Volume 9 — Rhode Island Reports

At the October term of the Court of Common Pleas, 1858, for the County of Newport, Job A Peckham, Henry Bull and Joseph I. Bailey, were indicted on an indictment preferred by Jerome B. Kimball, Esq., Attorney General, for obstructing a certain common and public highway and landing place in the town of Portsmouth, known and called by the name of the Common.

<p>Decision of U. S. Circuit Court in Franklin v. Ward and Goodaleet al.,3 Mason 136, affirmed, that a judgment debtor is not liable to be attached as agarnishee under the foreign attachment act of Rhode Island.</p> <p>A person who has been served as garnishee is not chargeable, as such, in respect of a judgment recovered against him in one of the courts of this State; still less ought he to be chargeable injrespect of a judgment recovered against him in the United States Circuit Court, in another jurisdiction</p> <p>Nor is the garnishee so chargeable, because hé has no property in the jurisdicdiction where the judgment was recovered which can be taken in execution, and the judgment elsewhere can only be enforced by suit, for this may not always continue so, and it is not certain that he can set up the attachment in defence of such a suit, if sued in the United States Circuit Court for one district, upon the judgment of the U. S. Circuit Court for another district. Under the rule established by the Supreme Court of the United States in Wallace v. McConnell, 13 Peters, 136, a judgment of the U. S. Circuit for one district, (e. g. Maine,! would be enforced in the U. S. Court for another district, (e. g. Rhode Island,) as being of higher validity than any subsequent proceeding against the defendant in the Supreme Court of Rhode Island in foreign attachment.</p>

Debt, upon a bond, dated November 18th, 1865, given by the defendant Simmons as principal, and by tbe other defendants as his sureties, for the sum of three hundred and twenty-five dollars, to be paid to the plaintiffs. Plea, nil debet, with a written agreement that under that plea either party might offer any evidence which would be admissible under any special plea.

Bill in equity, brought by tbe complainants, as creditors of Philip A. Doyle, against tbe respondents, William T. Hall, also one of bis creditors, and Samuel W. Peckbam, bis assignee, to enjoin tbe assignee from satisfying , out of tbe proceeds of bis assignor’s property, a judgment obtained against him by said Hall.

<p>Bill in equity, brought by tbe complainants, wlio were, respectively, tbe widow, the infant son sueing by bis next friend, and tbe administrator of Jobn William Haigli deceased, to compel tbe respondent to convey to tbe said infant son of Jolin W. Haigh a lot of land alleged to have been purchased by tbe said respondent for said John W. Haigh in bis lifetime, the purchase money having been furnished by him.</p> <p>The case is sufficiently stated in the opinion of the court, to explain the pleadings and the points of law ruled in it.</p> <p>cited the Colonial Statutes of Rhode Island, 1653, pp. 45, 71, 97; 1663, p. 45 ; 1667, p. 56; 1749, p. 71, and 1767, p. 56; Revised Statutes, Chap. 159 and Chap. 245, § 3; Stat. 11 and 12 Wm. Ill, Chap. 6; H. S. Digest, Vol. 1, Title “Alien,” §§ 33, 65 and 9£>, and cases there cited, and JEscheator v. Smith, 4 McCord, 452, and McOre&ry v. Somerville, 9 Wheaton, 354, to sustain the following points :—</p> <p>I. The doctrine of escheat, which the defendant seeks to lay down in this case, has ever been unpopular with the judiciary and people of the United States, and the State of Rhode Island has not followed the English precedents on this subject. The law, as contended for by the defendant, has never been the law in Rhode Island.</p> <p>II. The real and personal estate of an alien friend descends to his children, if they are born in Rhode Island and resident therein, and although, at common law, no person can be an heir unless he is a natural born citizen, or has been naturalized, yet, in the case at bar, the heir is a natural born citizen, and by that means made capable of inheriting.</p> <p>III. The title of an alien friend to land purchased is good against everybody but the State, and his rights vest in his representatives, and can only be divested by office found, or by some act done by the State to acquire possession.</p> <p>This court will not entertain a bill filed to enforce a resulting trust by an alien, or by persons claiming under an alien. The law applicable to this case is distinctly stated by Judge Story in the 2d Yol. of his Equity Jurisprudence, § 1201, b.; also by Chancellor Walworth in Leggett v. Dubois, 5 Paige’s Ch. 117. William Haigh having died an alien could not transmit to these complainants title to real estate or any interest therein. Leggett v. Dubois, 5 Paige’s Ch. 117, note 1.</p>

<p>The Supreme Court, sitting as a Court of Equity, will send the issue of fact raised hy a hill in equity, to a jury for their determination, where the testimony offered respectively by the complainant and respondent is so conflicting, as to leave them in doubt as to the preponderance of proof.</p> <p>Amotion to amend an answer in equity held not to come too late, simply because made when the suit was pending before tbe full court on appeal from a decree of a single justice.</p>

Exceptions to the report of a'master in chancery, made under a decree entered in a bill in equity brought by the complainant against his wife and her trustee, claiming a charge or lien on her separate real estate for advances and payments made by Mm on account of improvements thereon.

Assumpsit, to recover tbe sum of twenty-five dollars and seventy-four cents, alleged to have been paid by tbe plaintiff for tbe defendant, as tbe defendant’s proportional part of a town tax assessed against tbe Wallum Pond estate (so called) by the town of Burrillville.

Bill in equity, brought by William Jones Hoppin, guardian of the person and estate of Moses B. Jenkins, against the executors, widow and heirs of Samuel Boyd Tobey, deceased, praying that a conveyance from said Jenkins to said Tobey of certain real estate, executed by the former during the lifetime of the latter, might be set aside. The facts of the case are fully stated in the opinion of the court.

Upon the coming in of the report of the commissioners appointed by the court, under the act passed at the January session of the G-eneral Assembly, 1854, entitled “ An Act in relation to the laying out, enlarging, straightening, or otherwise altering streets in the city of Providence/’ to estimate the damages suffered, and assess the benefits received by proprietors, from the extension of Thayer street; John Carter Brown, who owned two parcels of land lying adjacent to the…

Assumpsit, for work and labor done by the plaintiff in cutting wood for the defendant. The writ was served by leaving a copy with George Cheves, for the purpose of attaching seventy-five cords of said wood, then in his possession, as of the goods and chattels of the defendant.

<p>On the hearing of a petition by a husband, for a divorce from his wife on the ground of desertion, the respondent having been absent. from him for about five years, it was shown that there had never been any action on the part of the petitioner to induce the respondent to come back to him, and the whole evidence indicated that he did not desire her to come back, and that she did not stay away wilfully. Meld, that the petition could not be granted.</p>

<p>Assumpsit by the plaintiff, as Receiver of the National Mutual Eire Insurance Company, to recover of the defendant, one of its members, a certain assessment made upon him by the plaintiff in his capacity as Receiver, under a policy of insurance effected by the defendant with the Company.</p> <p>The case was tried at the December term 1867, of the Court of Common Pleas for the County of Providence, before Mr. Justice Burges, when, after the receiver had testified as to the method adopted by him. in making his assessment, the defendant asked the court to rule that the assessment was erroneous and must be set aside for certain reasons alleged by him, and upon the court’s refusal so to do, alleged exceptions, upon which his motion for a new trial was heard at the present term of the Supreme Court.</p> <p>The testimony of the receiver respecting the amount for which he made his assessment was as follows:—</p> <p>' “ After my appointment, and before making the assessment, I examined the books of the company, and the character and financial condition of the persons upon whom the assessment was to be made, and found that of the $8354 77 still due, on assessments already made, not more than $4000 could be considered collectable, and that not more than 50 per cent of the amount which should be thereafter assessed upon the policy holders of the company, could be realized. I then, at the October term, 1866, of the Supreme Court, applied to said court for instructions in regard to the proper mode of making an assessment to pay the indebtedness of the company, and this is a copy of my application. [Witness presents copy of application.] Upon hearing this application, and the affidavits of myself and of Mr Searle, who has been for a long time in the employ of the Company, and engaged in making and collecting assessments, and has had a great deal of experience in the matter, said court passed a decree containing certain instructions, allowing me to make an assessment for double the indebtedness ©f the company, -(less $4000 estimated collectable out of former assessments,) and 20 per cent additional for expenses and my compensation, of which this paper which I hold in my hand is a -copy. [Witness presents a copy of decree.] I then proceeded to make an assessment in the following manner :—</p> <p>I found the indebtedness of the company on the 1st day of February, A. D. 1867, to be: - - $23,979 58</p> <p>I estimated that of the amount due on previous assessments I could collect - - 4,000 00</p> <p>Leaving to be raised by-new assessments - $19,979 58</p> <p>To allow for uncollectable assessments, bad debts,</p> <p>etc., as stated in tbe affidavits, and application for instructions, I double this, making - $39,959 16</p> <p>.And add for expenses 20 per cent. * - 7,991 83</p> <p>Making in all to be assessed for - - $47,950 99</p> <p>Such other portions of his testimony as are material to the case, as well as all the objections raised by the defendant to his mode of making the assessment, are stated with sufficient fulness in the opinion of the court,</p> <p>cited in support of his exceptions, Peopie's Ins. Go. v. Babbitt, 7 Allen, 235; Traders Mut. Fire Ins. Go. v. Stone, 9 Allen, 485 ; Slater Mut. Fire Ins. Co. v. Barstow, 8 R. I. 393. Cooper v. Shaver, 41 Barb. S. C. 151.</p> <p>cited Bangs v. Cray, 2 Kernan, 477 Shaughnessy v. Rensellaer Ins. Go., 21 Barb, S. C. 608 ; Brown v. Williams, 28 Me. 254 ; Jones v. Sisson, 6 Gray, 288 ; People's Eg. Fire Ins. Co. v. Babbitt, 7 Allen, 235 ; Fayette M. F. Ins. Co. v. Fuller, 8 Allen, 27.</p>

Assumpsit against the defendants, as executors of the last will and testament of Joseph Smith, late of Warren, deceased, to recover the amount of a promissory note for one thousand dollars and interest, made by Charles Smith and others, dated January 16th, 1858, the payment of which, said Joseph Smith, in his lifetime, guaranteed, and also to recover the amount of a promissory note for one thousand dollars and interest, made by the said Joseph Smith on the 14th day of…

<p>A pledgee of negotiable paper has generally a right to collect the whole amount of securities pledged to him, and account to the pledgor for the surplus over his debt. But in case of accommodation paper pledged, the pledgee can recover of the maker only the amount of the debt due him from the pledgor.</p> <p>The holder of commercial paper is presumed to be a holder for value, until the contrary is shown; and, by presenting such paper, he makes a prima facie case, sufficient to justify a verdict for him, if the defendant does not rebut it. But if the defendant does produce evidence to rebut this presumption, the burden is still on the plaintiff, taking all the testimony together, to show a valuable consideration by a preponderance of proof on his side.</p> <p>If, however, the defendant, not disputing the original consideration, takes some new ground of defence, as payment, failure of consideration, etc., then the burden is on him to prove this matter of avoidance.</p>

Bill in equity for specific performance of an agreement made by the respondent with the complainant, as administrator efe bonis non, with the will annexed, of the estate of Charles Potter deceased, for the purchase of real estate belonging to the estate of said Charles Potter.

Bile in equity. The hearing was upon the complainant’s motion for a preliminary injunction, which was had before the full court upon bill, answer and affidavits. The facts upon which the court based their refusal of the injunction prayed for, are fully stated in their opinion.

<p>Trover and conversion by the plaintiff, as administrator on the estate of Sarah W. Dennison, late of Providence,' deceased.</p> <p>The declaration alleged that the plaintiff, in his capacity of administrator on the estate of the said Sarah W. Dennison, was entitled to the possession of a certain bank book containing evidence of the deposit of money with the People’s Savings Bank of Providence, marked “Ledger B., page 246.” “Deposit of $425, July 16th, 1855,” being the property of the said Sarah W. Dennison in her lifetime, which said book came into the hands and possession of the said defendant by finding, and that the said defendant converted the same to his own use, etc.</p> <p>Plea, the .general issue, and issue joined.</p> <p>A jury trial having been waived, the case was submitted to the court in fact and law.</p> <p>The material facts upon which the decision of the case turned, are sufficiently set forth in the opinion of the court.</p>

<p>Assumpsit to recover the sum of $481.90 for a wire bending machine, so called, constructed for the defendants by the plaintiffs. The declaration contained a count on book account, and the ordinary money counts, and also a special count alleging that the defendants, on the 23d of January, 1865, in consideration that the • plaintiffs would make for them a certain wire bending machine, promised to pay them therefor upon the delivery thereof what the same should be reasonably worth ; that the plaintiffs, confiding in the defendants’ promises, made and finished said machine; that it was reasonably worth $481.90 ; that they tendered said machine to the defendants on the 31st day of March, 1865, and requested them to pay said sum of $481.90 therefor, which the defendants refused, and still do refuse to do, etc.</p> <p>Plea, the general issue.</p> <p>A jury trial having been waived, the-case was heard by the court both in fact and law. The facts are stated sufficiently in the opinion of the court.</p>

<p>An act of the General Assembly, passed in June, 1854, entitled/'An act to authorize the city of Providence to regulate hackney coaches and other vehicles,” ' which pro vides, in substance, that the city council of the city of Providence shall have power to adopt such rules and orders as to them shall seem necessary and expedient for the regulation of all omnibuses, stages, hackney coaches, wagons, carts, chaises and all other carriages and vehicles used and employed wholly or in part in said city ; such rules to be published in some newspaper in said city, for at least one week, daily, before going into effect, gives the council power only to make rules and orders for the due regulation of the vehicles therein designated. It does not authorize them to grant licenses, in their discretion, to such persons, and on such terms as they shall see fit, but only to prescribe, by general rules and orders, the terms on which any person may enjoy the privilege of using such vehicles.</p> <p>The General Assembly, by said act. grants certain powers to the city council of the city of Providence. The council must exercise these powers itself, and cannot delegate the exercise of them to the mayor and board of aldermen. Discretionary powers which are granted to one person or body, cannot by that person or body, without leave, be delegated to another.</p> <p>Hence, an ordinance of the city council of the city of Providence, establishing a system of licenses for certain classes of vehicles, and prohibiting their use unless licensed as aforesaid, and providing that the mayor and board of aider-men, may, from time to time, grant licenses to such persons, and up>on such terms, as they may deem expedient for vehicles requiring licenses, and that they may revolee such licenses at their discretion, — is void for want of authority in the city council to pass such an ordinance.</p>

<p>An award should be in its terms'reasonably certain, and not leave its own meaning open to further controversy. Hence, an award that the defendants “ have the right to keep up and maintain the cap-log or permanent rolling way of their said dam to the top of the great rock in their pond above said dam and no higher, and to keep on said cap-log flash boards twelve inches wide, at all times except in times of freshet,” must be set aside for uncertainty, the word “freshet” so varying in its meaning as to necessitate constant litigation; as,in case of a suit, a jury could only determine whether the state of the water in the particular case before them did or did not constitute a freshet.</p>

<p>Demurrers on the ground of form must be special, and demurrers for duplicity-must also state wherein the duplicity consists. This rule, however, does not apply to demurrers to pleas in abatement, which need not be special.</p>

Action of covenant broken. A jury trial having been waived, the case was submitted to the court in fact and law. The covenant, for an alleged breach of which the action was brought, and all the material facts of the case, are sufficiently stated in the opinion of the court.

Appeal by Abby M. and Annie M. Shaw from a decree of the Municipal Court of the city of Providence exercising probate j urisdiction, passed July 28th, 1868, affecting the distribution of the estate of Asa Newel], which had been represented insolvent, and of which the said George S. T. Newell was administrator.

Indictment against the defendant, in two counts, charging him with embezzlement.

<p>A father having devised his real estate, after his wife's decease, in equal parts to his five children, the devises to three of them being (made directly to them and their heirs, and the devisees to the two others (one of whom was G-. T.) being made to W N. T., for the use and benefit of them and their heirs; held, that it was the intention of the testator that the two last named children should take equitable estates, the legal title of said estates vesting in the defendant, and that, consequently, the legal estate would not be taken out of defendant by the execution of the uses contrary to the testator's intention.</p> <p>Held, further, that G-. T. having in himself the equitable or beneficial estate, was entitled to a conveyance of the legal estate, uniess there was some reason for its retention by the trustee, and was entitled to have it conveyed to him, the defendant's liens thereon, if any, being duly discharged, notwithstanding the power conferred upon the defendant hy the will, to appoint a successor by will or otherwise, for the support of the trust, or to convey to the plaintiff or his heirs, the estate, when he might think proper.</p>

Petition for a writ of mandamus, to be issued to the town council of the town of Richmond, commanding them to place the name of the relator on the voting lists of said town, or show cause why they should not do so. At the hearing of the petition, certified copies of the records .of the town council of the town of Richmond containing their proceedings with reference to the displacement of the relator’s name from their voting lists, were presented.

