transacted business, and made returns under its said charter as a corporation. We think that the evidence offered showed at least prima facie the existence of said corporation. It shows that there was such a corporation de facto, and we think this is sufficient, in the absence of any proof to the contrary. People v. Frank, 28 Cal. 507; People v. Caryl, 12 Wend. 547; Smith v. State, 28 Ind. 321; Calkins v. State, 18 Ohio St. 366; Whart. Cr. Ev. (8th Ed.) § 164a; People v. Davis, 21 Wend. 313; People v. Barric, 49 Cal. 342; Johnson v. People, 4 Denio, 364.

The second ground of the petition is that the court erred in admitting the confessions of the defendant. The record shows that in a conversation with the defendant while under arrest, upon being charged by the witness Goodridge with receiving the stolen goods, he at first denied the same, then denied the receiving as many as he was charged with having received by Goodridge, and finally admitted that he had received the goods from O'Brien, the person who stole the same, stating fully how he had carried on the business; that the goods had been shipped to his place in Providence by the express company; and that he desired to settle therefor, first offering to pay $250, and then saying that he had $20,000 in the bank, and would settle for any amount witness would name if he could be let off that day. During the conversation, O'Brien, who was present, said to the defendant: "It's no use trying to get out of it. They have got us dead. We have all been arrested, and you might as well tell the truth." This confession was not obtained by any promise, threat, or improper inducement, unless it can be said that the language of O'Brien constituted an improper inducement. We do not think it did. It practically amounted to a mere suggestion or direction to tell the truth. Moveover, O'Brien was not an officer. The defendant was not in his custody, and, so far as appears, was simply giving expression to his own consciousness of their joint guilt, and of the fact that they had been found out, and therefore they might as well make a clean breast of it. That such a confession is admissible, see Whart. Cr. Ev. (Sth Ed.) § 647, and cases cited.

The third ground of the petition is that the state failed to prove that the defendant received the stolen goods in the county of Newport, where the indictment was found.' The record shows that O'Brien was a shipping clerk in the employ of said corporation in the city of Newport, and that the defendant had a place of business at No. 77 Acorn street, in the city of Providence; that O'Brien stole the goods in question, and,

1 Pub. St. R. I. c. 248, § 7, is as follows: "Sec. 7. Every person who shall be accused of any offence shall be proceeded against in the county in which the offence shall have been committed and not elsewhere, except in cases in which special provision shall be made to the contrary."

under a previous arrangement between him and the defendant, sent the goods by express to the latter, at his place of business in Providence. In short, then, the case is this: O'Brien stole the goods in question in the county of Newport, and at the request of, and under an arrangement with, the defendant, delivered them to a common carrier in Newport, directed to the defendant, in the city and county of Providence. In this state of the proof, the question is, did the defendant receive said stolen goods in the county of Newport? We think it is clear that he did; for, in the circumstances stated, a delivery to the common carrier (his agent) was, in the eye of the law, a delivery to him; and the defendant having subsequently obtained actual possession of the goods from the common carrier, as the proof shows, the transaction as between him and O'Brien was precisely the same as if O'Brien had delivered the goods to him in person at Newport. See Mack v. Lee, 13 R. I. 293; Benj. Sales, § 409, and cases cited in note 2; Reg. v. Miller, 6 Cox, Cr. Cas. 353; Reg. v. Smith, Id. 554; State v. Stroud, 95 N. C. 626. Had the defendant been in another state even at the time of the receiving of the goods in question, he would, nevertheless, have been indictable in the county of Newport; for, as said in Wharton's Criminal Pleading and Practice (9th Ed. § 140): "Where an offence is committed within a state by means of an agent, the employer is guilty as a principal, though he did not personally act in that state, and at the time the offense was committed was in another state. In such case, the forum delicti commissi has jurisdiction of the offense; and, if the offender comes within the limits of the state, has also jurisdiction of his person, and he may be arrested and brought to trial; and the better opinion is that the place of the commission of the offense, as distinguished from the place where the offender at the time stood, is, in cases of conflict, the proper venue." See, also, Com. v. White, 123 Mass. 430.

