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real estate within the year next preceding the time of voting in order to be able to vote on a tax proposition, and it will be presumed such jurors had the qualifications required by Const. art. 2, § 1.

Isaac N. Rife and Jennie Avant were separately indicted for a criminal offense, and to each indictment defendant interposed a plea in abatement. The attorney general demurred to such pleas, and the cases were certified on the demurrers to the supreme court. Demurrers sustained.

Willard V. Tanner, Asst. Atty. Gen., for the State. Charles Acton Ives, for defendants.

PER CURIAM. The defendants' pleas in abatement in each of these cases respectively are clearly bad for uncertainty. In the firstnamed case the pleas set out that the indictment should be quashed because two of the grand jurors, naming them, who participated in the finding of the indictment, and who were drawn from the city of Newport, had not at any time within the year next preceding the time of their service as grand jurors paid any tax upon their property respectively in said city, and therefore were not qualified to vote upon any proposition to impose a tax or for the expenditure of money in said city, and hence were not qualified to serve upon the grand jury. But said pleas do not allege that the jurors were not possessed in their own right respectively of real estate in said city to an amount sufficient to qualify them to vote under article 2, § 1, of the constitution of this state.1 See In re Voting Laws, 12 R. I. 586. If they were, and also possessed the other necessary qualifications under said provision (and, in the absence of any allegation to the contrary, it is to be presumed that they did), they were each qualified to vote upon any proposition to impose a tax or for the expenditure of money in said city, whether they had paid a tax within one year or not, the payment of a tax on real estate within the year next preceding the time of voting not being a condition precedent to the exercise of such right, as is the case with regard to the payment of a tax on personal property. In re Canvassers' Powers, 17 R. I. 809, 21 Atl. 910. For aught that appears in said pleas, therefore, the jurors named therein might have been qualified to vote upon any proposition to impose a tax or for the

1 Const. art. 2, § 1, provides in substance as follows: Every male citizen of any town or city who is possessed in his own right of real estate therein of the value of $134, or which shall rent for $7 per annum, etc., and who has resided therein six months and in the state one year, shall have a right to vote for civil officers, and on all questions in all legal town or ward meetings.

Const. Amend. art. 7, contains a proviso that "no person shall at any time be allowed to vote in the election of the city council of any city, or upon any proposition to impose a tax, or for the expenditure of money in any town or city, unless he shall, within the year next preceding have paid a tax assessed upon his property therein valued at least at $134"

expenditure of money in said city, and, if so, and if they were over 25 years of age, as now required by the judiciary act (chapter 7, § 1), they were also qualified to serve as grand jurors. State v. Duggan, 15 R. I. 412, 6 Atl. 597. And as the pleas fail to negative the possibility thus suggested, they do not comply with the strict rule of law applicable to pleas in abatement, namely, that they must not only answer fully what is necessary to be answered, but must also anticipate and exclude all such supposable matter as would, if alleged on the opposite side, defeat the same. State v. Duggan, supra; Capwell v. Sipe, 17 R. I. 475, 23 Atl. 14; 1 Chit. Pl. *473.

The pleas in the second case being precisely similar to those in the one already considered, and the jurors objected to therein being the same as those objected to in the firstnamed case, there is no occasion for any separate consideration thereof, what we have said applying with equal force to each case. The demurrers of the attorney general to the pleas in each of said cases, respectively, must therefore be sustained. Demurrers sustained.

BURNHAM v. NEW YORK, P. & B. R. CO. (Supreme Court of Rhode Island. March 1, 1894.) INJURY TO EMPLOYE-CONTRIBUTORY NEGLIGENCE -REVERSAL.

In an action against a railroad company to recover for the death of an employé, caused by defendant's negligence, where the theory advanced by his administratrix to show an absence of contributory negligence is supported only by inference from disputed testimony, is contrary to all the probabilities of the case, and is impossible if the uncontradicted testimony is true, a verdict in her favor will be set aside, even though three trials of the cause have so resulted. Tillinghast, J., dissenting. 23 Atl. 638, affirmed.

