Volume 21 — Rhode Island Reports

Bill in Equity to enjoin certain expenditures of public money, and for other relief, based on facts fully stated in the opinion. Heard on general demurrer to the bill.

Case for refusal of defendant to record on its books transfers of its stock purchased by plaintiff from a prior holder. Heard on demurrer to special plea in bar. (See 19 R. I. 180, and 20 R. I. 190, for prior decisions in this case.)

<p>Petition for a writ of habeas corpus. (See 20 R. I. 559, for previous opiniou in this matter.)</p>

<p>Bill in Equity to restrain, a city and fire district from executing a proposed contract relative to a public water supply. Heard on general demurrer to the bill.</p>

<p>(1) Slander of Title. False Statements. Malice.</p> <p>In an action based upon slander of title the plaintiff is required to prove, first, the uttering and publishing of the slanderous words; second, their falsity; third, malice; fourth, special damage thereby.</p> <p>The false statements must be made with full knowledge of their falsity, and for the purpose of injuring the plaintiff.</p> <p>The evidence need not show malice in its worst sense, but malice consisting of an intent to deceive or injure.</p> <p>Malice, as a purpose existent in the mind, is not ordinarily provable as an independent fact; it is best shown by the character of the language or conduct which are the manifestations of personal hostility or ill-will toward another.</p> <p>Where it appears that the language used was knowingly false, and uttered with an intention to injure, it is clearly competent for the jury to find that it was malicious.</p> <p>Slander of title, hr this regard, stands upon the same footing with other actions for false representations.</p> <p>The mere fact, however, that a person asserts a claim to the property which is unfounded, does not warrant a presumption of malice; if there appears no reasonable or probable cause for the claim of title, still the jury are not bound to find malice, but may do so if they are satisfied it exists.</p> <p>(2) Exemplary Damages.</p> <p>In actions of this kind the jury may, in their discretion, award punitive or exemplary damages.</p>

<p>• Trespass on the Case against a city, alleging that one of its police officers wrongfully arrested the plaintiff’s intestate, and so neglected to care 'for him while ill in its police station that he died because of such neglect. Heard on demurrer to the declaration.</p>

<p>(1) JJ. B. Government Bonds. Premiums Thereon. Exemption from Taxation.</p> <p>The premium on, or excess above the par value of, United States government bonds (4 per cent, consols of 1907) is not taxable by the State, nor under any municipal or local authority.</p> <p>Such premium is only an incident of the bond and cannot exist apart therefrom ; if the premium were taxed, the bond would be taxed; and the statute exempts the latter from assessment.</p> <p>This exemption is not based on the value of the bonds, but on the bonds themselves.</p>

Bill in Equity to restrain the pollution of water ponded for the purpose of making ice. Heard on bill, answer, and proofs.

<p>Appeal from a decree of a town council laying out a highway. Heard on motion to quash the proceedings.</p>

<p>(1) Construction of Will. Death of Legatee.</p> <p>An executor was directed by will to sell real estate, pay over two-fifths of the net proceeds to A., and distribute the remainder equally among B., C., andD. B. died after the testatrix, but before the division:— Held, that B., C., and D. took equally in the distribution of their shares of the balance.</p> <p>(2) Equitable Conversion.</p> <p>Held, further, that the direction for sale operated as an equitable conversion of the real estate into personalty, and this is deemed to have been made from the time of the testatrix’s decease.</p> <p>Held, further, that B.’s share should be treated as personalty and paid to his administrator.</p>

<p>(1) Certiorari. JSvidence.</p> <p>In certiorari, when the jurisdiction of the lower tribunal is conceded, the record cannot be impeached by extraneous evidence.</p> <p>Legal evidence may include documents, admissions of parties, and testimony of persons duly sworn.</p> <p>(2) Prohate Law and Practice.</p> <p>It is competent for Probate Courts, as constituted in the towns of this State, to determine many questions (sucli as the qualifications of a guardian or the responsibility of a surety) upon the personal knowledge of the members of the court.</p> <p>(3) Probate Law and Practice..</p> <p>An improper disposition of an order of a Probate Court does not impair the'sufficiency of the findings contained in the record.</p> <p>(4) Certiorari. App/eal.</p> <p>Qucere, whether a review of the decisions of a Probate Court by certiorari is proper in our practice ? The legislation in this State respecting Probate Courts has been similar to that in Massachusetts, where it has been held that the writ will not lie in such case.</p> <p>If such review be desired, the statute allows to parties interested therein an appeal and trial by jury.</p>

<p>(1) Mistake. Practice in Probate Courts. New Trial. Appeal.</p> <p>A. was appointed administratrix on the estate of B., in which the assets were $940; at about the same time she was also appointed administratrix on estate of C., in which the assets were $1,024, and the latter were placed in the inventory of the estate of B. Subsequently, the heirs of B. filed a petition in and obtained an order of the Probate Court for a distribution to them of a part of the inventoried estate, and no appeal was taken from the order. Upon discovery of the mistake, and being of opinion that the actual assets of the estate of B. were insufficient to pay his debts and the expense of settling his estate, she petitioned for a new trial of the petition of the heirs for the distributive order:—</p> <p>Held, that her proper remedy was to have applied to the Probate Court for a correction of the error, and, if denied, to have appealed from the decree denying her application.</p> <p>Held, further, that Gen. Laws R. 1. cap. 251, § 3, did not give jurisdiction in the present petition, as the statute applies only where the petitioner has “neglected to prosecute his appeal.”</p> <p>If Sayres v. Ormsbee, 11 R. I. 504, is to be sustained as an authority, it cannot be extended to include cases of interlocutory decrees in which jurisdiction still remains in the Probate Courts.</p>

Bill in Equity to obtain a statement as to what assets were received and how the same were disposed of by a deceased executrix, and for delivery to the complainant of the unused part thereof. Heard on demurrer incorporated in the answer to the bill.

<p>Case, in a District Court, for expenses and. loss of services caused by defendant’s dog biting plaintiff’s daughter. Heard on demurrer to the declaration filed in the Common Pleas Division after a decision for the plaintiff and claim for a jury trial filed by the defendant in the District Court.</p>

<p>(1) Landlord and Tenant. Notice. Pendente lite. Condemnation Proceedings.</p> <p>Claimant’s testator was tenant of land from year to year, his occupation year ending July 1, 1893, and received no notice from his landlord for the termination of the tenancy, but continued in occupation after said date. In May, of the same year, the State House Commissioners gave notice of proceedings for condemnation of estates, of which this land was a part, and the land was condemned thereunder on July 9. The claim was for damages for being deprived of the land for a part of another occupa.tion year:—</p> <p>Held, that the failure of the landlord to give notice gave the tenant no right as against the State House Commissioners.</p> <p>Held, further, that the tenant’s right to hold over was obtained pendente lite as against the commissioners, and was, therefore, subordinate to their rights under the condemnation proceedings.</p> <p>Held, further, that the testator’s right in the land, as against the commissioners, ceased with the expiration of the-occupation year.</p>

<p>(1) Appeals from Probate Courts. Filing Reasons out of Time. Irregularity.</p> <p>The claiming- of an appeal from a decree of a Probate Court, and the filing and approval therein of an appeal bond, together with a claim for a jury trial, removes the case in which the decree was entered from that court to the Common Pleas Division of the Supreme Court.</p> <p>If the reasons of appeal are not filed within the statutory period of fifty days, further time therefor, for cause shown, may be granted by the latter court; and it is not essential that the motion for leave to do so be filed within the fifty days.</p> <p>(2) Defective Heading. Estoppel.</p> <p>After three jury trials of such an appeal the appellee is estopped from taking advantage of any defect hr the pleadings, unless such defect he jurisdictional.</p> <p>(3) Motion to Dismiss. Irregularity.</p> <p>A motion to dismiss is irregular when made after the case has been certified to the appellate division on petition for a new trial on the ground that the verdict is against the evidence.</p>

<p>Bill in Equity to reform a deed and mortgage. Heard on motion of defendant to amend its answer.</p>

<p>Assumpsit, the facts being stated in the opinion. Heard on defendant’s petition for a new trial.</p>

<p>(1) Mechanic’s Lien. Requisites of'Notice. Estate Affected.</p> <p>In proceedings to enforce a mechanic’s lien, the account and notice of lien filed under Gen, Laws B. I. cap. 206,. § 1, should be against the estate of the owner of the land at the time of the beginning of the construction, when the lien attaches.</p>

<p>Trespass on the Case for damages alleged to have been ■caused by the use for immoral purposes of apartments hired by the defendant from the plaintiff for lodging-rooms. Heard on exceptions to the ruling of the Common Pleas Division as to the sufficiency of a bill of particulars and denying a motion to assign the case for jury trial.</p>

Trespass on ti-ie Case for injuries received in a collision of cars on defendant’s railroad. Heard on plaintiff’s petition for a new trial.

Trespass on ti-ie Case for negligence in failing to keep a highway safe and convenient for travellers. The defect complained of was a hollow in the sidewalk of a bridge, in which water accumulated and froze, and plaintiff’s injury was from a fall by slipping on this ice. At a previous trial plaintiff was nonsuited, but on bis petition lie was granted a new trial. 19 R. I. 297.

