matter is outside the contract, then it is outside this accounting, and therefore can avail her nothing. But the contract is one by which her husband was constituted the agent of the orators to carry on and conduct for them the business of their drug-store; and, although there is no clause in the contract that expressly authorized Rider to hire a clerk at any expense to the orators, yet the services of a clerk so pertained to the business, and was so incident to it, as to bring the hiring of one by the express consent of the orators fairly within the contract, and to make the expense thereof a proper matter of settlement as belonging to the business; and hence Mrs. Rider is bound by her husband's settlement equally with him. ployed one, and paid him the above sum. | hired him by their consent only while the The petitioners insisted that they had only soda-water season lasted; and they credited authorized the employment of this clerk Rider with $12, one-half the clerk hire for through the soda-water season. In the set- that time, and insisted on settling in that lement of April 1st this item of clerk hire had way, if at all, to which Rider finally reluctbeen adjusted by the parties by allowing the antly consented, in order that he might consum of $12. The master found that the em- tinue in the business. This was a comproployment of the clerk was authorized by the mise by waiver of his claim in respect of that petitioners for an indefinite time, and that item, and he is bound by it. But it is said Rider had employed the clerk with the knowl- that, if he is bound, Mrs. Rider is not, as the edge and consent of the petitioners until item related to a matter not within the scope April 1, 1887, and ought to be allowed there- of the contract; and that the mortgage, which for. After the petitioners took possession of it is conceded is of her sole and separate the property, they endeavored to have Rider property, is conditioned only for the performtake it at $1,500 cash, and made an earnest ef-ance of the contract by her husband. If the fort to sell it for $2,000 or less. Finally it was advertised and sold at auction for $1,700. The master found that it did not appear that such property was worth, when sold, more than such sum of $1,700. It appeared that, in accordance with the terms of the contract, inventories had been made from time to time; the last, made in January and February, 1887, footing up at about $2,700. The defendants claimed that these inventories fixed the value of the property, but the master reported that such was not the intention of the contract, nor the understanding of the parties. The petitioners had carried on the business between January 24th, when they took possession of the goods, and April 1st, when they were sold, as they claimed, for the purpose of winding up matters between themselves and the defendant, and in so doing had incurred certain expenses. They had also sold goods from the stock, and bought in others. The amount which they had received for goods so sold exceeded the amount which they had expended in purchasing new goods by $69.52. Treating the value of the goods sold April 1, 1887, as what they brought at auction, $1,700, the master found that there was due the orators on that date a balance of $501.76. Upon the foregoing facts, TYLER, Chancellor. decreed, pro forma, that the defendants pay to the orators the sum of $1,325.63, and interest thereon from June 13, 1887, and the costs of suit, to be taxed by the clerk, on or before the first Monday after the second Tuesday in December, 1888, and in default thereof be foreclosed of all equity of redemption in the premises. From this decree both parties appealed. ROWELL, J. The defendants make but two questions. One is that the settlement of April 1, 1886, is not binding on Mrs. Rider in respect of the item of clerk hire, and the other is in respect of the orators' accountability for the assets of the store. We regard that settlement as clearly binding on Rider himself, in the respect named. There was no mistake of fact touching that item. Rider claimed that he employed the clerk for the whole time by the consent of the orators, while the orators claimed that he The orators agreed to pay Mrs. Rider the whole sum that should be of the assets of the business at the termination of the agency, whether in cash, goods, furniture, or fixtures, less $1,500, and half the net profits, or 6 per cent. in lieu thereof. The agency terminated on January 24, 1887; hence the accounting in respect of assets must be as of that date, and the orators can be allowed nothing for their administration of the business after that. By the contract, Rider agreed that at the termination of the agency he would pay the orators $1,500, and the interest thereon, or return to them a stock of equal value with the stock, furniture, and fixtures on hand at the time the contract was made; and the question is, what shall be the basis of accounting in respect of the value of the assets? The defendants claim that it should be the value of the stock at the time of the termination of the agency, as shown by the inventories referred to by the master. But there is nothing to show that the parties ever agreed upon this or any other mode of fixing the value; and under the finding of the master the inventories are not determinative of