Volume 5 — Rhode Island Reports

INFORMATION in the nflature of a writ of quo warrcmto, filed by the attorney-general of his own authority, but, as the' information recited, on the relation of Jos. S. Pitman, a militia officer of Rhode Island, to inquire by what authority the defendant exercised the office of major-general of the Division of Rhode Island Militia.

<p>This was an application by the bank commissioners, under ch. 126, § 47, of the Revised Statutes, to enjoin the Rhode Island Central Bank from further exercising the powers and franchises conferred by its charter, and to wind up its affairs through a receiver, on the ground, averred in the application, that said bank “ is so managing its concerns, that the public, or those having funds in its custody, are in danger of being defrauded thereby.” A temporary injunction having accompanied the citation under the 64th section of the above chapter, upon the final hearing upon the questions whether the injunction should be removed or be made perpetual, and a receiver appointed to wind up the bank, the following facts, material to the matters in issue, appeared: that this bank was chartered by the general assembly at the October session, 1805, with a capital of $100,000, but with power of increasing the capital “ to an amount not exceeding $500,000, under such rules and restrictions as a majority of the stockholders, regularly convened for that purpose, may establish; ” that on the 12th day of November, 1856, the capital of the bank being then about $121,711.86, it was voted to increase it by the sum of $375,000, —thus raising it to the sum of $496,711.86 ; that $300,000 of this increase of capital stock was taken by and transferred on the books of the bank to thirty persons, all living out of the state, in amounts of $10,000 each, each of them giving therefor to the bank his promissory note for the sum of $10,000, payable in five years, in the bills of the bank, — the other $75,000 of the increase being charged on the books of the bank to other parties, to whom certificates for the same were never issued, they refusing to take the stock and give their notes for the same ; that thereupon, on the same day of this increase of capital stock, the directors proceeded to discount notes, principally of these new stockholders, and to pay out and put in circulation bills of the bank to very large amounts, so that the circulation of the bank suddenly rose in this mode to the sum of about $390,000, in addition to about $42,000, since ascertained . to be the old circulation of the bank, then outstanding. In this state of things, the bank was visited, on the 14th day of November, 1856, by a special commission raised for that purpose by the governor, who, finding that so large a portion of the assets of the bank as $300,000 of stock notes rested for its value upon the credit of persons of whom they could ascertain nothing, insisted that this paper should be changed for paper, not to run longer than one year, of persons whose credit at least was supposed by them, upon inquiry, to be good; and with their approval, the $300,000 of stock notes were given up upon a retransfer of stock to that amount to the bank; and the same stock was transferred to the amount of $100,000 to John J. Anderson, of $100,000 to Smith & Goodell, of $20,000 to J. Y. Sanger, of $20,000 to J. L. Stewart, of $20,000 to W. D. Sanger, of $20,000 to L. P. Sanger, and of $20,000 to John Brown — firms and persons in the western country supposed by the commissioners, after inquiry made, to be in good standing— and their notes, payable in one year in the bills of the bank, given to the bank in corresponding amounts therefor. The commissioners also recommended that the business and circulation of the bank be curtailed; that more specie funds be acquired by the bank, and that the “protected circulation” of the bank — that is, the circulation discounted and redeemed abroad, in New York and in the west, under contracts between the bank and its customers there — be annulled, so soon as the contracts on time for the same had expired. Under the surveillance of this commission, it appears that the circulation of the bank was reduced nearly $40,000, so that the circulation of the bank stood at the time of their report at about $352,000, not including the old circulation of about $42,000, before spoken of, and the bank went into new management, a new president and cashier having been appointed in the early part of the month of December, 1856. On the 2d day of February, 1857, the directors voted that the $75,000 ‘of stock, for which no certificates had been issued, be held by the bank for sale to such persons and upon such conditions as the bank might approve. On 2d day of March, 1857, the president and cashier were authorized by a vote of the directors to purchase for the bank as much of the stock of the bank as- should be for its interest. Under this vote, the president and cashier, in August and September, 1857, bought for and received transfers to the bank from sundry of its stockholders, of stock to the amount of about $94,000, surrendering to the sellers their notes to that amount in payment therefor; so that, on the 30th of September, 1857, the date of the last purchase of stock by the bank, the bank held of its nominal stock $169,000 — to wit, $75,000 of it which had never been transferred, and $94,000 of it, purchased as aforesaid. At the time of this purchase by the bank of its stock, its new or protected circulation was about $392,000, and its old or miscellaneous circulation was about $42,000, as near as the latter could be ascertained, making in all an aggregate of about $434,000.</p> <p>This application was filed on the 3d day of October, 1857, and since the application the circulation of the bank has been gradually reduced, standing at $244,000 on the 30th November, 1857, and at $162,351 on the 5th day of December, 1857, the day of the hearing — to which, however, is to be added the $42,000 of old or miscellaneous circulation before spoken of. To meet its circulation, for the deposits were small, and its specie and deposits in other banks were inconsiderable, the bank relied, at the time of the application, upon its bills receivable, payable in the bills of the bank to the amount of about $500,000, about $486,000 of which was due to it from three firms in St. Louis, Mo., to wit, Sanger, Stewart & Co. about $219,000, Smith & Goodell about $139,000, and J. Anderson & Co. about $127,000 ; its bills receivable, however, having been reduced by-payment pending the application to about $380,000 by the return of circulation to an amount corresponding to the amount of the reduction.</p>

Debt upon two bonds given to the plaintiff by the defendant Proctor, as principal, and by the other defendants, as sureties, for the liberty of the jail limits; said Proctor having been committed to the Providence county jail upon an execution issued against him by the court of common pleas for the county of Providence, at the suit of the plaintiff.

<p>A strong preponderance of the evidence against the verdict is necessary to enable the court to set it aside on a motion for new trial upon the ground of the verdict being against evidence; and a verdict against the party upon whom the burden of proof lies, will not be set aside upon this ground, where the judge who tried the cause is not dissatisfied with it, and juries have twice before failed to agree in the cause, and two verdicts, including that sought to be set .aside, have been rendered, one for the plaintiff, aijd the other for the defendant.</p> <p>The recollection by a witness, and especially of a party witness, of something which he did not recollect or state when on the stand, is no such discovery of new and further evidence as to entitle the party to a new trial upon the ground of it.</p>

Petition for a writ of habeas corpus, to be directed to the jailer of Washington county, to have before the court, in order to a discharge, the body of the petitioner imprisoned in the jail of said county.

Assumpsit against the defendant as guarantor of a check for $2,000, dated October 18, and payable November 18, 1856, {i to-or bearer,” drawn by one Doyle on the Mercantile Bank of Providence, and discounted by the plaintiff.

<p>Assumpsit for money had and received, in which a jury trial being waived, the following facts were proved to the court. The defendants, Louis J. Doyle and Walter W. Updike, were the assignees of one William H. Reynolds, under a voluntary assignment executed by said Reynolds to them for the benefit of his creditors. Amongst other assets turned over by said Reynolds to the defendants, as his assignees, was a policy of insurance, issued by “ the Metropolitan Fire and Marine Insurance Company,” of Boston, purporting to insure the mill and machinery of the Eureka Manufacturing Company, of Mansfield, to the amount of $1,000, against loss or damage by fire ; the policy, in case of loss, being by its terms payable to Reynolds, and being countersigned by one Philip E. Hill, as the agent of the company at Taunton, through whom the insurance was effected. The defendants received a transfer of the policy, from Reynolds, by an indorsement on the policy, as follows ;</p> <p>“Providence, Sept. 18,1854.</p> <p>“For value received, I hereby transfer, assign, and set over unto Louis J. Doyle and W. W. Updike, assignees, all my right, title, and interest in this policy of insurance, and all benefit and advantage to be derived therefrom.</p> <p>(Signed) Wm. H. Reynolds.”</p> <p>Below this, the following was indorsed on the policy:—</p> <p>“Taunton, Sept. 20, 1854.</p> <p>“ The above transfer accepted and recorded by</p> <p>(Signed) Philip E. Hill, Agent.”</p> <p>| After the transfer,. Reynolds took possession of the policy, and traded off the same to the plaintiff, together with other paper and some goods, the policy being rated in the trade at $400, for a bill of exchange, the acceptance of which turned out to be forged, but for which Reynolds afterwards obtained, upon compromise with the plaintiff, some $500 ; but it did not appear that any part of the consideration came to the hands of the defendants. At or about the time of the exchange of the policy for the bill of exchange aforesaid, the defendants, at the request of Reynolds, executed the following writing on the back of the policy:—</p> <p>“ Pkovidence, Dee. 15, 1854.</p> <p>“ For value received, we hereby transfer, assign, sell and set over unto Thomas A. Howland, all our right, title, and interest in and to the within policy, as assignees of Wm. H. Reynolds. (Signed) W. W. Updike,</p> <p>Louis J. Doyle,</p> <p>Assignees of W. H. Reynolds.”</p> <p>At or about the time of the trade, the following writing, bearing even date with the above transfer, was executed by Doyle, but was refused to be executed by Updike.</p> <p>“Pkovidence, Deo. 15, 1854.</p> <p>“ We, W. W. Updike and Louis J. Doyle, assignees of Wm. H. Reynolds, of Providence, have this day sold, as assignees, one certain policy of insurance issued by the Metropolitan Fire Insurance Company, of Boston, and numbered thirty-seven, (37,) to Thomas A. Howland, of said Providence; and by this instrument, we guarantee, as assignees of said Reynolds, that said loss has been reported to the said insurance company in due form, as provided in section No. 9, set forth in said policy, and that said insurance company is well and truly indebted to us, as assignees, for the amount thereof.</p> <p>(Signed) Louis J. Doyle,</p> <p>for Assignees.”</p> <p>It appeared also from the evidence, that Doyle had no authority from Updike to execute the above instrument for the assignees. There having been a loss upon this policy, the same was presented by the plaintiff to the insurance company for payment, but payment was refused on the ground that Hill, as was proved, had no authority to authorize transfers of policies, and that by transfer, without authority, the policy, by its terms, became void. Upon this refusal of the insurance company to pay, the plaintiff, some time in March, 1857, offered to retransfer the policy to the defendants, and claimed repayment of the consideration, and no attention having been paid to his request, brought this action. »</p> <p>to the point, that the title to the policy was warranted under the facts proved, cited Defreeze v. Trump er, 1 Johns. R. 274; Long on Sales, 203, and notes; 2 Blacks. Com. 451; 3 Ibid. 165; 2 Kent, Com. 478; Thrall v. Newell, 19 Yt. .208; Story on Contracts, § 833; Am. Jurist, Yol. 12, p. 312; 1 Parsons on' Cont. 456, and notes; Goolidge v. Brigham, 1 Mete. 551; Boyd v. Bopst, 2 Dali. 91; Dresser v. Ainsworth, 9 Barb. Sup. Ct. R. 619; 1 Serg. & R. 48; Gompertz v. Bartlett, 24 Eng. L. & Eq. 156; Young v. Cole, 3 Bingh. N. C. 724; Tones v. Ryde, 5 Taunt. 486 ; Gurney v. Wormesley, 28 Eng. L. & Eq. 256; Boyd v. Anderson, 1 Overton, 338; Preshwry‘ v. Morris, 18 Mis. 165 ; Boisgerard v. N. Y. Banking Co. 2 Sandf. ' Ch. R. 23; Putnam v. Westcott, 19 .Johns. 73; Colville v. Bixby, 2 Denio, 139; Cristy v. Cummins, 3 McLean, 386; Foster v. Smith, 37 Eng. L. & Eq. 218; Fowler v. Shearer, 7 Mass. 31; Spring v. Coffin, 10 Mass. 31; Hastings v. Lovering, 2 Pick. 214; Morris v. Maryatt, 7 Eng. L. & Eq. 331; Bridge v. Wain, 1 Starkie, 504.</p> <p>submitted the case without argument.</p>

Assumpsit by the plaintiffs, as executors of the late Rt. Rev. John Prentiss Kewley Henshaw, Bishop of Rhode Island, to recover $1,500, the amount of a certain policy of life insurance effe'eted with the defendant company, by Bishop Henshaw, on his life, and commencing the 1st day of April, 1848.

