sertion is not established as a fact by the evidence. The plaintiff was first notified of the acceptance of his offer for the land on March 18, 1898, while he was in Mississippi, and he at once forwarded a check for the purchase money. With no enforceable contract, and no authority to enter, he cannot be regarded as an equitable owner prior to that time. McKee v. McCardle, 22 R. I. 71, 46 Atl. 181. He was not liable for the tax when it was assessed, and is entitled to recover it back. Case remitted to the district court of the First judicial district, with direction to enter judgment for the plaintiff for $178.41 and costs.

(22 B. I. 305)

FORROW v. ARNOLD. (Supreme Court of Rhode Island. Dec. 8, 1900.)

ATTORNEY AND CLIENT-NEGLIGENCE OF AT

TORNEY-DAMAGES.

1. Where an insufficient affidavit to a writ was given to plaintiff by his attorney on Sunday, and the writ was issued by him on Monday, the cause of action against the attorney for damages sustained in issuing the writ accrued on Monday, and not on Sunday.

2. Where an attorney negligently fails to make an affidavit to a writ conform to the statutes, on account of which a judgment is obtained against his client for arrest under a void writ, the latter may recover of the attorney the costs of prosecuting the suit, the costs adjudged against him, and the amount of the judgment against him.

3. A writ was issued by a client on an affidavit which, because of his attorney's neglect, did not conform to the statute, and defendant in the writ obtained a judgment against such client. The damages recovered were largely punitive, and were based on grounds which were not chargeable against the attorney, as the proximate result of his neglect. Held, in an action by the client against the attorney, that it was error to allow a recovery against him for the full amount of such damages, on the ground that but for the void writ no action for false imprisonment could have been maintained; the declaration in the former suit being for malicious prosecution, and not for false imprisonment.

Exceptions from district court, Providence county.

Action by Emory D. Forrow against John J. Arnold. From a judgment in favor of plaintiff, defendant excepts. Modified.

P. Henry Quinn, for plaintiff. John J. Arnold, in pro. per.

STINESS, C. J. An attorney is liable to his client for the damage resulting as a proximate consequence from his negligence. 3 Am. & Eng. Enc. Law (2d Ed.) p. 398. The negligence in this case consisted of an omission to notice that the affidavit on a writ filled out by the defendant did not conform, in one allegation, to the requirements of the statute. The writ having been given to the plaintiff on Sunday upon the defendant's advice that the affidavit was in proper form, which advice was followed by swearing to it on Monday, the cause of action arose on Monday, and not, as the de

fendant contends, on Sunday. Exceptions on that ground are overruled.

The damages for which, therefore, the defendant is liable, are simply those which follow from the issue of a void writ. They would include the cost of prosecuting the suit, the judgment for costs against the plaintiff, and, if the defendant in the suit should sue for an illegal arrest, the amount of the judgment against the plaintiff on that account, which, under the facts in the case, could not have been large. A suit was brought by Dutcher, the defendant in the writ, against the present plaintiff, which resulted in a judgment against this plaintiff, in the sum of $400, all of which has been allowed to the plaintiff in the decision of the trial judge. An inspection of the record in that case shows that the gravamen, upon which more than actual damages could have been allowed, consisted of three things: First, that the officer, through ignorance of his duty, and without instructions from this defendant, took Dutcher to East Greenwich, after bail had been procured; second, that the affidavit was false in stating that the plaintiff had a just claim against the defendant; and, third, that it was false in stating that the defendant was about to leave the state No one of those things could be charged upon this defendant as the proximate result of his neglect, but the damages, being largely punitive, must have been based upon one or more of these grounds. Such an allowance was erroneous. The decision was based upon the proposition that but for the void writ no action for false imprisonment could have been maintained. The declaration in the former case was for malicious prosecution, and not for false imprisonment. There is a distinction between such cases. Hobbs v. Ray, 18 R. I. 84, 25 Atl. 694; Lauzon v. Charroux, 18 R. I. 467, 27 Atl. 975. An action for malicious prosecution could have been maintained under a valid writ upon either of the grounds above stated. The actual damages in this case, so far as appears, did not exceed $50, and that is the limit of the defendant's liability. The other exceptions presented are overruled. We therefore direct that judgment be entered for the plaintiff in the sum of $50.

