the recognizance has been defaulted by surrendering the principal. Pub. St. R. I. c. 248, § 27,1 exempts the surety from liability, upon such surrender, only for any act of the principal subsequent to it which would be a breach of the recognizance. Id. c. 224, applies only to bail in civil cases.

The judgment of the court of common pleas is affirmed, with costs.

(16 R. I. 497)

WESTERLY SAV. BANK et al. v. STILLMAN
MANUF'G Co. et al.

(Supreme Court of Rhode Island. March 16,
1889.)

DEEDS MORTGAGES-VALIDITY.

1. Pub. St. R. I. c. 173, § 4, making deeds, etc., unless acknowledged and recorded, void as to others than the parties and their heirs, does not make an unacknowledged deed void as to others having actual notice of its existence.

cil of the town, and to the city council of the city, a particular account of his claim, debt, damages, or demand, and how incurred or contracted; which, being done, in case just and due satisfaction is not made him by the town treasurer of such town within 40 days after the presentment of such claim, debt, damages, or demand aforesaid, such person may commence his action against the town treasurer for the recovery of the same." We think the notice was sufficient compliance with the statute. The objection urged against it by the defendant is that it contains no statement of the amount of the plaintiff's claim for damages, except that in it the plaintiff offers, by way of compromise, to settle the claim for $700 in case that sum should be paid him without suit, and within 30 days from the date of the notice. We do not think, however, that in a case like the present, in which the damages are unliqui- 2. A mortgage which, for want of seal, is inopdated and, therefore, incapable of ascertain-erative at law, will be enforced in equity according to its intent, and is binding as against a subsement by calculation, it is necessary that any quent purchaser with notice of its existence. amount should be stated. The manifest purpose of the statute is to enable the town council to investigate the claim, and to afford them an opportunity to settle it without subjecting the town to the expense of a suit. If, therefore, the facts upon which the claim arises are set forth in the notice with sufficient fullness and particularity to enable the town council to make such investigation, the purpose of the statute is answered. The town council, being possessed of a knowledge of the facts, can form a judgment as to the amount of the damages as well as the claimant, and can then either pay or tender to him that amount within the 40 days after the presentment of the claim specified in the statute before suit can be brought. The plea is overruled, and the demurrer thereto sustained. (16 R. I. 519)

3. A mortgage was given for $45,000, and recorded. When $35,000 remained unpaid, a further $50,000, conveying the same property, was given, loan of $15,000 was made, and a new mortgage for and recorded. The first mortgage was left uncanceled for further security, and the record did not show that it included the debt secured by the first. Held, that the second mortgage was not void as against public policy, or as a fraudulent conveyance, in the absence of fraudulent intent shown."

Bill in equity to establish a mortgage lien, for an account, and for an injunction.

Francis W Miner, William G. Roelker, Nathan F. Dixon, and Charles Perrin, for complainants. Ziba O. Slocum, for respondents the Carrolls and Briggs. Thomas H. Peabody, for respondent the Stillman Manufacturing Company.

DURFEE, C. J. The case stated in the bill is as follows: September 6, A. D. 1873, the defendant corporation borrowed of the two complainant banks $45,000, one-half (Supreme Court of Rhode Island. May 25, 1889.) from each bank, and gave two notes for $22,

STATE v. MCGUIRE.

BAIL-SURRENDER OF PRINCIPAL.

In Rhode Island the surety in a recognizance in a criminal case cannot, after default, relieve himself from liability by surrendering the principal.

Exceptions from court of common pleas. Scire facias on a defaulted recognizance by the state of Rhode Island against Thomas McGuire. Defendant pleaded "that, after the default in said writ of scire facias alleged, and before final judgment against this defendant as bail, * * * he, the said defendant, did commit his aforesaid principal to the state jail * * * and did leave with the keeper of said jail a certified copy of said recognizance and of said act of scire facias, * *" hence, executio non. To this plea the state demurred, the demurrer was sustained, and defendant excepts. Horatio Rogers, Atty. Gen., for the State. Albert R. Greene, for defendant.