value. It does not appear that the value of the original stock was ever fixed, nor how the value of the stock was to be determined on final accounting; in the absence of all which, it must be taken that the cash value was to be the basis for all purposes of the contract, and on this basis the value of the stock is fairly fixed by the report, as nothing appears to show it worth more than it sold for. If the defendants claimed it was worth more, they should have shown it. As to the orators' liability for the unpaid The master reported, among other things, bills incurred by Rider, we do not deem the the following facts: On the 23d day of March, case ripe for determining; and the orators 1881, Forsyth and wife executed the mortask to have the bill dismissed without preju- gage in question to the said Henrietta Hendice in this behalf, and it will be so ordered. derson and the defendant Worthen. The The orators are entitled to a decree for the mortgage was given to secure the payment amount found due on the Rich mortgage, as to of ten notes. The first nine were payable to which there is no dispute, and for the balance the defendant Worthen,--the first for $100, of $501.76 found due on the other mortgage on in one year from date; the next seven for April 1, 1887, less $69.52, which is the dif- $200 each, payable in two, three, four, five, ference between the amount realized by the six, seven, and eight years from date; and orators on sales from January 24 to April 1. the ninth, payable in nine years from date, 1887, and the amount of their disbursements for the sum of $100. The tenth note was during the same time for accretions to the for $425, payable to the order of Henrietta stock. Decree reversed, and cause remanded, Henderson in ten years from date. with mandate. was conceded that the fifth note had been paid, and the premises discharged from the mortgage lien as to it. With reference to the first four notes, it appeared that when (61 Vt. 110) BLAIR v. WHITE et al. It (Supreme Court of Vermont. Caledonia. Feb. they fell due the defendant Worthen presented them to Forsyth, the maker, and reMORTGAGES-ASSIGNMENT-MARSHALING ASSETS-quested payment; that Forsyth was unable 1, 1889.) PAYMENT BY LEGACY. 1. Where a part of the notes secured by a mortgage are assigned without any agreement as to whether the interest in the security should follow or not, a proportionate share of the security follows as a matter of law. 2. The fact that the holder of the assigned notes holds them as executor of an estate, which owes the mortgagor and maker of the notes a legacy, cannot avail the holder of the other notes, on the theory that the legacy constitutes a payment of the assigned notes. It is not payment until the executor has chosen to apply it as such. Appeal from chancery court, Caledonia county; POWERS, Chancellor. The to pay them; and that they were in fact paid by the testatrix, Henrietta Henderson, to the defendant Worthen, who indorsed them without recourse, and passed them over to her. The defendant Worthen claimed, in his sworn answer, that when the testatrix paid these four notes he supposed and understood that they were thereby paid and canceled so far as his notes and the mortgage security were concerned; and that he should not have suf3. But the mortgage security being inadequate, fered these and the remaining notes to go and the executor having in his hands an additional unpaid, and the mortgagor, Forsyth, to coufund to which he can resort for payment or part duct with reference to the mortgaged prempayment of his notes, equity requires that he re-ises as he had in the cutting of timber, had sort to that fund before resorting to the mortgage he supposed that the testatrix had purchased security, to the damage of the other holder, if he can do so without detriment to the estate in re- said notes, instead of paying them. spect of the unsecured debts owing to it by the master found, upon this point, that, unless legatee. the answer was admissible as evidence, there was nothing to show what the understanding was when the notes were paid by the testaThis was a petition to foreclose a mort- trix to the defendant Worthen, and by him gage, brought by the orator, as the executor passed over to her; that, if the answer was of Henrietta Henderson, against Jacob Wor- admissible, the defendant did understand that then, Nelson Forsyth, and the defendant the notes remaining in his possession were to White, as the administrator of Elizabeth have priority over those turned over to the Forsyth, wife of Nelson Forsyth. The peti- testatrix; but that the state of facts contion was taken as confessed as to all the de- nected with the transactions out of which fendants except the defendant Worthen, who this understanding on the part of Worthen filed an answer. The case was referred to a arose was not such as would justify a reaspecial master, and was heard at the Decem- sonably prudent man in supposing that the ber term, Caledonia county, 1886, upon the testatrix, when she took up the first four pleadings, master's report, and exceptions notes, intended to discharge Forsyth from by both parties thereto. PowERS, Chancel- the payment thereof, or to relieve the mortlor, decreed that the exceptions on both sides gaged premises to that extent, or to give the be overruled, and a decree entered for