Volume 4 — Rhode Island Reports

<p>Under the statute of descents in Rhode Island, degrees of kindred are to be reckoned by the canons directing the course of descent, as positive rules establishing such degrees.</p> <p>The clause of that statute, directing that an ancestral estate, in the absence of children of the intestate, “ shall go to the kin next to the intestate of the blood of the person from whom such estate came or descended, if any there be,” is in the nature'of a proviso to the canons of the statute, and degrees of kindred under the clause are to be reckoned according to the canons.</p> <p>The colonial statutes of descent and distribution of Rhode Island considered, and held to be consistent with this construction.</p> <p>L. S. died intestate without issue, leaving an estate which .came to her by descent from a deceased brother; held, that the same passed in equal shares to her mother, brothers, and sisters, they being, by the rule established by the statute, of the same degree of kindred to the intestate.</p>

Bill in equity, for specific performance. In November, 1851, the complainant, who was the owner of a house and several acres of land on the Cliffs at Newport, authorized the principal defendant, Hazard, as his agent, to offer for the Peck-ham farm, of about forty-five acres, adjoining the land of the complainant, the sum of $10,000; the respondent, Hazard, saying, that “ he thought he could buy it cheaper than any other man; but that he did not think that he could get it for…

Assumpsit against the defendant as the indorser of several checks, or orders, in writing, for different sums, amounting in all to about $3,600, drawn by the Sinope Mills, per B. Cozzens, agent, upon the Westminster Bank, payable, some at sixty and some at ninety days, &c., to the order of the defendant, and by him indorsed in blank, upon the ground that the amount of said checks had been paid by the plaintiff bank to Cozzens upon the credit given to the checks by the…

<p>If a mechanic does work, or furnishes materials for repairs and improvements, made upon two distinct lots, owned by different owners, he cannot, under the Mechanics Lien Law, enforce his lien by one petition embracing both lots and their owners, hut must proceed by several petitions against each lot and its owners, for the portion of his claim appropriate to each.</p>

Assumpsit against the defendant as administrator, with the will annexed, of the estate of Henry Brown, late of Scituate, to recover the sum of §873.56, declared by the plaintiff to be due to him from the defendant’s testator by book account. The action was brought at the March term of this court, 1856, the writ being dated Sept. 18, 1855, and served Feb. 25,1856.

Debt on bond given by the defendant, Burlingame, as principal, and the other defendants as his sureties, that Burlingame, then a prisoner for debt in the jail of the county of Providence, would remain a true prisoner within the limits of said jail, without committing any manner of escape or escapes, until he should be lawfully discharged. The declaration counted upon the bond as a single bond for the payment of $125.

<p>A parol license to the owners and occupants of one farm, in perpetuity, to pass and repass with their servants, horses, carts, carriages, &c., in a way prescribed over an adjoining farm, given hy the owner of the latter farm, is, at law, revocable at his pleasure, notwithstanding it is executed by the licensee’s expenditure upon the faith of it of money and labor in building the prescribed way, without payment or tender to the licensee of the amount so expended by him; and is not binding upon the successor in title of the licensor.</p> <p>The licensee’s remedy in such a case, if any, is in equity, upon the grounds of part performance and equitable estoppel.</p> <p>When several issues have been submitted to a jury, some of which have been found for the plaintiff and one for the defendant, and a new trial is granted to the plaintiff on the ground of misdirection by tbe court of the jury in matter of law, pertaining solely to the latter issue, the new trial will not in general, unless the defendant consents thereto, be confined to the latter issue, leaving the verdict to stand in favor of the applicant , upon the issues found in his favor, but will be granted generally, so that all the issues may be resubmitted to a jury.</p>

This was an action of the case for flowing back water upon the mill of the plaintiffs in North Kingston, by the mill-dam of the defendant built across the Annaquetucket River, below the mill of the plaintiffs; the declaration alleging the nuisance to have been maintained between the 8th day of February, 1858, and the 29th day of August, 1854.

Bill in equity, filed on the 19th day of October, 1853, by William G. Hammond and others, judgment creditors, and creditors by promissory note and book account of Nathan Stanton, in their own behalf and in behalf of the other creditors of Nathan Stanton, against the said Nathan Stanton, Gilbert Stanton, Job F. Stanton, and John F. Tennant.

<p>A motion to quash a criminal complaint, upon tlie ground of a defect of process, is addressed to the discretion of the court, and is deemed to be waived by the prisoner by his submitting, without objection on account of it, to a trial upon the merits. It comes too late when not made until the case has reached the appellate court, after a trial of the case on the merits in the court below; and this especially holds where the defect alleged is in a recognizance for costs required by law to be given by the prosecutor.</p> <p>Nor can a defect in such a recognizance be, taken advantage of by the prisoner upon a motion in arrest in the appellate court, after a trial upon the merits, without objection on account of it, in the court below; the same being deemed to be waived by the prisoner under such circumstances.</p> <p>A recognizance for costs given by a prosecutor of a criminal complaint for an assault and battery, with condition “ to prosecute the complaint with effect, or in default thereof to pay the costs that may accrue thereon,” is in substantial compliance with the statute requiring such recognizance to be given, with condition, “ to prosecute such complaint-to final judgment with effect, or in default,” &c.</p>

