Volume 7 — Rhode Island Reports

This was an action of covenant, submitted to the court without formal pleadings, partly upon an agreed statement of facts, and partly upon evidence; the plaintiff to recover costs, although less than… Held: and to be held by them. IY. But if a covenant running with the land, its existence is no breach of the covenant of the defendant; since so beneficial a bargain neither obstructs nor makes void his deed to the defendant.

Assumpsit, by the plaintiffs, husband and wife, to recover wages earned by the wife before marriage. The case was appealed from the Court of Magistrates of the City of Providence to the Court of Common Pleas for the county of Providence, at its December term, 1860, at which term it came on for trial before Mr. Justice Shearman, with a jury.

<p>An installment of an annuity, not due, charged, in equity, upon the real estates and rents and profits thereof helonging to minor heirs, hy way of special endowment of their mother out of the same, is not attachable hy process of foreign attachment, in the hands of their guardian, for the debts of the annuitant.</p>

Assumpsit, against a religious corporation, in which, after a motion to dismiss for want of sufficient service of the writ was refused in the Court of Common Pleas for the county of Providence, and demurrers to pleas were decided, the case was submitted to a jury, who, being unable to agree, the plaintiff submitted to judgment for the defendant and appealed to this court.

This was an action of trespass and ejectment, brought by a landlord against his tenant, at a special Court of Common Pleas holden at Providen.ee on the 14th day of September, 1860, to recover possession of the lower story of house No. 235 Friendship street, Providence, which the declaration alleged was demised by the plaintiff to the defendant on the 5th day of August, 1860, by lease parol, for the term of one month, and which the defendant held over his term.

Bill in equity, filed by Zachariah Allen, assignee of Philip Allen under a voluntary assignment for the benefit of creditors, for instructions, whether he should pay a dividend, under said assignment, to Peleg W. Gardiner, a debtor of said Philip, who claimed to have released him, and thereby to have entitled himself, according to the provisions of the deed, to share in the proceeds of the assigned property.

Covenant upon a sealed guaranty, to recover tbe rent of Concert Hall, in Newport, for the year ending the first day of May, 1858; said hall having been let by the plaintiff to one Hidden, at the rent of |200 per ctiviwm.

Exception to the report of a master in chancery, that he had refused, upon the motion of the complainants, to reopen the case for the taking of further testimony.

<p>Bill in equity by tbe purchaser, at an assignees’ sale, of the equity of redemption in the Georgia Mills estate, so called, filed against the mortgagee in trust of said estate, and the assignees who sold the same subject to the mortgage, to compel a discharge of the mortgage, and the payment of damages for not before discharging the same, and a satisfaction of the remaining claims under the mortgage, if any, by the assignees.</p> <p>The cause came on to be heard, and from the pleadings, exhibits, and an admission, it appeared, that, on the 13th day of November, 1857, Zachariah Allen, being then the owner of the Georgia Mills estate, situated in Smithfield, on both sides of the W oonasquatucket river, mortgaged the same, with its machinery, in fee, to Charles T. Robbins, cashier of the Merchants Bank of Providence, in trust, to secure the payment of eight bills of exchange, amounting in the whole to the sum of fifty thousand dollars, and bearing even date with the mortgage, which bills were drawn by Allen upon Edward J. Cushing, and by him accepted for Allen’s accommodation, and were payable six months after date. The mortgage contained a stipulation by Allen that he would keep the mortgaged premises insured against fire in the sum of one hundred thousand dollars, at the least, and would assign the policies to Eobbins, and in case of his default so to do, Eobbins might keep on foot such insurance, — any premiums which he might pay being a charge under the mortgage. The condition of the mortgage provided, that in case of default in the payment of the bills of exchange or of their renewals, or in keeping the premises insured, and the default should continue for the space of thirty days, it should be lawful for Eobbins, cashier, his heirs and assigns, “ upon the request, in writing, for that purpose, of any one ór more of the person or persons, being then the holder or holders of any one or more of the said eight bills of exchange, &c., to sell the said granted and bargained premises, either together or in parcels, by public auction or private contract; he or they first giving, after the expiration of said thirty .days, sixty days’ notice of such sale in one of the public newspapers printed and published in said Providence ; and also, that it shall be lawful for the said Charles T. Eobbins, cashier, as aforesaid, his heirs and assigns, to continue, adjourn, or rescind any such sale, from time to time, and for all and any of the purposes aforesaid, to make, execute, and perfect all such contracts, assurances in the law, matters and things, as to the said Charles T. Eobbins, cashier as aforesaid, his heirs and assigns, shall seem just and reasonable ; and it is hereby declared, that the said Charles T. Eobbins, cashier as aforesaid, his heirs and assigns, out of the moneys to arise from any such sale or sales as aforesaid, shall pay all the expenses attending the execution of the provisions herein contained, and also all the said eight bills of exchange, &c., unto the person or persons who shall then be the holder or holders thereof, and shall pay the residue, if any, of the said moneys to the said Zachariah Allen, my heirs and assigns.”</p> <p>It further appeared, that, on the 20th of December, 1858, default having been made in the payment of said bills of exchange, Eobbins, at the request of a holder of one of them, advertised the mortgaged property for sale by auction on the 21st day of February, 1859, hired an auctioneer, and made other preparations for the sale; and on the 17th day of said February, the party making the request having in the meantime sold and transferred his claim under the mortgage, Robbins, at the request of the other holders of the bills of exchange secured by the mortgage, withdrew the advertisement, and postponed the sale indefinitely; and that, in this proceeding and in legal advice taken to guide him therein, he had expended the sum of one hundred and thirty-five dollars and fifty cents.</p> <p>On the 30th day of September, 1858, Zachariah Allen having become insolvent, made a general assignment of all his property, real and personal, including his interest in the Georgia Mills estate, to the defendants, William M. Bailey and George C. Nightingale, in trust, for the benefit of his creditors, with the usual provisions for the sale of the property and the distribution of its proceeds. On the 17th day of March, 1859, the assignees sold the Georgia Mills estate, with the machinery, at auction, to the plaintiff,.as the highest bidder therefor, for the sum of $40,000, subject to three mortgages, including that to Robbins; and in describing this mortgage in the terms of sale, described it as,—</p> <p>“ To Charles T. Robbins, trustee, dated Nov. 13,</p> <p>1857, for six months, renewed May 15, 1858, for</p> <p>six months, for ...... f50,000 00</p> <p>“ 121 days’ interest, from Nov. 18, 1858, to March 19, 1859, ■...... 1,008 33</p> <p>151,008 33”</p> <p>In the same terms of sale, there was a clause to the following effect:—</p> <p>“ The title to the property has been examined, and is believed to be undoubted. The purchaser will be allowed ten days to examine the same, and make any valid objection to the title, which the assignees will remove, or annul the sale.”</p> <p>Prior to the sale, Robbins, the mortgagee in trust, by his letter to the assignees, dated March 16,1859, gave notice to them that his expenses and compensation as mortgagee in trust, for which he claimed a lien on the estate, amounted to 1632.50, and was to be increased for future services and expenses; and in his answer to the bill, he claimed the sum of $135.50, for the expenses atténding his attempted sale under the mortgage, and the sum of $750, for his general compensation as mortgagee in trust.</p> <p>The plaintiff received his deed from the assignees, of the property bought by him at the auction, on the 12th day of October, 1859, and it was admitted had paid off all the bills of exchange and their renewals, of Zachariah Allen, included in the mortgage, but resisting the above claim of the mortgagee, for expenses and services, claimed a discharge of the mortgage from him, or if anything was due to him, that it should be paid by the assignees, on account of their representation in the terms of sale of the amount due upon the mortgage. To the bill, which substantially stated the above facts, so far as they were directed against the assignees they demurred, for want of equity, multifariousness, and misjoinder of causes of action, and of defendants.</p> <p>Robbins answered the bill, setting up his above claim for expenses and compensation, and demurred, for want of equity, to the relief prayed against him for damages for not discharging the mortgage, as properly, under the statute, the subject of an action at law.</p> <p>I. A mortgagee is-not entitled to charge for services unless provision for such purpose is made in the mortgage. This is the practice in Rhode Island.</p> <p>II. The mortgage deed provides as follows: “ And it is hereby declared that the said Charles T. Robbins, cashier as aforesaid, his heirs and assigns, shall, out of the moneys to arise from any such sale or sales as aforesaid, pay all the expenses attending the execution of the provisions herein contained.” Under this clause, no claim for services by the mortgagee can be set up. The expenses incurred by the mortgagee come within the provisions of the deed. The only question is,- — -Who is to pay them ?</p> <p>DDL If anything is to be paid the mortgagee for services or expenses, it is no charge against the plaintiff, inasmuch as he purchased the mortgaged estate, without notice of any such claim from the mortgagee or otherwise. See exhibit B, and the portions of the bill relating thereto.</p> <p>IV. The assignees, at the time of the auction sale of the Georgia Mills estate, gave notice, in writing, of the incumbrances thereon and the amount due on said incumbrances, but made no reference, in writing or otherwise, to any charges made by the defendant, Robbins, for services, expenses, or otherwise.</p> <p>Y. As-between the plaintiff and the assignees, the assignees are the proper parties to pay the charges of the defendant, Robbins.</p> <p>YI. The court having possession of the cause, may award damages to be paid to the plaintiff,' such damages, also, as the amount of the “ expenses attending the execution of the provisions of” the mortgage, to be determined by a master.</p> <p>I. Damages for refusal to cancel a mortgage cannot be recovered in this State, in a court of equity.</p> <p>H. A trustee is entitled to recover for all reasonable expenses incurred in the conduct of the trust, and no express declaration therein is necessary to create that right. Broclcsopp v. Barnes, 5 Mad. Ch. 90; Worral v. Harford, 8 Vesey, 8; Dawson v. Clarice, 2 M. & Cr. 428 ; Bx parte Lovegrove, 3 D. & C. 763; Beams v. Young, 10 Yesey, 184 ; Hill on Trustees, 573 ; Jewett v. Woodward, 1 Edw. Ch. 200.</p> <p>HI. Trustees are entitled to a reasonable compensation for their services. Meacham v. JSternes, 9 Paige Ch. 403; Ring-gold v. Ringgold, 1 Har. & J. 83; Boyd v. Hawlcins, 2 Dev. Eq. 334 ; Hill on Trustees, n. to p. 574; note to case Robinson v. Rett, and cases there cited, 2 Eq. Lead. Ca. 435.</p> <p>IY. Trustees have a lien on the trust estate for their expenses, &c., and will not be compelled to part with the legal estate until the claims are discharged. Worral v. Harford, 8 Yesey, 7 ; Hall v. Laver, 1 Hare, 577; Barker v. Parleenhorn, 2 Wash. C. C. 142; Jones v. Dawson, 19 Alabama, 672; Hill on Trustees, 567.</p> <p>I. The relation between Z. Allen and Robbins was merely the ordinary relation of mortgagor and mortgagee; and it is well settled in this State, as elsewhere, that a mortgagee cannot charge for his services as against the mortgagor. Robbins, if trustee at all, was trustee for the holders of the drafts secured by the mortgage, not for Mr. Allen; and if entitled to compensation, must look to his cestuis for it; particularly, as the contingency never lias arisen, to wit, a sale under the power, under which he was entitled to hold for anything more than the mortgage debt as against Mr. Allen. Compare Neptune Ins. Co. v. Dorsey, 3 Md. Chan. Decis. 334 ; Hill on Trust. 571, marg. top. p. 852.</p> <p>II. Even if Bobbins be entitled to retain his mortgage title for his compensation, the complainant shows no ground or privity between himself and the assignees, to entitle him to call uj>on them for this payment. They, as assignees, have sold and conveyed the estate to him, and he has accepted the conveyance without any covenant on their part, and no fraud is charged.</p> <p>III. The bill is demurrable for muitifariousness and misjoinder of defendants. The claims against Bobbins and the assignees are entirely distinct; and the claims on Bobbins involve matters in which the assignees have no concern, to wit, whether or not the mortgage acceptances have been paid, damages against Bobbins for refusing to discharge the mortgage, &c., &c.</p> <p>IV. If the complainant has any claim against the assignees, he has a full and adequate remedy at law.</p>

<p>A court of equity will not, in Rhode Island, entertain a hill to establish the rights of a devisee under a lost will, and to enjoin a suit at law by the heirs, where the probate of the will is void for want of notice to interested parties; the proper course of the complainant being, first, to prove the will of her testator before the Probate Court upon due notice, as the basis of her title to the aid of the court, as well as to the devised estate.</p>

Debt on a prison limits bond, given by the defendants to the keeper of the jail in the county of Providence, on the 29th day of January, 1861, the condition of which, as set forth in the declaration, was, that Preston M. Farrington, then a prisoner at the suit of the plaintiffs, should continue to be a true prisoner, &c., without committing any manner of escape, until he should be lawfully discharged.

<p>Where a party does not rely in his pleading upon an estoppel in pais, hut himself opens the truth or falsehood of the facts which he claims that the other party is estopped to aver or deny, and makes the truth of these facts the very issue which the jury, or the court when — by agreement — substituted to the jury, are called upon to try, the court or jury are bound to find according to the real truth of the facts proved before them.</p> <p>Hence, if the defendant pleads to the service of a writ attaching his goods, that he was, at the time of the service, openly at large in the county of B., and the plaintiffs reply by traversing the facts, upon which issue is joined, the plaintiffs cannot, — the fact being admitted or proved that the defendant was, at the time of the service of the writ, openly at large in the county of B., — support their traverse, by proving matter in pais which estops the defendant from making any averment impeaching the legality of the attachment.</p>

<p>The general rule of practice is, that all irregularities of process must be taken advantage of by motion or jilea in the first stage of the jirocess, and if not, are deemed to be waived. Hence, a motion ’by the defendant to dismiss a writ of replevin for want of a seal, was held to come too late after he had jileaded to the merits.</p> <p>Such a defect is amendable, as a defect of form.</p>

Trover for certain white and colored cotton, and for certain woolen machinery and dyeing apparatus, all of the agreed value of $2587.60, brought by the plaintiffs, assignees of Hunt, Farnum & Co., under a voluntary assignment, with preferences, for the benefit of creditors, against the defendant, a deputy sheriff of the county of Bristol, in the commonwealth of Massachusetts, who had attached and taken said goods in Seekonk, Massachusetts, upon certain Massachusetts writs…

Exceptions to an award of referees, to whom was referred, under a rule of this court, all causes of action, including all matters involved in three actions pending- in this court, and one pending in the Court of Common Pleas for this county, between an incorporated religious society and its former pastor, who was also a large pew-holder in the society’s church.

Indictment against tbe town of Cumberland, for neglecting and refusing to build, keep up, and maintain a bridge across Abbott’s Run, near Robin Hollow, in said town, in tbe course of tbe Mendon road, so called.

<p>A copartner lias no right to endorse a promissory note with the name of the firm, for the purpose of raising money for his individual uses; or, to cover up such unauthorized use of the name of the firm, to direct that no notice of the dishonor of the note should be given to the firm, or that notice should be given in such mode as to insure that it shall come to his own hands only; but if he does conduct thus unfairly towards his copartners under circumstances which do not apprise the discounters of the note of the wrong practiced upon the firm, and they have no notice of it, the firm will be bound both by the endorsement and the waiver of notice, or by the mode of notice directed.</p> <p>It is for the jury, and not the court, to construe the meaning of members of a firm in a conversation introduced to prove the power of one of them to use the name of the firm in his private transactions; and to determine, whether the power spoken of as allowed to the copartner was in the business of the firm, or in his private business.</p> <p>Cumulative evidence, discovered since the verdict, will not afford ground for a new trial, unless it be so controlling upon the point to which it relates that it will probably change the verdict.</p>

