Volume 19 — Rhode Island Reports

<p>M, executed a bill of sale of a store and contents to G., in which the consideration was expressed to be the sum of $500, and in which, following the description of the property sold, was this stipulation : “and I hereby agree to keep said store and contents insured at not less than fifteen hundred dollars against fire, or to permit said G. to do the same. Said five hundred dollars to be paid in two notes of $250 each, and when paid said G. is to sell back to this grantor.”</p> <p>Held, that the bill of sale was by its terms a mortgage.</p> <p>Held, further, that the property covered by the bill of sale while in the possession of M. and redeemable at law or in equity, was subject to attachment for M.’s debts. Pub. Stat. R. I. cap. 208, § 4.</p> <p>A mortgagee of personal property has the immediate right of possession unless there is some stipulation to the contrary in the mortgage.</p>

<p>The charter of the city of Pawtucket, § 7, clause 7, provides that the city council may “remove from office for incapacity or misconduct any officer elected or appointed hy them.”</p> <p>Charges of official misconduct having been made against an officer, the city council appointed a committee to hear all parties and report the result of such hearing. Subsequently the committee made a report to the council and the testimony taken by it was read, whereupon the council passed a vote finding the officer guilty and removing him from office. Notice had been given to the officer of the taking of the testimony before the committee, but no notice was given to him of the subsequent proceedings before the council.</p> <p>Held, that as the officer was not notified of the proceedings before the council for his removal from office so that he might be heard on the question of his removal, the proceeding was not such a trial as is contemplated by the charter and must be quashed.</p> <p>In the absence of any statute modifying the common law procedure on certiorari, a report of the testimony before the tribunal below forms no part of the record to bo sent up for review.</p>

Bill in Equity to enforce a charge on realty. Charlotte R. Dodge by her guardian filed her bill, No. 3438 on the equity docket of the court, January 25, 1893, against J ohn W. Hogan and others to enforce a charge on real estate under the third clause of the will of her mother Charlotte D. Dodge, which clause is set forth in the opinion of the court, infra, p. 8.

<p>A declaration in 'assumpsit wliicb. alleges tlie making and recording of a chattel mortgage, non-payment of the mortgage debt, sale of the mortgaged property under execution, and refusal of the officer who made the sale to apply the proceeds of sale on mortgagee’s demand to the payment of the mortgage debt, states a cause of action in favor of the mortgagee against the officer under Pub. Stat. R. I. cap. 223, § 6, which provides that on sale of mortgaged personalty under an execution the proceeds shall be applied to the payment of the mortgage debt and the balance to the amount due on the execution.</p>

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

<p>Bill in Equity. Heard on pleadings and proof.</p>

<p>A mortgage of “every article and tiling in stock or in process of manufacture” in a j ewelry establishment, does not include the machinery and fixtures.</p> <p>The description of the property in a mortgage cannot be enlarged by parol evidence of the intention of the mortgagor to include other property than that within the terms of the description.</p>

<p>• Trespass on the case for injuries sustained by reason of a defect in the highway. This case was pending in the Supreme Court on exceptions to the Court of Common Pleas when the Judiciary Act went into operation.</p>

Bill in Equity for instructions. The fifth clause of the will of Fitz James Rice, dated September 22, 1875, following gifts of a pecuniary and specific legacies is as follows : “Fifth. Held: taken and received by her in lieu of her right of dower, and not otherwise. £C Second.

<p>Pub. Laws R. I. cap. 631, of April 20, 1887, as amended by Pub. Laws R. I. cap. 820, of July 30, 1889, of proceedings iu insolvencj'-, provide tliat, where a claim against an insolvent debtor is disallowed by his assignee the claimant shall “ bring suit against such assignee to test the validity of such claim ; ”</p> <p>Held, that by “ suit” the statute contemplated proceedings in equity and not an action at law, the method of procedure in .common law actions not being-adapted to the case in view of the results to be reached.</p> <p>A preliminary recital in an agreed statement of facts in a petition for a new trial that an action at law was duly brought in accordance with a statute, when not intended as an admission of the validity of the suit, will not estop the defendant from objecting to the action as not being warranted by the statute, nor will long delay in objecting to the action by plea or otherwise be deemed a waiver of the right to object where the case is one which the court cannot deal with in that proceeding.</p>

Bill in Equity to compel a conveyance of realty. • On demurrer.

Defendants’ petition for a new trial. This cause was before the court on a former occasion on demurrer to the declaration. 18 R. I. 749.

<p>Unless mortgaged personalty be redeemed within sixty days after the condition of the mortgage has been broken, the time allowed for redemption by Pub. Stat. R. I. cap. 176, § 11, the mortgage is to be regarded as foreclosed and the right of redemption barred at the expiration of the sixty days.</p> <p>A bill for an account of mortgaged personal estate cannot be maintained against the mortgagee, after the expiration of the time allowed for redemption by Pub. Stat. R. I. cap. 176, § 11, where no equities appear which would permit a redemption at a later day.</p> <p>An averment in general terms 'of the existence of intricate and complicated accounts between the parties is not sufficient to support a bill for an account.</p>

<p>Mandamus. Petition for a writ to the clerk of the Common Pleas Division of the Supreme Court for the county of Providence commanding him to receive and file a petition for a new trial.</p> <p>The petition alleges that a verdict was rendered against the petitioner in the Common Pleas Division in an action brought by him against the city treasurer of the city of Providence, whereupon, after due notice of his intention to prefer a petition for a new trial and within the required time, he presented to the clerk of the Common Pleas Division a petition for a new trial on the ground of the disqualification of one of the jurors who sat in the case by reason of his be-’ ing a taxpayer of the city of Providence; that the clerk received said petition and placed his file mark thereon, but afterwards erased the file mark and returned the petition to the petitioner; and that he refuses to receive and file such petition and to place the same upon the docket and records of the Common Pleas Division.</p>

Defendant’s petition for a new trial. This was an action of assumpsit to recover damages for breach of a contract for sale.

Trespass on the Case for personal-injuries. Certified, from the Common Pleas Division on demurrer to the declaration. See 18 R. I. 563, for a report of this case, when it was previously before the court.

<p>Case stated for an opinion of the court under the Judiciary Act, cap. 20, § 24.</p>

<p>A return to a common law writ of certiorari is not defective because it does not set out the evidence upon which the judgment or finding complained of was based.</p> <p>The purpose of certioran is to correct errors of law, not to review findings of fact; and the proper practice is not to send up the evidence adduced before the inferior tribunal.</p>

<p>Probate Appeal.</p>

Bill in Equity to enjoin the collection of a town tax. On exceptions to the answer. This case was before the court on a former occasion on demurrer. 18 R. I. PT6.

<p>Tlie Judiciary Act, cap. 13, § 18, provides : “No judgment, without complete satisfaction, rendered against a part only of the defendants in any action upon a joint contract, shall be a bar to any future action on said contract, for any unsatisfied balance duo, against such of the defendants upon whom or whose estate the writ in the original action shall not have been served.”</p> <p>Under the implication of the statute and the established practice in this State, where in an action against several defendants on a joint contract service of the writ can be made upon a part only of them, the action may proceed and judgment be rendered against such of the defendants as have been served with process.</p>

Bill in Equity for instructions. Chase Wiggin died February 23, 1891, leaving a will dated January 13, 1883, which was admitted to probate by the Municipal Court of the city of Providence, March 24, 1891.

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

<p>Defendant’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>Dependant’s petition for new trial.</p> <p>This was an action of debt on a bond brought in the District Court of the Tenth Judicial District, August 15, 1893. The bond was conditioned to satisfy a judgment and was given to the plaintiff for the purpose of dissolving an attachment made by him on a writ against the defendant Edward F. Donnelly.</p>

Defendant’s petition for a new trial. This was an action of trespass quare clausum fregit¿ The plaintiff’s close was described, in the declaration as bounded by Narragansett Bay. The alleged trespass proven was the digging of clams below high water mark in a thatch bed which ran out from the upland, and thereby destroying the thatch.

<p>Petition for a Writ of Habeas Corpus,</p> <p>The petitioner, a non-resident of Ehode Island, was arrested on a writ in an action of assumpsit and committed to jail. The case was continued nisi until the petitioner should be released and be able to appear in court at the trial thereof. Subsequently the petitioner was discharged from his commitment by being admitted to take the poor debtor’s oath, and upon leaving the jail was arrested on a writ in an action of deceit and committed to jail, the action of assumpsit still pending.</p>

<p>M. having contracted with A. for a loan of $25 for one month with interest at the rate of ten per cent., A. procured M.’s signatures to a note for that sum payable in one month after date with interest at the rate of ten per cent, a month in advance till the principal is paid and interest on all installments of interest in arrear at the same rate till paid, and also to a mortgage of M.’s undivided interest in real estate securing the note under the following circumstances : A. presented the note and mortgage to M. for signature at dusk when it was too dark to read them, saying that he was in a hurry and that it was unnecessary to read them as the signing was a mere matter of form. M., who had but little business experience, signed them without being aware of the terms of the note. The mortgage though recorded did not disclose the rate of interest or how it was to be paid. M. did not become aware of the terms of the note until after he filed his bill in this case.</p> <p>M. did not pay the note at maturity but paid two or three installments of interest at the rate of ten per cent. He was notified that the mortgage would be foreclosed by sale if the loan was not paid, but took no action until after'A. had advertised the property' for sale when he filed a bill to redeem the mortgage.</p> <p>Held, that the note fell within the class of deceptive and unconscionable contracts which a court of equity would not enforce or uphold.</p> <p>Held, further, that the payments of the interest by M. subsequently to the maturity of the note operated as a renewal of the loan for the periods for which such payments were made.</p> <p>Held, further, that M. should be permitted to redeem on payment of the principal sum with interest at the rate of six per ’cent, per annum from the date to which it had been paid together with the cost, of advertising the property for sale.</p>

Trespass on the Case for slander. Certified from the Common Pleas Division on demurrer to the declaration. The action was brought by Asa H. Richmond and Evelyn L. Richmond his wife. The declaration charged the defendant with uttering the following words of and concerning the plaintiffs : ‘ ‘ The lying dog, he never paid me a cent.

<p>A. advanced money for repairs and improvements on B.’s estate in consideration of B.’s promise to make liis will in A.’s favor and to devise to him the estate. B. executed such a will, but subsequently made another will devising the estate to other persons. On a bill brought by A. after B.’s death, to establish a lien on the estate for his advances,</p> <p>Ileld, that A. was not entitled to a lien.</p>

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

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

<p>Assumpsit. Certified from the Common Pleas Division on demurrer to a plea in bar.</p> <p>The contract declared on was in substance that the defendant corporation, in consideration that the plaintiff would forbear to bring’ suit against it for injuries sustained and would and did release to the defendant all claims for such injuries, agreed with the plaintiff to give him employment. The defendant pleaded in bar the release, the substance of which is stated in the opinion of the court.</p>

Defendant’s petition for a new trial. This was an action of covenant on a guaranty under seal given by the defendant, which read as follows : “For and in consideration of one dollar, the receipt of which I hereby acknowledge, I hereby agree to guarantee all purchases that William U. McQuinn, doing business as a tailor in Providence, may make from Burt'& Snow of said Providence.

