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and the insurer is not bound to deliver the policy if premium or the stipulated note is withheld. Either party not in default may compel performance by the other, or treating the refusal as an abandonment, may himself join in the abandonment and so terminate the contract and destroy its existence. Graves v. White, 87 N. Y. 463; New England Iron Co. v. Gilbert El. R. Co., 91 id. 168. If in such a case, the breach on one side is such as to indicate an intent to abandon or repudiate the agreement, the other party may assent and so the contract be dissolved. Hubbell v. Pac. Mut. Life Ins. Co. Opinion by Finch, J. [Decided Oct. 6, 1885.]

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IVE SIDEWALK-CONSTRUCTION NOTICE- QUESTION OF FACT.-The action was brought to recover damages sustained by plaintiff in consequence of falling upon the crosswalk at the intersection of Second avenue with Thirteenth street, in the city of New York. The plaintiff's testimony showed that he fell on the crosswalk at the place in question while passing there about nine o'clock in the evening, and broke his arm. That the crosswalk was composed of three lines of bridge stones; that the plaintiff fell on the southernmost stone of the middle row, which stone was out of position; that a measurement and survey of this place was made by an architect and city surveyor, who describes it as follows: "I made a survey of the place critically. * * * The end stone of the crosswalk is badly out of level; it has a pitch or inclination toward the east; I measured the amount of the pitch; it is eight inches at the south-east corner, and about five inches at the south-west corner;" that the defect had been in that condition for about two years. The defense produced the testimony of a city surveyor, who swore he examined the place by a surveyor's level, by placing it upon the sidewalk and not upon the crosswalk, by which survey he contradicted the statements of the actual measurements made by the survey as introduced by plaintiff. The defendants also introduced the testimony of several police officers, who swore it was their duty to examine and report all defects in streets, etc., of the city; and had frequently seen this place, and did not consider it dangerous, and did not report it. Whereupon the court dismissed the complaint for the reason that the defendant had not been shown to have had notice of the defect. The nonsuit was not granted on the ground that the evidence failed to show that the crosswalk, on which the plaintiff fell, was in a dangerous condition. The trial judge held that the fact of the accident having hap pened and of the crosswalk being in a dangerous condition were not sufficient to render the city liable; that notice of the dangerous condition of the walk and the omission of reasonable care to repair it were essential, and the nonsuit was placed upon the ground that the city had passed an ordinance requiring the policemen on duty to inspect crosswalks; that such inspection had been made, embracing the particular crosswalk in question, and the policemen testified that they observed nothing dangerous and reported nothing to the city. From these facts the learned court drew the conclusions, first, that the city did not have notice of the dangerous condition of the crosswalk, and secondly, that it took all the care corporations could take, by instructing its subordinates to ascertain what the facts were and report. We cannot accede to this view of the law. The displacement of the stone on which the plaintiff fell had continued such a length of time that notice of the defect might, on that ground, have been imputed to the defendant; but its subordinates, charged with the duty of inspection, also had actual notice of the defect, and their failure to report cannot shield the city. Neither is their opinion, that

the defect did not render the crosswalk dangerous, any defense against the charge of negligence in not repairing it, if it was in fact dangerous. That was a question to be determined by the jury and not by the opinion of the policemen; and their failure to observe its dangerous condition, if in fact it existed and was apparent, is not a defense to the city. Neither can we accede to the doctrine that the city performs its whole duty in respect to keeping the streets in safe condition for travel, by instructing its subordinates to ascertain the facts and report. (2) Whether a depression of eight inches in one corner of a stone five feet long and two feet wide constitutes such a defect in the walk as to render it unsafe is a question of fact which should be left to the jury. Clemence v. Auburn, 66 N. Y. 334, 342. Goodfellow v. Mayor of New York. Opinion by Rapallo, J.

[Decided Oct. 6, 1885.]

