Volume 22 — Rhode Island Reports

Assumpsit for money had and received. The action was brought to recover the amount of a tax assessed upon the personal estate of the plain tiff by the assessors of taxes of the city of Providence, the plaintiff having paid the tax to the city treasurer under protest. The husband of the plaintiff was, on the day of the assessment, a domiciled inhabitant of the city of Providence.

<p>(1) Pleading and Practice. Actions. Bonds. Sheriffs. Personal and, Representative Capacity.</p> <p>An action upon a judgment recovered by a deputy-sheriff in his life-time, rendered on a delivery bond running to said deputy-sheriff, his successors, executors, administrators, and assigns, is properly brought after the de- ' cease of said deputy-sheriff, by his personal representative. A deputy-sheriff has no successor.in office, and the provisions of cap. 233, § 13, Gen. Laws R. I. have no application to the case at bar.</p> <p>(2) Actions on Bonds for Release of Attached, Property.</p> <p>Though the deputy-sheriff, unless he has paid the creditor’s claim, is a nominal party merely to the suit, the creditor can only sue in the name of the deputy-sheriff or his legal representative. ' The latter will hold the sum recovered, if the creditor has been paid, as assets of the estate, otherwise to the use of the creditor.</p>

<p>Trespass and Ejectment. The facts are stated in the opinion.</p>

<p>(1) New Trial. Duty of Court after Repeated Concurring Verdicts.</p> <p>After three concurring verdicts for a plaintiff the court must assume, even though it may not he satisfied, that the verdict is not against the evidence. Burnham v. N. V. B. R. Co., 17 R. I. 544, distinguished.</p>

<p>Trespass on the Case for trover. The facts are fully stated in the opinion.</p>

<p>(1) Equity. Assignment of Mortgages.</p> <p>Under tlie provisions of Gen. Laws R. I. cap. 207, § 7, one of several mortgagors cannot, without the concurrence of the others, require an assignment of the mortgage.</p> <p>(2) Assignment of Mortgages.</p> <p>Independently of Gen. Laws R. I. cap. 207, § 7, a mortgagor cannot require an assignment of the mortgage by the mortgagee to a third party.</p> <p>(3) Mortgages. Redemption. Subrogation.</p> <p>Semble, where the conditions of a mortgage jointly executed by a complainant and another have been broken, and the co-mortgagor refuses to join with the complainant to require an assignment of the mortgage under the statute to a third party, the remedy of the complainant is to redeem the mortgage by paying the entire amount due. Thereupon he would be subrogated to the rights of the mortgagee so far as necessary to obtain contribution.</p>

Trespass on the Case for Deceit. In an action of deceit the plaintiffs averred that the defendant was an owner of real estate subject to a mortgage of $9,500 ; that to induce the plaintiffs to buy the same he represented that he had an agreement with the mortgagee not to foreclose the mortgage so long as the interest was paid, for 99 years; and that the defendant bargained and warranted that the plaintiffs would be safe and secure in the possession of said estate for 99…

<p>(1) Interpleader. Gifts causa mortis.</p> <p>The fact that certain articles of personal property of a decedent are claimed by one party as a gift from the decedent and by another party as the residuary legatee of the decedent will not justify a bill of interpleader by the executor against the respective claimants. A suit at law by the alleged donee against the executor would conclude not only the executor but the residuary legatee as well, and no suit for the specific chattels would lie in favor of the residuary legatee against the executor.</p>

<p>(1) Deceit. Material Misstatement of Facts. Presumptive Notice.</p> <p>A person to whom a representation is made as to the ownership of lanld, who does not know the representation to be untrne, and who, relying on its truth, has acted to his loss, is not precluded from maintaining an action for deceit because the true state of the title to the land might have been ascertained by him by an examination of the land records.</p> <p>i(2) Deceit. Representation of Fact.</p> <p>Where the representation is a statement amounting to the positive assertion of an existing fact, the person to whom it is made has the right to rely upon its truth, and is not put to his inquiry; and if the representation is untrue and he' is deceived thereby to his injury, negligence which will preclude recovery cannot be predicated on his failure to make inquiry.</p>

<p>Bill in Equity for Discovery in aid of a suit at law. The facts are stated at length in the opinion.</p>

<p><1) Pleading and Practice at Law. Joint and, Several Torts. Joinder of Parties Defendant.</p> <p>A count in tort which jointly charges the owner, architect, and builder of a house with negligence, the first for furnishing improper plans for its construction, the second’for improper supervision, and the third for improper building, is bad in that it states three different cases against three different defendants for three different causes of action. These grounds of liability are distinct, and there is no common legal relation between them with respect to the plaintiff.</p> <p>Parties-cannot be declared against jointly where there is no community of wrong-doing, even though the tort of one might be such that without it the neglect of duty charged upon the other would not have followed.</p>

<p>Bill in Equity seeking a mandatory injunction. The complainants, tenants of the respondent, alleged that the premises were leased to them by indenture for the purposes of their business as manufacturing jewelers. That there was an established custom in the community, as to buildings leased for such purpose, that steam to be used in the sink employed to wash metals and a current of forced air for the furnace were to be furnished by the landlord as a necessary and customary appurtenance of the leased premises, whether or not specially mentioned in the lease other than under the general term “appurtenances the appliances for furnishing the same being by said custom a part of the building and power plant. The bill alleged that the building at the commencement of the term was equipped by the complainants with all the necessary appliances necessary for the supplying of the steam and air, and that at the commencement of the term such steam and air were supplied by the respondent, but that the respondent had shut off the steam and threatened to deprive the complainants of the current of air.</p> <p>The clause relied upon by the complainants in the lease is as follows : “To have and to hold the same with the appurtenances unto,” etc.</p>

<p>(1) Principal and Agent. Estoppel. Election.</p> <p>X., a dealer in cotton, not being in funds, and desirous of purchasing certain ■ cotton in Egypt,’ applied to the plaintiffs, who were bankers, for credit. He deposited a certain sum with the plaintiffs as a guarantee fund, and the plaintiffs furnished him a letter of credit for the required amount, the terms of which letter his vendor accepted and sold X. the cotton, drawing on the plaintiffs’ nearest correspondent at 90 days with bill of lading attached, and shipped the cotton to the plaintiffs. The draft was accepted and paid, and the amount collected of the plaintiffs. X. was to sell the cotton and turn over the sale notes to the plaintiffs, and the proceeds of the cotton were to be paid to the plaintiffs. X. sold half of this lot to the defendant, the defendant and X. signing the sale note in duplicate, and X. sent his copy to the plaintiffs. When the contract between X. and the defendant was made the cotton had not arrived, but the bill of lading was in the plaintiffs’ hands as collateral. The bill of lading was turned over by the plaintiffs’ to K. to make entry of the cotton at the custom house, and K. attended to the forwarding of the cotton to the defendant.</p> <p>The sale note was as follows : “ Sold to O. [the defendant] 150 bales Egyptian cotton . . . Amount of my invoice for the cotton to be paid B. [the ' plaintiffs] ... to my account thirty days after the arrival of the cotton . . . ” It was signed by X. and the defendant.</p> <p>Prior to the bill of sale time for payment, X., by arrangement with the defendant, drew on them for the price, deducting discount. The draft was signed by X. and indorsed by him, it being payable to his order. The defendant paid the draft. The arrangement between the plaintiffs and X., as well as other similar arrangements as to other cotton sold by X. to the defendant, was unknown to the defendant, who believed that X. owned the cotton. On other occasions, with similar sale notes, X. had drawn on the defendant and it had not been questioned.</p> <p>After demand made by the plaintiffs upon the defendant for payment, the latter caused the arrest of X. at its suit brought to recover the amount paid to take up his draft, and afterwards discontinued the suit. At the time of the bringing of this suit the defendant was ignorant of a trust receipt given the plaintiffs by X. permitting X. to sell said cotton for the plaintiffs’ account, the proceeds to be applied to the indebtedness of X. The plaintiffs brought suit to recover from defendant the price of the cotton</p> <p>Held, that upon the facts stated X. was the agent of the plaintiffs, and ihe plaintiffs could not recover.</p> <p>Held, further, that at the time of the action brought by the defendant against X., the defendant not being advised of all the facts, such suit did not operate as a bar, election, or estoppel to prevent the defendant resisting the plaintiffs’ action in the case at bar.</p>

<p>(1) Assignment of Wages. Fraudulent Assignments.</p> <p>Where the assignee, under an assignment of wages made by the defendant and duly recorded, collected and paid over to the defendant all of the wages of the latter earned during the period of five months, at the rate of $15 a week, less about $40, the transaction shows that the assignment was used merely as a cover for the defendant and renders it fraudulent as against attaching creditors whose claims antedate the assignment.</p> <p>(3) Assignment of Wages. Cancellation of Assignment.</p> <p>May 35, 1899, A. made an assignment of his wages to B. to May 1, 1900, which was duly recorded. October 35, 1899, A. made another assignment of his wages to B. for the term of one year, which was also recorded. The first assignment was not cancelled in writing nor of record : —</p> <p>Held, that upon the facts proved, although the first assignment was doubtless void as to attaching creditors, it was nevertheless good as between the parties, and conveyed the wages of A. to B. so long as it remained in force.</p> <p>As the first assignment was never cancelled nor discharged, there was nothing for the second to operate upon at the time it was made, and hence it did not place the wages of A. beyond the reach of an attachment.</p> <p>(8) Assignment of Wages. Vraudulent Assignments. Preferences.</p> <p>While a debtor has the right under the laws of this State, outside of the insolvency law (which is now held in abeyance by the national bankruptcy law, so far as the latter can be invoked), to assign his wages to prefer some one of his creditors, he cannot under the guise of such an assignment secure his wages to his own use, such act being in fraud of his other creditors.</p>

<p>(1) Illegal Contracts. Intoxicating Liquors.</p> <p>An action to recover rent for the use of premises will not lie where the lessor knows that the lessee is using the premises for the illegal sale of liquor and furnishes the lessee with liquor to be sold illegally on said premises.</p> <p>It is within the prohibition of Gen. Laws R. I. cap. 102, §§ 7 and 61.</p> <p>(2) Set-off. Intoxicating Liquors.</p> <p>A plea in set-off filed to recover moneys paid the plaintiff for liquors bought of him for illegal sale, under the provisions of Gen. Laws R. I, cap. 102, § 60, is admissible under Gen. Laws R. I. cap. 239, §§ 10 and 11, in an action founded on a demand which could itself be set off.</p> <p>(3) Right to Recover Money paid in Violation of Law. In pari delicto.</p> <p>A party is not prevented, under Gen. Laws R. I. cap. 102, § 60, from recovering moneys paid for liquors sold him in violation of law because in pari delioto, the intent of the statute being to give him a right of action and thereby exonerate him with reference to the vendor.</p> <p>The history of Gen. Laws R. I. cap. 239, §§ 10 and 11, of set-off, discussed.</p>

<p>(1) Mortgage Sales. Public Newspapers. Specific Performance.</p> <p>“The Real Estate Register and Rental Guide” is not a “public newspaper ” within the meaning of that term as contained in the power of sale in a mortgage deed, and hence notice of sale published therein was not a compliance with the power.</p>

Assumpsit on book-account. The facts were these. The personal estate of the defendant was attached in the hands of a third party as garnishee. At the trial an assignee of the wages of the defendant intervened and claimed the fund under the assignment. The assignment was in the usual form and had been recorded prior to the attachment, but no revenue stamp had been affixed.