<p>Where a promissory note is made payable at a given time after date, with interest payable semi-annually, interest may be computed, in making up the judgment, on all instalments of interest overdue and remaining unpaid; but no instalments of semi-annual interest will be considered as due after the maturity of the note, because, after that, both the accruing interest and the principal are due, not on any particular day, but every day till they are paid.</p> <p>Hence, the amount of the judgment on a note for $1,000, payable three years after date, with interest payable semi-annually, is the amount of the principal of the note, with simple interest thereon, to the time of obtaining judgment, and also the amount of the semi-annual dues of interest, including that which accrued when the note became due, with simple interest thereon, to the date of the judgment.</p>

<p>A. plea to an action on promissory notes, that the plaintiffs intestate, on the day of the date of the oldest note, promised to give defendant time arid forbear payment of rent then due and to become due, for a mill hired of the intestate by the defendant, and that such rents should be payable in instalments of ten per cent, on the amount thereof quarterly, whenever, and not until, the said mill could be profitably run by the defendant; and that the notes in suit were given for such rents and subject to this agreement; that it was not until, after the death of said intestate that said mill could he run by defendant to a profit, when he was deprived of the use of his said mill, and, by the plaintiff’s act, prevented from paying said rents according to the intent of said agreement; and thereby discharged and released from all claims and causes of action touching said notes; held defective, and overruled on demurrer, as not disclosing any sufficient defence in bar of the action, because, first, the plea does not state, nor is it inferable as a matter of law from what it states, that there was an agreement that the defendant should continue to have the use of the mill after the time had arrived when it could be run to a profit, as a condition of his liability to pay said notes, and, secondly, because the averment in the plea that the defendant was, by the plaintiff’s act, prevented from paying said rents according to the intent of said agreement, is not sufficient, as the plea should state what the act of the plaintiff, which had this effect, was, so that the court might judge whether it had the alleged effect or not.</p>

<p>Motion for a new trial. All tbe facts of tbe case essential to an understanding of tbe points decided, are sufficiently stated in tbe opinion of the court.</p>

Aylesworth, a married woman, but formerly, and at the time of making the will, single, and named Sarah G. Miller.

<p>John D’W., by the third clause of his will, provided as follows: “I give, bequeath and devise unto my son John D’W., Jr., during his natural life, the use and improvement of the farm where I now live, with the live stock and farming utensils belonging thereto, and after his decease I give, devise and bequeath the same estate, both real and personal, to my grandson, Algernon S. D’W., his heirs, executors, administrators and assigns, forever. Provided, however, that if the said A. S. D’W. should die without lawful issue living at the time of his death, then, in that case, I give, bequeath and devise the same estate, both real and personal, unto his surviving sisters, Susan A. D.’W., Elizabeth V. D’W. and Maria G. D’W., or such of these as may survive the said A- S. D’W., their heirs, and assigns forever.” Held, John D’W. being dead, Amelia D’ W. having died, leaving children, Algernon, Elizabeth and Maria living, and Elizabeth being married First, that the estate given to Alger-non S. D’W. was afee simple, subjectto the conditions expressed in the will Secondly, that the gift over referred to issue living at his death, and was not void as referring to an indefinite failure of issue, hut was good as an executory devise; and Thirdly, that the sisters of Algernon, who survived him, would take the estate in fee, (if he died without leaving issue living,) but that the issue of his sister Amelia, the sister who died before him, took no interest in the estate, and, that if no sister of Algernon should survive him, the fee once vested in him would not be divested.</p> <p>A mere naked possibility or expectancy cannot be assigned at law, but a contingent right founded on an executed instrument, where tho contingency does not depend on the existence at a particular time of a person now in existence, can be released to the terre tenant, or person in possession by a rightful title, (although, quaere, whether it can be so released to strangers). Hence, it was held, Fourthly, that the sisters of Algernon D’W. might pass their interest in said estate to him, by any instrument operating by way of estoppel or release, the power being given to his married sister to release her interest jointly with her husband, by chapter 726, of the Statutes, even if it did not exist under the provisions of § 6 of chapter 136 of the Revised Statutes.</p>

Bill if equity, founded on the decree of the Supreme Court upon the petition of .Ann W. Spencer, above mentioned, against her husband, Obadiah B. Spencer, for a divorce a mensa et thoro and for alimony, filed at the March term, 1866.

<p>Errors in a Probate Account may be corrected by opening the account, or by proper charges, or credits in a new account, where the items have not been specially adjudicated upon.</p> <p>On a Probate Appeal, charging that an administratrix had not accounted for certain property, where it did not appear that the Court of Probate had adjudicated specially on the items of her account, but the Supreme Court were satisfied that she had accounted for the property, although under an incorrect description ; Meld, that as the balance stated was correct, there was no need of opening or amending the account, to correct the description.</p>

<p>In a suit against a cashier of a bank, and his sureties on their bond, where the defendants pleaded severally, it is no defence to the suit that the directors have been negligent in examining his accounts.</p> <p>The admission of the cashier, that he had paid out large sums of money without the consent of the directors, is admissible evidence.</p> <p>To avoid the bond on the ground of fraud on the part of the bank or its directors, there must be a fraudulent concealment of something material for the surety to know.</p>

<p>It is within the jurisdiction of the Supreme Court, under the full chancery-powers conferred upon it by section 8, chapter 164, of the Revised Statutes, to sanction, in a proper case, the sale or exchange of real estate held upon trust . for charitable uses.</p> <p>When a grant is made upon a trust for charitable uses, the remedy, if the estate be misapplied, is not its forfeiture to the grantor or his heirs, but a proceeding on the equity side of the Supreme Court to enforce the trust, unless the trust is coupled with a condition that the estate shall revert if misapplied.</p> <p>M. B. conveyed to O. B. and others, a certain lot of land in trust, for the purpose of erecting thereon a school house and a meeting house for the people of color in the town of P. forever. Held, that as the primary purpose of the donor was the promotion of the charity, the Supreme Court might disregard his incidental purpose, that the particular property given should he used for its promotion, and allow said lot of land to be sold or exchanged, if thereby the charity would be benefited.</p> <p>The sale or exchange of such a trust estate, in such a case, is no violation of the implied contract on the part of the trustees that they will perform the trust, as the power of alienation is itself implied in the grant, and the trustees perform the trust by the .proper exercise thereof.</p>

- At the hearing of the case before the court, it appeared that the executors of the said Orray Taft gave bond, as directed by his will, only for the payment of his funeral charges, debts, and legacies, according to the provisions of section 12 of chapter 156 of the Revised Statutes, with the appellants as sureties. now contended that it was the duty of every executor or administrator to fender an annual account to the court of probate of the estate in his hands ; husbands'…

Petition for a writ of certiorari to the Court of Common Pleas, commanding such court to send to the Supreme Court its record in the criminal appeal, State, Smith Wood, complainant, v. Daniel Esten, appellant, so that the Supreme Court might cause to be done in the premises whatever to right and justice might appertain.

This was an action brought to recover tbe value of shares in tbe capital stock of the. defendant corporation, wbicb tbe defendants refused to transfer :upon tbe order of tbe plaintiff! The defendants refused the transfer, because of an alleged indebtedness of the plaintiff to the corporation for unpaid assessments on said stock, made to fill up the capital of the company, reduced from its original amount by losses in business.

<p>In case of an application to a court of probate to appoint a guardian of a person of full age, the intended ward is the only person necessary to be notified, although it may be advisable, in certain cases, to notify others.</p>

<p>These were five actions of assumpsit, brought by the plaintiff upon policies of insurance issued by the five defendant insurance companies respectively. Plea, in each case, the general issue.</p> <p>By agreement, they were all tried together, and.also, jury trials having been waived, were heard by the court on both law and fact, upon an agreed statement of facts, the essential points of which are as follows :—</p> <p>The plaintiff, by policies dated July 80th, 1859, insured his interest in the mill, machinery and dwelling houses comprised in the property formerly known as the Coddington Mill Estate, in Newport, R. I., but then as the Manufacturing Estate of the Touro Manufacturing Company, in the five above named insurance companies, against loss or damage by fire, to the amount of three thousand dollars in each of said companies, for the term of one year from the 29th day of July, 1859.</p> <p>Before the expiration of the year, namely, on the 31st day of December, 1859, the property was totally destroyed by fire. Notice of the fire was immediately given to the companies by the plaintiff, and they all waived the production of any further proof of the loss.</p> <p>The interest of the plaintiff in said property is that of mortgagee under two mortgage deeds upon it, executed by Louis J. Doyle, the owner thereof, to Lord, Warren, Evans and Company, one dated August 21st, 1856, and one dated August 22d, 1856, recorded on the tenth day of December, 1856, and transferred to the plaintiff, the property being at the time under a mortgage to the Coddington Manufacturing Company, of whom it was purchased by said Doyle, for $20,000, part of the purchase money, and by the terms of the above named policies, it is provided that “ in case of loss the amount of” the respective policies “ is to be paid to said C. E. Harris, whenever, and as soon as, his lien upon said property by virtue of said mortgages is established by decree of court or otherwise.”</p> <p>The policies contain a condition, that no suit can be commenced against them after the expiration of 'one year from the time of the loss. The defendant companies have, however, waived this condition, and agreed (three of the companies in writing and two verbally,) that the plaintiff may commence an action or suit at law against them at any time after the limitation of said condition.</p> <p>The above named mortgages, as assignee of which the plaintiff procured the above named policies of insurance, were made by Louis J. Doyle to Lord, Warren, Evans & Co., August 21st and 22d, 1856. W. W. Updike gave his written guarantees, dated August 21st and 27th, 1856, respectively, to hold Lord, Warren, Evans & Co. harmless frond any loss that might occur to them, on account of their not putting these mortgages on record, which guarantees were known to the defendant companies at the date of the insurance. Before they were placed on record, the following mortgages and conveyances of the mortgaged property were made, namely :—</p> <p>First. A deed from Louis J. Doyle to William W. Bishop of one undivided third, dated Sept. 27th, 1856, and recorded Sept. 29th, 1856.</p> <p>Second. A deed from Doyle to Walter W. Updike of one undivided third, dated Sept. 27th, 1856, but not recorded until the following December.</p> <p>Third. A mortgage from Doyle to Bishop of one undivided third, dated October 21st, 1856, recorded October 29th, 1856.</p> <p>Fourth. Fourth. A deed from Doyle to the Rhode' Island Bleaching and Cambric Works of one undivided third, dated October 27th, 1856, recorded October 29th, 1856.</p> <p>Fifth. A quitclaim deed from Doyle to Bishop of his interest in the estate, dated November 6th, 1856.</p> <p>The last two deeds were executed when Walter W.' Updike was absent from this State. On his return, he commenced a suit in the Supreme Court, which resulted in a decree establishing his title to one-third of said estate, under .his deed of Sept. 27th, 1856, as a prior title to those acquired by Bishop and the Rhode Island Bleaching and Cambric Works in October and November, 1856.</p> <p>The plaintiff has established his lien upon the aforesaid property, to the extent as shown in the decree, in the suit Haynes Lord, et al. v. Louis J. Doyle et al., and the supplemental suit, JoelD. Stebbins v. Louis J. Doyle et al, in the United States Circuit Court, a copy of which is hereto annexed.</p> <p>The property on which these mortgages to the plaintiff were made was worth not less than $65,000 at, the time of the fire.</p> <p>The real estate and the mins have been sold under the Cod dington mortgage above referred to, subject to which all the titles have been taken, and one third of the excess of the proceeds of sale over the amount due on the Coddington mortgage was paid to the plaintiff, his mortgage coming next to the Coddington mortgage on the third conveyed to Updike by deed of September 27th, 1856. The amount so paid to the plaintiff is $1,059.77, paid March 9th, 1866.</p> <p>[comr]</p> <p> Rhode Island District, sc. </p> <p>Circuit Court of the United States,</p> <p>November Term, 1864.</p> <p>Haynes Lord et ais. v. Louis J. Doyle et als. Original bill.</p> <p>Joel D. Stebbens v. Louis J. Doyle et al. Supplemental bill.</p> <p>Decree.</p> <p>This cause came on to be heard at the November term of this court, 1862. * * * * And, upon consideration thereof, it is ordered, adjudged and decreed as follows -</p> <p>That the mortgage deeds made and executed by said defendant, Louis J. Doyle, to said complainants, Haynes Lord, John D. Warren, Joshua D. Evans and Joel D. Stebbens, copartners under the style of Lord, Warren, Evans & Go., bearing date the 21st and 22d days of August, 1856, respectively, are valid and subsisting liens upon the estate therein described, to the extent following, only, namely, that the same shall be a lien upon so much of, and that,interest in said estate, which was conveyed by said Doyle to Walter W. Updike, by the deed of said Doyle to said Updike, dated the 27th day of September, A. D. 1856, in the pleadings referred to.</p> <p>And it is further ordered, adjudged and decreed, that at the date of said deed in the pleadings mentioned, made and executed by said Doyle to said William W. Bishop, bearing date the 27th day of September, A. D. 1856, the said Bishop did not have notice of the existence of the two aforesaid mortgages made and executed by said Doyle to said complainants, dated respectively on the 21st and 22d days of August, A. D. 1856 ; and that said last mentioned mortgages do not constitute any lien or encumbrance on the estate and property conveyed by said Doyle to said Bishop, in and by his the said deed of said Doyle to said Bishop, dated the 27th'day of September, 1856, in and upon any portion of the same.</p> <p>And it is further ordered, adjudged and decreed by the Court, that the said defendant, William W. Bishop, at the time of taking the mortgage to him from said Doyle in the pleadings mentioned, dated the 21st day of October, 1856, did not have notice of the two aforesaid mortgages from said Doyle to said complainants, dated August 21st and 22d, A. D. 1856; and that said mortgage from said Doyle to said Bishop, dated October 21st, 1856, constitutes 'a new lien upon the estate and property described, and tabes precedence as such, to the said mortgages as made by said Doyle to said complainants, dated August 21st and 22d, 1856.</p> <p>And it is further ordered, adjudged and decreed, that at the date of the deed in said pleadings mentioned, from said Doyle to said William W. Bishop, bearing date the 6th day of November, A. D. 1856, said Bishop did have notice of said two mortgages from said Doyle to said complainants, dated August 21st and 22d, 1856 ; and that said last mentioned two mortgages constitute a valid lien on said estate conveyed to said Bishop by said Doyle, by said deed, dated November 6th, 1856, subject, however, to said mortgages thereon, from said Doyle to said Bishop, dated October 21st, 1856.</p> <p>And it is further adjudged, that the Rhode Island Bleach and Cambric Works, at the date of the deed from said Doyle to them, bearing date the 27th day of October, 1856, had actual notice of the two mortgages from said Doyle to said complainants, bearing date the 21st and 22d days of August, 1856, in said pleadings mentioned.</p> <p>* * * *■ « * «</p> <p>Entered as the decree of this court, per order thereof, this 22d day of November, A. D. 1864.</p> <p>(Signed,). Henry Pitman, Clerk</p> <p>• I. The plaintiff having an insurable interest in the property insured at the time the insurance was- effected, of greater value than the amount insured, and having since established his lien on said property, is entitled to recover of the defendant companies the whole amount of his policies. 2 American Leading Cases, p. 541 et seq. 550, 551, and cases cited. Any interest in real estate, or which would be impaired or injured by its destruction, may be made the subject of a valid insurance. 2 American Leading Cases, p. 553, and cases cited. A lien or security is an insurable interest. 2 American Leading Cases, p. 565, and cases cited. Every one who will be injured by the destruction of property has an interest in its preservation, which he may protect by a policy of insurance. 2 American Leading Cases, p. 580 ; Holbrook et al. v. American Insurance Co. 1 Curtis, i93 and 199, and cases cited. A mortgagee has an insurable interest corresponding in amount with that of the debt which the mortgage is intended to secure. Xernochan v. N. Y. Bowery Fire Ins. Co. 5- Duer (N. Y.) 1; 2 Phillips on Insurance, § 1511, §§ 289, 290, 292.</p> <p>. II. The plaintiff is entitled to interest on the amount insured from the time of the loss.</p> <p>III. The sum of $1,059.77 paid the plaintiff as his share of the proceeds of the sale under the Coddington mortgage, should not be deducted from the amount insured in making up the judgment in these suits. King v. State Mutual Fire Insurance Co. 7 Cushing, 1; Dobson v. Land, 8 Hare, 216; Loomis, Adm’r, v. Fagle Life and Health Insurance Co. 6 Cray, 401, and cases there cited.</p> <p>To satisfy the language of these policies, and entitle the plaintiff to recover, the mortgages must be established as a lien upon the whole property. They do not say, “payable when the lien by virtue of the mortgages is established upon the whole or any part oí the property,” but “ upon said property.” It is not pretended that the decree of the Circuit Court does this.</p> <p>II. The plaintiff’s mortgages of the 21st and 22d of August, 1856, were guaranteed by W. W. Updike in writing, at or about tbe making of tbe same, viz,, on tbe 21st and 27th of August, 1856, as a consideration for the original mortgagees, Lord, Warren, Evans & Co. not recording them. ■ This was known to all parties at the time of effecting the policies of insurance, and that, as a matter of course, the deed of September 27th, 1856, oí one-third of the property to W. W. Updike was taken, subject to the lien of plaintiff’s mortgages, said Updike, as guarantor, having actual notice of the same. What, therefore, was contemplated by the parties at the time of issuing the policies was, that plaintiff should establish them as good and valid liens upon the remaining two-thirds of the property, to bind the defendants to pay. ' The decree declares the mortgages no lien ■ upon the third conveyed by Doyle to Wm. W- Bishop by deed dated September'27, 1856; and only a lien on another third, subject to prior mortgage to Bishop, of the 21st of October, 1856, for $16,207.21. .</p> <p>TTT. All, therefore, that.the decree does,’within the true intent and meaning of the policies, is, to establish the mortgages as a dry, valueless lien upon one third of the property. The plaintiff is entitled to recover nothing, as he has lost nothing. Insurance is a-mere contract of indemnity. These are open policies upon the assured’s interest in certain described property. Whatever was the true value of that interest, the plaintiff is entitled to recover, and no more. Angelí on Eire and Life Insurance, p. 49, § 11 ; Phillips on Insurance, vol. 2, p. 1, § 1176 ■ Nlblo v. N. Am. Ins. Go. 1 Sandf. S. O. R. 551. This is the general principle applicable to insurance when the nature of the interest is not disclosed, or the assured describes himself as owner. Whatever may be the sum insured in case of loss, it is • the value of the subject-matter , that determines the amount recoverable. The same principle applies in case of insurance by a mortgage. The insurable interest of a mortgagee, is the debt or claim as-security'for which the mortgage is given. Phillips on Insurance, vol. 2, § 1511; also, Angelí on Insurance, § 59. But the insurable interest is one thing and the value of the subject matter destroyed is another. See Smith v. Columbian Go. 5 Harris, 253 ; Phillips on Insurance, vol. 2, § 1244, and cases cited. The plaintiff has received on the mortgage, from sale of mortgaged premises under first mortgage, $1,059.77, which should be credited on the policies, if it should be decided that plaintiff is entitled to recover; it being the better doctrine, that upon payment by underwriters to a mortgagee, in case of loss, they are entitled to an assignment of the whole or a proportional part of the debt. Carpenter v. Washington Insurance Go. 16 Peters, 495. A different view is taken by the Supreme Court of Massachusetts in King v. State Mutual Ins. Co. 7 Cush. 1, but the weight of authority is with the Supreme Court of the United States, as see Phillips on Insurance, § 1712, and cases cited. If plaintiff is entitled to recover anything, interest should be computed only from date of decree.</p>