(22 R. I. 287)

DOWELL v. GOODWIN. (Supreme Court of Rhode Island. Dec. 3, 1900.)

EQUITY-ENJOINING ENFORCEMENT OF JUDGMENT-FRAUD-ADEQUATE LEGAL REMEDY. 1. Equity has jurisdiction to enjoin enforcement of a judgment obtained by fraud of the officer charged with the service of the writ, though his return be regular on its face and show service.

2. A cause of action by a judgment defendant against the officer who falsely returned a service on defendant is not "an adequate remedy at law," preventing equity from enjoining enforcement of the judgment as obtained by fraud of the officer.

TILLINGHAST, J. This is a bill to enjoin the prosecution of an action at law against the complainant, and for other relief. The bill sets out that on the 10th of March, 1896, the respondent sued out a writ before the district court of the Sixth judicial district to recover from the complainant the sum of $80 for work and labor done; that said writ was placed in the hands of one John F. Ryan, a constable of Pawtucket, R. I., for service; that it was returnable on the 23d day of March, 1896, at which time it was entered in said court; that said constable made a return on the writ in which he set forth that on the 14th day of March, 1896, he attached the right, title, and interest of the defendant in that suit to certain land described in his return, and that on the same day he summoned the defendant in that suit by leaving an attested copy of the writ with him; that thereafterwards, on the 30th day of March, 1896, said court rendered judgment against this complainant, the defendant in that suit, for said amount claimed, with costs, which judgment has never been appealed from or reversed; and that the same now stands on the record of said court. The complainant then avers that said Ryan, constable, never made any attachment of the real estate of this complainant on said 14th day of March, 1896, nor on any other day, and that he did not leave any copy of said writ with him (the complainant), and that he did not summon him, as set forth in his return, or in any other manner whatsoever, either on said 14th day of March or at any other time, and that the return of said officer was wholly and absolutely untrue and fraudulent in every particular. The complainant further avers that he did not answer said action at law because he was wholly ignorant of the existence of the same, and that he did not know thereof, or of any judgment rendered therein, until on or about the 13th day of May, 1899. He further alleges that he was not indebted to the plaintiff in said action in any sum whatsoever, and that the alleged claim set up therein is groundless, and that the judgment rendered therein is fraudulent and void. The bill further alleges that on the 19th day of May, 1899, the respondent commenced an action of debt on judgment against the complainant in said district court, said judgment being the same that was obtained in the fraudulent action above referred to; that in said last-named action he has attached the land of the complainant; and that said action is now pending in said district court. The bill further alleges that by the fraudulent acts of said Ryan, and his false return on said writ, the

complainant has been greatly injured and damaged, and that the respondent is aware of said illegal and fraudulent acts, but persists in pursuing the complainant on said fraudulent judgment, and also that the complainant is wholly remediless at law, and can only have relief in a court of equity. Wherefore he prays that the respondent be perpetually enjoined from further prosecuting his action on said judgment, and for other relief. To this bill the respondent demurs on the following grounds, namely: (1) That the bill seeks relief against the enforcement of a judgment obtained upon the writ mentioned in paragraph 2 of the bill, because, as the bill alleges, said writ was not served at all, either by summons or by attachment, while the bill itself and the copy of said writ attached thereto show a return by a proper officer of full and regular service of said writ upon the complainant, both by attaching his real estate, and by personal service of a copy of the writ upon, him; (2) that the alleged grounds for relief consist wholly and only of the contradiction of the return of the constable upon a writ which he was competent to serve; (3) that the complainant has an adequate remedy at law against the officer and the surety on his bond; and (4) that the bill does not state a case entitling the complainant to the relief prayed for.