<p>Under Pub. Stat. B. I. cap. 204, § 8, the actions and causes of action for damages to the person which survive are such only as are for injuries not resulting in death.</p> <p>In cases in which the death of any person results from an injury to the person the only remedy under the statutes of this State is that provided by Pub. Stat. B. I. cap. 204, § 20, which gives an action for damages for the injury caused by the death of such person where death ensued from an injury inflicted by the wrongful act of another and for which an action for damages might have been maintained at common law had death not ensued.</p>

<p>Appeal from a decree of the Court of Probate of the town of East Providence.</p>

<p>Trespass de bonis asportatis. Certified from the District Court of the Sixth Judicial District on exceptions.</p>

<p>The rule that as between the real and personal representatives the personalty is the primary fund for the payment of debts extends to debts secured by a mortgage on realty when the encumbrance was created by the deceased himself : If, however, the estate was already mortgaged when it was acquired by the deceased, then the estate is the primary fund for the payment of the mortgage debt unless the deceased has so dealt with the debt as to make it his own personal debt.</p> <p>R. purchased an estate subject to a mortgage, and assumed the payment of the mortgage by a clause in the deed to him as follows : “ Said premises are subject to a mortgage of twenty-five thousand dollars ($25,000) to the Mechanics Savings Bank payment of which is assumed by this grantee.”</p> <p>Held, that the assumption of the mortgage by R. was equivalent to a covenant with his grantors to indemnify them against the mortgage debt, or to pay the debt, but did not sufficiently show an intention to transfer the debt from the estate to himself, as between his real and personal representatives. Subsequently the Mechanics Savings Bank transferred the mortgage to the Citizens Savings Bank, R. as a consideration therefor signing an agreement on the back of the notes as follows: “ Waiving demand, notice and protest, I hereby guarantee the full payment of the within note; future payments of principal or of interest in renewal thereof not releasing me as indorser.”</p> <p>Held, that R.’s guaranty being merely a collateral undertaking not affecting the original agreement between the mortgagor and the holder of the mortgage, was not a sufficient manifestation on R.’s part as between the real and personal representatives of R. to transfer the debt from the real estate on which it was charged to the personal estate.</p> <p>Held, further, that R.’s administrator should not pay the mortgage debt out of the personalty which may come to his hands.</p>

<p>A bank by paying a deposit to one who has no right to receive it renders itself liable to the true owner only where it makes the payment in violation of its own by-laws or is guilty of negligence.</p> <p>A savings bank required ninety days notice for the withdrawal of deposits. The trustees of a benefit association, under a vote of the association, drew an order on the bank for the payment of §700 to themselves or bearer, and gave it to F., the president of the association, to leave with the bank as notice of withdrawal. In pursuance of an arrangement between F., the bank and W. and A., the bank transferred the §700 to the credit of W. and A , entering the withdrawal in the pass book of the association which was produced by F. W. and A. then advanced to F. §640, the sum agreed upon. F. absconded with the money. The bank, W. and A. acted in good faith.</p> <p>Held, that as the bank had neither violated any of its rules nor been guilty of negligence in the transaction, it was not liable to the association for the amount of the order.</p>

Bill in Equity by a trustee, or stockholder in a corporation, and his cestui que trust, against the corporation and the other stockholders for an account of moneys alleged to have been wrongfully paid to certain stockholders for salaries. On exceptions to the master’s report, and subsequently on the form of decree. This cause was previously before the court, and is reported in 18 R. I. 396,-.

<p>Debt on bond. Certified from the Common Pleas Division on demurrer to the declaration.</p> <p>The plaintiff sues ás the purchaser and bearer of certain coupon bonds for $1000 each, issued by the defendant corporation, all of the same tenor and date as follows :</p> <p>UNITED STATES OE AMEEICA.</p> <p>STATE OF PENNSYLVANIA.</p> <p>No. $1,000.</p> <p>THE AMERICAN WOOD PAPER COMPANY.</p> <p> First Mortgage Six Per Cent. Bond. </p> <p>Know all men by these presents, that The American Wood Paper Company, a corporation duly organized under the laws of the State of Ehode Island and expressly authorized by Act of Assembly of the Commonwealth of Pennsylvania, to hold, land and to have its business as a corporation in the State of Pennsylvania, hereby acknowledges itself indebted to the Girard Life Insurance, Annuity and Trust Company, of Philadelphia, or hearer, in case of registry to the registered owner hereof, in the sum of One Thousand Dollars lawful money of the United States of America, which sum the said Company promises to pay to the said The Girard Life Insurance, Annuity and Trust Company, or bearer, or in case of registry to the registered owner hereof, at the office of The Girard Life Insurance, Annuity and Trust Company in the City of Philadelphia in ten years from the date hereof, to wit: on the first day of May, Anno Domini, one thousand nine hundred, reserving the right and privilege of paying the same at any time after five years from the date hereof, with interest thereon at the rate of six per cent, per annum, payable semi-annually on the first day of the months of May and November in each year on delivery of the annexed coupons as they severally become due without any deduction for any tax on the principal or interest- which the Company by any present or future law of the United States or of the State of Pennsylvania, may be required to retain therefrom for National or State- purposes ; the Company hereby agreeing to assume payment thereof.</p> <p>This Bond is one of a series of three hundred (300) bonds for one thousand dollars ($1,000,) each numbered consecutively from one to three hundred both inclusive, all of like tenor and date, and payment of the principal and interest is secured by a duly recorded First Mortgage-of the American 'Wood Paper Company for three hundred thousand dollars ($300,000.) upon all its property, lands, works, buildings, machinery and real estate in the State of Pennsylvania, hearing even date herewith, duly authorized, executed and delivered by the said Company to the Girard Life Insurance, Annuity and Trust Company of Philadelphia, the Trustees in trust to secure the payment of the principal and interest of the said Bonds; which payment is to he further secured by a sinking fund to be created by the annual appropriation of not less than five per centum of the principal of said mortgages, as more particularly therein mentioned and described. This Bond may be registered in the owner’s name, and thereafter no transfer hereof shall he valid unless made on the books of The Girard Life Insurance, Annuity and Trust Company of' Philadelphia, by the registered owner or its duly authorized attorney and duly certified hereon, but it may he discharged from registry by transfer to bearer and thereon be transferable by delivery, hut may again be registered in owner’s name as before. The registry of this Bond shall not restrain the negotiability of the coupons by delivery merely, but the coupons may be surrendered and the interest as above be made payable to the registered owner or by order only, such surrender to be certified hereon. This Bond shall not become obligatory until it shall have been authenticated by a certificate endorsed hereon and duly signed by the Trustee.</p> <p>In Witness Whereof, the said The American Wood Paper Company has caused these presents to be signed by its President and attested by its secretary and the common or corporate seal hereto affixed, and has also caused the name of its Treasurer to be affixed to the coupons hereunto-annexed this first day of May, Anno Domini, one thousand eight hundred and ninety.</p> <p>Geo. H. Btjsil, Secretary. \ ' J f CORPORATE\ Chas. F. Mason, President ' SBA1, '</p> <p>It is provided in the mortgage given to secure the bonds that if the American Wood Paper Company, its successors and assigns, shall at any time hereafter after demand made, make default or neglect for any period exceeding six months to pay the semi-annual interest on the bonds when and as the same shall become due and payable, or after demand made, make default or neglect to pay the principal sum of each and all of the bonds when and as the same shall become due and payable according to the terms thereof, then and in each of said cases the trustee shall upon the written request of holders of one third of the aggregate amount of all the outstanding bonds, enter upon and take possession of the mortgaged property and. apply the income to the payment of bonds, or after or without such entry, upon the written request of holders of a like amount of outstanding bonds, proceed to sell the mortgaged property and apply the proceeds to the payment of the bonds “it being distinctly understood and agreed that in the event of any such default the whole principal sum of all said bonds then outstanding shall forthwith become due and payable."</p>

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

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

Bill in Equity for an injunction. On demurrer and-subsequently on the sufficiency of a plea. The bill was preferred by the widow and next of kin of Alfred Miller, deceased, to enjoin the respondent who was administrator on the estate of said Alfred Miller, from discontinuing an action brought by them in his name as such administrator under Pub. Stat. R. I. cap. 2-04, §§15, 18.

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

<p>Where a mortgagee or any one for him, under Pub. Stat. R. I. cap. 176, § 15, purchases the mortgaged property at a sale by public auction made under a power oí sale in the mortgage deed, he must act “fairly and in good faith,” or the sale may be voided even though he be within the letter of the law and the power.</p> <p>While neither inadequacy of price nor the death of the mortgagor taken separately is sufficient to avoid a mortgagee’s sale, yet these circumstances may be taken into account in connection with others in determining whether the sale was made fairly and in good faith.</p> <p>A savings bank held a mortgage for $10,000 on the property of G. and others, the interest on which became due August 8, 1898, and remained unpaid August 8, 1894, when G. died. ‘ A few days after G’s death, N., the treasurer of the bank, caused the property to bo advertised for sale, and on September 18, 1894, sold it to himself for the sum of $6,70'), paying therefor by giving a new mortgage to the bank for $7,000. No executor or administrator had been appointed on G.’s estate. A bill brought by the heirs oí G. alleged that the sale was unfair, without bidders other than N. himself, and was made by N. in collusion with one of the surviving- mortgagors for the purpose of taking-advantage of the absence and ignorance of the complainants, and securing the property worth §16,000 at a price far below its value. The bill prayed that N. might be declared a trustee for the complainants to the extent of their interest in the property subject to the $7,000 mortgage. On demurrer for want of equity,</p> <p>Held, that the bill stated a case of misconduct on N.’s part such as would entitle the complainants to avoid the sale, since it showed an attempt by N., by means of a collusive sale and without an effort to attract bidders, to wipe out G.’s interest at a time when there was no authorized representative of his estate, and leaving G.’s estate liable for the balance of the mortgage debt.</p> <p>Held, further, that the complainants instead of preferring a bill to redeem the original mortgage, might treat the sale as passing the legal title to the property with a trust for their benefit, and have N. decreed a trustee for them as prayed in the bill.</p>

<p>The Judiciary Act, cap. 33. § 20, which provides for “the attachment of the shares of the defendant in any corporation,” etc., is to be construed in view of the fundamental principle that property to be the subject of attachment must be actually or constructively within the jurisdilion' of the court issuing the attachment.</p> <p>Shares of stock owned by a non-resident defendant in a foreign corporation cannot be reached by attachment or trustee process under the Judiciary Act, cap. 33, § 20, the situs of the stock for the purposes of attachment and execution being the domicile of the corporation which is within the Stale creating it. Where by the provisions of the charter or a general statute power is conferred upon a corporation to enact by-laws for certain specified purposes, its power of legislation is limited to the cases and objects enumerated.</p> <p>A statute of the State of Maine authorized corporations to enact by-laws for the following specified purposes : to determine the manner of calling and conducting meetings, the number of members that constitute a quorum, the number of votes to be given by the shareholders, the mode of voting by proxy and of selling shares for neglect to pay assessments.</p> <p>Held, that a corporation organized under the laws of Maine had no power to enact a by-law providing that no stockholder shall sell his stock to any person unless he shall first offer the same to the corporation at the lowest price for which he is willing to sell it.</p>

<p>A Are insurance policy on a dwelling-house and barn contained the following clause: “If the property hereby insured shall be mortgaged, levied on or attached, or taken into possession or custody under any proceeding at law or equity, or change takes place in title or possession, .... all insurance by this policy shall thereby cease.”</p> <p>Held, that the word “attached” in the clause had special reference to personal property, the possession of which is usually changed upon an attachment, and not to real estate prior to change of title by a sale on execution.</p>