Motion by defendant in arrest of judgment after verdict rendered, in an action of slander. contended that the plaintiffs1 declaration was fatally defective, as charging tbe slanderous words alleged in the past tense, citing 1 Hilliard on Torts, 267 ; Taylor v. Hall, 2 Strange, 1189 ; Carslalce v. Maple-ton, 2 Term. 473 ; Golderman v. Stearns and wife, 7 Cray, 182 ; 3 Bl. Com. 123, note by Christian ; 2 Dane.

<p>Action of debt on bond given by one Amos Aldrich as principal, with David G. Hall and J. Collins Gould as sureties, for the liberty of the jail yard. A jury trial having been waived, the case was submitted to the court upon an agreed statement of facts, from which it appeared that the plaintiffs, at the December term, 1867, of the Court of Common Pleas for the county of Providence, obtained judgment against said Amos Aldrich on the 26th day of February, 1868, in an action of assumpsit on book account, for goods sold a.nd delivered, for $391.53. debt, and $13.15 costs, and the defendant, on June. 2d, 1868, was duly committed to the Providence county jail upon the execution issued on said judgment, and thereupon gave, with the defendants as sureties, the jail'limit bond. The said Aldrich then took out his citation to the plaintiffs, to show cause why he should not be admitted to take the poor debtor’s oath, under chapter 198 of the Revised Statutes ; and upon the return of said citation, and a hearing thereon, the plaintiff then and there protesting against the jurisdiction of the magistrates, was admitted to take the poor debtor’s oath, and was thereupon discharged in the usual form under said chapter 198, and after such discharge, went off and beyond the limits of the jail.</p> <p>It was agreed, that if the court should hold that the magistrates had jurisdiction, and .the statute under which said proceedings were had, was then in force and not suspended by the bankrupt act, judgment should be entered for the defendants for costs, otherwise for the plaintiffs.</p> <p>I. The exercise by Congress of its constitutional power to establish a uniform law upon the subject of bankruptcies throughout the United States, supersedes state legislation upon the same subject; and, ipso facto, while the act of Congress remains in force, suspends the operation of all existing state laws upon persons and cases within the purview, and that conflict in their operation with the provisions of such act of Congress. Sturgis v. Orowninshield, 4 Wheat. 122 ; Bxparte Barnes, 2 Story, 822 ; Griswold v. Pratt, 9 Met. 16; Commonwealth v. O'Hara, 6 Am. Law Reg. (new series) 765 ; May v. Bread, 7 Cush. 40; Goodwin v. Sharkie, N. Y. C. C. Pleas, (Barrett, J.) Mar. 19, 1868 ; In the Matter of Reynolds, 8 R. I. 485.</p> <p>II. Our poor debtor's act, as it now stands, and as it has beén since 1844, when the general assignment by the petitioning debtor was first required as a condition of his discharge, is practically, as relates to the debtor’s estate, and its distribution among his creditors, an insolvent law; and conflicts with the bankrupt act as directly, and in the same way, as our state insolvent act; and is, therefore, suspended by it for the same reasons as this court has already held the insolvent act to be suspended. In the Matter of Reynolds, 8 R. I. 485 ; and see cases supra ; Perry v. Langley, Am. Law Reg. (new series,) May 18,1868, p. 429.</p> <p>I. The legislature of the state, so far as relates to their own process, have a right to abolish imprisonment for debt altogether, and such law may extend to present as well, as to future imprisonment. If such a general law would be valid under the constitution of the United States, the state of Rhode Island has the right of applying the same remedy to individual cases. Mason v. Haile, 12 Wheat. 878 ; In the Matter of Reynolds, 8R. I. 485.</p> <p>II. The legislature of this state, in the exercise of its constitutional authority, has provided a relief for poor debtors imprisoned, so that such debtors may, by conforming to the laws, be relieved from commitment on account of debt.</p> <p>III. Under a bond to remain a true prisoner until lawfully discharged, a discharge under an act or statute of the state legislature, passed to relieve a debtor from imprisonment, is a lawful discharge, and the sureties on the limit bond are relieved from any liability under the bond. Mason v. Haile, supra. A lawful discharge, in its general significance, will extend to and be satisfied by any discharge obtained under the legislative authority of the state.</p> <p>IV. It was not the intention of the framers of the constitution to prohibit the passage of all insolvent laws. Sturgis v. Crowninshield, 4 Wheaton, 200.</p> <p>V. The statute for the relief of poor debtors imprisoned is not inconsistent with the operations of the national bankrupt act.</p> <p>VI. The state has the right to regulate the way, and to provide in what manner a debtor committed on a process of its own courts, may be relieved from imprisonment in its own jails.</p> <p>VII. The power delegated to Congress to establish uniform laws upon the subject of bankruptcies throughout the United States, does not interfere with, and is not inconsistent with the reserved rights of the people of the several states to pass necessary and humane laws for the relief of citizens imprisoned for debt. Much less can the bankrupt law restrict the states in the exercise of their powers of passing and rendering operative laws of relief to their imprisoned citizens, when the bankrupt act does not afford such relief in all cases.</p>

<p>Action of trespass against the defendant for assault and battery of tbe plaintiff, Ann Manning. At the October term, 1868, of tbe Supreme Oourt for this county, tbe plaintiff recovered judgment for $500 and costs, and now moved for execution.</p> <p>opposed tbe motion, and asked for a stay of execution, because tbe defendant, since the rendition of said judgment, had been adjudged a bankrupt, on bis own petition, at a court of bankruptcy in Massachusetts, where proceedings were still pending.</p> <p>contended that tbe judgment upon which execution was-asked, was not provable in bankruptcy, citing Kellogg v. Schuyler', 2 Denio, 78 ; Parker v. Norton, 6 Term. 695 ; Hughes v. Oliver, 8 Barr. 426; McDonald v. Ingraham, 30 Miss. 389 ; Hapgood v. Blood, 11 Gray, 400 ; Spalding v. People of New York, 4 How. 21; People v. Spalding, 10 Paige, Oh. 284; In re James B. Devoe, Amer. Law Reg. Sept., 1868, p. 690 ; In re Julius B. Pettis, Ibid. p. 695 ; In re Bobert Sutherland, Ibid. Jan. 1869, p. 39 ; In the Matter of Harvey F. Payton, 7 R. I. 153.</p>

<p>■Bill in equity, to redeem certain real estate in,North Providence and Pawtucket, sold by mortgagees under power of sale. The case was heard upon bill and answer, from which it. appeared, that John Parmenter, the-complainant, made five mortgages; covering the land in question, to the defendant, Kenrick, and one mortgage to his wife, the defendant,-Emeline Walker.; the first of said mortgages being dated-the 13th of April, 1857, and the last the 28d of January, 1860. The notes mentioned in the mortgages amount, in the aggregate, to the sum of eight thousand seven hundred dollars. ' ■</p> <p>On the 12th of March, 1862, Parmenter made a general assignment of all his estate, for the benefit of creditors, to the defendants, Kenrick Walker and Edward H. Hazard, the assignment containing a proviso that such of his creditors as should not release their claims within six months should not be entitled to any dividend or benefit under the assignment. No creditors have ever released. The defendants, Kenrick Walker and Emeline Walker, advertised the mortgaged premises for sale under their respective mortgages, and the said premises-were sold at auction on the 2d day of' September, 1865, and were bought at said sale by one Henry A. Parker, who was then and there acting for the defendants, Kenrick Walker and Emeline Walker, as stated in respondent’s answer, and said Parker, after having received deeds from said Kenrick Walker and Emeline Walker, reconvened to them the estate so conveyed to him.</p> <p>I. A mortgagee has no right to purchase an estate at a sale made by himself as mortgagee. This precise point has been decided by our own and other courts. 1 Story’s Equity Jur. §§ 321, 322 ; 2 do. §§ 1261, 1262 ; Nichols v. Baxter et al. 5 E. I. 497 ; Middlesex v. Minot, 4 Met. 325 ; Mapper v. Sharpe, 32 111. 13 ; Baldwin v. Allison, 4 Min. 30.</p> <p>II. The assignees are bound to make a conveyance back to Parmenter of the estate assigned by him to them. They are trustees for his benefit, the six months having expired within which creditors were to release, and the creditors not having released within that time. 2 Story’s Equity Jur. § 1200; Halsey etal v. Whitney, 4 Mason, 223, 224 ; Baton v. Tilling-hast, Trustee, 4 E. I. 283.</p> <p>cited 1 Hilliard on Mortgages, 205, and Story’s Eq. Juris. § 1023.</p>

This was an amicable suit in equity, by vendors against vendee, for the specific performance of a contract for the sale of certain real estate situate in the town of Johnston. The cause was heard. upon a general demurrer to the bill for want of equity.

<p>In an action by executors against a bank, to recover a sum of money on deposit in said bank, which stood to the credit of their testate at the time of bis decease, but was subsequently transferred by said bank to the credit of said executors, the bank cannot be allowed to set off a debt due to itself from " said testate, it having no Ren on said deposit.</p>

<p>Action of the case brought by the treasurer of the city of Providence to recover the amount ($188) of a tax assessed against the defendant by the city of Providence, on the first day of September, 1866.</p> <p>A jury trial having been waived, the case was submitted to the court, both upon fact and law, upon an agreed statement of facts, from which it appeared that the defendant was taxed in September, 1866, both in North Providence and in Providence, on his personal property, and that he had resided in North Providence up to the 15th of December, 1865, when he removed his residence to Providence, where he has since resided.</p>

<p>Motion in arrest of judgment and for a repleader, in an action of assumpsit for goods sold and delivered. Tbe facts of the case are sufficiently stated in the opinion of the court.</p> <p>I. The settled law and practice in this state is, that the property of the defendant cannot be attached on mesne process if the body can be arrested, in- case of goods and chattels, within the county, and in case of real estate, within the state. The direction to the officer to use his best endeavors to arrest the body, does not make the right to attach depend upon the success of his endeavors. Rev. St. Ch. 181, §§ 3, 17.</p> <p>II. This court ought to revise the decision of the Court of Common Pleas on the demurrer there filed. The defendant might have allowed judgment to go against him, but was not compelled to do so, and he may now ask the court to pass upon the questions made below, in their order.</p> <p>TTT. The court will not enter judgment for the plaintiff upon a verdict on an immaterial issue.</p> <p>IV. The court should order a repleader, rather than allow a judgment contrary to law, by the admission of the plaintiff. He admits that the defendant was openly and at large within the precinct of the officer at the time of the service of the writ.</p> <p>I. There is, properly, no motion here to try. There was a verdict and judgment in the Court of Common Pleas, but the appeal vacates both, and, consequently, there can be no motion to arrest a judgment, where there is no judgment to arrest. Plaintiffs motion is, to say the least, premature. So far as these parties and this' cause is concerned, the questions raised by the motion are res adjudicata. This court will not, upon mere motion, overrule what has been decided and settled on demurrer and not appealed from. Court of Probate of Cflocester v. Eddy 8 R. I. 508. But if the court should determine that there is a judgment here to be arrested, and that by a simple motion defendant may retry and set aside what has been solemnly decided on demurrer, still—</p> <p>TTT. The motion ought not to be granted, because the issue tendered and accepted, is a material issue, and covers the whole ground of the case. 1, The exact language of the statute is used. Rev. Stat. Ch. 181, §§ 3 and 17. 2, And'in pleading a statute, or under one, it is always good pleading, and the safest course, to use the exact language of the statute. This plaintiff has done. 3. Plaintiff not only pleads, (what the statute in such cases requires,) viz., that the officer should use his best endeavors to arrest, &c., but also that defendant could not be found, in his ‘precinct, thus traversing the only direct and material averment in defendant’s plea. 4. The defendant pleads, that “ he was open and at large, 'and not concealed, and could have been found, &e. But it will be noticed that there are no such words in the statute as “ open ” and “ at large ” and “ not concealed.” The words used are “ cannot be found,” and “ if the officer cannot find.” These word “open,” “ at large,” “ not concealed,” are simply argumentative. It is, indeed, inferable from such facts, that defendant might have been found, but that is an argumentative way of stating or pleading the fact, and the inference not an unavoidable or absolutely necessary one, and an argumentative plea is always bad. No one is bound to answer an argumentative plea. Stephens on Pleading, 384, 385, 420; Gould’s Pleading, Chap. 3, §§ 28, 29, 44, 46. The only material alie gation in defendant’s pleas is, that defendant “ could have been found,” and this plaintiff traversed, thus putting directly in issue the only material fact in the plea.</p> <p>IY. Again, it is inferable from plaintiff’s replication, that defendant was not open and at large and not concealed ; and if these words should be deemed by the court material or issuable, the want of a more direct traverse is cured by the verdict; for it is well settled, that where any fact or circumstance is implied in or inferable from any pleading, and the verdict is in accordance with or in support of that pleading, the pleading is aided by the verdict, and judgment will not be arrested. Gould’s Pleading, Cb. 10, § 12.</p> <p>Y. Judgment non obstante veredicto cannot be entered for a defendant. Court of Probate of Glocester v. Eddy, above cited.</p> <p>YI. A repleader cannot be awarded unless judgment is first arrested.</p>

<p>Bill in equity, to enjoin the respondents from carrying on the coal business on certain wharves in the city of Newport. The cause was now heard upon a motion to dissolve a preliminary injunction heretofore granted ; and the facts of the case, as shown by bill, answer and affidavits, are sufficiently stated in the opinion of the court.</p>

<p>.When the bond required to be given by Chapters 191 and 192 of the Revised Statutes, ás a condition of taking an appeal from the Court of Common Pleas . to the Supreme Court, or-of filing a bill of exceptions in the latter court to the i rulings of the former, has been signed neither by the party excepting, nor by his attorney of record, but by a stranger to the suit, the appeal, or exception, - ' must be dismissed, because the' Statute' has not been complied with.</p>

Assumpsit to recover the amount of two promissory notes for $10,000 each, alleged to have been made by the defendant Jenkins, by his lawfully authorized agent or attorney, on the tenth day of September, 1866.