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

<p>Bill in Equity to enforce contribution.</p>

<p>(1) Custody of Minor. Habeas Corpus.</p> <p>In a proceeding for the custody of a minor child, the welfare of the child is the paramount consideration, and the decree of the Municipal Court awarding the custody is not conclusive.</p> <p>A minor child, whose custody had been given by the Municipal Court to the petitioner, was placed by the latter with the respondent, with the understanding that she should be sent to school, to church, and Sunday-school, with the view of bringing her up in her parents’ faith. The respondent alleged that the health of the child had not been such as to warrant the sending her to school; that she had been instructed at home and taught to read and write ; that the child was reluctant to attend church and Sunday-school, and that the respondent, though she had not compelled her, had influenced her to do so and had given her some religious instruction. No objection was made as to the suitableness of the respondent’s home.</p> <p>Upon a petition for a writ of habeas corpus to obtain the custody of the minor :—</p> <p>Meld, that, as the right of the petitioner to the custody of the child would terminate under the decree in less than two years, the interests of the child would not be promoted by a change.</p> <p>Held, further, that it was the duty of the respondent to provide for the education of the child, and to that end to send her to school or to ascertain by competent medical advice that such course was not justifiable; and that if the respondent should persistently refuse to perform this duty, such refusal might be deemed a sufficient reason for a change of custody.</p>

<p>(1) Street Railways. Control bg City Council. Location of Route.</p> <p>Although. Gen. Laws R. I. cap. 77, § 5, is evidently intended to give a large discretion to town and city councils, with which the court would not be disposed to interfere upon slight grounds, yet where the city has directed the construction of a route by a street railway company through narrow streets and over a narrow bridge, a portion of the proposed route being near to existing tracts of the company, the court must regard such order as unreasonable within the provisions of said chapter 77, section 5, of the General Laws.</p>

<p>(1) Accord and Satisfaction. Part Payment. Unliquidated Damages.</p> <p>The defendant was indebted to the plaintiff in the sum of $58.48, and had a claim against the plaintiff in the sum of $50, the value, as he claimed, of property entrusted by him to the plaintiff and lost by the latter. The plaintiff denied this liability. The defendant sent the plaintiff a check for $8.48 and a receipt for $50 in settlement. The check was stamped “Good only if when properly endorsed in full of all demands to date against (the defendant).” The plaintiff struck out these words and cashed the check and returned the receipt, notifying the defendant that he credited the sum paid on account. Upon action by the plaintiff for the balance : —</p> <p>Held, that, the amount due being in dispute, the acceptance by the plaintiff of the money offered in settlement amounted to an accord and satisfaction.</p> <p>(2) Acceptance of Payment upon Conditions.</p> <p>Pleld, further, that the erasure on the check not having been made in the presence of the defendant, being unknown to him at the time, and the plaintiff not having notified him of the rejection of his offer, it did not affect the nature of the transaction as an accord.</p> <p>(8) Controversy over Amount Due.</p> <p>Held, further, that, although there is a technical difference between the case of a controversy as to the amount of a plaintiff’s bill and the case at bar, where the dispute is as to a recoupment by the defendant, yet the principle is the same, the essential fact being the existence of a dispute as to the amount due.</p>

<p>(1) Beneficial Associations. Liability of Agent to Member.</p> <p>An action will not lie against an agent of a beneficial association in favor of a-member for wrongfully refusing to comply with the by-laws of the association relative to the obtaining of sick-benefits by .such member.</p> <p>Semble, the remedy of the member is against the association, the wrongful refusal of the agent being no protection to the association.</p>

Trespass on the Case for negligence. The facts are sufficiently stated in the opinion. For previous opinion in this case, see 21 E. I. 363.

Assumpsit ou promissory note. The facts are fully stated in the opinion. The action was tried before Mr. Justice Rogers, sitting without a j ury.

Complaint charging the defendant with giving “trading-stamps,” so-called, in violation of cap. 652 of the Pub. Laws R. I. Certified to the Appellate Division upon the constitutionality of the act.

Assumpsit. The-plaintiff brought this suit, and two days later the defendant began an action of debt against the plaintiff. Afterwards the defendant filed a plea in set-off to the present action, and sought to avail itself by said plea of the same causes of action declared upon in its suit against the plaintiff. To the plea in set-off the plaintiff replied, setting up the defendant’s action in abatement of the plea.

<p>(1) Process. Alteration of Writ. Liability of Surety.</p> <p>Where, after the delivery of a bond to release an attachment, under the provisions of Gen. Laws R. I. cap. 253, § 14, the return-day of the writ was changed by some one and the writ entered in court upon the new return-day, the variance between the return-day of record and that stated in the bond is fatal, and discharges the liability of the surety.</p> <p>Whether the change was authorized by the plaintiff or not, by entering the writ on the new return-day he must be deemed to have adopted and ratified the change.</p>

<p>(1) Negotiable Instruments. Equities. Bona Fide Holder.</p> <p>While a bona fide holder of negotiable paper may pass it to an assignee even if the latter may have notice of such facts as would have defeated the right to recover had the instrument remained in the hands of the original party, yet, if the paper returns to the original party, it is subject in his hands to the original equities.</p>

Bill in Equity brought by the complainant to restrain the respondent from using in any manner in connection with his business of manufacturing and vending hats the name of “Harson,” and from maintaining upon the windows of his store, situate at the corner of Union and Weybosset streets, in the city of Providence, the name of “Harson,” and from using said name for the purpose of advertising.

<p>(1) Pleading and Practice. Statement of Cause of Action in Negligence. Bemurrer.</p> <p>A declaration alleging that defendant was the owner of an office-building and operated elevators for the transportation of passengers in said building ; that plaintiff, having business with one of the tenants of defendant, entered one of said elevators ; that defendant’s servant opened the door of the elevator and thereby invited plaintiff to walk out onto the floor of the building before the floor of the elevator was level with the floor of the building', and while the elevator was in motion, whereby plaintiff’s foot was crushed between the floor of the elevator and the floor of the building, caused by the moving upward of said elevator, states no cause of action, it showing that plaintiff was guilty of contributory negligence in attempting to leave the elevator while in motion and before it had reached the level of the floor.</p> <p>Further, the allegation that the opening of the door was an invitation to the plaintiff to walk out. of the elevator is a conclusion of law, and states a proposition to which the court cannot assent, such an implied invitation depending upon the circumstances of the particular case.</p> <p>(2) Bemwrer. Conclusion of Law.</p> <p>A conclusion of law is not admitted by demurrer ; and when the objectionable matter can be rejected as surplusage, the count is good on demurrer.</p> <p>(3) Pleading and Practice. Negligence.</p> <p>A count alleging that after an elevator controlled by the defendant wherein the plaintiff was a passenger had reached the floor where the plaintiff wished to alight, so that the plaintiff could safely step out, the elevator having practically come to a stand-still, the servant of defendant opened the door of the elevator, thereby inviting the plaintiff to leave the elevator, and while the plaintiff was passing out the defendant’s servant caused the elevator to move upward, thereby injuring the plaintiff, is good upon demurrer.</p>

Petition of a receiver of an insolvent mutual insurance company for instructions upon points the nature of which sufficiently appear in the opinion.

Bill in Equity seeking an injunction to restrain the respondents • from closing up a public highway in the city of Providence, which had been abandoned by a resolution of the board of aldermen of said city. The bill alleged that the proceedings by which said street was abandoned were void, and that the obstructions placed in said street by the respondents cut off the light from the building of the complainants.

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

<p>Trespass and Ejectment, This action was commenced "by the plaintiff to recover premises sold under execution in an action. against the daughter of the plaintiff joined with her husband on the antenuptial debt of the daughter. The plaintiff claimed under a deed from her daughter. The judgment-roll of the District Court, printed in blank, showed that the letter ‘£ s ” had been omitted after the word defendant in the blank. The further facts in the case appear from the opinion.</p>

Bill in Equity brought by parties entitled to the beneficial use of an estate against the heirs at law of the testator and the administrator c. t. a., to get in the legal title to the estate.

Assumpsit brought by a husband to recover for services rendered the defendant, his former wife, during their marriage. The facts sufficiently appear in the opinion.

Trespass on the Case for negligence. Plaintiff alighted from a south-bound car of defendant on which he was a passenger, and, passing around the rear of the car on the southbound track onto the north-bound track, was run over by a car upon the latter track and suffered the loss of one of his legs. lie was earning $10 a month and board. After the injury he received one dollar a day as wages.

Bill in Equity to redeem property alleged to have been conveyed by a trust in the nature of a mortgage.

<p>(1) Fiduciary Relations. Guardian and Ward. Mortgagor and Mortgagee.</p> <p>A guardian cannot exercise the power of sale contained in a mortgage to the guardian, executed by the ward prior to the guardianship, and purchase the mortgaged property at the sale. The relations of guardian and mortgagee are antagonistic to one another, and the law will not consider whether or not such a sale in such circumstances is fair or otherwise. This rule of law is not modified by Pub. Laws R. I. cap. 1011 relaxing the rule that a trustee cannot purchase at his own sale.</p>

Assumpsit for breach of contract against a common carrier for wrongfully delivering goods to a consignee. The plaintiff shipped goods from Providence to Baltimore.