<p>By the statute law of Rhode Island, the jurisdiction of its courts in divorces, whether a mensa et thoro or a vinculo, depends solely upon the residence in the state or citizenship of the petitioner.</p> <p>Bules and practice in Rhode Island as to notice to an absent or non-resident'party to a marriage sought to be affected or dissolved by a petition for divorce. ✓</p> <p>By the general law, the jurisdiction of the courts of a country in divorce depends, not upon the place of the marriage or of the breach of its duties; but, marriage being a relation involving the status of a party to it, upon the right of a country or nation to determine the status of one of its own citizens or subjects, a party to the relation.</p> <p>Jurisdiction over the petitioning party alone, as a citizen of a state, is sufficient by the general law to give jurisdiction to the courts of the state to divorce such party, upon such notice, personal or constructive, to the other party to the marriage sought to be affected or dissolved, whether such party be present in or absent from the state, as is possible or customary under the circumstances.</p> <p>A decree of divorce granted by the courts of a state having jurisdiction over the petitioning party as a' citizen of the state, is, by article 4, sect. 1, of the Constitution of the United States, valid in all the States.</p> <p>Although, in general, the domicil of the husband is the domicil of the wife, yet if he be guilty of such act or dereliction of duty in the relation as entitles her to have it partially or totally dissolved, she may establish a separate jurisdictional domicil of her own.</p> <p>A female citizen of Rhode Island, married in New York to an Englishman, with whom she lived for several years abroad, and by whom she was finally deserted in Massachutests, is entitled to a divorce a vinculo in Rhode Island upon the ground of such desertion, and the courts of Rhode Island have upon her petition under the general law, in accordance with the local law, jurisdiction to grant it, although her. husband had never been within the jurisdiction of Rhode Island, and although his place of residence and of temporary sojourn at the time of the petition being unknown, only constructive notice of the pendency of the petition had been, given to him by publishing such notice for the space of sis weeks in a newspaper printed and issued in Rhode Island.</p>

<p>If judgment be entered against the plaintiff by his submission thereto in the court of common pleas, he may nevertheless appeal therefrom to the supreme court, although, at the time of submission, the court had sustained his demurrer to a plea in abatement, and ordered the defendant to answer over, and no new issue had been joined.</p> <p>A plea in abatement is bad on general demurrer, unless certain to every intent.</p> <p>Non-joinder of one of the tenants of the freehold as defendant is good cause of abatement in an action of dower brought against the tenant of the freehold as such tenant only.</p> <p>Although at common law a writ of dower unde nihil hábet lies in general only against the tenant of the freehold, such writ may be maintained in Bhode Island against a tenant for years in possession, by force of the 5th section of the u act relating to dower and the assignment thereof.” Dig. 1844, p‘. 188.</p> <p>Demand of dower must first be made of such tenant in pursuance of the statute in order to maintain the writ, and damages for detention are recoverable only from the time of demand.</p> <p>A demurrer to a plea in abatement, does not look back to faults in the declaration, the ■writ only being then in question. ■</p>

Action op partition. Declaration, that Benjamin R. Hoxsie and wife, in her right, and Charles Ellis of North Kingston, in the county of Washington, now in California, the plaintiffs, are jointly seised with the defendant, Willard B. Ellis, as tenants in common of, and each with him entitled to a third, in an estate situated in West Greenwich, in the county of Kent, — the late homestead of their father, — they being brothers and sister, children of Allen Ellis, late of West…

<p>A court of equity is exceedingly reluctant to permit an amendment of an answer, as to material facts, or to change the ground of defence, especially in a late stage of the cause; but it will give such leave when the reasons are satisfactory, the facts to be stated by way of amendment highly probable or certain and material to the controversy, and when there has been no gross negligence, and the mistake has been ascertained since the putting in of the answer.</p> <p>In a' proper case such leave may be granted by the rules of this court, even after the cause has been set down for a hearing upon bill and answer.</p>

<p>In Rhode Island a wife follows the settlement of her husband, if he has one in this state or in any of the United States, and if not, retains the settlement that she had at the time of her marriage.</p> <p>In a controversy between two towns in this state concerning the settlement of a female pauper, bom in one of them, but married to a husband proved to have once had a settlement in a town in Massachusetts, it was held unnecessary for the town in which the pauper was born, to prove that the husband was settled in another town in this state, since by the law of Massachusetts the husband retained his original settlement there until he had gained another settlement in that state.</p>

<p>By the law of Khode Island, the husband, if he have no settlement in this state, or in any of the United States, follows the settlement of his wife.</p> <p>An order of the town council of a town in this state to the clerk of the council to grant a certificate to a person, to another town in this state, is an acknowledgment of the town making the order, that such person was, at the time, settled in that town.</p> <p>The history of such certificates traced through the statutes of Khode Island to the English statutes in regard to the removal and settlement of the poor, adopted here in colonial times.</p>

<p>An agent for an insurance company, empowered merely to receive written applications for insurance, to transmit them to the company, and, if they decide to take the risk, to receive the policy executed by them and to issue it to the applicant upon receipt from him of the premium, is not the agent of the company for the making of applications; and if employed by the applicant, or permitted to act for him in drawing up the application, is his agent, for whose mistakes of fact committed in the statements or answers to interrogatories in the applications, he is responsible.</p> <p>If, however, the agent, being empowered to receive and transmit written applications for insurance to the company, be requested by the applicant to copy the answers which he shall make in another application for insurance upon the same property taken away by him to fill up, instead of waiting until he receive from the applicant such answers to copy, send to his company an old application for insurance upon the same property corrected to suit the change of circumstances by himself, thus sending an application which he was not authorized by the applicant to send, the company is estopped from setting up the mistakes of fact in the application so missent by their agent in defence to a suit on the policy for a loss under it.</p> <p>The company cannot be affected with notice by verbal communications made by the applicant to an agent authorized only as above; and in a suit upon the policy for a loss, evidence of verbal communications of facts made to the agent varying from the statements in the written application, is inadmissible to avoid the effect of misstatements or mistakes in the written application.</p> <p>If it be doubtful from the words of a policy whether certain statements made by the insured relative to the subject of insurance are to be regarded as warranties or representations, they will be regarded as representations merely.</p> <p>Where the written application for a policy of fire insurance contained amongst others the following questions and answers: “ 19. Are the works operated on account of the proprietors or are they rented*? Ans. By the proprietor. 20. Are they immediately superintended by one of the proprietors? If not, by whom? Ans. Yes.” — Which answers were both untrue; it was held, that evidence was inadmissible to show that these misstatements were under the circumstances immaterial to the risk ; since, whether they were to be regarded as warranted, or not, they were, being asked and answered, made by the parties material as representations, and so their truth made a condition of the policy, whether they were in fact material or not.</p>

