Volume 18 — Rhode Island Reports

<p>Debt on Judgment brought under Pub. Stat. R. I. cap. loo, §22. Oil defendants’ demurrer to the declaration and plaintiff’s demurrer to defendants’ pleas in abatement and in bar.</p>

<p>Under Pub. Laws R. I. cap. 816, § 3, of August 1, 1889. which provides that no license to sell liquors shall he granted if “the.owners or occupants of the greater part of the land within two hundred feet ” of the building or place of proposed sale shall .file their objections to the grant of such license:</p> <p>Held, sufficient for the objectors to allege that “ they were the owners of the greater part of the property within two hundred feet,” &c.</p> <p>One of the objectors was a railroad company and its objection was signed by A. B. Supt. It appeared in evidence that the superintendent signed by direction of the general manager of the road, and that the latter had authority to direct such signature by the superintendent.</p> <p>Held, that the remonstrance was properly signed.</p> <p>The record of the license commissioners brought up on certiorari showed the objection but no action in regard to it except that it was disregarded and the license granted.</p> <p>Held, that on certiorari this court would receive and examine evidence as to the jurisdiction of the inferior tribunal.</p> <p>Held, further, that the objection and the allegations in it were jurisdictional facts which could be decided without entering on the merits of the petition for license.</p> <p>Held, further, that the license commissioners had no jurisdiction to grant the license and that the grant should be quashed.</p>

<p>Civil process cannot be served by arrest on one who is already imprisoned under a sentence of the law.</p> <p>The mere fact that civil process has issued in this State is no reason why one arrested on executive warrant should not be surrendered for extradition.</p> <p>A convict was imprisoned in jail under a sentence expiring March 27. He was entered in the jail hooks March 26 as arrested on civil process and as committed for want of hail. May 12 he gave a hail bond and claimed his discharge. March 27, after the expiration of his sentence, he was arrested at the jail on an executive warrant for extradition to the State of New York, pursuant to a requisition from the governor of that State.</p> <p>On petition for Habeas Corpus:</p> <p>Held, that the arrest on civil process was void and that the petitioner was properly held on the executive warrant for extradition.</p>

<p>Tlie B. manufacturing company was chartered by an act of incorporation which by its terms was subject to the provisions of Revised Statutes R. I. cap. 125. One of these was, “All acts of incorporation hereafter granted may be amended or repealed at the will of the General Assembly.” Subsequently a general act was passed requiring' manufacturing corporations to pay their employes weekly.</p> <p>Ilelcl, that the last named act must be construed as an amendment of the B. company’s charter, that the act was not obnoxious to constitutional objections, and that the B. company was subject to the provisions of the act.</p> <p>In criminal proceedings under a public statute a District Court adjudged the defendant probably guilty, and constitutional questions having been raised as to the validity of the statute certified the constitutional questions to this court for decision under Pub. Stat. R. I. cap. 220, §§ 1-9.</p> <p>Held, that the action of the District Court was proper and that the constitutional questions were properly before this court.</p>

<p>An assessment list for town taxes was made up as follows:</p> <p> </p> <p>These lands of the city of Pawtucket lay in separate tracts.</p> <p>Held, that the assessment was void. It is not in accordance with Pub. Stat. R. 1. cap. 42, § 4, and is indefinite.</p> <p>Parol evidence cannot be used to supplement an assessment description too indefinite for the identification of the land assessed.</p>

<p>Replevin. On motion to dismiss.</p>

<p>Defendant’s petition for a new trial.</p> <p>This action was assumpsit alleging breach of a promise to marry, brought and tried in the Court of Common Pleas.</p>

<p>In an action for wages brouglit by a minor the defendant set up an agreement between the plaintiff, his brother in law with whom, he boarded, and the defendant, that the whole wages of the plaintiff should be used in paying for necessary supplies for the family of' the brother in law. The plaintiff denied this agreement.</p> <p>Held, that the jury should determine whether the agreement was made and whether it covered more than the reasonable necessaries for which alone the plaintiff minor could be liable when furnished to him or for his use.</p>

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

<p>A legacy, -wlien no time is specified for its payment, begins to carry interest one year from tlie death of the testator, and carries interest until paid.</p> <p>The application of this rule is not modified by the facts that the legatee died within the year, that an administrator on the legatee’s estate was not appointed until after the expiration of the year, and that within the year the person afterwards appointed administrator of the legatee’s estate claimed a personal interest in the legacy and notified the executor to pay it to no one else.</p>

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

<p>A count in ejectment is insufficient if it does not allege a wrongful detainer by tbe defendant.</p> <p>A statute annuls a tenant’s title for certain illegal uses of bis tenement. Tbe illegal uses were set forth in a count in ejectment but no wrongful detainer was alleged.</p> <p>Held, that the defendant was not liable in ejectment without wrongful detainer after demand for possession. Such detainer must therefore be averred.</p>

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

Bill in Equity to avoid a trust and for an account. On bill, answers and proof. After the opinion in this case, printed 11 R. I. 306, 316, the respondents answered and the case came on for hearing on bill, answers and proof.

Trespass on the case foT false imprisonment. On demurrer to- the declaration and also on demurrer to a plea in abatement.

<p>A pica puis darrein continuance which extends to tile plaintiff's entire cause of action waives all pleas previously filed.</p> <p>But when a pleapwis da,rrein continuance sets up only a partial defence or affects only tire remedy it does not waive pleas previously filed.</p> <p>A pleas pui darrein continuance set up the pendency of a commission of insolvency on a decedent’s estate. The plea was held bad because more than two years had elapsed between the grant of letters of administration and the commencement of the action. Pub. Slat. R. I. cap. 186, § 20.</p> <p>Tlcld, that the plea affected only the remedy and did not waive pleas previously filed.</p>

<p>Appeal from an order of a Town Council. On motion to dismiss the appeal.</p>

<p>Findings of fact are not reviewable on exceptions.</p> <p>That tlie assignee of a contract permitted tlie assignor to receive payments undei it is not conclusive evidence of a legal fraud on creditors of tlie assignor. At most, if unexplained, it is something from which fraud may be inferred.</p> <p>In Pub. Laws R. I. cap. 458, of May 29, 1884, relative to assignments of future earning's, the word “earnings” means “wages” earned under a contract of hiring. Hence, the chapter does not apply to the assignment of a contract to build a house.</p> <p>The assignee of such a contract may intervene in a garnishment upon the persons for whom the house was built and claim the garnished funds, although he has previously in the name of the’ defendant assignor filed a petition for a mechanic’s lien.</p> <p>Notic'e of an assignment to the garnishee in time to enable him to disclose it in his answer is enough to sustain the assignment against the garnishment. Notice to the debtor is required only for his protection.</p>

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

<p>Assumpsit. On demurrer to the replication.</p> <p>This action was assumpsit for violation of a contract to build a house, the plaintiffs alleging that the house was badly constructed. The defendant pleaded that before this action he had filed a petition for a mechanic's lien to obtain payment from the plaintiffs’ interest in the house, which was carried on to a final decree in equity and settled all questions of payments and contract performance. The plaintiffs replied that in the proceedings under the lien petition they made no claim for the defects of the defendant’s work and for their damages caused thereby, which were therefore not taken into account in the lien decrees. The defendant demurred to this replication.</p>

Plaintiffs’ petition for a new trial. This action was assumpsit to recover the price of plumber’s work done on a house owned by the defendants. At the time the work.was ordered and done Mrs. Lloyd was a minor and unmarried, and owned one-half the house by inheritance from her father. The work was ordered by her father’s widow, who was the other defendant and who did not answer the case.

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

<p>Indictment for larceny. On motion in arrest of judgment.</p>

<p>A water supply pipe passed through two stores, then through the plaintiff’s store and then up into the defendant’s store. The plaintiff had several times opened the water cocks in his store to flood his basins and had left the cocks open during the night. While these cocks were open the water did not reach the defendant’s store. The defendant left his basin faucet open all night and the plaintiff’s store was flooded.</p> <p>Held, that the plaintiff was not precluded from recovering damages.</p> <p>After the accident an examination of the stock in the plaintiff’s store was made and a memorandum taken of the articles damaged. No separate account of the sale of the damaged goods was kept and the general sale books were not accessible.</p> <p>Held,, that evidence from the memorandum was admissible as no better evidence could be produced.</p>

<p>Petition for a writ of Mandamus. On demurrer to the petition.</p>

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

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

<p>Statutory proceedings to lay out highways. On motion to dismiss the proceedings.</p>

<p>Assumpsit. On plea in abatement.</p>

<p>A testator gave his brother and sister twenty five dollars per month each, the payments to begin immediately after his decease.</p> <p>Held, that these monthly allowances were subject to the law governing annuties.</p> <p>Held, further, that these payments were, nevertheless, to be paid in full, although there was a lack of assets to pay in full all legacies; the court finding from the will that such was the testator’s intention, i. e., they were to begin from his decease and thus to reduce the income of a life estate given to his widow, they were given to aged beneficiaries who probably would not live to enjoy other provisions of the will in their favor, &c.</p> <p>The testator also provided for paying the funeral expenses of his brother and sister.</p> <p>Held, that the court would, not order a present fund set aside for this purpose. It will be enough to apply to the court if at the proper time the executor should neglect to perform this trust ,of payment.</p>

<p>A submission to two arbitrators provided that if unable to agree they should choose a third and the decision of any two of these should be binding. The two arbitrators instead of choosing a third agreed each to mark down a sum and to report the average of the sums marked as their award.</p> <p>In an action of debt on this award:</p> <p>Held, that the award was inherently vicious and that it also violated the terms of the submission.</p>

<p>Testamentary gift in trust for S. during lier life and at her death the trust fund to be paid, transferred and delivered. “ to the lawful issue of the said S. then alive:.”</p> <p>Held, that the trust fund was to be distributed per capita among the children and grand children of S. who were alive at the death of S.</p> <p>The trust fund consisted of eighteen shares of bank stock; the children and grand children were eleven in number</p> <p>Held, that the stock should be sold and the proceeds distributed.</p> <p>Meaning of the word “issue” when applied to testamentary distributees.</p>

<p>One or more copartners cannot maintain an action at law to recover property or the value of property which has been conveyed by one of their copartnership in fraud of the copartnership.</p> <p>Nor can such an action be maintained when brought in the name of the injured copartner alone, and- when the non-joinder of the other copartners is not pleaded in abatement.</p> <p>The rule which requires a plea in abatement in order to defeat a tort action brought by only one j oint tenant or tenant in common, applies only when a j oint action by all the tenants will lie.</p>

<p>As a general rule a widow lias tlie primary right to control the burial of her husband, dependent, however, upon the peculiar circumstances of the case or the waiver of such right by consent or otherwise.</p>

<p>Trespass on the case. On demurrer to a plea in abatement.</p>

<p>Testamentary gifts:</p> <p>First, to my son J. “to have, to hold and use during his natural life all of my personal estate, moneys deposited at the Providence Institution for Savings, notes in my possession, household furniture or other personal property at my decease I then hold.”</p> <p>¿'«cored,.to my son J. “all my real estate, including the cottage .... and any other property I may hold at my decease.” .</p> <p>Fourth. “ It is also my will and desire that the said J. be my sole executor, having all my property appraised and holding the same in trust for my beloved grand children and great grand children, and to be divided amongst them at his death according to the law of inheritance.”</p> <p>Held, that J. took under the second clause an absolute fee simple in the realty and that the fourth clause applied only to the principal of the personalty of which the income had been given to J. for life, and which had not been previously disposed of by the will.</p>

