Laws R. I. c. 271, passed January 22, 1873. The writ in question is dated April 16, 1872, during the period that Pub. Laws R. I. c. 403, passed February 27, 1862, was in force, and, consequently, though issued by the clerk of the court in Providence county, was properly made returnable to the court in Bristol county.

The second ground on which the judgment in the ejectment suit of Bradford, trustee, against Reynolds is attacked is that, as the judgment was by default, it is conclusive only as to facts well pleaded, and hence that it was not binding on the defendant, and is not binding on the respondent Burgess, as his heir at law, because the declaration in the suit shows no title in the plaintiff to the mortgaged premises. The averments in the declaration, after setting forth the making of the mortgage by George H. Reynolds to Mary P. Reynolds, and her assignment of it and of the mortgaged premises to Hannah B. Reynolds, continued: "By force whereof, the said Hannah B. Reynolds then and there became seised of said premises in her demesne as of fee and in mortgage as aforesaid, and, being so seised thereof, on the 15th day of April, 1872, by her deed thereof, duly executed and acknowledged, for a valuable consideration, therein expressed, conveyed, assigned, and transferred the said premises to the plaintiff; to hold," etc. Rev. St. R. I. p. 316, §§ 4, 5, in force at the date of the transfer of the mortgage set out in the declaration, taken together, authorized the sale and conveyance of debts, secured by mortgage on property which were the property of any woman before marriage, or might become the property of any woman after marriage, by deed executed by both husband and wife; thus by implication excluding such sale and conveyance in any other manner. In view of this provision it is contended that, as the declaration alleges merely that Hannah B. Reynolds, by her deed duly executed and acknowledged, conveyed, assigned, and transferred the mortgaged premises to the plaintiff, and does not allege that. her husband joined in the execution of the deed, it is insufficient to show that the plaintiff had any title to the mortgaged premises, and, consequently, that the judgment rendered on it by default was void. We think it may well be doubted whether the allegation of the declaration does not sufficiently set forth title to the mortgaged premises in the plaintiff, since it states that the assignment of the mortgaged premises by Hannah B. Reynolds was by her deed duly executed, and there could have been no due execution of the deed by her unless her husband had joined with her in its execution. But, whether this be so or not, the question of the plaintiff's title, and of the sufficiency of the averment of it in the declaration, and of his right to the possession of the mortgaged premises, were within the jurisdiction of the court to determine; and, as there had been valid service of process on the defend38 A.-62

ant, it also had jurisdiction over the parties. Hence its judgment, even if it be assumed that the averment in the declaration was defective in not sufficiently setting forth the title of the plaintiff to the demanded premises, was not void, but voidable merely. may have been liable to be set aside as erroneous in some proceeding operating directly on the record, but, until so set aside, it was conclusive on the defendant, and is conclusive on those in privity of title with him.

The case shows that Bradford, as trustee. was put into possession of the mortgaged premises by the sheriff under the execution issued on the judgment on May 25, 1872. The statutory period of three years within which the mortgagor, his heirs or assigns, were entitled to redeem, began to run from that date. No steps having been taken by him to vacate the judgment, assuming it to have been erroneous, and the three years limited by statute as the period of redemption having expired while the judgment remained in force, and Bradford, trustee, having been in possession of the mortgaged premises for twenty years under that claim of right, we think the mortgage must be regarded as effectually foreclosed, and the mortgagor, and those in privity with him, barred of all right of redemption.

