Plaintiff shipped goods on a bill of lading which provided that, unless the word "order" was inserted before or after the name of the consignee, the carrier, at its option, might deliver the goods to the consignee, without requiring production of the bill of lading. Plaintiff attached a draft for the price of the goods to the bill of lading, which did not contain the word "order," and sent it on for collection, without notifying defendant carrier to require production of the bill of lading before delivery. Defendant delivered the goods to the consignee at the address specified in the bill of lading, without requiring its production. Held, the draft not being paid, that defendant was not liable for the value of the goods.

Action by Simon Weisman against the Philadelphia, Wilmington & Baltimore Railroad Company. Verdict for defendant. Petition for a new trial denied.

Assumpsit for breach of contract against a common carrier for the wrongful delivery of goods. The plaintiff shipped goods from Providence to Baltimore, and received a bill of lading reciting that the consignee was "S. W., 810 Baltimore St., Baltimore, Md." The bill of lading provided: "If the word 'order' is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of the party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before delivery of the property. If any other than said form of consignment is used herein, the property may, at the option of the carrier, be delivered without requiring the production of

this bill of lading." The plaintiff attached a draft for the price of the goods to the bill of lading, and sent it to Baltimore. The goods were delivered at the address and to the person intended by the plaintiff, in the same way that previous shipments by him had been delivered.

J. Jerome Hahn, for plaintiff. David S. Baker, for defendant.

PER CURIAM. The case shows that the goods for the wrongful delivery of which, as alleged, this suit is brought, though directed to the plaintiff himself, were delivered at the place directed and to the person to whom the plaintiff intended that the delivery should be made, in precisely the same way that previous shipments by the plaintiff had been delivered. The complaint of the plaintiff is not that the goods were not delivered to the proper person at the proper place, but rather that they were delivered prematurely; his intention being that they should not be delivered until the price had been paid. He did not, however, notify the defendant of his intention to have the price paid before delivery, and when he shipped the goods he did not have the word "order" inserted before or following his initials as consignee in the bill of lading, so that, according to the terms of the bill of lading, it was optional with the defendant to require its production before the delivery of the goods or to deliver them without its production. The loss which the plaintiff has suffered by his inability to collect the value of the goods from the person to whom they were delivered is due, therefore, to the failure of the plaintiff either to notify the defendant not to deliver the goods until the price had been paid, or to have the bill of lading so made as to require its production as the condition of receiving the goods. We do not see that the defendant has failed either in the delivery of the goods according to the intent of the contract or in its duty to the plaintiff. It is a well-established principle that, when one of two innocent persons must suffer loss, he shall bear it whose act or fault has occasioned the loss. Our opinion is, therefore, that the plaintiff's petition for a new trial should be denied and dismissed, and the case remitted to the common pleas division, with direction to enter judgment on the verdict.

(22 R. I. 239) PROVIDENCE INST. FOR SAVINGS v. DAILY et al.

(Supreme Court of Rhode Island. Oct. 24,

BANKS

1900.)

AND BANKING -DEPOSITS TRUST FUNDS-RIGHTS-DETERMINATION.

Pub. Laws 1899, c. 651, provides that whenever any executor, administrator, guardian, trustee, or any other person holds any sum of money payable to or the property of another, and the person entitled thereto cannot give proper receipt or discharge therefor, and such executor, etc., desires to free himself from further liability therefor, he may pay the same into the registry of the court on a bill in equity stating the circumstances. Complainant bank applied under the statute for a decree to pay a fund deposited with it into the registry of the court, on the ground that it was unable to obtain a proper discharge, etc. Held, that the bill would not lie, since the statute was intended to cover only official relations where a trust was created, and did not apply to the ordinary relation of debtor and creditor.

Bill by the Providence Institution for Savings against Mary B. Daily and others to determine the right to certain funds in plaintiff's possession. Bill dismissed.

Tillinghast & Tillinghast, for complainant. Edwards & Angell and William H. Sweetand, for respondents.

STINESS, C. J. The bill sets out that in 1869 Ann E. Daniels, then of Providence, deposited $500 with the complainant in the name of "George E. Potter. Ann E. Daniels, Trustee," and received a deposit book in that name and form. Ann E. Daniels then removed to Chicago, where she died in October, 1899, leaving a will, which has been admitted to probate there, but not in this state, in which she gave to George E. Potter the money in the Providence Institution for Savings in her name as trustee for said Potter, her brother, provided he should appear to claim the same within five years after her decease; but, in case he should not, or should his death be established sooner, then, in that event, she gave the same to the respondent, her daughter, with the request that, if Potter should afterwards be found to be living, she should pay to him said money, with interest. The bill further alleges that said Potter has not been heard from for more than 25 years, and that the bank has not been able to ascertain, after diligent inquiry of his nearest relatives, whether he is living or not; or, if living, his residence or address, or whether he was ever married; or, if deceased, whether he left a will, or wife or children, or whether administration has been taken out on his estate. The complainant applies, under Pub. Laws 1899, c. 651, for a decree to pay the fund into the registry of the court upon the ground that it desires to be discharged from further liability, and is unable to obtain a proper discharge. We do not think that the statute applies to a bank in matters of its ordinary busi

ness.

