Volume 6 — Rhode Island Reports

<p>Bill in equity by the plaintiff, a joint owner with the defendant of the reversion of the Howard Block estate, so called, situated on the north side of Westminster Street, Providence, to restrain the defendant, also tenant of the same under a lease for ninety-five years, from building upon and closing up a gangway at the east end of said estate, contrary to the provisions of the lease.</p> <p>The case was heard upon bill and answer ; and from these it appeared, that by a sealed agreement, entered into in 1786, by Nathan Waterman, the then owner of the estate, and Archibald Stewart, the then owner of the estate adjoining it on the east, since called the Museum estate, a twenty foot gangway, running from Westminster Street to the channel of the Cove, was laid out between the two estates ; thirteen feet -of the width of which was taken from the land of Waterman, and seven feet from the land of Stewart; and that by said covenant it was agreed, that the gangway should remain “free and open, for the common use and benefit of them (the parties) and each of them, their respective heirs and assigns forever; and also for the equal and common use of Elisha Waterman, Rufus Waterman, and Richard Waterman, brothers of the said Nathan Waterman, their' respective heirs and assigns forever;” the said brothers Waterman then owning a large real estate in that vicinity; that though the above agreement was not recorded until November 1, 1853, the gangway was actually laid out at or about the time of its date, and has been kept open ever since, though now but little used, and of no value, as a gangway, having become a nuisance to the neighborhood, from the accumulation of filth in it. Upon the death of Nathan Waterman in 1832, intestate and without issue, and the division of his estate amongst his said brothers and heirs at law, his Howard Block estate became vested in his brother, Richard Waterman, who, on the first day of January, 1847, leased the same for the term of ninety-five years to the respondent. This lease, which was by indenture, and executed by both parties, witnessed : “ That the said Richard Waterman, for and in consideration of the rents and covenants hereinafter named and contained, on the part of the said George A. Howard,-his executors, administrators, or assigns, to be paid, kept, and performed, hath demised, leased, and to farm let, and by these presents doth demise, lease, and to farm let, unto him the said George A. Howard, his executors, administrators, and assigns, a lot of land, situate on the northerly side of Westminster Street, on the west side of the bridge in said city of Providence, and bounded, southerly, on said Westminster Street, sixty-four feet and six inches; westerly, on a gangway eleven feet in width, and extending on said gangway from said Westminster Street, about two hundred fefet to Fulton Street; northerly, on said street about sixty-four feet and six inches; and, easterly, on a gangway about two hundred feet; the said gangways are to be kept open for the benefit of the lot hereby leased, and also of the lots hereunto adjoining; together with two shares, or rights, in the Rawson Fountain Society; the lot hereby leased is the lot next west of the ‘ Stewart Gangway,’ so called. To have and to hold,” &c. The lease then went on to provide, by express mutual covenants, for an appraisement of the rent at the end of fifteen years, and at the end of every five years thereafter during the term ; for the payment of taxes and assessments by the tenant; that the buildings and improvements put and being upon the premises should be pledged as security for the annual .rent; that in case of rent in arrear six months, and after demand thereof, the lessor, his heirs and assigns should have the right to reenter and terminate the lease, in which case, as well as at the end of the term by lapse of time, the buildings and improvements then upon the premises should be conveyed to, and purchased by the lessor, his heirs and assigns, at their appraised value; and the lease concluded with an express covenant on the part of the lessee to pay rents and taxes, and at the termination of the lease peaceably to surrender possession of the demised premises. Upon the death of Richard Waterman, shortly after the above lease was entered into, his two sons, Stephen and Caleb, and the children of a deceased son, Nathan, as representatives of their father, took, by devise, his real property, including the Howard Block estate, as tenants in common; and upon a probate division of the same amongst them, made . in 1848, the reversion of the Howard Block estate became vested in Stephen and Caleb. The petition for the division, signed by all interested, described this estate as “ one lot of land, in the said city of. Providence, on the north side of 'Westminster Street, adjoining the same, and measuring sixty-four feet and one half foot on said street, and running back two hundred feet to Fulton Street, and leased to George A. Howard, with right in the gangways adjoining.” By mesne conveyances from the devisees and representatives of the devisees of Richard Waterman, the complainant was, at the filing of the bill, the owner of one fifth, and the respondent, of four’ fifths, of the reversion of the Howard Block estate, to come into possession of the former upon the determination of the above lease for ninety-five years to the latter. The deeds of this reversion, executed to the respondent, recognized the gangway on the east of the estate. The Museum, or Stewart estate, lying directly east of the gangway in question, and the right in the gangway, were purchased by the late Gamaliel L. Dwight, Esq., in April, 1851; his deeds having been recorded on the 22d day of April of that year; and was by Dwight, on the 18th day of January, 1854, conveyed for value to the respondent, by deed of that date, recorded on the 23d day of January, 1854; since, which it has remained the sole property of the respondent.</p> <p>The buildings on both these adjoining estates, the Waterman or Howard Block estate, leased to the respondent, and the Stewart or Museum estate, owned by him, having, in November, 1858, been destroyed by fire, the respondent proposed to build a continuous building, covering the front of both estates on Westminster Street, and thus to close up the twenty foot gangway, laid out and existing as aforesaid between them. It was to enjoin this closing up of the gangway by the respondent, as contrary to the stipulation of his lease of the former estate, that this bill was filed by the complainant as entitled to one fifth of the reversion thereof.</p> <p>contended, that the agreement of 1786, laying out the gangway, if known to the respondent, was binding upon him, though not recorded until after his lease, and after the conveyance of the Stewart or Museum estate to his grantor, Dwight, or by Dwight to him. The open gangway was notice sufficient to him ; and if not, his title-deeds, as reversioner of four fifths of the Waterman or Howard Block estate, as well as his title-deeds, as owner of the Stewart or Museum estate, bounded him upon, and apprised him of, the gangway, and the right to the gangway.</p> <p>He also insisted, that his lease of the Howard Block estate expressly required him to keep open the gangway for the benefit, not only of the lot demised, but of the adjoining lots ; that it was of no consequence why the gangway was required to be kept open, if the lease did require it. He suggested, however, that upon determination of the lease by reentry for non-payment of rent, or upon its expiration, the lessor and his heirs and assigns were bound to purchase the buildings at an appraisal, and were therefore interested in having them built according to the requirements of the lease, with all the means of access preserved which the lease stipulated for; and that upon partition of the estate, especially, the gangway might be of the last importance to one or more of the part-owners, for the purpose of access to his or their part.</p> <p>The lease contains no covenant on the part of the lessee to keep open the gangways ; no reservation of them by the lessor; the words referred to as such, being mere words descriptive of their character as existing for the benefit of the leased and the adjoining estates, and implying a stipulation on the part of the lessor, that he would not, during the term, close them up. The express mutual covenants which follow, in the lease, and the express covenant of the lessor, with which it closes, support this construction.</p> <p>By the terms of the lease, the gangways are to be kept open for the benefit of the lot’leased, and of the lots adjoining thereto; meaning, that they are to be kept open, — the gangway, twenty feet wide, on the east of the Howard Block lot, for the benefit of that lot and the Stewart or Museum lot, and the gangway-eleven feet wide, on the west of the Howard Block lot, for the benefit’of that lot and the lot west of it. As owner of the Stewart or Museum lot, and as lessee for ninety-five years of the Howard Block lot, the respondent is alone interested in that gangway, and may, therefore, close it up.</p> <p>As to the agreement of 1786, no claim is set up in the bill, except under Nathan Waterman and Richard Waterman; and as that agreement was not recorded until after the lease and after the deed of the Stewart estate to Dwight, the grantor of that estate to the respondent, the agreement cannot bind the latter.</p> <p>The gangway is not only useless, but a nuisance; and a court of equity will not, on account of a stipulation in a lease made for the benefit of two estates, of one of which the defendant is the absolute owner, and of the other of which he is the lessee for ninety-five years, enjoin him from a valuable improvement, which can possibly harm no one. If the closing of this gangway by buildings affects the property injuriously, the lessor will be compensated in their lesser value upon appraisal, at the ■determination of the lease. The injury, at all events, may be ■compensated in money, and a court of equity will not, in such ■a case, enjoin ; or where the injury is not in the nature of irreparable mischief, or, at least, a serious injury. Collins v. Plumb, 16 Ves. 454; Atkins v. Chilson, 7 Met. 398 ; Dcma v. Valentine, •5 lb. 8, and cases cited; Ingraham v. Dwmell, lb. 118. In Dickenson v. Grand Junction Canal Co. 19 Eng. L. & Eq. R. 292, and in Steward v. Winters, 4 Sandf. Ch. R. 587, the injury was, in fact, serious. In short, the court exercises, in such cases, an equitable discretion; and will refuse to enjoin, or dissolve an injunction granted, upon the ground that the complainant has acquiesced in what he complains of. Wood v. Sutcliffe, 8 Eng. •L. & Eq. R. 217; Barret v. Blagrave, 5 Ves. 555; S. C. 6 lb. 103.</p> <p>By the opening of Dorrance Street, at the west end of the leased premises, affording a fine access to it, not contemplated ■at the time the lease was given, things have so changed, that the court should act upon the presumption, that had the change in question been anticipated, the clause in question would have been modified, or would not have been inserted.</p> <p>If the court feel bound to enjoin at all, they will, at least, define what is a “ keeping open ” of this gangway for the benefit of this and the adjoining estates ; and say, whether the respondent may not be permitted to arch it over with his building, with flights of steps from its sides to the story above, leaving a sufficient space for passage, and providing for light.</p>

Petition of creditors of Darius Sessions, an insolvent, to whom, at the Septembér term of this court, 1851, had been granted the benefit of the “ act for the relief of insolvent debtors,” for the appointment of a new assignee in the place of Sylvester Hartshorn, deceased, originally appointed assignee upon the granting of the insolvent’s petition.

Rogers, Esq., a justice of the peace in the city of Providence, for contempt, and praying that they be relieved from said restraint, as unauthorized and illegal.

<p>A plea that “ said several supposed causes of action in said counts mentioned, if any such there he or still aref did not accrue within six years, is defective, for not confessing the causes of action which it seeks to avoid; but, as the defect is formal merely, by force of ch. 184, § 4, of the Rev. Stats., the court must support the plea, though, for this cause, specially demurred to.</p>

Covenant for the non-performance of an award of referees under a rule of court, brought upon the following deed of submission :— “ Susan Sprague v. Joseph Hull. “ Action of Trespass.

The defendant was convicted, at the present term of the court, of keeping a certain common nuisance, to wit, a grog-shop, tippling-shop, &c., at Providenceand now moved for a new trial, on the ground, first, that the officer who attended the jury, after the cause had been committed to them, did, at the request of the jury, or of some one or more of them, before they had agreed upon a verdict, and without the knowledge or consent of the defendant, or of his counsel, or of the…

<p>One who had taken the growing fruit of another without leave, was prosecuted therefor on a criminal complaint, which charged, that he “ feloniously did steal, take, and carry , away cultivated fruit, to wit, ripened cherries, being and growing upon the land and possessions of the complainant, &c.,” which complaint was quashed. Held, that an action for malicious prosecution could not be maintained by the accused, though the accusation were maliciously made; the complaint being, not for theft, but substantially -for trespass, under ch. 214, § 20, of the Revised Statutes, with words of harsh surplus-age, and it having been proved that the plaintiff committed the trespass.</p> <p>Where, in such case, the prosecutor, a laboring man, truly stated his cause of complaint to a counsellor at law for his advice and direction, and pursuing that advice, signed and swore to a complaint, as aforesaid, prepared for him by the counsellor under a misreeollection of the statute, the misnomer of the offence in the complaint will not support an, action for malicious prosecution, even in case of the most express malice in prosecuting; inasmuch as there was probable cause for the prosecution, in the form in which it was made.</p>

<p>Justices of the peace, and courts of magistrates exercising the jurisdiction of justices of the peace, have jurisdiction over the offence of selling liquor in violation of ch. 78, § 16, of the Revised Statutes; and the supreme court has jurisdiction to entertain appeals, in such cases, from such justices and courts.</p>

<p>In trover against two for a joint conversion, the plaintiffs obtained judgment by default against one, and then withdrew their action against the other, upon receiving from him partial satisfaction for the wrong, and agreeing no further to prosecute him personally therefor. Held, that damages might be assessed against the defaulted defendant for the value of the goods converted, with interest from the time of conversion, deducting ' therefrom the amount received from his codefendant, by way of compromise, for Ms liability.</p>

<p>Where, under a policy on all iron purchased by, or consigned to, the insured, insurance was effected by him on “ 808 bundles rods ” at and from Liverpool to Providence, via New York and Boston, and the policy provided, “ that said company shall not be liable for any partial loss on bar or sheet iron, iron wire, hoop iron, tin plates, ice, salt, grain of all kinds, &c.; nor for any partial loss on hemp or flax, unless the same shall amount to 20 per cent, on the whole aggregate value thereof,” &c.; Held, in case of a partial loss claimed on the bundles of rods insured, that the court cannot determine as a matter of law, whether “ bundles of rods ” are “bar iron,” within the meaning of the proviso, but that the same is a question of fact to be submitted to the jury; that, to the meaning of these terms in the trade, the testimony of any persons connected with it, whether as manufacturers, retail dealers, or workers in iron, as well as of insurers of iron or merchants effecting insurance upon it, was admissible in evidence; — but that such testimony might be controlled by evidence of^a usage to treat “bundles of rods” as “bar iron” under the above proviso, in the adjustment of losses upon such policies; to which usage only the testimony of insurers, insurance brokers, and merchants accustomed to make and settle losses upon contracts of insurance upon such subjects, should be admitted.</p> <p>Held, also, that the rule to ascertain the amount of a partial loss was, by deducting the gross produce of sales of the damaged goods, at the port of arrival, from the gross produce of the sales of such goods if they had arrived sound, to ascertain the proportion or percentage of loss, and to take that percentage upon the cost of the goods insured, or their value in the policy, as the amount which the insurer is to pay; but that under the above proviso the insurer was exempted from any partial loss on “bar iron,” though the same exceeded 20 per cent.; but that, where the jury, being misinstructed in this last particular, found for the plaintiff, under the general issue, a partial loss, exceeding 20 per cent., but also found specially, upon the evidence, that “ bundles of rods ” were not “ bar iron,” the misinstruction was no ground for new trial.</p>

<p>A court. of equity will not retain a bill to abate a dam which flows lands of the plaintiffs until the title of the plaintiffs is established at law, after upwards of forty years’ user by the defendants of the dam upon payment of compensation, as they aver, under claim of right; but will dismiss the bill with costs.</p>

<p>Trespass and ejectment to recover the possession of a lot of land in the north part of the city of Providence, being lot No. 10, on a plat of land of Samuel Whelden, made July 7, 1845.</p> <p>Pleas, the general issue, and soil and freehold in the defendants ; and, again, in the defendant, Edward Fitzpatrick, and that by his license, the other defendants entered, and joinder.</p> <p>At the trial before the chief justice, with a jury, it appeared that the plaintiffs, who were infants, claimed title to the lot in question, as the children and sole heirs at law of one Martin Fitzpatrick ; that the lot was formerly the property of one ’William Donnelly, by whom, on the 23'd day of August, 1849, it was mortgaged to the defendant, Edward Fitzpatrick, to secure the sum of $456, payable on or before the 23d day of February, 1850, with power of sale to. the said Edward, his heirs, executors, administrators, and assigns., for the payment of said sum with interest and expenses of sale, in the event that the mortgage money should remain unpaid after said 23d day of February, 1850 ; he or they “ first giving three months’ notice of such sale, and of an adjourned sale, two weeks, in some public newspaper, in said Providence.” To prove the assignment of said mortgage, by Edward Fitzpatrick, to their father, Martin Fitzpatrick, the plaintiffs submitted evidence, tending to prove, that the original assignment of the mortgage was formerly in the possession of Martin, and was kept in a trunk in which were his clothes and all his papers, to which Edward, being in the same house, had free access, which assignment was now missing; and claiming that Edward had taken it, and now had it, in the possession of his counsel, in court, called upon the counsel to produce it; which being refused, they offered as secondary proof of the same, a certified copy of the instrument from the registry of deeds in Providence, together with the testimony of Hon. William R. Staples, late chief justice of the supreme court, to his minutes of the sworn admission of Edward, taken on the trial before him of certain proceedings in forcible entry and detainer instituted by said Martin against said Donnelly for the possession of the premises, from which it appeared, that said Edward, as .a witness, swore that he had assigned said mortgage to Martin and received from him a consideration therefor. Judge Staples produced the minutes in his handwriting; but stating, that he did not recollect the testimony at all, even after reading his minutes, but that they were the minutes taken by him as judge presiding at the trial, and that he presumed they were correct, his minutes and testimony were objected to, on the part of the defendants, as proof of Edward Fitzpatrick’s admission that he assigned said mortgage to Martin, and, notwithstanding said objection, were allowed by the court -to pass to the jury. In further proof of their title, and that Martin Fitzpatrick, after the day of payment in said mort6* gage, sold the lot in question under the power of sale contained therein to one John Doran, who reeonveyed the same to Martin, the plaintiffs first offered evidence tending to prove, that said Martin advertised, in the “ Providence Journal,” for the length of time required by the power, the sale of the mortgaged premises, and produced the files of that paper, with accompanying proof, from which it appeared, that for the requisite length of time the following advertisement was inserted in that paper :—</p> <p>“ Mortgagee’s Sale.</p> <p>“ Will be sold by public auction on Friday, April 19,1850, by virtue of a power of sale contained in a deed of mortgage, made and executed by William Donnelly, Aug. 23, 1849, a certain lot of land, with the buildings and improvements thereon situate, in the northerly part of the city of Providence ; being the lot of land, numbered (10) ten, on a plat of the land of Samuel Whelden, surveyed and platted by H. F. Walling, July 7,1845. By order of the mortgagee.”</p> <p>The admission of this evidence of the execution of the power was objected to on the part of the defendants, on the ground, that the notice of sale, above advertised, described the estate sold, only by reference to a plat, and did not state to whom the mortgage was executed. It appearing, however, that the plat as well as the mortgage were recorded in the registry of deeds and plats in the city clerk’s office, in Providence, the objection was overruled, and the evidence was admitted to pass to the jury.</p> <p>The plaintiffs then submitted proof, that on the 19th day of April, 1850, the lot was sold, under the power, at public auction, to John Doran, as the highest bidder therefor, for the sum of $520, and in further evidence of their title offered two deeds, one, from William Donnelly, executed by Martin Fitzpatrick, as his attorney, bearing date April 19, 1850, and first acknowledged before the city clerk on the 22d of April, 1850, which recited Donnelly’s mortgage, the power of sale, non-payment of the mortgage money, and sale, and conveyed the lot to Doran, in fee; and the other, a quitclaim deed from Doran to Martin Fitzpatrick, of the same premises, and dated, and first acknowledged, on the same days, as the deed from Donnelly to Doran. It appeared from inspection of the first of these deeds, coupled with the testimony of the city clerk, who witnessed and acknowledged it, that when first executed and acknowledged it ran in the name, and purported to be the deed of Martin Fitzpatrick, as “ the present mortgagee of the aforesaid mortgage deed,” (meaning Donnelly’s mortgage to Edward Fitzpatrick,) “by virtue of an assignment, recorded, &c.” though signed by Martin Fitzpatrick as attorney for Donnelly; and that afterwards, on the 2d day of May, 1850, it was altered, by interlining the words “ William Donnelly, by my attorney,” between the words “ J.” and “ Martin Fitzpatrick,” in the body of the deed, and in other respects mentioned below, leaving the signature and date to stand, and was then reacknowledged before, and recorded afresh by the city clerk; his certificate, as follows, under the old one, being upon it: — •</p> <p>“ Providence, ss. In city of Providence, May 2, 1850, came Martin Fitzpatrick, and acknowledged the foregoing instrument, as altered by adding, “ and whereas said Donnelly appointed said Edward his attorney, with power to sell, and whereas said Edward assigned the mortgage aforesaid to Martin Fitzpatrick on the first day of October, a. d. 1849,” and also, “ William Donnelly, by my attorney,” to be his free act and deed.</p> <p>“ Before me, Albert Pabodib, City Clerk.”</p> <p>On the same day, as appeared by the certificate on the deed, and oath of the city clerk, the deed from Doran to Martin Fitzpatrick was acknowledged by Doran again, and recorded afresh.</p> <p>Upon this proof of title, the judge presiding at the trial, against the objection of the defendants, allowed the deeds to pass to the jury as sufficient primd facie evidence of title in the plaintiffs, and thereupon the plaintiffs rested their case.</p> <p>To maintain the issues on' their part, the defendants offered in evidence a mortgage deed of the premises of a date prior to the mortgage under which the plaintiffs ¡.claimed, but assigned to the defendant, Edward Fitzpatrick, after the commencement of this suit, which, being objected to by the plaintiffs, the presiding judge refused to allow to pass to the jury to protect the possession of the defendants.</p> <p>To maintain the issues, on their part, the defendants then offered in evidence a mortgage deed of the premises, made by Martin Fitzpatrick to William G. R. Mowry and Clarke Steere, copartners, under the style of Mowry & Steere, and an assignment thereof to the defendant, Edward Fitzpatrick, executed, and bearing date, after the commencement of this suit, but which assignment recited, that the mortgage had been really purchased by said Edward of said Mowry & Steere, for full value, prior to the commencement of this suit, to wit, on the 8th day of January, 1855. On the margin of the record of this mortgage, in the book in which it was registered in the city clerk’s office, it was agreed, however, was the following writing:—</p> <p>“ Having received payment in full for the note within named, we do hereby cancel and discharge this mortgage deed. Witness our hand and seal, January 8th, 1855.</p> <p>(Signed) “ Mowry & Steere, (l. s.)</p> <p>“ By Wm. G. R. Mowry, (l. s.”)</p> <p>“ In presence of</p> <p>“Albert Pabodie.”</p> <p>The said assignment of said mortgage also recited that this writing on the margin of the record had been made by mistake; and the defendants differed to prove, in connection with said mortgage and assignment the facts recited in said assignment, to wit, that said Edward Fitzpatrick did out of his own proper moneys, on said 8th day of January, 1855, pay to said Mowry & Steere the full value of said mortgage debt, and thereby, had then actually purchased said mortgage of them, and that said writing on the margin of the record of said mortgage had been made by mistake and error of said Mowry & Steere, and that neither said Martin Fitzpatrick, under whom the plaintiffs claim, nor any one for him, had paid said mortgage debt, or any part thereof. The presiding judge, upon the objection of the plaintiffs, refused to allow said testimony, or said mortgage and transfer to pass to the jury, as evidence of title on the part of the defendants.</p> <p>The jury having found the several issues for the plaintiffs, and the defendants having duly excepted to the several rulings above of the judge presiding at the trial, now moved for a new trial on the ground of errors in law in said rulings.</p> <p>1st. The notes of Judge Staples should not have been received in evidence. It was not the testimony of William R. Staples, swearing from memory, refreshed by the memoranda to facts that had once been within his knowledge that went before the jury, but it was the paper, as the official notes of Judge Staples of the testimony of a witness at a former trial, mere hearsay, that was allowed to pass. This should not have been. The rule has never been extended to include these, especially where the witness is living and within the jurisdiction. Miles v. O’Hara, 4 Binney, 108; Foster v. Shaw, 7 Serg. & Rawle, 156 (162); Lightner v. Wike, 4 lb. 203; Lawrence v. Barker, 5 Wend. 301; Greene v. Brown, 3 Barb. (Sup. Co.) 119. Even had the witness deceased, these notes would not have been admissible. They were not sufficiently established, and were in another case, with different parties and issues. Wolf v. Wyeth, 11 Serg. & Rawle, 149; 1 Greenl. Ev. § 163, &c. and note; Watson v. Gridley, 11 Serg. & Rawle, 337 ; Warren v. Nichols, 6 Met. 261.</p> <p>2d. This advertisement is«defective and not sufficient under the power, and the sale thereunder was consequently void. These powers are limitations upon the right to redeem and are not favored, but are to be strictly construed and followed. Hill on Tl-ustees, 478 ; 1 Sugden on Powers, 252, 253 ; 1 Hilliard on Mortgages, 97, § 15-91, § 2; Gibson v. Jones, 5 Leigh j 370, as cited in 2 U. S. Eq. Digest, 363, § 1496 ; Ormsby v. .Tarascón, 3 Litt. 404; 2 U. S. Eq". Digest, § 1498-9. No place or time of sale is given. Burnet et al. v. Henniston, 5 Johns. Chan. 35. The advertisement is signed by no one, and no information given in it by which any one interested could know where, or to whom to apply to redeem, or acquire information concerning the mortgage, the amount due, &c. The only reference is by order of the mortgagee, when in fact the sale was by an assignee of the mortgagee. The sale being void for above defect in the notice, no title passed by it, and consequently, the legal title and right of action, if any, is in the administrator of Martin Fitzpatrick, and not in the plaintiffs his heirs. • It is well settled, that plaintiffs in ejectment must recover on the strength of their own title, and that a defendant in possession, without title, may show that the plaintiff has no title, or that it has failed or passed out of him. Jackson v. Rowland, 6 Wend. 666.</p> <p>3d. The mortgagee’s deed, as first executed, was a nullity; or if not, it was cancelled by the alterations, and the title under it did not vest in Doran until the time of the second acknowledgment, which was after Doran’s deed to Martin Fitzpatrick. Clason v. Corley, 5 Sand. (Sup. Co.) 447 ; 13 U. S. Dig. 491, §§ 142, 143. And Doran’s deed being a mere quitclaim deed, with limited covenants, no after-acquired title passed by it. Blanchard v. Brooks, 12 Pick. 49; Comstock v. Smith, 13 lb. 116; Wight v. Shaw, 5 Cush. 56; Miller v. Ewing, 6 lb. 34.</p> <p>4th. The title acquired under the mortgage to Stephen Martin should have been received in evidence to protect the defendant’s possession. Jackson v. Smith, 13 Johns. 408 ; Tucker v. Keeler, 4 Vermont, 161 (as cited 2 U. S. Dig. 136, § 427) ; Munsel v. Sanford, 1 Root, 257, (lb. 138, § 473).</p> <p>5th. The title acquired under this mortgage should have been received in evidence. The title when acquired related back to this suit. In fact, the title vested before this suit; for the mere payment of the money passed the mortgage. Jackson v. Ramsay, 3 Cowen, 75. The receipt upon the margin of the record is a mere receipt, and open to explanation, to show it was a mistake, especially as against the plaintiffs, who are merely volunteers in the estate under the original mortgagee, and cannot, like a purchaser for value, set up the record discharge. Bell v. Woodward, 34 N. Hamp. 90; Fleming v. Tony, 12 Harris, 47.</p> <p>1st. The evidence of the record of the paper mentioned was rightly admitted. Its admission'is sustained by the cases, State v. Gordon, 1 E. I. Eep. 191,192 ; and State v. Colwell, 3 lb. 132. The paper was admissible, on its recognition by the witness of its genuineness, as his official notes. 1 Greenl. § 437 and note.</p> <p>2d. The references in the advertisement of sale to the registration of both the mortgage and of the plat, made the description of the premises sufficient.</p> <p>3d. That the re-acknowledgment and redelivery of these deeds would operate' as an execution and delivery de novo, and relate back to their dates, would seem to be a proposition too obvious in the law to need any argument.</p> <p>4th. The ruling objected to here is sustainable upon every principle; since in trespass and ejectment, whether under the plea of not guilty or of soil and freehold, the issue looks only to the title at and before the commencement of the action.</p> <p>5th. The evidence of the 'Mowry mortgage was rightly rejected, as the mistake mentioned, if any there was, could be corrected only in a court of equity. Eev. Stats, ch; 149, § 8.</p>

