Volume 2 — Rhode Island Reports

<p>Where on an appeal from a decree of a Court of Probate refusing the probate of a will, the decree of said Court was reversed, held that the appellant was entitled to. costs.</p>

<p>■Where two verdicts on actions of assumpsit, in which the parties were reversed, were rendered at the same term, one of which was final and the other contingent upon a second trial to he had at a succeeding term, it was held that execution in the former case should be stayed until the second trial in the latter, the defendant in the latter being insolvent and it ndt being apparent that he had any defence, and this, notwithstanding the demand, on which the latter action was brought, was purchased of a third party, after one verdict had been rendered in the former case, and for a consideration much below its nominal value.</p>

This was an action to recover two hundred and fifty dollars, being a portion of the tax assessed upon the Providence Gas Go.

It appeared by the plaintiff’s petition and affidavit that the writ was served by attaching his real estate, while he was out of the State. That he returned before the time for answering the case and instructed his attorney to answer it and have it continued, saying that he should settle it. The attorney forgot to answer it and judgment was rendered by default at the March term of the Court, 1851.

<p>This was an appeal from an order of the Town Council of the town of Smithfield, for the removal of Mary La-tham and Deborah Latham from said Smithfield to the town of Glocester. The order was made upon the complaint of the Overseer of the Poor of Smithfield that said Mary and Deborah were residing in Smithfield having no legal settlement therein and were likely to become chargeable upon the town, which complaint the Town Council adjudged to be true, and that Glocester was the place of the last settlement of said Mary and Deborah.</p> <p>moved that the proceeding should be quashed, because there were two persons joined in the same order, whose settlements depended upon dif-erent facts and different evidence and as to whom there must or might be different judgments, and that the statute authorizing removal said “ any person ” (Dig. of 1844, sec. 8) and contemplated the removal of only one person.</p>

Trespass. The facts in this case are as follows : Theodore Horton and Ferdinand Horton, the assignors of the plaintiffs, were extensive dry goods dealers in Providence. In August and September of the year’ 1850, they made large purcheses of goods for their business from various merchants in New York and Boston, payable upon credit of six and eight months. In December, 1850, they refused payment of the notes due from them.

<p>Bill in Equity. May, 1797, James The bill alleged that, on the 15th of Arnold, Esq., Town Treasurer of the Town of Providence being duly authorized by a vote of the freemen of said town, by his deed, “ gave, granted and confirmed to the Master, Wardens and Brethren of St. John’s Lodge of free and accepted Masons, No. 1, in the Town of Providence, the right and privilege of erecting and constructing upon the Market House in said Providence, an additional story, and, to that end, to enter upon and pass through said Market House by themselves, their workmen and servants, and to do all and every act and thing, necessary for the erecting and constructing said story, both within and about said house, and, having so erected and constructed said story, to have and hold; use, occupy and possess the same at all times, together With all the entries, passages and stair-cases necessary and convenient for the using and occupying, to and for the sole use and benefit of them, the said Master, Wardens and Brethren, until the Freemen of said Town, should think proper to take the same into their possession, according to the provisions following; that is to say, if at any time, after the erecting and constructing said story, the Freemen of said Town should think proper so to do, it should and might be lawful for said Town to take the said story into their possession, upon paying to the said Master, Wardens and Brethren, for the said additional story and the roof,- the value thereof at the time of taking the same into possession, as the same should be appraised, without regard to the central situation thereof. Provided that the said Master, Wardens and Brethren should make and construct the jet of the roof of the said Market House of brick, and should keep the said roof and the additional story aforesaid, in good repair, during the time of their using and occupying the same, as aforesaid.”</p> <p>In pursuance of this deed, the defendants constructed the additional story and thenceforth used and occupied it.</p> <p>The bill stated the succession of the City of Providence to the rights and privileges of the Town of Providence, and of the City Council to the rights of the Freemen of said Town ; and that on day of 1850, the said council thought it proper to taire said story into their possession, and passed a vote to that effect; that the plaintiffs requested a delivery of the story and offered to pay the value of the same, according to the provisions of the deed, and requested the defendants to join with them in appointing appraisers who should appraise the value thereof; and that the plaintiffs proposed to the defendants that they should choose one appraiser, and the plaintiffs another, and that the two so chosen should choose a third, the appraisal of which three or any two of them should be final and binding upon the parties; and that they offered to assent to any other fair mode of making an appraisal of said story and roof, according to the provisions of said deed ; with which requests and proposals the defendants refused to comply.</p> <p>The prayer of the bill was that the Court would ascertain by themselves or by some persons by them appointed the value of said story and roof; or would appoint suitable persons as appraisers to appraise the same, or would order the defendants to choose an appraiser, who, with an appraiser to be chosen by the plaintiffs, should choose a third, the appraisal of which three or of any two of them should be taken to be the true value of the same, or that- the Court would ascertain the value in any way, which they should deem meet; and for a decree ordering the defendants, upon payment of the sum so appraised, to deliver said story and roof into the possession of the plaintiffs.</p> <p>The defendants demurred to the bill generally for want of equity.</p> <p>This is a bill to enforce the specific performance of a contract. The conveyance to the St. John’s Lodge is an absolute grant of an estate in fee, and the condition annexed to the grant, unless from its connection with the granting words, it is to be construed as a limitation of the grant, is void for repugnance on the ground that a freehold estate cannot revest without a conveyance. The fah construction is not to consider the condition, as a condition at law, but as a contract for repurchase upon an appraisal. The question is whether the court can enforce a contract for repurchase, where, by the contract, the terms of the repurchase axe left to arbitration. The parties, being unable to agree between themselves, the Court is asked either to compel them to agree or to make an agreement for them. It has been settled that a Court, of Equity will not enforce a contract, any one term of which is referred to arbitrators, (2 Story’s Eq. jur. <§> 1457.) By the contract, arbitrators are to be agreed upon by the parties to make the appraisal; and the Court can neither compel their appointment nor compel them to act if appointed. The reason is that the Court, though it can enforce a contract when complete, cannot supply the unsettled stipulations of a contract, any more than it can make the entire contract for the parties. Street v. Rigby, (6 Ye-sey, 815), Milnes v. Gerry, (14 Yesey 400), Agar v. Mackleto, (2 Sim. & Stu. 418 and note.) There is no remedy for the parties unless they can agree. And there is no hardships in this. The plaintiffs have their consideration in the obligation of the defendants to keep the roof in repair. If this were the case of two individuals, one of whom had sold the other a lot with a contract for re-purchase, at an appraised value, and the purchaser had built a house on it of three tunes its value, would the Court enforce the contract or would they not hold the parties bound to proceed amicably in the mode agreed unless some fraud or hardship were shown. There is no mutuality in the claim. They claim to compel us to surrender possession, but we cannot compel them to take possession and pay for the roof and story. It is a right reserved on one side. The specific performance of such a contract cannot be enforced, unless it is on the ground of fraud. Here no fraud is alleged in the bill, and no refusal on our part to agree to an appointment, except in one form, and what is vitally material, there has been no vote appropriating money for payment in case of an appraisal.</p> <p>If the instrument under which we occupy this story is a lease, it has been terminated by the vote of the city to take possession, and the defendants are in the position of a tenant holding over, and are liable to rent beyond the amount stipulated in the contract, so that here there is no hardship. It is like a lease of land, to be built upon, where the lessor agrees to take the buildings af the expiration of the lease at an appraised value. It has been held that such a contract cannot be enforced in equity. Whilloclc v. Duffield and others, (2 Edwards 366, 26 Wend. 55.) Vanrenselaer’s Heirs v. Penniman, (6 Wend. 569). The parties are bound to execute their contract in the stipulated mode. Here the appraisal was to be made by appraisers to be agreed upon by the parties, for, even if the Court had power to appoint appraisers, there was no Court of Equity in the State when the pontyact was made,</p> <p>The Court can grant relief in this case, not only under the power to enforce specific performance, but also under their power to entertain a possessory bill for the restoration of a specific chattel, and on the ground of fraud, because there is a relation of trust and confidence between the plaintiff and the defendants, which has been violated. Pemberton v. Pember-ton, (13 Yesey 297, 1 Story Eq. Jur. '§>511.-512. 2 ibid <§>708-709-710.)</p> <p>The authorities, cited by the defendants, show that in a simple contract of sale, where the price is to be determined by arbitrators, either named in the contract or to be chosen in a prescribed mode, the price being an essential element of the contract, the Courts will not enforce it. This rule does not apply in this case for the following reasons.</p> <p>1. There are no arbitrators named in the contract, and no specified mode of choosing them. The plaintiffs are to pay for the premises “ as the same may be appraised.” This appraisal may be by the parties themselves, by appraisers chosen by them, or by the Court. It is the same as an agreement to sell at a valuation or a fair valuation, in which, it is settled, that the value may be determined by the Court. The first case on this subject is Cooth v. Jackson, (6 Yes: 12), where the Court refused relief because the men had been agreed upon to fix the price, and it would be in derogation of the contract for the Court to interfere. In Gaskrath v. Lowther, (12 Yes. 106), the agreement was to sell at a fair valuation, and the Court decreed a specific performance. The distinction was recognized in Milnes v. Gerry, (14 Yes. 400.) Relief was refused in that case because the price was to be ascertained in a specified mode, and the Court by fixing the price in a different mode would make a new contract. In Blundell v. Bretargh, (17 Yes. 241), the arbitrators were named in the agreemement. In Wilks v. Davis, (3 Merivale 507), the Court held that it would grant relief where the parties had simply agreed to a valuation without appointing any one to fix it. In Agar v. Macklew, the mode for determining the value was fixed. The words in this case “ value as the same shall be appraised” are equivalent to the words “ valuation” or “ fair valuation,” and leave it for the Court t'o make the valuation, unless the parties can agree upon some mode of doing it themselves.</p> <p>2. The rule does not apply to contracts in which there has been a part performance. The ground, on which relief was refused, in the cases cited, was that by the refusal, the parties would be left in statu quo. Even parol contracts for the sale of land, which are void by the statute of frauds, will be enforced in equity if they have been partly performed, because a refusal to fulfil the contract in such a case is fraud, (2 Story Eq. Jur. §759, 760, 761, 762, 763). The part performance in this case, is the letting the defendants into possession and occupation for sixty years, upon the stipulation that they would restore possession in conformity to their contract, and to construe that contract so as to exclude us, would be to visit upon us an enormous fraud. If the Court to prevent fraud will disregard a statute, they certainly will not refuse to enforce a contract upon the same ground merely because it would interfere with one of their .own rules. Part performance takes an award of arbitrators out of the rule by which the Court refuse to enforce an award of arbitrators. (Eq. Cases, Abr. 51). Emery v. Ware, (5 Yes. 846), Blundell v. Bretargh, (17 Yesuy 241), Gourluy v. Somerset, (19 Ves. 43i.)</p> <p>3. The rule applies only to contracts of sale and this is a contract of lease. The case of Whitlock v. Duf-field cited by defendant is a contract for a renewal of a lease ; that is the sale of a term. The other cases are cases, in which a vendee wishes to obtain possession of land from the vendor, where the only effect of a denial of relief is to leave the parties in statu quo. This is a case between lessor and lessee. The lessee cannot deny the lessor’s title, cannot take and hold the property under a lease and then refuse to return it according to the terms of the lease. The lessee is let into possession in confidence that he will return the land, when the term of his tenancy has expired. There is no such confidence between vendor and vendee. There is also this difference, the lessor loses his land and has no remedy at law ; the vendee loses nothing and has his action for damages for breach of contract. There is another difference. The main term in a contract of sale is the price, which represents the whole value of the thing sold, but in a lease the main terms are — not the rent — -but the letting into possession on the one side, and the restoration on the other; the payment for fixtures being a mere incident; and on a failure to appraise, it would be fitter that the tenant should, lose his fixtures, than the landlord his land, if either consequence is to ensue. If the contract cannot be performed according to its terms by accident, and still more by the fraud of the defendant, you will come as near as possible to it. Want of mutuality is not an objection that applies in a case of this kind. (2 Story Eq. Jur. §723, 790).</p>