The defendant having appealed from a conviction in the Police Court of the city of Providence to the Municipal Court of said city, the case was there tried before the court sitting with a jury, at its February term, 1868, and upon conviction, the defendant moved for a new trial, upon the ground (with others not passed upon by the court) that the court erred in its charge to the jury in said cause, in this, that it charged the jury, that in case the defendant Campbell was…

<p>Action on the case for deceit in the sale of five hundred shares of stock. The cause was tried under a rule of court, before a referee, upon an agreed statement of facts, who reported that the defendant was not guilty. To this report of the referee the plaintiff excepted, on the ground that it was erroneous in law.</p> <p>contended that the facts being agreed upon, the decision of the referee was purely a conclusion of law, and therefore a proper subject for revision by the court.</p>

<p>Bill in equity, filed by tbe complainants, tbe administrators, ■with tbe will annexed, of the estate of Eleanor Field, late of Cranston, deceased, to obtain the advice of the court in relation to the construction of the will and the operation and effect of the Rhode Island statute of wills and canons of descent, under the circumstances stated in the bill, for the purpose of aiding the court of probate to a correct decree of distribution.</p> <p>The testatrix by her will, dated May 3d, 1855, after making some small bequests, directed her executor, as soon as conveniently might be after her decease, to sell at public auction, and convert to cash, all the real estate of which she might die, seized and possessed, and to make the necessary conveyances to purchasers. Then follows this provision: “ Sixthly. I hereby direct that all my just debts, funeral charges, and the expense of settling my estate, including the sum of one thousand dollars as a compensation to my executor hereinafter named for his services as executor, be paid out of my estate; and the residue thereof, not herein particularly given away, I give, devise and bequeath as follows, viz : To my nephew, Robert Field, son of my brother, Abner Field, deceased ; my nephew, Aaron Field, son of my brother, Nehemiah Field, deceased; my niece, Mary Field, daughter of my brother, David Field, deceased; my nephew, William F. Waterman, son of my sister, Esther Waterman, deceased; and my nephew, Nathan Waterman, son of my said sister, Esther Waterman, deceased, equally between them, share and share alike, and to their respective heirs, executors, administrators, and assigns, provided they all survive me; if not, to such of them, the said Robert, Aaron, Mary, William F., and Nathan, as shall survive me, equally between them, share and share alike, and to their respective heirs, executors, administrators, and assigns.” The testatrix died March 6th, 1864, without issue and without leaving any father, mother, brother, or sister her surviving ; and the five residuary legatees, named in tbe sixth clause of the will, already referred to, all died in the lifetime of the testatrix. Each of the residuary legatees, except Nathan Waterman, died leaving lineal descendants. Said Nathan Waterman died intestate, but it was not known whether the other four residuary devisees did or did not die intestate. Nor was it known, except in. one or two cases, whether the. descendants of the testatrix’s brothers and sisters, who had died since her decease, had or had not devised or made any other disposition of the interest (if any) which they acquired as heirs at law of the testatrix. Some-of the defendants were the descendants of descendants who were notin being at the time of the testatrix’s death. All the nephews and nieces of the testatrix, except Stephen Field, son of her brother, Abner Field, died in her lifetime.</p> <p>At the time of filing the bill, the complainants bad fully settled the estate, with the exception that the sum of $29,66403 remained in their hands for distribution, being the balance of personal estate and proceeds of the real estate converted under the directions contained in the will, with considerable interest and rents received by the administrators from investments made by them and the leasing of the real estate, after deduction of the debts, funeral charges, and the expenses of settling the estate, up to the time of the commencement of this suit. A portion of the real estate came to the testatrix by descent and devise from her father and sisters, and the remainder was purchased by her with moneys derived from the sale of real estate, which came to her from the same source. The personal estate was also the proceeds of real estate, which she took by descent and devise from her father and sisters.</p> <p>Some of the defendants appeared and put in their answers admitting the facts stated in the bill; but many did not appear, and, as to them, the bill was taken pro confesso. Among the defendants who did not appear, many resided out of the jurisdiction of this court, and the only notice of tbe pendency of this suit, to the absent defendants, was by publication and postage.</p> <p>The cause was tried before a single judge, Mr. Justice Potter, on the bill and the answers of those defendants who appeared, and two decrees were made by bim, from which the complainants appealed; one of which fixed the amounts to be allowed to the complainants as administrators, and to the respective counsel in said cause for expenses of administration and as compensation for services, and the other of which was, in its essential parts, as follows :—</p> <p>“ This cause came on to be heard before me, * * * and was argued by counsel, and thereupon, upon consideration thereof, it is now * * * ascertained and declared by me that, under the circumstances of this case, as disclosed by the pleadings, Eleanor Field, the testatrix named in the bill of complaint of the above-named Complainants, is to be deemed and taken to have departed this life intestate, as to and concerning the residue of her estate, which, in and by the sixth clause of her last will and testament, in the said bill of complaint mentioned, she gave, devised, and bequeathed to her nephews, Robert Field, Aaron Field, William F. Waterman, and Nathan Waterman, and her niece, Mary Field, and that the balance of the moneys which shall be distributable by said complainants ought to be paid and distributed to and among such of the descendants of the deceased brothers and sisters of the said testatrix, namely, Nehemiah Field, Abner Field, David Field, and Esther Waterman, as were living at the time of the said testatrix’s decease, that is to say, one fourth part to and among the descendants of the said Nehemiah Field, one other-fourth part to and among the descendants of the said Abner Field, one other fourth part to and among the descendants of the said David Field, and one other fourth part to and among the descendants of the said Esther Waterman, to the remotest degree, their respective executors, administrators, or assigns, •and the issue then living of any descendants of said brothers and sister who died in the lifetime of the said testatrix, their respective executors, administrators, or assigns, in equal shares as between or among brothers and sisters; and that the child or the children, collectively, throughout all the degrees of any of the said descendants who died in the'lifetime of the said testatrix, shall represent such descendant or descendants, and take the share or respective shares of the said distributable estate which his, her, or their parent, or respective parents, would have taken, if living. And it is now ordered, adjudged, and decreed, that from the funds now in the hands of said complainants, the sum of twenty-four thousand dollars be forthwith paid out and distributed in manner as aforesaid. And that the balance of said fund be held by said complainants, subject to the further order of this court.”</p> <p>A motion having been filed by some of the defendants to dismiss the appeal from the last named decree, on the ground that the complainants were not aggrieved thereby, this motion, as well as the questions raised by the appeal of the complainants, were argued together before the court.</p> <p>The questions arising upon the facts here given are, whether the distributable funds in the hands of the complainants, as administrators, should go to the lineal descendants of the four residuary legatees, who died leaving issue, or their devisees, or grantees, if any, or some and which of said descendants, devisees, or grantees; or, whether said funds, or some part thereof, should "go to Stephen Field, the sole nephew of the testatrix, as ancestral property: or, whether said funds should go to the heirs of the testatrix as intestate personal estate ; and, if to the heirs as intestate personal estate, whether to all or some only, and what classes of objects constitute the heirs of the testatrix, within the meaning of our canons of descent. All these questions depend upon the construction of the will in reference to the conversion of the property thereby directed, and the devise in favor of the five residuary devisees. The other questions in the case are, whether this suit has drawn the entire administration of this estate from the court of probate into this court, and whether the complainants are persons entitled to appeal; -the former arising from the decrees, and the latter from the motion to dismiss.</p> <p>I. The first question, is upon the motion to dismiss. Substantially there is only one decree and appeal here, and in the nature of the case the complainants are parties aggrieved'within the meaning of chapter 692 of the statutes, sections 3 and 5. The purpose of the appeal plainly is to obtain the opinion of the full court, as well upon the very grave questions raised by the bill and answers, as to which the complainants have sought the advice of this court, as upon the equally grave question raised by both of these decrees, whether this suit has drawn the entire administration of this estate from the court of probate into this court. These questions, it is obvious, directly affect the complainants, both officially and personally ; and therefore it is their right and their duty to procure a full and complete adjudication of all the questions in authoritative and accessible form. And especially must this be so, as many of the defendants named in the bill have not appeared or answered, and it is entirely uncertain whether all the persons, who may be interested in these funds, are, in any sense, before the court, or can be in any way bound by a decree which does more than advise the complainants as to their duty in making distribution. For-gay v. Conrad, 6 How. (H..S.) 203 ; 2 Dan. Ch. Prac., 3d Am. ed. 1010 note; Rev. Stat. 1857, ch. 153 §§ 1, 6 ; Smith v. Sherman, 4 Cush. 411; Wiggin v. Swett, 6 Met 196; The Mayor, &c., of Gloucester, v. Wood, 3 Hare, 131, 139 ; Bradford v. Boudinot, 3 Wash. C. C. Rep. 122 ; Ammon's Appeal, 31 Penn. St. Rep. 311.</p> <p>II. The next question is as to the questions raised by the bill and answers, and respecting which the complainants have sought the advice of the court. 1. The money should not go to the lineal descendants of the four residuary legatees who died leaving issue. Here the gift is to the legatees named, provided they all survived the testatrix, and if they should not all sur vive her, then to such of them as should survive her. But none survived. It must, therefore, be held that the gift failed, and that the heirs are entitled to the money. 2 Story’s Eq. Juris. §§ 1165-6. 2. The only ground upon which the descendants of the legatees can take the money is, that tbe proviso as to the survivorship created a condition which became impossible in tbe lifetime of tbe testatrix, and therefore the gift became absolute, and the descendants of the legatees are entitled to be substituted under the provisions of the Revised Statutes, eh. 154, sec. 12. It is obvious, however, that such cannot be the case. The gift is, in effect and substance, simply a gift to such of the legatees as should survive the testatrix, and falls within the principle of the authority above referred to. Here the failure, which constitutes the impossibility, is not of something annexed to the gift, but of the gift itself. If this can, with any propriety, be called a condition, it is manifestly such a condition as forms the very essence and substance of the gift itself, and is inseparable from it; so that when the terms of the proviso cannot be satisfied, there is no gift at all. The statute referred to does not apply in a case like this. It was intended by that provision simply to modify the common law rule as to lapsed devises, in favor of the lineal descendants of a devisee or legatee, to whom there was .a devise or bequest out and out, and which must have taken effect, at all events, pro forma doni, in case the devisee or legatee had been in being and ready to catch the gift. But that is a very different thing from a gift which is only intended to vest in a possible class as in the case at bar. In this ease there never was any devise or bequest upon which the statute could operate, by reason that the bequest is in terms dependent upon the existence of the objects named at the time when the will took effect. Moore v. Dimond, 5 R. I., 121, 128. 3. The money ought not to go to the sole nephew as ancestral estate. As to this, the well-known doctrine of equitable conversion, and the adjudications upon the ancestral clause of our statute of descents, must be conclusive. Bletcher v. Ashburner, 1 Bro. C. C. 497; 1 White & Tud. Lead. Cas. (3d Am. ed.) 775, and English and American notes; Cole v. Battey, 2 Curtis, 562 ; Smith v. Smith, 4 R. I. 1; 2 Redfield on Wills, 125,126 ; Green v. Jackson, 2 Russ. & Myl. 238. 4. The case of Cole v. Battey, and Smith v. Smith, also disprove the statement contained in 4 Kent’s Com. 402, that in Rhode Island “ there is no representation among collaterals after brothers’ and sisters’ children.” This statement was evidently predicated upon the provision contained in Dig. 1798, page 287, but which is not contained in any of the subsequent digests. 5. The result is, therefore, that the nephew can only take per stirpes with the other heirs, and as if this property was personal estate purely at the death of the testatrix. 6. The only other point is, whether any of the defendants are to be excluded from the distribution under the provisions of the Revised Statutes, ch. 159, sec. 3. Thus far there does not appear to have been any judicial interpretation of this provision. If it means anything, it excludes from the line of representation the descendants of such of the nephews of the testatrix as died in her lifetime. For example, 'Aaron Field, a nephew, died before the testatrix, leaving six children, namely Henry Field, George Field, Albert Field, Eliza Field, Arthur Field, and Amy Field. Amy intermarried with one Yeomans, and died before the testatrix, leaving four children, namely, Ann Yeomans, Andrew Yeomans, Sarah Yeomans, and Henry Yeomans. It should seem that, under the section referred to, the children and grandchildren of this nephew, Aaron Field, are not entitled to represent the nephew in the distribution. The same rule should be applied in case the court should be of opinion that the lineal descendants of the four residuary legatees are entitled to this money.</p> <p>III. The next question is, whether this suit has drawn the entire administration of this estate from the court of probate into this court. This is a very grave question, and one which deserves much attention. It relates to the boundary line between this court as a court of equity and the courts of probate throughout this state. And we submit that the right of this court to take upon itself the administration cannot be rested upon the abstract proposition, that where equity obtains jurisdiction of a cause, for any purpose, it will retain it, generally, until complete justice is effected ; or, upon the practice of the English court of chancery in cases of suits in which executors or administrators are concerned. The application of the general proposition referred to is excluded by the nature and object of the suit; and the practice of the English chancery is inapplicable to and totally incompatible with the probate system of this state. 1 Story’s Eq. Juris. (Redfield’s Ed.) p. 61-76, 519, 543, a; Heirs of Adams v. Adams, 22 Verm. 50; Stewart v. Stewart, 31 Ala. 207 ; Greenwood v. Waheford, 1 Beav. 676 ; Jennison v. Hapgood, 7 Pick. 7 ; Pratt v. Northam, 5 Mason, 95 ; Mallett v. Dexter, 1 Curtis, 178. The case of Stewart v. Stewart supports the views of Redfield J. in üfers of Adams v. Adams, and in 1 Story’s Eq. § 543, a. And we believe that the only instances, to be found in the reported cases, of the courts of chancery assuming the entire administration, have been' where the administrators have been guilty of fraud or refused to account, as in Pratt v. Northam, and Mallett v. Dexter, or the like ; or, where, as in Stewart v. Stewart, the administrator himself has come into chancery upon some ground peculiar to courts of equity, and as to which no relief could be had in the court of probate, and at the same time has prayed that the administration might be completed in connection with the other relief sought. A fair illustration of this view is to be found in Greenwood v. Walceford ; and the cases of Jennison v. Hapgood and Mallett v. Dexter, in their general reasoning, support the same view.</p> <p>I. As to the motion of these defendants to dismiss plaintiffs’ appeal from interlocutory decree of December 22d, 1869, ascertaining the parties entitled in distribution, and ordering the plaintiffs forthwith to distribute accordingly $24,000 of the funds in their hands. This appeal should be dismissed. The amount left in the plaintiffs’ hands undistributed by this decree being several thousand dollars more than sufficient to meet all possible claims the plaintiffs make or can now have upon the estate for compensation or costs and expenses, they have no possible interest in this decree, nor are in any possible sense “parties aggrieved ” by it, and consequently have no right of appeal from it. Smith v. Broadsireet, 16 Pick. 264 ; Lewis v. Bolilho, 6 Gray, 137 ; Henry v. Esty, 13 Gray, 336 ; Stevens v. Palmer's administrators, 15 Gray, 506. For in the question as to who are entitled to this fund, the plaintiffs have no possible interest, in fact are not even entitled to be heard upon it. Their bill in this regard is strictly, in the nature of a bill of inter-pleader.</p> <p>II. If the appeal from, this interlocutory decree is sustained, then, as to its general merits, and also as to the appeal from the final decree of December 24, 1869 : In so far as these decrees assume jurisdiction to provide for and direct the final distribution of the estate, they are unimpeachable. 1. Where a court of chancery has full equity powers as our own, it is well settled it has concurrent jurisdiction with the courts of law in the administration of the assets of deceased persons, and this jurisdiction is not ousted by the statutory jurisdiction conferred upon the probate courts. 1 Story Eq. Jur. §§ 581 to 548, &c. ; 2 Williams on Executors, 1717-1718, notes and cases ; 1 Redfield on Wills, 492-3 ; 2 lb. 188 ; Harvey v. Richards, 2 Gall. 216; same case, 1 Mason, 881; Pratt v. Northam, 5 Mason 95 (101, 103, 105); Gfoidd'v. Hayes, 19 Ala. 438; Pharis v. Leachman, 20 Ala. 662 ; Cram v. Green, 6 Hammond, (Ohio,) 429 ; Parsons v. Parsons, 9 N. H. 309, (see 322-336); Walker v. Cheever, 35 N. H. 339; Waldron, Isley & Co. v. Simmons, 28 Ala. 629 ; Freeland, Fx’r. v. Daves, 25 111. 294; Clarke v. Clarke, 17 Ga. 485; Sanford, Adm’r, v. Thompson, 18 Ga. 454; Dorsey v. Reese, 14 B. Mon. 157 ; Wood v. Ford, 29 Miss. 57 ; Salter v. Williamson, 1 Green, Chan. 480; King v. Berry, 2 Green, Chan. 44; Crain v. Ferguson, 1 Md. Chan. Decisions, (1 Johns.) 151. 2. And the administrators having brought the whole fund into court to obtain a construction of the will, and the court having thus acquired jurisdiction over it, it will not stop with simply declaring the rights of the parties,.but will now go on and complete the administration of the estate, particularly as nothing remains to be done but to execute its own decree. Cases supra ; also Stewart, Adm’r, v. Stewart, 31 Ala. 207; Keetonv. Spradling, 13 Missouri, 821; Wallcer v. Morris, 14 Ga. 323 ; Morrill v. Dickey, I John. Chan. 158, (see 157); Rogers v. Ross, 4 John. Chan. 404 ; and see, also, Franklin Ins. Co. v. McCrea, 4 Green, (Iowa,) 229; Brooks v. Stolley, 3 McLean, 523, and analagous cases, that where a court of equity has obtained jurisdiction for one purpose, it will go on and administer full relief.</p> <p>I. The estate is to be distributed as testate estate, and its distribution is governed by the sixth clause of the will; the legacies (except that to Nathan Waterman,) being saved from lapsing by section 12, of chapter 154 of the Revised Statutes, page 858. Eor, 1. It is very plain, that the testatrix did not intend to die intestate as to any portion of her estate. This is evident, from the entire residue being disposed of by the sixth clause. 2. It is also evident, that her general intent was that that her five nephews and nieces there named should take this entire residue equally. With a special intent, however,, that if one or more of them died in her lifetime and others survived her, the survivors should take the whole. And this is the whole scope of the proviso, for there is no bequest over in case of the decease of all. Eor the words, “ heirs, executors, administrators and assigns ” must be used here as words of limitation ; that is, as showing the intent to pass the absolute property, and not as substituted legatees ; for, besides there being nothing to show any such intent of substitution (directly the contrary by the gift to the survivors) as substituted legacies, they would be void for uncertainty. Holloway v. Holloway, 5 Yesey, 899 ; Waite v. Temple?-, 2 Simmons, 524; Palin v. Hills, i M’ C. & Keen, 470. The proviso is to be read as thus: “In equal shares, provided they all survive me, but if either should die in my lifetime and others should survive me, such survivors shall take the whole.” There would then be no gift over in the contingency that has happened. Eor “ the general rule of law is, that an absolute interest is not to be taken away by a gift over, unless that gift over may itself take effect.” Per Wigram, Y. Chan., in Green v. Hawes, 1 Hare, 431. The only other possible construction of the proviso would be the strict one requiring that all of the legatees should survive the testatrix ; but this would not only entirely defeat the rest of the clause preferring those who might survive, but upon the decease of either one in the lifetime of the testatrix would render this whole residue intestate, a consequence that could not have been intended, and one the court never adopts but from imperative necessity. 2 Redfield on Wills, p. 442, § 445, p. 615, § 34, cases cited.</p> <p>II. It follows, therefore, that the descendants of each of these four residuary legatees, who left descendants, are entitled, at all events, to one-fifth of this fund now remaining in the hands of these administrators, to the exclusion of the general heirs.</p> <p>III. The only remaining question is as to the one-fifth given to Nathan Waterman, which lapsed by his decease without issue before the testatrix. Does this also go to the descendants of the other four legatees, or as intestate estate to the heirs general of the testatrix ? To the descendants of William E. Waterman it makes no difference which it is. Eor there being but four brothers and sisters of the testatrix who left descendants, and these descendants of William E. Waterman being the sole representatives of one of them, viz., of her sister Esther, as they are also of one of the four residuary legatees, viz., said William E. Waterman himself, under either construction, they take one-fourth of this one-fifth, thus entitling them in the whole to one quarter of the whole fund. And it is submitted that they take in the following proportions, viz. : Mrs. Aborn, Mrs. Staddon, Mrs. Burgess, Mrs. Grrinnell, Nathan Williams, and James Waterman; being grand nephews and nieces of the testatrix, one-eighth of this one-quarter, — one-thirty second each ; and Sophia and Henry Waterman, being great grand nephew and niece, one sixteenth of this one-quarter, — one-sixty-fourth each, of the entire fund. Eirst, because it is submitted that this section 12, page 358 of the Revised Statutes is to be construed in connection with the statute of descents, chapter 159 particularly, section 5, page 378, as iny>an materia, and, therefore, that the descendants of the deceased legatee are to take per stirpes under this latter section, and not per capita. See per Lord Hardwicke in Stanley v. Stanley, 1 Atkins, 457-8. And that this section 12 is to receive a liberal construction. Paine v. Prentiss,' 5 Met. 396, (399.) It is to be construed, in fact, as though it read like the Alabama statute, which is more carefully worded, providing that the descendants shall take in the same manner as though the legatee “ had survived the testator and died intestate.” See Jones v. Jones, Mcecutor, 37 Ala. 646, same case; 1 Ala. Sel. cases, 574; and compare Yeates v. Gill, 5 B. Mon. 203. And, secondly, because it is further submitted that whether the conversion of the estate by the fifth clause of the will be “ out and out," or only for the purposes of the will, and whether it be the fact or not, (not averred in the bill, and therefore not admitted by these respondents, but asserted in the answer of Stephen Field,) that a portion or all of the funds now in the hands of the administrators id the proceeds of ancestral real estate sold by them, is entirely immaterial, since it is well settled that descendants under the ancestral clause (section 6, page 373,) of the Statutes are to be ascertained by tracing from the immediate ancestor, and, with the difference only of following the blood, by the canons contained in other sections. Dexter v. Dexter, 4 Mason, 302 ; Gardner v. Collins, 2 Peters, 58 ; Cole v. Battey, 2 Curtis, 562 ; Smith v. Smith, 4 R. I. 1. And that descendants to the remotest degree take their parents’ share, that is, are, under these canons, of the same kin as their parents. Dexter v. Dexter, 4 Mason, 302 ; Cozzens v. Joslin, Executor, 1 R. I. 122.</p> <p>IV. To the descendants of the other residuary legatees, however, it does become a material question, whether this lapsed one-fifth given to Nathan Waterman, is to be distributed as testate or intestate estate. And in their behalf it is submitted that it is testate estate, and goes exclusively to the descendants of the other four legatees, one fourth each per stirpes, and this by force of the will and statute (section 12, page 358,) combined. It is not necessary to consider what might have been the construction, if one or some of these residuary legatees had survived the testatrix, while others had died in her lifetime, leaving descendants,' whether the survivors would then have taken the whole to the exclusion of the descendants of those deceased ;• that is, whether th^t being the precise event provided for by the proviso in the will, it would over ride the statute, or not. That event has not occurred. The event that has occurred is not in precise terms provided for in the will. But the general intent is apparent, that these five nephews and nieces, and their representatives, should have the entire residue. At common law, this intent must have failed by the lapse, but the statute preserves and effectuates it in favor of the descendants — that is, the “ heirs." Had the four legatees, themselves, survived, they would, by the very terms of the will have taken the whole ; and the statute in. express terms, and without qualification, declares, that the descendants shall take “ the same way and manner as such devisee” (legatee) “ would have done in case he had survived the testator,” and there is nothing in the will to conflict with or control this, for there is no gift over. Compare cases supra, • 5 Met. 396 ; 37 Ala. 646 ; 5 B. Mon. 203. Also, Johnson v. Johnson, 3 Hare 156, (25 Eng. Chan.)</p> <p>If the ordinary use of language is to be regarded in judging of the intent of a testatrix, and it is all important, the intent of the sixth clause of Eleanor Field’s will is as if it had read— And the residue I give equally to such of my nieces and nephews (naming them) as shall survive me, their respective heirs, executors, administrators and assigns. If none survived her, there was no devise. The words heirs, executors, administrators and assigns are merely words of limitation to indicate that the gift to such survivors of her nieces and nephews, was in fee simple. Suppose one of the persons named in the sixth clause as a devisee in case of survivorship, had died in the lifetime of Eleanor Field, leaving the other four surviving the said Eleanor, could there be any pretence but that the children of such deceased person would have been excluded from coming in to take tbe one-fifth their parent would have taken had he or she survived the said Eleanor. We think not; — and if his or her children were excluded, we do not see why, the whole five named in the sixth clause dying in Eleanor Field’s lifetime, the children of all of them are not excluded, making the said Eleanor intestate as to the residuum. Sec. 12, Chap. 154 of the Revised Statutes was intended to provide against lapses, and says, in spirit, that the blood of the devisee, viz., the descendants, shall stand in the place of the deceased devisee. It does not intend'to over-ride the express wish and intent of a testator, and to say that a testator may not, by apt words make a devise conditioned on a person's being alive at a certain time. If such an intent is clear, the law will respect it. The statute only says, that it will substitute those for a deceased devisee, that, by an unrebutted presumption of law, are dearest to the devisor alter the death of'the devisee, viz., the children or descendants of such deceased devisee. In the case at bar, the presumption, for which the statute provided, is rebutted in the language of the will, and hence the statute does not apply. Moore v. Dimond, 4 R. I. 121. Although the law will always strive after a construction that will not make a testator intestate as to any part of his estate, yet it will not make a new will for that purpose. It is clear that Eleanor Field, by singling out certain of her nieces and nephews for her bounty, had a special regard for such favored ones; that such regard was personal to them individually, and that if any of them did not survive her, such deceased one’s children and descendants were to be excluded from her bounty, if any of the favored ones should survive her. If all such special objects of her bounty died in her lifetime, then the law would come in and distribute her property just as if she had said, — and if none of them survive me then to my heirs at law forever, — and the descendants of the five favored nieces and nephews would come in with her other heirs at law.</p> <p>Is section 12, chapter 154 of the Revised Statutes applicable to the residuary bequests? The only ground on which it can be contended that it is not, must be that the bequests are upon a condition precedent which has not been performed, and therefore they never had an inchoate existence as bequests, and so the persons named never had any devise or bequest, and therefore their descendants can take nothing under this section. The section, in terms, makes no distinctions between contingent and absolute legacies. It applies to all cases of lapse at common law by death of the legatee. The descendants are to take “ in the same way or manner as such devisee would have done in case he had survived.” The persons named would have taken if they had survived; not surviving, therefore, their descendants take in a case not within the proviso of the bequest, which provides for the ease of all or some one or more surviving, but has no application to the case of none surviving, which is this case.</p> <p>The bequests, according to the natural, obvious, and strictly grammatical import of the terms, are not upon any condition either precedent or subsequent, but are direct, immediate, and absolute; the proviso does not directly attach to the gift, but to the mode of distribution in the cases it covers. The language is not, “ I give and bequeath to the legatees, provided they all survive me,” but, “ I give and bequeath to the legatees, equally between them, share and share alike, provided they all survive me ”; and this proviso makes no provision for the case which actually happened. This was not necessary, for the statute made the disposition which the testatrix probably desired. If this proviso does apparently constitute a condition precedent, courts may, to prevent intestacy, and to carry out the will of the testatrix, construe it merely as a conditional limitation. The intention of the testatrix, as shown by the will, is to govern, and the making of the will with the residuary clause, is proof that the testatrix did not mean to die intestate as to any portion of her estate. The construction contended for gives effect to that intention, does no violence to the language, is inconsistent with no rule of law, and gives a meaning to every word of the bequest. Courts incline decidedly against any construction of a will which results in partial intestacy. 2 Redfiekl on Wills, 442, §§ 4 and 5 ; lb. 615, § 34 ; Phillips v. Chamberlain, 4 Yes. 51, 59 ; Booth v. Booth, 4 Yes. 399 ; Lett v. Randall, 10 Sim. 112, 115 ; Mdridge, Admr., v. Mdridge, Fx'r., 9 Cush. 516, 519 ; Furness v. Fox, 1 Cush. 134; 2 Rop. on Leg. 1462, 13th rule of construction ; 2 Jarman on Wills, 743, 16th rule of construction ; 2 Williams on Executors, 1056. Upon this construction, as Nathan Waterman left no lineal descendants, the entire residue is distributable equally per stirpes among the descendants named in the bill of Robert W., Aaron and Mary Field, and William F. Waterman. The two descendants of Robert W. being his nine children and one great grand-child, are each entitled to one fortieth of this residue. If the court hold that the devise and bequest are upon the condition precedent, that all or one or more of the five persons named should survive the testatrix, and none having survived her, that the devise and bequest never took effect even inchoately, and that this residue must be administered upon as intestate property, it seems that the children of Eobert W. Field will take in equal parts the share of this residue which Eobert W. Field would have taken had he survived the testatrix, and she died intestate. It would seem that there is no difference, in this case, in the descent of the real and of the personal estate. Eevised Statutes, section 1, par. 3, chapter 159 ; section 5, chapter 159 ; section 9, par. 3, chapter 159.</p> <p>The direction in the fifth article of the will to her executors to sell all the real estate, and convert it into cash ; and the language of the sixth article of the will may, perhaps, be held to indicate that this residue is, so far as the will is concerned, to be treated as personal property; and it may be that this residue, if regarded as intestate property, the powers granted in the fifth article, being valid, although the legacies of the residue in the sixth clause fail, would be distributable as personal property. Eedfield on Legacies and Executors, vol. 2, sec. 18, pp. 125, 126, and cases cited ; 1 Williams on Executors, 554, 555 ; Green v. Jackson, 2 Euss. and M. 238. But if the legacies fail, and the portion of the residue undisposed of is held to descend as real or personal estate proportionately to the respective amounts of the constituent elements, this seems to make no difference in the persons who will take, or the amount each will take. Even in case of ancestral real estate, the degrees of kindred are to be reckoned by the canons directing the course of descent as a positive rule of law, and the only difference between the descent of such an estate and an estate acquired by purchase, is, that the heirs must be of the blood of the person from whom such estate came or descended. In the case at bar, the property is not alleged to be ancestral in the bill. Eev. Stat. c'L 159, § 6 ; Smith v. Smith et al 4 E. I. 1. The descendants of Eobert W. Field are of the blood of the testatrix’s father. The word “ descendants,” in the 3d. par. section 1,-chapter 159, and section 5, same chapter, means all descendants, and is not to be limited to children. Such is its meaning in a will. 2 Jarman on Wills, Perkins’ ed. p. 32 ; 2 Redfield on Wills, pp. 1-14, and cases cited; 2 Williams on Executors, p. 954, § 3. This word “ descendants ” seems to have been industriously used to prevent limiting representation among collaterals to brothers’ and sisters’ children.</p> <p>In Quirnby v. Higgins, 14 Maine, 309, the decision is upon the meaning of the Maine statute, which is only partially stated in the opinion. This statute is section 17, chapter 38, 1st vol. Smith’s Laws of Maine, 'page 157. The important words are, “when there shall be no issue nor father, the same shall descend in equal shares to the intestate’s mother, if any, and to bis brothers and sisters, and the children of any deceased brother or sister, by right of representation, and if the intestate have no issue, father, brother or sister, then the same shall descend to his mother, if any, but if there be no mother, then to his next of kin in equal degree.” This statute authorizes distribution to the children of any deceased brother or sister by right of representation, and in case the intestate leave no father, mother, brother or sister, the estate descends to the next of kin in equal degree. The grand child of a deceased brother, there being no special statutory provision making him so, is not next of lain in equal degree with the children of such deceased brother." In 1852, Maine changed her statutes in this respect in consequence of this decision — par. 3, .section 1, chapter 75, Revised Statutes of Maine, 1857, — so that grand children of a deceased brother in the case stated now take by right of representation. In all cases deciding that representation among collaterals is to be limited to the children of brothers and sisters, the decision rests upon, the language of statutes essentially different from the statutes of Rhode Island. In England, it rests on the express language of the 6th and 7th sections of the Statutes of Distribution. See 2 Williams on Executors, § 4, p. 1291; §§ 6 and 7, cap. 10, 22d and 23d, Car. II. In Rhode Island, the English law was changed by Sec. 1, Digest of 1798, pages 287, 288; Sec. 1, Digest of 1822, page 222. See Ooggins v. Joslin, 1 R. I. 122.</p> <p>Four brothers and sisters of the testatrix left descendants, and the descendants of the testatrix’s brother, Abner, are entitled to one-fourth of the estate undisposed of by the will, one-half of this one-fourth, that is, one-eighth, descends to Stephen Field, and one eighth descends to the descendants of Robert W. Field, and one-tenth of this one-eighth, that is, one-eightieth, descends to Lilia M. Davis, great grand-daughter of said Robert W. Field, and one-eightieth descends to each of the children of Robert W. Field still living.</p>