<p>This was an indictment against the defendant, in two counts, charging him with keeping and maintaining a common nuisance, in violation of chapter 73 of the Revised Statutes.</p> <p>The first count charged that the defendant “ 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 lpst-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 grog-shop 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 person^, 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, on the same day and year, at said Providence, “ 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,” “ did keep and maintain a certain grog-shop 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, &c.”</p> <p>At’'the trial of the indictment, before Shearman Justice, at • the December terra of the court of common pleas for the county of Providence, 1858, the counsel for the defendant requested the court to charge the jury, that the indictment did not. charge the commission of any offence provided for in the 73d chapter of the Revised Statutes, but did in substance charge the common-law offence of keeping and maintaining a common nuisance, viz: a grog-shop, tippling-shop, and building, place, and tenement, used for the illegal sale and keeping of intoxicating liquors, and where intemperate, idle, dissolute, noisy, and disorderly persons were in the habit of resorting; and that, in order to convict the defendant, it was necessary for the-government to prove — 1st. That the building, place, or tenement was used for the illegal sale or keeping of intoxicating liquors; 2d. That intemperate, idle, dissolute, noisy, or disorderly persons were in the habit of resorting there; and, 3d. That said place was kept by the defendant for such purposes.</p> <p>The court refused to give these instructions, but, on the contrary, instructed the jury that the indictment sufficiently described an offence under said chapter; that it was immaterial whether it did, or did not, charge the commission of such common-law offence, inasmuch as it did sufficiently charge an offence under said chapter; and that in order to conviction, it was unnecessary for the government to prove all that the counsel for the'defendant required, but that if the testimony showed either that intoxicating liquors were illegally sold or kept in the place charged, or, that it was a place .where intemperate, idle, dissolute, noisy, or disorderly persons were in the habit of resorting, and that said place, was kept by the defendant for either of those purposes, it would be" sufficient to maintain the indictment.</p> <p>The counsel for the defendant also requested the court to charge the jury, that in order to convict the defendant, the facts proven by the testimony and relied upon by the government must be of such a character, that their existence could not be reasonably reconciled with any other hypothesis than that of the guilt of the defendant.</p> <p>The court assented to this request, and charged the jury, “ that if the testimony in the case was as consistent with the defendant’s innocence as with his guilt, they must acquit, and otherwise, they need not; and that if there was any reasonable doubt in regard to the guilt of the defendant, upon the whole evidence, he was entitled to an acquittal.”</p> <p>The defendant having duly excepted at the trial to these refusals to instruct and' instructions, and a verdict of guilty having been returned against him in the court of common pleas, now brought his exceptions to this court for a new trial, upon the ground of misdirection in matter of law.</p> <p>1st. The indictment does not charge the commission of any offence mentioned in chapter 73 of the Revised Statutes. The first section of that chapter declares certain places, kept or maintained in certain ways, to be common nuisances. The offence provided for is the keeping or maintaining of a common nuisance, and this may be dbne in as many different ways as there are places described. There are as many different nuisano/ s mentioned as there are places. The keeping and maintaining of each particular place or nuisance is. a separate and distinct offence. A place kept for all the purposes and in all the ways set forth in the section is not a statute nuisance, whatever it may have been at common law.</p> <p>2d. The indictment does charge the commission- of an offence known to the common law, viz : the keeping and maintaining a common nuisance. It charges the keeping and maintaining of one place only. That place was a place where intoxicating liquors were illegally sold and kept, and where intemperate, idle, dissolute, noisy, and disorderly persons were in the habit of resorting. A grog-shop is “ a shop where grog and other spirituous liquors áre retailed.” Web. Die. “grog-shop.” A tippling-shop or house is “ a house in which liquors are sold in drams or small quantities, and where persons are accustomed to spend their time and money in excessive drinking. Web. Die. “ tippling-shop.” Then a grog-shop and fcippling-shop is a place “ where grog and other spirituous liquors are retailed,” and “ where persons are accustomed to spend their time and money in excessive drinking.” In this state, then, where it is illegal to retail liquors, the phrase “ a grog-shop and tippling-shop,” and the phrase “ 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,” are convertible terms, describing the same place, and expressing the same idea.</p> <p>•3d. The evidence, in order to support the charge in the indictment, therefore, should have shown that the place, alleged to have been kept, was a place where intoxicating liquors were illegally sold and kept, and where intemperate, idle, dissolute, noisy, and disorderly persons were in the habit of resorting. ThéT offence charged is that of keeping’ a common nuisance; but that charge, of itself, without describing the kind of nuisance, would be void for uncertainty. It was therefore necessary to describe the kind of nuisance alleged to have been kept. The description of the nuisance is therefore material, and the words used for that purpose constitute, the descriptive averments in setting forth the offence in the several counts of the indictment. “No allegation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can ever be rejected as surplusage.” United States v. Howard,, (Story, J.) 3 ,Sumn. 15, 16 ; “ which is tantamount to saying that it must be proved as laid.” State v. Fitzpatrick, 4 R. I. (1 Ames,) 274; State v. Gopp, 15 N. H. 216; State v. Noble, 15 Maine, (3 Shep.) 476 ; 2 Russ, on Cr. 788. Even if the phrases above mentioned are not convertible terms, still they stand as descriptive of the place charged to have been a common nuisance, and in each case something more than mere proof of an illegal sale or keeping of liquors is essential to support the charge.</p> <p>4th. The request made by defendant’s counsel, as set forth in the fourth exception was correct, and should have been granted by the court. Although not in so many words refused, it was in substance denied. The charge as actually given by the court was erroneous, as it is contrary to the first principle of criminal jurisprudence, viz: that every man is presumed innocent until he has been proven guilty. The latter clause in the charge does-not correct the error. To say the least of it, the charge on this point was so contradictory and confused, that the jury might well have been led into error; and this of itself would be suffici- ground for a new trial.</p> <p>1st. The indictment in this case charges the commission of an offence described in section 1, chapter 73, of the Revised Statutes. That section describes but one offence, viz : the keeping and maintaining of a common nuisance, but specifies different modes in which that offence may be committed. The offence is the keeping and maintaining a common nuisance; but it may be committed in either one of the modes mentioned in the statute. State v. Nelson, 29 Maine, 334.</p> <p>2d. It is sufficient to charge an offence in the precise words of the statute- creating it. State v. Ladd, 2 Swan’s Rep, 226; Hamilton v. Commonwealth, 3 Penn. 142; Updegraff v. Commonwealth, 6 Serg. and Rawle, 5; State v. Boughbee, 3 Blackford, 308; Whiting v. Stote, 14 Conn. 487; State v. Little, 1 Vermont 331; 6 lb. 594; United States v. Gooding, 12 Wheaton, 460. The indictment in this case follows the precise words of the statute, or their exact equivalents.</p> <p>3d. If the indictment charged the commission of a statute offence, the court did not err in refusing to charge the jury that it was also an offence at common law. It was immaterial whether it was or was not a common-law offence.</p> <p>4th. To sustain the indictment, it was not necessary to prove that the offence had been committed in all the modes enumerated in the statute. If proved to have been committed in either one'of those modes, it was sufficient. St'ate v. Nelson, 29 Maine, 334. The words, “ used for the illegal sale and keeping of intoxicating liquors and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons,” are not mere words of description, but they declare the modes in which the offence is charged to have been committed. The words, “ for the habitual resort of intemperate, &c.,” are equivalent to the words of the statute, “ where intemperate, &c., are in the habit of resorting.” The charge of the court was substantially according to .the request of the defendant’s counsel, as stated in his fourth exception.</p>

Indictment against the defendant for keeping at Providence, for gain, a certain disorderly house, called “ the Empire Saloon,” resorted to by persons of ill-fame and dishonest connection, for ceckfighting and misbehaving themselves, to the common nuisance of the good citizens of the state.

<p>Where, upon the trial of an indictment for keeping the nuisance of an alehouse, the defendant passed to the jury a book of charges for the purpose of confirming the testimony of a witness who kept the book, and who swore that at the time laid in the indictment he furnished ale by the cask, at the alehouse, not to the defendant, but to another .person; held, that it was no ground for a new trial, that the jury might have been influenced to convict the defendant by the suspicious appearance of the book, commented on by the attorney-general without opportunity on the part of the defendant, to answer or explain; or, that the jury might have been swayed by other charges in the book against the defendant, relating to a period prior to that laid in the indictment, to which the attention of the jury was not directed, and which it was not proved that they saw.</p>

Trespass and ejectment, to recover possession of a dwelling-house and three lots of land, situated on Bacon Street, Providence. Plea, the general issue.

<p>Motion in arrest of judgment. . The declaration, which was in assumpsit, contained two counts. The first count alleged, “ that whereas the plaintiff was, on the 22d day of April, a. d. 1854, possessed of a certain lot of land, situated in the westerly part of the city of Providence, and the defendant, with one George S. Rathbone was, on the same day, possessed of another lot of land adjoining thereto ; and whereas the ownership of a third lot of land adjoining the two above mentioned was in controversy at the same time between Josiah Westcott and Catharine A. Westcott, on the one hand, and Earl Carpenter, trustee under the will of Mary Carpenter, Job Carpenter, Henry G. Carpenter, Henry Tilden, and Catharine A. Tilden, heirs and next of kin of Mary Ann Carpenter, deceased, on the other hand; and whereas the city of Providence had agreed to give the sum of seventy-five thousand dollars, in gross, for a lot of land for the site of a city hall, which included and embraced all the lots above mentioned, with other land; and whereas, Earl Carpenter, and the others with him above mentioned, were willing and agreed, in the event that the title of said third lot above mentioned was finally declared to be with them, to receive in full satisfaction of all their interest and estate therein, of said seventy-five thousand dollars, the sum of thirty-three hundred and fifty dollars, leaving the balance to be distributed among the other owners of said land as might be agreed, whereas, the said Westcotts, in the event that the title in the same lot should be decided to be in them, demanded of said sum of seventy-five thousand dollars, the sum of forty-two hundred and fifty dollars, for said land; in consideration of all which, it was agreed by and between the said defendant and the plaintiff, that he, the said defendant, would pay to the plaintiff the sum of two hundred and fifty dollars, parcel of said sum of nine hundred dollars, difference between the two sums of $3,350 and $4,250 above stated, if he, the said plaintiff, would assume the risk of contributing the sum of $550 for the same purpose, in the event that the title to the said lot should be found to be in the said Westcotts, which the said plaintiff then and there agreed to do; in consideration of which undertaking on the part of the plaintiff, and the incurring by him of the liability and risk above mentioned, he, the said defendant, then and there, at said Providence, to wit: on the 23d day of March, a. d. 1855, promised the plaintiff to pay him the sum of two hundred and fifty dollars on demand. And the plaintiff avers that he has done and performed all things on his part in reference to said agreement to be done and performed, yet the said defendant, though often requested, has not paid said sum or any part thereof, but refuses to pay the same.”</p> <p>The second count alleged, “ that the defendant, at said Providence, to wit, on the 22d day of' March, a. d. 1855, in consideration that the plaintiff would incur the risk of contributing -towards the sum of $900, the sum of $550, in the event that the title to a certain lot of land situated in said city of Providence, was found to be in one Josiah Westcott and Catharine A. Westcott, instead of the other persons in the first count mentioned, whereby the plaintiff and the defendant and all others owning any portion of a certain lot of land embraced in the site for the proposed city hall would become liable to pay to the said Westcotts the sum of $900, in addition to the sum of $3,350, otherwise agreed to be received and taken for the same land by the claimants thereto, promised the plaintiff to pay him the sum of two hundred and fifty dollars; and although the plaintiff has done all things- by him to be done and performed', the said defendant has not paid said sum or any part thereof, but refuses to pay the same, although requested,” &c.</p> <p>At the trial of the case, under the general issue, at the September term of this court, at Providence, 1858, the plaintiff having recovered against the defendant a verdict for the sum of $272.50, the defendant moved in arrest of judgment for the following reasons: —</p> <p>1st. Because, in neither count of the plaintiff’s declaration is there any sufficient legal consideration set forth to support the alleged promise of the defendant.</p> <p>2d. Because, the verdict being for entire damages upon the whole declaration, there being in the first count thereof no sufficient legal consideration set forth to support the alleged promise of the defendant, the judgment ought to be arrested.</p> <p>3d. Because, the verdict being for entire damages upon the whole declaration, there being in the second count thereof no sufficient legal consideration set forth to support the alleged promise of the defendant, the judgment ought to be arrested.</p> <p>1. If either count of the declaration is insufficient, the verdict being for entire damages upon the whole declaration, the judgment must be arrested. Onslow v. Horne, 3 Wilson Rep. 185; Cowper’s Rep. 276; Clough v. Tenney, 5 Greenl. Rep. 446; Stevenson v. Hayden, 2 Mass. Rep. 406 ; Livingston v. Rogers, 1 Caine’s Rep. 347; Sylvester v. Downer, 18 Verm. Rep. 32; 1 Chit. Plead. 294, 295.</p> <p>2. The first count of the declaration shows no cause of action, as it shows no consideration to sustain the defendant’s promise. This count is evidently framed on the idea of mutual promises. But, first, for this alleged promise of the plaintiff to constitute a sufficient consideration to sustain the promise of the defendant, the plaintiff’s promise, as set forth, must be such as could be enforced against him. 1 Parsons on Contracts, 374 and note h, and cases cited; Governor, Sfc., of ■ Copper Miners v. Fox, 3 Eng. Law & Eq. Rep. 420; Lester v. Jewett, 12 Barb. 502. But this promise or undertaking of the plaintiff, as set forth in this count, could not be enforced against him by any one. Not by the defendant; for it appears, from the statement of the case as here put, that he was not the person beneficially interested in the $550, and there is no averment it was to be paid to him. It was merely to be contributed by the plaintiff in connection with others to make up a deficiency. Nor could the Westcotts or the city enforce this promise against the plaintiff. For they were entire strangers both to-the consideration and to the contract; the consideration to the plaintiff did not move from them, and no promise is averred to them. Story on Contracts, § 130, p. 83 ; Price v. Easton, 4 Barn. & Adol. 433; 24 Eng. C. Law, 96.</p> <p>Again, for mutual promises to be a sufficient consideration the one for the other, they must be concurrent. Story on Contracts, § 128, p. 81; 1 Chitty’s Plead. 297; Livingston v. Rogers, 1 Caine’s Eep. 583, per Kent, C. J.; Keep 8f Hale v. Goodrich, 12 Johns. 397. But in this first count the promises are not so laid. The plaintiff’s promise is laid of April 22,1854 ; the defendant’s, as of March 23,1855.</p> <p>3. At all events' the second count is clearly bad.</p> <p>First. For the reason specified above, that the alleged promise of the plaintiff could not have been enforced against the plaintiff by any one.</p> <p>Second. It is not averred here even, that the plaintiff ever did assume the risk which was to form the consideration of the defendant’s promise.</p> <p>Third. It is expressly averred, that in the contingency supposed, the plaintiff was already liable; and it does not appear that this, his present liability, was not equal to the whole $550 he was to assume, and .therefore, it does not appear that the plaintiff assumed any new liability; and if he did not, it could form no consideration for the defendant’s pi’omise.</p> <p>Fourth. The general averment that “ although the plaintiff hás done all things by him to be done and performed,” is not a substantial averment, and is by no means equivalent to an express averment, that he did assume the risk, and that risk was beyond his prior liability. But even if it was, yet it would still be bad as not showing how he assumed the risk. Phillips v. Fielding, 2 H. Black. 123. Nor is this defect aided by the verdict. A want of averment of consideration is not so aided; for the verdict only finds the fact of the defendant’s promise, aid “ that furnishes no legal intendment or inference that the promise was founded upon any consideration.” Gould’s Pleading^ chap. 10, § 22, p. 503; 1 Salkeld, 364.</p> <p>The two counts in the plaintiff’s declaration set forth the contract substantially as proved at the trial, and set forth a sufficient legal consideration. Chitty on Contracts, 28.</p> <p>After a verdict upon the merits, the court will not set it aside for mere technical defects in the declaration, when enough appears to show the foundation of the action, arid the verdict and recovery may be pleaded to another action for the same cause. Baldwin v. O’Brien, Coxe, 218 ; 1 Chit. PI. 673 ; Porter v. Kepler, 14 Ohio, 127.</p>

These were actions of assumpsit, brought by the plaintiffs, who were steam-engine builders, to recover of the defendant, who had been a. contractor for the building and furnishing of steam-cotton mills, a large sum of money, as due by promissory notes, for money advanced, and for work and labor done.

<p>These were actions of debt, brought by the plaintiffs, claiming as interested, jointly with others, in the reversion ofthe Howard Building estate in Westminster Street, Providence, against the defendant, as lessee of said estate, to recover of him under the covenants of his lease, certain assessments levied by the city of Providence, upon their interest in said estate, for the benefits by them received from the laying out and opening of Dorrance Street.</p> <p>The declarations, in' substance, set forth the lease of the premises to the defendant by Richard Waterman, of Coventry, under whom the plaintiffs claimed title, — the assessments made upon their reversionary interest in the premises for the laying out and opening of Dorrance Street, and their payment of the same.</p> <p>To the declarations, seven pleas were filed, in each of the actions, by the defendant; upon two of which pleas, — non est factum, and that the demised premises were not assessed as alleged in the declaration, — issue was joined to the Coventry, and to the other five of which the plaintiff demurred, generally.</p> <p>As the judgment of the court upon these demurrers turned exclusively upon the sufficiency of the declarations, or rather, upon the obligation of the defendant to pay the assessments sought to be recovered by virtue of the covenants of his lease, it will be unnecessary to state the pleas demurred to, or the points made upon them, or, in other respects, upon the declaration, by the counsel on either side.</p> <p>The lease, which was by indenture, bore date Jauuary 1, 1847, and was for a term of ninety-five years, with stipulations for the appraisal of thé rent at the end of the first fifteen years, and at the end of every five years thereafter, during its continuance. It contained a mutual covenant, which provided, “ that all taxes and assessments of every kind, that might at any time during the continuance of the lease be assessed upon said lot, or its appurtenances, should be paid by_ the lessee, his executors, administrators or assigns; ” and a further covenant by the lessee on his part, “ for himself, his heirs, executors amd administrators, to and with the lessor, his heirs and assigns, that the lessee would pay or cause to be paid all taxes and assessments that might, at any time dwring said term, be assessed upon said lot or its appurtenances.”</p> <p>1st. The covenant in the lease is comprehensive in its terms, and cannot be limited so as to charge the owners of the reversion with any tax_ or assessment which may be assessed on the estate demised during the lessee’s term. The questions which have arisen in England, upon the covenant to pay taxes contained in leases, have been the consequence of the want of such words in the covenant as would leave no doubt as to the intention of the parties. The complaint, in almost every instance, has been the obscurity of the language in which the covenant is expressed. Thus, in the case of Hop-wood v. Barefoot, 11 Mod. 238, a covenant to pay parliamentary taxes was held to extend only to those in esse at the time of making the lease; but, as was remarked by Powell, J., had the words been “ all taxes which may hereafter be assessed by parliament,” all taxes whatsoever would have been included. The form suggested in 2 Platt on Leases, 170, is this: “ All taxes, rates, assessments, and impositions whatsoever which now are, or at any time during the continuance of said term may be assessed or imposed,” &c. “ By the adoption of this or a similar comprehensive form,” says the author, “ most of the questions which have formerly arisen on the subject aré now avoided.” And see generally 2 Platt on Leases, ch. 10, § 3, and cases cited. The question as to the liability of the lessee in the cases at bar on the covenant is, of course, to be decided from the language of the covenant itself and from nothing else. That language is clear and explicit. It binds the lessee to pay “ all taxes and assessments; ” not those only which were assessed at the time the lease was made, but all which might “at any time during said term” be assessed upon said lot and its appurtenances. His liability is not limited to any particular class of taxes or assessments, but to all that might be assessed while he continued the lessee of the estate. A tenant bound himself by covenant in a lease to pay “ all burdens and taxes.” There was no tax upon the estate at the time of the execution of the lease, but parliament after-wards granted a fifteenth, and he was held liable for it under his covenant. Case in 33d year Hen. VIII., cited by Holt, C. J., in Hopwood v. Barefoot, 11 Mod. 240. Even in cases where there have been exceptions of certain taxes in the covenant, taxes of the same nature and apparently coming within the exception, have been held to be payable by the lessee. Thus a lessee covenanted to pay all rates, assessments, &c., both ordinary and extraordinary, which should, during the term, be rated, assessed, &c., upon the demised premises, excepting the land tax, which the landlord was by statute bound to pay, and in consequence of various new buildings erected by the lessee in pursuance of a covenant for that purpose, (it may be remarked that there is a similar covenant in the lease under consideration,) an additional land-tax was imposed; it was held that said additional land-tax should be paid by the lessee, Hyde v. Hill, 3 Term Rep. 377. Taking the covenant as it stands, the lessee is clearly liable for all taxes and assessments, of whatever kind, which may be imposed upon the demised estate during the continuance of the lease.</p> <p>2d. Under the covenant contained in this lease, the lessee is liable to pay the assessment for laying out Dorrance Street. The covenant binds him to pay all taxes and assessments which may, at any time during his term, be assessed upon the estate demised. This was assessed during the continuance of his term. He is, therefore, liable to pay this. A lease contained a covenant on the part of the lessee to pay all taxes and assessments which might be imposed on the premises or any part thereof by authority derived from the United States, the State of New York, or the corporation of the city of New York, and an improvement was made by the city of New York, in the opening of Lafayette Place, which took a part of the leasehold premises, and it was held, that the lessee was chargeable with the amount of the assessment upon the interest of the lessor in the premises. Astor v. Miller, 2 Paige, 69. This case is also cited in 2 Bac. Abr. tit. Covenant, E. 3. The case cited determines those at bar. Those at bar are, indeed, stronger. In the one cited, the lessee bound himself to pay all taxes and assessments imposed by the authority of the United States, the State of New York, and the City of New York. But the lessee, in these cases, binds himself to pay “ all taxes and assessments which may at any time* during his term be assessed upon the estate demised to him; of course, binding himself to pay all which may be assessed by any legal authority.His covenant runs with the land demised, binding him and his assigns so long as he or they hold the premises under the lease. He cannot — particularly as the value of the buildings he has erected has been vastly increased by the laying out of Dorrance Street — avoid his liability to pay the amount imposed upon the estate by the city in making that improvement.</p> <p>3d. The estate having been assessed in the name of the plaintiffs, and the amount having been paid by them after demand on the defendant and upon his refusal to pay, they are entitled to bring debt to recover the amount so paid with interest. 1 Saunders on PI. & Er. 898 ; Com. Dig. tit. Debt, A. 5 ; Withers v. Moore, 3 Barn. Cress. 254. Covenant and debt are concurrent remedies for the recovery of any money demands where there is an express or implied contract in an instrument under seal to pay it, but in general debt is the preferable remedy, &c. l.Chit. on PI. (5th ed.) 134.</p> <p>4th. The plaintiffs in this action being tenants in common of the estate assessed, and having paid their proportional part of the assessment, are entitled to recover the amount so paid without joining the other cotenants. Platt on Covenants, 129; Ecclesion v. Clipsham, 1 Saund. 153; James v. Emery, 8 Taunt. 245; Esp. N. P. 117; Bac. Abr. Joint Tenants, K.</p> <p>1st. The declaration is bad. It appears, affirmatively, upon the face of the declaration, that there are other parties who ought to have been joined as plaintiffs; that the plaintiffs are not the sole owners or devisees of the estate on which the assessment was made, and this is fatal on demurrer. 1 Chit. Plead. 13; 1 Saund. Rep. 154, note (1), 291 (6); Scott v. God-win, 1 Bos. & Pull. 67 ; Schott v. Burton, 13 Barb. 173, 183; Calvert v. Bradley, 16 How. U. S. Sup. Court, 580. The plaintiffs here and there, co-devisees claiming under the original lessor, are tenants in common of this land, and as such, by operation of law, are joint covenantees under the defendant’s lease, and must join in actions upon its covenants. 1 Chit. Plead. 11, 12, and note 1; Coke Litt. § 316; 4 Dane Abr. 55, § 7; Calvert v. Bradley, 16 How. Sup. Ct. U. S. 580; Bradburne v. Botfield, 14 Mees. & Welsh. 558; Scott v. Godwin, 1 Bos. & Pul. 67; Schott v. Burton, 13 Barb. 173; ■Merrill v. Berkshire, 11 Pick. 269; Gilmore v. Wilbur, 12 Pick. 120 ; Daniels v. Daniels, 7 Mass. 135.</p> <p>2d. The declaration shows no cause of action. It does not show that the provisions of the act under which this assessment is claimed to have been made were complied with, and so shows no legal assessment.</p> <p>3d. This assessment is not embraced within the covenant here declared upon, as it is for a permanent improvement, is extraordinary in its nature, and could not have been in the contemplation of the parties, as there was then no statute in force authorizing such an assessment.</p>

Assumpsit to recover two thousand dollars, for services done for the defendant, and goods sold and delivered to him; the writ being served by attachment of the defendant’s real estate.

Bill in equity to enforce against certain lands, in Warwick, being part of the homestead farm of John Clapp, late of said Warwick, deceased, a charge imposed thereon by his will, for the support and maintenance of the complainant so long as she should live, and remain unmarried.

<p>Debt for rent of a shop in High Street, Providence, wherein the plaintiff claimed $150, for the last three quarters of the year elapsing between March 1,1858 and March 1,1859, under a lease parol by him made to the defendants.</p> <p>The case was submitted to the court, under the general issue, in fact and law; and it appeared, that the late Henry Matthew-son, being the owner of the leased premises, in his lifetime, mortgaged them in fee to his son, Henry C. Matthewson, and, upon his death, they, with other real estate, came into the possession of the plaintiff, whose wife was one of said Matthew-son’s heirs at law; that being thus in possession, the plaintiff leased the shop in question to the defendants, by parol, from March 1, 1858 to March 1,1859, at the rent of $200 for the year, payable quarterly • that after the death of his father, the son’s mortgage having become due, on the 13th day of May, 1858, he sued the plaintiff in ejectment to recover possession of the estate of which the shop in question was a tenement, and gave notice to the defendants to pay their rent to him as mortgagee ; that the defendants, having offered, under the advice of counsel, to pay rent to the plaintiff if he would give them a bond of indemnity against the claim of the mortgagee, which he did not do, promised the mortgagee to pay the rent to him, and did pay to him the last three quarters rent, accruing from the first day of June, 1858, to the first day of March, 1859, under a bond of indemnity from the mortgagee against the claim of the plaintiff, to recover which rent, after such payment, this action was brought. The rent of the quarter, during which notice was given by the mortgagee to the defendants to pay the rent to him, was paid by them to the plaintiff.</p> <p>cited Evans v. Elliot, 9 Ad. & Ell. 392; Field v. Swan, 10 Met. 112.</p> <p>cited Morse v. Gallimore, et al., Doug. 279 ; Keechv. Hall, lb. 21; Birch v. Wright, 1 T. R. 378 ; Pope v. Briggs, 9 B. & C. 245; ‘ Babcock v. Kennedy, 1 Yt. 457 ; Stone v. Patterson, 19 Pick. 476; Jones v. Clark, 20 Johns. 51.</p>

Assumpsit against the defendants, as the heirs at law of the late Israel G. Manchester, of Providence, to recover out of the real assets inherited by them from him, the amount of a promissory note, given by said Israel, in his lifetime, to Welcome Fenner, the testator of the plaintiffs. The note declared on was for. three hundred and fifty dollars, payable on demand, with interest, and was dated the sixth day of November, 1847.

<p>Trespass is the proper form of action to be brought against the trustees of a school district, by one, against whom they have illegally assessed and ordered to be collected, a school tax.</p> <p>Upon the trial of such an action, the decision of the school commissioner and a justice of the supreme court, upon appeal, under ch. 68, sects. 1 and 2, that a tax has been illegally assessed, is conclusive, both in law and fact, upon the parties to the appeal, as to that question; and this construction of the statute does not bring it into conflict with sect. 16, art. 1, of the constitution, which declares, that “ the right of trial by jury shall remain inviolate.”</p>

The appeal was submitted to .the court upon the following agreed statement of facts : “ It is admitted that the last legal place of settlement of the paupers, in this state, was in Exeter; that Lyman Rathbun, the first husband of the pauper, Sally Bray, purchased a tract of land in Sterling, Connecticut, on the 26th day of March, 1838, of the value of about $1088, and held the same unencumbered for four years, the deed being recorded; that he lived thereon for three years;…

. Assumpsit, by husband and wife, against an executrix, to recover a legacy of f500, claimed to be due to the wife under the will of the defendant’s testator.