This case was referred to the Judges of the Court by a rule upon the following agreed statement of facts : “ The estate of David Daniels of Smithñeld, upon which the said Ira B. Peck was duly appointed Administrator by the Court of Probate of said Smithfield, was by said Peck represented to said Court as insolvent and commissioners were duly appointed by said Court of Probate to examine and allow claims against said estate according to the statute.

On the trial of this case, the plaintiff read the deposition of a witness taken in New York in the absence of the defendant and without notice to him. To discredit this testimony the defendant offered proof of statements made by the deponent different from the statements in his deposition.

At the August Term, 1851, Joseph C. Sanford filed his petition for divorce against his wife Frances Sanford, who thereupon moved for an order upon her husband to furnish her with sufficient money to defend herself against his petition. But the Court held they had no power to make such an allowance. At the present term, Frances Sanford petitioned for a separate maintenance and for a decree compelling her husband to furnish the means of prosecuting the suit.

Bill in Equity. It appeared by the bill and answer that the Eighth School District in Charlestown, being a regularly organized district, contracted, by a committee appointed for that purpose, with Clarke the respondent, to build a school house, and that the house was built in pursuance of the contract; but said Eighth District refused and neglected to pay the sum agreed for the building.

Assumpsit. The defendant pleaded in abatement to the writ, “that said writ in said action is dated the 3d day of April, 1850, as a writ of arrest, commanding the officer charged with the service thereof to arrest the body of said defendant, and that the said writ is pretended to be served on the third day of April, 1850, by the attachment of the goods and chattels, returned in the officer’s return on the back thereof, and not at any other time or in any other manner, and…

A Bile in Equity for instructions by an administrator, with the Will annexed. The testator, William Hunter, executed his Will on the 29th of November, 1849, and died at Newport, It. I. on the 3d of Becember, 1849. This Will, after several specific bequests, contained the following clauses: “Ninth.

<p>The facts in this case are stated in the opinion.</p> <p>read the statute, (Dig. of 1844, p. 231, Sec. 3.), and contended that it should appear either on the face of the will or in proof that all the required formalities had been observed; that the statute had guarded the execution of wills with peculiar securities so as to be sure that it was done when the testator was of a disposing mind and memory, and free from fraud or coercion ; and that the witnesses were not simply witnesses of the signature but also of these facts; and that the will could not be admitted until the Court was satisfied, by proof, of a compliance with the formalities prescribed to insure .its free and deliberate execution; and he cited 1 Jarman on Wills, pp; 70, 71, 72, 74, 91, 97, 99.</p> <p>contended, that though] the~statute prescribed the observance of certain formalities, it did not prescribe any particular mode of proving! their observance. An attestation clause is not essential; the best evidence, being that of the witnesses so long as they are alive, is required to prove a compliance with the statute j if they are dead, the attestation clause which they subscribe is the nest best evidence ; but if there is no such clause, then the next best evidence is the presumption that having subscribed as witnesses they were such witnesses as the law requires. The testator’s sanity may be proved by other witnesses.</p>

<p>Where a testator devised the south half of certain land, called the’ “ Cook farm,” to A. and the north half to B. and, after the making of the will and previous to the death of the testator, a portion of said south half, was sold to B, under a levy by the collector of taxes; held, that the alienation of the part sold by the collector was a revocation pro tanto of the will, and that proof of the declarations, of B., to show that it was agreed between him and the testator, that the deed of the part sold should be given up to the testator, was inadmissible.</p> <p>Held, also, that as to the description of the property devised, the will speaks from its execution, and that said A. was not entitled to a half of the “ Cook farm,” owned at the death of the testator, but to the south half, as it was when the will was made, exclusive of the part, as to which the will was revoked by the alienation, and that said A. could not be compensated for the loss of the part alienated, by taking a portion of the north half, devised to B.</p>

Assumpsit, before Wm. P. Lewis, one of the Wardens of the Peace of the town of New Shoreham, where judgment was rendered by default for the plaintiff and an appeal taken by the defendant to the Court of Common Pleas.

This was an action for slander, commenced in the Court of Common Pleas, at the May Term, 1849, and there ruled, in the common form, with all matters in dispute between the parties, to the arbitration and award of Joseph M. Blake, who reported his award in favor of the plaintiff to the Court. Upon the coming in of the report, the defendant moved to have the report recommitted, on the ground that new evidence had been discovered since the report was made.

This was an appeal from a decree of the Court of Probate' of Little Compton, proving and approving the last will and Testament of Abigail Irish. The will was dated December 4, 1850, and the testatrix died December G, 1850.

This was an appeal from a decree of the Court of Probate of Bristol, granting to William B. De Wolf letters of executorship on the estate of James De Wolf. By his will, James De Wolf appointed his four sons, James De Wolf, Mark Anthony De Wolf, William Henry De Wolf, and William Bradford De Wolf, and his son-in-law, J. Prescott Hall, executors.