<p>Assumpsit upon a policy of life insurance. The facts are stated in the opinion.</p>

<p>Trespass on the Case for negligence. The facts are sufficiently stated in the opinion.</p>

<p>Indictment for murder. The facts are sufficiently stated in the opinion.</p>

<p>(1) Wills. Bequest of Income. Joint Tenancy in Personalty.</p> <p>A testamentary disposition created a trust to continue until the death of the last survivor of the children and grandchildren of the testatrix. It directed the trustee to set apart specific sums for the beneficiaries, among them the sums of $15,000 for C. K. and C. E. respectively. The trustee was to collect the income and pay over the residue thereof, after expenses, to the beneficiaries during life, and further provision was made in case of the death of the beneficiaries, with or without issue.</p> <p>By a codicil testatrix provided as follows : “ 1. I do hereby appoint C. K. and O. E. to be my residuary legatees of all stocks and moneys and goods of any kind which shall remain after the legacies bequeathed in the aforesaid will are apportioned and paid.</p> <p>“2. I do hereby direct that the devises, legacies, and bequests contained in my will for C. K. and O. E. shall be to them and the survivors of them and the heirs of such survivors in case either of them shall die without heirs of his or her body living at his or her decease ; and also that C. K. and O. E. and the survivors of them and the heirs of such survivors shall succeed to, have, and possess the devises, legacies, and bequests in my will contained for any of my other children who shall die without heirs of their bodies living at their decease:”—</p> <p>Held, that the first paragraph of the codicil must be construed as an absolute gift to C. K. and C. E., as joint tenants, of the surplus left after the sums specified in the will had been set apart by the trustee to be held for the benefit of the beneficiaries, such setting apart and holding by the trustee being what was meant by the words “apportioned and paid,” and not as a gift of the income of the surplus.</p> <p>Held, further, that the gift to O. K. and C. E. without more, created a joint tenancy, the statute then in force, Kev. Stat. B. I. cap. 145, § 1, applying only to real estate.</p> <p>(2) Joint Tenancy. Fee Tail Estates. “ Ileirs of the Body." Absolute Gifts.</p> <p>Held, further, that the effect of the second paragraph of the codicil was to give to the survivor of C. K. and C. E., in case either should die without issue living at decease, the income of the sums set apart for their benefit and to create a joint tenancy between them of the income of the sums set apart for the other children of the testatrix who should die without issue living at decease, and not to create an absolute gift to C. K. and C. E. of the sums set apart for their benefit and of the sums set apart for the other children who should die without heirs of the body living at their decease.</p> <p>Although if the words ‘ ‘ heirs of the body ” are used in relation to a gift of personalty in their technical sense, and nothing appears in the will to show that they are not so used, the effect is to create an absolute gift, yet where it is apparent from other portions of the will that they are not so used, but merely in the sense of issue or children, the rule is not applied, and effect is given the intent of the testator.</p> <p>(3) Construction of Will by Parties in Interest.</p> <p>While the construction placed 'upon a will by the parties in interest is not conclusive, it is strong evidence of the construction by persons nearest the testator and who may have known his actual intentions.</p>

<p>Assumpsit. The facts are fully stated in the opinion.</p>

<p>Trespass on the Case for slander. The declaration charged the defendant with uttering the words concerning the plaintiff: i£I will go tell the superintendent and overseer about your taking that sleeve-lining out of the mill,” meaning and intending that the plaintiff stole certain sleeve-lining out of the mill where he was employed.</p>

<p>(1) Liability of Person Convicted of Larceny for Double Value of Property. Conviction. Nolo Contendere.</p> <p>Under the provisions of Gen. Laws R. I. cap. 233, § 16, an action will not lie in favor of a plaintiff to recover the double value of goods stolen where the defendant pleaded nolo contendere to the indictment for larceny and was thereupon placed under the control of a probation officer. Within the meaning of the word as used in said section, a plea of nolo contendere is not a conviction.</p> <p>(2) Nolo Contendere.</p> <p>The plea of nolo contendere does not establish the fact of guilt for any other purposes than that of the case to which it applies.</p> <p>(3) Probation Officer.</p> <p>The placing of an offender in the custody of a probation officer, under the provisions of Pub. Laws R. I. cap. 664, after a plea of nolo contendere, does not amount to a sentence and judgment of the court upon the plea.</p>

Trespass on the Case for deceit. The action was commenced against three defendants, and the declaration alleged that the defendants were the owners of a note payable to the order of one of them; that the payee, with the knowledge and consent of the other-defendants, made certain false representations to the plaintiff; that the other defendants, knowing of such representations, did not contradict them; that they knew said representations were false.

<p>(1) Construction of Statutes. Itinerant Venders.</p> <p>E., a merchant with a permanent place of business in the city of P., in this State, for twenty-four years, temporarily opened a store in the city of W. for the sale of his goods, and sold certain merchandise without having complied with the provisions of Gen. Laws R. I. cap. 163, as amended by Pub. Laws R. I. cap. 826, “ Of itinerant venders —</p> <p>Held, that E. was an itinerant vender within the provisions of the act.</p> <p>Held, further, that the fact that E. offered to comply with the act and was advised by the general treasurer of the State that he was not within its provisions was not a defence.</p> <p>"Where a statute contains its own definition of words used therein, the court has no occasion nor, the language being plain, the right to look elsewhere for their meaning.</p> <p>Although penal statutes are to receive a strict interpretation and general words restrained for the benefit of him against whom the penalty is inflicted, yet when the intention of the legislature is obvious and the language plain, no room is left for judicial construction.</p> <p>(2) Constitutimuil law. '</p> <p>Held, further, that the act was not unconstitutional, as being in restraint of trade and repugnant to the fourteenth amendment to the constitution of the United States. It falls within the police power of the State, and although the restrictions imposed upon trade by its provisions are very stringent, yet, in view of the very broad discretion vested in the legislature to pass laws pertaining to the general welfare, it cannot be regarded as clearly obnoxious to the constitution, and hence the doubt must be resolved in favor of the validity of the act.</p> <p>(3) Constitutional Law. Glass Legislation.</p> <p>The act is not repugnant to the fourteenth amendment of the constitution of the United States forbidding any State to deny its citizens the equal protection of the laws, in that it discriminates against a particular class of persons, and is therefore objectionable as class legislation.</p> <p>(4) Constitutional Law. Cruel Punishments.</p> <p>The penalty prescribed by the statute, of a fine of not less than $100, nor more than $250, and imprisonment for not less than ten, nor more than thirty days, is not violative of article 1, section 8, of the constitution as being cruel or excessive.</p>

<p>(1) Criminal Lorn. Indictment.</p> <p>An allegation, in an indictment charging the larceny of corporate property, that the corporation was “duly chartered and organized under the laws of the State of Rhode Island ” is surplusage, and there is no occasion for ■ proving it. All that is, needed in an averment of ownership in a corporation is to state the fact of ownership in a corporate body and to give the name of the corporate owner correctly.</p> <p>(2) Indictment. Variance.</p> <p>Semble, an indictment for larceny alleged that the owner of the property stolen was a corporation “chartered under the laws of the State of Rhode Island,” while the evidence showed that it was chartered by the “ State of Rhode Island and Providence Plantations”:—</p> <p>Held, that the variance was trivial and not of such a nature as to warrant quashing the indictment.</p>

Assumpsit. The action was commenced in the District Court of the Seventh Judicial District and was certified to-this court, jury trial waived, upon an agreed statement of facts, as follows: “1. That Clarence E. Crafts is a citizen of the town of East Providence and an owner of real estate therein. “2. That on September 20th, 1898, a tax of $20.00 was assessed on said real estate, valued by the assessors at $1,600.00. “3.

<p>Certiorari. The facts appear in the opinion.</p>

<p>. Bill in Equity and Petition in Equity, the latter under the powers and jurisdiction of Gen. Laws B. I. cap. 263.</p> <p>The complainants were the city of Newport and Pardon S. Kaull, who had been in January, 1900, elected by the city ■council of the city of Newport chief of police of said city.</p> <p>The respondents were the members of the board of police commissioners appointed by the governor, in accordance with Pub. Laws B. I. cap. 804, passed May 31, 1900.</p> <p>The bill and petition set forth that the complainant Kaull had been elected chief of police of the city of Newport in January, 1900, and was entitled to hold said office for the term of one year, unless removed by the mayor of said city; that May 31, 1900, the General Assembly passed chapter 804, Pub. Laws B. I., without notice to or the knowledge of said city or its city government; that under the provisions of said act the governor appointed the respondents as members of the board of police commissioners for the city of Newport, who qualified and proceeded to execute the powers set forth in said act; that acting under the powers of said act the respondents elected one Benjamin PI. Bichards chief of police ■of the city of Newport; that the latter qualified and proceeded to execute the powers of chief of police, and excluded the complainant Kaull from said office.</p> <p>The bill charged that chapter 804 was unconstitutional because it infringed the right of local self-government in this State, and more especially article I, sections 13 and 23 ; ■ article III; article IV, section 10 ; and article X, section 2, of the constitution of Bhode Island, and article XIV, section 1, of the amendments to the constitution of the United States. That the unconstitutional provisions so permeated the act as to infect the whole thereof.</p> <p>, The bill prayed (1) that the said act might be declared unconstitutional; (2) that all appointments made under said act might be adjudged invalid ; (3) that the respondent board of police commissioners might be enjoined from exercising any rights under said act; (4) that the respondent Richards might be enjoined from exercising any rights under said act and appointment, and ousted from the office of chief of police ; (5) that the complainant Kaull might be adjudged entitled to the office of chief of police.</p> <p>In view of the opinion of the court, it is not necessary to-refer to the act as a whole; the sections considered by the court are : Section 1 — authorizes the governor with the advice and consent of the senate to appoint three qualified electors of the city of Newport as a board of police commissioners Section 2 — authorizes said board to appoint, remove, organize, and control the chief of police and the police of said city ; to make all needful rules and regulations for their efficiency , vests all the powers then in the mayor, board of aldermen, and city council, relative to police, in said board.</p> <p>All other facts appear in the opinion.</p>

<p>Trespass on the Case for negligence. The facts are -stated in the opinion. The gravamen of the declaration was as follows: “And it was the duty of the defendant then and there by its said agent or servant to use due care in driving, controlling, and managing its vehicle and horse so as not to collide with and run against the plaintiff, then and there riding said bicycle along said highway. Yet the said defendant did not observe its duty, but, on the contrary, so carelessly and improperly drove, governed, managed, and directed said horse and vehicle by its said agent or servant that by and through the carelessness, negligence, and improper conduct of the defendant the said horse and vehicle of the defendant ran against the plaintiff,” etc. The defendant •objected to the introduction of any testimony as to the character of the horse under the above count.</p>

<p>Bill in Equity to establish a lien on certain stock conveyed by the respondent to his wife in fraud of the rights of the complainant, a judgment creditor. The facts are fully stated in the opinion. The case came before the court upon complainant’s motion to dissolve an injunction theretofore granted restraining the master from selling the stock under a decree of the court previously entered.</p>

Bill in Equity brought to rescind an agreement, cancel bonds, and discharge a mortgage. The facts are sufficiently stated in the opinion.

<p>(1) Pleading and Practice. Taxation. Becovery of Illegal Assessment.</p> <p>An action will not lie against the collector of taxes of a town in favor of a plaintiff to recover the amount of a tax alleged to have been illegally-assessed against and compulsorily paid by the latter.</p> <p>American Banh v. Mv/mford, 4 R. I. 418, limited.</p> <p>Semble, Gen. Laws R. I. cap. 86, § 12, is broad enough to embrace the case at bar, and the action should be brought against the city treasurer and in accordance with the provisions of said section.</p>

Trespass on the Case for trover and conversion. At the trial the defendant offered to show what the value of the buggy was at the time of the conversion. The testimony was excluded. For a former opinion in this case, see 21 R. I. 537.

Bill in Equity seeking to establish a trust of a certain fund standing in the name of the respondent, and praying for an accounting. The court by rescript, equity number 4,649, filed May 9, 1900, found the trust established and ordered an accounting.

Petition eor Writ op Mandamus. The petition sets forth that at a caucus for the election of a ward committee for the fifth ward of the city of Pawtucket, the petitioners received a majority of the ballots cast by the electors, as members of the ward committee as counted and announced by the warden, but that the warden refused to issue certificates of election; that upon a recount the petitioners were declared elected and certificates of election issued to them, by virtue of…

Debt, for rent. The plaintiff was lessor and the defendant lessee of certain premises in Providence used as a dwelling-house. The action was for the last quarterly installment of rent due under the lease. The defendant admitted that he owed the rent, but pleaded and proved that he had paid sundry water-bills to the city of Providence for water used upon the premises during his tenancy, and sought to set off these bills against the rent.