<p>Bill in Equity to reform a mortgage. Heard on pleadings and proofs.</p>

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

<p>A testator gave all his property subject to a life estate to five trustees in trust to erect a brick block to be forever known as the “A. G. & A. W. Olney Block,” the remainder to be held by them and managed in such manner ás they might deem for the best interest thereof, the whole to be known as the “A. W. Olney Trust Estate.” He directed the rents and income to be divided among his heirs in the same proportions as they would inherit his intestate estate, when* ever the accumulations should reach such proportions that the trustees should deem such dividends advisable, and provided further that vacancies in the board of trustees should be filled by the probate*court having jurisdiction of the will “ever thereafter.” There was no provision in the will for a vesting of the estate or any part thereof in anybody at any time except by way of the dividends to his heirs.</p> <p>I-Ield, that the trust was void as a perpetuity.</p> <p>After an administrator with the will annexed of an estate devised in trust has fully administered the estate, and his account has been finally passed upon by the probate court, the trustees are then the legal custodians of the fund; and for all that remains to be done in settling the rights of the parties a court of equity is the proper forum.</p>

<p>G. being the owner of real estate taxed at $7000 which was to be sold for taxes, requested E. to attend the sale and purchase it. E. bought the land for the sum of $49.40 and took a deed from the collector of taxes. G. intended to make a gift of the land to E. through the medium of the tax sale, and so informed E., but remained in possession until his death. The tax deed was void, but both parties supposed it to be valid. After G.'s death his devisee claimed the land.</p> <p>Held, that the tax deed being void the intended gift to E. failed.</p> <p>Held, further, that G.'s devisee was not estopped from asserting title to the land, since there had been nothing in G.'s conduct in regard to the purchase of the land by E., either misrepresentation or concealment, knowledge or waiver of any defect in the title, to create an estoppel in pais.</p> <p>An equitable estoppel ought not to be enforced at law in favor of a purchaser of property where there is such a disproportion between the value of land and the price paid for it as to shock the conscience.</p>

<p>Bill in Equity for an injunction. Heard on pleadings and proofs.</p>

<p>Bill in Equity to reform a deed and mortgage. Heard on pleadings and proofs.</p> <p>In 1872 the A. & W. Sprague Manufacturing Company, the complainant’s predecessor in title,, and Rodney E. Dyer, Senior, the respondent’s predecessor in title, were the owners of land on opposite sides of the Cranston Print Works Pond. April 29, 1872, the agreement referred to in the opinion of the court was made between the parties, whereby Dyer agreed • to sell to the A. & W. Sprague Manuf. Co. his land “with all the buildings and improvements thereon and water rights and appurtenances therewith connected.” June 1, 1872, Dyer conveyed the land to Albert S. Gallup, who on the same day mortgaged it back to Dyer, and then on the same day conveyed it to the A. & W. Sprague Manuf. Co., each of the deeds purporting to convey the land with the “water rights and appurtenances therewith connected.” The mortgage was subsequently foreclosed. The bill seeks to reform Dyer’s deed to Gallup and Gullup’s mortgage to Dyer. See Cranston Print Works v. Dyer, 18 R. I. 526.</p>

<p>A notice of intention to claim a lien on land for materials furnished which states that the lien intended to be claimed is created by Pub. Stat. R. I. cap. 177, § 5, as amended by Pub. Laws, cap. 696, of March 21, 1888, is fatally defective, the lien being given by Pub. Stat. R. I. cap. 177, § 1, as amended by Pub. Laws, cap. 696, § 1.</p> <p>Query, whether a notice of intention to claim a lien on land for materials furnished is sufficient where it omits to state what the materials were, or that they had been furnished within sixty days prior to the giving of notice, or against whose estate in the land it is intended to claim the lien.</p>

<p>Dependants’ petition for a new trial.</p> <p>This was trespass guare clausum fregit against the sheriff of .Newport county and his deputy for breaking and entering the plaintiff’s store and ejecting the plaintiff therefrom. The deputy took possession of the store and contents August 7, 1894, under a writ of attachment, excluded the owner, the defendant in the attachment writ, from the store, and retained possession until September 26, 1894, when he sold the property under the execution issued in the attachment suit. The property attached was subject to a mortgage.</p>

<p>Plaintiff’s petition for a new trial.</p> <p>Action of assumpsit to recover wages as an employee in a mill in Massachusetts.</p>

<p>Debt on judgment. Certified from the Common Pleas Division on demurrer to a plea.</p>

<p>Petitions for a new trial.</p>

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

<p>Pub. Stat. R. I. cap. 43, § 6, of the assessment of taxes, requires the assessors to give but one notice before assessing a tax, viz., the notice in -which they specify the time and place of their meeting and notify every person liable to taxation to bring in to them-an account of his ratable estate.</p> <p>Pub. Stat. R. I. cap. 43, § 0, does not contemplate that after having given notice to those liable to taxation to bring in their accounts at the time prescribed in the notice, and after having made up the assessment list required by § 8, the assessors shall hold a final meeting for the purpose of assessing the tax, so that the taxpayers may have an opportunity to inspect the assessment list, and be heard upon their objections, before the list has been signed and deposited in the otfice of the town clerk.</p> <p>The purpose of Pub. Stat, R. I. cap. 43. § 7, which provides that every person bringing in the account oE his ratable estate required by § 6 shall make oath to the same before some one of the assessors, and that whoever neglects or refuses to bring in such account if overtaxed shall have no remedy therefor, is to compel everyone liable to be taxed personally to carry in his account to the assessors : And such person may then be examined by the assessors as to his account while he at the same time will have an opportunity to be heard thereon.</p> <p>The power to exempt from taxation is included in the power to tax, and can only be exercised by the General Assembly within the limitations of the Constitution, or by the several municipal bodies of the State in pursuance of lawful authority granted to them by the General Assembly.</p> <p>The electors of a town qualified to vote on a proposition to impose a lax, at an annual town meeting held April 11, 1892, accepted an offer made to the town to convey to it certain lands for highway purposes in consideration that the town would exempt from taxation for ten years a building to be erected in the town for manufacturing purposes and machinery to be placed therein, and at the same meeting passed a resolution authorizing the town council to exempt such property from taxation in accordance with any acts of the General Assembly that might be passed authorizing such exemption. Subsequently the General Assembly passed an act (Pub. Laws R. I. cap. 1088, of May 21, 1892,) authorizing the electors of any town or city qualified to vote on a proposition to impose a tax to exempt or authorize the town council or city council of such town or city to exempt from taxation for a period not exceeding ten years such manufacturing property as may thereafter be located in said town or city in consequence of such exemption. Neither the electors of the town nor the town council took any action in pursuance of the statute, but the assessors of taxes omitted from the assessment the property referred to in the resolution passed at the town meeting of April 11, 1892.</p> <p>Held, that the omission of the property from the assessment by the assessors was unauthorized and illegal.</p> <p>Held, further, that the omission of the property from the assessment could not be justified on the ground of a contract made by the town in pursuance of which land had been conveyed to the town for highway purposes.</p> <p>Query, whether Pub. Laws R. I. cap. 1088, of May 21, 1892, is not repugnant to Article 1, § 2, of the Constitution of Rhode Island which declares that the public burdens ought to be fairly distributed.</p> <p>The omission of property liable to taxation from the assessment will not vitiate the whole tax where such omission was made without any intenlion on the part of the assessors to do a wrong or commit a fraud, but arose solely from a mistake of law or fact or error of judgment.</p>

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

<p>Bill in Equity to avoid execution sales. Heard on the sufficiency of a plea.</p>

<p>Pub. Laws R. I. cap. 447, § 1, of May 29, 1884, as amended by Pub. Laws, cap. 1269, of May 11, 1894, authorizes any town at any town meeting to abolish all of the school districts therein, and provides that a tax equal to the appraised value of the school property shall be assessed upon the town, which tax is remitted to the taxpayers of the several districts in proportion to the value of the district school property taken by the town.</p> <p>By Article 7, § 1, of the amendments to the Constitution of Rhode Island, registry voters have the right to vote on all questions in all legally organized town meetings, excepting the election of the city council of any city and upon any proposition to impose a tax or for the expenditure of money.</p> <p>Held, that the question of abolishing school districts in a town under Pub. Laws, cap. 447, as amended by cap 1209, is not a proposition to impose a tax or for the expenditure of money, and hence may be voted on by registry voters. Pub. Laws cap. 447, as amended, is constitutional.</p>

Bill in Equity to determine a trust. On demurrer. The fourth clause of the will of Ann Byron referred to in the opinion of the court, is as follows :— “Fourth.

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

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

<p>Honest though mistaken belief on the part of the prosecutor in the truth of a charge laid in a criminal complaint is evidence of probable cause in an action against him for malicious prosecution.</p> <p>Hence, where in an action for malicious prosecution it appeared that the defendant, who had prosecuted the plaintiff on a criminal complaint for changing a stone in a pin left with him to be repaired, honestly believed that the plaintiff had changed the stone, and the defendant had, from his point of view, reasonable grounds for such belief, because he had no knowledge of any previous change, and the plaintiff himself, an expert, could not detect the spuriousness of the stone under an artificial light with a magnifying glass, such facts being undisputed constitute a defence to the action, and a verdict for the plaintiff should be set aside, as against the evidence.</p>

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

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

<p>Pub. Stat. R. I. cup. 65, § 15, which provides that no town shall be liable for injuries caused by snow or ice obstructing highways unless notice in writing of the existence of the particular obstruction shall have been given to the surveyor of highways, refers to obstructions in a highway caused solely by the presence of snow or ice.</p> <p>A town is liable for an injury sustained on a highway where the injury results from a combination of two causes, both in their nature proximate, one a defect in a highway and the other a natural cause or a pure accident for which neither party is responsible, provided the injury would not have been sustained but for the defect in the highway.</p> <p>In an action against a town for injuries sustained by reason of a defect in a highway, it appeared in evidence that the plaintiff, while crossing abridge, slipped and fell on some ice which had formed in a hollow on the sidewalk caused by the sagging of the bridge and was injured, and that the water which collected in the hollow could not flow off because of a plank nailed on to the side of the bridge. The declaration alleged that the highway was defective because of the sagging of the bridge and the consequent hollow in the sidewalk, in which the water had collected and become frozen. The plaintiff was non-suited.</p> <p>Held, that the evidence tended to show that there was a defect in the highway itself which was one of the proximate causes of the injury’ but for the existence of which the injury would not have been sustained.</p> <p>Held, further, that it was error to non-suit the plaintiff.</p>

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

<p>A business corporation wliose capital is in shares was assessed a personal property tax as follows : “ Horses, carriages, wagons, farm tools, stock in trade, and other personal property, valued at $700,000. Tax $6,400.”</p> <p>Held, that as the assessment roll failed to show that the assessment was limited to the kinds of personalty mentioned in Pub. Stat. R. I. cap. 42, § 11, the assessment was void. Bunnell Mfg. Go. v. Newell, 15 R. I. 232.</p>

<p>Where the lessor of a hotel covenants “that he will keep the outside of said premises in good repair ; provided, however, that he shall not be liable for any loss arising in said house by damage from the weather,” the lessee on his part covenanting “that he will keep the interior of said building in good repair, reasonable wear and tear alone excepted,” the lessor is bound to put the premises in good repair though they were in bad repair when the lease was given.</p>