the remaining notes held by the defendant Worpetitioner covering the four notes in contro- then priority of security to the notes so taken versy between the petitioner and the defend-up by her. As to the note for $425, being ant Worthen, and the tenth note described the tenth note secured by the mortgage in in the mortgage, and in favor of the defend- question, the defendant Worthen claimed, ant Worthen covering the balance of the out- in his answer, that it was the understanding standing notes then held by him, with a day at the time the mortgage was executed that of redemption to. Forsyth and wife, with this note should stand postponed with recosts as against the defendant Worthen since the filing of his answer, for which the orator might have execution, and for the balance of his costs as against Forsyth and wife. The defendant Worthen appealed. v.17A.no.1-4 spect to the mortgage security to the notes then given to the said defendant. The language of the answer on this point was as follows: At the time said mortgage and notes were executed, it was understood by all par 66 50 ATLANTIC REPORTER, VOL. 17. ties thereto that this defendant's notes should | ator has in his hands another fund to which be paid first, and before Henrietta Hender- he can legally resort for payment or part payThe master reported that if the ment of his mortgage notes, equity requires son's note." answer was admissible as evidence, and this that he should resort to that fund before relanguage could be interpreted to mean that sorting to the mortgage security, to the damthere was an understanding, at the time of age of the defendant; for this course works But the orator is not bound to rethe execution of the mortgage, by the terms no injury to either creditor, but does justice of which the notes of the defendant Worthen to both. were to take precedence in the matter of the sort to that fund to the detriment of the esmortgage security to the note of the testatrix, tate in respect of the unsecured debts that then he found such to be the fact; otherwise, the debtor owes it. But, aside from the there was no evidence to this effect; and he debts, the legacy should in some way be made found that they all stood alike. The defend- to vantage the defendant in respect of his seant Forsyth was a legatee of the testatrix, curity. But this cannot be decreed as the and he also owed her estate certain debts case now stands; and, although we find no other than these mortgage notes in suit; and error in the decree, yet, at the request of the master found that, after deducting from the defendant Worthen, it is reversed pro the amount of the legacy these unsecured forma, with costs to the orator up to this claims, there would still be due him upon time in this court and in the court of chancery, and the cause remanded, that said desaid legacy $759.90. fendant may apply below for leave to take such steps or institute such proceedings in respect of this matter as he may be advised. In default of such application, let a decree be entered for the orator like the one appealed from. Smith & Sloane, for appellant. Ide & Stafford, for appellee. fense. ROWELL, J. The defendant Worthen's answer is not precise as to the ground of deThere are statements in it which, if taken by themselves, would indicate a claim that the notes he passed over to the testatrix, Miss Henderson, were, by the transaction between them, paid and extinguished as to the But, taken all tomaker as well as to him. gether, the fair scope of the answer is considered to be, not that these notes were thereby extinguished as to the maker, but that as to this defendant they were thereby postponed to the defendant's remaining notes in respect of the right to share in the mortgage security. The fact that the notes were indorsed by the defendant supports this construction of the answer, as it tends strongly to show that he did not understand that they were extinguished as to the maker. The defense must stand upon the answer, and, standing thus, the case is the common one of the assignment of a part of the notes secured by a mortgage, without any agreement as to whether the interest in the security should follow or not; in which case a proportionate share of the security follows as a matter of law. Keyes v. Wood, 21 Vt. 331. The defendant seeks to avail himself of the legacy that the testatrix gave to the maker of the notes, as payment of them. It is objected that his answer as to payment is not sufficient to enable him to do that; which is true, even though the legacy could be availed of as payment. But it cannot be, for it is not operative as payment until it is made so by being applied as such, which has not been done, although the executor has the right to do it. Courtenay v. Williams, 3 Hare, 539; Brokaw v. Hudson's Ex'rs, 27 N. J. Eq. 135; 1 Pom. Eq. Jur. § 541. In Tinkham v. Smith, 56 Vt. 187, application of the plaintiff's distributive share in part payment of his debt was actually made by the administrator, and then pleaded as payment, and the But inasmuch as the plea was held good. mortgage security is inadequate, and the or (16 R. I. 477) HENDRY et ux. v. HOLLINGDRAKE. (Supreme Court of Rhode Island. Feb. 16, 1889.) PARTITION OF DECEDENT'S ESTATE-SALE. An order of sale in partition will not be refused because the time has not yet expired within