<p>Assuhpsit on a contract for the sale of sixty-five bales of cotton, made by the defendant with the plaintiffs. The declaration alleged in substance, that on the 24th day of November, 1856, at Providence, the plaintiffs, at the special instance and request of the defendant, bought of him sixty-five bales of Augusta cotton marked “ Hoppin,” at and for the agreed price of 13| cents per pound, upon a credit of six months, and in payment therefor, the defendant then and there agreed with the plaintiffs, to receive a certain promissory note made by one John E. Weeden for about $1,250, and for the balance due for the cotton, to receive the promissory note of the plaintiffs; and that the plaintiffs, then and there, in consideration of said sale, agreed with the defendant to purchase said cotton at said price per pound and upon said terms of payment; and in consideration of the said promises of the plaintiffs, the said defendant then and there promised and agreed to and with the plaintiffs to deliver to them said sixty-five bales of cotton on request; and the plaintiffs aver, that they have always been ready to receive and pay for said sixty-five bales of cotton, at the price and in the manner aforesaid, — and that, on the day of December, 1856, they tendered to the defendant a note made by the said John E. Weeden, dated September 15, 1856, at six months, for the sum of $1,213.04, — being the note agreed on as aforesaid, as part of the price of said cotton, and their own note for the balance ; but the defendant then and there refused to deliver said cotton, or any part of it, to the plaintiffs. And the plaintiffs further claimed as special damage, that after the said contract the said John E. Weeden suspended payment; whereby, and in consequence of the, defendant’s refusal to take the said note of said Weeden, the plaintiffs had lost a certain other large sum of money, to wit, the sum of $1,500. The declaration also contained the money counts, and the whole amount of damages claimed in it was $5,000.</p> <p>To this declaration the general issue was pleaded, and upon joinder therein, the case was tided to the court, in law and fact.</p> <p>Upon the trial it appeared, that’on the 24th of November, 1856, being Monday, the cotton was sold by the defendant to the plaintiffs, through a broker, by sample, upon the terms set forth in the declaration; the broker having closed the bargain towards the evening of that day, after two interviews with the defendant, in the interval of which the defendant had, at the request of the broker, inquired as to the solvency of Weeden. The memorandum, made the same evening by the broker, as the agent of both parties, in his books, was as follows:—</p> <p>“ November 24, 1856. Resolved Waterman, to brokerage on sixty-five bales of Augusta cotton, marked ‘ Hoppin ’ — sold Bick-nall& Skinner at 13§ cents, at six months, for John E. Weeden’s note for about $1,250 — balance, their own.”</p> <p>It further appeared, that the bargain was made under the well-known practice of the cotton trade in Providence, according to which about half the cotton sold in that market is sold by way of exchange for the notes of third persons, which are “put off” without indorsement, as sworn by the broker, for cotton. On Thursday — which was Thanksgiving day — following the sale, the broker then having Weeden’s note in his possession for the purpose of delivery to the defendant, it was first learned by all parties that "Weeden had stopped payment the Saturday previous ; and in an interview between the broker and the defendant upon the subject on the day following, Friday, the latter informed the broker that he should not deliver the cotton under the contract, on the ground that Weeden, whose note he was to take, had failed previous to the contract— a view of the defendant’s rights to which the broker at the time assented. About ten days subsequent to this, the plaintiffs having in the mean time taken counsel, a formal tender of Weeden’s note, and of their own for the balance, was made by the plaintiffs to the defendant, and the cotton demanded; but the defendant rejected the notes and refused to deliver the cotton, upon the' ground before taken with the broker, to wit, that Weeden, whose note was stipulated to be received in part for the cotton, had failed before the contract. It was also proved by the broker, there being no testimony to the contrary, that there was no unusual delay on the part of the plaintiffs in delivering Weeden’s note to him on Thursday following the sale, in order to delivery to the defendant and the obtaining from him of the cotton.</p> <p>1. That the mutual sale of the note and cotton was complete, by the contract; nothing further being necessary to place the note at the risk of the defendant and the cotton at the risk of the plaintiffs; and that, in such a case, in the absence of fraud, not pretended here, the defendant must bear the loss from the insolvency of the maker of the note, which by the contract he assumed upon himself. Byles on Bills,T22-125, 307 ; 2 Am. Lead. Cases, Hare & Wallace’s notes, 180-189.</p> <p>2. That the principle of the right of stoppage in trmsitu does not apply to a case like this, where the risk of the failure of a third person is by the contract taken by the vendor, who claims to stop in consequence of it; but only in case of the unforeseen failure of the vendee himself, when the goods are sold on his credit.</p> <p>3. Within three days of the sale, the defendant informed the broker that he would not deliver the cotton, on account of Weeden’s failure, and so dispensed with a formal tender of his note ; and when ex abmdcmti cautela, subsequently, a tender of the notes was made and the cotton demanded, the refusal to receive and deliver was not put by the defendant upon the lateness of the tender and demand, but upon the original ground taken with the broker within three days of the sale.</p> <p>1. This contract is not an exchange, but an agreement to sell the cotton for a price certain, and to receive in part payment Weeden’s note, and is so stated in the declaration.</p> <p>2. The vendor has a lien upon the goods for the price until delivery, and whether they remain in his hands, or are in trcmsitu; the right of stoppage in transitu being but an extension of the right of detention. Rowley v. Bigelow, 12 Pick. 307, 313; Arnold v. Delano, 4 Cush. 33, 38.</p> <p>3. This right is not divested by the vendor’s agreeing to receive, and actually receiving, the note of the vendee in payment. Ferse v. Wray, 3 East, 93; Tarrleton v. Alllmsen, 2 Ad. & El. 32 ; Edwards v. Brewer, 2 Mees. & Weis. 375; Arnold v. Delano, 4 Cush. 33.</p> <p>4. The same principle is recognized, when the agreement is to pay in the notes of a third person, and the third party fails before delivery. Owenson v. Morse, 7 T. R. 64; Roget 'v. Merritt, 2 Caines, 117 ; Newhall v. Vargus, 13 Maine, 93; Parks v. Hall, 2 Pick. 206, 212. There are no contrary decisions, and there is no distinction in principle in' the two cases. In Arnold v. Delano, 4 Cush. 39, Shaw, C. J., says: “ But the law, in holding that a vendor; who has thus given credit for goods, waives his lien for the price, does so on one implied condition, which is, that the vendee shall keep his credit good; ” and there is no sound reason why this law should not imply the same condition of continued solvency, as to a third person on whose credit the goods were sold.</p> <p>5. Roget v. Merritt, 2 Caines, 117, and Leger v. Bonnajfe, 2 Barb. S. C. R. 475, are identical with the case at bar, and no case can be found doubting or modifying either of those cases. The opinion in the former case was delivered by the able and learned Judge (since Chief Justice) Spencer, and is cited as authority by Kent, in Marble v. Hatfield, 2 Johns. 461, and in Tobeyv. Barber, 5 Johns. 73. The cases in “Byles” are all distinguishable from the one at bar.</p> <p>6. Plaintiffs have lost their right, if any they ever had, by laches. See Camidge v. Allenby, and Rogers v. Langford, cited at the hearing. And as to what is a reasonable time, see also Hunt v. Insurance Company, 5 M. & S. 47 ; Howe v. Huntington, 15 Maine, 350.</p> <p>7. The plaintiffs’ claim is inequitable and unconscionable, and should not be favored. On the contrary, this right to detain the goods claimed by the defendant is‘so equitable, that it has always been favored by courts of law and equity. See Cross on Lien, 363, where it is said that eminent judges have regretted that the common law was not equally favorable to the vendor, in this respect, with the law of some other countries, and where the authorities are cited.</p>

This indictment, upon which a verdict of guilty was rendered at the May term of the court of common pleas for the county of Providence, 1857, came to this court, upon exceptions,, filed on the part of the defendant, to the charge of the judge presiding at the trial below. The indictment was found under the “Nuisance Act,” so called, passed by the general assembly at its January session, 1857, and contained two counts.

This was an indictment charging highway robbery in one count, and stealing from the person, in another, of a silver watch from one Boardman, who, on the trial before Bosworth, J., testified, that “ on the night in question, he having been out to Cranston, a town adjoining the city of Providence, to visit his mother, arrived in Providence about ten o’clock in the evening, on his way to Valley Falls, where he resided ; that he went into a place in Canal-street, Providence, for…

Petition in equity to enforce a mechanic’s lien under ch. 159, § 9, of Revised Statutes. To the petition the respondent had filed a plea denying the lien, and an answer under oath denying that she was liable to the petitioner for a portion of his claim. The petitioner now moved to strike out the plea, and to take the answer off the file, as unauthorized in such a proceeding as this. the former citing 3 Dan. Ch. Pract. 1801,1805.

<p>A mortgage in trust, executed by a calico printer, amongst other things, provided, that the trustee should pay “ all sums now due or which may become due from said Patterson (the mortgagor) to himself, the said Pierce, and to all other persons now or heretofore employed, or to be employed by me, for the labor or other service of all such persons in operating said print works, or in doing the teaming to and from said print works, and in any business of or connected with said print works, whether there or elsewhere; but not including any persons who may have been employed in putting in machinery, or fitting up the same, in said print works, or in the management of said print works, as manager or overseer thereof; and not including a note given by me to Samuel McElroy, until he discharges me from the indorsement by me of a note for him,” — Held, to include the amount due to one for services performed under a sealed contract, by which the mortgagor had engaged him, in consideration of a stipulated per centage on the gross amount of sales of all prints made at the works, to aid in getting up the styles of his prints, and to superintend that branch of his business in Providence and New York, — to assist him in the purchase of cloths, dings, and coal, — to make needful arrangements with his selling agents, — to superintend the sales and the rendition of the accounts of sales of prints, — to aid him in the procuring of job work, — and, generally, to advise him in his business, except professionally.</p> <p>Held, also, to include interest on all sums due, from the time they become due by agreement, for service and labor protected by the mortgage, although such interest be not expressly stipulated for, but accrues by way of damages for default of payment; the law, in this country, annexing interest as an invariable incident in all cases of default to pay the principal sum, when the debtor knows what the principal sum is, and when he is to pay it: and Held, not to include fees due to attorneys and counsellors-at-law for defending suits brought against the mortgagor, in which his goods in the hands of his agents had been attached, or for giving him advice in matters of law relating to his business.</p> <p>Where one was made party defendant to a bill to redeem such a mortgage, as having a claim for services included in it, which, by the terms of his contract, was to be paid to his son for the benefit of his wife, and appeared and answered the bill, and represented the claim before the master appointed under it, and the master reported the amount of the claim, and that the same should be paid to the son, for the mother, the court refused to overrule the allowance of the master, or to delay the cause, at the instance of the plaintiffs, who claimed as creditors of the mortgagor under a general assignment executed by him subsequently to the mortgage, because the son and wife were not parties to the bill. t</p>

Petition of a married woman, by her next friend, with the concurrence of her husband, for the removal of a trustee, formerly appointed by this court, at her instance, over her property, under the “ act concerning the property of married women.” It appeared that the husband had, previously to his marriage with the petitioner, acted as her agent, in the care and management of her property; she being a maiden lady possessed of some landed estate.

Bill in equity. The material facts of this case are, that in the summer of 1829, Abraham and Isaac Wilkinson, a manufacturing firm of North Providence, being insolvent, on the 12th day of June of that year, conveyed to William Wilkinson, the defendants’ intestate, seven shares in the Anawan Manufactory, and eight shares in the Fall River Iron Works at Troy, Massachusetts, in mortgage, to secure him for past and future accommodation indorsements, and past and future…

<p>This was an action on the case, brought against the defendant for not serving an execution for costs, delivered to and received by him for service, according to the exigency of the writ, and came to this court, by appeal, from the court of com-’ mon pleas for the county of Washington.</p> <p>Plea, the general issue.</p> <p>The case was submitted to this court in fact and law, a jury trial having been waived, by the agreement of the parties.</p> <p>Upon the trial it was proved, that at the August term, 1856, of the supreme court for the county of Washington, the plaintiff, as defendant in an action of trespass and ejectment, recovered a judgment for costs against one Jedediah W. Knight, of Westerly, plaintiff therein, amounting, as taxed, to the sum of $95.02; that upon this judgment, an execution in common form was issued, and on the 6th day of September, 1856, was delivered to and received by the defendant, a deputy sheriff for the county of Washington, for service, being returnable to the February term of the supreme court for said county, 1857; that on the 16th day of December, 1856, after notice to the plaintiff, Knight was, in due form, admitted to take the poor debtor’s oath, as one liable to be committed to jail upon the execution of the plaintiff; and a certificate thereof, under the hands and seals of two justices of the peace for the county of Washington, before whom the proceeding was had, was by them delivered to him; - that the defendant, upon calling upon said Knight, with the plaintiff’s execution, to obtain satisfaction of the same, was shown by Knight his said certificate; whereupon, on the 10th day of February, 1857, he returned said execution to the court from which it issued, without service, and with the following return indorsed thereon :—</p> <p>“ Washington, ss. February 10, 1857. I now return this execution unsatisfied for debt and costs, the within named Jedediah W. Knight having presented (when called upon to satisfy said execution) a certificate of his having taken the poor debtor’s oath; said certificate being dated December 16, 1856, and signed by John H. Cross and Bradford Bliven, justices of the peace.</p> <p>(Signed) Weeden H. BeRRY, Dep. Sheriff.</p> <p>The 8th section of the “act for the relief of poor persons imprisoned for debt,” (Dig. 1844, p. 169,) enumerates the classes of debtors entitled to such relief; and by it, debtors proceeded against by mesne process and by execution are put upon the same footing. Plaintiffs in actions of trespass and ejectment are excluded from the benefit of this act, by implication ; since defendants in such actions are expressly named. This implication excludes also the idea, that a judgment for costs in such an action is a debt within the meaning of this statute, since a plaintiff can be liáble only for costs. The 11th section of the act confirms this view. The form of oath there given excludes the idea, that the relief is intended to apply to judgments against plaintiffs for costs. By that form, the debtor is required to swear, that he has not conveyed or intrusted his property with a design to secure any benefit therefrom to himself or family, 11 since the commencement of this suit against mef -which is wholly inapplicable to a judgment for costs in an action commenced by the applicant. The practice conforms also, as far as we can learn, to our construction of this act.</p> <p>This execution was for debt, in the sense of the statute for the relief of poor prisoners; and if execution had not been taken out within due season, an action of debt might have been maintained against Knight on the judgment. The 8th section of the act found in the Digest of 1844, and the 1st section of Rev. Stats, ch. 198, include every debtor. The 23d section of ch. 198 of Rev. Stats, and the 24th section of the act in the Digest of 1844, extend the benefit of the act to all defendants in execution who are liable to be committed, in all cases embraced in the 1st section of ch. 198 of the Revised Statutes, and in the 8th section of the act as found in the Digest of 1844. The 16th section of ch. 198, Rev. Stats., by expressly excluding from the benefit of the oath plaintiffs in replevin, impliedly admits, that plaintiffs in all other civil actions are entitled to it.</p>

Bill in equity by the plaintiff, as the widow of the late Jesse Gardner of North Kingstown, deceased, for the assignment of dower to her in two third parts of the Roome farm, so called, lying in… Held: and that he (the respondent) having such a seisin as would entitle the wife to dower, the husband had such seisin. The case cited supra sustains this proposition.