Action for freight upon lumber transported for the defendant in the plaintiff’s ship, the Virginia, from Providence to San Francisco, as by the following bill of lading : Shipped in good order and well conditioned, by Caleb Chace, in and upon the brig called the Virginia, whereof is master, Bennet, now in the harbor of Providence and bound for San Francisco, U. G., to say five thousand clapboards and two thousand feet of joist, these goods to be received from the vessel…

This was an appeal from the decree of the Court of Probate of the town of Warwick, appointing Daniel R. Whitman guardian of the person and estate of the appellant. The petition for the appointment of the guardian was signed by said Searle and Arnold, inhabitants of Warwick, and set forth that the appellant was wasting his property, and was likely to become chargeable upon the town.

An appeal from the Court of Probate of West Greenwich, removing the appellant from the office of administrator on the estate of Christopher Mattison, and appointing Nathan Carr in his place. Bowen, in support of the decree, said that the ground for the removal of the appellant was, that he had neglected the duties of his office and was wasting the assets.

. The application stated that the applicants, Trustees of School District No. 3, of North Providence, “ did on day of A. D., 1851, employ one Anson H. Cole, as a teacher in said district, and that on the 8th of January, 1852, there was justly due to said Cole, as teacher, the sum of $48 12.

<p>Deposits in a Savings Bank are liable to attachment.</p>

An action on the case for fraudulently preventing the plaintiff from recovering his debt out of the goods of Wilbour. It appeared in evidence that in 1851 Wilbour entered into arrangements with Handy, the proprietor of a large dry goods store in Providence, to establish a branch establishment in New York and be supplied with goods by Handy upon certain terms.

<p>In Equity. The Mount Vernon Bank was a Bank located in Foster, and the defendant was from the 8th of June 1844 to the 29th of May, 1850, their agent for the purpose of transacting the business of the Bank in the city of Providence, where the plaintiffs provided him with an office and hooks to be kept in the office, in which to record the business of his agency, and they paid him as such agent a salary of five hundred dollars per annum. The bill alleged first, that the defendant had not fully accounted and had refused to deliver and exhibit the books of the Bank to, the plaintiffs, and, in the second place, charged that the defendant fraudulently concealed the said books, fraudulently used the money of the Bank, and by fraudulent representations obtained a release or discharge of a portion of said account, and a surrender of the bond given for the faithful discharge of his duties as agent. The bill prayed for a decree for an account, a delivery of the books of the Bank, a surrender of the release obtained from the plaintiffs and a return of the bond.</p> <p>contended that unless the allegations of fraud were sustained by the proof, the plaintiffs were not entitled to a decree for an account, and cited, Ferraby v. Hobson, (22 Eng. Ch. R. 255.) Glascoit v. Long, (Ibid 310.) Price v. Bar-rington, (7 Eng. L & Eq. R. 254.)</p> <p>contended, That the case of Price v. Berrington stands upon the charge of fraud alone. The bill sought to set aside a conveyance twenty-seven years after its execution. The lunacy of the grantor was proved. But the bill did not proceed upon that ground. It charged specifically fraud and fraud alone, no one circumstance constituting that fraud being supported by the evidence. This case is broadly different from ours. Our bill charges the agency, the' ownership of the books, a place for their custody, the use of money by the agent, that he hath; not fully accounted, and that he hath refused to deliver or exhibit the books. It does not charge that these transactions are fraudulent : nor call for a decree upon the ground of fraud alone as in the case cited. There is no doubt as to either of the facts charged. Are we not clearly entitled to the decree for an account and for our books upon these facts ? . And as to the effect of the “ further charge” of fraudulent concealment of books, &c. they contended that the charge was established by the proof, and that if it were not, the Court would not refuse to grant in this stage of the case a reference to the master, considering that they would have full power over the final decree, when the whole case should be fully before them upon the master’s report.</p>

<p>Where a man, who was by profession a mariner, made bis will in the Delaware river on board a steamer, which, was towing down said river a vessel, in which he was to sail as a passenger to Chagres, there to take command of a lighter to lighten vessels arriving in the river, it was held that the will was not within the exception in favor of mariners at sea, the testator being at the time of its execution a passenger and not a mariner in service, and being on Ms way to engage in a business, which was not that of a-mariner at sea.</p>

This was an action for the breach of a debtor’s bond to keep the limits of the jail-yard, to which the defendant pleaded a discharge under the act for the relief of poor persons imprisoned for debt.

<p>The assignee of a clobfc may maintain an action in his own name against the debtor, where the debtor has promised to pay the assignee, and it makes no difference whether such debt he a written obligation or he due upon an express or implied promise by parol, as for goods sold or services performed, or whethar the assignment is to the assignee for his own benefit or for the benefit of creditors.</p>

An action for damages for breach of contract. On the trial of this case the plaintiffs offered the deposition of Uriah B. Wilkins. The deposition was taken, during the sitting of the Court at the last term, under a commission issued under the 14th section of “ An act authorizing and regulating the taking of depositions.” The commission was directed to Willard Sayles.

This was an appeal from a decree of the Court of Probate of Cranston, dismissing the application of the appellant, the Overseer of the Poor of said town, for the appointment of a guardian of the person and estate of Franeis Hersey. The ground of the application was that said Hersey, from want of discretion in managing his estate, was likely to bring himself and family to want, and thereby to render himself and family chargeable.

<p>This case is sufficiently stated in the opinion.</p>

This was an appeal from a decree of the Court of Probate of the town of Scituate, rendered on an application of Amasa Yeaw and Asa E. Mathewson, for the removal of the appellees from the office and trust of executors of the last will and testament of Asa Mathewson, refusing to remove said executors. The appeal was taken by Amasa Yeaw alone, he being the assignee of said Asa E. Mathewson of his whole interest as residuary devisee under the will.

<p>The decree of a Court of Probate establishing a report of Commissioners upon an estate rendered insolvent, is not subject to appeal for any alleged error in the judgment of the Commissioners in allowing the claims set forth in the report; but persons interested in the estate, who are dissatisfied with the allowance of any claim, must avail themselves of the special remedy provided by the statute.</p>

<p>A Committee appointed by the Town Council of Providence,- in 1817, to lay out, among other streets, “ a street in continuation of Pield street, and of the same width to the water,’ reported their proceedings, with a plat of the ways laid-out;.in which they stated: “We laid out and continued Pield street in the same course and width two huudred and eighty feet from' South street to Point street, and from Point street to the river.” After the coming in of the report the town Council, in 1818, voted: that it should' he accepted, and that certain streets therein mentioned should be established; and further voted, as- to the continuation of Pield street and Eddy street, and certain other streets laid out, that “ the same not being established by the Council, all consideration respecting them is postponed, and they are not to be established until it be proved to the satisfaction of the Council that said streets are made passable.” No further action was taken on the report until , 1848, when the Board of Aldermen, who succeeded the Town Council, referring to the report of the Committee as to the laying out of this street, and to the postponement of the consideration thereof until' It was: proved to the satisfaction of the Council that said-street was made passable, voted, that “ said street extending from Point street is hereby declared to be a public highway, to be hereafter repaired at the expense of the city;” held,- that in order to give effect to the report of the Committee, it must be received and approved by the Town Council', and the ways laid- out'orderedto be-established; and that, if after the-lapse of thirty years, the proceedings of the Council could he revived by the vote of the Board of Aldermen, yet to have any effect, the report of the Committee must have' been received and'approved, and the street laid’out have been established as . a whole, or rejected as'a whole, and: that the. vote- declaring- “ said street extending, from Point street” to be a public street, referring to but a portion of the way reported by the Committee as having been laid out and continued “from South street to-Point street,- and from Point street to the river,” was void.</p> <p>Where tenants in common of land made partition of their estate, leaving undivided a strip of land forty feet in width, extending from a public street to the private property of another, and spate of it in the deed of partition as a street, and sold lots bounding upon said undivided strip as upon a street; held that, said undivided strip terminating upon private land and extending neither to another way, a mill, a market, nor other public place,, the acts of the owners of the land, though they might give the owners of adjoining lands a right of travel thereover, could not be considered a dedication thereof to the public as a highway.</p> <p>In the absence of any deed or map declaring an intent to dedicate land as a public highway, such an intent can he inferred only from some unequivocal act or an unequivocal assent to the use by the public, accompanied by actual use, and where the land is held in common by the proprietors on opposite sides, the assent of one proprietor is no proof of dedication without a corresponding assent by the other.</p> <p>Land flowed by a navigable river cannot be dedicated' as a-highway by an-individual, nor laid out as such by the Town Council.</p> <p>The owners of lots adjoining an open strip of land, can acquire nc easement or right of way over- said strip, so as to make it a public way by estoppel in pais, unless they have been induced by the owner thereof to believe that it was a public way, with the design and intent on his part that they should expend money and build upon the line thereof, and they hare acted upon that belief, and would be seriously injured if he were permitted to exclude them from using it as a public way.</p>