The question raised by the first two grounds of demurrer is whether, under the facts set forth in the bill, the officer's return on the writ in the action in which the judgment sued on was recovered can be contradicted. Or, to state it more generally, the question raised is whether a bill in equity will lie to enjoin an action at law on a judgment which was obtained by the fraud of the officer charged with the service of the writ in the original action. The respondent's counsel contend that the officer's return cannot thus be contradicted, and that such a bill will not lie, and that the cases of Angell v. Bowler, 3 R. I. 77, Estes v. Cooke, 12 R. I. 6, and Barrows v. Rubber Co., 13 R. I. 48, fully sustain them in the position which they take. The cases cited hold that an officer's return is conclusive and cannot be contradicted incidentally by motion or plea; also, that the return is part of the record, and that parol evidence cannot be submitted to contradict the court record; for, so long as it remains, it is conclusive upon the parties, and in order to change it some appropriate proceeding acting directly upon the record must be instituted. It is to be observed, however, that the rule as thus laid down in the cases relied on applies to common-law actions. See Pratt v. Jones, 22 Vt., at page 345; Pettes v. Bank, 17 Vt., at page 444. And hence the question arises whether it is also applicable to suits in equity; for, if so, it is controlling in the case at bar, unless it can be held that this is a proceeding acting directly upon the record in said

original action, which we do not think it is. To state the question more concisely, can a court of equity ever interfere and grant relief by way of permitting the record of a common-law court to be impeached as to the officer's return on the writ, or as to any other part of the record? We think this question must be answered in the affirmative. One of the peculiar provinces of a court of equity is to relieve against willful misrepresentation and fraud. A court of equity is a court of conscience, and whatever, therefore, is unconscionable is odious in its sight. Indeed, it is said by Judge Story, in his Commentaries, that "fraud is even more odious than force." That a judgment obtained in a court of law by a false and fraudulent writ, or by a false and fraudulent return thereon by the officer, is so wholly unconscionable as to shock the inherent sense of justice of all right-thinking | men, no one will deny. And it would be a reproach to our system of jurisprudence if a court of equity could afford no relief against a judgment so obtained. But that equity does afford a full and adequate remedy against such a wrong, and that the case stated in the bill before us is clearly within the jurisdiction of such a court, is fully shown by the authorities, to some of which we will proceed to refer. Perhaps the leading case in this country upon the subject of equitable relief against judgments at law is that of Insurance Co. v. Hodgson, 7 Cranch, 332, 3 L. Ed. 362, in which Chief Justice Marshall specified the grounds for the interference of equity in the following terse language: "Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery." In Bank v. Eldredge, 28 Conn. 563, Storrs, C. J., said: "No principle is better settled, or more frequently acted on, than that a court of equity will interfere to restrain the use of an advantage gained by the proceedings of a judicial tribunal, either of law or equity, irrespective of the inquiry whether those proceedings were regular or not, when they must otherwise make either of those tribunals an instrument of injustice, in all cases where such advantage has been gained by the fraud of the opposite party, or by accident or mistake, without the fault of the party seeking relief against them. In regard to the judgment of a court of law, it does not in such a case reverse that judgment, but, conceding it to be valid, it prevents its being used for an unconscientious or inequitable purpose." In Earle v.