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TRUST RELATION

AGENCY FOLLOWING TRUST FUNDS DEPOSIT IN BANK. Charles A. Wilson & Brother, as agents, opened an account with the defendant on the 28th of October, 1878. They were agents for the plaintiffs and other persons for the sale of consigned goods, having no interest except commissions. On the 23d of January, 1879, the defendant credited itself with $1,000 of this money deposited in the firm name as 66 agents," on an old indebtedness of C. A. Wilson & Bro. personally. On the 4th of February, 1879, Charles A. Wilson & Bro., agents, gave plaintiffs a check for their balance, $607.45, which defendant refused to pay. Aside from the notice implied by the fact that C. A. W. & Bro. deposited these moneys as agents, the testimony shows that they had no ownership in the bank account. The relation between a commission agent for the sale of goods and his principal is fiduciary. The title to the goods, until sold, remains in the principal, and when sold, the proceeds, whether in the form of money, or notes, or other securities, belong to him, subject to the lien of the commission agent for advances and other charges. The agent holds both the goods and proceeds upon an implied trust to dispose of the goods according to the directions of the principal, and to account for and pay over to him proceeds from sales. The relation between the parties in respect to the proceeds of sales is not that of debtor and creditor simply. The money and securities are specifically the property of the principal, and he may follow and reclaim them, so long as the identity is not lost, subject to the rights of a bona fide purchaser for value. In case of the bankruptcy of the agent, neither the goods nor their proceeds would pass to his assignees in bankruptcy for general administration, but would be subject to the paramount claim of the principal. Those principles seem to be well established. Chesterfield Manfg. Co. v. Dehon, 5 Pick. 7; Merrill v. Bank of Norfolk, 19 id. 32; Thompson v. Perkins, 3 Mason, 232; Knatchbull v. Hallett, L. R., 13 Ch. Div. 696; Duguid v. Edwards, 50 Barb. 290; Story Agency, § 229. The relation between the principal and consignees for sale is however subject to modification by express agreement implied from the course of business or dealing between them. The parties may so deal, that the consignee becomes a mere debtor to the consignor for the proceeds of sales, having the right to appropriate the specific proceeds to his own use. In the present

case there is no reason to contend that the bank account, against which the check was drawn, did not represent trust moneys belonging to the principals, for whom Wilson & Bro. were agents. The deposits to the credit of this account were made in the name of the person, with the word "agents" added. They were the proceeds of commission sales. Wilson & Bro. became insolvent in October, 1878, and they

opened the account in this form for the purpose of protecting their principals, which purpose was known to the bank at the time. The check in question was drawn on this account in settlement for a balance due to plaintiffs upon cash sales made by the drawers as their agents. It is clear upon the facts that the fund represented by the deposit account was a trust fund, and that the bank had no right to charge against it the individual debt of Wilson & Bro. The bank having notice of the character of the fund, could not appropriate it to the debt of Wilson & Bro., even with their consent, to the prejudice of the cestui que trusts. The supposed difficulty in maintaining the action, arising out of the fact that money deposited was not the specific proceeds of the plaintiffs' goods, is answered by the case of Van Alen v. Am. Nat. Bank, 52 N. Y. 1. Conceding that Wilson & Bro. used the specific proceeds for their own purposes, and their identity was lost; yet when they made up the amounts so used, and deposited them in the trust accounts, the amounts so deposited were impressed with the trust in favor of the principals, and became substituted for the original proceeds and subject to the same equities. The objection that the deposit account represented not only the proceeds of the plaintiffs' goods, but also the proceeds of goods of other persons, and that the other parties interested are not before the court, and must be brought in, in order to have a complete determination of the controversy, is not well taken. Baker v. New York Nat. Ex. Bank. Opinion by Andrews, J. [Decided Oct. 6, 1885.]