<p>Trespass on the Case for slander of title. After defendant’s petition for a new trial had been denied {ante, p. 20), he with others began a suit against the plaintiff, and thereupon moved for a stay of execution on the judgment in the first action.</p>

<p>Petition for Divorce. Heard on motion to discharge a writ of ne exeat issued against the respondent.</p>

<p>(1) Negligence. Evidence. Nonsuit. New Trial.</p> <p>A nonsuit was granted upon the ground that the negligence referred to by the evidence was that of a fellow-servant; upon exceptions the petition for a new trial was opposed on the ground that the plaintiff failed to prove some of the material allegations in the declaration:—</p> <p>Held, that this did not affect the question raised by the petition; if a non-suit be rightly granted, the ground upon which it was based is immaterial.</p> <p>A nonsuit is rightly granted when the plaintiff fails to make out his case.</p>

<p>(1) Constructive and Resulting Trusts. Statute of Frauds.</p> <p>Constructive trusts are not within the statute of frauds, and, therefore, do not require a note or memorandum in writing for their proof.</p> <p>Of this character are trusts which arise ex maleficio, where equity treats the wrong-doer as a trustee for the injured party.</p> <p>(2) Fquity Pleading and Practice.</p> <p>When the hill does not show that the agreement on which the trust is founded was not in writing, an objection on this ground should be taken by plea or answer, and not by demurrer.</p>

Assumpsit for expenses incurred in apprehending and detaining defendant as an insane person. Heard on defendant’s petition for a new trial.

Trespass on the Case for injuries to a private right of way existent over and upon a public way, which was alleged to have been obstructed by excavations therein made by the city. Heard on plaintiff’s demurrer to the defendant’s pleas in bar.

<p>(1) Probate Appeal. Appeal Bond.</p> <p>A statute authorized a trial to be granted in all cases decided by any Probate Court wherein the party shall have neglected to prosecute his appeal according to law:—</p> <p>Held, that the giving of an appeal bond to the town, and not to the Court of Probate of the town, was a mistake within the provisions of the statute.</p> <p>(2) Construction of Statute.</p> <p>The words “neglect to'prosecute according to law” contemplate cases in which a party attempting to appeal has made some mistake in proceedure.</p>

<p>(1) Municipal Corporation. Sewers.</p> <p>A city may not be liable for the incapacity of a sewer, when constructed, to serve the purpose then contemplated; but if it subsequently change the grade of neighboring streets, diverting surface-water and sewage from other directions to this sewer, and so overtax its capacity as to cause a retroflux of sewage upon private property through the connection of the latter with the sewer, the city may properly be held liable for the resulting damages.</p> <p>(2) Release.</p> <p>An instrument' in which the signer agrees that no claim shall be made against a city for damages which may be occasioned to his estate, or any property thereon, in any manner by the construction, use, or existence of a connection between said estate and the public sewer, is equivalent to the release required by statute as a condition of making such connection.</p> <p>Such instrument, however, is to be construed in view of the facts and conditions existing at the time of its execution, together with such other' facts and conditions as ought reasonably to be anticipated from the ordinary growth and development of the contiguous territory.</p> <p>Such instrument is not a release of damages to his estate in consequence of a subsequent change of grade of neighboring highways, by which larger quantities of surface-water and sewage are turned from other directions into said sewer and thence overflow on to the said estate because the capacity of the sewer is overtaxed by this later action of the city.</p> <p>If the city subsequently desire to drain a much larger territory by said sewer than was originally contemplated, arid larger than the sewer is capable of draining, its capacity must be increased.</p> <p>(3) Judicial Discretion. Ministerial Duty. Negligence.</p> <p>After a city has adopted a plan and constructed its sewers in accordance therewith, judicial discretion ends and ministerial duty begins ; it then becomes liable for damages to others resulting from the negligent discharge of, or the negligent omission to discharge such duty.</p>

Trespass for the abductiou of the plaintiff’s daughter. Certified from the Common Pleas Division and heard on substantial demurrer to the declaration.

<p>(1) Proceedings against Garnishee. Statutory Bar. Requisites of Affidavit.</p> <p>A garnishee charged by default is not relieved from liability by delivering to the officer on execution the affidavit provided for by statute, unless he alse turn over to the officer the money and property belonging to the defendant which the affidavit may show to be in his hands.</p>

Petition for divorce. Heard on motion to adjudge respondent in contempt for not complying with an order granting the petitioner an allowance.

Bill in Equity for an injunction to restrain removal of the lateral support to complainant’s land, and the erection of a wall in place thereof partly on land of the complainant and partly on land of the respondent.

Bill in Equity to enforce against the estates of deceased partners the payment of a demand promissory note given by the partnership just before it ceased to do business and nearly twenty-five years before the commencement of the present suit. Heard on demurrer to the bill setting up the statute of limitations and laches.

<p>(1) Corporations. Wrongful Assumption of Corporate Name. Injunction. Trade Marie. Trade Name.</p> <p>A corporation can no more use its corporate name in violation of the rights of others than an individual can use his name, legally acquired, so as to mislead the public and injure another.</p> <p>The principle adopted is similar to that of a trade name or trade mark, and is applied accordingly; a court of equity, therefore, has jurisdiction hi such case -without the intervention of the State.</p> <p>A corporation restrained from using- a name previously chosen by it may choose another name under Gen. Laws R. I. cap. il6, § V. -</p> <p>The use of a trade name is in some respects different from that of a trade mark. The law of the latter is designed chiefly for the protection of the public from imposition; that of a trade name for the protection of the party entitled to its use.</p> <p>Although one may make and sell an unprotected article, he cannot simulate the name or product of another so as to trench upon the latter’s-rights or to mislead the public.</p> <p>If such right be violated, it is not necessary to show actual damage, nor will the absence of fraudulent intent be a defence.</p> <p>A right to use the name goes with the right to manufacture; but this applies only to the use of the name in connection with the article and not in connection with the name of the maker.</p> <p>(2) Corporations. Viva Voce Vote in Stoclcholders’ Meeting. Bights of Majority and Minority.</p> <p>Persons who had purchased the property of the A. & S. E. Co., a corporation, formed a new corporation, under the general laws, with the name of the A. & S. Co. At a meeting of the stockholders of the A. & S. E. Co. (A. being absent and S. filing a written protest) a resolution was declared, by- a vive voce vote, to be passed, giving the A. & S. Co. the right to use the name it had chosen:—</p> <p>Held, that this vote was of no effect; aside from the defect of record the act was done after the new company had been organized, and without consideration. A majority cannot give away the rights of a minority.</p>

Assumpsit on book account. Defendant’s wages were attached on the original writ and an assignee thereof intervened, claiming the fund under the assignment described in the opinion. Heard on claimant’s petition for a new trial, based on exceptions to a decision charging the garnishee.

Bill in Equity to enforce specific performance of an agreement to purchase land.1 Heard on demurrer to the bill incorporated with the answer.

Trespass on the Case for negligence by a workman against his employer for injuries received, from a defective machine. Heard on demurrer to amended declaration.

Covenant by lessor against lessee for rent due under a written lease which had been assigned by the lessee, the lessor having accepted certain of the rent from the assignee. Heard on defendant’s petition for a new trial.

<p>(1) Partition. Personalty Treated as Beatty. Widow’s Bights in Addition to Power.</p> <p>Proceeds of a sale of real estate in a partition suit are to be treated as land in determining1 the rights of a widow to the statutory provision for her out of her deceased husband’s estate.</p> <p>A widow without surviving descendants of the marriage is entitled to have set off to her real estate of her husband other than that included in her assignment of dower.</p>

<p>(1) Redemption of Mortgaged Property. Unwarranted Defence. Gomplainant’s Costs.</p> <p>As a general rule, tlie successful complainant in a bill to redeem mortgaged property does not recover costs, but pays costs to the respondent.</p> <p>If, however, respondent sets up an unwarranted defence, or hinders the prosecutioir of the bill, he may be not only deprived of his costs, but, in the discretion of the court, may be required to pay costs to the complainant.</p>

Trespass on the Case for negligence resulting in the death of plaintiff’s intestate. Heard on defendant’s petition for a new trial.

<p>(1) Municipal Contracts. Availability to A. of a Contract between B. and C. for Ifis Benefit. Ultra Vires.</p> <p>Defendant succeeded to the charter rights of a corporation which had authority to fix rates of fare not exceeding ten cents for each passenger between any two points on its road; subsequently defendant, under legislative permission, made a contract with the town in which said road was located by which the fare from one point to any other point on its lines of road in the town should not exceed five cents :—</p> <p>Held, that the contract superseded the charter rights so acquired, and that defendant had thereby waived its right to charge a fare of five cents on each of its connecting lines over which a passenger must travel to make a continuous journey between two points within the town.</p> <p>Held, further, that the contract must have been intended for the benefit of the public, made through the town as their representative, upon which passengers could rely and for breach of which they could seek redress.</p> <p>Held, further, that an individual passenger has the right to claim for himself the benefit of the provisions of said contract.</p> <p>Held, further, that the contract was not ultra vires; a statute providing that a rate of fare shall not be more than a specified sum implies that it may be fixed at a less sum.</p> <p>(2) Assault. Justification.</p> <p>Held, further, that a plea in justification of an alleged assault, being of no avail in so far as it rested upon the rights above mentioned, did not wholly fail, as it contained the averment that the plaintiff was ejected from defendant’s car for refusal to pay the lawful fare.</p> <p>(8) Municipal Contracts under Statutory Authority.</p> <p>If a town be authorized by statute to act by ordinance or contract, and under such authority acts by contract, the necessary implication is that it may stipulate for terms other than those express ed in the act.</p> <p>(4) Test Case.</p> <p>(A moot case is one which seeks to determine an abstract question not resting upon existing facts or rights; but where a concrete case of fact or right is shown a party is not to be deprived of its deterfiiination simply because his motive in the assertion of such right is to secure such determination. J '</p>

<p>Assumpsit for money paid on account of a contract which had been rescinded by plaintiffs on the ground of fraud alleged to have been committed by defendants in making the contract. Heard on defendants’ petition for a new trial.</p>

Bill in Equity to restrain a sale of complainant’s property under execution obtained by respondent against liim, the indebtedness of complainant having been reached by, and paid by him, under trustee process in a suit by respondent’s creditor against it. Heard on demurrer to the bill.

<p>Debt on a written agreement under seal guaranteeing payments therein described. Heard on demurrers to the declarations.</p>

Assumpsit on a policy of life insurance, defendant claiming that the policy had lapsed for non-payment of premium. Heard, after verdict for defendant, on plaintiff’s petition for a new trial.