<p>Demurrer to a bill iu equity to restrain an alleged nuisance.</p> <p>The bill stated, that the complainant is now, and for many years has been, the owner of a certain lot of land situated on the westerly side of Baker street, in the City of Providence, and that about eight years ago he erected a large, handsome, three-story brick house on said lot, which has ever since been occupied as a dwelling house by the complainant and his tenants, and that the complainant now occupies the lower part thereof; that in the year 1858, the complainant took a lease of a certain other lot of land situated on the southerly side of Washington street, in said city, for the life of one Lydia B. Wendell, one of the lessors, who is still living ; and that the complainant has erected a block of stores on said lot, of wood, two stories high, and measuring about forty-two feet on Washington street and running back about sixty-four feet, and containing three stores, two of which the complainant has agreed to let to certain parties, though the leases have not yet been executed, and that the south or rear end of said lot is about thirty feet from the north line of the westerly part of said first named lot; that the complainant also owns another large lot of land, situated on the north side of said Washington street, opposite said block of stores, and in March, 1859, commenced building a large first-class hotel, which was finished and occupied in January, 1860, as a public hotel, by the name of the Aldrich House, and is now used and occupied as a hotel, under a lpase for the period of five years from the first day of January, 1860 ; that said hotel is four stories high, about sixty-six feet on Washington street by about ninety feet in depth, is well patronized by the public, does a large business, and pays to the complainant a large rent, and that the complainant has expended on the purchase and lease of said lots, and in the erection of said several buildings and their appurtenances, more than sixty thousand dollars ; that the defendant, sóon after the complainant commenced building his hotel, purchased a large lot of land, situated on the corner of said Washington and Baker streets, opposite said hotel, upon which he is building a large livery stable, covering1 nearly the whole lot, and measuring about forty-five feet on Washington street, about one hundred feet on Baker street, and about ninety feet on the northerly line of the first described lot of the complainant, and within twenty-eight inches of the complainant’s said dwelling house along the entire northerly side thereof, and that the said stable is within six inches of the east side of the complainant’s said block of stores for the whole length of said block, and within forty-two feet of the front part of said Aldrich House; that said stable is not yet completed, but the sides and ends of the same are boarded up, and the roof placed thereon, but not shingled, and no floors are yet placed therein, but that tbe workmen and servants Nof the defendant are now engaged in completing s¡pd stable, and the same will soon be finished and put into use as a livery stable; that when said stable is completed and appropriated to the use aforesaid, the effect thereof will be such, that the complainant will suffer great and irreparable damage and mischief; that all his said buildings, and especially his said dwelling house and shops, will be exposed to great and imminent danger from fire, on account of the proximity of said stable, and the complainant be subjected to greater expenses in insuring the same than hitherto; that his dwelling house will be rendered untenantable and unfit for occupation on account of the disagreeable, unwholesome, and unhealthy odors and smells that will arise from the manure and filth that will collect in said stable, and on account of the swarms of flies that will be generated there, and on account of the noise and disturbance that will arise from the stamping of horses, and otherwise, in said stable, and on account of other nuisances that will proceed from said stable ; that said stores, in consequence of said stable, cannot be so well occupied, nor let to such good advantage, as if said stable were not built, and that from the odors, smells, manure, filth, flies, noise, and other nuisances that will be in and proceed from said stable, the said Aldrich House will lose its popularity and good standing as a public hotel, its business and custom, and the gains and profits thereby derived will be entirely and completely lost, and the complainant will lose the income and profits thereof that otherwise would accrue to him from leasing the same as a hotel, or from keeping the same for such purpose; that said property of the complainant has already been much depreciated in value by the building of said stable, and will depreciate very much more if said stable is completed and occupied for the purpose aforesaid, and that the complainant, in consequence of the building and use of said stable, will sustain other great and irreparable mischief; that the defendant is building said stable in that part of the City of Providence to which the provisions of the statutes concerning the erection of buildings in said city apply, and in direct violation of said statutes, because said stable is more than eighteen feet high from the ground to the highest point of the roof thereof, measuring on that side of the stable next to the highest part of the lot on which the same stands, and because the external sides and ends of said stable are not constructed of stone or brick, but of wood; that said stable covers a surface of more than six thousand square feet of land, and was built without permission of the Board of Aldermen of said City of Providence; that the complainant has requested the defendant to take down and remove said stable, and had well hoped, &c. The prayer of the bill was, that the defendant might be ordered and decreed to take down and remove the said stable from said lot, and be perpetually enjoined from proceeding to erect and maintain the same, and for general relief.</p> <p>To this bill, the defendant demurred for want of equity, and because the complainant had an adequate remedy at law, and because it did not appear from his bill that there was any impediment to his bringing an action at law to ascertain his rights and those of the defendant, or that any action or trial, verdict or judgment, had been hitherto commenced or obtained by him for that purpose, or that previously to, or at the time said bill was filed, there was any authentic record of said rights.</p> <p>Upon the filing of the bill, a motion for a special injunction, in accordance with that prayed in the bill, had been made by the complainant before the Chief Justice, and refused, on the ground, that the nuisance complained of arising from the use, and not from the building of the stable, it would be time enough to apply when the noxious use commenced.</p> <p>This is a bill, filed by aprivate individual, to compel the defendant to take down and remove a certain building, at the time of the filing of the bill in process of erection, (and then far towards completion,) by the defendant, upon his lot on the corner of "Washington and Baker streets, in this city, demanding this relief, as we construe the bill, upon two grounds:—</p> <p>I. That the building, when completed, is, as the bill charges, to be used as a “ livery stable,” and as such, will become a nuisance.</p> <p>H. That the building is an infringement of the act “ concerning the erection of buildings in the City of Providence.” See City Ordinances, pp. 78, &c.</p> <p>I. As to the first ground, we say : the bill is prematurely filed. The only averment in the bill of any present injury, is, “ that your orator’s said property has already been much depreciated in value by the building of said stableclearly, we submit, damnum absque injuria, unless the building itself, aside from its use, is a nuisance, which cannot be pretended, and is not alleged in the bill. But even were the building itself a nuisance, and so averred, it is well settled that mere diminution of value of adjacent property, without other irreparable injury, furnishes no foundation for equitable relief. Attorney General v. Nichol, 16 Yesey, 342, (per Eldon, Ld. Chan.) ; White v. Gohen, 19 Eng. Law and Eq. 146; Hirlcman v. Handy, 11 Humph. (Tenn.) 409 — 10. But here it is not a present nuisance that is complained of; but only what the plaintiff assumes will become such at some future time, if the building, when' completed, is put to certain uses. We reply: a livery stable in the City of Providence is not per se a nuisance. Too many already exist, and have always existed in every part of the city, as of every other city, — in fact, within a stone’s-throw of this very locality. See, too, Hirlcman v. Handy, 11 Humph. (Tenn.) 406 ; Harrison v. Broolcs, 20 Georgia, 537 ; express decisions that livery stables in towns and cities are not per se nuisances. It by no means -follows, therefore, that if a livery stable is opened in this building it will become a nuisance. The most -the plaintiff can claim is, it may or it may not, according to the manner in which it is kept. In this locality, a well conducted and properly'kept livery stable will rather prove a public convenience, — a convenience and benefit, rather than an injury, to the plaintiff’s hotel estate. At all events, it is what Lord Brougham calls, in Earl of Ripon v. Hobart, 3 Myln and.Keene, 169, (8 Eng. Cond. Ch. 337,) an “ eventual or contingent nuisance,” and as to which he says, “ that no instance can be produced of the interposition by injunction.” See, also, same case, 1 Cooper’s Sel. Cases, 333, (8 Eng. Cond. Ch. 469) ; and Barnes v. Balcer, 3 Atkyns, 750, by Lord Hardwicke, that “ the fears of mankind, though they be reasonable ones, will not create a nuisance.” See, too, per Kent, C. J., in People v. Bands, 1 John. 90. The averments in this bill of anticipated injury are but the expression of the plaintiff’s opinions, fears, — not statements of facts; and so are not admitted by the demurrer, nor susceptible of answer. That courts of equity do not take jurisdiction over these contingent nuisances, see further: Cummings v. Barrett, 10 Cush. 186 ; Hudson and Delaware Canal Co. v. New York and Erie Railroad, 9 Paige, 323 ; Grey v. Ohio and Pennsylvania Railroad. Co., 1 Grant’s Cases, Penn. 412; Dumesnil v. Dupont, 18 B. Mon. 800 ; Tichenor v. Wilson, 4 Halst. Chan. 197 ; Gwin v. Melmoth, 1 Freem. Chan. 505 ; Wilder v. Strickland, 2 Jones, Eq. N. C. 386,; Laughlin v. President, Sc., of Damasco, 6 Lid. 223. We submit, therefore, it will be time enough for the plaintiff to seek the interference of this court to enjoin the defendant from the use of his estate, when that use actually proves to be a nuisance and a special and irreparable damage to 'the plaintiff; and that until then, the court will leave the plaintiff to his legal remedies, which are full and adequate. Even then the remedy will be, not by destroying the defendant’s property, as sought by this bill, but by limiting its use. State v. Paul, 5 R. I. 185, (194) ; State v. Heen'an, 5 lb. 497, (513) ; Barclay v. Commonwealth, 25 Penn. St. (1 Casey) 503; Miller v. State, 3 Ohio, (N. S.) 475.</p> <p>n. As to the second ground on which the bill rests, — that the building is illegal, as infringing the act concerning buildings in that section of the city, — we say: 1. That act does not make the building a nuisance. For its infringement, the act itself prescribes the remedy and affixes the penalty ; and this court has no jurisdiction, even on information by the attorney general, much less on a bill, as here, by a private individual. Attorney General v. Utica Insurance Co. 2 John. Chan. 370, (379); Mayor of Hudson v. Thorne, 7 Paige, 261; Smith v. Lockwood, 13 Barb. 209; see,.also, Higgins v. Mayor, Sc., of Princeton, 4 Halst. Chan. 3Ó9. 2. But even if it did thereby become a nuisance per se, it is a common public nuisance ; and the' bill alleges no special injury to this plaintiff arising from this cause. The plaintiff, therefore, cannot maintain this bill. To entitle him to do so, he must show some special injury, and that, too, of an irreparable character, that cannot be compensated in damages at law, peculiar to himself, and not suffered in common with the public or the community. Irwin v. Dixion, 9 How. 10, and cases there collected by Judge Woodbury ; Georgetown v. Aleaaandn'ia Canal Co. 12 Peters, 91; Spooner v. Me Connell, 1 McLean, 337; and from the mere proximity of the plaintiff’s estates, the court will not infer such special damage. Higgins v. Princeton, 4 Halsted, Chan. 309 ; O’Brien v. Norwich and Worcester Bail-road Co. 17 Conn. 372; .Seeley vf Bishop, 19 lb. 128; Smith v. Loclcwood, 13 Barb. 209.</p> <p>I. The defendant demurs to' said bill and the plaintiff joins therein, and thereupon the plaintiff contends that the defendant admits by said demurrer — 1. That he is constructing said building in violation of the statutes of the State. 2. That he is constructing said building to be used for a livery stable. 3. That the very construction of said building has already greatly damaged the plaintiff’s said property. 4. That the use of said building for a livery stable will be an irreparable injury to the plaintiff’s said property.</p> <p>The plaintiff further contends—</p> <p>H. That the erection and proposed use of said building for a livery stable is in violation of the principle, that a man shall not so use his own as to injure that of another.</p> <p>III. That the admission by demurrer, that the use- of said building for a livery stable will be an irreparable injury to the plaintiff’s property, or will have a necessary tendency to such injury, is an admission that it will be a nuisance, and therefore unlawful. Burditt v. Swenson, 17 Texas, 489; Piclcard v. Collins, 23 Barbour, 444; Harvey v. Bewoody, 18 Ark. 252; Bay v. Bynes, 10 Ala. 63; Bobeson v. Pittenger, 1 Green’s Ch. 57; 2 Eden’s Injunctions, 270, and notes, and following pages and notes.</p>

<p>A part payment made by one joint debtor, not in satisfaction of the joint debt, but merely for Ms personal discharge therefrom, will not, in the absence of technical difficulties connected with the remedy, operate as a discharge of the other.</p> <p>Where a note is sued here, and a contract and part payment discharging one of the joint promissors were made in Massachusetts by and between parties resident there, such contract and payment are to be judged, as to their legal effect, by the law of that state; and hence, the part payment will operate, as at common law, to discharge only so much of the debt as it paid, and not the part of the joint debtor discharged, as provided in Ch. 114, section 2, of the Revised Statutes of Rhode Island.</p>

<p>The plaintiff sold to the defendant a lot of land, being apart of a larger lot by Irán owned, for a price agreed, and the title to a small portion of it being disputed by an adjoining proprietor, the parties entered into the following agreement:— “ Whereas, the estate purchased by the Bank of N. A. of J. A. A. is in the deed thereof described as being thirty feet in width upon a line drawn at right angles to the north and south hires thereof, and a portion thereof is claimed by L. P. M., so that the said corporation is in possession only of twenty-nine feet and three-fourths of an inch in the width measured as above; and, whereas, it has been agreed between said Bank of N. A. and the said A., that upon the present payment by said bank to said A. of such proportional part of the purchase money, as twenty-nine feet and three-fourths of an inch are to thirty feet, the said A. will release the bank from all further claim, excepit upon the contingency hereinafter mentioned; now, it is by said Bank of N. A. agreed, in consideration of the premises, that in ease the said A. shall, within ten days from this time, commence a suit against the said M., or other persons occupying or claiming a portion of the land east of the said lot of the said Bank of N. A., to establish the north line of his, said A.’s lot, and shall succeed in establishing a line, which, when extended in the same course to Broad street, would include in the lot conveyed to said hank by him more than the above width of twenty-nine feet and three-fourths of an inch, the bank will, thereupon, within ten days from the final termination of said suit, pay to said A., his heirs and assigns, for all the land included in the lot of the said bank exceeding said twenty-nine feet and three-fourths of an inch, at the same rate per foot, as the said hank has paid or agreed to pay for said twenty-nine feet and three-fourths of an inch; provided, it he determined in said suit that the said A. has a good title to said land.” Within the time stipulated, the plaintiff, A., brought his suit against M., who claimed a portion of the plaintiff’s lot east of the lot conveyed by him to the bank, and established the north line of his said lot, so that the line, extended in the same course to Broad street, would include in the lot by him conveyed to the bank more than the twenty-nine feet and three-fourths of an inch; Held that under the contract, the plaintiff was entitled to recover, at the agreed rate, for all the land included in the defendant’s lot, by the line so extended beyond the twenty-nine feet and three-fourths of an inch, although the suit had not settled the right of the defendant to the line so extended; the words,“said land,” in the proviso, referring to the land for which the suit was brought, and not to the land of the defendant.</p>

<p>Assumpsit against the defendant, as the maker of three several promissory notes, all dated, New York, August 15th, 1855 ; .one, for the sum of $3’05.90, payable, with interest, six months after date, and the two others for the sums ■ of $530.30 and of $423.95, respectively, payable, with interest, twelve months after date, to Joseph S. Ridgway or order, and by him endorsed to the plaintiff.</p> <p>The case was tried at the August term of this court for the county of Newport, 1861, under pleas of the general issue, payment and set-off, before the Chief Justice, with a jury, and on the trial it appeared, that the payee of the notes, Ridgway, in the month of August, 1860, had endorsed them to’ the plaintiff, to secure the sum of $1200 and upwards; due from Ridgway to John Gregson, — the balance to pay over to Ridgway; and that on the first nanped of said notes the sum of $100’ had been paid, and that interest on all said notes had been paid down to November 1st, 1856. "</p> <p>The defendant proved, in support of his plea of set-off, that on the 21st day of September, 1857, he conveyed to Ridgway, three houses and lots in Brooklyn, N. Y., subject to certain mortgages thereon, to enable Ridgway to become bail for him in a case pending against him in the Supreme Court of New York, and to indemnify Ridgway as such bail, and for any future undertaking by Ridgway, in his behalf, on an appeal of said case to the Court of Appeals, and that, upon the termination of said suit, and such indemnity, Ridgway was to reconvey said houses and lots to the defendant: that, on the 24th day of May, 1860, Ridgway executed to the defendant, the following receipt: — “ Received, New York, May 24th, 1860, of David P. Hall, three notes, of which the above are copies,” (being notes amounting in all to the sum of $585,) “ in full for all his liability to me for law services and salary, subsequent to January 1st, 1857, under which date I hold a previous note for $423.30, for matters antecedent to January 1st, 1857. Our borrowed money account and trust matters, in reference to the three houses in Brooklyn, and the charges, the rents, &c., subsequent to January 1st, 1857, are not included herein, but come into a separate account, with the proceeds of the sale of the machinery, in 1858 and 1859.</p> <p>(Signed,) Joseph S. Ridgway.”</p> <p>The defendant then offered to prove, by way of set-off to the plaintiff’s claim upon the notes sued, the rents received by Eidgway from the three houses and lots in Brooklyn, since November 1st, 1857, as a debt from Eidgway to him; claiming, that as the plaintiff took said notes after they were overdue, he took them subject to the equity of said set-off. The counsel for the plaintiff objected to the proof of such set-off, and the presiding judge ruled out the same, remarking, that if evidence had also been offered of an express agreement, prior to endorsement of the notes sued, that said rents should be set off against them, the ruling might have been differentr. Upon this ruling, the jury returned a verdict for the plaintiff, for $1548.83, the amount due upon the notes sued without allowance of the rents in set-off, whereupon, the defendant filed "this motion for a new trial, upon the ground of error in law in the above ruling.</p> <p>to the point, that Trafford and Gregson took the notes, being overdue, subject to all their equities, cited Chitty on Bills, 244; Hendiñcles v. Judah, 1 Johns. 319 ; Smith v. Van Loan, 16 Wend. 659 ; Williams v. Mathews, 3 Cowen, 252; De Mott v. StarJcey, 3 Barb. Ch. Eep. 403 ; Peed v. Warner, 5 Paige, 650; Lriggs v. Bordwell, 11 Wend. 504.</p> <p>That the set-off should have been allowed, they cited 1 Tidd’s Pract. 715, 716; 1 Dunlap’s Pract. 475, 480; Williams v. Mathews, 3 Cowen, 282; Lriggs v. Bordwell, 11 Wend. 504; Eev. St. Ch. 185, § -12.</p>

This was an action for deceit, in which the writ was served only on Preston Bennett and Joseph W. Nichols, two of the members of a firm of manufacturing jewelers, which did business in 'Wrentham, under the name of J. H. Sturdy & Co.; the other members of the firm not having been served.

Bill in equity by the plaintiffs, as assignees of Zachariah Allen, under a voluntary assignment by him executed on the 30th day of September, 1858, for the benefit of his creditors, for instructions,… Held: that the declaration of a use in an habendum is higher evidence of an intent to vest a degal estate in the cestui que use, than a, direct conveyance. There is another aspect of the premises and habendum in the deed, to be considered with reference to the intent.

Assumpsit by tbe plaintiff, as receiver of tbe Warwick Bank, appointed by this court by virtue of Cb. 126, section 47, of tbe Revised Statutes, to recover ffom tbe defendant, formerly president of… Held: which was the only meeting ever pretended to have been holden after the sale of the bank.

<p>A devise to a grandson, of certain real estate, “ for and during the term of his natural life,” and after the termination of the life-estate, “to the lawful issue of the grandson,” “to he and remain to such issue, in equal portions, and to their heirs and assigns forever; but if my said grandson, E. W., shall die leaving no lawful issue,” then over to other grandsons, in equal portions, and to their heirs and assigns forever, does not create an estate tail in the grandson, E. W., under the rule in Shelley’s case, hut, by the express terms of the statute of wills of Rhode Island, an estate for life only; and the remainder vests in his children, in fee simple.</p> <p>The liability of the life estate, in such ease, to forfeiture, for the nonpayment of an annuity charged upon it, though the liability'exist before-the birth of issue to the life tenant, does not destroy the life estate, so as to cause the remainder to the issue to fail for Want of an estate of freehold to. supim-t it; but in order to the destruction of the life estate, there must be- an entry for condition broken, or claim, by the heirs, for the purpose of avoiding it; and where the charge is upon the life estate only, the remainder vests in the children as they are born, unencumbered by the arrears of the annuity.,</p>

This was an application by Harvey E. Payton for a writ of habeas corpus, to relieve him from imprisonment in the Providence county jail, where he stood committed on mesne process, for want of bail, in an action of deceit. He had been admitted to, and taken, the poor debtor’s oath, but the jailer, nevertheless, refused to liberate him. cited Revised Statutes, Ch. 198, sections 1 and 16; Thompson v. Berry, 5 R. I. Rep. 95.

