no other insurance at the time of the loss;</p> <p>Third, that the policy in the A. Co. had the same condition, and became void on the issuance of the defendant’s policy;</p> <p>Fourth, that the plaintiff, before the defendant issued its policy, informed the agent of the defendant that the property was already insured in the A. Co.</p> <p>On demurrers to these replications,</p> <p>Held, that the first replication was good, and that the second, third, and fourth were bad.</p> <p>Greene v. Equitable Ins. Co. 11 R. I. 43, and Wilson v. Conway Ins. Co. 4 R. I. 141, affirmed.</p>

<p>Trespass on the Case. On demurrer to a count in the declaration.</p>

<p>The opinion heretofore given in this case, 16 B. I. 458, affirmed.</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>Appellee’s petition for a new trial.</p>

<p>Bill in Equity to compel the removal of certain obstructions, and for an injunction. On demurrer to the bill.</p>

<p>Pub. Stat. R. I. cap. 204, § 28, provides that the representative of a deceased joint debtor may be charged as if the debt was several, provided “the plaintiff shall first pursue the surviving debtor to final judgment and execution.”</p> <p>Held, under this statute, that neither the insolvency of the surviving debtors, nor the fact that the debtor was a firm, in which the plaintiff’s husband was a partner, excused the performance of the above proviso requiring judgment and execution against the surviving debtors.</p> <p>Hence a bill in equity to enforce payment from the estates of deceased partners, without first obtaining judgment and execution against the surviving ones, cannot be maintained.</p>