CARE OF

MUNICIPAL CORPORATION-NEGLIGENCE STREETS.-That the plaintiff was injured and that the injury was occasioned by a cause over which the defendant had control and power of prevention are two facts about which there is no dispute. The only question is whether it was within the duty of the defendant, as well as within its power, to act in relation to the matter. It was organized as a village in 1873, under the "act for the incorporation of villages." Laws of 1870, ch. 291. The injury was sustained by the plaintiff in December, 1877, while passing through one of its streets, by stumbling over a hatchway projecting into and above the sidewalk. It was in that condition when the village was incorporated, and the only affirmative answer by the defendant to the plaintiff's claim for compensation was "that the injuries complained of were caused" by his own neglect and fault. But this has been found the other way by the referee, and his conclusion, sustained as it is by the Supreme Court, and not without evidence to warrant it, is conclusive here. So are his findings that by the obstruction the way was made dangerous, that the trustees of the defendant had knowledge of it and its condition from the very time of its inception, and were guilty of negligence in not removing or compelling its owner to remove it. The point made by the learned counsel for the appellant is that although it had power to do either it was not bound to exercise it. In this respect however we think its duty was not less than its power. Indeed it has been so uniformly and frequently held by the courts of this State that a municipal corporation, having power to maintain and control streets, was bound to exercise ordinary and reasonable care and diligence to see that they were kept in a reasonably safe condition for public travel, that a general rule to that effect may now be considered as established, and to be applicable, whether the act or omission complained of and causing the injury was that of the municipal authorities or some third party. Conrad v. Ithaca, 16 N. Y. 158; Weet v. Brockport, id. 161; Saulsbury v. Ithaca, 94 id. 27; S. C., 46 Am. Rep. 122. The principle applies here unless, as the appellant claims, the power of the trustees was "limited to making ordinances and by-laws, under which nuisances

might be abated." It does not seem to be. They might make both, but the omission to do so in no way relieves the village from the duty of caring for and repairing its streets. This was assumed by the very act of organizing as a village under the statute referred to; and for its neglect, to the plaintiff's injury, the action has been properly maintained. Nelson v. Village of Canisteo. Opinion by Danforth, J. [Decided Oct. 6, 1885.]

MAINE SUPREME JUDICIAL COURT ABSTRACT.*

MARRIAGE-DIVORCE-AGREEMENT AS TO ALIMONY -DOES NOT CEASE ON HUSBAND'S DEATH.-While a libel for divorce by the husband was pending, the parties agreed in writing that in case a divorce should be decreed on that libel, two referees were named, who should determine what the wife should receive from the husband, in what way and manner, how it should be secured to her, and that the report of the referees should be made a part of the agreement of the court, be binding on the parties and enforced as such. The wife then brought a cross-libel. The court entered a divorce in each case at the same time, and in the proceedings on the husband's libel, ordered that alimony be paid to the wife in accordance with the award of the referees. Held, that the judgment of the court was valid. Snow v. Gould, 74 Me. 540; Carter v. Carter, 109 Mass. 309; Henderson v. Henderson, 64 Me. 419; Fletcher v. Holmes, 25 Ind. 458; Hunt v. Hunt, 72 N. Y. 217; S. C., 28 Am. Rep. 129. The facts in this case clearly distinguish it from those in which it is held that alimony can be granted only upon a bill in favor of the wife, as in Stilphen v. Stilphen, 58 Me. 515; S. C., 4 Am Rep. 305; Stilphen v. Houdlette,60 Me. 447; and Henderson v. Henderson, 64 id. 419. In those cases the court was called upon to decide as to the strict legal rights of the parties, and where there had been no waiver or agreement, as in the case at bar. But assuming that the decree was irregular, it was at most but error, and the husband being in court and represented by counsel might have excepted, and not having excepted he may be considered as having waived the error or irregularity. Conway Ins. Co. v. Sewell, 54 Me. 357; Prescott v. Prescott, 59 id. 153. Furthermore whenever from the record a want of jurisdiction is not apparent, and a judgment remains unreversed, it is conclusive upon the parties and those in privity with them whenever any question arises in reference to it before any judicial tribunal. And "where a want of jurisdiction actually exists in a domestic tribunal of the general jurisdiction," says Whitman, C. J., in Granger v. Clark, 22 Me. 130, "and is not apparent upon the record, there must be some appropriate mode of ascertaining it. This mode is by writ of error. Aud until such appropriate mode has been resorted to, and has proved effectual, the judgment must be considered as conclusive, and importing absolute verity." (2) The court in adopting the award of the referees as a part of the decree, gave alimony to the wife "during her natural life." That the court has the power so to do, where it may be granted at all, seems to be very strongly implied by the terms of the statute which provide that the court may order so much of the husband's real estate, or the rents and profits thereof, as is necessary, to be assigned and set out to the wife for life. Moreover where the language of the decree expressly states that it is to continue after the death of the husband, the authorities hold that it will so continue. Miller v. Miller,64 Me. 489; Bishop Mar. and Div., § 601. In Burr v. Burr, 10 Paige,