<p>Legatees under a will must severally pay the duties required in respect of their respective legacies, even if the legacies are bequests of specific property, unless they are expressly exempt from such payment hy the terms of the will, and this whether the duties are claimed under the IT. S. Act of 1862 (chap. 119), of 1864 (chap. 173), or the amendatory Act of 1866 (chap. 184.)</p>

<p>A promissory uote, and au agreement which is the’;consideration for the note, áre not such independent]eontracts that the breach of the one cannot be set up by way of recoupment to the other.</p> <p>In an action upon a xjromissory note, the consideration of which was an agreement signed by the plaintiff, to'convey to the defendant, on or before January 1st, 1866, twenty five hundred dollars of the capital stock of the King Gold Mining Company, at subscription price, it was held, that the defendant might defend against the action by showing that no transfer or tender of the said stock was made to him until after August, 1866, and might recoupe his damages arising from the plaintiff’s failure to perform his agreement.</p>

Assumpsit to recover the balance alleged to be due from the defendant to the plaintiffs upon the adjustment of the accounts between them. The case having been referred to Hon. William E. Staples as auditor, he reported that there was due from the defendant to the plaintiffs, on the 17th day of December, 1867, $31,251.50, and the defendant filed exceptions to his report, which now came before the court for hearing.

These were five actions of tbe case brought to recover damages of tbe defendants for their refusing to permit transfers to be made on their books, to the plaintiffs, of certain shares of their… Held: that a corresponding provision could have no application to the case of an indorser.