<p>This was a bill in equity brought by several tenants in common against a co-tenant, to enforce a division of the joint estate, ■made, as alleged, in pursuance of an agreement between them, or, in the alternative, for partition of the estate, and for an account of the rents and profits of the same, received by the defendant.</p> <p>The plaintiffs and defendant, and Messrs. A. C. Hawes & Brothers, were joint owners of the Remington farm, in Barring-ton ; and in 1852, had procured the same to be surveyed and divided into villa lots, and a plat to be made indicating the lots, a public square, and streets. After the plat was made, two of the lots were sold by it to one Charles T. Miller; and the defendant became, by purchase, the owner in severalty of three of the other lots, besides being a tenant in common, as one of the original undertakers, of three undivided tenth parts of the remaining lots. On the 29th day of June, 1859, the plaintiffs and defendant, and the said A. C. Hawes & Brothers, being all the coowners of said lots, entered into the following agreement, under seal:—</p> <p>“We, the owners in the Remington farm, so called, in Barrington, hereby agree to any division of the remaining portion of the said farm unsold, which a majority of interest in said property shall decide upon as fair and equitable.</p> <p>“ Witness our hands and seals this twenty-ninth day of June, 1859.”</p> <p>A.. C. Hawes & Brothers sold their interest to one of the plaintiffs, before the agreement aforesaid, although the deed was not recorded until the month following; and afterwards, the plaintiffs, who were owners of- a major part of the undivided property, and inde'ed of all of it, except what belonged to the defendant, made what they deemed to be a fair and equitable division of the lots, not including the square and streets, between the several joint-owners, appropriating to each his several share, by reference to the plab A memorandum of the division, stating-the share of each, including the defendant, and setting off to each the lots deemed appropriate to his share, was signed by all the plaintiffs, but not by the defendant; nor did it appear that he had anything to do with the division. It was the division thus made that the bill .was principally brought to enforce.</p> <p>The defendant set up in his answer, that he signed the above agreement, without consideration, at the request of some of the complainants; and that, in signing and sealing the same, his intention was, and he understood, and supposed that the intent, meaning, and effect of said paper was, to enable the owners of a major part of said land to decide and determine in what manner a fair and equitable partition of the same should be made: whether, by disinterested persons, by part of the owners making the division, for the others to take their choice, by giving to each of the owners a right to bid for a choice, or in whatever other reasonable manner; but that he did not intend, and did not understand or suppose that the intent, meaning, or effect of said paper was, to enable the owners of a majority of the interest to make a final division themselves, taking so much of the land for themselves. as they pleased, and allotting as little as they pleased to the other owners: and that if said paper or agreement shall be so construed, as to give such absolute power to the majority, to make such partition, the defendant insists that the same is unreasonable, unconscionable, fraudulent and void. As a witness, the defendant also swore that he understood the paper as set forth in his answer. He also insisted, in his answer, that the division did not include all the undivided land, to wit, a large lot, marked on the plat as the Public Square, which, when he signed the agreement, he wished to have, and supposed would be, and which ought to be, but is not, included in the division. He admitted that he had been in possession of the common land ever since March, 1856, and had received the rents, profits and issues thereof; but denied his liability to account to the plaintiffs therefor, on the ground, that he took possession of said lands by virtue of a written agreement, by virtue of which he was to have all the growths, issues and profits of the lands for one year, unless the lands should be sooner sold, in consideration of his paying taxes upon the property and taking proper care of the same; that since the execution of the agreement, no new agreement, written or verbal, has been made, and he has- ever since continued to use the lands, as he supposed, upon the same terms, and has continued to pay the taxes and to take care of the property accordingly; and that the little profit he has realized from cultivating the soil, or which he has or coulcl have realized from 'the property, has been less than the taxes thereon, vyhich he has paid, and the time and money which he has expended in going to the premises, and in attending to and taking charge and care of the fences and land. It appeared that the agreement under.which the defendant took and held possession of the common land, which was signed by the agent of the tenants in common, was as follows :—</p> <p>“ Providence, March 20,1836.</p> <p>“ I, A. V. D., do agree that Ipnoch Remington shall have the rents and profits of all the unsold lots of land, as delineated on a plat of the Barrington land, bought of said Remington, in consideration that he shall take good and husbandry care of the property, build all the fences, and pay' the taxes that may be assessed against the estate, reserving the right, at any and all times,' to make sale of all or any portion thereof, as opportunity may offer; which term of time shall terminate in one year from the first of April next. And it is further understood, that the said Remington shall have the right to retain his crops, or be allowed a fair compensation therefor.”</p> <p>There was no suggestion in the answer or in the proof, that the defendant’s fair share of the common lands was not appropriated to him by the division made by his co-tenants.</p> <p>cited to the point of consideration, Penn v. Lord Baltimore, 1 Yes. Sr. 444; BecMeyv. Newland, 2 P. Yms. 182; Knollys v. Alcoclc, 5 Yes. Jr. 648, 658; 2 Story’s Eq. Jurisp. §§ 729, 785. •</p>

Assumpsit upon a policy of fire insurance, insuring one Michael Maginn, in the sum of four hundred and fifty dollars, upon his dwelling house in North Providence, against loss or damage by fire, from the fourth day of December, 1857, to the fourth day of December, I860 ; the loss payable to the plaintiffs, as trustees of the Mechanics Mutual Loan Association, to whom the house was mortgaged, as stated in the application for insurance, in the sum of $500.

Bill in equity for the specific performance of an award of referees.

This was an action of assumpsit, commenced by the plaintiff, a professor of chemistry in Brown University, against the executrix of Tyler Mowry, late of Smithfield, for the plaintiff’s services in examining and analyzing the contents of the testator’s stomach after death, by order of the coroner, who, with a jury, made inquest of the cause of the testator’s death.

These were actions of assumpsit, brought- to recover the amount of several promissory notes clue from the defendants to the plaintiffs; the writs being served solely by garnishee process upon Horatio N. Slater, for the purpose of attaching the property of the defendants in his hands and possession.

Assumbsit against the town treasurer of the town of Fall Eiver, to recover the expenses of boarding one Edward B. Durfee, at the Butler Hospital for the Insane, and which had been paid by the plaintiff' town which had placed him there, upon the ground, that he was an insane pauper, settled in, and chargeable to, the defendant town.

This was an action of trespass and ejectment, brought by the plaintiff to recover about seventy acres’ of land lying in ’West Greenwich. Both parties claimed, — the plaintiff immediately, and the defendant mediately,' — under the will of Othniel Gorton, made on the 27th day of May, 1788; the testator dying.in June, 1797, and his will having been proved on the 27th day of June, 1797.

This was an action on the case, the 4th and 5th counts of the declaration in which were as follows:— ' 4th count. Held: even where the statute confers a right upon the plaintiff, e. g., Almy v. Harris, 5 John. 175 ; Long v. Scott, 7 Blackford, 405 ; Ward v. Severance, 7 California, 126; Shorter v. Smith, 9 Georgia, 517. II.

<p>This was an action of trespass, for assault and battery and false imprisonment, originally.commenced by the plaintiff against Zelotes "W. Holden and Benjamin A. Newhall, in this court, wherein, at the September term, 1861, upon the first trial under the general issue, the jury rendered a verdict of guilty, as to Holden, and not guilty, as to Newhall. Holden duly filed his motion for new trial, as of course, under the statute; but it appeared, that the motion of the plaintiff for a new trial, as to Newhall, was filed Tuesday, 'November 5th, 1861, the verdict having been rendered on the Saturday previous, November 2d, 1861.</p> <p>The statute (Rev. St. Ch. 16jB, § 1) requires the motion to be filed “ within forty-eight hours after the rendition of such verdict,” &c.</p> <p>contended that the motion was within time, inasmuch as Sunday should be deducted.</p>

Trespass for taking and carrying away certain woolen machinery, tools, and dyeing apparatus, and certain white and colored cotton, belonging to the plaintiffs as assignees of the late firm of Hunt, Earnum & Co., and which had been attached and taken from the possession of the plaintiffs, in Massachusetts, by one Joshua Lathrop, Jr., a deputy sheriff, upon a writ issued out of the Superior Court in that State, at the suit of the defendant, against said Hunt, Earnum & Co. The…

<p>In a suit by the receiver of a bank against a former president, the books of account of the bank, regularly kept, are admissible as evidence of the account entered on them against the president, when accompanied with evidence that they were open to his inspection and probably seen by him and that he made no objection to the account there entered, as proof of the ihiplied admission by him of the correctness of the entry; and the bank’s returns to the commissioners, examined and allowed by him, are admissible as like proof, upon evidence that the amount therein returned as due to the bank from its directors could not be made up, without including therein the amount of his account as stated in the books of the bank.</p> <p>The book of minutes of directors’ meetings, regularly kept by the cashier, is admissible as evidence of who of the directors wore present at, and of what was done by the board,- at a particular meeting, as between one who was president and a director of the bank at the time the minute was made, and a receiver of the bank, who represents the corporation.</p> <p>The president of a hank, in Rhode Island, has no authority, virtute officii, to surrender or release the claims of the bank against any one, and can only derive such authority from the vote of the hoard of directors, or from their assent, express or implied.</p> <p>■Where the charter of a hank x>rovides that the president shall receive no compensation as such, unless it he vote! to him hy the hoard of directors, any service that he may do for the hank -will he presumed to he done hy him as president, unless, from the nature of the service, or from the evidence, it appears, that the service was rendered outside of the duties of his office.</p> <p>The omission of a judge to instruct the jury upon a matter of law upon which his instruction is not requested, is no ground for new trial; especially where, from, the nature of the case, as disclosed hy the motion for a new trial, the omission could have done the party moving no disservice.</p> <p>The court cannot consider a motion for a new trial on the ground of a verdict against evidence, unless the whole evidence, or the substance of it, he reported to the court hy, or with the allowance of, the judge trying the cause.</p>

<p>Trover for a note of $2000, the declaration containing counts which laid the conversion as well before, as since, the death of the plaintiff’s intestate.</p> <p>At the trial of the case before the Chief Justice, with a jury, at the March term of the court, 1861, for the county of Providence, under the general issue, it appeared, that Emily A Olney, the plaintiff’s intestate, formely the wife of Thomas J. Simmons, was, in 1852, the owner of certain real estate in North Providence, and being under age, upon the petition of herself, and Simmons, her then husband, in which her father, Edmund A. Brown, joined, the General Assembly, at their October session, 1852, passed the following act, enabling her and her husband to sell the same:—</p> <p>“ Upon the petition of Thomas J. Simmons and his wife, Emily Simmons, and of Edmund M. Brown, -father of said Emily,, all of the City of Providence, praying for reasons therein stated, that the said Emily, yet a minor, be empowered to convey certain lands to her belonging, with the same effect as if she had attained her full age,—</p> <p>“ Voted and resolved, That the prayer of said petition be granted; that the said Thomas J. Simmons and Emily Simmons be, and are, hereby authorized and empowered, notwithstanding the minority of the said Emily, to make sale and conveyance, with the usual covenants and warrants, to Benjamin A. Holbrook, of Providence, of the lands following, viz.: (here follows a description of the lands); and that a deed or deeds of said lands to said Holbrook, made and executed by said Thomas J. and said Emily, in the form - and manner prescribed by law for the conveyance of real estate of which the fee is vested in a married woman, shall be as valid and effectual in law to convey the same, as if the said Emily Simmons had attained her full age. Provided, however, that the proceeds of said sale be invested in a promissory note, fully secured by mortgage, payable to said Emily or order on the first day of September, A. D. 1857, with interest from date to be paid annually to said Emily, for her sole and separate use ; and also provided, that said proceeds invested as aforesaid or otherwise, shall descend and be inherited in the same maimer as the said real estate would- have descended and been inherited.”</p> <p>Under the power given by this act, the estate was sold by Simmons and his wife to the defendant, and his promissory note for |2000, dated November 17th, 1852, was given to Emily Simmons, payable to her, or order, five years after date, with interest annually, and was secured by mortgage upon the estate sold. • Upon her death the plaintiff was appointed her administrator, and on the 1st day of February, 1858, having demanded the note of the defendant in whose possession it was, who refused to deliver it to him, brought this action against the defendant for his conversion of it.</p> <p>‘Upon this evidence, the Chief Justice nonsuited the plaintiff, upon the ground, that by the terms of the act of the General Assembly produced, the note, upon the death of Emily Simmons, afterwards Olney, passed to her heirs at law, and not to the plaintiff, her administrator, and that he had no right to demand or sue for the same.</p> <p>A motion was now made by the plaintiff to set aside the non-suit as improperly ordered, and to grant to him a new trial.</p> <p>cited, Wells v. Bowling, 2 Dana, 41; Borneman v. Sedlinger, 6 Shep. (18 Maine,) 225, 227; Wells v. Goales, 4 Conn. 182.</p> <p>I. The court erred in instructing the jury, as in the first cause of error is assigned. 1. This act of Mrs. Olney, in parting with the note, so far as the defendant is concerned, was not a contract either void or voidable. fily the act of the General Assembly, the note was expressly made payable to her, or her order, and the defendant could not have been, called upon for payment until the expiration of five years, but he was not debarred from paying it sooner; and if he could pay it- to Mrs. Olney, he could also pay it to any endorsee ; for the character of negotiable paper is given to it by the act of the General Assembly. 2. So far as the defendant was concerned, fie made no contract or bargain with Mrs. Olney; he simply paid his debt, and took up the evidence of it. If the plaintiff’s theory is correct and the ruling of the court sound, the defendant would be responsible to Mrs. Olney’s administrator after he had paid the money to Mrs. Olney herself, on the principle that a debtor cannot make payment to a minor. 3. The endorsement of the note to Bucklin by Mrs. Olney, and the payment of the note by the defendant; were upon the same day. Although the note had been previously pledged to Bucklin, Mrs. Olney received full value for it from Bucklin, from anything that appears to the contrary in the evidence ; and the defendant paid the full amount due upon it to Bucklin, so that, in substance, the payment of Holbrook was made to Mrs. Olney. 4. It is conceived that if it be held by the "court, that the transfer to Bucklin of the note was avoidable act, then the remedy of the plaintiff should be pursued against Bucklin, and not against the defendant, who was only discharging an obligation. 5. Assuming that the transfer to Bucklin and the payment of the note by the defendant were acts which Mrs. Olney, on account of her minority, could repudiate, then the further question, of the assent of the plaintiff to the act of his intestate, should have been submitted to the jury, in view of the lapse of time before any step Avas taken to recover the note. 2 Kent’s Com. 237, and cases cited; 1 Am. Lead. Cases, notes, 254.</p> <p>II. The court erred in the second particular assigned, in instructing the jury that a married woman cannot transfer a mortgage debt except by deed executed by herself and her husband jointly, and acknoAvledged by her separately. See Dig. of 1844, p. 270, § 2. The section referred to is aimed against husbands Avko seek to dispose of their Avives’ property. It ought not to be construed to prevent a debtor from paying his debt to a feme covert, or even to debar her from legally parting with a mortgage debt, if she chooses so to do.</p> <p>IH. The court erred in the third particular assigned. 1. The act of the Municipal Court of Providence, placing a- guardian over the person and property of a married woman was a void act, and no disability accrued to Mrs. f01ney in consequence. 2 Kent’s Com. 226. In AocícAv. 6rarucro,l Ves. Sen. 157, the Chancellor said, that marriage ipso facto did not determine the guardianship, though the court could never appoint a guardian to a female infant under coverture. Reeves, on the Domestic Relations, 328, says : — “ Marriage by a ward in all instances affects the rights of a guardian more or less. If a female ward marry, the guardian’s power must cease both as it respects her person and her property. This, I apprehend, has never been questioned when she married an adult, for such husband has a right to her person, with an uncontrollable right to her property.” The office of a testamentary guardian determines on the marriage of a female ward. Mendes~v. Jíéra&s, 1 Ves. Sen. 89. 2. The unreasonableness and inconsistency of such a power is manifest from the fact, that, by the theory of the law, husband and wife are one and indivisible. During the coverture the wife is sub potestate viri, and it is not competent for him to delegate the custody of her person and tlie disposition of her property, to another. 8. This court has power to interpose between husband and wife, and appoint a trustee ; but if courts of probate can do this, the provisions of the law conferring this power on this court are a nullity. 4. But under the statute, the court of .probate has no power like this. Their authority is limited (Rev. St. CH. 138, §7) to a case where the individual is liable /to bring himself to want. Now, in the proceedings in this case, it is asserted that Mrs. Olney is the wife o'f Hiram A. Olney; no suggestion is made that he is liable to bring himself to want; and as the wife cannot be in danger of being, chargeable so long as the husband is in no danger of becoming so, there was nothing in this ease, within the statute, for the court to do.</p> <p>IV. The court erred in the fourth particular assigned. The privilege of minority is a shield, and not a sword. Upon the avoidance of a contract on this account, it is obligatory, both at law and in equity, upon the minor, ±o restore all that he has received. In this case, she had received from Bucklin four months board, and the balance, in money; she had also received divers sums of money from the defendant, exhibited by receipts produced by the defendant; and the jury should have been instructed to allow all such sums so proved, and ought not to have been restricted to the consideration of those items only, which were absolutely necessary for her support. 2 Kent’s Com. 240; Badger v. Phinney, 15 Mass. 359 ; Khtehen v. Lee, 11 Paige, 107 ; Bmiih v. Evans, 5 Humph. 70; Breed v. Judd, 1 Gray, 455 ; Hillyer v. Bennett, 3 Edw. Chan. 222 ; Taft & Go. v. Pike, 14 Verm. 405 ;, Willis v. Twamhly, 13 Mass. 204 ; 1 Am. Lead. Cases, notes, p. 260, (4thxed.) and cases cited.</p> <p>The first exception cannot be sustained. The instruction was, certainly, sufficiently favorable to - the defendant. The act of Mrs. Olney in parting with this note, if not entirely void as we submit, was, under the circumstances, clearly voidable by her as a minor, and having died under age, the plaintiff is equally entitled to avoid it, in behalf of her estate. See 2 Kent’s Com. 234, &c.; Willis v. Twamhly, 15 Mass. 204; Bing'h. on Infancy, (ed. of 1849,) 49, n. 1, and cases cited. Second exception. The instruction was correct. Our statute concerning the property of married women, itself stands in the place of the trust conveyance for her benefit, provided by the statutes of other states. She has, therefore, no powers over the estate, except those given her by the statute. Compare Metcalf v. Goolc, 2 E. I. 855. The statute gives her no power to coiivey, except by deed. Eev. St. Ch. 136, § 4 ; Stat. of 1844, p. 270, § 2. Any other construction of the statute would enlarge the wife’s power over her estate to the destruction of the husband’s rights therein, as secured by the act. Eor, apart from the statute, at common law, the title to this note could be passed only by the endorsement of the husband, made by himself or by his agent duly authorized, — the only difference, in case the wife acts as agent, being, that possibly (but of this quere ¶ the cases are conflicting) she may, in case of such a note as this, payable to her own order, make the endorsement in her own name; but it still operates as the husband’s endorsement, not as hers. Her own endorsement made, as in this case, without his authority, is entirely void; in this all the cases agree. Barlow v. Bishop, 1 East. 432; Mil~ lerv. Delamater,¥Z Wend. 433; Savage v. King, 17 Maine, 301; 1 Parsons on Contracts, 212. When, therefore, the statute takes away from the husband this right to make title by his endorsement, it equally takes away the power of the wife to do so ; and title can only, therefore, be made in the prescribed statute form, i. e., by the deed of both.</p> <p>Third exception. The probate guardianship over Mrs. Olney, as a person liable to bring herself to want, &c., under the statute, was valid, particularly as our statute, secure’s to her, separate property, and the guardianship was granted at the request of her husband. It is similar to the well settled jurisdiction of the English Chancery over lunatics, though married women. See Stock on Law of Non. Comp. 95-122 ; In re Tomlinson, 1 Yesey & Beames, 57 ; In re Kewson, 13 Eng. Law & Eq. 197.</p> <p>Fourth exception. This instruction was sufficiently favorable to the defendant. See'Bingh. on Infancy, 29, 30, and n. C.</p>

This was a motion to answer an action at law, brought upon a promissory note against the defendant as maker.