*To appear in 77 Maine Reports.

20, in the chancellor's court, and afterward affirmed in the Court of Errors, 7 Hill, 207, it was held that alimony could be decreed to continue after the husband's death, during the entire life of the wife. And in Carson v. Murray, 3 Paige, 483, the husband and wife agreed to separate, and in the agreement was a provision for the payment of an annuity of $175 to the wife yearly, as alimony during her life, and the court held that it did not cease at the death of the husband. The Supreme Court of Iowa in O'Hagan v. O'Hagan, 4 Iowa, 509, say: "In decreeing her sums of money in the first instance, or in making the proper and equitable order in relation to this property and her maintenance, the decree may provide for the payment thereof from year to year for a specific period, or may provide even that it shall continue during her life." The authorities cited by the defendant's counsel do not support the position claimed by him. Where examined they will be found to relate to cases wherein the court did not in express terms provide for the payment of alimony during the life of the wife. Thus in the case of Lennahan v. O'Keefe, 107 Ill. 620, the court, referring to O'Hagan v. O'Hagan, supra, hold that in the absence of language in the decree showing an intention to bind the heir of the husband after his death, the allowance of alimony will terminate with the life of the husband. In Knapp v. Knapp, 134 Mass. 353, there was no provision in the decree that the alimony should continue during the life of the wife; the decree was for alimony, with no words expressive of any intention for its continuance beyond the life of the husband. But in the decree in the case before us, even adopting the language of the award, there is no sufficient designation of real estate upon which any lien for alimony can attach. The estate is not set out or described in terms that give sufficient identification. Hills v. Hills, 76 Me. 486. Stratton v. Stratton. Opinion by Foster, J.

[Decided June 3, 1885.]

INNKEEPER-JEWELRY OF GUEST-REV. STAT., CH. 27, § 7.-In section 7 of chapter 27, Revised Statutes, limiting the liability of an innholder for losses sustained by his guest, there are specified the following exceptions: "Wearing apparel, articles worn or carried upon the person, to a reasonable amount, personal baggage and money necessary for travelling ex penses and personal use." The plaintiff lost from her trunk at the defendant's inn, among other articles, the

following: One gold watch, valued at $50, one pair of gold bracelets, valued at $65, one gold thimble, valued at $8, one gold ring, valued at $20, one gold ring, valued at $5, one hair ring (gold mounted), valued at $8, and one gold neck pin, valued at $2. The only question is, whether the articles enumerated are within the exception in the statute. From the case it seems that all these articles were taken along by the plaintiff for her personal use, and for no other purpose. They were not merchandise, nor business articles. They were not taken along simply for transportation of them. They were such articles as she might properly use daily while travelling, or resting. The amount does not appear to be unreasonable in view of the plaintiff's situation. Such articles, we think, are within the exception. Macrow v. Great Western R. Co., L. R., 6 Q. B. 622; Bruty v. Grand Trunk R. Co., 32 Upper Canada, Q. B.,66, and cases there cited. Noble v. Milliken. Opinion by Emery, J.

[Decided June 3, 1885.]