<p>The waiving of a jury trial in a special court case, and submission of the case under the statute, in law and fact, to ihe judge holding the court, deprives the party aggrieved by his decision of the right to review the same in matters of fact before the Supreme Court, and where the party aggrieved contends that the judge erred in determining the legal effect of certain facts given in evidence, all the facts adduced in evidence before him, must be laid before the Supreme Court, by agreed statement of facts or otherwise, before they can review his decision.</p>

<p>Subject to the rules of evidence and certain general principles, tbe whole conduct of a trial, the order of introducing evidence, and the allowing a party to introduce evidence at any particular time, is subject to the discretion of the presiding judge, and it is no ground for a new trial, that where the plaintiff, in an action on a policy of life insurance upon another’s life, closed his testimony without offering any evidence showing that he had an insurable interest in the life of the party insured, the presiding judge, having at first decided to sustain a motion for a nonsuit on the part of the defendant, afterwards allowed the plaintiff to offer evidence of his insurable interest.</p> <p>In an action on a policy of life insurance, a letter from the president of the defendant company to one S. having been admitted for the purpose of showing him to be a general agent of said company, it was held that certain instructions from said president to said S. sent him as advice and information for his private use, but not as any limitation on his authority, were properly excluded from the case.</p> <p>Held, further, that testimony of the plaintiff that said S. told him that if no poison was found in the body of the insured the defendants would pay the amount of the policy, was properly admitted, the ‘judge having instructed the jury, that if said S. was agent of the company his statement would have the same effect as if made by the defendants, and that if made by the defendants it would not bind them, but must be left to the jury, in connection with the other facts in the case.</p> <p>Eeld, further, that testimony to show that the plaintiff had recently procured additional insurance on the same life, was properly excluded, it being sufficient for this trial to show that he had an insurable interest in the life of the deceased, the defendants not having provided against additional insurance.</p> <p>Held, further, that the burden of proof was on the defendant company to show that the statements made by the plaintiff, in his application for insurance, were untrue; that the value to the plaintiff of the life of the party insured was a matter of estimate or opinion, and that the jury should determine whether he could fairly estimate his interest therein at the sum stated in his application.</p> <p>Held, further, that interest on the part of the plaintiff in the life of the party insured need not exist at time of suit, such interest, existing at the commencement of the policy, being sufficient to sustain the action.</p> <p>An insurance by A. on the life of B. where A.’s claim on B. is simply the pretext for the insurance ; where A. has no'interest in the life of B. he would reasonably desire to have protected by insurance : or where A.’s interest is small, and the insurance vastly disproportionate; is a gaming contract, and therefore cannot be sustained.</p> <p>A premium on a policy of life insurance being due on a certain day, a receipt signed by the agent of the insurance company, and dated on -that day, is presumptive evidence of payment thereof on that day.</p> <p>A regularly appointed agent, in this state, of a foreign insurance company, must be presumed, in the absence of evidence to the contrary, to have full authority to act for said company.- Any limitation of his authority must be brought home to the knowledge of the plaintiff, to be binding upon him.</p> <p>Where a premium on a policy of life insurance is not paid until subsequently to the day upon which it is due, the parties tueing upon the policy must satisfy the jury that the insured was in good health at the time of the payment of said premium, in order to keep the policy in force.</p>

<p>To a special plea in bar of an action on a policy of insurance, alleging that by the provisions of the policy no action was sustainable thereon, unless commenced within twelve months next after the loss, within which time this action was not commenced, the plaintiff replied, precludi non, because, “ after said cause of action had accrued, and within the twelve months next after the occurrence of the loss and damage aforesaid, the said defendant corporation waived the said condition and proviso in their policy mentioned.” Held, on demurrer to this replication, that it was lacking in precision, and did not show, with the degree of certainty required by the rules of pleading, what it was which the plaintiff expected to prove in rebuttal of the special plea, and that the plaintiff must set out fully in his replication what it was that he claimed had been done by the parties, which amounted to such a waiver.</p>

Appeal by the Overseer of the Poor of the town of Smith-field from an order of the Town Council of the town of North Providence, directing the removal of one James E. Angelí, a pauper, from North Providence to Smithfield, on the alleged ground that the said Angelí, who was receiving aid from said town of North Providence, had a legal settlement in the town of Smithfield. The case was heard upon the respondent’s motion to dismiss the appeal because it was not seasonably taken.

<p>Indictment against the defendant for procuring an abortion on one Mary Jane Fisher. At the trial of the’indictment before Mr. Justice Burges and a jury, at the March term of the Court of Common Pleas for the county of Providence, 1868, a verdict of guilty was returned by the jury, whereupon the defendant alleged exceptions, the substance of which are stated in the opinion of the court.</p> <p>The defendant’s exception to the admission of the testimony of Edwin A. Hacket should be sustained. A married woman or a married man is incompetent to testify in a suit between others to any matters for which the other might be indicted, 1 Starkie on Evidence, p. 69 ; The King v. Gliviger, 2 Term. 263 ; T Greenleaf on Evidence, p. 451; Stewart v. Johnson, 3 Harrison, 88. Nor does it make any difference when the relation commenced. 1 Greenleaf on Evidence, p. 452. Nor will consent of the other remove the disability. Ib. 456; Wharton’s Criminal Law, 358 ; Canton v. Bentley, 11 Mass. 441. A husband cannot be admitted to testify against a man for adultery committed with his wife, State v. Welch, 26 Maine, 30. Husband and wife cannot be admitted as witnesses to discover even collaterally the guilt'of the'other. Steer v. Bowman, 13 Pet. 209.</p> <p>The exception to the admission of the testimony of Mary J. Hacket should also be sustained. The same authorities are applicable to this as in the point above.</p> <p>The paper purporting to be signed by Gordon W. Briggs, should not have been presented to the jury until some proof was offered to show that it was in his hand writing, or that he had some connection with it. No such proof was offered either before or after its admission.</p> <p>I. While husband and wife cannot be permitted to testify against each other, vet they may be witnesses in collateral matters, and give testimony which may implicate and tend to criminate each other. 1 Greenleaf on Evid. §§ 340, 341, 342 ; Phillips on Evidence, pp. 67 to 70; Eoscoe’s Crim. Ev. 117, 144 ; 2 Eussell on Grimes, p. 982.</p> <p>II. They may not be compelled to testify against each other. See authorities above. But these witnesses testified voluntarily.</p> <p>III. To the second position, it is enough to say, that it was never claimed nor assumed by the prosecution, that the defendant signed said note, or gave it to the witness. And further, that the judge who presided ruled out said note in his charge to the jury. See U. S. Crim. Dig. p. 180, § 503 ; refers to State v. Ford, 3 Strob. 517.</p>

Information in the nature of a writ of quo warranto, filed to determine whether or not the respondent is warranted to act as trial justice in… Held: and subsequently, at a meeting of the town council, one John Angelí was elected trial justice of voting district No. 2, and one Benjamin Hoxie of voting district No. 8 of said town, (district No. 1 being within the jurisdiction of the Pawtucket court of magistrates.) The respondent, after the expiration of his term of office,…

Indictment against the defendant for erecting a wooden building more than eighteen feet high within a part of the city of Providence where the erection of such buildings is prohibited by an act of the General Assembly, entitled “ an act concerning the erection of buildings in the city of Providence,” passed at its October session, 1848.

Petition for divorce, filed by Euclid O. Thayer as father of Owen M. Thayer, to obtain tbe divorce of the said Owen from his wife, Ardelia M. Thayer, and to have the… Held: upon grave consideration, that the witness may depose not only to particular facts, but to his opinion or belief, as to the sanity of the party, formed from such actual observation. Olary v. Clary, 2 Ired. 78 ; Wheeler v. Alderson, 3 Hagg. Eccl. 574, 604, 605 ; 1 Greenl. on Evid. 9th ed, p. 606, note 2.

<p>It is a fixed rule of courts of equity, as well as' of courts of law, that where an irregularity has been committed, a party who consents to a proceeding which he might have prevented by resisting it on that account, waives thereby all exceptions to such irregularity.</p> <p>Where a street has been improved or extended under the act of the General Assembly, “ in relation to the laying out, enlarging, straightening or otherwise altering streets in the city of Providence,” — passed January session, 185!, a party who has filed his objections to the report of the commissioners made thereon, and claimed a jury trial under the provisions of the act, cannot, after the rendition of the verdict, avail himself of any defect or informality in the notice given him of the commissioners’ report.</p>

Assumpsit to recover balance alleged to be due on book account.

Bill in equity, brought to ascertain the construction of a clause in the will of Samuel S. Whitford, deceased. The clause is set out in full in the opinion of the court.

Demurrer to a bill in equity, to compel a reconveyance -by the respondents of certain real estate in Warwick, R. I. The bill alleged that the respondents’ title to said real estate rested upon a deed obtained from the mother of the complainants by fraud and duress, and further, that the said respondent, Joseph P. Arnold, had received the same as a trust for certain, purposes, none of which he had ever fulfilled, but had conveyed the same to his wife as though it were his own…

<p>H., in his answer to a hill in equity filed against him by G., set up the defence of stated accounts, aud claimed under the rules the same benefit as if pleaded. The complainant objected that this was defective because it did not contain an averment that the accounts were correct and true, as otherwise it would not negative the averment of mistake which was set up in the bill for the very purpose of meeting this defence, and which, under the old practice, would have been made iu the replication to the plea. Held, that as other parts of the answer did contain denials of the alleged mistake and of H.’s knowledge of them, they should be taken together and were sufficient.</p> <p>On a regular plea of stated accounts, the question is, is it sufficient if true ? Stated accounts is a good defence, unless the complainant can prove error or fraud.</p> <p>Under the old practice, if a plea was set down for argument, its truth was admitted, arid the only question was as to its sufficiency : but under the general modern practice, the defendant is allowed to put the facts in issue afterwards.</p> <p>So, if the complainant replies to a plea, he could formerly only question its truth and not its sufficiency ; but the court will, in its discretion, if he has replied inadvertently, permit him to withdraw it in order to question the sufficiency of the plea.</p> <p>The object of pleading in equity, as at law, is to confine the trial to the real questions in dispute, and the court will never suffer justice to be defeated by the merely technical forms which are resorted to.</p> <p>A verbal contract, which it was agreed should go into effect on the first of April, 1851, and continue “as long as the paities are mutually satisfied,” held not to be a contract within the Statute of Frauds, as it might be performed within one year.</p>

Ejectment to recover certain premises in tbe town of East Greenwich, of the defendant.

<p>Assumpsit upon a policy of fire insurance. At tbe trial of the case at the August term, 1869, of the Supreme Court for this county, before Mr. Justice Potter and a jury, a verdict having been rendered for the plaintiff for $1,500 and interest, the defendant now moved for a new trial, upon the'ground of alleged errors of the j udge presiding at the trial in his charge to the jury, and in admitting certain testimony. The facts of the case and the exceptions upon which the motion was based, are stated in the opinion of the court.</p> <p>contended that the plaintiff, having no record title to the property in question at the time of effecting insurance, and at the time of loss by fire, and having had no agreement for the purchase of said property which he could enforce by law or in equity, was not such an owner of said property that he could acquire an insurable interest without disclosing all the facts to the defendants, and procuring their assent to the manner of the insurance, (Eev. Stat. Chap. 146 and 176); and the interest claimed by him in the property insured, as disclosed by the evidence, was not at the time of effecting insurance and of the happening of the loss, an insurable interest and property. Columbian Ins. Co. v. Lawrence, 2 Pet. 25 and 49 ; Etna Ins. Co. v. Miers, 5 Sneed, (Tenn.) 139 , Stockdale and others v. Dunlop, 6 M. & W. 224 ; Catron v. Tennessee Ins. Co. 6 Humph. 176; Parson’s Mercantile Law, p. 507 and notes. And that inasmuch as the policy of insurance contains the following clause, viz.: “ The interest of the assured, whether as owner, consignee, factor, mortgagee, lessee or otherwise, in the property to be insured, shall be truly stated in the policy, otherwise the same shall be void; and such interest shall be set forth in the proofs of loss, with the names of the true owners of the property. The entry of the foreclosure of a mortgage, or the levy of an execution, shall be deemed an alienation of the property, and the policy shall thereupon terminate ;” the true interest of the plaintiff was not stated in the policy, and hence the same was void from the beginning. Leathers v. Insurance Co. 4 Poster, 259; Wilbur v. Bowditch Insurance Co. 10 Cush. 446; Marshall v. Columbian Ins. Go. 7 Poster, 157.</p> <p>contended that the plaintiff, being the owner of the insured property in the sense of having bought and paid for it, was entitled to recover, notwithstanding the record title was in a third party, there having been no fraud, concealment, or misrepresentation. Converse v. Citizens M. F. Ins. Co. 10 Cush. 37 ; Strong y. Manufacturers Ins. Co. 10 Pick. 40; Fletcher v. Commonwealth Ins. Co. 18 Pick. 419 ; Stetson v. Mass. M, F. Ins. Co. 4 Mass. 330 ; Curry v. Commonwealth Ins. Co. 10 Pick. 541. That an equitable interest was insurable. Columbian Ins. Co. v. Lawrence, 2 Pet. 47. Insurer, in possession of house under contract of purchase, can recover. McQivney v. PhenixFire Ins. Co. 1 Wend. 85 ; Carter y. Humboldt Ins. Co. 12 Iowa, 287. Mechanic’s lien is an insurable interest. Marine policies are enforced although the insurer has no record title. Kenney v. Clarkson et al. 1 Johns. 385; Cordon v. Mass. F. and M. Ins. Co. 2 Pick. 258-9. The stipulation in the policy, of an indemnity to the extent of the fair and actual cash value, means, and can only mean, replacing or paying a sum that would replace the insured property. Brinley v. National Ins. Co. 11 Met. 195.</p>

<p>Before the adoption of the constitution, tbe state of Rhode Island had jurisdiction over the waters of Narragansett Bay, and over the coasts of the sea to the extent of a marine league. The colony and state have always asserted a jurisdiction over the Bay, the process of the state courts has always been served on it, and generally, the state has always regulated all matters on the Bay.</p> <p>Admiralty jurisdiction in colonial times defined.</p> <p>At the time of the Revolution the English common law courts had, at least, jurisdiction concurrent with the admiralty jurisdiction, over marine torts committed in bays and arms of the sea.</p> <p>The meaning of the word “ exclusive” in the Act of Congress of 1789, C. 20, defined.</p> <p>The constitution of the United States conferred on the United States courts the admiralty jurisdiction as it then existed in the jurisprudence of the common law, exclusive where it was before exclusive, and concurrent where it was before concurrent.</p> <p>In a suit by an administrator brought under a statute of the state (Rev. Stat. chap. 176, §§ 16 and 21) to recover for the loss of life of his intestate, caused by being run over by defendant’s steamboat in Narragansett Bay, where the defendant contended that the jurisdiction of the state court depended entirely on the saving clause in the Act of Congress, 1789, chap. 20, § 9, saving to suitors a common law remedy, and that this, being a right of action given by statute, and not existing at common law, was not within that saving clause, it was held, that the intention of the saving clause was,, to have a remedy 0¶ right of action in those courts which, proceed according to the course of the common law as distinguished from admiralty proceedings, and that the action was maintainable in the state courts.</p> <p>The cases of The Bine v. Trevor, í "Wal. 555; and the Moses Taylor. Ib. 411, stated and distinguished.</p>

<p>A will executed according to law operates as a revocation of a former will, even if it contains no clause of revocation, where it purports to dispose of all the property of the testator in a manner different from, and inconsistent with, the disposition of it in the former will.</p> <p>An instrument purporting to he a will, hut executed in the presence of two witnesses only, and containing no clause of revocation, will not so operate, although it purports to dispose of all the property of the party signing it, in a manner different from, and inconsistent with, the disposition in the first, nor would it so operate if it contained a clause of revocation. As it fails to stand as a will, the clause of revocation fails with it.</p>