We do not think that the respondent Mrs. Burgess is entitled to enforce the Wilson mortgage on the ground that it was an outstanding incumbrance at the decease of Hannah B. Reynolds, which became a part of the personal estate of her grandfather, George H. Reynolds, as the husband of Hannah. When the owner of an estate pays off an incumbrance, the presumption is that he intends to extinguish it, and relieve the estate. The incumbrance may be kept alive if an intention to do so sufficiently appears. If there is no evidence of intention, and it is for the interest of the owner that the incumbrance should be preserved, equity will so treat it; his intention being presumed to be in accordance with his interest. Dodge v. Hogan, 19 R. I. ——, 31 Atl. 268, 1059. In the present instance, the only circumstance from which an intention to keep the Wilson mortgage alive can be inferred is the fact that Mrs. Reynolds took a transfer of it to herself, instead of having it discharged on the record. By what advice, or from what motive, she did so, does not appear. Nor does it appear that it was for her interest that the mortgage should be kept alive. In Hood v. Phillips, 3 Beav. 513, the owner of an estate purchased an outstanding mortgage upon it, and took a transfer of it, not to herself, but to a trustee, who covenanted with her, her executors, administrators, and assigns, that he would, at her request, convey the estate to her, her heirs and assigns, or to such other person as she, her heirs, executors, administrators, and assigns, should direct. The taking of a transfer to a trustee would certainly afford as strong evidence of an intention to

keep an incumbrance alive as the taking of a transfer of it directly to the owner of the incumbered estate; but it was nevertheless held in Hood v. Phillips that it was not decisive, and was not sufficient of itself to overcome the presumption of an intent by the payment to extinguish the incumbrance, and relieve the estate. But, even if this were not so, Mrs. Burgess would be precluded by the covenant of warranty in her grandfather's mortgage, under which the complainants derive their title, as has been shown, from setting up any claim to the mortgaged estate under the Wilson mortgage. That covenant warranted the mortgaged premises to the mortgagee, her heirs and assigns, against the lawful claims and demands of all persons, making no exception of the prior Wilson mortgage, payment of which by the deed of Samuel J. Reynolds to him had been assumed by George H. Reynolds as a part of the consideration for the purchase of the property. Urquhart v. Brayton, 12 R. I. 169. If George H. Reynolds had attempted to foreclose the Wilson mortgage after the decease of his wife, this covenant of warranty would have been an insurmountable barrier to such attempt, and it would be none the less so to any attempt of Mrs. Burgess, who is a privy in title with him as his heir at law. As the assignment of the mortgage by Mrs. Reynolds to Bradford, as trustee, cannot be produced, it is impossible to determine the extent of the trust created by it. In its absence, and the absence of other evidence concerning the trust, we think it is to be presumed that it was a trust to continue merely during the coverture of Mrs. Reynolds. If so, it terminated on her decease, and the subsequent management of the estate by Bradford is to be deemed to have been as the agent of her heirs, rather than by virtue of the trust. If this be so, the subsequent appointment of the respondent Barney as trustee in place of Bradford, on his decease, was without due consideration. We are of the opinion that the title to the land is in the complainants, and that they are entitled to partition.

STATE v. DROWNE.

(Supreme Court of Rhode Island. Dec. 4, 1897.) COURTS CRIMINAL JURISDICTION-SENTENCE—

STATUTES-CONSTRUCTION.

1. Under its general criminal jurisdiction, the district court has jurisdiction only to fine "or" imprison, and not to combine the two methods of punishment.

2. Gen. Laws, c. 147, § 9, provides that every person who shall be found guilty before "a district court" of violating specified provisions of the statute shall be punished by fine, or by fine and imprisonment. Chapter 223, § 5, provides that the common pleas division of the supreme court shall have jurisdiction of all offenses whatsoever brought before it on appeal, "and shall sentence all persons convicted before it to such punishment as is or shall be by law prescribed." Held, that the former provision does not deprive the common pleas division of its power under the

latter to impose the penalty prescribed therein, in a case appealed to it from the district court, because-First, the jurisdiction of a superior court cannot be taken away except by express words or by necessary implication; and, second, the court is bound to construe a statute so as to prevent inconsistency, injustice, or absurdity; and to hold otherwise than as stated above would, in case of appeal, have the effect of depriving both of said courts of jurisdiction to render a judgment.

Case certified from court of common pleas, Providence county.

Charles A. Drowne was convicted in the district court of violating a statute, and he appealed to the common pleas division. On trial he was found guilty, and on being called for sentence he moved for a discharge, whereupon the common pleas division certified the case. Motion denied.