McVeigh, 91 U. S., at page 507, 23 L. Ed. 400, Mr. Justice Clifford said: "Argument to show that no person can be bound by a judgment, or any proceeding conducive thereto, to which he was never a party or privy, is quite unnecessary, as no person can be considered in default with respect to that which it never was incumbent upon him to fulfill. Standard authorities lay down the rule that, in order to give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and the subject-matter; and it is equally clear that the want of jurisdiction is a matter that may always be set up against a judgment when sought to be enforced, or where any benefit is claimed under it, as the want of jurisdiction makes it utterly void and unavailable for any purpose." In Hogg v. Link, 90 Ind. 346, it is held to be well settled that a judgment may be enjoined for fraud in obtaining it, at the suit of the injured party; such a fraud being regarded as perpetrated upon the court as well as upon the injured party. In Dobson v. Pearce, 12 N. Y. 156, it was held that a court of chancery has power to grant relief against judgments obtained by fraud. "Any fact," says the court, "which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an interference by a court of equity." Perhaps no better summary of the law appertaining to the question now under discussion can be given than that which is found in 2 Freem. Judgm. § 495. That part of the section which is pertinent reads as follows: "We shall now consider the circumstances in which a defendant may be relieved from a judgment or decree rendered in an action wherein his failure to defend is not chargeable to the plaintiff. Prominent among the grounds of relief belonging within this class of cases is the one that the court has proceeded to condemn a party without first giving him an opportunity to be heard. A judgment pronounced without service of process, actual or constructive, and without the defendant's knowing that a court has been asked to adjudicate upon his rights, is regarded with such disfavor at law that a variety of motions, writs, and proceedings are there provided to overthrow it; and in many courts it is at all times and upon all occasions liable to be entirely disregarded upon having its jurisdictional infirmity exposed. But proceedings in equity are peculiarly appropriate for the exposure of this infirmity. They permit of the formation of issues upon the question of service or process, and of the trial of those issues after full opportunity has been given to those who seek to sustain as well as to those who seek to avoid the judgment. If at such trial it satisfactorily appears that the de

fendant was not summoned and had no notice of the suit, a sufficient excuse is shown for his neglect to defend; and equity will not allow the judgment, if unjust, to be used against him, no matter what jurisdictional recitals it contains." To the same general effect are the following cases, viz.: Wistar v. McManes, 54 Pa. St., on page 326; Stubbs v. Leavitt, 30 Ala. 352; Duncan v. Gerdine, 59 Miss. 550; Jeffrey v. Fitch, 46 Conn. 601; Insurance Co. v. Waterhouse, 78 Iowa, 674, 43 N. W. 611; Vilas v. Jones, 1 N. Y. 274; Wingate v. Haywood, 40 N. H. 437; Little v. Price, 1 Md. Ch. 182; Lester v. Hoskins, 26 Ark. 63; Martin v. Parsons, 49 Cal. 94; French v. Shotwell, 5 Johns. Ch. 555. See, also, Beach, Inj. §§ 615-631; 1 Spell. Extr. Relief, § 139. Although there is no decision in our own Reports which fully controls the case at bar, yet there are several in which the validity of the doctrine above enunciated is clearly recognized. In Spooner v. Leland, 5 R. I. 348, which was a bill to enjoin an execution in an action at law, this court, while it denied the relief prayed for, on the ground that the answer completely negatived all the allegations of the bill as to the defenses of the complainant in the original action, yet held that, if the party wronged had no notice or knowledge of the judgment obtained against him until after the expiration of the year within which he might have applied for relief on the law side of the court, he would certainly, on the ground of breach of trust and for the prevention of fraud, be entitled to it in equity. In Furbush v. Collingwood, 13 R. I. 720, which was a bill by a judgment creditor for injunction and for revision of the judgment in the matter of costs, it was held that a court of equity has no more jurisdiction to revise and correct the judgments of a court of law in the matter of costs than in the matter of debt or damages, and that in either matter it has jurisdiction only in case of fraud, accident, or mistake, or something of that nature. In delivering the opinion of the court, Durfee, C. J., said: "We apprehend that what is meant by fraud, as a ground for enjoining or setting aside a judgment, is not mere falsity of claim or proof, but fraud outside of them, perpetrated by some artifice or contrivance of the party or person benefited, or by some collusion of both parties, whereby in the course of the trial, or in entering judgment, the injured party or the court has been imposed upon or betrayed into inattention and deceived. Freem. Judgm. §§ 487, 489; High, Inj. §§ 86, 96, 97, and notes; City of Muscatine v. Mississippi & M. R. Co., 1 Dill. 536, Fed. Cas. No. 9,971; Bateman v. Willoe, 1 Schoales & L. 201, 204; Emerson v. Udall, 13 Vt. 477. No such fraud is alleged here." See, also, Linnell v. Battey, 17 R. I. 241, 21 Atl. 606; Rogers v. Rogers, 17 R. I. 623, 24 Atl. 46. The allegations of the bill in the case at bar satisfy

