said corporation, an attested copy of this writ, with an attested copy of this, my return thereon, at 10:10 of the clock in the forenoon of said day. Benjamin Tucker, Deputy Sheriff. And, the principal defendant being out of the state, I made no further service of this writ. Benjamin Tucker, Deputy Sheriff." The plaintiff moved to amend the return by adding after the word "corporation" the words "agent of said corporation, or person having the care of the property of said corporation." December 30, 1889, the Northern Railroad Company owned certain shares of the capital stock of the Concord & Claremont Railroad, and of the Peterborough & Hillsborough Railroad, which, by the terms of the lease of the Northern Railroad Company to the Boston & Lowell Railroad Corporation, were made over to the latter, to be held and used during the term of the lease for the purpose of maintaining the roads of these companies as its branches, and to allow it to vote on this stock, and collect the dividends which should become due on them during the term of the lease. February 28, 1890, the lease was assigned, and the lessee's interest in the stock was transferred to the Boston & Maine Railroad; and March 28, 1890, by vote of the directors of the Boston & Maine Railroad, its president was authorized to transfer the shares to A. W. Sulloway, "to be held by him as trustee under the lease of said Northern Railroad to the Boston & Lowell Railroad Corporation, of December 30, 1889, to be voted by him as the directors of this company may from time to time direct, and, upon their request, to be transferred to this company, or to such person or persons as the directors may designate"; and shortly afterwards the shares were thus transferred to him, and he has since held them as such trustee. Said Sulloway has been a director of the Boston & Maine Railroad for about four years last past. At the date of the sheriff's return, said Sulloway was not an agent of the Boston & Maine Railroad, or a person having the care of the property of the corporation, otherwise than as a director and as a trustee holding the shares as aforesaid.

W. L. Foster and S. C. Eastman, for plaintiff. G. B. French and C. H. Burns, for defendant.

BLODGETT, J. "An officer's return of an attachment of the share or interest of any person in a corporation may be as general as a return of an attachment of all the defendant's real estate in a town, and the attachment may be made by the officer by leaving an attested copy of the writ and of his return thereon with a director of the corporation. Any director so served shall forthwith notify the clerk, treasurer, or cashier of such corporation of such attachment." Laws 1895, c. 93, § 1. Giving to this declara

tory statute (which is entitled "An act to remove doubts in the construction of section 13, chapter 200 (220), of the Public Statutes, relating to the service of process") the weight to which it is entitled, we are of opinion that the defendant's motion to dismiss must be denied.

WALLACE, J., did not sit. The others con

curred.

LISCOMB v. ELDREDGE.

(Supreme Court of Rhode Island. Dec. 31, 1897.)

WILLS-CONTESTS-APPEAL-GROUNDS-BondAPPROVAL.

1. The reason, stated as the ground of appeal from a decree refusing to admit an instrument to probate, that the instrument is the last will and testament of deceased, is sufficiently specific under the statute.

2. Where an affidavit on file shows service of the citation on Harriet R. Eldredge, in Boston, Mass., it will be presumed on appeal that the person thus served is identical with the Harriet Richmond Eldredge mentioned in the instrument presented for probate as the heir at law of the testator, and described in the reasons of appeal as of Dorchester, Mass.

3. Under Gen. Laws, c. 248, § 1, providing for appeals from probate courts, and requiring the appellant to give a bond to the court satisfactory to the court, or to the clerk if the court be not in session, the clerk has power to approve an appeal bond given him under the circumstances named.

4. When the clerk of the probate court approves an appeal bond, his minute thereon that the court is not then in session is sufficient evidence of that fact to bring the case within Gen. Laws, c. 248, § 1, authorizing the clerk to approve appeal bonds presented to him when the court is not in session.

Appeal from probate court.

Proceeding by Sarah A. P. Liscomb against Harriet R. Eldredge for the probate of a will. From a decree refusing to admit the instrument to probate, plaintiff appeals. On motion to dismiss the appeal. Denied.

Clarence A. Aldrich, for appellant. Louis C. Southard, for appellee.