WATER AND WATER-COURSE-RIPARIAN OWNERSINJUNCTION.-The unlawful diversion of the water of a stream is a nuisance, for which one thereby injured may maintain an action at law. And in some cases such invasion of one's right may be restrained by an

sons.

injunction issued by a court of equity. But as a general rule, a remedy by injunction is obtainable only when the right is clear, and the invasion of it, actual or threatened, is such as will result in permanent or irreparable injury. In all other cases the injured party must be content with such redress as is afforded by an action at law. The wrong complained of in this case is that the defendants had, within ten days, commenced to use, and were continuing to use, and threatening to use in the future, more water than they were lawfully entitled to; thereby depriving the plaintiffs of sufficient water to run their mill, and obliging them to shut down portions of it, and thus throwing out of employment some two hundred perThe injury claimed to have been thus received is considerable. But it does not appear to be of that permanent or irreparable character necessary to justify or require the interposition of a court of equity by way of injunction. It is not like the building of a dam or the digging of a ditch, by which the water would be permanently diverted from the plaintiffs' mill. It seems to be no more than a temporary invasion of the plaintiffs' right, and not likely to be continued, unless the defendants claim that they are entitled to the amount of water thus taken from the plaintiffs, in which case the right should be tried and determined in an action at law before application is made for an injunction. Denison Man. Co. v. Robinson Man. Co., 74 Me. 116; Jordan v. Woodward, 38 id. 423. And there is another difficulty in this case. The defendants are not joint owners or occupants of the mills on the westerly side of the river; and for aught that appears in the bill, the wrong complained of may have been committed wholly by the owners or occupants of only one of these mills, the owners or occupants of the other mills being entirely innocent of using or threatening to use more water than they are lawfully entitled to. And yet the court has no means of distinguishing between the innocent and the guilty. The bill charges that all the defendants, in the aggregate, are using more than half the water in the river. But it does not charge that each one of them is using more than he is entitled to. The effect of such an averment is to make it certain that some one of the defendants is guilty of using more than his share of the water, but not that each and every one of them is. Consequently if the court should grant the injunction prayed for, it is by no means certain that innocent parties might not be enjoined, and be required to pay a portion of the costs of the suit. Surely the court ought not to be required to take such a risk as that. In this particular it is the opinion of the court that the bill is too indefinite or general in its averments to found a decree for an injunction upon. Westbrook Manuf. Co. v. Warren. Opinion by Walton, J. [Decided Aug. 6, 1885.]

WILL-DEVISE-ABSOLUTE FEE.-A testator devised

* *

a portion of his estate as follows: "I give and devise to my wife * all the rest and residue of my real estate; but on her decease, the remainder thereof I give and devise to my said children. ***" Held, that this is a real action, and the only question is whether John Mitchell, by his last will and testament, gave his wife a fee-simple estate in the demanded premises, or only an estate for life. It is the opinion of the court that he gave her a fee-simple estate. A devise of real estate without words of limitation vests in the devisee an estate in fee-simple; and this result is not defeated by a devise over of the remainder. If a life estate only is given, a devise over of the remainder is good. But when by the terms of the devise an estate in fee-simple is given, the addition of a devise over of the remainder is void, because the whole estate having already been disposed of, there is noth

ing for it to act upon. The argument usually urged against this conclusion is that the devise over ought to be allowed to cut down or reduce the estate previously given to a life estate, upon the ground that such must have been the intention of the devisor. And in a few cases this argument has prevailed. But in a large majority of the cases, both in England and in this country, it is held that a mere devise over of a remainder will not cut down the estate given to the first taker. Jones v. Bacon, 68 Me. 34; S. C., 28 Am. Rep. 1; Stuart v. Walker, 72 Me. 145; S. C., 39 Am. Rep. 311. In this case, the testator first gives a few small legacies to his children. He then gives the residue of his personal property to his wife. He then declares that if the personal property is not sufficient to pay the legacies and the expenses of the last sickness, enough of his real estate may be sold to supply the deficiency. He then adds this clause: "I give and devise to my wife, Sarah F. T. Mitchell, all the rest and residue of my real estate. But on her decease, the remainder thereof I give and devise to my said children, or their heirs respectively, to be divided in equal shares between them." It will be noticed that in this devise there are no words of limitation. The gift is direct, positive and absolute. And but for the devise over of a remainder, no one would doubt that under our statute, Rev. Stat., ch. 74, § 16, the terms used are sufficient to convey an estate in fee-simple. The devise over is also direct and simple. It has no qualifying words or conditions whatever annexed to it. We thus have, first, a devise of a fee-simple estate, and then a devise over of the remainder. The two cannot co-exist. It is settled law in this State, as will be seen by the cases cited, that the latter must yield. The question is res judicata in this State, and will not be further discussed here. Mitchell v. Morse. Opinion by Walton, J. [Decided Aug. 6, 1885.]