It purports to be an amendment of Gen. Laws, c. 219, relating to the settlement. of accounts of administrators; but it goes further than this. It says: "Whenever any executor, administrator, guardian, trustee or any other person, holds any sum of money, or any bond, note or other obligation for money, or evidence of indebtedness, or any certificate of stock or other chose in action, payable or deliverable to, or the property of, another, and the person entitled thereto cannot, for any reason, give proper receipt or discharge therefor, and such executor, administrator, guardian, trustee or other person, holding the said moneys or property, desires to free himself from further liability therefor, he may pay or deliver the same into the registry" of the court on a bill in equity stating the circumstances. When any person entitled to such moneys shall appear and satisfy the court as to his right, the same shall be paid or delivered over to him as the court shall direct. These provisions, taken literally, are clearly broad enough to include the case presented, but we do not think that the statute was intended to go so far. The result of the complainant's construction of the statute would require the court not to decide controversies between parties, but to act as the fiscal agent of debtors in favor of their unknown creditors, and to assume the care of funds, not in causes otherwise properly before it, but as a sort of clearing house to relieve debtors from hunting up the parties to whom money held by them is due. In the settlement of estates, or in the execution of a trust, cases within the jurisdiction of the court, where the law imposes a duty which has been executed as far as possible, and there is no other way of completing it, there may be some reason in such a course. There could be no end to one's responsibility otherwise. It is to such cases as these that, in our opinion, the statute relates. The complainant refers us to the English act for better securing trust funds and for the relief of trustees (10 & 11 Vict. c. 96), which is quite similar to our statute. The body of the act relates to trustees, executors, administrators, or other persons, but the preamble relates only to trustees. This act was first considered in Re Buckley's Trust, 17 Beav. 110. It was held that the purchaser of an estate subject to a pecuniary charge was not within the provisions of the act, although it was claimed that he was within it by reason of the words "trustees or other persons." Romily, M. R., said: "What the act intended is expressed by the words that 'all trustees, executors, administrators, or other persons having in their hands money belonging to any trust';" and, further, that the trust is one created by an instrument or by operation of law. He also pointed out the extent to which the act would go, if it should be construed otherwise. In re Haycock's Policy, 1 Ch. Div. 611, held that the trustee

relief act, until extended by subsection 6 of section 25 of the judicature act, did not enable an assurance society having notice of conflicting claims to pay policy moneys into court, unless the moneys were the subject of a trust. Jessel, M. R., said: "It is an act for the relief of trustees only. * But, in the absence of trust, I cannot find on what principle a mere debtor-which, for this purpose, an assurance society is-is entitled to avail itself of the provisions of an act passed for the relief of trustees." We may add that a bank, holding money for a depositor is no more a trustee than an assurance society holding money for the owner of a fund due on a policy. The cases cited by the complainant do not appear to be in point. Foster v. McGregor, 9 Law T. (N. S.) 473, was a case where a legacy had been paid into court, apparently by an executor, and paid out under a false representation of the death of a party beneficially interested to an innocent mortgagee, and the question was whether he should be allowed to retain it on giving security to refund. Ex parte Breach, 12 Wkly. Rep. 769, was not a case under the trustee relief act, but under the Charing Cross act. The construction of the English act is in harmony with our view of the statute before us that its purpose was to give relief in cases of official or express trusts. There might be facts connected with a deposit which would place a bank in a trust relation, but in ordinary cases it performs none of the duties of a trustee. It does not keep, and it is not expected to keep, funds separately. The title to securities is in the bank absolutely, and not as trustee. It keeps no accounts as a trustee, but only of deposits and dividends. The business relation is that of debtor and creditor. The statute evidently was not intended to cover any but official relations. To give it the broad literal construction contended for by the complainant, would impose duties which are not the proper functions of a court. We are of opinion that the bill should be dismissed.

(22 R. I. 238)

SAYLES V. MITCHELL. (Supreme Court of Rhode Island. Oct. 24, 1900.)

TRESPASS-TITLE-INSTRUCTIONS.

Where the defendant in trespass quare clausum on land bid in at a judicial sale makes no plea as to title in himself, the plaintiff is only bound to prove possession, not title, and a request for instructions as to title was properly denied.

Action by Frederic C. Sayles against John Mitchell for trespass. Judgment for plaintiff. Motion for a new trial. Deniec.

Herbert Almy, for plaintiff. Bassett & Mitchell, for defendant.

PER CURIAM. The defendant petitions for a new trial on the ground of verdict against the evidence, and of exceptions to rulings of the court. The action being trespass qu. cl., the only issues were the possession of the plaintiff and the acts of trespass by the defendant. On these points the verdict is sustained by the evidence. The exceptions presented by the defendant relate to the question whether the title to the real estate, upon a judicial sale, vested from the sale, by relation, upon the delivery of the deed and payment of purchase money after the trespass alleged. The question of title in such an action is only put in issue upon the setting up of title in the defendant. A plea of title in the defendant was filed, but was withdrawn on the day of the trial, whereupon the plaintiff was only bound to prove possession. The requests for rulings as to a title by relation were therefore immaterial. Petition for new trial denied, and case remitted

(22 R. I. 228)

BRENNAN et al. v. BUTLER et al. (Supreme Court of Rhode Island. Oct. 19, 1900.)

