Volume 20 — Rhode Island Reports

<p>A. andB., non-residents of the State, brought their actions against C. and attached his personal estate. D. in behalf of C. gave bonds with sureties to pay the judgments, which were subsequently entered against C. Pending these actions C. was, on his petition, adjudged insolvent. To a suit on the bonds for non-payment of the judgments this adjudication was pleaded in bar, and plaintiffs demurred to the plea.</p> <p>Held, that the adjudication was no defence.</p> <p>Afterwards O. obtained a discharge in insolvency and, at a subsequent hearing in the suit on the bonds, urged the discharge as ’a defence, and also urged that the judgments in the attachment suits were erroneously entered.</p> <p>Held, that the judgments were not irregular.</p> <p>Held, further, that as the plaintiffs in the attachment suits were non-residents, and had not become parties to the insolvency proceedings, the discharge of C. was no release as to them.</p> <p>Held, further, that C. was not a party to the suit on the bond, and his discharge had no effect in the present suit.</p>

<p>A promise of marriage is simply a contract, and breach of it is not a tort, although in its consequences it may resemble a tort.</p> <p>Malone vs. Ryan, 14 R. I. 614, affirmed.</p> <p>Assumpsit is the only form of action that will lie for breach of a parol contract of marriage.</p> <p>There is no rule of pleading that forbids the joinder in an action of assumpsit of a count for the breach of such a contract and a count for an unpaid promissory note.</p> <p>When the same plea may be pleaded to, and the same judgment ordered on, all the counts of a declaration, there is no misjoinder.</p> <p>This rule is not changed by the fact that the measure of damages applicable to one count may differ from that applicable to another count, since it is the right of parties to have a special finding of the jury as to each cause of action. A defendant in an execution issued in an action for breach of contract of marriage can be imprisoned thereon only on some of the grounds whereon any person may be so dealt with in ordinary actions of assumpsit.</p> <p>An execution will follow the writ: hence no execution will issue against the body when the writ is one of summons, or attachment, except under the provisions of Sec. 11 of Chapter 256 of the General Laws.</p>

<p>If a political party in any town at the last preceding election pooll at least two per centum of the entire vote of the town at said election, it is entitled as a party to make nominations for any officer in the town to he voted for. at the next subsequent election.</p>

<p>Petition of a receiver of a mutual insurance company for instructions.</p>

<p>The general rule that the acceptance by an insurance company of the premium after a full knowledge of the violation of the conditions of a policy is a waiver of any forfeiture because of such violation, applies to all causes of forfeiture.</p> <p>Receiving the premium after a loss is an affirmation of the validity of the policy.</p> <p>The receipt of the premium by the secretary of the company, under the conditions stated, is the act of the company.</p>

<p>Trespass, quare clausum fregit.</p>

Action on the Case to recover the amount paid to satisfy a judgment obtained for the negligent use of an opening in the sidewalk of a public street.

Bill in Equity to determine the rental value of premises under lease, the arbitration for this purpose provided 'for in the lease having failed.

<p>Leaving a copy of a writ with the insurance commissioner of this State in a suit against an insurance company doing business here but which had not appointed the commissioner its attorney to accept service of process against it, is not a valid service of the writ.</p> <p>Where such attempt to serve the writ appears by the record and is the only service thereof, and there is no appearance by or in behalf of the defendant company, the court is without jurisdiction.</p> <p>In a proceeding in personam notice of the proceeding against him, either actual or constructive, is necessary to give the court jurisdiction over the defendant.</p> <p>A contract whereby a benefit is to accrue to the plaintiff upon his death or physical disability, and conditioned upon the collection of an assessment upon persons holding similar contracts, is a contract of insurance.</p>

<p>A husband is liable for necessaries furnished to his wife, but not for money to buy them with, as such money might be misapplied.</p> <p>Semble, that the testimony of the wife alone that the money was laid out for necessaries would be insufficient, as it would open the door to a misapplication which it is the purpose of the law to prevent.</p>

<p>Trespass guare clausum fregit.</p>

<p>A resident creditor brought suit against B. and attached his personal éstate ; B. gave bond, with sureties, conditioned to pay any judgment that might be recovered against him in that suit, and such judgment was afterwards obtained ; B. filed his petition and was thereon adjudged insolvent, and afterwards secured a discharge ; before the adjudication of insolvency, the judgment being unpaid, the present plaintiffs brought suit on the bond and obtained j udgment in a District Court; after overruling the defendants’ exceptions the Appellate Division, of the Supreme Court granted a stay of execution, and plaintiffs applied to have the stay taken off: —</p> <p>Held, that the cause of action in the suit on the bond accrued upon the entry of judgment in the attachment suit, and hence it was a provable claim against B. and was covered by his discharge.</p> <p>Held, further, that while the discharge could not be pleaded because the suit was ended, B. was none the less entitled to its benefit.</p> <p>Held, further, that this did not affect the sureties, their liability having been fixed by the entry of judgment in the attachment suit.</p> <p>Held., further, that section 52 of the Insolvency Act, cannot be construed to refer only to sureties for the original debt.</p> <p>Held, further, that the discharge of B. did not operate to discharge the sureties after their liability had become fixed by the happening of the contingency of the bond.</p> <p>Held, further, that the stay of execution should be taken off as against the sureties, but be continued perpetually as to B.</p>

<p>Information filed by the Attorney General seeking a removal of obstructions from, and an injunction against maintaining obstructions in, a highway as to which there .had been proceedings for its abandonment.</p>

<p>AlUiougb Uie record may show that the evidence submitted to the jury was quite conflicting, the verdict will not be set aside if there be in the record sufficient evidence to sustain the finding.</p> <p>To show what income the deceased had derived from his business, his son, who succeeded to the business immediately on the death of his father, was asked in cross-examination as to the amount of his business, for purpose of comparison</p> <p>Held, that the testimony was too remote and uncertain.</p> <p>To sustain a'petition for a new trial on the ground that the witnesses while on the stand were prompted in giving their testimony by siguals and other devices from certain of the parties, it must appear that the attention of the presiding-justice at the trial before the jury was called to this misconduct and that he neglected to correct it.</p> <p>It is clearly within the discretion of the trial court whether, after the evidence is closed and the arguments of counsel begun, the case should be reopened to admit further testimony, and especially so when such testimony is merely cumulative.</p>

<p>Tlie purpose of certiorari is to correct errors of law, and not to review findings of fact.</p> <p>An applicant for a writ of certiorari averred that the lower court admitted hear, say evidence adverse to him, and against his protest; the return to the writ, while not admitting the averment, showed that other testimony was offered at the trial below :—</p> <p>Held, no question of jurisdiction being raised, that it was to be presumed that the evidence offered below was sufficient to warrant the action, and that that action could not be reviewed.</p> <p>When jurisdiction depends on the finding of a particular alleged fact, the exercise of jurisdiction implies the finding of that fact.</p>

<p>Bill in Equity for a partition.</p>

<p>Bill in Equity for an opinion, and the construction of a will.</p>

<p>Bill in Equity to restrain respondent from practising dentistry in the county of Providence.</p>

<p>A railroad was so constructed over a tract of land as to separate it into two par cels, and a bridge was put in to enable the owner to pass from one parcel to the other. On the layout of the road the adjustment of damages to the land owner had been made with reference to such passway between the separated parcels. Subsequently R. purchased one of the parcels, and afterwards the owner of the railroad discontinued the passway or bridge.</p> <p>Held, that the railroad company, having had the benefit of reduced damages by reason of a passway between the-two parcels of land, had no right, upon a severance of title to impose a new damage to one of the parcels by cutting off a way to and from it which is preserved by deed through the other parcel.</p> <p>Where a railway company which has put in a crossing, in compliance with an agreement between itself and the owner of adjoining land, continues to maintain the crossing after the land owner has conveyed it to another, it may be estopped from claiming that the subsequent grantee is not entitled to the crossing.</p>

<p>An assignee who, with full knowledge of the transaction, elects to treat a transfer by his assignor as valid, cannot afterwards proceed to set it aside as an unlawful preference.</p> <p>If an assignee receive property subject to a mortgage made by his assignor he must, before he sells the property, determine whether he will avoid the mortgage as a preference ; and if he sell the property subject to the mortgage he cannot afterwards avoid it.</p> <p>“ Subject to a mortgage” means, subject to the debt secured by the mortgage.</p> <p>It would be inequitable to allow an assignee to avoid a pledge after a delay of more than eight years to question its validity, and who, by treating it as valid, had led the pledgee to rely on his security and' to forbear to prosecute his action on the original debt until the latter (as to the assignor) had become barred by the statute of limitations.</p> <p>A preference of one creditor over another is not fraudulent, and can be set aside only by a proceeding instituted under the statute.</p> <p>Such1 a preference is not absolutely void, but voidable.</p>

<p>Action to recover town taxes.</p>

<p>Bill in Equity to establish and enforce a lien on real estate for labor and materials furnished.</p>

<p>A licensed dog is property, and may be the subject of larceny.</p> <p>An unlicensed dog going at large has no apparent protection under the law, and may be killed by any person.</p> <p>A licensed dog not having on a collar with the owner’s or keeper’s name distinctly marked thereon may be killed anywhere outside the enclosure of its owner or keeper.</p> <p>Any person may kill any dog that may suddenly assault him, or any person of his family or in his company, while the person so' assaulted is out of the enclosure of the owner or keeper of such dog.</p> <p>And any person may kill any dog found out of the enclosure of its owner or keeper, wounding or killing any neat cattle, sheep, lamb, horse, hog, or fowl, not the property of the owner of the dog.</p> <p>Any officer charged with the service of an execution in a suit against the owner of a dog for a second recovery of damages committed by such dog, may kill the dog as commanded in such execution.</p> <p>Authority to kill objectionable dogs may be obtained, under prescribed conditions, on complaint to the justice or clerk of a District Court.</p> <p>But one cannot legally kill a'licensed dog that is trespassing and doing damage on his premises, although its owner may have been notified of previous trespasses of like kind and requested to prevent their recurrence.</p> <p>The owner of a dog is liable for the damages it may do.</p>

<p>If two or more persons have maliciously combined together to induce newspaper publishers to refuse the complainant’s advertisement (having threatened to withdraw their own advertisements if the former be accepted), and have made malicious statements to the publishers to the same end, complainant is not-entitled to relief in equity by way of injunction.</p> <p>An injunction cannot prevent continuation of influences flowing from acts' of the past.</p> <p>If complainant’s rights have been infringed upon by the occurrences stated, his remedy would be by an action on the case for damages; and if the acts-complained of constitute the criminal offence of conspiracy, the remedy for the public wrong is by complaint or indictment.</p>

<p>In a declaration in an action for libel which charged the publication of many alleged libellous matters, some of the innuendoes were found to be properly, and other innuendoes to be improperly, associated with the several parts of the publication. The statements complained of were contained in a single article, and were embraced in a single count of the declaration. The demurrer'was to the whole count.</p> <p>Held, that if any of the words were actionable the demurrer must be overruled.</p>

<p>G-. furnished materials for a building erected for H., and on April 17 gave to-him, and had recorded, a general statement of the account, with notice that he “ intends to claim, and does claim,” a lien therefor. On August 13 he had recorded a particular account with notice to what building and land, and to-what and whose estate therein, the same referred. The petition wras filed in court the next day:— ■</p> <p>Meld,, that while the two notices required by statute may be combined and' recorded at the same time, it had not been done in the above proceedings, and the petition was filed within twenty days after commencing legal process to enforce the lien.</p> <p>The statute contemplates that a full statement of the items of the account, and' not a mere lump sum, shall be recorded in the commencement of legal process to enforce a lien.</p> <p>The statement in the second statutory notice that “ said account is filed for the purpose of commencing proceedings to enforce the lien," &c., commended as good practice.</p>

<p>A. made return to the assessors of taxes of its real and personal estate, less its indebtedness. The assessors substantially adopted the account of the .personalty, and made their assessments thereon accordingly:—</p> <p>Held, that A., under the circumstances, could not urge the invalidity of the assessment roll on the ground that it did not show the assessment to have been limited to the kinds of property mentioned in the statute.</p> <p>An assessment of real estate described the property as “ «S'. Mills, purchased fram, 8.” The account carried in to the assessors showed three separate parcels.</p> <p>Held, that unless it should appear that the real estate purchased from S. had remained intact and consisted of a single parcel, or (if of several distinct and separate parcels) that it was not practicable to separately describe and value such parcels, the assessment on the real estate was invalid.</p> <p>Personal and real estate were separately valued, the values added together, and the tax was assessed on the sum of these values:—</p> <p>Held, that this did not necessarily constitute an entire assessment that would be void as to the whole, if void in part.</p> <p>Held, further, that if the facts stated did constitute an entire assessment, the same would not be void so long as it was possible to separate what was legal from that which was illegal.</p>

Oase for deceitful representations by a debtor to Ms creditor, the' plaintiff having subsequently purchased the claim from the latter in the form of a promissory note.