This was 'an action of trespass and ejectment, brought to recover twety-five forty-eight undivided parts of a lot of land in Jobnston, claimed by the… Held: that the words, — “ erecting, building and keeping in repair,” &c., — did not create a condition; and that the grantor’s remedy was on the covenant. Jaclcson v. McClellan, 8 Cowen, 295. Conditions subsequent are not favored in law. 4 Kent’s Com. 146, (9th ed.) ; Ludlow v. New Yorh and Harlaem Railroad, 12 Barb. 444. .

Assumpsit by the plaintiffs, who had been law-partners against Arezelia Gr. Potter, widow and executrix of Charles Potter, late deceased, to recover the sum of about $1500, for professional services rendered to her testator in his lifetime.

<p>■Where a testator gave by his will to his wife, all his estate, both real and personal, during her widowhood, and “ all the personal estate that may remain after the decease or marriage of my said wile,” over to his brothers and sisters in fee, and the personal estate was proved to consist, in part, of household furniture. farming utensils, and farm stoók, the gift over was held not to be void for indefinitenoss; the words, — 11 that may remain after the decease or marriage of my said wife,” — being construed to refer .to such of the stock as survived her death or marriage, and so much of the furniture and farming utensils as was not then worn out by use.</p> <p>In such case, the wife being executrix of the will, and not being sole or residuary legatee, was required to give bond in the ordinary form, to return an inventory, &c., and not allowed to give bond to pay debts and legacies.</p> <p>The bond required by the Court of Probate below, being ip more than double the value of the personal property, was reduced to that amount; and held not to be a continuing security to those entitled to the personal ivoperty, m remainder, but to be discharged upon the widow’s settling her final account with the Court of Probate, in which she might credit herself with the personal property retained by her, as legatee during widowhood.</p> <p>In such case, the widow refusing to give the bond required by the decree of the Court of Probate, but appealing therefrom, the court proporly appointed a custodian of the personal property, as well for the security of those interested therein, as for the care and management of the same.</p>

<p>Mortgaged goods, in the possession or the mortgagor, may be levied on by a creditor of the mortgagor, whilst the mortgage is redeemable either at law or equity, unless the goods shall have been sold in the meantime in pursuance of the agreement of the parties to the mortgage; and by an amendment of the statute, made since the decision in Earle v. Anthony, 1 R, X. Rep. 307, the period of redemption is no longer confined to sixty days after condition broken.</p>

<p>Debt upon a jail bond, against tbe principal and sureties of the same; the declaration setting forth the condition of the bond and the breach thereof by the principal.</p> <p>The second plea alleged, that after the execution of the bond, the principal filed, at the March term, 1861, of the Supreme Court for the county of Providence, his petition for the benefit of the law in relation to insolvent debtors ; that the plaintiffs had before that time recovered a judgment in said court against the principal, upon which they had taken out an execution, and caused him to be committed to the Providence county jail, and that the bond aforesaid was given by the said defendants upon said commitment; that, in the said petition, the plaintiffs were set forth as creditors of the principal, and entered an appearance against said petition by their attorney, Charles E. Brownell, Esq.; that, at the request of their said attorney, the principal, at said term and a few minutes before his petition .was called, had an interview with said attorney, at which interview said attorney made certain inquiries of the principal concerning his pecuniary circumstances, the amount and character of his debts, and the disposition of his property, and concerning other matters referred to in said petition, and then and there expressed to him his entire satisfaction with the answers he had received and the result of said interview, and assured him that the plaintiffs would withdraw all opposition to- his receiving the benefit of said insolvent law; that thereafter, immediately, the said petition was called for hearing, whereupon said attorney for the plaintiffs announced to the court, in the presence and hearing of the principal, that he withdrew all opposition to said petition, and assented to the granting of the same, upon hearing which, the court expressed its determination to grant said petition, there being no further opposition thereto ; that upon said announcement of said attorney of the plaintiffs, the attorney of the principal, — then petitioner,— suggested to the court, that the oath annexed to said petition was not in the language required by the- statute, whereupon the said attorney for the plaintiffs stated to the court that he would waive all objection to all informalities and irregularities, and would allow an amendment to said petition; that the attorney of the petitioner then and there expressed to the court his fear that an amendment would not answer his purpose, but that it would be better for the petitioner to have his petition continued to the next term of the court; that the said attorney for the plaintiffs then and there rose and stated, in the presence and hearing of the petitioner, to the court, that so far as his clients (meaning the plaintiffs) were concerned, the petitioner might do as he pleased with his petition, that he withdrew all opposition to said petition, and now withdrew his appearance to the same, whereupon said petition was continued to The next term of said court; that thereafterwards, to wit, on the day of 1861, and before, the 18th day of May, 1861, and before the principal is alleged to have passed off the limits of said jail-yard as set forth in the plaintiffs’ declaration, the said James B. Ames, one'of these defendants, met the said attorney of the plaintiffs in the street in the city of Providence, and then and there expressed to said attorney his gratification that the plaintiffs had withdrawn their opposition to his principal’s having the benefit of the insolvent act, and that he, the said Ames, was satisfied that the said principal .had no means whatever, and was glad, for his sake, that the plaintiffs had let him off; that the attorney of the plaintiffs then'.and there, in reply to said Ames, said, that he had an interview withjhe principal, and had satisfied himself of the correctness of his statements in his said insolvent petition, and, consequently, they, meaning the plaintiffs and said attorney, had' concluded to let said principal go; that thereupon, and before the said 18th day of May, 1861, the said Ames stated to the principal the conversation he had had as aforesaid with said attorney of the plaintiffs, and that, in consequence, and upon the faith of the doings, actions, representations and assurances of the plaintiffs, through their said attorney as aforesaid, the said principal was induced to believe that he was at liberty to go whenever he pleased, and that all attempts to pursue him farther had been and would be abandoned by the plaintiffs, and that, therefore, he, the said principal, believing as aforesaid, did, on said 18th day of May, 1861, go-bff and beyond the limits of said jail, as he lawfully, might, and this he is ready to verify. Wherefore, &c.</p> <p>To this plea there was a demurrer and joinder.</p> <p>First. What was set forth in the plea, as stated by the attorney for the plaintiffs, even if said by the plaintiffs themselves, would not amount to a license to the principal to go off the jail limits; all of it relating to the petition and to the proceedings upon it.</p> <p>Second. The attorney of record of the plaintiff in a suit has no authority,, unless it be specially given, to discharge the defendant from custody on a writ of execution, except upon payment of the whole debt. L.ewis v. Gamage, 1 Pick. 346; Crary et al. v. Turner, 6 Johns. R. 51, and n.; Jaclcson v. Bartlett, ,8 lb. 281; Kellogg v. Gilbert, 10 lb. 220; Union Ba/nlc of Georgetown v. G'eary, 5 Peters, 113; Givens v. Briscoe, 3 J. J. Marshall, 532.</p> <p>The plaintiffs have waived the performance of the condition of said bond, and are estopped from prosecuting this action. Hides v. Gram, 17 Vermont, 449; Prestons. Mann, 25 Conn. 118; Hawes v. Marchant. 1 Curtis, 136'; United States v. Howell, 3 Wash. 620; Pleming v. Gilbert,• 3 Johns. R. 520 ; Langworthy v. Smith, 2 Wend. 587; 1 Esp. Cas. 31.</p>

This was an action of trespass, brought^ by the plaintiffs, as assignees, under a voluntary assignment, of the late firm of Hunt, Farnum & Co., for the taking and carrying away of certain woolen machinery and tools and certain white and colored cotton, from their possession in Pawtucket, Massachusetts.

<p>Although a party to a bond is estopped at law/from showing a want of consideration, or a different consideration from that actually recited in the instrument, or fraud, even, in any matter collateral to the consideration, yet while the obligation remains executory, a party thereto, sued upon the bond, may specially plead that it was procured from him by fraud, covin, and misrepresentation of the plaintiff, setting forth the particulars thereof, and showing that it reaches the substance of the consideration; and there is no form of practice or technical rule of law adopted or acted upon in Rhode Island, which estops a defendant from availing himself of such a defence, where, at least, it is evident that it will work no injustice to the plaintiff.</p>

<p>Assumpsit upon a policy of insurance effected with the defendants, by which the latter insured twenty-five hundred dollars on their stock, as contained in the rubber works of Bourn & Brown, situated on Dorrance street, in Providence, R. I.; in case of loss or damage by fire, the amount to be paid to Thomas Brown, as per application on file.</p> <p>The declaration, which was in common form, averred a loss by fire of the goods insured to have taken place on the 13th day of April, 1855, during the continuance of the policy.</p> <p>The third plea to the first count in the declaration was as follows : — “ And for a further plea in this behalf, as to the first count in the plaintiff’s declaration, the defendant by leave, &c., saith, that the plaintiff ought not to have or maintain his aforesaid action thereof against the defendant, because the defendant saith, that in and by the said policy in the said declaration mentioned, it is expressly provided, that no suit or action of any kind against the defendant'for the recovery of any claim upon, under, or by virtue of said policy, should be sustainable in any court of law or chancery, unless such suit or action should be commenced within the term of twelve months next after the cause of action should accrue; and in case any such suit or action should be commenced against the defendant after the expiration of twelve months next after the cause of action should have accrued, the lapse of time should be taken and de'emed as conclusive evidence against the validity of the claim thereby so attempted to be enforced. And the defendant, in fact, saith, that the plaintiff did not commence his aforesaid action against the defendant within the said period of twelve months next after his, the plaintiff’s, said cause of action (if any) accrued to him, and this the defendant is ready to verify; wherefore, he prays judgment if the plaintiff ought to have or maintain his aforesaid action thereof against the defendant, &c.”</p> <p>The fifth replication, which was pointed at this plea, was:— “ And the plaintiff further says, as to the said third plea by the defendant above pleaded, that the said plaintiff, by reason of any thing by the said defendant in said plea alleged, ought not to be precluded and barred from having and maintaining his action aforesaid thereof against him, because he says, that within twelve months next after his said cause of action accrued to him, he commenced his certain suit or action for the recovery of the loss and damage by him sustained in consequence of the non-performance by the said defendant of the said several promises and undertakings in said declaration mentioned, in the names of Bourn & Brown, trustees to this plaintiff, to wit, at the March term of this court, A. D. 1856, which said suit was by the defendant, under the act of Congress in such case made and provided, removed into the Circuit Court of the District of Rhode Island, at the June term thereof, A. D. 1856 ; and at said term, the said defendant pleaded, that the subject matter of said suit had been settled by an award of arbitrators, and that the defendant never promised, as in the declaration in said case was alleged; and upon issue joined upon said plea, a verdict was rendered for the plaintiff, ■and judgment was arrested in said cause upon the motion of the defendant notwithstanding srich verdict; and the plaintiff avers that said suit was commenced by himself and for his benefit, and was for the same cause of. action for which this suit or action is brought and pending; and the plaintiff avers, that he commenced this action as soon as he reasonably could, after the judgment was arrested in said suit in the name of said Bourn & Brown, trustees as aforesaid, in said Circuit Court of the United States, and this he is ready to verify; wherefore he prays judgment, and his damages, &c.” >></p> <p>To this replication the defendant demurred generally, and the plaintiff joined in the demurrer. ;</p> <p>I. The record must be construed by the court, and by that it appears that the actions' in the Circuit Court and in this court are not by the same party, or by his successor, in the sense of the law, so that the one shall prevent the other from being barred by the statute of limitations.</p> <p>II. The provision- in the contract of .insurance .contains no exception for such a case' as is set up in the' replication, and no exception whatever;, and it is not the province of the court to modify that contract, or insert'such an exception.</p> <p>III. The' exception in some, statutes of limitation, in this-regard, can no more' be introduced into this case than the other provisions of such statutes making six' years, for instance, rather than one year, the period within which suit'is to be brought.</p> <p>IV. All the analogies of'the- law are against this replication. The principle is, that one suit wrongly brought and dismissed for causes other'than those specifically named in the statute, or abated by the death of the' plaintiff, does not pi’event the bar of the statute-in another case,'as in cases of. nonsuit. Angelí on Limitations, § 328, and cases cited. So, where a suit in chancery is dismissed because’ there is a remedy' at law. Ibid, § 329. And even where an injunction-has been .granted. Ibid, § 329. ' '</p> <p>I. The law limits the bringing of actions on. contract to six years, the contract, in'this case, to one: The suit was' brought within the time limited in the contract, in-which no judgment has been rendered, but a perpetual stay of proceedings intei’posed by an arrest of judgment after verdict. -.The case having been originally commenced in this court, the result is the same as if arrived at here. Under the plaintiff’s replication, this proceeding upon the contract is; in effect, one continuous' suit. The terms of the contract are satisfied if suit .is. commenced within twelve months after the loss or damage shall have occurred; and if no judgment has ever been rendered in favor of the defendants, but they have taken advantage of a technical defect to suspend judgment against them, and further proceedings are instituted to avoid the technical defects, the plaintiffs are violating the spirit and letter of their contract, and endeavoring to use it for a harsh and illegal purpose, when they attempt to set it up in bar of such further proceedings. The language of the stipulation is, that the lapse of time, without suit, “ shall be taken and deemed as conclusive evidence against the validity of the claim.” Where suit has been commenced within the time, and it has failed to result in a judgment for either party, the lapse of time cannot be held to be conclusive, or even presumptive, evidence as to the validity of the claim. This stipulation as to time has already been sustained against the authority of learned' courts and amid conflicting decisions, and its effect should not be amplified.</p> <p>EE. The declaration sets forth the policy, and the stipulation relied upon is part of the record. The plea is bad, because it does not follow the stipulation. The language of the stipulation is, that suit must be brought within “twelve months next after the loss or damage shall occur.” The plea avers, that the suit was not brought within twelve months next after his, the plaintiff’s, cause of action (if any) accrued to him. A-s this contract is an attempt to vary the rights of the parties from what they would be under the statute law, it must be construed strictly and pleaded with exactitude. The stipulation set up in the plea is widely different from that in the policy, is a fatal variance from it, and furnishes no defence to the declaration.</p>

<p>An express grant of the right of access to, and to take water from a well in close No. 1, as appurtenant to close No. 4, confers no' such right upon close No. 3, adjoining, because in the same ownership* as No. 4, so as to authorize the owner to pass through his close, No. 4, to the well, and take water therefrom, for the use of his close, No. 3. N</p> <p>Only easements apparent and continuous, and necessary to the proper enjoyment of the part granted, or one of the parts granted, pass hy implication of the grant, upon the severance of an estate, one part of which has served the uses of another part; and this implication proceeds upon the presumed intent of the parties to the deed or deeds.</p> <p>If the user in the land of another has heen uniform and continuous for a period of at least twenty years, hy the acquiescence of the owner of Such land, and under an adverse Claim of right, and such owner or owners have, during this time, heen in possession and free from legal disabilities, these facts concurring, are, in this State, conclusive evidence of a grant in conformity to the user.</p>

<p>A replevin bond is suable immediately upon the defendant’s recovery of judgment in the replevin suit, and without reference to the issuing, or return or return day, of the execution therein.</p> <p>The filing of a plea to the merits is a waiver of all pleas in abatement subsequent to it.</p>

Assumpsit, with the money counts, to recover of the defendant, as town treasurer of the town of Burrillville, the sum of two hundred dollars.

<p>Replevin for a quantity of groceries sold by the plaintiffs to one Waterman Chace; the writ being dated, and having been served, January 29th, 1861. Upon the opening of the case to the jury, at the present term, and the taking of the testimony of Albert L. Saunders, one of the plaintiffs, it was agreed by the parties, that the cause should be taken from the jury, and upon the testimony of Saunders, submitted for final decision to the court, under the pleas of non cepit, and property in the defendant, a jury trial being waived.</p> <p>The testimony of Saunders was, in substance, that the goods described in the writ were, with others, sold by the plaintiffs to Waterman Chace, for his notes endorsed by his brother, the defendant, and were delivered to Waterman, upon receiving-therefor his notes purporting to be thus endorsed. The endorsements were forgeries, and were so pronounced by the defendant; who, however, with a knowledge that the goods replevied had been procured by his brother of the plaintiffs by means of the forged endorsements, received a transfer of them from him, to secure himself as his brother’s endorser. The notes given for those and other goods were of the dates, respectively, October 10th, 1860, November 6th, 1860, December 8th, 1860, January 5th, 1861, and January 22d, 1861. At the time when the goods were replevied, four of the notes were in the State Bank, having been discounted by that bank for the' plaintiffs, and the last was in the plaintiffs’ possession. Pending the writ of replevin, the plaintiffs sold and delivered all the notes to one Amos Warner, for fifty cents upon the dollar; Warner having purchased them for the wife of Waterman Chace, who desired to get the proof of her husband’s criminality out of the way. At the time of the sale and delivery of the notes, nothing was said about the disposition to be made of this suit, or of the goods replevied.</p> <p>I. We are to try the case with reference to the facts as they were at the time of the replevy, and, more especially, as there is in this case no plea puis darrein continuance.</p> <p>U. The plaintiffs not having discovered the fraud until some time after it was practiced upon them, and acting as soon as they discovered it, have a right to rescind the contract, although they could not fully restore the party who had defrauded them, to his former position. 2 Parsons on Contracts, 277.</p> <p>III. As these notes covered about $800 or $900 worth of goods which Waterman Chace had sold, and which the plaintiffs did not get, and only about $200 worth which they did get, and as there was no note which covered the goods replevied and none others, it was impossible to surrender to Waterman Chace, or to any one else, the notes received for the goods replevied without, at the same time, surrendering notes which covered a much larger amount of goods which he had converted to his own use. As this confusion of goods, titles, notes, and rights was caused by the fraudulent conduct of Waterman Chace, and as he had put it out of the power of the plaintiffs to tender back to him what they received for the goods replevied, without, at the same time, surrendering a much larger amount which they had a right to retain, the plaintiffs, upon the well-established doctrine of a confusion of goods or titles, might retain the whole of the notes. The principle, that no man shall take advantage of his own wrong, also applies.</p> <p>IY. But if the plaintiffs were bound to surrender any one, or any part, of. the notes, in this case, to Waterman Chace, it is not a matter that Asa P. Chace has a right to be heard about. It is, res inter alios, with which he has no concern. Stevens v. Austin, 1 Met. 557 ; Frost v. Lowry, 15 Ohio, 200, (215, 216).</p> <p>This suit must be regarded, precisely, as if brought against Waterman Chace; and the notes should, at least, have been brought into court, and impounded for the benefit of all concerned. This, the plaintiffs disabled themselves from doing by selling the notes to Mrs. Chace, through Warner. They cannot have their goods and the notes too. 2 Parsons on Contracts, 192, n. o. 277.</p>