<p>Where in a nil dicil action, the writ, which should have recited, that the court to which it was returnable, was to he holden on the third Monday of February, in fact recited that it was to be holdfflL on the second Monday of February: Held, that the court could not amend the writ and render judgment, but that the action must be dismissed; since the service of the writ gave the court no jurisdiction of the defendant, or of the case, which it could exercise without danger of injustice.</p>

<p>The probate of a will in another state, is orUj prima facie evidence of its validity, on an application to a court of probate in this state, to allow a copy of the same to be filed and recorded; art. 4, sect. 1, of the constitution of the United States not extending the operation of such a decree to things which, at the death of the testator, were without the territory of the state whose court has taken the probate.</p> <p>Probate of a former will may, as a matter of practice, be revoked upon a mere application to a court of probate to prove or to allow to be filed and recorded a later will of the same testator, as incidental thereto; and it is not necessary that a preliminary and separate proceeding should be instituted for the purpose of such revocation, in order to the probate or filing and recording of the later will.</p>

<p>where a devise is expressly made for life, there can be no implication that the testator intended a larger estate from the fact that the devisee is charged with the payment of debts and legacies.</p> <p>By the express words of the statute of wills, in Rhode Island, a devise for life to any person and to the children or issue generally of such devisee in fee, does not vest an estate tail in the first devisee, but an estate for life only; the remainder to go, at the decease of the first devisee, agreeably to the direction of the will.</p> <p>The death of one, entitled to a remainder in fee by the terms of a will, before the testator, if he be a lineal descendant or relative of the testator, does not cause the devise to him to lapse and become void, but his lineal descendants take by statute, in Rhode Island, the same estate which he-would have taken had he survived the testator.</p> <p>Such remainder to the children generally of the tenant for life, will not be held to be contingent upon the survivorship by the children of the tenant for life, when there is nothing to indicate an intent to make the interest of the children thus contingent, and the interest of a child so dying vests in his descendants.</p> <p>A power by will to a tenant for life to appoint by will in fee, with remainder over in fee to the children of the tenant in default of such appointment, cannot be executed by deed, so as to defeat the estates of the children.</p>

Bill in equity, to reform a subscription of $2,000 to the capital stock of the Providence, Warren, and Bristol Railroad Company, upon the ground, that the same was made by the mistake of the complainant, when intending to subscribe for $1,000 ■ only of said stock; and to stay an action at law, brought by the railroad company against the complainant, to recover the amount of said subscription, and for general relief.

<p>The value of the action spoken of in ch. 165, sect. 2, Eev. Stats., as giving the court of common pleas original jurisdiction in civil actions, is the amount of money or property, which the plaintiif claims; and where the damages are wholly uncertain, as in slander and the like, is to be measured by the ad damnum; but where the damages are governed by a certain rule, as in a contract to pay money, the.value is to be measured by the claim as set forth in the several counts of the declaration.</p> <p>If the want of jurisdiction for deficiency of value in the action appears upon the face of the pleadings, the court must, upon motion, dismiss the action; but if it does not, the court will retain or dismiss the action, as it appears that the plaintiff had reason or not to believe that his cause of action exceeded in real value fifty dollars; and a motion to dismiss, in such case, being a matter of discretion with the court of common pleas, the granting or refusal of such motion cannot be the subject of a bill of exceptions to this court.</p>

<p>Bill in equity, filed by the complainant, as surety in a bond given by the late Almira Brown, as executrix and residuary devisee and legatee of her father, the late Dexter Brown of Cumberland, for the payment of the debts and legacies of the said Dexter; the bill averring, that the complainant, as such surety, had been compelled to pay three legacies given by the will of Dexter Brown, amounting, with interest up to the time of payment, to the sum of one hundred and seventy-seven dollars and twenty-five cents. The bill further averred, that Almira Brown, the principal of the complainant in the above bond, and since dead, by the sixth clause of her last will and testament, gave to her sister, Amy Ann Blackinton, also since dead, and against whose heirs and devisees, as well- as others, ' heirs of Almira Brown, the bill was filed, all the rest and residue of her property, both real and personal, upon the following condition : “ Whereas, by the last will and testament of my honored father, Dexter Brown, late of Cumberland, deceased, I was made residuary legatee and appointed executor of said last will and testament, which trust I accepted, and after proving said will in the court of probate of said Cumberland, I gave a bond to pay the debts and legacies in said will appointed to be paid; and whereas the legacies named in said will, and a portion of the debts due to the creditors of my said father, now remain unpaid; now, therefore, I make this an express condition in this my last will and testament, that the said Amy Ann Black-inton, as a preliminary measure, shall, before she can receive any benefit from this devise, cause the aforesaid debts and legacies due from, and under the will of Dexter Brown, to be paid or secured to the legatees and creditors aforesaid to their full satisfaction, and take from them such a discharge as will fully exonerate my sureties in the aforesaid bond.”</p> <p>The bill prayed, in substance, that the estate given to Amy Ann Blackinton, upon the above condition, or so much thereof as should be necessary for the reimbursement of the complainant as surety, with costs and expenses, might be sold, &c.</p> <p>The defendants having consented to a decree that the real estate, devised by Almira Brown to her sister Amy Ann Black-inton upon the above condition, should be sold -in relief of the surety under the direction of a master, it appeared, by the report of the master, that after satisfying all claims existing against the estate sold by virtue of the condition, there was á balance of upwards of three hundred and forty dollars; which he paid into the registry of the court, subject, according to the above decree, to the further order of the court.</p> <p>Charles L. Whipple now filed an application, as one of the heirs at law of Almira Brown, for his proportion of this surplus, claiming that the estate sold had been forfeited by Amy Ann Blackinton, as devisee, for non-performance of the above condition; which claim was resisted by the representatives of Amy Ann Blackinton, who claimed the whole surplus, in her right.</p> <p>claiming that it appeared, that Amy Ann Blackinton, or her husband, as executor of Almira Brown, had paid the debts of Dexter Brown, and, had Mrs. Blackinton lived, that the legacies in question would have been paid, contended, that a court of equity would not enforce the forfeiture ; but, as full compensation had been made out of the estate, would relieve against it. He cited Story, Eq. Jurisp. §§ 1311-1317; 2 Johns. Ch. R. 534; 4 lb. 415; 2 Conn. 299; 20 lb. 127; 13 B. Mon. 163.</p>

Bill in equity, to enjoin a suit at law, and to enforce specifically, on the ground of part performance, a parol agreement,' by virtue of which the plaintiffs were to have a lease for five years of a shop in the Museum Building, so called, in Westminster Street, Providence, at a rent of $1,300 per year.

Bill in equity to enjoin a suit at law commenced against the complainant upon an award of arbitrators, and to set aside the award on the ground of improper conduct in the arbitrators ; the bill alleging, that after the hearing, in the absence of, and without notice to, the complainant, they received from the respondent a written statement, containing new and additional items of claim against the complainant.

<p>If one to whom a'pieoe of negotiable paper has been confided for a special use or limited purpose should attempt, in breach of the confidence reposed in him, to pervert the paper to a different use or purpose, a court of equity will, upon proper application, enjoin him from doing any act, though it be the carrying on of a suit at law, which he may make the means or instrument of his bad faith; and they who take the paper as indorsees from the party intrusted with it, after it is overdue, though for value, are subject to the same equities, and may be prevented in the same mode from misapplying it.</p> <p>One of several notes on demand, with interest, given by a corporation before it had issued stock certificates to its stockholders, in evidence of their proportionate interest in certain of its own stock held by it in trust for them, and upon which no money was to be paid, was negotiated for value by a stockholder, thirteen months after its date; Eeld, that such note was overdue at the time it was taken by the holder, so as to entitle the corporation to enjoin a suit at law commenced by him to recover the amount of the note from them, upon the ground of the equities subsisting between them and the payee of the note.</p>

<p>Indictment against the defendant for keeping and maintaining a grogshop, and place of resort for noisy and disorderly persons, in the city of Providence, found under sect. 2, chap. 73, of the Revised Statutes — the first section of the same chapter declaring such a place, amongst others, to be a common nuisance.</p> <p>The indictment contained two counts; the first of which alleged, that “ Sidney S. Paul of Providence, in said county, trader, on the 17th day of March, in the year of our Lord one thousand eight hundred and fifty-seven, and on divers other days and times, between said last-mentioned day and the day of the finding of this indictment, with force and arms, at Providence, in the aforesaid county of Providence, did keep and maintain a certain common nuisance, to wit, a grogshop and tippling-shop, and building, place, and tenement used for the illegal sale and keeping of intoxicating liquors, and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons, against the form of the statute in such case made and provided, and against the peace and dignity of the state.”</p> <p>The second count charged, that the defendant, at the same time and place, “did keep a certain grogshop and tippling-shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors, and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons, to the great damage and common nuisance of all the good citizens of this state, against the form of the statute in such case made and provided, and against the peace and dignity of the state.”</p> <p>The indictment was found at the May term, 1857, of the court of common pleas for the county of Providence ; and the defendant, having been arraigned upon it and pleaded not guilty, was, after a continuance, tried by a jury at the following December term of said courtj and found guilty. The' defendant, being called to the bar of the court for sentence, interposed a constitutional objection thereto, in the following words, to wit: — •</p> <p>“ State of Rhode Island v. Sidney S. Paul. And the defendant in the above entitled ease, after verdict and before sentence, comes into court, and moves the court, that judgment be arrested, because he says, that the act of the legislature of the state, entitled ‘ an act for the suppression of certain nuisances,’ being chapter 73 of the Revised Statutes of this state, is repugnant to and inconsistent with the constitution and laws of the United States, and repugnant to and inconsistent with the provisions of the constitution of the state of Rhode Island.”</p> <p>This motion was overruled by the court of common pleas; whereupon, the defendant entered' into a recognizance, with surety, in that court, as provided in section 6, chapter 192, of the Revised Statutes, and, the cause was certified to this court under the provisions of the second section of the same chapter, for the decision of the constitutional questions raised by the motion in arrest.</p> <p>The act for the “ suppression of certain nuisances,” chapter 73 of the Revised Statutes, is in conflict with sections 9 and 10 of the 1st article of the constitution of the United States, providing, that no state shall pass any ex post facto law, or law impairing the obligation of contracts ; and with the 5th and 6th articles of the amendments of the constitution, which provide, that no person shall be deprived of life, liberty, or property, without due process of law, and that in all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him, and be confronted with the witnesses against him.</p> <p>By the nuisance law, all buildings or places in which intoxicating liquors are illegally kept, or illegally sold, are declared to be common nuisances, and are to be. regarded as such. The keeper of such a building is made liable to fine and imprisonment by express provision of the law; but it follows, as a consequence of their being nuisances, that the building may be destroyed by any private individual who can do so without a breach of the peace.</p> <p>What is an illegal keeping, is ascertained by reference to the act for the suppression of intemperance, (ch. 78); by which act, it is made illegal for any one but a town agent to keep any intoxicating liquor for sale within the state.</p> <p>The agent himself cannot buy liquor manufactured in the state; and although he may sell it for medical, mechanical, chemical, culinary, and sacramental purposes, if manufactured in the state, the manufacturer cannot sell it, or keep it for sale for those purposes, or any other purpose, to town agents or to any others.</p> <p>If one should keep in his house a cask of wine, to sell for medical or sacramental purposes, made by himself from his own grapes, or a chemist should keep a demijohn of any kind of intoxicating liquors to sell for chemical or medical purposes, he would be guilty, under the nuisance act, of keeping a nuisance.</p> <p>The innkeeper, who keeps wine to sell to travellers only, is guilty; and his inn, as well as the shop of the chemist, is. made a nuisance; and it is immaterial whether the liquor, has, been so illegally kept for a year or a single day.</p> <p>An act which declares, that certain facts shall constitute a-certain common-law crime, when those facts are altogether unlike the facts necessary at common law to constitute the crime, is inconsistent with the provisions of the constitution securing to all accused persons the benefit of a trial according to the course of the common law. Otherwise,, the legislature might declare any acts, whatever, to constitute any crime whatever.</p> <p>The act is inconsistent with the provisions securing the accused the benefit of due process of law, (which means a trial according to the course of the common law,) and of being confronted with the witnesses against him, because one may be convicted upon reputation, and upon proof that he has the facilities of committing the crime charged against him.</p> <p>It is an ex post facto law, because one is made liable for keeping for sale, for any purpose, or under any regulations, liquors manufactured and kept by him for sale before the passage of the act.</p> <p>It is true that the law does not, in terms, punish one for having sold or kept liquor before the passage of the law. But a law which absolutely prohibits manufacturers and others from selling, or keeping for sale within the state, liquors manufactured or bought by them for sale before the passage of the act, is in violation of the spirit and meaning of the constitution.</p> <p>The nuisance law does not regulate, but absolutely prohibits the manufacturer from selling at all within this state.</p> <p>A legislature may make a law affecting the remedy upon a contract; but if a law goes so far as greatly to impair the value of a party’s rights under a contract, making them scarcely worth pursuing, it is unconstitutional, although its terms relate only to the remedy.</p> <p>The same principle is applicable to ex post facto laws.</p> <p>The act impairs the obligation of contracts; for it makes void leases made before, as well as since, the passage of the act; and it puts it in the power of any tenant to avoid a lease for ever so long a term, without the consent or fault of the lessor.</p>

Bill in equity, filed by Julius Nathan, and Dorcas J. Nathan, his wife, in right of said Dorcas J., and by Vernon L. Olney, two of the legatees, under the will of Susan Olney, late of Barraboo, in… Held: that a court of equity would, upon the application of the legatees, next of kin, or other competent parties, decree a distribution of a testator or intestate’s estate according to the lex domicilii.