CORPORATION-SUBSCRIPTION TO STOCK.-A person by simply subscribing for shares in a corporation without words of promise to pay, assumes only the obligations imposed by law on such subscriber. He is understood to have agreed to assume a certain percentage of the responsibility of the enterprise, on condition that the amount of the responsibility be made certain, and the remaining percentage be assumed by responsible parties. He can require that the full amount of capital agreed upon, or established by the charter as necessary for success, shall be engaged before he pays in his part. He is only obliged to pay legal assessments, and where the capital has not been fixed, or when fixed, has not been subscribed for, there can be no legal assessment, unless the charter otherwise provide. Som. & Ken. R. Co. v. Cushing, 45 Me. 524; Somerset R. Co. v. Clarke, 61 id. 379. But a person may, in his subscription, voluntarily assume any other obligations not forbidden by law. He may waive any and all of the conditions implied by law in a naked subscription. He may impose other conditions, or he may promise payment for his shares without any conditions. His promise once made, will be binding, there being in such cases sufficient consideration in the obligation of the company to deliver the shares. Ken. & Port. R. Co. v. Jarvis, 34 Me. 360; Bucksport & Bangor R. Co. v. Buck, 65 id. 536; City Hotel v. Dickinson, 6 Gray, 586; Lexington & West Cambridge R. Co. v. Chandler, 13 Metc. 311; Pen. and Ken. R. Co. v. Bartlett, 12 Gray, 244; Boston, Barre & Gardner R. Co. v. Wellington, 113 Mass. 79. In such cases the express promise is to be enforced by an action thereon, and not by an action on a promise implied by law only. Skowhegan, etc., R. Co. v. Kinsman. Opinion by Emery, J.

[Decided June 4, 1885.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

LANDLORD AND TENANT-SUB-LESSEES--BANKRUPTCY. --Haley, in 1871, executed a lease for ten years of a building in Boston to Tappan. Tappan was general agent and treasurer of the Boston Belting Company, with authority to hire buildings for it. Tappan took the lease with the intention that the building should be used by the belting company, and his agency and purpose were known to the lessor. The plaintiff seeks, in this bill, to charge the belting company on the covenants of the lease, on the ground that it was the real or beneficial lessee, under obligation, which can be enforced, either at law or in equity, to perform the covenants of the leaseThe belting company clearly is not liable at law. The lease is under seal, and the company is not named or referred to in it. Seaver v. Coburn, 10 Cush. 324; Barlow v. Congregational Society in Lee, 8 Allen, 460; Schaefer v. Henkel, 75 N. Y. 378. It is not shown that the company did business in the name of Tappan, and used that name as describing itself in the lease. The plaintiff argues that the lease was procured by the company and taken for its benefit, and that the company entered under it, and that it is therefore bound by its provisions either as having authorized its execution in the name of Tappan, or by force of a resulting or constructive trust in Tappan. Wright v. Pitt, L. R., 12 Eq. 408; Van Schaick v. Third Avenue R. Co., 38 N. Y. 346; Lees v. Nuttall, 1 Russ. & M. 53. Tappan's authority was to hire and pay for all necessary stores and warehouses. He had no special authority or duty in regard to the leased premises, and there was no act of the company, respecting the lease, except so far as his acts were those of the company. That he took a lease to himself with the intention that the company should occupy the premises shows that he intended that it should occupy under him, and not as the lessee in the lease. There is no evidence that when the lease was executed, either party, the lessor, the lessee, or the belting company, understood that the company were to occupy as the lessee under the lease. On the contrary, the inference is that the lease was made to Tappan, in order that the company might occupy under him and not as lessee. There is no evidence that the company entered as lessees or occupied otherwise than under Tappan. Certainly there is nothing in the subsequent conduct of the parties which can control the terms of the lease, or show that the company is bound by the covenants. As Tappan became a bankrupt and his assignees elected not to assume the lease, the rent due from the sub-lessees at the time of the bankruptcy belongs to the assignees. That which has accrued subsequently can be reached in equity by the lessor, Tappan, his assignees in bankruptcy, and his executors being proper parties, and the plaintiff is entitled to a decree that it be paid to him. 1 Story Eq. Jur., § 687; 1 Fonb. Eq., Bk. 1, ch. 5, § 5, and ch. 3, § 3; Goddard v. Keate, 1 Vern. 87. Haley v. Boston Belting Co. Opinion by W. Allen, J. [Decided Sept. 3, 1885.]