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

<p>Assumpsit. On defendant’s motion to be released from arrest.</p>

<p>A testator after devising certain realty in trust for tlie benefit of his daughter Mary during her life, continued:</p> <p>“ Sixth. On the termination of the life of my beloved daughter Mary K. I give and devise the said undivided one-half of my estate so held by William M. in trust unto the children left by my said daughter Mary of her body, or the descendants of such child or children if she leaves no child, but neither her children nor their descendants can come into possession of anything more than the income of this portion of my estate until they reach the age of twenty-one years, and if the heirs of her body shall fail before arriving at that age I give and devise all said undivided half of my estate so held in trust to my son William M. and his heirs forever.”</p> <p>Held, that William M. took an executory devise in fee contingent on the failure of the donees in remainder to arrive at the age of twenty-one years.</p> <p>Held, further, that this executory devise was not void under the rule against perpetuities.</p> <p>Held, further, that the rule in Shelley’s case did not apply. Pub. Stat. R. I. cap. 182, § 2.</p>

<p>The proprietors of the Pnncatesett purchase in A. D. 1663, laid out certain highways in their allotment of lands ; Records of the town of Plymouth, vol. 1, p. 62, sq., and in A. D. 1680 recognized these highways by entries of lot descriptions on the proprietors’ records. In A D. 1710 the proprietors voted that some of these highways should be driftways. Some of these highways have for a very long time been obstructed by farm walls and buildings while parallel and equally convenient ways have been used in their stead.</p> <p>In equity proceedings to enjoin the town council from opening these highways and laying out their lines :</p> <p>Held, that the highways existed from the time of the allotment of land as shown by the records, that the public right was not extinguished by adverse possession and that the town council was entitled to reopen the highways as originally laid out or as varied by substitution where such is shown to be the fact.</p> <p>Held, further, that the Plymouth records and the proprietors’ records were sufficient evidence of dedication to public use as highways.</p> <p>Held, further, that the proprietors’ vote of A. D. 1710 changing the highways into driftways was, apart from its recognition of the ways as highways, of no effect.</p> <p>In Rhode Island the doctrine Nullum lempus oceurrii regi holds good. Simmons v. Cornell, 1 R. I. 519, affirmed and explained.</p> <p>When, however, a new way substantially parallel with an old obstructed highway and equally convenient has been used in place of the old highway for a long time :</p> <p>Held, that the new way has by dedication and use been substituted for the former highway.</p>

<p>Assumpsit. On plaintiff’s motion for an order to tlie defendant requiring the production of documents.</p>

<p>Where demised premises are used for any of the illegal purposes enumerated in Pub. Stat. E. I. cap. 80, § 1, neither the knowledge of the lessor before or at the time of the execution of the-lease that the lessee intended to make such unlawful use of the premises, nor the mere use of them for any of such purposes with the lessor’s knowledge, will render the lease ipso facto void under the provisions of Pub. Stat. R. I. cap. 80, §§ 1, 4, if the lessor has not participated in the illegal acts of the lessee.</p> <p>Where a tenant in the occupation of premises at a stipulated rent allowed the landlord to make use of the dining-room in the tenement on Sundays for the illegal sale of intoxicating liquors, under an agreement that if the tenant would permit the landlord to use the room for such purpose, the tenant might occupy the tenement rent free, the tenant not participating in the landlord’s illegal acts, the landlord cannot treat such agreement as void under Pub. Stat. R. I. cap. 80, §§ 1, 4.</p>

<p>Tlie provisions of Pub. Stat. R. I. cap. 168, § 18, requiring a guardian, at tlie time of liis advertised notice of appointment, to notify tlie creditors of liis ward to exhibit their claims within six months from the date of the notice are mandatory. Neglect to comply with them works a breach of tlie guardian’s bond.</p>

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

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

<p>Replevin was brought for goods claimed to have been fraudulently obtained under the guise of a contract of sale. For these goods the plaintiffs in replevin had received from the defendant certain notes and $50 in cash. The writ of replevin was issued without a prior return of the $50, the plaintiffs claiming that the goods replevied were less in value than the goods obtained by more than $50.</p> <p>Held, that the plaintiffs in replevin could maintain their action without having returned the $50 before its inception.</p>

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

<p>An employe was left with, an assistant in charge of a tradesman’s shop.</p> <p>Held, that he was both salesman and custodian.</p> <p>Held, further, that the tradesman, his master, was liable for his act in causing 'the arrest and search of a customer whom he suspected of pilfering, but as the jury found, erroneously suspected.</p> <p>IMd, further, that the master not having participated in the act of the employé nor having approved it could be held liable only for actual damages, and was not liable for punitive damages.</p> <p>Hagan v. Providence & Worcester P. B. Go., 3 R. I. 88, affirmed.</p>

<p>Claims for “loss of time ” and for “ delay, risk and inconvenience” to contract work are neither for work nor for rpaterials and are not subjects for a mechanic’s lien.</p> <p>A building contract was accompanied by specifications and these mentioned blasting. The contract provided that no claim should be made for extra work except on certain conditions.</p> <p>Held, that the blasting mentioned in the specifications was contract work not extra work, though the amount to be paid for it was not included in the contract price.</p>

<p>Defendant’s petition for a new trial.</p> <p>The defendant was indicted for burglary and after conviction filed this petition.</p>

<p>A count for misdemeanor and a count Cor felony may be joined in an indictment if the offences charged are cognate. In case of such joinder, requiring the prosecutor to elect the count on which he will ask conviction, is a matter in the discretion of the court.</p> <p>Burglary and an assault with intent to commit rape are not cognate offences and cannot be joined by separate counts in the same indictment.</p> <p>In Rhode Island a defendant on petition for a new trial may insist both that the court erred in its rulings of law and that the verdict was against the evidence. Hence, on such a petition a defendant may take advantage of the misjoinder of counts in the indictment against him.</p> <p>In criminal proceedings for an assault with intent to rape the character of the woman as to chastity may be attacked, but specific acts of unchastity with other men than the defendant cannot be shown. Aliter in civil proceedings.</p> <p>What the woman said about the affair immediately after its occurrence is a part of the res gestae and is admissible .evidence against the man.</p> <p>In criminal proceedings for burglary the prosecution was allowed to show that . the defendant twice entered the house on the same night: first, because in the circumstances the prior entry being fruitless the two showed a single purpose to commit one felony; second, because the evidence showed the whereabouts of the defendant.</p>

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

Dependant’s petition for a new trial. This action was brought in the District Court of the second judicial district and was taken by appeal to the Court of Common Pleas, where on the plaintiff’s motion the declaration was amended.

<p>Title to land between Custom House street and Aborn’s gangway in the city of Providence.</p> <p>To make, by direct deed to the city, a valid dedication of land to highway purposes all the tenants in common owning the land must join in the deed.</p> <p>Dedication of land to highway purposes may be inferred from the assent of the owners, if the assent is given in such circumstances as to show their ultimate purpose of making it a public highway instead of retaining private rights in it.</p>

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

Petition for a writ of Mandamus. On demurrer to the petition. This petition preferred by the Attorney General sets forth that an elective meeting to choose a senator and representatives from the town of South Kingstown to the General Assembly of the State was holden on the first Wednesday in April, 1893, and failed to elect, no person voted for having a majority of the vote cast ; that pursuant to Pub.

<p>Petition for a writ of Mandamus. On demurrer to the petition.</p>

<p>On petition for a writ of mandamus to require a'mayor and board of aldermen to re j ect votes cast for an ineligible candidate, and to declare tlie petitioner elected:</p> <p>Held, that tlie board of aldermen in counting the ballots liad no discretion except to judge of their regularity. If they were in due form the board could only count them and declare the result</p> <p>The petition averred that the electors knew the fact which disqualified the candidate. It did not aver that they knew'this fact to be a legal disqualification or that so knowing they illegally voted for the candidate.</p> <p>Held, that the petition was bad because containing neither of these averments.</p> <p>Whether if the petition contained either or both of them it would make a case for relief, is not decided.</p>

<p>Pending a jury trial a juror remarked, out of court, that he had ‘‘no doubt the case would go for the town.”</p> <p>Held, that the remark though improper was not reason for granting a new trial.</p> <p>A town council in its decree declaring a highway necessary need not specify the width of the proposed highway.</p> <p>A highway was laid out in part over land of the State and the lay out was accepted by the town council before the assent of the State was obtained.</p> <p>Held, that the acceptance was voidable not void and that the subsequent assent of the State ratified the acceptance against all parties.</p> <p>On receiving the report of the committee of lay out of a highway the town council ordered notice for a hearing thereon and subsequently rescinded this order and ordered notice for a hearing on a later day, when the report was approved.</p> <p>Held, that the action of the town council was proper.</p> <p>Discrepancies merely clerical between the report of a committee of lay out and its accompanying plat are in law unimportant, especially when the highway has been staked out; so, too, is the omission of the word feet after figures on a plat when the plat shows that the figures indicate feet.</p>

<p>M. II. transferred a savings bank deposit wliieli was in her own name to a new account in the'names of “M. II. or F. C.;” the understanding- between M. II. and M. F. O. being that M. II. was to own the deposit during her life and after her death M. F. C. was to have it for application to charitable uses.</p> <p>Held, that the deposit belonged to the administrator of.M. H., the transfer not being a gift inter vinos nor a constituted' trust, but merely an abortive testamentary disposition.</p>

<p>Covenant. On. demurrers to pleas.</p> <p>The plaintiff conveyed by way of lease certain realty to one Attleton, and the defendant agreed under seal with the plaintiff that Attleton’s covenant “contained in said lease relative to the payment of rent for the first twelve months of said term of three years, should be punctually performed without requiring from said plaintiff any notice of the non payment of any monthly instalment, or payment or proof of any demand therefor ; provided, however, that the total amount of money which the said Horgan should be liable to pay under and by reason of said covenant and guaranty should not exceed fifteen hundred dollars,” as laid in the declaration.</p> <p>The questions at issue are sufficiently stated in the following opinion :</p>

Petition for Divorce. On petition for a new trial. ■ The original petition was filed July 28, 1892, and was •dismissed February 11, 1893. The petition for a new trial was filed March 10, 1893.

<p>The appointment by a town council of supervisors of elections under Pub. Laws R. I. cap. 920, § 16, of May 1, 1891, is a peremptory duty and whether or not the names of the candidates have been presented by a proper political committee is not a jurisdictional matter which can be reviewed on certiorari.</p>

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

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

<p>A debtor whose chattels had been attached, in order to take them from the custody of the sheriff, gave to him a bond which contained the condition prescribed by Pub. Stat. R. I. cap. 207, § 16, and also that prescribed by Pub. Stat. R. I. cap. 207, § 20-, thus making the bond both a bail bond and a delivery bond. Subsequently, but within sixty days, the debtor made an assignment as provided by Pub. Stat. R. I. cap. 237, § 12.</p> <p>Held, that the bond was good as a common law bond.</p> <p>Held, further, that it was invalid as a statutory bond because conforming neither to § 16 nor to § 20 of Pub. Stat. R. I. cap. 207.</p> <p>Held,, further, that performance of either of the conditions of the bond would be held a satisfaction of both.</p> <p>Held, further, that the intention and effect of the bond was to dissolve the attachment, as the sheriff accepted the bond and surrendered the chattels.</p> <p>Held, further, that the assignment did not affect the liability of the obligors on the bond.</p> <p>■Held, further, that the creditor could enforce the bond although he had accepted • a dividend from the assignee.</p> <p>In Pub. Stat.,R. I. cap. 237, § 15, “ securities” mean only such securities as create a lien on the debtor’s estate.</p>

Debt on bond. On demurrers to pleas. The condition of the bond in suit is as follows : “The condition of this obligation is that whereas the said Benjamin Easton, Jun., is constable of the city of Newport, in the State of Rhode Island ; and whereas, the above named Benjamin Easton, Jun., as such constable has attached upon a certain writ dated July 25, 1890, wherein Samuel Kessler and Adolph Kessler are plaintiffs and Timothy J. Driscoll is defendant, which said writ is…

Trespass on the Case for refusal by the defendant to receive and transport goods, &c., for the plaintiffs'on as “favorable terms and conditions as for other persons.” At the October Term, A. D. 1886, this case was referred to Samuel W. Peckham, Esq., under a rule of court pursuant to Pub. Stat. R. I. cap. 215, § 1. The case came before the court at the April Term, A. D. 1893, on the defendant’s motion to discharge the rule under Pub. Stat. R. I. cap. 215, § 4.