Demuekee to a bill in equity, filed by the plaintiff as as-signee, under the “poor debtor’s act,” of Hezekiah Babin the younger, against him, and against Nicholas H. Bradford, trustee under the will of Hezekiah Sabin, Sen., of certain real estate situated in Westminster Street in Providence, held by said Bradford in trust for the benefit of said Hezekiah the younger.

<p>A court of equity will not interfere to disturb a judgment at law by default, upwards of twenty years old, and an execution title to real estate, vested under it, on the ground that the judgment was obtained without notice, upon a writ attaching the defendant’s real estate when he was open and at large within the state, and without his knowledge until about seventeen years before the filing of his bill for relief; the sole excuse for the delay to proceed being, that the complainant had no evidence of the facts upon which he relied for relief until the passage of the recent statute enabling parties to be witnesses for themselves in civil cases; and the purchaser under the execution having, in the mean time, built upon and improved the estate.</p>

Assumpsit ; the declaration containing two counts. The first was a special count on an implied warranty by the defendants of the genuineness of the indorsement of a promissory note for the sum of $800, dated Providence, August 18, 1857, made by the Valley Falls Worsted Company — ■ Isaac Proud, agent, — and payable to Joseph Mantón or order, six months after date, and purporting to be by him indorsed in blank; which note, the count averred, was sold as genuine by the…

<p>To an. action of a receiver of an insolvent bank against the maker, to recover the amount of a note due to the bank, it is no defence, by way of partial accord and satisfaction, that the defendant had an agreement of the bank, made whilst it was doing business, to take his stock in it at an agreed price for cash, or to allow him credit for it on any debt due from him to the bank, — the time of the transfer of the stock to be at his option,— and that he had tendered the stock to the receiver, before action brought, at the agreed rate, in part payment of the note, and the receiver had refused the tender.</p> <p>Debtors of an insolvent bank in the hands of a receiver, will be allowed to set off debts due to them by the bank whilst it is doing business, against the debts due from them to the bank; but not even the bills of the bank, purchased by them after an injunction has issued against it preliminary to its winding up; and especially, if the debtor be a director of the bank, and has purchased in the bills, at a discount; the allowance of a set-off of bills, so purchased, being in derogation of the rule of equality in payment, established by statute as between the bill-holders of an insolvent bank.</p>

Assumpsit to recover $1,626.82, the price of thirty-one bales of cotton, being 14,042 lbs., at 11| cents per lb., together with the sum of $53.64, delivered and paid by the plaintiff to the defendant on the 26th day of September, 1855, in exchange for the note of Randall Holden, 2d, dated July 25, 1855, for $1,666.25, and payable six months after date, to his own order, and by him indorsed.

Assumpsit for 8,503 lbs. of cotton, agreed to have been bought by the defendant of the plaintiff, (both of whom were cotton merchants in Providence,) by way of exchange, for the note of John E. Weeden, dated October 6,1856, at six months, for §1,178.70; the note having been transferred by the defendant to the plaintiff, without recourse, and the cotton received by the defendant therefor, on the 26th of November, 1856.

Debt by the plaintiff, as general treasurer of the state, against the defendants, as officers of the Mechanics’ Saving Bank in the city of Providence, to recover, to the use of the state, the penalty of $500, alleged to have been forfeited by the defendants for knowingly demanding and receiving, in behalf of said bank, from one James Bothwell, upon the discount of a certain promissory note for $1,500 by said bank, a greater rate of interest or discount than six per cent, per…

Assumpsit for money lent and advanced by the plaintiffs to the defendants to the amount of $100,000. ' Plea in abatement to the service of the writ, in substance, that, the same being in form a writ of summons and attachment, proper, under the statute, to a writ directed against a foreign corporation, was served by attaching the real estate of the defendants, and their personal estate in the hands of the American Bank in Providence, and of Amos D. Smith, Amasa Mantón, and…

<p>The three above entitled causes, which were actions of as-sumpsit upon promissory notes, or for money paid, were heard together, upon the demurrers filed to the pleas in abatement therein.</p> <p>In the first action, the writ was served, as appeared by the sheriff’s return, by attachment only, “ of all the defendant’s right, title, interest, and property in and to ” the estate whereon the defendant resided, and in certain lots of land, near the same, in the westerly part of the city of Providence. To this action the defendant pleaded, first, in abatement, that at the time of the pretended service of the writ, the property in the lands, &c. specified in the return upon the writ, was not in the defendant, but was in-; and secondly, the general issue. To the plea in abatement the plaintiff demurred; assigning as a special cause, that the plea did not set forth, in whom the title to the property attached, was, at the time of the service of the writ. He also moved, that the plea in abatement might be ordered to be stricken out, as involving unnecessary litigation and expense to the plaintiff.</p> <p>To the second of the above actions, in which the writ was served and returned as in the first, the defendant pleaded, first, the general issue, and secondly, in abatement, as in the first action ; whereupon, the plaintiff demurred to the plea in abatement, and moved to strike it out, as in the former case.</p> <p>To the third of the above actions, the writ in which was served only by the attachment of certain household furniture, returned by the sheriff as “ set forth to me by one of the plaintiffs as the property of the defendant,” the pleas, and order of pleas were the same as in the second action; and to the plea in abatement, the plaintiff demurred, and moved, as before.</p> <p>I. The practice of the courts of this state allowing questions of title to property attached to be determined, preliminary to a trial on the merits, on a plea in abatement, is bad; not being authorized by the English practice, from which our system of practice is principally derived, nor recognized in any treatise of approved authority. The trial of the issue raised by such plea, determines no other question than that of service of the writ, which is entirely immaterial; as after a verdict sustaining the plea, the court, in a case like this, after appearance, plea and affidavit to the merits, would still take jurisdiction of the defendant’s person. No person having any interest in the property attached, is concluded or affected either by a judgment on the merits of the action, or by a verdict and judgment on the plea in abatement in favor of the plaintiffs to the suit; nor do the plaintiffs gain more, by a decision in their favor, than a right of priority in the estate attached if the defendant has any interest therein. The practice above stated, leading as it does to the consumption of the public time without advancing one step in the progress of a cause, is against public policy, and is an onerous burden both on the public and upon suitors. In these particular cases, it is further urged, that the defendant, having appeared without protest, and in common form by attorney, submitting himself to the jurisdiction of the court by pleading to the merits, and by filing affidavits of defence, has waived the plea in abatement.</p> <p>The only precedent to be found in the books for this plea, is contained in Story’s Pleadings, p. 69; and even this precedent relates only to actions of replevin, and is the usual precedent of a plea in bar to such action. The notes to the plea only go so far, as to say, that this precedent may be used in answer to a suit in replevin, either in abatement or in bar. Story’s Pleadings, 68, 69 ; Quincy v. Hall, 1 Pick. 357-360. No new doctrine is here intended to be asserted; but the same plea, as applicable to writs of replevin, outlawry for felony, alien enemy at the time of the contract, or attainder, is stated by Chitty as pleadable in abatement or in bar; but there the rule stops. Chitty’s Pleadings, vol. 1, 447-451; Stephen on Pleading, 47, 48, 430.</p> <p>The statute in force at the time provided, that a party could be brought into court in the following modes:—</p> <p>1. By arrest and holding to bail. Pub. Laws, § 3, p. 113.</p> <p>2. By summons, either actual or constructive. Ib. § 38, p. 122.</p> <p>3. By attachment of property, either real or personal, Ib. §§ 3, 11, pp. 14, 15, in which case, a copy of the writ must be left at the usual place of abode of the defendant “ with some person there, that the defendant may have knowledge of the suit; ” and in case of real estate attached, in addition to the above, notoriety is given to the act by the copy of the writ and return left with the town clerk. Ib. § 11, p. 115. The only case in which the return of an officer can be traversed is specially named in section 17.</p> <p>II. Whatever may be the judgment of the court as to the pro- . priety of the practice objected to, the plea in these cases is bad. It is not enough to say that the “ property in the goods, chattels, and estate, so specified in said officer’s return, on the back of said writ, was not in the defendant; ” the plea should state that the defendant had no attachable interest in the property mentioned in the return. Chitty on Pleading, *237, *458 ; Stephen on Pleading, p. 379, Rule II. It should also set forth in whom the property was, in analogy to the rule, that pleas in abatement are required to give a better writ. Stephen on Pleading, i p. 432. At least the presence of a blank in this description of plea is improper.</p> <p>The plea commences and concludes with a prayer of judgment of the writ. Setting up matters dehors the writ, it should only conclude with such prayer. Landon v. Roberts, 20 Verm. (5 Washb.) 286 ; Chitty on Pleading, *461; 10 East, 86, 87.</p> <p>But the defendant having appeared by attorney, voluntarily pleaded to the merits of the action, and filed affidavits of de-fence signed by himself, must be deemed to have waived the plea in abatement. Potter v. Harrington, 11 Pick. 221; Bar-stow v. Fossett, 11 Mass. 250; Burnham v. Webster, 5 Ib. 266; Simonds v. Parker, 1 Met. 508 ; Commonwealth v. Lewis, Ib. 151; Brigham v. Clark, 20 Pick. 43; Button v. Cole, 3 Ib. 232; Robertson v. Lee, 1 Stew. 141; Wilson v. Oliver, Ib. 46; Egerton v. Hart, 8 Verm. 207 ; Knox Sf Crawford v. Summers & Thomas, 3 Cranch, 496; Sheppard & Duncan v. Peyton & Craves, 14 How. 508; Same v. Same, Ib. 512.</p> <p>insisted upon the long-settled practice of pleading in this state, and cited Gould v. Richardson, 6 Pick. 364 ; Bartol v. Stanwood, 7 Cush. 115.</p>

Action on the case, to recover damages of the defendant for defiling, draining, and stopping the passage of water from a certain fountain of the plaintiff’s, situated on the land of the defendant, and tumbling down the walls of said fountain; and for obstructing and hindering the plaintiff and his servants in the use of said fountain, and in going to, and returning from, said fountain and the pipes leading therefrom, with their necessary teams, carts, and implements, for the…

<p>A transfer by the intestate to such of three of his grandchildren as should survive the age of twenty-one years, of an overdue mortgage upon real estate, executed to him by their father, is not deemed an advancement to them because made, as expressed in the transfer, in consideration of love and good-will; the same not being real estate within the meaning of ch. 159, § 20, of the Rev. Stats, concerning advancement; nor are the mere ordinary words of transfer, upon such consideration, to be construed as a “charge,” or “memorandum in writing,” within the meaning of that enactment. These latter words imply, that the donee shall be charged, or, in a manner, made debtor to the testator’s or intestate’s estate, or, that the memorandum shall, in some way, indicate the nature of the gift, as an advancement.</p>

<p>where an entire contract with master carpenters, for building an addition to a house within a stipulated time and for a gross sum, provides, that the materials for the work shall be furnished by the owner, but not where they are to be delivered, and the owner delivers the finishing stuff upon the premises, notwithstanding the request of the builders to deliver it at their workshop in another part of the city, to be worked, and refuses to permit them to take it at their own expense to their workshop, where it can be worked more advantageously for both parties; Held, that the carpenters, having framed and raised the addition, are entitled to recover for the work by them done, although they abandoned the contract, after due notice to the owner that they should do so, unless permitted to work the finishing stuff at their own workshop.</p>

Assumpsit for money had and received to the use of the plaintiff’s intestate.

Assumpsit by the plaintiff, trustee of Rebecca F. Olney under the will of Mary E. Helme, late of Providence, deceased, against the defendant, the father of the said Rebecca, to recover the sum of $1,376, paid by the plaintiff out of the trust estate, to the defendant, for the support of his daughter, during the years 1851, 1852, and 1853.

Bill in equity for the specific performance of a contract for the purchase of real estate.

<p>Where a note, made by a copartner payable to his own firm, was indorsed by him in the copartnership name to another, in payment of his individual debt, with notice that he had no authority thus to use the copartnership name, and the note, indorsed also in blank by the party who thus received it, was purchased by the plaintiff from a broker before maturity, for full value, and without notice of the transaction in which the note originated; Meld, that the plaintiff was entitled to recover of the copartnership as in-dorsers, the amount of the note; the paper not indicating, and he having no notice of, the fraud practised upon the firm by its agent and copartner.</p>

This was an action of assumpsit brought against the defendants, as makers of a note for $1,000, made on the 8th day of October, 1857, and payable on demand, the writ in which was served by attaching the interest of the defendants in two buildings situated on land in the rear of No. 93 Bridg-ham Street, Providence, leased to the defendants for five years,— said lease being in writing, and acknowledged and recorded,— one of which was used as a “ dry hop yeast factory,” and the…

Petition foe new tRial. Indictment against the petitioner, charging, that at Providence, on the 17th day of March, 1857, and on divers days and times between that day and the day of the finding of the indictment, he kept and maintained a certain common nuisance, to wit, a grogshop, tippling-shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors.