<p>The admission of irrelevant testimony, tending to prejudice the party objecting to it may, in the discretion of the court, be ground for new trial; but where the testimony is admitted solely to remove a ground of prejudice caused by the irrelevant testimony of the objecting party, its admission is not only not a ground for new trial, but proper in the discretion of the judge trying the cause, to the impartial ordering of the trial.</p> <p>In construing the answers to the interrogatories in a printed application for fire insurance, although the proper meaning of the words used is to be first resorted to, yet the meaning attached by the applicant to them, clearly ascertainable from the connection in which he uses them, is to prevail over their proper meaning.</p> <p>Inaccuracies in the answers to such interrogatories caused by the ambiguity of the inter- . rogatories, taken in their connection with each other, are to be charged to the account of the insurers who prepared the applications.</p> <p>Where the applicant for insurance against fire on a cotton mill and machinery, to previous questions had answered that the buildings, and machinery, with certain specified exceptions, belonged to one person — himself—and that certain machinery not to be insured in the policy, belonged to one A. H., and that “ the works ” were not operated by the proprietors but were rented, and in reply to the question, “Are they (the works) immediately superintended by one of the proprietors? ” answers “ Yes;” the answer is sufficiently verified by the fact that “the works” were superintended by the tenant, A. H., — in common parlance, a “proprietor,” as distinguished from his employees, and who actually owned a part of the machinery run in the works, whether the meaning intended to be conveyed or actually conveyed by the answer, under the circumstances, be considered. •</p> <p>The burden of proving the breach of a promissory warranty in a policy of fire insurance is not upon the insurers; on the contrary, the burden of proving a compliance therewith is upon the assured; and hence the declaration on a policy for a loss under it should aver the performance of such and all other warranties of the assured — a requisite of the declaration sufficiently satisfied by a general averment, that all things have happened which it was necessary should happen to entitle the plaintiff to recover the loss.</p>

<p>The receiver of a dissolved copartnership, appointed by a decretal order in equity, is an officer of the court appointing him, invested with the whole equitable title to the partnership property without an assignment, and in any suit concerning such property, represents the interests in such property of all parties to the suit in which he was appointed, if not of all persons not parties to such suit.</p> <p>Such receiver may, to enable him to perform his trust, suo mota, and without special leave from the court appointing him, bring suits to possess himself of the partnership property, incurring no risk except as to costs; the property, when in his hands, being in custodia legis, and subject to administration by order of the court.</p> <p>The administrator of a deceased copartner, upon whose bill a receiver of the copartnership property has been appointed, thereby surrenders to the receiver all his dominion over the copartnership property, at least so far as the purposes of the suit are concerned; and in any proceeding in equity thereafter instituted by the receiver, with regard to such property, to enable him to perform his trust, he represents not only the interests and equities of the creditors of the copartnership in the property, but also those of the deceased copartner. Hence, to a bill instituted by such receiver to possess himself of the partnership property and have the same applied to the payment of the partnership debts, neither the representative of the deceased copartner nor the creditors of the firm are necessary parties.</p> <p>The rule that the creditors of a firm have no equitable lien upon the copartnership property, but can only -work out such a lien through the equities of the copartners, applicable W'hilst the copartners are administering their own funds, has no application to the ease of a copartnership dissolved by the death of one of the copartners, .especially if the surviving partner be insolvent, or where, though living, one or both the copartners have become insolvent or bankrupt, so that their property is in the hands of assignees for distribution. In such cases an equitable lien attaches^ in favor of the copartnership creditors upon the joint property, and in favor of the separate creditors of each copartner, upon,his separate property, in the hands of the surviving partner, as a trustee for each class of creditors by implication, or in the hands of the assignees, as trustees, by virtue of an express trust, which will be administered in equity against such trustees, upon the direct application of the creditors.</p> <p>Where the bill places the relief which it asks upon the ground of actual fraud or covin in the respondent, and the proof fails to support it upon that ground, the bill must be dismissed with costs, although upon the facts as proved, the court might have relieved upon some other ground than fraud, had the bill placed the relief upon such other ground.</p> <p>The reasons for this rule considered and discussed, and the cases of Mmmt Vernon Sank v. Stone, 2 R. I. Rep. 129, and of Masterson v. Finnegan, ib. 316, criticized, and reconciled under it.</p> <p>The rule applies only when actual or moral, as distinguished from constructive fraud, is charged, and does apply when such fraud is substantially charged as the ground of relief, whether the word “fraudulent” be used or not.</p> <p>A bill, filed by a receiver of a partnership in behalf of a numerous body of creditors dismissed under the above rule, will be dismissed without prejudice; and where drawn under the advice of counsel, without fault on the part of the receiver, the costs will be allowed to him out of any funds which have come or may come to his hands as such receiver.</p> <p>Real estate, purchased with the copartnership funds, or by the copartnership credit, for the uses of the firm, will be treated in equity as copartnership property as between the copartners, and be held applicable to the payment of copartnership debts; and from such purchase and use will be presumed to be intended by the copartners to be held and treated by them as copartnership property, notwithstanding the deed is taken to them as tenants in common, and without describing them as copartners.</p> <p>When, however, the deed is so taken, according to the weight of authority in this country, such property will, after the payment of the copartnership debts and the adjustment of the balances between the copartners, be regarded in equity as the joint undivided real property of the copartners, according to their several interests in the firm, and, as such, pass to their heirs instead of to their personal representatives.</p> <p>A bona fide purchaser or mortgagee for value of the real property of a partnership, the legal title to which is vested in the copartners, or in some one of them for the firm, without notice of the equitable rights of others in it as a part of the copartnership funds, will, upon the ground of his own equities as such purchaser, be protected in his title in equity as well as at law.</p> <p>And such purchaser from a surviving partner of the whole, or even of an undivided portion, of such property, and obtaining from such partner a conveyance of the legal title thereto, would not take it subject to the same trust as in the hands of his grantor merely because he knew it to be copartnership property and that there were copartnership debts still outstanding; if the purchase were made by him openly, and with the apparent consent of all concerned, and under circumstances fairly indicating to him that no breach of trust, by the application of the purchase-money to his individual uses, was intended by the vendor, but that the property was sold by him in the execution of his trust for the payment of the copartnership debts.</p> <p>But where a purchase of the undivided half of a planing-mill, &c., was made for value of a surviving partner of a firm of housewrights, by one who knew that the mill was built up with the copartnership funds and credit for, and had always been applied solely to, the copartnership uses, — that the dissolved firm was greatly indebted, if not insolvent, and that none of its debts had been paid by the surviving partner, — and the conveyance was taken and the purchase-money paid secretly, and on the very night on which the vendor absconded with it, the purchaser was held to be affected by the circumstances with constructive notice of the breach of trust intended, at the time of the purchase, to be committed by the absconding partner, and to hold the legal title thus acquired by him subject to the trust of his vendor; although the proof was not sufficient against his answer, to convict him of an actual participation in the corrupt design of his vendor, and he swore in his answer, that from the fact that the copartners held the estate by their deed as tenants in common merely, he supposed that the undivided half of it which he purchased, was the individual property of his grantor.</p>