<p>These were actions at law and bills in equity brought by certain creditors of the Newport Steam Factory, an insolvent manufacturing corporation, for the purpose of enforcing then-debts against the surviving, and the- estates of the deceased, corporators, under the personal liability clause of the charter of the Corporation, and were submitted to the court together, upon 'written arguments.</p> <p>It appeared, that the Newport Steam Factory was incorporated by the General Assembly, for the purpose of manufacturing by steam power, at the June session, 1831; its capital, divided into sixteen shares, not to exceed two hundred thousand dollars ; the shares liable to be sold for the non-payment of any assessment, but the stockholders not to be personally liable to the corporation for any assessment in their stock beyond the sum of three thousand dollars on each share.</p> <p>The eighth and ninth sections of the charter, as it was originally granted, were as follows :</p> <p>“ Sect. 8. And be it further enacted, that in all proceedings, whether in law or equity, in which said corporation shall be a party, the leaving an attested copy of the writ or summons, or other process, with the clerk or agent of the company at their usual place of business, shall be deemed a sufficient service thereof; and all executions that shall be issued against said corporation may be levied on the property of said corporation, and for want of sufficient property of said corporation, the stockholders, who were such at the time the debt was created or the contract entered into, shall be liable in their estates and persons for the payment thereof in the same manner as if said debt had been incurred or contract entered into by such stockholder personally; and any person having causes of action against said corporation, may, at his election, commence his action in the first instance against the stockholders in said corporation, who were such at the time the debt was contracted, contract entered into, or liability incurred, in the same manner as if they were co-partners, not incorporated; and that each and every of the stockholders in said corporation shall be liable as co-partners therein in the same manner and to the same extent as if they were corporators in any unincorporated manufacturing or commercial company.</p> <p>“ Sect. 9. And be it further enacted, that if the individual property of any stockholder or stockholders shall be sold for the' payment of the debt of the corporation, or, if any individual stockholder or stockholders shall be compelled to pay such debt, or any greater proportion thereof than such stockholder or stockholders’ proportion of said debt, according to the stock held by him or them in the capital stock of said corporation, then such stockholder or stockholders shall be entitled to an action, in his, her, or their name or names, against said corporation for the recovery of the amount so paid; or, such stockholder or stockholders shall have his, her, or their action on the case against • the other stockholders for the amount so paid over and above his, her, or their proportion of such debt.”</p> <p>At the January session of the General Assembly, 1840, the then stockholders of the company presented their petition to the assembly, in which, after reciting that by the eighth section of the act incorporating them, it was provided, that suits for debts due from the corporation may be, in the first instance, commenced against the individual stockholders as though they had not been incorporated, and that said act differed, in this respect, from other charters granted by the assembly, both before and since, to other companies of manufacturers, they pray, that inasmuch as said eighth section may cause great inconvenience to the individual stockholders of the corporation, and afford no greater security to the public for the payment of the debts due from the corporation, said eighth section may be repealed, and the charter amended by inserting in place of the same the amendment by them presented.</p> <p>The amendment presented, and which was passed by the General Assembly, was as follows : —■</p> <p>“ An act in amendment of an act entitled an act to incorporate the Newport Steam Factory.</p> <p>“ Be it enacted by the General Assembly as follows : —</p> <p>“ Sect. 1. The eighth section of said act be, and the same is hereby, repealed.</p> <p>“ Sect. 2. In all proceedings, whether in law or equity, in which said corporation shall be a party, the leaving an attested copy of the writ or summons' with the clerk or treasurer at his usual''place of business, shall be deemed a sufficient service thereof; and all executions that shall issue against said corporation shall be levied on the’property of said corporation; and for want of such property, the stockholders who were such at the time the contract was made, or liability incurred, shall be liable in their own persons and estates, as if the contract had been made, or liability incurred by them personally. Stockholders shall be holden as such for all debts and liabilities incurred up to the time of the sale or disposal of their stock, and public notice thereof given in a newspaper printed in Newport.”</p> <p>On the 15th day of February, 1858, the Newport Steam Factory, being insolvent, and largely indebted to the New England Commercial Bank of Newport, and to Josiah S. Munroe, made an assignment to Seth W. Macy of all their real estate, for the equal benefit of all their creditors, which trust was accepted by Macy, and so far executed that he has realized about $16,000 gross proceeds from the sale of the assigned property, and has on hand some portion of it unsold. At the February term of the supreme court for the county of Newport, 1858, the New England Commercial Bank recovered two judgments against the Newport Steam Factory, one, for the sum of nineteen thousand four hundred and ninety-nine dollars, debt and costs, being for the amount of four promissory notes made by the company to the bank on the 3d day of February, 1852, upon which interest had been paid up to July 1,1857; and the other, for the sum of seventeen thousand, eight hundred and seventy-seven dollars, debt and costs, being for drafts discounted by the bank for the company, between the latter parts of the months of March and August, 1857. Executions issued upon the judgments and were delivered to the sheriff of Newport county, who, on the 30th day of July, 1858, returned them wholly unsatisfied,- being able to find neither goods nor chattels, nor real estate of the company upon which to levy the same.</p> <p>Another creditor of the company, Josiah S. Munroe, also recovered two judgments against the company: one, at the April term of the court of common pleas for the county of Newport, 1858, for the sum of $3,596.65 debt, and $6.66 costs, and the other, at the August term of the supreme court, for the county of Newport, for the sum of $7,050.93 debts, and $11.35 costs. Upon both these judgments executions issued, were delivered to the sheriff of the county of Newport, and were returned by him unsatisfied, for want of any estate of the company to be found by him within his precinct.</p> <p>The actions at law and suits in equity, which were now submitted to the court, were severally brought, in the county of "Newport, by the New England Commercial Bank, and by Josiah S. Munroe, to enforce their respective judgments against such living stockholders of the Newport Steam Factory, and the estates of such deceased stockholders, as they deemed liable under the charter of the company to pay the same.</p> <p>The actions at law, and the positions in which they stood before the court upon the pleadings, were as follows : —</p> <p>First. An action of the case by the New England Commercial Bank against Seth W. Macy, administrator of Joseph Weaver, late of Newport, deceased, the declaration in which, in substance, counted upon the above facts, so far as applicable to the New England Commercial Bank, and alleged, that the defendant’s intestate, Weaver, was a corporator of, and shareholder in, the Newport Steam Factory when that company’s liability for a certain portion of the' plaintiff’s claim, not specified, was incurred, and thereby became liable for, and in consideration thereof promised to pay the same ; that Weaver’s estate had been represented insolvent, and commissioners had been appointed to receive and examine the claims against the same; that the claim of the plaintiffs had been presented to and rejected by said commissioners, whereby, and by force of the statute in such case made and provided, the plaintiffs were compelled to pursue their remedy at the common law, and to commence this suit against Weaver’s administrator. To this declaration the defendant had pleaded the general issue.</p> <p>Second. A similar action by the same plaintiffs against Samuel Allen, executor of Samuel Allen, late of Newport, deceased, with similar averments in "the declaration; the declaration, however, specifying the claim sought to be enforced, as the four notes executed by the Newport Steam Factory on the 3d day of February, 1852, and for which the plaintiffs had recovered judgment against the company, for the sum of $19,492.81 debt, and costs of suit taxed at $6.20. To this action, also, the defendant had pleaded the general issue.</p> <p>Third. A similar action by Josiah S. Munroe against Seth W. Macy, administrator of Joseph Weaver with similar averments in the declaration, to which no plea was filed.</p> <p>Fowrth. A similar action by the same plaintiff against Daniel Tisdale, James F. Simmons, George Bowen, Stephen B. Chase, John Stevens, Benjamin H. Stevens, William C. Gibbs, Edward W. Lawton, and Benjamin Finch, all being served in the action but Daniel Tisdale, who could not be found by the sheriff, the declaration alleging them all to have been stockholders of the Newport Steam- Factory at the time when the liability was incurred by the company, for which the plaintiff had recovered against it his larger judgment for $7,050.93' debts, and $11.35 costs, with similar averments, as to the return of the execution by the sheriff unsatisfied, for want of property of the corporation upon which to levy it, the charter liability, and the promise of the defendants in consideration of it to pay the plaintiff’s debt. This action was originally brought in the court of common pleas for the county of Newport; and the defendants having submitted to judgment in that court, brought the case, by appeal, to this. The defendants pleaded,—</p> <p>First, in abatement, that Joseph Weaver, when in life, was a stockholder in the Newport Steam Factory, and so remained at the time of his decease, in 1857; that in 1857, Seth W. Macy was appointed and qualified to administer on his estate ; “ whereby, and by virtue of the premises, the defendants aver, that the said several contracts referred to in the plaintiff’s declaration as having , been made with the Newport Steam Factory and the liability there set forth, was incurred jointly with the said Seth W. Macy, administrator, as he, by virtue of his office, was a stockholder of the said corporation at the time the debt was contracted, and the liability incurred upon which the plaintiff obtained his judgment; wherefore, because said Macy, administrator of said Weaver, is not named in said writ and declaration together with the said defendants, they pray judgment of said writ and declaration, and that the same may abate, &c.”</p> <p>To this there was a general demurrer filed by the plaintiff, in which the defendants joined.</p> <p>The second plea to this action, was, in abatement, that at the time of the commencement of the action the Newport Steam Factory had and held a large amount of property which was not exhausted, and which might have been levied upon by the sheriff, or taken and applied to the satisfaction of the execution referred to in the plaintiff’s declaration, and which, by force of the act incorporating the Newport Steam Factory, should have been levied upon, taken, or applied to the satisfaction of the plaintiff’s judgment before the commencement of this action against the defendants.</p> <p>First, by traversing the allegation in the plea, that the Newport Steam Factory had, at the commencement of the action, a large amount of property upon which his execution might have been levied, and concluding to the country.</p> <p>Second, by alleging his recovery of judgment against the company, the issuing of his execution, its delivery to the sheriff of the county of Newport, his inability, after diligent search and due inquiry, to find any property of the company on which to levy it, his demand upon the .president and agent and tfeasurer of the company to show and set forth such property and their refusal to do so, and the return by the .sheriff, for these reasons stated in his return, of the execution wholly unsatisfied. This replication concluded to the country. *</p> <p>Third. The plaintiff further demurred, generally, to this second plea, calling it, by mistake, the third plea.</p> <p>The third plea to this action was the general issue, in which the defendants joined.</p> <p>The fifth action submitted, was a similar action by the same plaintiff against the same defendants, with similar averments in the declaration, for the purpose of enforcing against them his claims against the Newport Steam Factory embraced in his lesser judgment against the company, for the sum of $3,596.65, debt, and costs of suit taxed at $6.60.</p> <p>In this action the pleadings were the same as in the next preceding, except that no demurrer was filed to the second plea in abatement.</p> <p>As in the sixth and seventh actions at law, which appear to have been brought by the New England Commercial Bank against George Bowen and others, as stockholders of the Newport Steam Factory, the declarations were missing, it is unnecessary to detail the pleadings.</p> <p>There were two bills in equity; both filed by the New England Commercial Bank, to enforce their claims against the company upon the stockholders, and the estates of stockholders, of the corporation. The first, which was filed by the bank on its own behalf, and on that of all other unsatisfied creditors of the Newport Steam Factory, who being thereunto lawfully enabled should come in and contribute to the expenses of the suit, was filed against Mary L. Buggies, in her own proper person, and as administratrix of the estates of Nathaniel S. Buggies, and of John P. Buggies, late of Newport, deceased; Seth W. Macy, administrator of the estate of Joseph Weaver, late of Newport, deceased; Pernissa Gyles, executrix of the last will and testament of Charles Gyles, late of Newport, deceased; Samuel Allen, executor of the last will and testament of Samuel Allen, late of Middletown, deceased; John Stevens, Benjamin H. Stevens, George Bowen, Stephen B. Chase, William C. Gibbs, and Edward W. Lawton, all of Newport, Daniel Tisdale of Keokuk in the state of Iowa, James F. Simmons, of Johnston, in the state of Bhode Island, and the Newport Steam Factory; and alleged, that the Newport Steam Factory was, in the lifetime of said Joseph Weaver, Samuel Allen, and John P. Buggies, deceased, and at the time of their decease, and whilst the said Mary L. Buggies, as administratrix of the said Nathaniel S. Buggies, was possessed of, or entitled to, his certain shares in the capital stock of said company, largely indebted to the complainants; that said indebtment arose out of certain loans and discounts made by the complainants to and for the Newport Steam Factory, and for which the complainants held four promissory notes of the company, all dated on the 3d day of February, 1852, and payable sixty days after date; one, for the sum of $6,800 ; one, for the sum of $7,000; one, for the sum of $4,000, and one, for the sum of $800, in all amounting to the sum of $18,600, upon which interest had been paid up to the 1st day of July, 1857; that said moneys were loaned and discounted by the complainants to said company in reliance upon the liability of the said defendants now living, and of the said Weaver, John P. Ruggles, and Allen, now dead, for the payment thereof; and that the living defendants and said Weaver, Ruggles, and Allen, were stockholders of said corporation at the times the debts aforesaid were contracted; that the said Newport Steam Factory was also, in the lifetime of said Weaver, Ruggles, and Allen, and whilst said Mary L. Ruggles, as administratrix, was possessed of and entitled to his said shares, and still is, indebted to several other persons. The bill then goes on to state the obtaining by the plaintiffs of judgment against the Newport Steam Factory for the sum of $19,493.81-debt, and $6.20 costs of suit; the issue of execution thereon, and the return of the execution by the sheriff wholly unsatisfied for want of property to be by him found, whereon to levy the same; that, at the time of contracting of the debt for which said judgment was obtained, the said Mary L. Ruggles, as administratrix of said Nathaniel S. Ruggles, and the said John P. Ruggles, and the said Pernissa Gyles, Samuel Allen, deceased, Joseph Weaver, deceased, and the living defendants named, were the stockholders of said corporation ; that said Nathaniel S. Ruggles was, in his lifetime, possessed of one share of the stock of said corporation and of considerable other property, real and personal; that he departed this life in February, 1847, leaving the said Mary L. his widow, and John P. Ruggles his only child and heir at law ; and that, on the 5th day of April, 1847, the said Mary L. was appointed administratrix on his estate, and thereupon possessed herself of the personal estate and effects of her intestate to a considerable amount; that by force of the act incorporating the Newport Steam Factory, a copy of which is annexed to the bill, it is amongst other things provided, that the shares of the capital- stock of said corporation shall be deemed to be the personal estate of the respective stockholders, and that by force of said act the said Mary L. Ruggles, as administratrix of said Nathaniel S., became and was possessed of and entitled to his said share, to be administered with his other personal estate, and as such administratrix continued to be possessed of and entitled to said share, as well as in her own right, until the 11th day of December, 1852; that said Mary L. soon after the death of said Nathaniel S. entered upon and took possession of one third part of his real estate as tenant in dower, and hath continued in possession thereof ever since that time until the 11th day, of December, 1852, receiving the rents and profits thereof, and paid sundry assessments thereon, and otherwise acted as a stockholder in said company, and contracted with said company to indemnify her against her liability for the debts of the same; that said John P. Ruggles, upon and soon after the death of said Nathaniel S. entered upon and took possession of the residue of his real estate, and afterwards, and at sundry times and by divers assurances, the same being deeds of gift, conveyed to said Mary L. divers parcels of said residue of said real estate, and said Mary L. hath been ever since in the possession of the same, receiving the rents and profits thereof; that said John P. Ruggles continued in the possession of the whole or greater part of the said lands which came to him as heir of his said father, and in the receipt of the rents and profits thereof, and was during his lifetime and at his death seized and possessed of considerable other property, real and personal; that said John P, died in March, 1852, intestate and unmarried, leaving his mother, the said Mary L. his heir at law, surviving, and that said Mary L. was, on the 14th day of June, 1852, appointed administratrix on his estate, and hath possessed herself of his personal estate to a considerable amount; that said Mary L. soon after the death of said John P. as his heir at law, entered upon and took possession of all his real estate, and hath ever since continued, and how is in possession of the same, receiving the rents and profits thereof; that said Joseph Weaver was in his lifetime, and at the time of his death, seized and possessed of considerable real and personal estate; that he departed this life on the first day of April, 1856, and that Seth W. Macy was, on the second day of June, 1856, appointed administrator on his estate, and hath possessed himself of his personal estate to a considerable amount, and hath entered upon his real estate and possessed himself thereof, and ever since hath been and now is in possession of the same, taking the rents and profits thereof; that said Charles Gyles was in his lifetime and at the time of his death seized and possessed of considerable real and personal estate, and by his last will and testament devised the same to his wife Pernissa Gyles, and appointed her his sole executrix; that said Charles died on the 10th day of May, 1849, leaving the said Pernissa him surviving, who proved his said will, and took upon hergelf the execution thereof, and possessed herself of all or most"of the personal estate of her said testator, and as devisee and legatee of said Charles, has entered upon and enjoyed the rents and profits of the real estate and other property of the said Charles, and continued to hold and enjoy the stock or shares of the said Newport Steam Factory, until the 15th day of December, 1852, when she sold the same to the said corporation and required an indemnity from the said company to protect her from her liability for the debts of said company; that said Samuel Allen was, in his lifetime and at his decease, seized and possessed of considerable real and personal property, and by his last will and testament, bearing date the 5th day of September, 1853, appointed the defendant, Samuel Allen, the sole executor of his will; that he departed this fife the 6th day of September, 1855, leaving, the said Samuel Allen, defendant, him surviving, who duly proved said will, and tools; upon himself the execution thereof, and by virtue of the same possessed himself of all or most of the personal estate of his said testator, and of his real estate so far as requisite for the payment of the debts of said Samuel; that said Allen, in his lifetime, to wit, on the 11th day of January, 1853, sold his stock in said company to Benjamin Finch, and received from said Finch, a bond, with surety, in the sum of $40,000, to indemnify his estate against the debts of said corporation, and paid said Finch for said indemnity the sum of $2,500, in addition to transferring to him his said stock; that on the 15th day of February, 1858, the Newport Steam Factory assigned to Seth W. Macy, their factory estate, and wharf, together with all their machinery, tools, See. in trust for the benefit of their creditors; that the whole of the judgment debt of the plaintiffs remains due, and that the said Newport Steam Factory hath not any property whatever, upon which execution can be levied for the satisfaction of the same or any part thereof, and that there are no means for paying the same in the hands of said trustee or otherwise. The bill then proceeds to set forth the amendment to the charter procured by the stockholders at the January session of the General Assembly, 1840, and to state, that the plaintiffs have frequently requested Mary L. Ruggles, as administratrix of Nathaniel S. and John P. Ruggles, and in her own behalf, the said Seth W. Macy, administrator of said Joseph Weaver, and the said Thomas J. Weaver, and the said Martha Potter and her husband, and the said Pernissa Gyles, executrix and sole devisee of the said Charles Gyles, and the said Samuel Allen, executor of said Samuel Allen, to account with them, and the other unsatisfied creditors of said corporation, for the personal estate of their respective decedents, and to apply the same to the payment of their respective demands, which they have refused to do, as well as their decedents in their lifetime, to whom similar application was made; that said personal estate of said Nathaniel S. and John P. Ruggles, of said Weaver, Gyles, and Allen was more than sufficient to pay all their respective, funeral and testamentary expenses, and the expenses of supporting their respective families and of settling their respective estates, of paying their respective separate debts, as well as the said debt of the plaintiffs', and the other unsatisfied debts of said corporation, and that it would so appear, if said Mary L., Seth W., Pernissa and Samuel would respectively set forth an account thereof, which they have respectively refused to do; and the plaintiffs insist, that in case such personal estate shall not prove, upon such an account, to be sufficient to answer said debts, that the deficiency ought to be made good out of the real estate of the said Nathaniel S. Ruggles, John P. Ruggles, Joseph Weaver, Charles Gyles, and Samuel Allen, respectively; and that the same, or a sufficient part thereof, ought to be sold or mortgaged for that purpose, but that the said Mary L. Ruggles, Pernissa Gyles, Seth W. Macy, the said Thomas J. Weaver, and the said Martha Potter, and the said Samuel Allen refuse to account for the rents and profits of the real estate by them received, or to apply the same towards the payment of said debts. The bill then prays that an account may be taken of the respective personal estates of said Nathaniel S. Ruggles, John P. Ruggles, Joseph Weaver, Charles Gyles, and Samuel Allen, and of what part of the same has been disposed of in the payment of funeral expenses, &d. of the separate debts of the said deceased, and what separate debts of the deceased remain unpaid; and that the balance of the respective personal estates of,said decedents, after payment of said expenses and separate debts, may be ratably applied to the payment of the debt of the plaintiffs and of the debts of the other unsatisfied creditors of said corporation; and in case of such balance proving insufficient for that purpose, that an account may be taken of the rents and profits of the real estates of said Nathaniel S. Ruggles, Joseph Weaver, Charles Gyles, and Samuel Allen respectively received by them the said —--, and that what may appear to have been received by them or either of them, or a sufficient part thereof, may be applied in or towards making good the said deficiency; and in case the said several funds should prove insufficient for the payment of said debts, that a sufficient sum of money may be raised by sale or mortgage of such real estates respectively; and that all proper parties may be decreed to join in -such sale or mortgage, and that the money to arise from such sale or mortgage may be paid to the plaintiffs and to the other unsatisfied creditors of the said corporation, and for general relief.</p> <p>To this bill, the defendants, Macy, Gyles, Allen, John Stevens, Bowen, Lawton, Gibbs, and Simmons put in their several answers, the other defendants having filed no answers.</p> <p>The answer of Macy alleged, that on the 19th day of August, 1847, his intestate, Joseph Weaver, became the owner, by purchase from one George Hall, of One share in the capital stock, of the Newport Steam Factory; that at that time, the stockholders of the company consisted of John Stevens, William C. Gibbs, and George Bowen, each of whom owned two shares, and John and Benjamin Stevens, Samuel Allen, Charles Gyles, the representatives of Nathaniel S.. Ruggles, George Bowen and Stephen B. Chase, Edward W. Lawton, Daniel Tisdale, and James F. Simmons, who owned one share each, except the said Stevenses, who held, as well as the said Bowen and Chase, a share between them, making in all fifteen shares, which comprised the whole capital stock of said company; that upon the death of his intestate and his appointment as administrator, he represented the estate of his intestate to be insolvent, whereupon commissioners were appointed to receive and examine the claims against the estate; that said commission was, and for some time before the 8th day of September, 1858, when this bill was filed, had been open for the reception of claims against the estate of his intestate; but that the plaintiffs had presented no claim to said commissioners, and the respondent contended that he was not bound to answer the bill. He, nevertheless, proceeded to set up in defence, that $1,500, part of the plaintiffs’ claim, grew out of a loan' made by the plaintiffs to the Newport Steam Factory, on the 31st day of March, 1847, and $4,000, another part of it, out of a loan made by the plaintiffs to the corporation, on the 24th day of June, 1847, before his intestate became a stockholder in said company, for which said portions of the debt of the plaintiffs, his intestate was not liable; that at the times when these portions of said debt accrued, George Hall, Edward King, and J. T. & P. H. Rhodes were respectively stockholders of said corporation, and that said Hall, King, and James T. Rhodes, the surviving partner of J. T. & P. H. Rhodes, are still in full life; that Hall then owned two shares of said stock, King one share, and J. T. & P. H. Rhodes, one share, and should have been made parties defendant to the bill; that of the residue of the debt of the plaintiffs, $7,000, accrued on the 9th day of October, 1847, and $6,800, on the 20th day of January, 1848, when said amounts were loaned by the plaintiffs to the company, when his intestate was the owner of one share in the stock of the company, but that he was ignorant, whether his intestate’s estate in his hands was liable for said sums or any portion of the same, and submitted the same to the_ court; that after the payment of the debts of his intestate and the expenses of settling his estate, the balance would be quite insufficient to pay the plaintiffs’ debt. He denied that he had ever entered upon or possessed himself of the real estate of his intestate, but admitted that the Newport Steam Factory had executed to him an assignment in trust of their property for the benefit "of their creditors ; that he had already realized some $16,000, gross proceeds of the assigned property sold by him, and that he still held a part of the real estate assigned of which he expected to make sale at the first favorable opportunity.</p> <p>The answer of Pernissa Gyles admitted that her testator, Charles Gyles, was, during his lifetime, and at his death on the 10th day of May, 1849, the holder of one share in the capital stock of the Newport Steam Factory ; that he made and published his last will and testament in the manner and form and to the effect set forth in said bill of complaint; that said will was admitted to probate, that she procured letters testamentary as executrix thereof, and that by the provisions of said will she was made sole devisee of all the estate, real and personal, of said Charles Gyles, after payment of his just debts and funeral and other expenses ; that upon obtaining her letters testamentary, she, on the 21st day of July, 1849, caused public notice of her appointment and qualification as executrix of said Charles Gyles to be published in the Newport Mercury,” a newspaper printed and published in Newport, in conformity with the statute in such case made ’ and provided ; and thereafter went into possession of the estate, real and personal, of said Charles Gyles, taking the rents and. profits thereof, and therefrom proceeded to pay the debts and funeral expenses of said Charles, and other expenses incidental to the settlement of his estate; that afterwards, on the 21st day of April, 1851, the final account of this defendant, as executrix of the last will and testament of said Charles, was duly presented to, examined, settled, and ordered to be recorded by the court of probate of Newport; that by the provisions of said will she became entitled to, and possessed herself of, all the remaining estate and effects, both real and personal, of which the said Charles Gyles died seized and possessed, subject only to such'unsatisfied debts and demands due from said Charles as might be produced and demanded from her as executrix within three years from the date of said publication of notice of her appointment as aforesaid ; and that more than three years had elapsed subsequent to the publication of said notice before the filing of this bill on the 8th day of September, 1858, and that by force of the statute, and in equity and good conscience, said bill of complaint ought not further to be maintained against her either in her capacity of executrix, devisee, or in her own right.</p> <p>The answer of Samuel Allen, after admitting the will of his testator, his death on the 6th day of September, 1855, the probate of the will on the 15th day of October, 1855, the issue of letters testamentary to him as executor of said will and public notice thereof given by him, also admits, that his testator, Samuel. Allen, was formerly a stockholder of the Newport Steam Factory, being the holder of one share in the capital stock thereof, but avers, that on the 10th day of January, 1853, his testator sold and conveyed said share to Benjamin Finch, which sale was recognized by said corporation by the transfer of the same according to the forms of the charter; that due notice of said sale and transfer was by his testator published for three weeks in the “ Newport Mercury,” and that he was no longer responsible for the debts of said company, and that no action was commenced by any creditor of said corporation against this defendant or his testator until the filing of this bill. The answer then avers that $1,500 of the claim of the plaintiffs against the corporation was incurred on the 31st day of March, 1847, and $4,000, also part of said claim, was incurred on the 24th day of June, 1847; that at those times, George Hall, Edward King, and J. T. & J. P. Rhodes, were stockholders of said corporation, and as such liable for its debts, and should have been joined as defendants to the bill; and that if his testator’s estate is liable for any portion of the debts of said corporation it is liable only to the amount of the par value of the share held by him at the time when said debts were contracted, to wit: to the amount of $3,000.