Volume 3 — Rhode Island Reports

<p>A Petition for tlie rehearing of a suit in equity, may be filed within one year from the date of the final decree, by analogy to the rule in relation to now trials in suits at law.</p> <p>Former opinion reaffirmed, — That Courts of Equity hare no jurisdiction over corporations, as such, at the suit of a stockholder, for violations of charter.</p>

<p>A Writ of Mandamus will only bo granted to enforce private rights of property where there Is no adequate remedy at Common Law, and such a remedy is provided in a suit for damages in case of the refusal of a Bank to permit the transfer of shares in its capital stock.</p>

<p>Where the facts averred in the answer are distinct from those charged in the hill, even if part of the same transaction, they will not be deemed responsive to the bill.</p> <p>In an answer admitting the claim set forth in the bill, an allegation of matter in avoidance or discharge of such claim is not responsive to the bill, and must be sustained by evidence aliunde.</p>

This was a complaint and warrant, charging that the defendant, at Newport, in the county of Newport, on the 1st of July, 1853, and on various other days and times between that day and the 18th day of March, 1854, did unlawfully sell and suffer to be sold, ale, wine, rum, &c., against the statute, &c. Upon arraignment before the Court of Justices of Newport, the defendant pleaded not guilty, and also filed a written motion that the complaint and warrant be quashed, averring…

This was an action of debt, commenced in the Court of Common Pleas, and by the defendant appealed to this Court, where the parties waived a trial by jury, and submitted the case to the Court upon a written statement of facts.

This was a petition for an injunction, grounded upon a Bill in Equity pending between the parties. The bearing was upon the petition, the bill and answer and affidavits. The facts are set forth in the Court’s opinion.

<p>This was an action of trespass and ejectment, brought to recover possession of a lot of land and estate in North Providence, and which- by the parties was submitted to the Court upon the law and the facts. The facts of the case, and the positions contended for by counsel, are stated in the opinion of the Court.</p>

<p>A roforonce of a case to Auditors in tlie Court of Common Pleas, and the receiving and confirming by that Court of the Auditor’s report, does not preclude an appeal of the case to this Court, nor affect a party’s rights as an appellant, as secured by the 15th section of the act establishing Courts of Common Pleas.</p> <p>The appellate Court, equally with the inferior Court, is vested with a discretion in respect to the appointment of Auditors in certain cases.</p>

This case was brought to tbe consideration of this Court by a certificate from the Court of Magistrates of the city of Providence, under an act amending the act prescribing the manner of proceedings in Courts, (P. L. p. 1029.) On the 11th of November, 1854/by one of the justices of'said Court, a complaint and warrant was issued against the defendant, charging “ That at said Providence, in said county, on the 1st day of July, A. D. 1854, and on divers other days between that…

The writ in. this action waá' a writ of summons. The defendant appeared solely for the purpose of filing his motion to dismiss the action for want of service of the writ. He alleged that the service was pretendedly made by leaving an attested copy of the writ at his last and usual place of abode, and produced a copy of a writ in favor of the plaintiffs, returnable at the present term of the court, signed Amasa S. Westcott, Clerk.

DemüRRER to a Bill in Equity. The case is fully stated in tbe opinion of the Court. — -A married woman cannot bind her separate estate, nor can her creditors reach it, under her contracts or otherwise, unless by virtue of some statute, or the provisions of the deed or other instrument under which the property is held. Trustees of M. E. Church v. Jaques, (3 John Ch. 77.) Reid v. Lamar, (1 Strobh. 27.) 1 Wh. & Tud. Lead.

The writ in this action was served by attaching certain articles of personal property.

This was an action of trespass on the case, commenced in the Court of Common Pleas, wherein judgment was submitted and an appeal entered in this Court.

In Equity. — In conformity with a decree in this canse, a sale had been made by a master, of the mill property and water privilege, for a partition of which the suit was instituted, and of which the four complainants were respectively owners of one-fifth each, and Martha B. Lippitt, the co-defendant of her husband, was the owner of the remaining fifth.