MATTESON, C. J. This is an appeal from a decree of the court of probate of Little Compton refusing to admit to probate an instrument in writing dated May 14, 1880, purporting to be the last will and testament of James Pierce, deceased. The reasons of appeal state as ground of appeal that the instrument is the last will and testament of the deceased. Counsel of the appellee, as amicus curiæ, moves to dismiss the appeal because the reasons of appeal are not sufficiently specific. The term "specific" is relative. The purpose of the statute in requiring that the grounds of appeal shall be set forth specifically is to notify the adverse party of them, and to enable him to be prepared to meet them at the trial. We think that the reason stated in the present instance is sufficiently specific

to answer the requirement of the statute. It is equivalent to the statement that the testator was of sound, disposing mind and memory, and that the instrument was executed and attested in accordance with the statute. We do not see that the appellee would be any better apprised of the case to be met at the trial if these two matters had been separately stated in the reasons of appeal than by the statement that the instrument is the last will and testament of the deceased, in which they are necessarily involved.

The second ground of the motion urged is that the record does not show that the Harriet Richmond Eldredge, heir at law of said James Pierce, described and mentioned in the instrument presented for probate, has ever been served with a notice of appeal or summons. The reasons of appeal pray for a citation to Harriet R. Eldredge, described as of Dorchester, Mass., "sole heir at law of said James Pierce"; and there is a citation on file, with an affidavit of service thereon by a disinterested person on Harriet R. Eldredge, in Boston, Mass., on April 20, 1897, the service having been made, as the affidavit states, by leaving in her hands and possession a copy of the citation, together with a certified copy of the reasons of appeal, which accompanied the citation. We think that it is to be presumed, till the contrary appears, that the Harriet R. Eldredge thus served is identical with the Harriet Richmond Eldredge who is mentioned as the heir at law of said James Pierce.

The third ground urged in support of the motion is that the bond filed by the appellant is not sufficient. Gen. Laws R. I. c. 248, § 1, requires the appellant to give a bond satisfactory to the court, or to the clerk if the court is not in session. The bond is in the usual form, and was approved by the clerk, the court not being in session when the bond was presented for approval, as appears by the minute of the clerk on the bond. The objection to the bond is that it was approved by the clerk instead of the court. The appellee contends that the statute requires that the court should be given a chance to approve or disapprove bonds in appeal cases, and that this right is not to be usurped by the clerk; that he might allow a bond entirely inadequate both as to sureties and penalties, when the court would be just and reasonable. appellee further contends that the clerk should show from a transcript of his record that the court was not in session at the time when the bond was approved by him, and that the court would not be in session in time to approve the bond. We do not think that such strictness

The

is necessary. The statute gives authority to the clerk to approve the bond if the court shall not be in session. It is not to be assumed that he will not faithfully perform his duty by requiring an adequate bond both as to sureties and penalty. His minute on the bond that the court is not in session when the bond is presented for approval and approved by him is all the evidence that has ever been

required of the fact that the court was not in session, and, in our opinion, is sufficient. The motion to dismiss is overruled.

MCNALLY v. WILKINSON. (Supreme Court of Rhode Island. Dec. 14, 1897.)

SUCCESSIVE GARNISHMENTS-VALIDITY.

The use of the process of the court, in garnishee proceedings, to tie up money in the hands of the garnishee by repeated service of writs, and then, without entering the writ or writs employed for this purpose, to commence a fresh suit, and attach the fund thus accumulated, is a perversion of civil process, and cannot be sanctioned.

Appeal from district court, Providence county.

Action by T. Henry McNally against William Wilkinson. Defendant appeals from order de. nying motion to discharge garnishee. Reversed.

Lellan J. Tuck, for appellant. Claude J. Farnsworth, for appellee.

TILLINGHAST, J. The record submitted in this case shows the following facts, viz.: On the 9th day of July, 1897, the plaintiff sued out of the district court of the Eleventh judicial district a writ of attachment against the defendant, returnable to said court on the 24th day of the same month. Service of said writ was made on the Moshassuck Valley Railroad Company, the garnishee therein named, on July 9, 1897, and again on the 15th day of the same month, for the purpose of attaching money in its hands, belonging to the defendant. The writ was also duly served on the defendant, but was not entered in court. On the 21st day of July, 1897, the garnishee duly made a return to said court of the amount in its hands on the said 15th day of July, although the writ had not been entered as aforesaid. The writ in the case now before us was issued from the same court on said 24th day of July. It is for the same cause of action as the one first above mentioned. It was served on the same garnishee, and the money attached in said former suit was again attached in this. These facts having been properly made to appear in the district court, the defendant moved that the garnishee be discharged, but the motion was denied, and the garnishee charged for the amount in its hands, whereupon the defendant duly excepted, and the case is before us on exception to said ruling and decision.