<p>Assumpsit. Certified from the Common Pleas Division, jury trial being waived.</p>

<p>Appeal from the decision of the State Board of Health.</p>

<p>In trespass on the case against a city a declaration which alleges that the city authorized, permitted and.direcled a railroad company in and about laying and maintaining a railroad and using and occupying the street in front of the plaintiff’s land, and that under such authority, &c., the rails were improperly laid and the railroad was improperly operated in certain specified ways by some person not named, without stating what authority, permission or direction the city gave to the railroad company, or alleging that the city had notice of the several specific acts complained of, does not contain any allegation upon which a material issue can be joined and states no cause of action.</p> <p>In trespass on the case against a city an allegation in one count of the declaration to the effect that the city directed the maintenance of a railroad in a public highway which constituted a nuisance from which the plaintiff suffered special damage, although there are other immaterial allegations, is sufficient to sustain that count, and a demurrer to the whole declaration will be overruled.</p> <p>A plea which sets up legislative authority for maintaining a structure in a public street which but for such authority would be unlawful is a good defence to an action for maintaining such structure.</p>

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

<p>Assumpsit. Certified from the Common .Pleas Division, on an agreed statement,of facts. • •," ^</p>

<p>The Judiciary Act. cap. 37, § 11, provides, in case of a levy of an execution on real estate, that the officer shall set up notification of such levy for the space of three months after such levy and before the same shall be exposed to sale. Where it appeared by a sheriff’s deed that the execution was levied on the real estate September 5, 1894, and the sale made December 5, 1894,</p> <p>Held, that in computing the three months both the day of the levy and the day of the sale must be excluded. Pub. Stat. R. I. cap. 34, §§ 11, 13.</p> <p>Held, further, that the deed was void.</p>

<p>Case stated for an opinion of the court under the Judiciary Act, cap. 20, § 24.</p> <p>The third clause of the will of Sterry Whipple, late of Smithfield, R. I., deceased, is as follows :</p> <p>“Third. I give devise and bequeath unto said Henry C. White one undivided half part of the residue and remainder of all the estate of which I may die seized and possessed, both real and personal of every name and nature and description wherever and however the same may be situated, In Trust for the use and benefit of my son Austin N. Whipple, or his children ; the rents profits and income thereof to be paid to him or to them according to the discretion of the said Henry C. White, in such manner and at such times as he may think best. And if said trustee thinks best he may at any time transfer the whole or any part of the property hereby given him in trust to my said son Austin N. Whipple, or to his children, in fee simple, discharged of all trusts, according to his discretion.”</p> <p>Henry 0. White, the trustee named in the will, having deceased, William Blakely, one of the petitioners, was appointed trustee in his place.</p>

<p>Petition of the Board of State House Commissioners for a new trial of motions to dismiss claims made by the State for jury trial in proceedings under Pub. Laws R. I. cap. 285, and cap. 1201.</p>

<p>Bill in Equity for an injunction and account. Heard on pleadings and proofs,</p>

<p>Dependant’s petition for a new trial. On plaintiff’s motion for reargument.</p>

<p>In order to constitute an offence under Pub. Stat. R. I. cap. 244, § 1, -which provides that “Every person who shall be convicted of being married to another, or of cohabiting with another as husband and wife, having at the time a former husband or wife living, shall be imprisoned,” etc., there must have been a second marriage; and an indictment for cohabiting with another as husband and wife, having at the time a husband or wife living, which fails to allege a second marriage, does not charge any offence under the statute.</p>

<p>A wife’s petition for divorce was heard and granted February 13, 1895. The husband who had been served with process in the divorce proceedings September 7, 1894, failed to appear and object to the granting of the divorce. The wife died July 16, 1895, leaving personal estate. August 1, 1895, the husband filled a petition in the cause to set aside the docket entry granting the divorce, and to reinstate the case on the docket on the ground of the falsity of the charges contained in the divorce petition and of the testimony in support of them.</p> <p>Held, that the husband’s petition was in effect a petition for a new trial of the divorce petition, and stated no ground for granting a new trial, even if it had been filed in the wife’s lifetime, no excuse being shown for the respondent’s failure to contest the petition for divorce, or at least to notify the court of the falsity of the charges in it during its pendency.</p>

<p>Although the plaintiff against whom final judgment has been rendered in a civil suit might, if reasons for a new trial existed, obtain a new trial by filing his petition therefor within a year from the entry of the judgment, the defendant is entitled to bring his action for the alleged malicious prosecution of such suit before the expiration of the year within which the plaintiff rhiglit apply for a new trial.</p> <p>Neither the fact that the plaintiff in an ejectment suit entered the writ in court after possession of the premises had been surrendered and nothing remained in the suit but a small item of costs, nor the fact that the plaintiff carried the case up to the appellate courts on appeal and on a petition for a new trial is any evidence of malice or want of probable cause in an action against him for malicious prosecution, because in such acts the plaintiff was in the exercise of his legal rights.</p>

<p>Under Pub. Slat.. R. I. cap. 96, íj 1, which makes it an offence where any person “having the charge or custody of any animal, either as owner or otherwise, shall inflict unnecessary cruelty upon the same,” the offence consists in the infliction of the cruelty by the person “having the charge or custody” of the animal; and a criminal Complaint which charges the owner of animals with cruelty without also alleging that the an’imals were in his custody does not charge any offence under the statute.</p>

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

<p>Bill in Equity. On demurrer.</p>

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

<p>Appeal from the decision of the State Board of Health.</p>

So much of Pub. Laws R. I. cap. 1353, § 3, of May 16, 1895, as is material to the case is as follows : Sec. 3. Authority to practice medicine under this law shall be a certificate from the state board of health, and said hoard-shall upon application issue a certificate to any reputable physician who is practicing, or who desires to begin the practice of medicine or surgery in this state, who possesses any of the following qualifications : First.

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

<p>In trespass on tlie case for personal injuries caused by the fall of an elevator the declaration alleged that the defendants had granted to the plaintiff’s employers as part of their leasehold interest in the premises where the accident happened, the use of the elevator for the purpose of raising and lowering their goods; that the plaintiff was at the time of the accident rightfully and lawfully upon the elevator engaged in his employment of raising and lowering the goods of his employers, the lessees of the defendants, and in the exercise of due care ; that he had no knowledge of the defective and unsafe condition of the elevator, but t-liat it was defective and unsafe, which fact was known to the defendants or might have been known to them by the exercise of proper care and diligence :</p> <p>Held, that the elevator not being under the control of the plaintiff so as to make it his duty to examine the same and ascertain for himself whether it was suitable and safe for the uses to whicli it was put, he was not required to set out in his declaration specifically the nature of the defect in the elevator, or in what way it was unsuitable and unsafe.</p> <p>Held, further, that the declaration set forth with sufficient certainty what the plaintiff was employed to do, and the particular work he was engaged in at the time of receiving the injury.</p> <p>The declaration alleged that the defendants owed the plaintiff the duty to keep and maintain the elevator in a safe and suitable condition for the use of the lessees and their employees, and set out the facts on which that duty was founded ;</p> <p>Held, that the defendants’ duty to the plaintiff sufficiently appeared in the declaration.</p>

<p>P. made an oiler in writing to D. dated July 12, 1892, as follows: “I will agree to give you two hundred and fifty dollars (8250.00) for a foal of 1893, by Aristocrat, , out of Empress, provided such colt is a filly, all right and sound at five months’ old, well marked, with no white on front feet, should you wish to sell her.” A filly was born May 12, 1893, which became five months old October 12, 1893. In an action on the offer brought by D. agaiust P :</p> <p>Held, that evidence was admissible to show that the consideration of the offer was a sale by P. to D. of a mare with foal, coupled with the offer, since it showed that the offer was not voluntary and revocable at any time, but founded on a consideration which kept it alive.</p> <p>Held, further, that D. had a reasonable time after tile expiration of the five months within which to signify his intention to sell the colt to P.</p> <p>When no exceptions to rulings are taken at the trial, they must be regarded as waived, and cannot be considered as grounds for a new trial.</p>

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

<p>Written contract dated July 2, 1892, as follows :</p> <p>“ Sold P. C. Co., to be shipped to Providence R. I., 10,000 Tons Beaver Meadow Pea Coal a $1.85 per ton f. o. b. Cash 30 days. Not insured. To be shipped viz. : Barge load immediately. Balance in equal monthly proportions before Peb’y 1st, 1893, subject however to strikes or any other unavoidable delay cause in shipping same.”</p> <p>IIeld, that the contract was not severable, the provisions relative to payment and shipments not having the effect to split it into as many distinct contracts as there were to be separate shipments or deliveries.</p> <p>Held, further, that the neglect or refusal of the purchaser to take the shipments of coal for July and the four following months warranted the seller in rescinding the contract.</p>

<p>Petition of the Board of State House Commissioners for a new trial of a motion to quash proceedings for the condemnation of certain land under the provisions of Pub. Laws R. I. cap. 285, of March 30, 1882, and cap. 1201, of May 24, 1893.</p>

The Constitution of Ehode Island Art. 2, §1, is as follows : Section 1.

<p>Pub. Laws R. I. cap. 1201, § 9, of May 24, 1893, and cap. 1322, § 4, of June 12, 1894, and Pub. Stat, R. I. cap. 32, § 10, do not confer a joint authority upon the Board of State House Commissioners and the State Auditor to audit the bills referred to in Pub. Laws; cap. 1201, § 9, and cap. 1322, § 4.</p> <p>It is not the duty of the State Auditor, under Pub. Laws R. I. cap. 1201 and cap. 1322 to draw orders upon the General Treasurer for the payment of the bills referred to in those statutes unless the bills presented to the Auditor and audited by the Commissioners or their duly authorized committee are itemized bills of the parties with whom they were contracted, except in the case of • small incidental expenses incurred by the Commissioners for which vouchers are not ordinarily taken.</p> <p>When itemized bills of the parties with whom they were contracted which have been audited by the Commissioners or their committee are presented to the State Auditor it is his duty to pay them unless he has reason to believe that their allowance was procured by mistake, fraud or other undue means.</p>

<p>Tlie Constitution of Blinde Island, Art. 4, § 13, is as follows :—</p> <p>Sec. 13. The general assembly shall have no power, hereafter, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion ; nor shall they in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with this state by the government of the United States.</p>

<p>PRACTICE : AFFIDAVIT OF DEFENCE.</p> <p>The defendant’s affidavit set out “that I have a good and valid' defence to a part of the plaintiff’s claim ; that said defence consists- in this, that the account rendered is incorrect and that prices charged for material furnished are higher than was agreed upon at the time of purchase. I make this affidavit' from my best knowledge and belief and that such defencé will prevail.”</p>

<p>CONTRACT: INFANCY.</p>

<p>WILLS : ALLOWANCE EOR COUNSEL PEES AND EXPENSES OUT OP TESTATOR’S ESTATE.</p>

<p>GARNISHMENT : FRAUDULENT ASSIGNMENT OF WAGES.</p>

<p>INSOLVENT ESTATES OF DECEDENTS : ACTION AGAINST EXECUTOR OR ADMINISTRATOR.</p>

<p>PROBATE COURTS : DOWER; JURISDICTION; WAIVING RIGHT OP APPEAL.</p> <p>The Municipal Court of the city of Providence as a court of probate, May 21, 1895, assigned to the appellant dower by metes and bounds, and all parties interested in the lands on the same day waived' their right to appeal in writing. October 11, 1895, the Municipal Court made a decree setting out dower to the appellant in the same lands in a special manner, by the assignment to her of a fixed rental to be paid to her at stated periods.</p>