<p>Assumpsit on book-account. The case came before the court on exceptions filed by the defendant and by the claimant of the personal estate of the defendant attached in the hands of a third party as trustee. The bill of exceptions was as follows:</p> <p>“ The defendant owed the plaintiff a bill for groceries. He began to trade with the claimant, Carpenter, for cash, but becoming in debt to the amount of about five dollars Carpenter insisted on getting an assignment of the defendant’s wages. Carpenter did not know anything about the-plaintiff. The defendant made an assignment to Carpenter April 30, 1900. He then owed him about five dollars. On June 7, 1900, plaintiff garnished $22.50 of the wages of the defendant. Carpenter claimed the wages under the assignment. In the District Court the assignee testified that he or his man had drawn the wages of the defendant; that the assignment was to secure him for groceries that had been provided and which would be provided by him for the defendant’s family during the life of the assignment. Claimant would take the wages and pay himself what was due and hand the balance to- defendant. In answer to a question if he gave the defendant any part of the wages, or any money, he answered: “Yes, perhaps a dollar.” In answer to the-question : “ Did you give him money to pay his rent?” he replied: “Perhaps so; perhaps my clerk did, if he needed it.” At the time of the attachment defendant owed assignee $15.32 for groceries. The court ruled that the assignment was invalid as a matter of law. The claimant insisted that it was good, at least so far as his bill for $15.32 was concerned, but the court held otherwise and charged the garnishee for $13.50, because $10 were exempt from attachment. The defendant claimed that this $10 was not to be considered in the question at all. The court ruled otherwise, and the defendant and the claimant took exceptions to the rulings of the court.”</p>

Trespass quare clausum fregit. The facts of the case sufficiently appear Horn the opinion. The requests for rulings, as they were not considered by the court, are not stated.

<p>Bill in Equity filed under Pub. Laws R. I. cap. 651, of May 2, 1899. The statute is substantially set out in the opinion and the facts sufficiently stated therein. An answer was filed but was not passed upon by the court.</p>

The facts were these: A non-resident nephew of the testator, after the expiration of forty days from the entry of the order admitting the will to probate, filed his petition in the Probate Court, setting out that he was the sole heir and next of kin of the deceased; that the only notice given of the pendency of the petition for the probate of the will was by publication in a local weekly newspaper; that he was ignorant of said notice, and heard of the death of the testator…

<p>Trespass on the Case for negligence. The defendant was impleaded as “Amos C. Barstow, trustee under the last will and testiment of Amos C. Barstow, deceased".” The facts are fully stated in the opinion. Por previous opinion in this case see Parmenter v. Barstow, 21 R. I. 410.</p>

<p>Bill in Equity setting out that the respondent had recovered judgment against the complainant; had levied execution upon his real estate and that sale of said real estate had been advertised ; that liquidators of the respondent corporation had been appointed by the Superior Court of the Province of Quebec, the corporation being insolvent; that the liquidators had never been made parties to the cause. The bill charged that for tile reasons stated the proceedings were irregular, and prayed that further proceedings might be enjoined until the liquidators were made parties to the action; and, further, that the judgment theretofore entered' might be vacated and annulled.</p>

<p>(1) Elections. Supervisors. City and Ward Committees. Mandamus. Construction of Statutes.</p> <p>Gen. Laws R. I. cap. 11, § 32, has extended the privilege of submitting lists of electors, from which supervisors of elections shall be selected by the board of aldermen of a city, to both the city and ward committees.</p> <p>Such power conferred upon a ward committee is not limited to cases where the city committee has neglected to present such list, but is coextensive with the right of the city committee.</p> <p>Semble, that the board of aldermen may select the supervisors in part from either list.</p> <p>(2) Mandamus.</p> <p>Where a board of aldermen selected supervisors of election from a list presented by the majority of a ward committee, such action was prima facie lawful, and the question of fraud in the procuring of a signature of a member of the ward committee cannot be reached by mandamus. Mandamus does not lie to undo what has been done, nor to try a disputed title to office.</p>

<p>Assumpsit for money paid by plaintiffs on account of a contract mutually rescinded by the parties. A full statement of the facts in the previous trial of the case (which were substantially the facts in the present trial) can he found in the opinion, Fleming v. Hanley, Hoye & Co., 21 R. I. 141.</p>

<p>(1) Mortgages. Assignment. Building and Loan Associations.</p> <p>B. obtained a loan from a building company December 2, 1896, for which he executed his negotiable promissory note payable one year after date, with interest payable semi-annually in advance, the note being secured by a mortgage. At the same time B. entered into an agreement with the building company in writing, by the terms of which he agreed to pay the sum of §18 a month for the period of one hundred and twenty months. In consideration of these payments the building company agreed to pay the interest on the note as it accrued, and to pay the principal of the note on or before ten years from the date of the agreement. The note and mortgage were transferred by the building company to W. January 15, -1897, but the transfer was not recorded until February 27, 1899. B. made various small payments to the building company from the date of the note and mortgage until May 14, 1898, the amount of such payments exceeding the sum of $18 a month. The building company paid the semi-annual interest to W. in June and December, 1897. In May, 1898, the company assigned for the benefit of creditors. B. was ignorant of the transfer of the note and mortgage until this time. Thereafter he paid the interest semi-annually to W. until December 2, 1899. W. was a purchaser for full value. December 4, 1899, B. tendered to W. the amount of the note, less the sums paid the building company in excess of what the semi-annual interest for the intervening period amounted to, and demanded a transfer of the note and mortgage to a third party. W. demanded the amount of the principal, viz.: $1,500 with interest to time of demand. Upon a bill brought to compel such transfer :—</p> <p>Meld, that the effect of the agreement between B. and the building company was to constitute the latter the agent of B. in paying the interest and principal of the note, and, as incidental thereto, to negotiate and transfer the note and mortgage, a proper construction showing that the understanding of both parties was that the note and mortgage were to be transferred to a third party.</p> <p>Meld, further, that by virtue of the agreement the ordinary relations of payor and payee of a note secured by mortgage were changed between the parties, a new method of paying the indebtedness by B. being substituted, and the company assuming the payment of the interest and principal.</p> <p>Meld, further, that the act of the building company in transferring the note and mortgage to "W. was in law the act of B., and hence he could not complain that the transfer was not recorded.</p> <p>Meld, further, that the bill must be dismissed.</p>

<p>Bill in Equity seeking to redeem land from a mortgage. The facts were as follows : On June 20, P896, the respondent entered into an agreement with the complainant to loan the latter $5,000, and as security therefor the complainant agreed to convey the premises in question to the respondent. On the same day the complainant conveyed the premises by warranty deed to the respondent. The final clause of the agreement was as follows: ‘£ And it is further agreed by and between the parties hereto that should the [complainant] make a default in the payment of the five thousand dollars loaned to him under this agreement the said [respondent] shall have the right to enter upon, take possession of, and enjoy the said lands and tenements as his own, anything in this agreement to the contrary notwithstanding.” The money due was not paid. March 2, 1897, the complainant executed and delivered to the respondent a quitclaim deed of said premises, and on the same day the latter entered into a written agreement with the complainant to reconvey the premises. The agreement was as follows: “The [respondent] agrees to sell unto the [complainant] all that certain land and premises . . . and further agrees that on the 15th day of April, 1897, on receiving from the [complainant] the sum of . , he will execute and deliver ... a proper deed of conveyance . . . It is further understood and agreed that the payment of said sum ... on the said 15th day of April, 1897, without further delay is a material consideration, moving unto the [respondent] in the making of this agreement; that if said money be not paid on said day before three o’clock at 314 East Eighteenth street in the city of New York, at which time the said deed will be delivered, then this contract to be void and of no effect.” The complainant claimed that the deeds, although absolute in form, were, in fact, mortgages. The respondent contended that the deed of March 2, 1897, to him was for the purpose of foreclosing and putting an end to the equity of redemption of the complainant, and that the agreement of that date was for the purpose of enabling the complainant to purchase the estate on the terms therein stated. The cause was heard by the full bench on issues of fact on oral testimony and a decree entered dismissing the bill. Thereupon the complainant moved, under the provisions of Gen. Laws R. I. cap. 246, § 2, that the decree be set aside and the cause reheard.</p>

<p>Bill in Equity for an account and to determine the compensation of a trustee. The facts are fully stated in the opinion.</p>

<p>(1) Intoxicating Liquors. Statutes. Former Jeopardy.</p> <p>Under the provisions of Gen. Laws R. I. cap. 92, § l, evidence of the sale of intoxicating liquor by the defendant, a licensed liquor seller, on Sunday, is admissible on the trial of an indictment charging a common nuisance as directly tending- to prove the charge, irrespective of the fact that a complaint is pending charging the defendant with the violation of Gen. Laws R. I. cap. 102, § 25, of sales on-Sunday, and referring to the particular sale inquired about.</p> <p>(2) Construction of Statutes. Intoxicating Liquor.</p> <p>The mere fact that each separate sale made on Sunday is a distinct offence and punishable under another statute in no way interferes with the right to use such evidence on an indictment for keeping a nuisance.</p> <p>(3) Intoxicating Liquor. Lager-Beer.</p> <p>Under the decisions of this court lager-beer is both a malt and an intoxicating liquor. There is therefore no occasion for the State to prove in addition to the sale of lager-beer the further fact that it is an intoxicating liquor.</p> <p>(4) License. Intoxicating Liquor.</p> <p>A license to sell intoxicating liquor is not a defence to an indictment charging a common nuisance.</p>

Petition to enforce a mechanic’s lien. Pending the proceedings a mortgagee of the estate commenced to foreclose under the power of sale in a mortgage executed prior to the contract under which the lien was claimed. A preliminary injunction was granted.

Assumpsit on a promissory note. The plaintiff alleged that the note was made by the defendant to the order of one Kerr, on demand, with interest payable annually at six per cent. He further alleged that he bought the note from Kerr for value.

Petition to enforce a mechanic’s lien. The facts were these : The petitioners, in common with other material-men and subcontractors, executed releases of their liens upon the property of the respondent, for. the purpose of enabling the contractor to obtain a payment upon the contract. The petitioners claimed that the releases were signed upon the undeiu. standing that the full amount of the payment, viz., $1,000, should be paid by the respondent owner to the contractor.

Trespass on the Case for negligence. The defendant, riding a bicycle, was approaching a gate-way about eleven feet in width, with granite posts on either side of it. The plaintiff was approaching the gate-way along the sidewalk, walking at right angles to the course taken by the defendant. A fence separated the sidewalk from the lot through which the defendant was riding. The defendant was riding on his left, close to the gate-post on that side.

Trespass quare clausum fregit. The defendant filed the plea of soil and freehold, and other special pleas not considered by the court. The facts are sufficiently stated in the opinion.

