but justice. The act was not a gratuity, but a voluntary compensation; 'it was not of grace, but of debt.'" The case at bar is analogous to that of Murrel v. Murrel, for, though there is no express declaration or promise of remuneration to her son shown on the part of Mrs. Crumby, which could hardly be expected, since both she and her son are dead, and the conveyances were made upwards of 10 years prior to the filing of the bill, it is scarcely conceivable that the son should have gone on year after year turning over his earnings to his mother, and working on the property, without some understanding, express or implied, that he was, at some time or in some manner, to be compensated, or that his mother could have received his earnings and the benefit of his labor without feeling that justice required ber to make compensation. By doing justice to her son, the mother did 20 injustice to her daughter, who, as heir at law with her broth er, is entitled to her share of the property which justly belonged to the mother. If the conveyances were made as they were from a sense of justice, or in pursuance of some promise or declaration on the part of Mary Crumby to Hilton Crumby to remunerate

m, as we think is more reasonable and probable than that they were mere gifts or by way of advancements, then, under the authority of Murrel v. Murrel, supra, they are ot to be deemed advancements in making the partition. We so find and hold. A decree of partition may be entered in conformity to the views herein expressed.

STINESS, J., nonconcurring in finding of

fact.

(18 R. I. 654)

WILBUR v. WILBUR et al. (Supreme Court of Rhode Island. July 12, 1894.)

STIPULATIONS-EFFECT-SETTING ASIDE.

1. An agreement between the attorneys of the parties admitting a fact at issue is binding upon the parties, though one attorney ceases to act in the suit.

2. The written admission by the attorney of one of the parties to a suit of a fact at issue between them may be set aside on motion, in the discretion of the court, or it may be exIcluded as evidence, on an offer by the court to continue the case.

Appeal from court of common pleas.

An action of the case by John B. F. Wilbur against Maria E. Wilbur and others, devisees under the last will and testament of Fones G. Wilbur, deceased, to enforce the liability of deceased's real estate for the payment of his debts. Defendants had judgment, and plaintiff appeals. Conditional order.

Albert B. Crafts, for appellant. Charles Perrin and John W. Sweeney, for appellees.

MATTESON, C. J. This is an action of the case against the devisees in the last will

and testament of Fones G. Wilbur, deceased. The action is brought under Pub. St. c. 189, § 14, as follows: "The liability of the real estate of deceased persons for the payment of their just debts may be enforced by action of the case, to be brought against the heirs at law or devisces of such estate, provided the personal estate of the testator or intestate be insufficient for the payment of his debts, funeral charges, and expenses of supporting his family and settling his estate." At the trial in the common pleas division, the plaintiff offered, in proof of the allegation of the declaration that the personal estate of the testator was insufficient for the payments specified in the statute. an agreement in writing, signed by one Sheffield Greene, as the defendants' attorney, to the effect that if the plaintiff's claim should be allowed, or was a just claim against the estate of the deceased at the time of his decease, or at the time the note evidencing it became due and payable, the personal estate of the deceased was insufficient for such payments by the amount of the plaintiff's claim. The plaintiff offered in connection with the agreement the testimony of a witness that the agreement was made by the defendant's attorney to obviate the necessity of proving the facts admitted in it, and to procure for the defendants a continuance of the case; that it was agreed between the plaintiff's counsel and Greene, as attorney for the defendants, that the agreement should be kept by the plaintiff's counsel to prevent its being lost or mislaid, until it was necessary that it should be used in evidence. After the making of the agreement, and before the trial, Greene ceased to be the attorney of the defendants. Their attorney at the trial objected to the admission of the agreement in evidence, and protested that it was signed without authority from his clients. The court ruled that, as Greene had ceased to be the attorney of the defendants, the agreement was not admissible. and excluded it accordingly, but offered, in case the plaintiff was surprised, to continue the case. The plaintiff excepted to the ruling, declined the continuance, and subsequently called the defendant Maria E. Wilbur, executrix of the estate of the deceased, as a witness, who testified that the assets of the estate, consisting of money on deposit and other personal property, were sufficient to satisfy all its debts, including the plaintiff's claim if valid. Thereupon, no other testimony on the point being offered, the court nonsuited the plaintiff. The plaintiff excepted to the ordering of the nonsuit, and now petitions for a new trial, alleging that the court erred in its ruling excepted to.