<p>(1) Order of Board of Health. Appeal. Motion to Dismiss. Jurisdiction. Practice.</p> <p>An appeal from a tow or district council sitting as a board of health, which has been certified from the Common Pleas Division on motion to dismiss the appeal, is improperly before the court.</p> <p>In such case the Common Pleas Division should pass upon the motion, and the party aggrieved may then have his exception thereto as the basis of a petition for new trial.</p>

<p>Present : Matteson, C. J., Stiness and Tillinghast, JJ.</p> <p>(1) Beneficial Association. Construction of By-Law. Meaning of Year.</p> <p>A by-law of a beneficial association provided a weekly benefit for sick members, to continue “thirteen weeks only of the same year : ”—</p> <p>Held, that the “year” intended was a year’s time from the beginning of the payment, and not a calendar year.</p>

<p>Trespass on the Case by an employee for negligence of his employer in failing to provide proper appliances for the work. Heard on plaintiff’s petition for a new trial.</p>

<p>Bill in Equity to redeem, coupled with a prayer that, in the accounting, complainant be allowed a sum which he had been compelled to pay because of the fault of the mortgagee relative to a prior mortgage. Heard on bill, answer, and proofs.</p>

Bill in Equity for delivery of certain tax certificates, or their equivalent, held as collateral security for payment of notes purchased by complainant and defaulted at maturity. Pleard on bill,' answer, and proofs.

<p>(1) Set-off. Pleading and Practice at Law. Pending Suit. Election of Bemedies.</p> <p>A plea in set-off is not available to a defendant who has an action pending against the plaintiff to recover the same indebtedness set up in the plea.</p> <p>A set-off is, in effect, a cross-action, and a defendant cannot be permitted to carry on two suits for the same causes of action at the same time.</p> <p>A defendant may file a plea in set-off, or bring its own action against the plaintiff ; having brought its action for the same demand sought to be included in the plea it has elected its remedy, and is bound thereby so long as the demand is included in its own action.</p>

<p>(1) Conditional Devisa. Duty of Life Tenant.</p> <p>A life tenant is bound to the exercise of due care of an estate, the fee of which is in another; if a building thereon be destroyed by lire through the negligence of the tenant, or of his servants, he is responsible ; but lie is not liable for damages caused by an accident where he is entirely free from fault.</p> <p>(2) Obligations Imposed by Law and Assumed by Contract.</p> <p>One may be excused from performing a duty imposed upon him. by law, if disabled from performing it without fault of his own and he have no remedy over; but if, by his contract, he creates a duty or charge upon himself, he is bound to make it good notwithstanding accident or necessity which he might have provided against in the contract.</p> <p>An express and unqualified covenant by a lessee to repair the leased premises binds him to the rebuilding of structures thereon that may be destroyed by fire or accident.</p> <p>When a devisee or legatee accepts the gift of a testator he thereby obligates himself to perform the conditions that may be attached to the devise or bequest.</p> <p>(:5) Permissive Waste. English, and II. I. Statutes Relating to Waste.</p> <p>The doctrine of permissive waste does not, in this State, extend so far as to hold a life tenant responsible for damages occasioned by accidental lire.</p> <p>A devise of a house and lot of land to a devisee for life contained a provision that the life tenant “keep the same in repair; ” she accepted the devise, and afterwards the house was destroyed by accidental lire; in an action against her estate by the remaindér-man for the value of the building:—</p> <p>ITeld, that the quoted language simply required the devisee to take such care of the devised estate as a prudent and diligent person would take of his own absolute property, and that she was not under obligation to rebuild the house.</p> <p>(4) Use of Insurance Money.</p> <p>If, in such case, the life tenant receive payment of the insurance on the building, she is entitled to retain the money unless it appear that the policy covered more than her interest in the destroyed property.</p>

Assumpsit by a receiver of a foreign corporation appointed in this State, brought in his own name as receiver and declaring on promises made to the corporation. Certified from the Common Pleas Division, and heard on demurrer to the declaration.

<p>(1) Negligence. Suitable Appliances. Work of Ordinary Calling on Sunday. Proximate Cause.</p> <p>Engaging in labor of bis ordinary calling by an employee on Sunday does not constitute a defence to an action for injuries resulting- from tlie employer’s negligence in not providing suitable appliances for tlie employment ; such labor not being the immediate and proximate cause of the accident.</p>

Assumpsit for allowance made to plaintiff for her support during the pendency of a petition for divorce. Certified from the Common Pleas Division, and heard on demurrer to declaration.

Assumpsit for goods sold, the price for which varied with the months in which they were delivered. Heard on defendant’s petition for a new trial.

<p>(1) Intevpleader. Construction of Will. Vested Equitable Interest. Husband’s Bight to Personal Estate of Deceased Wife.</p> <p>A. bequeathed a fund in trust to be paid over, upon the termination of lives mentioned, to his widow and minor son in equal shares ; the widow subsequently married and deceased intestate and without issue before the fund was payable ; and her second husband survived her and was appointed administrator on her estate ; the latter claimed the fund by virtue of such appointment and of liis marital rights, and the guardian of the son also claimed the same for his ward as survivor of the donees named in the will:—</p> <p>Held, that the widow took a vested equitable interest in the. corpus of the trust fund, although possession of the same was postponed during the lives mentioned.</p> <p>Held, further, that -the husband’s right to the surplus of his deceased wife’s personal property is established in this State.</p> <p>Held, further, that the fund should be divided equally between the husband and the minor son of the testator.</p>

<p>Trespass and Ejectment brought during the term hereinafter mentioned, by a residuary devisee, for the possession of premises which were the subject of a reservation in a deed of the testator in which the grantor retained the right for twenty-five years to lease ice-houses standing thereon. Certified from the Common Pleas Division and heard on agreed statement of facts.</p>

<p>Trespass and Ejectment. Certified from a District Court, and heard on exceptions to a decision overruling defendant’s plea in abatement.</p>

Bill in Equity for the appointment of new trustees to fill vacancies in a board named by a testator. Heard on demurrer to the bill setting up a manner of filling these vacancies provided for in the will as exclusive of other powers of appointment.

<p>Appeal from the decree of a Probate Court allowing the account of an administratrix. Heard on petition of the appellee for a new trial.</p>

<p>(1) Oontruc.t. Forbearance to Sue.</p> <p>Forbearance to sue is a good consideration for the promise of a third party to pay the claim of another, if made in respect to a claim which the creditor honestly believes to be just, even though, if such claim had been originally prosecuted, it would have been defeated.</p> <p>(2) Evidence.</p> <p>In the absence of testimony that the claim was not made in good faith, evidence to show that there was no existing indebtedness at time of promise is inadmissible.</p>

<p>Assumpsit for money had and received. Heard on defendant’s petition for new trial, on exceptions to judgment of Common Pleas Division confirming report of an auditor and overruling defendant’s exceptions to the report. New trial denied.</p>

<p>Trespass on the Case for negligence. The facts are fully stated in the opinion. Heard on petition of plaintiff for a new trial. New trial denied.</p>

<p>Assumpsit to recover for services rendered. Heard on petition of plaintiff for a new trial. Petition dismissed.</p>

<p>Bill op Interpleader. Heard on bill, answers, and replications. The facts are stated in the opinion.</p>

<p>(1) Election of Remedies.</p> <p>K. recovered judgment in a District Court against D., attaching by the original writ certain real estate of D. Subsequently, and while said judgment was wholly unsatisfied, D. executed a conveyance of said real estate to P., upon the understanding and agreement that P; would pay the judgment of K., with other claims of D. The deed was without money consideration, and was accepted by P. upon said agreement and recorded by him. K. thereupon brought suit against P. to recover the amount of his claim against D.</p> <p>P. filed a special plea in bar, averring that after the execution of the said deed K. filed a bill in equity, alleging that the conveyance was made in fraud of creditors by I), and P., and praying that it be set aside; and further averring that K. had levied execution upon said real estate subsequent to the execution of said conveyance, as the property of D., and that thereby K. had made an election of remedies. '</p> <p>To this plea K. demurred :—</p> <p>Held, the mere bringing of the suit in equity, without proceeding to a final decree, was not in itself an election of remedies.</p> <p>(2) Procedure.</p> <p>Semble: In the ease stated the remedy of a defendant is by motion to require the plaintiff to make an election between the suit in equity and action at law.</p>

<p>(1) New Trial. De Minimis non Curat Lex.</p> <p>IVliere the amount involved in a suit is trifling, and it is manifest that a new trial would be to the detriment of both parties, no vital question of principle nor the positive and wrongful invasion of the property or personal rights of another being involved, the maxim “de minimis non eurat lex ” applies, and a new trial will not be granted.</p> <p>A petition for a new trial is addressed to the sound discretion of the court; where substantial justice has been done, although irregularities' may have occurred, or where there has been no palpable failure of justice or the wrong, however palpable, is trivial, such petition will not be granted.</p>