<p>A. promised B. “to pay him something on account in a few days if he would wait for Mm.”</p> <p>Held, a sufficient new promise to take the debt out of the statute of limitations. For this, A.’s general promise not specifying the debt on which payment is to be made, primd facie suffices. If a debt other than the one in suit was meant by A., it was for him to prove this fact.</p>

Bill in Equity for instructions. Sarah. Halsey by her will proven before the Municipal Court of Providence, sitting as a Court of Probate, October 11, 1864, bequeathed certain sums of money to the complainants and. to the survivor of them, in trust, with powers of management, to pay the net income to her nephew, James Hamilton Creighton, during his life, and further provided ‘1 That the said trustees or their successors may at any time and from time to time when they may…

Bill in Equity for the removal of a trustee and for an injunction. The last -will of John Curran, duly proven before the Probate Court of Pawtucket, is as follows: “In the name of God, Amen.

<p>Bill in Equity for instructions.</p> <p>Tlie thirty-sixth clause of the will of Mary Jane Sheldon, proven before the Municipal Court of the city of Providence, August 12, A. D. 1892, is as follows :</p> <p>‘ ‘ I give and bequeath to my cousin Mary Spicer, wife of George T. Spicer, and to her children after her the sum of five thousand dollars.”</p> <p>The thirty-eighth clause is as follows :</p> <p>“I give and bequeath to my cousins James B. Tyler, Ebenezer O. Tyler and Albert D. Tyler, sons of John Tyler, deceased, and to their respective legal representatives, one thousand dollars each.”</p> <p>The other facts involved are stated in the opinion of the Court.</p>

<p>Bill in Equity to establish the complainants’ right to a dividend from the respondents’ assignees and for an account.</p>

<p>Public Laws R. I. cap. 696, § 4, of March 21, 1888, provide that no material man’s “■ lien shall attach for materials furnished unless the person furnishing them shall within sixty days after the materials are placed on the land give notice,” &c.</p> <p>Held, that the sixty clays arc exclusive of the clay on which the materials are placed on the land.</p>

<p>Public Laws R. 1. cap. 474, § 16, clause 2, of March 27, 1885, the charter of the city of Pawtucket, gives to the board of aldermen a discretion as to the time of a new election in case of a failure to elect, and this discretion unless abused is not reviewable on mandamus</p> <p>After seven successive elective meetings and failures to elect, ordering in June another election in November is not so clearly an abuse of discretion as to justify the interference of the court.</p>

<p>Bill in Equity to establish a charge upon an assigned estate.</p>

<p>When tlie purchase money or the consideration of a conveyance of realty comes from one other than the grantee and neither husband nor parent of the grantee, a resulting trust arises in favor of the person from whom the consideration proceeds.</p> <p>A. agreed with H. to act as broker in the sale of H.’s land and to take as his compensation a certain agreed on parcel of H.’s land. For convenience and by agreement between A., H. and the purchaser, H. conveyed all the land to the purchaser who then executed a deed to A.’s daughter at A.’s request of the parcel agreed on for A.’s compensation. The daughter refused to accept the deed and then A. had another deed prepared to himself which the purchaser, refused to execute.</p> <p>Held, that there was a resulting trust in A.’s favor in the parcel of land agreed on for his compensation, and that A. was entitled to a conveyance.</p>

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

<p>Creditors’ petition for the appointment of a receiver of the estate of an insolvent debtor under Pub. Stat. R. I. cap. 237, § 13.</p>

<p>A broker employed to sell real estate who produces a purchaser able and willing to purchase on terms satisfactory to .the seller is entitled to his commission, although the sale is finally consummated through the instrumentality of another person.</p> <p>The plaintiff, who was employed as a broker to sell a parcel of real estate for the defendant, obtained from B. an offer for the land which was declined by the defendant. Subsequently the defendant informed the plaintiff that she would accept B.’s oiler, which the plaintiff communicated to B., who thereupon renewed negotiations with the defendant through a person other than the plaintiff, which resulted in a sale of the land to B.</p> <p>Ilelil, that the plaintiff was the effective agent in bringing about the salé of the land, and was, therefore, entitled to his commission, although the contract was finally concluded through another person, to whom the defendant paid a commission.</p> <p>Held, further, that the fact that there was a misunderstanding between the plaintiff and B. as to the amount of the latter’s offey for the land was immaterial.</p>

<p>Where land has been condemned under Pub. Laws R. I. cap. 1003, §§ 2, 3, the date oi condemnation, or the date when the title to the land vests in the city so as to entitle the owner of the land to the value of it, is a question of law for the court and not a question of fact for the jury, and depends upon the time of the service of the notice on the party of the taking of his land.</p> <p>On the trial of a petition.for the assessment of damages by a jury under § 4, the report of the commissioners made to the city council in accordance with § 2, is inadmissible in evidence.</p>

<p>Certiorari. On motion for a citation.</p> <p>The petition which was preferred by the Attorney General, alleges that the Board of Aldermen of the city of Newport on the 1st of August, 1893, in the pretended discharge of the duty imposed upon them by the Judiciary Act, cap. 7, § 7, adopted as a list of persons inhabiting said city who were qualified to serve as jurors, a list of persons which was not in fact a list of persons whom said board thought well qualified to serve as jurors, and who, in the judgment of said board, were persons having the qualifications required by said act, but was in fact a list of persons prepared by two members of the board as a committee appointed for that purpose; that the committee, in making up said list, adopted a list of persons qualified to serve as jurors under statutes in force prior to the passage of the Judiciary Act, made up and adopted by the board when such statutes were in force, but striking out the names of certain persons who had become disqualified by the change in the law, and such others as said committee saw fit to omit; that said lists were not at any time or place read to the board nor examined by it or the members thereof (other than the committee), and that said board did not either as a board or as individuals (except said committee) at any time or place exercise its or their judgment upon said jury lists. The petition prayed for a citation to the Board of Aldermen and the members thereof, to show cause why a writ of certiorari should not issue.</p>

Appellants’ petition for a new trial. Appeal from a decree of the Court of Probate of the town of Poster by which the appellee was appointed administrator on the estate of Charles W. Pierce, deceased. The objection to the appointment set forth in the reasons of appeal was, in substance, that the appellee was not a suitable person to administer, because he would unjustly favor one of the distributees between whom and himself an improper intimacy existed.

<p>Tile material portions of a will are as follows:</p> <p>“I give, devise and bequeath unto my two children Elizabeth and Mary Jane Ellison the sum of two hundred dollars each.</p> <p>“I give, devise and bequeath unto my husband William J. Jamieson his heirs and assigns, all my real estate together with the rest and residue of my personal property of every kind and nature.”</p> <p>The testatrix left no personal estate from which the legacies given in the first clause of the will could be paid, but died seized and possessed of real estate which she had acquired prior to the execution of her will and which was subject to a mortgage. The mortgage having been foreclosed after the death of the testatrix, there was a surplus of the proceeds of sale after paying the mortgage debt and expenses of foreclosure.</p> <p>Held, that the devise of the real estate was not subject to a charge for the payment of the legacies.</p> <p>Held, further, that the surplus was to be treated as real estate, and as the property of the devisee.</p>

<p>Defendants’ petition for a new trial.</p> <p>Assumpsit for the use of a horse let to hire.</p>

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

<p>Bill in Equity alleging misappropriation, of corporate funds, and praying for an account. On respondents’ motion to amend answer.</p>

<p>Where platted land is described in a deed by plat numbers and also as bounding on a street, without further qualification, the boundary will be deemed to be the street as actually opened and used, and not as marked out on the plat.</p> <p>M. being the owner of a tract of land on both sides of Ocean street comprising part of a plat of lots designated by numbers, conveyed three of said lots, one of them being lot 90. The lots were designated in the deed by their plat numbers, to which description were added the words : “ Ocean St. being on the West side thereof,” Ocean street was marked out on the plat as adjoining lot 90 but as actually laid out, opened, and used it was fifty feet west of the platted location.</p> <p>Reid, that under this description M.’s deed conveyed not only lot 90 as indicated on the plat, but all the intervening land up to the line of Ocean street as actually opened and used.</p> <p>D., who subsequently, by mesne conveyances, became the owner of a portion of the land described in M.’s deed, (including lot 90 and the intervening land up to Ocean street, all of which bounded southerly on Summer street,) conveyed to the defendant in 1866 a lot described in the deed as bounding southerly on Summer street fifty feet, westerly on Ocean street seventy-five feet, northerly by other land of the grantor fifty feet, and easterly by other land of the grantor seventy-five feet.</p> <p>Reid., that lot 90 was not included in the deed to the defendant, but was expressly excluded by its terms.</p> <p>In order to effect a disseisin, it is essential that there should be an entry on the land with the intention to usurp the possession and oust the true owner of the freehold. Being a tortious acquisition of an estate, it must be shown affirmatively and by strict proof. The mere fact of occupation of a vacant lot without anything- to sliow that such occupation was, or was intended to be, adverse, is not sufficient to create a disseisin.</p> <p>A petition for a new trial upon the ground of mistake in supposing that a deed under which the petitioner claims title had been put in evidence, when in fact it had not, will not be granted when it appears, upon inspection of the deed, that it could not have affected the decision of the case. .</p>

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

<p>Pub. Stat. R. I. cap. 64, § 11, provides for an appeal to the Court of Common Pleas by any person aggrieved by the doings of a town council laying out a highway through his land, such person “ giving bond to the town to prosecute his appeal, and producing an attested copy of the whole proceedings to such court, and filing his reasons of appeal with the clerk of the court, ten days before the sitting thereof.” A bond was given to the town council of a town for the purpose of taking an appeal under the statute :</p> <p>Held, that the requirements of the statute had not been complied with, and that the Court of Common Pleas properly dismissed the appeal.</p> <p>Reid, further, that the court had no power to allow either an amendment of the bond to be made, or a new bond to be filed running to the town and bearing the same date as the one given, to be taken mino pro tuno.</p> <p>The appeal being a purely statutory proceeding, the filing of a bond in the form and at the time prescribed by the statute is the basis of the jurisdiction of the appellate court, and hence, unless the record shows that a bond has been thus filed, the court has no jurisdiction and can only dismiss the proceeding.</p> <p>The power of courts under the statute of jeofails to permit any imperfection, defect or want of form in the pleadings and process to be amended, has not been enlarged by the Judiciary Act, cap. 15, § 4.</p>