The relation of attorney and client existing between Greene and the defendants at the time of the signing of the agreement was a sufficient authority for signing it, and to render it binding on the defendants until set aside. Lewis v. Sumner, 13 Metc. (Mass.)

269; Truby v. Seybert, 12 Pa. St. 101; Smith's Heirs v. Dixon, 3 Metc. (Ky.) 438; Wilson v. Spring, 64 Ill. 14; Talbot v. McGee, 4 T. B. Mon. 375; Pike v. Emerson, 5 N. H. 393; Alton v. Gilmanton, 2 N. H. 520; Daniel v. Ray, 1 Hill (S. C.) 32; Marshall v. Cliff, 4 Camp. 133; Whart. Ag. & Agents, § 585. Nor did the fact that Greene had ceased to be the attorney of the defendants render the agreement inadmissible in evidence. Young v. Wright, 1 Camp. 139; Wetherell v. Bird, 7 Car. & P. 6; Elton v. Larkins, 1 Moody & R. 196. We are of the opinion, therefore, that the common pleas division erred in excluding the agreement.

It is apparent from the testimony of the executrix that the admission contained in the agreement was untrue. It was doubtless made by the attorney who signed the agreement, through mistake. If the agreement had been filed in court, or notice of its existence had come to the defendants, so that they could have moved before the trial to set it aside as having been made through mistake, we think that on proof of the mistake the court might properly have granted the motion. Pike v. Emerson, 5 N. H. 393. This was practically the effect of the action of the court in excluding the agreement and offering to continue the case. If the fact be, as testified by Mrs. Wilbur, that the personal estate of the testator was sufficient for the payment of his debts and the charges and expenses mentioned in the statute, the plaintiff cannot maintain this action, and the granting of a new trial will avail him nothing. Unless, therefore, the plaintiff shall satisfy us by affidavit or otherwise that he has testimony other than the agreement to show that the fact is different from what has been testified by the executrix, we think his petition should be denied and dismissed. We will allow it to stand for the present, to give the plaintiff opportunity to show us that he has such testimony.

(18 R. I. 498)

PEABODY et al. v. TENNEY et al. (Supreme Court of Rhode Island. Nov. 27, 1893.)

BILL AGAINST ASSIGNEE FOR CREDITORS - ENFORCEMENT OF TRUST-EQUITABLE JURISDICTION -STATUTE OF LIMITATIONS-PART PAYMENT.

1. A bill against an assignee for the benefit of creditors, by a creditor of the assignor, to enforce the trusts under the assignment, which does not allege that complainant presented his claim within the six months allowed by Pub. Laws 1887, c. 631, § 2, is defective.

2. Such a bill is not demurrable on the ground that complainant had an adequate remedy at law.

3. Where a corporation, being financially embarrassed, places its affairs in the hands of a committee of its creditors for adjustment and settlement, the payment of a dividend by the committee to a creditor of the corporation is such a voluntary payment by the corporation as will take the claim of that creditor out of the statute of limitations.

Bill by Henry O. Peabody and others against Alfred E. Tenney, assignee of the Providence Tool Company, and others, to enforce the trusts under the assignment. A demurrer to the bill was sustained, and, complainant having amended the bill, defendants answered. Judgment for complainants.

John D. Thurston, for complainants. Richard B. Comstock and Rathbone Gardner, for respondent American Nat. Bank. Thomas C. Green and Benjamin W. Smith, for respondent National Exch. Bank. Alfred E. Tenney, pro se.

PER CURIAM. This is a bill to enforce the trusts of an assignment for the benefit of creditors. The complainants allege that the respondent assignee refuses to recognize them as creditors entitled to the benefit of the assignment. The respondent the American National Bank has demurred to the bill, assigning as grounds of demurrer that the complainants have a full, complete, and adequate remedy at law; and that Pub. Laws R. I. 1887, c. 631, as amended by Pub. Laws R. I. 1889, c. 820, has provided the exclusive mode in which a creditor of an insolvent debtor shall proceed to test the validity of his claim, in case such claim has been disallowed by the assignee of the debtor; and that the complainants do not allege in their bill that they have proceeded in accordance with the statute. Trusts are peculiarly the subjects of equitable cognizance, and we do not think that the bill is demurrable on the ground that the complainants have a full and adequate remedy at law. See Osborn v. Colwell, 17 R. I. 196, 21 Atl. 103. We think, however, that the bill is defective in not alleging that the complainants have presented their claims to the assignee as required by section 2 of said chapter 631,1 or that they have proved their claims in accordance with the proviso of said section. Demurrer sustained.