Assumpsit against the defendant, who did business under the name of the Dyerville Manufacturing Company, to recover the sum of $1680,62, for services of the plaintiff in superintending the repairs of the Centredale Mill, in North Providence, from March 9th, 1859, to October 1, 1859, in order to prepare the same for the use of the Dyerville Manufacturing Co., then composed of the plaintiff and defendant; and also, to recover the additional sum of $530.00, for the plaintiff’s…

<p>A contract, not henceforth to carry on the trade of a butcher, or to sell meats from a wagon or shop in and around the village of K., may be proved by parol, notwithstanding the statute of frauds; since, by the death of either party, which might happen within a year of the time of making it, its performance would be complete.</p>

<p>John O’Brien, indicted jointly with five others, for the murder of Daniel C. Bennett on the fourth day of July, 1860, was, at the September term of this court for the county of Providence, in the same year, convicted, whilst those jointly indicted with him were acquitted.</p> <p>The evidence disclosed, in general, that a number of Irishmen, of whom the prisoner was one, from some real or supposed affront to them offered by Bennett, who was a stranger, set upon and hustled him in a drinking shop, in Canal street, Providence, and there so beat and kicke J him, especially about the head, that he shortly afterwards died. Evidence was produced by the government tending to show that O’Brien, particularly, whilst Bennett was crowded by the others against the counter of the shop, stood upon it by the side of him, and having on a heavy pair of boots, kicked him, repeatedly, with great violence, in the head. Surgeons, also, who examined the ^liead and brain of Bennett, after death, testified, that in their opinion, the violence committed upon Bennett on this occasion was the cause of his death. The jury having returned a verdict of guilty against O’Brien, he moved for a new trial, upon the grounds, that the verdict was against the weight of the evidence, — of the discovery of new and further evidence, — of. the separation of the jury during the trial, — and of errors of law in the rulingsof the court upon matters of evidence; the particulars of all which are stated in the opinion of the court with sufficient distinctness to make their decision, and the reasons for it, intelligible. ¿</p>

<p>Replevin for certain cotton machinery, which was used by Amasa W. Whipple, in the Robin Hollow Mill, so called, in Cumberland. The case was submitted to the court by agreement, — a jury trial having been waived, — and proved to be a contest for the machinery replevied, between the plaintiff, who claimed under several mortgages of the same executed to him' by ■ the said Amasa W. Whipple, and Joseph T. Sisson, and the latter, who claimed to hold the same as'trustee for said Amasa, of the machinery and of other property, under the will of Abigail Whipple, the mother of said Amasa. At the trial, it appeaied, that Abigail Whipple, by her will, placed a considerable real and personal estate in trust, for her sons one Nathaniel C. Dana succeeding in the trust the original trustee, J ohn B. Read, and the defendant, Joseph T. Sisson, succeeding in the trust the said Nathaniel C. Dana. .The following extract from the will of said Abigail was agreed to embrace all of her will which bore upon the nature of'the trust, and the powers and duties of the trustee:</p> <p>“I give, devise and bequeath to John B. Read, of Pawtucket, his heirs, executors, administrators and assigns, the farm on which I now live, with all the privileges and appurtenances thereof; it being the same estate devised by my father, Elisha Waterman, to the said Richard Carrique, junior, in trust for me — by the name of the Homestead Farm; and also one undivided half part of all my other estate, real and personal,, of which I have the disposition and power of appointment, and which is not specifically herein devised and bequeathed: to have and to hold the- same, with all the rights, privileges and appurtenances thereto belonging, to him, the said John B. Read, his heirs, executors, administrators and assigns, for, and during the natural life of my son, Amasa W. Whipple, upon trust; that he, the said J ohn B. Read, shall collect the rents, issues, ■ profits, interest, dividends and annual produce of all said trust-property and estate, and after paying out the same, the necessary expenses of managing and improving the same and of keeping the same in repair, and the taxes and insurance upon the same, he shall pay over to my said son, Amasa W. Whipple, at least once in every year, the nett annual produce of all said real and personal estate ; provided, however, that the said trustee may permit the said Amasa to use, occupy and possess the said Homestead Farm, or other real estate, without being subject to the payment of any rent therefor.</p> <p>“ And upon the decease of my said son, the said trustee shall convey all said trust-property and estate to the children of said Amasa, who may be living at the time of his decease, and to the issue of any deceased child or children, in equal shares,' — the issue of any deceased child taking the share of the parent; and upon such conveyance, which said trustee shall so make as to vest in the grantées therein a full- and absolute estate in fee simple, in all said property ancKestate, thig trust shall be ended.</p> <p>“And for the better management and improvement of the estate and property herein and hereby devis.ed in trust, the said trustees severally shall have power, and they are hereby severally authorized and empowered, in the execution of their respective trusts, to lease the whole, ot? any portion of said real estate, for such period, and upon such terms, as the trustees may think proper; to make partition of any estate of which each may be seized in common with the others, or with any other person or persons, and to make and execute valid deeds of partition thereof; and with the assent, in writing, of the beneficiary of the trust, to make sale of any portion of the trust-estate and property held by each trustee, in his discretion, and upon such sale to execute good and valid conveyances of the same, to the purchaser thereof; and upon receipt of the purchase money therefor, to invest the same in other productive real estate, stocks, or securities, and to stand seized of such investments upon the same trusts, and for the same purposes, and for the same periods, and to dispose of the same at the decease of the beneficiary, in like manner as the said trustee stands seized of the property and estate devised to him -by this will; and each trustee may, with the like assent in writing of his beneficiary, alter and vary the investments so made, which investments shall always be made in the name of the trustee.”</p> <p>It further appeared, that Dana, whilst he was the trustee under said will, and that Sisson, whilst he was trustee, had, with the assent in writing of Amasa W. Whipple, made several changes in the investment of the trust-property, both real and personal, by which the interest of the' trust-estate in the Eobin Hollow privilege had been increased 'from an undivided eighth to the whole of said privilege, a mill had been built thereon, and cotton machinery purchased for, and put into the same, for the purpose of establishing said Amasa inlmsiness, as a cotton manufacturer. It also appeared, that to furnjsh him with credit to carry on his said business, the plaintiff had endorsed paper and incurred liabilities for his accommodation, taking as his indemnity therefor, mortgages of both mill and machinery, from both the trustee, Dana, and the trustee, Sisson, in which the said Amasa did not join, and of the machinery for which the suit was brought, executed by the trustee, Sisson, and the said Amasa W. Whipple.</p>

<p>This was a motion to dismiss a suit, upon the ground of illegal and void service. The defendant, late of the insolvent firm of Isaac Merritt & Co., of New York, and now residing in Dutchess county, in said State, had, with his copartner, made an assignment of the effects ahd credits of the firm, for the payment of their company debts; and amongst other credits, of one due from Stephen Waterman, the plaintiff in this suit. The assignees brought an action in this court against Waterman for the amount of the account claimed, in the name of the assignors; and the case standing for trial at the September term of this court, 1861, through their counsel in said case, moved for, and obtained from the court, a writ of protection for William T. Merritt, tbe present defendant, as a party witness in tbe case, in wbicli he was, as above,, a nominal plaintiff. The writ of protection was issued on the 12th day of November, 1861, and was in the ordinary form, commanding the sheriffs of the several counties, and their deputies, that they “ let the said William T. Merritt of and from all civil process, whether original or judicial, so long as he shall attend said' court, and until he shall be discharged from the protection aforesaid by this court at the present term.” Under this writ of protection, the said William T. Merritt attended the trial of the above case of Isaac Merritt & Co., at the September term of this court, 1861, and until the 'cause was committed to the jury, when, on his way home, he was, on the 26th day of November, 1861, served with a writ of summons in tins action; this being the only service of the writ. The action, thus commenced, being entered at the present term, the counsel for the defendants now moved to dismiss it, for want of legal service of the. writ, “ the said William T. Merritt being, at the time when, according to the sheriff’s return, he was served with the plaintiff’s writ of summons, exempted from service of legal process, and under the protection of the court.”</p>

<p>At tbe October term, 1862, of tbe Court of Common Pleas for tbe county of Newport, tlie prisoner was tried on an indictment which, charged, “ that he, the said Joseph E. Maeomber, at Portsmouth aforesaid, on the second day of April, A. D. 1862, at the annual election for State 'officers, to wit, for Governor, Lieutenant Governor, Senators, Representatives, Secretary of State, Attorney General and General Treasurer, held in the town of Portsmouth, and in all the other towns and cities of this State, on the first Wednesday of April, A. D., 1862, being said second day of April, A. I). 1862, did fraudulently vote, not being qualified to vote according to the constitution and laws of this State; and then and. there well knowing that he had no right to vote at said election, according to the constitution and laws of this State,” &c.</p> <p>At the trial before Mr. Justice Shearman, with a jury, it appeared, that the prisoner’s name was ujion the voting list prepared by the board of canvassers of the town of Portsmouth, for the election of State officers, held on the first Wednesday of April, 1862; that in the year 1861, no registry- tax was paid by or for him, but that a road tax of seventy cents was assessed against him for that year, which he worked out, and that on the assessor’s book of the property tax of the town for that year, there was this entry: “ Isaac Borden by J. E. Maeomber, for real estate, $4000, $1000 for personal estatethe tax for the personal property amounting to eighty-two cents, — and that separately from this tax for personal propery, Isaac Borden was assessed for $40,000, personal property. It further appeared, that the prisoner was the occupant of Isaac Borden’s real estate, assessed against “ Borden by Maeomber,” as above, in 1861, and that the tax collector of Portsmouth for that year having called upon Borden for his taxes, Borden paid him all the taxes assessed against him as above, except the above tax of eighty-two cents for $1000, personal property, which he said the prisoner must pay, and that he must see thé prisoner about it; that the collector then called on the prisoner for that tax, and that he paid it in the year 1861. One of the assessors swore, as his explanation of the above assessment of the tax on real and personal estate against “ Isaac Borden by J. E. Maeomber,” that it was the custom in Portsmouth, when a farm was let out, to tax it in that way, putting the name of the occupant after that of the owner, but that there was no tax assessed against the prisoner for that year, to his knowledge. Three of the assessors for that year, including the town clerk, who was one of them, swore^ that this was an assessment against the prisoner for $10.00, personal property, for the year 1861, — the town clerk swearing that he had a distinct recollection, that the $1000 personal property tax against the name of “ Isaac Borden by J. E. Macomber ” was meant for the prisoner’s tax; that he remembered this, because ■there was not another such case, to the best of his remembrance, on the book. It further appeared from the testimony of the three assessors last referred to, and'as one of them swore from the former tax-books which he had examined, that, for the last few years, the prisoner had been taxed, by placing his name under Borden, among the “ B’s,” for $1000, personal property; and by the testimony of the assessor, who had examined the former tax-books, (the town clerk,) that a few years earlier he found the prisoner taxed amongst the “ M’s,” thus, “ Joseph E. Macomber, $1000, personal property.” All the witnesses agreed that the prisoner’s general character for honesty was good, or that they never heard anything against it, or that it was as good as the “ average.” It further appeared, that before the meeting of the electors, in April, 1862, the prisoner was warned, on two several occasions, that he had no right to vote, on the ground that no tax was. assessed against him, and that, as sworn by the witness who afterwards-objected to his vote at the meeting, on the first occasion, the prisoner told him he “ was trying to scare him and on the second occasion, that when told “ there was no tax against him,” the prisoner replied, “ that it was done by neglect of canvassers, and that he should votethat the witness and another looked over the collector’s book in the town-hall, in the prisoner’s presence, and told him that they could not find his name in the book, and that the witness told him that he should complain against him if he voted; that “ he had consulted legal advisers, and if he voted he would be liable to an actionto which1 the prisoner replied, that “ he knew all about it, and wanted none of my [his] advice.” The prisoner also said, that he had paid a tax of eighty-two cents, but the witness did not remember that he said anything .about the road-tax. On town-meeting day, -when the prisoner put in his ballot for Senator and Representatives to the General Assembly, the witness last referred to objected to the prisoner’s vote; but the moderator replied, “ that the name- was upon the list, and that he must receive the vote.” It further appeared, that the prisoner was returned by the town of Portsmouth as a juror, at the April term of the Court of Common Pleas, for the county of Newport, 1862.</p> <p>Upon this evidence the jury found the prisoner guilty ; whereupon he now moved this court for a new trial, upon the ground-that the verdict was against the weight of the evidence, which was reported in extenso to the court.</p> <p>The prisoner was indicted under Ch. 29, section 2, of the Revised Statutes, which was as follows:—</p> <p>“ Sec. 2. If any person in any election shall fraudulently vote, not being qualified, or having voted in one town, or ward, or district, or shall vote twice at the same election for the same candidate, or for different candidates for the same office, or twice in different places at the same election, he shall be fined one hundred dollars; and no person, after conviction of such offence, shall ever after be permitted to exercise the privilege of voting for any civil or military officer.”</p>

Assumpsit by tbe plaintiff, as administrator on tbe estate of tbe late Waterman Franklin, to recover of the defendant, son of the said Waterman, tbe amount of two promissory notes given by him to bis father ; one, for the sum of $508, dated April 29th, 1846, and the other, dated September 1st, 1850, for the sum of $17, — both payable on demand, with interest.

<p>Volunteers under a deed of trust, defectively or not completely executed and inoperative at law, cannot have the aid of a court of equity to complete and perfect it; but if the legal conveyance be effectually made, the court will iiroteet all e'quitable interests, and enforce all equitable rights and duties under it, as promptly and completely, though made without, as if made with, consideration.</p> <p>The party who makes a voluntary deed, whether of real or personal estate, without reserving a power to alter or revoke it, has no right to disturb it; and as against himself it is valid and binding, both at law and in equity.</p> <p>When the maker of a voluntary deed of trust delivered it to the trustee named in it, who communicated it to the cestuis que trust and promised them to put it on record, the deed was held to be completely executed by delivery, although the trustee subsequently refused to execute the trusts, and delivered up the deed to the maker of it to be cancelled, whcT destroyed it. Such a deed was established, and the trusts thereof, upon proof of its contents, were declared.</p> <p>Oestuis que trust, unless they reject the provisions of a trust deed, are presumed to accept them, if for their benefit; and this rule'holds in Khode Island, in all cases, not excepting trusts for'Creditors.</p> <p>It is not essential to the validity of a trust created by the beneficial owner of the trust property that there should be an acceptance or declaration of the trust by the trustee in whom the legal interest is vested.</p> <p>It would be quite too dangerous for a court of equity to set aside, or refuse to execute, the trusts of a deed, upon the maker’s own testimony that he was not in his right mind when-he made it. " *</p>

Assumpsit by the plaintiff, as endorsee of a bill of exchange for $976, payable ten days after date, drawn on the 21st day of August, 1861, by one Seth W. Baker on the firm of N. Sturtevant & Co., of Boston, who accepted the same.

<p>Assumpsit upon a check drawn by the defendant on the 25th day of June, 1862, upon the High Street Bank, in Providence, requesting said bank to pay to the plaintiff, or order, on the 12th day of July, 1862, the sum of forty-five dollars, which check the bank refused to pay, of which the defendant, on the same day, had notice, &c. • ,</p> <p>The action was commenced in the Court of Magistrates, in the City of Providence, in which court the defendant submitted to judgment, and appealed therefrom to the Court of Common Pleas for the county of Providence. At the trial of the case, under the general issue, at the December term of said Court of Common Pleas, 1862, the defendant, in support of the issue, on his part, testified, that he received for the check a note o'f one B. N. Mathewson, for $57.50, dated September 30th, 1861, and payable four months after date to the plaintiff or order, and by him endorsed “ without recourse,” and was to have a receipt for thirteen dollars due from him to the plaintiff. Upon being asked by his counsel, if there was a bargain or contract between him and the plaintiff as to taking the note against Mathewson and giving his check' therefor, the counsel for the plaintiff objected to the question; but the court ruling in the evidence da bene, the plaintiff excepted. The defendant, in answer to the question, swore, that one day in June, 1862, a man came into his office, whom he did not know, and giving his name as Randall B. Sweet, told him that he knew him well by sight, was a member of the same church, and wanted to know if he would do him a favor ? He then asked the defendant, if he was owing B. N. Mathewson anything. The defendant replied that he was, but that Mathewson had presented to him no bill. The plaintiff asked, how much ? The. defendant replied, he supposed about sixty dollars. The plaintiff then said, that Mathewson had sold out, and he held a note against him, which was good for nothing to him, and if the defendant would take the note of him, he could offset it against Mathewson’s claim upon him, and he, the plaintiff, was willing to divide the spoil, and would be very thankful. The defendant replied to this, that he did not shave notes, and did not believe that he could turn the note against the account. The plaintiff said, that there was no kind of doubt but that Mathewson would accept the note and release the account. Upon the defendant’s requesting him to consult a lawyer and see if this could be done, the plaintiff promised that he would, and á few days after came and said that he had, and that Mathewson could not get away from it, and would be obliged to offset it. The defendant then told the plaintiff, that he was careful about lawsuits, and wished him distinctly to understand, that he wished no trouble with Mathewson, and asked the plaintiff, why he did not sue the note ? to which the plaintiff replied, that Mathewson was worth nothing, and it would be of no use. The defendant then told the plaintiff, that in case Mathewson should refuse to receive or accept the note, he, the defendant, should have trouble, and could do no better than the plaintiff, and proposed to him to give him a check for forty-five' dollars, payable in so many days, that he might have time to fall in with Mathewson, and see if he would accept the note; and if he would, the plaintiff was to release the defendant from an account of thirteen dollars which he held against him, and the defendant was to pay his check; but if Mathewson refused to accept the note, then the plaintiff to return the check and take back his note, as the defendant would not enter into a lawsuit. To this proposition the plaintiff agreed, and the papers were exchanged in accordance with this agreement. A few days after, and before the check was payable, the defendant saw Mathewson, who presented his account, and refused to make any such set-off as was proposed; whereupon, the defendant gave notice to the plaintiff, and desired him to give up the check and take back the note, as agreed; which-the plaintiff refusing to do, the defendant stopped the payment of the check, at the bank on which it was drawn. This testimony of the defendant not being affected' by his cross examination, or the evidence of any other witness, the plaintiff’s counsel then requested the court to rule out the defendant’s testimony as illegal and incompetent; but the court refused to do so, and charged the jury, that the evidence was legal and proper for their consideration, and if they believed it, went to show a failure of consideration.</p> <p>To this ruling, refusal to rule, and instruction to the jury, the plaintiff excepted, and now brought his exceptions to this court for their action upon the errors of law therein.</p> <p>It appeared that the promissory note of the plaintiff was produced in court by the defendant, and there impounded for the use of the plaintiff.</p> <p>Parol testimony cannot be introduced to contradict or vary the terms of the check, as it is a written instrument, in such terms as implies a legal obligation, without any uncertainty as to the object or extent o^the engagement of the defendant. 1 Gfreenleaf on Evidence, § 275; Edwards on Bills and Promissory Notes, 813-815 ; Payne v. La,due, 1 Hill, 116. The contract and consideration were, at the time of the making of the contract, perfect ; the defendant having received, in consideration of his check, a discharge from a debt of about $13, due from him to the plaintiff, and B. N. Mathewson’s note for $57.50, payable to the order of the plaintiff, and by him endorsed and delivered to the defendant. The evidence does not show a failure of consideration, but a parol contemporaneous agreement, tending to prove that an absolute written agreement for the payment of money was to be void upon the happening of a certain contingency, viz., the refusal of B. N. Mathewson to accept his own note in set off to the debt due from him to the defendant. Erwin v. Saunders, 1 Cowen, 249; Edwards on Bills and Promissory Notes, 313, 315 ; Spring v. Lovett, 11 Pick. 417; Ely v. Eillon, 5 Denio, 514 ; Earnham v. Ingham, 5 Verm. 114. Nothing less than a total failure of consideration can be shown in bar of a recovery in this case. If any pilrt of the consideration was good, the plaintiff was entitled to recover that amount. Edwards on Bills and Promissory Notes, 328, 329, 333; Byles on Bills, (2d Am. ed.) 531, and cases cited; Parish v. Stone, 14 Pick. 198, 208, 211; 2 Greenleaf on Evidence, (7th ed.) 139, n. 1, and cases cited, (where the whole question is discussed, and authorities cited.) The charge to the jury, that the evidence went to show a failure of consideration, was wrong, as the evidence, if it showed any, showed only a partial failure of consideration.</p> <p>The rule as to the admissibility of parol evidence, stated by the other side, does not ¿exclude the inquiry whether the consideration for this check had failed, and that was the only purpose for which the evidence was offered and admitted. Byles on Bills, (4th Am. ed.) 193,197, and notes ; Story on Bills, \\ 184,187; Edwards on Bills, 313, 315. It is erroneous to suppose that the evidence varies or contradicts the check. On the contrary, it admits the check in all its terms, but shows a reason for avoiding it, namely, the failure of the consideration; and in this respect the evidence is legally sufficient. Story on Bills, §§ 184, 187; Edwards on Bills, 328, 329, 335; 1 Parsons on Contracts, 386 ; Pike v. Street, 1 Moody & Malk.- 226; Barlow v. Fleming, 6 Ala. 146 ; Pice v. Goddard,, 14 Pick. 293 ; Stone v. Fowle, 22 lb. 166 ; Byles on Bills, (4th.Am- ed,) 169, and notes ; Adams v. Mo Grew, 2 Ala. 675; McDonald v. Harrison, 12 Missouri, 447. The failure of the consideration was total. The defendant was not, in fact, discharged from 'the chpra of $13. Such discharge depended upon the assent of Mathewson to the proposed set-off, which was refused.</p>