**

PER CURIAM. The exceptions are overruled. The surety in a recognizance in a criminal cause cannot discharge himself, after

500 each, one to each bank, securing them by mortgage of its mill estate. March 5, A. D. 1885, the corporation, while still owing $35,000 on said notes, borrowed of the banks $15,000 more, and gave new notes to the amount of $50,000, $25,000 to each bank, securing the same by what was supposed to be an additional mortgage for $50,000 cn said mill estate, the banks retaining the original notes and mortgages as further security. The new notes were delivered to the banks and the new mortgage left for record, the banks believing it to be in due form. September 2, A. D. 1887, the corporation, being already largely indebted to the defendants Lucius

1 As follows: "Sec. 27. Such surety may, at any time, surrender his principal to the court or mag istrate who took such recognizance, or may com mit him to the jail in the same county, leaving with the jailer a certified copy of such recognizance; and, upon such surrender or commitment, shall be discharged and exempt from all liability which would have been a breach of the condition for any act of the principal subsequent thereto, of the recognizance."

W. Carroll and Adams P. Carroll for goods | from its purpose as a provision for the pro.. and advances, and being desirous of further tection of bona fide purchasers and creditors, advances, gave them a mortgage, as security to the effect that any deed, valid between the therefor, to the amount of $15,000 on said parties and their heirs, though neither acmill estate and certain other property. Be knowledged nor recorded, shall likewise be fore the mortgage was made, the treasurer valid as to other persons having actual noof the corporation visited the town-clerk's tice of it, so that, if any other person having office, where the $50,000 mortgage, left there such notice take a conveyance of the land for record, had remained, for the purpose of covered by the prior deed, he will take it subgetting from it a description of the premises ject to any right, title, or interest therein mortgaged, and then learned that, though created by the prior deed as fully as if the recorded, it had never been sealed nor ac- prior deed had been duly acknowledged and knowledged. The treasurer took it, and af- recorded. It is true that we do not find this fixed the corporation seal, and returning it construction given to the section by actual to the town-clerk asked him to amend the decision in any reported case; but there are record, which was done. The mortgage deed reported cases in which the construction is to the Carrolls contained a statement that recognized. Taylor v. Luther, 2 Sumu. 228; the mill estate mortgaged by it was subject Nichols v. Reynolds, 1 R. I. 30, 36. The to a mortgage to the banks to secure $50,000. construction is confirmed by numerous deThe bill alleges that, while the mortgage to cisions under similar statutes in other states, them was in negotiation, they were informed some of which follow: Norcross v. Widgery, by the corporation or its agent that the mill 2 Mass. 506; State v. Bradish, 14 Mass. 296; estate was mortgaged to the banks for $50,- Trull v. Bigelow, 16 Mass. 406; Jackson v. 000, and that they, the Carrolls, believed the Burgott, 10 Johns. 457; Van Rensselaer v. mortgage for $50,000 to be valid. The cor- Clark, 17 Wend. 25; Rogers v. Jones, 8 N. poration afterwards became insolvent, and a H. 264; Emmons v. Murray, 16 N. H. 385; receiver of its property was appointed, who Hart v. Bank, 33 Vt. 252; Insurance Co. v. sold the same to the defendant Lucius Briggs Ledyard, 8 Ala. 866; Rupert v. Mark, 15 Ill. for $2, giving him a deed June 4, A. D. 540; Correy's Lessee v. Caxton, 4 Bin. 140. 1888. Briggs knew of the mortgage for $50,- The Massachusetts statute provided that the 000 when he purchased, and was ignorant of conveyance should not "be good and effectual any defect in it. The bill alleges that, since against any other person than the grantor then, the facts have become generally known, and his heirs, unless acknowledged and reand that Briggs and the Carrolls are claim- corded." "But," said PARSONS, C. J., in ing or threatening to claim that the banks Norcross v. Widgery, supra, "if the second have no valid lien or security on the mill purchaser has notice of the first conveyance, estate for their claim of $50,000. The bill the intent of the statute is answered, and his prays that the mortgage may be declared to purchase afterwards is a fraudulent act." be valid, or to be a lien in equity for the This construction finds countenance in the amount of their claim, and for foreclosure. wording of the statutes of some of the The defendants Briggs and the Carrolls have states; but the construction is the same, gendemurred to the bill generally for want of erally, even where the statutes declare unequity. The said defendants contend that, qualifiedly that unregistered conveyances under the statute law of the state, (Pub. St. shall be void as against purchasers, or as R. I. c. 173, § 4,) the mortgage for $50,000 against all persons who are not parties to the is void, not only because it was not sealed conveyance. Le Neve v. Le Neve, 2 Amb. when recorded, but also because not acknowl- 436, 2 White & T. Lead. Cas. Eq. (4th Amer. edged, and that it confers no rights whatever Ed.) 109, and cases cited in American notes on the banks. The section referred to de- on pages 213, 214. We think our statute clares that all conveyances of real estate for always has been and should continue to be more than a year, and all deeds of trust and construed in the same manner. The statute, mortgages, shall be void unless they shall be however, only applies to deeds, and it is not acknowledged and recorded; provided that, clear that the mortgage in question is a deed; between the parties and their heirs, they shall for, though the treasurer of the corporation be valid. The language, taken literally, is aflixed a seal to it, it is not alleged that he absolute; and under it, so taken, A. might was authorized to do it. If the mortgage be stand by and see B. convey a lot of land to not a deed, it is inoperative at law as a conC. by deed, and then take a deed from B. of veyance, and would bind the estate only in the same lot in due form, and, if the deed to equity, where it would undoubtedly be enC. should happen not to have been acknowl- forced between the parties according to its edged, or, if acknowledged, should happen intent. Would it likewise bind the estate as not to have been forthwith recorded, could against a subsequent mortgagee or purchaser acquire the better title by lodging his deed for value with notice? We think so. for record. We do not understand, how- general rule is that a purchaser, with notice ever, that the section has ever been construed of the right of another, is in equity liable to so as to permit this; on the contrary we understand that it has always, notwithstanding the absoluteness of its language, been construed to be subject to an exception, implied