The bill was amended, and the assignee and National Exchange Bank filed answers. The case was then heard.

(March 2, 1894.)

TILLINGHAST, J. This is a bill to enforce the trusts of an assignment for the benefit of creditors. The question raised upon the pleadings is whether or not the complainants have any enforceable claims against the estate in the hands of the assignee. The facts as shown by the bill and answer, in so far as they are material to the decision of the question, are these, viz.: In 1882 the Providence Tool Company was indebted to divers creditors to an amount aggregating the sum of $1,129,684.06, and, being financially embarrassed, a committee

of creditors was appointed to adjust and settle up the affairs of the company, which committee, as the bill alleges, acted as the agents of said company, and with its acquiescence. They proceeded to discharge the duty thus imposed upon them, and paid dividends from time to time on account of the indebtedness of the company, amounting in all to 50 per cent. of its indebtedness, the last dividend being paid on the 30th of November, 1885. In November, 1891, and be fore the expiration of six years from the date of the payment of said last dividend, all of the respondents, excepting Alfred E. Tenney, assignee, sued out their several writs of attachment and summons against the company upon their respective claims, and subsequently reduced the same to judgments. On the 27th day of November, 1891, which was subsequent to the making of said attachments, the company made and executed an assignment for the benefit of its creditors of all its property and estate to the respondent Tenney, in accordance with the provisions of Pub. St. R. I. c. 237, whereby such attachments were dissolved. The complainants presented their claims to the assignee within six months from the date of the published notice of said assignment, but, though having assets of said company in his hands for distribution, he has refused to recognize the complainants as creditors under said deed of assignment, alleging as his reasons therefor that he has been notified by the other respondents that only those creditors of said company who commenced their actions against it prior to the expiration of six years after said 30th day of November, 1885, and reduced their claims to judgments as aforesaid, are entitled to any dividend out of the estate now in his hands. The assignee has never paid any dividend from the assigned estate. The answer sets up that said company was compelled to put its affairs into the hands of said committee, or be forced into making a general assignment for its creditors, and that, therefore, the act of putting its affairs into the hands of said committee was not voluntary, but under duress; and hence the dividends declared and paid were not the voluntary acts of said company, and did not, therefore, operate as part payments to take the claims of creditors out of the statute of limitations, but that all the claims against said company, except those reduced to judgment, were outlawed in the year 1888 or 1889. In the circumstances above set out, then, are the complainants' claims enforceable? Or, to state the question differently, are said claims outlawed? If they are, the complainants have no standing in court, but, if they are not, the complainants are entitled to the relief prayed for in their bill.

Part payment of a debt, whether made by the debtor or by his agent thereunto lawfully authorized, within six years from the time when such debt was incurred, ordinarily op

erates as a new promise, and takes the debt out of the statute of limitations; that is, it gives it a new lease of life for another period of six years. In the case at bar there is no dispute as to the fact that part payments were made to the complainants on account of their respective claims within six years from the time they were incurred, respectively, but it is urged by the respondents' counsel that such payments were not the "voluntary acts of said company," and therefore did not operate to take said claims out of the statute. Just what is meant in this connection by the "voluntary acts of said company" is not entirely clear. If counsel intends to claim that unless a payment is made willingly, or from choice, without any constraint from circumstances, it does not have the effect of a new promise, his position is wholly untenable; for it is matter of common knowledge that debtors are daily making unwilling, if not practically forced, payments to their creditors to preserve their credit or to prevent threatened attachments or proceedings in insolvency; and we are not aware that any court has ever decided that payments so made are not as effectual to discharge the debt, or take the claim out of the statute of limitations, as the case may be, as if made without any solicitation or urgency whatsoever. In short, we have always supposed that creditors could employ all proper and lawful means to collect their just dues, and that the payment, either in part or in whole, of a lawful debt, whether made willingly or unwillingly, has the same legal ef fect.