An action of trespass in the case by Angelina V. Burnham, his widow and administratrix, against the New York, Providence & Boston Railroad Company, for negligence causing the death of George K. Burnham, one of defendant's employés. This was the third trial, all three resulting in verdicts for plaintiff. The first was reversed (23 Atl. 638), as was the second, for the reasons given in the following rescript:

"(Dec. 8, 1892.)

"PER CURIAM. The contention of the plaintiff is that the accident was caused by the employés of the defendant corporation, who, she says, ran the switching engine upon the southward-bound track, directly in front of the Steamboat train, on which the plaintiff's intestate was engineer, at a time when

Judiciary Act, c. 7, § 1, provides as follows: "All persons over twenty-five years of age, who are qualified to vote upon any proposition to impose a tax or for the expenditure of money in any town, shall be liable to serve as jurors, except as is hereinafter provided."

it was too late for the intestate to stop his train before it struck the switcher. The defendant contends that the southward-bound switch was turned, and the signal light changed from green to red, before the Steamboat train came around the curve, and in sight of the signal light. If this is so, the plaintiff's intestate was guilty of negligence in not noticing the red light, or in not heeding it, and the plaintiff cannot maintain her verdict. All the direct testimony in the case upon this point concurs in the statement that when the red signal was first shown the Steamboat train had not come in sight. There is also, we think, a strong preponderance of testimony to the effect that a red light was swung across the track in season to have prevented the collision, if the engineer had seen and heeded it. The probability that the three men on and about the switching engine, all of whom had in mind the approach of the Steamboat train, should have recklessly run their engine upon the south-bound track after the Steamboat train came in sight is much less than that the engineer should have neglected to look for the signal at No. 8. Again, the testimony is uncontradicted that the signal light was turned with the switch before the switcher started to leave the north bound track, and that the switcher had time before the collision to move slowly from one track to the other, and down to the switch leading from the south-bound track to track No. 1. When the switching engine commenced this movement, the Steamboat train must have been far enough off to have stopped in time to prevent the collision. The theory advanced by the plaintiff is only supported by inference from disputed testimony, is contrary to all the probabilities of the case, and is impossible, if the uncontradicted testimony is true. Defendant's petition for new trial granted. Tillinghast, J., dissenting."

George J. West, for plaintiff. Walter B. Vincent, for defendant.

PER CURIAM. We do not see that the testimony in relation to the material points involved in this case is essentially different from that given at the two former trials, the verdicts in which were set aside as against the evidence. Our rescript in exceptions, etc., No. 1770, sets forth clearly the grounds for setting aside the previous verdict, and is equally applicable to the present petition. In addition to what is therein stated, we may say, that in our opinion the evidence shows that, if the plaintiff's intestate had been looking, he could have seen the headlight on the switcher before him in season to have stopped his train before the collision. Defendant's petition for a new trial granted, and case remitted to the common pleas division.

TILLINGHAST, J. (dissenting). I am unable to concur in the foregoing decision. It was competent for the jury to find that it