VESTED OR CONTINGENT.

WILL REMAINDER The testator in his will provided as follows: "At the decease of my wife all my estate, real and personal, shall go to and be equally divided among my children, the issue of a deceased child standing in the place of the parent." In an action for the construction of the will as to the estate which the children took, held, that it came within the general rule that a vested remainder will be held to have been intended in the case of a devise to the testator's children unless there is something sufficient to show the contrary, and that the children took vested interests. While the

meaning of the testator is certainly open to some doubt, which has been shown with much ingenuity and force in the argument, we are of the opinion on the whole, that the case falls within the general rule, that a vested remainder will be held to have been intended, in the case of a devise to the testator's children, unless there is something sufficient to show the contrary. There are no words of contingency as to the children who shall take. The devise is general to the testator's children, the issue of a deceased child standing in the place of the parent. The will does not say that the estate shall go to his children then surviving, or make any provision that the interest of any one of them shall cease in case of his or her death. In the clause, the meaning of which is immediately under consideration, the testator does not even insert the word "then," that is, "the estate shall then go to and be equally divided among my children." In all the cases referred to in the argument, where stress was laid upon such a use of the word "then" as showing that the remainder was to be held contingent rather than vested, it was accompanied with words of survivorship. Olney v. Hull, 21 Pick. 311; Thomson v. Ludington, 104 Mass. 193; Smith v. Rice, 130 id. 441. The argument from the use of the word "then" in an earlier clause in the will does not materially aid in the consideration of the meaning of the clause immediately to be determined, and it is certainly open to much doubt whether the earlier clause would not bear the same meaning if the word "then were omitted. Denny v. Kettell, 135 Mass. 138. The present case falls within the rules favoring vested remainders, as declared in Blanchard v. Blanchard, 1 Allen, 223, and Abbott v. Bradstreet, 3 id. 587. It is further contended that inasmuch as the gift in the will embraces personal as well as real estate, it ought more readily to be inferred that the testator intended that his children should take only a contingent interest, and some of the earlier Massachusetts cases countenance this view. Dingley v. Dingley, 5 Mass. 535; Denny v. Allen, 1 Pick. 147; Emerson v. Cutler, 14 id. 115; Rich v. Waters, 22 id. 563. In later cases however the above decisions have been overruled or questioned. Wight v. Shaw, 5 Cush. 56, 60, 61; Abbott v. Bradstreet, 3 Allen, 587, 590; Bowditch v. Andrew, 8 id. 339, 342, 343. Gibbens v. Gibbens. Opinion by C. Allen, J. [Decided Sept. 12, 1885.]