The

the same extent and in the same manner as the person from whom he purchases. 2 Pom. Eq. Jur. §§ 591, 659, 692. In Bullock v. Whipp, 15 R. I. 195, 2 Atl. Rep. 309, this

court held that a mortgage, accidentally re- paid, and have never been supposed to be vitimaining without a seal, was good in equity|ated thereby. Mortgages on several pieces against an attaching creditor with notice. of property, each given for the same debt And in Bank v. Hollenbeck, 29 Minn. 322, 13 N. W. Rep. 145, cited in Bullock v. Whipp, it was held that such a mortgage was good in equity against a purchaser buying subject to the mortgage and assuming it. See Town of Middletown v. Newport Hospi- | tal, 15 Atl. Rep. 800; 1 Story, Eq. Jur. § 395 et seq.

sequent purchasers and incumbrancers. See also Machette v. Wanless, 1 Colo. 225. It is always a delicate matter to declare a transaction, which has been honestly entered into, void as against public policy because it is such that it may be perverted afterwards to fraudulent purposes. We are not satisfied that it is our duty to declare the mortgage for $50,000 void on that account. The banks were doubtless negligent in allowing the mortgage for $50,000 to lie in the town-clerk's office, without being called for, so long as they did; but we do not think this was such laches as should debar them of relief. It does not appear that the defendants have suffered by reason thereof. Demurrers overruled.