<p>A testator devised in trust realty which he had purchased at a mortgagee’s sale, and which subsequently, and while in the possession of the trustee under the will, was redeemed by the mortgagor under a decree of court rendered in a suit brought by him against the mortgagee. After an accounting with the trustee the mortgagee paid to him the amount which the testator had paid for the land, together with interest thereon from the date of the mortgage sale to the time of the accounting. So much of the money as was paid to the trustee as interest was claimed by the beneficiary for life under the trust as income of the trust estate.</p> <p>Held, that as the whole amount paid to the trustee represented the value of, and was substituted for, the land which had constituted a part of the capital of the trust estate, the fund claimed was to be deemed principal and not income of the trust estate.</p>

<p>Under tlie Judiciary Act, cap. 17, § 3, where a defendant has entered his appearance in a case in a district court, the plea of the general issue must be deemed to have been filed and to be a part of the record in the case, not only while it remains in the district court, but also in the Common Pleas Division when it has been certified to that division on the defendant’s claim for a jury trial.</p>

<p>A. held a twenty year endowment life insurance policy for $10,000, maturing January 1, 1886, the premiums on which were payable quarterly and in full during the first ten years of the policy. March 6, 1873, A. assigned the policy to B. as collateral security for B.’s endorsements of A.’s note for $3,000 and the renewals thereof, and on August 6, 1876, assigned the policy, subject to the prior assignment to B., to O. as collateral security for A.’s note for $3,212.07 payable to the order of C. on demand. A. paid all the premiums on the policy excepting the last three which were paid by B., who, upon A.’s failure to pay the first of these three premiums, took up the outstanding renewal note at its maturity. In 1881 B.’s guardian and O. surrendered the policy to the company which issued it for its cash value, $8,079.50, which sum was paid to the guardian on his and C.’s joint receipt, and out of which the guardian paid to C. $3,771.48. Neither of the assignments authorized a surrender or sale of the policy, and no notice of an intention to surrender it was given to A., who was not apprised of its surrender until informed of the fact by the company about six months later. No demand by 0. for the payment of the note held by him had been made on A. prior to the surrender of the policy. On a bill filed by A. against O.’s administrator for an account,</p> <p>Held, that the surrender of the policy to the company for its cash value was equivalent to a sale of it to the company.</p> <p>Held, further, that the surrender of the policy was unauthorized for want of notice to A. of an intention to surrender it, and further, so far as C. was concerned, because A. was not in default, no demand having been made on him for the payment of the note held by C.</p> <p>Held, further, that it was no objection to the.maintenance of A.’s bill that C., in signing the receipt upon the surrender of the policy, did nothing more than he might have been compelled to do by B.’s guardian, since in any suit by B.’s guardian to enforce his claim against the policy, the court would have protected A.’s rights.</p> <p>Query, whether on a bill brought by B.’s guardian to enforce his claim against the policy the court would, in the circumstances of the case, have decreed a surrender of the policy.</p> <p>Held, further, that A. was entitled to an account from C.’s administrator.</p>

<p>CONSTITUTIONALITY OF PUB. LAWS R. I. CAP. 1204:, OF MAY 26, 1893 ; EVIDENCE OF TITLE ; HUSBAND’S ESTATE IN WIFE’S LAND BY MARITAL RIGHT.</p>

<p>CONTRACT : PERFORMANCE OF CONDITIONS BY PLAINTIFF ; REASONABLE TIME FOR PERFORMANCE BY DEFENDANT. .</p>

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

<p>WILL : CONSTRUCTION ; ENFORCEMENT OF CHARGE ON REALTY.</p>

<p>Although a court of equity might not decree a specific performance of a contract which is one simply for the sale of land at a price to he fixed by arbitrators where one of the parties refuses to appoint an arbitrator, yet where such an agreement is merely a subsidiary part of another contract for a more extensive purpose which has been partly performed so thaj the parties cannot be placed in statu quo, the court will treat the matter of determining the price of land as matter of form rather than of substance, and enforce the agreement by determining the price itself, and ordering a conveyance of the land at that price.</p> <p>NT. constructed a system of water works for a town under a contract by the terms of which the town granted to N., his successors and assigns, the exclusive right to use the public streets in the town for the purpose of laying and maintaining water pipes therein for the period of fifty years, and agreed to pay certain sums annually for the use of the hydrants and for a supply of water for certain purposes, with a reservation by the town of the right to purchase the water, works at any time after the expiration of ten years and within fifteen years from the, date of the contract at a fair and reasonable price to he agreed upon by the parties, or fixed by arbitrators to be appointed one by the town, one by N., or his representative, and the third by the two so chosen. Soon after the construction of the water works N. conveyed all his interest in the same to a corporation. Within the time limited by the contract the town voted to purchase the water works, appointed a committee with power to agree with the corporation upon a price therefor, and in default of such agreement to appoint an arbitrator for the town, and to take such other proceedings as might be necessary to procure for the town the title to the water works. The committee notified the corporation of the action of the town, requested it to agree with them upon a price to be paid by the town for the water works, and gave a similar notice and made a similar request to N. Both the corporation and 3ST. expressly refused to attempt to agree upon a price or to appoint an arbitrator, or to convey the water works to the town.'</p> <p>The town filed a bill against the corporation and N. to enforce the contract. On demurrer,</p> <p>Ideld, that N., having conveyed all his interest in the water works to the corporation, was not a proper,party to the bill.</p> <p>Held, further, that the court had jurisdiction to ascertain and determine through a master the price at which the water works should be conveyed by the corporation to the town, and. to order a conveyance thereof to be made.</p> <p>I-Ield, further, that the allegation in the bill of the express refusal of the corporation to name a price for the water works or to name an arbitrator, rendered unnecessary any allegation that the town had appointed an arbitrator on its part, or that it was ready and willing to pay the price which might bo fixed by arbitrators.</p> <p>Held, further, that the corporation was estopped from denying the authority of the town to make the contract in question, and, hence, that no allegation was necessary that the town had the legal power to raise the amount of the price to he fixed for the water works.</p>

<p>A common carrier stored in a warehouse at different times merchandise, the consignees of which could not be found, or refused to receive tlio goods. The warehouseman paid the freight charges and gave non-negotiahle receipts which set forth, in most instances, the receipt of the goods from the carrier, the name of the consignee when marked on the goods, and the amount of freight charges paid; in a few instances the receipt of the goods from the carrier on account of consignee ; and in one or two, the receipt of the goods from consignee or owner.</p> <p>Held, that the non-negotiability of the receipts and the recital in them that the goods were received from the carrier did not render the carrier liable as matter of law for the storage charges.</p> <p>Held, further, that the terms of the receipt and the conduct of the parties showed their understanding to be that the warehouseman received the goods as bailee for the owners, and consequently that the carrier was not liable for the storage charges.</p>

<p>equity pleading.</p> <p>After the decision in the case reported in 18 It. I. 672, the complainant amended his hill so as to aver that he “was, on the 21st day of June, A. D. 1893, possessed of and was the owi^er of certain shares of stock, to wit, twenty-five shares of the capital stock of the Home Investment Company,” etc.</p>

<p>Covenant. Certified from the Common Pleas Division on demurrer to pleas.</p>

<p>Trespass and Ejectment. Certified from the District Court of the Sixth Judicial District on exceptions to the decision of the court.</p>

<p>WILLS : ADVANCES : GIFTS.</p>

<p>A bill of particulars is proper in all actions where justice demands that the defendant should be apprized of the matters for which he is to be put on trial, with greater particularity than is required by the rules of pleading.</p> <p>Where a plaintiff in an action for seduction has furnished a bill of particulars by order of the court, specifying time and place of the alleged seduction, he is limited in his proof to the charges thus specified ; and evidence of acts of intercourse at any subsequent time, although offered for the purpose of corroborating the testimony of a witness as to acts specified in the bill of particulars, should be excluded.</p> <p>In an action for the seduction of the plaintiff’s daughter, the fact of the seduction of another daughter of the plaintiff three years previously by a man other than the defendant, and the attendant circumstances, are not admissible in evidence in mitigation of damages, as tending to show that the plaintiff was chargeable with careless indifference in affording opportunities for criminal intercourse between the defendant and the daughter for whose seduction the action was brought.</p> <p>Where at the trial of a cause testimony was improperly admitted against the plaintiff’s objection, although offered only in mitigation of damages, and the jury found for the defendant on the question of liability, the plaintiff should be granted a new trial if the testimony was such as would be likely to prejudice the jury against him.</p>

<p>Bills in Equity for injunction. On demurrer.</p> <p>The contract referred to in the opinion of the court was a resolution of the town council of Westerly, passed June 29, 1885, accepting a proposition made by James M. Pendleton and others to construct water works for supplying the inhabitants of Westerly and the adjacent territory with water. So much of the resolution as is material to the present case is as follows :</p> <p>“It is Voted and Resolved, That the said proposition is hereby accepted, and that the right to use the public highways and public grounds of this town for. the purpose of laying water pipes, and continuing the same therein, for supplying the said inhabitants with water for fire, domestic, and other purposes, and of using said highways and grounds for the purpose of making the necessary alterations and repairs in said pipes, be, and the same hereby is, granted to James M. Pendleton,.....their heirs, executors, administrators and assigns, hereinafter called the Westerly Water Works Company, (under which name they propose to procure an act of incorporation under the laws of this State,) the same to be freely and fully enjoyed so long as the said inhabitants shall be reasonably supplied with water thereby.</p> <p>And, as appurtenant to this grant, this town council hereby consents that said Westerly Water Works Company erect and construct, with the right to maintain, one or more reservoirs within this town, to connect with said pipes for such supply of water ; and that the exclusive right to use the public highways and public grounds of this town for the purpose aforesaid, be, and is hereby, granted to the said Westerly Water Works Company, their heirs, executors, administrators, and assigns, for and during the period of twenty-five years from this day ; subject, however, to whatever rights or privileges are now possessed or enjoyed by any party or parties who have pipes already laid and in operation.”</p>

<p>Motion to dismiss a criminal complaint. Certified from the Common Pleas Division.</p>

<p>Tlie payment of a tax illegally assessed when made under protest after the delivery to the tax collector of the warrant authorizing him to levy upon and •sell the property of the delinquent taxpayers, is a compulsory payment, and the tax so paid may be recovered. Dunnell Mfg. Go. v. Newell, 15 R. I. 233, affirmed.</p> <p>Where a tax is paid under protest as having been illegally assessed, the protest need not specify the alleged illegality, since all the facts connected with the assessment are as fully known to the assessors as to the taxpayer, and they are in as good a position as he is to know whether the tax is legal or illegal.</p>

Assumpsit. Certified from the District Court of the Sixth Judicial District on an agreed'statement of facts. By a contract made between the plaintiff’s minor son and the defendant corporation which the plaintiff approved and confirmed, the son agreed to remain in defendant’s employment for three years, during which time the defendant was to retain from his wages the sum of one dollar per week, the same to be paid to the son at the expiration of the three years.