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LICENSE -NOTICE OF APPLICATION TO RUN ONE ENGINE OF GIVEN POWER.-The object in giving notice of an application for a license is, that persons interested may have an opportunity to be heard thereon. The plaintiff, in the present case, had actual notice and attended the hearing, and by making no objection to the insufficiency of the notice he waived longer notice to himself. Under these circumstances it is nothing to him whether other persons had due notice or not. He cannot be heard to object that they did not. Hingham & Quincy Bridge, etc., v. Norfolk Co., 6 Allen, 353, 357. The present defendants may avail themselves of the license given to their predecessors in title. The license is not to be regarded as a personal trust, like a license to sell liquors or to keep an inn. Commonwealth v. Hadley, 11 Metc. 71. Looking at all the provisions of the statute, it appears rather, that whatever authority is conferred by the license passes with the property. A license to set up and run a stationary steam engine, not exceeding 250 horse power, will not authorize the use of three such engines, which together do not exceed that amount of power. If a license for three engines was desired it should have been asked for and obtained, if the mayor and aldermen see fit to grant it. They constituted the proper tribunai to determine, in the first instance at least, how many engines might be used in a par

ticular place. We think it is better, in this particular, to adhere to the letter of the statutes and to hold that a license to set up and run a single stationary steam engine does not, by a fair implication, carry with it authority to set up and run a greater number, though of no greater power. Quin v. Middlesex, etc. Opinion by C. Allen, J. [Decided Sept. 4, 1885.]

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INNKEEPER-SUIT FOR ACCOMMODATION AND BOARD - GUEST'S CLOTHING STOLEN RECOUPMENT. - In an action by an innkeeper against a guest to recover for board and accommodation, the defendant may recoup his damages for the value of clothing stolen from his room. It appeared that before the theft, the following printed regulation was posted in the rooms of the inn: "Lock the door when going out and leave the key at the office; " defendant knew of the regulation, and on the occasion when his clothing was stolen, failed to leave his key at the office. The court ruled as matter of law, that defendant having failed to leave his key at the office on the occasion in question, was not entitled to recoup the value of the clothing stolen. Held erroneous; that in the absence of any express contract, an innholder is relieved from liability for loss, only when, in the words of the statute, such loss is attributable to the non-compliance with the regulation. At common law innholders, like common carriers, are regarded as insurers of the property committed to their care, and are liable for any loss not caused by the act of God, or of a public enemy, or by the neglect or fault of the guest. Mason V. Thompson, 9 Pick. 280; Berkshire Woolen Co. v. Proctor, 7 Cush. 417. Our statutes have in some respects limited this extreme liability. Pub. Stat., ch. 102, §§ 12-16. The statute exonerates an innholder from his common-law liability for a loss sustained by a guest, who has knowingly failed to comply with a reasonable regulation of the inn, if the loss is attributable to such non-compliance. The ruling of the Superior Court went further and held that an innholder is exonerated by the fact of non-compliance, without any inquiry into the question whether the loss was attributable to the non-compliance. The law will not imply a contract against the guest more extensive than the terms of the statute, and in a case like the one before us, in the absence of any express contract, an innholder is relieved from liability for loss, only when, in the words of the statute, such loss is attributable to the non-compliance with the regulations of the inn. Burbank v. Chapin. Opinion by Morten, C. J.

[Decided Sept. 21, 1885.]

RHODE ISLAND SUPREME COURT

ABSTRACT.*

FRAUDULENT CONVEYANCES-ADMINISTRATOR CANNOT BRING ACTION TO SET ASIDE.-The complainant is administrator de bonis non with will annexed of George Howland, deceased. The testator died, owing or liable for considerable sums, leaving personal assets which, as inventoried and appraised, amounted to only $62.97, and after having conveyed away all his real estate. The complainant brings this suit in his representative capacity to set aside certain conveyances of real estate made by the intestate shortly before his death, on the ground that the conveyances were fraudulent and void as against his creditors, and that the estates conveyed are needed for the payment of his debts. The first question is whether such a suit can be maintained by an administrator. It is per*To appear in 15 Rhode Island Reports.

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