William B. Greenough, for the State. John W. Hogan and Edward DeV. O'Connor, for defendant.

TILLINGHAST, J. The defendant was found guilty, in the district court of the Sixth judicial district, of violating section 6, c. 147, Gen. Laws R. I., and was sentenced to pay a fine of $20 and costs. He thereupon appealed to the common pleas division, where he was tried by a jury and found guilty. Upon being called for sentence the defendant filed a motion that he be discharged, on the ground that no penalty is prescribed by statute, upon conviction of the offense alleged in the complaint, except such conviction be had before a district court; that is to say, that there is no punishment provided by law which the common pleas division can impose on a person convicted before it, on appeal, of the offense alleged in the complaint. The case was thereupon certified to this division, under Gen. Laws R. I. c. 250, § 9.

The section of the statute under which the defendant was sentenced in the district court is as follows: "Sec. 9. Every person who shall be found guilty before a district court of violating any of the provisions of the three sections next preceding, upon the first conviction shall be fined twenty dollars; and upon the second, and every subsequent conviction, shall be fined twenty dollars and be imprisoned in the county jail for ten days." The contention of defendant's counsel is that, as the district court, by virtue of its general jurisdiction in criminal proceedings, had power to sentence under this statute without being specially authorized so to do, it must be held that the language, "who shall be found guilty before a district court," has the effect of limiting the imposition of the penalty prescribed in that court. The position thus taken is tenable only in part. Under Gen. Laws R. I. c. 229, § 2, the district court had authority to sentence the defendant to pay a fine of $20 and costs in this case, independently of the special authority conferred by said section 9. But the authority to sentence upon a second or any subsequent conviction,

by fine and imprisonment, is not given by said section 2 of chapter 229, and hence it was necessary for the general assembly to confer special jurisdiction upon district courts in order to enable them to impose such sentence.

In support of the defendant's contention that the district court, under its general jurisdiction in criminal proceedings, had power to sentence under said section 9 of chapter 147, he cites the cases of State v. Crogan, 6 R. I. 40; State v. Fletcher, 13 R. I. 522; and State v. Nolan, 15 R. I. 529, 10 Atl. 481. These cases are clearly distinguishable from the one before us. In State v. Crogan, it is true, there is a dictum to the effect that, under the general jurisdiction of justices of the peace (which, in so far as the point before us is concerned, was the same then as that now conferred upon district courts), the court of magistrates of Providence, exercising the same jurisdiction as a justice of the peace, had power to punish both by fine and imprisonment. But as it clearly appears in that case that the court had jurisdiction under another provision of the statute, viz. under Rev. St. R. I. c. 78, § 2, as held in the opinion, it was not necessary for the court to rely on the general jurisdiction aforesaid. In State v. Fletcher it was expressly held that a similar provision to that under which defendant now claims the district court had jurisdiction in this case did not authorize a justice court to punish by fine and imprisonment, but only by fine or imprisonment. And the court in that case based its jurisdiction upon another statute, viz. Pub. Laws R. I. 1886-87, c. 598, which, while not expressly conferring the jurisdiction to punish by fine and imprisonment, yet the court held that it did so by implication. State v. Nolan follows the last-named case upon the question of jurisdiction.

The dictum of Brayton, J., in State v. Crogan, must, therefore, be treated as having been overruled by the subsequent cases. As it appears, then, that district courts have authority, under their general jurisdiction, only to fine or imprison, but not to combine the two methods of punishment, the insertion of the clause, "who shall be found guilty before a district court," in the act before us, or of some similar provision, was rendered necessary in order to extend the jurisdiction of such courts, so as to enable them in a proper case both to fine and imprison. This was evidently the view which the general assembly took in the passage of the act, and hence they employed the language aforesaid for the purpose of giving jurisdiction, not over the first offense, for the court already had jurisdiction over that, but over the second and all subsequent offenses.