which plainants derive title, may be subjected to the paythe estate of the testator, under whose will comment of debts, when it does not appear that there are any debts, but does appear that the administrator has a large amount of personal property in his hands. Bill for partition, filed by William Hendry and wife against Daniel Hollingdrake. Samuel Ames and Nathan H. Truman, for Marquis D. L. Mowry, for complainants. defendant. PER CURIAM. The parties to this suit are tenants in common in fee-simple of a lot of land in the city of Providence; the complainants being entitled to one-half, and the defendant to the other half. The complainants bring this bill for partition, and, inasmuch as the land is such that it cannot be divided by metes and bounds without a loss in value, they move for partition, by sale, and division of the proceeds. The title of the complainants came by will from the late Ellen Hollingdrake. The defendant objects to the partition as proposed because the said Ellen died less than three and a half years ago, and the half of the estate which came from her is still subject to the statutory lien for the debts, if any there are, and the sale would be injuriously affected thereby. He cites the case of Matthews v. Matthews, 1 Edw. Ch. 565. In that case, however, it appeared that there were debts, and the personal estate was insufficient to pay them. The court refused, for that reason, to order a sale until it should be known whether a resort to the real estate would be necessary or not. In the case at bar it does not appear that there are any sale, moved to quash the complaint, and PER CURIAM. The defendant, who is under complaint for keeping intoxicating liquors for sale in violation of the statute, moved the court below to quash the complaint, and, after verdict of guilty, to arrest the sentence, because the complaint did not charge any offense, in that it omitted to charge that the defendant kept the liquors for sale in this state "to be used as a beverage." Both motions were denied, and the defendant excepted. The charge corresponds with the amended statute, which likewise omits the words "to be used as a beverage, and is therefore sufficient in this respect, unless the statute is unconstitutional in consequence of the omission. In State v. Kane, 15 R. I. 395, 6 Atl. Rep. 783, we carefully considered the point here raised, and expressed the opinion that while the fifth amendment to the constitution, commonly called the "Prohibitory Amendment," makes it obligatory on the general assemby to enact laws to prevent the sale of intoxicating liquors "to be used as a beverage," it does not take away from the general assembly, either expressly or by implication, the power which it previously had to restrict the sale, for other purposes, to certain persons or classes of persons; but rather, on the contrary, makes it their duty to impose such a restriction, if, by so doing, they can the more effectually prevent the selling and keeping for sale for use as a beverage. We remain of the opinion there expressed. Exceptions overruled. 1. Pub. Laws R. I. 1887, c. 634, § 1, restraining the sale of intoxicating liquors, provides that the word "intoxicating," as used therein, shall include any liquor containing more than 2 per cent. by weight of alcohol; and also that the form of the statute, if substantially followed in a complaint, shall be sufficient in law to fully and plainly describe the offense. Held, that the statute is not violative of Const. R. I. art. 1, § 10, declaring that in all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation. STATE v. KENNEDY. 2. A complaint charging the unlawful keeping (Supreme Court of Rhode Island. Jan. 4, 1889.) of ale, wine, and rum for sale, also of "strong and malt and intoxicating liquors," is not defective for INTOXICATING LIQUORS-CONSTITUTIONAL LAW. failure to inform defendant as to whether he is acConst. R. I. amend. 5, requiring the general as- cused of keeping unlawfully liquors in fact intoxsembly to enact laws to prevent the sale of intoxicating, or those deemed by law to be intoxicaticating liquors "to be used as a beverage," does not take away from the general assembly the power which it previously had to restrict the sale, for other purposes, to certain persons or classes of persons. Following State v. Kane, 6 Atl. Rep. 783. Exceptions from court of common pleas, Providence county. William H. Kennedy, under complaint for illegally keeping intoxicating liquors for ing. 3. Evidence is admissible to show whether liquors seized from defendant, which were not in fact intoxicating, contained the amount of alcohol necessary to render them "intoxicating" within the meaning of a complaint drawn under the statute. On petition for new trial. Criminal complaint against Edward McKenna, brought in the district court of the Eighth judicial district, and carried, by the contained. But supposing that the liquors defendant's appeal, to the court of common were not such, and were not in fact intoxipleas. After convictions in the court of com- cating, then the question arises whether, unmon pleas, the defendant filed this petition der the complaint as drawn, evidence of the to this court. The statute on which the keeping of them was admissible, by virtue complaint is founded, and which defines "in- of the statutory provision