<p>S. entered into a contract with the complainant lor the sale of land whereby the latter had an optional right to purchase. Soon after malting the contract, S. died, leaving a will in which he devised the land to his son E. for life, and upon his death, in fee to the children and issue of E. ; and after other gifts and devises, gave the residue of his estate equally to his widow and son. The complainant, elected to purchase under the contract.</p> <p>Held, that upon the complainant’s election to purchase, there was an equitable conversion of the land embraced in the contract into personalty, and that the purchase money passed under the will to the residuary legatees.</p> <p>Held, further, that the devisees of the land in question held the legal title thereto as trustees for the complainant, and may be required to convey the same to it.</p>

<p>Property for which a person, by the first proviso of Pub. Stat. R I. cap. 42, § 10, is not liable to taxation, forms no part of his ratable personal estate, and cannot be included in the personal property owned by him from which his indebtedness is to be deducted in ascertaining the surplus of his ratable personal estate over and above his indebtedness, under the second proviso of said § 10.</p> <p>At the time of the levy and assessment of a tax, the personal estate of H. including property within the first proviso of said § 10, exceeded his indebtedness, but excluding sucb property, was less than his indebtedness. In assessing a personal property tax, the assessors of taxes deducted the indebtedness of II. from his personal estate inclusive of property for which, by the first proviso of said § 10, he was not liable to taxation.</p> <p>Held, that II. had no surplus of ratable -personal estate, and therefore was not liable to assessment -for a personal property tax.</p> <p>Held, further, that the case was not one of over-taxation merely, but one of illegal taxation as well.</p>

<p>A criminal complaint charging that the defendant “was found behaving in a noisy and disorderly and indecent manner, and did assist, encourage and promote the same to be done by others, to the annoyance and disturbance of a portion of tire peaceable inhabitants of the town of East Greenwich, against the ordinances of the said town,” is bad for uncertainty, in that, although following the language of the ordinance, it does not so far individuate the offence as to give the defendant proper notice of what it really is.</p> <p>Merely to charge one with “ behaving in a noisy, disorderly and indecent manner,” without any specification as to what constituted such behavior, or even that it was in a public place in 'the town, is too vague and indefinite to answer the requirements of criminal pleading.</p>

<p>Case stated for an opinion of the court under the Judiciary Act, cap. 20, § 24, asking for a construction of Pub. Laws R. I. cap. 4471. The petitioners were the Town Counoil, the Assessors of Taxes, School District No. 6, and several taxpayers of the town of Cranston.</p>

<p>In a suit by one to recover compensation for services rendered to another while they were members of a family living together in one household, if the circumstances in which the services were rendered were such as to show a reasonable and proper expectation that compensation was to be made, the plaintiff will be entitled to recover.</p> <p>In 1883 an insane woman was taken by her then guardian to the apartments of her sister, the plaintiff, where she remained until her death in 1890, during which time the guardians applied the income of their ward’s estate to the support of their ward and of the plaintiff. The plaintiff gave up her previous occupation in order to render to her sister the constant care and attendance which the latter’s physical and mental condition required. She made no claim for compensation during her sister’s lifetime, but did so immediately upon her death, and before the existence of a will was known. In a suit against the administrator to recover such compensation based on an implied contract for necessaries furnished her sister, the plaintiff recovered a verdict.</p> <p>Held, that a request to instruct the jury at the trial that unless they found an express promise by the deceased, or by either of her guardians in her lifetime, the plaintiff could not recover, was properly refused.</p> <p>Held, further, that the verdict was warranted by the evidence.</p> <p>The defendant also requested that the jury be instructed as follows : “ In ascertaining evidence Of indebtedness, the admissions or promises of Dr. Eldredge (a former administrator) or Mr. Mowry, the defendant, are not to be considered by the jury.” The court refused such request, but had already charged ‘‘ that the promise, if one was made, by the administrator that the plaintiff should be paid, could not create a valid claim against tlie estate. It might, possibly, if made in writing, bind the administrator to pay. If given in writing to avoid the statute of frauds — if given in writing for that purpose' — it might bind him, but would not bind the estate, and would not create a lien upon the estate.”</p> <p>Held, that the instruction given was practically equivalent to that requested, and that the court was not bound to charge in the language of the request.</p> <p>Letters written by the defendant’s predecessor in the office of administrator in corroboration of other testimony on the part of the plaintiff tending to show that the services were rendered as claimed, and that the plaintiff had made a claim for compensation, and to rebut any inference of payment, were admissible in evidence for such purposes, as admissions of the former administrator binding on the defendant by reason of the privity of estate existing between them.</p>

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

<p>Tlie rule which obtains in Rhode Island that when a garnishee has notice of an assignment of a fund before he is charged he is not chargeable, applies only to cases where the fact of an assignment is admitted.</p> <p>The mere fact of such notice is not sufficient to discharge him.</p> <p>In a case of conflicting claims to property attached by garnishment process, the garnishee is a stake-holder who, after a full disclosure, should be protected from a double liability ; but if the attached property may belong to the defendant, the plaintiff should not be deprived of the benefit of his attachment until it appears that it is not the defendant’s property. Hence, where the fact or good faith of an assignment of the attached property is questioned, it is necessary for the claimant to be made a party to the suit.</p> <p>Under Pub. Stat. R. I. cap. 204, § 34, which provides that the court may order any person to be made a party to any action and to be summoned in to answer thereto, the court may order the claimant of property attached by garnishment to be made a party to the action in which the garnishment was made and to be summoned in to answer thereto, so that an incidental or collateral “matter in controversy,” to wit, the attached property, “may be properly dealt with ” by the court.</p> <p>Semble, that the court has such power independently of the statute.</p> <p>In a suit where garnishment had been made, the affidavit of the garnishees set forth-that at the time of the service of the writ upon them, they had in their hands a sum of money, the net proceeds of a judgment collected by them in favor of the defendant, provided no legal effect should be given to the fact that they had received a letter from one J. A. H. prior to the garnishment stating that he had purchased said judgment; but if the fact stated in the letter was true, and the right to the fund in consequence thereof was transferred to said J. A. H., then they had no funds of the defendant in their hands at the time of the attachment. They further stated that they knew nothing of the truth of the alleged fact of an assignment of the judgment. J. A. H. did not make himself a party to the action as he might have done under Pub. Laws R. I. cap. 433, § 1, nor did the plaintiff ask to have him summoned in. The Court of Common Pleas discharged the garnishees.</p> <p>Held, that the question of the garnishees’ liability was not ripe for judgment, and that the discharge was premature.</p> <p>Query, whether the plaintiff was not in fault in not asking to have the claimant summoned in ; but</p> <p>Held, further, that as the question as to the mode of procedure is new, and there will be no injustice to the parties, a new trial should be granted.</p> <p>Where one holds a promissory note, bank check, or eJiose in action, belonging to a defendant, lie cannot, in general, be charged for the same as garnishee ; but if he holds and treats the same as cash so that a debt is absolutely due from him to a defendant on account thereof, he should be charged as garnishee.</p> <p>In such case the question is one of fact.</p>

<p>Legacy as follows :</p> <p>‘ ‘ All moneys or legacies coming to me from any source I give and bequeath to . . . .”</p> <p>Held,, not to be a specific legacy.</p> <p>The decision in Ghafee v. Maker, 17 R. I. 739, affirmed and elaborated.</p> <p>Pending a bill in equity against an administrator for an account, the respondent filed his account as an administrator in the Probate Court. Afterwards the complainants preferred their petition in the equity cause praying that the administrator be enjoined from the prosecution of his account in the Probate Court.</p> <p>Held, that as letters of administration had been issued to the administrator, and bond to account to the Probate Court had been given by him to the. -Probate Court, before the filing of the complainants’ bill, that court had first acquired jurisdiction of the subject-matter of the suit.</p> <p>Held, further, that the petition for an injunction should be denied.</p>

<p>Assumpsit lies against one to recover the costs of suit for which he has become liable as surety by indorsing his name on the writ as provided by Pub. Stat. R. I. cap. 206, §§ 25, 26.</p> <p>The surety’s liability in such case is not founded on the statute, nor on the judgment rendered in the suit in which he became surety, but on an undertaking merely collateral to such suit.</p> <p>The declaration in assumpsit against a surety for costs, in describing the suit in which the defendant had become such surety, omitted the name of one of the defendants therein other than the declarant.</p> <p>Held, that the variance was immaterial.</p>

Petition for a mechanic’s lien. The prayer of the petition was that a lien might be enforced against the land and buildings described in the petition, and against the right, title and interest of the said Prank W. Arnold therein.

<p>Bill in Equity to dissolve a partnership. An oath to the answer was waived. On exceptions to the answer.</p>

<p>A divorce will not be granted when it appears that the petitioner, although otherwise entitled to a decree, has been guilty of conduct which is cause for divorce.</p> <p>in 1861, the petitioner was deserted by lier husband, the respondent, who entered the military service of the United States. Shortly after leaving, the respondent wrote once or twice to the petitioner who heard nothing more from him for twenty-seven years. The respondent was commonly reported to have been killed in the war, and the petitioner, in 1872, believing him to be dead, intermarried with one Place, with whom she lived as his wife until August, 1892. In 1888 the respondent returned with another woman whom he had married and several children, which fact came to the petitioner’s knowledge in January, 1890. But the petitioner continued to live with Place until August, 1892, when she ceased to cohabit with him, and preferred her petition against the respondent for a divorce from bed and board, and for separate maintenance.</p> <p>Held, that the petitioner by continuing to cohabit with Place after she knew that the respondent was alive, had herself been guilty of conduct for which divorces are allowed, and, therefore, was not entitled to a decree.</p>

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

<p>Case stated for an opinion of the court under the Judiciary Act, cap. 20, § 24.</p> <p>George O. Johnson, a resident of Rhode Island, and Daniel A. White, a resident of Massachusetts, carried on business in Rhode Island, as copartners, under the name of George O. Johnson & Go. The partnership property having been attached at the suit of James Rothwell & Co., creditors of George O. Johnson & Co., Johnson & White, individually and as copartners, executed an assignment of all their property to Charles A. Wheelóck, for the benefit of their creditors. The assignee and the attaching creditors concur in a statement of the facts, and petition the court for an opinion as to whether the assignment operated to dissolve the attachment.</p>

<p>Bill of Interpleader.</p>

<p>An action for a malicious prosecution lies against tlie plaintiff in a civil suit for the malicious use of legal process by procuring the arrest and imprisohment of. the defendant without probable cause, although there was good cause for instituting the suit in which the arrest was made.</p> <p>In an action for malicious prosecution, the declaration alleged that the defendant maliciously procured a writ of arrest against the plaintiff in an action of debt, by making- a false and fraudulent affidavit without having- any probable cause therefor that the plaintiff was about to leave the state without leaving therein real or personal estate whereon an execution that might be obtained in said action could be served; that the plaintiff was arrested on such writ and committed to jail for want of bail; and that subsequently the court to which the writ was returnable, on the motion of the plaintiff, discharged him from the arrest.</p> <p>Held, on demurrer, that the declaration showed the proceeding of arrest to have been instituted maliciously, and without probable cause, and to have terminated in the plaintiff’s favor, and, hence, set forth a good cause of action.</p> <p>Distinction stated between an action for the malicious use of process and an action for the malicious abuse of process.</p>