As to the defendant's contention that the language, "who shall be found guilty before a district court," limits and restricts the punishment to be inflicted to that court, we are clearly of the opinion that such is not the

effect thereof. The mere fact that the statute expressly authorizes the district court to punish a person found guilty before it in no way affects the jurisdiction of the common pleas division over the same case on appeal. Gen. Laws R. I. c. 249, § 7, provides that "all criminal appeals shall be heard and tried in the common pleas division of the supreme court with a jury; and the verdict or decision in said division in said case shall be final, except in matters of law." And section 5 of chapter 223 provides that "said common pleas division shall have original jurisdiction of all crimes, offenses and misdemeanors whatsoever, except as otherwise provided; and also shall have cognizance and jurisdiction of all crimes, offenses and misdemeanors which shall be brought before it by appeal, commitment, recognizance, indictment or otherwise; and shall sentence all persons convicted before it to such punishment as is or shall be by law prescribed." In order to take away from the common pleas division any part of the jurisdiction thus clearly conferred, the language used for this purpose ought to show expressly, or by necessary implication, that the general assembly so intended; it being a well-settled rule of construction that the jurisdiction of superior courts cannot be taken away except by express words or necessary implication. End. Interp. St. §§ 152, 153; Am. & Eng. Enc. Law, 353, and cases cited; Com. v. Hudson, 11 Gray, 64; People v. Insurance Co., 15 Johns. 358. Moreover, we are bound to construe a statute in the most beneficial way which its language will permit, in order to prevent inconsistency or injustice. Suth. St. Const. §§ 323, 324, and cases cited. Another and equally well settled rule in the construction of statutes is that, when the language is not precise and clear, such construction will be adopted as shall appear most reasonable and best suited to accomplish the objects of the statute, and that a construction which leads to an absurdity will be avoided if possible. Dawley v. Probate Court, 16 R. I. 696, 19 Atl. 248; In re State House Com'rs, Index RR, 204, 33 Atl. 448; Com. v. Kimball, 24 Pick. 370. For us to hold that the particular language in question limits the power to sentence, under the statute in question, to district courts, would be to practically render said statute null and void, as, the moment an appeal should be taken from the district court, neither that court nor any other would have jurisdiction of the case for the purpose of rendering judgment thereon. A construction which would lead to such an absurd consequence will never be adopted, unless it is clear that the appellate court is without jurisdiction. See 23 Am. & Eng. Enc. Law, p. 353, and cases cited in note 3; also, Id. pp. 354, 355. We therefore decide that the common pleas division has jurisdiction of the case before us, and the motion to discharge is therefore denied, and the case remitted for sentence.

LODGE v. O'TOOLE. (Supreme Court of Rhode Island. Dec. 2, 1897.) JUDGMENT-MOTION IN ARREST-PRACTICE.

All that is meant by Gen. Laws, c. 251, § 9, providing that after verdict all motions in arrest of judgment, arising on the face of the record only, shall be filed within five days after verdict, "and in other respects shall follow the same course as claims for new trial on questions arising on the record, and shall be heard by the appellate division of the supreme court," is that, on the filing of the motion within the time limited, the clerk of the court of common pleas shall certify the papers in the case to the appellate division, as provided in section 6, cl. 4, in case of petition for new trial.

Action by Joanna Lodge against Alexander J. O'Toole. Plaintiff had verdict, and defendant moves for new trial. Granted.

C. Frank Parkhurst, for plaintiff. James H. Williams, for defendant.

MATTESON, C. J. This is an action of trespass on the case, for slander. The defendant on May 12, 1897, within five days after the verdict of a jury against him, filed his motion in arrest of judgment, on the ground that the declaration did not set forth a cause of action. On June 7, 1897, the plaintiff filed a motion for judgment and execution. These motions were heard by the common pleas division June 12, 1897. For the plaintiff, it was contended that the defendant had lost his right to have his motion certified to this division, because he had not complied with the statutory requirements relating to the certifying of such motions to this division. For the defendant, it was insisted that all the statutory requirements had been fulfilled. The common pleas division ruled that the plaintiff was entitled to judgment on the verdict, and to execution, on the ground that the defendant's motion was of no effect, because he had failed to comply with the statutory requirements necessary to entitle him to have his motion certified to this division, and accordingly granted the plaintiff's motion for judgment and execution. The defendant excepted to the rulings of the common pleas division, and filed his petition for a new trial, alleging that the rulings were erroneous. The case is before us on this petition.