</p> <p>The answer of Edward W. Lawton admits that he is, and has for a long time been, a stockholder in the Newport Steam Factory, as alleged in the bill, but avers that $800, part of the plaintiffs’ demand, was incurred on the 31st day of March, 1847, and $4,000, another part of the same, was incurred on the 24th day of June, 1847, when George Hall, J. T. & J. P. Rhodes, and Edward King, were stockholders of the corporation, and when Charles Gyles, Joseph Weaver, and James F. Simmons, were not stockholders, and claims that, so far as this portion of the plaintiffs’ claim is concerned, the bill is defective in not joining Hall, James T. Rhodes, as surviving partner of the firm of J. T. & J. P. Rhodes, and King as defendants, and also defective for misjoining the representatives of Gyles and Weaver, and James F. Simmons as defendants; that as to $7,000, part of the balance of the plaintiffs’ claim, the same was incurred on the 9th day of October, 1847, and that the remaining part of said claim, exclusive of interest, was incurred on tb.e 28th day of January, 1848, when Samuel Allen, J. & B. H. Stevens, Charles Gyles, George Bowen & Co., a firm consisting of George Bowen and Stephen B. Chase, Nathaniel S. Ruggles, John Stevens, George Bowen, William C. Gibbs, Edward W. Lawton, James F. Simmons, Joseph Weaver, and Daniel Tisdale, were sole stockholders of said corporation; and that the bill is defective in misjoining causes of action as well as parties ; that if the defendant is. at all liable for the debts of the corporation he is not liable - for a greater sum .than the par value of the share of stock held by him in the capital stock of said corporation, to wit: for the sum of $3,000; and at all events is not liable as a joint contractor for all said debts, but only for such proportion of them as his proportion of the capital stock, to wit: one share out of fifteen shares, bears to the whole capital stock of the corporation ; 'that the Newport Steam Factory is indebted, in a large sum of money, to the defendant for advances, and that the amount of his said advances should be deducted from the proportion of the liabilities which he should be decreed to pay.</p> <p>The joint and several answer of John Stevens and George Bowen, admits that they were, and for a long time have been, stockholders in the Newport Steam Factory as alleged in the bill, and that said corporation is indebted to the plaintiffs as is in said bill alleged. In other respects, this answer sets up the sainé defences, of nonjoinder of-parties and misjoinder both of parties and causes of action, as the answer next preceding; and claiming the same restrictions of liability, also sets up large advances made by the respondents to the corporation, and insists, that the amount thereof should be deducted from such proportion of the debts as they should be decreed to pay.</p> <p>The answer of William, C. Gibbs, admits that he was a stockholder in the Newport Steam Factory, and the indebtment of the corporation to the plaintiffs as alleged in the bill, and sets up the same nonjoinder of parties, and misjoinder of parties and causes of action, as the answer of Edward W. Law-ton; and claims the same limitation of liability for the debts of the corporation, but makes no claim for deduction for advances.</p> <p>The answer of James F. Simmons admits, upon information and belief, the stockholdership of Nathaniel S. Ruggles, Joseph Weaver, Charles Gyles, and Samuel Allen, in the Newport Steam Factory, as stated in the bill; their deaths, and the other facts stated in the bill as to the disposition of their estates and possession of the same by Mary L. Ruggles, Seth W. Macy, Pernissa Gyles, and Samuel Allen, their respective personal representatives. Professing the respondent’s ignorance of the amount of the debt due from the Newport Steam Factory to the plaintiffs, it avers, upon information and belief, the same nonjoinder of Hall, James T. Rhodes, and Edward King, as parties defendant, as to $4,800, part of the plaintiffs’ claim, as the answer of Edward W. Lawton, and the misjoinder of the respondent and of the representative of Weaver; that when the remainder of the debt of the plaintiffs was contracted, the said Samuel Allen, now deceased, until on or about the 10th day of January, 1858, and from and after that time Benjamin Finch, in his stead, by purchase thereof, owned one share; that the said Charles Gyles, until his decease, on or about the 10th day of April, 1849, and after his decease, the said Pernissa Gyles, as his personal representative or executrix and sole devisee, owned one share of the stock of said corporation with Joseph Weaver, until his decease on or about the 1st day of April, 1856, when he was succeeded in his interest in said share by Seth W. Macy, his personal representative, but in what proportions the respondent' is wholly ignorant; that with these, said John and B. H. Stevens, said firm of George Bowen & Co. the said Mary L. Ruggles, either as administratrix of said Nathaniel S. or in her own right, said John Stevens, George. Bowen, William C. Gibbs, Edward W. Lawton, Joseph Weaver, since deceased, and this defendant, were the sole stockholders of said corporation; that, though after the decease of said Nathaniel S. Euggles and Charles Gyles, their personal representatives, the said Mary L. and Pernissa, attempted to make sale of their respective shares of stock to said corporation, the attempted sale was invalid, illegal, and void, because, 1st:-the said corporation had no power to purchase its own stock ; 2d: because the meeting of said corporation, at which said pretended sale and purchase were attempted to be made, was not legally and properly notified and called, inasmuch as no legal notice of the call thereof was given to all the members and stockholders of said corporation;, and 3d: because a sufficient number ánd quorum of said stockholders was not present at said meeting to transact such business as the purchase of its own stock ; and the answer sets up the misjoinder thereby caused of the causes of action embraced in the bill. The answer admits the judgment of the plaintiffs, the issue of execution thereon, and the return thereof by the sheriff, and the charter of the Newport Steam Factory and amendment thereof as alleged in the bill, and claims that the number of shares of the capital stock of the corporation was fifteen, of the par value of $3,000 each ; and setting out the shareholders of the corporation at the times when the respective portions of the plaintiffs’ debt was incurred, and the number of shares held by each, insists, that the stockholders who were such when the respective portions of the plaintiffs’ debt was incurred, are not jointly liable therefor, but severally liable for the same, and only in the proportion which the share or shares of each stockholder bears to the whole capital stock of the corporation, and not to exceed the value of the share or shares held by each ; that the respondent is not liable for the said portions of the plaintiffs’ debt incurred on or about the 31st day of March, 1847, and the 24th day of June, 1847, before he became a stockholder of said corporation, but only for the balance thereof, and in the proportion and with the restriction aforesaid; that' he has advanced to said corporation the sum of $750, and his note for $250, now outstanding, and he claims to deduct the same, with interest on the said sum of $750, from any liability which he may be under-for the debts of said corporation ; that he has been informed and believes that the Newport Steam Factory on the-day of-, 1858, conveyed to Seth W. Macy, real and personal estate of the value of $16,000, in trust, to be by him reduced to money and appropriated to the payment of the corporate debts; that the assignees of Philip Allen & Sons have declared a dividend out of the estate in their hands, and are ready to pay a dividend on the claims held by the complainants and set forth in the schedule thereof annexed to said bill, as the drafts of G. Bowen, agent, accepted by Philip Allen & Sons, and that said assignees, as the respondent has been informed and believes, will in April, 1859, declare and be ready to pay a further dividend upon said claims of the plaintiffs of from seven to ten per cent.; that the residue of said claims set forth in said schedule arises out of discounts made by the plaintiffs for said corporation of the drafts of G. Bowen, agent, on Aaron L. Lippincott, a part of which the respondent is. informed and believes to be collectable; and the respondent insists, that the plaintiffs ought first, and before having any decree against him in this cause, to collect whatever is collectable from the acceptors of said last-mentioned drafts, and from the said assignees of Philip Allen & Sons, and from the said Seth W. Macy, assignee of said corporation.</p> <p>To these answers the plaintiffs filed the general replication.</p> <p>The other bill in equity was filed by the New England Commercial Bank of Newport, for themselves, and in behalf of all other unsatisfied creditors for the time being of the Newport Steam Factory, against Seth W. Macy, administrator of Joseph Weaver, Benjamin Finch, John Stevens, Benjamin H. Stevens, George Bowen, Stephen B. Chase, William C, Gibbs, Edward W. Lawton, Daniel Tisdale, James F. Simmons, and the Newport Steam Factory, averring, that the said defendants, and the said Weaver in his lifetime, were stockholders in the Newport Steam Factory, and were all holders of one share, each, in the stock of said company, except Gibbs, Bowen, and Stevens, who were the holders of two shares of said stock, each; the share belonging to Stephen B. Chase standing in the name of George Bowen & Co. The bill then sets forth the charter and amendment to the charter of the company, by reference to them, as annexed, and states that in the years 1857 and 1858, the company became indebted to the plaintiffs for certain sums of money loaned to, and discounted for the company, specifying the sums by reference to a schedule annexed; and that the company having failed to pay the same, the plaintiffs, on the 15th day of April, 1858, recovered against the company therefor a judgment of the supreme court for the county of Newport, in the sum of $17,870.14 debt,'and costs of suit taxed at $7.40, for which, on the 29oh day of -Jiffy, 1858, execution issued, and was delivered to the sheriff of the county of Newport, who, after diligent search and inquiry for property of the company upon which to levy the same, and after being informed by the president and treasurer of the company that there was no such property, on the 30th day of July, 1858, returned said execution, for want of such property to be by him found, wholly unsatisfied; that, on the 15th day of February, 1858, said corporation assigned all its real estate for the equal benefit of all its creditors ; that the judgment of the plaintiffs has not been satisfied in any part, and that the corporation is wholly insolvent. The bill then proceeds to state, that Weaver died on the 1st day of April, 1856, intestate; that on the 2d day • of June, 1856, Macy was appointed administrator of his estate; that the plaintiffs have frequently demanded payment of their debt from said corporation, from said stockholders, from Weaver, in his lifetime, and from Macy, his administrator, since his death, who have neglected and refused to pay the same or any part thereof; and prays, that Macy may be directed to pay from the proceeds of the estate of Weaver, if sufficient, the amount of their said judgment, with interest and costs, and that the other defendants be directed to pay any deficiency in the payment by Macy, and for further relief.</p> <p>To this bill Seth W. Macy filed his answer, alleging therein that he had represented the estate of his intestate to be insolvent, the appointment and qualification of commissioners to receive and examine claims against the same, and their appointment of times for such receipt and. examinations as in his answer to the other bill; the pendency of said commission at the time of filing the bill; and that the plaintiffs had presented no claim against said estate to said commissioners, so that he could object to the same, and that he had not consented to have the same settled by a court of law; that Nathaniel S. Euggles and Charles Gyles were in their lifetime shareholders in the stock of said Newport Steam Factory, and that, upon their decease, their said shares became and were the property of their respective personal representatives, Mary L. Euggles, administratrix of said Nathaniel S. and Pernissa Gyles, executrix of said Charles ; that said corporation, without the consent of this defendant’s intestate, undertook to purchase from said Mary L. as such administratrix, and of the said Pernissa, as such executrix, the respective shares of their decedents, but that said pretended purchase was not made at any duly notified meeting of the stockholders of said corporation, or at any meeting at which the defendant’s intestate was present; that without the share of said Mary L. Euggles being represented in said meeting there was no quorum of the members of said corporation present, competent to transact any such business, and that inasmuch as the said Mary L. could not vote upon the question of such purchase from herself, her share could not be considered as making up any part of a quorum for the transaction of such sale and purchase; that, in addition, said corporation had no power or authority to purchase any part of the capital stock of said corporation; and that inasmuch as said Pernissa Gyles as executrix and sole legatee of said Charles, and said Mary L. Euggles, as administratrix and widow who received in her own right large personal estates from said Nathaniel S. are liable to contribute equally with this respondent from the estate of his intestate, they ought to have been made parties defendant with him' to said bill; that having no personal knowledge of the fact, the respondent has been informed and believes that the corporation did execute to the complainants the negotiable paper, and the complainants did obtain judgment for the amount thereof, as set forth in the bill, and that he admits that his intestate owned one share, or fifteenth part of the capital stock of said corporation ; but that the estate of his intestate is only liable to such proportion of the corporate debts as said one share bears to the whole capital stock of the corporation ; and that for such proportion of said indebtment, the estate of his intestate is only liable after de.ducting the other debts due from his intestate and the expenses incidental to the settlement of his estate.</p> <p>The answer of Benjamin Finch alleges the same facts to impeach the validity of the sales by Mary L. Ruggles and Pernissa Gyles of their respective shares in the stock of the corporation to the corporation, and insists, that they should have been made parties defendant to the bill, and that the complainants should be decreed to make them parties, or that all the defendants should be decreed to be liable only for thirteen fifteenths oí the complainants’ said debt; that the Newport Steam Factory was indebted to the complainants, and that the complainants did obtain judgment against said Newport Steam Factory as set forth in said bill, that execution-was issued thereon and return thereof made, as in said bill alleged ; but that the said persons named as defendants, who are or were stockholders of said corporation, are not jointly liable for the debts of said corporation, but are severally liable only for such proportion of said debts as the share or shares by them respectively held bear to the whole capital stock of said corporation, after deducting from, such proportion the amount in which the corporation shall be indebted to the stockholders, and adding thereto the amount in which they may be indebted to said corporation ; that said corporation has assigned to Seth W. Macy, in trust, to be sold and appropriated to the payment of the corporate debts, real and personal property of the value of $16,000; that the assignees of Philip Allen & Sons are ready to pay a dividend on the debts due by said Philip Allen & Sons to said corporation, and that some part of the amount due by draft from Aaron Lippincott to said corporation is collectable ; and that the complainants ought first to resort to these sources of payment, before asking a decree against this respondent.</p> <p>The answer of Tames F. Simmons to this bill was in the same words as his answer to the bill against Samuel Allen and others. The other defendants filed no answers, and no replication appeared to have been put in.</p> <p>Accompanying the bills, was a paper headed “ Statement of facts in the matters of the bills in equity of the New England Commercial Bank against Seth W. Macy, administrator, Benjamin Finch et al.,” but which was without signature. In this it was stated, that on the 1st day of January, 1847, William C. Gibbs, John and Benjamin H. Stevens, George Hall, and Edward King held two shares each, in the capital stock of the Newport Steam Factory, and that George Bowen, Samuel Allen, George Bowen & Co., J. & P. Rhodes, Nathaniel S. Ruggles, Daniel Tisdale, and Edward W. Lawton held one share each, in said capital stock; that the whole of said capital stock was divided into fifteen shares of the par value of $3,000 each, all of which had been paid in; that in addition to this, on the 23d day of April, 1850, an assessment of $1,000 on each share was made, all of which was paid in, with the exception of a balance of $250, and that a further assessment of $500 per share was laid in 1852, which was paid upon the shares of said stock standing in the names of Samuel Allen, Joseph Weaver, George Bowen & Co., George Bowen, and Edward W. Lawton; that the indebtment of said corporation to the New England Commercial Bank, accruing before the-day of-185-, accrued in the manner and at the times set forth in the answer of George Bowen ; that when said indebtment accrued, George Bowen, the treasurer of the Newport Steam Factory, was the president of said bank, and that Josiah S. Munroe and Samuel Allen, directors in said bank, knew of the transfers of the shares in the Newport Steam Factory at the times said transfers were made; that all of the meetings of said Newport Steam Factory were called by notifying, personally, the stockholders, of the time and place of meeting; if any of the stockholders who resided in town were out of health, or were residing out of town, when it was supposed to be impracticable for them to attend the meetings of the stockholders, they were not notified ; that Joseph Weaver, being in ill health, and Daniel Tisdale, being Out of town, were not notified of the special meeting at which the sales of the shares of Ruggles and Gyles to the corporation were made, nor were they present at that “meeting; that the corporation is largely indebted to Benjamin Finch, George Bowen, and Edward W. Lawton, and that John Stevens has conveyed the property in trust for the payment of the debts due from said corporation, as is set forth in his answer; and Seth W. Macy has property in his hands, which he holds in trust to pay the debts of said corporation, as is set forjh in his answer ; that on the 19th day of August, 1847, George Hall sold one share of his stock in said corporation to Charles Gyles, and, on the same day, sold his remaining share to Joseph Weaver; that Samuel Allen, on the 10th day of January, 1853, sold his share in said capital stock to Benjamin Finch; that, on the 31st day of July, 1847, Edward King sold one of his shares in said capital stock to George Bowen, and, on the same day, sold his other share to John Stevens; that on the 6th day of August, 1847, James T. and Peleg Rhodes, conveyed their share in said capital stock to James F. Simmons; that Nathaniel S. Ruggles died on the -day of-1846, and Mary L. Ruggles', his widow, was duly appointed to administer his estate, and on the-day of- 184- was qualified according to law to act in said capacity, and then gave notice of her said appointment; that Charles Gyles died on the -day of - 184-, leaving a last will and testament, a copy of which is hereunto annexed, which was duly admitted to probate, and letters testamentary were issued thereon to Pernissa Gyles on the^-day of-18 — , who then-gave notice tof her said appointment; that Joseph Weaver died at the time, and such proceedings were had in settling his estate, as is set forth in the answer of Seth W. Macy ; that Mary L. Ruggles and Pernissa Gyles made sale of the respective shares of their intestate and testator in said capital stock, if the following facts constitute a sale. Mary L. Ruggles was appointed and qualified as the administratrix of Nathaniel S. Ruggles, and on the 9th day of December, 1852, she, with Pernissa Gyles, the executrix of the last will and testament of Charles Gyles, proposed to sell the stock of their intestate and testator to said corporation ; that William C. Gibbs, John Stevens, Samuel Allen, George Bowen, Edward W. Lawton, and George A. Richmond, representing Mrs. Ruggles, were present at the meeting. They knew the object of the meeting, but none of the other stockholders had notice of, or knew of the meeting, with the exception of James F. Simmons, who knew of it, but was not present. Neither Mrs. Ruggles, nor Mrs. Gyles had any authority from the court of probate to make sale of the stock; and the corporation at this meeting voted to purchase it, and conveyances were made by the parties to the corporation of the stock, which may be referred to in connection herewith. Mrs. Ruggles and Mrs. Gyles each paid to the treasurer of the corporation a sum of money, at the. time they conveyed their shares.</p> <p>The unsigned paper containing the above statement of facts is in the handwriting of one of the counsel for the defendants. Accompanying this, and in the handwriting of one of the counsel for the complainants, was another paper, containing the following statement: —</p> <p>“ The Newport steam mill had obtained discounts, from time to time, from the New England Commercial Bank ; and on the third day of February, 1852, the notes held by the bank were given up by the bank, and a new loan made by the bank to the Newport Steam Factory, and new notes for said loan were given the bank, by reason, that shortly prior to that time a change had been made in the ownership of some of the stock of said Newport Steam Factory, and intending at the time of said loan to make a new contract with the new stockholders. The notes given on said third day of February 1852, are the notes upon which judgment has been obtained, and upon which this bill is filed. The acceptances upon which the judgment was obtained, and upon which the second bill in equity was brought, were given during the year 1857. The executions against the corporation have been returned non est.</p> <p>1. The stockholders of the Newport Steam Factory are severally, or jointly and severally, liable to its creditors for the payment of the entire debts of the corporation. Such a liability is created by the terms of the charter. The amendment of January, 1840, is: “ All executions that shall issue against said corporation shall be levied on the property of said corporation, and for want of such property the stockholders, who were such at the time the contract was made or liability incurred, •'shall be liable in their own persons and estates, as if the contract had been made or liability .incurred by them personally.” (Sect. 2 of the amendment to Charter of Newport Steam Factory, January, 1840.) This construction is especially appropriate, as the charter does not provide for the creation of a capital stock, but leaves that to the discretion of the corpora-tors. It is also confirmed by the provision, giving a right of action by one corporator, who has paid more than his share of the company’s debts," against another, for contribution. (Sect. 9.) As to the effect of this provision, see Grease et al. v. Babcock et al., 10 Metcalf, 525, 559. This construction accords with that put upon the language of the charter by the corpora-tors in their application to the general assembly for an amendment. (See petition for amendment and original 8th section.) The effect to be given to the petition to the general assembly, as a construction by the parties, is shown in Atwood v. R. L Agricultural Bank, 1 R. I. Rep. 376, 387. Such is the policy óf our manufacturing corporations laws.</p> <p>2. Thé decisions on similar statutes in other states confirm the construction here claimed. Under the general manufacturing incorporations act (of March 22, 1811), in New York, which provides, “ That for all debts which shall be due and owing by" the company at the time of its dissolution, the persons then composing such company shall be individually responsible to the extent of their stock,” (3 Rev. Sts. N. Y. 311, 1829,) it was held, that each stockholder was severally liable for the whole debt, not exceeding the amount of his stock. Bcmk of Poughkeepsie v. Ibbotson, 24 Wendell, 473; Same v. Same, 5 Hill, 471. -These cases are cited as law in Angelí & Ames on Corporations, § 619, with the remark, that the usual construction is in favor of the several- liability.</p> <p>3. If the liability be not simply several, or joint and several, it is in the nature of a copartnership liability, as in the case of -Allen v. Sewell, 2 Wend. 327, where the stockholders were by charter individually liable for all contracts. The court say this is in the nature of a copartnership liability.</p> <p>4. The creditor may, in equity, collect his whole debt from the estate of the deceased corporator or partner. According to Adams’s Equity, 172, “ where a loan has been made to several persons jointly, it must be presumed that every debtor was to be permanently liable, until the money should be paid; and that, therefore, a debt so arising, though at law it is the joint debt of all the co-debtors, shall be treated in equity as the several debt of each.” 3 Kent’s Com. 64; 1 Story’s Eq. Jur. § 676; 1 Story’s Partnership, § 361, and cases cited, especially Devaynes v. Noble, 1 Merivale, 529; 2 Russ. & Mylne, 495; Wilkinson v. Henderson, 1 Mylne & Keen, 582; Hamersley v. Lambert, 2 Johns. Ch. 509. The early cases, which doubted whether a bill could be maintained unless the surviving partner were first prosecuted, proceed upon the idea that the joint effects were in his hands, and should be first exhausted. In this case, the joint effects were in the hands of the corporation, and have been exhausted, as is sufficiently proved by the^ sheriff’s return of the execution against them. Angelí & «Ames on Corporations, § 614. To apply these views to the eases under consideration : In the actions at law, by the demurrer for non-joinder of parties, the defendant raises the question of several or joint liability. If, as we contend, the construction, that eaeh stockholder is liable as if he had personally made the contract, is the true construction- of the charter, then the demurrer must be overruled, and we take judgment at law for our debt against the defendants, either severally, or against all, they being the surviving partners of the company. If the court hold the liability to be joint, or like that of copartners, then we may proceed in equity against the estates of deceased stockholders, the survivors being parties merely for the purpose of taking the account, and not strictly necessary parties, but to be dispensed with under the 23d rule of this court, and this being also a rule of general equity practice.</p> <p>1. The liability of the stockholders of the Newport Steam Factory to the corporation, was limited to the sum of $3,000 on each share, which sum having been paid in, exhausted the power of the corporation to assess the stockholders for any loss or deficiency which might occur.</p> <p>2. At common law there is no personal liability upon corporators for the corporate debts;. and the court will not enlarge by construction such a liability imposed by statute. The charter of the Newport Steam Factory, as it originally stood, imposed upon its stockholders the liability of copartners, which amounts to a liability of each for the entire debts of the corporation. This, however, was repealed, and there was substituted for it, by the amendment of 1840, .a liability upon the corporators who were such at the time the contract was made, for such contract, “ in their own persons and estates, as if the contract had been made by them personally,; ” and that, not to' be enforced against the corporators in the first instance, but only secondarily, in case of suit and execution against the corporation, and want of sufficient corporate property to pay it. The condition thus annexed to the liability of the corporators makes ~it entirely different from what it would have been if the contract had been made by them personally, notwithstanding the expression to that effect; and as the charter nowhere defines the extent of the liability, the court will not, by judicial legislation, do so. This liability, whatever it is, is several, and not joint, since the charter does not declare it tó be joint. A joint liability is never construed to exist unless it is expressly created by charter or act of incorporation. Bond v. Appleton, 8 Mass. 472; Pratt v. Bacon, 10 Pick. 127; Andrews v. Callender, 13 lb. 484; Baker et al. v. Atlas Bank et al. 9 Met. 182; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Same v. Same, 5 . Hill, 461; Móss v. Oakley, 2 Hill, 265; Judson v. The Rossie Galena Co. 9 Paige, 598. In Atwood v. Rhode Islcmd Agricultural Bank, 1 R. I. Rep. 376, the stockholders were held liable only to the amount of the par value of their stock; and although the amount so assessed was insufficient to pay all the debts of the bank, the court decided, although it is not reported, that the solvent stockholders were not liable to pay the proportions of the insolvent stockholders, or to make up the deficiency. This decision must have proceeded upon the ground that the liability was several and not joint. The secondary, several liability of the stockholders in this case cannot be extended beyond the amount of the par value of the stock of each. See Wood v. Durum er, 3 Mason, 308. Again, the stockholders are liable merely, and not indebted. A liability is not a debt; since it may never become fixed, or the person liable be bound to pay anything under his liability. Kelton v. Phillips, 3 Met. 61. The liability is confined to the debts originally contracted whilst he is a stockholder, by the very terms of the amendment, and remains upon the stockholder after he has transferred his stock. The stock is indeed transferred subject to the corporate debts; but the secondary liability is not transferred with the stock to the purchaser of it. No stockholder can in any manner be liable for debts of the corporation incurred before he became a stockholder, notwithstanding a new or continued existence has been given to them. Moss v. Oakley, 2 Hill, 275; Judson et al v. The Rossie Galena Go. et al. 9 Paige, 598. This is not like the cases of Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473, and Slee v. Blum, 3 Johns. Ch. R. 566, where the stockholders, who were such at the dissolution of the corporation, were by the terms of the acts made liable for the corporate debts. We claim the benefit of this in application to the several cases which are pending. If the statute of limitations has barred the claim as against Gyles and Ruggles’s estates, and they are discharged, this operates, under our statute authorizing the release of one of two joint debtors, as a release pro tanto of the claim, (Rev. Sts. ch. 114, § 2,) the case being within the equity of the statute. See Bank of Poughkeepsie v. Ibbotson, 5 Hill, 461.</p> <p>1. The liability of the corporators, if any, is not primary, but secondary, and arises only upon an ascertained deficiency of the corporate property. Sect. 2, Amendment of Charter.</p> <p>2. The liability of the corporators is not total, but proportional, and co-extensive, not with the corporate indebtedness, but with the capital stock of the corporation. Atwood v. R. I Agricultural Bank, 1 R. I. Rep. 376. This proportional, as distinguished from a total liability, is deducible from the general scope and purpose of the act of corporation, with its Amendments. The corporation itself is the principal debtor; the corporators are liable, if at all, o.nly as guarantors. The stockholders are not liable as such generally; but only as being such when the corporate liability was contracted; when contracted, means, when originally contracted; so that subsequent stockholders are not liable for renewals of debts contracted before they became stockholders. The amendment shows that credit was primarily to be given to the corporation, on the basis of the capital stock, with the guaranty of the then stockholders that the capital should be kept available for the creditors to the extent of its pair value.</p> <p>3. The charter and its amendments in fixing the minimum of the number and value of the shares, and in imposing this guaranty upon the stockholders, provided a sure basis for reliable credit, to the extent of the capital stock at any given time. Those giving credit to the corporation, might always hereby know the value of their security for payment.</p> <p>4. The charter, by providing that no stockholder should be involuntarily liable to an assessment beyond $3,000 on each share, thereby indicated the maximum of liability imposed upon the ownership of each share for the corporate debts.</p> <p>5. Any other construction- would defeat all the purposes of the act of amendment, the sole purpose of which was to qualify the primary and total liability of the corporators. The language of the amendment is, that the corporators shall be liable “ as if the liability had been incurred by them personally; ” not, “ the same as if,” or “ in the same maimer as if,” or “ to the same extent as if,” leaving the manner and extent of the liability perfectly undefined, except so far as it can be collected from the general scope of the charter as it was, and as it is after amendment. Now, the capital stock was the basis of corporate credit, and the just and reasonable limitation of the personal liability -of the stockholders is the measure of their interest in it.</p> <p>6. The liability of the corporators, whatever the extent of it, is a several and not a joint liability. The amendment expressly repealed the joint or copartnership liability, and substituted for it secondary liability, the extent of which was to be determined in each case by the corporator’s interest in the capital stock. Such a several, secondary, and proportional liability would be just and reasonable, whilst the liability contended for by the plaintiffs would be arbitrary, unjust, and ruinous.</p> <p>First. That the liability of this defendant, if any, for the debts of the corporation, can, in no just view of the case, exceed ¡§3,000, the par value of the one share of stock held by him.</p> <p>Second. That if the entire indebtedness of the corporation, remaining after the full exhaustion of the corporate property, shall be less than the aggregate of the capital stock, then the amount or extent of the defendant’s liability will be, in the same proportion, less than the par value of his one share of stock.</p> <p>Third. That from the defendant’s liability, thus ascertained, is to be deducted, in order to determine the final amount thereof, the indebtedness of the corporation to him; for, as by sect. 3, of the original charter, the principal debtor had a lien on the stock for debts due to the corporation — a provision resulting ultimately for the benefit of the creditors — so any indebtedness of the corporation to the stockholders is a fair and equitable set-off against the liability imposed upon the ownership of stock for the benefit of creditors.</p> <p>Lastly. That no final decree can be rendered in either of the plaintiff’s causes against this or any defendant, until after the corporate property shall have been wholly exhausted.</p>