<p>An indictment under the eighth section of the act for the more effectual suppression of drinking houses and tippling shops, charged that the defendant “ did presume to ho, and was a common seller of ale, wine, rum and other strong and malt liquors, without being duly appointed by the town Council of Coventry an agent of said town of Coventry for the sale of ale, wine, rum and other strong and malt liquors, to be used for medicinal and mechanical purposes only; Held, on motion in arrest of judgment, that it was sufficiently alleged that the dft. was not appointed agent according to the provisions of the act. Also held, That said eighth section defines an-offence, viz; the carrying on of a trade or business in violation of the law, totally distinct from the offences of selling, and suffering to be sold certain liquors, provided for in the fourth section of said act, and that said offence was here charged with all needed precision.</p> <p>The position that under said act (sections fourth and eighth) a defendant may bo twice tried for the same offence, discussed and overruled.</p>

In equity.- — The complainant, describing himself in his bill as executor of the last will and testament of Joseph Sheldon deceased, brings this bill against George L. Tucker, Sally Sheldon and Nicholas S. Prior.

This was a suit on a policy of insurance made by tbe defendants to tbe plaintiff, on a dwelling bouse in Cran-ston. Tbe policy bears date March 18, 1851. Held: he was to be presumed cognizant of the alterations made by his tenant, until the contrary was shown by him. Phil, on Ins. sec. 1032-1035. 4 Mass. 430. 5 Hill, 10. 21 Pick. 162.

This was a petition for a new trial. The defendant was complained against before tlie Magistrates’ Court of the city of Providence, for breach of the 10th section of the act for the more effectual suppression of drinking houses and tippling shops. Judgment having been rendered against him by said Court, he appealed to the Court of Common Pleas, where a verdict of guilty was rendered.

In this action, which was assumpsit upon a premium note, judgment was rendered in the Court of Common Pleas, for the defendant. From this the plaintiff appealed to this Court, and here recovered judgment against the defendant for $15 96 debt. moves for costs, on the ground that the charter of the company provides that in a suit on a premium note by the company, against any one of its members, the company recovering any sum for their debt, shall also recover their costs.

' The plaintiffs in this case were creditors of the firm of Clark Sayles & Co., which consisted of Clark Sayles, Henry Earle and Caleb Earle. After the decease of Caleb Earle, the plaintiffs obtained a judgment against-the surviving partners and presented their claim, in the form of an execution unsatisfied,to the Commissioners upon the estate of Caleb Earle, which had been represented insolvent.

This was a motion in arrest of judgment. The defendant was found guilty at the present term upon an indictment, charging him with thg offence of receiving stolen goods, knowing the same to be stolen; and now moves that judgment be arrested, because in the indictment, a specific value was not affized to each and every article described as received by the defendant.

This case came up on certiorari from tbe Police Court of tbe city of Providence. Tbe defendant, Cleaveland, was complained against in that Court for that “ be did spread or suffer some person in bis employ to spread an awning over one of tbe sidewalks in said city? tbe same not being of clotb or canvas.” The complaint was made on tbe 7th day of February, 1855.

This was a motion for a new trial of an indictment upon wbicb the defendant was tried at the Court of Common Pleas, December term-, 1854. The indictment charged that the defendant, at Johnston, on the 6th of October,' 1854, and on divers days and times between said 6th of October and the 8th of November, 1854, was a common seller of strong liquors, contrary to law.

This was a petition, for a -new trial of an action commenced by Sabin Allen, an auctioneer of the town of Cumberland, against the petitioner, at a Special Court of Common Pleas, on tbe 15th. day of December 1854, to recover the price of a lot of land, sold at auction by the plaintiff to the defendant. The defendant resisted the claim, on the ground that the owner of the land sold could not make him a good title to the premises sold.

This was a motion for a new trial of an appeal from a judgment of guilty rendered by tbe Court of Magistrates of tbe city of Providence, on tbe lltb of November, 1854, upon a complaint for selling or suffering to be sold strong liquors contrary to law, on tbe lOtb of June, 1854, and on divers other days between that day and tbe 15tb day of June.

The defendant was adjudged guilty by the Court of Magistrates of the city of Providence, upon a complaint on behalf of the State, that on the 3d of September, 1852, he “ did take oysters from the free and common fisheries of this State, to wit: in Seekonk River, so called,” against the statute, and sentenced to pay a fine of $20 and costs.

This was a petition for a new trial of an action of assumpsit, originally commenced before the Court of Magistrates in the city of Providence, Slocum, plaintiff, Bates, defendant. There, after a trial, judgment was rendered for the defendant, for his costs.

This was a motion for a new trial of an appeal from a judgment and sentence of tlie Court of Magistrates of the city of Providence, on the 6th of July, 1854, upon a complaint for selling or suffering to be sold strong liquors contrary to law, on the 30th day of June, 1854.

