same subject contained in section 1 of the new article: "There shall be a session of the General Assembly at Providence, commencing on the first Tuesday of January in each year.'
As we have seen in[discussing the first question, section 5 of article X of the constitution recognized the fact that there were then established two annual sessions of the General Assembly, one for the purposes, primarily, of election, the other for general business. At the first, a judge of the Supreme Court might be elected for the normal term; and at that session any judge might be removed; at the other session, if a vacancy occurred it could only be filled until the next election session. The new article abolishes the second session absolutely and leaves the single session, at which any regular election of general officers must take place. The single session, at Providence, commencing on the first Tuesday of January, takes the place of the May session at Newport formerly provided for, and an election of a judge at that session whether to fill a vacancy or to make an addition to the number of judges in the court, is necessarily for the normal term.
The only possible application of the old provision, in the new condition of things, is to permit the choice of a judge to fill a vacancy at a session of the General Assembly specially called by the governor, under article VII, section 7, of the constitution, after the final adjournment of the annual session, or by the acting governor under section 4 of the new article, until the next annual election; that is to say-until the General Assembly meets at its regular annual session and proceeds to elect an incumbent for the normal term. As section 5 of article X has not been specifically repealed or annulled, we are of opinion that it still applies in such a case.
Mr. Chief Justice Stiness and Mr. Justice Blodgett being interested in the questions proposed, express no opinion thereon.
PARDON E. TILLINGHAST,
GEORGE A. WILBUR,
HORATIO ROGERS,
WILLIAM W. DOUGLAS,
EDWARD CHURCH DUBOIS.
1. As no action can be maintained by a person for injuries received by
him while en ventre sa mere, his next of kin cannot, under Gen. Laws
cap. 233, § 14, maintain an action therefor after his death. Gorman v.
Budlong, 169.
See PROCEDURE, 1; RAILROADS, 1–2.
See ABATEMENT AND REVIVAL, 1 ; PLEADING AND PRACTICE AT LAW, 10-11.
OF TROVER.
1. A mortgagee is not disseized by an adverse possession begun after his
mortgage, and can convey his estate, as mortgagee, to a purchaser.
2. In an action of ejectment, where defendant claims by adverse posses-
sion, a verdict for the plaintiff is not against the evidence where it appears
that defendant entered upon the land as a tenant and it does not appear
that the owner was ever notified that defendant's holding had become
adverse and it is uncertain when the adverse possession began.
v. Haskins, 601.
See PROBATE LAW AND PRACTICE, 4.
1. The judgment of the Appellate Division held by a single justice in a
matter in which one justice is a quorum is not subject to review by the
Appellate Division held by three justices upon a petition for a new trial.
Affirming Bank v. Greene, 23 R. I. 238. McAleer v. Cavanagh, 317.
2. No appeal lies from the order of a town council directing the opening of
a highway and the removal of obstructions existing therein.
3. While the statutes give an appeal from the layout of a highway to any
person aggrieved thereby through whose land it is laid, as well as to any
person aggrieved by the relaying, widening, straightening, changing the
location of, or abandoning the whole or any part of a highway, no appeal
lies for anything ordered to be done by town councils within the limits
of an existing highway by way of opening or repairing the same unless
the grade is changed.
4. No appeal lies from the order of a town council which it had no author-
ity to make.
In cases of special statutory jurisdiction, appeals must follow the express
provisions of the statute.
The court will not settle the title to real estate in a moot case. Knowles
v. District of Narragansett, 339.
See PROBATE LAW AND PRACTICE, 6.
See PLEADING AND PRACTICE AT LAW, 16-18.
1. The authority of an auctioneer ceases as soon as the sale has taken place.
After the sale, unless specially authorized, he cannot rescind or vary the
contract or deal with the purchaser as to the terms upon which the title
is to be made. McKiernan v. Valleau, 501.
See VENDOR AND VENDEE, 1.
See FALSE IMPRISONMENT, 2.
1. The proceeding in the State court under Gen. Laws cap. 177, § 27, as
amended by Pub. Laws cap. 655, passed at the January session, 1899,
seeking the dissolution of a corporation and the appointment of a re-
ceiver, is practically a proceeding in insolvency. As such it must yield
to the paramount authority of the national bankrupt act. Hence the
trustee appointed in bankruptcy proceedings is entitled to the funds of
the bankrupt in the hands of a receiver appointed by the State court.