<p>Petition for a jury trial to assess damages in favor of 'the petitioner arising from the condemnation by the city of Providence of the “ Proprietors’ Burial Ground,” so called, for a public park.</p> <p>John Field, in 1791, executed the following deed, which is recorded in book 22, page 481, in the registry of deeds of the city of Providence: —</p> <p>To all People to whom these Presents shall come:</p> <p>I, John Field of Providence in the county of Providence in the state of Rhode Island & Providence Plantations yeoman Send Greeting</p> <p>Know ye — That I the said John Field for & in consideration of the sum of one hundred & twenty Spanish milled silver dollars unto me in hand before the ensealing hereof well and truly paid by William Barton Esq’r Othniel Tripp cordwainer James Graves gentleman William Richmond hatter Ralph Merry cordwainer Daniel Box gentleman Levi Ham huckster Pardon Mason a mason Caleb King mason Calvin Dean tanner John P. Jones merch’t Zebediah Farnum gentleman Richard Guild butcher Ward Co wen saddler Samuel & Charles Sampson gentlemen William Rhodes gentleman Daniel Tourtellot Esq’r Benjamin Tallman Esq’r James Aborn gentleman William Lee cabinet maker Jonathan W. Coy cabinet maker Asa Franklin house wright David Martin house wright John Carpenter cabinet maker Amos Atwell Esq’r Nathan Warner barber Joseph & Benjamin Eddy ship wrights Zephaniah Andrews Esq’r Samuel Ingraham blacksmith Isaac Pitman merch’t William Peckham merch’t James Peckham house wright John Keene blacksmith Francis McGuire taylor Peleg Hull gentleman William-Paul cordwainer Ezek Eddy boat builder Charles Andrews mason Grinnal & Taylor painters in company & Daniel Jackson brass founder all of said Providence in s’d county of Providence the receipt whereof I do hereby acknowledge & myself therewith fully satisfied contented & paid & thereof & of every part & parcel thereof do exonerate acquit and discharge them their heirs executors & administrators forever by these presents have given granted bargained sold aliened enfeoffed conveyed and confirmed and by these presents do freely fully and absolutely give grant bargain sell aliene enfeoff convey & confirm unto them the said William Barton Othniel Tripp James Graves William Richmond Ralph Merry Daniel Box Levi Ham Pardon Mason Caleb King Calvin Dean John P. Jones Zebediah Farnum Richard Guild Ward Co wen Samuel & Charles Sampson William Rhodes Daniel Tourtellot Benjamin Tallman James Aborn William Lee Jonathan W. Coy Asa Franklin David Martin John Carpenter Amos Atwell Nathan Warner Joseph and Benjamin Eddy Zephaniah Andrews Samuel Ingraham Isaac Pitman William Peckham James Peckham John Keen Francis McGuire Peleg Hull William Paul Ezek Eddy Charles Andrews Grinnal & Taylor and Daniel Jackson their heirs and assigns forever for the sole purpose of a burying ground.</p> <p>A certain tract or parcel of land situate lying & being in s’d Providence on the west side of the river and adjoining on the northerly side of Mr. Snow’s society’s new burying ground & is butted bounded and described as follows, viz.: Beginning at the north easterly corner of said society’s burying ground & thence runs on a straight line northerly in the same direction with the easterly line of said Society’s burying ground sixteen rods & eighty five hundredths of a rod to a stake and thence turning a square corner runs westerly on a straight line parallel with the northerly line of said society’s burying ground nineteen rods to a stake & thence turning a square corner runs southerly on a straight line parallel with the first described line sixteen rods & eighty five hundredths of a rod to a stake on the northerly line of said society’s burying ground and thence turning a square corner runs on a straight line easterly nineteen rods to the first mentioned corner & is bounded northerly and easterly on other lands of the grantor southerly on said Society’s burying ground & westerly on a drift way of two rods wide leading from Pawtuxet Street so called to the gate of said Society’s burying ground together with the full liberty of passing & repassing to & from said granted & demised premises at all times through said drift way & it is agreed by and between the said parties that said grantees their heirs and assigns shall at their own proper cost and expense maintain a good & lawful fence on all parts of said granted and demised premises which are adjoining on other lands of the grantor forever and which said granted & demised premises are granted & demised in the following manner, viz.: All the several gangways & Alleys which are laid out through & over the several parts of said tract of land as described in the plat thereof hereunto annexed are hereby granted and demised to the said grantees equally as tenants in common and for the mutual benefit & accommodation of all the other parts of said tract of land & the strip of land on the northerly side of s’d tract of land assigned & set off for the purpose of burying strangers as in and by said annexed plat is described & marked is likewise hereby granted and demised to the said grantees equally as tenants in common for the sole purpose of burying strangers and others who may not be otherwise provided for under such regulations as said grantees may see fit to establish & the residue of said tract of land being divided and set off into forty equal parts or small lots of fifty five feet in length & twenty five feet in width as described & numbered on the said annexed plat is granted and demised in the following manner to the said grantees their several proportions in severalty that is to say to each and every of said grantees one of said small lots & such small lot & number as is marked with his name thereon according to the said annexed plat to be by him held in severalty by metes and bounds saving where the names of any two grantees are marked on the same small lot then such small lot to berheld by such two grantees in equal shares1</p> <p>To have and to hold the said granted & bargained premises with all the appurtenances privileges & commodities to the same belonging or in any wise appertaining to them the s’d grantees their respective heirs and assigns forever in manner as aforesaid to their and their only proper use benefit and behoof forever</p> <p>And I the said John Field for myself my heirs executors & administrators do covenant promise and grant to & with the said grantees their heirs & assigns that at & before the ensealing hereof I am the true sole and lawful owner of the herein bargained premises & am lawfully seized and possessed of the same in my own right as a good perfect and absolute estate of inheritance in fee simple & have in myself good right full power & lawful authority to grant bargain sell convey & confirm the said bargained premises in manner as aforesaid and that the said grantees their heirs & assigns in manner as aforesaid shall & may from time to time and at all times forever hereafter by force and virtue, of these presents lawfully peaceably and quietly have hold use occupy possess & enjoy the said demised & bargained premises with the appurtenances free and clear and freely and clearly acquitted exonerated & discharged of & from all & all manner of former or other gifts grants bargains sales leases mortgages wills entails jointures dowries judgments executions & incumbrances of what name or nature so ever that might in any manner or degree obstruct or make void this present deed</p> <p>Furthermore I the said John Field for myself and my heirs executors & administrators do covenant and engage the above demised premises to them the said grantees their heirs & assigns against the lawful claims or demands of any person or persons whatsoever forever to warrant secure and defend by these presents.</p> <p>And I Lydia Field wife of the said John Field for & in consideration of the above & aforementioned sum of money unto my husband paid as aforesaid do hereby remise release yield up & forever quitclaim unto them the said grantees their heirs and assigns forever to their and their only proper use benefit & behoof forever in manner as aforesaid all my right of dower and power of thirds in and to the said granted & demised premises.</p> <p>In testimony whereof we the said John Field & Lydia Field have hereunto set our hands and seals this thirteenth day of July in the year of our Lord one thousand seven hundred & ninety one July 80th A. D. 1791</p> <p>Signed sealed & delivered in presence of</p> <p>Daniel Field</p> <p>Lydia Bowler</p> <p>John Field (l. s.)</p> <p>Lydia Field (l. s.)</p> <p>Providence Sc.</p> <p>In Providence this thirtieth day of January A. D. 1792 personally appeared the aforenamed John Field & acknowledged the above and foregoing written instrument by him signed and sealed to be his free & voluntary act & deed Before me</p> <p>Benj’n Turpin,</p> <p>Jus’t Peace.</p> <p>Recorded July 23 A. D. 1792</p> <p>Witness Geo. Tillinghast</p> <p>Town Clk.</p> <p>Public Laws R. I. cap. 431, of May 2, 1884, authorized the city of Providence to take parts of this land for park purposes, which the city did by resolution of the City Council, No. 236, approved June 2, 1884, and the petitioner, one of the heirs of John Field, filed this petition.</p>