<p>(1) Equity. Injunctions. Beturn of Process. Fraud. Contradiction of Becord.</p> <p>A bill in equity will lie to enjoin an action at law on a judgment obtained by the fraud of the officer charged with the service of the writ in the original action. The contradiction of the return of the officer and the impeaching of the record in the original action on such a bill is not within the rule laid down in Angelí v. Bowler, 3 R. I. 77; Estes v. GooTce, 12 R. I. 6 ; Barrows v. Bubber Co., 13 R. I. IS.</p> <p>Semble, it is-a general principle of equity that a judgment at law procured by fraud may be enjoined at the suit of the injured party and the plaintiff restrained from enforcing it.</p> <p>(2) Equity. Adequate Bemedy at Law.</p> <p>Adequate relief cannot be obtained at law so as to exclude the right to resort to equity, for the making of a false and fraudulent return of process by an officer, through which judgment is obtained against the complainant and his property subjected to attachment in an action upon such judgment, by allowing the complainant to resort to an action against the officer after he has been compelled to satisfy the judgment.</p>

Bill in Equity brought to rescind an agreement, cancel bonds, and discharge a mortgage.

<p>(1) Equity. Rescission of Agreement. Vendor’s Lien. Pledges.</p> <p>Decision in Smith Granite Go. v. Pfetoall & Go., 22 R. I. 220, affirmed.</p>

Trespass on the Case for negligence. The facts are sufficiently stated in the opinion. The illegality in the writ consisted in the omission of the words “ that is due” in the affidavit.

<p>(1) Street Railways. Appeals from Town Councils. Statutes.</p> <p>The charter of a street railway company provided that the conditions under which it could operate its road were to be fixed by the town council. No appeal was provided for in the charter :—</p> <p>Held, that an appeal would not lie, under Gen. Laws R. I. cap. 248, § 1, from an administrative order of the town council, which it had the authority to pass.</p> <p>(2) Appeal. Construction of Statutes.</p> <p>Gen. Laws R. I. cap. 248, § 1, does not confer a general right of appeal ■ from every order of a town council, but merely limits the time within which such right, otherwise given, must be exercised.</p> <p>Citing Walsh v. Town Council, 18 R. I. 88, and Brown v. District, 21 R. I. 508.</p> <p>(3) Street Railways. Contracts. Construction.</p> <p>The charter of a street railway company authorized the company to operate its road in such streets as should be from time to time fixed and determined by the town councils . . : with the assent of said corporation in writing expressed and filed with the town clerks of said towns, and upon compliance with such terms and conditions and under such rules and regulations as said town councils might impose. It further provided that the town, council at any time after a year from the opening of the road might by vote determine as to said track that the same or part thereof be discontinued, and thereupon such portion of thé tracks should be taken up. The town council passed an ordinance permitting the company to use certain streets and prescribed the use of a certain form of rail. The company filed their assent to the ordinance. After the expiration of a year the town council ordered the company to change the form of rail and to pave a portion of a street:—</p> <p>Held, that the assent of the company related only to the streets through which the road should go, and not to the terms and regulations adopted by the council.</p> <p>Held, further, that the assent of the company did not constitute a contract with the town the provisions of which the latter could not change.</p> <p>Semble, that, assuming such consent to constitute a contract, it would still be subject to the reasonable and necessary requirements of the town for the purpose of complying with their statutory duty of providing safe and convenient highways.'</p>

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

Bill in Equity seeking the specific performance of a contract. The defendants moved for surety for costs on or before September 29, 1900. On that date the court ordered that, such surety should be furnished on or before October 6, 1900. Such order not having been complied with, October 12, 1900, defendants moved that the suit be dismissed.

<p>(1) Assignment of Mortgages. Equity Pleading and Practice. Parties,</p> <p>The widow of a mortgagor who is entitled to dower in the mortgaged property may he regarded as an incumbrancer within the contemplation of Gen. Laws R. I. cap. 201, § 1. So regarded, she is a sufficient party to maintain a bill, under the provisions of said section, without the joinder of the remainder-men.</p> <p>Affirming Atwood v. Charlton, 21 R. I. 568.</p> <p>(2) Equity Pleading and Practice.</p> <p>An allegation in a hill brought to require the assignment of a mortgage under Gen. Laws R. I. cap. 207, § 7, that “the complainants tendered to the respondent the full amount due upon said note secured by said mortgage, to wit, . . . including interest to the date of said tender, to wit, . . . and tendered for his signature an assignment in proper form, duly stamped, and assumed the expense of making such an assignment and conveyance and obligated themselves to have the same recorded, and tendered the amount of money due for advertising said property at said mortgage sale up to the time of and including the date of said tender, to wit, . . . ,” states a sufficient compliance with the provisions of the statute as to the expenses of transfer.</p>

<p>(1) Taxation. Legal and Equitable Owner.</p> <p>Gen. Laws R. I. cap. 45, § 4, provides that taxes on real estate shall be assessed to the owner. February 28, 1898, a tax was assessed against the plaintiff for the land in question. Plaintiff had an oral agreement for the purchase of the land, but did not receive the deed or pay for it until March 14, or take possession until after that date :—</p> <p>Held, that he could not be regarded as an equitable owner prior to that time, and was not liable for the tax.</p>

Quo Warranto. At the democratic caucus of the fifth ward of the city of Pawtucket, held April 16, 1900, certain parties were declared to have been elected as members of the ward committee for the political year ensuing. Thereupon the complainants petitioned the board of aldermen of said city, sitting as a board of canvassers, for a. recount of said ballots under the provisions of Pub. Laws R. I. cap. 662, § 13, of May 18, 1899.

Trespass on the Case for negligence. The plaintiff was an employee engaged in unloading a coal-cart which was drawn up close to the curb-stone on the street along which the defendant’s cars ran. Further facts sufficiently appear in the opinion.

<p>(1) New Trial. Indictment. Control of Doclcet.</p> <p>Where there were three indictments on the calendar for the day against the defendant, a new trial will not be granted because the attorney-general was allowed to try one of the indictments out of its regular order on the calendar, the defendant haying been duly notified that all the indictments were down for trial on the day in question and failing to show good cause for a continuance.</p> <p>The attorney-general has control of his docket, and after it has been set down for trial and due notice given he may try the cases in such order as he sees fit.</p> <p>(2) New Trial. Indictment. Illness of Defendant.</p> <p>The fact that defendant produced a physician’s certificate that he was ill and unable to proceed with the trial is no reason for granting a new trial where it appears that the court sent another physician to examine him, in company with the physician who had given the certificate, on the morning of the day of trial, and the opinion of both.physicians showed that the defendant had recovered from the illness set out in the certificate.</p>

Certiorari. A license was granted by the license commissioners of the city of Providence for the location of a brewery adjoining Roger Williams park, against the objection of the petitioners.

<p>(1) Probate Law and Practice. Actions on Bonds. Account.</p> <p>In a suit upon the bond of an executor brought by a residuary legatee, alleging as breaches the failure to exhibit a particular inventory of the personal estate and failure to file an account of his administration after being cited so to do, on demurrer it was :—</p> <p>Held, that the action could be maintained under the provisions of Gen. Laws R. I. cap. 220, §§ 20, 32-34, the remedies provided hi Gen. Laws cap. 218, { 29, being without prejudice to any other remedies. Distinguishing Brown v. Staples, 18 R. I. 117.</p> <p>Qucere, whether the action could be maintained by plain legatees.</p>

' Assumpsit to recover for services rendered as tutor of defendant’s minor son under a quasi-contract as for necessaries furnished. The facts are fully stated in the opinion.

<p>Trespass on the Case for negligence. The facts are sufficiently stated, in the opinion.</p>

<p>(1) Bankruptcy Act.</p> <p>The proceeds of attached property in the custody of the court pendente lite, under the provisions of Gen. Laws R. I. cap. 251, § 3, stand in the place of the property attached, and the attachment lien is, by virtue of the United States bankruptcy law of 1898, section 61 (c), dissolved if the proceedings in bankruptcy were commenced within four months after ’ such attachment.</p>

<p>(1) Equity. Mandatory Injunctions. Mo Adequate Bemedy at Low.</p> <p>A bill seeking a mandatory injunction to compel the return of certain books, which shows the books to have great historic value but no ascertainable value in money and alleges that the complainant has exhausted his remedy at law without effect, states a case for equitable relief.</p>

<p>Petition por a Mechanic’s Lien. The respondent entered into agreements with Jonathan W. Cooke, of Cranston, for the conveyance of the lots in question by two separate instruments in writing, dated December 14, 1899, and January 26, 1900, respectively. #</p> <p>By the terms of the first agreement, for the sale of lot No. 192, the respondent agreed to advance to said Cooke the sum of $350 in weekly sums to pay for labor and materials in building a cottage 24 x 28 feet in dimensions on said lot, said Cooke to furnish at his own expense the balance of materials to finish said cottage, and all work on the same to be done before May 16, 1900 ; and therein Cooke agreed to purchase the premises and pay the sum of $500 therefor, as stipulated, within five months from the date of the contract, with interest at six per cent., and upon such full payment the premises were to be conveyed to said Cooke by a proper deed thereof.</p> <p>The contract further stipulated that upon default upon the part of said Cooke the agreement to sell became void and the vendor thereupon retained all moneys advanced and all improvements placed upon the premises by the vendee.</p> <p>Under the second agreement, for the conveyance of lot No. 193, the respondent Blair agreed to advance to said Cooke the sum of $500 in weekly sums to pay for labor ánd materials in building a house on said lot, and said Cooke was to furnish at his own expense the balance of materials to complete the house by June 1, 1900, and said Cooke agreed to purchase said lot No. 193 for the sum of $650 and to pay therefor within five months from the date of the agreement.</p> <p>The petitioners furnished to Cooke the materials for the houses upon both lots, as required during the progress of the work, and charged the same to him. The amount of their claim for materials actually furnished was $833.77.</p>

<p>(1) New Trials. Concurrent Jurisdiction of Common Pleas and Appellate Divisions. Accident and Mistake.</p> <p>For the period of six months after the entry of judgment by default the jurisdiction of the Common Pleas Division, under Gen. Laws R. I. cap. 246, § 2, and of the Appellate Division, under Gen. Laws R. I. cap. 251, § 2, to grant a trial on the ground of accident and mistake, is concurrent. The decision of a petition by either division in such a case is conclusive.</p>

<p>(1) Executions. Judgments. Levy and Sale.</p> <p>Where there are irregularities in the proceedings upon the levy and sale under an execution which make the sale void, there is no satisfaction of the execution, and the judgment remains in force unless the execution has become void through lapse of time.</p> <p>(2) Executions. Sheriff’s Deed. Estoppel to.deny Consideration.</p> <p>The grantee under a sheriff’s deed, upon a sale of real estate under an execution, is not estopped to deny the payment of the purchase price by the acknowledgment of the sheriff of its receipt contained in the deed. Therefore upon an issue as to the satisfaction of an execution through the receipt of the judgment debt by the sheriff upon a sale of the estate, the non-payment of the purchase-money may' be shown by the grantee.</p> <p>(3) Execution. Abandonment of Levy and Release of Lien.</p> <p>Under the provisions of Pub. Stat. E. I. cap. 222, § 20, where an execution is not levied before the return-day thereof the property attached is discharged from such attachment; but by Pub. Stat. E. I. cap. 223, § 15, the sale is allowed to be made after the retum-day. An execution was levied upon certain land and the land sold under the levy. On account of irregularities the sale and deed were void. A new levy was made before the return-day of the execution and sale of the land made after such return-day. Before the second levy the judgment debtor had parted with his title:—</p> <p>Held, that the second sale was valid and passed the title that the judgment debtor had in the land at the time of the original attachment. The execution was unsatisfied and levied within the time prescribed by law to preserve the attachment.</p>