Exceptions to the Report of a Master in Chancery. The Bill in this case was brought by the creditors of the Bank against the Bank and the Stockholders, to compel them to make up the deficiency in the capital stock of said Bank, so far as was necessary to pay the debts of the Bank, in accordance with section 3d of the charter of the Bank, which provided “that the stockholders of said Bank shall he personally and individually liable for all losses, deficiencies and failures of…

<p>The facts are sufficiently stated in the opinion of the Court.</p> <p>contended. The General Treasurer only had authority to execute conveyances of the lots sold by the committee. This ten acre lot is not comprised in the report of sales which the committee made to the General Assembly. The boundaries in the General Treasurer’s deed amount to nothing, unless they conform to the plat of the committee. This was the plat agreeably to which the sales were made. On this plat, the ten acre lot is set off for a common. It was not sold, and was evidently intended to be retained by the State as a common, not for the Sewall farm, but for the whole State, and it could be sold by the State now. It is said that this lot was to be common to the owners of the Sewall farm; and was conveyed to Cook and Irish as trustees for them; but the Treasurer had no authority to do this, in as much as he was restricted to giving deeds of the lots, as sold according to the plat.</p> <p>to show that the proceedings of the General Assembly and the committee might be referred to, to ascertain the intention of the General Assembly with regard to the “ common lot,” cited Klinan V. Cook, (1 Sh. &. Lefr'oy, 32.) Sanderson v. Jackson, (2 Bos. & Pul. 238.) Hodges v. Horsford¡ (1 Russel & Milnes 116,) and contended. If the plaintiffs have the legal title to this “ common lot,” it matters not whether they hold it for themselves, or as trustees for others. The ground of this action is, that this land is held by the plaintiffs by the terms of their deed, and according to the plain intent of the General Assembly. The boundaries of the deed embrace this land; so that we avoid the technical difficulties of the former suits, but we are met by another objection, viz : that the committee did not sell, and the General Treasurer had no authority to- convey the common lot. By the Act of June, 1784, ai committee rvas appointed to survey, lay out and plat the Sewall farm-, and report to the General Assembly. They made their report in August, 1784, accompanied by a plat. On this plat the common lot is laid out. The proceedings under this plat are to be construed according to the plain intent of the parties. It would be impossible to draw a- deed with such Variety of reference, as this has, ffee from every technical objection. What was the intent here-? The- farm was to be marked out in such a way that the most favorable terms'could be got from purchasers. The- ten acre lot of beach was laid out as a common lot, and a drift-way opened to-it. It is said the lot is common to the State. The committee were appointed to plat the Sewall farm for sale in such a way as would be most for the benefit of the purchasers and the State. The whole farm was surveyed and platted, divided into lots, the marsh land distributed to the upland, and the ten acre lot laid out as a common lot. They were then to sell the whole farm according to plat; not simply to give to purchasers of lots Nos. 1, 2 and 3, the lots but all the privileges, which the plat annexed entitled them to. Are we to presume they have violated their duty ? When they report they have sold according to plat, are we to suppose that they have not so done ? You do not find in the report any express mention of the common lot and poiid, but when you look at the plat you find that these were made appuertenances of the lots sold. The question is, whether the general treasurer has executed the conveyances of this land in pursuance of his authority. He has not done it in a technical way, but he has done it, so as to carry out the intent of the General Assembly. The deed to Cook and Irish, was the last of the deeds made ; the former deeds contained references to the plat ; the land conveyed in this, was co-terminous with the “ common lot.” What is the plain meaning of the grant ? Sale was made and title was to be given of the whole farm ; and, yet, the legal title of the common lot still remained in the State. Inasmuch as the land was to be conveyed, Avhat so natural as to vest it in Cook and Irish, on whose land it bounded. They would thus become the trustees and legal protectors of the rights of the purchasers of the Sewall farm. The State wished to divest itself of all title ; and how can you explain the words of this deed and carry out the intent of the General Assembly, except by this construction, and this construction does perfectly carry it out. The acquiescence of the State for sixty-five years in the claims of the purchasers confirms this construction. The claims of citizens generally amount to nothing, because a right to take profits from the land of another cannot be acquired by custom.</p>

This was an action on the case for the diversion of the water of Wood river from the plaintiff’s mill.

<p>Twtf tenants in common, maldng'partition of the land owned between them, the one granted to the other “ free liberty of carrying away gravel and sea weed off the beach belonging to his part of said farm, and also stones below high water mark, and liberty to tip the sea weed on the bank of his part of said farmHeld, that this grant created a right of common i appurtenant to the land of the grantee, and that said right was not unlim- ] ited but a right in corqmon with the grantor and restricted in extent to j so much sea weed and stone, as the grantee might have occasion to use, on the land set off to him, and that a right of way to and from the shore, passed as incident to the common granted, and that said right of way, as well as the right of common, would pass upon a conveyance of the land to which they were attached under the general term appurtenances.-</p> <p>Hold also, that upon the severance of the dominant estate, by a conveyance j of different portions thereof to "several persons, said-right of common was J apportionable among the several grantees, the rule being that wherever ‘ common is admeasurable it is apportionable.</p> <p>The dominant estate consisted of forty-nine and three-jmarters acres, whereof the owner conveyed to the owner of the sorvient^tnirty acres, and, subsequently, conveyed the remaining nineteen and three quarters acres to one, who, afterwards, repurchased the thirty acres of the dominant estate, which had been conveyed to the servient owner, and conveyed the whole to the plaintiff; and the plaintiff sold and conveyed away, nine and three quarters acres, a portion of the nineteen and three quarters acres, which had not bájen united to the servient estate, and in said conveyance the plaintiff reserved to himself the right of common of sea weed and stone appurtenant to said nine and throe quarters acres ; held, that the union of the servient with thirty acres of the dominant estate! did not extinguish the entire right of common, but only so much as was apportionable to thirty acres, and that the residue of the common con- , tinued appurtenant to the nineteen and three quarters acres ; but that inasmuch as said common could not be severed from the estate to which it was appurtenant and granted over, so neither could it bo retained after a conveyance of the estate, and that the plaintiff’s reservation of the common appurtenant to the nine and three quarters acres, conveyed away by Mm, was of no effect, and the only common, which remained, was the common apportionable to the ten acres, part of the nineteen and three quarters, which were never united with the servient estate.</p>

<p>Under our Statute a child, advanced by gifts of land during the life of liis parent, is not entitled to bring such lands into hotchpot with the property descending to the heirs of the donor.</p> <p>The amount to bo deducted from the share of a distributee in the estate of an intestate, on account of advancement, is the value of the advancement at the time it was made.</p> <p>The I3th section of the act directing' the descent of intestate estates, &e. to wit: “ If real estate shall be conveyed by deed of gift, or personal estate shall be delivered to a child or grandchild and charged, or a memorandum made thereof in writing by the intestate, or by his order, or shall be delivered expressly for that purpose in the presence of two witnesses, who were desired to take notice thereof, the same shall be deemed an advancement to such child, to the value of such real or personal estate,” is not, intended to exclude other and higher proof of an advancement than is therein designated, but only inferior proof.</p> <p>Proof of parol declarations of the intestate, without any charge or memorandum or other proof of delivery, is insufficient to prove an advancement</p> <p>Where articles are delivered by the intestate to his daughter and a memorandum made thereof in which they were described as articles lent, held, that if it was the understanding of the parties that the articles should not be reclaimed, they were an advancement, and that the fact that they never had been reclaimed, the declarations of the intestate that he had advanced his daughter, and her own admission that she had boon advanced, though not by gifts of so much value as the gifts to her sisters, wore sufficient proof that such was the understanding. ^</p> <p>An ante-nuptial agreement by which the intended wife agrees to receive a prudent maintenance and support out of her husband’s estate in lieu of dower is valid in equity. And held, that the support intended by said agreement was a support in kind, not in money.</p> <p>The widow of the intestate, having agreed with a part of the heirs to disencumber the estate of her support and maintenance charged thereon by an ante-nuptial agreement, for a payment in gross of six hundred dollars, it was hold that the heirs, who paid the sum, were entitled to contributions from the other heirs to the extent that their shares in the estate were relieved.</p>

This was an appeal from a decree of the Court ©f Probate of Smithfield, proving and approving the will of Hannah Jenckes.