Gen. Laws R. I. c. 251, § 9, provides that "after conviction, in criminal cases, and after verdict by the jury, or decision by the court, in civil cases, all motions in arrest of judgment, and all motions of a similar nature or purpose, arising on the face of the record only, shall be filed within five days after conviction, verdict, or decision, respectively; and in other respects shall follow the same course as claims for new trials on questions arising on the record, and shall be heard by the appellate division of the supreme court." We think that the requirement that such motions, when filed within the time limited, shall follow in other respects the same course as claims for new trial on questions arising on

the record, is to be construed as requiring the following of the same course so far as applicable. Neither the rulings of the common pleas division, nor the brief of the plaintiff, specifies wherein the defendant failed to comply with the requirement of section 6 of the chapter referred to, regulating the procedure in case of petitions for new trial. The firstsection of the clause relating to notice of intention to prefer a petition for a new trial is dispensed with by the filing of the motion itself within the five days limited for so doing. The second clause relates to petitions for new trials, founded on rulings, or on evidence and rulings thereon to be brought on the record, and provides for the filing of a statement of the rulings, or of such evidence and rulings, for allowance. This clause clearly has no application to a motion for arrest of judgment, which arises, not upon rulings, or evidence and rulings thereon, but on the record itself. The third clause requires that within 15 days after said 5 days, or within 15 days after the filing of the statement or statements referred to in the second clause, a petition for new trial shall be filed, stating specifically the grounds for such new trial, and provides that, in case all the steps specified in the clause have been taken, judgment shall be stayed, but that, in case of default in any step, judgment shall be entered as if such claim had not been made, etc. We do not see that this clause is applicable to a motion in arrest of judgment. Such a motion of itself sets forth, and must necessarily set forth, the ground on which it proceeds. To require a petition for a new trial to be filed in addition to it, setting forth specifically the grounds enumerated in it, would be an idle proceeding. We are of the opinion that all that is intended by the requirement of section 9 is that, on the filing of the motion within the time limited, the clerk of the common pleas division shall certify the papers in the case to the appellate division, as provided in the fourth clause of section 6, in the same manner as though it were a petition for a new trial. We think, therefore, that the common pleas division erred in granting the plaintiff's motion for judgment and execution, and that the motion in arrest of judgment should have been certified to this division for hearing. Petition for new trial granted, and case remitted to the common pleas division, with direction to certify it to this court on the plaintiff's motion in arrest of judgment.

RAILTON v. TAYLOR et al. (Supreme Court of Rhode Island. Nov. 22, 1897.)

LANDLORD AND TENANT-NEGLIGENCE--PLEADING. 1. A provision in a lease that the property of the lessee is to be kept on the premises at the risk of the lessee in regard to damage by fire, water, or otherwise, is not a bar to an action by lessee for damage to his goods arising from

the negligent management by the lessor of a steam-heating apparatus.

2. Where a lessee sues for damage to his goods arising from the negligent management by the lessor of a steam-heating apparatus, the rule of caveat emptor does not apply, as the lessee does not claim that the building itself is not suitable for the purpose for which he hired it.

3. A demurrer to a special plea in bar reaches back through the whole record, and attaches upon the first substantial defect in the pleadings.

4. A landlord, who so negligently manages a steam-heating apparatus that the goods of his tenant are damaged by the smoke, ashes, etc., therefrom, is liable to his tenant for such damage.