<p>Where the undivided half of an estate was, at the request of a married woman, purchased by her trustees under a settlement of her property made after marriage, which settlement included the other undivided half of the estate, and was conveyed to such trustees for the sole and separate use of the married woman for life, and in default of her appointment by will was to be conveyed by the trustees “ to her heirs at law, or other persons, in fee simple, or in such other estate therein,, and in such proportions as they would respectively be entitled to by the statutes then in force in said State of Rhode Island,” it was held, the wife dying and having failed to anoint, that she had reserved to herself, in the undivided half thus purchased, an equitable estate in fee simple under the rule in Shelley’s case; and that her husbafid was entitled to curtesy therein, such construction being found to be most conformable to her intent.</p> <p>The reservation by a wife, in her marriage settlement, of the rents and profits of her estate to her sole and separate use for life, does not amount to the expression of an intent to exclude her husband from curtesy in such estate at her death, the exclusion of the husband being partial only.</p> <p>An equitable estate in fee simple, inherited by a daughter from her mother, will not, by the statute of descents of Rhode Island, upon her death, descend to her father, but to her sister, as her next of kin of the blood of the mother from whom the estate descended to her.</p> <p>The court, upon the application of trustees, advised the purchase by them, with the trust moneys, of a mortgage upon a portion of the trust prox>erty, but which embraced other property not included' in the trust, and which was then, and might continue to be, devoted to xirecisely the same persons and uses as the mortgaged portion of the trust estates, but declined to consider questions of exoneration of one of the estates from, or contribution of the other estate to, the Xoayment of the mortgage which might never arise, until the same had arisen, and the parties interested therein were before the court.</p>

The original bill in this controversy was filed by Henry ~W. Gardner and others against Charles T. and Lucinda James, for the purpose of setting aside in favor of the complainants, — who claimed title by execution to certain real estate situated on and near High street, in Providence, — of a deed of the same, executed by the assignee of J ames to his wifq, the said Lucinda; upon the ground, that said deed was procured by said J ames to be executed to said Lucinda, in fraud…

Debt upon a judgment, for the sum of $196.98 damages, and costs of suit taxed at $13.20, recovered by the plaintiffs against the defendant, at the September term of the Superior Court of the State of Connecticut, within and for the county of Litchfield, A. D. 1858. Pleas, mud tiel record,, and payment, upon which issues were joined. _ Upon the trial of the cas,e before the court, to whom the parties submitted it, it was proved, that the defendant, as the agent of Messrs.

<p>Assumpsit by an endorsee against tlie maker of a promissory note for the sum of $980.10, dated February 16th, 1856, and payable six months after date.</p> <p>Plea, statute of limitations. The second replication to said plea was, “ that within six years next after the said several causes of action in the said declaration mentioned accrued to the plaintiff, to wit, on the 18th day of August, 1862, for the recovery of the said several causes of-action, she sued out of the Supreme Court of the county of Providence, a writ of summons, in an action of the case against the said defendant, and on the same day delivered said writ to William H. Hudson, a deputy sheriff of the county of Providence, for service; that on the fourth Monday of September, 1862, on which day said writ was returnable to said court, the' said deputy sheriff returned the said writ to said court without service, for want of the body, goods and chattels, or real estate, or ' any place' as the last and usual place of abode of the said' defendant, to_ be by him found within his precinct; that the plaintiff, to wit, on the 9th day of September, 1862, and within one year from the issuing of the first writ in this case as aforesaid, sued o.ut another like writ, returnable to said court, bn the fourth Monday of March, 1863, for the said defendant to answer the complaint of the plaintiff in the action aforesaid; that said writs were severally sued out by the plaintiff against the defendant, with intent to implead the said defendant upon and for the several causes of action in the declaration mentioned, and to cause him to appear in the said court to answer the complaint of the plaintiff in said action, and with intent to declare against him for the said several causes of action in the said declaration mentioned; that according to her said intent the plaintiff afterwards, to wit, on the 11th day of March, A. D. 1863, declared upon said last mentioned writ against the said defendant, and that the said several causes of action in the said declaration mentioned, and each and every of 'them, did accrue to the plaintiff within six years next before the issuing of said first mentioned writ out of said court, in manner and form as the said plaintiff has declared against him; and this, she, the said plaintiff, is ready to verify: wherefore she prays judgment,” &c.</p> <p>To this plea the defendant demurred, generally, and the plaintiff joined in the demurrer.</p>

<p>This was an amicable bill for the specific performance of a contract of purchase of a lot of land, situated at the southeast corner of Cooke and Manning streets, in Providence: the contract of purchase providing, that a good title- by quitclaim deed should be given to the wife of the purchaser; and that if the title offered was not satisfactory to his counsel, an amicable suit should be instituted to decide upon the same, without expense to the purchaser.</p> <p>The title of the plaintiffs, proposed to be given, accrued under the seventh, or residuary clause, of the will of Mrs. Eliza Ward, made on the thirteenth day of June, 1841, and the codicil to the same, made on the second day of October, 1844, both of which were admitted to probate on the eighth day of April, 1845, and were as follows :—</p> <p>“ Seventh. I give and devise the rest and residue of all my estate, real, personal and mixed, in possession, ■ reversion and remainder, to my respected kinsman, Moses Brown Ives, to him, his heirs and assigns forever, in trust, nevertheless, for the stole, separate, and exclusive use and benefit of my niece, Eliza B. Rogers, her heirs and assigns forever, with power to the said Moses Brown Ives, trustee as aforesaid, to sell and convey such part or parts of said estate as he may deem expedient, and to invest the proceeds in some other property at his discretion, subject to the trusts herein declared, with further power to the said trustee to pay over to my said niece, Eliza B. Rogers, such of the proceeds of any property sold as aforesaid, as he may think the circumstances of her situation may require.”</p> <p>The codicil, after reciting the above clause of the will, verbatim, proceeds:—</p> <p>“ Now, I do by this codicil order and direct that the said Moses B. Ives, his heirs and assigns, shall' collect and receive the rents, income, profits and dividends of all the property in the said seventh clause of my said will devised, and pay over the same to the said Eliza B. Rogers, wife of Joseph Rogers, taking her separate receipt therefor, for her stale and separate use and benefit, independently and exclusively of the said Joseph Rogers, her husband, and without being in any wise subject to.his debts, control, interference or engagements; and upon further trust, that if the said Eliza B. Rogers shall depart this life in the lifetime of the said Joseph Rogers, her husband, then and in such case, the said Moses B. Ives, his heirs or assigns, do and shall, from and after the decease of the' said Eliza B. Rogers, stand and be possessed of and interested in the said estates upon and for such trusts, intents and purposes as the said Eliza B. Rogers, notwithstanding her coverture, shall, by her last will and testament in writing,'or any codicil or codicils thereto, or any writing or writings in the nature of, or purporting to be, a will or codicil, direct or appoint; and in default of such direction or appointment, in trust for the heirs and assigns of the said Eliza B. Rogers, forever.”</p> <p>In the year 1857, Moses Brown Ives, the trustee named in the will, died; and his son, Thomas Poyñton Ives, party plaintiff to the bill, was appointed by this court,,at the instance of Mr. and Mrs. Rogers, trustee under this will, in the place of his father; and on the thirteenth day of October,' 1862, with the consent of Mr. and Mrs. Rogers, made the contract of sale with the respondent now sought to be enforced by the bill. The title offered, which was a deed from the trustee appointed by the court, under the power of sale contained as above in the will, and the deed also of Mr. and Mrs. Rogers, executed and acknowledged as required by the statute of this State, for the conveyance of the wife’s estate, and which the counsel for the respondent objected to, was set forth in the bill with the contract; whereupon, the respondent demurred to*thé bill, and the cause was submitted to the court upon briefs.</p> <p>I. The power of sale given in Mrs. Ward’s will is revoked by the codicil. The will evidently contemplates, that whatever moneys, in the discretion of the trustee, the circumstances of Mrs. Rogers may require, are to be raised by sale of the estate, while the codicil applies only the rents and income to this purpose, (evidently contemplating they will prove sufficient,) leaving the estate itself inalienable during her life, or, at least, during her coverture. '</p> <p>II. At the most, the power of sale is strictly a discretionary power to Moses B. Ives, the first trustee, personally; and the will containing no language extending it, or showing, any intent to extend it, to his successors in the trust for the time being, it expired with his decease, and does not pass to the new trustee, the present complainant, ■ apppointed by the court. However much it is to be regretted for the purposes of this particular trust estate, this will admits of no other construction without direct departure from, and an entire disregard of, all settled authority on this subject. Hill on Trustees, 211-226,489, notes and cases; Sugden on Powers, 152, 214; Townsend v. Wilson, 1 Barn. & Aid. 608 : Oole v. Wade, 16 Vesey, 27 ; Fordyce v. Bridges, 2 Phillips, 497, (22 Eng. Cond. Ch.); Bowles v. Weelcs, 14 Simons, 591, (37 lb.); Newman v. Warner, 1 Simons, .N. S. 457, (40 lb.); Oglander v. Oglander, 2 DeGr. & Sm. 381; Wilson v. Pennoch, 3 Casey, (27 Penn. St. Rep.) 238; BeloteY. White, 2 Head, (Tenn.) 703.</p> <p>I. The new trustee has the same power of sale as the trustee originally named. The decree appointing him substitutes him to the place of the original trustee, with all his powers. This is in accordance with the general rule in such cases. Hill on Trustees, 211. But the defendant seeks to bring this case within the exception to this rule, (stated in the next paragraph of Hill, p. 211,) where the power is of a kind that indicates a personal confidence. No such intent to limit the powers of the trustee can be fairly inferred from the language of the will. This instrument is remarkable for several important omissions. - Two of these have already been pointed out in explanation of the attempt to supply them by the codicil. Another omission, and one common to most of the wills drawn and executed in this State, till recently, is that of any provision for the appointment of a new trustee. Other necessary provisions in trust wills, not important to this case, however, cannot be found in either the will or codicil. Although we find in the will no provision for the appointment of a new trustee, yet a court of chancery always had the power to supply the omission. The rule of decision in that court, as above quoted, is to the effect, that a trust once created shall not only be sustained, but sustained in. full force, and shall not be lost, destroyed, or impaired, by the non-acceptance or the death of a trustee, but'that the trust shall be executed, as created, irrespective of the person named as the person chosen to execute it.</p> <p>The burden of proof that thejpowers of a trustee were personal in their nature lies upon the party seeking to bring the case within the exception to the general rule of the court. This case is clearly within the general rule. The devise is to the trustee in fee. His successor, appointed by the court, therefore takes a fee. The entire legal estate is vested in the trustee, whether named in the will, or to be named by the court. Three powers only of the trustee are specifically named: the power to sell; the power to reinvest; the power to apply the proceeds of sale to the support of the beneficiary. The powers to sell and reinvest are clearly within the residuary powers of a trustee. And these powers are given to the trustee, and not to the person named. Thus, the power to sell is granted to “ Moses Brown Ives, trustee as aforesaid.” The words, “ as he may deem expedient,” simply imply the ordinary discretion of selection of the portions to be sold, and not the special discretion which -is reposed in the judgment of a particular person. So also of the reinvestment. It is to be made under the ordinary liability of the trustee, and at his ordinary, not special, discretion, and subject to the trusts declared. Any new trustee may as well exercise these powers, under his ordinary liability as trustee, with safety to the trust estate. These powers are granted to the trustee for the purpose of the trust, and the protection of the trust estate and the preservation of the trust, and not to the person named as trustee.</p> <p>The cases cited by the defendant’s counsel show that the fair construction of the instrument should be made from the whole taken together, and not from a critical view of certain phrases in it. To this point, especially, is 1 Sugden on Powers, 152, § 50. In Oole v. Wade, 16 Vesey, 27, the trust and powers were of such a nature that the ground of their creation was personal confidence entirely. In eifect, the testator granted to his executors the power of making a will so far as his residuary estate was concerned, limiting the objects of his bounty to his “ relations and kindred.” It is manifest that such a power could be executed only by the persons named. In Fordyce v. Bridges, 2 Phillips, 497, the trustees were empowered to select investments for personal estate in different countries, under different laws, — not to sell and reinvest under the law of England. Such a choice necessarily required a special discretion, which could not be revived in new trustees appointed by the court. Bowles v. Weehs, 14 Simons, 591, has no application to the present case. In Newmanv. Warner, 1 Simons, (N. S.) 457, the grant of the power was not made to the trustees as trustees, as in this case, but to the persons named as trustees for the purposes of preserving contingent remainders, and “ to the survivor of them and the executors and administrators of such survivor,” thus limiting the exercise of the power to persons coming within this description. Oglander v. Oglander, .2 DeGf. & Sm. 381, has no application to the case at bar. The first American case cited, Wilson v. Pennoclc, 27 Penn. St. Rep. 238, is a direct authority in favor of the plaintiff. The marginal note to that case is as follows, (see 17 U. S. Dig. 581): “ Discretionary powers conferred on a trustee will devolve upon his successor, appointed by the Court of Common Pleas under the act of June 14th, 1836, after the first had been removed.”. The Tennessee case, Belote v. White, 2 Head, 703, has no bearing on the case at bar, as in that case, the power of sale was expressly limited to the trustees named, “ or any two of them, or the survivor of them.” 20 U. S. Dig. 286.</p> <p>II. In the case at bar, the title offered is one that cannot be objected to upon the technical grounds already considered. The trustee holds and represents the entire legal estate, and conveys it. The beneficiary (her husband joins) holds the entire equitable estate, and makes conveyance of that to the purchaser. There could have been no question about the power of conveyance under the original will. It is not necessary to cite authorities, when the general rule is as well established as that already .quoted. But in this case the codicil settles the only doubt that might have been raised upon the "validity of the conveyance tendered. The trustee is therein directed to convey the trust estate, in case the beneficiary should die in the lifetime of her husband and without exercising the power of appointment by will, to her “ heirs and assigns ” in fee. This direction recognizes the beneficiary’s power of conveying her equitable estate by deed. There is no language which can be construed as intending to put a restraint upon either anticipation or alienation of her property. A good title to the estate contracted for is therefore tendered to the defendant, and he should be decreed to perform his contract.</p> <p>I. The power, of sale in the will is revoked by the codicil. One obvious purpose of the codicil was not so-much to provide for the appropriation of the annual income, (for under the will, Mrs. Eogers would have been entitled to this, and, if received by her husband, equity would have held him to have received it as her trustee,) but to vest, beyond all -question, the legal title of the estate in the trustee, during the life, or at least, dxiring the coverture, (whichever, in this respect, may be the proper construction of this codicil) of Mrs. Eogers. Had the will stood alone, it might have been extremely doubtful whether she did not take the full legal title in fee simple as an executed use, subject to the collateral power to Moses B. Ives to appoint the estates in fee simple,, overriding and defeating her estate. Neither the power of disposition over the proceeds, given Mr., Ives, (any more than in the case of powers to executors to sell for the payment of debts) nor the limitation, “for the sole, separate and exclusive use and benefit ” of Mrs. Eogers, though a feme covert, ( Williams v. Waters, 14 Mees. & Welbs. 166, Warer.'Richardson, 3Maryland, 505,) nor that the power is to be exercised by sale and conveyance, would seem of necessity to require that the legal estate should be vested in the trustee, if indeed the absence of all intermediate active trusts — of all declaration as to the mesne rents and profits— did not require, that* until the exercise of the power the legal estate should Arest in the cestui que use. But while this was one obvious object and effect of the codicil, viz., to vest, beyond question, the legal title in the trustee, during the life or coverture of Mrs. Eogers, (but no longer, see cases infraf) yet neither this, nor to confer upon her testamentary power of disposition over the estates during coverture; seem entirely to answer its purposes. It evidently looks further. Upon Mrs. Eogers’ decease, living her husband, the trustee is to stand seized to certain specified uses “ of the said estates,” not merely of so much of them as may then remain, but of the estates themselves. Now, it is clear, if the power of sale remains, the whole estate may be converted and paid over to Mrs. Eogers, during her life, to the entire exclusion of those claiming under these uses, though claiming as purchasers under this codicil. Again, if the trustee sells and reinvests, upon what trusts shall he reinvest ? those of the will alone, or those of the will and codicil together ? If of the will alone, Mrs. Eogers’ testamentary power over such reinvestments is gone, and thus, evidently, the purpose of the codicil defeated. But to say that the reinvestments are to be upon the trusts of both will and codicil, is to strain the language of the will to meet something not in existence, and which could not have been in the contemplation of the testatrix at the time of using it. The re-investments must be upon the trusts of the will alone. Qallini v. Noble, 3 Mer. 691; Francis v. Collier, 4 Euss. 331, (4 Eng. Cond. Ch. 332). We submit, therefore, that it is not consistent with the whole scope and purpose of the codicil, that the power of sale should remain, and that it is therefore revoked.</p> <p>II. But supposing the power of sale is not revoked by the codicil, still the plaintiff is not entitled to a decree. 1. It is claimed that the deed of release from Mr. and Mrs. Eogers, tendered to the defendant, in some way confirms and completely validates the title attempted to be made to him by the trustee, even if the title made by the trustee himself is itself defective. Upon this demurrer, it is a sufficient reply to this, to say, that this bill is framed on no such ground. If the title to be made to the defendant rests, at all upon this release, the bill is defective for want of parties. If the defendant is to be forced to take a title resting upon Mr. and Mrs. Eogers’ *deed, he is, at least, entitled to have them come in as parties to the bill, so, that they and their respective interests in the estate may be bound by the decree. But apart from this, this release is a mere nullity as regards this case. It clearly is so, unless Mrs. Rogers has in herself a complete power of appointment or disposition over the fee of this land, — a power which she might equally well exercise adversely to, as concurrently with, the trustee, and which he would be compellable to confirm, by releasing to her appointee or grantee the legal title. It is obvious such was not the intent of the testatrix in creating this trust. But it is claimed Mrs. Rogers has this power, because it is claimed she has the full equitable fee in these lands. "We reply, first, even if she has, still it is now the settled law of this State, in accordance with the better policy and reason upon this subject and with the weight of American authority, that she has only those powers over that estate which are expressly conferred upon her by the trust instrument, not as the argument for the plaintiff seems to assume, all powers that are not prohibited to her, but only such as are expressly granted. Cooh v. Metcalf, 2 R. I. Rep. 355. "We look in vain, in this will and codicil, for any express power to Mrs. Rogers to appoint or convey these lands by deed, or in any other manner, except, in a single contingency, by will. It is said, indeed, that by the codicil, in a certain contingency, the estates are limited to the use of her heirs and assigns, — thus, it is claimed, recognizing her power of conveying her equitable estate by deed. The first and all sufficient reply to this, for the purposes of this case, is, that this limitation is upon a contingency that has not yet happened and may never happen, to wit, the decease of Mrs. Rogers in the lifetime of her' husband; and the power, if any is to be implied, cannot operate beyond the given contingency. But apart from this, this is far too broad an inference from this word “ assigns,” used in this connection. No such force could have been intended for it. Such a power, if intended to have been given, would not have been left to such implication. The word seems rather to have been used here inadvertently, as an usual, casual expression, without reference to any definite meaning or force to be given it. Secondly. We reply as to this release, Mrs. Rogers has not the equitable fee in these lands, but a mere equitable life estate. The remainder to her heirs, whether under the codicil, in the event she dies intestate in the lifetime of her husband, or under the will, in the event she survives her husband, is clearly a legal estate — an executed use — and so cannot coalesce with her equitable life estate, and her heirs consequently take as purchasers. 2 Jarman on Wills, 244; Shepland v. Smith, 1 Bro. Ch. Rep. 74; Doe, dem. Hallen v. Ironmonger, 3 East. 533; Bobinsonv. Grey, 9 Ib. 1; 2 Washburne on Real Prop, pp. 169, 170, § 6. This being so, it is obvious, that even supposing this release can operate at all in the absence of any express power, yet, in any view, it can only operate to pass Mrs. Rogers’ ■present interest — her equitable life estate — and cannot estop her, or those claiming in remainder, from setting up against it a future acquired, or future vesting, interest in these lands. Nor can it extinguish her power of appointment by will, given in the codicil. Barker v. White, 11 Vesey, 209 ; Townsendv. Wilgon, 1 Barn. & Aid. 608, in every respect a far stronger case than the case at bar ; 2 Washburne on Real Prop. p. 309, § 3; Filis v. Fisher, 3 Sneed, (Tenn.) 231.</p> <p>2. The case then (supposing-the power of sale in the will not to be revoked by the codicil) rests simply upon the question, ■whether that power survives and passes to the present plaintiff; and this again upon the question, whether or not this was a discretionary power within the meaning of that term as defined by the adjudged cases; if it was, it is ■ not denied that it does not survive. Trust powers of sale like this are not ordinary powers,in the sense in which the term is evidently used in the argument for the plaintiff. Unless expressly conferred, either in direct language or by necessary implication from other express trusts, they do not exist. “ A trustee could rarely be justified in selling the trust estate for any purpose, however beneficial, without an authority, express or implied, conferred on him for that purpose by the trust instrument.” Hill on Trustees, 471, (top 685.) Nor do these powers, if discretionary, survive or pass with the transmission of the estate unless so provided in express terms ; prima facie they are personal to the original trustee. As the rule is-stated as the result of the authorities, in Hill on Trustees, in the paragraph immediately following that quoted for the plaintiff : “ Where, however, a power given to the original trustee is of a kind that indicates-a personal confidence, it will, prima facie, be confined to the individual to whom it is given, and will not, without express words, pass to others to whom, by legal transmission, the character of trustee may happen to belong; and though the estate, with the trust attached to it, will be in the trustee appointed’ by the court, yet the power (being one of that description) will be extinct.” Ib. 211, (top 301.) Again : “ a power of sale, whether it be a common law authority or one taking effect under the statute of uses, can be exercised only by the parties to whom it is expressly given.” Ib. 472, (top 687.) “ Powers of sale, of leasing and of varying the securities, also come within the class of discretionary powers which is now under consideration.” Ib. 495, (top 725.) Now, it is difficult to conceive how a power of sale can ever be discretionary, if not so in the present case. It certainly falls far within the definition of those powers given by the. same author: “ Whenever an authority is given to trustees which it is either not compulsory upon them to exercise at all, or, if compulsory, the time or manner or extent of its execution is left to be determined by the trustees, that is obviously a discretionary power, though the extent and nature of the discretion may^vary in each case.” Ib. 485, (top 711.) See, too, cases referred to in the opening. It is said the burden upon this question is upon the defendant. This is a matter of little consequence, as it is purely a question of construction. But where, as here, within six or eight short lines within which this entire power, is' stated, it is three times declared by the testatrix herself to be discretionary, the burden would rather seem to be upon those who asserted the contrary. Again, it is said, that the power in this case is conferred upon “ Moses B. Ives, trustee as aforesaid,” and from this it is argued that the power survives, and passed to th’e present plaintiff. But it is settled that no such effect can be given to this language. Much stronger language, conferring the power upon the trustees as such without naming them, (here it is a mere personal description added to the name,) and even accompanied by language in express terms 'continuing the power beyond the original trustees, was used in some of the cases referred to in the opening, which yet held that the power did not pass to the appointee of the court; See, also, Down v..Morrall, 1 M. & Keene, 561, (7Eng. Cond. Ch. 165); but further authority upon a point so clear cannot be needed.</p>