was negligence on the part of the defendant corporation to place one of its switching engines on the main track, where the accident happened, at the time when the train on which plaintiff's intestate was the engineer was due at that place. This act was in violation of the customs and rules of the road, and there was no exigency which required said customs and rules to be departed from. This wholly unnecessary act not only jeopardized the lives of the engineer and fireman, but of every person on the train as well. But, even admitting that the defendant was not negligent in placing the switcher on the track as aforesaid, yet, having placed it there when the other train was due, it was its plain and imperative duty to give proper signals to the approaching train of the presence of the obstruction, so as to prevent a collision; and whether or not such signals were given is a disputed fact in the case, and hence is a question for the jury to decide. The question regarding the contributory negligence of the deceased was also for the jury. There is proof that he was an experienced, skillful, and careful engineer, well acquainted with the railroad on which the accident happened, and also that he was at his post of duty, looking ahead constantly up to the time when he saw the signal of danger (whether the banjo signal, the lanterns, or the headlight on the switcher in front of him, or all of them together, is evidently in some doubt), and that he then instantly put on the brakes, reversed his engine, and did all that he possibly could to stop his train in time to avoid a collision, but without avail. The imminent danger to his own life, as well as to the lives of the passengers, would certainly prompt him to be on the alert for all danger signals and also to bring his train to a stop in the shortest possible time after discovering them. See Cassidy v. Angell, 12 R. I. 447. The testimony as to the location of the witness Dunn when the Steamboat train came in sight is conflicting and unsatisfactory; and it was for the jury to determine whether he went as far up the track to the north as said banjo signal No. 8, and even further, as he testified, for the purpose of signaling said train, or remained at a point so near to the scene of the accident as to enable him to be present at the latter place immediately after the collision, as testified by some of plaintiff's witnesses. The contention of the defendant, that the Steamboat train was behind time when it reached the place where the accident occurred, is not sustained by the weight of the evidence. And, even if said train had been behind time, that was no excuse for carelessness on the part of the defendant. There is proof that the view of said banjo signal No. 8, even if said signal was showing danger (about which there is a conflict in the testimony), was more or less obstructed on the night of the accident by lines of freight cars that were standing on the siding opposite thereto, and that it

could not have been seen by the deceased for any considerable distance before arriving at the point where it was located. And, as there is substantial proof that the brakes were applied just before the engine reached said signal, it was competent for the jury to find that, even though it was showing danger, as contended by the defendant, yet that, by reason of said obstructions, it was of no avail until too late to stop the train in time to avoid the fatal collision. Moreover, this is not a case in which, in my judgment, any court would be justified in directing a verdict for the defendant; there being substantial evidence both of negligence on the part of the defendant, and due care on the part of the plaintiff's intestate. And it has been decided by an uncounted multitude of cases that when this is so the court cannot interfere. In short, the case is one which it is the province of the jury finally to determine, and hence all the court can properly do is to see that it is fairly and properly submitted to them. After three full trials by jury in this case, and three concurring verdicts for the plaintiff, there certainly ought to be very grave reasons shown for granting another trial, before the court again interferes in the matter. In Steadman v. Wilbur, 7 R. I. 481, Chief Justice Ames used the following language: "After two full trials in this court by impartial juries, in which verdicts were rendered for the defendants, we certainly shall not open this case for a new trial without strong proof that justice imperatively demands it." There must be an end of litigation somewhere, and in my judgment the justice of this case demands that it should be ended now, by denying this petition.

KENYON v. SAUNDERS et al. (Supreme Court of Rhode Island. May 22, 1894.)

CONVICT RIGHT TO MAINTAIN ACTIONS-CONTEST OF WIFE'S WILL APPEAL BOND HUSBAND'S RIGHTS IN DECEASED WIFE'S PERSONALTY.

1. Since no conviction or sentence for any offense whatsoever works a forfeiture of estate (Pub. St. c. 248, § 34), a convict may maintain an action and enforce his property rights in the courts.

2. Pub. St. c. 248, § 52, which prohibits a convict from making a will or conveyance of property during his imprisonment, does not prohibit him from giving bond on appeal by him. from a judgment of the probate court affecting his property rights.

3. The changes in the law in regard to the property of married women have not made the husband's rights in the personal estate of his deceased wife dependent on the fact of his administration; Pub. St. c. 184, § 7, providing that he shall be entitled to administer, in case of her intestacy, and that he shall not be compelled to distribute the personal estate among the next of kin, but shall "have" and "retain" the surplus thereof for his own use, after payment of her debts.

4. Pub. Laws 1844, p. 270, exempted the property of a married woman from liability for her husband's debts. Gen. St. 1872, c. 152, § 1, secures it absolutely to her sole and separate

use. Held, that the husband is not deprived of his common-law right to his wife's personalty when she dies intestate.