At the trial of the appeal at the June term, 1855, of the court of common pleas for the county of Providence, before Mr. Justice Sherman, sitting with a jury, certain exceptions were taken to his rulings upon objections to testimony, and to his instructions to the jury, and were brought to this court, which are so fully stated in the opinion of the court, that they need not be detailed here.

Bill in equity by the plaintiffs, otherwise entitled to a lot of land in Fulton-street, Providence, to be relieved from a forfeiture of said lot, claimed under the provisions of the will of the late Caleb Westcott, of Warwick, deceased, in consequence of the non-payment to the executors of said will of the sum of $250 within four months after the death of the said Caleb.

<p>The act of the general assembly, “ in relation to the laying out, enlarging, straightening, or otherwise altering streets in the city of Providence,” — passed January session, 1854,— and which allows not to exceed half the expense of the improvement, when, in the discretion of the city council, it is made in pursuance of the provisions of the act, to be assessed upon the adjacent proprietors benefited thereby, is constitutionally valid.</p> <p>It does not transgress the limit of “just compensation,” imposed by art. 1, sect. 16, of the constitution, as a restriction upon the public right of eminent domain, nor does it conflict with art. 1, sect. 2, of the constitution, which declares, that “ the burdens of the state ought to be fairly distributed among its citizens.”</p>

<p>A person, other than the mother of a bastard child, oannot be convicted of the offence “ of concealing the birth of such child, so that it may not be known whether it was . born alive or not,” under the 86th section of the “Act concerning crimes and punishments,” unless upon an indictment which charges the mother of the bastard also with the offence; the words and policy of the act contemplating no such crime, unless the mother be a participator in it.</p> <p>Such person may, however, upon proper proof, be convicted of aiding, assisting, abetting, counselling, commanding, or procuring the commission of such an offence, upon an indictment which charges the mother with the offence, and such other person as an aider, abettor, &c., although the indictments does not charge such person with being “present,” aiding, abetting, &c.</p>

Edward Fitzpatrick was indicted at the May term of the court of common pleas, 1856, for the county of Providence, for fraudulently voting twice, at the April election of that year, for general officers and members of the general assembly.

Bill in equity, by a widow against a trustee under her marriage settlement, the heirs at law of a deceased trustee, and her children, to compel a reconveyance to her, free of trust, of real and personal estate settled by her upon her late marriage. The suit was an amicable one, was heard upon bill and answer, and submitted to the court without argument.

Bill in equity by the vendors to enforce the specific performance of a contract of sale of a house and lot in Broad-street, Providence, by them made with the respondent. The allegations of the bill, which was first tried upon demurrer for want of equity, and the facts of the case, the cause having been afterwards heard upon the proofs, are so fully set forth in the opinion of the court, that it would be repetition merely to prefix them to the report of the case.