<p>Counts sounding in tort cannot properly be joined with counts sounding in contract; such misjoinder is fatal, not only on demurrer, but also on motion in arrest of judgment.</p> <p>The test for determining what causes of action may be joined is whether the same plea may be pleaded to, and the same judgment given on, all the counts; If this cannot be done the counts cannot be joined.</p> <p>A motion in arrest of judgment raises only those objections which are apparent upon the record.</p>

<p>Bill in Equity to reform a mortgage deed of personal property.</p>

<p>One wlio relies upon a qualified promise made with reference to a debt barred by the statute of limitations, takes the promise subject to the qualification annexed to it, and cannot maintain his action without showing the fulfillment of the qualification.</p>

<p>Case for satisfaction of plaintiffs’ mortgage claim from proceeds of sale, under attachment, of the mortgaged property.</p>

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

<p>If the owner of property permit another to sell it and receive money for it, and by his actions assure the purchaser that the title is in such other person, he is bound by the conveyance as if he had joined in it.</p> <p>A person is estopped to set up the truth in contradiction of his own conduct and thereby to make the truth an instrument of fraud.</p> <p>Where the testimony is directly in conflict, it is the province of the jury to determine the credibility of the witnesses.</p>

<p>Chapter 38 of the Judiciary Act provided that the Appellate Division of the Supreme Court should give directions as to the manner of the disposition of all pending actions, suits and proceedings, civil and criminal, and for such transmission of the original papers and records as might be necessary to carry out the provisions of the act. This having been done it was</p> <p>Held, That the Common Pleas Division, under sections 22 and 36 of said chapter, obtained full jurisdiction to try and determine an indictment for murder found before the act went into effect.</p> <p>To render the statements of the deceased admissible' as a dying declaration it is only necessary to show to the satisfaction of the court, in the first instance, that it was made under a sense of impending death. And this may be shown in any mode either by direct proof of the express language of the declarant, or by his inference of evident danger, or the opinions of medical or other attendants stated to him, or by his conduct, or other circumstances revealing the state of the declarant’s mind.</p> <p>Tlie credibility of a dying declaration, after admitted in evidence, is entirely for tlie jury.</p> <p>Tlie weight to be attached to dying declarations depends upon—</p> <p>1. The trustworthiness of those who report them :</p> <p>2. His capacity at the time to remember accurately the past;</p> <p>3. His disposition to truly tell what he remembers.</p> <p>It is not necessary that the deceased should have apprehended immediate death in order to render his declaration admissible; but only that he had no expectation of surviving the injury inflicted by the defendant.</p>

<p>Trespass on the Case for libel published in defendant’s newspaper.</p>

<p>'Three sisters perished in the same calamity, no fact or circumstance appearing from which it could be inferred that either survived the other. They left wills in which each gave and devised all her estate to her two sisters and the survivor of them, and provided that after the death of the survivor and the payments of debts certain legacies should be paid to A. B. C. A. deceased without issue before the death of the testatrices :</p> <p>Meld, That under the facts stated the question of survivorship must be regarded as unascertainable, and rights of succession to their estate are to be determined as if death occurred to all at the same moment.</p> <p>Meld, further, that the bequest and devise to the sisters in each of the wills did not take effect, there being no interval of time between the deaths during which title to property could vest.</p> <p>Meld, further, that the wills stand as if they contained only the bequests to the legatees subsequently named ; and the residue of the personal estate, if any, as well as the real estate, passes as intestate estate to the next of kin and heirs at law.</p>

<p>If a street railway company have the paramount right to use that portion of the street occupied by its track, the public nevertheless have the right to use the street including the part occupied by the track, and it is the duty of the company, in the running of its cars, to use due care not to injure those who may be traveling on the street.</p> <p>If the traveler on the street were in the exercise of due care, the fact that an accident happened raises a presumption that the company was negligent (nothing appearing to the contrary), because of its control of the agent causing the injury, and because such accidents do not ordinarily happen without negligence.</p>

<p>A Court of Probate is not adapted to the investigation and determination of questions of fraud.</p> <p>Such court on receiving a release and ordering it to be recorded exhausts its jurisdiction thereof, and the proceeding is not an adjudication of the validity of the release. If the court have jurisdiction to make such record, it is merely for the perpetuation of the release as evidence.</p>

<p>Appeal from a decree of a Court of Probate denying a petition for the appointment of new commissioners upon an insolvent estate.</p>

<p>Trespass and Ejectment to try title.</p>

<p>A by-law of the plaintiff corporation provides that, “the several officers of the company shall perform such duties as.....may be assigned to them from time to time by the president.” The vice-president appointed H. to represent the company before a board of tax assessors and to carry in and make oath to the account of the company’s ratable estate required by Pub. Stat. cap. 43, §§6,7, and this appointment was confirmed by the president:—</p> <p>Held, that the by-law was broad enough to authorize the appointment of H. to the duties mentioned, and the confirmation of the vice-president’s appointment made it in legal effect the act of the president.</p> <p>H. carried in and made oath to the account referred to, which account purported to cover the ratable estate of the company located and liable to taxation in the town, but did not separately specify and value every parcel thereof :—</p> <p>Held, that the account was sufficient on demurrer, it not appearing in the petition that the company had other ratable estate than that described in the return.</p>

<p>On one of the counts of a declaration the jury found a general verdict and coupled with it special findings which were not only inconsistent with the general verdict but were inconsistent with each other :—</p> <p>Reid, that the jury must have been mistaken either as to its general verdict or its special findings ; and, as it was impossible to determine where the mistake was, the entire findings were a nullity.</p> <p>A brakeman on a railway train which was run according to a train order was injured in a collision with an engine on the same track running toward the train contrary to orders : — •</p> <p>Reid, that the engineer who ran the engine contrary to orders was a fellow servant of the brakeman, both being engaged in different branches of a common service.</p> <p>Reid, further, that, in the absence of proof of want of due care in selecting the engineer, the employer was not liable for his negligence as to a fellow servant. The danger incident to the running of engines, including the carelessness of engineers, is one of the risks of the employment which the fellow servants of the engineer assume when they enter the service of the corporation.</p> <p>It is the duty of a master to provide a reasonably safe place for his employees to work in, to furnish and keep in repair all the appliances of the business, and to protect his servant from injury therefrom by reason of unseen defects, so far as human care and foresight may accomplish that result:—</p> <p>But a master is not an insurer of the servant against injury, and is not liable for the willful misconduct of a servant in rendering the place of labor unsafe and dangerous whereby a fellow servant is injured.</p> <p>The defendant having done all that it could reasonably be called upon to do, the plaintiff, a fellow servant with the person causing the injury, had no legal ground of complaint except as against the man who caused it.</p>

<p>Bill in Equity to reform a deed and mortgage.</p>

<p>A declaration alleged that a town, its servants and agents, being negligent of its duty, caused and suffered one of its highways to be and remain out of repair, and unsafe and defective :—</p> <p>Held, that the language did not necessarily imply active and affirmative misconduct on the part of the town, its servants and agents, but that the negligence of the town resulted in or caused the dfeeet.</p> <p>Under Gen. Laws R. I. cap. 36, § 15, it is not necessary to allege in the declaration that a town had, or, by the exercise of proper care and diligence on its part, might have had, notice of the defect in its highway which caused the plaintiff’s injury ; such allegation is necessaiily implied in the charge of negligence.</p>

<p>Assumpsit for wages earned by plaintiff and detained by the defendant under a contract of apprenticeship.</p>

<p>One who is simply authorized to take the plaintiff’s goods from a specified place and ship them to her, is without authority to make a demand therefor upon a third person, or to make any admission as to their .ownership that would be binding upon her.</p> <p>Testimony relative to such demand by him is inadmissible, as is also a letter written by him relative to the plaintiff’s claim to the property in question.</p>

<p>A manufacturer paid, certain rebates to an officer of an association who distributed the greater part of them to its members. M., not a member of the association, had sold some of the goods ordered from the manufacturer, and, before such sale, had been assured by the president that he would get the association rebate. It did not appear that this assurance had been authorized by the association. In an action by M. against the association to recover the promised rebate the plaintiffs were nonsuited</p> <p>Held, that the funds so realized were not joint profits, nor was there such community of interest between the members as is necessary to constitute them partners.</p> <p>Held, further, that as plaintiffs were not members of the association they were not entitled to any of the rebates.</p> <p>Held, further, that the assurances of the president, in the absence of authority to make them, did not bind the association.</p> <p>Held, further, that the nonsuit was properly granted.</p>

<p>At common law a cause of action arising on a covenant on which the testator or intestate might have been sued in his life-time survived his death and was enforceable against his executor or administrator.</p> <p>Causes of action which survive at common law are expressly recognized as surviving by Pub. Stat. R.-1, cap. 204, § 8.</p> <p>The rule of common law that a suit abated by the death of the plaintiff, though the cause of action survived, is modified by Pub. Laws R. I. cap. 189, §§ 5, 6, and such suit is to be carried on by the executor or administrator from the point where it may have been left by the deceased.</p> <p>This statutory provision is equally applicable to the death of a defendant, and it is the duty of his executor or administrator to come in and take upon kimsejf the defence of the suit.</p> <p>Pub. Stat. R. I. cap. ¿05, § 9, applies only to the bringing of actions against executors and administrators, and not to'the citing them to appear- and take ■upon themselves the defence of an action begun, against the testator or intes- . tate in his life-time.</p> <p>Fox v. Ifopfcinson, Index TT, 92, distinguished from the present case.</p>

<p>A mortgagee who has mortgaged property sufficient to pay the amounts due on ■the mortgage note, but permits the property to be sacrificed at a mortgagee’s sale in order that a representative of the mortgagee may purchase said property for less than its market value, is equitably estopped from prosecuting a suit 'to recover the balance due on the note after 'such sale.</p>

<p>Gen. Laws R. I. cap. 233, § 21, provides that in an action on any contract or specialty the court “may order other parties to the contract or specialty to be made defendants and to be summoned in to answer to such action or suit: ”— Held, that this implies a judicial and not an absolute discretion, and hence is reviewable.</p> <p>A partnership creditor must exhaust the partnership estate before he can charge the representative of a deceased partner for a partnership debt.</p> <p>A surviving partner is primarily liable for the partnership debts and should be made a party defendant in an action to recover sufch debts.</p>

<p>Bill in Equity for an opinion upon questions and facts fully stated.</p>

Trespass quare clausum fregit for removing a fence. Defendant pleaded that the locus in quo was a highway, that the fence mentioned was an obstruction thereto, and that he removed it in his capacity of highway surveyor of the town.

<p>The owner of a building containing a freight elevator leased it for a term of years, the lessee covenanting to keep the interior in repair and the lessor having no control over the elevator nor the right -to make alterations. An opening existed between the elevator and the outer wall of the building. During the term the plaintiff’s intestate, while delivering goods to a tenant by the latter’s invitation, fell through this opening and was killed. In an action against the owner :—</p> <p>Held, that, as the building was not a nuisance, nor unfit for the purpose for which it was let, and as the plaintiff’s intestate was not upon the premises by invitation of the lessor, and the latter was not in possession or control of the elevator well, there was no right of action against the owner for the accident.</p> <p>Joyce v. Ma/i'lin, 15 R. I. 558, relative to a landlord’s liability to a stranger for the defective condition of premises under lease, affirmed.</p> <p>A freight elevator is of itself a warning that it is not intended for the safety of passengers, and is a like warning to those at work upon it.</p> <p>If a tenant invite a stranger to use such an elevator he is the one to give warning and look out for the safety of his guest.</p> <p>Bearing in mind the distinction made in cases where an invitation by the landlord may be implied, the liability of lessor and lessee is limited to the respective acts of each with reference to a stranger.</p>

<p>W., by a codicil to bis will, devised and bequeathed certain estate to a trustee for the use and benefit of his two daughters, in equal parts, during their natural lives, with discretionary power in said trustee to invest, and change the investment of, said estate ; and in further trust, upon the death of either daughter, to convey her half of the estate to her children or descendants, if any, and, if either of said daughters died without issue.or descendants, then such conveyance to be made to the heirs at law of said daughters, whereupon said trust was to cease as to the property so conveyed. The trustee died and a successor in the trust was appointed under the statute. One of the daughters also died leaving a child and grandchild.</p> <p>Held, that upon the dealli of said daughter the trust terminated only as to the share to be conveyed to her child and grandchild :—</p> <p>IMd, further, that the surviving daughter was not entitled to a conveyance of the legal title of the half of the estate held in trust for her.</p> <p>Held, further, that the direction to the trustee, on the death of the daughter, to convey to her children or descendants one-lialf the property, implied a division of the trust estate in specie.</p> <p>Held, further, that in case an equal division could not he made the trustee had an implied power to sell enough of the trust property to equalize the division. Held, further, that the trustee had power to sell any portion of the trust estate, in his discretion, for the purpose of changing the investment.</p> <p>The term “owelty” is usually, if not universally, applied to the partition' of lands.</p> <p>The power to make necessary changes of investment implies the power to sell for that purpose.</p> <p>The successor in a trust appointed under the statute has the same power to sell and convey, for a change of investment, possessed by the original trustee.</p>

<p>G. owned land abutting- on a court from which, a gangway, passing- through land of J. and of P., led to a street, which gangway G. and her husband were entitled to use as appurtenant to her land. She and her husband conveyed to P. all their right to use so much of the gangway as passed over the latter’s land, and P. conveyed the same to the predecessors in title of J. who erected a fence across the way. The husband of G. removed the fence as an obstruction to the way over J.’s land :—</p> <p>Held, that the land of G. was, by said conveyance, cut off from so much of the gangway as passed over the land of J., and that the right to use said gangway as appurtenant to her land was terminated by the conveyance.</p> <p>Held, further, that the title to the gangway had become vested in J. at the time of the removal of the fence, and such removal was wrongful.</p>

<p>Bill in Equity for a partition.</p>

Bill in Equity to restrain the sale to and purchase by a town of a system of water works belonging to a private corporation.