But respondents' counsel further contend that said turning over of the administration of the affairs of said company was not voluntary but under duress. This contention is also untenable. Duress exists when one by the unlawful act of another is induced to perform some act under circumstances which deprive him of the exercise of free will. Hackley v. Headley, 45 Mich. 569, 8 N. W. 511. Bouvier defines duress as "an actual or a threatened violence or restraint of a man's person contrary to law, to compel him to enter into a contract or to discharge one." But he subsequently states that "if the violence used be only a legal constraint, or the threats only of doing that which the party using them had a right to do, they shall not invalidate the contract." "A just and legal imprisonment, or threats of any measure authorized by law and the circumstances of the case, are of this description." See Watkins v. Baird, 6 Mass. 506. It follows, therefore, that compulsion is not necessarily' duress. Imprisonment, even, if lawful, and unaccompanied with circumstances of unnecessary pain, privation, or danger, is not such duress as will avoid a contract or other act done by one thus restrained of his liberty. See McCrillis v. Sisson, 1 R. I. 143. "Duress by threats," says Mr. Parsons in his work on Contracts (volume 1, 8th Ed. *393), "does not

exist wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong; as of death or great bodily injury or unlawful imprisonment." The ordinary test as to whether money is paid under duress is whether the party so paying it can maintain an action to recover it. And we presume that no lawyer would for a moment contend that the Providence Tool Company could maintain such an action in regard to the payments made to its creditors in the manner aforesaid. For a collection of the cases in support to the position we have taken, see 6 Am. & Eng. Enc. Law, 57, 58, caption in note, "Duress Per Minas." We therefore decide that the complainants are entitled to share equally with all the other creditors of said company in proportion to their respective claims in the property and estate now held in trust by said Tenney, assignee.

(18 R. I. 612)

ALMY. PROBATE COURT OF NEW

PORT.

(Supreme Court of Rhode Island. Jan. 8, 1894.)

ACCOUNTING BY EXECUTORS · EXPENDITURES FOR REPAIRS-LIABILITY FOR INTEREST.

1. An executor will be allowed for sums paid by him for repairs to a summer hotel, which by the will he was directed to sell, if the expenditures were judiciously made and were necessary to make the property marketable at a fair value or to secure rentals from it until it became possible to sell it.

2. An executor whose only excuse for allowing several thousand dollars to lie idle for five years is that he desired to add to it the proceeds of land to be sold, and then to make one division of the estate, should be charged interest at 4 per cent. from one year after his appointment till the date when the estate should have been divided, and at the rate of 6 per cent. from that date, though he did not know the persons who were entitled to the money, or their places of residence.

Accounting by the executors of Seth Bateman, deceased. From a decree of the probate court charging the executors with certain interest, Frank L. Almy, a legatee, appealed to the common pleas division, and after the announcement of the decision of the common pleas division the executors filed a petition for a new trial. Denied.

The opinion of Douglas, J., rendered in the common pleas division, was as follows:

"The appellant claims that certain payments made by the executors were unwarranted, and should be disallowed, and that the executors should be charged interest on the money kept by them on deposit from the end of the first year after their appointment, instead of from the end of the third year, as charged by the probate court, and at the rate of five per cent. per annum or more, instead of four per cent., as charged by that court.

"1. I find that the several payments objected to were actually made; that they were

for repairs to the grounds, buildings, and furniture of a summer hotel, which the will directed to be sold by the executors. The evidence convinces me that these expenses were judiciously made, and were necessary to make the property marketable at a fair price, or to secure rentals from it until it became possible to sell. I therefore allow these items as proper charges against the estate.

"2. I find that the will was proven and the executors appointed November 28, 1887. At that time they found on deposit in cash $22,632.95. From that time until the rendering of the account, November 7, 1892, the executors kept on deposit in the Merchants' Bank in Newport, of which one of them was cashier, a large sum of money, averaging, from November 28, 1888, to the date of the account, $13,127. Mrs. Bateman had died, and the executors held this money only on trust, to divide it among the residuary legatees. The only reason assigned for keeping this sum idle for this long time is the desire of the executors to add to it the proceeds of the sale of the real estate, in order to make one division and distribution of the fund. This reason does not seem to me sufficient to justify their inaction. Nothing in the condition of the estate appears to have required the keeping of this money deposited on call. The balance of the money on hand, together with the dividends, rents, interest on notes, and income from sales, was enough to pay all debts and expenses. If the executors chose to wait till the end of the three years before distributing this fund, as they lawfully might do, they should have deposited it in some savings bank or trust company, where it would have been equally safe, and where they would have been paid from four to five per cent. per annum, with semiannual rests. Monteith's Ex'rs v. Association, 21 Md. 426; Riley v. McInlear's Estate, 61 Vt. 254, 263, 264, 17 Atl. 729, and 19 Atl. 996; 1 Perry, Trusts, § 462. I think that from November 28, 1888, to November 28, 1890, they should be charged interest on $13,127 at the rate of four per cent. per annum. After November 28, 1890, when their duty to distribute became imperative, I see no reason why they should not pay interest at the rate of six per cent. White v. Ditson, 140 Mass. 351, 4 N. E. 606. I accordingly charge them with simple interest at these rates. As the executors did not make direct personal profit from the fund, but kept it safely deposited, I do not charge them with compound interest."