<p>The defendant, being indebted on four promissory notes, one of which was barred by the statute of limitations, the promissee of said notes, exhibiting four slips of paper, said to him, “ I have got the interest reckoned on those notes and written new ones and want you to sign them to which the defendant replied, “ I will pay you all I owe you within a year,’' and afterwards, being sued upon the said four notes, said of the prommissee, “ she need not have sued me ; the last time I saw her I promised to pay her every cent I owed her within a year,” and there being no dispute as to these facts, held: that the evidence was properly submitted to the jury for them to determine from all the facts, whether the new promise ivas meant to apply to the outlawed note as well as the others, and that the Court wore right in refusing to charge the jury, that "if they could give effect to the language proved to have been used without applying it to the outlawed note, they must not so apply it.”</p>

<p>An appeal from a decree of the Court of Common Pleas, rendered upon a master’s report in proceedings under the “ act securing to mechanics payment for repairs and improvements by them made on real estate,” does not vacate the decree by which the lien is declared and the master appointed, but only the decree establishing the master’s report, and the only matters opened by the appeal are those raised by the exceptions to said report.</p> <p>The lien provided by this act is not confined to mechanics, but is extended to all persons, who have made repairs or improvements upon the estate of another under contract with or at the request of the owner.</p> <p>The contractor, who has made repairs and improvements upon the estate of another, is entitled under the act to a lien upon the estate, not only for his own personal labor, but for the labor of all employed by him in suet repairs or improvements notwithstanding their concurrent lien, and the only effect of the enforcement of the lien on their part would be to diminish the lien of the contractor pro tanto.</p> <p>To entitle the contractor to a lien for labor furnished, it is immaterial whether" all the labor is performed on the estate or in the workshop or elsewherej if it finally goes into the repairs or improvements contracted for.</p> <p>The lien for materials extends only to such materials as are furnished by the person who furnishes labor and which are used in the work which he is employed, to do ; but for materials supplied by him for other work, though upon the same building, he stands simply as a material man and and is not entitled to a lien. But, whatever may be the condition of the materials furnished, whether very rough or perfectly adapted for their purpose, and in whatever quantities or from whomsoever they may have been originally purchased, or although kept by the contractor as merchandize, his lien is not affected by these considerations, provided only they are incorporated in the work contracted for.</p> <p>Eor all the work done- under a single contract or request, the contractor is entitled to but one indivisible lion, and must file his notice within six months after the commencement of the work, or the lien is entirely lost; but, when work is done under several contracts or requests, each separate job is entitled to a separate lien, or the lien is divisible, so that where notice has been filed, embracing an account for work extending back more than six months, that portion of the work which has been done within the six months will be protected, and the portion done prior to that time will be unprotected.</p> <p>The taking of a negotiable promissory note or draft from the debtor, on account of a pre-existing debt, is not a payment or discharge of such debt; but the actual negotiation of such an instrument raises a presumption that the parties intend it as a discharge of the debt, but such a presumption is prima facie only, and is open to be rebutted by evidence to the contrary, and the fact, that a lion is to be given up or security for the debt lost or abandoned, is a fact raising a counter presumption and rebuts that arising from the negotiation.</p> <p>When a negotiable draft had been given by the respondent for a portion of the charges, embraced in the account filed in the Clerk’s office with the notice of lien, and had been discounted and was outstanding in the hands of the bank at the time the notice of lien was filed, but arrived at maturity and was taken up by the petitioners and remained unpaid at the time the petition for the enforcement of the lien was filed ; held, that the petition to the Court and not the notice filed in the clerk’s office was the commencement of the action to enforce payment, and said draft being due and unpaid at that time was no bar to the recovery of the debt on account of which it was given,</p>

<p>The application of partnership property to the payment of partnership debts is the equity of the partners and not of the creditors, and therefore the partnership, while it is solvent, may sell its property or give its note secured by mortgage to one of the partners, and if the sale he made or the note and mortgage given in good faith and for valuable consideration, they will be valid against the claims of the partnership creditors, and although, if such note and mortgage be retained by the partner until the bankruptcy of the firm, he will not he allowed to enforce them against the company assets to the exclusion of the partnership creditors, because he is himself liable to these creditors, yet the assignee of such note and mortgage, who has received them in good faith and for valuable consideration during the solvency of the firm, holds them unaffected by the claims of the partnership creditors.</p> <p>Where two notes, secured by mortgage, are assigned to different persons, as security for advances made to the mortgagee, one note separately from the mortgage and the other with the mortgage, both assignees are equally entitled to the benefit of the mortgage security to the extent of his debt; and, if the proceeds of the sale under the mortgage will not satisfy the mortgage debt in full, yet the assignees are entitled to full payment for their advances if the proceeds are sufficient, and the assignor cannot come in for a dividend in said proceeds by virtue of any interest in said mortgage on account of the excess of said mortgage security over the advances made.</p>

<p>Where one of the several defendants to a criminal prosecution is acquitted, upon the trial, it is competent for the Court to grant a new trial to the other defendants, without setting aside the verdict as to the one acquitted, in order that they may have the benefit of his testimony upon such new trial, provided they show a case of so much merit and so much diligence on their part as to entitle them to a new trial.</p> <p>Where persons are made defendants to a criminal prosecution to prevent their being used as witnesses for the defence, the proper course for the party desiring their testimony, is to move for a separate trial, which the Court will grant or not in their discretion, or, if there be no testimony against one of several defendants at the trial, motion should be made for a separate verdict which being accorded, be would become a competent witness for the defence. And semble, that the neglect or omission, in such case, to move for a separate trial or separate verdict would be a ground for refusing a new trial for the purpose of giving the parties convicted the benefit of the testimony of the acquitted.</p>

<p>Wiiere an assignment for the benefit of creditors provided, by its first three clauses for the payment of certain preferred debts, and by the fourth clause for the payment of debts not preferred, and concluded with a proviso, that the creditors should execute a discharge in full of their claims and demands to the assignor, as a condition of taking under the assign- ■ mcnt, and in case any creditor neglected to execute such discharge his dividend should result to the assignor ; held, that the provision for the return of the dividends of the non-releasing creditors to the assignor applied to all the clauses, and that therefore, whore one of the preferred debts had been paid, although no release had been executed by the creditor, a releasing creditor of a subsequent class was not entitled to have the sum, applied to the payment of such debt, returned and applied to the payment of his debt.</p>

In Equity. The defendant, being seized in fee of a lot of land sixty-six feet long by fifty feet broad, with a piece nineteen feet by ten feet adjoining one side thereof, conveyed to the plaintiff, at that time Mary Dugan, by deed, dated February 9th, 1846, one undivided half part of the said entire lot of land, describing the same by metes and bounds.

<p>IVhere a written instrument is attested by a subscribing witness, such witness must be called to prove its execution, unless the witness bo dead or may be so presumed, or after diligent search or inquiry cannot be found, or is beyond sea or otherwise out of the jurisdiction of the Court or lias become incompetent as a witness, and even the admission under oath of the party who executed will not enable the Court to dispense with the subscribing witness.</p> <p>To authorize the admission of secondary evidence of execution, it is not enough to prove that the subscribing witness bears the same name as the wife of the party, who executed the instrument, but it must be proved that she is the wife.</p> <p>A witness will not be allowed to prove the genuineness of a signature from a comparison of handwriting, but must testify from a knowledge previously acquired, either by having seen the person, whose signature is questioned, write, or by familiarity with and examination of writings admitted to be his, so as to bo able to speak from, the correspondence of the signature with an exemplar existing in his mind.</p> <p>To prove the signature of a person, it is not enough to show that it is the same with the signature of a man bearing the same name, but it must be proved to have been written by the same person.</p> <p>An acknowledgment written in a memorandum book in the following form ; viz : “ I. O. you the sum of one hundred and sixty dollars, which I shall pay on demand to you,” is a valid acknowledgment of indebtedness, and parol proof is admissible to show the person to whom it is addressed.</p>

CoveNant upon the following agreement : “ The said Richard B. Hawkins doth hereby covenant and agree, for the consideration hereinafter mentioned, that he will send out in the Narragansett Trading and Mining Association one man, holding one share in said Association, and, in consideration of the sum of three hundred dollars in hand paid to said Richard B. Hawkins by the said Fletcher &> Brothers, he the said Richard B. Hawkins will guarantee unto the said Fletcher & Brothers…

<p>Where the officer, charged with the service of writ, in an action upon a note, “ watched the defendant at work in his field and waited till the plaintiff’s agent and the real owner of the note enticed the defendant out of the State and neglected to make service of said writ on the defendant though he had fair opportunity for so doing,” and after the defendant had left the State made service of the writ by attaching his real estate ; held, upon a plea in abatement to said writ, that the service thereof was void and that the return of the officer setting forth a valid service might be contradicted by evidence of these facts in the suit between the parties to the writ.</p>

Assumpsit on a promissory note. Plea, the general issue. This cause was tried in the Court of Common Pleas, at the December term, 1851, before Staples, J., upon the papers and proceedings and certain facts agreed to by the parties, viz : That the defendant made the note declared on by the plaintiff, and that, after the making of the note and before the commencement of this action, the defendant obtained the benefit of the Insolvent Act of this State.