<p>(1) Wills. Trusts. General Legacies.</p> <p>A testatrix made the following provision in her will: “The income to be derived from the $12,000 formerly secured to me by mortgage on the real estate on the southerly side of Broad street and the easterly side of Stewart street in Providence, which mortgage is now paid in part, and the income that may be derived from the proceeds of said mortgage, I give and bequeath to my said daughters I. and S. during the term of their natural lives, each of them to have for her own sole and separate use one equal half part of such income, and the same to be paid by my executors as often as twice in each year to my said daughters respectively and upon the sole and separate receipt of each of them. My said executors shall have power to change the investment of said sum at any and all times, and to sell at public or private sale the securities or property in which it may be invested and to re-invest the proceeds of any such sale in their discretion.”</p> <p>The will gave pecuniary legacies to various legatees, and devised all the real estate specifically. At the time of the execution of the will she was possessed of personal estate equal to the amount of the legacies ; before her death the personal estate was reduced. By another clause of the will legacies to the amount of $12,000 were made payable after the decease of her daughters I. and S. above referred to,</p> <p>Prior to tlie making of the will the testatrix received, a portion of the principal of the note secured by the mortgage, and invested it partly in a mortgage note and partly in real estate. She also acquired the equity in the estate mentioned in the third clause in exchange for the balance due on the mortgage note.</p> <p>These investments were claimed by various legatees and devisees under different clauses of the will</p> <p>Held, the effect of the third clause .was to create a trust with reference to the $12,000 formerly secured by mortgage on the estate therein mentioned. The duty imposed on the executors and the powers conferred on them were such as appertain to the office of trustees rather than of executors.</p> <p>(2) Mingling of Trust Fund.</p> <p>Held, further, the mere fact of depositing a trust fund in a bank where the trustee already had deposits was not in itself such a mingling of the trust fund as to prevent the tracing of it.</p> <p>(3) General Legacies.</p> <p>Held, further, the fact that legacies aggregating in amount the trust fund were given after the death of the tenants for life, in the absence of express directions that they should be paid out of the trust fund, was not sufficient to convert them from general to specific legacies.</p>

<p>(1) Criminal Law. Indictment.</p> <p>Pub. Laws R. I. cap. 344, § 2, relating to the driving of cattle into the State without first procuring a certificate that such cattle are free from tuberculosis, as far as may be determined by examination and the tuberculin test, provides for the form of such certificate and the facts to be set forth therein. Section 3 of said chapter provides that complaints for the violation of said chapter shall be made by the secretary of the State Board of Agriculture :—</p> <p>Held, on demurrer to indictment, that the grand jury under its common law powers and also under the provisions of Gen. Laws R. I. cap. 223, § 6, has full power to find an indictment for the violation of the provisions of said chapter, regardless of the source of the complaint.</p> <p>(2) Criminal Pleading.</p> <p>Held, further, the negative averment that no certificate was sent as required by the chapter is sufficient, without explicitly alleging the particular character of the certificate required. The offence consists in the bringing of the cattle into the State without first obtaining the certificate ; it is not the particular character of the certificate which defines the offence.</p> <p>Held, further, where the statute uses the generic term “cattle,” in an indictment thereunder the word “cow” is a sufficient description. Exhaustiveness of description must stop somewhere.</p> <p>Held, further, the validity of a statute, under which an indictment is drawn, cannot be reached by demurrrer to the indictment, which lies only for defects which appear upon the face of the pleadings.</p>

<p>Trespass on the Case, for neglect to keep a highway in repair. Heard on petition of defendant for a new trial. New trial denied.</p>

<p>Trespass on the Case for negligence. Heard on demurrer of defendant to the third replication to the defendant’s second plea, in bar. Demurrer sustained and replication overruled.</p>

<p>(1) Insurance Contracts.</p> <p>Under the provisions of cap. 182, § If, Gen. Laws R. I., a contract of insurance made by a foreign insurance company doing business in this State is valid and can be put in suit without limitation in favor of either party, notwithstanding such insurance is made in violation of the provisions of said chapter.</p> <p>Ins. Com’r v. Commercial Ins. Co., 20 R. I. f, explained and distinguished.</p>

<p>(1) Criminal Law. Judicial Notice.</p> <p>In charging an offence in violation of a statute in an indictment, the use of the participial form of averment, “ being then and there &c: ” is sufficient, without a direct and positive averment.</p> <p>An indictment charged that the defendant “ on the day of , A. D. , with force and arms, at Woonsocket, in the aforesaid county of Providence, being then and there an itinerant vendor, did then and there engage in a temporary and transient business.” Upon demurrer alleging that the indictment did not aver that the defendant was doing a temporary and transient business in the State of Rhode Island :—</p> <p>Held, the language quoted was a sufficient charge that the defendant was doing a temporary and transient business hi said State.</p>

Indictment charging defendant with being a common, gambler. Heard on petition of defendant for a new trial. New trial denied.

<p>(1) Dower. Divorce.</p> <p>In the absence of any statutory provision, the termination of the marriage relation by divorce defeats the right of dower.</p> <p>The statute in force at the time of the divorce will control.</p>

Trespass on the Case for libel. The alleged libel charged the plaintiff, a police constable, with being intoxicated when he reported at the station for roll call. Heard on petition of plaintiff for a new trial. New trial granted.

Trespass on the Case for negligence. Heard on petition of defendant for a new trial. New trial granted and judgment entered for defendant.

Assumpsit on Book Account. Heard on petition of plaintiff for a new trial on exceptions to rulings'of Common Pleas Division denying motion of plaintiff to dismiss petition of defendant for a new trial and to enter judgment for the plaintiff. Petition for new trial granted.

<p>(1) Criminal Law. Confession. Evidence.</p> <p>To warrant a conviction in a given case it must be sliown (1) that a crime has been committed, and (2) that the person charged therewith was the active agent in its commission. But while both facts must be proved beyond a reasonable doubt, neither need be proved independently of and apart from the other; or independently of and without regarding the confession of the person charged with the crime.</p> <p>Full proof of the corpus delicti, independently of a confession, is not required.</p> <p>While a confession is evidence, tending to prove both the fact that a crime was committed and the defendant’s agency therein, it is not of itself sufficient, without evidence aliunde of facts also tending to prove the corpus delicti, to warrant a conviction. There must be such extrinsic, corroborative evidence as will, when taken in connection with the confession, establish the fact in the minds of the jury beyond a reasonable doubt.</p>

<p>Probate Appeal. Heard on petition of appellee for a. new trial. New trial granted.</p>

<p>Trespass on the Case for negligence. Heard on petition of plaintiff for a new trial. New trial denied.</p>

Trespass on the Case for alienation of the affection of the plaintiff’s wife. Heard on petition of the defendant for a new trial. New trial denied.

Debt on the bond of an executor. Heard on petition of plaintiff for a new trial. New trial granted, and judgment entered for the plaintiff.

<p>Trespass on the Case for malicious attachment. Heard on defendants’ exceptions to ruling of District Court overruling demurrer to declaration. Case remanded to District-Court for further proceedings.</p>

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

<p>(1) Pleading and Practice. Trespass and Ejectment. Defects in Declaration.</p> <p>Submission to judgment by a defendant is a waiver of the right to take advantage of defects in a declaration by motion in arrest of judgment.</p> <p>Where a declaration in an action of trespass and ejectment does not set out the estate of the plaintiff in the demanded premises, judgment in his favor does not determine the question of title, but merely gives possession of the premises to the plaintiff.</p>

<p>Assumpsit on Book Account. Heard on demurrer of plaintiff to defendant’s plea of lis pendens. Demurrer sustained.</p>

<p>(1) Duty to guard against Unlawful Acts. Negligence. Proximate Cause.</p> <p>The plaintiff, nine years of age, with other young boys, was playing in a yard adjoining a vacant lot, where the defendant had a tool-chest wherein were kept explosive caps used hi highway work. The caps were kept in a box inclosed in turn in a tin box, the cover of which was secured by a string, and placed near the bottom of the tool-chest. The box had been opened by some one shortly prior to the accident, and some of the caps removed. The plaintiff and his brother came into the lot during their play and found some of the caps on the ground, ten or twelve feet from the chest. The brother of the plaintiff took one of the caps and gave it to another boy who caused it to explode, whereby the plaintiff was injured</p> <p>Held, the defendant was not bound to guard against the mischievous and unlawful acts of others in removing the caps.</p> <p>Held, the act of the boy in exploding the cap was the proximate cause of the injury, intervening between the negligence of the defendant (assuming it to have been negligent) and the injury to the plaintiff, and breaking the causal connection between them.</p>

<p>Bill in Equity to remove cloud from title. Heard on bill and answer. Bill dismissed.</p>

<p>Petition in Insolvency. Heard on exceptions to rulings of register. Exceptions overruled.</p>

<p>(1) Construction of Statutes.</p> <p>Statutes must be construed with reference to the whole system of which they form a part, and statutes upon cognate subjects may be referred to, although not strictly in pari materia. A penal statute must be strictly construed, and the act constituting the offence must be within both the letter and spirit of the statute. In the construction of such statutes it may be the duty of the court, in giving effect to the manifest intention of the legislature, to restrain, enlarge, or qualify the ordinary and literal meaning of the language used, and if there is a reasonable doubt as to whether the acts done are within the meaning of the statute, the person accused of the violation is entitled to the benefit of the doubt.</p> <p>(2) Practice of Dentistry. Bights of Physicians and Surgeons.</p> <p>By virtue of the broad and general language used in Gen. Laws B. I. cap. 165, relating to the authority to practice medicine and surgery, physicians and surgeons qualified under the provisions of said chapter are excepted from the restrictions imposed on other persons regarding the practice of dentistry by Gen. Laws B. I. cap. 155, and the amendments thereto.</p>

<p>Bill in Equity for instructions. Heard on bill.</p>

<p>(•1) Municipal Contracts. Principal and Agent.</p> <p>While the city council of the city of Providence has the entire control of the moneys belonging to the city, under the provisions of the charter of said city, and no committee, either of the council or of either branch thereof, has any authority, except as authorized by vote or ordinance thereof, to incur any liability or expend any money, yet, after an appropriation has been made by the city council for a certain department, that branch of the city council or that committee thereof having charge of such department may lawfully incur debts and audit bills to be paid out of the appropriations therefor; and this right is recognized by chapter 14 of the ordinances of 1887, page 406, so long as the amount of debts contracted is within the limit of the appropriation.</p> <p>(2) Power of Committee to Bind City.</p> <p>The committee of the board of aldermen on the health department of the city of Providence voted that the superintendent of health be authorized to purchase a bicycle for use in said department:—</p> <p>Held, there being money subject to the control of the board of health sufficient to pay the bill at the time of contracting the debt, that, unless it appeared clearly that such an act was beyond their jurisdiction, or a palpable abuse of their discretion, it was binding upon the city and could not be questioned in a court of law.</p> <p>Held, further, a subsequent ratification of the purchase by the committee, by the board of aldermen was equivalent to a resolution authorizing the purchase of the same in the first instance.</p>