without making reference to the other, have been enforced against junior mortages and attaching creditors. Franklin v. Gorham, 2 Day, 142; Anderson's Adm'r v. Davies' Adm'r, 6 Munf. 484; 1 Jones, Mortg. § 356. The Connecticut cases, cited for said defendants, go much beyond the letter of the registry law of that state, in supposed compliance The Carrolls urge that their mortgage was with its spirit or policy; but they are mostly given, in great part, for advances in goods and cases in which the mortgage debt was falsely money to the corporation, made before the or defectively described, not like the case at mortgage was given, and before the notice bar. They lay down a stricter rule than was received, and that therefore their mort- prevails in other states. In Insurance Co. v. gage ought not to be affected by the notice. Brown, 11 Mich. 265, it was held that a mortTheir advances, however, were made upon the gage, given to secure all existing debts withgeneral credit of the firm without special secu-out specifying them, was good against subrity, whereas the banks lent their money only on an agreement for mortgage security which they supposed was duly given. The banks thus acquired, at least, an equitable lien upon the mill estate, and the Carrolls, taking their mortgage subsequently with notice thereof, must be held to have taken subject thereto. Besides the mortgage to the Carrolls was given expressly subject to incumbrance in favor of the banks for $50,000. Said defendants further contend that the mortgage is against public policy and void because, whereas only $15,000 was lent, the mortgage purports to be given as security for $50,000, the records being thus used for the publication of a falsehood. The answer is that the mortgage was given for $35,000 due on the prior mortgage as well as for $15,000 newly lent, the prior mortgage being kept uncanceled by way of further security. This is not entire-(Supreme Court of Rhode Island. June 1, 1889.) ly satisfactory, since the second mortgage does not set forth that it included the debts secured by the first, and it might, for anything that appears, have been additional thereto. It is said the practice is common to all the savings banks. It seems to us that such a practice, whether common or not, is objectionable, since it tends to mislead, and offers opportunities for fraud. It does not appear, however, that any fraud was contemplated, or that any has been practiced. The objection is not that the second mortgage was given for more than the mortgagor owed, but that it was given in part for indebtedness already secured by the prior mortgage left uncanceled without disclosing the fact. This is not prohibited by our registry laws, or, in the absence of any fraudulent purpose, by our statutes of fraudulent conveyances, either directly or by clear implication, and therefore, while we are not disposed to approve the transaction, we are nevertheless not prepared to declare it void on the ground that it was against public policy. It is desirable that the records should, at all times, disclose the true state of the titles there registered, but it is notorious that they do not do so. Mortgages which have been paid are left uncanceled. Mortgages which have been partly paid do not show that they have been partly

STATE v. SUTCLIFFE.

(16 R. I. 520)

SCIRE FACIAS ON RECOGNIZANCE-PLEADING. 1. Under a plea of nul tiel record to scire facias on a defaulted recognizance, defendant cannot show that the court which took the recognizance recognizor, or that he did not acknowledge himself had no jurisdiction, that defendant was not the indebted as stated in the declaration.

2. The recognizance being itself the ground of the action, and not being offered merely by way of inducement, a plea that defendant "does not owe the said sum of money, or any part thereof, and did not so acknowledge, as the plaintiff has above declared, "if regarded as simply a plea of nil debet, is properly stricken out. person who entered into the recognizance, under the averment that he did not acknowledge himself to be indebted.

3. Defendant cannot show that he was not the

Exceptions from court of common pleas.

Scire facias on a defaulted recognizance, by the state of Rhode Island against Roger W. Sutcliffe. Defendant pleaded nul tiel record, also nil debet, and that he did not acknowledge himself indebted, as the state had declared against him. On motion of the state, all the pleas were stricken out, except that of nul tiel record. Under this plea defendant sought to show that the court which took the recognizance did not have jurisdiction of the complaint in which it was taken; that defendant was not the recognizor; that defendant neither recognized nor acknowledged himself indebted as stated in the dec

laration. The trial court refused to receive the case was remitted to the common pleas evidence offered in support of these defenses, and defendant excepts.

Ejectment by Levi W. Clapp and others against Edward Freeman. Judgment in the district court for plaintiff, defendant ap- district court shall be absent from the district, or pealed to the common pleas, his appeal was unable to serve, his duties shall be performed by dismissed, on the ground that a certain bond, the clerk of such court, if any there be, who shall required by statute to be filed, had not been constitute such court; and the fact of such abapproved by the district court, and he ex-sence shall be recorded in the records of such court. If the clerk of any district court shall be cepted. His exceptions were sustained by the supreme court, (16 Atl. Rep. 207,) and

goods therefrom without legal process, and | on September 10, 1887, these suits being disthat the plaintiff had no right to re-enter." continued; that he had made no attempt to To the refusal and charge the plaintiff excepted.

Charles H. Page, Hugh J. Carroll, Franklin P. Owen, and Thomas J. McParlin, for plaintiff. W. B. Tanner, for defendant.

PER CURIAM. We find no error in the instruction of the court to the jury, or in the refusal of the court to charge in accordance with the plaintiff's request. The instruction is sustained by Souter v. Codman, 14 R. I. 119. Exceptions overruled.