<p>At the time of Ihe first publication of the notice of the defendant's appointment as administrator the statute provided that no action should be brought against any administrator after three years from the time of giving such notice. Pending settlement of the estate the statute was so amended as to make the limitation two, instead of three, years. Within three, but after more than two, years, action was brought against the administrator, and the latter statute was pleaded in har :—</p> <p>Held, that, as the three years limitation had begun to run it would continue to its termination under Gen. Laws R. I. cap 298, § 10.</p> <p>Held, further, that the plea constituted no bar to the action.</p>

<p>In February, 1895, a married woman executed a release of all her claims arising from personal injuries received by her in November, 1894 (subsequent to her marriage), but her husband did not join with her in the instrument. After-wards she brought her action to recover damages for said injuries, and, her release being specially pleaded in bar, the plaintiff demurred to the plea :—</p> <p>Held, that at the time felie executed her release she was legally competent to do so without the joinder of her husband.</p> <p>The words estate and property are used in the statutes of Rhode Island in a broad sense, and include choses in action as well as property in possession.</p> <p>The recent legislation of the State relating to the rights of married women, reviewed.</p> <p>A husband has the right, unaffected by the course pursued by his wife, to maintain an action in his own name for the loss of her services caused by an injury to her resulting from the negligence of defendant’s servant.</p>

<p>A foreign corporation which, has not appointed a resident of this State as its attorney upon whom service of process against it may be made, can maintain an action here to recover a debt due to it.</p> <p>It cannot be inferred that the legislature intended to make the contracts of such a corporation invalid here, or to exempt our citizens from paying just debts on grounds of non-compliance with our statutes, when the General Assembly has not clearly expressed that intention and the inference of it is not necessary to the object of the statute.</p> <p>The purpose of the statute is to require foreign corporations to appoint an attorney to receive service of process against it, and this purpose is adequately served by imposing a penalty for non-compliance with the law.</p>

Assumpsit, based on defendant’s refusal to transfer on its books certain certificates of shares of its capital stock purchased by plaintiff.

<p>The promoters of a corporation guaranteed to C., who proposed' to purchase certain shares of stock therein, that they would take back said stock and pay par therefor upon a date named, if C. should so elect:—</p> <p>Held, that this was analogous to an offer by the promoters to purchase the stock on said date if C. then wished to sell it to them :—</p> <p>Held, further, that in order to bind the promoters it was necessary for C. to have made known his election to sell before the expiration of -the date limited for the purchase.</p> <p>If the obligation assumed be regarded as a contract instead of an oiler, it is within the class in which time is considered as of the essence of the contract.</p>

<p>Action of trespass on the case for libel.</p>

<p>Bill in Equity to set aside a conveyance.</p>

<p>The use of a hrake-rod having a defect that is not discoverableby the customary modes of inspection (or, in other words, a latent defect) is not negligence.</p> <p>The pieces of the broken rod having been lost, and the parties being deprived of the evidence they might have afforded:—</p> <p>Held, that a new trial should be granted to enable the plaintiff "to show, if he can, that the defect was not latent, or that the inspection was not by reasonable and usual methods.</p>

Trespass on the case for negligence of the defendant in having a defective grab-iron on the top of a freight car on which plaintiff was employed by defendant as a brakeman, and in the attempt to use which he was injured.

Assumpsit to recover money received from plaintiff’s estate and administered upon in his life-time under the provisions of Pub. Laws R. I. cap. 298.

<p>A contingent, executory or future interest in real estate may be attached, the attaching creditor acquiring the same rights over the attached property as the debtor had so far as necessary to satisfy therefrom the judgment he may obtain.</p> <p>The courts of this State are without jurisdiction to dissolve an attachment regularly and properly made, excepting in cases under Gen. Laws R. I. cap. 253, § 10, where a part of the attached property may be released if excessive damages be claimed or such property greatly exceed the damages laid in the writ.</p> <p>Attached personal estate may be released from attachment by giving the bond provided for by Gen. Laws R. I. cap. 253, § 14 et seq.</p>

<p>Petition in Insolvency.</p>

<p>A statute “in the interest of the public health,” authorized the board of aider-men of the city of Providence to compel the owner or occupant of land abutting on any street in the city in which there is a sewer to connect the drainage ©f said land with the sewer; and also empowered the board to direct the owner or occupant to fill up and destroy any privy vault, &c., on said land. Penalties were prescribed for non-compliance with such orders and directions, and,, if the non-compliance continued, the board was further authorized to cause the filling up to be done. The statute contained no provision for notice to or hearing of the owner or occupant before issuing the order or direction :—</p> <p>Held, that the statute is a proper exercise of the police power, and is, therefore, constitutional.</p> <p>The statute further provided that the pendency of any appeal from such order or direction should not affect the power of the board of aldermen to proceed with the filling up as authorized :—</p> <p>Held,, that this provision is not in any way in contravention of the constitution.</p> <p>Under its police powmr the legislature can declare that certain things are nuisances per se-, and privy vaults, as described in the statute, are embraced in such things.</p> <p>Under the same power, summary action, without a hearing, without previous jury trial, and without compensation, may be constitutional.</p> <p>Although no notice of the intention to issue the order or direction be necessary, yet in a suit by the city for the penalty, or in an action by the owner for the supposed trespass iu destroying tlie vault, he will have his day in court, and a right to trial by jury, and proof will then have to be adduced that the alleged nuisance was in fact a privy vault, and unauthorized under the statute.</p>

<p>The administration of the affairs of an insolvent is placed wholly in the Court of Insolvency, from the time of the filing of the petition till the question of the debtor’s discharge has been determined.</p> <p>A suit, pending at the time of filing the petition, or subsequently brought, may properly proceed to judgment when the claim is unliquidated, for the purpose of ascertaining the amount to which the plaintiff is entitled.</p> <p>Execution on such judgment must, however, be stayed until the determination of the question of the debtor’s discharge.</p>

<p>A count in a declaration which sets forth property in the plaintiff, its value, and the conversion thereof by the defendant at a time and place certain, sufficiently states a case in trover.</p> <p>If one receive specific money for safe keeping, to be delivered to the plaintiff on demand, it becomes his duty to deliver the same specific money; and a wrongful conversion thereof, to his own use will sustain an action for trover.</p> <p>A count setting forth facts which constitute larceny is demurrable, unless it also appear that complaint for the crime has been made to some proper magistrate.</p>

<p>Where actual fraud is charged, and the court finds that no fraud was intended- or proved, the bill, under the strict rule of equity pleading, should be dismissed, though it contain other allegations upon which relief may be granted.</p> <p>But if the bill be amended, upon conditions that will place the parties in the same position as though the bill had been dismissed and a new bill filed, the reason of the rule will have been attained.</p>

<p>Application for reargument of a petition for a new trial.</p>

<p>Action op Trespass on the case for negligence.</p>

<p>Bill in Equity to obtain an accounting for the supposed sale of the good will of the business of a copartnership of which th.e complainant and respondents were formerly members.</p>

<p>Assumpsit on an insurance policy.</p>

<p>Action op Trespass on the case for negligence.</p>

<p>A town is not liable to the owner of land abutting on a highway for injuries caused by surface water turned onto the land in consequence of allowing a drain under the highway, and the highway itself, to remain out of repair.</p> <p>Inman v. Tripp, 11R. I. 520, distinguished from the present case.</p>

<p>Plaintiff’s petition for a new trial, on the ground that the jury awarded her inadequate damages.</p>

<p>When a mortgagor remains in the possession of the mortgaged premises for more than twenty years, without paying interest on the mortgage note, or recognizing it as an existing obligation, there is a presumption that the mortgage has been paid or released.</p>

<p>A negative averment to tire matter of an exception or proviso in a statute is not requisite in an indictment, unless the matter of such exception or proviso enter into the description of the offence, or is a qualification of the language defining or creating it.</p> <p>In an indictment for bigamy the admissions of the accused are competent evidence of the fact of marriage.</p>

<p>Demurrer to an indictment on the ground of alleged uncertainty, and failure to charge an offence known to the law.</p>

<p>Tlie statute providing that a previous conviction or sentence of a witness for any crime or misdemeanor may be shown, to affect his credibility, does not authorize the introduction in evidence of an indictment to which the witness had pleaded nolo contendere.</p> <p>One may be sentenced on a plea of nolo contendere as well as on a conviction ; but; while for this purpose it has the same effect as a conviction, or a plea of guilty, yet as to other proceedings it does not have the same effect.</p> <p>When an indictment has been nol prossed the effect is to put the defendant without day; and the indictment has then no force or validity for any purpose unless fresh process be awarded thereon.</p> <p>There is no law authorizing a sentence, or any legal substitute therefor, by consent of parties, without the imposition thereof by the court.</p> <p>The custom of compromising or settling certain criminal cases, upon the payment of a sum of money to the State by the defendant, is vicious, and has the entire disapproval of the court.</p>

<p>An exception to a refusal to charge the jury as requested, if taken as early as possible, should be allowed, even though the jury may have retired.</p> <p>If the court wish to modify its instruction to the jury they may be recalled for this purpose at any time before their verdict is returned.</p> <p>Although one section of a statute declares certain acts, among others, to be unlawful, yet, if the section prescribing the penalty omit to. provide a penalty for those specific acts, the jury should return their verdict for a defendant charged with committing those acts.</p>

<p>Petition for new trial of an indictment.</p>

Trespass on the Case by lessee against lessor for injuries to plaintiff’s goods in the leased premises, in consequence of the alleged negligent management of a heating apparatus, and the use of improper means for receiving coal and carrying away ashes, in the parts of the building reserved to’ or used by the defendants.