<p>A private person may, of iiis own motion, abate a public nuisance where its existence is a source of special injury to him, only when he can do so without committing a breach of the peace.</p> <p>What constitutes a breach of the peace discussed</p> <p>A. obstructed a public highway which led to a beach by-maintaining a gate across-it. B., who had a sea-weed privilege on the beach, and his hired man, C., in attempting to go through the gate to the beach with an ox-team for seaweed belonging to B., were forcibly resisted by A. and another who were armed with sticks. B. and C., having anticipated such resistance, had come prepared to overcome it with the necessary force. After using some violent, profane and threatening language towards A., they broke down the gate by backing their ox-team against it, and forced their way through, using a pistol, a pitchfork and a hoe in the fight which occurred and in which A. was injured. B. and O. were indicted for an assault upon A. with intent to kill.</p> <p>Reid, that B. and C. committed a breach of the peace in removing the obstruction, and were the aggressors in the fight.</p> <p>Reid, further, that it was immaterial who actually struck the first blow. Stale v. Sherman, 16 R. I. 681, distinguished.</p>

<p>Whore on a bill in equity for the dissolution of a partnership, for an account of the debts and assets, for the appointment of a receiver and the winding up of tlie partnership affairs, a decree granting the relief prayed for has been entered, the creditors of the firm have an interest therein which the court will protect; and a creditor who attaches property of the firm, in an action brought after the filing of the bill, might be enjoined from prosecuting his action and required to surrender tire attached property to the receiver.</p> <p>But where, on such a bill, a decree merely appointing a receiver is entered and no provision is made for taking an account, the creditors have no interest in the suit, and there is no reason for interfering with a creditor who is pursuing his remedy at law.</p> <p>A partner filed a bill in equity against his copartner for a dissolution of the partnership, for an account, for a receiver, and for the winding up of the partnership affairs. A decree appointing the defendant receiver was entered by consent, but no provision was made for taking an account. After the filing of the bill, but before the receiver was appointed, the plaintiff attached property of the firm in an action against it, and refused to surrender the attached property to the receiver upon his demand therefor. Subsequently, and after the plaintiff had recovered judgment in his action, the attachment was dissolved by an assignment executed by .the partners to the defendant under the provisions of Pub. Stat. R. I. cap 337, § 13. The plaintiff then brought his action to recover of the defendant his costs in the attachment suit.</p> <p>Held, that under.Pub. Stat. R. I. cap. 337, § 19, the plaintiff was entitled to recover.</p>

<p>In 1891 tlie parties to the suit other than the O. Manuf. Co., being separately cngaged in the business of manufacturing and selling butterine -and oleomargarine, united and formed a corporation for the purpose of carrying on their business together, in pursuance of an agreement to that end by'the terms whereof each covenanted not to engage directly or indirectly in any business of the same kind for a period of five years from the date of the agreement. They became incorporated and organized as the O. Manuf. Co. under the laws of the state of Kentucky, and turned in the stock, machinery, accounts, and good will of .their respective concerns, receiving therefor stock in the corporation, since which time the corporation has carried on the business. In August, 1892, the defendant sold out his stock in the company at a price greatly in excess of its actual value, and engaged in the same business. On a bill against the defendant for an injunction, •'</p> <p>Held, that tile contract was not void on grounds of public policy as a combination to create a monopoly.</p> <p>Held, further, that it is not a violation of the laws or policy of Rhode Island for the citizens thereof to procure an act of incorporation in another state for the purpose of carrying on business as a corporation in Rhode Island.</p> <p>Held, further, that the contract was not void as being in restraint of trade.</p> <p>Contracts in restraint of trade are not necessarily void by reason of universality of time or of place ; but their validity depends upon .the reasonableness of the restrictions under the conditions of each case. ' The test of reasonableness is the test of validity in contracts of this kind.</p>

Trespass on the Case. Certified from the Common Pleas Division on demurrer to the declaration.

Defendants’ petition for a new trial. This was an action of trespass on the case for negligence causing the death of G-eorge K. Burnham, the plaintiff’s intestate. On the evening of November 30, 1889, a switching engine belonging to the defendant company was run on to a track over which one of the trains of the Old Colony Railroad Company known as the “steamboat train” was about to pass.

Bill in Equity to enforce the trusts of assignment for the benefit of creditors. Heard on demurrer, and subsequently on hill and answer. The complainants are simple contract creditors of the Providence Tool Company, a corporation late doing business in the city of Providence, and sue in behalf of themselves and all other creditors of the company similarly situated. The respondents are the assignee of the Providence Tool Company and the judgment creditors of said company.

Bill in Equity for an injunction and other relief. Heard on pleadings and proofs. In 1869 George P. Sherman, Senior, being the owner of lands fronting on the northerly and southerly shores of a cove which forms a part of Point Judith Pond, built a causeway from his land on 'the northerly shore of the cove to Gooseberry Island, so called, also belonging to him and lying in front of his lands.

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

<p>Tlie plaintiff was in tlie employ of the town, shovelling sand at a bank which left an overhanging crust. I-Ie saw it, and had also been warned against the danger from it. A co-laborer who went to knock it down was called back by tlie foreman, who said that after ho had got one load he would throw down tlio bank. Before the load was completed the bank fell in, and the plaintiff was injured. In an action against the town for the injuries alleged to have been caused by the negligence of the foreman, the pjaintiff was non-suited on the foregoing facts.</p> <p>Held, that the non-suit was rightly ordered, because, 1, if the danger from the overhanging- bank was an obvious one, the plaintiff voluntarily assumed an evident risk, and one incident to his employment; and, 2, if the danger was not obvious, there is nothing to show negligence on the part of the foreman, in either of which cases the plaintiff could not recover.</p> <p>Held, further, that the plaintiff and the foreman were fellow servants, and the town would not be liable to one for an injury occasioned by the negligence of the other.</p>

<p>In trespass on the case for personal injuries brought by a servant against his employer, a corporation, founded on the alleged negligence of the latter, the declaration stated that the corporation “threw or caused to be thrown a box,” &c.</p> <p>Held, that this was tantamount to a statement that the box was thrown by a servant of the corporation.</p> <p>Held, further, that the declaration should state the relation to the corporation of the person who threw the box, so that it might appear that he was not a fellow servant witli tlie plaintiff, or if a fellow servant tliat tire corporation was negligent in employing or in retaining him.</p> <p>Held, further, that the plaintiff should state the particular work he was engaged in when injured in connection with his allegation of being duly careful.</p> <p>The negligent act of a foreman in throwing a box upon a pile of iron posts which causes an injury to one of the workmen under him, is the act of a follow servant for which the employer is not liable.</p>

- Bill in Equity by a .judgment creditor to subject the equitable assets of his debtor to the payment of the judgment debt.

<p>Pub. Stat. R. I. cap. 205, § 7, of the limitation of actions, provides that if any person, for or against whom an action has accrued, dies before the time limited for bringing such actions, and the cause of action survives, such action may be commenced by or against his executor or administrator, ‘1 at any time within one year after the granting of letters testamentary or of administration, and not afterwards, if barred by the provisions of this chapter.”</p> <p>Pub. Stat. R. I. cap. 181, § 7, by which the operation of any decree of any probate court appealed from is suspended until such decree is affirmed by the Supreme Court, contains the proviso, “that if the decree shall be for granting letters.....of administration.....the administrator . . . . . on giving bond according to law, shall have power to collect, receive and take possession of all the rights, credits and estates of the . . . intestate . . . which by law he could have collected, received or taken possession of, provided no appeal had been made,” etc.</p> <p>L. was appointed administrator of an estate by a decree of a probate court, and duly qualified. The decree of the probate court was,appealed from and reversed by the Supreme Court. Subsequently M. was appointed administrator on the estate, and commenced an action on a claim which was then barred by the provisions of Pub. Stat. R. I. cap. 205, unless the one year after the granting of letters of administration within which, under Pub. Stat. R. I. cap. 205, § 7, an action may be commenced, began to run from the date of the appointment and qualification of M. as administrator.</p> <p>Held, that the one year after the granting of letters of administration mentioned in cap. 205, § 7, commenced to run from the date of the appointment and qualification of L. as administrator, and'not from the time of the appointment and qualification of M.</p>

<p>Bill in Equity to reform a deed and mortgage and to enjoin an action at law.</p>

Petition for a writ of mandamus directed to the clerk of the Common Pleas Division of the Supreme Court for the county of Newport, commanding him to enter upon the1 records of the court the verdict of a jury. At the trial of an action of trespass on the case brought by Gideon P. Rose against Sebra A. Mitchell in the Common Pleas Division of the Supreme Court for the county of Newport, four special issues were submitted to the jury.

<p>The jurisdiction of District Courts over actions for the possession of tenements or estates, under the Judiciary Act, cap. 8, § 28, is not limited to actions for the possession of tenements or estates let, but extends to all actions for the possession of all tenements or estates held at will or by sufferance, whether they be tenements or estates let or others.</p>

<p>Assumpsit. Certified from the Common Pleas Division for Kent county on demurrer to plea.</p>

Bill in Equity for an injunction. On demurrer to the hill. By an ordinance of the city council of the city of Providence, passed December 8, 1893, the Mayor was authorized, by and with the advice of the committee on the city debt, to guarantee the payment of certain bonds issued by the Providence and Springfield Railroad Company.

Creditors’ petition for the removal of an assignee under Pub. Stat. R. I. cap. 237, § 3.

<p>Deeendant’s petition for a new trial.</p> <p>Trespass on the case for seduction.</p>

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

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

<p>When the parties to a cause waive the right of trial by jury and submit the case both as to the law and as to the facts to the decision of the judge, under Pub. Stat. R. I. cap. 213, § 9, the findings of fact made by the judge will not be reviewed by this court if there is any evidence to support them.</p> <p>By waiving their right to have the question of fact determined by a jury, the parties also waive their right to have the findings of fact reviewed.</p>

This was a petition by the widow of James R. Irish for an allowance to her for the support of the family of her deceased husband, for the six months next after his decease.

<p>Defendant’s petition for a new trial. Indictment for receiving stolen goods.</p>

<p>Trespass on the Case. Certified from the Common Pleas Division on demurrer to the declaration.</p>

<p>Although, as a general rule, a vendor’s representations as to value even if false and fraudulent are not actionable, value being usually mere matter of opinion, yet lie may be liable for a false and fraudulent warranty of the value of a tiling sold, 'for a warranty is not a mere expression of opinion, but the state- • ment of a fact.</p> <p>An action for deceit will lie against a vendor for a false and fraudulent warranty of the value of bonds and stocks which the purchaser relied on to his injury.</p> <p>A statement made by a vendor in the sale of stock, that it had always paid a dividend of ten per cent, per annum in quarterly instalments, is a representation as to a material fact on which the buyer has a right to rely.</p> <p>In an action for deceit, a count which sets out a sale to the plaintiff in one transaction of both bonds and stock by means of false and fraudulent statements as to their value, and also by falsely and fraudulently representing that the stock had always paid a dividend of ton per cent, per annum in quarterly instalments, is not bad for duplicity.</p>

<p>A testator created a trust by his will directing that the “trustees shall stand possessed of the said fund ... in trust for my grandson . , . in case he should survive me and attain the age of twenty-one years,” directing- further that the net income of the fund should be paid to the grandson during his life, and in case of the death of the grandson before the testator or before attaining the age of twenty-one years, the trustees should stand possessed of the fund for such child or children of the grandson as should survive him, to “his, her and their executors, administrators and assigns absolutely.” The grandson survived the testator and died testate more tlian'twenty-one years of age.</p> <p>Held, that the grandson took a vested interest in the principal of the trust fund which on his death was to be paid to his executor.</p> <p>A devise in fee will be restricted and a devise for life enlarged to an estate tail by a gift over in case the devisee dies without issue, unless the context in the will requires a different construction. The regular limit of a fee tail is the failure of issue.' These rules applied to a devise in the case at bar.</p> <p>The testator provided in a codicil, “And in case of the failure of all the objects of the several trusts, created by my said original will and this my codicil, by, death or otherwise or the failure of the issue of either or all of my said children, then in that case I declare that all the then remaining property, both real and personal, in the several trusts created in my original will and in my codicil shall vest in and be distributed to the persons who for the time being shall be entitled to the same under the statutes of the State of Rhode Island then in force regulating the distribution of intestate estates.”</p> <p>One of the daughters of the testator died without leaving any issue.</p> <p>Held, in the circumstances from the other provisions of the will and to avoid re- • pugnancy, that “failure of the issue of either or all of my said children,” applied only to the child or children of a deceased child who survived the testator and attained the age of twenty-one years, and to the issue of such child or children dying within that age who during minority were to receive the income of the parent’s portion. Hence, that the words in qtiestion applied not to “ children,” but to “grandchildren,” or remoter issue.</p>

<p>Trespass on ti-ie Case for libel. Certified from the Common Pleas Division on demurrer to the declaration.</p>

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

Indictments. Certified from the Common Pleas Division on demurrers to pleas in abatement. The Judiciary Act, cap. 7, § 1, is as follows : Section 1. All persons over twenty-five years of age, who are qualified to vote upon any proposition to impose a tax or for the expenditure of .money in any town, shall be liable to •serve as jurors, except as is hereinafter provided.