<p>• An indictment charging in one and the same count the distinct offences of entering a dwelling-house with an intent to steal, and an actual theft therein, is not on that account objectionable. '</p>

<p>Bill in equity to enjoin a suit at law, commenced by the respondent against the complainant corporation, as a garnishee who had neglected to account under oath before judgment had been rendered in the principal suit; the bill alleging that the complainant was prevented from accounting by accident 'and mistake, and praying that the judgment might be opened and the complainant permitted to account as garnishee, in the principal suit, with the same effect as if judgment had not been rendered therein.</p> <p>The cause went to proof; and on the part of the complainant bank the cashier deposed, in substance, that on the last of May or 1st of July, 1855, he was instructed by the board of directors to employ an attorney, who had then come to reside in the village of East Greenwich, in which the bank did business, to act as the general counsel of -the bank and to transact all its legal business ; that shortly afterwards, meeting the attorney at the railway station in the village he engaged him according to his instructions, although no general retainer was demanded ox-paid ; the attorney then, or a few days after, informing him that there was one case, which he named, in which he could not act for the bank, having been previously retained by the opposite party; that after the bank was served with copies of writs for the purpose of attaching in its hands the personal estate of Gardner & Brother, he mentioned the fact to the attorney, and inquired of him what was necessary to be done. That the attorney replied, “ You are garnishees, and must make affidavit; ” 'and nothing more was done or said on either side, the cashier supposing, as he swore, that when any matter required his personal attention in the cases, the attorney would send into the bank, and let him know it.</p> <p>It appeared that the attorney himself brought the suit in which the bank was served; that the suit was entered at the August term of the court of common pleas for the county of Kent, 1855, and was continued to the next February term of the court, 1856, with leave to the garnishee to make affidavit, at which term, the counsel of Gardner & Brother having withdrawn his appearance, judgment was entered up by default against the defendants, — the complainant not having made affidavit or received any notice from the attorney to do so. The cashier, admitted, that during the pendency of the suit he might have heard that the attorney was acting for the plaintiff in the suit,— now respondent to the bill, — but swore that he did not suppose that there was any impropriety in the attorney’s also acting for the bank in its character of garnishee in the suit, as he had done in another suit brought by him, in which the bank was served as garnishee. The president and a director of the bank deposed also to the instructions to the cashier to retain the attorney in the business of the bank, and to his having subsequently transacted what law business the bank had; and that they relied on him to attend to their interests as garnishees in the suit in question.</p> <p>On the other hand, the attorney deposed that he had no recollection of ever having been generally retained as the counsel for the bank, by the cashier or any other officer, and that he never charged the bank with such retainer, as he should have done, if he had understood that he was so retained; that he brought the suit for the respondent against Gardner & Brother, in which the bank was served, and acted openly and solely for the respondent in it, in court; and had no recollection of ever having been requested by the cashier, or any other officer of the bank, to draw the affidavit of the bank as garnishee, or in any way to act for it on the suit; or of having any conversation with the cashier or other officer of the bank about the suit until after the judgment was obtained. He admitted that he had done business for the bank for which he had rendered his account; and explained his having drawn an affidavit for the bank as garnishee in a suit which he had commenced, by the'fact, that the suit was that of the president of the bank, and that he had requested him to prepare the bank’s affidavit as garnishee.</p> <p>Courts of equity have jurisdiction to grant new trials in actions at law, where, from accident or mistake, the party has been deprived of an opportunity of making his defence in a court of law. 1 S. & M. Ch. R. 466 ; Joslin v. Coffin, 5 How. (Miss.) 537; 1 A. K. Marsh. 237; Walker, Ch. R. 505; Cochrm v. Street, 1 Wash. (Va.) E. 79. For what is accident, in the sense of a court of chancery, in granting new’trials, see 1 Story, Eq. Jurisp. §§ 78, 109; and for what is mistake, lb. §§ 110,140, and notes.</p> <p>1. It is not within the power of a court of equity to grant the relief prayed for, in the case set forth by the plaintiffs’ bill. The act of the general assembly making the garnishee, who fails to make affidavit, liable for the payment of the debt, is as binding on a court of equity as on a court of law. To relieve the garnishee from such liability is to alter a law of the general assembly, and is the exercise of legislative power in the form of a decree of a court of equity. See 2 Story, Eq. Jurisp. § 1326; Gorman v. Low, 2 Ed. Ch. R. 324; Chandler v. Crawford, 7 Ala. 506; Peachy v. Somerset, 1 Strange, 446; Keating v. Sparrow, 1 Ball & B. 367. No case can be found in which a court of equity has relieved after a statute liability or penalty, accrued on account of accident or mistake, but only when accrued through fraud. Example,- statute of limitations. No case is produced by opposite counsel. 2 Story, Eq. Jurisp. § 1326.</p> <p>. 2. The plaintiffs never retained an attorney to act in their behalf in the case of Christopher Hawkins v. Benj. W. Gardner, surviving partner of the firm of Gardner & Brother.</p> <p>3. If they had retained an attorney it would be no ground for relief. The negligence of the attorney is the negligence of the client. Patterson v. Mathews, 3 Bibb, 80; S. C. 2 U. S. Eq. Digest, 367, § 45; Burton v. Wiley, 26 Verm. (3 Deane,) 430; Wynn v. Wilson, 1 Hemp. 698; S. C. 11 Am. Dig. 325, § 40 ; Yates v. Mmwoe, 13 Elinois, 212. A new trial ought not to be granted on account of the neglect of the agent or attorney applying for it. 3 U. S. Dig. 581, § 787, and cases cited; Barry v. Wilbourne, 2 Bailey, 91; Leedom v. Pancake, 4 Yeates, 183; Hawley v. Blanton, 1 Mis. 49; McLcme v. Harris, lb. 700; Ditto v. Commonwealth, 2 Bibb, 17; Smith v. Morrison, 3 A. K. Marsh. 81; Green v. Robinson, 3 How. (Miss.) 105; Legrando v. Baker, 6 Monr. 235; S. C. 2 Supp. U. S. Dig. 451, § 479; Steigers v. Darby, 8 Mis. 679; Field v. Matson, lb. 686.</p> <p>4. The failure of the bank to make their affidavit was caused by the carelessness and negligence of their own officers. The bank, like all other parties, is bound to know the law. Ignoranee is no excuse. ' This rule applies with peculiar force to the plaintiffs. Boards of directors and cashiers have more means of knowledge than individuals. The affidavit required by law is a simple thing. It related to facts within their own knowledge and in their own books. Their statement would have been conclusive, unlike defences depending on the testimony of witnesses. According to their own account, they employed no one to draw their affidavit, and had no right to expect that he, whom they knew to be the attorney for the plaintiff, would act for them.</p>

<p>Indictment against the defendant as a common seller of strong liquors, at East Greenwich, between the 1st day of October, 1858, and the 14th day of February, 1859.</p> <p>At the trial of the indictment before Mr. Justice Shearman, with a jury, at the February term of the court of common pleas for the county of Kent, 1859, it appeared, that one Arnold J. Place, a witness produced on the part of the state, testified in his direct examination, that he had been a frequent purchaser of liquors of the defendant since he had kept shop in East Greenwich, within the times laid in the indictment, both to drink on the spot and to carry away; that he could not tell the number of times he had purchased it, there were so many times; he had purchased it a number of times. On cross examination he said, that he could not give any certain dates ; it ■ was since the defendant kept the shop ; he meant to say, that he had bought of the defendant since he kept his shop, and thought that it was within the times laid in the indictment. The first time he purchased of the defendant he was alone ; got gin there of the defendant four or five times; had it nearly every day. Against the objection of the counsel for the defendant, the court permitted the attorney-general to reexamine the witness as to the time when the defendant kept the shop and sold to the witness, with especial reference to the times when the supreme court sat in East Greenwich, in September, 1858, and when the grand jury attended the court of common pleas there, at its February term, for the county of Kent, 1859.</p> <p>Upon this reexamination, the attorney-general asked the witness, the counsel for the defendant objecting, “whether he remembered when the grand jury were in session for the February court of common pleas, 1859?” The court having admitted the question, the witness answered, “ that he did.” The attorney^general then asked the witness, “if the purchases were made before that time ? ” To this question the counsel for the defendant objected; but the court allowed the question to be put, and the witness answered, “ that the purchases were made before that time.”</p> <p>The counsel for the defendant also requested the court to charge the jury, that they could not convict the defendant of being a common seller under sections 26 and 27, of chap. 78, of the Kev. Stats., without proof of two previous convictions for selling strong liquors in violation of sect. 16 of the same chapter, and of a like sale in violation of that section within six months of the last conviction. This charge the court refused to give, but charged the jury that any three sales of strong or intoxicating liquors, made by the defendant within the times laid in the indictment, were sufficient to maintain it.</p> <p>The jury having found the defendant guilty, and he having duly excepted to the above rulings of, the court, the same were now brought to this court for the correction of alleged errors of law therein.</p> <p>1. Place’s reexamination was objectionable and illegal,' because the questions were leading, and the testimony incompetent and irrelevant, both in substance 'and in the time and manner of its admission.</p> <p>2. An indictment for common selling requires to be sustained by proof, that the defendant has been twice convicted of a violation of sect. 16, of chap. 78, of the Rev. Stats., and by proof, that the defendant has again violated it within six months of his last conviction.</p> <p>I. The reexamination of the witness, Arnold J. Place', was proper to explain the cross-examination. -1 Greenleaf on Ev. p. 609, s^e. 467.</p> <p>II. If the reexamination of the witness was in fact as to new matter, the court had the discretion to permit it, and it is therefore no ground for a new trial. Law v. Murrill, 6 Wend. 268; 9 Cowen, 65; Frederick v. Gray, 10 Serg. & Rawle, 482; Curren v. Conners, 5 Binney, 488 ; State v. Silver, 3 Dev. 332; Freleigh v. State, 8 Mis. 606 ; Brown v. Bwrns, 8 Mis. 26.</p> <p>_ III. It is not necessary for /the government to prove, in order to sustain an indictment for common selling, two previous convictions of a violation of sect. 16, of chap. 78, of the Rev. Stats, and another violation of said section within six months .next succeeding the last conviction. The statute does not prescribe the only mode of proof. Rev. Stats, chap. 78, §§> 26, 27 ; State v. Johnson, 3 R. I. Rep. 94.</p>

<p>This was an action of the case, brought against the defendants, a railroad corporation, under the third section of the “ act in relation to railroads,” found in the Digest of 1844, pp. 338, 339.</p> <p>The declaration, which contained two counts, in substance alleged, that the defendants, on the 25th day of April, 1857, unreasonably neglected and refused to ring, or cause to be rung, any bell upon their locomotive engine, whilst the same was passing upon their railroad, within the distance of eighty rods from the place where said railroad crosses a certain public way, to wit: Webster street, in the city of Providence, at the, same level with said road, and unreasonably neglected and refused to keep said bell ringing until said engine had crossed said public way; by reason whereof, to wit: of said neglect and refusal of said defendants, the plaintiff was thrown down by said engine, and run over, and greatly injured, and his leg broken, and he was otherwise greatly injured, so that he was compelled to have his leg amputated, and his life was despaired of, and he was put to large expense in curing said injuries, &c.</p> <p>The act under which the action was brought was, so far as applicable to it, as follows:</p> <p>“ Sect. 1. Every railroad company incorporated under the authority of this state shall cause a bell of at least thirty-two pounds in weight to be placed on each locomotive engine passing upon their road; and the said bell shall be rung at the distance of at least eighty rods from the place where said railroad crosses any turnpike, highway, or public way upon the same level with the railroad, and shall be kept ringing until the engine has crossed such turnpike or road.</p> <p>“ Sect. 2. Every such railroad company shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained, across each turnpike, highway, or public way, where it is crossed by the railroad upon the same level therewith; the said posts and boards to be of such height as shall be easily seen by travellers, without obstructing the travel;' and on each side of said boards the following inscription shall be painted in capital letters, of at least the size of nine inches each, ‘ Railroad Crossing— Look out for the Engine while the Bell rings.’</p> <p>“ Sect. 3. If any railroad company shall unreasonably neglect or refuse to comply with the requisitions contained in this act, they shall forfeit for every such neglect or refusal a sum not exceeding one thousand dollars; to be recovered in an action of debt before any court proper to try the same; one half thereof to and for the use of the state, and the other half to and for the use of the person who shall sue for the same. And the said railroad company shall also be liable for all damages sustained by any person by reason of such neglect or refusal on the part of the company.”</p> <p>At the trial of the case before the chief justice, with a jury, at the September term of this court, 1858, it appearing, from the evidence of the plaintiff himself, that at the time of the injury complained of, the plaintiff was walking upon the track of the defendants’ railroad, and was not at any place where the railroad crossed any turnpike, highway, or public way, upon the same level with the railroad; and the proof on both sides, as to the cause of the injury, being directed exclusively to the question whether the bell of the locomotive engine which struck down the plaintiff was rung or not, the defendants requested the judge to instruct the jury, that the plaintiff had not proved his case, and that upon the facts, as proved, the defendants were entitled to a verdict.</p> <p>This instruction, however, the judge refused to give; but instructed the jury, pro forma, that if they were satisfied, as the fair result of the whole testimony, that the defendants neglected to ring their bell as alleged in the declaration, and that in consequence of such neglect the plaintiff was injured, they should find a verdict in his favor, without reference to the place where he was, or whether he was or was not lawfully there.</p> <p>Under these instructions, the jury having returned a verdict for the plaintiff for if1,500 damages, the defendants now moved for a new trial, upon the ground of error in law in said instructions. Another ground for new trial taken by the defendants, was, that the verdict was against the weight of the evidence; but as the court did not consider this ground, it is unnecessary to detail the state of the evidence upon which the motion, in this respect, was founded.</p>

Assumpsit by indorsee against the maker of a negotiable promissory note for-$5,000, dated New York, June 9,1857, and payable to the order of E. Whitehouse, Son & Morison, ninety days after date.

The plaintiff, who was a claimant against the estate of Benjamin C. Olney, late of Johnston, deceased, which had been represented insolvent, presented his claim to the commissioners who were appointed on said estate, who allowed it against the same.

Assumpsit to recover the sum of one hundred and twenty-nine dollars and thirty-six cents for tolls due from the defendants for the passing of their daily stage-coach over the plaintiffs’ turnpike road from the 25th day of September, 1855, to the 10th day of May, 1856. 'The charge was at the rate of thirty-three cents per passage. ' Plea, the general issue, and tender of $30.21, being for the same number of tolls at the lower rate of six cents per passage; the plaintiffs…

Demurrer to a bill in equity. The bill stated that the complainant — deformed and crippled in body from his birth, and incapable of earning his own livelihood — was the illegitimate son of Ebenezer Smith, late of Barrington, deceased, father of the defendant, and during the life of said Ebenezer, always lived with him, and was acknowledged by him and his family, including the defendant, as such illegitimate son; that on or about the 15th day of January, 1854, the said…

<p>The interest of a religious society in lands leased by them, and upon which they have érected a building, partly occupied by them for religious worship, and partly rented for stores and other purposes — the rents and profits being appropriated exclusively to religious uses, — is exempted from general taxation by § 2, oh. 37, of the Rev. Stats.; but not from an assessment made upon it for benefits derived from the laying out of a new street, in the vicinity, under the act of January, 1854, entitled “ An Act in relation to the laying out, enlarging, straightening, and otherwise altering streets in the city of Providence.”</p> <p>Where a religious society held lands under leases which covenanted that the society should pay all taxes assessed upon the demised premises, and, at the request of the treasurer of the society, the lands, for their interest in which the lessors had before been taxed, were, for the convenience of the society in paying such tax, assessed solely to the society: Meld, upon an action brought by the society to recover back such tax as illegally assessed, — the same having been paid under protest, — that the society were equitably estopped from objecting to the change of assessment.</p> <p>Where a lessee voluntarily pays a city street-assessmént, duly made against the lessors for their reversionary interest in the demised premises, it cannot be recovered back from the city, although there was no obligation upon the lessee to pay it under the covenants of the lease.</p>

<p>R. W. G., who had a double residence in the towns of W. and P. was, in December, 1856, taxed for personal property in the town of W. where he had been a tax-payer and voter for several years. On the 31st day of March, 1857, a tax-act went into operation, which provided, that persons should be taxable for their personal estate in the towns in which they had their actual abode for the greater portion of the twelve months next preceding the first day of April in^each year. Held, that R. W. G. having had his actual abode in the town of P. for more than six months next before the first day of April, 1857, was, in the September of that year, taxable for his personal property, in the town of P.; and that the tax act was not made to retroact, by taking into account R. W. G.’s place of actual abode prior to its going into operation, in order to ascertain his place of taxation under it, after it went into operation.</p>

<p>Assumpsit upon twenty-two promissory notes, amounting, in all, to upwards of a thousand dollars, and made by the defendant payable to Thankful Webster.</p> <p>Plea in abatement, “that the said Thankful Webster, at whose suit the said action is above supposed to be prosecuted against the said defendant, after the purchase and service of the said writ against the defendant, and before the time of filing and entering said action in this court, to wit, on the 30th day of January, a.d. 1859, at Providence aforesaid, did die; and that afterwards, to wit, on the 25th day of February, a. d., 1859, at Providence aforesaid, and before the time of filing and entering said action in this court, one Sprague Kenyon was lawfully appointed administrator upon the estate of the said Thankful Webster, and was, then- and there, duly qualified according to law to act as such administrator; and this, &c.”</p> <p>General demurrer by the administrator of Thankful Webster, and joinder.</p> <p>• There was also filed, by Sprague Kenyon, the administrator of Thankful Webster, a motion to amend the declaration, so as, in apt words, and proper form, to set forth the faqt that the suit was earned on by him in his said capacity.</p> <p>In this case the death of the plaintiff is suggested, and a motion is filed to allow the administrator to prosecute the suit. The defendant pleads in abatement the death of the plaintiff, and the appointment of an administrator before, the action was entered in court, to which plea the plaintiff demurs, and in support of the demurrer says,—</p> <p>That said suit is upon promissory notes of the defendant, payable to Thankful Webster, and, therefore, the cause of action survives, and the administrator of Thankful Webster has power to prosecute said suit. ReV. Stats. 378, § 5 ; Clendinin v. Allen, 4 N. H. 385; Moore v. Ra/nd,' 1 Wis. 245; Carmichael v. West Felicima Railroad Co. 2 How. (Miss.) 817.</p> <p>1. The plea sets forth the death of plaintiff, after service of writ and before the time for entering the action in court. By such death, the action, at common law, is abated. Gould’s Pleading, p. 264, ch. 5, § 90; Hatch v. Fustis, 1 Gall. 162; Greene v. Watkins, 6 Wheat. R. 260, and 5 Cond. R. 87.</p> <p>2. In this state, an executor or administrator, in case of the death of a party to the action or suit, and in case the cause of action survives, may prosecute or defend such action or suit from court to court. Rev. Stats, ch. 161, § 5, p. 378.</p> <p>3. In order to prosecute a suit or action, a person must be a party to it, and an actor in it. An executor or administrator, then, in order to prosecute a suit or action, must appear upon the record as a party, for that purpose. Hatch v. Fustis, 1 Gall. 164; Greene v. Watkins, 6 Wheat. R. 260, and 5 Cond. R. 87, n.</p> <p>4. After the death of a party'to a suit, therefore, no step can be taken until the representative of the decedent has appeared as a party upon the record.</p> <p>5. In this case it appears from the record, that the party plaintiff, and actor, died before declaration filed, and no one has appeared, as her representative, to prosecute the action.</p> <p>6.' The motion to amend ought not to be granted.</p> <p>1st. The declaration is defective in substance, not in form merely.</p> <p>2d. It is not such a defect in substance that the court ought to allow its amendment.</p> <p>(1) The original writ was served by attachment of real estate, which was as well discharged by the failure of the administrator to prosecute, as it would have been had the intestate lived and neglected to prosecute the action.</p> <p>(2) It is sought by the proposed amendment to revive an action, which has been abated by the death of the plaintiff, through the introduction of a new party.</p>

This was a. claim of $3,000, made by Clovis H. Bowen, a son-in-law of the late Anthony Steere, of Gloucéster, against the executor of his estate, for services, during a period of nearly ten years, rendered to the testator in the management, sale, and disposal of his considerable real estate.

Assumpsit to recover from the city treasurer of Providence, the sum of $407.22, with interest, paid by the plaintiff to the city collector under protest; the ground of recovery being, that the same was illegally assessed against him by said city for the expenses of laying a sidewalk in front of his estate on Eddy Street, in said city.

Assumpsit against the * defendant as the indorser of two promissory notes for six hundred dollars each, made by one Nelson C. Northup* and payable, one in thirty-six, and the other in seventy-four months after date, to the order of the defendant, and by him indorsed -to the plaintiff.

<p>Trespass and ejectment, to recover possession of a lot of land, containing about thirty acres, and situated partly in the. town of Gloucester, and partly in the town of Burrillville.</p> <p>• The suit, which was an amicable one, was submitted to the court upon the following agreed facts: — Moses Cooper, formerly of Gloucester, deceased, by his last will and testament, duly proved, gave the lot of land declared for to his grandson, Stephen Cooper, describing the estate of his grandson therein in these words : —</p> <p>“ My aforenamed grandson, Stephen, to come into possession at twenty-one years of age, and to have and to hold the above-named bequest to him during his natural life; and after his decease, I give the premises unto his male heirs, equally between them-; and for want of heirs male, then to go in equal shares to his daughters.”</p> <p>The defendant derives his title under a sale on execution of Stephen Cooper’s interest, arid also under, a warranty deed of the premises and other lands, executed by said Stephen, in his lifetime, for the nominal consideration of four thousand dollars, and acknowledged before the town clerk of Gloucester, and recorded in the land records of that town. After said deed was thus acknowledged and recorded, Stephen Cooper, on the 28th day of May, 1822, again acknowledged said deed before the court of common pleas, for the county of Providence, then in session at Providence, and again, on the 28th day of September, 1822, before the supreme judicial court, then in session for said county. The deed was recorded after these acknowledgments in court, to wit: on the 14th day of November, 1822, in the land records of the town of Bumllville, but not after being so acknowledged, in the land records of the town of Gloucester.</p> <p>Stephen Cooper died some time prior to April, in the year 1853, and the plaintiffs are his three only sons, born, respectively, in 1810, 1813, and 1821.</p> <p>The cause was submitted by B. N. Lapham, for the plaintiffs, upon the following brief, and by S. S. Lapham, for the defendant, without argument.</p> <p>The plaintiffs in this action claim the land described in this declaration under the will of Moses Cooper, because they claim that under said will their father,' Stephen Cooper, took no more than a life-estate, and that on his decease they became entitled to the real estate given to him for life. In the construetion of wills, the intention of the testator governs and controls unless inconsistent with established rules of law. Under the will it is evident that Moses Cooper intended that his grandson, Stephen Cooper, should take a life-estate, and that his children should take the remainder, the sons taking first; but if no sons, then daughters. The expression, “ male heirs,” should be construed to mean sons; the expression, “ daughters,” being used immediately after, and in the same connection. 2 Jarman on Wills, 301, 302. The question under this will is, did. Stephen Cooper, Jr. take an estate for life or an estate tail ? It could only be made an estate tail by the application of the rule in Shelley’s case. That rule does not apply here.</p> <p>1. The reason of the rule is obsolete. It is contrary to the policy of our laws, and is only applied to cases falling strictly within the letter of the rule.</p> <p>2. When instead of the words “ heirs of the body begotten,” the words, children, issue, lawful issue, sons, are used, the rule does not apply. 1 Hilliard on Real Property, 643, 650; 6 Greenleaf’s Cruise on Real Property, 290, 297, 650, and note; Sisson v. Seabury, 1 Sumner, 235, and the cases there cited, most of the authorities being examined and commented on in that case. In this class of cases the first devisee takes only a life-estate. See, also, Manchester v. Durfee, 5 R. I. Reports, 555. “ Children,” in a “ will,” is a word of purchase.</p> <p>3. When the words, “heirs of the body,” are used, if there are any other words used showing that by “ heirs ” the testator meant a class of persons or a description of persons, or children, or sons, or daughters who were to take, the first devisee takes a life-estate, and the class of persons designated take as purchasers ; the word “ heirs ” being construed as a word of purchase, and not as a word of limitation. 1 Hilliard on Real Property, 539-650, 651 and 652; 6 Greenleaf’s Cruise on Real Property, 291; 2 Jarman on Wills, ch. 38, and more particularly pp. 301 and 302 ; Archer’s case, 1 Co. 66 ; Wilde’s case, 6 Co. 17; Clark v. Day, Moore, 593; Cro. El. 313; Wedgward’s case, 1 Rol. Ab. 837 ; King v. Melting, 1 Vent. 231; 'Sisson v. Seabwry, 1 Sumner, 235. The words in this will, “ male heirs, and for want of heirs male, then to go in equal shares to his daughter,” bring the case within the operation of the 2d section of the Rev. Stats., ch. 154, the same being in force when the will was made and admitted to probate; Statutes of 1798, p. 279; the words used being the same in meaning as the words “ children or issue.” The remainder in the estate had vested in the sons of Stephen Cooper, Jr. before the same was attached, and before he made any deed of the same, one son having been born in 1810, one in 1815, and the other in February, 1821, and the attachment having been made in November 15, 1821, and the deed having been executed some time after. If we allow that Stephen Cooper, Jr. took an estate tail, ought not the deed, with the acknowledgments before the court of common pleas and the supreme court, to have been. recorded in the town clerk’s office of the town of Gloucester, in order to bar the entail of the land in that town ?</p>

Assumpsit, to recover four hundred and thirty-five dollars and sixty cents, the amount of a promissory note, dated February 3,1852, and made by the defendant, together with one Homer M. Daggett, his copartner in the firm of H. N. & H. M. Daggett, to the plaintiffs, and payable to the plaintiffs or order, six months after date. ■ The writ was dated June 28, 1859, and was served by an arrest of the defendant on the same day.

Petition for the new trial of an application for the enforcement of a lien against the Manchester Print Works, in Smith-field, under the mechanics’ lien law, for work done and materials furnished by the plaintiffs to Edward P. Patterson and Theodore Schroeder, as joint contractors for the same.