all of the conditions which these cases, in common with the great current of authorities, render essential in order to give jurisdiction to a court of equity, and hence we have no doubt that it is maintainable.

The third ground of demurrer is not well taken. The complainant has no adequate remedy at law. To permit the respondent to prevail in his action on the judgment sued on, and compel the complainant to pay the same, and then resort to an action against the officer who served the writ, involves a circuity and remoteness in attaining redress, and an uncertainty as to the result of such an action, which is quite foreign to the spirit of equity. 1 Black, Judgm. § 377; Ridgeway v. Bank, 11 Humph. 523.

As the fourth ground of demurrer is covered by what we have already said, there is no occasion for us to consider it separately. The demurrer is overruled.

(22 R. I. 283)

NELSON v. BREMAN. (Supreme Court of Rhode Island. Nov. 26, 1900.)

HIGHWAYS-BICYCLES-NEGLIGENCE-HARMLESS ERROR.

1. Where defendant, passing out of a gateway to cross the sidewalk of a traveled highway on a bicycle, rode so close to the gatepost as to be unable to see plaintiff, who was walking on the sidewalk, in time to stop, whereby he injured the plaintiff, the jury was justified in finding him guilty of negligence.

2. Error in admission of testimony favorable to the party complaining thereof is harmless.

Exceptions from court of common pleas, Providence county.

Action by Margaret Nelson against Edwin C. Breman. A verdict was entered for plaintiff, and defendant brings exceptions. Overruled.

Cassius L. Kneeland, for plaintiff. James A. Williams, for defendant.

PER CURIAM. We think it is not too much to say that, as a general rule, when a person riding a bicycle, passing out of a gateway, crosses the sidewalk of a public, traveled highway, it is his duty to avoid a collision with persons passing along the sidewalk, and to stop and dismount for that purpose, if necessary. He may proceed if he sees that the passer-by stops, but if in so doing he uses bad judgment, in attempting to pass in front or behind the person, he is responsible for any damage which may ensue. In this case the defendant was riding so close to the gatepost on his left as to graze his hand against it, and to be unable to see the plaintiff, who was walking along the sidewalk, in time to stop. The jury was therefore justified in finding him guilty of negli gence.

The only exception presented in the defendant's brief relates to the introduction of expert testimony concerning the proper course

for a bicycle rider to pursue in a hypothetical case. While it may be doubtful whether such expert testimony is proper upon such a question, the answer of the witness was favorable to the defendant, and he was not prejudiced by the ruling of the court.

We do not think the damages assessed by the jury were excessive. Case remanded to the common pleas division for judgment upon the verdict.

(2 Pen. 477)

PLEASANTON v. SIMMONS et al. (Superior Court of Delaware. Kent. April 26, 1900.)

LAND-ACTS OF OWNERSHIP-EVIDENCE-TAX RECEIPTS UNRECEIPTED BILLS DECEDENTS-DECLARATIONS IN INTEREST.

1. Where plaintiff in ejectment claimed title from intestate under an administrator's deed made by order of court, intestate's declarations that she owned the property were inadmissible to prove her title, though plaintiff claimed through her as purchaser, and not as heir.