5. A convict has an interest in the intestate personalty of his deceased wife, though he cannot administer it, which entitles him to contest the validity of her will.

Proceedings to probate the alleged will of Susan C. Kenyon, deceased. From a judgment admitting the will to probate, George N. Kenyon appealed to 'the court of common pleas. There was a judgment granting a motion of William G. Saunders and others, executors, to dismiss the appeal, and appellant petitions for a new trial. Petition granted.

George T. Brown and Frederick C. Olney, for appellant. Nathan B. Lewis, for appellees.

STINESS, J. Susan C. Kenyon died in August, 1893, leaving a will, from the probate of which her husband, George N. Kenyon, appealed. At the time of taking the appeal he was serving a sentence of 15 years' imprisonment in the state prison for the crime of manslaughter, imposed by this court at the March term, 1893, which sentence is still in force. A motion to dismiss the appeal was granted by the common pleas division on two grounds: First, that said George N. Kenyon was incapacitated, by reason of his sentence and imprisonment, to take the appeal, or to sign and seal the appeal bond required by law; and, second, that said George N. Kenyon is not of capacity to administer upon his wife's personal estate, and hence he cannot take the surplus of her estate after payment of her debts, because, no children having been born of the marriage, he has no title by curtesy in the real estate, and cannot take any of the personal estate if it be found that she died intestate. The two questions thus raised are whether the appellant had the right to take an appeal, and whether he has any interest in her property to entitle him to contest the validity of her will. Undoubtedly, under the common law of England, a person convicted of a felony could not maintain an action. This rule was founded upon the reason that, as the conviction worked a forfeiture of goods to the crown, he had no But under longer any property to sue for. our law (Pub. St. R. I. c. 248, § 34) no conviction or sentence for any offense whatsoever works a forfeiture of estate. The reason for the common-law rule does not here exist, and an enforcement of it might practically work a forfeiture of estate. Indeed, this case is a plain example of the possibility. Here, assuming the appellant's interest in the estate and the invalidity of the will, he is the party to take an appeal, and it must be taken within 40 days from the probate. If it should be held that his conviction deprives him of the right to appeal, then he would thereby also be deprived of the power ever to enforce his right to the property itself.

Notwithstanding the difficulties which may attend cases of this kind, such a rule would be contrary to the spirit of the statute, and unsupported by the reason upon which it was originally based. A convict is neither civilly dead nor deprived of his rights of property; and, if this be so, he should be entitled to enforce such right when it is necessary to do

so.

See Platner v. Sherwood, 6 Johns. Ch. 118; Cannon v. Windsor, 1 Houst. 143; Coal Co. v. Haslett, 83 Ga. 549, 10 S. E. 435; Willingham v. King, 23 Fla. 478, 2 South. 851. The person aggrieved-in this case the husband-is the one who is to claim the appeal, and the statute requires that bond shall then be given to the court of probate to prosecute the appeal or to pay costs. It does not require the appellant to be a party to the bond. But the further question arises in this case, does the fact that the convict is the principal in the bond make it void? If he retains his right of property, it cannot be void upon principle. Does the statute prohibit it? Pub. St. R. I. c. 248, § 52, prohibits a convict from making a will or any conveyance of his property or any part thereof during his imprisonment. The giving of an appeal bond is not, strictly speaking, a conveyance of property; on the contrary, it is an attempt to protect and secure property. Still it may be said that the liability under the bond may amount to a disposition pro tanto. But the same liability for costs would follow in an ordinary action without a bond, and so, if the statute is to be construed to prohibit the incurring of liability under an appeal bond, it prohibits equally the incurring of liability by the bringing of a suit, thereby forbidding the convict to sue, and in this way depriving him of the right to secure that which may be his. We do not think that this is the purpose or scope of the statute, and we decide that the bond is not invalid by reason of its execution by said George N. Kenyon.