<p>Bill in equity to redeem two lots of land in Cranston, originally mortgaged, together with two other adjoining lots of land, by James Reynolds and Thomas Parker to Henry Blundell, to secure a promissory note, at three years, of'five hundred dollars, of the equity of redemption in which lots the plaintiff was an execution purchaser.</p> <p>The mortgage, which was dated December 13,1852, contained a power of sale to Blundell, his heirs, executors, administrators, and assigns, authorizing him or them, in default of payment of said note or annual interest, to sell the lots for the satisfaction of the same, “ first giving thirty days’ notice of such sale in some one of the public newspapers printed in the city of Providence.” In October, 1853, Reynolds and Parker, who held the four lots mortgaged by them as tenants in common, by mutual releases, vested two of the lots in severalty, being numbers 117 and 118 on a plat of part of the Joseph Burgess farm, in Parker, and the other two, numbered 119 and 120 on said plat, in Reynolds, subject to said mortgage; and on the 18th day ®£ March, 1857, Parker released all his interest and equity of redemption in his two lots, numbers 117 and 118, to Sarah K. Reynolds, the wife of James Reynolds. The interest and equity of redemption of Reynolds in the other two lots embraced in the mortgage, being lots 119 and 120 on said plat, was levied upon by two executions, issuing out of the supreme court, obtained against him by creditors of Reynolds, and was, on the 25th day of February, 1858, sold and conveyed to the plaintiff by the deputy-sheriff charged with the service' of said executions. Upon this title, the complainant commenced an action of ejectment against Reynolds, who was in possession of the two lots, and at the September term of the supreme court obtained judgment for possession.’ The mortgage came by mesne assignments to the defendant Thomas E. Anthony, who claimed to hold the same as security for the balance due thereon, amounting, as the bill charged, only to about three hundred dollars. On the 11th day of December, 1857, after Anthony had contracted with the East Greenwich Institution for Savings, the then holders of the mortgage, to purchase the same from them, but before he had received an assignment of the mortgage, he advertised the four lots embraced in the mortgage for sale under the power, in the “ Rhode Island Weekly Tribune,” a newspaper printed in Providence; and having received an assignment of the mortgage on the 6th or 7th day of^January, 1859, he sold, on the 12th day of January, 1859, the mortgaged property at auction, for the sum of $320, — he bidding off the same in the name of his sister, the defendant, Rebecca Anthony, and giving her a deed thereof. The notice of sale, advertised as above by Anthony, was as follows: —-</p> <p>“ Mortgagee’s Sale.</p> <p>“ Will be sold at public auction, on the 12th day of January, 1859, on the premises, by virtue of a power of sale contained in a deed of mortgage, made and executed on the 13th day of December, 1852, and recorded in book 27, page 25, of the records of deeds, &c., in the town of Cranston, the conditions of which have been broken, the following described real estate situated in said Cranston, being lots laid out and described as Nos. 117,118,119,120, on a plat of part of the Joseph Burgess farm, belonging to Edward R. Mitchell, surveyed and platted by Atwater & Schubarth, and recorded in book No. 16, page 575, of the records of deeds, &c., in Cranston, with the buildings and improvements thereon. Sale to commence at ten o’clock.”</p> <p>The bill charged that the sale was advertised by collusion between James Reynolds and Anthony, before the latter had become the owner of the mortgage, in a paper of limited circulation, — so that the plaintiff never heard of the sale until the 27th day of January, 1859, fifteen days after it had taken place, when he was casually informed of it; that the reference to the book and page of the Cranston records, in the notice, for the record of said mortgage, is erroneous; that the sale was made on the premises in Cranston, by an auctioneer appointed by the city of Providence; no person beside the auctioneer being present but James Reynolds, Thomas E. Anthony, and a person unknown to the complainant; that no posters were put up or other notice given of the sale than the above advertisement; that the lots were sold together, and bid off by Anthony in the name of his sister Rebecca, for $320, when they were well worth and would have brought, at a sale fairly advertised and conducted, a thousand dollars; and that the sale was collusively contrived and carried on by the defendants, Reynolds and Anthony, for the purpose of cutting off the claim of the complainant to lots Nos. 119 and 120, embraced in said mortgage.</p> <p>The answer of the defendants admitted the statement of the title on both sides, as made in the bill, — that the sale was advertised by Anthony before he had obtained a transfer of the mortgage, but after he had contracted for it, and with the assent of the East Greenwich Institution for Savings, the then holder of the mortgage; that the notice of sale was as above set forth, and erroneous as to the page of the book of records in which the mortgage was recorded; that the sale was made by a Providence auctioneer, but under the direction of a Cranston auctioneer, who was present at the sale; that the lots were, bought at the sale by Rebecca Anthony for $320, being less than their value; one Rice bidding for her, but the deed being executed to her; that she bought at the request of Sarah Reynolds, the wife of James' Reynolds, but for herself; that she paid no money to her brother, but gave to him her negotiable promissory note, which has since been taken up; but the answer denied all collusion for the purpose qf defeating the plaintiff’s equity of redemption, and all fraud whatsoever, alleging that the sale was fairly conducted, and was made for the sole purpose of enabling Anthony, the holder of the mortgage, to obtain out of the mortgaged property what he had paid for the mortgage.</p> <p>Depositions were taken and read on both sides, bearing upon the allegations of the bill and answer, but as they do not touch the point upon which the case was decided, it is needless to set forth their contents or substance.</p> <p>1. The sale is ineffectual to cut off the complainant’s right of redemption, — because in the advertisement neither mortgagor nor mortgagee, nor any party connected with the mortgage, is named, and the only means given by which to ascertain under what mortgage the sale is to be made, is the reference to its record,— and this is not correct. This is admitted by the answer. Compare per Wing, J., in 1 Mann. (Mich.) 342.</p> <p>2. Because the advertisement was insufficient, being made by Anthony when he had no title whatever to the mortgage, and while the title was in the Institution for Savings. Cohoes v. Coss, 13 Barb. 137; Miles v. Brcmsford, 1 Mann. (Mich.) 338. - 3. -Because the promise by Kenyon, as treasurer of the Institution for Savings, to the complainant, to inform him before anything was done with the mortgage, rendered any attempted foreclosure without notice to the complainant, entirely ineffectual to bar the complainant’s right of redemption. See Hall v. Cushman, 14 N. Hamp. 171.</p> <p>4. Because the sale was made in Cranston, by an auctioneer not authorized to sell there. An auctioneer cannot delegate his authority. Commonwealth v. Hamden, 19 Pick. 482; Stone v. The State, 12 Miss. 400, (11 U. S. Dig. 332, 333, §§ 56, 57, 58.) Compare Rev. Stats, ch. 117, pp. 270, &c., particularly ■ §§ 10 to 23. It is evident here that in the language of Morton, J., in 19 Pick. 484, supra, Doyle did not make this sale as the mere servant or clerk of Moore, but “ made the sale himself, having obtained permission for. the purpose, as a cover by means of which to evade the provisions of the statute.”</p> <p>5. Because the sale was otherwise objectionable. Although the answer contains formal denials of collusion and intention to cut off the complainant’s rights, yet enough appears, chiefly from the statements of the answer itself, to show the real transaction, viz.: that the mortgagor, mortgagee, and purchaser, are brothers and sisters and the sale was entirely a family matter. They knew of the complainant’s title, and that he had applied to the bank for this very mortgage to protect himself, and because they knew this they procured the respondent, Thomas E. Anthony, to take this mortgage as a mere conduit through whom to make the sale, the purchase being arranged beforehand. Though knowing the complainant’s interest in the matter, no notice is given him of the intended sale. It is advertised in the “ Weekly Tribune,” where not one in a thousand would see it, and no posters put out. Reynolds himself had the whole charge of the business. No names are mentioned in the advertisement; no one was present at the sale but the auctioneer, the mortgagor, mortgagee, and the person employed by them to bid it off (bid it in, we submit.) It is put up and sold at the request either of Reynolds or Anthony in an unusual way, and struck off (or bid in?) for just the amount of the mortgage, and at about or less than one third its value; and no money paid at the time.</p> <p>1. The answer denies fraud or collusion, and all the facts admitted or proved are reconcilable with good faith, and if so, the complaint must fail. 1 Story’s Equity, 222, § 190 ; Rogers v. Oruger, 7 Johns. 605.</p> <p>2. If this is a defective -execution of the power contained in the mortgage deed, it is such a defect as a court of equity will supply. Bur v. Hatch, 3 Hamm. (Ohio) Rep. 529; Russ. & Myl. 418; Schenck v. Ellingwood, 3 Edw. Ch. 175; Beulram v. Rine, 2 Call. 387; 1 Story’s Equity, § 176; Sugden on Powers, ch. 6, (4th ed.) 353, 358. The agreement for the transfer of the mortgage was made with the East Greenwich Institution for Savings before the advertisement was inserted. The treasurer of said institution had authority to make the transfer to Thomas E. Anthony.</p> <p>3. The “ Weekly Tribune ” is a paper of average circulation. The advertisement was substantially correct under the power of sale, and the description was such as that no one could be deceived. No particular form of notice of a sale is prescribed by law, under a deed of trust; it is sufficient if the description of the land is reasonably certain, so as to inform the public of the property to be sold. Newman v. Jackson, 12 Wheaton, 570; 7 lb. 363 ; 2 Kent, 710 ; Caler aft v. Roebuck, 1 Vesey, jr., 221; Dyer v. Hargrave, 10 Vesey, 505.</p> <p>4. The lots were sold under the authority and by the direction of Silas Moore, an auctioneer of the town of Cranston. An auctioneer may employ another tq sell under his control. Commonwealth v. Hamden, 19 Pick. 482.</p> <p>5. In a mortgagee’s sale, inadequacy of consideration is not enough to reopen it. Tripp v. Cook, 24 Wendell, 143; Osgood v. Frcmklin, 14 Johns. 527; 1 Madd. Chan. 98; Select Chan. Cas. 7; 10 Vesey, 292; 2 Atk. 251; 2 Bro. Ch. Cases, 179. Besides, it was upon the evidence an average sale for a mortgagee’s sale.</p> <p>6. The respondent is a bond fide purchaser, who has as high a claim to assistance as any other person can have. 1 Story’s Equity, § 108. If the equities are equal, a court of equity is silent and passive. Story’s Equity, § 176.</p>

Complaint and warrant against the defendant, charging, that at North Providence, on the first day of August, 1859, by loud shouting and obseene language in a street of said town, to wit: the street leading by the Treadwell farm, so called, and other public places in said town, he annoyed the peaceable inhabitants of said town, and the passengers in said street, against an ordinance of said town, in such case made and provided, and against the peace, &c. This, and several…

<p>A devise of a farm to B. B. T. “in special trust and confidence for my son H. T., and after him, in fee to his heirs; ” with an order to the trustee to pay to H. T. the annual rent of the farm, “ and in the event of his decease without issue,” the farm to “ revert equally to all the other surviving children of the testatrix,” gives to H. T. an equitable estatq for life, and to his heirs of the body a legal remainder in fee; the rule in Shelley’s case not applying on account of the different qualities of the two estates..</p> <p>In such case the necessary repairs of the buildings upon the farm are a charge upon the estate of II. T. the life-tenant, during its continuance; and the trustee is justified in applying, from time to time, such portion of the rent as may be necessary to make such repairs. The trustee has, however, no power to sell the interest of the life-tenant in any portion of the farm, to make such repairs, nor will a court of equity authorize him to do so; the life-tenant being sui juris, and there being no restraint upon his alienation of his estate.</p> <p>A court of equity has no jurisdiction, in such case, upon the application of the trustee of H. T. to authorize him to sell for such repairs th,e interest of the minor children of H. T. in any portion of the farm; the trust not extending to their estate, and the modern doctrine being, even in case of a trust for an infant, that where no duty or charge is incumbent upon the inheritance of an infant, the court has no power to authorize it to be sold by the trustee merely upon the ground of some benefit which may accrue to the infant tlierefrom.</p> <p>In Rhode Island, by Rev. Stats, ch. 161, sect. 10, the power to authorize the sale of the real estate of infants, for any proper purpose, is conferred upon the courts of probate; and in cases within the spirit, though not within the letter of the statute, and in similar cases, the General Assembly is constitutionally competent to give to guardians and trustees special authority to sell the real estate of their wards and cestuis for proper purposes; this being the exercise of a legislative and not of a judicial power.</p>

Assumpsit to recover the amount of a promissory note for $2,000, made by Zachariah Allen, and dated on the 7th day of August, 1858, payable… Held: for value, three notes, including the note in suit, for $2,000 each, made by Zachariah Allen; one indorsed by the defendant, and the other two indorsed by Philip Allen & Sons, — a firm which had failed about a year before; that the maker, Zachariah Allen, having stopped payment, and being about to make a voluntary assignment, in…

Bill in equity by the assignees of Zachariah Allen for instructions in the administration of a trust for creditors, created by a general deed of assignment.

Bill in equity by the remainder-men of a small estate, in Smithfield, late the homestead of William Hutchinson, to set aside, as unauthorized and void, a conveyance of the same in fee to the defendant, by a life-tenant, under a power of sale contained in the will of said William.

Bill in equity by an assignee of an insolvent debtor under a voluntary assignment, to enjoin the sale of a portion of the xssigned property under an execution… Held: that the assignment was void because of the discretionary clause. The court say, “ The fact stated in the answer, that the assignees have ascertained that the assigned property will not be sufficient to pay the creditors whom the assignor has himself preferred, cannot change the character of the assignment.

<p>If a plea, justifying a libel wliich contains distinct things, may justify a part only, it will, at all events, be bad on general demurrer, if where the libellous matter be all charged in one count, it do not deny or justify the whole libellous matter so charged, or do not justify all the charges in the libellous matter which it professes to cover.</p>

This was a bill in equity to redeem three lots of land in North Providence, near the village of Pawtucket, which had been sold by the collector of North Providence for non-payment of taxes assessed thereon against one Hugh Maxwell, under ' whom the complainant claimed to derive title; the defendant, Dodge, being the purchaser of the lots at the collector’s sale, and the defendant, Brown, a grantee of the same from Dodge.

Bill in equity to enjoin the defendants from quarrying limestone upon their farm in Smithfield, commonly known as the Christopher Dexter farm, and for an account of the limestone already by them quarried there; the bill claiming that the complainants are the exclusive owners of the Dexter Ledge of Lime-Rock, so called, extending under said farm.

This was an action of assumpsit, brought by the town of Hopkinton against the defendant, as town treasurer of the town of West Greenwich, to recover a sum of money paid by Hopkinton for the support, in the Butler Hospital for the Insane, of Andrew Jackson Briggs, alias Nichols, a lunatic, upon the ground that the said Andrew was a pauper, settled in and chargeable to the town of West Greenwich.

Bill in equity to enforce the specific performances of a contract for the purchase of the westerly half of the “ Noyes Neck Farm,” so called, in Westerly.

<p>Bill in equity to reform, on account of a mistake in the draughting, two deeds of a tract of land, containing about thirty acres, situated at Quidnesit, in North Kingston, on the shore of Narraganset Bay; the one of said deeds having been executed by the complainant to his son, Collins Allen, and the other by said Collins to Edmund A. Brown, both of whom were made defendants to the bill.</p> <p>On the 15th day of June, 1854, the complainant being the owner of a farm of about one hundred and fifty acres of la'nd, lying at said Quidnesit, in consideration, as stated in the deed, of $400, conveyed with warranty to his son Collins, thirty acres at the east end of said farm, bounded northerly by the land of the widow and heirs of Thomas Eldred, southerly and easterly on the Narraganset Bay, and westerly by a creek and ditch, and a line running thence northerly to a stake and stones on the Eldred line, which bounds and line separated it from the remaining land of the grantor. The following is a rough sketch of the premises conveyed: —</p> <p> </p> <p>Immediately succeeding the description of the land granted, the deed contained this clause : “ And 1, Waterman Allen, the grantor, convey to the grantee, Collins Allen, one third pcurl or distance of my shore privilege, beginning at the north-east corner, it being the east end of the Eldred line, and running southerly on the east beach; each pa/rty has a right to pass and repass to each other's land, to and from theirs.”</p> <p>On the 29th day of December, 1855, Collins Allen, for the nominal consideration of $2000, but really in exchange for the Shaw farm in Exeter of about one hundred and seventy-five acres, belonging to Brown, the defendant, and by him conveyed at the same time to said Collins, conveyed the above tract of thirty acres to Brown, by the same description of the land, seaweed privilege, and right to pass and repass, as contained in his deed from his father, to which he refers, and with this additional clause : —</p> <p>“ And Waterman Allen is to have the privilege of tipping up sea-weed on the beach on the Point.”</p> <p>The bill, which was filed on the 19th day of November, 1857, charged, in substance, that the real contract of the complainant with his son, Collins, and, subsequently, of the latter with Brown, and which the two deeds were intended by the parties to carry out, was, that the complainant should reserve two thirds of the sea-weed privilege, in distance, on the shore of the tract of land conveyed, and should convey only one third of that privilege, in distance, bn that shore; — beginning to measure off the distance for which the privilege was conveyed, at the north-east corner of the tract conveyed, being the east end of the Eldred line, — and going southerly and terminating, as it should measure, on the east beach of the tract; that such were the instructions given to one Harris Smith, the draughtsman employed to draw the first-named deed, who, as well as the parties, supposed that he had accomplished this purpose of the parties by the above description of what was granted; that the complainant is unable to read, but was informed and believed that such was the import of the deed, and that his son Collins received his conveyance, and Brown his, and occupied under them, according to this construction; that in June, 1856, the complainant and Brown employed a surveyor to measure off and bound Brown’s sea-weed privilege on the east shore of the tract granted, which he did to the satisfaction of both parties; that they both occupied up to this bound until some time in the fall of 1856, Brown purchasing from the complainant seaweed taken from that part of the shore bounded out to the complainant, but now claimed by Brown, when some one apprised Brown of his right to claim the sea-weed privilege of the whole shore of the tract granted, under his deed, when he commenced an action of trespass' against the complainant for carting sea-weed from that- portion of the shore of said tract, which was designed to be reserved to the complainant.</p> <p>The bill prayed for a reformation of the above deeds according to the contracts of the parties, for an injunction against the suit at law, and for general relief.</p> <p>Pending the bill, on the 13th day of October, 1858, Brown conveyed the tract for the nominal consideration of $1600, to one Alfred Dawley, not made a party to the bill.</p> <p>The answer of the defendant Collins Allen, admitted, in general, the facts stated in the bill.</p> <p>The original answer of the defendant Edmund A. Brown, denies all knowledge of the contract between Waterman and Collins Allen at the time of the conveyance by the former to the latter — but admits the exchange of farms between the said Collins and himself — averring that the farm given by him in exchange contained from 161 to 175 acres of land, some of which was very good, with a dwelling-house, and a new barn costing about $300, and other improvements thereon — all of "the value of between $2000 and $2500; that thirty acres of said farm, with the buildings, are worth as much as the land and buildings and sea-weed right admitted by the complainant to have been conveyed in exchange for the whole farm of the defendant — the land and buildings and right aforesaid not being worth more than from six to eight hundred dollars, — and that said Waterman and Collins Allen have often boasted since the trade that they had cheated the defendant out of from $1000 to $1500. The answer further alleges, that the natural capacity of the defendant is weak, and that in his best estate he is illy fit to cope with ordinary business men, and especially with one, who, although unable to read, is as sharp and shrewd in matters of trade as the complainant; that at the time of the said exchange of farms, the defendant was in an unusual state of excitement, debility, and weakness, which entirely unfitted him for attention to such matters, and that said Waterman and Collins took advantage of his said incapacity and excitement to overreach him in said exchange; that said Waterman and Collins had the deed of said Collins to him in their possession two or three days, after it was written and before it was executed, for the purpose of examining and understanding the same; that when said deed was originally drawn, the clause as to Waterman Allen was not in it, but was put there after it was executed; the defendant at the time objecting, and reluctantly letting it pass upon the assurance of the complainant and said Collins that there was sea-weed enough, annually, on said farm for its use, and enough more to sell fifty to seventy-five dollars worth; that the defendant never was on the farm conveyed to him by said Collins until some time in the evening of the day preceding that in the forepart of which the trade was made, and that both the complainant and said Collins then frequently told the defendant that there was then on the land about two hundred and fifty loads of sea-weed, and as often assured him that there was annually thrown upon the shore — said by them now to belong to the defendant— enough sea-weed to manure said farm fully, and also enough more for sale to bring him in from fifty to seventy-five dollars per year, and that said farm contained forty acres of land ; that the soil of said farm is poor and sandy, and without sufficient sea-weed is'worth but a trifle; that the defendant took said land and made said bargain, upon the full reliance that said representations were true; that afterwards, but not till long afterwards, he learned from observation and from those who knew the shore and the sea-weed thrown up there, that so far from these representations being true, he was constrained to believe that the complainant and said Collins knew them to be untrue at the time that they made them ; and that, according to his best knowledge and information and belief, there has not been annually, and is not thrown upon said shore more than fifteen cart-loads of sea-weed' and eel-grass, and that said farm does not contain more than about twenty-five acres ; that Harris Smith came to his .farm one day and told him that he had come to survey the shore at the request of the complainant, and he reluctantly attended to the same, whereupon said Smith -did survey the whole shore, and then measured off one third of if, and made a mark on a post on the same; that said Smith at the same time surveyed the westerly line of the farm, but whether to the correct boundaries the defendant cannot tell; though the plaintiffs afterwards admitted that they had run the line upon the defendant, and yet afterwards moved the fence farther east so as to include more of his land; but the defendant admits that he did pay said Smith one half of his account for surveying, though he did not intend thereby to admit the correctness of his surveys; that he did not say to said Smith what he had bought, nor that he had got more than he thought that he should get; that often since the survey the defendant did go southerly of said post and take sea-weed, and that he often told persons that said survey was not right, and that he thought that . he ought to have and could hold the entire beach; that wanting at one time a little sea-weed with which to finish his planting, he bought of the complainant one dollar’s worth, believing that in justice and equity it belonged to him; that the defendant had ascertained that the complainant and said Collins had greatly cheated him, and feared that he and they would get into a dispute and perhaps into the law, and he desired to sell out and get clear of them, and with this view he advertised said farm and all said shore for sale, but did not sell the same ; that the defendant -believes that the said Collins Allen, under his deed'from his father, used to take, sell, and carry away sea-weed from the southerly shore of said farm; that it was talked that the defendant was to have the northerly third of said shore, but it was also talked by the complainant and said Collins that the defendant . would have sea-weed enough for all the uses of said farm, and enough more to sell -annually, to bring him the annual sum of from fifty to one hundred dollars, and that the defendant relied on their said statements, and believed that he was to have and receive that amount and quantity from said shore annually; and-the defendant avers that his naturally weak mind was so impaired and excited at that time that he does not believe that he had clear understanding of all that he was doing, nor of the consequences and effects of the same; that he did point out to Samuel Spink, and state to Marchant Weeden, Charles T. Hunt, and perhaps to others, the bound set up by Harris Smith, and at the time told them that he was not satisfied with the same; repeating to them what the complainant and said Collins had told him', as to the quantity and value of sea-weed he should have, as before stated; and the defendant may have pointed out or referred to said bound, and have said that he did not own but one third of the shore, though he does not now recollect it; that no one told him about holding the whole of said shore, but that recollecting what had been told him about the quantity of sea-weed, for a long time he could not tell whether said representations were true or false ; that he learned from others and from his own observation that they were false, and that he had been greatly cheated and his incapacity taken advantage of; and that in justice and equity he ought to have from said shore said representations made good, and that this he claimed from his own sense of what was just, and not upon the suggestion of any one else ; that when his deed was examined he was informed that such was the fair construction of the deed ; that he has no recollection of ever asking permission to take sea-weed from the southerly portion of the shore of said farm, or of referring others to the complainant who came to the defendant to buy sea-weed from the same, but avers that he has forbidden the complainant from taking sea-weed from the southerly and easterly parts of the shores of said farm, and has commenced an action against him for taking sea-weed therefrom, which has been sustained. That the complainant has no right to call on the defendant to deliver up for cancellation or reformation a deed to which he was not a party; and the defendant would be glad to have, and now offers to have, both the deeds from him to said Collins, and from said Collins to him cancelled, and each restored to their respective estates as before said exchange.</p> <p>In his amended answer the defendant, Brown, wholly denies the contract as set up in the bill, and avers that it was, that he should have not only the sea-weed coming upon the shores of the farm in question, but also have for sea-weed one third of Waterman Allen’s remaining shore, and of the creek, and that he drew the deed from Collins Allen to himself, supposing that it would convey such a shore privilege; that the defendant was dissatisfied with Harris Smith’s survey, and expressed his dis- - satisfaction to the complainant and his son, who assured the defendant that he had the best sea-weed privilege on the whole shore, and that he would have hundreds of loads of sea-weed come up on the north shore which they had set off to him; that the survey of Smith was a trick got up by the complainant and his son to destroy the value of the estate conveyed to the defendant for a valuable consideration, after the conveyance ; that by the deed of Collins Allen to the defendant, the defendant had the right to go from his shore, west of the creek, and on one third of Waterman Allen’s shore, and pass upon said Waterman’s beach, and upon the cart-path or drift-way, by said Waterman’s barn to the country road; and that the right of tipping sea-weed upon the defendant’s point, reserved to Waterman Allen in the defendant’s deed from Collins Allen, was inserted in said deed merely because, from the greater boldness of the water there, the sea-weed obtained by said Waterman from his own shore could more easily be taken from that place for sale ; that this was the purpose of the reservation as understood by the- defendant, and, as he believes, both by Waterman and Collins; that Collins Allen under his deed from Waterman occupied the whole of the east and south shores of the farm up to the creek, and one third of said Waterman’s shore west of it, and drew and sold sea-weed from it; that before the survey by Smith, the defendant at different times, without objection from said Waterman, took sea-weed from the whole shore of said farm; that at the time of the making of the deed to this defendant both the said Waterman and Collins represented that all the sea-weed in the farm-yard, of which there was a large quantity, was drawn from the shore of said Collins, and that, in addition, he had sold a large quanti* ty to the people of Bristol and others who came and carried it away ; that said Collins stated that he had let the south shore from Quonset Point to the creek, to John Gladding and William H. Reynolds, for eight months, at fifty dollars; and that the defendant believes said Waterman was present at this statement; that both father and son represented to the defendant that he could plant the whole farm, and. cover it all over with sea-weed, and might thus raise one thousand bushels of potatoes in a year, besides having sea-weed for sale. The amended answer also sets up the defendant’s conveyance of the farm to Alfred Dawley, on or about the 13th day of October, 1858, and the negotiation preceding the execution of said deed, and the consideration paid by Dawley to the defendant for the same.</p> <p>To these answers, the general replication having been filed, proof was taken on both sides; that of the complainant, to prove the original contract between Collins Allen and himself, and between the former and the defendant Brown, consisting, principally, of the testimony of Harris Smith, who, as scrivener, drew the deed from the complainant to his son, and who testified that he was instructed to convey only the sea-weed privilege of the north third of the shores of the farm, the remaining two thirds thereof to be reserved to the grantor, and supposed that, by the language he employed, he had carried out his instructions. This witness also swore that in May, 1856, at the request of both Waterman Allen and Brown, he measured off the latter’s sea-weed privilege on the east shore of the farm, and put up a bound at the southern terminus of said privilege under the directions, and to the satisfaction of both parties. The complainant also produced several witnesses to admissions of the defendant Brown, that the original contract was as set forth in the bill, and that Brown had, on different occasions, pointed out the bound set by Smith, as the limit of his seaweed privilege ; and that, for the first season of his occupation of the farm, he had taken sea-weed only from the third part of the shore bounded out to him, which was to be taken in connection with the admission in his answer that he had on one occasion bought of the complainant sea-weed from other parts of the shores of the farm.</p> <p>Besides replying to this evidence, by attempting to impeach the character of Harris Smith for truth and veracity, with regard to which several witnesses were sworn and deposed on both sides, and showing that Collins Allen, during his occupation of the farm, after the deed of his father, carted sea-weed .from the south as well as from the east shore of the farm, and let the south shore from the. 12th day of May to the 12th day of December, 1854, to Gladding and Reynolds, as averred in the answer, and that he himself had at sundry times made claims inconsistent with the notion that he understood his sea-weed privilege to be limited as set forth in the bill, the defendant to maintain the defence taken by him, that the exchange of farms was procured from him, whilst in a weak and excited state, by the fraudulent misrepresentations of the complainant and his son as to the productiveness and value of the sea-weed privilege of the farm taken by him, produced several witnesses. Five witnesses were produced and sworn on the part of the defendant: three of them his sisters, and one of them, Mr. John J. Reynolds, with whom the defendant had lived at different times during the last eight or ten years as an assistant in his shop in North Kingston, who testified to his nervous and excited condition at the time of the exchange, and, .generally, to his . unfitness on this account to conduct such business. Their testimony, in this respect, was confirmed by that of Nicholas Dawley, Brown’s brother-in-law, a witness produced for another purpose by the complainant. Four witnesses swore to the representations of the complainant to the defendant Brown, as to the productiveness and value of the sea-weed privilege attached to the farm; one of whom was the complainant’s witness, Dawley; and several witnesses also testified as to the falsity of those representations, and some to the complainant’s statements indicative of his knowledge of their falsity at the time that he made them. The defendant also produced the depositions of several witnesses as to the relative value of the farm received by him in exchange, with that of the Shaw farm, given by him in exchange, with and without the sea-weed privilege of the whole shores, and upon this point also the complainant produced some testimony.</p> <p>The productiveness, in sea-weed, of that portion of the east shore set off to the defendant, during the two years (1857 and 1858) when he occupied it, was sworn by the witness Covil, to be about twelve cart-loads; the principal portion of the seaweed coming up on the south shore of the farm, and admissions of the complainant were proved confirmatory of this. A grandson of the complainant testified that both shores of the farm produced from three hundred to one thousand cart-loads annually ; and that he had seen one hundred to one hundred and fifty loads on the north shore at different times, in past years. Another witness of the complainant’s swore, that seven or eight years before he saw one hundred loads upon the northerly portion of the east shore, after a storm, but that he had never known so much there before or since. The complainant’s witnesses did not speak to the annual productiveness of the east shore ; but the testimony produced by the defendant was, that it was small and quite insufficient to manure the defendant’s farm; and Dawley, the brother-in-law of the defendant,— but produced as a witness by the complainant, and who lived upon the place a year with Brown, — swore, that the sea-weed produced by both shores of the farm was about equal to what the complainant represented the third set off to Brown would produce.</p> <p>The case was submitted to the court, in vacation, upon written arguments, which turned altogether upon the evidence.</p>

<p>In opening a new highway or amending an old one, the town-sergeant or surveyor may, under the law, remove growing trees or brushwood from the space apprópriated to the highway, but has no right, as included within the original assessment of damages, or the easement of the public, to use such trees or brushwood in the building or amendment of the roadway; and if he does so use them, he becomes a trespasser.</p>

Trespass and ejectment, to recover six undivided eighth parts of a farm in Portsmouth, of which Samuel W. Chace, late of said Portsmouth, died seised. Held: that the Massachusetts decisions were not applicable to it, nor a decision of their own court, under a former act of New Hampshire. See Gage v. Gage, 9 Foster, 533. 6th.