Assumpsit against the defendant as surety upon the following note: “ Providence, January 1st, 1851. For value received we promise to pay Arnold, Barbour & Hartshorn, (the Providence Steam Pipe and Gas Company,) or order, in six months after date, one hundred and sixty-one dollars and eighteen cents.” Signed by Reisner & Cas-well. In this note the words in brackets were crossed out and the preceding words, “ Arnold, Barbour & Harts-horn” inserted above them.

This was a Bill in Equity against Seril Cook, trustee under the will of Elisha Waterman, late of Cumberland, deceased, Richard Carrique, late trustee under said will, Abigail… Held: that a feme covert has no power with regard to her separate estate, but what has been expressly given to her by the instrument of settlement, and that any power so given must be strictly pursued. This rule was re-affirmed and finally settled in South Carolina in Reid v. Lamar, (1 Strobhart.

<p>The “ Act regulating Water Mills,” does not authorize any person to erect a mill dam in such a way as to flow out a dam erected for mill purposes above, even though no mill has been built or commenced thereon, unless the design of building a mill thereon has been abandoned ; if, however, the dam above is built for other than mill purposes, or if such purposes, originally entertained, have been abandoned, it is subject to be flowed out by the proprietor below.</p> <p>The erection of a dam or mill privilege, available for mill purposes, furnishes prima facie presumption that the dam is intended for such purposes ; and the fact that such dam is slightly built is not sufficient proof of the contrary.</p> <p>The proprietor of a dam, who has represented that he intended to abandon the dam for mill purposes, is estopped from denying that such was his intent, as against a person who has been influenced by his representations to build a dam below which flows back upon the dam above.</p> <p>Whether the owner of a dam, built within the limits of a highway, but not within the travelled parts thereof, can sustain a suit for the flowing of his dam — qurere 1</p>

<p>A~potition for divorce is sufficiently specific, if it state the grounds of cti- • vorcc in the language of the statute, except where the petitioner relies upon a charge of gross misbehavior and wicketo.ess repugnant to and in violation of the marriage contract, in which case, the acts relied upon to make out the charge must be specified.</p>

This was an application for an alias execution in the case of the Mount Vernon Bank v. Whitman & Budlong. The original execution was issued in favor of the Bank, and Budlong, one of the defendants, committed upon it. Before the execution expired, the judgment and execution were transferred, for its full amount, to one Brayton, by whom it was transferred to the petitioner.

<p>All negotiable promissory notes, whether payable at bank or not, are entitled to - grace, unless there be a local usage, which may be presumed to enter into the contract, to the contrary; and the burthen of proving such usage is upon the party who sets it up.</p>

This was an appeal from the Court of Common Pleas. The action was debt, upon a judgment rendered in said Court, January 25th, 1849.

This case came up on certiorari from a Special Court of Common Pleas.

<p>Assumpsit on a promissory note ; plea, the statute of limitations ; replication, a new promise. The only evidence of the new promise was a schedule of debts filed by the defendant with his petition for the benefit of the insolvent law, in which this note, being then barred by the statute, was included.</p> <p>contended. Our insolvent law simply releases the body of the debtor, but leaves his property, then existing and afterwards acquired, liable for his debts ; the most then which can be inferred from the petition is a wish to exempt the body from process, not an intent to avoid the payment of debts. The statute requires that the petitioner shall file a statement of his debts and to whom due, as also an inventory of his property, and the purpose of this provision is that it may appear whether or not he is able to meet the demands of his creditors ; but if this statement does not import a promise to pay the debts, so stated to be due, according to the spirit of the act under which the application is made, that is, by a devotion of his property to that purpose, then, so far as such debts are barred by the statute, the statement is wholly illusory. Nor can the Court, without imputing gross dishonesty to the debtor, avoid inferring a promise to pay the debt from a statement under oath that it is due, such acknowledgment being qualified simply by the purpose which the debtor had in view, which was not an exemption from payment, but from arrest and imprisonment.</p>

This was an action of trespass on the case, for the recovery of damages for the loss of a cow, alleged by the plaintiff to have belonged to him, and to have been killed by the negligence of the defendants.

This was a bill in equity, filed October 6th, 1852, and answered February 14th, 1853. Without having taken any further steps in the cause, the plaintiff at the present term moved that the bill should be dismissed, without prejudice to his right to bring a new suit in reference to the matters involved in the present.

This was a bill of interpleader, in which the plaintiffs admitted the sum of $746 to be in their hands, and set forth that the defendants, Stimson and Waterman, had commenced a suit in equity, to recover that sum, as the receivers of the Roger Williams Foundry & Machine Company, and that the other defendant, Amanda Hunt, had commenced a suit for the same at law; and prayed that the said defendants might be compelled to come in and interplead.

Henry Mathewson filed a bill in equity against the defendant to procure the rendering of a partnership account and an account of certain trust property and the assignment of certain mortgages.

<p>This was an action of trespass and ejectment, to recover possession of two lots of land in Burrillville. The plaintiff claimed title to these two lots under a deed from Duty Smith, administrator on the estate of Russell Aldrich. It appeared, that Russell Aldrich died intestate, March 13, 1819, seized in fee oí the lots in question; and that on the 22d of April, following, Doty Smith and Amasa Al-drich were duly appointed and qualified as his administrators. The estate of Russell Aldrich was represented insolvent, afid commissioners appointed, who proceeded in accordance with the statutes, and made report of the claims allowed against the estate, which report was received and established by the Court of Probate. On the 16th of April, 1822, Amasa Aldrich died, leaving Duty Smith sole administrator. In 1824, an account was presented to the Probate Court of Burrillville, by Duty Smith, as administrator, and allowed. In November, 1842, Duty Smith presented a second administrator’s account with the estate of Russell Aldrich, which was disallowed by the Court of Probate of Burrillville, and an appeal taken to the Supreme Court, where the decree of the Court below was reversed, and the account allowed for the sum of §4,494 75. At the September Term of the Supreme Court, 1849, upon an appeal from the Court of Probate of Burrillville, a decree was passed empowering Duty Smith, in his capacity as administrator, to make sale, at public auction, of so much of the real estate, whereof Russell Aldrich died seized, as might be sufficient to pay the sum of §4,494 75, the balance due to him by his account as administrator, with all incidental costs, charges, and expenses, and to execute a deed, vesting in the purchaser of such real estate, all the right, title and interest, which the said Aldrich had therein, at his decease. Under this decree, the two lots described in the declaration, were sold and conveyed to the plaintiff, August 2, 1849.</p> <p>The defendant pleaded, that, at the death of Russell Aldrich, said Aldrich was indebted to him in the sum of §278 50; that this claim was never presented before the commissioners for allowance, but on the 24th May, 1824, more than three years after the administrator had been qualified, the defendant sued out from the Court of Common Pleas a writ of attachment against the estate of Russell Aldrich, and had the same served upon “the two lots aforesaid: that at the November Term of said Court the cause was duly entered, and was answered by Duty Smith, as administrator, and at the November Term, 1827, the defendant recovered judgment for the sum of §287 50, and costs, and, thereupon, execution issued, and was levied on the land attached ; and on the 19th of April, 1829, the said two lots were sold by the sheriff to the defendant, at public auction, and a deed executed by the Sheriff, vesting in the defendant all the right, title, and interest therein, that descended from Russell Aldrich to his heirs at law.</p> <p>The jury trial was waived and the case tried to the Court-</p> <p>contended, That the deed of the sheriff to the defendant was, in effect, the same as a conveyance by the heirs at law, and could only be defeated by a reversal of the judgment under which it was executed. The Statute (Dig. of 1822, <§> 28,) makes real estate liable for payment of debts, upon actions to be brought by creditors against the heirs at law or devisees, providing only that such actions shall not be brought within three years after the probate of the will or administration granted; and the proviso to the 30th Section, “that such actions shall not interfere with, prevent, or obstruct the settlement of any estate, whether solvent or insolvent, by executors and administrators, in manner by law provided,” must be taken in connection with the general spirit and intent of the act, which was, that the administration should be closed within three years, and if the administrator neglects to bring it to a close within that period, he should not be allowed any advantage from his own wrong ; that the act made no distinction between solvent and insolvent estates, and, if the creditor chose to run the risk of not presenting his claim to the commissioners, his right to make the attachment, after the three years, was perfect in either case,; and, if the other creditors, or the administrator, wished to defeat this right, they could only accomplish their object by closing the administration within that time. That it did not appear that the estate could not have been settled within three years, and if it did, the Court would not inquire into the merits of the defendant’s title, after the lapse of twenty yeais, without proof of the strongest equities on the part of the plaintiff. Nowell v. Nowell, (8 Maine, 220.) Hasty et ux v. Johnson, (3 Maine, 282.) King v. Burton, (5 Maine, 49.) Procter v. Newhall, (17 Mass. 80.)</p> <p>contended. There are two modes of proceeding in the settlement of estates, one under the Statute in relation to intestate, and the other under the Statute in relation to insolvent estates, whether testate or intestate. The second statute is that which applies to this case. And the question is, whether, under this act, the heir has an absolute right of alienation after the lapse of three years and six months, or whether such right is subordinate to a lien of the creditors, for the claims established by the report of the commissioners. It would be startling to creditors, if it were held that all estates must be settled within three years, however numerous their claims or perplexing the questions that might arise out of them, and however much they might be litigated and their adjudication protracted by appeal, and that a failure to close the settlement within this time would expose their rights to be defeated by attachment. If such were the law, the attaching creditor would stand a better chance than the creditor who proved his claim before the commissioners. But this is not the law: the commissioner’s report is in the nature of a judgment, and, being recorded in the appropriate tribunal, constitutes a lien upon the estate of the deceased, to which all titles growing out of an alienation by the heirs, ¡or accruing under other legal proceedings, are subordinate. The record in the probate office is notice of the lien, and whoever takes the estate, whether by purchase from the heirs or by attachment, which gives to the attaching creditor only the interest of the heirs, takes it subject to such notice. This is the only construction, which will reconcile the power of alienation, given by the statute to the heirs, with the paramount right of creditors to the payment of their claims out of the estate of the decased.</p>