<p>Trespass on the Case for negligent management of the defendant’s team.</p>

<p>Statements by workmen relating to tbeir work, spoken jocularly and so understood by the hearers, are not admissible as evidence against their employer in an action by him to recover compensation for the work; but, if uttered seriously, they might have been competent testimony.</p>

<p>A., the owner of an estate subject to an existing mortgage, executed a second mortgage thereof containing a covenant that the estate was free from encumbrances, and a warranty against the lawful claims of all persons. The latter mortgage was assigned to H., the wife of the mortgagor, and by her and her husband assigned to B. as trustee for I-I. Subsequently B. brought an action of ejectment against A. for possession of the estate and obtained judgment by default; he was put in possession of the mortgaged premises by the sheriff, and retained possession thereof for more than twenty years, although A. and H. continued in actual occupation of the same until the death of II., when A. removed therefrom and lived away until his decease. Before her death H. purchased and had assigned to her the prior mortgage above mentioned, but did not have it discharged of record. Complainants claimed title to the estate for the heirs at law of H., and respondents claimed the title as heirs at law of A:—</p> <p>I-Ielcl, that the second mortgage had been effectually foreclosed, and the mortgagor and those in privity of title with him were barred of all right of redemption thereunder.</p> <p>Held, further, that the first mortgage was not an outstanding encumbrance at the decease of II., but had been extinguished by merger in her equitable title to the estate.</p> <p>Held, further, that the respondents were precluded by the covenant and warranty in the second mortgage made by A.</p> <p>In the above mentioned suit of ejectment the writ, dated April 16, 1873, was issued by the clerk of the Court of Common Pleas for Providence county, and made returnable to the Court of Common Pleas for Bristol county, and the declaration, after reciting other facts, alleged that the plaintiff held the title under the assignment of the second mortgage by deed “ duly” executed :—</p> <p>Held, that the writ had been properly issued and returned under the statutes then in force.</p> <p>Query, if the declaration did not sufficiently set forth the title of the plaintiff in ejectment, since there could have been no due execution of the deed of assignment if the requirements of the statute had not been complied with by the par-dies to it.</p> <p>When the owner of an-estate pays off an encumbrance upon it the presumption is that he intends to extinguish the encumbrance and relieve the estate ; but such encumbrance may be kept alive if the intention to do so sufficiently appears.</p> <p>If there be no evidence of intention, and it is for the interest of the owner to preserve the encumbrance, equity will so treat it on the presumption that his intention is in accord with his interest.</p> <p>The judgment of a court having jurisdiction of the subject matter, and of the parties, can be set aside as erroneous only in some proceeding operating directly on tlie record; and until so set aside is conclusive on the parties to it and on those in privity of title with them.</p> <p>The assignment from II. to B., as trustee for her, having been lost, and no other evidence being produced at the trial to determine the extent of the trust:—</p> <p>Held, that it was to he presumed that the trust was to continue merely during her coverture, and that the subsequent management of the estate by B. was as agent for her heirs.</p>

<p>A. filed an application for a license to sell intoxicating liquors and, before the grant thereof, conveyed to B., with other property, all her right, title, and interest in and to the license. In making payment B. deducted from the total price the sum he paid to take out the license, and A. sued therefor :—</p> <p>Reid, that the clause in the conveyance relating to the license was merely a sale of her right to a license and not an agreement to pay for the same.</p> <p>Reid, further, that the most B. could claim was the right to have the license transferred to him.</p>

<p>Action of trespass on the case for slander.</p>

<p>The jurisdiction of superior courts cannot be taken away except by express words or necessary implication.</p> <p>Under their general jurisdiction District Courts have authority only to fine or imprison ; hence the necessity for the special provision of Gen. Laws R. I. cap. 147, § 9, to extend their jurisdiction to fine and imprisonment for the repetition of the offiences specified in §§ 6, 7, and 8, of said chapter.</p> <p>The dictum in State v. Grogan, 6 li. I. 40, is to be treated as having been overruled by subsequent cases.</p> <p>A statute is to be construed in the most beneficial way which its language will permit, in order to prevent inconsistency or injustice.</p> <p>When the language of a statute is not precise and clear, that construction of it will be adopted which will appear most reasonable and best suited to accomplish its objects ; a construction which leads to an absurdity will be avoided if possible.</p>

<p>Services rendered or benefits conferred by members of the same housebold to or upon each other are presumed, in tbe absence of evidence to the contrary, to have been prompted by affection or good will rather than from an expectation of payment.</p> <p>Testimony that testatrix said to plaintiff, her daughter, that the latter’s work was hard and she could not pay her then, is, by itself, too slight to overcome the presumption.</p>

<p>Bill of Interpleader to determine the title to a deposit of money.</p>

<p>Petition in Equity to enforce a mechanic’s lien.</p>

Indictment charging the keeping of a common nuisance at divers times between a given date and the day of finding the indictment, the day not being stated.

<p>The copy of the note sued upon, to be filed with the writ and declaration under Gen. Laws R. I. cap. 289, § 14, need not be a literal and exact copy thereof; if the copy he sufficiently accurate to identify the claim, and not to mislead the defendant, the purpose of the statute is fulfilled.</p> <p>If a defendant fail to make the affidavit of defence referred to in the same statute, the only effect is to preclude him from making a defence to the plaintiff’s claim; but the defendant is, nevertheless, entitled to have his claim in set - off ad j udicated in that suit.</p> <p>The failure to file the required affidavit of defence is a conclusive admission, for purposes of the suit, of the validity of the plaintiff’s claim.</p>

<p>Indictment for opening and keeping open- a victuallinghouse, &c., without a license therefor.</p>

<p>A lawful act cannot be accomplished by unlawful means, and the law will interpose to restore the party injured thereby to his rights.</p> <p>An attempt, by successive attachments, to secure a sufficient amount in the hands of a garnishee to pay a claim in full and then, without entering the writ or writs employed for this purpose, to commence a fresh suit by attaching the fund thus accumulated, works a wrong upon the defendant and is a perversion of civil process.</p> <p>The court has inherent control over its process and will always see that it is not abused, or perverted to purposes of oppression.</p> <p>A plaintiff may secure a sufficient sum to satisfy his claim by successive attachments made on his first writ within the time limited therefor, or on writ of mesne process thereafterwards, but it is abuse of legal process to go as far as he can on the first writ and then, without entering it, sue out another for the same cause of action and attach the same or an additional amount to satisfy his claim.</p>

<p>The only provision for appointment of commissioners on insolvent estates of deceased persons is that contained in Gen. Laws R. I. cap. 215, § 3.</p> <p>The appointment of such commissioners otherwise than as provided in this statute is no har to a suit by a creditor against the administrator on the estate.</p>

<p>Creditors’ bills to set aside fraudulent conveyances, and bills to reach equitable assets, rest upon distinct grounds of jurisdiction: the former invoke the aid of the court for relief from fraud, and the latter for the appropriation of assets which cannot be reached by law, But both are proceedings in equity, and subject to the same general rules.</p> <p>The office of equity is to supplement, not to supplant, the law; and when the remedy at law is adequate equity need not interfere.</p> <p>A bill to reach equitable assets cannot stand until the legal remedies have been exhausted, and the complainant’s right as a creditor has been established in the jurisdiction where the equitable remedy is sought.</p> <p>A judgment recovered in another State is not conclusive of the existence of a present debt, because of the defences to which it may be subject.</p> <p>Allegations that a conveyance was without consideration and for the purpose of hindering and defrauding creditors are not conclusive even on demurrer, as such conveyance is not void if the debtor have other property from which complainant can satisfy his claim.</p> <p>The best and conclusive evidence that debtor has no other property is the return of an execution unsatisfied.</p> <p>But after attachment of property so conveyed, and recovery of judgment upon which execution is to issue, the court has auxiliary jurisdiction to set aside the conveyance as a cloud upon the title.</p> <p>When a grantee in a voluntary conveyance of this character is a party to the bill, it is not a necessary allegation that he actually participated in or was privy to the grantor’s fraudulent purpose. McKenna v. Crowley, 16 R. I. 864, affirmed.</p>

<p>Petition for a Eeargument of the case reported in 20 E. I. Part 1, 65.</p>

<p>Where a negotiable promissory note is made payable to tbe order of and endorsed by tbe maker, and is subsequently endorsed by others, the latter become successive endorsers and not joint makers.</p> <p>The liability of endorsers, in the absence of any agreement affecting the same, is determined by the order in which their names appear on the note.</p> <p>A promissory note is not so merged in a judgment thereon, obtained by the payee, as to affect the relations between the successive endorsers thereof.</p>

<p>Petition for a trial of a probate appeal which had not been duly prosecuted.'</p>

<p>Petition in Equity to obtain construction of a will.</p>

<p>The purpose of the statute requiring that the grounds of a'probate appeal be set forth specifically is to notify the adverse party of them, and to enable him to prepare to meet them.</p> <p>Reasons of appeal stating that the instrument which the lower court refused to admit to probate is the last will and testament of the deceased are sufficient.</p> <p>A., mentioned in the reasons of appeal as sole heir at law of the deceased, and named in the instrument presented for probate, was described as of Dorchester; a citation was on file as part of the record haviug thereon a return showing that it, and a copy of the reasons of appeal, had been served upon a person of the same name in Boston:—</p> <p>Held, that it was to he presumed, till the contrary appeared, that the person served with the process was identical with the person named in the other papers.</p> <p>An appeal bond, in proper form, bearing an endorsement by the clerk of the probate court that it was presented to and approved by him when the court was not in session, held to be sufficient.</p>

<p>Held, aflirmiug the previous opinion of the court in this case, that the will construed in that opinion created successive residues, each becoming applicable to successive classes of legacies when the prior ones had been satisfied.</p>

<p>A., having been for a considerable time employed as a laborer by the defendant, was directed to remove snow from its station platforms and track crossings ; while he and another were so engaged on a platform between two tracks, a locomotive and tender passed down one of the tracks to a switch and returned on the other, and A., working with his back toward the engine,-was struck by it and fatally injured. He and the workmen with him had been cautioned that day to look out and take care of themselves. At, or just before, the moment of the accident the engine bell was rung and a fellow workman shouted to A., who, instead of moving from, turned towards, the track, where he was struck:—</p> <p>Held, that the defendant had performed all the legal duty it owed to A.</p> <p>Held, further, that A., from his previous employment, must have known the dangers incident to the service, and, in view of the caution given him, had no right to rely on another to look out for him.</p> <p>Held, further, that A. was guilty of contributory negligence in working with His back toward the track and so near to it that the passing engine could strike him.</p> <p>At the trial of an action by the administratrix of A. to recover damages for causing his death, the court, on the facts stated, directed a nonsuit:—</p> <p>Held, that the negligence of plaintiff's intestate was so clearly shown that no verdict against the defendant could be allowed to stand, and hence the nonsuit was properly granted.</p>

<p>While the rule of pleading requires that in the statement of an executory consideration there he a greater degree of certainty and minuteness than when the consideration is executed, yet no greater degree of certainty or particularity should be required in the pleading than the parties themselves have adopted in their contract.</p> <p>A count in a declaration averred a hiring of the plaintiff to perform specified services upon a consideration which included the payment of salary and the purchase from the plaintiff by the defendant, as the latter should consume it, of so much color at a stated price as would be necessary to finish thirty thousand pieces of goods ; upon demurrer, alleging that a proper construction of the contract did not require the defendant, acting in good faith, to use the quantity of color mentioned within any particular time, or even to continue the dyeing of goods of the specified color at all:—</p> <p>Held, that to so construe the contract would be unreasonable, and that the better • construction would require the dyeing to begin at once and to proceed in the usual course of the defendant’s business till the whole number of pieces had been dyed.</p>

<p>At the time of the making of a joint note the statute provided that the representative of one jointly bound with another should be chargeable in the same manner as if the obligation were several, provided that the plaintiff first pursue the surviving debtor to final judgment and execution. At the time of beginning suit on this note (one of the joint makers having deceased) a change in the statute had so limited the proviso that the representative of a deceased joint maker of such a note could be sued as if the contract had been several:— Held, that the liability had remained the same, and that the only change had been in the remedy.</p> <p>Held, further, that no right was affected ; for, if a representative be sued when the surviving partner is able to pay, the represen!ative can compel contribution, and with the same result as if the survivor were first sued and then compelled contribution from the representative.</p> <p>In execution of the powers in a mortgage deed a sale was made of property for much less than the amount of the mortgage note, and under circumstances which resulted in a decree that the purchaser convey back to the former owner a part of the estate and render an account in the premises. In a suit for the balance of the note the defendant claimed recoupment for damages arising from the improper conduct of plaintiff’s agent in the sale, and offered testimony relating thereto, and also the record in the equity case:—</p> <p>Held, that as the defendant had been re-instated to her proportionate ownership in the estate, and was in the same position she would have occupied if no sale had been make, the testimony was irrelevant and -the facts sought to be proved constituted no defence.</p>

<p>Petition for an opinion.</p>

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

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

<p>Trespass on the Case for negligence.</p>

<p>Trespass on the Case for negligence.</p>

<p>Action on the Case for false arrest.</p>

<p>While the word “ convicted” is commonly used to signify the finding of the jury that the accused is guilty, it is also used, in a more technical sense, to include the judgment and sentence of the court on a verdict or confession of guilt.</p> <p>A plea of nolo contendere is an implied confession of guilt, and has the same effect as a plea of guilty so far as the proceedings on the indictment are concerned.</p> <p>A defendant who has been sentenced on such a plea is to be deemed convicted of the offence for which he was indicted.</p> <p>A statute under which a suit was brought permitted the bringing of an action of the case, or of trespass ; the suit brought was in case but sounded in trespass</p> <p>Held, that it was proper to allow the declaration to be amended by striking from it the allegations of “ force and arms” and “ against the peace,” and so make it conform to the action brought.</p>

<p>Bill in Equity for an apportionment of sewer and curbing assessment between a life tenant and the remainder-men.</p>

<p>Trespass on the Case fpr damages alleged 'to have been caused by the use for immoral purposes of apartments hired by the defendant from the plaintiff for lodging-rooms.</p>

<p>Tlie lessor’s waiver of tlie forfeiture of a lease "because of a prior breacli of its conditions does not excuse tbe lessee in case of a subsequent breach by him ; in the latter case the lessor may still insist upon the forfeiture.</p> <p>Permission to use the leased premises for other kinds of business than those specified in the lease cannot be construed as a consent to an underletting of said premises by the lessee.</p>