<p>State of Rhode Island, Executive Department, Providence, September 23, 1890.</p> <p>To the Honorable Judges of the Supreme Court: —</p> <p>I have the honor, in accordance with the provisions of section 3 of article 10 of the Constitution, to request your opinion on the following questions of law, namely: —</p> <p>1. Under the provisions of article 7 of the amendments of the Constitution, is it lawful for the board of canvassers in any town or city, when canvassing the voting list within four days of the day of election of any civil officer other than a member of the city council, to strike from such list the names of personal .property voters whose taxes are due but unpaid ?</p> <p>2. Is it lawful for the board of canvassers of any city, when canvassing the voting list within four days of the election of municipal officers, to transfer the name of any personal property voter whose tax is due but unpaid to the class of registry voters, thereby leaving him qualified to vote in the city election of all civil officers except in the election of the city council ?</p> <p>The above queries have been propounded by a member of our General Assembly, and I am informed that diverse practice has obtained in different towns in this respect; and to correct the wrong and establish the right, I herewith respectfully submit these questions for your determination. In view of the approaching election, as early an answer as is consistently convenient is requested. John W. Davis, Governor.</p>

State of Rhode Island, Executive Department, October 21, 1890.

State of Ehode Island, Executive Department, Providence, September 26, 1890. To the Honorable Judges of the Supreme Court: — I have the honor to submit for your opinion the following questions of law: — By an Act of the Congress of the United States approved July 2, 1882, cap. 130 of the Statutes of the United States, vol. 13, provision was made for the establishment in this State of a college for the benefit of agriculture and the mechanic arts.

State oe Rhode Island, Executive Department, Providence, January 12,1891.

Adopted January 30, 1891. Whereas, the Constitution of this State, article 4, section 2, determines the method of the enactment of laws by the General Assembly; and, Whereas, sections 5 and 6 of chapter xi. of the Public Statutes provide for the ordering of a new election for Representative in Congress in certain cases; and, Whereas, the General Assembly have, by concurrent vote of the two houses, adopted a joint rule and order, being Rule 23 of the Joint Rules and Orders of…

<p>Pub. Laws R. I. cap. 828, of Mareb 28, A. D. 1890, does not repeal the proviso in Pub. Laws R. I. cap. 731, § 21, of March 29, A. D. 1889. Cap. 828 is in addition to cap. 731, provides for second elections, arid so far amends §§ 6, 7, of cap. 731.</p>

<p>Appeal from the action of the school committee of the town of Lincoln, submitted by the Commissioner of Public Schools to one of the justices of the Supreme Court, under Pub. Stat. ft. I. cap. 58, § 2.</p>