ÍN equity. The petitioner prayed for an injunction to restrain the defendant from selling the mansion house and grounds of said James, in Providence, his farm in Scituate, as also his interest in the capital stock of the Atlantic De Laine Company, together with certain other personal property, all of which had been advertised for sale by the defendant, under a power of sale contained in three several mortgages of said property, executed by the said James to the defendant, as…

<p>The assignment of a lease of a private oyster fishery in the public waters of the Stale, given by the Commissioners under the “ Act for the preservation of oysters and other shell fish within this State,” if made with the assent of the commissioners, will pass to the assignee the legal title of such fishery.</p> <p>The lessees of oyster fisheries in the public waters of the State are obliged to set up and renew such stakes, buoys and marks only as the Commissioners shall require.</p> <p>The provision of the act, requiring that one part of the lease executed by the lessee and the Commissioners shall be transmitted forthwith to the General Treasurer, is directory to the Commissioners, and a compliance therewith need not be proved by the State in an indictment for stealing oysters from a private bed granted by such lease.</p> <p>Where a portion of the public waters are leased for a private oyster fishery, no one, unless authorized by the owner, has a right thereon for the purpose of taking quahaugs.</p>

<p>A commitment under a mittimus, which is without the seal of the magistrate or court issuing the same, is unlawful.</p>

<p>Where a promissory note is protested for non-payment, the holder and each successive endorser is allowed until the first mail, leaving in the usual course of business, of the day after payment is refused or notice received, to send notice t.o .the prior endorser.</p>

<p>Trespass and ejectment -for three undivided fourth parts of a lot of land in Westerly. Plea, the Statute of Possessions. The plaintiff filed a replication, alleging “ that the land and .premises described in the plaintiff’s declaration were, in the month of May, 1804, the property and estate, and in the possession of, -one Philip Dring ; and that the said Philip Dring died in June, 1804, being then the owner and possessor of said premises; and on the 30th day of June, 1806, one John Cross, of Westerly, was appointed administrator upon his estate, and the said John died before he had fully administered thereon, and subsequently, to wit, on the 23d day of February, Amos Cross, of Westerly, was appointed administrator upon said estate of Philip Dring. And the said Philip Dring, at the time of his death, to wit, in June, 1804, left four children living, to whom said premises described in the plaintiff’s declaration descended as his sole heirs at law, one daughter and three sons, to wit, Catharine Dring, Benjamin Dring, Charles Dring, and John Dring, all minors under the age of twenty-one years. The said Cath-arine was born in January, 1794, and while under age was joined in marriage to George How, to wit, at the age of seventeen years, in the year 1811, and has re. mained a feme covert until the commencement of this suit. The said Benjamin Dring was bom in November, 1796, and while under age, to wit, at the age of sixteen years, in the year 1812, removed beyond the limits of the United States. The said Charles Dring was born in October, 1798, and while under age, to wit, at the age of seventeen years, in the year 1818, also removed beyond the limits of the United States ■ and neither the said Benjamin, Charles, or John have ever returned to or been within the United States, and all of whom have since died intestate, and leaving no widow, or child, or heir at law, except their said sister, formerly Catharine Dring, now Catharine How, and the said Catharine How was and is the sole heir at law of the said Benjamin, Charles, and John, and inherited the premises described in the said declaration. And the said Catharine How, and George How, her husband, conveyed the same to the plaintiff on the 17th day of September, 1851 ; and the plaintiff further says, that within ten years after the removal of the impediments, aforesaid, the plaintiff has sued out his original writ in this behalf against the said defendant; and this, &c.”</p> <p>To this replication the defendant demurred.</p>

<p>Where the writ served in a cause has not been returned ihto Court, the Court have no jurisdiction over the cause, and cannot give the defendant who has answered the suit judgment for costs.</p>

This was an action of assumpsit to recover compensation for services in taking care of and nursing one Nancy Allen, an aged and infirm woman and a sister of the tes» tator of tbe defendants, for a period of four years. The defendants admitted that the services were performed and were worth the sum charged, but contended that the testator was under no obligation to pay for them.

This was an action of trover, brought by the plaintiff against the defendant, for the conversion of four mortar beds, four staying planks, and a half hogshead, attached by the defendant on an execution in favor of Thomas W. Cory, as the goods and chattels of the plaintiff, and which the plaintiff claimed were exempt from attachment, he being at the time a house-keeper, and said articles being his working tools, necessary for his usual occupation, and of less value than fifty…

This case was heard upon the following agreed statement of facts, to wit: “ It is agreed that the said Railroad Company own in fee certain real estate in said town of Smithfield, and own in fee an easement in certain real estate in said town, said estates so owned by said Company, being the location, sleepers, rails and bridges, &c., of the Providence and Worcester Railroad, lying within the limits of the location made under the charter; that said town, by its proper…

This was an action of assumpsit against the defendant as an endorser on a promissory note. It appeared on the trial, before Greene C. J., that the note fell due on Friday, and was noted for non-payment, and a notice thereof was, on the same day, enclosed in an envelope addressed to the defendant, and delivered to one Richard Howard, who voluntarily undertook to deposit it in the post office.

The indictment contained two counts. The first charged the defendant with larceny, in stealing certain goods ; the second, after setting forth that the goods described in the first count had been stolen, charged the defendant with having fraudulently received the same, knowing them to have been stolen, but without alleging the name of any person from whom said goods were so received by the defendant, or that they were received from some person or persons unknown to the…

This was an action of trespass tried at the Court of Common Pleas, before Staples J., from which it came up on exceptions to the rulings, of the Court. The plaintiffs are owners of the schooner Anna Jenkins.

This cause came up on exceptions to a master’s report. The bill was originally brought against George N. Briggs, to enforce the specific performance of an agreement to convey to the plaintiff a number of burial lots in the Oakland Cemetery.

This was ail action of replevin for fourteen tons of hay and five tons of oats unthrashed, cut for fodder, which were attached by the defendant, as sheriff, upon exectu tion in favor of Joseph Metcalf against Amasa Whipple.