<p>Assumpsit on Book Account.</p>

<p>Case stated for an opinion of the court upon the construction of a will. The testator, after directing payment of his debts, gave to his wife, forever, all the remainder of his “estate, real and personal, goods and chattels, of what kind and nature soever or wherever the same may be situated or located.” After the execution of his will he acquired two parcels of land, and the question arose as to whether she became seized of the fee therein under the will.</p>

<p>One -whose estate, abutting on a highway, is injured by an unauthorized change of the grade of such highway, caused or done by the town council or surveyor of highways, is not entitled to a writ of mandamus to have the former grade restored.</p> <p>Before the graul of a writ of mandamus it must clearly appear that the relator is entitled to that which he seeks to have done, and that it is the duty of the respondent to do it; if the right be doubtful, the writ will be refused.</p> <p>Nor will this form of remedy lie to undo what ought not to have been done.</p> <p>If one has a remedy at law for the wrong complained of, the extraordinary and summary proceeding by mandamus will not he entertained.</p> <p>A surveyor of highways is merely a ministerial officer of the town council,- subject to their direction and control, with no authority to incur any indebtedness against the town, except in emergencies provided for by statute, and is clothed with very limited and well-defined powers and duties.</p> <p>He has no power to change the established or actual grade of a highway, except in so far as such change may be necessary to make the highway-safe and convenient for travelers.</p> <p>A public officer who has no power to do a specified act is not chargeable with the duty of performing it.</p> <p>To wrongfully cause the surface water of a street to collect and remain in front of one’s premises and cause him damage is a nuisaace ; and, although it may be a public nuisance, yet, if he suffer peculiar and special damage therefrom, }re may maintain a private action to recover the same.</p>

<p>Trespass on the Case for alleged negligence arising from an order untimely given by the defendant’s superintendent.</p>

<p>In computing the indebtedness of the town of Lincoln, for the purpose of ascertaining whether the town has exceeded the limitations imposed upon it by-Gen. Laws R. I. cap. 36, § 21, it is proper to deduct therefrom its note for ten thousand dollars given for current expenses, provision for the payment of which was made in the current tax ; and also to deduct its bonded indebtedness and its expenditures for sewers, which are exempted from the operation of said statute by Gen. Laws R. I. cap. 298, § 3.</p>

<p>Trespass for injuries to plaintiff’s team.</p>

<p>Petition for the appointment of a guardian of the person and estate of a person of full age.</p>

<p>Under the statute relating to insolvency, non-resident creditors wishing to share in the distribution of the debtor’s assets must prove their claims and subject them to the operation of the discharge, if one be granted, thereby putting themselves on the same footing as resident creditors.</p> <p>Though the statute cannot compel non-resident creditors to become parties to the proceeding, it can, nevertheless, distribute the assets of the insolvent among his other creditors who are residents of the State, or who, not being residents, make themselves parties to the proceedings by proving their claims.</p>

<p>A want of consideration does not, of itself, imply a trust.</p> <p>If one admits a trust in his answer, or swears to it in a deposition, the element of satisfactory proof is not wanting.</p> <p>But where such deposition denies the trust, or expresses an intention not inconsistent with absolute ownership, a trust is not manifest.</p>

<p>Trespass for breaking a plate-glass window in the.store of the plaintiff occupied by her tenant.</p>

<p>Words which charge another with that which does not involve moral turpitude, and is not an offence either at common law or by statute, but only by ordinance, are not actionable iter se.</p> <p>After a verdict for the plaintiff in an action based upon such words, the declaration alleging no special damage, a motion in arrest of judgment must be sustained.</p> <p>Intoxication amounting to a violation of decency is made an offence only by ordinance of the several towns and cities and is not such at common law or by statute.</p>

<p>Chapter 1882 of the Public Laws, passed June 12, 1894, provided as follows : §§1,2, authorized the construction of a bridge over the Seekonk river and made directions as to certain details.</p> <p>§ 8 related to the appointment of commissioners to appraise and make awards concerning incidental damages and to appeals from their report.</p> <p>§§ 4, 5, directed payment of the cost in the first instance.</p> <p>§ 6 provided for a commission to apportion such cost, whose report to the Appellate Division of the Supreme Court was to be confirmed under the conditions stated in the following decision.</p> <p>§§ 7-12 related to other details not pertinent to the opinion.</p> <p>After the making of the report mentioned in § 6, a town to which a part of said cost had been apportioned filed its exceptions to the report and claimed a jury trial of the exceptions:—</p> <p>Held, that the court should determine, first, whether there was cause for not affirming the report.</p> <p>Held, further, that the court might correct errors of law appearing in the report.</p> <p>Held, further, that it was the right of a party excepting to have errors of fact in the report tried by a jury.</p>

<p>Bill in Equity for instructions. Eor a statement of the facts, and of the provisions of the will referred to therein, see 20 R. I. 160.</p>

<p>A highway was authorized by the General Assembly in 1813 and a plat thereof filed ; the line was changed by the Assembly in 1815 to conform to the terms of a deed that was subsequently lost:—</p> <p>Held, that the lines on the plat were an uncertain guide, and the only evidence to be relied on was that which showed where the way was built.</p> <p>A town council,-having appointed a committee to ascertain the lines of an existing way and make a plat thereof, received the committee’s report and plat with a declaration that the way was as shown on the plat:—</p> <p>Held that this action was an ex parte proceeding from which no appeal was provided by statute, and failure to prosecute an appeal taken in such case did not affect the appellant’s rights.</p> <p>One cannot neglect or abandon a statutory remedy for a statutory liability aud then set up the same right in another way.</p> <p>A bill in equity may be maintained to prevent continuing trespasses.</p>

<p>Wages to be earned under a subsisting contract may be assigned, and au assignment thereof-in good faith is valid against a subsequent garnishment.</p> <p>But such assignment becomes inoperative when the contract of employment on which it rests is ended.</p> <p>A subsequent return to the employment does not revive the assignment, as the new employment is by virtue of a new and not of the old hiring.</p>

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

<p>Trespass on the Case.</p>

<p>Moneys not mentioned in tlie declaration in an action of account cannot be allowed by the auditor to whom the action has been referred to take the account between the parties.</p> <p>But in such case the declaration may be amended in respect to the sums allowed</p>

<p>Trespass on the Case.</p>

<p>Action oe the Case for money attached in the possession of a garnishee.</p>

<p>The word “ children,” as ordinarily used in a will, means immediate descendants, i. «., of the first generation.</p> <p>This word does not include grandchildren or more remote issue, unless that meaning be necessary to give effect to the will, or unless the testator has shown by other language in his will that he does not use the word in its ordinary sense, but intends it to have a more extended signification.</p> <p>A. devised certain real and personal property to S. for his life, remainder to his children living at his decease, with a subsequent clause in the will giving all the residue of his estate to S. and his heirs and assigns forever. At the date of the will S. had two children, but both of them died before he did, and'both of whom left children :—</p> <p>jBeld, that the contingent gift of the property, on the determination' of the life estate, having lapsed by the death of the children of S. during his life-time, and there being no gift over of the property, it passed to him under the residuary clause of the will.</p> <p>Held, further, that S. thereby became seized in fee of the real estate, and that ■ his widow was entitled to dower therein.</p>

<p>An officer who breaks and enters a dwelling-house for the purpose of serving-civil process therein, excepting, perhaps, cases of attempted fraud or covin of the owner or occupant, is a trespasser.</p> <p>The law will not permit the sanctity of one’s dwelling-house, which from very ancient times has been regarded as his castle, to be violated in this manner. The means of obtaining possession of personal property must be in subordination to the common law rights of the defendant.</p> <p>An act cannot be lawful which may be lawfully resisted..</p> <p>Quare, whether there is sufficient reason for a distinction between an ordinary case of replevin and a case where goods and chattels sought to be obtained have been distrained or are fraudulently concealed by the defendant in his house.</p>

<p>Trespass on the Case for negligence.</p>

<p>Trespass on the Case for neglect to keep a highway in repair.</p>

<p>A charitable trust may be in perpetuity, but a private trust cannot be; the distinction being not the legality of the purpose of the gift but the creation of a perpetuity.</p> <p>Certain clauses of a will gave a parish priest one hundred dollars to say masses for the testator and also a like sum the income of which was to be used in ornamenting and keeping in repair the testator’s burial lot:—</p> <p>Held, that bequests for masses are legal, and that the first gift, taking effect at once, was valid, being like any personal bequest for a legal object.</p> <p>Held, further, that the second gift, being in perpetuity for a private trust, was invalid.</p> <p>Held, further, that the legatee designated was intended to be the parish priest in office when the will should take effect.</p> <p>If a gift is a charitable trust it will be good, whenever it is to be executed ; if not a charitable trust it will be good if it has the proper elements of a trust and is to be executed within the limit allowed by law, or if it be an outright ■ gift for a specified legal object.</p> <p>Other clauses of the same will provided for the payment of certain expenses and the conversion into money of all the residue of the testator’s estate, giving the income of one-third of all his “ estate” to his widow for life, and two-thirds of said “residue” to children of K. and M.</p> <p>Held, that the terms “residue” and “estate,” as so used, meant the same thing. Held, further, that the gifts to the children, although postponed in payment until the determination of -the life estate, took effect at the death of the testator.</p> <p>The widow declined the above provisions of the will, made in lieu of her dower, and a part of the real estate was set off to her:—</p> <p>Held, that, although the will did not contemplate a division of the estate until the death of the widow, her claim of dower had so changed the conditions that the executor might pay the legacies as far as he could before the sale of the realty assigned to her for dower.</p> <p>Held, further, that the election of the widow to take dower effaced the life estate provided for her by the will, and so advanced the interests in remainder.</p>

<p>Plaintiff’s employment required him to shovel clay into a machine, in front of which was an unprotected opening, and llie floor around which was wet and slippery ; during the employment he fell into the opening and was injured :—</p> <p>Reid, that by voluntarily consenting to work in the place described, knowing and appreciating the danger, he assumed the risk incident to the employment.</p> <p>Reid, further, that the fact that two causes contributed to render the place dangerous did not affect the question of the defendant’s liability.</p> <p>In the absence of circumstances calling for the master’s special care, such as-youth, inexperience, or want of knowledge of the machine,, a servant who voluntarily continues in an employment involving obvious danger of personal injury which the master might have avoided but did not, takes upon himself all of the ordinary and obvious risks incident to the employment.</p> <p>A master is not required to furnish for his servant a place of employment or a. machine as free from danger as it can be made; he is only called upon to furnish a reasonably safe place and reasonably safe appliances.</p> <p>But where a very dangerous machine is to be operated the master should take-greater care to protect his servant from injury than where the machine is comparatively free from danger.</p> <p>There is an exception to the general rule of assumed risks in cases of emergency where the service requires the exclusive attention of the servant and that React with rapidity and promptness.</p> <p>A declaration in such case, however, which does not allege facts constituting such exception, fails to state a cause of action.</p>

<p>The assured in a policy of life insurance had reserved the right to change the beneficiary, with the consent of the company. Having exercised this right, and forwarded the appropriate paper to the company’s office, she died before the company had consented or refused to consent to the change, the delay being due to the neglect of the company:—</p> <p>Reid, that the new beneficiary was entitled to the fund.</p> <p>Reid, further, that the company having filed its bill of interpleader and thereby offering to pay the fund as directed by the court, was estopped from setting up the claim that it had not consented to the change.</p> <p>Reid, further, that no one else could urge the lack of consent in the name of the company.</p>

<p>Petition in Equity for an opinion of the court.</p>

<p>A., in addition to liis reg'ular employment, held an appointment at a salary as “ call man ” in the fire department of a city, and had made successive annual assignments of this salary in consideration of a preceding indebtedness to the assignee, who had continued to draw the salary under the assignments and to apply the payments on account of the indebtedness. An attachment of this salary was attempted at a time when the balance due on the indebtedness was larger than the unpaid amount of the salary:—</p> <p>Held, that the assignment was good, and that the garnishee should be discharged.</p>

<p>Probate Appeal.</p>

<p>A verdict, determining the value of goods converted, although the testimony upon which it is founded be conflicting, cannot be disturbed.</p> <p>When a claim or defence available at the trial of a cause is not presented at the trial, and no ruling of the court is asked for in relation thereto, it cannot be the subject of a petition for a new trial.</p>

<p>The provisions of the federal constitution requiring full faith and credit to be given in each. State to the public acts, records, and j udicial proceedings of every other State, relate to statutes, judgments, and decrees.</p> <p>Opinions of courts are not judgments.</p> <p>Although a court in the interpretation of the statutes of its own State will be followed by other courts, there is no rule of comity or law that a court should be followed when its opinion is simply its interpretation of general legal principles.</p> <p>Still less is such opinion binding when it is not a decision but merely a dictum. However much the provisions which make a stockholder liable for debts of a corporation may differ in the several States, they are essentially the same in principle ; they declare a liability and provide for its enforcement.</p> <p>Such liability is statutory and not contractual.</p> <p>A right of action created by statute in one State may be prosecuted in another when the two States have statutes substantially similar ; but comity between States does not require one State to enforce the statutory provisions of another State which are contrary to the policy of its own laws.</p>