<p>(1) Corporations. Dissolution. 'Power of Majority of Stockholders to sell Property.</p> <p>When a corporation is no longer able to profitably continue its business, it has the power to sell its entire property by a majority vote of the stockholders, if such action on the part of the majority is free from unfairness, oppression, or fraud as to the minority of the stockholders.</p> <p>(2) Bight of Minority Stockholder.</p> <p>In a suit by a minority stockholder to restrain the sale by the majority, on the ground of inadequacy of the price, and praying that a receiver might be appointed and the property sold by auction upon a dissolution of the corporation; in the absence of any proof that a larger price could reasonably be expected by an auction, or that any one is willing to bid as much as the price arranged for the sale, or that the complainant stands ready to bid or knows any one who would bid upon the property at such sale, no oppression or fraud by the majority being alleged, equity will not interfere to disturb the agreement.</p> <p>(3) Adequacy of Price.</p> <p>The fact that the sale was approved by the stockholders by a vote of 3,675 shares against 75 tends to show the fairness of the price.</p> <p>Wilson v. Prop’rs Central Bridge, 9 R. I. 590, distinguished.</p>

<p>Assumpsit on a policy of fire insurance. The facts are stated in the opinion. Heard on plaintiff’s demurrer to the first rejoinders to the replications to the second and third pleas in bar. Demurrer sustained.</p>

<p>Debt on Bond. The facts are stated in the opinion. Heard on demurrer to defendants’ pleas in bar. Demurrer sustained.</p>

<p>(1) Sight of Trial by Jury.</p> <p>Gen. Laws R. I. cap. 237, § 9, which requires a defendant claiming a jury trial in an action for the possession of tenements let or held at will or by sufferance to give a bond to pay rent, damages, and costs, is not in violation of Art. I. § 15 of the constitution, which provides that “The right of trial by jury shall remain inviolate.”</p>

Assumpsit on Book Account. The facts are stated in the opinion. Heard on petition of plaintiff for new trial on exceptions to ruling of Common Pleas Division refusing to charge the garnishee. Petition denied.

<p>Bill in Equity for construction of certain provisions of a will. Heard on bill.</p>

<p>(1) Pleading and Practice. Negligence.</p> <p>A declaration in an action on the case for negligence averred that the plaintiff’s intestate was an employee of the defendants in their manufactory, and while engaged near a certain shafting or belt, which was not properly or safely guarded or protected, he was caught by said belt so that his left arm was drawn hito the shafting while in operation, and he was hurled against the floor and fatally injured.</p> <p>A second count averred that the plaintiff’s intestate, while in the proper and usual discharge of his duties in operating a machine connected with shafting or belting, which was uncovered and unguarded, was caught by the shafting or belt while in operation and his left arm drawn into the shafting or belt and his body hurled against the machinery, whereby he was fatally injured.</p> <p>On demurrer to the declaration, assigning for grounds of demurrer that, so far as appeared from the declaration, the plaintiff’s intestate was fully informed as to his surroundings and the condition of the belting, and continued to work there without objection and assumed the risk of injury, and that the declaration did not set forth in what way or manner the plaintiff’s intestate came into contact with the belt, nor what he was doing or attempting to do at the time of the accident:—</p> <p>Held, that the first ground of demurrer was matter of defence, and not a matter to be set forth in a declaration.</p> <p>Held, further, that the averments in the declaration were sufficiently precise and definite as to the manner in which the plaintiff’s intestate came into contact with the belt, but that the first count was defective in that it did not state definitely what he was doing at the time of the accident, and the second count in that it failed to state definitely what was the usual and proper discharge of duty of the plaintiff’s intestate in the running of the machine, and what machine it was.</p> <p>(2) Gertainty in Pleading.</p> <p>The rules of pleading require reasonable certainty in the statement of essentia] facts, to the end that the adverse party may be informed of what he is called upon to meet at the trial, and to this end the allegations should be as precise and definite as the nature of the case will reasonably permit.</p>

Trespass. The facts are fully stated in the opinion. Heard on petition of plaintiff for a trial, on exceptions to ruling of Common Pleas Division disallowing claim of plaintiff for a jury trial. Ruling sustained, and case remitted to District Court.

<p>(1) Trespass vi et armis. Pleading and Practice.</p> <p>The plea of not guilty in trespass to the person only denies the fact of the defendant’s having done the act complained of.</p> <p>(2) License. Justification.</p> <p>In an action against an officer which brings in question his right to do the acts complained of, the burden is upon him to establish the title to his office, or any other matters in justification of his conduct, both in pleading and in proof.</p> <p>(3)' Unnecessary Force by Officer in Acts otherwise Lawful.</p> <p>Semble, If, in an action against an officer for trespass, an assault and battery is shown, although the defendant has pleaded his official capacity in justification, the case is properly submitted to the jury on the question whether the defendant used unnecessary force.</p>

<p>Trespass for assault and battery. Heard on petition of defendant for a new trial. New trial denied.</p>

<p>Probate Appeal. Heard on questions stated in the opinion. Decree of Probate Court reversed.</p>

<p>Trespass on the Case for negligence. Heard on petition of defendant for a new trial. New trial denied.</p>

<p>(1) Public Officers. Quo Warranto.</p> <p>Commissioners appointed under the provisions of Gen. Laws E. I. cap. 71, § 2, to lay out a highway are not public officers, and a writ of quo warranto is not available to determine their title to the office.</p>

<p>Assumpsit for weekly benefits by a member of a beneficial association. Heard on agreed statement of facts.</p>

<p>Bill in Equity for specific performance. Heard on bill and answer. Bill dismissed.</p>

<p>(1) Probate Law and Practice. Interest on Legacy.</p> <p>A legatee is entitled to interest on a legacy which she takes under a will modified by the award or compromise authorized by Gen. Laws R. I. cap. 212, § 22, in the same manner as though the legacy had been originally incorporated in the will.</p> <p>(2) Effect of Compromise between Beneficiaries and Heirs.</p> <p>The effect of the provisions of Gen. Laws R. I. cap. 212, § 26, is to embody the award or compromise authorized by section 22 of said chapter in the will, and to give effect to it as if originally a part of the will.</p>

<p>Trespass and Ejectment. The facts are stated in the opinion. Heard on plaintiff’s demurrer to defendant’s second plea in bar, and on defendant’s demurrer to plaintiff’s replication to the plea. Demurrers overruled.</p>

<p>Bill in Equity for specific performance of an agreement to convey land.1 Heard on bill, answers, and replication. Bill dismissed.</p>

Trespass on the Case for negligence. The action was brought against the defendant McCardell, the Owner of a building, and the defendant Pearlstone, the tenant of a store in said building, and averred that said owner erected for the use of the occupants of said store a certain elevator and elevator-well from the cellar of the building to the floor of the store, for the purpose of lifting and carrying goods into the store; that the elevator-well was without guards around it…

Trespass on the Case for negligence, in not furnishing artificial light in the halls and stairways of a building owned by the defendants, whereby the plaintiff, who had entered the building to visit a tenant, fell and was injured. Heard on demurrer to declaration. Demurrer sustained.

<p>Bill in Equity for the appointment of a trustee to receive and hold a bequest, given to an unincorporated religious society for religious purposes. Heard on bill and demurrer. Demurrer overruled.</p>

<p>(1) Improper Language by Gownsel. Few Trial.</p> <p>'The following language was used by counsel in his argument: “And a man who had the least spark of honor in his body (which [he] has not) would have responded to such an appeal. Could you or I resist an appeal like that? Could any man but one of the most brutish, one of the vilest and most lascivious—” Counsel on the other side : “That was an appeal for money.” “My friend on the other side says that is an appeal for money. Gentlemen, outside of New England, if that man had done what he has to this woman he would have been hanging, or he would have had daylight let into him by many indignant citizens. Read the newspaper and find where the men outside of Rhode Island are allowed to live where they have done what [he] has done”:—</p> <p>Held, that the first part related to testimony in the case and could not have had an improper influence on the jury.</p> <p>Held, further, that the rest of the language meant no more than that, while in some places eases similar to the one at trial would be summarily dealt with, yet in this State the remedy was the more orderly one of seeking damages 'in court, and the words being unpremeditated and allowance being made for inconsiderate vehemence, there being ample ground for the verdict and no reason to believe the jury was moved to give it by reason of feelings of animosity or prejudice, a new trial would not be granted.</p> <p>(2) Few Trial. Evidence Known at Time of Trial.</p> <p>Where a party has knowledge previous to the trial of the claim of the other side and personal knowledge of facts which constitute an important element to rebut the claim and fails to offer such evidence by deposition or otherwise at the trial, a new trial will not be granted to allow the production of the evidence.</p> <p>(3) Newly-Discovered Evidence.</p> <p>ISTewly-discovered evidence which does not relate to the merits of the case, but only to the credibility of a witness, does not furnish ground for a new trial.</p> <p>(4) Aggravation of Damages. Breach of Promise of Marriage.</p> <p>In an action for a breach of promise of marriage the seduction of the plaintiff by the defendant may be shown in evidence in aggravation of damages.</p> <p>Perkins v. Mersey, 1 B. I. 493, explained and limited.</p>

<p>Indictment charging defendant with murder. Heard on petition for new trial. New trial denied.</p>

Trespass on the Case for negligence. The plaintiff was employed by the defendant about a crane, used to raise.and lower iron, which was operated by power furnished by an electric current. An iron chain attached to the crane and used to manipulate it became charged with a dangerously large amount of electricity, and the plaintiff, taking hold of the chain in the discharge of his duties, was injured. Heard on petition of defendant for a new trial. New trial denied.