<p>(1) Evidence. Assault and Battery.</p> <p>In an action of trespass for assault and battery evidence as to the peaceable character of the defendant is inadmissible.</p> <p>(2) New Trial. Bill of Exceptions.</p> <p>When an application is brought in the Appellate Division in the form of a bill of exceptions to review rulings of the Common Pleas Division, it will be treated as an application for a new trial and cognizance taken of it as such, since a bill of exceptions lies only from a District Court.</p>

<p>Trespass on the Case for negligence. The facts fully appear in the opinion.</p>

<p>Trespass on the Case for negligence. The facts are fully-stated. in the opinion.</p>

<p>(1) New Trial. Admission of Evidence.</p> <p>A new trial will not be granted because of the refusal of the court to charge the jury that certain evidence had no bearing on the case (assuming such evidence to have been irrelevant), where the evidence in the case, disconnected from the irrelevant, was sufficient to sustain the verdict, and the evidence objected to was neither injurious nor prejudicial.</p>

<p>(1) Equity. Mistake. Condemnation.</p> <p>In 1891 the city of P. condemned certain lots belonging to T. He appealed from the award, and the complainants also appealed, on the ground that they were the owners of the land laid out as streets on the plat. The jury found that the title to the lots and streets was in T., and that the value of the land covered by the streets was nothing. Pending a petition for a new trial, the complainants gave a deed to T. for the lots, and T. gave them a deed to the streets. The petition for new trial was denied.</p> <p>On a bill in equity brought in 1900, seeking equitable relief against the city on the ground of a mistake in making the agreement between the complainants and T. by which T. released the city :—</p> <p>Meld, that the purpose of the bill was to obtain a new trial of a case decided nearly eight years ago.</p> <p>Meld, further, that a mistake between the complainants and T. gave the former no right to relief against the city.</p> <p>Meld, further, that the deed given by T. conveyed at most but his right of recovery, which the jury found, as to the streets, was nothing.</p> <p>Meld, further, that equity cannot recognize the doctrine that a party, after settling his claim for land, can give an agreement to an unsuccessful. claimant which shall be of sufficient force to overcome the verdict of a jury and the decision of the court on a petition for new trial.</p> <p>Held, further, that the demurrer to the bill should be sustained.</p>

<p>(1) Equity Pleading and Practice. Guardian and Ward. Lunatics.</p> <p>In a bill in equity seeking to enforce payment of a debt out of the estate of a lunatic, and calling for an accounting, both the lunatic and his guardian are proper parties defendant.</p>

<p>(1) Nuisances. Injunctions. JSquity.</p> <p>A bill in equity seeking to enjoin the erection of a brewery, which does not set out the location of the complainants’ residences with reference to the defendants’ estate with sufficient definiteness to show that the annoyances threatened would be appreciable to them, nor allege any threats or facts from which threats can be inferred to conduct and operate the brewery so as to make it harmful to. the complainants from the manner of its operation, states no case for an in junction.</p> <p>(2) JSquity. Damnum absque injuria.</p> <p>The fact that the location of a brewery will result in the transportation over the tracks of a street railway company (licensed to carry freight and passengers) of a largely increased quantity of merchandise, resulting-in additional annoyance to parties residing- on the line of the road, is damnum absque injuria.</p>

<p>Bill in Equity for partition. The facts appear in the opinion.</p>

<p>Teespass on the Case for negligence. The facts appear in the opinion.</p>

<p>(1) Assumpsit. Acaowut. Partnership.</p> <p>A. and B. agreed to share the gains and losses of a particular adventure. A. furnished a certain sum of money and loaned B. an equal amount to enable him to furnish his share of the capital Held, that assumpsit would lie in favor of A. to recover the money loaned.</p>

<p>(1) Insurance. Receivers. Judgments.</p> <p>Where an action was commenced in the courts of another State against a domestic insurance company, and, pending the action, a judgment of dissolution was pronounced and a receiver appointed under Gen. Laws R. I. cap. 181, §§ 4-11, the judgment subsequently rendered against the company was without legal effect and not binding upon the receiver.</p> <p>(2) Receivers. Judgments.</p> <p>Prom the time of the entry of the decree the receiver was clothed with the authority which the corporation previously possessed with regard to the management of its affairs for the purpose of winding it up, and any agreement made by the corporation or its counsel subsequently to that time in submitting to the entry of a judgment against the corporation was void.</p>

<p>Complaint under Gen. Laws R. I. cap. 79, § 18. Certified to the Appellate Division upon the constitutionality of -act. The facts are fully stated in the opinion.</p>

<p>(1) Pleading and Practice. Demurrers.</p> <p>A demurrer, in whatever stage of the pleadings it is taken, reaches back in its effect through the whole record.</p> <p>(2) Contracts.</p> <p>A declaration alleged that X. was indebted to the plaintiff upon a judgment ; that Z. was indebted to the plaintiff for work and labor'(but not by judgment); that, the plaintiff having taken steps to attach the property of X. and Z., the defendant promised to pay the plaintiff the amount of their indebtedness, such amount to be determined by arbitration, legal proceedings, or mutual agreement, in consideration that the plaintiff should assign the plaintiff’s claims against X. and Z. to the defendant. The declaration further averred.that the plaintiff had performed his part of the agreement and had been ready to have the amount due him determined by arbitration, legal proceedings, or mutual agreement, but that the defendant informed the plaintiff that he refused to carry out said agreement or to have said amount determined as provided. On demurrer to the declaration :—</p> <p>Held, that the declaration did not state a present cause of action, the claim of the plaintiff against Z. being undetermined, and the “ arbitration, legal proceedings, or mutual agreement” contemplated by the contract being proceedings between the plaintiff and X. and Z. which should definitely fix the amount of their indebtedness to the plaintiff before the assignment of the claims to the defendant.</p> <p>Held, further, that while the refusal of the defendant to be bound by the agreement excused the plaintiff from a tender of an assignment of the claims, it did not excuse him from performance of the condition precedent to the right to demand payment.</p> <p>(3) Statute of Frauds. Promise to pay Debt of Another.</p> <p>Semble, that the contract set out in the declaration showed a promise by the defendant to buy the debts and not to pay them, and hence was not within the statute of frauds.</p>

<p>Assumpsit for breach of promise of marriage. The facts are fully stated in the opinion.</p>

<p>Indictment charging a violation of Gen. Laws R. I. cap. 102. The facts are stated in full in the opinion.</p>

<p>(1) Statute of Limitations. Fart Payment. Husband and Wife. Separate Estate of Married Woman.</p> <p>Where a mortgage note signed by husband and wife was invalid as against the wife at the time it was signed, by reason of her coverture, a payment thereon made by the wife after the decease of her husband does not validate a mortgage upon her separate real estate given to secure the payment of such note.</p> <p>As the husband had deceased prior to the payment, the wife could not be regarded as his agent, nor was there any moral obligation resting upon the wife to repay a loan made to the husband for his own purposes; hence the payment was made under circumstances repelling the inference of a new promise.</p> <p>(2) Husband and Wife. Principal and Surety.</p> <p>Regarding the mortgage by the wife as surety for the debt of the husband, unless the mortgage debt was enforceable against the latter the surety was not bound.</p> <p>(3) Title by Possession.</p> <p>Under the provisions of the statute of possessions of this State, whenever the conditions under which it takes effect have been completely fulfilled, the title or estate itself is transferred proprio vigore to the possessor of the land in question.</p> <p>In ÍSU A., a married woman, the owner of certain premises, executed a mortgage deed, in conjunction with her husband B., to C. to secure the payment of a demand note signed by A. and B. At the time of the execution of the note and mortgage a married woman was without power to make a valid promissory note. B. died; in 1892 A. paid $29 on account of the note; there was no other recognition by either A. or C. of the mortgage as a lien until 1900 :—</p> <p>Held, that A. was entitled to a perpetual injunction against C.</p>

<p>Replevin. The facts are fully stated in the opinion.</p>

<p>Petition for an opinion, asking the court for a construction of that portion of a will which states the powers of the trustees appointed thereunder, and for an answer to the question whether such trustees can convey their undivided interest in the real estate devised by the will to a corporation, the sole assets of which shall consist of the real estate belonging to the testator at the time of his decease, taking in exchange therefor shares of the capital stock of the corporation which shall bear the same proportion to the entire capital stock as the present undivided interest of the trustees bears to the entire interest therein.</p> <p>The petition states that such real estate is considerable in amount; that it is widely scattered ; that it cannot be advantageously partitioned, and cannot be sold to advantage as a whole or in large tracts, while there are constantly recurring opportunities to sell small parcels.</p> <p>The attempt to make frequent sales of small parcels is hampered by the fact of the large number of parties necessary to sign such deeds, and such sales would become well-nigh impossible were the title to become further divided by the death of any of the present parties in interest, leaving minor children.</p> <p>There are two sets of trustees appointed by the will. The first trust is created, by the fifth clause of the will, for the benefit of the wife of the testator during her life, and in this clause is the following language : “care being taken that said one-fifth shall be comprised of • corporate stocks, bonds, and other productive estate which will be the least liable to taxation and the least liable to deteriorate in value or income, and to keep the same safely invested and held, changing such investments only when necessary to pi’event loss.”</p> <p>The second trust is created, by the sixth clause of the will, for'the benefit of the daughter of the testator. The trustees thereunder are to ‘ ‘ take the seisin and possession of said one-fourth part of said residue, to keep the same safely invested in good safe interest-bearing stocks, bonds, or other productive estate.”</p> <p>In the seventh clause of the will is the following language: ‘ ‘ I hereby authorize. and empower my said trustees in their discretion to sell and dispose of any portion or portions of the estates held by them under and upon the trusts herein declared at public or private sale . . . and to execute, seal, acknowledge and deliver any deeds, leases,, or other instruments necessary or proper for the execution of the trusts herein created and the powei’s herein granted, and to receive deeds, leases, and other instruments from others. If any portion or portions of the estates held by said trustees shall be sold, said trustees shall re-invest the proceeds thereof without unnecessary delay in such safe and productive property, real and personal, as they shall deem most advantageous for the interests of said trust estates, having regard rather to the security of the investment and regularity of income than to large profits.”</p>

<p>(1) Life Insurance. Interpleader. Construction of Contract.</p> <p>A policy upon the life of assured was made payable to the beneficiary, as provided in tlie application, but the application named no beneficiary. The application was made by the step-mother of the assured, the latter being eight years of age when the policy was issued. The policy was based upon the application. The step-mother paid all premiums on the policy and kept the receipt-book. Upon the death of the step-mother and of the assured, the fund was claimed by the representatives of both parties. Upon interpleader:—</p> <p>Held, that from the facts stated the contract was made with the stepmother, the fact that the daughter was the person insured raising no implication in her favor as beneficiary when the contract was not made by her and did not run to her benefit by its terms.</p> <p>(2) Insurance. Insurable Interest.</p> <p>The question of insurable interest can only be raised by the insurer; and where the latter pays the fund into court, the question is removed. ,</p>