<p>Indictment charging that the defendant, at Providence, on the 17th day of March, 1857, and on divers days and times between that day and the day of finding the indictment, kept and maintained a certain common nuisance, to wit, a grogshop, tippling- shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors.</p> <p>At the trial of the case before Mr. Justice Shearman, at the December term, 1857, of the court of common pleas for the county of Providence, evidence was submitted to the jury in behalf of the state, that in one room of a building in Providence, in part occupied by the defendant, there was a bar, with the usual implements for the sale of intoxicating liquors; and that in the same room there was a sign-board, with the following words painted thereon, “ Boarding by J. B. Wilson.” In summing up to the jury, the judge instructed them, that the sign was in itself primá facie evidence, if unexplained, that the defendant was keeper of the bar-room. The defendant excepted to this instruction, and now brought his exception to this court for their decision thereon.</p> <p>W W. Updike and Blake, cited Commonwealth v. Elwell, 1 Gray, 463; Commonwealth v. Madden, lb. 486; Commonwealth v. Harvey, lb. 487.</p> <p>The charge of the court was correct.</p> <p>1st. There was no direction on the sign to any other place kept by the defendant, than that of which the room in question was a part.</p> <p>2d. The meaning of the sign is, “ Boarding ” here “ by J. B. Wilson.” *</p> <p>3d. If liquor was sold or kept for sale on any part of the premises occupied by the defendant for a boarding-house, the presumption is, that it was done by his authority and in his behalf.</p>

The indictment charged that the defendant, at Providence, on the 17th day of March, 1857, and on divers days and times between that day and the day of finding the indictment, being the 6th day of June, 1857, kept and maintained a certain common nuisance, to wit, a grogshop, tippling-shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors.

<p>Indictment, charging that the defendant, at Providence, on the 17th day of March, 1857, and on divers days and times between that day and the day of finding the indictment, being the 6th day of June, 1857, kept and maintained a certain common nuisance, to wit, a grogshop and tippling-shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors.</p> <p>At the trial of the indictment before Mr. Justice Shearman, at the December term, 1857, of the court of common pleas for the county of Providence, witnesses were examined in behalf of the state, who testified, that during the time laid in the indictment, the defendant and his family occupied certain rooms in a building in Richmond Street, Providence; that some of said rooms were occupied by the defendant and his family as their residence, and that one of said rooms was occupied as a store and bar-room, in which intoxicating liquors were sold or kept; that the wife of the defendant attended said store, and that she had hired the same rooms and kept the same store previous to her marriage to the defendant; that the defendant, after his marriage renewed the agreement for hiring, but had not himself paid any rent; and there was no evidence that he ever attended said store, or bought or sold goods for or from the same. It appeared, that the defendant was a jeweller and worked at his trade; though when arrested at the shop where he worked, the officer who arrested him swore that he told him, upon being asked, that the shop for keeping which he was indicted, was his place of business.</p> <p>Upon this evidence, the judge instructed the jury, “ that it should be presumed that the wife kept said store by the direction and in behalf of her husband ; ” to which instruction the defendant excepted, and a verdict of guilty having been returned against him, brought his objection to such instruction, by bill of exceptions, to this court.</p> <p>cited Commonwealth v. Harvey, 1 Gray, 487 — 489.</p> <p>The charge of the court was correct; it having been proved by the testimony of witnesses sworn on behalf of the state, that the bar-room was hired and occupied by the defendant, and also, by the admissions of the defendant, that he had a place of business at the shop or bar-room in question. The presumption is, that whatever was done by defendant’s wife, at said shop or bar-room, in the course of the business usually carried on there, was done by direction of and in behalf of her husband.</p>

The indictment charged that the defendant, at Providence, on the 17th day of March, 1857, and on divers days and times between that day and the day of finding the indictment, being the 6th day of June, 1857, kept and maintained a certain common nuisance, to wit, a grogshop, tippling-shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors.

<p>In an action of the case by the owner and operator of a cotton-mill, driven by water, against the owner of a mill on the same stream, to recover damages for the unlawful raising of a dam across the stream below, and interrupting the operation of the cotton-mill by backwater and thereby diminishing the profits of the.plaintiff, evidence of the profits of manufacture, lost by the plaintiff from the interruption, may be submitted to the jury, as a basis upon which to estimate the damages of the plaintiff, if not as the measure of them.</p> <p>The facts, that in such an action, one of the defendants is the wife of the other, as well as the owner in fee of the land upon which the dam was unlawfully raised, and that her husband was in possession of the land, do not, as a matter of law, disentitle the plaintiff to a verdict against both, though proper for the jury to consider upon the question of her participation in the unlawful act complained of.</p>

<p>Bill in equity by the complainant, the widow and general devisee and legatee of the late John D. Brown, against the surviving brother and sisters of her late husband, and the trustees under the will, of the late John B. Dockray of South Kingstown, his grandfather, for partition of about 200 acres of land, in South Kingstown, and an account of five shares in the capital stock of the Rhode Island Union Bank.</p> <p>The bill claimed title in the complainant to one fifth part of the real estate aforesaid, and to the whole of said shares, as vested by the will of the late John B. Dockray, in her husband, one of the children of Ann Brown, and a grandson of the testator mentioned in his will, and by her husband devised and bequeathed, as aforesaid, to her. The two clauses of the will of Dockray appended to the bill, under which the title was claimed, were as follows—</p> <p>“ Item; I give, devise, and bequeathe to my beloved son, John Bigland Dockray, to my friend James Sherman, and to my kinsman Isaac Peace Hazard, the farm and wood-lot which I bought of Samuel Perry, with the dwelling-house and all the other buildings thereon, now in the possession of Walter Perry, the boundaries and situation whereof may be known and are described by the deed on record, that is to say, in special trust and confidence, and to and for the uses and purposes following, viz: that he my said son, John B. Dockray, my said friend, James Sherman, and my said kinsman, Isaac Peace Hazard, shall jointly have and hold the aforesaid land and premises and appurtenances in special trust for my beloved daughter Mary Dock-ray, for and during the term of her natural life; and my will and intention is, that my said daughter Mary Dockray shall and may have the yearly rents, issues, and profits of the aforesaid lands, and premises for her maintenance and support in life. And in case my said daughter should have lawful issue, it is my will and intention, and I do hereby give and devise the aforesaid described lands and tenements to her heirs and assigns forever. But if my said daughter, Mary Dockray, should die leaving no issue, then and 'in that case, I give and devise the aforesaid described lands and premises to the children of my daughter, Ann Brown, not only those that are now born, but also those that may be born, to be equally divided between them, share and share alike, or to the issue of deceased children, as shall be living at the time of my said daughter, Mary Dock-ray’s decease; the children of a deceased child to take the same share their parent, if living, would have taken, the which I do hereby give to them, their heirs and assigns forever. It is my will that the said trust shall continue until the youngest child of my said daughter, Ann Brown, shall arrive at lawful age or be married, provided my daughter, Mary Dockray, shall die previous to that time.</p> <p>Item; I give, devise, and bequeathe to my trustees aforesaid, to and for the use, maintenance, and support of my said daughter, Mary Dockray, five of my shares in the capital stock of the Rhode Island Union Bank, for and during the term of her nat-. ural life; and provided she should leave issue, I give, devise, and bequeathe them to her heirs, and assigns forever; but in case she should leave no issue, I do hereby give, devise, and be-queathe the said five shares, after her death, to my two grandsons, John Dockray Brown and Edward Bigland Brown, to them, their heirs and assigns forever, to be equally divided between them, subject to the control, care, and management of my said trustees, until the said John and Edward shall arrive at the age of twenty-one years, if it should so happen that my said daughter, Mary Dockray, should die previously thereto ; and that, in that event, my said trustees should apply the dividends on said five shares to the maintenance and support of my said two grandsons, until they shall arrive to lawful age.”</p> <p>The will of John B. Dockray was dated December 21, 1819, and admitted to probate September 10,1821. The bill further stated, that the said Ann Brown had seven children: Francis W., Hannah, Ann, Susan W., Mary, Edward B., and. John D., the husband of the co m plain ant; that John D., Edward B., and Mary, all died without issue, prior to the death of Mary Dockray, and the said Mary Brown, subsequent to said John D. Brown, and that said Mary Dockray is now dead.</p> <p>To this bill there was a general demurrer.</p> <p>1st. John D. Brown had a vested estate of inheritance in remainder in the real estate devised in trust. A remainder is vested at any moment. In case the preceding estate of freehold were to determine by any means, at that moment the remainder would be capable of taking effect in possession. 2 Black. Com. (Wend, ed.) 170, n. 12, citing Fearne on Contingent Remainders. Though it may be uncertain whether a remainder will ever take effect in possession, it will, nevertheless,, be a vested remainder, if the interest be fixed. The law favors vested estates ; and no remainders will be construed to be contingent which may, consistently with the intention of the testator, be deemed vested. 4 Kent’s Com. (8th ed.) 215, 216, n., and cases cited; Badger v. Lloyd, 1 Salk. 232; S. C. 1 Ld. Raym. 523; Ives v. Legge, 3 T. R. 488. Here the interest was fixed, though the share of each was to be determined by the number of children born at the time of the death of Mary Dockray. 2 Jarm. on Wills, 56, 312, 624 et seq., and cases cited; Williams on Real Prop. 208.</p> <p>2d. John D. Brown had such an interest in the land, in trust for Mary Dockray, as could be devised. The power of testamentary disposition extends to all interests in real and personal estate, which, at the decease of the testator would, if not so disposed of, go to his general real and personal representatives. 1 Jarm. on Wills, 83. Not only vested remainders, but contingent possible estates, and contingent reversionary interests, are devisable. 2 Black. Com. (Wend, ed.) 109, n. 11; 1 Jarm. on Wills, 86 and note; 4 Kent (8th ed.) 573; Hayden v. Stoughton, 5 Pick. 528 ; Brigham v. Shattuck, 10 Pick. 306, 309.</p> <p>3d. The fee of the estate devised in trust vested in John D. Brown immediately upon the death of John B. Dockray, and could only be devested by the birth of issue to Mary Dockray. He had therefore a vested remainder, which of course was devisable and passed to the complainant by the will of her husband.</p> <p>4th. The complainant is entitled to an account of the five shares in the capital stock of the Rhode Island Union Bank which were given to John D. and Edward B. Brown by name, upon the death of Mary Dockray without issue, Edward being dead. There can be no remainder properly of personal estate. 2 Jarm. on Wills, 57. The gift vested immediately, though contingent upon Mary Dockray’s dying without issue, and was to take effect in possession upon the death of Mary Dockray without issue.</p> <p>The period of distribution fixed by the will is the death of his daughter Mary. The remainder in this case is not merely an ordinary contingent remainder, but is on a double contingency ; first, on Mary Dockray’s leaving issue ; second, on John »D. Brown being alive at her death, the period of distribution. If the devise had been simply to Mary for life, and then to the children of Ann Brown, born and to be born, it would have been a vested remainder, subject to be devested in quantity by birth of subsequent children; and it is to a case of this sort that most of the plaintiff’s authorities apply. In cases of doubt, the English courts favor vested remainders for reasons peculiar to the laws of England; and many of the reasons for requiring the fee to be vested somewhere are peculiar to them. The fee in this case may be in the heirs of the testator until the contingency is determined. 2 Greenl. Cruise, 334. The present remainder is contingent. It is limited to a class of children, some of whom are in esse indeed, but who of the class are to take is not ascertained until Mary’s decease. See the rule, lb. 237. It is not the uncertainty of enjoyment, but the uncertainty of the right to enjoyment, which makes it contingent. 4 Kent, 206. The interest is not fixed until her death. A vested remainder is very clearly defined by Blackstone, and excludes this. 2 Black. 168.</p> <p>But there is a peculiarity in this case not covered by the plaintiff’s authorities. When there is (as here) a contingent remainder in fee between the life estate and the second contingency, the latter is not vested. 2 Cruise, 240, § 44. They are in fact substitute or alternative estates. Ib. § 49. The other limitation is collateral to the contingent fee. 4 Kent, 200. Where (as here) there is a contingent limitation in fee absolute, the estate limited afterwards is not vested. 2 Cruise, 244, §§ 56,57.</p> <p>But the children who áre to take are not ascertained until Mary’s death. It is evident that the testator intended, that only the children living at her death, and the issue of those deceased, should take. Else, what need of a provision for the issue of those deceased? The devise is to the children of Ann Brov'n, born and to be born, &c., or to the issue of those deceased. It being evident that the testator did not mean to leave it uncertain to which class it is to go, the court will construe, or, to mean, in case of the death of cuny of them, (2 Jarm. 473,) or may simply construe it to mean, cmd. The clause is, “ to the children of my daughter Awn Brown, not only those that are now born, but also those that may be born, to be equally divided between them, share1 cmd share alike, or to the issue of deceased children, as shall be living at the time of my said dcmghter Mary Dockray’s decease ; the children of a deceased child to take the same share their parent, if living, would have taken,” &c. Some of the clauses are parenthetical. The clause “ living at the time of my daughter Mary Dockray’s decease,” applies not only to the issue of children, but to children themselves. The children, as well as the grandchildren, must be alive at her death, to take. The evident intent of the testator was, to keep the property in his own family, and to prevent just such a claim as this. This is shown by the trust and the provision for the children of a deceased child. It was a lawful intention. The construction we contend for is the construction which would strike all intelligent men not lawyers, as being the testator’s intent; and the court should carry out his intent, unless plainly contrary to law.</p> <p>Let us now consider the right to devise a contingency. But for the second contingency referred to, the right of John D. Brown, although contingent, might be perhaps devised. But in this case, J. D. Brown’s being alive at Mary Dockray’s death, • makes a part of the contingency. As he was not alive then, it could not descend ; and what is not descendible, is not devisable. It is almost exactly the case mentioned by Mr. Fearne, and quoted, 2 Cruise, 338, §§ 18, 23.</p> <p>As to the bank stock, the bequest is of bank stock to trustees for the life of Mary Dockray, and then to her issue; “ but in case she should leave no issue,” then “ to my two grandsons J. D. Brown, (husband of plaintiff,) md E. B. Brown, to them, their heirs cmd assigns forever, to be equally divided, between them,” &c. Both died .before Mary Dockray. E. B. Brown died first, without issue, in 1834. The plaintiff claims, that it was a joint tenancy, and that on the death of E. B. Brown, John D. Brown took the whole, and she claims as residuary legatee under her said husband’s will.</p> <p>The English authorities have' held that a bequest to two create a joint tenancy, (2 Kent, 350, 351; 2 Jarm. 115, note,) unless there are words in the will to prevent it. “ Equally amongst them,” creates a tenancy in common. 2 Jarm. 117. The words here are, to be equally divided between them, and are such, as in real and personal estate, would have made an estate in common. If it was a question between J. D. Brown and the residuary legatees in J. B. Dockray’s will, whether the legacy should or: not lapse, there might be a reason for favoring the claim of J. D. Brown as survivor.</p>

Bill in equity, filed by the plaintiffs, as executors of, and trustees under, the will of Hannah F. Gale, late of Newport, deceased, for the construction of said will, and for the marshal-ling of the assets and estate of the said Hannah in the payment of her debts.