We think the ruling was erroneous. The evident purpose of the plaintiff in the proceedings recited, taken as a whole, and unexplained, was by successive attachments to secure a sufficient amount in the hands of the garnishee to pay his claim in full, regardless of the legal rights of the defendant. And while it was perfectly proper for the plaintiff to attach a sufficient amount to sat

isfy his claim on the first writ, either by successive attachments thereon within the time allowed for the service and before the return day thereof, or by a writ of mesne process issued after the entry thereof in court (Gen. Laws R. I. c. 252, § 17), yet it was an abuse of legal process to go as far as he could on the first writ, and then, without entering that, to sue out another for the same cause of action, and attach the same, or an additional amount, to satisfy his claim. The law abhors a multiplicity of suits for the same cause of action. If the plaintiff could abandon his first suit in this way, and commence a second, he could also abandon a second, a fourth, and so on indefinitely, to the great annoyance and vexation of the defendant, and also of the garnishee. To use the process of the court to thus tie up money in the hands of a garnishee until the amount shall become large enough to satisfy the plaintiff's claim, and then, without entering the writ or writs employed for this purpose, to commence a fresh suit by attaching the fund thus accumulated, not only works a wrong upon the defendant, but is a perversion of civil process, and cannot, therefore, be sanctioned. The principle that even a valid and lawful act cannot be accomplished by unlawful means, and that wherever such means are resorted to the law will interpose to restore the party injured thereby to his rights, is a salutary and well-established doctrine of the law. Thus, in Ilsley v. Nichols, 12 Pick. 270, it was held that an attachment made by breaking open a dwelling house, and then attaching property therein, rendered said attachment unlawful and invalid. Shaw, C. J., in delivering the opinion of the court, said, among other things, that the law will "operate prospectively to prevent the acquisition of any lawful right by the excess and abuse of an authority given for useful and beneficial purposes." The court will always see to it that its process, over which it has inherent control, is not abused or perverted to purposes of oppression. See McCusker v. Mitchell, 20 R. I. pt. 1, p. 17, 36 Atl. 1123. The exception is sustained, and the case remitted to said district court, with direction to discharge the garnishee.

not take proceedings for appointment of commissioners of the estate as insolvent, within the 30 days as prescribed by Gen. Laws, c. 215, § 3, their subsequent appointment by the court of probate constituted no bar to the plaintiff's suit, which had been already begun.

Action by Henry W. Strong against Eleanor R. Luther, administratrix, in assumpsit for services. Demurrer to replication overruled, and replication sustained.

Henry W. Hayes, for plaintiff. O. L. Bosworth, for defendant.

MATTESON, C. J. This is assumpsit for services. The defendant pleaded the general issue, and also, in bar of the action, that the estate of the testator at the time of the presentation of the claim to her, and at the time of the bringing of the suit and the filing of the declaration, was insolvent, and that since the bringing of the suit the probate court had adjudged the estate insolvent, and appointed commissioners in insolvency to adjust and settle the claims against it according to law. To the plea in bar the plaintiff replied that the defendant did not, within 30 days after the expiration of the period allowed for the presentation of claims, file a statement in the probate court having jurisdiction over the estate, allowing or denying the validity of the claims presented, and giving personal notice to the claimants whose claims were contested; that she did not file a statement of her belief that the estate was insolvent, declaring it to be so, asking for the appointment of commissioners, giving notice to all persons who had presented claims to prove them before the commissioners, as required by Gen. Laws R. I. c. 215, § 3; that there was no record by which the plaintiff could have knowledge of the alleged insolvent condition of the estate at the times mentioned in the plea, except as the same had been adjudged insolvent subsequently to the bringing of the suit; that the plaintiff, on June 26, 1897, after the 30 days referred to, received a notice from the defendant that his claim was disputed, and in consequence of that notice, and in accordance with Gen. Laws R. I. c. 215, § 4, brought this action against the defendant within the six months therein prescribed, which was pending when the defendant applied for the appointment of commissioners on the estate as an insolvent estate. To this replication the defendant has demurred.

There is no provision for the appointment of commissioners on the insolvent estates of deceased persons except that contained in Gen. Laws R. I. c. 215, § 3. That section marks out the proceedings to be taken by an executor or administrator, and requires that these shall be taken within the 30 days after the expiration of the period limited for the presentation of claims. We find no authority for the appointment of commissioners unless the necessary steps have

been taken within the 30 days so prescribed, and are, therefore, of the opinion that, as the defendant did not take the proceedings set forth in section 3 within the 30 days, the subsequent appointment of commissioners by the court of probate constitutes no bar to the plaintiff's suit, which had been begun already. Demurrer overruled, replication sustained.