<p>Mandamus. The facts appear in the opinion.</p>

<p>(1) Contracts. Tender.</p> <p>A. agreed with B. that he would at any time between the date of the agreement and a day certain, upon payment to him of a specified sum of money, transfer to B. 4,000 shares of stock. B. paid A. $100 for the option. B. attempted repeatedly to find A. prior to the expiration of the option, but was unable to do so. At one time he had with him a check for a portion of the sum and the balance in money. At another time he had certified checks for the entire amount. After the expiration of the option A. refused to convey the stock. At the trial B. was nonsuited on the ground that he did not show that he was at any time prepared to make a legal tender of the amount called for :—</p> <p>Held, that the strict rule of tender did not apply to such a contract, no particular time or place having been fixed for its performance.</p> <p>The contract contained mutual and dependent promises which were to be performed concurrently, requiring only the readiness and ability on the part of one of the parties to perform, provided the other would do concurrently the thing required, and a notice by the former of such readiness. In the case at bar the facts showed a readiness and ability to perform on the part of B. and what was equivalent to neglect to perform by A.</p> <p>Distinguishing Lawrence v. Staigg, 10 R. I. 581.</p>

<p>Bill in Equity for partition. The facts are stated in the opinion.</p>

<p>(1) Equity Pleading. Motion to Dismiss.</p> <p>Pending an action at law the complainant brought a bill in equity to enjoin the respondent from prosecuting in set-off certain promissory notes ; the respondent consented to the entry of a decree sending the case to a master; testimony was put in and report filed. The respondent then asked for a dismissal of the hill on the ground that complainant had an adequate remedy at law in the defence to the notes in the pending action:—</p> <p>Held, that if the point had been raised when the bill was filed, although there were concurrent remedies, the court would have left the matter to be determined in the pending suit; but the bill being sustainable on other grounds, the motion came too late at this time.</p> <p>(2) Fraudulent Conveyances.</p> <p>A conveyance made for the purpose of protecting a party from litigation, in the absence of proof that there were creditors at the time as to whom, an intent to hinder would be fraudulent, and where the conveyance does not show fraud by its own terms, is valid between the parties and void only as to creditors.</p> <p>A., to protect himself against litigation, conveyed a portion of his property to B., without consideration, to hold for the benefit of A. A. was solvent without such portion. B. executed a mortgage of the property to A. to secure certain promissory notes given to insure the performance of the trust. Subsequently B. conveyed the property to C. at the request of A., but the notes were not delivered up or the mortgages discharged, but, on the contrary, were assigned by A. to C. and the mortgages foreclosed</p> <p>Held, that the legal effect of the transaction was to extinguish the notes as debts.</p> <p>Held, further, that, no creditors having been defrauded, the arrangement having been disaffirmed and the parties restored to their original position, except in regard to the notes, that B. was entitled to have the notes given up.</p>

<p>(1) Pleading and Practice at Law.</p> <p>Within the meaning of Gen. Laws R. I. cap. 238, § 9, only demurrers which raise the question whether the plaintiff, upon the state of facts pleaded, is entitled to recover are to be certified to the Appellate Division. Those which relate to errors of form curable by amendment are to be retained and acted upon in the Common Pleas Division.</p> <p>(2) Pleading and Practice. Negligence.</p> <p>Declaration averred that it was the duty o'f defendant, the owner of a public resort, to keep the walk to a certain outbuilding in safe condition ; that defendant neglected to remove a certain obstruction and neglected to place proper signs of warning of the dangerous condition of the walk. On demurrer alleging that the negligence was not set forth with sufficient certainty, and that it did not appear that defendant was under any obligation to place signs of warning</p> <p>Held, that an amendment to the declaration or a bill of particulars would answer the first objection, and that the allegation of failure to post notices was mere surplusage.</p>

<p>Assumpsit. The facts are stated in full in the opinion.</p>

<p>Debt to recover money alleged to be due for salary. The facts are stated in the opinion.</p>

<p>Proceedings for Condemnation of certain Lands, under the provisions of an act in amendment of an act to incorporate the Rhode Island Suburban Railway Company, passed May 4, 1900.</p>

<p>Petition for the Condemnation of Lands under the provisions of an act in amendment of an act to incorporate the Rhode Island Suburban Railway Company, passed May 4, 1900.</p>

<p>Assumpsit. The facts are fully stated in the opinion.</p>

<p>(1) Builcling-Contracts. Municipal Corporations. Express and Implied Contracts.</p> <p>Decision in Bule v. Peclc, 22 R. I. 443, affirmed.</p>

<p>(1) Pleading and Practice. Joint Parties Defendant. Jury Trial. Appeal.</p> <p>A claim for jury trial under Gen. Laws R. I. cap. 237, § 7, is in the nature of an appeal. Hence, after decision against joint defendants, a claim for jury trial by one, not in the name of all, is void.</p> <p>Semble, that a defendant has the right to join his co-defendant as a party appellant, and the costs of the appeal should be imposed upon the moving party under Gen. Laws R. I. cap. 247, § 20.</p>

<p>(1) Dedication. Streets. Plats.</p> <p>Spaces left unmarked on a plat may show a dedication for a street or gangway when taken in connection with declarations of the owner or with user. Such intent becomes conclusive when embodied in a deed by reference to the space as a gangway or street.</p> <p>(2) Deeds. Description. Title in Streets.</p> <p>Where a deed describes the granted premises as extending to a ten-foot gangway, the grantee takes the fee to the center of the way.</p> <p>(3) Easements. Abandonment.</p> <p>Where a way laid out for the common use of lots bounded on it is fenced in and appropriated along the center line by the adjoining owners, the act amounts to a mutual agreement to abandon the way ; and there is no difference in principle between an original appropriation by an ancestor in title of an owner and the acceptance and continuance of such appropriation after one becomes an owner.</p> <p>An appropriation by an owner of a part of a way to be used in common as a whole is an abandonment of his easement in the whole way.</p> <p>Where the private occupation has ripened into a title by an exclusive possession of more than twenty years, the strip is no longer a way, but is held in separate ownership.</p>

<p>(1) Charitable Uses.</p> <p>Testator bequeathed a fund to “Mount Yernon Lodge of Ancient Free and Accepted Masons in the city of Providence,” a corporation, in trust, the income to be expended annually “for the relief of needy members of said lodge, or preferably for the general purposes of the lodge, including now and then, if desired, an appropriation for proper forms of entertainment for the members of the lodge ”:—</p> <p>Held, that (1) as the general purposes of the lodge were not charitable, it could not be held to be a charitable institution within the legal meaning of that term. (2) Yet the lodge was competent to hold and administer a charitable trust valid in itself. (3) But in this case, as the bequest might be applied to other than charitable uses, it was invalid.</p> <p>Following Kelly v. Nichols, 17 R. I. 322.</p>

Trespass on the Case for negligence. In his opening to the jury, plaintiffs attorney stated that the real defendant was other than the city of Providence, naming it. The defendant objected to the statement, and the court ruled that it was improper. The defendant asked that the case be taken from the jury. This motion was denied, the court instructing the jury to disregard the remark.

<p>•Trespass on the Case for deceit.. The facts are stated in the opinion.</p>

<p>Assumpsit. The facts are stated in the opinion.</p>

Bill in Equity seeking, relief, brought by an executor upon the following state of facts : Testatrix died January 1.1, 1898, by her will appointing the complainant executor.

<p>Bill in Equity to ascertain and apportion water-rights in certain water-property. For previous decisions and a history of the case see 17 R. I. 774, 18 R. I. 526, 19 R. I. 208, 19 R. I. 211, 20 R. I. 143, 21 R. I. 63.</p>

<p>(1) Life Insurance. Pleading and Practice. Judgment non obstante veredicto.</p> <p>In a suit upon a policy of life insurance, the issues were the general issue and a special issue tendered by the plaintiff “ that the insured did not sign the application after it was reduced to writing.” The jury found for the plaintiff, with a special finding sustaining the issue tendered. The defendant moved for judgment non obstante veredicto, on the ground that by the special finding it appeared that there was no sufficient application as a consideration for the policy, wherefore the defendant . was entitled to judgment upon the general issue. Upon petition for new trial, upon the refusal of the motion and upon the ground that the verdict was against the evidence :—</p> <p>Held, that the defendant, by insisting at the trial upon the special issue to the exclusion of other testimony in -support of the general issue, had waived the other grounds of defence.</p> <p>(2) New Trial. Pleading and Practice.</p> <p>Held, further, that while the issue tried did not directly bear upon the merits of the ease, it was not a sufficient ground for new trial when the defendant set up the issue and insisted upon it.</p> <p>(3) Insurance. Warranties. Agency.</p> <p>An application for life insurance provided that the medical examiner should put the questions and fill out the answers in his own handwriting. The jury found that the insured did not sign the application after it was reduced to writing-. On motion for judgment non obstante on the ground that by this finding it appeared that there was no sufficient application as a consideration for the policy, wherefore the defendant was entitled to judgment upon the general issue :—</p> <p>Held, that as the answers were required to be written by the company’s own officer, making him the agent of the company for this purpose, and as the jury found that the answers were not written in before the application was signed, there was no finding- that the answers as written were the answers of the insured, hence no contradiction of a warranty, for there was no warranty; and as the answers were given to the only person authorized to receive them, and there was nothing to show that the answers as given were false, the verdict was correct.</p>

<p>(1) Life Insurance. Incontestable Clause. Public Policy.</p> <p>The insurer is bound by a provision in the policy that “this policy shall be incontestable after two years from the date of its issue, provided the premiums are paid as agreed,” and is precluded from setting up a defence based upon false and fraudulent answers made by the -insured in his . application.</p> <p>What the effect of the suicide of the insured would .be upon such a policy quaere.</p>

<p>Trespass on the . Case for disturbance of a right to take sea-weed.</p>

<p>Debt on a lease. The facts appear in the opinion.</p>

<p>Appeal from the decision of the State Board of Health revoking the certificate of a physician under Gen. Laws R. I. cap. 165, § 5.</p>

<p>Case against a garnishee in a former action who had been charged by default.</p> <p>See opinion reported in 21 R. I. 100.</p>

<p><1) Wills. Powers. Executors and Administrators.</p> <p>Testamentary provision as follows : “I desire that my home estate be sold within a year after my decease, provided a suitable price can be obtained for the same ”:—</p> <p>Held, that the expression of desire was equivalent to a direction to sell, the purpose of the limitation of time being to prevent a sacrifice of the estate, and that the executor had authority to sell after the expiration of the year.</p>

<p>(1) Pleading and Practice at Load. Procedure. Jury Trial. Ministerial Officers. Olerhs of District Oourts.</p> <p>The neglect of the clerk of a District Court to certify and transmit the case and papers, .upon a claim of jury trial, to the Common Pleas Division, as provided in Gen. Laws R. I. cap. 237, § 8, does not deprive that-Division of jurisdiction to try and determine the case. The act of the clerk in the premises is merely a ministerial one.</p> <p>(2) Pleading. Filing Additional Pleas in Common Pleas Division.</p> <p>Semble, chapter 238, section 3, providing that a party may file further pleas in the Common Pleas Division upon a claim of jury trial from a District Court within the period of ten days from the day of certification from the latter court, is directory only as to the time within which such pleas may he filed.</p>