<p>Complaint for selling, and having in possession with intent to sell, adulterated milk.</p>

<p>Pinal judgment was entered in an action (hat had been pending more than three years; and a suit on the bond, given to release personal property attached on the writ in the fii-st case, also proceeded to judgment and execution ; upon petition for a new trial of the latter suit, on the ground that the original plaintiff gave the defendant a release after the attachment and before the return day of the first writ:—</p> <p>JMcl, that the petition could not be granted. If the release were pleaded in the first case, the court must have found it invalid in order to have rendered final judgment for the plaintiff; if it were not pleaded, the judgment is still conclusive, as this was a defence within the knowledge of the defendant and he could have pleaded it.</p> <p>A judgment is conclusive against all defences which might have been set up before it was rendered, and this is true for the purposes of every subsequent suit between the same parties and their privies, whether founded upon the same or a different cause of action.</p> <p>At common law the death of the plaintiff after judgment suspends the right to issue execution until the judgment is revived by scire facias.</p> <p>A bond given to release an attachment of personal estate contained a provision that it should be void if, at any time after the final judgment, the goods, upon request therefor, be returned to the officer taking the bond :—</p> <p>Held, that possession of an execution upon such judgment was not necessary to enable the officer to demand return of the property.</p>

<p>A writ of replevin issued from one District Court cannot be made returnable to another District Court.</p> <p>A special statute is not affected by the enactment of a general provision upon the same subject unless it clearly appears that the intention of the legislature was to modify the special provision.</p>

<p>Assumpsit for the collection of a tax.</p>

<p>Subrogation is a doctrine of equity jurisprudence, and is not usually applied in courts of common law except in those States in which equitable remedies are administered through the forms of law.</p> <p>Owing to the strict rules of common law pleading the rights and duties which attach to one person cannot be made to attach to another, except by force of some statutory provision; and there is no such statute in this State.</p> <p>An action at law is not adapted to the working out of equitable relief, and the attempt to make it so by statute generally tends to confusion.</p> <p>M. and S. sold goods to W. on the guaranty of A. The latter was obliged to and did pay for the same to M. and S., and subsequently made a compromise settlement in full of his claim against W. therefor. Afterwards M. and S., as trustees for A., replevied the same goods from W.:—</p> <p>Held, that the plaintiff could not íecover ; M. and S., having sold and received payment for the goods, and W. having settled his account with the defendant, there was no ground upon which the action could be maintained.</p> <p>Held, further, that replevin cannot be brought in the name of one person for the use of another.</p> <p>Held, further, that the action of replevin involves only legal rights ; if equities are to be settled, resort must be had to another form of procedure.</p>

<p>A replication averring a promise to one person, while the declaration avers a promise to another, is clearly a departure in pleading, and the rules of pleading have made no exception in the case of a representative plaintiff, although such an exception would seem to be both reasonable and just.</p> <p>It is also a well-settled rule that when one takes issue upon a replication or rejoinder containing a departure,, and it is found against him, the court will not arrest the judgment. The verdict cures the fault.</p> <p>If no exception be taken to the ruling of a court, objections to such ruling must be regarded as waived.</p>

<p>Assumpsit by a foreign guardian of a non-resident ward to obtain possession of tbe ward’s property in this State.</p>

<p>A. executed a deed .of trust which operated a division of his estate, taking effect at his death. Under this his three children took three-fifths of the estate, two grandchildren took a fifth, and B., another grandchild, took the remaining-fifth. The shares of the grandchildren were subject to the deduction of a sum which was to be added to the childrens’ shares; the amount of this deduction was afterwards ascertained, and B. paid over his proportional part thereof; subsequently lie died without issue, and intestate as to certain of the property received from his grandfather. The children claimed that the title to this property came to them as ancestral estate ; the father of B. claimed that his son acquired the property as a purchaser for a valuable consideration, and that the title came to him as his sole heir at law:—</p> <p>l-Ielcl, that the deed of trust was a purely voluntary act on the part of the grandfather, and the subtraction of a part from the two-fifths given the grandchildren and the addition thereof to the three-fiftlis given the children was merely a mode for determining the interests to be taken by the recipients of his bounty.</p> <p>Held, further, that B. took his undivided fifth part by gift from his grandfather, and that the title passed to the children as ancestral estate.</p>

<p>A. was employed by B. under a contract with no time limit; O. held a recorded assignment of the wages of A., covering the term of one year, and founded on an indebtedness from A. to 0., the whole of which had not been paid at the date of the attachment in the present suit; A. drew his wages on an order from and paid them over to O.:—</p> <p>Held, that in so drawing these wages A. acted as the agent of C., and the order given did not make the assignment void.</p> <p>Qumre, whether the fact of drawing wages in this manner, without explanation as to the disposition of them, would not be prima facie evidence of fraud; but when they are fully and immediately paid over to the assignee fraud cannot be properly inferred.</p> <p>The presumption of law is in favor of the validity of such an assignment, and of the good faith of the transactions thereunder, and there must be proof of fraud before the court can decide against them.</p> <p>The fact that a contract of employment is silent as to the time of its duration does not affect the right of the employee to assign the wages arising under the contract.</p> <p>If such hiring be by the day it is not necessarily for a single day, but is a continuous hiring by the day so long as the contract continues.</p>

<p>Bill in Equity for the construction of a will.</p>

<p>A deed by a man directly to his wife, under the statutes in force in 1849, was void at law; but while the legal title remained in the husband such deed may be a good conveyance of an equitable estate when made for a good Consideration, or even as a gift if not in fraud of creditors.</p> <p>A husband has an estate for life, as tenant by curtesy, in the equitable estate of his wife unless a contrary intent appears in the instrument creating the wife’s 'estate.</p> <p>An estoppel does not arise when the truth appears ; therefore the rule that one who has given a warranty deed is estopped by his covenants of title to set up an after-acquired title does not apply to prevent an estate by curtesy in a husband who had made such a conveyance to his wife and survived her.</p> <p>Such a deed does not convey .the husband’s tenancy by the curtesy unless it be so expressed, as that estate does not arise until the wife becomes seized.'</p> <p>The heirs of the wife claiming title to the granted premises are not guilty of laches by waiting until'the death of the husband before proceeding to enforce their claim.</p> <p>A bill is not multifarious where the complainants hold title in various ways, if the remedy sought grows out of one transaction, and the bill seeks to establish one general claim of right which affects all the respondents.</p>

<p>Service of a writ by attachment of the defendant’s real estate, without service upon or any attempt to give notice thereof to the defendant, is not sufficient basis for the entry of a nil dioit judgment for the plaintiff.</p> <p>A defendant petitioning for a trial in such case may show facts not in contradiction of but supplementary to the officer’s return.</p>

<p>Under Pub. Stat. R. I. cap. 79, §§ 8, 4, 5, 6,7, 14, the General Assembly delegated to town councils the power of locating the kinds of business therein enumerated.</p> <p>When such business has been so located the owner thereof acquires rights in the location that cannot be taken from him without making compensation therefor, ' unless such use of the location be abated as a public nuisance.</p> <p>That which is authorized by law cannot be held to be a public nuisance ; hence the business carried on at the place so designated therefor cannot be-declared a public nuisance so long as the licensee keeps strictly within the terms of his license, and conducts the business in a reasonably careful and proper manner.</p> <p>The State cannot punish one of its citizens for doing an act which it has authorized him to perform.</p> <p>It is competent for the General Assembly to authorize an act which, but for such authorization, would constitute a public nuisance.</p> <p>When one is authorized by law to engage in a particular business at a designated place, he is not liable to indictment for the consequences of the exercise of such authority, provided he keep strictly within the terms of his license, and act thereunder carefully and properly.</p> <p>But such a licensee will he held to a strict observance of the limitations of his authority.</p> <p>In the trial of an indictment charging the offence described in said sections, it is competent for the defendant to show the action of the tqwn council relating to the location of his works.</p> <p>If such a licensee conduct the business in a negligent and improper manner, and thereby create a public nuisance, he may he prosecuted and punished therefor, notwithstanding his license.</p> <p>An indictment alleged the offence mentioned as having been committed on a day stated, and “on divers other days and times between said day and the day of finding this indictment”:—</p> <p>Held, that this stated a sufficient continuando to warrant an order of abatement in case the defendant be found guilty.</p> <p>An order for the abatement of a nuisance is not a necessary part of a judgment thereon, and an indictment need not be laid with such a continuando as would be required to warrant the order in case of conviction.</p>

<p>When one is injured by a defect in a highway of which she had knowledge, and had been in the habit of avoiding when previously passing it, and such injury happens at a time when there is no' difficulty in seeing the dangerous place, contributory negligence is to be inferred.</p> <p>Although the question of contributory negligence is ordinarily for the jury, yet it may be inferred, as matter of law, when the evidence of it is sufficiently clear.</p>

<p>A license to do an act which, without the license, would be a trespass, cannot be set up as a justification unless it is specially pleaded.</p> <p>Where the plain till has testified that there was no license, the defendant may cross-examine on that point (without having pleaded a license), to show the fact in mitigation of damages. ■</p>

Bills in Equity to establish a trust, and for a conveyance. The first bill alleged that the complainant transferred to the respondent the estate described for the purpose of its better care, &c., and with an agreement to recon'vey the title upon request. The answer averred that the transfer was made as security for an indebtedness.

<p>Trespass, guare clausum, to which was pleaded a right of way over the land described.</p>

<p>A verdict is cqnclusive if reconcilable with, the evidence.</p> <p>When a jury has returned its verdict upon issues framed in an equity suit, the burden of proving that its findings are against the evidence is upon the party objecting to the entry of a decree thereon.</p>

<p>Bill in Equity to establish a trust and for a conveyance.</p>

Trespass on the Case for negligence in permitting a highway to remain out of repair. Jury trial being waived, the case was heard by the court and decided in the following RESCRIPT.

<p>The Highway Act (Puh. Stat. R. I. cap. 64, §§ 1-17) materially differs from the “Betterment Act” in that it contains no statement as to the title obtained by a municipality under tlie condemnation proceedings, and no provisions affecting pending leases.</p> <p>Under the Highway Act all the right which the town or city acquires in the land taken is an easement therein for the purposes of a highway; the title to the soil, and all the profits thereof consistent with the easement, remain in the original owner.</p> <p>Under the Betterment Act the municipality, upon its election to make the improvement, becomes seized of the land in trust for use as a public'highway; existing leases, in so far as they affect the land taken, immediately cease, and the rent for the residue of the lands covered by lease is to be apportioned.</p> <p>The rent for premises taken under the Highway Act, which accrues after the condemnation of the land and before the actual eviction of the tenant, cannot be properly distinguished from any other profit derived therefrom, and belongs to the owner.</p> <p>As the city obtains under the Highway Act only the described easement in the land taken, it cannot use the land for any other purpose; if built upon or rented by the city, the owner might recover the land in ej ectment, together with the rent thereof as mesne profits.</p>

<p>Bill in Equity for specific performance. The complainant was seized of the land and buildings described in the pleadings, under a deed containing the clause recited in the opinion of the court; it had contracted with the respondent for a mortgage loan upon the property, but, on tender of the note and mortgage the respondent declined to make the loan, on the ground that complainant’s title was not good because of this clause in its deed.</p>

<p>When the persons interested in the subject-matter of a suit in equity are numerous, a bill may be hied by one or more complainants in his or their behalf, and in behalf of all others interested who may come in and take on themselves the XJrosecution of the suit.</p>

<p>A lessor reserved the right to sell the demised premises during the term, and the lessee agreed, in case of such sale, to surrender the premises to the lessor at once and release any further claim thereon:—</p> <p>Held, that the object and purpose of the provision were to terminate the lease in case of sale, and that the agreement could not be avoided for want of mutuality.</p> <p>Occupation of the premises after such sale thereof would be by a new agreement of the parties and not by virtue of the lease.</p> <p>The sale described occurred June 18 ; the land was condemned for highway purposes July 1, and the buildings were removed therefrom August 19; the lessee tendered to the lessor a sum equal to what the rent therefor would have been under the lease to July 1; in an action by the purchaser against the tenant for use and occupation of the premises from June 18 to August 19:—</p> <p>Held, that the purchaser was entitled to recover, but only for the time between the purchase and the date of the condemnation.</p>

<p>Trover by a wife against her husband for his conversion of her personal estate.</p>

<p>The giving of a mortgage for a much larger sum of money than is advanced by the mortgagee, the latter giving to the mortgagor a receipt for the balance, is an evident attempt to hinder, delay, and defraud the creditors of the mortgagor.</p> <p>Both of the parties to such a transaction must be held to have participated in the fraudulent intent.</p> <p>If such a mortgage be assigned to a corporation whose.general manager has full knowledge of the transaction, the corporation takes the assignment with notice.</p>

<p>Where hoth compensatory and punitive damages are awarded, it is not the right of the party against whom they are assessed to have the award specify how much thereof is for compensatory and how much is for punitive damages.</p> <p>An action of trespass for damages to the person is not abated by the death of the plaintiff after a decision in his favor and before the entry of judgment thereon, his administrator having entered an appearance to prosecute the suit.</p>

<p>Indictment charging the offence described in the opinion.</p>

<p>Bill in Equity for construction of certain provisions of a will and for instructions thereunder.</p>

<p>The real estate of a deceased debtor is liable to be sold on the application of the administrator, so long as it remains in the hands of the heir, even though such application be'made more than three years and six months after the grant of administration.</p> <p>It is the alienation of the land by the heir or devisee, after the three years and six months, which terminates the charge thereon as against the rights of the administrator.</p> <p>The conveyance of the land previous to that time simply places the alienee on the footing of the heir or devisee, and the land in his hands remains subject to the same liability as though it had remained unaliened.</p>

Trespass on the Case for negligence in not properly protecting a reservoir in the defendant’s mill yard, into which the plaintiff fell and was injured.