Defendant’s petition for a new trial. This is an action of trespass on the case for personal injuries alleged to have been caused by the defendant’s negligence in running one of its trains into a sleigh in which the plaintiff and others were riding while crossing the track on a public highway in the night time.

<p>A divorce absolutely dissolving tlie bond of matrimony cuts off and destroys the husband’s right as tenant by the curtesy in his wife’s real estate, unless the right is preserved-to him by statute.</p> <p>Pub. Stat. R. I. cap. 167, § 5, providing that whenever a divorce shall be occasioned for fault of the wife the husband shall hold “ her real estate not secured to her by law during his natural life, in case they have had issue born alive of her body during the marriage, otherwise during her natural life only, if he shall survive her,” is practically nullified by Pub. Stat. R. I. cap. 166, § 1, whereby the real estate of a married woman is “absolutely secured to her sole and separate use,” since there is no real estate of a married woman which is not secured to her by law, and hence none which the husband can hold under cap. • - 167, § 5.</p>

Bill in Equity for an injunction. The real estate of a debtor was attached by two of his creditors April 23,1891. Within sixty days thereafter, June 11, 1891, a petition was filed for a receiver of the debtor’s property under Pub. Stat. R; I. cap. 237, § 13. The complainant was appointed receiver July 11, 1892.

<p>Executors allowed a large sum of money belonging to the estate to remain in a bank of deposit without interest from November 28,1887, the date of their appointment, to November 7, 1892. Nothing in the condition of the estate required the keeping of the fund deposited on call.</p> <p>Held, that from November 28, 1888, the end of the first year after tlicir appointment, the executors should he charged with simple interest on the average amount of the deposit during that time at the rate of four per cent, per annum until November 28, 1890, when their duty to pay over the money to the legatees became imperative ; from which latter date they should be charged with interest on the same amount at the rate of six per cent, per annum.</p> <p>The fact that the executors did not know who the persons were that were entitled to the money, cannot relieve them from the payment of interest, since it was their duty to have deposited the money in some savings hank or trust company where it would have drawn interest.</p>

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

Bill in Equity for an injunction. On motion to amend a final decree. A decree was entered granting relief, December 10, 1892. The complainant filed a motion in the cause to amend the decree June 4, 1894.

<p>Pub. Stat. R. I. cap. 182, §§ 4, 8, requiring wills to be attested and subscribed by two or more witnesses, is a prospective statute relating to prooí, and operates at the time of the testator’s death and not at the time of the execution of the will.</p> <p>I-Ience, where a foreign will was executed October 17, 1872, and attested by only two witnesses, at which time the law of Rhode Island provided that a will should be attested and subscribed by three or more witnesses, and .the testator died August 2, 1878, at which time the law of the State had been changed so as to require only two witnesses to a will:</p> <p>Held, that the will having been executed in accordance with the law in force here at the time of the testator’s death, it was properly admitted to probate here, and was effectual as a will in this State.</p>

<p>A declaration in' trespass on tlie case against a city, in which tlie act complained of is the negligent digging in and excavation of the river bottom in the Providence river around piles on which the plaintiff’s building rested whereby they were undermined, for the purpose of saving the expense of frequent removals of sand, etc., deposited by the city itself in the river by the maintenance of a sewer, and to provide a settling basin for the same, states a good cause of action.</p> <p>An allegation of malicious motive in such case is material only to the question of damages, not to the plaintiff’s right of action, and no point relative thereto arises on demurrer.</p>

<p>Bill in Equity to establish a lien. Heard on bill and answer.</p> <p>Elisha. Mowry and Benjamin W. Mowry died, the former December 3, 1882, the latter December 1, 1883, leaving last wills and testaments of the same date, whereby each devised and bequeathed to the other all his real- and personal estate for life and then proceeded to make devises and bequests in the same language to the same persons. The third and eighth clauses of the wills are as follows :</p> <p>“Third. I give devise and bequeath unto my cousin Nathaniel S. Mowry after the decease of my brother . . . _. the homestead farm where I now reside, to him his heirs and assigns forever.”</p> <p>“Eighth. I give devise and bequeath unto Nathaniels. Mowry in Trust for James S. Phillips of Lime Rock the sum of Five Hundred Dollars for his use and his use only, for and in consideration of the good will' and affection I have for him, and I hereby direct said Trustee that he shall pay said sum by installments or otherwise as he may deem best to the said James S. Phillips and to him only in such manner, and at such time or times, as in his judgment it shall be deemed proper.”</p> <p>The residuary clause is quoted in the opinion of the court.</p> <p>The two wills were duly admitted to probate and letters testamentary issued to Nathaniel S. Mowry, the executor named therein. Nathaniel S. Mowry died March 3, 1889, •leaving a will, and the executor named therein declining to serve, the respondent Samuel Clark was appointed administrator on the estate of Nathaniel S. Mowry with the will annexed. The estate was then declared to be insolvent, and commissioners of insolvency appointed. May 25, 1889. Subsequently, tlie respondent, under a decree of the Probate Court made on his petition, sold the real estate of his testator Nathaniel S. Mowry, which included that derived by him under the wills of Elisha and Benjamin W. Mowry.</p> <p>The complainant, who is the legatee named in the eighth clauses of the wills of Elisha and Benjamin W. Mowry, proved his claim of one thousand dollars before the commissioners of insolvency on the estate of Nathaniel S. Mowry, and the same not having been paid to him, he filed this bill to establish a lien on the proceeds in the hands of the respondent, as .administrator on the estate of Nathaniel S. Mowry, arising from the sale of the real estate of said Nathaniel S. Mowry derived from Elisha and Benjamin W. Mowry.</p>

<p>The verdict of a jury sustaining a contested will, will not be set aside as for a mistrial of the cause for the reason merely that the father of the foreman of the jury was a taxpayer in a town for the support of whose poor a bequest was given by the will in trust.</p> <p>Assuming that the father had any interest in the suit because the administration of the trust would reduce Ms tax, it is too remote and trifling to raise any presumption that it could have influenced the conduct of the son as a juror: But</p> <p>Query, whether the bequest can be applied to the support of persons receiving public aid, and thus, by reducing taxes, benefit the taxpayers rather than the poor.</p> <p>After the expiration of a jrnar from the trial of a cause, the time limited by statute for filing a petition for a new trial, a statement of the evidence given at tlie trial, but not allowed by the judge who tried the cause, as required by a rule oC practice, cannot be filed with the petition for a new trial which had been preferred within the limited time.</p> <p>Where a party elects to have his petition for a new trial heard without the evidence given at the trial of the cause, he cannot afterwards make its absence a ground for a rehearing of his petition.</p>

<p>Petition for Divorce.</p>

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

<p>Bill in Equity to obtain a conveyance of real estate. On motion for a decree pro confesso against the respondents, Augustus Martin and his wife Annie Martin.</p> <p>The bill alleged that the complainant had conveyed her real estate, situate in Rhode Island, to her sister Mary Judge, under such circumstances as entitled her to a reconveyance of the same, and that Mary Judge died intestate and without issue, leaving, however, an adopted child, the respondent Patrick Meany, alias Patrick Judge, Jr., who had been adopted by Mary Judge and her husband in Massachusetts, where the child Patrick and his parents resided at the time of the adoption.</p> <p>The question before the court was whether, upon the decease of Mary Judge, the title to the real estate passed to her adopted child Patrick, or to her sisters, the complainant and the respondent Annie Martin, as her heirs at law.</p>

<p>The proviso to Pub. Stat. R. I. cap. 214, § 33, that “Whenever an original party to the contract or cause of action is dead, .... the other party may be called as a witness by his opponent, but shall not be admitted to testify upon his own oiler .... unloss-a nominal party merely, or unless tiie contract in issue was originally made with a person who is living and competent to testify,” etc., does not apply .to a case where a surviving partner sues on a contract made with his firm, one member of which is dead.</p> <p>In such case the defendant may testify to a conversation had between himself and the deceased partner.</p>

<p>The written agreement of the attorney of a party to a suit, containing an admission of a fact made in order to obviate the necessity of proving it, is binding on the client, and is admissible in evidence after the attorney has ceased to represent his client in the cause, unless it is set aside by the court on motion.</p> <p>In a case where such an agreement was erroneously excluded when offered in evidence by the plaintiff, who, instead of assenting to the continuance of the case, excepted to'the ruling of the court, and called as a witness one of the defendants, according to whose testimony the admission was untrue, whereupon the plaintiff was nonsuited, the plaintiff was refused a new trial unless be could satisfy the court that he had evidence other than the agreement of the fact admitted therein.</p>

Bill in Equity for the specific performance of a contract to transfer certain improvements and inventions and letters patent therefor of the United States. ’ On demurrer.

<p>Where the grantee of an estate pays a part of the purchase money, no trust results to one who pays the residue as a general contribution towards the purchase merely, and not for a definite portion of the estate.</p> <p>A married woman purchased real estate which was conveyed to her. The greater part of the purchase money was furnished to her by her mother, the balance being money which had been earned in about equal parts by herself and her husband although it was deposited in savings banks in the husband’s name. The husband had little to do in the transaction, being opposed to the purchase though afterwards assenting to it. The wife always had possession of the deed, and the practical control of the estate, the husband making no claim to the estate until after he and his wife had separated.</p> <p>Held, that no trust resulted to the husband in any portion of the estate.</p>

Dependants’ petition, for a new trial. Action of assumpsit against husband and wife brought November 14, 1893. The declaration consisted of the common counts. Plea, the general issue.