<p>Trespass on the Case by servant against master fox’ personal injuries received by the plairxtiff in consequence of the caving-in of the bank of a trench in which he was at work digging.</p> <p>For previous opinions, see 20 R. I. 261, and 21 R. I. 158.</p>

<p>(1) Wills. Mortgages.</p> <p>A testamentary devise gave an undivided fourth part of a testator’s estate to X. At the time of making the will, as well as at his death, the estate was subject to a mortgage. It further provided for the payment of “all expenses, bequests, and charges against the estate” from another source. It appeared that there was sufficient personal estate, taken in connection with the proceeds from this other source, to pay all debts and legacies. By permission of the municipal court and of X. the executor sold the real estate</p> <p>Held, that X. was entitled to the devise exonerated from the mortgage.</p> <p>Held, further, that X. should pay his proportional part of the expenses of the estate prior to and incident to the sale.</p>

<p>(1)- Writs. Arrest. Release from Arrest. Review.</p> <p>The decision of a District Court releasing a defendant from arrest, under Gen. Laws R. I. cap. 252, § 11, clause 3, is not subject to review. I-Ience the court has no jurisdiction, under Gen. Laws R. I. cap. 250, § 12, on a bill of exceptions to consider the rulings of the District Court in excluding testimony offered in opposition to the defendant’s discharge.</p>

<p>(1) Banks and Banking.</p> <p>The A. company, being insolvent, made an assignment to B. for the benefit of its creditors. At the time there was on deposit to the credit of the assignor, in the N. bank, the sum of $28,213.19, and at that time the bank was the holder and owner of three notes made by the A. company, signed in its name by X. its treasurer, payable to the order of X. and by him indorsed. . At the time of the assignment two of the notes had matured, and the third was not due. X. was also cashier of the bank. After the assignment X. consented to the transfer of the account of the A. company to the assignee, who received a pass-book in his name, although the account was not changed on the books of the bank. After the maturity of the .last note the assignee drew a check for the whole amount to the credit of the A. company on the books of the bank, but to his credit on the pass-book, and payment was refused. Subsequently the bank allowed the balance over the amount of the three notes, with interest, to be withdrawn. The assignee brought suit to recover this last sum, and, after judgment for defendant, on petition for new trial :—</p> <p>Held, that the cashier had no authority virtute officii to surrender or release the security of the bank; and while the acts of a cashier, within the scope of the general course of business of the institution, are binding upon the corporation in favor of third persons without knowledge of the lack of authority, yet, under the circumstances of the case, the assignee, with his knowledge, must be held to have known that the cashier was transcending his authority.</p> <p>Held, further, that the assignee was not entitled to recover so much of the deposit as was required to pay the notes held by the bank, that were overdue, at the time of the transfer of the deposit.</p> <p>Held, further, that the bank should not, however, be allbwed to reap any advantage by their repudiation of the conduct of the cashier, which did not militate against the bank’s interests and would enure to the detriment of the assignee; therefore, as the bank had no right of set-off: at the time of the transfer as to the note not then matured, the assignee was entitled to recover back the amount of the note with interest.</p>

<p>(1) Equity Pleading. Misjoinder of Parties.</p> <p>A motion to dismiss a bill for misjoinder of parties can be made after answer filed.</p> <p>(2) Equity Pleading. Nuisance. Joinder of Parties Gom/plainant.</p> <p>Owners and tenants of separate estates may join in a suit to restrain a nuisance which is common to all of them and affects them in a similar way.</p>

Trespass on the Case for negligence. The facts are stated in the opinion and also in the same case reported in 22 R. I. 321.

<p>Assumpsit on a guaranty. The facts are stated in the opinion.</p>

<p>Petition for a mechanic’s lien. The facts are fully stated in the opinion.</p>

<p>(1) Mechanics’ Lien. Motice.</p> <p>Gen. Laws cap. 206, § 7, provides that the commencement of legal process to enforce a lien shall be the lodging the account or demand for which the lien is claimed in the office of the town clerk of the town, with notice to what building, improvement, and land the account or demand refers :—</p> <p>Held, that a notice filed under this section was defective in-not stating for what building the materials were furnished.</p> <p>Consolidated Petitions to enforce mechanics’ liens. Gen. Laws cap. 206, § I, is as follows: “The commencement of legal process to enforce the liens hereby created shall be the lodging the account or demand for which the lien is claimed in the office of the town clerk of the town or towns in which the building ... or other improvement is situated, with notice to what building . . . improvement and land, and to what or whose estate in the same, the said account or demand refers ”...</p>

<p>(1) Promissory Notes. Interest. Usury. Evidence.</p> <p>Under Gen. Laws R. I. cap. 166, § 11, parties can agree upon any rate of interest and are bound by payments at a higher rate than six per cent, made specifically for interest.</p> <p>(2) Promissory Notes. Interest. Pleading. Variance.</p> <p>A stipulated rate of interest for forbearance after maturity can be recovered under a count for interest, although the note sued on in another count shows a different rate of interest. One rate being before and the other after maturity, there is no variance between the evidence and the declaration.</p>

<p>(1) Pleading. Trover. Assignments.</p> <p>An action of trover is improperly brought in the name of an assignor as trustee for his assignee when the conversion occurs after the assignment.</p>

<p>Trespass and Ejectment.</p>

<p>(1) Probate Law and Practice. Guardian and Ward. Service of Notice.</p> <p>It is unnecessary to serve notice upon a petitioner, not insane or non compos mentis, of the pendency of his own petition for the appointment, of a guardian upon his person and estate.</p> <p>(2) Probate Law. Guardian and Ward.</p> <p>Gen. Laws R. I. cap. 196, § 7, authorizes a Probate Court to appoint a guardian of the person and estate of a person who, “from want of discretion in managing his estate, shall be likely to bring himself or family to want, or to render himself or family chargeable.” The decree of the Probate Court found that the person was lacking in discretion, but did not find that he was likely to bring himself to want or render himself chargeable :—</p> <p>Held, that the decree was not sufficient to warrant the appointment of a guardian.</p> <p>Held, further, that the court had jurisdiction of the proceedings, and the decree only was erroneous.</p>

Assumpsit brought by a trustee in bankruptcy under section 60 (b) of the bankrupt act of 1898.

<p>(1) Divorce. New Trials.</p> <p>Gen. Laws cap. 251, J 2, providing for new trials of suits tried or decided, in the Common Pleas Division of the Supreme Court or in any District Court within -one year previous to the application, for certain reasons therein specified, does not apply to petitions for divorce.</p> <p>(2) Divorce. New Trials.</p> <p>Gen. Laws cap. 246, § 2, provides that “ in case of judgment entered by mistake, or in case of decrees in all equity causes and cases following the course of equity, the court shall have control over the same for the period of six months after the entry thereof and may set aside the same or make new entry.” On petition for new trial and rehearing of a suit for divorce</p> <p>Held, that the Appellate Division could’exercise any power granted under this section in said suit so far as applicable to the conditions thereof, .provided such exercise of power was sought within six months from the entry of judgment therein. Any power however applicable to such suit would not be available if sought after such period.</p> <p>(3) Divorce. Depositions.</p> <p>Gen. Laws cap. 244, § 28, authorizes the court to issue a commission to-take depositions only in actions and suits pending at the time. Hence the issuing a commission in an adjudicated suit is nugatory and void.</p>

Bill in Equity brought by Charles H. Warren and Edgar ’V. Salisbury, both of Providence, R. I., as surviving partners of the firm of Kilton, Warren & Company, formerly •consisting of said Warren and Salisbury, and John B. Kilton, late of said Providence, deceased, against the Providence 'Tool Company and its several members and stockholders and their representatives to enforce the liability of such stockholders to pay the debts of said Providence Tool Company imposed by…

<p>Trover. The facts appear in the opinion.</p>

<p>Action to recover a legacy. The facts appear in the opinion.</p>

<p>Petition for an opinion under the provisions of Gen. Laws cap. 240, § 24.</p>

Trespass on the Case for negligence. The declaration alleged that the plaintiff visited the defendant’s department store on business and was entering a passenger-elevator there, in the exercise of due care, when the elevator suddenly started upward so that she was thrown to the floor with her legs hanging outside the elevator, and that during its ascent to the third floor her legs were crushed between the elevator and the walls of the shaft, and that this sudden starting of…

Trespass and Ejectment brought by the grantee of one of the original parties mentioned in the opinion. ■ The facts are fully stated.

<p>(1) Master and Servant. Duty to furnish Proper Appliances.</p> <p>Plaintiff was injured by the falling on him, from a height,- of the head of a maul which a fellow-servant was using. The head of the maul was insecurely fastened to the handle, the wedge which held the head in position' having dropped out. The testimony showed that prior to two or three years before the accident the only mauls in use were of the type which injured plaintiff; that at about that date another type began to be used, and that since then both forms had been in common use; and that the older type was reasonably safe, if not as safe as the newer, so-long as the handle was kept properly wedged:—</p> <p>Held, that the master was not guilty of negligence in furnishing for use a maul of the older type.</p>

<p>Under the provisions of section 3 of article X of the constitution of the State, the following opinion of the justices of the Supreme Court was delivered to the governor November 21, 1900, in the matter of</p> <p>The Eegistration of Electors.</p> <p>Under section 11 of article XI of the amendments of the constitution approved November 6, 1900, amending section 1 of article VII of the amendments of the constitution, registration made at any time between January 1, 1900, and December 31, 1900, is the registration required to qualify for any election by the people between January 1,1901, and “the Tuesday next after the first Monday in November” (November 5), 1901.</p> <p>Under section 11 of article XI, clause 1, of the amendments of the constitution approved November 6, 1900, “The general assembly shall provide, by law for the registration necessary to qualify persons to vote at said first election, which registration shall close on the last day of June, A. D„ 1901,” a registration made between January 1, 1900, and December 31, 1900, is insufficient to qualify for said first election unless the General Assembly shall see fit to provide thát such registration shall be included in the registration required to qualify to vote at the election of November 5,1901. The amendment itself, without action of the General Assembly, gives it no such force.</p> <p>It rests with the General Assembly to determine at what time prior to. June 30, 1901, registration for the new term closing on that date shall begin. The Assembly is authorized to provide that the registration which qualifies for the first election on November 5, 1901, shall also qualify for all elections subsequent thereto and prior to July 1, 1902, both as to registry and personal-property voters. The Assembly may further provide that for all elections subsequent to July 1, 1902, the period of registration shall annually consist of the period between the last day of June next preceding such election and the first day of July prior to such last, day of June.</p>

<p>Under the provisions of section 3 of article X of the constitution of the State, .the following opinion of the justices of the Supreme Court was delivered to the governor May 1, 1901, in the matter of</p> <p>The Newport Police Commission.</p> <p>'Tlie board of police commissioners of the city of Newport is a State board or commission within the spirit as well as the letter of Gen. Laws cap. 17, § 4, providing that the attorney-general, whenever requested, shall act as the legal adviser of all State boards and commissions.</p>