<p>Assumpsit on a policy of insurance issued upon the life of the plaintiff’s niece.</p>

<p>One is not liable for the acts or negligence of another unless the relation of master and servant exists between them.</p> <p>It is, therefore, a general rule that an independent contractor, and not the owner, is liable for all damages to third persons resulting from his negligence while the work is in progress and under his exclusive control.</p> <p>But an owner who, without formally accepting the work, steps in and assumes the practical control of the structure by appropriating it to the use for which it is constructed, and by so doing treats the structure as his own, becomes liable to the third parties for injury therefrom to the same extent as if there had been a formal acceptance of il.</p> <p>An agreement that the work shall be satisfactory to or accepted by the architect, engineer, or owner has to do with the contractual relations of the parties and their own rights and liabilities.</p>

<p>Town elections in the town of Tiverton are to be holden under Pub. Laws R. I. cap. 1433, passed February 14,1895, and in such elections the provisions of this chapter are to be followed rather than those of Gen. Laws R. I. cap. 39, § 13, in so far as those chapters make different provisions relating to the same matters.</p> <p>Hence the numbering of the names of the several candidates on the ballot for members of the town council of this town is not essential to the validity of such ballot.</p>

<p>A constable appointed in a town outside of tbe city of Providence may serve, in said city, a writ in wbicli the ad damnum is one hundred dollars when issued by a District Court outside of said city, notwithstanding the facts that both the plaintiff and defendant reside and the attached property is within the city.</p>

<p>Probate Appeal.</p>

<p>The construction put upon a contract by the parties thereto will not vary its terms when these are clear and explicit; hut when the contract is ambiguous such construction may be resorted to in ascertaining the intent of the parties when making- it.</p> <p>O. was the consignee of goods from I-L H., under an agreement to pay charges for shipping, storing, and insuring them, and authorizing him to sell the same for the consignors and hold the proceeds to their use, but providing that the title to the property should remain in the consignors until sale thereof approved by them; O. sold certain of the goods without obtaining such approval, received the money therefor, and did not pay it over to the consignors; the evidence showed prior sales without such approval which were recognized by the consignors, and did not show any sale in which the approval had been obtained:—</p> <p>Held, that the agreement was, in the main, an ordinary contract between consignor and consignee for the purpose of effecting sales of the consigned property, the consignor retaining title until the sales were made.</p> <p>Held, further, that the agreement, all its provisions being- considered together, did not require the approval of the consignors before a sale could be effected. Qumre, whether the consignee would not be guilty of a conversion of the property if, before the sale, he had formed the intention of appropriating the proceeds to his own use ? And, qumre, whether a sale under such circumstances should not be held to be outside of the agreement, and, therefore, fraudulent as against the consignors ?</p>

<p>The common law rule that in a declaration on a bond the plaintiff could not assign several breaches of the condition has been so changed by statute that it is now proper to assign, in the same count, as many distinct breaches as may be desired.</p> <p>In a suit upon the bond of an administrator the assignment of a breach based upon his neglect to render an account of his administration is demurrable unless it is further alleged that he has been cited to render an account.</p> <p>Laporte v. GooJc, 20 R. I. 261, distinguished from the present case.</p> <p>Within a reasonable time after the reception and approval of the report of commissioners upon an insolvent estate, it is the duty of the administrator to apply to the Probate Court for an order of distribution; and when property is lost by his neglect to do so he is chargeable with the loss.</p> <p>The statute (Pub. Stat. R. I. cap. 186, § 11) assumes that the various steps in the settlement of an estate therein mentioned are to be taken in pursuance of a request from the administrator.</p> <p>Courts of Probate do not usually act in these matters until they are requested or moved to act,' and the statute should not be so construed as to require them to act until so moved.</p> <p>It is the duty of an administrator to attend to all the details-counected with the settlement of the estate, and he is bound to seasonably move tlie'court to take the necessary steps required therein.</p> <p>While the heirs are entitled to the rents and profits of the real estate until it shall have been sold to pay debts, yet the administrator cannot be excused from proceeding within a reasonable time to procure such sale.</p>

<p>M. devised liis property to a trustee to pay, from its income, taxes, insurance, repairs, and incumbrances (the latter amounting to $12,000), with a devise over to his son when the property was freed from all incumbrances. On a bill to avoid the trust devise as violating the rule against perpetuities : — •</p> <p>Held, that the son took an equitable fee in the property from the death of the testator.</p> <p>Meld, further, that the devise to him was equivalent to’an immediate fee, subject to the incumbrances, the income not being available to him until the incumbrances were paid. The entire beneficial interest was his, subject to a postponement in the receipt of the income.</p> <p>Meld, further, that the present interest (the retention of the income being for the purpose of paying debts) made the trust devise an exception to the rule against perpetuities.</p> <p>Meld, further, that the case presented an additional exception to the rule, from the fact that the son received the benefit of the income in the reduction of the incumbrances on Ms estate.</p> <p>A demurrer to an entire bill must be overruled if the right to an accounting is left to the complainant after the specific relief prayed for is denied him.</p>

<p>Trespass on the Case for defective highway.</p>

<p>Indictment for manslaughter.</p>

<p>When a state of affairs has come which a testator did not look for, his intent is to be carried out as nearly asmay be.</p> <p>The renunciation of a life estate accelerates the estate in remainder and gives the-remainder-man immediate possession if tlie estate be sufficient; but if there be-a deficiency, the enjoyment of income by remainder-men should be postponed until legacies intended to take effect at once can be made up.</p> <p>By his will B. divided his property into thirds, giving tbe income of one-third to his widow for life, with remainder over to two classes of persons ; a third was given to his sister, and the other third in pecuniary legacies, of which one hundred dollars were for masses, and residue to a church. The widow declined the provision for her in the will and had certain lands set off to her as dower; the funds in the hands of the administrator were insufficient to pay the legacies in full. On a bill filed by the administrator for instructions:—</p> <p>Held, that the gift for masses was really to pay for services to be rendered, a consideration arising after the testator’s death, and might be paid in full.</p> <p>Reid, further, that the remainder-men following the widow’s life estate should await a sale of the lands set off to her as dower ; that the fund in hand, after paying the legacy for masses, should be divided, one-half thereof to be paid to the sister as her third of the properly, and the other half be apportioned among the legatees representing the remaining third,</p> <p>(For previous opinion in this case see Sherman v. Baker, ante, p. 446.)</p>

<p>The word “ debts ” in Gen. Laws R. I. cap. 274, § 50, “ Of Insolvency,” is used in its generic and not in its legal sense, and includes all claims against the insolvent which may be proved under § 28 of the same chapter.</p> <p>The statutory expression “ provable debts ” includes auy claims “ growing out of trover, replevin, or any tort,” and hence an action of trespass on the case, for deceit in obtaining goods, pending against a voluntary insolvent cannot prevent him from obtaining his discharge in a case where he made no false statement in writing to secure credit for the goods, and where the plaintiff in such action has proved his claim against the insolvent estate.</p>

<p>Petition in Equity for the opinion of the court as to the construction of a will.</p>

<p>Assumpsit on written agreement for sale of grain on margin.</p>

<p>Assumpsit on a promissory note, all the essential facts appearing in the opinion.</p>

<p>Ad officer may arrest without warrant on reasonable suspicion, founded either on his own knowledge or information from others, that a felony has beeu committed ; but to justify him in acting on information it must come from creditable persons.</p> <p>A mere statement of one confessing himself guilty of felony, uncorroborated by trustworthy information from others, or by facts or circumstances affording reasonable grounds of suspicion, is insufficient to justify such arrest.</p>

<p>Complaint charging the practice of medicine and surgery for reward without registration and license.</p>

<p>Complaint charging the unlawful practice of medicine. Certified from a District Court and heard on constitutional questions.</p>

<p>An agreement by endorsers of a promissory note, for whose benefit it is discounted by a bank, that they will themselves pay the note at the bank at its maturity, is a waiver of presentment to and demand upon the maker at maturity, and of notice of non-payment thereof.</p>

<p>Practice oí the art of “metaphysical healing,” for reward without registration and license, is not a violation of Gen. Laws R. I. cap. 165; and the question of the constitutionality of the act is not open to a defendant in a complaint thereunder when the evidence shows only the practice of such art,</p>

<p>Bill in Equity to compel the replacement of a body removed from a burial lot.</p>

<p>The strict English rule, formerly followed in this country, limited guardians to the use of the wards’ income for their support and education, unless the proper court first sanctioned an expenditure in excess thereof; but our courts have since adopted the less rigid rule of ratifying expenditures for maintenance and education that would have been previously authorized from the principal of the estate, and of allowing credit to the guardian therefor upon settlement of his account.</p> <p>A guardian can make no final account until his ward becomes of age, for until then the term is still running as to which the account is to be rendered.</p> <p>A court in equity, having taken cognizance of a litigation, will dispose of every subject embraced within the circle of coutest, whether of remedy or of connected topics of dispute.</p> <p>Upon the settlement of the account of a guardian a balance was found due him from the ward’s estate, and suggestion was made that there might be other creditors' to share the fund representing the remaining estate</p> <p>Held, that sucli fund was to be first applied to the payment of the guardian’s balance.</p>

<p>An insane person may be sued and jurisdiction over him acquired by like process as if he were sane.</p> <p>A judgment so obtained is not void, but is, doubtless, voidable.</p> <p>A judgment was obtained against the maker of a promissory note who was of sound mind at the time he made it, but whose counsel at the trial represented him then to be of unsound mind, and asked the court to appoint a guardian ad litem for him; it was admitted that the maker had no defence to the action; the court refused the request and instructed the jury to return a verdict for the plaintiff:—</p> <p>Held, that the verdict should not be set aside, as the result would have been the same if a guardian ad litmn had been appointed.</p> <p>While it is the better practice to appoint a guardian ad litem in all cases where the mental unsoundness of a defendant is set up, yet if he is not prejudiced in any degree by failure of such appointment, a verdict against him should not be set aside on that ground.</p> <p>In a suit on a promissory note the plaintiff’s case is made out by proving the execution of the note and the advancement to the maker of the money represented therein.</p> <p>It is no defence to such a note that although the plaintiff riiay have had the legal title, the equitable title to the whole or to a part of the money was in another, and that the loan was made with a fraudulent intent as to such equitable owner.</p> <p>And this defence is further inapplicable where the plaintiff sues in a representative capacity, as that of administratrix.</p> <p>The signature of the maker of a promissory note was followed by a guaranty of payment, with waiver of demand and notice, and coupled with an agreement that any future payment on account of principal or interest should not release the guarantors, and this was signed before the note was delivered :—</p> <p>Held, that, as to the payee, the signers of this clause had parted with their distinctive character and rights as guarantors, and were liable as joint makers.</p> <p>A guaranty is a collateral undertaking to pay a debt or perform some other duty in case of the failure of another person who is in the first instance liable to such payment or performance; but the word may be used in such connection with other words as to constitute an original contract.</p> <p>In this State a person who places his name on a note payable to another at the time it is given is, as to the payee, a joint and several maker; and this primary liability is not modified by the fact that the payee knew the relation between the maker and such other person to be one of suretyship only.</p> <p>By their waiver in the agreement on the note above-mentioned, the guarantors, as to the payee, became sureties merely, and were, therefore, properly joined as defendants.</p>