<p>Petition for an opinion as to the validity of a mortgage given by a life tenant as against the estates of remainder-men under a will. Heard on agreed statement of facts.</p>

Trespass and Ejectment. Heard on petition of plaintiff for a new trial. New trial denied. Trespass and ejectment to recover possession of land for breach of condition contained in deed of gift from plaintiff’s ancestress to defendant: one of two cases tried together by agreement of parties and heard and decided by the court, jury trial not having been claimed, upon the facts found and for the reasons given in the following “Decision.

<p>Bill in Equity to avoid a trust. Heard on question of legitimacy. For previous opinions in this case see 18 R. I, 120, and 19 R. I. 197.</p>

Trespass on the Case for negligence in permitting a highway to be out of repair. ' Heard on petition of plaintiff for a re-argument of a petition of the defendant for a new trial, decided in 20 E. I. 533. Petition for re-argument denied.

<p>Trespass on the Case for negligence. The facts are sufficiently stated in the opinion. Heard on demurrer to plea in bar of former judgment for same cause of action against a joint tort feasor. Demurrer sustained.</p>

<p>Bill in Equity to quiet title. Heard on motions of respondent, the grounds of which are fully stated in the opin-. ion. Motions denied.</p>

Bill in Equity for specific performance. Heard on motion of complainant for leave to re-argue the cause, decided in 21 E. I. 352. Motion denied.

<p>(1) Trover and Conversion. Demand and Refusal.</p> <p>Where property had been conveyed by a general assignment for the benefit of creditors, and at the time of demand the title thereto was in the assignee, although the assignor was using the same, acting as the agent of the assignee, who had previously taken possession under the assignment, the assignor having no other control over it, a refusal by the latter to comply with a demand of the mortgagee to surrender the property is not evidence of a conversion.</p> <p>A refusal to deliver, to constitute conversion, must amount to a denial of the demandant’s right. •</p> <p>(2) Exceptions. New Trial.</p> <p>Questions of law not properly brought upon the record by exceptions will not be considered by the court in a petition for a new trial.</p> <p>(3) New Trial.</p> <p>There is no ground stated for new trial, where the record shows that the party has failed to make out a case upon which a jury could base a verdict.</p> <p>(4) Verdict. New Trial.</p> <p>Where the record shows that the jury were properly instructed by the court, it is to be presumed that their verdict was found upon the evidence in accordance with such instructions.</p>

The town council of New Shoreham ordered a highway to be established and laid out in that town. Prom this decree an appeal was claimed by the present appellant. The notice of appeal, bond, and claim for jury trial were forwarded by registered mail to the town clerk of New Shore-ham. They reached the latter place shortly before midnight on the last of the forty days within which an appeal could be claimed, but were not received by the town clerk until five days later.

<p>(1) Construction of Will. Life Estate with Power of Disposition.</p> <p>A testamentary disposition was as follows : “I give, devise, and bequeath unto ihy wife all my property, . . . to be by her used and disposed of during her natural life precisely the same as I might do myself were I living; hereby giving her full power to sell, exchange, invest, and reinvest the same, and to use and consume the principal as well as income thereof at her pleasure, and on sale thereof to execute all needful deeds for the conveyance thereof.” A power of appointment over the estate by will was given the wife :—</p> <p>Held, that the estate given to the wife by will was for life only, with power of disposition, and not an absolute estate.</p> <p>He Will of Henry G. ¡Kimball, 20 R. I. 019, distinguished.</p>

<p>(1) Abandonment of Easement. Efom-user.</p> <p>A. and B. were owners of estates separated by a strip of land, over which B. had a right of way, as well as the fee to the centre. The strip had never been used ás a way. A. erected an expensive residence on his land, laying out the grounds so as to include the whole of the way, and also erected an iron fence on his lot which extended across the end of the way. B. knew of this, and made no objection. Subsequently the fence around B.’s lot was removed, except in front, and a post set in the corner of the lot, A. and B. being present. The driveway of A. crossed a corner of the way. A. cut the grass and cultivated flowers on the way and occupied it as a part of his estate, but not for twenty years. The way was not assessed to any one, B.’s lot was unimproved, and there was no occasion to use the way. During- the time referred to the lot was for sale, the advertisement stating that a way twenty feet wide was to be opened beyond the east line</p> <p>Held, that the question of abandonment of an easement is one of intention, to be determined from the facts.</p> <p>Held, further, that the acts relied on to constitute abandonment must not only be voluntary, but of such a character as unequivocally to show an intention to abandon the easement.</p> <p>Held, further, that in the absence of any proof that anything was ever said between A. and B. about the erection of the fence and the use of .the way by A., the mere acquiescence of B. in the acts of A. did not constitute an abandonment of the easement.</p> <p>Query, whether, if the land had been improved and B. had used some other way, this being more or equally convenient, such proof would have been sufficient.</p> <p>Query, whether, if the obstruction were a permanent structure, instead of one that could be removed with little expense and without serious injury, ’ equity would interfere.</p>

<p>(1) Equity Pleading. Demurrer. Mullifariousness.</p> <p>A bill in equity for partition of real estate held by most of the parties as devisees under a will sought, in addition, to free the land from the liability of a charge under a bond of the testator to pay an obligee a stated sum each month during her natural life by making the obligee and the executors of the will parties to the bill, and asked the court to award a gross sum or to assign real estate to the obligee in discharge of the bond, or to determine what part of the real estate should be subject to charge for the payment of the bond to the exclusion of the rest. It also prayed for distribution of the personal estate in the hands of the executors</p> <p>Held, on demurrer, that the bill was bad for multifariousness, in combining partition of real estate with matters in no way connected with the proceeding.</p> <p>Held, further, that even if the claim of the obligee were likely to become a charge on the realty, the court could not compel her to accept something different from what she agreed to accept, all of the parties to the bill claiming under the same testator and his estate being subject to his obligations.</p> <p>Aliter, if the obligations were those of a tenant in common which stood in the way of partition. Held, further, that the executors, obligee, and surety on the bond were not proper parties to the bill.</p> <p>(2) Equity Pleading. Parties.</p> <p>Under the provisions of Gen. Laws R. I. cap. 205, § 20, in a bill for partition, where the estate is held by the tenants in common, in tail, the children of the first tenants in tail are proper parties to the bill, except as to those shares in which the entail has been barred.</p> <p>(8) Equity Pleading. Parties.</p> <p>So also are the wives and husbands of the first tenants in tail proper parties to the bill.</p> <p>(4) Equity Pleading. Pendency of another Bill.</p> <p>Although the general rule in equity is that the pendency of another bill between the same parties for the same result is good cause of, demurrer, yet, where the second bill embraces additional and proper parties, it is not demurrable, although the same result might have been reached in a better way by demurrer to the first bill for want of parties.</p>

<p>Petition for an opinion of court. The facts are stated in the opinion.</p>

Trespass on the Case .for negligence by an employee against his employer. The plaintiff was employed in the mill of the defendant corporation. Two or three hours before the accident complained of other employees of the defendant in the course of their employment had thrown grease upon the floor of a room through which it was necessary for the plaintiff to pass. The plaintiff slipped on the grease and fell against certain machinery and suffered injury.

Action op Trespass on the Case against a garnishee • under the previsions of Gen. Laws E. I. cap. 254, § 20. The facts are stated in the opinion. Heard on exceptions of defendant to rulings of a District Court refusing to dismiss the action and rendering decision for the plaintiff. Exceptions sustained.

<p>(1) Carrier and Passenger. Gratuitous Carriage. Fellow-Servant.</p> <p>Where a servant of the defendant railroad corporation, upon the completion of liis work, is invited to ride in the defendant’s car to a point adjacent to his home, the carriage being gratuitous, the relation of passenger and carrier is not thereby created between them, but it is to be regarded as a privilege incident to the contract of service, accorded by the corporation merely by-reason of said contract, and an injury resulting to the servant through the careless management of the train must be regarded as received through the negligence of a fellow-servant.</p>

<p>Action upon the bond of an assignee in insolvency, given under the provisions of Gen. Laws R. I. cap. 274, § 35. The action was brought at the relation of the successor of the original assignee against the surety on the bond. Heard on demurrer to the action on grounds stated in the opinion. Demurrer sustained.</p>

Assumpsit on Book Account. The facts are fully stated in the opinion. Heard on petition of plaintiff for new trial. New trial denied.