<p>Ejectment to recover several lots of land situated in the towns of Johnston’and Cranston.</p> <p>The case was submitted to the court, as to the third lot mentioned in the plaintiff’s declaration, upon .the following facts, set forth in a plea puis darrein, which was demurred to, and some additional facts which were agreed to be taken as true, for the purposes of the trial.</p> <p>The plaintiff derived title by execution levied on the interest of the defendant in the lot, 'on the 28th day of March, 1859, under which levy the lot was, on the 1st day of December, 1859, sold to Frederick F. Simmons, and the same was by him conveyed to the plaintiff, on the 12th-day of November, 1861. The writ was served upon the defendant on the 21st day of February, 1862, and it appeared from the plea,. and the'facts agreed to be taken as a part thereof, that, on the 30th day of June, 1857, the defendant mortgaged the lotin question in fee to one Pardon F. Brown, under which mortgage, the said Pardon, on the 31st day of March, 1862, entered upon the mortgaged and demanded premises, and on the 1st day of April, 1862, leased the same to the defendant for a term of years, who, according to his mortgagee’s title, actually remained all the time in possession.</p> <p>I. In ejectment, where the .plaintiff claims under a sale by the sheriff on a judgment against the defendant, the latter cannot set up an outstanding title in a stranger. Jaclcson v. Graham, 3 Caine’s R. 188 ; Cooper’s lessees v. Galbraith, 3 Wash. C. C. R. 546 ; JacTcson v. Bush, 10 Johns. R. 222; Kane v. Stevnbergh, 1 Johns. Cas. 153.</p> <p>II. A purchaser at a sheriff’s sale of all the interest of the mortgagor in possession is entitled to recover, though the mortgagee be made codefendant, and the mortgage be outstanding. Randall v. Davis, 18 Johns R. 7.</p> <p>HI. The defendant, after the sale by the sheriff, became quasi tenant at will to the purchaser. Jaclcson v. Graham, 3 fame’s R. 185 ; Kane v. St&rnbergh, 1 Johns. Cas. 153; Russell v. Doty, 4 Cow. 576.</p>

Assumpsit to recover a loss on a fire policy, effected by the plaintiff with the defendants, a mutual insurance company, on his stone dwelling house in North Providence. The case, after opening, was withdrawn by the parties from the jury, and submitted to the court, under the general issue.

<p>A legacy to J. C. B. of “ all tlie balance of my books, furniture, &e., and the income of tlie value of my stock for ten years; after the lapse of ten years my stock in the foundry shall become the property of the Art Association,” does not, by ' virtue of the &c., pass to J. C. B. all the residue of the testator’s personalty, but only his books and furniture, and things ejusdem generis; and hence, it was held, that though the &e. carried to J. C. B. a piece of statuary, photograph views,drawings and portfolios, it did not include articles of wearing apparel, and of personal ornament and use.</p>

Bill in equity, brought by the plaintiffs, as inhabitants and tax-payers of the town of South -Kingstown, to enjoin the town treasurer of said, town from paying out of the town treasury sums of money, alleged, in the bill to amount in the aggregate to $21,000, under a vote of the town claimed to be illegal and void.

<p>Since the Revision of tie Statutes, in 18S7, tlie_ consent of a wife, in writing, is necessary, to enable her husbauci to subject ber land to a lien under the mechanics’ ben law, for the work and materials supplied in building upon it.</p> <p>■Where such work is done and materials are furnished, not under any special contract as to what is to be done or furnished, or at what price or time of payment, but from time to time as directed or requested, payments.on account for the same, from time to time made without special apphcation by either party at the time of payment, will be apphed by the court to the charges in the account in the order of time in which they accrued, for the purpose of ascertaining what remained due at any particular time, and for what, proceedings are to be commenced within any particular time under the requirements of the mechanics’ ben law.</p> <p>Where the respondents to a petition under the mechanics’ lien law are husband and wife, they cannot be admitted to testify before the master, except in such cases as hke parties can testify at common law.</p>

<p>No exception can be taken to a master’s report because the master takes the accounts directed by the decree appointing him, on the ground that they are uselessly expensive. If the decree is wrong, it must be reformed by the court; but as long as it stands, it is imperative upon the master.</p> <p>A bill by an excluded copartner, filed after the firm is broken up, for an account of the copartnership property and debts, for an injunction and receiver, and for the ascertainment of, and payment by his copartners to him of his share of the surplus, is, from its nature, a bill for the complete administration of thepartnership property; and after a decree is entered granting the relief of the bill, the bill cannot be dismissed by the consent of the plaintiff and defendants, without that of the creditors of the firm, though not made parties to the bill; the decree being in the nature of a judgment for them all.</p> <p>Incoming partners may assume tlie debts of tlie concern with which they connect themselves; and this assumption may be proved, both at law and in equity; either by their express covenant or contract, or be inferred from the terms of it, or from the treatment of such debts by the firm, to the knowledge of the incoming partners, as the debts of the new firm.</p>

This was an application for a writ of mandamus, to be issued to Lycurgus Sayles, Esq., a Justice of tbe Court of Magistrates in tbe City of Providence, and to Elisba C. Mowry, • Esq., a justice of tbe peace in said city, requiring them to appear before tbe Supreme Court, tben in session in Providence, on a day certain, to show cause wby a writ of mandamus should not issue to them out of said court, compelling them to bear Josepb R. Ballou, upon his citation to Albert Spink,…

Assumpsit to recover the sum of two thousand dollars, due from tbe defendants to tbe plaintiffs.

Trespass for breaking and entering the plaintiff’s close, bounded southerly by Lockwood street, in Providence, tearing down his fence, and crossing his land in one place, excavating and carrying off his soil in another part of his close, building a wall and house on, or so near it that the eave-boards and roof of the house projected over the same. Plea, the general issue, with liberty reserved by agreement to give any special matter in defence under it.

Petition for a new trial by Albert Gaskill, executor of the last will and. testament of Lebbeus Gaskill, late of Cumberland, deceased, in a matter heard and decreed by the Court of Probate of Cumberland, on Monday, the 13th day of April, 1863. • The will of Lebbeus Gaskill contained the following bequests : “ To my son, Albert Gaskill, I give and bequeath the sum of four thousand dollars, in trust, however, and for the purposes following: He shall be entitled to the use of…

Trespass and ejectment for the possession of three lots of land in the village of Lime Rock, Smithfield; plea, the general issue.