(16 R. I. 521)

BRAYMAN et al. v. LESLIE. (Supreme Court of Rhode Island. June 1, 1889.)

SALE-CONTRACT-INTERPRETATION.

A clause in a contract of sale of a stock of goods, reciting that they are "to be paid for as sold, and said [purchaser] shall have at least 18 months to sell the stock," means that the purchaser shall not be required to pay for so much of the stock as he has not sold until the expiration of at least 18 months from the time the goods are delivered to him, but shall then pay, whether the goods have

been sold or not.

Exceptions from court of common pleas. Louis L. Angell, for plaintiffs. Augustus S. Miller and Arthur L. Brown, for defend

ant.

Cr.

By cash,

sell the goods after being sued; that he had been deceived by the plaintiffs in the value and quality of the goods. The plaintiffs offered no testimony in contradiction of the defendant's testimony, and there was no testimony in the case to the contrary. The court instructed the jury that they should find for the plaintiffs for the full contract price of the goods delivered, unless they should find that the defendant had been deceived by the plaintiffs, and unless the plaintiffs had omitted to give to the defendant all the credits to which he was entitled. To this instruction the defendant duly excepted. The defendant, thereupon, requested the court to charge the jury entitled to recover only for the value of such that, under said contract, the plaintiffs were goods as had been sold by the defendant, which request was refused, and exception taken. The defendant, thereupon, further requested the court to charge the jury that if they found that said Leslie had been unable to sell said goods, or if they found that the defendant had been guilty of no negligence or misconduct in keeping said goods without selling them, the plaintiff could not recover for such goods as remained unsold, which request was also refused, and excep

tion taken. The court further instructed the jury that the question of reasonableness of time in selling said goods did not arise, from the fact that the goods were burned. To this instruction the defendant also duly excepted. The jury returned a verdict for the plaintiffs for $766.85, upon which judgment was en

PER CURIAM. This is an action of assumpsit to recover the balance due upon a contract of sale in writing, as follows, viz: "Providence, March 19, 1884. Mr. John Leslie bought of Brayman & Trafford stock of boots, shoes, and rubbers in store former-tered. ly occupied by Mr. A. Jeffrey in Westerly, The exceptions involve the interpretation R. I., Mar. 19, $1,373 85 to be given to the clause appended to the con210 95 tract of sale, to-wit, "To be paid for as sold, and said John Leslie shall have at least $1,162 90 eighteen months to sell the stock." The de"To be paid for as sold, and said John Les- fendant contends that the plaintiffs are not lie shall have at least eighteen months to sell entitled to recover because, at the beginning the stock. BRAYMAN & TRAFFORD." of the suit, he had paid for more of the goods than he had sold; that the 18 months specified was the minimum limit of time to which he was entitled to sell the goods, and that he was to have as much more time as might be reasonably necessary; and that, being unable to sell the goods prior to the bringing of the suit, and being guilty of no negligence or misconduct in keeping them, he was not liable. We think, however, that the meaning of the clause in question is that the defendant should not be required to pay for so much of the stock as he had not previously disposed of, until the expiration of at least 18 months from the delivery of the goods to him under the contract, but that he was then to pay, whether the goods had been sold or not. If this construction be correct, it follows that the instructions of the court were correct, though the reason assigned for the second may have been erroneous, the goods having been burned subsequently to the bringing of the suit; and that the requests for instructions were properly denied.

The plaintiffs proved a delivery of the goods to the defendant, and his acceptance of them under the above contract; and admitted the receipt of payments by which the claim had been reduced to $711.40, for which sum, with interest, they sued. They offered no evidence that any part of the goods had been sold by the defendant. The defendant testified that he had paid for more goods than he had sold; that, at the date of the writ, September 22, 1887, he had a large part of the goods on hand, which were subsequently, to-wit, February 7, 1888, destroyed by a conflagration at Westerly, R. I., and that he had been unable to sell the goods before their destruction; that, for two years next before this fire, he had not sold, nor attempted to sell, any of the goods, but had them packed away in the rear part of his store; that he was sued (which was admitted by the plaintiffs) for the price of the goods before the expiration of the 18 months named in the contract, to-wit, on January 21, 1886, and again