The fourth ground of the petition is that, for the purpose of showing guilty knowledge on the part of the defendant, the court wrongfully admitted evidence of shipments of goods through the Adams Express Company to the defendant on days when the sale-book of the Goodridge Company did not show sales to the defendant; the claim on the part of the state being that these were all criminal transactions like the principal one alleged, fixing guilty knowledge as to that upon the defendant. These shipments, which were under dates of November 12, November 21, December 12, and December 22, all in 1891, were shown by the books of the express company's Newport office, and were all cred. ited as being shipped by the Goodridge Company. There was no evidence that the goods were ever under the control or in the possession of the defendant in Newport, except that they were delivered to the express com

pany in the manner aforesaid, and there was no direct evidence that these particular ship. ments had been received by the defendant. In this state of the proof, the defendant requested the court to charge the jury that, in the absence of evidence of the receipt by the defendant of the goods shipped under the above-mentioned dates, all the testimony upon this branch of the case should be excluded from their consideration, which request was refused. He also requested the court to charge that there was no presumption in a criminal case that goods shipped to the defendant in the manner aforesaid were received by him, which request was also refused. We fail to find any error in the rulings complained of. It is hardly to be expected that the books of the Goodridge Company would show sales of the goods which were being systematically stolen by O'Brien, their shipping clerk, and forwarded to the defendant by the express company. A man who is regularly stealing from his employer is not apt to charge himself with his stealings on the books of the concern. The particular transaction charged in the indictment and relied on by the attorney general was laid on the 6th day of January, 1892; but, for the purpose of showing guilty knowledge on the part of the defendant, we think it was competent for the attorney general to offer proof of similar transactions shortly prior thereto; and, in view of the previous fraudulent arrangement which was shown to have existed between O'Brien and the defendant, we think the jury might properly have inferred, in the absence of any proof to the contrary, that said shipments of goods were duly received by the defendant. Ordinary care and diligence on the part of the express company in duly delivering the goods in question was fairly to be presumed, in the absence of any evidence whatever to the contrary.

We have considered the numerous other points made by defendant's counsel in connection with this petition, but do not find that any of them are tenable or entitled to special mention. Taking the case as a whole, we are not convinced that the defendant did not have a full and fair trial, or that there is not sufficient evidence to sustain the verdict, and hence this petition must be denied and dismissed.

WHIPPLE v. BABCOCK et al. (Supreme Court of Rhode Island. June 5, 1894.) RECEIVERS-POSSESSION OF ASSETS-DISMISSAL OF PROCEEDINGS.

1. Under Pub. St. c. 237, § 13, the filing, and not the service, of process of the petition for a receiver fixes in the receiver the right to take possession of insolvent debtor's property attached or levied on within 60 days therefrom.

2. The court, if the service of process on petition for receiver is unnecessarily delayed, will, upon proper procedure, order the petition dismissed in default of service within a specified time.

Bill in equity by Henry Whipple, as receiver, against Horace H. Babcock et al., for an injunction to restrain defendants from levying on and selling the insolvent debtor's property. Injunction granted.

James M. Ripley and John D. Thurston, for complainant. James Tillinghast, for respondents.

PER CURIAM. The court is of the opinion that the injunction should be granted. Pub. St. R. I. c. 237, § 13, authorizes the receiver appointed under its provisions to take "possession of all property, etc., of the debtor, including estate and property attached or levied on, within sixty days prior to the filing of said petition," etc. It is the date of the filing of the petition, not the service of process on it, which determines the right of the receiver. The proceeding is under the control of the court. If a petitioner unnecessarily delays to make service of process, the court, on due notice to parties interested, and on motion by any person injured by the delay, may require that service should be made within a specified time, and in default of compliance with such requirement may order the petition to be dismissed.

WILEY et al. v. BROWN. (Supreme Court of Rhode Island. June 13, 1894.)

LIMITATIONS-NEW PROMISE.

A promise to pay in installments a debt barred by the statute of limitations does not remove the bar, so as to enable the creditor to immediately sue thereon.

Appeal from court of common pleas.

Assumpsit by S. W. Wiley & Co. against James A. Brown. There was a verdict for plaintiffs, and defendant moved for a new trial. Granted.

Patrick J. Galvin and Charles Acton Ives, for plaintiffs. William P. Sheffield, for defendant.