<p>COMPROMISE VERDICT : DAMAGES : JURY.</p>

<p>EVIDENCE ; PRESUMPTION OF GRANT OF RIGHT OF WAY ; PLEADING AT LAAY ; REMEDY FOR OBSTRUCTING RIGHT OF AVAY.</p>

<p>Bill in Equity to avoid conveyances of realty. Heard on pleadings and proofs.</p>

<p>Tile decision heretofore rendered in this case, Index QQ. p. 69, affirmed.</p>

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

<p>Where on an appeal by an administrator from a decree of a probate court disallowing iteras in his account, a general appearance for the appellees was entered by counsel, and certain creditors of the estate also entered an appearance in opposition to the appellant, a decree allowing the administrator’s account as filed by him, entered by consent of the parties in settlement of the controversy, will not be set aside on the petition of another creditor who knew of the pendency of the appeal but had not entered any appearance, where the entry of such decree was not procured by fraud, and appeared to be reasonable and proper in the circumstances.</p>

<p>INTERVENING IN SUIT ; REMEDY OF CREDITOR.</p>

<p>EVIDENCE OF TITLE ; NEGLIGENCE ; RIGHT OF SUPPORT FROM ADJACENT LAND.</p>

<p>In an action against husband and wife, for slander, a declaration which includes ^ a count on words spoken by the husband with a count on words spoken by the * wife is bad for a misjoinder of causes of action: For words spoken by the husband, the action should be against him alone.</p> <p>An action cannot be maintained against two persons jointly for slander, because the words spoken by one are not the words of another. The act of each constitutes an entire and distinct wrong.</p> <p>To say of a woman, “ She is a woman of bad character ; she keeps a bad house where men go at times ; she is a low woman and does not keep a respectable house,” is actionable per se as imputing, in the ordinary and obvious sense of the woi'ds, the keeping of a house of ill fame, resorted to for prostitution and lewdness, which is an indictable offence.</p> <p>In the absence of averments in a declaration for slander showing that the language complained of was used in such a sense as to import a criminal charge, the words spoken of a woman, “She is a bad woman and a disgrace to the neighborhood ; she ought not to be allowed on the street; she is a damned bitch,” are not actionable ; for though suggestive of vicious or immoral conduct they do not amount to a charge of any offence known to the law.</p>

<p>COMMON PLEAS DIVISION OF SUPREME COURT ; DISTRICT COURT ; JURISDICTION ; TRESPASS AND EJECTMENT.</p>

<p>.HUSBAND AND WIPE ; SUITS BY, RELATING TO WIPE’S PROPERTY.</p>

<p>The former decision in this case, 18 R. I. 918, is affirmed.</p>

<p>■ Petition for a writ of Habeas Corpus.</p>

<p>JURISDICTION OF LICENSE COMMISSIONERS TO GRANT LIQUOR LICENSE ; GEN. LAWS CAP. 102, § 2.</p>

<p>At the trial of an action against a town for injuries received by the plaintiff while traveling on a highway, by coming into collision with a post which the declaration alleged stood “ in said highway,” the evidence failed to show that the post stood within the limits of the highway, but did show that it stood just off the line of the highway in a small triangular piece of land at the intersection of the highway with another road, and the plaintiff was non-suited.</p> <p>Held, that the non-suit was rightly granted.</p>

Assumpsit. Certified from the Common Pleas Division, jury trial being waived. This is an action to recover from the defendant, a benefit society, money claimed to be due from it by reason of the death of Frank H„ Munroe, who was at the time of his decease, a member of the association. See Index EE. p. 182.

<p>A plea in abatement of the pendency of a prior suit between the same parties for the same cause of action should aver the return and entry of the writ in the former action in court, and its pendency at the time of the filing of the plea. It is not sufficient to aver merely that the former suit was pending at the time of the issuing of the writ in the second action, for until a writ has been returned and entered in court it is not a record, and is not pending in court.</p>

<p>Plaintiff’s petition for a new trial.</p> <p>This was an action of trespass de bonis. asportatis for breaking and entering the plaintiff’s close and taking and carrying away and converting to the defendant’s use a quantity of manure. The case was originally brought in a district court, and after the decision of the Appellate Division, reported in Index QQ. p. 127, was taken to the Common Pleas Division on a claim for jury trial.</p>

<p>EVIDENCE IN ACTION FOR CRIMINAL CONVERSATION.</p>

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

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

<p>Where the vendor of land takes a mortgage on it for a portion of the unpaid purchase money there is an implied waiver of his lien for the balance of the money.</p>

<p>PARTITION ; ALLOWANCE TO COTENANT FOR IMPROVEMENTS.</p>

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

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

<p>Tlio real estate oí a decedent, though charged with the payment of debts to the extent of the insufficiency of the personal estate for their payment, under Pub. Stat. R. I. cap. 189, §§ 1, 2, is not assets in the hands of the administrator, and hence a plea of plene adminislrami need not allege that there was no real estate of the decedent at the time of liis death to be administered.</p> <p>Tlio settlement of a decedent’s estate in proceedings under a commission in insolvency may be shown under a plea of plene administmr.it; so that where a plea begins with allegations of such proceedings and that the plaintiff did not present his claim to or have it allowed by the commissioners, or have it settled at common law, and concludes in the usual form of a general plea of plene ad/ministramt, the prefatory allegations are immaterial, and the plea amounts to no more than a plea of plene adminisl/rarit.</p>

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

<p>EQUITY PRACTICE ; NEW TRIAL ON ISSUES OF FACT ; LACHES.</p>

<p>Bill in Equity for reformation of a deed. On demurrer.</p>

<p>Where tliere is a purchase of goods on credit there is an implied representation by the purchaser of an intention to pay for them ; and an action for deceit will lie against one who obtains goods on credit with the intention of not paying for them.</p>

After the decision reported in 18 R. I. 787, this case again came before the court on plaintiff’s demurrers to defendant’s rejoinders.

<p>Trespass on the Case. Certified from the Common Pleas Division on demurrer to a plea in bar.</p>

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

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

<p>Tbespass on the Case. Certified from the Common Pleas Division on demurrer to the declaration.</p> <p>The case stated in the declaration was, in substance, that the city of Newport, in 1889, changed the grade of a street on which the plaintiffs’ lot abutted so that the street which before that time had been lower than the surface of the lot, was raised two feet higher than the surface of the lot, whereby the water falling on the lot was prevented' from flowing therefrom, and the water falling on the street was-turned upon the lot, and formed ponds thereon, and flowed into the cellar of the plaintiffs’ house.</p>

<p>Defendant’s petition, for a new trial.</p> <p>This was an action for libel for printing in the defendant’s newspaper the following article : — ■</p> <p>Defrauded his Employer.</p> <p> A .Lenox Gardener a Defaulter in the sum of about $7000. </p> <p>Pittsfield, Mass., April 5. Considerable of.a sensation was caused here and in Lenox by the disclosure to-day that Frederick S. Folwell, until recently head gardener for Anson Phelps Stokes, at the latter’s place in Lenox, was a defaulter to the amount of $6000 of [or] $7000 at the time of leaving. Folwell was formerly employed by William Russell Allen, of this city, but a few years ago secured the position of head gardener for Mr. Stokes, and in time became superintendent of his extensive estate at Lenox. A few months ago Mrs. Stokes, who is an enthusiastic botanist, discovered that Fol-well’s knowledge of the subject was very superficial, and had him. discharged. He secured a place with Pierre Lorillard, at Newport, and left for that place.</p> <p>Soon after his departure Mr. Stokes began to receive bills, for which he ha.d already given checks. An investigation showed that Folwell had incurred many bills in his employer’s name, and had appropriated checks given him with which to pay them. It cannot be stated just what the amount of Mr. Stokes’ loss is, but the sum named is approximately right.</p> <p>When the shortage was discovered word was sent to Newport, with the idea of having Folwell come here and explain, but he was not there, and had not .been since leaving Lenox, and no trace of him has been found. His wife and child are in this city.</p>

<p>Bill in Equity to construe a will.</p>

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

<p>A fire insurance company issued two policies of insurance dated March 22, 1896, one on furniture described as “ contained in the frame building occupied as a dwelling only, situate at Willard avenue,” the other on a “one and onedialf story and basement building occupied as a dwelling only, situated at Willard avenue.” At the date of these policies the plaintiff was living in house No, 245 Willard avenue, but was fitting up a cottage No. 247 Willard avenue for his own occupancy, with a store in the basement and his dwelling above. After moving into the cottage the plaintiff, June 5, 1895, took out a policy from the same company on the stock of goods in the store ascribed as “in the three story brick and frame building, occupied as a dwelling and store, situated at 247 Willard ave.” Subsequently a fire occurred, and the plaintiff brought suits on the policies. At the trial the plaintiff testified in regard to the first two policies that the treasurer of the company had come to him and solicited .the insurance before he had moved into the cottage and was then told by the plaintiff the purpose for which he was repairing the cottage, and that he would insure when it was done, and that the treasurer replied that he could do so now ; and further that the said two policies were not paid for nor delivered until after the plaintiff had moved into the cottage. The plaintiff’s testimony was uncontradicted.</p> <p>I-Ielcl, that upon the facts testified to by the plaintiff the first two policies, of March 22, 1895, must be regarded as intended to attach to the cottage and the furniture after the alteration of the cottage and the plaintiff had moved into it.</p> <p>Held, further, that as to the policy on the goods in the store dated June 5, 1895, the misdescription of the cottage as “ a three story ” building was not misleading to the company since it knew and specified the house as 247 Willard avenue.</p> <p>A condition in a policy of insurance making it payable “sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss,” being for the benefit of the insurer, may be waived by him, and is waived by a denial in advance of all liability for the loss; and in such case where the insured brought his action on a policy sixty-one days after loss the fact that he filed formal proofs of loss two days only before bringing suit is immaterial.</p>

<p>Three persons composing a partnership were the joint makers of a promissory • note. The note did not purport to be a partnership contract, and contained no provisions that on the death of either of the makers his representatives should not be charged as if the contract liad been several instead of joint. Upon the death of one of the makers an action was brought against his executrix as upon the several note of the deceased, without first resorting to the partnership estate.</p> <p>Held, that the action was brought in accordance with the Judiciary Act, cap. 13, § 17, which provides that “Unless otherwise provided in the contract, upon' the death of any joint contractor his representatives may be charged in the same manner as such representatives might have been charged if such contract had been several instead of joint: Provided,'ih&t the plaintiff shall first exhaust the partnership estate, if such contract is a partnership contract.”</p>

<p>An act of tlie General Assembly, passed April 29, 1892, incorporating the “Apponaug Fire District,” émpowered the district, after notice, to order taxes for certain purposes and to a limited amount, and to provide for assessing and collecting the same. Section 4 of the act provides for the annual election by the district of a “clerk, treasurer, three assessors, and a collector of taxes, whose duties and powers within said district shall be such as like officers of towns in this State have in their respective towns.”</p> <p>After a district tax had been regularly assessed and a copy of the assessment roll, together with a warrant for the collection of the tax, had been delivered to the collector, in accordance with Pub. Stat. R. 1. cap. 43, §§ 2, 4, 6-8,18-20, and the time had expired within which the tax was to he assessed, the district, at a meeting called for the purpose, voted to reduce the valuation of certain property, and to abate a portion of the tax assessed thereon, and the collector changed the assessment roll so as to conform to the vote of the district. In other instances the assessors, after the delivery of a copy of the assessment roll to the collector, made certain changes in the assessment roll, in some cases because real estate taxed was found to be located out of the district, in other cases because of over-valuation of personal property, and by way of compromise where there was a disputed liability, but in all cases without any fraudulent purpose.</p> <p>Held, that neither the Are district nor the assessors had any authority to change the valuation of property, or to abate any tax assessed thereon; and their authority over the matters having become exhausted, their proceedings after the delivery of the assessment roll to the collector were mere nullities, and did not invalidate the original assessment.</p> <p>There is no authority short of the General Assembly to abate a tax which has been legally assessed ; and</p> <p>Query, whether the General Assembly has such power in view of the Constitutional provision that the public burdens ought to be fairly distributed.</p> <p>Pub. Stat. R. I. cap. 37, § 20, requiring tile collector of taxes for a town to give a bond for the faithful discharge of his duties does not apply to the collector of taxes for the Apponaug Pire District, whose charter does not require the collector to give any bond, and hence, the fact that he lias given no bond does not render his official acts void.</p> <p>Municipal taxes are not liens upon lands taxed unless made so by the charter, or unless the corporation is expressly authorized by the legislature to declare them to be liens; nor is there any power to sell lands for non-payment of taxes unless such power is conferred by statute in express terms.</p> <p>Hence, where the charter of a fire district gave no lien for taxes, and granted no power >tp sell property for non-payment of taxes, the collector of taxes for the district cannot sell property for non-payment of taxes assessed against it, and he will be enjoined at the suit of a tax-payer brought in his own behalf and in behalf of other tax-payers, from selling property under a levy for fire district taxes.</p> <p>The case of Greene v. Mumford, 5 R. I. 472, distinguished from the case at bar.</p>

<p>The decision previously rendered in this case, Index RR. p. 198, affirmed.</p>

Bill in Equity for an injunction. Heard, on pleadings and proofs.