<p>A demurrer to a bill in equity, for want of equity, cannot be allowed, unless the court is satisfied that no discovery or proof, called for by the bill or founded upon its allegations, can make the cause set forth in it a proper subject of equitable cognizance.</p> <p>In construing the bill, upon such a demurrer, the court is not at liberty to infer from facts stated in the bill, facts unfavorable to the plaintiff’s right to relief, if indeed it is not bound to make, as in case of a demurrer to evidence at law, every reasonable intendment in his favor.</p> <p>Where a bill, brought to abate a mill-dam which flowed water upon the land of the complainant, alleged that “ there has not been upon said dam any mill or other building requiring the use of the waterfall created thereby as a motive power, for more than twenty years last past,” upon general demurrer to the bill for want of equity, the court cannot infer that there has been during the twenty years a mill elsewhere than at the dam, on the stream issuing from the pond, which required the use of the pond raised by the dam as a reservoir, for the purpose of drying the question, whether, under the mill act, the defendants had a right to maintain their dam for such purpose. —</p> <p>It is no ground.of demurrer to such a bill that although it states or acknowledges that for a period of nearly five years before the filing of the bill the dam had been kept up without compensation made by the defendants, it does not allege that the right of the plaintiffsjhas, before the filing of the bill. been_established in a suit at law: the course of a court of equity in modern times in dealing out its relief upon such a bill admitting of a wide exercise of discretion to adjust its relief to the circumstances, and the lapse of time, short of the time of limitation, being but one element of laches or acquiescence, capable of being explained by proof without any foundation being laid for it in the allegations of the bill.</p> <p>The practice of the court as to its preliminary and final relief upon such a bill, in modern times, explained and illustrated, and compared with the practice in the times of Lords Hardwicke and Thurlow.</p> <p>Such a bill is not demun-able because it does not state a case of irreparable or destructive mischief, so that it states that the dam backs the water upon the land of the plaintiff; since, upon such last allegation, the plaintiff would be at liberty to prove a flow to any, the most destructive extent, and no inferences can be drawn against him upon demurrer.</p> <p>Nor is the bill demurrable on this last ground, although it admits that during the last twenty years the dam has been kept up, and until within about five years before the filing of the bill, the defendants, as owners of the dam, had compensated the complainants as owners of the lands flowed, for the injury caused by the flowage; for though such admission would be good ground to refuse a preliminary injunction, it would be no ground, the right of the complainant being admitted or established, upon which to refuse relief.</p> <p>Nor is such a bill demurrable, because, although it does not disclose any right of the defendants, existing at the time of the bill filed, to flow the lands of the complainants, but complains of such flow as a nuisance, it does not allege that the flowage complained of is not under claim of right.</p> <p>The court will not imply that the complainant’s title is doubtful upon such a bill; and if it were doubtful, though this might modify, it would not necessarily disentitle him to relief.</p>

<p>A bill of interpleader cannot be maintained, unless where the same debt or duty is severally claimed of the plaintiff by two or more persons, and where the plaintiff has no interest in the success of either, but is a mere stakeholder for the respective claimants.</p> <p>It would seem, therefore, that such a bill cannot be maintained by trustees when the trust property is taxed in two different towns, against the respective tax collectors of those towns, to compel them'to litigate the right to tax the same property with each other, the tax in one town being different from and larger than the tax in the other; and it cer- ■ tainly cannot be, where it appears, that the trust property is partly taxable in the one, and partly in the other town, and so, is subject to a double liability. ■</p> <p>Bills of interpleader are not encouraged, on account of the delay and expense whjch they occasion.</p> <p>By the express direction of the 15th section of the tax act of 1855, trust property, the income of which is to be paid to any person, shall be to that extent assessed against the trustee, in the town in which such beneficial owner resides; but to the extent that the trust fund is to accumulate, by the provisions of the trust, and to be differently distributed according to certain contingencies still pending, it must be regarded, for the purposes of taxation, as the property of the trustees, and be taxed to them, under the general direction of the 8th section of the same act, as owners of the same, in the town in which they reside.</p> <p>Where trust property, partly liable to be taxed in one town, and partly in another, is taxed in both, as if wholly taxable in each, and it does not appear that the trustees brought in to the assessors of taxes in either town an account, under oath, of the ratable estate in their hands as trustees, according to the requirement of the 5th section of the tax act of 1855, it is an ordinary case of over taxation, for which, by the last clause of that section, they can have no remedy whatsoever.</p> <p>Trustees are entitled to apply to a court of equity for such instructions as are proper for a court of equity to give, as depending upon the construction of the instrument creating the trust, or dependent upon considerations of a purely equitable nature; but are not entitled to come to a court of equity for the solution of mere questions of law, such as the construction of a tax act in its application to the trust fund, about which they should take the advice of counsel, and if necessary, test by the decision of the proper tribunal for such questions — a court of law.</p> <p>Where, however, an interpleading bill was filed by trustees, in a supposed case of double taxation of the trust fund, against the respective tax collectors of two towns, both of which had taxed the trust fund, and had been suffered to go on without demurrer, by a kind of consent, to the solution of the questions pending between the towns and the trustees, and had thus been made to serve the turn of all parties to it, it was dismissed without costs.</p>

This cause came up on certificate from the court of common pleas of the county of Providence, under the act of January session, 1854, which provides, in substance, that all constitutional questions arising in any other court, shall be certified to the supreme court, for their decision of the same.