The order of the board, which was based upon a petition for the new highway, stated, “ that upon consideration and examination of the subject-matter and prayer thereof, the said board do further resolve and determine, that the public convenience requires, that a new highway should be laid out, from Long Lane, so called, to Malbone’s Lane in said Newport, commencing on Long Lane at the northwest comer of land of the heirs of Thomas Peckham, and thence, easterly, to the…

Middleton, Esq., to the westerly line of land of Daniel B. Fearing, Esq., in said Newport.

<p>Assumpsit, originally brought in this court, upon two promissory notes, made by the defendant; one, for $800, payable to the plaintiff or order thirty days after date, and the other, for $550, payable to the plaintiff or order twenty days after date. Plea, the general issue.</p> <p>Upon opening the case to the jury, at a former term of this court, it appeared, that the defence to the notes was want of consideration ; the notes having been given or advanced by the plaintiff to the defendant, who was a builder, in payment or on account of work and materials upon a house, built by the latter for the former in Newport, for which, as the defendant contended, he had overpaid the plaintiff, without reckoning the amount of the notes sued. It further appeared, that whether there was a consideration for the notes, or not, depended upon the state of long and intricate accounts between the parties, growing out of charges for contract and extra work upon the house, made by the plaintiff against the defendant, many of which were disputed, and out of payments made and notes advanced by the defendant to the plaintiff; and that some of the notes which the defendant charged as payments, were alleged by the plaintiff to be renewals merely of notes already charged against him.</p> <p>In this state of things, the court, by virtue of sect. 10, ch. 188, of the Rev. Stats., upon motion of the defendant, ordered the case to be withdrawn from the jury, and sent to an auditor, to examine and state the accounts between the parties. Upon the coming in of the auditor’s report, it appeared, that he found a balance due from the plaintiff to the defendant of $1,525.18, a sum exceeding the amount of the notes sued; and the exceptions to the report having been overruled or withdrawn, the report was received and allowed by the court.</p> <p>now moved, that in pursuance of the report, judgment be entered up for the plaintiff for the amount of the notes, with interest.</p> <p>protesting, that this would deprive the plaintiff of a trial by jury, objected to the motion on that ground; claiming, that the case should go to a jury, so that upon the coming in of their verdict, the defendant might have, if the verdict was against him, a new trial, under the statute, of right; and cited Campbell v. Croat, 3 R. I. Rep. 60.</p>

Case for slander of the plaintiff, who was a homoeopathic physician of Newport, in his profession, by reporting of him, in substance, that he had been caught in the act of adultery with one of his female patients — a married woman ; the declaration, which contained but one count, alleging, that the slanderous words were uttered by the defendant “ on the first day of November, a. d. 1856, and on divers other days and times before the purchase of the plaintiff’s writ.” Plea,…

<p>Where the plaintiff seeks to recover upon a double ground, and submits evidence to the jury pertinent to enable him to do so, and it is not known upon which ground a verdict was found for him; a court of error must set aside the verdict, and grant a new trial, for misdirection in matter of law touching either ground of recovery.</p> <p>The implied authority of a -wife, known to live separate from her husband, to bind him for necessaries furnished to her, depends wholly upon his legal obligation to provide for her; and is unaffected by, and independent of, the ignorance or knowledge of the creditor of the facts upon which the liability depends.</p> <p>Such authority, during known separation, is revoked by the adultery of the wife, whether committed before or after her separation from her husband, and whether the creditor has knowledge of the adultery or not.</p> <p>A decree dismissing the petition of the husband for a divorce a vinculo for cause of adultery, passed after full hearing, is not evidence, and certainly is not conclusive evidence, against the husband, that his wife did not commit adultery prior to the petition for divorce or during its pendency, in an action against him for necessaries furnished to his wife during their separation, defended by him on the ground of her adultery.</p> <p>A wife, separated from her husband, has no implied credit to borrow money, at his charge; but if the lender lays out the money, or sees it laid out, in necessaries, he may charge them as furnished by him, thus taking upon himself the application of the loan.</p> <p>The obligation of a father to provide for his ohild, is not affected by his wife’s misconduct; and if, notwithstanding such misconduct, he suffer his child to live with her, he thereby constitutes her his agent to contract for the child’s necessaries, and is liable to those who furnish them upon his credit.</p>

Bill in equity to enjoin an execution issued and all proceedings upon* and for relief against, a judgment at law upon a promissory note for $166, obtained by the respondent against the complainant, by default, at the March term of the supreme court for the county of Providence, a. d. 1853.

Assumpsit against the defendants, executors of the will of Freeborn Sisson, late of Warren, deceased, to recover the dividends or arrears of interest on a legacy of $1,000, directed by said will to be invested for the plaintiff’s use during her natural life.

<p>Appeal from a decree of the court of probate of Warren, appointing Daniel Chace, of Somerset, Massachusetts, administrator on the estate of his wife, Susan B. Chace, late of said Warren, deceased. Tfie appointment was made some nine years after the death of the wife, and after the applicant had married again, upon the vesting in possession of certain personal estate, by the death of a life tenant, which had vested in interest in the first wife of the applicant during his marriage with her.</p>

<p>where a writ of replevin, on trial, in which the defendant is entitled to have the plaintiff nonsuited, is, upon motion, dismissed for want of jurisdiction, to which dismissal the defendant was not entitled, a court of error cannot, upon exceptions, construe such a dismissal to be a nonsuit, for the sake of upholding a judgment against the plaintiff, for the retain and restoration of the goods and chattels replevied, and for damages for the detention of the same.</p> <p>If a cause be dismissed for want of jurisdiction, no judgment can be rendered for the defendant, even for costs.</p>

<p>Assumpsit by the plaintiff, as sheriff of the county of Kent, to recover of the defendant the sum of $506, being the amount bid by the latter for certain real estate sold to him by auction, at a sheriff’s sale, under executions issued by the court of common pleas for that county.</p> <p>The declaration, which was special, in substance alleged, that at the February term of the court of common pleas for the county of Kent, 1851, two judgments were recovered against one Joseph W. Potter — one in favor of Alfred Reed and Elizabeth A. Wicks, and the other in fav'or of Alfred Reed — and that said judgments remaining wholly unsatisfied, on the 7th day of July, 1857, the judgment creditors sued out alias executions on the same and delivered them to the plaintiff for service, who, on the 8th day of July, 1857, levied the same on certain real estate of the judgment debtor described in the declaration; that the plaintiff, after duly advertising said estate, sold the same at public auction to the defendant, the highest bidder therefor, for the sum of $506; but that the defendant, although a proper deed of the land purchased by him had been tendered, and payment of the price had been thereupon demanded, refused to pay his said bid.</p> <p>To this declaration, the defendant filed three special pleas in bar:—</p> <p>First. That the judgments, upon which the executions mentioned in the declaration issued, were rendered for debts contracted prior to 1851; and that after the rendition of said judgments, the said Joseph W. Potter filed his petition for the benefit of the insolvent act in the clerk’s office of the supreme court for the county of Kent, which, at the September term of said court, 1852, was granted; whereby said Potter was, forever thereafter, exonerated and protected from arrest, imprisonment, and any rhanner of bodily restraint, on account of any debt contracted prior to the filing of his said petition ; and that, at the time of the levy on said executions, said Potter was not absent from the state, or concealed therein.</p> <p>Second. That the said Potter was discharged as an insolvent debtor, as in the first plea; and that the said executions ran against his body; and</p> <p>Third. That said Potter was a discharged insolvent, as before pleaded, and that the plaintiffs in said executions did not, after the filing of said Potter’s petition, nor after his discharge as an insolvent, sue out any original summons, or process of summons and attachment, against said Potter, nor was either of said judgments rendered upon any such process or summons.</p> <p>To these pleas, the plaintiff demurred, generally.</p> <p>1st. The genéral assembly has the constitutional power to extend and make more effectual the remedy upon past judgments and contracts, which still exist, as by subjecting to their enforcement or fulfilment the debtor’s real estate, not before so subject; such extension of remedy not being construed to impair contracts, or to disturb vested rights. 1 Kent, Com. 455, 5th e.d.</p> <p>2d. By the true construction of Eev. Stats, ch. 200, §§ 20, 21, where judgment in chief has been rendered against an insolvent, prior to his discharge, an execution issuing on such judgment, after his discharge, must pursue the general form, or, in other words, pursue the judgment. Edmondson v. Parker, 3 B. & P. 185; Buxton v. Mardin, 1 T. E. 80; Palmer v. Palmer, 2 Conn. 462.</p> <p>3d. The executions being authorized by the judgments, and the levy and sale thereon being regular, and not infringing the debtor’s exoneration from arrest, the levy and sale were valid, notwithstanding the executions ran against the insolvent’s body. Woodcock v. Bennett, 1 Cowen, 739; Jackson v. Bobbins, 16 Johns. 575, 576; Blamchard v. Goss, 2 N. Hamp. 491; Reynolds v. Corp, 3 Caines, 267; Miles v. Knott, 12 Gill & Johns. 448, 452, 453; Jackson v. Rosevelt, 13 Johns. 97; Jackson v. DeLancey, lb. 557; Heister v. Fortner, 2 Ann. 40 ; Bennett v. Hamill, 2 Scho. & Lef. 566; Manning's case, 8 Co. 191, 192; Drury's case, lb. 284.</p> <p>1st. The executions upon which this sale was made are void, because issued upon judgments obtained against the insolvent before his discharge, instead of upon new judgments, to be afterwards obtained. Digest, 1844, p. 216, § 16. They are void, because they run against the body of a discharged insolvent, contrary to the express provision of said 16th section; and because they run against real estate, contrary to the same provision. For the same reasons, they are void, under Eev. Stats, ch. 200, fairly construing that act, so as not to make it retrospect.</p> <p>2d. If the new insolvent act (Eev'. Stats, ch. 200,) authorizes an execution to issue against the real estate of an insolvent, discharged under the act of 1844, for a debt existing at the time of his petition, it is unconstitutional, since it destroys a right • vested under a contract. Fletcher v. Peck, 6 Cranch, 87.</p> <p>3d. The objection to these executions is not taken, as contended, in a collateral proceeding, but, if it be, it is properly taken, since the executions and levies are not merely voidable, but void. It is taken, not against the title of an innocent purchaser, as in the case cited by the plaintiff, but by a purchaser, as a reason why he should not be compelled to take a title against which the objection lies. Maberly v. Robbins, 5 Taunt. 626; Elliot v. Edwards, 3 B. &■ P. 181; Williams v. Amory, 14 Mass. 20; Winslow v. Hathaway, 1 Pick. 210; Chamberlain v. Doty, 18 lb. 495 ; Picket v. Breckenridge, 22 lb. 297; Penni-man v. Cole, 8 Met. 496 ; Bradley v. Bassett, 2 Cush. 417; Kennedy v. Duncklee, 1 Gray, 65; Palmer v. Palmer, 2 Conn. 462; Williams v. Cable, 7 lb. 119; Mitchell v. Kirtlcmd, lb. 229; Reed v. Markle, 3 Johns. 516; Jackson v. Morse, 18 lb. 441; Woodcock v. Bennett, 1 Cow. 711; Ward v. Colvin, 2 Hill, 566; Olcott v. Robinson, 20 Barb. Sup. Ct. R. 148; Den v. Wright, 1 Pet. C. C. R. 66; Bond v. Wilder, 16 Yt. 393; Wilson v. Fleming, lb. 469; Cray v. Parker, lb. 652; Morton v. Edwin, 19 lb. 80; Jones v. Spear,' 21 lb. 426; 4 Zab. 797; Dobson' v. Murphy, 1 Dev. & Bat. 586 £Blanchard v. Blanchard, 3 Ired. 105 ; 8 Rich. 345; Pomeroy v. Crocker, 4 Wise. 174.</p>