This was a motion for a new trial of an appeal from a judgment of the Court of Magistrates of the city of Providence, upon a complaint, charging that said Head, on the 2d of September, 1854, did keep or suffer to be kept on his premises or possessions or under his charge for the purpose of sale, ale, wine, &c., against the statute.

EXCEPTIONS to tbe rulings of tbe Court of Common Pleas. At tbe December, term of tbe Court of Common Pleas 1851, an indictment was returned against tbe defendant, grounded upon sec. 6 of “ an act for tbe preservation of oysters and other sbell-fisb witbin this State,” prescribing that “No person shall take any oysters, quabaugs, clams or other sbell-fisb witbin tbe waters or on tbe shores of this State, unless be be an inhabitant thereof and domiciled therein; and every…

<p>Where a complaint and warrant charged that the defendant “ was indecently drunk contrary to the provisions of the act passed by the Legislature at its dune session 1S54 Meld, that he was sufficiently charged with the offence defined in said aethy the words “intoxicated under such circumstances as amount to a violation of decency.”</p> <p>Where Justices of the Peace substantially comply with the forms of law, they ought not to be held liable in damages for acts done in the performance of them official duties.</p>

IN Equity. — In June, 1851, the complainant filed his bill, which the defendant answered, as required by rule. To the answer the complainant neither replied nor excepted until September 1854, when, without notice to the Court, he lodged with the Cleric certain exceptions. Of these, thus filed, the defendant refused to take cognizance, and at the March term, 1855, complainant moved for a hearing upon them.

This was assumpsit upon two promissory notes, bolden by the plaintiff as endorsee. Willard Joslin, the maker, subsequent to the making of the notes, obtained a certificate under the Bankrupt Law of the United States, and this certificate was pleaded in bar of this action against his administrator. To this plea the plaintiff replied a new promise: and upon the replication, issue was joined.

This was an action upon a policy of insurance, for the value of personal property destroyed by fire. A verdict was rendered for the plaintiffs, whereupon the defendants moved for a new trial, upon the grounds set forth in the Court’s opinion. cited 1 Phil, on Ins. 289, 354, 415, 469 ; Angelí on Ins. 213, 229,469; 5 Hill, 188; 2 Denio, 78; 2 Comstock, 211; 10 Barbour, 285. cited 7 Wend. 72; 25 Wend. 377; 8 Munro, 63; 8 Mete. 122; 2 Comstock, 211; W. & M. Oi'rc.

This was a petition for a new trial of tbe case of Padelford & Co. v. Potter, under tbe provisions of “an act in relation to tbe Supreme Court,” sec. 4 (Dig. 1844, p. 89). That action was assumpsit upon a promissory-note, payable to tbe order of tbe plaintiffs, and signed, “ John S. Douglas, Agent for Rouse T. Potter.” Tbe general issue was pleaded, under wbicb tbe defendant denied tbe authority of Douglas.

EXCEPTIONS to a charge of the Court of Common Pleas. The action was replevin for a box and fourteen and one-sixth dozens gold rings of the value of $46 04, tried in the Court of Common Pleas. The plaintiffs were auctioneers of the city of Providence, and in December, 1853, sold at auction a large quantity of jewelry, arranged for sale in packages and boxes, numbered from 1 to 317.

This was an action of assumpsit commenced in the Court of Common Pleas, in which the plaintiffs, citizens and residents of New York city, sought to recover of the defendant, resident of Providence, payment of a book account claim filed, for 15 barrels ale charged defendant April 8, 1854, as alleged.

This action was assumpsit upon a promissory note for $100 on demand with interest, payable to plaintiff or order, signed by defendant and dated Barnstable, [Mass.] Feb. 21, 1848. It was admitted that both plaintiff and defendant had personally resided in Barnstable since the making of the note, and that the defendant had never been within the State of Rhode Island until the day of the service upon him of the plaintiff’s writ, July 23,1855.

This was a petition for a new trial of a writ of scire facias against the petitioner as bail. The grounds of the motion are sufficiently stated in the Court’s opinion. cited Dig. 1844,151; Alverson y. Alverson, (2 R. I. 27.) PiJce y. Leonard, (7 Miss, 22.) 7 Sm. & Mar, 276.

This was a petition for divorce. The parties intermarried in Boston, Mass., in 1847, and resided there until September, 1854, when the petitioner removed to Providence, the respondent continuing to reside in the former place. The petition alleged as causes for divorce, neglect and refusal to provide necessaries for the petitioner, wilful desertion and personal violence.