<p>The opinions of the members of a committee, who, after consultation with stage carpenters and. artists, had fitted up a theatre in New Bedford, not admissible as proof of the cost of the fitting up of a theatre in Providence; such persons not being experts, and the cost of the fitting up of a theatre in New Bedford, not proving the cost of the fitting up of a theatre in Providence.</p> <p>Fixtures for a theatre includes box seats for the audience, with proper upholstery for the same; and the cost to which the plaintiff, the lessee and manager of a theatre, was necessarily put in furnishing chairs for the boxes, in consequence of the non-performance, by the defendant, of his contract to provide proper box seats, may be given in evidence to the jury, to enable them to estimate the damage sustained by the plaintiff from this breach of contract.</p> <p>Where a contract to furnish accommodations for a theatre, on a five years’ lease, in a building about to be erected, refers for the finish of the building to the specifications in a building contract, in which no provision is made for painting the theatre walls, such painting cannot be claimed to be within the first contract, although the same provides for the furnishing “ of scendry and fixtures for the theatre; ” the painting of the walls of the theatre not falling within the denomination either of “ scenery ” or “fixtures.”</p> <p>The admission of irrelevant and immaterial testimony which it appears could not have affected the verdict is no ground for new trial.</p> <p>If jurymen agree to mark, each, the amount of the plaintiff’s damages, and that the quotient of the aggregate thus marked, such aggregate being divided by twelve, shall be their verdict, the verdict will be set aside as made in a mode which precludes it from representing the judgment of the jury; but if after obtaining such an average of their opinions, without prior agreement to abide by the result, they, upon deliberation, adopt that result as a proper amount of damages to be returned by them for the plaintiff, the court will not, for this cause, disturb the verdict.</p> <p>Where an item to a definite amount has been improperly allowed to be proved to the jury to guide their judgment in the estimate of damages, and in other resp'ects the verdict is unexceptionable, the court will refuse a new trial, on condition that the plaintiff will enter a remittitur of record to the amount of the objectionable item.</p>

Action of dower. Pleas in abatement and bar having been interposed by the tenants, at the March term of this court, 1856, it was agreed that these pleas should be waived and the demandant have judgment for the recovery of her dower; and at the request of the parties, the following entry was made by the clerk, under the direction of the court, upon his docket, “ Defendants submit to judgment for plaintiff for dower, no costs.” A commission was then taken out to “ three…

Bill in equity, to enjoin the transfer, or for an account of the proceeds of sale, of an hundred shares in the capital stock of the defendant bank, late standing on their books in the name of Edward Seagraves, and which the bill alleged was sold, and is about to be transferred by the bank, through a fraudulent perversion of a statute power, given to them to sell the stock of a delinquent debtor of the bank to satisfy his debt to the bank.

<p>Where damages are to be appraised prospectively, and before the road is built, for injuries to land located by a railroad company, it is competent for the company, to prove by experts — the necessity upon the company to place a culvert through their embankment, at a particular point, to save their embankment, by way of answer to a claim for damages on account of the prospective stopping up of certain drains at the same point by the embankment of the road, which drains are necessary to free the land of the claimant from water.</p> <p>In such case, however, the jury should, in the absence of a stipulation, binding the railroad company to construct the culvert, be satisfied that it was necessary for the railroad company to build the culvert for their own protection, and not that it was merely the best of two or more plans which they might adopt, the others of which would enable the company to dispense with the culvert, before they acted in the assessment of damages upon the supposition that such a culvert would be constructed.</p> <p>The company are not estopped from proving such necessity by the fact that the plat of location does not indicate a culvert through the embankment at the point in question; the purpose of such a plat being, to show the course and width of the road, as located, and the names of the owners of the land taken, as far as they can be ascertained, and the quantity of their land taken, and not the mode, in other respects, in which the road will be constructed and protected.</p>

<p>Where the written contract, under which work is done or materials are furnished at a stipulated price provides, that such price shall “ he payable, when the job is completed, in satisfactory six months’ paper, interest added,” the four mouths, within which legal process "is to he commenced, under the 4th section of “the mechanics’ lien law,” begins to run from the maturity of the six months’ paper provided for by the contract, as the time of payment under the same, and not from the completion of the job.</p> <p>Notwithstanding the non-delivery of the six months’ paper under such a contract, the right to sue for the price of the labor and materials is suspended until the period is reached at which the paper would have come to maturity, if delivered; the remedy in the meantime being confined to a special action of assumpsit for the non-delivery of the paper.</p> <p>The delivery and receipt of the'employer’s notes or of his draft, as the “satisfactory paper ” under such a contract, is not final payment of the price stipulated in it, but conditional only upon the paper’s being paid at maturity; and does not therefore discharge the mechanics’ lien, although a receipt be given by him for the paper, as “ in full to date; ” proof of the clear intent of parties to that effect being necessary in such case, to make the paper final payment of the contract, so as to discharge the lien given to secure the employer’s promise to pay in accordance with it.</p> <p>It is the duty of the court, in a case calling for it, to instruct the j ury what inferences may be legally drawn from the words of a written contract, or of receipts coupled with the conduct of the parties in exposition of them, upon the question, whether the delivery of paper under the contract was intended by the p.arties to be final or conditional payment only of the same: the legal sufficiency of proof being for the court — the moral weight of legally sufficient proof being for the jury.</p> <p>Where two or more grounds of action or of defence are taken under the same issue, it is proper for the court, in its discretion, to direct the jury specially to declare upon what ground their verdict is found; in order to ascertain, whether a particular direction of the court, in matter of law, affected or not the verdict.</p> <p>A misrecital of the testimony by a judge in his summing up to the jury, is no ground of new trial; such summing up being an appeal to their recollection. It is the right of counsel, in a proper manner and at a proper time, to correct such mistake by calling the attention of the judge to it, in the presence of the jury, before the cause is finally committed to them; and a failure then to make the correction, is á waiver of all right to make it thereafter.</p>

<p>An order for the payment of money, drawn by a physician of one of the marine hospitals of the United States upon the collector of the port, held, in a suit against the drawer to be void, as against public policy, it being proved to have been given in consideration that a former physician of the same hospital would resign the office in his favor; although the former physician had not promised to use any influence to procure the appointment of his successor, and was entitled to no retiring pension.</p> <p>The facts that the retiring officer resigned because desirous to remove to a distant part of the country, and that, in requiring his successor to pay for his resignation he was, in truth, only requiring him to repay a portion of the money, which, that successor having been his predecessor also in the same Office, had obtained of him, under a like contract, held not to vary the application of the rule of policy.</p>