<p>Action of partition, brought in the Court of Common Pleas, at its November term,, 1867. Judgment was rendered for partition in the court below, and David Buffum, Alfred Smith and Samuel Brown were appointed to.make partition of the premises by metes and bounds. David Buffum declined to serve. The parties, by their respective attorneys, by an agreement in writing, substituted Henry Bull in the place of Buffum, and the clerk, by request of said attorneys, issued a commission to make partition to Bull, Smith and Brown. The commissioners pro • ceeded to examine the parties, and their witnesses, and to hear the parties, and finally, to make their report, by a majority, to the court.</p> <p>Upon the coming in of this report, the counsel for Hazard objected to the report on the ground that Bull was appointed by the parties and not by the court. The court thereupon appointed Bull in the place of Buffum, and recommitted the report.</p> <p>Upon the coming in of the second report, the defendant Hazard excepted to its admission upon grounds which are fully stated in the report of the argument of counsel and in the opinion of the court.</p> <p>Exception 1. Only two of the three commissioners appointed to make partition in said case signed or assented to the report. When a power to do an act for a private purpose is -given to a number of persons, it is a joint power, and all must concur in executing it, unless it is otherwise expressly stipulated. The proceedings of corporations are an exception to this rule. Greene v. Miller, 6 Johns. 89 ; Towne v. Jaquith, 6 Mass. 46 ; Siueet v. Mathewson, 1 R. I. 422; Parker et al. v. Pawtucket Ins. Co. 3 R. I. 192; Smith v. Walden, 26 Greo. 249; Hobson y. McArthur, 16 Pet. 193; Jefferson B. B. Co. y. Mounts, 7 Ind. 669. When a power of a public nature is given to a number of persons, they must all meet and confer about the execution of it, but the act of the majority is valid. In other words, a majority may execute a public trust. Grindley y. Barker, 1 B. & P. 229 ; King y. Beeston, 3 Term. 592 ; King y. Whitaker et al. 9 B. and C. 648 ; Co. Litt. 181 b. The sole criterion to determine whether such persons may act by majority, or must act unanimously, is whether the nature of the trust, duty, or business conferred on them is public or private. Comyns Digest, Attorney, C. (11); Bulstrode 105 ; Yiners Abridg. Authority B. § 37 ; Sweet v. Mathewson, 1 R. I. 422; Smith v. Walden, 26 Greo. 249 ; Jefferson R R. Go. v. Mounts, 7 Ind. 669. It is the English Equity-practice for a majority of commissioners to make a valid partition ; but the commission always expressly orders that. And so might the commissions issued under our statute, if the court saw fit. Allnut on Partition, pp. 103-116. On the other hand, it is easy, by the application of this simple and accurate test, to distinguish those cases in which a majority of the persons authorized may decide. Such are, for example, the acts of inspectors of provisions, building materials, leather and the like ; of surveyors or inspectors of roads, ferries and bridges; of commissioners to lay out highways, turnpikes, canals and railroads, or to assess the damages occasioned by the location or operation of such public works. These are affairs which, unlike a lawsuit — the partition, of a piece of land — interest and affect the people at large ; and to this class belong the following cases : Grindley v. Barker, 1 B. & P. 229; King v. Beeston, 3 Term. 592 ; Babcock v. Lamb, 1 Cow. 238 ; JEx-parte Rogers, 7 Cow. 526 ; Baltimore Turnpike Co. 5 Binn. 481; King v. Whitaker, et al. 9 B. & O. 648. The legislatures of many states have passed special statutes to enable auditors, commissioners, referees, etc., to decide by majority. Those statutes explain nearly every case in which the power of the majority is asserted in private matters. The more prominent of them are Mclnroy v. Benedict, 11 Johns. 402, (videN. Y. Laws of 1813, vol. 2, 516); Walker v. Melcher, 14 Mass. 148; Short v. Pratt, 6 Mass. 496, (vide Mass. Stat. of 1860, Chap. 147, § 7); Odióme v. Seavey, 4 N. H. 53 ; Kane v. Parker, 4 Wis. 123.</p> <p>Exception 2. It appears on the face and from the tenor of said report that only the two Commissioners who signed it ever met or conferred in the premises. This is a fatal objection. Even where by Statute, or by express stipulation, the act of the majority is valid, the report or award must state that all the commissioners or referees met and conferred, and must explain why they did not all sign. Underhill v. Jackson, 1 Barb. Ch. 73. It is indispensable that all the commissioners should meet and hear the parties and deliberate; and this fact should appear on the record., Short v. Pratt, 6 Mass. 496. The report, when unanimity is not requisite, and there is a dissenting commissioner, ought to be made substantially as in Walker y. Melcher, 14 Mass. 148.</p> <p>Exceptions 3 and 4. These exceptions may be considered as one. The report itself, as part of the record, must show that all the commissioners met, conferred, and deliberated together. When the report is defective in that respect, the only proper course is to reject it, or at least to re commit it; and the use of parol evidence to contradict, amend or add to it, or to supply its defects, is erroneous.</p> <p>Exception 5. This clause as corrected by the Judge, reads as follows: “ Said Smith then further testified that all the commissioners met and deliberated — heard the parties and then went by themselves. That they went on the farm in question— the first time together, the last time without Brown. That Brown talked with Bull separately, and with Smith separately. That several days elapsed between the first commissioners’ meeting and the last; and meantime Smith met and conferred with Bull on several occasions, in the absence of and without any notice to Brown. That before the first of said meetings Bull and Smith proposed to Brown to go together and view the estate in question, which Brown declined to do; and then Bull and Smith went together and had said view, without Brown, and without urging him or further inviting him to accompany them. And this testimony was uncontradicted.”</p> <p>The foregoing discloses such conduct on the part of the commissioners as wholly vitiates their doings. It was their imperative duty to act in concert as far as practicable, and to make every effort to reconcile differences and unite in judgment. They were bound to meet and deliberate together — not once, or twice, or occasionally, but always, when they met at all. They had no authority to consult and confer in pairs, in the absence of the third. Henderson v. Buckley, 14 B. Monr. 292.</p> <p>Exception 6. The leave granted to the commissioners to amend their report, was void because granted in vacation and without notice to the defendants.</p> <p>Exception 7. A paper or proposed amendment of the report was filed in said cause, April 28th, 1869, but nothing was ever done, made or filed, in the premises, subsequent to or pursuant to any leave to amend. This paper purports to have been authorized by the court, but it was not. It was filed without previous notice, application, or permission of any kind. It has not been ratified, for the subsequent leave to amend does not particularize or even allude to it. The amendment has never been perfected.</p> <p>Exception 8. At said November term of the Court of Common Pleas, both the order by which an amendment of said report was allowed, and said former authority to amend the same was confirmed or attempted to be confirmed, and also the judgment then rendered by said court on and in conformity, to said report, were made and rendered by a judge, (sitting alone) who had not heard or tried said cause, or any part of it, or heard any of the evidence or arguments therein.</p> <p>When one judge has alone heard the evidence and arguments in a cause and tried it, another judge, in the absence of the first, ought not to render judgment or decide, any point in it. The violation of this principle would furnish ample cause for a new trial in any case. There is nothing in the case at bar to excuse an irregularity of this sort.</p> <p>I. The legislature intended by the act in relation to partition, to provide a certain means by which estates held in common might be enjoyed in severalty. If the law requires three or more commissioners to concur in a report, the law may he defeated, as the commissioners might never concur. See Baltimore T. Go., 5 Binn. 485. The law establishes and sustains the following propositions, viz.: 1. When a commission is instituted under a general law to three or more persons, after all are qualified and all deliberate, a majority may bind the minority. 2. When a commission is issued in connexion with the admintration of justice, to three or more persons to do any act requiring discretion, a majority, after all are qualified and deliberate, may bind tbe minority. 3. When a commission is created by private parties, or for a private purpose, in the absence of a stipulation that a majority may bind, all must concur. 4. So if a special authority is conferred by a special law upon three or more persons to do a valid act, they must all coincide.</p> <p>So when a power is conferred to do an act merely ministerial, upon three or more, they must all concur to execute the authority, but it is otherwise, when the power conferred is of a judicial character, if the appointment is made by any of the legally constituted authorities and under a general law.</p> <p>II. The distinction between commissioners instituted by private and by public authority is taken in Colee Lit. 181, b, where it is said, there is a diversity between authority created by the parties for private causes and authority created by law for the administration of justice. In matters of a public nature such as arise in the administration of justice, a majority will bind. Note 13, Sec. 3, Vin. AB. Tit. Authority.</p> <p>When a statute constitutes a board of commissioners or other officers to decide any matter, but makes no provision that a majority shall constitute a quorum, all must be present to hear and consult, though a majority may decide. See Ex parte Rogers, 7 Cow. 526 and note; Gridley v. Barker, 1 B. & P. 236. This rule applies to commissioners to lay out highways, see Babcock v. Lamb, 1 Cow. 238. But not to commissioners to keep highways in repaii’.</p> <p>In the awards of referees and auditors who derive their power to administer j ustice by the act of law a maj ority may bind, but it is otherwise by arbitrators chosen by the private act of the parties. Patterson v. Leavitt, 4 Conn. 53. A majority may act in matters of partition. Odióme v. Seavey, 4 N. H. 53 ; Town v. Jagnith, 6 Mass. 496; Hawes v. Walker, 23 Barb. S. C. 304 ; Bluchec v. Blisard, 9 B. & C. 851; King v. Whitaker, lb. 648 ; Gridley v. Barker, ante 1 B. & P. 229 ; Crooker v. Crane, 21 Wend. 218; Orris v. Thompson, 1 Johns. 500 ; Spencer v. Scudder;9 Johns. 359 ; McHenry v. Benedict, 11 Johns. 402; Brown v. Mason, 13 Johns. 460 ; Binney v. Ryan, 21 Wend. 178 ; Wolsey v. Tompkins, 28 Wend. 324 ; Damon v. Granby, 2 Pick. 355 ; Upham v. Whiteside, 23 Wend. 9 ; Jewett v. Alton, 7 N. H. 256. An authority to an attorney, if the attorneys are commissioners, or appointed by récord, as is suggested in Oomyn’s Dig. Tit. Attorney, C. § 11, is a very different authority to that of a tribunal constituted for the administration of justice. The report of two of three commissioners in partition were held binding. Keene v. Parker, 4 Wis. 123 ; Goler v. Hall, 2 Hill, 626 ; Odióme v. Sweeney, ante. Sweet v. Mathewson, 1 R. I. 422, is to the point, that where parties agree to submit a cause between them to three referees, and all of them sign the report, that the court will not consider certain irregularities in th.e commission.</p> <p>That the duty of the commissioners was judicial. See King v. The inhabitants of Hamstall, 3 Term. 380 ; Grant v. Raymond, 6 Pet. 241; Marbury v. Madison, 1 Cranch, 158. Commissioners act as a court in partitions. See Mariney v. Charlesworih, 1 Coopers, (Brougham Dec.) 55; Withwell v. Gariham, 6 Term. 388; Ius’ts Just. Book 4, Tit. 8, § 17. The report of the two of the commissioners must, in the absence of a minority report, be presumed to be the report of all. Gridley v. Barker, 1 B. & P. 229, and other cases heretofore cited.</p> <p>III. Evidence aliunde the report is admissible in aid of an award where it does not appear in the form of the report that the requisite number was present at the hearing. See Adding V. Finch, 7 Cow. 290 ; Frye v, Scott, 3 Cranch, C. C. 294.</p>

<p>These were two actions of assumpsit, one brought by Henry F. Barrows against the defendants, to recover the sum of $8,494 89, alleged to be due on book account for goods sold and delivered, and the other by the Meriden Britannia Company, upon a promissory note for $8,467 82, made by the said J. F. Downs & Co., and also to recover the sum of $1,142 09, alleged to be due on book account for goods sold and delivered.</p> <p>Service of the writ in each of these cases was made solely upon William C. Downs, described therein as one of tbe co-partners of the firm of Joseph F. Downs & Co., the said Joseph F. Downs not being to be found within the state.</p> <p>The cases were tried together by consent, and a jury trial having been waived, were submitted to the court in fact and law. The material facts are stated in the opinion of the court.</p>

Action of tbe case to recover damages of the City of Providence, for injuries caused by filling up the dock of the plaintiff.

<p>In an action of debt on a judgment obtained in the state of New Tort against two joint debtors, in which the only evidence of service of the process is the written acknowledgment of legal service thereof signed by one of them, the plaintiff cannot maintain his action in the state of Rhode Island upon such a judgment, against the debtor not served with process in the first suit, and a plea of nul tiel record, interposed by the defendant, is a good plea in bar of the action.</p> <p>Whether such a judgment, as against the debtor not served with process, can be sued in the state where it has been recovered, quaere. It is certainly not a judgment in the sense of the constitution and laws of the United States, and cannot be enforced as a judgment by virtue thereof, outside of the state where it was recovered. '</p>

Assumpsit to recover for the board of the defendant’s wife, who was the plaintiff’s daughter, and for care and attendance on her in sickness while at the plaintiff’s house, and for her funeral expenses. At the trial of the case at the last term of the Supreme Court for this county, before the Chief Justice and a jury, the defendant claimed that he was not liable, because his wife had gone to her mother’s house as a deserter from her husband.

This was an action to recover $50,000 damages for breach of a contract, of the terms of which the plaintiff alleged that he had made a memoi-andum, but which had not been signed by the defendant. The memorandum, as produced by the plaintiff at the trial, is set out in full in the opinion of the court.

<p>Action of trespass, the plaintiff corporation alleging tbat tbe defendant on the 80th day of April, 1868, broke and entered the plaintiff’s close in Smithfield, and threw down and destroyed part of the fence enclosing the lot, and committed other trespasses thereon.</p> <p>The plea was the general issue, with liberty to the defendant to offer in evidence under that plea, any thing which could be offered under a special plea in bar.</p> <p>At the trial at the October term, 1869, of the Supreme Court for this county, before the Chief Justice and a jury, it appeared that the plaintiff and defendant owned two lots of land in Smith-field adjoining each other, and that they derived title to their re-respective lots from one common owner, viz. Joseph Jenks. It appeared that Jenks at the time of his decease, owned among other property, certain real estate called his mansion house estate, on which was a dwelling house and other buildings.</p> <p>It appeared that after the decease of Jenks a committee was appointed by the court of probate of Smithfield, to make a partition of his estate among his heirs ; that said committee made a report with accompanying plat, in 1847. Under this petition the mansion house lot was divided into three parts. Edwin A. Jenks, one of the heirs, drew lot No. 2 in the partition. This is the lot immediately north of the defendant’s lot, and is the lot on which the trespass was alleged to be committed, said lot now being owned by the plaintiff corporation. It is described as the north third part of the mansion house lot, and as containing 18 6-10 rod’s. The report proceeds as follows : “ Also said Edwin A. Jenks shall have the north part of the mansion house in the first story being three rooms and closet; also a room in the garret at the northwest corner; also the north part of the cellar. And a privilege to pass in and out at the outside doors at all times unmolested. And also the said Edwin A Jenks, his heirs and assigns, shall have the privilege to cross the other lots to the well and of the waters thereof, and to the wood-house and one undivided third part of the same.”</p> <p>The lot immediately south of the above lot was drawn by Sarah Jenks, and is now owned by the defendant, and was owned by him at the time of the supposed trespass. The report proceeds as follows : “ The second lot marked No. 4 on the plat, situate and being the middle lot where the mansion house stands and contains 13 6-10 rods.” After running the boundaries, the report says : “ together with the second story of said mansion house; also' shall have the privilege to pass up and down the front and back stairs in and out at the outside doors at all times hereafter at pleasure; also shall have a privilege to the well and of the waters thereof; also one third part of the cellar, being the middle part of the same ; and shall have the privilege to pass up and down the cellar stairs outside way and in; also shall have the one undivided third part of the wood-house, and a privilege to pass across other lots, Nos. 2 and 5, to and from said wood-house; and also shall have a privilege to cross lot No. 5 to Chase driftway at all times hereafter unmolested.”</p> <p>Lot No. 5, being the south part of the mansion house lot, was drawn by Abby W. Bullock, and certain rights in the mansion were assigned her by the report.</p> <p>The plaintiffs claimed at the trial that the defendant had built a barn in the rear of his lot (in said middle lot,) and had passed over their lot in going to and from said barn to the street or highway in front of said lots, and they claimed that although the defendant had a right to pass over said lot for the purpose of going to and from said wood-house, the defendant had no right whatever to pass over said lot for the purpose of going to and from said barn.</p> <p>The defendant admitted that he had built the barn, and had passed over the plaintiff’s lot in going to and from the said barn, and claimed that he had the right so to do.</p> <p>It further appeared at the trial, that the mansion house covered the entire front of the middle lot (the defendant’s) so that no one could pass from the rear of said lot to the street in front, without passing over one or the other of the said adjoining lots.</p> <p>It also appeared that there was and for a long time had been, a fence maintained on the south line of defendant’s lot for the whole length thereof.</p> <p>It also appeared that from the time of the probate partition aforesaid, the owners of defendant’s lot had passed over' the plaintiff’s close to and from the street for the purpose of using said wood house, and that the defendant had no other way of passing to and from his said barn to said street, excepting across plaintiff’s close and except across said No. 5.</p> <p>It further appeared that the plaintiffs had succeeded to all the rights of Edwin A. Jenks in said lot drawn to him as aforesaid, and that they had become the owners of the lot assigned to Abby W. Bullock as aforesaid, and had succeeded to all her rights in said premises.</p> <p>It appeared that the defendant had succeeded to all the rights of Sarah Jenks in and to said lot drawn to her as aforesaid.</p> <p>The defendant claimed that he'had the right under the report plat and circumstances as aforesaid, to cross the said close of the plaintiffs to and from his said barn, and this right he claimed as an easement or right of way by necessity arising by implication in the premises. But the judge ruled that all the rights and easements which belonged to the close of th.e defendant, were those which were created by the express words and terms of the report and plat; and that the said defendant would have no right to cross the said close of the plaintiff for the purpose aforesaid, (viz., passing to and from said barn,) unless the report and plat expressly conferred or granted such right. ■ ■</p> <p>To this ruling of the court the defendant excepted. The jury under the above ruling of the court returned a verdict for the plaintiffs for nominal damages.</p> <p>The following is a copy of so much of the plat made by the aforesaid commissioners as is essential to be considered in the present case:—</p> <p>[[Image here]]</p> <p>cited Washburn on Easements, 57, 61; Wash-burn on Real Property, Vol. 2, p. 38; Appleton v. Fullerton, 1 G-ray, 186 ; Underwood v. Carney et al., 1 Cush. 285 ; Dixon v. Clow, 24 Wend. 188 ; Bralcely v. Sharp, 2 Stockt. 206.</p>

<p>Assumpsit for money had and received by the defendant as agent of the plaintiff, as administratrix on the estate of James H. Brown. The case was referred to Thomas C. Greene, Esq., as auditor. It appeared from the findings of his report, that the said James H. Brown opened a shop in Olneyville, January 1st, 1868, for the sale of butcher’s meat and vegetables, and appointed the defendant as his agent to carry on the business. Brown died in March, but the defendant remained in charge of the shop, with the understanding that he should act as agent therein for the benefit of the estate. The plaintiff (the widow of said Brown) took out letters of administration, and in August closed the shop, and brought the present action for the recovery from the defendant of money had and received by him in his capacity as agent.</p> <p>The auditor having reported that there was due from the defendant to the plaintiff the sum of $2,106, the defendant filed two exceptions to his report. First, because he had refused to permit the defendant to testify upon his own offer ; and second, because he had allowed for profits made in a business carried on with property belonging to the estate of the intestate after his death. The case was now heard upon these exceptions.</p>

Assumpsit against the defendant as guarantor of a promissory note made by one Welcome Tucker for $250 with interest. The defendant pleaded the statute of limitations, to which the plaintiff replied, first, that the maker had made a new promise within six years ; and second, that after making the note the maker went out of the state, and remained out for six years, the guarantor, however, remaining here. To these replications the defendant demurred generally.