<p>This was an action on the case, containing two counts, the first alleging that the plaintiff was the owner and occupant of a lot of land, with the dwelling-houses thereon, situated on Back Street, in Providence ; that the said Back Street was his private way, and that the defendants had obstructed the safe and convenient use thereof, and destroyed the same, by crossing it with their railroad, and claiming damages under the 11th section of the Company’s charter for the injury sustained; and the second, alleging that the said Back Street was a public highway, and claimiug damages for special injury to the plaintiff by reason of the obstruction aforesaid. The case was tried to the jury at the present term of this Court, and a verdict found for the plaintiff for thirty-six dollars per year damages, and the defendants claimed a second trial as of right under the statute. The parties, however, agreed to waive the jury trial, and submit the case to the Court upon the evidence, and if the Court should be of opinion that the plaintiff was entitled to judgment, that judgment should be entered for the damages found by the verdict.</p> <p>The evidence in regard to the question whether Back Street was a public or private way is fully stated in the opinion, as also the evidence in regard to the nature of the obstruction.</p> <p>The defendants justified their act under the 11th section of their charter, which is as follows : “ If the said Railroad in the course thereof, shall cross any private way, the said corporation shall so construct said railroad, as not to obstruct the safe and convenient use of said private way ; and if said railroad shall not be- so constructed, the party aggrieved shall be entitled to his action on the case in. any court proper to try the same; and shall recover his reasonable damages for such injury. And if said railroad shall in the course thereof cross any canal, turnpike or highway, the said railroad shall be so constructed as not to impede or obstruct the safe and convenient use of such canal, turnpike, or other highway. And the said corporation shall have power to raise-or lower such turnpike or highway, so that said railroad, if necessary, may conveniently pass under or over or across the same. And if the said corporation shall raise or lower any turnpike or highway pursuant hereto, and shall not so raise or lower the same, as to be satisfactory to the proprietors of such turnpike, or to the town council of the town in which said highway may be situated, as the case may be, said proprietors or town council may require in writing of said corporation, such alteration or amendment, as they shall deem necessary. And if the said corporation shall refuse or unreasonably neglect to make the same, such proprietors or town council, as the case may be, may file their complaint with the Court of Common Pleas for the county in which said turnpike or highway may be; and, if said Court shall adjudge that said alteration is reasonable and proper, they shall decree that the same be made by the said corporation, and render judgment accordingly. And in case said corporation shall neglect to comply with said judgment within the time prescribed by said Court, the said proprietors or town council, as the case may be, may proceed to make such alteration or amendment; and may institute and prosecute to final judgment and execution, in any Court proper to try the same, any action of the case against said corporation ; and shall therein recover a reasonable indemnity in damages for all charges, disbursements, labor and services, occasioned by making such alterations and amendments, with costs of suit.”</p> <p>It appeared that the plaintiff’s houses and land were situated on the west side of Back Street, and that the land on the east side, between Back Street and Charles Street, was owned by the City of Providence. The railroad intersected Back Street diagonally, from south-east to north-west, cutting through the south-east corner of the city land and Back Street, directly in front of the plaintiff’s houses, and striking the west line of Back Street, several feet to the north of the plaintiff’s land. In the adjustment of damages between the Railroad Corporation and the City, the City conveyed to the Corporation that part of the City land through which the road passed, and also agreed to appropriate a portion of their land between Back Street and Charles Street, on the north-east side of the railroad, to the purposes of a public street, thus connecting Back Street with Charles Street, and in pursuance of this agreement, a resolution of the Board of Aldermen (stated in full in the opinion) was passed on the 15th March, 1848; the effect of which was to lay open the land between Back Street and Charles Street to the public travel, so that persons passing down Back Street from the north might turn off and follow the line of the railroad, until they came to Charles Street, and from thence, passing into Smith Street, and crossing a bridge over the railroad to the south-east of its intersection with Back Street, might again enter Back Street.</p> <p>upon the question of the dedication of Back Street for a public highway, cited Hunter v. The Trustees Of Sandy Hill, (6 Hill, 412.) Woodyer v. Hadden, (5 Taunt. 125.) The City of Cincinnati v. White, (6 Peters, 435.) Wright v. Tukey, (3 Cush. 290; II Greenleaf’s Ev. <§> 666; 2 Smith’s Lead. Cases^ 136,) and contended that even if Back Street were a public highway, the plaintiff was entitled, for the special damage which he had sustained, it being even out of the power of the legislature to destroy a highway without compensation ; New Orleans v. The United States, (10 Peters, 120; 2 Smith’s Leading Oases-141,) and the city authorities having no power under the 11th section of the charter to authorize the diversion of a street for the more convenient passage of the railroad,- and the corporation being bound strictly to pursue their charter. Spencer v. London and Birmingham Raihoay Co. (1 Railway Cases, .150;. Walford. on Railways, pp. 71. 74. 109. 132. 123; 3 Hill. R. 567, 5 Hill. 170; 2 Green R. 172; 2 Railway Cases, ,312. 330.)</p> <p>admitting that, if the Court were of the opinion that Back Street was the plaintiff’s private way, he was entitled to recover, contended that the facts proved a dedication, and, if this were the case, that the plaintiff must show not only that he had suffered a private damage, but also that the public had sustained an injury, his remedy being only for the special damage which he had suffered in consequence of a general damage to the public, and that if he could not show that the pnblic had been wronged, the loss which he had sustained was merely damnum absque injuria. The public had not been injured, because the widening or diversion of Back Street made it more safe and conve» nient than it would have been if the railroad had passed under or over it, such a mode of passing at this place being, from the direction of the road, almost incompatible with the safety of the public travel; and although the charter provided two modes of passing, by-raising or lowering the highway, where the highway could not be crossed at grade, yet it could not have intended that the company should be restricted to these two modes, as was apparent from the use of the more general terms, “ alteration” and •' amendment,” in a subsequent clause of the same section. The 11th section having invested the town councils with power to superintend the crossing of highways, and to institute proceedings, in case such crossing was unsatisfactory to them, and the corporation refused or neglected to comply with the required alteration, the remedy thus prescribed was the exclusive remedy, and so long as the crossing was done to the satisfaction of the town council, it could not be said to be a public nuisance, unless some gross error or fraud were shown in the decision of the council. To give any other construction to the section would be to promote multiplicity of suits, and thus encourage the very evil, which was designed to be avoided. ■</p>

This was trespass, for excavating and carrying away the soil in Back Street, by running the railroad through' the same.

<p>The bond given by the assignee in a voluntary assignment for the benefit of creditors, should be for doable the amount of the property assigned.</p>

<p>Assumpsit for money had and received will not lie for the value of goods and chattels wrongfully detained from their owner, unless they have been sold and the money received for them.</p> <p>Shares in the capital stock of a bank, purchased during coverture, in the name of the wife, with the proceeds of property or choses in action belonging to her, vest in the wife, and will not go to the executor of the husband upon his decease.</p> <p>A negotiable promissory note, taken payable to the husband and wife during coverture, is a chose in action, to which, if taken with the assent of the husband, the wife becomes solely entitled by survivorship, upon the death of the husband, as against his executor.</p>

<p>In a suit against two as co-partners of a certain firm, the testimony of the person rvho contracted the debt for which the suit is brought, and who testifies that it tyas contracted by him as a third co-partner of the same firm, is not admissible to charge the defendants.</p>

This was an appeal from a decree of the Municipal Court of Providence.

<p>The Court will not, under the statute authorizing the amendment of civil process and pleadings, permit an action of trover to be substituted for an action of trespass.</p>

In Equity. The defendant purchased the interest of the Roger Williams Foundry and Machine Company in certain buildings, fixtures and machinery, which were sold by the plaintiffs at public auction under a decree of the Court.

In Equity. The bill set forth that one Albert W. Snow purchased certain lands belonging to one Hiram Ide, at an auction sale held by the collector of taxes, for the payment of taxes assessed on said land ; and, after-wards, said Snow endorsed upon the deed of said land, given by the collector, a transfer, not under seal, of all his right, title and interest in and to the within described estate to the plaintiff, supposing the same was a sufficient conveyance of the premises;…

Assumpsit. The writ in this case was served January 17, 1848, in foreign attachment, upon John D. Brown and Edward H. Hazard. It appeared by the affidavits of the garnishees, that they were the assignees of all the real and personal estate of the defendant, under a deed of assignment dated July 27, 1847, for the benefit of his creditors.

Exceptions to the report of a master appointed according to Statute, (Dig. of 1844, p. 19?,) to ascertain the sum due upon a mortgage, for which the plaintiff had brought his action of trespass and ejectment.

This was an indictment under the “ act for the preservation of oysters and other shell-fish within this State,” and charged the defendant with stealing oysters of the value of $40, from a private oyster bed in Narragansett Bay. The indictment was tried in the Court of Common Pleas, before Staples, J., and the defendant found guilty.

Tris was an action, on the case- against, the, defendant for pirating the plaintiff’s trade-mark. It appeared that the plaintiff was the original inventor of a medical compound sold by him, by the name of, PainrKiller, that he had been the first to apply this word to such a compound • and that, after said compound had become extensively and favorably known, the defendant manufactured and sold a similar compound, by the name of “ J. A. Perry’s, Vegetable.