FIRST NAT. BANK OF SHREVEPORT v. RANDALL et al.

(Supreme Court of Rhode Island. Dec. 16, 1897.)

CREDITORS' BILL-SUFFICIENCY.

1. A creditors' bill by the holder of a foreign judgment, to set aside a conveyance of land by the judgment debtor, alleged that the judgment had not been satisfied; that the conveyance was without consideration, and to prevent complainant from collecting its claim; that such debtor was not a resident "of this state," and was not to be found therein; that he had no property "in this state" that it could attach, and thereby secure service of process; and that complainant had exhausted all its remedies at law. Held demurrable, on the grounds that it did not allege that complainant had judgment "in this state"; that execution had been issued and remedy at law exhausted; and that, at the time of said conveyance, said debtor had no other estate subject to execution.

2. A bill to set aside a conveyance as in fraud of creditors, on the ground that it was without consideration, need not allege that the grantee had knowledge of complainant's judgment, or had a fraudulent intent.

Bill by the First National Bank of Shreveport against Charles J. Randall and others. Heard on demurrer to the bill. Demurrer sustained.

Edwards & Angell, for complainant. Harrison A. McKenney, for respondents.

STINESS, J. The complainant, having obtained a judgment in Louisiana against Charles J. Randall, brings this bill, as a creditor, to set aside a conveyance of realty in this state, made by said Randall, which is alleged to be a fraudulent conveyance. The bill is demurred to upon the grounds (1) that there is no allegation that the complainant has judgment in this state; (2) that there is no allegation that execution has been issued and remedy at law exhausted; (3) that there is no allegation that, at the time of the conveyance, said Randall had no other estate subject to execution; (4) that it is not alleged that the other respondents had knowledge of the judgment, or had a fraudulent intent. The allegations of the bill, applicable to these objections, are that the judgment has not been satisfied; that the convey. ance was without consideration, and for the purpose of preventing the complainant from pursuing said property for the purpose of collecting its claim; that Charles J. Randall is not a resident of this state, and is not to be found herein; and that he has no property in this state which it can attach, and

thereby secure service of process; and that the complainant has exhausted all the remedies at law within its power against said Randall.

Creditors' bills to set aside fraudulent conveyances and bills to reach equitable assets are frequently treated as though they were the same thing. In some respects they are alike, but the grounds of jurisdiction upon which they rest are quite distinct; the former invoking the aid of the court for relief from fraud, and the latter for the appropriation of assets which cannot be reached at law. Both are proceedings in equity, and so are subject to the same general rules. The office of equity is to supplement, and not to supplant, the law. Hence, when the remedy at law is adequate, equity does not need to interpose. The rule, therefore, that a bill to reach equitable assets cannot stand until legal remedies have been exhausted, and the complainant's right as a creditor has been established in the jurisdiction where the equitable remedy is sought, is applied to both proceedings, because it is based upon the principles that the aid of equity should not be invoked when there is an adequate remedy at law, and that the court of law is the proper forum to establish a right of recovery. Of course, there must be exceptions in cases where the requirements of the rule cannot be complied with, and one is to be found in Bank v. Paine, 13 R. I. 592. That was the case of a foreign and absconding debtor, who had real and personal estate here which had been given to trustees for the benefit of himself and others by the will of his father. The complainant claims that the decision supports this case. But the radical difference between the two cases is that in the former the assets were purely equitable, and hence no service of process could be made either upon the debtor himself or by attachment of his property in an action at law. In a case like the present one, where it is alleged that the transfer of property was fraudulent and void as to a creditor, it is held that as to such creditor the debtor retains his interest in the property, notwithstanding the conveyance, and it can therefore be attached in an action at law. McKenna v. Crowley, 16 R. I. 364, 17 Atl. 354.

The fact that the complainant has a judgment against the debtor in another state is not conclusive of the existence of a present debt, because there may be defenses such as payment, lack of proper service, set-off, and the like. Nor are the allegations conclusive that the conveyance was without consideration, and for the purpose of hindering and defrauding creditors, even on demurrer, because such a conveyance is not void if the debtor has other property sufficient to satisfy his debts, and from which the complaining creditor can get his pay; and we regard the rule as settled in this state that the best and conclusive evidence that the debtor has