<p>Motion to dismiss a bill of exceptions, which was brought to this court, to review certain rulings in matters of law, made by Mr. Justice Shearman, whilst holding a special court of common pleas. > ■ :</p> <p>The Eevised Statutes, which first gave a bill of exceptions; to review, in this court, the rulings of a special court of common pleas, went into operation on the 1st day of July, 1857. Eev. Stats, ch. 205, §§, 1, 2. The action in which these exceptions were allowed, brought to recover the amount bid by the defendant for land sold to him at a sheriff’s sale, was commenced on the 14th day of May, 1857, by a writ returnable on the 25th day of May, of that year; and was, after one adjournment, heard by Mr. Justice Shearman, on the 12th day of June following; the case having'been submitted to him by consent, under the statute, both in law and fact. After the hearing, the case was continued for advisement until the 12th day of September, and again until the 25th day of September following, when the opinion was read and judgment given in favor of the defendant, which formed the basis of these exceptions, taken by the plaintiff in the action.</p> <p>The motion to dismiss was made upon the grounds: First,. that the provision of the Eevised Statutes, giving a bill of exceptions in special court cases, did not apply to a case tried, though not decided, before the statutes went into operation. Second, that, if it did apply, no exceptions could be taken to the decision, in a case which had been submitted to the court, by consent, both in law and fact; and Third, that the errors complained of, and excepted to, were not in matters of law, but in matters of fact.</p> <p>It was not the intention of the legislature, in passing the 11th section of chapter 192 of the Eevised Statutes, to enlarge or diminish any remedies, in any suit already heard or tried, before the Eevised Statutes went into operation. See sec. 16, ch. 6, tit. 1.</p> <p>In this case, the commencement of the action, joining of the issue, hearing the evidence, and argument of .counsel both for plaintiff and defendant, in fact every possible question upon which counsel could be heard, took place before the Eevised Statutes went into operation; the closing argument of the counsel for the plaintiff having been made on the 12th of June last.</p> <p>During the progress of the trial of the cause, and of the hearing of the argument, it was not competent for either party to talte exceptions to any .©pinion, ruling, or judgment of the court; and none were taken. The counsel for the plaintiff or defendant, could not, at this time, anticipate any such proceedings; and the defendant contends, that it would be manifestly unjust, that the mere formal postponement of the rendition-of the judgment should enlarge the remedies of the plaintiff, and, on the otto: hand, diminish’ the rights of defendant.</p> <p>All exceptions not taken in the progress of a trial, are to be considered as waived. Kimball v. Irish, 26 Maine, 444.</p> <p>2d. The waiver of the right to.a jury trial, on the part of defendant, waived no other rights; what he assented to was, that it should be tried by the court, with full power to determine both the law and fact; making the judge, in fact, an arbitrator in the cause. If the case had been tried by a jury, and verdict rendered on the 12th day of June, 1857, it is contended by the defendant, that no exceptions could have been taken to the ruling of the judge, although the court, for its own convenience, had postponed a judgment upon the verdict, till the day the judgment in this cause was rendered.</p> <p>3d. The defendant contends, that the section of the Revised Statutes, authorizing the taking of exceptions from the rulings of a special court of common pleas, to the supreme court, if applicable at all to actions pending in a special court of common pleas at the time the Revised Statutes went into operation, can be applicable only to those actions where the whole trial is had after the statute went into operation. Any other construction would be inequitable and unjust, and make the statute obnoxious to the charge of being retrospective in its operation. McMánagil v. Ross, 20 Pick. 99; Spaulding v. Hervey, 2 Shepl. (14 Maine,) 97.</p> <p>If a ‘statute be not explicitly retrospective, the court will not by construction, give to it a retrospective operation. Dash v. Van Kleeck, 7 Johns. 477 ; Watkins v. Haight, 18 lb. 138 ; Thames Mawuf. Co. v. Lathrop, 7 Conn. 530; Perkins v. Perkins, lb. 538; Bernard v. Russell, 19 Vt. (4 Wash.) 334.</p> <p>It certainly contemplates that its operation should be general, and apply to any ruling made during the trial of the cause, and the application of the statute to this cause would contravene such intention. Rev. Stats, ch. 192, § 11.</p> <p>But the defendant goes further in this case, and says, that where the parties submit the whole question, both of law and fact to the judge, they make him an arbiter, and his finding is conclusive in all matters. Roxbury v. Huston, 39 Maine, (4 Heath,) 312; Durm v. Hutchinson, lb. 367; Stafford v. Done-van, 1 Scam. 168; White v. Wiseman, lb. 169 ; Doe v. Scrag-gins, lb. 330; Michael v. State Bank, 8 Eng. (Ark.) 356.</p> <p>And this appears, also, from the fact, that the judge cannot be compelled to give his reasons for his judgment; and in this case, there may be other circumstances operating upon his mind, and bringing him to the same result, beside those spread upon the record by the exceptions taken. Ward v. American Bank, 9 Met. 486.</p> <p>Exceptions will lie only where the proceedings are according to the course of the common law. EndicotCs Petition, 24 Pick. 339, 340.</p> <p>1st. The Revised Statutes were in force when the opinion in this case was pronounced, and the judgment given; and the 11th sect, of ch. 192, is express, that either party aggrieved “ by any opinion, direction, ruling, or judgment of a special court of common pleas, in any matter of law, raised by the pleadings, or by an agreed statement of facts, or apparent upon, or brought upon the record by a bill of exceptions, shall be entitled to have such matter heard before, and decided by, the supreme court, provided such right be claimed in open court, &c.” Rev. Stats, ch. 192, § 11, p. 465.</p> <p>It is not necessary to make the statute retroact to make it apply to pending cases, which have been tried, but in which no opinion has been given or judgment pronounced; but you must nullify this provision to prevent it from applying to such a case.</p> <p>No harm can come to the defendant, if the judge below has erred, from the correction of his errors. He will only be subject to a new trial, in which full justice will be done to him.</p> <p>2d. Where a cause, by consent of parties, is submitted to the court for trial without the intervention of a jury, error will lie to the ruling of the court on questions of law, as in other cases. Franklin Bank v. Buckingham, 12 Ohio, 482.</p> <p>When the court try an issue in fact, exceptions may be taken to their opinion on a question of law decided on the trial, but not to their opinion on the weight of evidence. Nash v. Harrington, 1 Aik. 39; Mocker’s' Heirs v. Thomas, 7 Wheat. 532; Miller v. Miller, 2 Pick. 570; Olney v. Brown, lb. 572; Stearns v. Fiske, 18 lb. 24; McMcmagil v. Ross, 20 lb. 99; Eaton v. Hall, 5 Met. 287; Treasurer v. Merrill, 14 Verm. 557; An-dover v. Reed, 39 Maine, 41, 42.</p> <p>In Vermont, the supreme court cannot, on exceptions, review any matter within the discretion of the county court. Masseaux v. Bingham, 19 Verm. (4 Wash.) 457; see Fletcher v. Clark, 29 Maine, (16 Shep.) 485. An exception will not lie to the ruling of the circuit judge as to a matter of fact. An exception can only be taken upon some particular point of law. Lansing v. Wiswall, 5 Denio, (N. Y.) 213.</p>

Petition to enforce a mechanic’s lien, for work done and , materials furnished, in the building of a house on the land of the respondents in Cranston, at their request. The petition was filed in the court of common pleas for the county of Providence, in June, 1857, before the jurisdiction over such petitions was vested in the supreme court sitting in equity.

<p>An assignment for the benefit of certain preferred creditors, made by a debtor committed upon execution on the morning of the day appointed for the hearing of his application to be discharged upon taking the poor debtor’s oath, is void, as a fraud upon the 10th section of chapter 198 of the Revised Statutes, which requires, that such debtor shall, as a condition of being admitted to the oath, first make an assignment for the equal benefit of all his creditors; and hence, the payment of a debt due to the assignor, if made to the official assignee, though his assignment be subsequent in time, is a good payment, as against the claim of the prior voluntary assignee.</p>

<p>The supreme court, upon the dismissal of an insolvent’s petition, has no power to dissolve an order of the court of common pleas, staying an execution of that court’against the insolvent until further order.</p>

<p>In an application for a writ of certiorari for the correction of errors in criminal proceedings before a magistrate, the court is bound to intend, in support of the conviction, that the proof justified the magistrate in finding the prisoner guilty of a simple assault, although the complaint charged, it to have been made with aggravation, which, if proved, would have required a different sentence upon, or disposition of, the prisoner.</p> <p>Where the time when an offence was committed is not a constituent of it, the omission to state it in a criminal complaint is a defect of form merely, and, as such, aided by ch. 222, § 4, of the Revised Statutes.</p> <p>A charge in a criminal complaint of an assault on two persons, is not bad, as a charge in one count of distinct offences; and upon an application for a writ of certiorari, for the correction of errors, will be presumed, after conviction, to have been supported by proof corresponding to the charge.</p> <p>A warrant of commitment of a convict should not conclude with a general order to the keeper of the jail safely to keep the prisoner u until he be discharged by due order of law” but should distinctly state the terms on which the convict is entitled to his discharge. Such an error is not ground for a writ of certiorari; but if the convict, after having complied with the terms of his sentence, should be detained under such a commitment by the keeper, he will be freed from his illegal restraint by tlie proper process.</p>

<p>Debt for an escape, upon a prison limits bond, given by one of the defendants, as principal, and by the other defendants, as his sureties, whilst the former was committed to the jail for the county of Providence, upon an execution in favor of the plaintiff, for $1,979.98 debt, and $>13.85 costs. Plea, in substance, that the principal defendant remained a true prisoner in the custody of the keeper of said jail, until discharged by the keeper, in pursuance of a certificate under the hands and seals of two magistrates, authorizéd by law to grant discharges under the poor debtor’s act, to the effect, that the principal debtor, confined on execution in said jail, had been admitted to and taken the oath prescribed by said act, and was by them thereupon discharged from his confinement.</p> <p>Replication, in substance, that before the discharge pleaded, and whilst the principal defendant was committed for want of bail upon the writ in the action in which he was afterwards committed on execution, he had applied for, and after a hearing upon the merits, had been refused the poor debtor’s oath*; and that the citation served upon the plaintiff, when afterwards, in the same suit, the principal defendant was committed upon execution, and applied for and obtained the discharge pleaded, did not recite any change of circumstances since the taking out of the former citation, as by law required.</p> <p>General demurrer, and joinder.</p> <p>cited Rev. Stats, ch. 198, § 17, and contended, that the second citation, in which a change of circumstances is required to be recited, referred to in that section, is a second citation, in that action; the words “ committing creditor,” in the section, meaning the creditor in the same action. The grant of the oath to a poor debtor, when committed upon the writ, extends to subsequent process in the same action, and prevents him from being imprisoned on the execution. By parity of reasoning, the refusal of the oath looks to the subsequent process in the same action, and is the very ground upon which, if the debtor cites afresh his creditor when committed upon the execution, the law requires, to its validity, that the new citation should show, upon its face, some reason for a renewed application. If it were otherwise, a fraudulent debtor, if persistent, might weary out, by repeated citations, the creditor whom he had wronged, and by selecting his own times, and changing at pleasure his magistrates, until he found those apt to his purpose, might thus escape the penalty of his fraudulent refusal to pay an honest debt.</p> <p>The fact stated in the second citation, that the debtor is committed on execution, is no change of circumstances, such as is required by the statute, and is not recited as such, inasmuch as in the second, there is no reference to the first citation.</p> <p>1st. The second citation of the poor debtor, required by the statute, after he has been refused the oath, to recite a change of circumstances since the refusal, means a second citation upon the same commitment; whereas the refusal of the oath to the principal defendant in this case, was, when he was committed upon the writ for want of bail; and the subsequent citation under which he was discharged, was issued when he was committed upon execution. The statute did not require a change of circumstances to be recited in the latter citation.</p> <p>2d. But if a change of circumstances was required by law to be recited in the latter citation in order to the validity of the debtor’s discharge under it, such a change was recited in it, inasmuch as it sets forth that the debtor was committed on execution ; the first citation, under which he was refused the oath showing, that when so refused, he was committed before judgment, for want of bail. Angelí v. Robbins 8f others, 4 R. I. Rep. 493.</p>

<p>The defendants were served in these cases only by attachment of their personal property in the hands of the Dunnell Manufacturing Company, a foreign corporation created by, and doing business within, the commonwealth of Massachusetts. The writs were served by leaving copies of the same with Nathaniel W. Brown, the treasurer of the corporation, residing in the state of Rhode Island. These facts appearing in the affidavit of the garnishee,—</p> <p>that the actions be dismissed for want of service of the writs; a foreign corporation, whose treasurer happens to reside within this state, not being liable to service through him in foreign attachment here, any more than a nonresident garnishee who comes casually into the state.</p>

Assumpsit to recover a loss upon a fire policy effected with the defendants.

This was an action of account, brought against the defendants as co-owners with the plaintiff’s intestate of a manufacturing establishment, in the town of Warwick, formerly owned by the Lippitt Manufacturing Company, and alleged to have been exclusively used by the defendants, from the 27th day of September, 1856, to the 11th day of June, 1857, to recover the pro-porfcionate share of the income, profits, and use thereof, during the period aforesaid, due to the plaintiff’s…

Assumpsit against the'defendant, described as of Providence, trader, as late copartner doing business therein in company with one S. L. Freeman, on a promissory note made by his firm, under their style of S. L. Freeman & Co., for $92:29, dated June 22,1854, and payable to the plaintiff on demand.

Assumpsit against the defendants, as devisees of their father, Henry Brown, late of Scituate, deceased, for a balance of $870.81, for services rendered in the family, and during the last sickness of the testator.