MATTESON, C. J. This is an action of assumpsit on book account. After the account had been barred by the statute of limitations, the plaintiff called on the defendant, and requested payment. The defendant, in reply, promised the plaintiff that, when the season ended at Jamestown, he would give him $500 on account, and probably $500 on the 1st of January, and the balance later on. The plaintiff, without waiting for the defendant to perform his promise, shortly afterwards began this suit. The question presented by the exception is wheth

er the defendant's promise was sufficient to remove the bar of the statute, so as enable the plaintiff to sue immediately, or whether the plaintiff was obliged to wait for a breach of the promise before suing. The plaintiff contends that the promise was a clear and distinct acknowledgment of indebtedness, and hence that it was sufficient to remove the bar of the statute, and to entitle him to sue as soon as it was made. He concedes that when a debt is barred by the statute, and the new promise is conditional, suit cannot be maintained without showing a performance or fulfillment of the condition; but he insists that the rule is not applicable to a qualified promise, like the present. The plaintiff has a mistaken notion of the effect of a qualified promise. In Shaw v. Newell, 1 R. I. 488, the defendant, in a conversation with the plaintiff's wife, on being requested to renew his note, replied; "You need not be concerned. I calculate to pay you all I owe you within a year." This was in May, 1850. The writ was served the following month. The court held that, when a debtor makes a qualified acknowledgment of a debt barred by the statute, the plaintiff must take the acknowledgment with its qualification, and therefore cannot sustain an action on the debt unless it is brought in accordance with the qualification. A promise to pay in installments is a qualified promise, and hence a creditor whose debt is barred cannot avail himself of such a promise to sue on the debt until a breach of the promise has occurred. In Philips v. Philips, 3 Hare, 281, 300, Vice Chancellor Wigram remarks: "The new promise, and not the old debt, is the measure of the creditor's right. If the debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. But if the debtor promise to pay the old debt when he is able, or by installments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him." And see, also, Buckmaster v. Russell, 10 C. B. (N. S.) 745, 750; Shepherd v. Thompson, 122 U. S. 231, 239, 7 Sup. Ct. 1229. And there are numerous cases of promise to pay a part of a debt barred by the statute, or to pay in specific articles or property, in which, the promise not having been accepted according to its terms, it has been held that it did not operate to remove the bar of the statute. Mumford v. Freeman, 8 Metc. (Mass.) 432; Smith v. Eastmen, 3 Cush. 355; Slack v. Norwich, 32 Vt. 818; Batchelder v. Batchelder, 48 N. H. 23; Currier v. Lockwood, 40 Conn. 349; Bush v. Barnard, 8 Johns. 318; Huff v. Richardson, 19 Pa. St. 388; Taylor v. Steadman, 11 Ired. 447; Simonton v. Clark, 65 N. C. 525; Bates v. Bates, 33 Ala. 102; Mitchell v. Clay, 8 Tex. 443; Chambers v. Rubey, 47 Mo. 99. Defendant's petition for a new trial granted, and case remitted to the common pleas division.

V.30A.no.9-30

LANGLEY v. LANGLEY. (Supreme Court of Rhode Island. June 22, 1894.) WILLS-EXECUTION.

The validity of the execution of a will is determined by the law in force at testator's death.

Action by Maria B. Langley against John B. Langley. There was a verdict for plaintiff, and defendant moved for a new trial. Denied.

William P. Sheffield, for plaintiff. Charles Acton Ives, for defendant.

STINESS, J. This petition for a new trial is based upon exceptions to a ruling in the common pleas division, upon the following facts: The plaintiff sued in trespass and ejectment to recover one undivided fifth part of a lot of land in Newport, which formerly belonged to her husband, George Wey Langley. Mr. Langley was a resident of New Zealand, where he made his will October 17, 1872, in which he gave all his property to the plaintiff. At that time the law of this state provided that a will should be attested and subscribed by three or more witnesses, "or else shall be utterly void and of no effect." The will in question was attested by two witnesses, but at time of the death of the testator, August 21, 1873, the law of this state requiring three witnesses had been changed so that two witnesses only were required. The will was admitted to probate in New Zealand, September 5, 1873, and a dulyauthenticated copy of the probate was filed, and directed to be recorded in the registry of the court of probate of the city of Newport, February 20, 1893. At the trial of this case the record of the will and probate was admitted in evidence, to which ruling the defendant excepted. His claim is that as the will was not attested by three witnesses, as required by the law of this state at the time of its execution, it is, in the words of the statute, "utterly void and of no effect."