<p>EVIDENCE ; MANDAMUS ; PROFESSIONAL COMMUNICATIONS.</p>

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

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

<p>Debt on a judgment brought to enforce the alleged liability of a stockholder in the American Wood Paper Company for a debt of the company under the provisions of Pub. Stat. R. I. cap. 155, § 22. Certified from the Common Pleas Division, jury trial not having been claimed. The case was heard on demurrers to special pleas.</p> <p>It appears from the pleadings that the original contract under which the indebtedness of the American Wood Paper Company arose was substantially as follows : The American Wood Paper Company on the 5th day of November, 1891, made a contract with the plaintiffs for the purchase from the plaintiffs of a large quantity of alkali for shipment from Philadelphia to Liverpool at about one hundred and thirty tons per month from January to December, 1892, both inclusive, at the price of 1.42-J cents per pound, etc., sixty days’ credit to be given after each delivery of alkali.</p>

<p>DAMAGES ; MASTER AND SERVANT ; NEGLIGENCE.</p>

<p>A testator gave real and. personal estate in trust to pay legacies, to pay taxes and make improvements, and to bold the residue to pay, from time to time, all or such parts of the income thereof as the trustee might think proper to the testator’s son, and upon his death, to convey the property as the son shall direct in his will, or, in default of such direction, to his heirs. The legacies having been paid,</p> <p>Held, that the son took an equitable fee in the realty and that the devise was within the rule in Shelley’s case.</p> <p>Held, further, that no reason appearing in the will or otherwise why the trust should not be terminated, the soil was entitled to a conveyance made to him of the legal estate held by the trustee.</p>

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

The Constitution of Ehode Island, Art. 4, § 13, is as follows : Sec. 13. The General Assembly shall have no power, hereafter, without the express consent of the people, to incur State debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of an insurrection or invasion ; nor shall they in any case, without such consent, pledge the faith of the State for the payment of the obligations of others.

<p>claims against towns, how prosecuted ; Whalen v. Bates, AFFIRMED.</p>

<p>A person qualified to vote only under the provisions of Art. 2, § 1, of the Constitution of Rhode Island, who alienates his real estate, is no longer so qualified, and his name should be immediately stricken from the voting list.</p> <p>If such person is also qualified to vote as a registry voter, and has resided in the State two years and has paid a tax upon either real or personal property assessed at one hundred and thirty-four dollars or more, his name, if not already there, should be added to the list prescribed in the second clause of section 3, of chapter 8, of the General Laws.</p> <p>A person qualified by age, residence and citizenship to vote in one city or town in this State, who produces a certificate of ownership of real estate in another city or town in this State, can vote on the certificate in the city or town where he resides only for general officers of the State and for members of the General Assembly ; Const. R. I. Art. 2, § 1 ; and under Art. 2, § 1, of the Constitution of the United States, and Gen. Laws R. 1. cap. 13, § 1, he may vote for electors for President and Vice President of the United States, and, by virtue of Art. 1, § 2, of the Constitution of the United States, he may vote for representatives in Congress.</p>

<p>Under Gen. Laws R. I. cap. 40, §§ 31, 34, the town council of a town has an, thority to appoint a person to the office of police constable and complainant under the town ordinances, and to allow him compensation for his services rendered in that capacity, and a vote of the town to abolish Saturday night and Sunday police is not binding on the town council.</p>

<p>Defendant’s petition for new trial.</p> <p>This was an action of trespass on the case for deceit. On a former occasion the case was before the court on demurrer to the declaration. See 18 R. I. 567. The plaintiff having obtained a verdict in the Common Pleas Division, the defendant petitioned for a new trial..</p>

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

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

<p>A decree entered by consent in an equity cause cannot be set aside or revoked except by consent.</p>

<p>A corporation owned a plant comprising a lot of land on Thames street, in the city of Newport, and a building thereon, which contained, besides other machinery, two dynamos propelled by steam power, and a switch-board connecting with a line of wires strung on poles, throughout the city, for the distribution of electricity to consumers. The dynamos and the switch-board were so constructed and attached to the realty as to be removable at pleasure, without physical injury to the freehold.</p> <p>Held, that the dynamos and the switch-board were not included in any of the classes of property enumerated in Pub. Stat. R. I. cap. 42, § 3, but were within the description of other property mentioned in § 11 of the same chapter.</p> <p>The poles on which the wires were strung were located, some in the public streets, and others on private lands, in both cases by virtue of licenses revocable at any time. In some instances the poles made use of belonged to other parties.</p> <p>Held, that the poles and wires of the corporation were not taxable as part of the Thames street estate as being either fixtures or appurtenances, but were the personal property of the corporation.</p> <p>Held, further, that the poles and wires were not within the provisions of Pub. Stat. R. I. cap. 42, § 11, and hence were not taxable to a business corporation whose capital is divided into shares.</p>

<p>Chapter 102, § 2, of the General Laws of Rhode Island, relative to granting licenses for the sale of intoxicating liquors, provides: “. . . and no license shall be granted under this chapter to authorize the sale of any such liquors at any building or place where the owners or occupants of the greater part of the land within two hundred feet of such building or place shall file with the board having jurisdiction to grant licenses tlieir objection to the granting of such license.” A. applied for a license and, being met by such objection, withdrew his application. The remonstrance was not withdrawn. A. filed a new application within the same license year.</p> <p>Held, that the remonstrance on file related to a license to be operative during the license year, and the license commissioners had no power to grant the second application.</p>

<p>Pub. Laws R. I. cap. 627, § 7, of March 26, 1866, gave to a child, adopted in accordance with the provisions of the chapter, the rights of inheritance, etc., the same as if he had been born to the parents by adoption in lawful wedlock “ except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption,” etc.</p> <p>A testator, by a will made before the enactment of the statute, gave a fund to trustees to pay the income to children and grandchildren, and upon their death to pay their respective portions to their “lawful issue,” and if any of them should die without leaving “lawful issue,” then a gift over. Subsequently the testator added three codicils to his will, two of which were made after the statute was passed, and in which he expressly declared that they were to be a part of the will and codicils. The testator left a granddaughter, who died . without leaving issue of her body, but leaving a child adopted by her and her husband after the testator’s death.</p> <p>Held, that as the last two codicils were republications of the will as of the date of the codicils, and were made after the enactment of the statute, the adoption of the child after the testator’s death was a possibility which he must be presumed to have known, and in view of which his will is to be construed.</p> <p>Held, further, that as there was nothing in the will to restrict the legal import of tlie-word “issue,” the words “lawful issue” therein are to be construed as including all descendants, and not as being limited to “heirs of the body,” and hence that the bequest was not within the exception of the statute, and that the adopted child was entitled to the fund.</p> <p>Held, further, that even if the language of the will was sufficient, had it related to realty, to create an estate tail, yet, as the gift was of personalty, the granddaughter took an absolute interest in the fund, which, upon her death, went to her adopted child.</p>

Bill in Equity for an injunction. Heard on motion to strike out amendments to the bill, and upon demurrer to the bill as amended.,

<p>An applicant for a license to sell intoxicating liquors under chapter 816 of the Public Laws, passed August 1, 1889, is not disqualified from receiving such license by reason of having been convicted in a District Court of a violation of sec. 24 of said chapter, when an appeal from the judgment and sentence of said Court had been duly taken and filed, and the complaint was subsequently discontinued in the Appellate Court.</p>

<p>Chapter 281, Sec, 25, of the General Laws of Rhode Island, provides that certain public officers therein named may make complaints against persons for any of the offences mentioned in Sec. 24 of said chapter.</p> <p>Held, that the authority to make such complaints is not exclusively confined to the officers named, hut is supplemental to the right of private complainants to make the same.</p>

Previous decisions in this case are reported at pp. 73, 466. The present hearing was on the application of Dartmouth College for allowance of interest on its legacy.

<p>Case stated for an opinion of the court under Gren. Laws R. I. cap. 240, § 24.</p>

Bill in Equity. Heard on complainants’ exceptions to respondents’ answers. This matter was previously before the court on demurrers ; see ante, p. 360.

<p>The only way in which a suit can be commenced against a town is by bringing it against its town treasurer.</p> <p>In case of his death, or ceasing to hold said office, his successor may come in, or be summoned in, to defend such suit, within but not after one year from the time such vacancy in the office occurs.</p>

<p>Bill in Equity, by executors, for instructions.</p>

<p>A voluntary association formed for social or charitable purposes, and not for purposes of trade or profit, is not a partnership.</p> <p>A member of such association has no proprietary interest in, or right to.any proportional part of, its property, either during his membership or upon his withdrawal. He may use and enjoy it while a member, but the property belongs to the society.</p> <p>Where, upon the dissolution of a partnership, the amount due from a prior partner to the other partner is ascertained, or a promise has been made to pay an ascertained sum, or a balance of accounts has been struck, assumpsit will lie as between the partners.</p> <p>And wliere a balance resulting from an account stated is retained by a partner, a promise to pay will be implied.</p>

<p>One interested in an estate tliat is being settled in the probate court, and aggrieved by a decree confirming the report of commissioners allowing claims that are objected to, should appeal from said decree rather than from the judgment of the commissioners.</p>

<p>Tile best evidence of the vote of a corporation is the recorded action of its stockholders or officers, although this is not conclusive against a stranger, or against a stockholder in an individual transaction between him and the corporation.</p> <p>Tlie declaration of a dividend is one of the most important acts of a corporation, implying corporate action to that effect, and ought to appear on the books of the company.</p> <p>Members of a corporation cannot make an agreement between themselves informally ; the corporation must act as a body.</p> <p>Parol evidence is inadmissible to prove a vote of a corporation declaring’ a dividend ; in case of error the remedy should be by a proceeding to correct the corporation records.</p>