Ejectment by the plaintiffs, as heirs at law of Ebenezer Smith, late of Barrington, to recover one undivided sixth part of two tracts of land in said Barrington, of which the said Ebenezer died seised, intestate.

<p>Upon an application to a fence-viewer of a town, under the 8th section of chap. 91, of the Revised Statutes, to settle a controversy about the rights of occupants of land in partition fences, and their obligation to maintain the same, all that the fence-viewer can do is, after due notice, to determine the rights of the respective parties, by assigning to each' his share of the fence, and to direct the time within which each shall erect or repair the same; and he cannot, upon such application and notice, proceed to mulct either party for neglecting or refusing to obey his order.</p> <p>To warrant the proceedings under the 5th section of the same statute, it is necessary that there should be a complaint to the fence-viewer of the neglect or refusal by an occupant to rebuild or repair his share of a partition fence, and a determination by the fence-viewer, after due notice to the party complained against, that the complaint is true, and an assignment of a time within which the neglecting party may perform his duty; and although no notice is, in terms, required by the statute to be given to the delinquent occupant, when, under the provisions of the 6th section, the fence-viewer proceeds to ■ ascertain the cost to the complainant of rebuilding or repairing the fence, yet such notice is required by the principles of natural justice, and the judgment and certificate of the fence-viewer will be void without it.</p>

<p>Upon a petition for the removal of a canse from a state court to a court of the United States, the former has no discretion to refuse one entitled to the jurisdiction invoked; but a judicial discretion merely to decide and declare whether the petitioner is thus entitled.</p> <p>A party plaintiff, who although not indispensable to the maintenance of a bill in equity, is nevertheless entitled upon the face of the bill to a decree, cannot, for the purpose of removal, be regarded as no party to the bill; the criterion of a mere nominal party, for such purpose, being, whether the party is entitled or subject to a decree; and therefore, where such a party was co-plaintiff with others, but not, like them, a citizen of the state in whose court the suit was brought, his presence was held fatal to a petition by the defendants for the removal of the cause into a circuit court of the United States, although, but for this objection, they would have been entitled to remove it.</p>

On the trial of the appeal before Mr. Justice Shearman with a jury, at the December term of the court of common pleas for the county of Providence, 1859, it appeared, that the appeal was jointly taken by Simeon E. Thornton, as guardian of the persons and estates of Almira W. Thornton, Charles T. Thornton, and--Thornton, minor heirs of Jesse S. Thornton, late of North Providence, as owners of certain lands in North Providence, and by Simeon E. Adams and William T. Adams,…

Demurrer to a declaration in case, for fraudulently imitating the plaintiff’s trade-mark. The declaration was as follows : — “ Providence Sc.

Petition for the removal of a bill in equity from this court to the circuit court of the United States for the Rhode Island District. It appeared, that at the December term of the court of common pleas for the county of Providence, 1858, the petitioner, who is a citizen of the State of Massachusetts, obtained a judgment against Zachariah Allen, for the sum of $3290.04, debt, and costs of suit, taxed at $5.70.

Trespass and ejectment to recover possession of a farm in Seituate. The case was submitted to the court, under the general issue, in law and fact, and was as follows: — The plaintiff claimed title to the farm, mediately, under Josiah W. Battey, and that the said Josiah was entitled to the same as heir at law of his daughter, Mary E. Chaping, afterwards, by marriage, Mary E. Steer, who died without issue, before her said father.

<p>An assignment in trust for the benefit of creditors, made in New York between citizens thereof, is held in that state to transfer to the assignee a debt due to the assignor in another state, without notice of the assignment to the debtor, provided the debtor be not prejudiced by want of notice; and hence, such an assignment, when prior in time to an attachment by foreign process of the assigned debt here, will defeat the attachment, especially when made by a citizen of New York, though the debtor had no notice of the assignment at the time he was served, provided, always, that he be not prejudiced by the want of notice.</p>

The action was debt, for an escape upon a bond for the liberty of the jail-yard in the county of Providence, in which the issue in substance made by the pleadings was, whether the principal defendant, John A. Allen, had, according to the requirement of ch. 197, sec. 4, of the Revised Statutes, and the condition of his bond, made an assignment of all his property for the benefit of his creditors, within thirty days of his commitment; he not having returned to close jail,…

<p>A state court has no power to enjoin proceedings in a court of the United States; especially in a suit at law for damages for the infringement of a patent, so expressly, if not exclusively, confided by law to the federal courts.</p> <p>If it had such power, it would be no ground for equitable interference, when the defences relied upon in equity are equally available at law, that parties, who were not at the time of trial examinable as witnesses, have since been made so, in the state courts, by statute.</p> <p>A circuit court of the United States has, irrespective of the citizenship of the parties, power to entertain a bill for discovery in aid of the defences to a suit for the infringement of a patent, as ancillary to such suit, if not by the express authority of the 17th section of the act of congress, passed July i, 1836, entitled “ An act to promote the useful arts, &c.”</p>

Ejectment to recover an undivided ninth part of a tract of land in Richmond, Washington county, known as the Reynolds Hoxsie farm. The case was submitted to the court in fact and law, under the general issue.

This was an action on the case, brought by the plaintiff as collector of taxes in the town of Fall River, Rhode Island, to recover a town tax assessed against the defendants, a Massachusetts manufacturing corporation, who, in the year 1858, were lessees by parol of the Bay State Print Wofks, a calico printing establishment in said town.

This was an action of waste, brought under the second section of chapter 204 of the Revised Statutes, by the plaintiffs, Seth W. Wells and wife, in right of the wife, whose maiden name was Henrietta Matilda Carpenter, and claiming that the said Henrietta was a tenant in common with the defendant in the place wasted.

<p>Trover for the conversion by the defendant of a large quantity of copper whiskey and brandy in barrels, the property of the plaintiffs.</p> <p>The case was tried at the September term of this court, 1859, before the chief justice, with a jury, under the general issue, and at the trial it appeared, that the liquors, which were the subject of the action, were bought at Baltimore, in Maryland, by the defendant of the plaintiffs, who were produce-dealers in that city, on credit, in three several parcels, on the 7th day of August and on the 17th and 30th days of September, 1858; payment to be secured by drafts drawn by the defendant upon one Philip K. Holbrook, of Boston, at four months, and by him accepted; that the credit was induced by false and fraudulent representations of the ability of the defendant and Holbrook to pay the drafts given to secure'it; the defendant, who resided in Smithfield, Rhode Island, though doing business in Baltimore, being grossly insolvent, and Holbrook, whom he represented as worth from thirty to forty thousand dollars, being wholly destitute of property, — his household furniture having been mortgaged by him beyond its value, for five hundred dollars, to secure small loans of from ten to twenty-five dollars, from time to time made to him by the mortgagee. To prove the fraudulent design with which the above false representations were made to them by the defendant, the plaintiffs offered evidence of similar false representations made by the defendant in Baltimore, at or about the same time, to other dealers there for the purpose of giving credit to similar drafts and procuring credit upon the faith of them, without offering to prove that the plaintiffs, at the time they gave credit to the defendant, had any knowledge of such representations. The defendant objected to this proof; but the presiding judge, notwithstanding the objection, admitted the proof for the purpose for which it was offered, whereupon the defendant excepted. It further appeared, that the goods purchased by the defendant on the 7th day of August, 1858, amounting in all to f1,396.94, were purchased partly by another person, one Silsbury, who accompanied the defendant at the time of the purchase, and that the defendant then stated to the plaintiffs “ that Mr. Silsbury wished to ship with him, and that by buying so much, the plaintiffs would probably make the price less ; ” that “ Silsbury would settle for his part, and the defendant for his part; ” that thereupon Silsbury said to the plaintiffs, that “ he had not quite cash enough,” and offered to the plaintiffs, to make up the balance for his part, the note of one Franciscus, for the sum of $275; that the plaintiffs hesitated to take the note, and the defendant said that “ he was prepared to settle his part, as soon as the plaintiffs had agreed with Silsbury, and that he had nothing to do with Silsbury’s bargain;” that the plaintiffs, after inquiring about the note of Franciscus, agreed to take it, when the defendant said “that the plaintiffs could make out the bill to him, and that he would settle with them for the whole, and would settle with Silsbury.” The plaintiffs, accordingly, made out the bill for the whole purchase against the defendant, the goods being charged upon the plaintiffs’ books against him, and in the settlement of the bill, the defendant gave to the plaintiffs the Franciscus note, as agreed, for $275, and $330.51 in cash, covering Silsbury’s part of the purchase, and for his own part of it, two drafts upon Holbrook, one for $352.23, and the other, for $439.20. The plaintiffs claimed damages, and the verdict was for, only one half of the goods embraced in this purchase. The goods purchased on the 17th and 30th days of September, 1858, were settled for by the defendant wholly by drafts drawn by him on Holbrook, and accepted by the latter. It further appeared, that Holbrook and the defendant were, at'the time the action was brought, without any visible property, and insolvent, and that the drafts given for the goods purchased of the plaintiffs were returned upon the plaintiffs protested, and were now brought into court to be impounded for the defendant’s use.</p> <p>In this state of the proof, the defendant called upon the presiding judge to instruct the jury, that the plaintiffs could not maintain the action, without restoring or offering to restore to the defendant, before bringing it, the money and note given to them in settlement of the bill of August 7,1858, and the drafts upon Holbrook received by them in part settlement of that purchase, and in settlement of the purchases of September 17th and 30th of the same year. The judge refused this instruction, but ruled pro formé, and for the purposes of this trial instructed the jury, that if they were satisfied, from the proof, that the goods, for which damages are claimed by the plaintiffs, had been obtained from them by the false and fraudulent representations of the defendant, they might maintain this action against, him therefor, without restoring or offering to restore, previous to the commencement of the action, the said money, note, or drafts, or either of them; and, so far as the goods purchased on the 7th day of August, 1858, were concerned, could maintain their action for the value of one half thereof without restoring or offering to restore to the defendant, at any time, the note and money received by the plaintiffs for the other half of said goods.</p> <p>Under these instructions, the jury having returned a verdict for the plaintiffs for their damages, assessed at $1,396.25, the defendant now moved for a new trial, for errors of law in the above instructions, and in the admission of the evidence of other fraudulent representations than those made to the defendant.</p> <p>The motion was argued upon briefs, which were not handed to the court until this term.</p> <p>abandoned the ground of the motion founded upon the admission of evidence of other false and fraudulent representations, for the purpose specified, than those made to the plaintiffs, as settled by authority; but contended that the presiding judge erred in instructing the jury, that the plaintiffs could maintain this action, which proceeded upon the idea of a rescission of the contracts of sale, without restoring, or offering to restore, before commencing the action, the money, drafts, and note received from the defendant, or without at any time restoring, or offering to restore, the money and note. 2 Parsons on Contracts, 277; Kimball v. Cunningham, 4 Mass. 502; Conner v. Henderson, 15 lb. 319; Miner v. Bradley, 22 Pick. 457; Thayer v. Turner, 8 Met. 550; Martin v. Roberts, 5 Cush. 126; Cook v. Gilman, 34 N. H. 560; Ketletas v. Fleet, 7 Johns. 324; Voorhees v. Earl, 2 Hill, 288 ; Masson v. Bovet, 1 Denio, 29 ; Hunt v. Silk, 5 East, 449.</p> <p>To the admissibility of other similar false and fraudulent representations, made at or about the time of those made to the plaintiffs, for the purpose of proving the design of the latter, cited 1 Starkie on Ev. 15,18,19, 352, 465; 1 Phillips on Ev. 116-139, n., 333, 352, 452, n., 465 ; 1 Greenl. on Ev. § 53, p. 74, and cases cited; Roioley et al. v. Bigelow et al. 12 Pick. 307 ; Gardner v. Preston, 2 Day, 205; Allison v. Mattieu, 3 Johns. 235 ; Beaver v. Dingley, 4 Greenl. 230 ; McKinney v. Dingley, lb. 306; Cary et al. v. Hotailing et al. 1 Hill, 311; Hall v. Naylor, 4 Smith, Court of Appeals, 588.</p> <p>To the point that the restoration, or offer to restore the drafts, before the action, or the note and cash at any time, in trover for goods obtained by a fraudulent purchase, was unnecessary, he cited Ladd v. Moore, 3 Sandf. Sup. Ct. R. 589 ; 2 Parsons on Contracts, 277; Frost v. Lowry, 15 Ohio, 200; Pierce v. Wood, 3 Foster, 520; Martin v. Roberts, 5 Cush. 126 ; Levens v. Awstin, 1 Met. 557; Poor v. Woodburn, 25 Verm. 234.</p>

Bill in equity by the complainant, as the owner of two pews in the Power Street Methodist Episcopal Church in Providence, to restrain the trustees of said church from selling said pews for the non-payment of a tax assessed by them thereon.

<p>This was an appeal from the sentence of a justice of the peace, upon a warrant for an assault and battery upon one Clorinda Moffett, issued upon the complaint of her husband. "At the trial of the appeal before Mr. Justice Shearman with a jury, at the December term of the court of common pleas for the county of Providence, 1859, the prosecutor, to maintain his complaint, called his wife as á witness; whereupon it was objected, that she was incompetent to support the complaint of her husband, on account of his liability for costs in case of his failing to make good his complaint. The court admitted her to testify, notwithstanding the objection; and the defendant, being convicted, brought his exception to the ruling, to this court, for review.</p> <p>cited 1 Greenleaf’s Ev. • § 334; Gilbert’s Ev. 133, 134; Bac. Abr. Evidence, A. 1; 2 Hawkins’s P. C. ch. 46, §§ 70, 71; Ed- ' wards v. Pitts, 3 Strobh. 140 ; Pyle v. Moulding, 7 J. J. Marsh. 202; Fitch v. Hill, 11 Mass. 286; City Bank v. Bangs, 3 Paige, 36.</p> <p>cited Littlefield v. Rice, 10 Met. 287 ; Stanton v. Wilson, 3 Day, 37; Pedley v.. Wellesley, 3 Car. & P. 558 ; Baring v. Reeder, 2 Hen. & Munf. 154, 168; Griffin v. Brown, 2 Pick. 308; 2 Stark. Ev. (4th Amer. ed.) 708, 709; 1 Greenl. Ev-. § 334.</p>

Indictment against the town of Cumberland, for not keeping in repair a highway within the limits of said town.

<p>An agreement to pay money, procured by the plaintiff from those preferred in a will by concealing, after the death of the testator and before probate, the place of its deposit, and by threatening to destroy it, is illegal and void; and finds no support in the fact, that the testator himself placed it in the hands of the plaintiff’s son, and under the plaintiff’s sole control, with full authority to the latter to use it for such extortion.</p>

<p>He who indorses a note payable to another at the.-time it is made, is to the payee, a joint and several promisor with the maker; and as such, although but a surety as between himself and the maker, all promises and part payments made by the maker equally affect his liability under the statute of limitations, as if made b'y himself.</p>

This was an amicable bill, filed by the trustees of the will of the late Hezekiab Willard, of Cranston, to obtain a construe. tion of said will, and for direction as to their duties under the same.

<p>Exceptions to the report of a master, appointed, under the provisions of ch. 164, sect. 17 of the Revised Statutes, for the settlement of the accounts of an assignee under a voluntary assignment, removed by order of court.</p> <p>Amongst other exceptions to the report, one taken was, in substance, that the master had exceeded his jurisdiction, by finding that the inventory produced to him by the assignee of the goods assigned, and which was provided for in the assignment, was not that originally taken, but that many valuable goods set down in the latter were omitted in the former; and had held the assignee to account upon the basis of that originally taken, as he found its amount to be, upon,the proof. The ground for the exception was stated to be, that this was substantially a finding that the assignee had committed a fraud ; whereas, according to the course of equity in this state, this could only be done upon a bill filed, in the trial of which the assignee might have the benefit of his answer, and if he so elected, all might also have questions of fact found by a jury.</p>

<p>What a town or city has paid neighboring proprietors as damages for their land taken and injured by the laying through it of a street, and in compromise of their claims for such damages pending an appeal, cannot be given in evidence to prove the damages of another like claimant and appellant.</p> <p>The competency of a person to give his opinion under oath as an expert, so that upon the preliminary examination he appears to have any pretensions to speak as such, rests very much in the discretion of the judge trying the cause.</p> <p>Considerations proper to be taken into account by a jury in estimating the damages of one, part of whose land has been taken for a street under the act of January session, 1864, entitled, “An act in relation to the laying out, enlarging, straightening, or otherwise altering streets in the city of Providence.”</p>

<p>Where the directors of a mutual fire insurance company are empowered by charter “ to determine the sum to be insured upon any building, provided it do not exceed three fourths of the value thereof,” but are, by the general powers vested in them, to determine the value of the building, the company, when sued for a loss under a policy, is estopped from objecting that the sum insured by the directors exceeded the prescribed limit of value; there having been no fraud or misrepresentation as to value on the part of the insured.</p> <p>A plea alleging such excess of insurance over value in full answer to a count upon the policy, is bad upon demurrer, inasmuch as it goes-only to such excess, — and thus sets up but a partial defence to the count.</p> <p>A fire policy taken out from a mutual company by a mortgagor of a house upon his interest in it, though assigned with the assent of the company to the mortgagee, is avoided by a quitclaim deed by the mortgagor of all his interest in the land to the mortgagee, executed after the assignment and before the loss, the policy never having been ratified and confirmed by the company — and the charter providing, that upon alienation of a house insured “by sale or otherwise,” the policy shall be ipso facto void, unless ratified and confirmed to the alienee.</p> <p>Such policy too, upon a house described therein as “occupied for a dwelling-house,” “ the basement being of stone and wood,” becomes void in the hands of the mortgagee by the use and occupation of the basement of the house, after the assignment and before the loss, as a joiner’s shop, although such change of use was unknown to the mortgagee; the charter expressly providing, that “ no policy shall extend or be construed to extend” to such and other specified risks, “unless the same are expressly mentioned in the policy, and a proportional premium and deposit paid.”</p>

<p>A testatrix made to her grandchildren several specific devises “ to tlieir heirs and assigns forever; ” and in the eighth clause of her will proceeded: — Eightly. I give and devise all the remainder of my real estate unto all my grandchildren, in equal shares, and to their heirs and assigns forever. And it is hereby provided, and my will is, that if any of my grandchildren should die, leaving no surviving issue; then I give and devise all the estate, both real and personal herein given to such grandchild, unto the survivor or survivors of such as shall die as aforesaid, and to their heirs and assigns forever: provided, that none of my grandsons shall, in any-event, have any of my personal estate, other than the specific legacies herein bequeathed unto them, as long as any of my granddaughters, or any of their issue be living. It is also further provided, and my will is, that if all my grandchildren should die leaving no surviving issue, then I give and devise all my estate unto two of the daughters oí my uncle, Thomas Field, to wit: Mary and Sally, and unto two of my said uncle’s grand-daughters, to wit: Mary and Elizabeth Thornton, and to their heirs and assigns forever.” Held, that the grandchildren of the testatrix took estates-tail in her real estate, and not fee-simples conditional upon their dying without issue.</p>

Ejectment to recover lands in Glocester. One of the pleas was, that the plaintiff's title was by mortgage executed to him by the defendants, on the seventh day of April, 1857, with condi- tion to pay a promissory note of ¡$400 at the end of four years, with interest payable annually. objected to a conditional judgment for the plaintiff, upon the ground, that although three years’ interest was due under the mortgage, the principal sum was not due, and so the condition of the…

This was an action of dower, the declaration in which claimed dower for one of the demandants (the other being her husband) in the homestead estate of the late Ebenezer Wood, in North Providence, alleging her coverture with said Ebenezer whilst he was seised of said estate.

<p>Assumpsit to recover the amount .of a promissory note for $400, dated Providence, September 7th, 1859, and made by the defendant, payable to the plaintiffs four months after date. At the trial of the case, under the general issue, at the present term of the court, before the chief justice with a jury, it appeared that the defence to the note was, that it was given by the defendant to the plaintiffs to secure the price of intoxicating liquors sold by the plaintiffs, in this state, to him, in violation of chapter 78 of the. Revised Statutes. .After the evidence was in, the presiding judge charged the jury, that it was incumbent upon the defendant, in order to make out his defence, to satisfy them, • not only that the liquors were sold in this state by the plaintiffs to the defendant, but that said -liquors were not sold by the plaintiffs as manufacturers or distillers for the purpose of exportation; the burden being upon the defendant to show that .the plaintiffs were not such manufacturers or distillers, either in this state or some other state, as well as to make out the illegal purpose of the sale; although the jury were entitled to consider the kind and quantity of the liquor, the manner, and all the circumstances of the sale, in arriving at their conclusion upon these subjects. Under these instructions, to which the defendant excepted, a verdict for the amount .Of the note, with interest, having been rendered for the plaintiffs, a motion for a new trial was now made, on the ground that the above instructions were erroneous in matter of law.</p> <p>1. -Where the sale of liquors, except by persons duly authorized- and for particular uses, is prohibited, it is incumbent on the plaintiff, in the action to recover the price, to show affirmatively that he was duly licensed to sell them, and that they were sold for a lawful purpose. Bliss v. Branard, Law Reporter, October, 1860, p. 361, Supreme Judicial Court, New Hampshire. The act of the Legislature of New Hampshire is identical with ours. See Law of New Hampshire, June, 1855, p. 1528, entitled “ Suppression of Intemperance.”</p> <p>2. The analogy-in criminal cases touching these provisos 'and exceptions and the burden of proof in relation to them, we think, has a bearing as to what the rule in civil cases should be. “ If exceptions are in the enacting clause, qualifying the description of the offence, the indictment must negative the exceptions. When they are in other clauses of the act, they need not be negatived, for they are matters of defence that the prosecutor need not anticipate.” Wharton’s American Criminal Law, 4th ed. p. 379, §§ 378, 379. But as to the exceptions in the enacting clause that the indictment must negative, whether they are to b.e proved by the prosecutor or defendant depends upon the following considerations : “ If the subject-matter of the exception relate to the defendant personally, or is particularly within his knowledge, the negative is not to be proved by the prosecutor, but by the defendant. If on the other hand the subject of the averment do not relate personally to the defendant or be not peculiarly within his knowledge, but either relate personally to the prosecutor or be peculiarly within his knowledge, or as much within his knowledge as within the knowledge of the defendant, the prosecutor must prove the negative.” Wharton’s Crifninal Law, 4th ed. p. 614, § 614.</p> <p>3. The words, “except for the purpose of exportation” in the first section of our act, must be taken with the last clause of the 14th section, showing that the statute does not authorize the keeping and selling liquors for exportation by any other persons than manufacturers and distillers; and we think it equally clear, that the legislature did not intend to authorize the manufacture or sale for exportation by any others than manufacturers and distillers in. the state. A reference to previous statutes confirms this view. The law is in fact the act of May, 1852, sometimes called the Maine Law, with such amendments as have been made necessary by judicial decision, and the slight modification to be referred to. See the Act of May, 1852, Pub. Laws, p. 915, 1st and 8th sections, which prohibit all manufacture of intoxicating liquors, except cider and alcohol for exportation. The act of January 1853,1st and 8th sections, Pub. Laws, p. 498, went a little farther, and authorized in addition the manufacture of wine and malt liquors for domestic uses. The act, as it now stands, authorizes the manufacture of all kinds of liquors for exportation ; evidently designed to protect the manufacturers horn th'e penalty of an act whose real design was to suppress intemperance by stopping the traffic in the state. See section 28th of present law.</p> <p>1. The contract was legal on its face. The liability of the defendant could only be avoided by showing that there was no consideration, or that the note was given for an illegal consideration. The burden of proof was on the defendant to establish the illegality of the sale. Wilson v. Melvin, 13 Gray, 73.</p> <p>2. Any manufacturer or distiller of liquors may hold, own, keep, and sell the same, for exportation. Rev. Stats, ch. 78, §§, !4.</p>