Pub. St. c. 183, §§ 6-10, inclusive, provide for the record of foreign wills, with the same effect as in. cases of original probate in this state, but section 10 says: "Nothing in the preceding four sections shall be so construed as to make valid any will that is not executed, subscribed and attested according to the law of this state." In Lapham v. Olney, 5 R. I. 413, it was held that these provisions left the question of the validity of a foreign will, arising out of its mode of execution, unaffected by the provision for filing and recording it. The will in that case was held to be valid as to personalty and invalid as to realty in this state. The question then comes whether our law in regard to attestation is to be construed to relate to the time of the execution of the will, or to the time of the death of the testator, from which time a will ordinarily speaks. Upon this question

The question is evidently open for a decision on principle. Several cases are cited in support of the rule relied on by the defendant, and as stated by Mr. Schouler. We may remark, in passing, that English cases throw very little light on this question, because prior to St. 1 Vict. c. 26, no witnesses were necessary to a will of personal estate, while the statute of frauds (29 Car. II. c. 3, § 5) required three witnesses to a devise of land; and the former statute, repealing so much of the statute of frauds as related to wills, expressly excepted from its operation all wills previously made. In this country two classes of cases have arisen under changes in the law,-one class involving the question of the disposition of the property, and the other class involving only the validity of the will, by reason of its manner of execution. Thus, in Mulloch v. Souder, 5 Watts & S. 198, the question was whether real estate acquired after the execution of a will, which would not pass under it by the law as it then stood, should be held to pass by reason of a change in the law before the death of the testator. It was decided that a retroactive construction should not be given to the statute, so as to affect a disposition of property, and to make a will pass more than it purported to pass when made. In Mullen v. McKelvy, 5 Watts, 399, it was admitted that the execution of the will must be judged by the law as it stood at the time of the execution, and not at the time of the death of the testator, and so the rule was not considered. In Gable v. Daub, 40 Pa. St. 217, the subject was considered at great length, and numerous authorities were examined with reference to the question of after-acquired property, with the same result as in Mulloch v. Souder. See, also, Battle v. Speight, 9 Ired. 288. Taylor v. Mitchell, 57 Pa. St. 209, turned upon the provision of an act of 1855 that no estate, real or personal, "shall hereafter be bequeathed, devised," etc., and it was held that the statute did not include a will previously made.

We do not question the soundness of the principle followed in these cases,-that, as the intention of the testator is the control ling element in a 'will, the disposition of his property should not be affected by the retroactive construction of a law which does not expressly require it. But the disposition of

within the scope of legislative action. notable instance of this is to be found in the numerous statutes providing that after-acquired property may pass by a will, if such an intention appears, and in such cases the law applies to wills previously made. Cushing v. Aylwin, 12 Metc. (Mass.) 169; Pray v. Waterston, Id. 262; Church v. Manufacturing Co., 14 R. I. 539. This has also been held with reference with reference to lapsed devises and to trusts. Bishop v. Rishop, 4 Hill, 138; De Peyster v. Clendining, 8 Paige, 295. Hence, it appears that a rule making a will depend in all respects upon the law in force at the date of its execution is neither necessary nor universal. A definite line is evident between cases which touch the act of the testator, and those which touch only the policy or demands of the law. In the former cases the law is not construed to retroact, so as to make a man do what he did not mean to do; and, without noting this plain line of distinction, the rule of retroaction has been taken over, and applied to cases of the latter kind. Many times, perhaps, this has effectuated the testator's intention; but, as to the: point before us, such a consideration is wholly out of place. The two strong cases in favor of the defendant's claim are Giddings V. Turgeon, 58 Vt. 106, 4 Atl. 711, and Lane's Appeal, 57 Conn. 182, 17 Atl. 926; and the opinion in the latter case is a very full and able review of the subject. Both these cases involve the attestation of a will under a change in the law. We have very high respect for both these learned courts, but we think they have evidently misapplied the principle which has very properly been recognized in the cases cited above. The statute relating to witnesses is purely probatory. Its purpose is to insure the identity of the writing produced as the will of the testator, and so to prevent fraud. Whether there be three or two witnesses, or even none at all, neither alters the disposition of the property, nor changes the act or intention of the testator. It is simply a question of policy in regard to the amount of proof which should be required, and affects no vested rights. A statute which makes a new rule of proof acts prospectively, and with reference to the time when proof is to be made. But both these cases were based upon the opinion that the recognition of the wills would make the statute retrospective in its operation, for the reason that a will operates as a conveyance, and hence must be valid at its date. To some extent this is doubtless true, and the time of execution may become an important fact; but it is so only in cases which bear directly upon the nature or extent of the devise, and even in these cases the right of the legislature to extend its effect to afteracquired property is now beyond question. A statute relating to witnesses for the purposes of probate does not affect the quality of a devise, nor relate back to the execution of a

will, but operates under the familiar principle that rules of evidence are at all times subject to modification and control by the legislature, and that changes thus made may be applicable to existing causes of action. Howard v. Moot, 64 N. Y. 262. And thus it has been held in Estate of Learned, 70 Cal. 140, 11 Pac. 587; Hargroves v. Redd, 43 Ga. 142; and Wakefield v. Phelps, 37 N. H. 295,that a will takes effect at the death of the testator, and its validity depends upon the law as it then stands.