that the word “intoxicating liquors" as stated in the opinion, toxicating," as used in the chapter in pursuis Pub. Laws R. I. 1887, c. 634, § 1. ance of which the complaint was made, shall Horatio Rogers, Atty. Gen., for the State. be deemed to include "any liquor or mixture Ambrose E. West, for defendant. of liquors which shall contain more than two per cent. by weight of alcohol." The complaint follows the form given by said chapter; and the chapter provides that the form, if substantially followed, "shall be sufficient, in law, to fully and plainly describe the offense" complained of. Accordingly, the complaint is sufficient, unless the provision cited is inconsistent with the constitution of the state, art. 1, § 10, which declares that "in all criminal prosecutions the accused shall enjoy the right *** to be informed of the nature and cause of the accusation." In Massachusetts there are, or have been, statutes prohibiting the sale, or keeping for sale, of intoxicating liquors, and enacting that "ale, porter, strong beer, or lager-beer," etc., "and any beverage containing more than three per cent. of alcohol," etc., shall be deemed to be intoxicating, within the meaning of the statute; and under these statutes DURFEE, C. J. The complaint charges that the defendant, at Cranston, January 24, 1888, "without lawful authority, did then and there keep and suffer to be kept in his premises, in his possession, and under his charge, ale, wine, rum, and other strong and malt and intoxicating liquors, and mixed liquors, a part of which was ale, wine, rum, and other strong and malt and intoxicating liquors, with intent to sell the same in this state, against the statute." When the complaint was called for trial, on appeal in the court of common pleas, the defendant moved the court to quash the complaint because "it did not set out with sufficient certainty the offense charged, in that it did not inform him whether he must defend against keeping unlawfully liquor which was in part intoxicating, or that which was deemed by law to be intoxicating, to-wit, that which contained it has been held that it is sufficient, by reason more than two per cent. by weight of alcohol." The court denied the motion, and the defendant excepted. We think the court rightly denied the motion. A motion to quash is to be granted only for fatal defects apparent on the face of the record. There is no such defect in this complaint. It charges the unlawful keeping of ale. wine, and rum, and could be sustained by the unlawful keeping of either of those liquors. It also charges the unlawful keeping of "strong or malt liquors," which has always, since that form of words has been used, been deemed sufficiently certain for proof of the keeping of strong liquors, like whisky or brandy, or of malt liquor, like porter or beer. The addition of the words "and intoxicating" does not make the complaint bad, even if the prosecutor would not, under them, be allowed to show the keeping of liquors which, though not in fact intoxicating, are required to be taken as intoxicating by the statute. The second exception is as follows, to-wit: "The prosecution offered to prove by the state assayer that the liquor seized at the defendant's place of business contained more than two per cent. by weight of alcohol. The defendant objected to the introduction of said testimony. His objection was overruled, and he then and there excepted. There was no other testimony as to the quality of the liquor kept by said defendant." The exception does not state what kind of liquor was seized. It may have been ale, wines, or rum, or some other strong or malt liquors, in which case they would have been within the prohibition of the statute, whatever the percentage of alcohol which they of said enactment, for the government to prove, in support of a complaint for the keeping of "intoxicating liquors" for sale in violation thereof, that the defendant so kept ale or lager-beer, without further proof that it was intoxicating. Com. v. Timothy, 8 Gray, 480; Batchelder v. Com., 109 Mass. 361; Com. v. Curran, 119 Mass. 206; Com. v. Snow, 133 Mass. 575. No form of complaint is given in the Massachusetts statutes; and therefore, if the complaints were sufficient in the Massachusetts cases in the particular in question, a fortiori is the complaint in the case at bar sufficient in the same particular. Our statute enlarges the meaning of the word "intoxicating." in express terms, for the purpose not only of prohibition, but also of complaint. There may be a limit to such legislation, and the general assembly may have gone to the verge of it, but we are not satisfied that they have exceeded it. See State v. Murphy, 15 R. I. 543, 546– 548, 10 Atl. Rep. 585. Petition dismissed. November 6, 1672, (4 Col. Rec. R. I. p. 466,) the 1. Under the charter of New Shoreham, granted town council was to consist of three, "who shall be added to the two wardens for the town council, to have like authority as other town councils have." In 1798 the number of councilmen was fixed at five or seven; and since 1844 the number has not been less than three nor more than seven, as the town may determine. Const. R. I. art. 10, § 7, gives the town of New Shoreham the right "to continue to elect wardens as heretofore." The first and second wardens have always been regarded as mem |