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

<p>A. by her will and codicil devised and bequeathed one moiety of certain real and personal estate lor the benefit of her two sons, equally, and their issue, wilh cross remainders over to the survivor of the sons in case either of them should die without issue living ; and also devised and bequeathed the other moiety of said estate'to her two daughters, equally, with like provisions relative to issue and survivorship ; remainder over to the other of these classes in case of failure in either one of any person to take ; and, upon failure in both classes of any one to take, then to her own right heirs.</p> <p>After these provisions the will and codicil further provided — “If either of my said sons should die without leaving any child who shall survive me...... then .... as to the .... share of him so dying, in trust for the other of my said sons,” «feo.</p> <p>Testatrix had two sons, one living at the time of filing the bill, but childless; and one who was not married until sixteen years after her death, to whom a child was born after his decease. The other son, one of the daughters, and this grandchild (about two months old at time of filing the bill) were the only descendants of the testatrix living at the beginning of the suit.</p> <p>Held, that it was clear from the will, as a whole, that the grandchildren of the testatrix were intended to be made the objects of her bounty.</p> <p>Held, that the complainants were authorized to pay over for the benefit of the infant grandchild the income of the trust estate from which his father received the income during his life.</p> <p>Held, also, that the complainants should apply in like manner the income from that part of certain real estate of which his father had the income in his lifetime, and should convey said part of said real estate to said grandchild when the latter attains the age of twenty-one years.</p> <p>It is a cardinal rule of construction that the testator’s intention must control if it be not inconsistent with some established rule of law.</p> <p>Particular expressions in a will must yield to the general intent.</p> <p>A testator is presumed to have used the words in which he expresses himself with their ordinary meaning, unless the context of the will shows that he used them in a different sense; in the latter case the words will be construed to have the meaning intended.</p> <p>The words “survive” and “survivor” in wills will be taken in their literal and ordinary import unless there be something in the context or attending circumstance which shows that they were used in a different sense. The primary meaning of the word “ survive ” is to outlive; it may have the secondary meaning to live after.</p> <p>It is not a word or phrase in a will, but the manifest intent of the testator, which is sacred and ought to prevail.</p>

<p>Replevin.</p> <p>0. answered in writing certain questions relating to the kinds .and amount of property held by him, and the value thereof, and also as to the nature and amount of his indebtedness. Thereupon W. sold him certain merchandise and afterwards, and while a part of this merchandise was in his possession, 0. made a general assignment of his property for the benefit of his creditors. W. replevied from the assignee so much of the merchandise as 0. had not sold, claiming that the answers were untrue and the supposed sale was void. Heard on defendant’s petition for a new trial after verdict for the plaintiff.</p>

<p>Assumpsit to recover for stone furnished the town of North Providence. Heard on demurrer to defendant’s special plea in bar.</p>

<p>The rules of criminal pleading require that tlie offences be charged specifically, in order</p> <p>First, that the accused may know precisely what he is to defend against; and</p> <p>Second, that the record of his acquittal or conviction may be a bar to a subsequent prosecution for the same offence.</p>

<p>Where one enters into the service of another for a definite period, and continues in the employment after the expiration of that period, without any new contract, the presumption is that the employment is continued on the terms of the original contract; but when the hiring is for an indefinite period it is a hiring at will, and may be terminated at any time by either party.</p>

<p>A person wlio is not an attorney at law may lawfully obtain and use a writ—</p> <p>First, by purchasing it directly of the justice or clerk of a district court and either filling it up himself, or causing it to bo filled up, in the presence of said justice or clerk; or</p> <p>Secondly, he may purchase it from an attorney at law and either fill it up himself or employ an attorney to fill it up for him ; or</p> <p>Thirdly, he may go to an attorney and employ him to fill up a writ and then purchase it in that form.</p> <p>A person lawfully in possession of a writ may have it served, and then act as his own attorney in prosecuting it.</p> <p>Where an officer serves a writ by attaching the defendant’s real estate in one county, and by summoning the defendant personally in another county where he resides, there is complete service of the process, and it is not necessary to leave a copy of the writ with the person in possession of the real estate.</p> <p>Where real estate has been attached on original writ the leaving of a copy of the writ with the person in possession of the attached property is required only when the defendant has no last and usual place of abode within the precinct of the officer, and the latter is required to send a copy of the writ by mail to the defendant if his address be known or can be ascertained.</p> <p>Pub. Laws R. I. cap. 349, § 1, enlarges the precinct of the officers to the entire State in cases therein cited.</p>

<p>A. purchased an estate which his grantor .had previously leased to B. by an instrument under seal but not recorded. Afterwards, the rent being in arrears, A. brought an action of assumpsit against B. to recover the same.</p> <p>Held, that the action should have been debt or covenant:</p> <p>Held, further, that as A. had notice of the lease prior to his purchase of the estate, the statute in regard to recording had no application.</p> <p>B. made a payment of rent to A., saying the payment was only for use and occupancy of the premises, and at the time of payment denied plaintiff’s right to receive the money, and declared that he did not recognize the relation of landlord and tenant between them :</p> <p>Held, that the payment was an attornment by B. to A.</p> <p>A purchaser of an estate subject to a lease containing a covenant by the lessor to make exterior repairs, takes his interest in the leasehold premises subject to the burden of the covenant.</p> <p>In case the landlord fails to make such repairs the tenant has several remedies—</p> <p>a. He may abandon the premises if they become untenantable by reason of want of repair.</p> <p>1). He may make the repairs and deduct the cost from the rent.</p> <p>c. He may occupy the premises without repair and recoup his damages in an action for the rent.</p> <p>d. He may sue for damages for breach of the covenant to repair.</p>

<p>Assumpsit. Heard on defendant’s exceptions to the rul- • ings of a district court.</p>

<p>Assumpsit. Heard on exception to the rulings of a district court.</p>

<p>Tlie plaintiff’s charter, granted in 1764, provides that “ the college estate .... shall be freed and exempted from all taxes.” Also, that “ this charter of incorporation and every part thereof , . . shall be construed, reputed and adjudged in all things most favorable on the behalf and for the best benefit and behoof of the said Trustees and Fellows and their successors so as most effectually to answer the valuable ends of this most useful institution.” Plaintiff owned, as a part of its endowment, certain real estate in the business centre of the city of Providence which it rented for general business uses. The city assessed a tax upon this estate for municipal purposes, which tax the plaintiff paid, under protest, and brought this action for its repayment.</p> <p>Jlelcl, that the words “ the college estate,” taken in connection with the entire exemption clause in question, included the plaintiff’s property held byway of endowment.</p> <p>Held, that the provisions of the charter were in full force, and that the tax assessed was illegal.</p> <p>Statutes by which the State has abrogated a part of its sovereignty are to be strictly construed, it being presumed that the Legislature does not intend to deprive the State of any of its sovereign power unless the intent to do so is clearly expressed or arises by necessary implication.</p> <p>When, however, a statute is evidently intended to have that meaning, and is coupled with a positive direction as to the rule of construction to be applied to it, it is the duty of the court to give the statute the intended meaning.</p> <p>The provision of article 1, section 2, of the State constitution, adopted in 1842, declaring that “ the burdens of the State ought to be fairly distributed among its citizens,” does not deprive the General Assembly of the power to exempt property from taxation, and does not affect property theretofore exempted by charter.</p>

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

<p>Exceptions to rulings of district court.</p>

<p>Exceptions to rulings of a district court.</p>

<p>Bill in Equity to restrain the service of an execution. Heard on pleadings and proofs.</p>

<p>Under Gen. Laws R. I. cap. 251, § 2. a petitioner for a new trial on the ground that the former trial wás not full, fair and impartial, must show something more than mere error on the part of the trial court. Such error would form the subject of an exception, to he allowed and prosecuted as provided in section 6 of- said chapter.</p>

<p>The real estate of was regularly assessed for a town tax in 1893, and in the following, year was sold to B., the tax remaining unpaid. In 1896 the collector of taxes levied on the estate for collection of the tax. B. thereupon paid the required sum without protest, and, while the money was in the collector’s hands, brought suit against him to recover it, joining the town treasurer as party defendant.</p> <p>Held, that the payment was compulsory and B. was entitled to recover from the collector, but was not entitled to judgment against the treasurer.</p> <p>Payment under stress of legal process is compulsory, and if unlawfully exacted may be recovered.</p> <p>Dunnell vs. Neioell, 15 R. I. 233, distinguished from the present case.</p>

<p>Plaintiff's writ commanded the attachment of the defendant’s personal estate in the hands or possession of “Estate of J. W. M.” as the trustee of said defendant.</p> <p>Held, that an estate is not a person, copartnership or corporation, and is incapable of having any service made upon it. _</p> <p>Held, further, that a trustee, whether strictly a party to the suit or not, must be • described with the same certainty as if a party.</p>

<p>When fraud is charged in a bill in equity the facts on which it is predicated must be stated ; general allegations of fraud will not be sufficient.</p> <p>A married woman is competent to sue alone as complainant in a bill in equity, and her husband is not a necessary party.</p>

<p>During a trial tire foreman of tlie jury took notes of the evidence submitted, and reported the same for a daily newspaper : the defendant’s counsel consented to the notes being taken, but it did not appear that he knew of the purpose to report them.</p> <p>Held, that as it was not shown that the report was inaccurate, or that the effect of reporting the notes was different from what would have followed if they had been taken only for the use of the juryman, it was not a sufficient ground for a new trial.</p> <p>A keeper in charge of a jury was directed by the court to discharge them at a given hour if there were then no probability of their agreeing. When the time arrived the foreman told the keeper 'that he did not know there was such probability. Being informed that they were discharged the jury protested against it, insisted on further consideration of the case, and finally agreed and sealed up their verdict without being separated.</p> <p>Held, that the keeper was not authorized to discharge the jury so long as there was any doubt about the probability ,of agreement.</p> <p>Held, further, that under the circumstances the verdict was properly reecived.</p>

<p>The following opinions were given by the judges of the Supreme Court to the governor under Article X, Section 3, of the Constitution, which provides that “they shall also give their written opinion upon any question of law whenever requested by the governor, or by either house of the general assembly.” „</p> <p>A voter duly registered in one town wlio removes to another town and resides there more than six months prior to an election to be held, and who files the required certificate of his registration in the former town, is entitled to have his name placed on the voting lists of the town of his residence not only for general elections but for elections of town officers.</p> <p>The only restrictions upon such a voter’s right to vote are that he shall not be allowed to vote in the election of the city council of any city, or upon a proposition to impose a tax, or for the expenditure of money.</p>

<p>Under Pub. Laws R. I. cap. 303, § 1, passed January 31, 1896, (quoted in tbe opinion of the court,) the general treasurer may make and sell tax assignment orders for the whole or any part of the semi-annual installment of the State tax next to become due, at any time subsequent to the date fixed for a payment thereof and before the date when the next semi-annual installment will become due.</p>

<p>The General Assembly may enact a valid law authorizing a municipality to use the McTammany Voting Machine in elections held therein, assuming that provision will be made to accommodate voters who may wish to vote for persons .other than those named on the official ballot.</p> <p>A record of the choice of the voters may be indicated as well by the puncture of a paper as by a pencil mark thereon.</p> <p>A law is not unconstitutional if it be reasonably within the terms of the constitution.</p> <p>The opinions of those who frame a constitution, or law, cannot be taken as its true construction unless the language used is capable of such construction. It is the language used that must prevail.</p>