<p>Bill in Equity to remove cloud on title. Heard on petition of complainant for a re-argument of the bill and answer decided in 21 R. I. 283. Petition for re-argument denied.</p>

<p>Bill in Equity for the construction of a will. Heard on bill and agreed statement of facts.</p>

<p>Assumpsit. The facts are fully stated in the opinion. Heard on exceptions of the plaintiff to the ruling of a District Court in discharging the garnishee. Exceptions overruled.</p>

<p>(1) Municipal Corporation. Defect in Highway. Nonsuit.</p> <p>In an action against a municipal corporation for injuries resulting from a defect in the highway, where the evidence shows that the accident occurred from the backing of the wagon in which the plaintiff was seated down hill and across the road against bowlders on the edge of an embankment six or seven feet high, and about eighteen feet from the traveled way, the embankment being within the line of the highway, no defect in the highway is shown and a nonsuit is rightly granted; the bank was an ample distance from the roadway for ordinary travel on a country road, and the bowlders formed a guard against the edge of the bank sufficient, at least, in the case at bar, to keep the wagon from going into the ditch.</p>

<p>(1) Defect in Highiuay. Notice to Town or City Council. Requisites ancl Sufficiency.</p> <p>< A notice, under the provisions of Gen. Laws R. I. cap. 36, §§ 16 and IS, required to be given to the town council or city council of a town or city' by a person claiming to have received bodily injury by reason of a defect in a public highway, was in the following form: “Respectfully represents the undersigned that on the 2nd day of February, A. D. 1898, while walking on the southerly side of Church street hr said city she fell and broke her right arm; that the cause of said fall was the defective condition of said sidewalk, which said sidewalk is a part of a public highway in said Woonsocket; wherefore the undersigned presents a claim against said city of Woonsocket in the sum of three thousand dollars for injuries sustained as above'stated”:—</p> <p>Held, that the notice was defective, not being sufficiently specific as to place and cause to meet the requirements of the statute.</p> <p>Held, further, that such a notice should describe the particular locality, as well as the cause of the accident, with such reasonable certainty as woiild inform the officers of the town or city as to the time and place of the injury, and as to the character and nature of the defect which caused it, so as to aid them in investigating- the question of the liability of the town.</p> <p>Burdick v. Richmond, 16 E. I. 502, distinguished.</p> <p>(2) Amendment of the Notice.</p> <p>Held, further, that as the giving- of the notice provided for is a condition precedent to the beginning- of the action, the fact that within sixty days from the accident the officers of the city were particularly notified by the counsel for the plaintiff, who appeared before the committee on ■ claims of the city, of the place and cause of the accident, did not cure the defect.</p>

Assumpsit. ' The facts are stated in the opinion. Heard on petition of defendant for a new trial on exceptions to the pro forma ruling of the court directing a verdict for a stated sum. Exceptions sustained.

<p>(1) Waste. Construction of Statutes. Cumulative or Exclusive Remedies.</p> <p>The statutory remedy for waste, provided by Gen. Laws R. I. cap. 2G8, is cumulative and not exclusive of the remedy at common law. A plaintiff! has his election as to his form of action.</p> <p>“Where a statute gives a remedy in the affirmative for a matter actionable at common law, without any negative expressed or implied, the common-law remedy is not taken away.</p> <p>(2) Injury to Reversion. Pleading and Practice at Law.</p> <p>Case is the proper common-law remedy for injury to the reversion. ,</p>

<p>Bill in Equity to foreclose a pledge. Heard on bill, demurrer, and plea. Plea sustained.</p>

Trespass on the Case for trover and conversion. Heard on petition of defendant for re-argument of petition for new trial heretofore decided in the rescript accompanying this opinion. Petition for re-argument denied.

<p>(1) Equitable Assumpsit. Existence of Trust.</p> <p>In an action of equitable assumpsit based upon a trust arising in favor of a plaintiff from the receipt of money by a defendant, where the latter denies the trust relation, the question of fact as to the existence of the trust is for the jury.</p> <p>An agreement by all the parties in interest that a fund in the hands of a party shall constitute a trust is sufficient to raise an implied promise in favor of those within its contemplation, whereon to sustain an action of equitable assumpsit.</p>

<p>(1) Equity Pleading and Practice. Interested Parties.</p> <p>In a creditor’s bill to enforce stockholders’ statutory liability, brought against a trustee, the cestuis que trustent are interested parties within the contemplation of Gen. Laws R. I. cap. 240, § 16, and have the right to come in as parties to the suit. Their interest is direct, and not simply consequential or remote.</p>

Trespass on the Case for the obstruction of a way. The facts are sufficiently stated in the opinion. Heard on petition of defendant for a new trial. New trial granted.

Trespass and Ejectment. The instrument under which the defendant claimed to hold the premises for a term of years was signed by the son of the plaintiff, describing himself in the body of the instrument as “acting on behalf of” the plaintiff. The instrument was not under seal. The remaining facts are sufficiently stated in the opinion. Heard on petition of defendant for new trial. New trial denied.

<p>Trespass on the Case for trover and conversion. 'The jury returned a verdict for the plaintiff, and ássessed damages “in the sum of $125 with interest at six per cent.” Heard on motion of defendant in arrest of judgment, on the ground that the jury did not compute the interest allowed by the verdict, nor fix the time from which to compute it.</p>

Assumpsit on book account. During the impaneling of the jury the defence objected to the peremptory challenge of any juror, basing the objection on Pub. Laws E. I. cap. 624, amending Gen. Laws E. I. cap. 227. Heard on petition of defendant for a new trial. New trial denied. -

Trespass cle bonis asportatis. The facts are stated in the opinion. Heard on petition of plaintiff for a new trial. New trial granted.

<p>Bill in Equity for an injunction to restrain the nse by a corporation of a name identical with that of the complainants, a voluntary association. Heard on demurrer to bill. Demurrer overruled.</p>

<p>Bill in Equity by certain owners of water-privileges on the Blackstone and Pawtucket rivers, so-called, against the respondents, for diverting the waters of a natural watercourse, formerly flowing into said rivers, by dams and pipes, and by using the water so diverted for a water. supply for the respondent city.</p> <p>The respondents demurred to the bill because, (1) the complainants were improperly joined ; (2) the complainants had an adequate remedy at law ; (3) the complainants were guilty of laches; (4) the city of Woonsocket was improperly joined with the city treasurer of the city .of Woonsocket as parties respondent. Heard on demurrer to bill. Demurrer overruled.</p>

<p>Trespass on the Case in assumpsit. The action was commenced by the arrest of the defendant. At the trial the defendant moved that he be allowed to submit to the jury evidence upon the matters set forth in the plaintiff’s affidavit annexed to the writ. The motion was denied. Heard on petition of defendant for a new trial on exceptions to the ruling of the court denying the motion. New trial denied.</p>

<p>Appeal from an order of the district council of the District of Narragansett, sitting as a board of health, whereby certain premises were declared to be a nuisance, which was ordered to be abated under the provisions of Gen Laws E. I. cap. 91. Heard on exceptions of appellant to the ruling of the Common Pleas Division dismissing the appeal for want of jurisdiction. Exceptions overruled.</p>

<p>(1) New Trial. Misconduct of Jwror.</p> <p>Pending the trial of an action against a railroad corporation for personal injuries alleged to have been suffered through the negligence of the defendant, one of the jurors empanelled for the trial of the action, after the evidénce was closed, but prior to the charge of the court, wagered a cigar with an employee of the defendant that the defendant would not lose the case:—</p> <p>Held, although such action of the juror was highly censurable, that, as the verdict was sustained by the evidence, it did not furnish ground for a new trial. Quaere, if sucli conduct might not be a sufficient ground to grant a new trial, if the case were a close one on the evidence, or there were reason to believe that the rights of a party had been injuriously affected.</p>

<p>Debt on Bond given under the provisions of Gen. Laws R. I. cap. 237, § 9, by a defendant in ejectment as principal and the present defendant as surety. The facts are fully stated in the opinion. Heard on motion of defendant in arrest of judgment. Motion denied.</p>

Assumpsit on Book Account. The facts are fully stated in the opinion. Heard on petition of plaintiff for a new trial on exceptions to the ruling of the Common Pleas Division. New trial denied.

<p>(1) Petition for New Trial. Procedure.</p> <p>A petition for a new trial under the statute cannot be properly filed until after a final decision in the Common Pleas Division. Preferring such petition from an interlocutory decision is premature.</p>

<p>Bill in Equity. The question of practice involved is stated in the opinion.</p>

<p>(1) Necessity for Criminal Complaint before Action for Personal Injuries. Pleading and Practice. Demurrer. Plea in Abatement.</p> <p>In trespass for assault and battery, the declaration being in the usual form, the defendant demurred to the declaration on the ground that it did not set forth that criminal proceedings had been instituted against the defendant for the assault complained of, in accordance with Gen. Laws R. I. cap. 233, § 16</p> <p>Held, that the question could not be raised by demurrer. Semble, before trial on the merits the question should be raised by a plea</p> <p>in abatement of the action.</p> <p>Semble, Gen. Laws R. I. cap. 233, § 16, has no application to the case at bar.</p>

<p>Bill in Equity brought by the administrator of an insolvent estate against the creditors, praying that the report of the commissioners on said estate might be reformed in certain particulars. Heard on demurrer to bill. Demurrer sustained.</p>

.Debt on an administration bond. The facts are stated in the opinion. Heard on demurrer to defendants’ plea in abatement. Demurrer overruled.

Assumpsit on promissory note. The facts are stated fully in the opinion. Heard on petition of defendants for new trial. New trial denied.

<p>Bill in Equity for specific performance of written contract by injunction. Heard on bill and pleadings and oral testimony. Bill dismissed.</p>

<p>(1) Liability of Municipality for Ice on Sidewalks. Proximate Gause. Negligence.</p> <p>In an action against a city for injuries received by the neglect of the city to keep one of its sidewalks safe and convenient for travel, it appeared that the defect was á gutter in the concrete sidewalk, twenty inches wide, and three inches deep in the middle. At the time of the accident the bottom of the gutter was not a true grade, so that the accumulated water did not all run off! after rains. During the twenty-four hours preceding the accident a very heavy snow-sto cm had occurred. The plaintiff slipped on the ice in the gutter and was injured :—</p> <p>Held, under the provisions of Gen. Laws R. I. cap. 72, § 13, that the mere presence of the ice, in the absence of the notice required by said section, was not enough to render the city liable ; but the gutter must in itself have constituted such a defect as would have rendered the city liable, in case the accident had happened by reason of it, in the absence of the ice. Held, further, that the jury might fairly have inferred that the origin of the ice was caused by the negligent condition of the gutter and the artificial accumulation of water therein but for the fact of the snow-storm preceding the accident, and that the ice might have been caused by the treading down of snow by travel over the sidewalk.</p>

Information seeking the forfeiture of certain liquors. The facts are sufficiently stated in the opinion. Heard on petition of defendant for new trial. New trial granted.