Orrin L. Bosworth, for appellant. William P. Sheffield, for appellees.

PER CURIAM. We find no error in the decision of the common pleas division charging the executors with interest. The grounds for thus charging them are clearly set forth in that decision. We concur in

those grounds, and adopt them as a part of our opinion.

The fact that it was not made to appear at the trial that the executors knew who the persons were that were entitled to share in the money in their hands, or their places of residence, is not enough to relieve them from the payment of interest. Even if such was the fact, it was still the duty of the executors to have deposited the money where it would have earned interest for the benefit of those entitled to the money when they were ascertained. Esmond v. Brown, Index LL, 42, 25 Atl. 652; Marsh v. Hague, 1 Edw. Ch. 174, 187; Lyon v. Magagnos, 7 Grat. 377; Bourne v. Mechan, 1 Grat. 292. The executors' petition for a new trial is denied, and dismissed, with costs, and the cause is remitted to the common pleas division for entry of decree in accordance with its decision.

"Mandamus" will not lie to compel a court to receive a special verdict of a jury until they have found on all the special issues submitted to them, under Judiciary Act, c. 23, § 7, providing for the submission of such special issues.

Action in trespass on the case by Gideon P. Rose against S. A. Mitchell to recover for alienation of his wife's affections. Four spe

cial issues were submitted to the jury for their determination, in only one of which they were able to agree on a finding, and were then discharged. On account of irregularities in receiving the verdict, the clerk, Charles E. Harvey, refused to enter it, and plaintiff petitions for a mandamus compelling him to do so. Denied.

John M. Brennan and Christopher E. Champlin, for petitioner. George J. West, for respondent.

It ap

PER CURIAM. The court sees no occasion to pass upon the question whether mandamus may properly issue as prayed. pears from the affidavits filed that on the return of the jury into court the foreman was asked by the clerk if they had agreed on a verdict; that thereupon a paper from the foreman was handed to the clerk, which read as follows: "We, the jury, agree that the defendant alienated the affections of the plaintiff's wife from him, and we assess the damages at $1,000." This paper, however, was not read to the jury by the clerk, nor were they asked whether it was their verdict,

nor was it signed by the jury or by the foreman. It does not appear, therefore, that it was assented to by the jury as its finding, and, the jury having been subsequently discharged from further consideration of the case, there is no way now by which the assent of the jury can be obtained; and therefore it cannot be entered on the record as their verdict. The trial, having thus resulted, must be regarded as a mistrial, and consequently the case must stand for another trial. Petition denied and dismissed. A petition for a rehearing was then filed, and the cause was reargued.

1. Where plaintiff recovered a verdict in an action for damages for maintaining a causeway over the waters of a cove so as to obstruct access to plaintiff's land, the jury must have found that the waters of such cove were navigable waters, and their verdict renders that fact res judicata.

2. The fixing of a harbor line by the harbor commissioners does not deprive a riparian owner of access to his land, but merely determines the line to which he may fill without encroaching on public rights.

3. Where the harbor line as fixed by the harbor commissioners is so run as to protect the rights of all riparian owners in proportion to the frontage of their lands, a riparian owner cannot attack the action of the commissioners.

1 As follows: "Sec. 7. In any case, the common pleas division of the supreme court may, and upon request of either party shall, direct the jury to return a special verdict upon any issue submitted to the jury. Such issues shall be settled by the justice presiding at the trial, and either party may except to his rulings thereon. In addition to such special findings on the issues submitted, the jury shall in each case return a general verdict, and shall assess such damages, if any, therein as they may deem just. The appellate division of the supreme court may, on motion of any party made and filed, together with a statement of the evidence in such cause at said trial in manner as is elsewhere provided in cases of petitions for new trial, set aside any general verdict and order judgment to be entered by the common pleas division in favor of either party upon any special verdict found in any cause; or it may order a new trial generally, or upon any issue submitted at such trial, as upon inspection of all the evidence adduced, and the general and special verdicts found therein, to it shall seem just."