<p>Replevin for ninety-three bales of printing cloths, claimed by the plaintiff to have been sold to him by Welcome B. Sayles, as one of the copartners of tbe manufacturing firm of Daniels & Sayles. The defendants pleaded, non cepit, — property in themselves, and in one Tyler Daniels, and tbe plaintiff joined issue.</p> <p>On the trial before tbe Chief Justice, with a jury, at tbe March term, 1863, for the county of Providence, it appeared, that the plaintiff claimed title to the goods replevied under a sale of the same made to him hy Welcome B. Sayles, on the 31st day of August, 1861, whilst the same were in the possession of the defendants; that the goods came into their possession as the consignees of Daniels & Sayles, by the delivery of Dan. A. Daniels, the managing partner of said firm .of Daniels & Sayles, and whilst in their possession were sold by said Dan. A., on the first day of April, 1861, to one Tyler Daniels, and were thereafter held by the defendants, as warehortsemen^ for him. The evidence principally related to the sale of the goods by Sayles to the plaintiff, and the prior sale of them by Dan.- A. to Tyler Daniels, and notice of the same to the defendants'.. Much of the evidence on the part of the defendants was also directed to the point, that at the time of the alleged purchase from Sayles by the plaintiff, Dan. A. Daniels was the sole selling agent of the firm, from winch agency Sayles had been long excluded; that the latter was indeed but a mere nominal partner, with no real interest in the concern, to which he was greatly indebted, and had, for a long time before, been notoriously engaged in other pursuits, and at the time of the alleged sale, was about to depart, as a Major in the 7th Regiment of Rhode Island Volunteers, to the seat of war, where he was killed at the battle of Fredericksburgh ; that all this was known to the plaintiff, who was his friend and endorser, and that the supposed sale by Sayles to the plaintiff was a mere sham, for the purpose of getting the goods of the firm oirt of the possession of the managing partner into the hands of Sayles, for his benefit. Many objections were made by the plaintiff to the evidence submitted, which tended to prove these facts ; but’as they are fully stated in the opinion of the court, it is unnecessary to do more than to mention them thus generally here. In his summing up and charge to the jury, the Judge who presided at the trial instructed them as-follows:—</p> <p>“ The main question in the case is, whether the plaintiff had title to, and the right to the immediate possession of, the print cloths which, on the 31st day of August, 1861, he replevied out of the hands of the defendants, at the time he so replevied them. The plaintiff’s title to the goods is derived from a sale of them, which he claims wa.s made to him on that day by Welcome B. Sayles, a member of the manufacturing firm of Daniels & Sayles; and th% first question is, had Daniels & Sayles any title or right to them at that timé, which either or both of the copartners of that firm could vest in the plaintiff? for if they had not, then, without canvassing the relative rights of the copartners as between themselves, or between themselves and third persons, to sell these goods or to manage the affairs of the firm, it is plain that the plaintiff could derive no title or right to the possession of the goods, from them, or either of them.</p> <p>“ Now one of the defences is, that on the 1st day of April, 1861, Dan. A. Daniels, whose power to sell the goods of the firm is not disputed, sold the goods in question to Tyler Daniels, of "Woonsocket, receiving for them from said Tyler, at the expiration of the term of credit, in cash, and in notes of the firm before retired by said Tyler Daniels, and in his own note for the balance, the stipulated price of the goods, according to the terms of the bargain of sale. If you believe that this sale was made on the 1st day of April, 1861, as sworn to by Gaskill and Dan. A. Daniels, and was carried out, as testified by Daniels and by Newell, there is an end of the case. This title, as prior in point of time, must prevail over the title of the plaintiff; and you must find that the plaintiff did not own and have the right to the possession of these goods, on the 31st day of August, 1861, when he replevied them.</p> <p>“ The second defence to the title of the plaintiff, as stated, is, that on the 31st day of August, 1861, ~Welcome B. Sayles had, to the knowledge of the plaintiff, no ¡Dower to sell the goods of Daniels & Sayles; the sole right to sell the goods of that firm being confided to Dan. A. Daniels, the senior partner.</p> <p>“ By the general law, each copartner is the agent of the firm, and may act and contract for it in all its business, — such as sales, purchases, &c. Such right may, however, be restricted by agreement between the copartners ; and so far as manufacturing companies, consisting of three or more copartners, are concerned, usually, in this part of the country, is thus restricted, so as to constitute one or more of the copartners the sole managing agent or agents of the concern. In such companies, it is obvious that some restriction of the general rule is not only convenient, but may be necessary for the safe and proper management of the business of the firm. The fact of such restriction may be proved, not only by express evidence of the formal agreement of the copartners to it, but may be implied from other facts, and from the fact that the business of the firm was, at the period of time to which the enquiry relates, exclusively managed by one of the concern, who acted’ as its sole agents- The evidence of such a restriction in application to the firm of Daniels & Sayles, at and for some time before the alleged purchase of the plaintiff, consists in the testimony of Dan. A. Daniels, and the fact, sworn to by numerous witnesses and not contradicted, that from 1857, when Daniels & Sayles failed,'down to the time of the alleged purchase, Dan. A- Daniels was known in this market as the sole manager of the firm of Daniels & Sayles, and alone sold their goods. Such evidence is sufficient, if it satisfies you, to prove, as between him and Daniels, that Sayles had no power to sell the goods of the firm at the time of the plaintiff’s pirrchase.</p> <p>“.To affect the plaintiff, hbAever, not only must the power of Sayles have been restricted in this respect, but the restriction must have been known to the plaintiff at the time of his purchase. Was it thus known ? There is no express proof that it was ; but such knowledge may be, and usually is to be, inferred from facts that were known, if, indeed, such facts are proved to have been known by the party to be affected by knowledge of the restriction. Thus, you have -a right to consider, in this connection, the proof submitted by the defendants, that for some four years or more before the sale to the plaintiff, Sayles had not done any business for the firm in this market, except to buy a single bale of cotton, in 1857, under the special directions of his co-partner, Daniels; and that Daniels, since the failure of the firm, in 1857, had notoriously sold all the goods of the firm. The proof, also, relating to the known character of Sayles’ employments since that period, as indicative of a high degree of improbability that he could have acted as the agent of the firm,— his known engagement as a field officer of a regiment, about to take the field, — the intimacy of the plaintiff with him, ’as his friend and endorser, is for your consideration; and canvassing this evidence with the denial on oath by the plaintiff, that he knew of any limitation of Sayles’ power to sell the goods of the concern, you will ask yourselves whether the plaintiff' did, or did not know of such limitation ;' or, what is the same thing, did not know such facts as are tantamount to such knowledge, and would put any business man upon inquiry as to tbe power of tbe seller, which, if he did not make, he did not make at his own peril! And further, if you believe from the evidence, that to the knowledge of the plaintiff, Sayles had done no business for the firm since 1857, or attempted to do any, until, just as he was departing to join the army in the field, and that, with notice from Dan. A. Daniels, that these goods had already been sold to Tyler Daniels, he makes this sale to the plaintiff, his endorser, and that, from that time to this, the note, given by the plaintiff to Sayles for this large amount of property, has not been found, you have a right to consider, not only whether the plaintiff did not know that Sayles had no power to sell the goods of the firm, but whether the sale made by Sayles to the plaintiff was not merely colorable, and got up for the purpose of enabling the former to force a settlement with his copartner more favorable to him than a fair settlement of the partnership accounts, as they have been exhibited to you, would warrant. These, however, are matters of fact, and inferences from them, which I submit wholly to you upon the evidence, for your judgment.”</p> <p>The jury having returned a verdict that the property of the goods replevied was not, at the time the same were replevied, in the plaintiff, but was in the defendants and the said Tyler Daniels, as alleged in the two pleas, the plaintiff now moved for a new trial, on the ground of the improper admission of testimony, and errors in law in the instructions of the Judge to the jury. He also moved for a new trial on the ground that the verdict was against the weight of the evidence, for the purposes of which, the Judge reported to the court his minutes of the evidence taken at the trial. This last ground of new tz’ial was not uz’ged at the argument of the motion.</p> <p>I. The Judge, at the trial, erred in allowing Albert T. Elliott, a witness sworn by the defendants, to testify to private arrangements, conversations and directions, made, had and given, between him and Dan. A. Daniels, one of the firm of Daniels & Sayles, without its being proved that the plaintiff had any knowledge of any such matters, or that Welcome B. Sayles had assented to any such arrangements or directioizs.</p> <p>EE. That said Judge erred in allowing James A. Daniels and Dan. A. Daniels, witnesses for the defendants, to testify in relation to conversations between themselves, or either of them, and Welcome B. Sayles, in reference to a sale of the goods in question to Tyler Daniels; said plaintiff not being present, and no knowledge of such conversations being brought home to him.</p> <p>ID. Said court also erred in allowing said witnesses to testify in relation to private understandings and agreements between ■Daniels & Sayles, and between them, or either of them, and Eddy and Elliott (vide their testimony in reference to management of business); the same not being brought to the knowledge of the plaintiff.</p> <p>IV. That said court erred in admitting the testimony of James A. Daniels, as -to an account between Daniels & Sayles, made Joy him, James A. Daniels, from the books of Dan. A. Daniels, and in admitting said account.</p> <p>V. That said court erred in allowing said Dan. A. Daniels to give in evidence a conversation between him and Welcome B. Sayles, in reference to his, Sayles, going away, and his reasons for desiring a continuation of interest in the concern, as reasons why said partnership was not dissolved.</p> <p>VI. That said court erred in admitting Elijah B. Newell, a witness on the part of the defendants, to testify to what Tyler Daniels told him as to á contract made by said Tyler Daniels and Dan. A. Daniels, as evidence of that contract.</p> <p>VII. That said court erred in admitting the testimony of Dan. A. Daniels in reference to his, Dan. A. Daniels’, taking up a mortgage upon the property of Daniels & Sayles with his individual funds, &c., as also in admitting the decree of foreclosure.</p> <p>VIII. That said court erred in allowing the defendants to prove the individual acts of Dan. A. Daniels, as limiting the rights and powers of said Sayles, his partner, as a partner in the firm of Daniels & Sayles.</p> <p>IX. That said court erred in charging the jury, that if they believed that the sale of these goods was made on the first day of April, 1861, as sworn to by Lebbeus Gaskill and Dan. A. Daniels, and confirmed by Mr. Newell, they must find for the defendants. 1. Because there was no proof of change of possession, actual or constructive. 2. Because the proof was, (and was uncontradicted,) that although Dan. A. Daniels gave Tyler Daniels an order for the delivery of said goods, said Tyler Daniels never presented said order to Wheatons & Whitford, nor caused the same to be presented, nor made any demand for said goods, nor is there any proof that he ever authorized any one to demand the possession of the same, — in fact, the proof was, that they were never in any way delivered to said Tyler Daniels. 8. Because, (if there was any proof in the case from which change of possession might be inferred,) the court expressly charged the jury, that if they believed the sale was made, as sworn to by Gaskill and Dan. A. Daniels, there ends this case. Therefore, the jury was directed to find a verdict for the defendants, if they believed their account of what occurred at Woonsocket.</p> <p>X. The court erred in charging the jury as follows: “ Ask yoursejves whether the plaintiff did, or did not know, of such limitation,” (referring to the limitation of Sayles’ power to sell as copartner of the firm of Daniels & Sayles,) “ or what is the same thing, did not know such facts as are tantamount to such knowledge, and would put any business man upon enquiry as to the power of the seller, which if he did not make, he did not make at his own peril ? ” — there being no proof that said plaintiff had any actual knowledge of any such facts, but, on the contrary, the testimony of the plaintiff, uncontradicted, being that he had no such knowledge.</p> <p>XI. That said court erred in refusing to charge the jury as requested by the counsel for the plaintiff.</p> <p>XII. That said court erred in charging the jury, as matter of law, that so far as manufacturing companies, consisting of three or more copartners, are concerned, they usually are restricted (in this part of the country) so as to constitute one or more of the copartners the sole managing agents of the concern.</p> <p>I. The testimony of Elliott, and Daniels, senior and junior, as to the agreement between the copartners, the relations between them, the state of accounts between them, and the transactions in relation to the mortgage, and generally, between them, as bearing upon the question of authority to sell, either in Daniels or Sayles, was clearly admissible.</p> <p>> E[. The transactions at thé bank in Woonsocket are also clearly admissible, both in regard to the agreement testified to by Gaskill and Daniels, and its execution, as testified to by Newell,/the confidential friend of Tyler Daniels and Dan. A. Daniels. t</p> <p>III. The testimony as to the mode in- which the business of the firm, was conducted, in Providence, and the plaintiff’s relations to §aid business, and/towards said1 Sayles, is clearly admissible, tending to bring home knowledge of the actual authority of Sayles, and of his position in the firm, to the plaintiff.</p> <p>IV. The instructions upon points of law are unquestionably correct. 1. That partners may, inter sc, limit their usual authority, and that evidence of such limitation may be brought home to the party dealing with theypartner, by circumstantial, as well as by direct, evidence. £. That a sale of goods, and delivery of a written order therefor, especially with notice of such transaction given to the holder of the goods, deprives’ the seller of all power to resell the same.</p>

Assumpsit upon a policy of fire insurance, alleged to have been effected by the plaintiff with the defendants, insuring his interest as mortgagee in certain woolen machinery in his mill in North Providence, against losé or damage by fire, from the 1st day of December, 1861, to the 1st day of December, 1862, to the amount of $2000.

<p>Under chapter 198, section 17, of the Revised Statutes, entitled “Eor the relief of poor debtbrs,” an imprisoned debtor is not confined to two citations to the same creditor, — the second, upon a change of circumstances since his application to ' take the oath upon the first was refused him; hut after any number of previous citations, may have a new one, so that he satisfies the magistrate by proof, of a change of circumstances since his last previous application was refused, which change must be recited in- the new citation!</p> <p>Where the fourth citation of a poor debtor to his creditor recited, “ that since the hearing of his former citation,” which was refused about two years before, “ his circumstances had changed in this, “that in consequence of long continued sickness in his family, he had been unable to transact any business, and had been unable to support his family;” Held, that this was a sufficient recital of a change of circumstances, to entitle him to a new citation upon which he might be discharged, although the citation upon which his last previous application was refused, recited as his then change of circumstances, “ having made an assignment, and also by having been unemployed for a long space of time, and by continued sickness in his family, thereby rendering him in a less competent situation than formerly, for the payment of his said debt;” time of duration being an important element in such causes of poverty.</p>

<p>Where by will an estate was given to the testator’s son “for and during the term, of his natural life, and to the lawful male heirs of his body and their descendants,” with remainder over in case he should die without “ such male heirs of his body or their descendants living at the time of his death,” the son was held to take an estate in tail male under the rule'in Shelley’s case; so that he could by a deed in fee simple to a purchaser, acknowledged in conformity to the Revised Statutes, Ch. 145, section 3, convey to him a good title in fee.</p> <p>The statute of wills in Rhode Island áoes not affect the legal operation of such technical words of limitation, but only of the words set down in the statute.</p> <p>Manchester and wife v. Surfee, 5 R. 1. Rep. 549, affirmed.</p>

<p>"Where a writ in assumpsit is served within the period of legal limitation hy foreign attachment, and after being* continued from term to term, beyond the period, is dismissed by the court for want of sufficient service, upon the ground that the garnishee’s affidavit does no\disclose any attachable property of the defendant in his hands at the tirne of the service, the plaintiff has, by virtue of Ch. 177, section 8, of che Revised Statutes, one year after the dismissal of the writ, within which to commence a new action.</p>

Application by George W. Sleeper for a rule to show cause why a writ of mandamus should not issue to the Franklin Lyceum, a literary corporation for' debates, lectures, library, &c., commanding the corporation to restore him to the privileges of membership, upon the ground, that he had been illegally disfranchised of the same.

This was a petition for a new trial, brought to set aside a verdict in an action of assumpsit, which charged the defendant with the value of certain securities of the Warwick Bank, alleged to have been illegally withdrawn and appropriated by the defendant. A similar application, by motion, but for other causes, had been before presented by the defendant, and disposed of by this court, at its March Term, 1862, and may be found reported, supra, page 136.

This was an action on tbe case, for the malicious arrest and imprisonment of the plaintiff on a writ in^ssumpsit, returnable to the September term of the Supreme Court for the county of Providence, 1860; the declaration averring that the defendant “ failed to enter ” said writ in said court, “ and to prosecute the same, by means whereof said suit became and was wholly ended, discharged and determined.” At the trial of the case at the present term, under the general issue,…

This was an action of covenant against a husband and wife, for tbe breach of a covenant against incumbrances, contained in their deed of a lot of land with the buildings thereon, in the westerly part of Providence; the deed being executed by them, in right of the wife, on the 21st day of July, 1863, and the declaration averring, that at the time ,of execution, the premises were subject to a lease parol, for one year from tbe first day of May, 1863.

<p>At common law, during tlie term, which, was before the roll or record for the term was made up, any defect ef form or substance in a judgment, caused by accident or mistake, might be amended; but after the term, the Judges cotdd not erase or alter the roll or record.</p> <p>It is by virtue of statutes of amendments that judgments are amended after the term at which they have been rendered; and the statute of Rhode Island (Rev. Stats Ch. 184, §§ 4 and 5) permits the courts to amend a judgment only in “ imperfections, defects and want of form,” though process and pleadings are amendable in matter of substance also; hence after the term at which it is rendered, a judgment is not amendable by iitcreasing the amount of it, though rendered for a smaller sum than it should have been, through accident or mistake.</p> <p>Trott v. Wheaton, 5 R. I. Rep. 353, explained.</p>

Debt against a school- district, on an award of appraisers of the vajue of a lot, formerly belonging to the plaintiff, which had been taken by the school committee of the town, to add to the school lot in the district; the proceedings having taken place under Ch. 66, and Ch. 323, in amendment of the same, of the Eevised Statutes. A jury trial having been waived, the case was tried by the court, under the general issue.

Assumpsit oh a promissory note for eighty dollars, by the endorsee against the makers, who were husband and wife. The case was submitted, under the general issue, to the court in law and faot. The note was executed by the defendants, husband and wife, to secure a loan of money made by the wife’s mother to the' husband, and was by her endorsed to her son.

<p>The 78th chapter of the Revised Statutes, prohibiting the manufacture and sale, for consumption within this State, of certain liquors, so far from declaring void contracts founded upon the illegal sale of liquors, enacts, that payments and compensations made upon such contracts shall be deemed to be without consideration only between the original parties; and hence it appears, that the legislature did not iutend to impair the settled rights of a bona fide holder of negotiable paper, although the same had been given upon the sale of liquor in violation of law.</p> <p>Such paper, endorsed over as collateral security for a preexisting debt, if received by the creditor before its maturity, and without notice of its illegal consideration, is endorsed for value in the usual course, of business; and may be held by the creditor free from the defence of illegality, which was open between the original qjarties to the paper. /</p>

<p>A widow lady, having an estate, real and personal, of upwards $60,000 in value, yielding an income of about $3000 per annum,,, by her will gave to each of the children of her two step-sons a legacy of $1000; to her niece, an annuity, for life, of $300, and to her grandson, an annuity, for life, of $500, — both said annuities, as her will declared, “ to be paid by my executor from my estate,” — with power to her executor to pay to her grandson, for his advancement in business, sums of money, in the aggregate not to exceed $8000, and when the advances equalled that sum, his annuity to'cease. The will made a like provision by annuity for each of the after-born children of her son, who was a widower, should he marry, and for the advancement in business of his after-born sons, and ordered that the sum of $12,000 should be paid to the widow of her son, if he should marry, and his wife survive him. She then gave to her only son “ all the rest and residue of the rents, income, interest and dividends of all my estate, real and personal, during his natural life, to be paid to him as often as once in six months, and after said rents, &c., have accrued and been received by my executor, and not by anticipation.” She authorized her executor to change the investments of her estate, real and personal, “ and for that purpose, or to raise money for any of the purposes hereinbefore mentioned,” to sell and convey any of her estate; and gave all the residue of all her estate, real and personal, to her grandson and any future born children of her son, in fee, equally, as tenants in common, with remainder over to the children of her stepsons, in case her grand-children should die before the age of twenty-one, without issue living at their deaths, “ subject, however, to the payments of the legacies and annuities hereinbefore mentioned, and to the payment, as aforesaid, of the rents, income, interest and dividends thereof, to my son during his life;” Held, that the annuities, as well as the legacies or sums in gross, were payable out of the corpus of the estate, and not out of the income thereof, construing, under the circumstances, the words, “ the rest and residue of the rents, &e., of my estate, real and personal,” as if they had been, “ the income of the rest and residue of my estate, real and personal.” Held, also, that all taxes, repairs, and expenses of managing the estate, and of collecting the rents and dividends thereof, Were to be paidWt of the income; but that the general expenses of administration, in settling the estate, were to be p>aid out of the personalty, if sufficient, and if not, out of the realty.</p>

Assumpsit upon a policy of insurance issued by the defendants, — a mutual fire insurance company, — insuring the plaintiff as a member of… Held: it was resolved, as follows :— “Resolved, That the board of directors be, and they are hereby, directed to proceed at once to take the necessary steps, to close the risks, pay the debts, and wind up the affairs of the company, in such manner as they shall find to be lawful and just to all parties concerned.” Pursuant to this vote,…

Assumpsit by the plaintiff, as trustee for his family and dependents, to recover the sum of four dollars per week, from the fourth day of November, 1862, — when he was, under the call of the President of the United States of the date of July 2d, 1862, mustered into the volunteer service of the United States as one of the quota of the City of Providence, — to the 27th day of July, 1868, the date of the writ.

This was an action of covenant upon a sealed agreement of guaranty, made by the defendant with the plaintiffs, who were dealers in iron and hardware. Plea, non est factum; with an agreement, that the plea should operate as a general traverse of the plaintiffs’ declaration, in the same manner as the general issue in actions of debt and assumpsit.

Trespass and ejectment, to recover the possession of a house and lot on the northerly side of Broad street, Providence, the possession of which had. been unjustly retained by the defendant.

<p>This was'an appeal from a decree of the Court of Probate of the town of Cranston, approving añd allowing a certain instrument in writing, as and for the last will and testament of Sylvester Chiids of said Cranston, and awarding letters testamentary under said instrument to Gardner Luther, named therein as the executor thereof.</p> <p>The appeal was duly claimed, the appeal bond given, the reasons of appeal duly filed, and the appeal entered at the present term of the court; whereupon, the counsel for the appellee entered a general appearance for him on the docket. By some mistake or neglect, the appellee was not cited to appear to the court of appeal, as required by the 3d section of Ch. 153 of the Revised Statutes; whereupon, his counsel moved to dismiss the appeal.</p>

Replevin, for certain farming stock and implements, which had been levied upon by the defendant, under an execution of Messrs. Cook & Ballou against William Jennison, placed in the defendant’s hands for service by him,- as a deputy sheriff.

Assumpsit against the defendants, as administrators on the estate of William W. Keach, for the recovery of damages for the breach -of a contract by which the said Keach agreed to employ the… Held: that a contract of apprenticeship was discharged by the death of the master. 3 Bacon’s Abr. 556, G, and cases cited; Baxter y. Burfield, 2 Strange, 1266.