<p>The court can remove under the “ act in relation to the supreme court,” a voluntary assignee for the. benefit of creditors, upon petition, for cause shown, only in case the application for his removal be made by a majority in interest of the creditors interested in the assignment; the remedy, in case such majority dd not apply, being by MU only.</p> <p>In ascertaining such majority, lien creditors and mortgagees who are fully secured outside the assignment are not to be reckoned as “interested,” in the sense of the statute, in it.</p> <p>A court of equity will not remove a trustee on the ground of an honest mistake or misjudgment in the execution of his trust, nor, under circumstances, even hold him accountable for the consequences of his mistake or misjudgment.</p> <p>But where a trustee under a voluntary assignment for creditors, is proved to have advised fictitious preferences to bo inserted in the same for the purpose of defeating the claim of a particular creditor, the court, for that cause, will remove him from the trust upon the application of a majority in interest of the other creditors, although he has, in disregard of the preferences of the assignment, settled, out of the assigned property, the claim of the creditor who was the object of the fraudulent assignment.</p>

Bill in equity, filed by the plaintiff, as executor of the last will and testament of the late Richard C. Derby, formerly of Boston, Massachusetts, and late of Newport, Rhode Island, deceased, for the construction of said will, and for the marshal-ling of the legacies therein given in the order and proportion in which they should be paid, the property of the testator proving insufficient to pay them in full. All the legatees were served, and answered the bill.

Action on the case, brought by Daniel Lamphear, late of Westerly, and now prosecuted by the plaintiff, as his administrator, for the obstruction of a way, by the maintenance of a building across it from the 1st day of February, 1854, to the 17th day of April, 1854.

Bill in equity. The bill stated that the complainant was the owner of two lots of land lying on the westerly side of South Touro-street, in Newport, on one pi which was a dwelling house, and that one Benjamin Coit, street commissioner for the city of Newport, together with certain other persons named in the bill, assessors of taxes, and the defendant, collector of taxes, for said city, intending to injure the plaintiff, and impair the value of her estate, executed their…

Bill in equity. The bill was filed by the complainant as entitled, under the residuary clause of the will of the late James D’Wolf of Bristol, against the defendant, as surviving trustee under said will; and was demurred to, on the ground that it was a bill for an account of the residuary fund. in the hands of the respondent as trustee, and that the other children and grandchildren of the testator, shown by the bill to be entitled with the complainant to the rest and residue…

The appeal was tried, at the May term, 1856, of the court of common pleas for the county of Bristol, before Mr. Justice Sherman, with a jury; and was now brought by the appellant and claimant to this court upon exceptions to the rulings of the judge. The posture of the case and the matter of the exceptions are so fully stated in the opinion of the court,'that it is not necessary to state them here.

<p>As by the practice in Rhode Island, it is not required in a suit at law by an executor or administrator, that he should set forth in his declaration specially his title to the office in which he sues, or makes profert of his letters testamentary or of administration, an executor or administrator, suing in that character, may properly reply, to a plea of ne migues executor or administrator, his special title to that character, and make profert of his letters in his replication; concluding the same, on account of this new matter, with a verification.</p> <p>Where, however, the plea to such a suit truly sets forth the plaintiff’s title as administrator, and impeaches it by alleging that his intestate Was not, at the time of his death, a resident of the town whose court of probate granted to the plaintiff his letters, but was at that time a resident of another town in the state named in the plea; and the plaintiff in his replication affirms that his intestate resided at the time of his death in the town whose court of probate granted to him his letters, and denies that he resided in the town named in the plea, he should conclude his replication to the country, notwithstanding he unnecessarily makes profert therein of his letters of administration, and states all the particular circumstances attending the grant of them; but such fault of conclusion being a mere fault of form, the court, under the statute of amendments in force here, cannot render judgment against the plaintiff, but can merely order the conclusion of the replication to be amended without costs.</p> <p>Upon motion by the defendant, that certain actions brought against him by an administrator, be entered settled, upon the ground that since the last continuance the administrator had executed a release to him of the causes of action and an agreement authorizing such entry, to which motion the counsel for the plaintiff objected, denying the execution of such release and agreement, and asserting, that if executed, the same was obtained by fraud and misrepresentation, and was executed by the administrator in breach of his trust, lie-having since resigned; and the.suits being further prosecuted by his successor, the court, first taking proof of the execution of the agreement, ordered, that the suits be entered settled, unless the plaintiff elected, which he did, to permit the defendant to set up on the trial of the actions said agreement and release, with the other issues in the actions, with the same effect as if executed before the commencement of the actions, and originally pleaded; the defendant to have the right to impeach the same in any proper manner.</p>

Assumpsit against the defendant as receiptor to the plaintiff, when marshal of the Rhode Island district, for the steamboat Massachusetts, her tackle, apparel, and furniture, attached by the latter upon a process of summons and attachment, issued by the district court of the United States for said district, upon a libel in admiralty, filed by the Merchants’ Bank of Boston against the New Jersey Steam Navigation Company, a corporation, — which process had been placed in the…

This was an action of assumpsit brought by the American Bank against the defendant, collector of taxes in the city of Providence, to recover the sum of $261, being the amount by him received for four shares in the capital stock of the What-cheer Corporation, standing in their name, and by him levied and sold, under their protest, for taxes assessed by the city of Providence against them.

This was an action of assumpsit brought by the plaintiff, an incorporated savings bank in the city of Providence, against the defendant, city treasurer of Providence, to recover back the sum of $3,582.23, being the amount of taxes assessed by the city against the plaintiff corporation, as the owner of certain bank stocks, in which a portion of their deposits had been invested for income.