The next question is whether the appellant had sufficient interest in the estate of his deceased wife to enable him to claim an appeal. The counsel for the appellees correctly says in his brief: "Under the common law the personal estate of the wife became the husband's, and on her death he could administer on her estate, and retain the surplus after paying her funeral charges; and, if another administered, he held the surplus as trustee for the husband." Hoppiss v. EskHoppiss v. Eskridge, 2 fred. Eq. 54; Whitaker v. Whitaker, 6 Johns. 112; Bryan v. Rooks, 25 Ga. 622; Lee v. Wheeler, 4 Ga. 541; Hoskins v. Miller, 2 Dev. L. 360; Miller v. Miller, 1 J. J. Marsh. 169; Atherton v. McQuesten, 46 N. H. 205. In the statute of 29 Car. II. c. 3, § 25, this right of the husband was declared to be independent of the statute relating to distribution, 22 & 23 Car. II. c. 10, and to extend to the rights, credits, and personal estate of the intestate wife. But it is claimed that under the sweeping changes which have been made in regard to the property of

married women, a husband's rights are so abridged that nothing remains to him but the right to administer, and if he does not administer (as one in prison cannot) he can have no interest at all in the wife's estate, because he cannot reduce it to possession. We do not think this is so. In the first place, there seems to be no adequate reason for making a husband's right depend upon the mere fact of his own administration, since he was entitled to the surplus at common law whether he or another administered. Such a construction would discriminate against an absent, non compos, or disabled husband, whose rights ought to be the same as his who can take administration. Again, the language of our statute (Pub. St. R. I. c. 184, § 7) not only provides that the husband shall be entitled to administration of the personal estate of his wife in case of her intestacy, but also that he shall not be compelled to distribute the same among the next of kin, "but shall have and retain the surplus thereof, after payment of her debts, for his own use." If his right is to depend upon his administration, the word "retain" would be sufficient to cover such right; but the provision that he shall "have" the surplus seems to be of broader significance, and to imply an intention to cover the case of administration by another. The statute is evidently a re-enactment of 29 Car. II., and is declaratory of what is called the "commonlaw rule," which, as we have seen, secures the right of the husband in either event.

We come, then, to the question whether the legislation in regard to the property of married women has changed the common-law rule in cases of intestacy. Under the law of 1844 (Pub. Laws 1844, p. 270) the property of a married woman was so far secured to her own use as to exempt it from liability for the debts of her husband; and in Gen. St. R. I. 1872, c. 152, § 1, it was absolutely secured to her sole and separate use. As to real estate, this court expresses the opinion, in Re Voting Laws, 12 R. I. 586, that the latter change destroyed a single tenancy by marital,right. The statute relating to intestate personalty, however, still remains. With regard to the effect of legislation upon the husband's right in the personal estate of his intestate wife, we have been somewhat surprised not to find a greater abundance of authority. Mr. Schouler, in his work on Executors and Administrators (section 496), says: "So greatly, however, have the ancient rights of husband and wife been changed by modern legislation, both in England and the United States, that the present legal rule on this subject cannot be stated with precision." The cases cited by him in the note differ; some, because of peculiar statutory provisions, as in New Hampshire, where the husband's right is expressly conferred by statute, and some, as in Vermont and Illinois, because the statute of 29 Car. II. was never in force in those states. Mr. Bishop, in 2

Bish. Mar. Wom. § 560, suggests a solution of the difficulty by saying: "In the absence of statutory interposition the husband will have the same right to administer which he had before, and the same freedom from accountability for her assets received." This is the rule adopted in New York. In Robins v. McClure, 100 N. Y. 328, 3 N. E. 663, it is held that the statutes which authorize a married woman to hold property as if unmarried do not deprive the husband of his common-law right to her personalty when she dies intestate. The opinion reviews the line of decision and legislation in that state. See, also, Ransom v. Nichols, 22 N. Y. 110; Olmstead v. Keyes, 85 N. Y. 593; Barnes v. Underwood, 47 N. Y. 351, where this subject is very thoroughly discussed. We think this rule is in accordance with sound reason. The statute secures to a wife all of her estate during her life, with the power of disposition at her death. If she does not dispose of it, the right of a husband not being expressly cut off, in such a case the most natural inference is that it remains as it was before, especially, in view of the fact that the statute relating to the husband's right in intestate property has remained unchanged. We believe that this is the rule which has been followed in the courts of probate in this state. We therefore decide that George N. Kenyon has an interest in the intestate personalty of his wife, even though he cannot administer it, which entitles him to contest the validity of the will of his wife, and that his appeal was erroneously dismissed.