<p>By the general law, a will of real estate must be executed with the formalities prescribed by the law of the situs of the property devised, and a will of personal estate, with those prescribed by the law of the domicil of the testator at the time of his death.</p> <p>The 7th section of ch. 154, and the 9th section of ch. 155 of the Bev. Stats, do not alter this rule; the former being satisfied by its application to wills of personalty, executed by persons domiciled in the state at the time of their death, and the latter merely leaving the question of the validity of a foreign will, arising out of its mode of execution, unaffected by the statute provision for its being filed and recorded.</p> <p>Hence, the will of a person domiciled in Wisconsin at the time of her death, and embracing both real and personal estate in Bhode Island, is void as a disposition of the real estate here, if not attested by three witnesses, as our law requires; but is valid as a disposition of the personál estate here, though attested by two witnesses only, according to the law of Wisconsin.</p> <p>In such case, the copy of the will should, upon application to have it filed and recorded here under the provisions of ch. 155 of the Bev. Stats., be ordered to be filed and recorded as a will of personal estate only.</p>

<p>This was an appeal from the award of commissioners, appointed to estimate damages, tinder the eleventh section of the <£ act in relation to the Blackstone Canal,” passed at the January session of the general assembly, 1849; which act provided for the discontinuance of the canal as a navigable highway, and permitted portions of it to be kept open by mill-owners and others, for their benefit, they paying to the owners of the land proper damages for so doing.</p> <p>At the trial of the appeal in this court, at the September term, in Providence, 1858, before the chief justice, sitting with a jury, it appeared that the claimant, who was the owner of a cotton mill on the “upper dam” at Woonsocket Falls, claimed that damages should be assessed to him, under said act, against the respondents, also mill-owners at the same dam, for keeping open a section of the canal, originally .constructed on land now in his ownership, which mainly supplied with water, from the pond raised by said dam, the mills both of the claimant and respondents. The claim was resisted upon several grounds; but principally upon the ground, that by the deed under which the claimant derived his title from James Arnold, the common grantor of all the parties, he was positively restricted from closing up this section of the canal, and so was not entitled to claim damages for its being kept open. This, with the other questions raised, was, for the sake of having the amount of damages assessed, ruled pro forma in favor of the claimant; and the jury having returned a verdict assessing damages for the claimant in the sum of $2,287.50, the respondents now moved for a new' trial, on the ground of misdirection to the jury in matters of law.</p> <p>The ground of the motion, so far as noticed by the court, is so fully set forth in the following opinion, together with the clause of the deed, and facts necessary to its construction, that it is unnecessary to repeat them here.</p> <p>The construction of the reservation in the claimant’s grant, assisted, as it was, by the circumstances of the parties and of the thing granted, should have been put to the jury ; Adams v. Frothingham, 3 Mass. 352; the phrase, “to keep open the trench as it now is,” involving a latent ambiguity, to be explained by proof. Salisbury v. Andrews, .19 Pick. 250; Sargent v. Adams, 3 Gray, 72; Gerrish v. Towne, lb. 82; Woods v. Sawin, 4 lb. 322. Where the intent of the parties can be discovered from the deed, it should be carried into effect. Bridge v. Wellington, 1 Mass. 219; Pray v. Pierce, 7 lb. 381; Frost v. Spaulding, 19 Pick. 445; Bryan v. Bradley, 16 Conn. 474; Mecms v. Presbyterian Church, 3 S. & R. 303 ; Thomas v. Hatch, 3 Sumn. 170; Moore v. Griffin, 9 Shepl. 350; Cocheco Company v. Whittier, 10 N. H. 305; Master Pilots, 8fc. of Newcastle upon Tyne v. Bradley & others, 10 Eng. L. & Eq. R. 386. The intent of the parties in the reservations of the grant is to be inferred from the nature of the reservations and the circumstances of the case (Mendall Sf others v. Delano, 7 Met. 176); and in the claimant’s deed, the intent is clear, and the court will give full effect to it. Tillinghast v. Fry, 1 R. I. Rep. 37. In fact, it was incumbent on the claimant to prove that the particular claim he makes was not within the reservation of the grant to him. Fish v. Bodfish, 27 Maine, (14 Shepl.) 289. The reservation “ to keep open the trench as it now is,” includes all its connections, incidents, and appurtenances. French v. Cahart, 1 Comst. 90; Adams v. Warner, 23 Verm. (7 Washb.) 395 ; C/omwell v. Selden, 3 Comst. 253; Olmstead v. Loomis, 6 Barb. Sup. Ct. R. 152; Forbush v. Lombard, 13 Met. 109; Wyman v. Farrar, 35 Maine, (5 Redf.) 64.</p> <p>The Blackstone Canal Company, by virtue of their charter and location, had only an easement over the land of the claimant; and by the “act in relation to the Blackstone Canal,” passed by the general. assembly at their January session, 1849, the land in question, occupied by the canal company, reverted to the claimant discharged of the easement of the company, and the claimant had a right to fill up that section of said canal, unless the mill-owners should elect to keep it open and pay damages to the claimant, as provided in the act.</p> <p>The exceptions, restrictions, and reservations in the claimant’s deed do not take away or impair this right of the claimant, because: 1st, in said deed it is expressly declared, that the Blackstone Canal Company have only an easement in the use of the water; and 2d, the easements to which the granted estate is there declared subject, are those, and those only, which had been created bydhe act or deed of the grantor; and the easement of the Blackstone Canal Company was not so created.</p>

Assumpsit to recover for a loss under a fire policy, effected by the plaintiffs, a manufacturing corporation, with the defendants, by which the latter had insured the former against loss or damage by fire,— On stock, raw, wrought, and in process, $150.00 “ tools and flasks, 750.00 ■ “ fixtures, cupola, and patterns, 600.00 In the whole, $1,500.00 The cause was tried at the present term, before the chief justice, sitting with a jury; and on the trial it appeared, that in the…

This was an appeal by the administrator upon the estate of Benjamin C. Olney, late of Johnston, deceased, which estate was represented to be insolvent, from a decree, passed in May, 1858, by the court of probate of said town, receiving and establishing the report of the commissioners appointed to examine and act upon the claims of creditors upon said estate.

The service of the writ in this case, which was assumpsit for the recovery of a note and account due from the defendants to the plaintiff, was made February 5, 1858, by leaving a copy of the same with Sylvester J. Watson, for the purpose of attaching the property of the defendants, or of either of them, in his hands and possession.

Bill in equity to declare and enforce the rights of the plaintiffs to twelve tusks of ivory, claimed by them to have been purchased on the coast of Africa by Mark H. Haskell, one of the defendants, and a trading agent of the plaintiffs, partly with their funds, The plaintiffs, who did business in Providence, carried on from thence the African coast trade, as well through supercargoes or clerks, who accompanied their vessels to the coast, as through agencies established at…

Bill in equity, filed by the three living daughters of Abram Baker, late of Gloeester, deceased, with whom their husbands were joined as plaintiffs, against his four sons, co-heirs with them of his estate, for partition of the same ; the bill charging, that the sons had been advanced by their father in his lifetime, by deeds of gift of land, to their full eighth part, each, of .the real estate of which he died seised.

Bills in equity, in the nature of cross-bills, for an account; the one, filed by the Atlantic De Laine Company, a manufacturing corporation, for an account of certain dividends due to them on five promissory notes made by the firm of Hill, Carpenter & Co., and amounting on the face to $18,000, out of the effects of that firm, assigned to the defendants for the benefit of creditors ; and the other, filed by said assignees against the De Laine Company for an account of thirty…

<p>A court of equity will not, in Rhode Island, enjoin the collection of a general, or of a sidewalk tax, of a town or city, on the mere ground that it has been improperly assessed against the complainant, and that his real estate has been levied upon, and is about to be sold, for its satisfaction; nor will it give remedy in such a case; the remedy at law being sufficiently adequate, and far more consonant with the scope and provisions of the tax act.</p>

Bill in equity to enjoin a suit at law commenced against the complainants as garnishees, for the amount of a loss, attached by the… Held: responsible for the amount of such judgment, by reason of their not having answered or made affidavit in the suit; and accordingly, at the September term of the supreme court for the county of Providence, 1856, sued them for the amount of the judgment against Wage & Scott, as garnishees who had neglected to make affidavit in that…

<p>Motion by the complainants, to dismiss their bill, which was for an account, after a decree, entered upon hearing, dismissing the bill as to certain breaches of trust charged in it, and ordering an account between the parties to be taken by a master. The bill, beside charging the breaches of trust, contained a further charge, that certain joint property, — a cotton-mill and macBiery, — out of the running of which by the respondents, on joint account, under a contract with the complainants, the matter of the account grew, had been, subsequent to the expiry of the contract, applied by the respondents exclusively to their own use; and the full hearing of this part of the case, under the respective titles of the parties, had been reserved until the coming in of the master’s report.</p> <p>Cozzens, smo seipso, cited 2 Dan. Ch. Prac. 927-929; Curtis v. Lloyd, 4 Wf&c C. 194 ; Smith v. Smith, 2 Black. 232 ; Car-rington v. Holly, 1 Dick. 280; Bethia v. McKay, Cheves, Ch. Cas. 93 ; Bossard v. Lester, 2 McCord, 421; Westmeath v. Westmeath, 2 Hogan, 33 ; Booth v. Leycester, 1 Keen, 247.</p> <p>cited Quilbert v. Hawles, 1 Ch. Cas. 40; -S. C. called Gilbert v. Faules, Freem. Ch. Cas. 158; Car-ring ton v. Holly, 1 Dick. 281; Curtis v. Lloyd, 4 M. & C. 194; Mother v. Reed, 1 B. & B. 318, 320 ; Egg v. Devey, 11 Beav. 221 ; Cooper v. Le%ois, 2 Phil. 178 ; Booth v. Leycester, 1 Keen, 247,; Cmimings v. Bennett, 8 Paige, 79; Simpson v. Brewster, 9 lb. 245; Bossard v. Lester, 2 McCord, Ch. R. 419 ; Hall v. McPherson, 3 Bland. 529; Seymore v. Jerome, "Walker, Ch. R. 356 ; 2 Dan. Ch. Prac. 356, 747, (side paging.)</p>

On the 27th day of March, 1857, the complainant, Nichols, loaned to the defendant, Baxter, the sum of $350, and received from him therefor his promissory note of that date, for the same sum, payable one year after date, with interest payable semi-annually; said note being secured by a mortgage given by Baxter, with a power of sale, upon two lots of land, with a small dwelling-house thereon, situated in North Providence.

Indictment against the defendant for keeping and maintaining, at Cumberland, in the county of Providence, a certain common nuisance, to wit, a grogshop and tippling-shop, in violation of the provisions of chapter 73 of the Revised Statutes, entitled, “ Of the suppression of certain nuisances.” The indictment contained the same counts as that against Sidney S. Paul for the same offence, reported, ante, 185 ; and after verdict of guilty in the court of common pleas for the…

Assumpsit against the defendants as the makers of a promissory note for $4,200, dated March 10, 1853, and payable six months after date, to Livingston, Wells & Co. or order, and by them indorsed to the plaintiffs.

Assumpsit against the defendants as acceptors of a bill of exchange and makers of three promissory notes, due to the plaintiffs, in all amounting to the sum of about $>5,700 ; the writ being served only by attachment of all the right, title, and interest of the defendants in two farms, of upwards of an hundred acres each, one situated in Newport, and the other in Middle-town, in this state.

Assumpsit upon a guaranty, given to assure the return of certain cotton cloth delivered to be printed.

This was an action of the case, brought by the plaintiff, a deputy sheriff of the county of Providence, to recover the sum of $506, at which price a tract of land, levied upon by the plaintiff under an execution against the Woonsocket Union Railroad Company, had been struck off to the defendant at the sheriff’s sale.

Bill in equity for the specific performance of a contract made by the respondent, to purchase certain land belonging to the complainants, situated in the town of Tiverton.

<p>Petition for a new trial in an appeal from the laying out of a highway in South Kingstown; the appeal having been tried before Mr. Justice Shearman, with a jury, at the May term of the court of,common pleas for the county of Washington, 1858. The lay-out of the road having been confirmed by the verdict of the jury, the appellant filed his petition in this court, praying that the verdict might be set aside and a new trial granted to him, “ because the jury misunderstood the evidence and law in the case, and because improper influences had been used with the jury to affect their verdict.” In support of these grounds, of which the petition contained specifications, the affidavits of three of the jurymen who tried the case were read de bene, to show that two of them misunderstood the evidence, and supposed that all the land for the route adopted, except that of the appellants, would be given for the purposes of the new highway; and that all the land required for the purposes of the route rejected by them, except that of the appellants, would have to be paid for by the town; and that they further supposed, and would not otherwise have agreed to the verdict, that, notwithstanding the verdict, the whole subject would come before the next June town meeting for final action and decision. In addition, affidavits of others to the declarations of the jurymen, made after their verdict, were read, de bene, to the same general effect. The affidavit of Clarke Tucker was also read, to the effect that, at noon on the last day of the trial, he saw Benjamin C. Perry in close conversation with two men whom he afterwards was informed were of the jury; and that when Perry stepped aside, he heard one of the men say to the other, “that was what he was up to; he was trying to operate.on the jury,” or words to that effect. Russell T. Robbins also swore, in his affidavit, that he saw Perry coming out of the court-room at noon of the last day of the trial with two men whom he knew to be of the jury, although he did not know their names. Perry, on the other hand, in his affidavit, swore, that he had no connection with the cause except as constable, to serve the summonses on witnesses for the town, at the request of the town’s agent; and that, neither during the trial nor since, had he conversed with either of the jurymen, or, to his knowledge, in the presence of any of them, in relation to the cause.</p>

The appeal was tried, at the November term of the court of common pleas for the county of Washington, 1858, before Mr. Justice Shearman, sitting with a jury; when, a verdict having been returned affirming the doings of the town council of South Kingstown in laying out the highway, exceptions to the rulings of the court were allowed ; and were at this term brought to this court for adjudication.

Bill in equity, filed in the'county of Newport, September 23,1852, for the specific-performance of a contract for the sale of a lot of land in Newport, containing about eleven acres, and lying north of, and adjoining to land of the complainant.

The appellant admitted that he had, as tax collector of School District No. 10, in North Providence, collected certain taxes, but contended that he had paid the amount of the taxes to the treasurer of the district, which the latter denied. The district voted that the collector should pay the money; from which vote he appealed to the school commissioner.

11, of the town of Exeter, authorizing the assessment of a tax.

2, of the town of Cranston, passed at a meeting held May 7,1859.