2. Plaintiff in ejectment claimed that the common source of title deeded the premises to intestate, his predecessor. Intestate's son testified that she purchased lumber from P. in 1879 or 1880; that he hauled the lumber to intestate's premises, and that it was used in the house; that intestate purchased no other lumber from P. Witness could not identify certain bills rendered by P. as covering the particular lumber, because unable to read. P. testified that the bills were for lumber sold intestate in 1879 or 1880; that he could not say it was delivered at the premises in question; and that he thought intestate paid for the lumber herself. Held, that the bills were inadmissible to show acts of ownership by intestate because secondary evidence, the primary evidence being testimony of intestate's son, after hearing the items of the bill, that it was for the lumber which he delivered.

3. Where plaintiff in ejectment claimed that the common source of title deeded the premises to intestate, his predecessor, unreceipted bills for lumber claimed to have been used by intestate on the premises were inadmissible to prove acts of ownership by her, since, being unreceipted, they did not show that intestate recognized them as correct.

4. Where plaintiff in ejectment claimed that the common source of title deeded the premises to intestate, his predecessor, papers purporting to be tax receipts on the property, and found among intestate's effects, were inadmissible to prove acts of ownership by her without proof that they were genuine.

Ejectment by Edward C. Pleasanton against James H. Simmons and another. Verdict for defendants.

Argued before SPRUANCE, GRUBB, and BOYCE, JJ.

Arley B. Magee and Henry Ridgely, Jr., for plaintiff. George M. Jones and Edward Ridgely, for defendants.

At the trial, Sarah A. King, a witness for the plaintiff, was asked the following question: "Q. Have you heard your mother, Mary A. Simmons, now deceased, make any statement regarding the ownership of the house and lot in question since 1867?" The question was objected to by counsel for de

fendants on the ground that, while the plaintiff could prove any declaration made against interest, yet, where the party claimed through the deceased, he could not prove declarations made by the deceased in her own favor. Counsel for plaintiff replied that the plaintiff in this case was the purchaser at the sale of land by order of the orphans' court for the payment of debts; that he had a deed of the administrator; and that, while he unquestionably claimed through her, at the same time the statements sought to be introduced were not statements that could be said to be in ner interest in the present suit, because the plaintiff claimed, not as an heir, but as a purchaser; that declarations of deceased occupiers are admissible, the jury being the judges as to the credibility of such testimony.

SPRUANCE, J. The plaintiff claims title under Mary A. Simmons, by virtue of a deed from her administrator, made by order of the orphans' court in proceedings for the sale of her real estate for the payment of her debts. The plaintiff cannot put in evidence declarations by Mary A. Simmons in support of her title. The objection is sustained.

The plaintiff excepted.

The plaintiff having proved by the witness James Simmons, son of Mary A. Simmons, deceased, that about the year 1879 or 1880 the said Mary A. Simmons bought certain lumber from Hazel & Pennewill, of Dover, which witness hauled to the town of Little Creek for said deceased, and which was used in and about repairing said property, and that the said Mary A. Simmons purchased no other lumber from Hazel & Pennewill excepting the lumber that he hauled, the witness was then handed certain bills rendered by Hazel & Pennewill to Mary A. Simmons for lumber for the year 1879, and asked if he could identify them as covering the lumber referred to in his testimony. The witness Caleb S. replied that he could not read. Pennewill, a member of the firm of Hazel & Pennewill, was then called to the stand, and testified that the bills in question were for lumber furnished to Mary A. Simmons by the firm of Hazel & Pennewill in the years 1879 and 1880; that he made out the bills, they being in his handwriting, and that, so far as he knew, the books showed that the bills were paid by Mary A. Simmons, or, rather, that they did not show that they were paid by any one else; that, in the due course of business, the bills were, so far as the witness knew, sent to Mary A. Simmons; that he did not send them to any one else, to his knowledge; that some of the bills were paid, and some had payments credited on account, but were not paid in full. The counsel for the plaintiff, upon the foregoing proof, offered the said bills in evidence to prove an act of ownership on the part of the deceased. The same were objected to by