GUERIN v. BOROUGH OF ASBURY

PARK.

(Supreme Court of New Jersey. Nov. 8, 1894.) BOROUGHS - POWERS REGULATION OF GROCERY BUSINESS-COURTS FOR TRIAL OF SMALL CAUSES -JURISDICTION.

1. The act of March 28, 1892 (P. L. 1892, p. 293), does not empower boroughs to license and regulate the business of a grocer.

2. That act does not confer upon courts for the trial of small causes jurisdiction over complaints for the violation of a borough ordinance, which forbids the driving of a grocery wagon, without a license.

(Syllabus by the Court.)

Samuel B. Guerin was accused, by complaint filed in justice's court, of violating an ordinance of the borough of Asbury Park, N. J., licensing and regulating the grocery business, and he prosecutes a writ of certiorari to review such ordinance. Proceedings set aside.

Argued June term, 1894, before REED, ABBETT, and DIXON, JJ.

Mr. Guerin, for prosecutor. Hawkins & Durand, for defendant.

DIXON, J. It is admitted that the proceedings brought up by this certiorari must be

supported, if at all, by the provisions of "An act respecting licenses in incorporated boroughs," approved March 28, 1892 (P. L. 1892, p. 293); and, as we have held that those proceedings are to be instituted in the court for trial of small causes, the prosecutor's right to relief by certiorari, without appeal to the common pleas, can be based only upon a lack of jurisdiction in the trial court. State v. Mayor, etc., of Neptune City (N. J. Sup.) 28 Atl. 378. We think such a lack of jurisdiction appears. The complaint charges the prosecutor with being engaged in the grocery business, and soliciting business and delivering groceries, within the limits of the borough, with a wagon drawn by one horse, without having a license from the borough. The statute mentioned does not empower boroughs to pass ordinances for licensing and regulating a business of that character, and only for the violation of ordinances enacted by authority of that statute is the procedure there indicated applicable. The proceedings should be set aside, with costs.

STATE (MULCAHY, Prosecutor) v. NEW
JERSEY TRACTION CO.
(Supreme Court of New Jersey. Nov. 8, 1894.)
APPEAL FROM DISTRICT COURT-JUDGMENT.

1. The common pleas improperly gave judgment on the trial of a case on appeal from the district court, "that the judgment of the court below be affirmed," instead of giving judgment for the defendant.

2. The record should be remitted to the common pleas for correction, and the entry of the proper judgment.

(Syllabus by the Court.)

Certiorari to court of common pleas, Essex county; Kirkpatrick, Buttner, and Ledwith, Judges.

Action by Dennis D. Mulcahy against the New Jersey Traction Company for injuries to plaintiff's horse and carriage, commenced in the district court, and taken on appeal by plaintiff to the court of common pleas. There was a judgment affirming the judgment of the district court, and plaintiff prosecutes a writ of certiorari to review such judgment. Record remitted for correction of judgment. Argued June term, 1894, before DIXON, REED, and ABBETT, JJ.

P. W. Cross, for prosecutor. Crane & Knight, for defendant.

ABBETT, J. The prosecutor brought suit in the Second district court of the city of Newark against the defendant for injuries done to his horse and carriage by a streetrailway car of the defendant propelled by electricity along Washington street in the city of Newark, alleging carelessness and negligence on the part of said company by propelling its cars at an unwarranted rate of

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