5. A count in a declaration by a lessee claiming damages from a lessor for injury to goods while in the leased building, attributing the injury to the fact that. the building and the steam-heating apparatus therein were not properly constructed, does not state a cause of action, when there is no allegation that the condition of the premises has been changed since the commencement of the tenancy.

Trespass on the case for negligence by Helen A. Railton against Ransom C. Taylor A demurrer to a special plea and another.

in bar is sustained.

James C. Collins and James C. Collins, Jr., for plaintiff. James L. Jenks, for defendants.

TILLINGHAST, J. This is an action of trespass on the case for negligence. The plaintiff is a tenant of the defendant Taylor under a writen lease. The declaration alleges, in the first count thereof, that the plaintiff entered into possession of the store in question, which consisted of a portion only of the building owned and controlled by the defendant Taylor; that a portion only of the cellar under said store is occupied by plaintiff; that the remainder of said cellar is occupied by said Taylor, and contains steam-heating apparatus, planned for and used by said defendant in the heating of the stores and rooms in said building; that said heating apparatus was put in by defendant, and is under his control and management; that said store was let to the plaintiff for the purpose of a dry-goods store; and that the defendant Taylor has so negligently managed his part of the premises, including the heating apparatus, and all appliances connected therewith, as to cause large amounts of smoke, dirt, ashes, gases, and an excessive amount of heat to arise into the plaintiff's store, and render the same unfit for the purposes of trade, thereby greatly damaging the stock of goods of the plaintiff; and, furthermore, that said defendant has persisted in said negligence, though often warned by the plaintiff of the damage. he was thereby doing. The second count alleges that the plaintiff's store was let to her by said defendant for, and used by her in, the sale of dry goods, fancy goods, etc.; that said defendant kept and used a portion of the cellar under the store for the heating of the building, having furnished the same with steam-heating apparatus; that there

were means supplied for the receiving of coal into said cellar, and for the removal of ashes therefrom, all of which were put in and constructed in an unsafe and unsuitable condition for the use they were intended for, and to which they were afterwards put; that said cellar was let to and used by one Bliss for the heating of said building, he being a tenant of the upper portions of said building; that said Bliss entered into possession and used said apparatus and the appurtenances thereunto connected, as was intended by said defendant that they should be used, and as a result thereof large quantities of smoke, dust, coal, dirt, ashes, gases, and an excessive amount of heat were caused to arise into the store of the plaintiff; that said defendant was frequently warned of these defects, but neglected to remedy the same; and that by reason thereof the plaintiff has suffered damage by reason of the loss of trade, etc. The third and fourth counts are substantially like the second. After the commencement of the action, the plaintiff, by leave of court, summoned in Harlan P. Bliss as a defendant, and in sundry additional counts charges him with negligence in the management of said heating apparatus, which plaintiff here alleges was under his control. Other counts were also added, charging the defendants jointly with negligence in the control and management of said heating apparatus, and also charging that said heating apparatus was improperly constructed as aforesaid, whereby plaintiff suffered damage. To this declaration the defendant Taylor has filed a special plea in bar, setting up that by the terms of the lease entered into between him and the plaintiff it was agreed that he should not be liable for any loss or damage suffered by the plaintiff from any cause or reason whatsoever; wherefore he prays judgment, etc. The provision in the lease relied on in bar of the action is as follows: "And it is also hereby understood and expressly agreed by the parties to this indenture that all merchandise, furniture, and property of any kind which may be on the premises during the continuance of this lease is to be at the sole risk and hazard of the lessee, and that, if the whole or any part thereof shall be destroyed or damaged by fire, water, or otherwise, or by the use or abuse of the Cochituate water, or by the leakage or bursting of water pipes, or in any other way or manner, no part of said loss or damage is to be charged to or be borne by the lessor in any case whatever. And the lessee further promises that she will keep whole and in good condition all the window and other glass on the premises, and also the pipes, faucets, and water fixtures, and that she will leave the same whole, and in good condition, at the termination of this lease." The plaintiff contends that this provision cannot properly be so construed as to exempt the lessor from liability for his own.