<p>The ordinance of the city of Providence, entitled “ An ordinance to prohibit the opening of places of trade or entertainment on Sundays, or late at night,” defines and punishes two distinct offences: one, the opening or keeping open of such a place, unless a licensed tavern, after eleven o’clock at night and before daylight in the morning, or on Sundays, and the other, the selling of any article in such place during the time or on the day prohibited.</p> <p>The exaction of the jury fee of five dollars, by the municipal court of the city of Providence, would not, if such exaction were unconstitutional, be cause for a new trial of a complaint under a city ordinance in which the exaction was made; since the new trial would not repay to the applicant the jury fee which he had paid, but only subject him to the exaction of another.</p>

Petition for a trial of a defaulted case, commenced against the petitioner at the March term of this court, 1856, upon the ground, that the petitioner was not aware that it was necessary for him to defend a suit in order to prevent judgment from passing against him by default therein, whereby the respondent had recovered against him, without cause, judgment for a large amount.

Motion to dismiss a suit served by foreign attachment, on the ground of no property of the defendant in the hands of the garnishee at the time of the service.

<p>When upon an application by a committed debtor, to a justice of the peace, for a second citation to bis creditor to show cause why be should not be admitted to tbe poor debt- or’s oatb, it appears, that, according to tbe requirement of tbe 18th section of tbe “ Act for tbe relief of poor persons imprisoned for debt,” proof was exhibited to the justice of a change of circumstances since tbe debtor’s first citation, satisfactory to him, and such change, recited in the second citation to the creditor, is of such a nature that it might justify the grant of such second citation, the decision of the justice, upon the proof exhibited, signified by the grant of the citation, is so far conclusive, that it cannot be impeached in any collateral proceeding for the purpose of showing that the justice had not jurisdiction to summon the creditor, and to hear and to admit to the benefit of the oath, the debtor.</p> <p>A former citation of the debtor not proceeded with by the justice issuing it, or dismissed by the two justices, when met upon the day appointed by it for the hearing, because the same was not served the number of days before the day of hearing required by the statute, is not such a withdrawal of, or trial upon that citation, as to require, under the 18th section of the above statute, a change of circumstances, before the debtor is entitled to summon his committing creditor upon another citation.</p>

Demurrer to a bill of interpleader. The ■ bill, in substance, stated, that there were three shares in the capital stock of the plaintiff bank standing in the name of one Amasa W. Whipple, which, on the 10th day of August, 1853, were attached on a writ issued out of this court at the suit of the defendant, Padelford, against said Whipple, which writ is now pending,— that in the November preceding the attachment, the defendant, Trescott, had claimed the attached shares as…

<p>The deposit of a deed conveying the legal title to an estate as security for the amount of a mortgage upon it, relinquished by the mortgagee to the depositor to enable him to obtain the title from the holder of the equity of redemption, constitutes an equitable mortgage upon the estate as between the original parties to the deposit and those subject to their equities, which a court of equity will establish and enforce by sale of the depositor’s interest in it, and the interest of those holding the legal title for him, or subject to his equity, especially when necessary to prevent a gross fraud and breach of trust from being practised by the purchaser upon the mortgagee.</p>

Bill in equity to enforce a supposed lien of the plaintiff upon a steam engine, boilers, and shafting in the Manchester Print Works, in Smithfield, or to have partition of the same as a part-owner, under a statute of this state, to which a demurrer was filed for want of equity; a special cause of demurrer having been waived at the hearing.

<p>Where two mortgages upon the same personal property were executed, with the knowledge of both the mortgagees at the same time, for their equal security as creditors and accommodation indorsers of the mortgagor, and both mortgages were put upon record within an hour of their execution, though one reached the city clerk’s hands a few minutes earlier than the other, and subsequently the mortgagor assigned the mortgaged property subject to the mortgages, for the benefit of his creditors, and the assignee had, by agreement, sold the same, free from the mortgages, for the benefit of whom it might concern; Held, upon a bill in equity filed by the assignee for instructions, that, after deducting the costs and expenses of the suit, he should distribute the proceeds of sale between the mortgagees, not in moieties, but in proportion to the amount of debts due and liabilities incurred by each under their respective mortgages, without reference to whether they were prior or subsequent accommodation indorsers upon the same paper; and that, to .satisfy the equities of the holders of the indorsed paper upon the property mortgaged for their security, as well as for the security of the assigned estate, this distribution should be made, so far as outstanding accommodation paper indorsed by the mortgagees was concerned, to the holders of the paper, and not to the mortgagees.</p>

<p>Where a discharge under the insolvent law of another state is pleaded to a contract sued here, the statute under which the discharge is granted must be set forth in the plea, and cannot be referred to merely by its title and chapter in the digest.</p> <p>A note payable to A. L. W. or to R. G. P. is, at least, evidence of a joint contract with both the payees, if not of a several contract with each of them; and so, both are entitled to sue jointly thereon.</p>

Assumpsit brought to recover the sum of $32.50 for board furnished by the plaintiff to the defendant between the 15th day of November, 1852, and the 23d day of February, 1853, at the price of $2.50 per week.

The prisoner was tried at the May term of the court of common pleas for the county of Newport,' 1857, for having in his possession, with intent to pass, and for passing, with intent to defraud one Cornelius Keating, a ten dollar counterfeit bill of the Bank of Montgomery County, Pennsylvania. The indictment contained two counts.

Replevin for a house frame, and a quantity of timber, logs, and cord wood. Pleas, non cepit, and issue joined, and property in one James; replication, affirming property in the plaintiffs, and issue joined.