Notwithstanding the fact that the provision relating to witnesses stands in our law in the section relating to the execution of the will, we think that the implication of the whole statute is that the provisions relating simply to the execution are intended to operate at the time of the death of the testator, and not at the time of the execution of the will. Wills of personal estate are, by our law (Pub. St. R. I. c. 182, § 8), required to be executed in the same manner as wills of real estate, and yet wills of personalty are universally governed by the law at the death of the testator. Lapham v. Olney, 5 R. I. 413. Section 9 of the same chapter provides that "a will of real or personal estate, made and executed in conformity with the law existing at the time of the execution thereof, shall be effectual to pass such estate." No force can be given to this provision, except as a saving clause to preserve wills when there has been a change in the law; and such a saving clause clearly implies that without it the new law would control, and not the law at the time of execution. Chapter 183, § 11, is also confirmatory. When no subscribing witness is a resident of the state, and no one opposes, and a will appears to be executed as required by law, the court of probate may admit the same to probate upon the evidence of the executor, if it is satisfied that it is the will of the deceased. This shows that the vital question is the identity of the will, and not the fact of the manner of its execution.

Our conclusion is that the statute relating to witnesses is to be construed as a prospective statute relating to proof; that, as the will in question was proved according to the law as it stood at the death of the testator, it was properly admitted to probate, and is effectual as a will in this state. The defendant's exceptions must therefore be overruled.

MELVIN v. MARTIN et al. (Supreme Court of Rhode Island. July 9, 1894.)

ADOPTION OF CHILD - EXTRATERRITORIAL EFFECT -RIGHTS OF SUCCESSION.

A child adopted in the state of his domicile, the laws of which, as to an adopted child's right of succession, are the same as the laws of Rhode Island, inherits property in the latter state as if his adoption had taken place there.

Bill in equity by Nancy Melvin against Augustus Martin and wife and others for the reconveyance of certain land. The land in dispute was situate in Rhode Island, and its owner died intestate, leaving a child who had been adopted by her and her husband in Massachusetts, their domicile. Complainant was a sister of the deceased, and claimed an interest in the property as one of deceased's heirs at law.

William P. Sheffield and William P. Sheffield, Jr., for complainant.

PER CURIAM. The court is of the opinion that the defendant described as Patrick Meany, alias Patrick Judge, Jr., holds the legal title to the property in dispute, as the the adopted child of Mary Judge, deceased, and Patrick Judge, her husband. The objections to this view are that the decree of adoption in Massachusetts was territorial, and so not binding in this state, and that real estate here must follow our statute of descent, which mentions children only, and not children by adoption. Similar objections were so fully and conclusively discussed in Ross v. Ross, 129 Mass. 243, that a further examination of the subject seems to be needless.

It was there decided that the status of a person which may exist in another state, with the incidental right of succession and inheritance, is to be determined by the law of his domicile; and that this status, with its incidental right, should be recognized in another state when there is nothing in its laws to prevent it. See, also, Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628. The law of this state as to the right of succession in an adopted child is like that of Massachusetts, and hence, the status being recognized, it should be applied in the same way as it would be in the case of a child adopted here.

STATE v. RIFE.

SAME v. AVANT.

(Supreme Court of Rhode Island. May 25, 1894.)

CRIMINAL LAW-PLEA IN ABATEMENT-QUALIFICATION OF GRAND JURORS.

Const. art. 2, § 1, provides that every male citizen of a town or city, possessed of real estate therein valued at $134, or renting for $7 per annum, etc., and who has resided therein six months, and in the state one year, shall have a right to vote on all questions in all legal town or ward meetings. Const. Amend. art. 7, provides that no person shall vote on any proposition to impose a tax unless he shall within the year next preceding have paid a tax assessed on his property, valued at least at $134. Judiciary Act, c. 7, § 1, provides that all persons over 25 years old, who are qualified to vote on any proposition to impose a tax, shall be liable to serve as jurors. Held, that a plea in abatement which alleged merely that two of the grand jurors who returned the indictment, and who were drawn from a certain city, had not, within a year next preceding their service, paid any tax on their property in such city, was bad, since one need not have paid a tax on one's