<p>(1) ■ Mortgages. Power of Sale. Infants. Batification.</p> <p>A power of sale in a mortgage of real estate executed by an infant is invalid, an infant being incapable in law of appointing an attorney. Therefore a sale under such power is absolutely void as to the interest of the infant in the land.</p> <p>Although the mortgage might have been ratified by the infant, nevertheless, upon a bill properly setting out the invalidity of the power of sale as a ground of relief, the infant would be entitled to redeem.</p>

<p>Probate Appeal. The facts are stated in the opinion. Heard on petition of appellant for a new trial. New trial denied.</p>

<p>Assumpsit on the common counts. The facts are sufficiently stated in the opinion. Heard on petition of defendant for a new tidal. New trial denied.</p>

Trespass on the Case for trover and conversion. The facts are stated in the opinion. Heard on petition of plaintiff for a new trial. New trial granted.

<p>. Trespass on the Case for negligence. The facts are stated in the opinion. Heard on petition of plaintiff for a new trial. New trial denied.</p>

<p>Bill in Equity seeking the administration of a trust fund and its application to the support of an infant cestui. The facts are stated in the opinion. Heard on bill and answer.</p>

Trespass on the Case for negligence. The facts are' stated in the opinion. - For previous,opinionin'this case see 21 R. I. 322.- Heard on petition of-plaintiff for a new trial. -New trial denied. ' ■ ' -

<p>(1). .Pleading and Practice at Law. Assault. Justification.</p> <p>To,an action for trespass vi et'armis, alleging that the defendant kicked and struck the plaintiff and also threw him from the platform of 'áíi electric-car with great force while the car was moving at a.high rate .of speed, the-defendant pleaded, in-justification, that th^ plaintiff, at the time .of the assault, was a trespasser upon the car, having "boarded .it while in motion'to steal a ride, ail'd that thereupon the plaintiff was ejected, with no ’more force than was necessary. -Upon-demurrer to -the plea :—</p> <p>Held, that the, assault charged was not simply, in striking .the plaintiff, but also in throwing him-to the ground from a moving car, and that to justify such’ a charge 'the defendant should set forth such'circumstances as would show-that the act was reasonably-necessary.</p> <p>Held, further, that where .a declaration in trespass alleges acts of such a character as to go beyond simple assault, they are not to be regarded, merely as matter of aggravation, but substantive charges of violence in connection with the assault,'and a'plea of justification must meet and justify the cause of action -stated. . . ,</p>

<p>(1) Pleading and Practice at Law. Joinder of Parties Defendant.</p> <p>Gen. Laws R. I. cap. 233, § 20, providing that whenever in any action the plaintiff is in doubt as to the person from whom he is entitled to recover, he may-join two or more defendants with the view of ascertaining which, if either, is liable, does not authorize the joinder of distinct causes of action against separate defendants.</p> <p>(2) Pleading and Practice at Law. Joinder of Actions. Novation.</p> <p>Where a plaintiff joins an action against A. with one against B., the latter based upon the assumption by B. of A.’s debt to the plaintiff, the fact of suing A. shows that the plaintiff has not accepted the substituted agreement of B. and makes the actions separate and disconnected, and hence not within the contemplation of said section.</p>

<p>(1) Duty of Land-owner to Travellers to keep Street in Safe Condition in front of Premises.</p> <p>In the absence of any legislative enactment on the subject, an abutting land-owner is not liable to travellers for injuries received by them because of a defect in the street in front of his premises, unless such defect is caused by bis own act or fault.</p>

<p>(1) Trusts. Equitable Liens. Assignments.</p> <p>A testator gave his residuary estate to his sons A. and B. in trust, and after the expiration of three years from his decease to convey said trust estate in equal parts to his children, of whom B. was one. A. and B. were appointed executors of the will. B., being indebted to the testator and to the executors for loans and advances, executed the following instrument: “Received from the executors of the estate of X. -- dollars on account, for the purpose-, said amount to be charged to me on the books of the estate-; I further agreeing that for the said amount which I now owe the estate on account and in notes-that my one-sixth interest in the residuary estate of X. shall stand as a further collateral for the said obligations in so far as the same may be required for the cancellation thereof.” B. made an assignment for the benefit of his creditors to the complainant, and resigned as trustee and executor of the estate of X. The three years having expired and there being a surplus of the residuary estate, the complainant requested A., the sole trustee under the will, to transfer to him as assignee of B. the one-sixth of the trust estate directed under the terms of the will to be conveyed to B., but the respondent A. refused so to do. On bill brought to compel such transfer:—</p> <p>Held, that the instrument executed by B. created an equitable lien on his interest in the one-sixth of the trust estate.</p> <p>Held, further, that the complainant succeeded merely to the rights of his assignor, B.</p> <p>Held, further, that the complainant was entitled to the balance only of the residuary trust estate after deducting the indebtedness of B. to the estate.</p> <p>Held, further, that though the agreement was with A. as executor aird not as trustee, and though he, as executor, had no control over the real estate constituting the bulk of the trust estate, and could not apply it to the satisfaction of the lien against the consent of another, a trustee, still equity would enforce the lien at his request should it be necessary by reason of the refusal of such trustee to recognize the lien and apply the property to its satisfaction.</p>

<p>(1) Trespass. Measure of Damages.</p> <p>In an action of trespass for entering the plaintiffs’ dose and carrying away soil, the good faith of the defendant not being in question, the measure of damages is the valué of the soil as it lay on the lot, without allowance to the defendant for any resulting benefit to the lot through bringing it-to grade.</p> <p>Aliter, if the plaintiffs had received value by way of an addition to their property.</p> <p>(2) Evidence. Expert Witness.</p> <p>In an action of trespass q. c. on an issue as to the value of certain trees, a witness who had bought and sold some lots for himself, not in the vicinity of the locus in quo, some of the lots having trees and some not, but there being nothing to show that in either case the trees affected the price, except in one instance an expression of a purchaser subsequent to-the sale, is not qualified to testify as an expert.</p>

<p>(1) Equity. Assignment of Mortgages.</p> <p>A., during his life, mortgaged an estate to 13., and by will devised said estate to C. for life, with remainder to D. and E. Subsequently to the decease of A., C., the life tenant, and D. andE., the remainder-men, made a second mortgage to 33. Both these mortgages were assigned by B. to the respondent, and were due and payable. C. tendered to the respondent the full amount due on the mortgages, including interest and the expenses of transferring, and demanded that the respondent transfer the mortgages to X. Upon the refusal of the respondent, 0. brought a bill in equity to compel the respondent to transfer the mortgages. Upon demurrer to the bill on the ground that the complainant did not make a case within the provisions of Gen. Laws 33.1, cap. 20Y, § 1, and on other grounds:—</p> <p>Held, that the statute, being remedial in its nature, should be liberally construed, and that though in terms limited to a mortgagor, that it should be held to extend to those who have succeeded to the mortgagor’s right or title.</p> <p>2) Equity Pleading and Practice. Parties.</p> <p>Held, further, that the remainder-men were not necessary parties to the bill.</p> <p>The life tenant is primarily interested.</p> <p>(3) Construction of Statutes.</p> <p>Held, further, that the clause of the statute which provides that the “ requisition of a prior incumbrancer shall prevail over the requisition of a subsequent incumbrancer” applies to incumbrances held by incumbrancers which aré subsequent to the mortgage or mortgages of which a transfer is sought, and provides as to the priority of right as between conflicting requisitions of subsequent incumbrancers.</p> <p>Held, further, that the word “requisition” in the statute is used in its literal sense of the act of requiring or demanding.</p> <p>(4) Equity Pleading and Practice. Form of Bill.</p> <p>Held, further, that a bill for this purpose should properly contain an averment that the complainant has obligated himself to have the assignments which he requires from the respondent recorded.</p>

<p>(1) Pleading and Practice. Negligence. Duty of Master. Employment of Infant in Dangerous Position.</p> <p>In trespass on the case for personal injuries brought against a master by the father and sole beneficiary of an infant intestate, founded (1) on the alleged negligence of the master in employing the infant, of the age of eight years, in a dangerous occupation, and (2) on the negligence of the master in employing infants as fellow-servants of the deceased, in consequence of whose incompetency the deceased was injured, a declaration which merely alleges that the defendant negligently and wrongfully employed the infant in unloading bricks, and that said employment was dangerous for a person of his youth, does not state a case. The allegation that the employment of an infant of that age was negligence per se is a conclusion of law.</p> <p>An averment that the fellow-servants of the infant were incompetent by reason of their youth, which fact was known to the defendant, and that by reason of the carelessness and negligence of the defendant by said servants the infant was injured, is demurrable, it not appearing wherein the fellow-servants were negligent, or how their negligence contributed to the happening of the accident.</p>

<p>Trover for conversion of household furniture. Heard on defendant’s petition for a new trial.</p>

Trespass on the Case for injuries from electric wires. Heard on plaintiff’s petition for a new trial after a verdict had been directed for defendant.

<p>. At a meeting of the electors of the town of Cumberland held June 11, 1891, a majority voted to abolish the district system and to adopt the town system of conducting their public schools. A commission was thereafterwards appointed by the Supreme Court to appraise the school property thereby acquired by the town, and the report of this commission was confirmed. The assessors of taxes of said town declined to assess the special tax, and to make the remissions on account thereof, required by statute. Upon an application for a writ of mandamus to compel such assessment and remissions, the assessors incorporated in their answers the following questions : First, Is that part of the statute relating to assessments and remissions constitutional ? Second, If so, upon the ratable property of what year shall the assessment be made ? Third, in what form shall the remissions be made, by deduction from the current general assessment or by payments in money ?</p>

Petition for a Writ of Certiorari to a town council who had granted a petition for a license to sell intoxicating liquors. According to the plat of the land within two hundred feet of the building for which the license was requested, which was admitted as evidence, the petitioner owned 16,868 feet; Anthony Corcoran owned 17,563; and the Cranston Print Works owned 7,él6 feet, a total of él, 8é7 feet. The total area, exclusive of streets, was 103,052 feet.