Bill in Equity for instructions. The second clause of the will of Arnold Bucklin, which was admitted to probate by the Court of Probate of the City of Pawtucket, November 16, 1889, is as follows :— ‘‘ I give and devise to my wife, Margaret Malvina Bucklin, all of my property, both real, personal or mixed, of which I may be possessed at the time of my decease, to her and her heirs forever, but should my said wife decease without issue then my will is that all my said estate…

<p>Plaintiff’s petition for a new trial. Certified from the Common Pleas Division for Kent County.</p>

<p>Equity will decree the specific performance of a contract to convey personal property where like property cannot be obtained elsewhere, or where, for other reasons, an action at law for damages will not afford an adequate remedy.</p> <p>A bill to enforce a contract for the conveyance of corporate stock, which alleges that the complainant cannot obtain the stock elsewhere than from the respondent and that the value of the stock is uncertain and not easily ascertainable, states a case for the equitable relief of specific performance.</p> <p>The bill must allege that the respondent is the owner of the stock agreed to be conveyed; but to set out that the respondent “being, or pretending to be, possessed of, or otherwise entitled to, certain shares of stock,” does not amount to an averment of ownership, and renders the bill demurrable.</p>

<p>Pub. Laws R. I. cap. 365, of March 27,1874, provided for a division of the town of North Providence and the annexation of a part of- it to the town of Pawtucket and a part to the city of Providence. By the terms of the act, the question of its adoption was to be submitted to the voters of the towns of North Providence and Pawtucket on the first Wednesday in April, 1874. On that date a majority of the voters of the two towns voted in favor of its adoption, and the act took effect as therein provided, May 1, 1874. . By § 18 of the act it was enacted that all proceedings pending or commenced before the Court of Probate of North Providence prior to the adoption of the act, should be transferred to, continued by, and concluded according to law by the Court of Probate of Pawtucket as organized by the act.</p> <p>March 21, 1874; petitions for the appointment and approval of a guardian of minors who were then residents of North Providence, in that part of it which, when the act took effect, was annexed to the city of Providence, were presented to the Court of Probate of North Providence, and by it referred for consideration to April 11, 1874, but were not acted on by that court. May 20, 1874, the Court of Probate of Pawtucket heard the petitions and appointed one G. as guardian of the minors. Subsequently, G. having resigned his office as guardian, the Court of Probate of Pawtucket appointed one M. as guardian in his stead, and by a decree made October 21, 1874, on the petition of M., authorized him as guardian to sell real estate of his wards. M. accordingly sold the real estate and gave a guardian’s deed to the purchaser.</p> <p>Held, that Pub. Laws R. I. cap. 365, was adopted on the first Wednesday in April, 1874, when the voters of North Providence and Pawtucket voted for its adoption.</p> <p>Held, further, that as the petitions presented to the Court of Probate of North Providence, March 21, 1874, were pending before that court at the time of the adoption of the act, the proceedings were transferred to the Court of Probate of Pawtucket, which court, by taking action on the petitions after the act had taken effect, and appointing G. as a guardian, acquired jurisdiction over the estates of the wards, and consequently retained jurisdiction to accept the resignation of G. as guardian, to appoint M. as his successor in office, and to authorize M. on his petition to sell the real estate of his wards.</p> <p>Gen. Stat. R. I. cap. 168, § 15, provided that every guardian empowered by a Court of Probate to sell his ward’s property shall give a bond “ that he will apply the proeeeds of such sale to the purposes for which the same was allowed to be made, and invest the same, or the surplus thereof, as the case may be, in other real estate, or (specifying several modes in the alternative) or in such other manner as the court may direct.”</p> <p>A guardian having been empowered by a Court of Probate to sell his ward’s lands for the purpose of paying debts and investment, with a direction in the decree to apply, use and invest the proceeds in such manner as should be approved by the court, gave a bond, the condition of which, after reciting that he had been empowered to sell for the purpose of paying debts and investment, was to “apply and appropriate the proceeds received from said sale to the purposes aforesaid ...... and......in all things comply with the decree of said court authorizing said sale, and with the advice and direction of said court in relation to the premises,” without setting out the alternative modes of investment specified in the statute.</p> <p>Held, that the bond was in substantial compliance with the statute.</p> <p>A bond to invest the proceeds or surplus in either of the modes specified by the statute would be sufficient.</p> <p>That portion of Gen. Stat. R. I. cap. 168, § 16, which provided that no resignation of any guardian shall be accepted by a Court of Probate until he “ shall have settled his accounts with said court,” has no application to a guardian when no estate of his ward has come to his possession.</p> <p>A Court of Probate issued a letter of guardianship, which is on record, wherein it is recited that the appointee had given bond as required by law.</p> <p>Held, that the recital in the letter of guardianship is record evidence that a bond has been given.</p> <p>Held, further, that as the letter of guardianship could not have been properly issued until a bond had been filed, it is to be presumed that the bond was filed.</p> <p>The owner of a lot of land subject to a mortgage died intestate, May 3, 1873. His widow was appointed administratrix on his estate, and took up the mortgage, which was transferred to her July 10, 1873, but was never discharged of record. Shortly afterwards she died intestate. The heirs and next of kin of tlie husband and wife were their children. The title to the lot being brought in question on the foregoing facts in proceedings in 1894,</p> <p>Held, that as no facts appeared which would make it for the interest of the children to have the mortgage kept alive, and no possible claims which could be enforced against the mortgage were shown to exist, the mortgage and the equity of redemption had merged in the children, and the mortgage lien was extinguished.</p>

Bill in Equity by a judgment creditor to obtain payment of the judgment out of a fund in the hands of executors. On demurrer to the bill.

<p>Where a parent conveys land to a child by a deed expressed to be for a money consideration, it does not follow that because no consideration in fact passed at the time of the conveyance it is a deed of gift within the meaning of Pub. Stat. R. I. cap. 187, § 20, of advancement.</p> <p>A mother conveyed land to her son by a deed dated August 25, 1883, expressed to be in consideration of $3500. January 28, 1884, other land was conveyed to the mother and son, the purchase money for which was paid out of money deposited in the name of the mother. At the time of the conveyances the son had worked steadily at his trade and earned upwards of two dollars a day when he could obtain work, for a period of seventeen or eighteen years after becoming of age, and without remuneration except his maintenance, had turned over his earnings to his mother, and had besides done considerable work in caring for, repairing and improving her property. The mother died July 9,1892.</p> <p>Held, that the conveyances are not to be deemed as advancements to the son, but rather as having been made to remunerate the son for benefits received from him.</p>

<p>A will when proven relates back to the time of the testator’s death, and the rights of devisees and legatees under it are to be determined as of that date.</p> <p>Hence, where a testator gave his residuary estate to one for life, with power to change investments, then to a charitable corporation, but provided that if the amount of the gift was greater than the corporation could by its charter receive and hold, it should take as much as the charter allows, and that the over-plus should go to the trustee of a poor fund, the corporation took a vested remainder at the time of the testator’s death in so much only of the residuary estate as with its other property would carry its property to the amount limited by the charter at that time, and the trustee of the poor fund took a vested remainder in the excess.</p> <p>The iaet that the life tenant had power to vary investments in his discretion, and the fact that the capacity of the corporation to hold property was enlarged by a subsequent amendment of its charter, are immaterial.</p> <p>To determine the amount to which the corporation is entitled under the will, the value of the property which is held and the value of the remainder in the residuary estate are to be ascertained as of the date of the testator’s death.</p>

<p>A power of attorney to sell any or all of tlie real estate of tire principal, without restriction as to the mode of sale, may impliedly confer authority upon the attorney to plat the land and lay out lots and ways, the platting of land being a very common step towards its sale, and the laying out of ways, if the sale is to be in parcels, being often necessary, and incidental to the exercise of such full authority.</p> <p>T. claimed title to land which had been platted into lots and streets under a deed from A., in which the land was described as one hundred and thirteen lots in the town of Cranston, giving their numbers without reference to a plat. The heirs of A. claimed title to the same land. In proceeding to assess the value of the land which had been condemned by the city of Providence, and the title to which, as between T. and A.’s heirs, was in issue, the plat was fully, identified in evidence, and it appeared that the land was sold by the plat — that the lots wore checked thereon as they were compared with the deed, — that the plat was delivered with the deed, and that the grantee was put in possession of the land. The jury awarded T. the value of the lots, and found that the value of the streets was nothing. T. and the A. heirs then agreed that T. was the owner of the lots, and the A. heirs withdrew all claims against the city, and T. withdrew all claims against the city for the platted streets:</p> <p>Held, that the agreement between T. and the A. heirs w.as in effect a waiver of all exceptions to extrinsic proof.</p> <p>Held, further, that the agreement and the consequent judgment for T. settled T.’s title as to the lots.</p> <p>Held, further, that the legal effect of the deed conveying the lots to T. was to give him also title to the platted streets on which the lots in fact were bounded.</p>

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

Certiorari. The petitioner obtained judgment by default in an action against the respondent Handy, in a District Court, and took out execution thereon, which was delivered to an officer for service.

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

Appellees’ petition for a new trial. This was an appeal from a decree of the Municipal Court of the City of Providence admitting to probate the will of James D. Stuart, late of said Providence, deceased.

<p>Petition for Divorce. On respondent’s motion to set aside the decree and reinstate the case for trial.</p>

<p>Debt on a promissory note. Certified from the Common Pleas Division on demurrer to the declaration.</p>

Bill in Equity to dissolve a partnership. On complainant’s motion to assign the cause for hearing, and subsequently on exceptions to master’s report.

<p>Assumpsit. Certified from the Common Pleas Division on demurrer to a plea of coverture.</p>

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

<p>Defendant’s petition for a new trial. Certified from the District Court of the Third Judicial District on exceptions.</p>

<p>A ruling or decision of a District Court on any matter of law raised by the pleadings in a suit is not reviewable by tlie Common Pleas Division of the Supreme Conrt, but by the Appellate Division only, upon a bill of exceptions as provided by tlie Judiciary Act, cap. 80, § 12.</p> <p>To an action brought in a District Court against two, the defendants severally pleaded the general issue, and one of them also pleaded specially in bar. The District Court overruled a demurrer to the special ]5lea, whereupon the plaintiffs submitted to judgment for Hie defendants and claimed a jury trial, and the case was certified to the Common Pleas Division.</p> <p>Held, that the decision of the District Court overruling the demurrer to the special plea in bar was conclusive, and had the effect to take out of the case the defendant whose plea in bar was sustained.</p> <p>Held, further, that on a jury trial of the case in the Common Pleas Division, evidence to prove the joint liability of the original defendants was not admissible.</p> <p>General allegations in a petition for a new trial, although sworn to, without specifications thereunder, are not entitled to any consideration.</p> <p>On a petition for a new trial, a statement of evidence which has not been prescjffed to or allowed by the justice who presided at the trial, as required by the Judiciary Act, cap. 81, §§ 6, 7, forms no part of the record.</p>

<p>an a0y0n for malicious prosecution, a declaration which fails to allege, save ' in an argumentative way, that the malicious proceeding complained of had terminated in the plaintiff’s favor before the commencement of his action, is demurrable.</p>

<p>Bill of Interpleader.</p>

<p>Bill in Equity for specific performance and to perfect title. On demurrer and answers.</p>

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

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

Debt on a bond. Certified from the Common Pleas Division on demurrer to the declaration. The bond in suit was one'given in pursuance of Pub. Stat. R. I. cap. 184, § 10, which prescribes the form, of the bond.