<p>Bill in equity, filed by the mortgagee of a tract of land in Cranston, near what is now called Elmwood, to set aside a sale under a power contained in a prior mortgage of the same tract, and to redeem that and another prior mortgage.</p> <p>On the 20th day of June, 1853, one Samuel Slocum, being then owner of the tract, mortgaged the same to one Henry J. Holden in fee, to secure the sum of twenty-eight hundred dollars, and afterwards, on the second day of November, 1855, executed another mortgage of the same tract, in fee, to one James T. Slocum, to secure the sum of one thousand dollars, which last-named mortgage contained a power of sale, authorizing the mortgagee, his personal representatives or assigns, in case of default in payment for the term of ten days of the mortgage debt, or of the semiannual interest due thereon, to sell the premises or any part thereof at public auction, first giving, after the expiration of said term of ten days, twenty days’ notice of such sale in some one of the public newspapers printed in the city of Providence. Subject to the above mortgages, the equity of redemption in said tract, by mesne conveyances from Samuel Slocum, became vested in one Arthur M. Potter; who, on the 25th day of February $ 1858, conveyed a portion of said tract in fee, with warranty, to one Joseph Adams, and afterwards, on the 26th day of February, conveyed the remaining portion of the same to Nancy Greene, wife of William H. Greene, taking back from Greene and wife a mortgage to secure a portion of the purchase-money. The larger portion of the purchase-money agreed to be paid by Greene and wife was by them to be applied to the payment of the two Slocum mortgages, in relief of the portion of the tract sold by Potter to Adams with full warranty.</p> <p>The plaintiff’s title to redeem rested upon two mortgages, both executed to him by Joseph Adams on the 25th day of February, one to secure the sum of twenty-one hundred and fifty-six dollars and nineteen cents, and the other to secure to him the sum of one thousand dollars, advanced by him to said Adams.</p> <p>The respondent first became interested in the tract by receiving from Arthur M. Potter, who was indebted to him, on the 19th day of April, 1858, an assignment of the mortgage which he had taken from Greene and wife. The respondent subsequently, on the 28th day of February, 1859, purchased and took an assignment of the mortgage executed by Samuel Slocum to Henry J. Holden, being the first mortgage on the tract. Before this, however, to wit, on the 15th day of February, 1859, he had become purchaser of the tract at public auction,^under the power contained in the second mortgage on the tract, to wit, the mortgage from Samuel to James T. Slocum, and had also, for greater caution, taken an assignment of the last-named mortgage.</p> <p>It appeared in proof, that by some mistake, the sale under the power, by which the respondent claimed to foreclose the plaintiff’s right to redeem, was advertised to take place on the 12th day of February, 1858, but actually was made on the 12th day of February, 1859; the plaintiff not having seen or received any notice whatever of the sale until some time after it took place. It further appeared, that the advertisement was of the whole tract, as originally mortgaged, whereas a portion of the tract had, by consent, been sold, and released from the .mortgage.</p> <p>Evidence was also submitted, on the part of the plaintiff, tending to prove, that the mortgage sale was procured and conducted by the respondent, with a view to his becoming a purchaser at an undervalue; and especially, that at the sale, finding that Ephraim Jackson, a substantial purchaser, was bidding against him, he crossed over the platform to said Jackson, and asked him why he bid against him ? and in reply to Jackson’s excuse, that he supposed it to be a free sale, as advertised, said, that he thought that Jackson ought not to bid against him, as he had lost so much money by the Potters, and expressed some feeling about it; whereupon, Jackson withdrew from bidding, and the estate was knocked down to Tucker, at a considerable undervalue. Upon the point of the respondent’s agency in the sale, and of his conduct before and at the sale, with the view of buying it in at a bargain, evidence was submitted on both sides, the result of which sufficiently appears in the opinion of the court.</p> <p>1. The sale under the power was void, inasmuch as it took place a year after the time it was advertised for sale. The advertisement was calculated to mislead the public and those interested into the belief that it was-an old advertisement, continued or reinserted by mistake.</p> <p>2. The advertisement of more land to be sold, than remained for sale, was also calculated to mislead the public, and avoided the sale. Bwrnet v. Henniston, 5 Johns. Ch. 35.</p> <p>3. The sale is void also on account of the direct interference of the respondent, by which the biddings were stifled, and fair competition prevented. Fuller v. Abrahams, 6 Moore, 316 ; S. C. 3 Brod. & Bing. 116; Hamilton v. Hamilton, 2 Rich. Eq. 355; Wooten v. Hinkle, 20 Missou. 290; Longwith v. Butler, 3 Gil-man, 32 ; Gmdiner v. Morse, 25 Maine, 140 ; Martin v. Ranlett, 5 Rich. Law, 54; Haynes v. Crutchfield, 7 Ala. 189 ; Matthie v. Edwards, 2 Collyer, 465; S. C. 33 Eng. Ch. Rep. 465; 1 Hill on Mortgages, 91: 2 Kent’s Com. 539.</p> <p>4. By his purchase of Greene’s mortgage to Potter, the respondent had notice of the agreement by which, as between Potter, Greene, and Adams, the Slocum mortgages were to be wholly imposed upon Greene’s portion of the tract, and is estopped in equity from now claiming in contravention of that agreement. '</p> <p>1. The right of the complainant to redeem the Slocum mortgages is cut off by the sale, under the power contained in the younger of those mortgages ; this mortgage being prior in date to the title of the complainant.</p> <p>2. The advertisement included the land to be sold, and that is enough.</p> <p>3. The mistake of the year in the advertisement cannot affect the sale ; since it was so palpable as to mislead no one.</p> <p>4. Many bidders were present, with whose action the respondent did not interfere; and as to Jackson, the respondent said no more than he had a right to say.</p>

<p>Debt upon a judgment obtained by the plaintiff, in her capacity of administratrix of Philip M. Fiske, against the defendant, at the March term of the supreme judicial court within and for the county of Providence, 1837,- for the sum of seventy-two dollars and five cents, being for costs of a suit in equity, then adjudged to her by said court.</p> <p>Plea, that the cause of action imsaid declaration supposed, did not accrue to the plaintiff at anytime within twenty years next after the commencement of the action ; to which plea there was a general demurrer and joinder.</p> <p>1. There was no statute of limitations in 1837, in Rhode Island, relating or applicable to actions of debt upon judgment. The act for the limitation of certain personal actions, found in the Digest of 1822, p. 364, embraced only actions of debts founded upon any contract without specialty, and the limitation to such actions was six years.</p> <p>2. The Digest of 1844, p. 220, § 1, provided as follows : “ All actions of debt founded upon any contract without specialty, all actions of debt for arrearages of rents ; actions of debt for other causes, &c., which shall be sued or brought at any time after this act shall go into operation, shall be commenced and sued within the time hereinafter directed and not after, &c. And the said actions of debt founded upon any contract without specialty, &c., shall be brought and commenced within six years after the cause of the said actions, and" not after. All actions of debt, other than those before specified, &c., within twenty years next' after the cause of said actions, and not after.” The Revised Statutes of Rhode Island, p. 429, § 4, provided, that “ all actions of debt, other than those in the next preceding section specified, and all actions of covenant shall be commenced and sued within twenty years next after the cause of action shall accrue, and not after.” See, in this connection, Rhode Island Digest of 1844, p. 61, which provides, “ that nothing in this act or in any of the acts contained in said Digest shall defeat, discharge, or in any way affect any right, title, interest, duty, obligation, penalty, forfeiture, claim, or demand, which shall have vested, enured, accrued, or become forfeited,” by virtue of the laws now in force.</p> <p>3. The plaintiff claims, that the provisions of § 1, p. 220 of Dig. 1844, (cited before,) so far as they relate to actions of debt upon judgments, are to be construed prospectively, and do not apply to judgments recovered before the Digest of 1844 went into effect. The question of the power of the general assembly under our constitution to pass retrospective laws is not raised in this cause. The plaintiff asks only for a construction of the statute in question, and does not claim that its provisions are repugnant to the constitution.</p> <p>4. The general principle in the construction of statutes is, that a law is to-be construed as having a prospective operation alone, unless, by the explicit terms of the law itself, a retrospective operation is clearly intended. Dash v. Van Kleeck, 7 Johns. 477 ; Mwrray v. Gibson, 15 How. 421.</p> <p>5. Statutes of limitations, in substance the same as the one in question in this cause, have almost uniformly been construed by the courts of the states where they were enacted to operate prospectively alone, and not to apply to causes of action which accrued or existed before such statutes took effect. In New York, see Sayre v. Wisner, 8 Wendell, 661; People v. Supervisors of Columbia County, 10 lb. 363 ; Williamson v. Field, 2 Sandford Ch. R. 568. In Pennsylvania, see Eakin v. Raub, 12 S. & R. 331. In Massachusetts, see Call v. Hagger et al. 8 Mass. 427; King v. Tirrell, 2 Gray, 332. In Illinois, see Thompson v. Alexander, 11 111. 54; Trustees of Schools v. Chamberlain, 14 lb. 495; Watt v. Kisby, 15 lb. 200; Tufts v. Rice, Breese, 36, in appendix. In Iowa, see Norris v. Slaughter, 1 Greene, 338 ; Forsyth v. Ripley, 2 lb. 181; Hinch v. Weather-ford, 2 lb. 244 ; Gordon v. Mount, 2 lb. 243. In Missouri, see Paddleford v. Dunn, 14 Missouri, 519. In Mississippi, see West Feliciana R. R. Co. v. Stockett, 13 S. & M. 395; Brown v. Wilcox, 14 lb. 127. In Arkansas, see Baldwin v. Cross, 5 Arkansas, 510; Hawkins v. Campbell, 6 Ib. (1 Eng.) 513 ; Couch v. Me Gee, 6 lb. 573; Calvert v. Lowell, 5 Eng. 147 ; Morse v. McLinden, 5 lb. 512; Murray v. Gibson, 15 How. 421.</p> <p>6. The defendant, under the pleax of the statute of limitations cannot avail himself of the common-law presumption of payment at the end of twenty years. A plea of payment, or other plea containing an express averment of payment, is necessary for such purpose. See part 1, Notes of Cowen & Hill to Phillips on Evidence, p. 316, n. 307, and cases cited. TilbVs Heirs v. Clark, 5 Monroe, 526-7; Forsyth v. Ripley, 2 Greene, (Iowa,) 182.</p> <p>1. This action, being an action of debt on judgment, is barred by the Revised Statutes, ch. 177, § 4. This, by its very terms, as the defendant contends, applies alike to all judgments, whether obtained before or after the passage of the act. Ross et al. v. Duval et al. 13 Peters, 45, and Pritchard v. Spencer, 2 Carter, (Ind.) 486.</p> <p>2. But the plaintiff claims that the operation of the statute of 1857, cited above, is prospective. Now, even if this be so, still the plaintiff’s demurrer cannot be sustained. See Rev. Stats, ch. 246, § 10. Also Dig. 1844, p. 60, § 4; p. 220, § 1.</p> <p>3. The time had begun to run under the statutes of 1844, cited above, and had commenced to run under that statute when the right of action under this judgment-accrued, to wit: April 29,1837; said statute being clearly retroactive.</p> <p>4. In the Digest of 1822, p. 364, § 1, there was an express limitation that rendered the statute of limitations prospective. Why was this omitted in the subsequent acts, if the legislature did not mean to have the subsequent acts retrospective, as well as prospective, in this kind of action ?</p> <p>5. If the plaintiff is correct in his position, then no plea of the statute of limitations to a judgment could have been filed at any time prior to this, nor until at least in 1864. What effect can be given to the statute, unless regarded as retroactive ? and effect will be given to an act by the court, if it can be. This rule is too general to need a citation of authorities. People v. Utica Ins. Go. 15 Johns. 358; 28 Miss. (6 Cushing,) 361; 'State v. Clark, 7 Ind. 468.</p> <p>6. The defendant claims that the statute refers to the remedy, and that the legislature can control the remedy to any extent, so that it does not by its terms take away all remedy or reasonable time to prosecute. Pritchard v. Spencer, 2 Carter, (Ind.) 486; Fowler v. Chatterton, 6 Bing. 258; Ansell v. Ansell, 3 C. & P. 563; S. C. 14 Eng. C. L. 451.</p> <p>7. The statutes of 1844 and 1857 clearly indicate that the legislature intended that the statute should run from the time the cause of action accrued, and are retroactive; and where a statute of limitations prescribes the time within which suit shall be brought, or an act done, and part of the time has already elapsed, effect will be given to the act; and the time yet to run, being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature in such case. Ross et al. v. Duval et al. 13 Peters, 45 ; Willmd v. Harvey, 24 N. H. (4 Foster,) 344; Bwrcoe et al. v. Anlcetell, 28 Miss. (6 Cush.) 361.</p> <p>8. The power of the legislature to enact a statute of limitations is clear; and so, upon authority, a statute of limitations may be retroactive as well as prospective in its operation; and this effect will be given to such act if the intent that it should retroact be manifest from the acts in question. Pritchard v. Spencer, 2 Carter, (Ind.) 486; Ross et al. v. Duval et al. 13 Peters, 45.</p> <p>9. The distinction is this, that courts will not give a retrospective operation to an act of the legislature when it takes away a vested right; but not so when it appertains to the remedy. In the case at bar, it applies simply to the remedy, and imposes no hardship upon the plaintiff; because she had at least thirteen years, after the statute of 1844, in which her action could have been brought. Wadsworth v. Thomas, 7 Barb. 445, 448 ; Sampeyreac et al. v. United States, 7 Peters, 222.</p> <p>10. This act of limitations is in aid of the common law, and not in derogation of it. At the common law payment is presumed after twenty years. This act, upon presumption of payment, makes twenty years a bar.</p>

<p>Debt upon a jail bond, in the penal sum of $3000, given by Daniel Foster, as principal, and by the other defendants, as his sureties, for the liberty to said Foster of the jail limits in the county of Bristol, the declaration in which set forth, as a breach of the condition of the bond, that the said Foster “ did not, from the giving of said writing obligatory, and thenceforth, continue and be a true prisoner, in the custody, guard, and safekeeping of Mary L. B. Pearce, keeper of said prison, and in the custody, guard, and safe-keeping of Stephen Johnson, his deputies, officers, and servants, or either or any of them, within the limits of said prison, until he was lawfully discharged therefrom, without committing any manner of escape or escapes during the term of his restraint, but, on the contrary thereof, that said Foster did, during the term of such his restraint, escape and go off and beyond the limits of said prison, without^ being lawfully discharged from such his commitment.”</p> <p>The second plea filed to the declaration alleged, in substance, that after said Foster’s commitment to the jail in Bristol County at the suit of the plaintiff, and before the escape in the declaration pretended, to wit, on the third day of August,- 1858, at Bristol, two justices of the peace in said county of Bristol, to wit, Bennett J,. Munroe and Massadore T. Bennett, delivered to the said Daniel Foster, then a prisoner in said jail committed on mesne process for debt at the suit of the plaintiff, and to whom the oath for' the relief of poor debtors had then and there been administered according to the provisions of the statutes in such case made and provided, a certificate thereof, under their hands and seals, in the words and figures following, viz.: —</p> <p>‘ Bristol, sc. To Mary L. B. Pearce, beeper of the jail at Bristol, in the county of Bristol, and state of Rhode Island, &c.</p> <p>‘ We, the subscribers, authorized by the statute in such case made and provided, do certify, that Daniel Foster, of Warren, in said county, a poor prisoner confined upon mesne process in the prison at Bristol aforesaid, hath caused William Whipple Brown, of Providence, in the county of Providence and state of Rhode Island, <fcc., the party at whose suit he was confined, to be notified according to law of his, said Daniel Foster’s, desire of taking the benefit of an act entitled “ An act for the relief of poor persons imprisoned for debt; ” that in our opinions the said Daniel S. Foster has not any estate, either real or personal, except what is exempted from attachment by law, sufficient to support himself in prison, and that he hath not conveyed or concealed his estate with desire to secure the same to his own use, or to defraud his creditors, and that we have* after due caution to said Daniel Foster, administered to him the oath prescribed in the act aforesaid.</p> <p>‘ Witness our hands and seals, this third day of August, a. d. 1858.</p> <p>(Signed) ‘Bennett J. Munroe, [l. s.]</p> <p>‘ Justice of the peace.</p> <p>‘ M. T. Bennett, [l. s.] ■</p> <p>‘ Justice of the peace; ’</p> <p>that the said Daniel Foster, thereafterwards, to wit, on the same day, presented said certificate to the said Mary L. B. Pearce, keeper of said jail, and the said keeper forthwith discharged said Foster from his said commitment at the suit of the plaintiff; and the said Foster, thereafterwards, to wit, on the 4th day of August, a. d. 1858, did go off and beyond the limits of said prison, which going off and beyond said limits is the same escape and going off and beyond the limits aforesaid complained of in the plaintiff’s declaration; without this, that the said Foster did escape and go off beyond said limits in manner and form as in said declaration is alleged; and of this they put themselves on the country,” &c.</p> <p>The third plea, filed by the defendants to the declaration, was, in substance, “ that after the said commitment of the said Foster in manner as aforesaid, and on the same day, to wit, on the 27th day of July, a. d. 1858-, to wit, at said Bristol, the said Foster, who' was then imprisoned for debt on mesne process at the suit of said plaintiff,Rid complain to one Bennett J. Monroe, a justice of the peace in said Bristol, that he had no estate, real'or personal, wherewith to support himself in jail or to pay jail charges, and did, then and there, request to be admitted to take the poor debtor’s oath ; and the said Bennett J. Monroe did then and there issue a citation to said plaintiff, he being within this state, to appear at said Bristol, at the jail therein, on the third day of August, a. d. 1858, being the time and place by said justice appointed, to show cause, if any he had, why the said Foster complaining as aforesaid should not be admitted to take the poor debtor’s oath ; and the said plaintiff then and there waived the service of the citation upon him according to the formalities required by the provisions of the Revised Statutes, ch. 198, § 3, and then paid to one - Pearce, to whom said citation had been intrusted by the justice aforesaid, and who then and there had the same in his possession, the sum of two dollars'for the past and future board of said Foster until said third day of August, a. d. 1858, and the said Pearce, thereaftefwards, on the same day, paid over said sum of money to the keeper of said jail; and thereafterwards, on the return day of said citation, to wit, on the third day of August, a. d. 1858, to wit, at said Bristol, at the jail therein, at nine o’clock in the evening of the same day, Bennett J. Mun-roe and Massadore T. Bennett, two justices of the peace of the county of Bristol, where, said Foster was committed, did examine the return of said citation, and it appearing to them to have been duly served did administer to said Foster the oath provided in the Revised Statutes, ch. 198, § 11, for the relief of poor debtors ; —the said justices, after a full examination of said Foster under oath, and hearing the parties, thinking it proper so to do; and the said Foster having then and there first made an assignment of all his estate of every kind, and wherever the same might be, except what was exempted from attachment by law, to the said keeper of said jail and her successors in said office, and her heirs and assigns, in trust, for the benefit of all his creditors in proportion to their respective demands; and the said justices, then and there, after the oath had been administered as aforesaid, did deliver to said Foster a certificate thereof, under their hands and seals, in the words and figures following, viz.: as in the second plea; and the said Foster, thereafterwards, to wit, on the same day, at said Bristol, did present said certificate to said keeper of said jail, and the said keeper did forthwith discharge said Foster from his said commitment at the suit of the said plaintiff, as appears from the discharge on said jail book, a true copy whereof is annexed to, and made part of, this plea; and the said Foster did, thereafterwards, to wit, on the fourth day of August, a. d. 1858, go off and beyond the limits as aforesaid, which going off and beyond the limits of said jail is the same escape and going off and beyond said limits in said plaintiffs declaration complained of; without this, that said Foster did escape and go off and beyond the limits of said jail in manner and form as the plaintiff hath above thereof complained; and of this,” &c.</p> <p>The fourth plea was the same as the third, except that it stated that the citation to the creditor, issued by the justice, “ was, then and there, to wit, on said twenty-seventh day of July, a. d. 1858, duly served on the plaintiff,” and that it stated, that the examination of the poor debtor took, place, at six o’clock in the evening of the third day of August, 1858, instead of nine o’clock in the evening of that day, as stated in the third plea.</p> <p>To these pleas, the plaintiff replied, in substance, “ that there was no citation issued to the plaintiff to appear and show cause why the said defendant, Daniel Foster, should not be permitted to take the oath in said second, third, and fourth pleas mentioned, in manner and form as the defendants have above thereof in said second, third, and fourth pleas alleged; and this the plaintiff prays may be inquired of by the country,” &c.</p> <p>He further replied, to the second and fourth pleas, “ that the said citation in those pleas mentioned was not served upon the plaintiff in manner and form as the defendants have above thereof in said second and fourth pleas alleged; and this the plaintiff prays may be inquired of by the country,” &c.</p> <p>To these replications the defendants demurred; assigning for causes of demurrer, that the plaintiff, by his said replications hath not taken issue upo.n said pleas of the said defendants and upon the denial therein contained, that is to say, that the said Foster did not go off and beyond said limits in manner and form as in said declaration' is alleged, but has stated and put in issue in said replications, that said citation to said plaintiff was not issued, and was not served upon the plaintiff in manner and form as in said pleas is alleged ; whereas, every matter and thing in said pleas stated, as to said citation and the service thereof upon the plaintiff, was stated as inducement; and also, for that said replications are, in other respects, uncertain, informal, and insufficient.</p> <p>The plaintiff joined in demurrer.</p> <p>The 1st replication to the 2d, 3d, anjl 4th pleas of the defendant alleges, that there was no citation issued to the plaintiff to appear and show cause why the said Foster should not be permitted to appear and take the oath, &c. The 2d, Bd, and 4th pleas set forth the certificate of the justices, and facts sufficient to show their jurisdiction in the premises, and allege the discharge of Foster by the jailer, on the authority of the certificate, and by virtue of the statute, and his subsequent going beyond the limits. All the above facts are set forth by way of inducement, and the pleas deny specially the breach of the condition of the bond set up in the declaration, to wit, that the defendant did go off of and beyond the limits in manner and form as therein charged.</p> <p>1.- The 1st replication to these pleas, therefore, instead of joining issue, traverses one of the allegations in the inducement of the pleas ; thus making a traverse upon a traverse. The facts set forth in the inducement are only an indirect denial of the alleged breach set out in the declaration, while the denial, under the absque hoc, is a direct and sufficient denial of the alleged breach. When the denial under the absque hoc is sufficient in law, the inducement cannot be traversed. Stephen on PL p. 188.</p> <p>' 2. The 2d, 3d, and 4th pleas show a legal discharge, under the provisions of the Revised Statutes for the relief of poor debtors. The 1st replication to these pleas seeks to avoid the legality of this discharge, by alleging, that no citation was issued to the plaintiff as committing creditor to appear and show cause why Foster should not be permitted to take the oath. The plaintiff cannot deny in this suit the fact that a citation was issued, in conformity with the provisions of the Revised Statutes, ch. 198, §§ 2, 3. The statute provides for the issuing of a citation to the committing creditor, as a means of notification to him of the pendency of the application. It was the duty of the justices who heard the application of Foster, to examine the citation and return thereon, and see if it had been duly served upon the committing creditor, and to pass upon-' this question, before proceeding to the examination of the applicant. Rev. Stats, ch. 198, § 10. The determination of this question was a matter submitted to their judgment by the statute. A'power to hear and determine is jurisdiction. Angelí v. Robbins, 4 R. I. (1 Ames) 493, and cases cited. If the citation appeared to them “ to have been duly served,” they were authorized to proceed with the hearing. Rev. Stats, ch. 198, § 10. The fact to be determined in this case was, whether or not the committing creditor had been duly notified to appear and show cause why the relief asked for by Foster should not be granted. If, in fact, there was a citation in the hands of the justices at the time of the hearing, and notice had been given to the creditor in any form, either by a strict compliance with the statute, or informally, in consequence of a waiver of the formalities of the statute on his part, the creditor was “ duly notified,” and the justices would be justified in so deciding. The justices, to whom the determination of this question was committed by the statute, have decided it,- and have certified that the said Foster had caused the said Brown “ to be notified according to law ” of the desire of said Foster for the relief provided for by the statute. See the certificate of the justices in the second plea. The determination of the justices on this point is conclusive, and cannot be reviewed in a collateral proceeding. It is immaterial upon what testimony they came to this conclusion. The matter was solely within then jurisdiction, and can only be reviewed in a direct proceeding authorized by law for that purpose. Angelí v. Robbins, 4 R. I. (1 Ames) 493, 504; Agry v. Betts, 12 Me. (3 Fair.) 415 ; Cwrey v. Osgood, 18 Me. (6 Shep.) 152'; Baker v.- Holmes, 27 Me. (14 Shep.) 153; Lowe v. Dore, 32 Me. (Red.) 27 ; Waterhouse v. Cousins, 40 Me. (Heath.) 333 ; Haskell v. Haven, 3 Pick. 404,406 ; Woods v. Boldgett, 15 N. H. 571; Carter v. Miller, 12 Verm. 513.</p> <p>3. The second replication to the second and fourth pleas of the defendant alleges, that the citation was not served upon the plaintiff in manner and form, &c. This replication is equally bad, for each and all of the reasons above given.</p> <p>1. All the pleas are bad for concluding to the country, when they should have concluded with a verification. In each, new matter is alleged, any material fact of which the plaintiff had the right and ought, by the defendants concluding with a verification, to have been furnished the opportunity to traverse or answer over to; for each of these pleas admits the breach set forth in the declaration, but justifies under the discharge of the justices, and they are not simple traverses of the declaration. The plaintiff is for this defect, therefore, entitled to judgment on this demurrer.</p> <p>2. At any rate, the conclusions of these pleas being erroneous, the plaintiff was justified in passing them by and tendering at 'once material issues which the defendants were bound to accept, and it is not for them to demur because the plaintiff has thus treated their pleas as correct and waived their informality in this particular. To have done otherwise would only uselessly have delayed the cause, to have come to the same result, finally. For had the plaintiff specially demurred as he might, the court would not have entered judgment in chief on such demurrer, but merely have ordered an amendment by adding the verification ; Ellis, Adm. v. Appleby, 4 R. 1.469; and then the plaintiff would have replied over as now.</p> <p>3. But beyond this, these pleas themselves are defective. They all justify — confess and seek to avoid— under the proceedings of a tribunal of limited jurisdiction. Everything therefore essential to show its jurisdiction should be averred. Frary v. Dakin, 7 Johns. 75, and cases cited. Nothingwill be presumed in favor of such jurisdiction. Bowker v. Porter, 39 Maine, 505, per Appleby, J.; State v. Ha/rtwell, 35 lb. 129, and cases cited below.</p> <p>4. To examine these pleas in order. 1st. The 2d plea states no facts tending to show the jurisdiction of the justices —does not even contain the averment that they had jurisdiction. It evidently relies upon the conclusiveness of the justices’ certificate. But it is by far the better opinion that the certificate is not conclusive of any facts necessary to confer jurisdiction, except, perhaps, (as in Angelí v. Robbins et al. 4 R. I. 493,) of such facts as by statute are to be determined by the judgment of the justice upon proof oí matters, not of record, to be submitted to him. Such in fact appears to be the rule of this court. Compare Gushing Sf Walling v. Briggs et al. 2 R. I. 139; Eastwood v. Schreder, 5 lb. 388. This, too, is the well-settled rule in Massachusetts; Slasson v. Brown, 20 Pick. 436; Ward v. Clapp, 4 Met. 455 ; Young v. Capen, 7 lb. 287; Baker v. Moffat, 7 Cush. 259; Webster v. French, 11 lb. 304; Hobbs v. Fogg, 6 Gray, 251; Park v. Johnson, 7 Cush. 265 ; and in New Hampshire ; Osgood v. Hutchins, 6 N. H. 374 ; Banks v. Johnson, 12 lb. 445; Woods v. Blodgett, 15 lb. 569; and this, too, though the statute makes it equally obligatory for the justices to examine — be satisfied with — the sufficiency of the notice, as does our own. Compare Mass. Rev. Stat. of 1836, ch. 98, §§ 8-10, p. 597 ; lb. Gen. Stat. of 1860, ch. 124, §§ 21, 22, p. 636, 637; N. Hamp. Rev. Stat. of 1853, ch. 213, § 3, p. 548. More than this, it is nowhere held that the certificate is conclusive (even if prima facie) proof of jurisdiction, so far as depending on any facts not recited in it. See Knight v. Norton, 3 Shep. (15 Maine) 337 ; Williams v. Burrill, 10 Shep. (23 Maine) 144. Now this 2d plea and the certificate embodied in it shows that the justices had no jurisdiction, and that the discharge was void. Knight v. Norton, 3 Shep. 337; Webster v. French, 11 Cush. 304; Simpson v. Bowker, 11 lb. 306. 2d. The third plea is defective. The waiver of the service of the citation is not sufficiently averred. As it stands in this plea, it is an averment merely of a conclusion of law, or at most, of mixed law and fact, and as such is bad. 1 Chitty’s Plead. 539, 540, (Springfield ed. 1844) ; Frary v. Dakin, 7 Johns. 75; unless, indeed, this plea can be construed as setting up the fact of payment of board by the plaintiff, as the only waiver relied upon; in which case it is bad as such, payment, particularly as alleged here. It not being averred to have been demanded by or paid to any officer authorized to demand or receive it, or even that any officer, then or ever, had the citation, it is no waiver. The payment, if the creditor wishes to save his rights for a hearing and examination, is compulsory immediately on service. Rev. Stats, ch. 198, §§ 4-8 ; and the creditor cannot know, and is not bound to take the risk of deciding on the moment, whether the preliminary proceedings have been regular, — whether the citation is in proper form, or is then in the hands of a proper officer for service, or is in fact properly served, &c. &c. To thus construe the statute and give this effect to this forced payment would make it a mere trap to catch the creditor. See per Bigelow, J., in Baker v. Moffat, 7 Cush. 262; Webster v. French, 11 lb. 304; Simpson v. Bowker, 11 lb. 306; Knight v. Norton, 3 Shep. 337; Young v. Capen, 7 Met. 287; Hanson v. Dyer, 5 Shep. 96; Park v. Johnson, 7 Cush. 265; see also the other above cases, where the discharge has been held invalid for defects in matters preceding the return of the citation. 3d. The 4th plea is defective for not sufficiently alleging any service of the citation: as alleged, it merely avers a conclusion of law, or mixed law and fact. It does not even show it in the hands of any officer for service. Chit. Plead, supra ; Frary v. Dakin, 7 Johns. 75; and other cases cited above.</p>

<p>A plaintiff, who brings his action originally in the supreme court for the sum of one hundred dollars or upwards, will be entitled to costs, although the defendant, by a tender in court, has reduced the sum for which judgment is rendered below that amount.</p>

This was an action of trespass and ejectment, — the declaration containing two counts.