<p>A new trial will be granted to a plaintiff in a case where, although the verdict is in his favor, the damages awarded are inadequate compensation for the injuries sustained.</p> <p>If one be entitled to recover at all it is for such sum as will make him whole, not only for his actual money loss but also for his suffering and disability.</p> <p>M. petitioned for a new trial on the question of damages only, and showed that she had recovered a verdict in her favor, but that the damages awarded were inadequate ; the whole of the evidence was not before the court and it did not appear whether there was a good defence upon the merits :•—</p> <p>Held, that an order be made granting a new trial generally if plaintiff so elected within ten days; otherwise judgment would be entered on the verdict.</p>

<p>Trespass on the Case for libel.</p>

<p>The charter oí a corporation provided that no mortgage of the corporate property should be made without the consent of the holders of record of at least seventy-five per cent, of the preferred and of the common stock; such a mortgage was made under the authority of a vote of a majority of the stock, but by a less majority than that required by the charter, and the corporation received the benefit thereof; at the following stockholders’ meeting the records of. the meeting at which the vote was passed were read and approved, and the mortgage was not afterwards questioned by the stockholders, but was so far ratified tliat interest on tire mortgage note was paid when the same became due ; subsequently the corporation was adjudged insolvent, and its assignee in insolvency sought to have the mortgage set aside</p> <p>Held, that, as the malting of the mortgage was within the power of the corporation, therefore, although the exercise of this power was not in accordance willi the charter, yet the mortgage was not void, but only voidable.</p> <p>Held, further, that this would have been the result even though 1he charter had provided that such a mortgage “ should be void and of no effect.”</p> <p>Held, further, that the provision in the charter was manifestly for the benefit of the stockholders, and its purpose was sufficiently accomplished if they had the right of avoiding such an instrument.</p> <p>Held, further, that the stockholders could waive this right and thereby make valid the mortgage that had been executed for their benefit.</p> <p>Held, further, that, as the provision was solely for the benefit of the stockholders, the creditors of the corporation, represented by the assignee in insolvency, could not take advantage of the defect in the mortgage.</p> <p>Held, further, that the stockholders, by acquiescing in the mortgage, would be estopped from setting up its invalidity if they were disposed to do so.</p>

<p>The uniform construction of the poor debtor’s act has been that its benefit is for all judgment defendants except those expressly excluded by it.</p> <p>The poor tort debtor’s act did not, when it was passed, include an execution defendant for negligence.</p> <p>The enabling and restrictive provisions of these acts have neither been enlarged or limited, and the former act stands upon the same construction that has been given to it for a hundred years.</p> <p>The later acts requiring board to be paid in tort cases relate simply to board, and the provisions relating to the relief itself to poor debtors has not been altered.</p> <p>Hence, one imprisoned on execution in an action on the case for negligence is within the poor debtor’s act and entitled to the relief provided by it.</p> <p>The history of the legislation relating to relief of poor debtors, and of poor tort debtors reviewed.</p>

<p>The actual lay-out and use of an old highway must govern in determining the original location of the way where several plats thereof and other evidence relating thereto are conflicting.</p> <p>The fact that travelers on a highway have been in the habit of crossing a triangular piece of private land, situated between two roads, as the shortest cut from one road to the other, is not sufficient to convert such private land into a highway, or to prevent the owner thereof from enclosing it whenever he sees fit to do so.</p>

<p>The trustee'named in a will was authorized to so far vary the trusts specified therein as to make payments of money that might become necessary from sickness or actual misfortune of the testator’s children or grandchildren</p> <p>Held, that this authorized the trustee to pay bills contracted by one of the children, and which the latter could not meet by reason of misfortune arising from loss of employment and the illness of his family.</p>

<p>False description in a deed -will not vitiate the instrument if, by rejecting the false, there be left sufficient to make a good conveyance.</p>

Action on the Case for slanderous words, originally brought in the Supreme Court on writ dated June 25, 1877, wherein the ad damnum was laid at five thousand dollars. On a jury trial at the October term, 1878, the plaintiff recovered a verdict of eight dollars, whereupon he asked for judgment on the verdict with costs, and the sole question before the court was whether on such a verdict the plaintiff was entitled to costs under the statutes then in force. Gen. Stat.

<p>The constitution of the State, article IV., section. 18, provides as follows:— “ Sec. 18. The General Assembly shall have no power hereafter, without the express consent of the people, to incur Stale debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion.”</p> <p>The following proposition was submitted to the people in November, 1892, and approved by the necessary vote : — “ Shall the General Assembly be authorized and directed to provide for the issue of State bonds in an amount not to exceed $1,500,000, so much of said sum as may be necessary to be applied to the purchase of a site for, and the erection and completion of, a new State House ?”</p> <p>Pub. Laws, cap. 1201, passed May 24, 1893, provided a Board of State House Commissioners with authority on behalf of the State to acquire a site for a new State House, to erect thereon a new State House substantially in accordance with a specified plan, to make all necessary contracts for constructing and furnishing the same and the grading of the grounds; and to employ competent architects, a superintendent, secretary, and other assistants, and fix their compensation. Provision for the expenses to be incurred was made by authorizing the issue of “ The State Rouse Construction Loan ” to the amount of |1,500,000, the proceeds of which, or so much thereof as might be necessary, being appropriated to pay the bills audited by said board, or its committee thereof duly authorized, the appropriation not to expire with the fiscal year but to continue during the existence of the board :—</p> <p>Held, that the General Assembly is competent, through a commission, to build a State House at such cost as it sees fit, provided it does not thereby incur a State debt exceeding $50,000 without the consent of the people ; and it may be years about it, as might be convenient to raise the money and make successive appropriations.</p> <p>The language of the above vote of the people authorizing a State loan does not limit the amount that may be expended for acquiring a site and building a State House thereon, but merely indicates the purposes for which said loan was authorized. It so far limits the use of the fund itself as to prevent it from being appropriated to any other purpose until the State House shall have been completed.</p> <p>If the State House fund prove insufficient to finish the new State House, the General Assembly can apply to this use such other sums as are legally available for the purpose.</p> <p>If the people had intended to impose upon the use of this fund the condition that the new State House should be completed therewith, it is to be presumed that they would have employed more definite terms to express that intent than their vote contains.</p> <p>The State House Commissioners are not trustees in the legal sense of the word, although they must act strictly within their authority.</p> <p>The reference to sums of money in the,vote and legislation above recited do not operate as a limitation upon the cost of the State House and its site.</p> <p>If the State House Commissioners make contracts for more than SI,500,000 their action would be void in so far as it involved a violation of the constitutional restriction in regard to incurring debt. But they can legally contract for a State House which, together with the site, will cost a sum as much greater than said State House fund as is necessary to enable them to erect a State House substantially in accordance with the plan referred to in said chapter 1201, provided, however, that all contracts in excess of said State House fund shall stipulate that no money shall be required to be paid thereon whenever and so long as there shall be no unexpended appropriation applicable to the payment of bills audited by said commission.</p>

<p>The ultimate title to the soil of the tribal lands, subject to the Indian possessory title, was in the crown by right of discovery ; the charter of 1663 granted to the colony of Rhode Island jurisdictional powers of government, and the soil subject to the Indian title ; the State has succeeded to the rights of the colony and of the crown.</p> <p>The Indian title, or the right to convey these lauds, was formerly in the sachem ; then in the sachem and council; and finally in the council of the tribe, not for its own use merely but for the benefit of the tribe.</p> <p>The political ofiicers of the United States seem never to have recognized the existence of such a tribe as the Narragansett; and hence these Indians are not a tribe with which Congress, by the constitution of the United States, is empowered to regulate commerce.</p> <p>The State of Rhode Island has, however, recognized them as a tribe or community possessing interest and title in and to their tribal lands worthy of compensation when parted with constitutionally.</p> <p>The Narragansett tribe was not a corporation, or quasi corporation, with vested rights in the immunities granted them by the General Assembly.</p> <p>And the State was guardian of the tribe only in a general, and not in a technical sense ; as it is the guardian or protector of all within its jurisdiction.</p> <p>Ninigret’s deed of 1709 had passed title to all the tribal lands excepting the reservation.</p> <p>Chapter 800, as amended by chapter 897 of the Public Laws of Rhode Island, provided a constitutional method by which they could transfer to the State their title and interest in and to their remaining tribal lands.</p> <p>The council of the Narragansett tribe could sell, and give title to and possession of, these lands, and it has legally and constitutionally done so by its deed under the acts of the General Assembly mentioned.</p> <p>That title and interest so acquired, combined with the title the State already had, make a full and valid title which the State may sell under said chapters, and thereby give to the purchasers thereof a like full and valid title to said lands.</p> <p>The disposition of the purchase money under said chapters 800 and 897 was an equitable proceeding, and the analogies of'a trust are applicable thereto ; these acts are not, therefore, unconstitutional in not providing for a jury trial.</p> <p>The words “all other rights and claims of whatever name and nature,” used in said chapters, applied only to property rights and claims ; for all immunities enjoyed by previous statutes were taken away by the repeal of those statutes.</p> <p>Por thirty years before the passage of chapter 800 the Narragansett tribe had become extinct in all but name ; the people calling themselves Narragansetts are only a decayed remnant of the once tributary tribe of the Niantics.</p> <p>The tribal relations of the members of Ihe so-called Narragansett tribe were constitutionally terminated by the above-mentioned acts.</p> <p>(This opinion was prepared by Mr. Justice Rogers.)</p>

Under the provisions of Section 3 of Article X of the Constitution of the State, the following opinion of the justices of the Supreme Court was delivered to the Governor, April 2, 1898, in the matter of The Order oe the Election oe Town Oeeioers.

This was an action brought by the plaintiff, under Pub. Stat. E. I. cap. 204, § 20,1 to recover damages caused by the death, of his infant son through the alleged wrongful act and negligence of the defendant corporation. The child was six and a half years of age, and was killed by being struck by a train of cars on the defendant’s road while crossing a railroad bridge.

<p>A., unmarried, died intestate, leaving a brother who was non compos and under" guardianship, and also an uncle. The guardian applied for letters of administration, and the uncle nominated as administrator a stranger to the estate. The latter was appointed, and the guardian given leave to withdraw his petition. The latter appealed, and various motions were made to dismiss the appeal</p> <p>Held, that the guardian had sufficient interest in the matter to entitle him to appeal, and that his appeal bond was valid.</p> <p>Held, further, that the appointment by the Probate Court, after thirty days from the intestate’s decease, was not invalid because the application therefor was made within said term of thirty days.</p> <p>Held, further, that our statute does not require an applicant for appointment as administrator upon an intestate estate to be next of kin, or a creditor of the deceased; and an appointment made upon such application is valid if not appealed from and reversed.</p> <p>Held, further, that such applications are not to be encouraged, and the court might properly, in its discretion and upon its own motion, refuse to entertain an application of this kind, or, on motion of an interested party, dismiss it.</p> <p>Held, further, that the guardian of the brother and next of kin of the deceased was entitled to the appointment in preference to a stranger nominated by one who would have been the next of kin if the brother had died before the deceased.</p>

<p>In the absence of testimony that it is customary for railroad companies (or that prudent men engaged in operating railroad trains have ever considered it essential) to remove the spindles from the draw-bars for the purpose of inspecting them:—</p> <p>Held, that it was not negligence to omit an inspection of the spindle in that manner.</p>

<p>An account carried in to the assessors of taxes under Pub. Stat, cap. 43, §§ 0, 7, which contained an item of “shares in railroad corporations," but did not specify the names of such corporations, or the number or value of the shares in each, does not comply with the requirement of the statute.</p> <p>Such an account, containing an item of "goods, chattels, wares and, merchandise,” without setting forth the separate parcels thereof or specifying the value of each parcel, also fails to comply with the statute.</p>

<p>Acquiescence in the use of a passage-way over a railroad for so long a time that the company may he presumed to have known and assented to such use, is all that is required to charge it with the duty of exercising reasonable care for the protection of persons passing over such way across its tracks.</p>

<p>Bill in Equity for the removal of officers of an order alleged to have been illegally elected.</p>

<p>A person from whom money has been stolen is not entitled to sue for the same ' until complaint for the crime has been made and process issued thereon.</p>

<p>A municipal corporation had caused an excavation to be made in one of its streets for the purpose of constructing a sewer therein. It had enclosed the part of the street in which the trench was, and employed watchmen to see that the barriers were kept in place. While a watchman was employed at one end of . the trench an unknown person had removed the barrier at the'Other end, and the plaintiff, passing in the evening along the street to make connection with the street cars, entered the enclosure at this place, and fell into the trench. In an action against the city to recover damages therefor :—</p> <p>Held, that the city had taken every reasonable precaption and was not liable.</p> <p>Held, further, that the city was not bound to anticipate the unauthorized and wrongful acts of others in removing the barriers.</p> <p>Held, further, that if the plaintiff, knowing the danger, took the risk of walking beside the sewer in the darkness of evening, he had no ground of complaint against the city.</p>

<p>Before one can maintain an action against an association to recover benefits alleged to be due him as a member thereof, he must exhaust the remedies provided by the by-laws of the society.</p>