The word judgment in the United States bankruptcy act, section 67, clause
(f), providing that "all levies, judgments, attachments or other liens
obtained through legal proceedings against a person who is insolvent at
any time within four months prior to the filing of a petition in bank-
ruptcy against him, shall be deemed null and void in case he is adjudged
a bankrupt, and the property affected by the levy, judgment, attach-
ment or other lien, shall be deemed wholly discharged and released from
the same and shall pass to the trustee . .," is sufficiently broad to
apply to the judgment of this court in appointing a receiver of a corpo-
ration under Gen. Laws cap. 177, § 27, and the judgment is nullified
and avoided by the adjudication of bankruptcy against the corporation.
Mauran v. Carpet Co., 324.
2. The purpose and spirit of the bankruptcy act is to relieve honest debtors,
when insolvent, from their money obligations, and not to free tortious
debtors from liability for their wrongs.
A judgment obtained in an action of trespass on the case for libel is not
dischargeable in bankruptcy under chapter 3, section 17, of the United
States bankruptcy act.
3. A cause of action is not so far merged in the judgment as to prevent its
being shown, where the defendant claims to be discharged therefrom, in
bankruptcy. McDonald v. Brown, 546.
See CONTRACTS, 1; RECEIVERS, 1-2.
1. A by-law of a beneficial association which requires every contestation
between the society and a member to be referred to and be decided by
a committee of five persons, whose decision shall be final, is invalid and
no defence to an action brought by a member against the society.
2. Courts will not interfere with the by-laws of a society which relate
simply to matters of internal administration or of discipline. Also,
by-laws which amount to a condition precedent to a right of action must
be first conformed to; but by-laws which deprive a person of his remedy
at law, or impose conditions repugnant to the recognized rules of law in
other cases of contracts, are invalid. Pepin v. Society, 81.
3. A by-law of a beneficial association forbidding a sick member to go out
of the house after certain hours, the intent of the by-law being to guard
against fraud in feigning sickness, has no application where, on the occa-
sions of the alleged violation, the member attended meetings of the de-
fendant lodge.
4. Where a by-law of a beneficial association provides that sick-pay shall
not commence until the secretary has received a certificate signed by the
physician of the association stating the member's illness, after the phy-
sician is notified of the member's illness, the matter of putting him on
the sick-list is the act of the society and not of the member. Gleavy v.
Court Love and Truth, 85.
1. In an action upon a promissory note, payable to the plaintiff or endorsed
to him specially or endorsed in blank, where the defendant has pleaded
the general issue and has not notified the plaintiff to prove the signature
of the parties to the paper, a prima facie case is made out by the produc-
tion of the note in court; and the defendant cannot contest the case on
the ground that the plaintiff has no beneficial interest unless he can
show that plaintiff's possession has been obtained by fraud upon the
lawful owner.
2. Defendant gave plaintiff six promissory notes for various sums, payable
at stated times, all with interest at six per cent., secured by mortgage
deed constituting plaintiff his attorney to sell the mortgaged premises in
case of default in payment "of said notes or either of them," and in
case of sale authorized said attorney "to receive the amount the same
may be sold for and, after payment of expenses, to appropriate the resi-
due to the payment of the amount of the principal and interest of said
notes." The next clause in the printed blank (hereby agreeing that in
case of a sale for default in payment of said interest the principal
of said note shall be deemed due and payable on the day of such sale)
was stricken out.
No payment was made on the notes. When the first three notes were due
by their terms plaintiff commenced action thereon by attachment of
other property of defendant not included in the mortgage. After com-
mencement of suit, plaintiff advertised the mortgaged premises and sold
same for less than face of mortgage. Plaintiff credited this amount on
the three notes not due when suit was brought. Defendant claimed that
the proceeds should be applied upon the notes then due :-
Held, that by the terms of the mortgage the plaintiff was authorized to
appropriate the proceeds of sale to the payment of a note not due by its
terms, so that, for the purposes of the mortgage, after default upon one
note the others were to be treated as presently payable.
Held, further, that the mortgage gave the mortgagee the right of appor-
tionment, and as there was no stipulation therein as to how the appor-
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