<p>Bill in Equity for specific performance. Heard on pleadings and proofs.</p>

Plaintiff’s petition for a new trial. This case was tried in the Common Pleas Division of the Supreme Court, before Mr. Justice Rogers, jury trial being waived, and the following decision given:—

<p>An agent of a life insurance company who was entitled to a commission of fifty per cent, of tlie first premium on every policy issued by tbc company for insurance effected by liim, and whose duty it was to collect the first premium, effected insurance on a life for which the company issued a policy. The annual premium on the policy was of the same amount as would have been required for any other person of the same age, sex, condition of health, and hope of longevity. The agent took the promissory note of the insured payable to himself as agent for one half of the premium, and relinquished the residue in consideration of the insured's agreement to furnish the agent with the names of persons to be insured. The agent accounted with the company for its part of the premium.</p> <p>Held, that the transaction was not in violation of Pub. Laws R. I. cap. 673, which prohibits life insurance companies organized or doing business in this State from discriminating as to premiums charged on policies.</p> <p>Held, further, that the transaction was between the agent and the insured alone, and that the agreement of the insured to furnish names of persons to be insured was a sufficient consideration for the portion of the premium relinquished, which belonged to the agent himself.</p>

<p>Scire facias. Certified from the Common Pleas Division on demurrer to the plea.</p>

<p>A. gave an order, which, was accepted by his employer and duly recorded, for the payment of his wages each month as they became due to the firm of W. & O. until further notice. Shortly afterwards the firm of W. & O. was dissolved, W. having withdrawn from the firm, and its assets were assigned to its successors, O. & Go. Prom that time O. & Co. continued to furnish A. with goods, and to collect his wages as they became due and apply them to the pay-men of his indebtedness to O. & Co. A. did not at the time authorize such collection and application of his wages, but acquiesced therein. Some months afterwards A.’s wages were attached in the hands of his employer, who, after the garnishment, paid the attached wages to C. & Co.</p> <p>Held, that the dissolution of the firm of W. & O. was a revocation of the order, and that the garnishee was chargeable with the amount of A.’s wages , earned and unpaid 'at the time of the garnishment.</p>

<p>Bill in Equity to charge real estate with the payment of legacies. On demurrer.</p>

<p>Covenant. Certified from the Common Pleas Division on an agreed statement of facts.</p>

<p>In an action against a railroad company for personal injuries, the declaration alleged that the plaintiff was a fireman on one of the company’s locomotives, and, while in the performance of his duties, was thrown from the engine and injured in consequence of a certain switch being left open and in a dangerous condition through the negligence of the company in not providing a switch-man therefor, as it had hitherto and has since done. The proof at the trial was that the yard master had appointed the yard conductor to tend the switch during the temporary absence of the regular switchman ; that the yard conductor was competent to discharge the duties of switchman, but that having other duties to attend to, he forgot to close the switch in time for the train on which the plaintiff was employed. The plaintiff recovered a verdict. On defendant’s petition for a now trial,</p> <p>Held, that the negligence which caused the injury was that of the yard conductor while acting as switchman, and hence the negligence of a fellow servant for which the company was not liable.</p> <p>Held, further, that the company discharged its duty when it provided a competent person to attend to the switch.</p> <p>Held, further, that notice could not be imputed to the company that the switch was unattended from the fact that the yard conductor did not remain at the switch continuously during the day, even though the custom was to keep a switchman there constantly.</p> <p>Held, further, that judgment should be entered for the defendant unless the plaintiff obtain leave to amend his declaration.</p>

Bill in Equity to enjoin the collection of a town tax. On demurrer. The complainants as taxpayers of the town of East Providence, sue in behalf of themselves and all others who have a common interest in the subject matter and event of the suit.

<p>Where the owner of one half of certain promissory notes left with a bank for collection made a deed of assignment for the benefit of his creditors, the bank has a lien on the assignor’s half of the notes for the payment of the balance due from him on general account, and, hence, is entitled to one half of a dividend payable on the notes, to apply it to the payment of such balance.</p> <p>A secured creditor who has exhausted his security and still has a balance due him, is entitled to a dividend from the debtor’s insolvent estate on the full amount of his claim without deducting the sum realized from the security. Allen v. Danielson, 15 R. I. 480, affirmed.</p>

Plaintiff’s petition for a new trial. Trespass on the case brought by an employee of the defendant corporation, which was engaged in the manufacture of woolens, to recover damages for an injury occasioned by the defendant’s negligence in knowingly permitting the use of a picker in its business while the same was out of order and in an unsafe condition, in consequence of which the plaintiff’s finger was caught by the teeth of the feed roll of the picker and crushed.

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

<p>Dependant’s petition for a new trial.</p> <p>The defendant submitted to judgment for $73.75, in the District Court of the Ninth Judicial. District, October G, 1894. The entry made on the papers was “Deft, submits to Judgment for $73.75.” Defendant’s claim for jury trial was filed October 8, 1894.</p>

<p>Assumpsit on a promissory note. Certified from tbe Common Pleas Division on demurrers to replications.</p>

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

Bill in Equity by a married woman by her next friend against her husband and others. On respondents’ motion to dismiss the bill.

<p>Where a statute directs that twelve good and lawful men sliall be returned to serve as jurors, a greater number may properly be summoned in order to obtain tbe twelve good and lawful men required.</p> <p>A party bas no ground of complaint because of the exclusion of proper testimony of a witness,-where he has had the benefit of the testimony in the previous answers of the witness.</p>

Bill in Equity to perfect title to real estate. On demurrer. • The Mechanics Savings Bank by a deed expressed to be “in consideration of the sum of one dollar to it paid by Isabella Chambers Margaret Chambers Trustee,” conveyed its interest in certain land to ‘ ‘ the said Isabella Chambers Margaret Chambers Trustee her heirs and assigns forever.” Subsequently, a partition of the land was made by a deed to which “Isabella Chambers Margaret Chambers trustee” was a party.

<p>Possession of a promissory note indorsed in blank is prima fade evidence of ownership and entitles the holder to sue thereon without further proof of title until the defendant has adduced evidence that the plaintiff obtained the note by undue means, such as fraud, duress, theft or the like.</p>

<p>Testamentary gift of real 'and. personal estate to tlie testator’s daughter H. “ to be and remain to her the said H., and to her heirs and assigns forever, providing that she dies leaving lineal heirs of her body. But in case that the said H. shall die leaving no child or children or descendants to take and hold said real and personal estate, then and in such case, I give, devise and bequeath said real and personal estate herein given to the said H. to my son T. and to my daughter F. equally between them, and to their heirs and assigns forever.”</p> <p>H. intermarried with W. and died possessed of the real estate devised to her by the will, but left no child or descendant. A child born to H. and W. died in the lifetime of H. W. survived H.</p> <p>Held, that as the words of limitation in the will, “leaving no lineal heirs of her body” and “in case that the said Ii. shall die leaving no child or children or descendants,” manifested the testator’s intention that the gift over should take effect only upon an indefinite failure of issue, the gift over was void as an ex- • ecutory devise, and that H. took an estate tail in the devised realty. Wells v. Fairbanks, 6 R. I. 474, distinguished.</p> <p>Held, further, that W. was entitled to curtesy in the entailed estate.</p>

<p>One wlio is a creditor and stockholder of a corporation which is subject to the provisions of Pub. Stat. R. I. cap. 155, cannot maintain a bill in equity against the other stockholders either to enforce their statutory liability or for contribution, until he has exhausted his remedy at law by obtaining a judgment against the corporation and having an execution returned unsatisfied.</p>

<p>A testator devised the P. farm to his daughters O. and M. their heirs and assigns, “ provided, however, that in case my daughters C. and M. should die leaving no surviving issue, then it is my will that the estate on their decease be divided among my heirs at law according to the statutes of descents, their heirs and assigns forever, and I do devise the same accordingly.”</p> <p>This was followed by a devise of the II. estate in the same language except that the words “on both of their decease ” were substituted for the words “ on their decease.”</p> <p>C. and M. each died testate without leaving issue living at her death. The will of each made no mention of the P. farm and the II. estate, but the will of each devised “all the rest and residue of the property and estate real, personal and mixed, wherever situated,” of which she might die possessed to the First Congregational Church of Bristol.</p> <p>Reid, that C. 'and M. took estates in fee in the P. farm and the H. estate defeasible on the death of the survivor if they left no issue living at the death of the survivor ; that C. dying before M. her half of the realty passed under her will to the First Congregational Church ; that on the death of M. the fee simple of M. and that which the church took under the will of C. were defeated, and that the realty thereupon passed to the testator’s heirs at law by way of executory devise.</p> <p>Reid, further, that the testator’s heirs were to be ascertained as of the date of the death of M. in 1890, according to the statute of descents then in force.</p> <p>The status of a person being fixed by the law of the domicil, a natural child who is made legitimate under the laws of a foreign country, by the marriage of the parents domiciled there, is capable of taking by inheritance in this State, as the heir of the father.</p>

State op Rhode Island, Executive Department, April 17 th, 1893. To the Honorable Supreme Court of Rhode Island : Gentlemen : I desire to receive the opinion of Your Honors, upon the following point : The Senator-elect from North Smithfield having died, has the town clerk of said town the right to order a new election for Senator in that town, before the meeting of the body to which the deceased was elected a member ? D. Russell Brown, Governor.

State of Rhode Island, Executive Department. May 19th, 1893.

<p>The General Assembly of Rhode Island met at Newport pursuant to the Constitution, on the last Tuesday in May, 1893, i. e. May 30. After the two Houses had organized, the House of Representatives sent an invitation to the Senate to join it in grand committee in order to count and to declare the votes cast for general officers, and to elect general officers in case of a failure to elect by the electors.</p> <p>June 1, 1893, the Senate by resolution declined this invitation, because, ‘ ‘ since the organization of the House, that body, to the knowledge of the members of the Senate, had unseated certain of its members, and seated a person not elected, in violation of law and in defiance of the Constitution of the State, thereby changing the character of the grand committee, and that therefore the House as at present constituted is not the body with which the Constitution contemplates that the Senate should meet for the purpose named in the resolution.”</p> <p>June 1, 1893, the Senate voted to adjourn to meet at the State House in Providence on the last Tuesday in January, 1894, and transmitted this vote to the House.</p> <p>June 2, 1893, the Senate, “owing to irreconcilable differences ” between it and the House of Representatives as to the time and place of adjournment, voted to adjourn to meet at the State House in Providence on the last Tuesday of January, 1894. It also adopted a resolution certifying to the Governor a disagreement between it and the House of Representatives as to the time and place of adjournment. The same day, June 2, the Governor adjourned the General Assembly to meet at the State House in Providence on the last Tuesday in January, 1894. The House of Representatives then adopted the following resolution :</p> <p>“ Resolved, That the Honorable Judges of the Supreme Court be and are hereby requested to give to the House of Representatives their opinion upon the following questions of law.</p> <p>u First. Has the Senate the constitutional power at the May session to pass a resolution of adjournment for a longer period than two days, until after it has joined with the House of Representatives in grand committee, request having been made to the Senate by the House of Representatives to join in such grand committee for the purpose of counting and declaring the votes cast for general officers at the preceding April election ?</p> <p>££ Second. In case a resolution of adjournment to the city of Providence to the fourth Tuesday in January following should have been adopted by the Senate before joining the House of Representatives in grand committee at the annual May session for the purpose of counting and declaring the votes cast for general officers at the preceding general election, should not have been acted upon by the House of Representatives, does such a state of things constitute a £ disagreement’ on the subject of adjournment, which confers upon the Governor the power to adjourn the General Assembly under section 6, article VII. of the Constitution ?</p> <p>£ £ Third. Can the General Assembly at the May session be adjourned by the Governor under the power conferred upon him by section 6, article VII. of the Constitution, until after the two houses have joined in grand committee for the purpose of counting and declaring the votes cast for general officers at the preceding April election ? ”</p> <p>This resolution was indorsed £ £ In the House of Representatives, June 2, 1893. Read and passed, John E. Conley, clerk,” and was transmitted by the Speaker of the House to the court.</p>

<p>The judicial records of the state should always he accessible to .the people for all proper purposes, under reasonable restriction as to the time and mode of examining the same ; but no one has a right to examine or obtain copies thereof from mere curiosity, or for the purpose of creating public scandal.</p> <p>The clerk of the court is advised not to furnish a copy of the proceedings in a divorce case to the reporter of a newspaper who requested it “for publication or otherwise.”</p>