This was an action on the case in which damages were claimed, for that the defendant had refused to make conveyance of two lots of land, set up at auction on the 2d of May, 1853, and struck off to the plaintiff as highest bidder. It was commenced in the Common Pleas, and by the defendant appealed to this Court.

This was an action of assumpsit for the recovery of the amount due, as alleged, by virtue of a policy of insurance executed by the defendants upon certain property owned by the plaintiffs, which had been destroyed by fire. To the declaration the defendants pleaded the general issue, and an arbitrament and award. The plaintiffs’ replication denied the award, and upon this replication issue was joined.

The facts of this case are fully stated in the opinion of the Court. contended that prior to a levy or sale for a tax, there must bo a demand and a refusal to pay; and that to whom a tax is paid is unimportant if the tax is in fact paid into the treasury of the town or district.

This was an action of assumpsit by the endorsee of five several promissory notes made by the defendant by its authorized agent, and was submitted to the Court upon agreed facts. These, so far as material, are stated in the opinion of the Court, as also are the points raised at the hearing. cited Morse v. OaJcley, (2 Hill, 265.) Kelly v. Mayor and City oj Brooklyn, (4 Hill, 263.) Halstbd v. New York City, (5 Barb. 218.) Chitty on Bills, 14. Ang. & Ames on Corp. 49.

This was an action brought in the names of the members of the Court of Probate of Cranston at the date of the writ, against the defendant, who, with William Sprague, his father, deceased, was a surety of Amasa Sprague, also deceased, upon the bond gireu to said Court on the 21st of October, 1823, pursuant to its decree, appointing him guardian of the persons and estates of four minor children of his sister, the widow of one Obadiah Mathewson.

Is Equity. — A sufficient statement of tbis case, is contained in tbe Court’s opinion. The construction of the devise cited from the will was the only point in question : contending for the construction which the Court has here given to it:

Isr this case, defendant pleaded in abatement, that service of the writ was made only by attaching specifically certain cars of the defendants found in the possession of the P. & W. R. R. Company, and which had previously been attached by a service in foreign attachment upon the last named Company of a copy of a writ against the defendants, in favor of one Enoch P. Noyes.

<p>A Court of equity is hound, equally with a Court of law, by the provisions of statutes of limitation.</p> <p>An account relating only to transactions between parties as copartners in trade, is not an account which concerns trade and merchandize between merchant and merchant, within the letter or spirit of the statute of limitations.</p> <p>A bill which charges that the defendant received the property and effects in question, on certain express and special trusts, and for certain specific purposes therein set forth, will be dismissed if complainant fails to establish his charge: and the Court will not, under such bill, inquire whether or not the evidence submitted would sustain or tend to sustain a bill otherwise framed, to enforce performance of an implied or resulting trust.</p>

This was an. appeal from a decree of tbe Court of Probate of Hoplrinton, receiving tbe report of tbe commissioners upon claims against tbe estate of Charles H. Low, represented insolvent.

This was an appeal from a decree of the Town Council of Middletown, passed in compliance with a petition or memorial of the appellees, setting forth that the incomes from certain school lands lying in that town were not appropriated and enjoyed according to the charitable intent of tbe grantors. The appeal was heard by the court at the August tefnij 1855, and held for advisement until this term.

This was a complaint and warrant, brought from the Court of Justices of Newport to this Court by appeal. After verdiet in this Court, the defendant moved in arrest of judgment, upon the grounds fully set forth in the Court’s opinion. The motion was heard at the August term, 1855, and held for advisement until the present term.

This defendant was found guilty upon an indictment charging him with the offence of common selling, under the eighth section of the act for the more effectual suppression of drinking houses and tippling shops; but before judgment he moved in afroát, on the ground that the indictment alleged, that at the times when he is charged thereby with being a common seller of ale, wine, &c., at Newport, ho was not a legally appointed agent of the town of Newport for the sale of liquor…

This was an action of debt upon an esecutor’s bond, instituted on behalf of a creditor of the estate of Jonathan Hopkins, and of a legatee named in his will. The names of the persons for whose use and benefit the suil was brought, were endorsed upon the writ, as required by statute.

Ti-iis was a complaint and warrant, carried by appeal from the Court of Magistrates of Providence, to the Court of Common Pleas, and brought to the consideration of this Court by exceptions taken to a ruling of that Court upon a motion in arrest of judgment.

This was an indictment for a -violation, of the license laws of the State, found at the present term. The petit jury returned a special verdict, and upon that arose the questions raised at the Bar, and decided by the Court.