no other property is the return of an execution unsatisfied. Bank v. Paine, supra; Ginn v. Brown, 14 R. I. 524; Stone v. Westcott, 18 R. I. 517, 28 Atl. 662. While, therefore, the legal remedy is open, and neither the debt nor the fraud in conveyance is conclusively established, the grounds for jurisdiction in equity do not appear. The strict application of the rule above stated has been so far relaxed in McKenna v. Crowley as to hold that after a creditor has secured a lien by attachment upon property fraudulently conveyed, and has recovered a judgment against the grantor, upon which execution is to issue, the court, in equity, has the independent and auxiliary jurisdiction to set aside the conveyance, in order to clear away a cloud upon the title, so that the interest of the debtor may be sold to better advantage for both his and his creditors' benefit. The jurisdiction is quite distinct from that of a creditors' bill to reach equitable assets, and hence the court remarked that "it is the levy of the execution giving a lien, and not its return unsatisfied, which is the prerequisite to it." The line of decisions in this state which is thus outlined is consistent, and is in harmony with decisions elsewhere, and with well-established principles, as shown by citations in previous opinions, so that it is not necessary to review authorities again in this

case.

From these decisions it appears that the complainant is not yet in a position to invoke the aid of a court of equity, and this disposes of the first three grounds of demurrer to the bill.

As to the fourth ground of demurrer, that it is not alleged that the other respondents had knowledge of the judgment, or had a fraudulent intent, it is disposed of by McKenna v. Crowley, where the court said: "It was not necessary that the grantee, the conveyance being voluntary, should actually participate with the grantor in his purpose, or be privy to it." Demurrer to the bill sustained.

COLT v. SEARS COMMERCIAL CO. et al. (Supreme Court of Rhode Island. Dec. 20, 1897.)

ASSIGNMENT for BenefIT OF CREDITORS-PREFERENCES-RIGHTS AND DUTIES OF ASSIGNEE.

1. An assignee of an insolvent estate is a trustee for the creditors, and is bound to exercise the utmost diligence and good faith in the discharge of his duties.

2. Under the statute giving the assignee of an insolvent estate the authority to avoid a preference by the assignor, it is within his discretion whether he will attempt to avoid a preference or not.

3. Where it is the plain duty of an assignee of an insolvent estate to attack a preference by the assignor, he may be compelled to do so, on petition of the creditors, or be removed by the court.

4. The assignee of an insolvent estate is the only person who has power, under the statute, to bring an action to avoid a preference by the as

signor which is in fraud of the rights of creditors, or prohibited by the statute.

Application for rehearing. Denied.
For former report, see 37 Atl. 311.

James, Wm. R. & Theodore F. Tillinghast and Samuel Norris, Jr., for complainant. Edwards & Angell, for respondents.

TILLINGHAST, J. The complainant's counsel insist that under the decision of this court in Hamilton v. Colt, 14 R. I. 209, the transaction whereby the Sears Commercial Company obtained security for its claim against the National Rubber Company was absolutely void. He assumes, and claims that he has the right to assume, that this court in that case deliberately repudiated the doctrine of Snow v. Lang, 2 Allen, 18, and of like cases, as applicable to our statute, and knowingly and intentionally gave to the word "void." in our act, its full primary meaning and force. Such an assumption is quite unwarranted. In Hamilton v. Colt it was held that under proper pleadings it was competent for the defendant to show that the plaintiff's mortgage was void. And upon such showing the court said that "it instantly became void, ab initio, under the statute." The court nowhere said that such a mortgage was absolutely void, but only "generally" void; and, as the context shows, this word was used solely for the purpose of including the assignee in that case among the persons who might show as a defense that the mortgage was void. Moreover, the question as to the right of an assignee to elect to treat as valid a conveyance which might be open to attack as a preference was not raised, or even suggested, in that case. The main point involved was whether the defense set up-that of a preference under the statute-was open to the defendant assignee, or whether such defense was limited to creditors and bona fide purchasers for value, and the court said that such a defense was open to the assignee. But that Chief Justice Durfee, in using the language he did concerning the mortgage in that case, intended to lay down the rule that a preference is absolutely void under our statute, or that the court understood that it was so deciding, is quite contrary to our understanding of the scope and purport of the Had the learned writer of that opinion intended to array himself and the court in opposition to the whole current of judicial opinion, both English and American, as to the meaning of the word "void" in statutes like the one before us, he certainly would not have contented himself with simply making a bald statement as to the meaning thereof, without discussion or reference. Such dogmatism in judicial statement was not one of his characteristics. For a full discussion of the meaning of the word "void" in similar statutes, see Pearsoll v. Chapin, 44 Pa. St. 11-17; Beecher v. Mill Co., 45 Mich. 103, 7 N. W. 695; Bowen v. Johnson, 17 R. I.

case.