Assumpsit upon a promissory note. • The facts of the case, which was heard upon the plaintiff’s general demurrer to the defendant’s plea in abatement, as well as the nature of the said plea, are fully stated in the opinion of the court. I. That a subsequent suit is not abatable unless the prior suit is entered in court, for it must appear oj record that the two actions are for the same cause, and that the first was pending when the second was commenced.

Action of trespass and ejectment, brought to recover possession of a narrow strip of land in the westerly part of Providence, on Pine street. A jury trial having been waived, the case was submitted to the court both in fact and law. The following facts appeared in evidence at the trial. The plaintiff and defendant were owners of two adjoining estates.

<p>Information in the nature of a quo warranto, filed by the petitioners, to test the validity of the eleetion held at the last annual meeting of the Providence and New York Steamship Company, which resulted in the election of the respondents with others, as directors of said company. The affidavits filed by the respective parties disclosed the following facts.</p> <p>On the 27th day of December, 1866, the firm of Orray Taft & Co., deposited with Blarl P. Mason, as trustee, for himself, the firm of Borden & Bowen, the firm of B. B. & R. Knight, endorsers, to the extent of $100,000 each, of certain promissory notes to the amount of $300,000, made by said Taft & Co., and fqr Charles L. Anthony, guarantor of the same, 883 shares of stock, in the Providence and New York Steamship Company, then a copartnership, anticipating the grant of a charter and organization thereunder, as collateral security for said endorsements and guaranty.</p> <p>At the May session of the General Assembly in the following year, a charter was granted to said Steamship Company, and the members? of said copartnership, organized thereunder, passed by-laws for the government of the corporation, and, upon the transfer of the copartnership property by the trustees thereof to the corporation, the capital stock was apportioned among the stockholders, according as their interests appeared, the said Earl P. Mason having been credited as “ trustee” on the stock ledger, with 883 shares of the capital stock, and having received a certificate running to “Earl P. Mason, trustee,” for said number of shares, which he still holds.</p> <p>The notes thus secured were overdue and unpaid, and said stock was liable to be advertised and sold, in accordance with the terms of hypothecation, long befoirn the 9th day of June, 1870. Said Mason had always voted on said stock at corporation meetings prior to that day, without opposition or question, and up to said day the officers and members of said corporation had no knowledge or evidence, written or otherwise, as to said Mason’s title to said stock, other than said stock ledger credit, and the certificate issued to him, evidencing the same.</p> <p>The charter of said corporation provided that stockholders only were eligible as directors; and the by-laws provided that only those stockholders should be entitled to vote at meetings as should, according to the company’s stock ledger, have been holders of stock for ten days next preceding such meeting.</p> <p>At the annual meeting of said corporation, held on said 9th day of June, 1870, the petitioners were nominated as candidates for directors in opposition to those of the old direction named as respondents. At said meeting, the petitioners claimed they gave notice to the officers and stockholders present, that said shares were the property of Edward P. Taft, instead of said Mason, and that they were hypothecated with said Mason as security merely, and then and there protested against said Mason’s voting upon said shares for the respondents, and demanded that the votes upon a portion of the same should be given for th,e petitioners.</p> <p>The respondents denied that any such notice was given, or that any suck protest or demand was made at said meeting, or that any objection ever appeared, or was shown to said Mason’s voting on said shares, other than a protest made by B. B. Knight, one of the petitioners, while the ballots were being collected, on the sole ground that he had an interest therein. The old directors, including the respondents, each of whom had 3,738 votes against 2,959 for each of the petitioners, were declared elected, and thereupon entered upon the discharge of their duties.</p> <p>The petitioners claimed that, at said meeting, ballots upon said 883 shares were cast by said Mason, and counted for the respondents, and for that reason their election was illegal, and they should be excluded from further holding and exercising said office of directors.</p> <p>The petitioners claim to have been legally elected directors of the Providence and New York Steamship Company; Their claim is based upon the allegation that the respondents, who were declared elected and are holding said office, received 883 votes of Earl P. Mason, trustee, which were illegally cast by him, the stock on which he so voted being held by him as collateral security, and belonging to Cyrus Taft and Edward P. Taft, who alone were entitled to vote upon it at said election. It is not disputed that the result of the election was determined by said 883 votes, and that without them the petitioners would have been elected.</p> <p>I. The only defence set up, viz., that no notice of the ownership of the stock, and of its being held as collateral, was given at the election, is immaterial, and is untrue' in point of fact.</p> <p>II. The doctrine that stock held as collateral does not entitle the holder to vote is a just and true one, well settled by authority, and in all the circumstances disclosed here, ought to be applied by removing the respondents and declaring the election of the petitioners. Vowell v. Thompson, 3 Cranch, C. C. 428 ; Scholfield v. Union Bank, 2 Cranch, C. O. 115 ; Merchants Bank v. Cooke, 4 Pick. 405.</p> <p>I. B. B. Knight, one of the petitioners, was not eligible as a director at said annual meeting, and could not have served had he been elected, — Sec. 4 of charter. Not being at the time a stockholder. And he is not properly a party to the petition, as he had no interest in the affairs of the corporation when the petition was filed. Rex v. Brown, 3 Term, 574; Angelí and Ames on Corporations, 6th Ed., § 742. The other relators are barred from, prosecuting this application for a quo warranto, because they were present and concurred at the time of the alleged objectionable election. Rex v. Trevenen, 2 Barn, and Aid. 339 ; State v. Lehre, 7 Rich, 234.</p> <p>II. The burden is upon the petitioners to show that the 883 ballots were cast and counted as they claim. Ex parte Murphy, 7 Cow. 153 ; First Parish in Sudbury, v. Stearns, 21 Pick., 148; and the manner of casting votes and conducting an election, being corporate acts, can in a case between members, be shown only by the records. Coffin v. Collins, 17 Maine, 440; Hudson v. Carman, 41 Maine, 84.</p> <p>III. Though the provisions of Section 24 of chapter 128 of the Revised Statutes do not directly apply to this case, the analogy would favor the trustee’s right to vote. This charter is subject only to the provisions of chapter 125 ; and, by authority of the first section thereof, Article II of the By-laws was adopted. That by-law is valid and binding upon the members, and, under it, the trustee by the stock ledger test, was the proper person to vote. The People v. Tibbetts and, others, 4 Cow. 358; Vandyke v. Stout, 5 Halst., N. J. Chan., 333 ; Downing v. Potts, 3 Zabriskie, 66; In the matter of the Mohawk and Hudson River R. R. Co., 19 Wend., 135 ; In the matter of the Long Island R. R. Co., 19 Wend. 36 ; Mousséaux v. Urquhart, ly(La. (Ann.) 482.</p> <p>IV. Irrespective of the by-law, the fact'that the stock stood in his name on the books as trustee was the test, and, without more, entitled him to vote. Ex parte Barker, 6 Wend., 509 ; Ex parte Holmes, 5 Cow. 426 ; Ex parte Wilcoclcs, 7 Cow. 402, and cases cited above. A pledgor who transferred his shares as collateral security, was compelled to make timely, resort to a bill in equity to secure a power of attorney to vote on his pledged stock. Vowell v. Thompson, 3 Cranch, 429 ; and it would seem, upon the authority of the People of New York v. Kip el al., reported under note “ a” to the case People v. Tibbetts, cited above, that the only person giving any notice, or making any protest, in this case, having at best a mere equitable interest, as a partner, would have found profit, if at all, in imitation of the example.</p> <p>Y. The principle to be extracted from the preceding cases is, that the owner of the legal title to the stock has a right to vote upon it. Therefore, if a party has merely mortgaged or pledged his stock, without parting with his legal title, his right to vote is not lost. On the other hand, if he has actually parted with his legal title, although he has taken a secret agreement in the nature of a condition of defeasance, which is not of record on the books of the company, the right to vote is lost. Corporations can only be guided by the title of i’ecord and are incompetent to settle disputed equitable titles. Unless this be the rule, it would be in the power of a minority to prevent an election by raising embarrassing questions - of title founded on equitable claims.</p>

<p>Bill in equity, to compel a conveyance by the respondent to the complainant of a certain farm in Cumberland, and to enjoin the respondent from prosecuting a special court action against the complainant for the recovery of said farm. The facts of the case are fully stated in the opinion of the court.</p>

Action of trespass and ejectment, for the recovery of a parcel of land on the east side of Knight street in the city of Providence. The cause came on to be heard by the court upon an agreed statement of facts, both parties having therein waived jury trial.

Phillips, to which he had been nominated by the will of her father. contended that, being a testamentary guardian, he was not removable by a court of probate, and presented the following points:— I. The statutes recognize two classes of guardians, (a.) Those appointed by will. Bev. St. ch. 138, § 1. (b.) Those exercising authority derived from the Court of Probate. Bev. St. ch. 138, § 2. The class (b.) contains three descriptions of guardians. 1.

Action brought under the provisions of chap. 158, section 8 of the Revised Statutes, to recover a dividend from the estate of the defendant’s intestate — upon liabilities incurred as the president, and one of the directors, and a stockholder, of the Union Horse Shoe Company, a manufacturing corporation, created by an act of the General Assembly and organized thereunder in 1864, and included within and subject to the provisions of chapter 128 of the Revised Statutes and the…

Assumpsit brought bv the plaintiff, a corporation duly organized under the laws of Rhode Island, against the defendant, city treasurer of the city of Providence, to recover back the amount of taxes assessed by said city against the plaintiff corporation in the years 1868 and 1869, with interest from the time of their payment, amounting respectively to $100.04 and $395.09, said taxes having been paid by the plaintiff corporation under protest.

<p>Decision in Evans v. Dana, 7 R. I. 306, reaffirmed, that only easements apparent and continuous, and necessary to the proper enjoyment of the part granted, pass hy implication of the grant upon the severance of an estate one part of which has served the uses of another part.</p>

Assumpsit to recover tbe value of liquor sold by the plaintiffs, who did business in NewYork, to the defendant, who kept a retail liquor shop in Woonsocket, Rhode Island. At the trial of the case at the present term of the court, before Mr. Justice Durfee and a jury, the defendant asked the court to instruct the jury— 1.

<p>The plaintiffs made for the defendant certain castings on defendant’s order, at an agreed price, and after patterns furnished by Mm, to be paid for when delivered. Some castings bad been delivered and paid for, some had been delivered and not paid for, and others had been made and were retained by the plaintiffs for payment, before being delivered. Testimony was offered by plaintiffs that their bill, containing charges for the castings still retained, as well as for those delivered, had been presented to defendant, who had admitted its correctness and promised to pay it; that the castings retained had been attached in this suit ; that after the attachment, defendant told plaintiffs to hold on to them for a few days and he would pay for them, saying he did not want them removed ; and that the castings were of no value to the plaintiffs except as old iron. The defendant testified that he only promised to pay for the castings received, and never admitted any liability for those which were retained by the plaintiffs, without saying, however, that the castings were not made on his order and according to pattern, or that he had ever disclaimed them after learning that they had been made for him. Held, 1st. That subject to the lien of the plaintiffs for the price, the castings became the property of the defendant, who, until they were attached, was entitled to them upon tendering payment. 2d. That the plaintiffs were entitled to recover, not only the price of the castings delivered, but also of those made and retained, on a proper count, namely, on a count for goods bargained and sold. 3d. That they could not recover on counts for book account or for goods sold and delivered, or for work and labor done and materials furnished, the only ones in their declaration, but leave was granted them to amend their declaration and insert a count for goods bargained and sold.</p>

Petition for mechanic’s lien. The case was now heard on the respondent’s motion to dismiss the petition for want of legal service on two of the respondents, on grounds which are stated in the opinion of the court.

Writ of replevin, commanding the sheriff or his deputies to replevy, among other things enumerated, the “ goods, stock and fixtures in store at Johnston, at a place called Dry Brook, occupied b'y said Joseph H. Leach, of the value of $800, and books of account and evidence of indebtedness showing indebtedness of persons to said Leach of the value of $50.” To this part of the writ, the defendant demurred, as “insufficient, uncertain and informal, in that it does not enumerate…

Motion to dissolve an injunction heretofore decreed by the court upon a bill in equity filed by the complainant against the respondents. The facts of the case, so far as they are necessary to a proper understanding of the legal questions passed upon in the following- opinion, are mainly set forth in the opinion of the court.

<p>Where a party filed a bill in behalf of himself and such others as might come in and become parties, and other persons applied to become parties, and an order was made granting the motion, held, that actual interlineation of the names of the new parties was not necessary, as the record, when made up, would state all the necessary facts, viz., that one party brought the bill for himself and such others as might come in, and would also state that certain others did come in and become parties, and a sworn bill (like the present) should not be erased or interlined unnecessarily.</p> <p>The provision in Equity, rule 20, that a party shall be considered as abandoning any amendment he has had leave to make unless he files his amendments, or makes them on or before the next rule day, applies only to amendments made under rule 19, viz., after answer, &c.</p> <p>Note. — The Reporter is indebted to Mr. Justice Potter for the following opinion rendered upon a motionheard before him singly, in two cases brought in Newport county, but argued before him by agreement at the October term, 1868, of the court for the county of Providenco, to remove the above entitled causes to the United States Circuit Court. The head notes were also prepared by Mr. Justice Potter, before delivering the opinion to the Reporter.</p> <p>An order was made by the clerk, after copy taken, granting leave to amend on the conditions imposed by the rules, viz., furnishing a fair copy to the defendant or defendants, (.Rule 18.) Held, a reasonable construction of the rule, that the complainant should furnish such copy only to the defendant or person who had taken a copy ; and where an attorney had taken a copy of the bill without stating for whom he appeared, or for whom the copy was taken, that notice to the attorney was sufficient; and that the party amending could not be required to look beyond the rule or order book, or the papers, to see who had taken a copy.</p> <p>Amendments moved for and granted, and properly notified, are, for all practical purposes, to be considered as made, and the court would allow them to be perfected, if necessary, nunc pro tunc. The court will see that any parties who have appeared shall not suffer from want of notice ; and this is the substance of the equity of the matter.</p> <p>Under the act of 1789, it has been decided that the citizenship of all the plaintiffs taken together, and of all the defendants taken together, must be such as to make the case removable; and that all the defendants must unite.</p> <p>It has been also held, under that act, that only those suits can be removed which could originally be brought in the United States Courts. The same language upon which Judge Story based that decision is used in all the subsequent acts. The act of July 27, 1866, provided for this additional case, viz., where one of several defendants was a citizen of the state where the suit is brought. The language as to plaintiffs is the same as in that of 1789.</p> <p>The act of March 2, 1867, so far as the parties are concerned, uses the same language as that of 1789, and the same construction must be applied to it.</p> <p>Under the act of July 27, 1868, it makes no difference where the parties reside. Held, under this act, that comparing the language of it with that of 1866, which provided for cases of several defendants, (and quaere a partial removal,) that the act of 1868 only provides for the case particularly described in it, viz., where the corporation is the sole defendant.</p> <p>And quaere, whether it is sufficient merely to assert that the petitioner has such a defence as the act contemplates, without satisfying'the court of the fact.</p> <p>The bonds which the act of Congress of 1789, providing for the removal of suits from the state to the federal courts, requires should be given to the state court by the defendants at the time of entering their appearance, to ensure their appearing and giving bail in the United States court, must be several, or joint and several, and not joint bonds. The provision as to surety is nearly the same in the other acts.</p>