MANDAMUS-CITY OFFICE-TITLE-PROPER

REMEDY.

Where a petition for a writ of mandamus to compel the members of a city committee to vacate their offices alleged that such persons were acting as members of such committee, the writ was denied, since the proper remedy was under Gen. Laws, c. 263, providing that a bill in equity may be filed to try title to any office to determine which the writ of quo warranto might have been brought at common law.

Petition by James E. Brennan and others for a writ of mandamus to compel the members of the city committee of Pawtucket to vacate their offices. Writ denied.

Claude J. Farnsworth and James E. Brennan, for petitioners. Dennis J. Holland, for respondents.

PER CURIAM. The court is of opinion that mandamus is not the proper remedy in this case. The petition sets out that other persons are acting as members of the city committee of Pawtucket, the office to which the petitioners claim title, and the granting of this petition would not of itself oust them from office. It would tend to even greater confusion. The provisions of Gen. Laws, c. 263, give the most appropriate and complete remedy in such cases, and the proceeding should be in accordance therewith.

(73 Conn. 314)

HALLIDAY et al. v. COLLINS CO. (Supreme Court of Errors of Connecticut. Nov. 1, 1900.)

APPEAL FILING-FINDINGS-NOTICE-AMEND

MENT-DOCKET-ERASURE-MOTION

GROUNDS-APPEAL PROCESS.

1. Pub. Acts 1897, c. 194, §§ 5, 6, 8, provide that where findings of fact are necessary an appeal must be filed within 10 days after the party giving notice of appeal has been notified by the clerk that such findings have been filed. Findings of fact were filed February 14, 1899, and on February 15th the clerk notified plaintiffs that they were filed. The judge took the findings from the clerk on February 25th, and, after making slight and immaterial changes therein, handed them back to the clerk on February 27th. They were not redated or refiled, and no further notice was given to plaintiffs, who filed their appeal on May 20, 1899. Held, that the changes made by the judge in the findings did not constitute an amendment, nor was there a refiling, so as to require further notice to plaintiffs, and hence the time for filing the appeal expired at the end of 10 days from February 15, 1899.

2. A motion to erase a cause from the docket on the ground that the appeal was not filed within the time required by law will be denied where the matters relied on in the motion do not appear on the face of the appeal process.

Appeal from superior court, Hartford county; Samuel O. Prentice, Judge.

Action by Joseph B. Halliday and others against the Collins Company. From a judgment for defendant, plaintiffs appeal. In this court the defendant filed a plea in abatement, and also a motion to erase the cause from the docket. Plea sustained, and appeal dismissed. Motion denied.

J. Gilbert Calhoun, for appellants. Charles E. Gross, for appellee.

TORRANCE, J. The ground of abatement alleged in the plea is, in substance, that the appeal was not taken within the time prescribed by law. The allegations of the plea were denied, and the issues thus formed were, by agreement of the parties, tried by a state referee. The report of the referee was accepted by this court, and is made a part of the record. From this it appears that final judgment in the case was rendered on the 14th day of January, 1899; that on the 18th day of the same month a notice of appeal was filed by the plaintiffs; that on the 14th day of February, 1899, the judge who tried the case filed a finding of facts therein; that on the same day the clerk notified counsel on each side, in writing, that such finding had been filed, which notice was received by plaintiffs' counsel next day; and that the appeal was filed on the 20th day of May, 1899. Where an appeal to this court can be taken from the final judgment of a trial court, the law fixes the time when such appeal must be filed. In cases where no finding of facts or further action of the trial judge is necessary to present properly the questions in the cause, the appeal must be filed within 10 days from the rendition of the judgment. In cases like the one at bar, where a finding 47 A.-21

is necessary for the proper presentation of the questions of law arising in the cause, the appeal need not be filed until 10 days after such finding has been filed with the clerk, and the party giving notice of appeal has been notified thereof by the clerk in writing. Pub. Acts 1897, c. 194, §§ 5, 6, 8. In effect, then, in cases like the present, the appeal must be filed within 10 days after the party giving notice of appeal has been notified by the clerk in writing that the finding has been filed. In this case the finding of facts was filed on the 14th day of February, 1899, and the plaintiffs received written notice of that fact next day, in the manner prescribed by law. Under the statute, these facts, in the absence of any others fixing some different date, fix the 15th day of February, 1899, as the point from and after which the 10 days allowed for filing an appeal are to be computed in the present case. The plaintiffs claim that certain other facts in the case fix a different date for the purpose of such computation. The only facts relied on by them in support of this claim are these: (1) The fact that the judge took his original finding from the clerk on the 25th day of February, 1899, and handed it back to the clerk two days later, with certain changes made by him therein; (2) the fact that the clerk did not notify the plaintiffs, in writing, of this action of the judge. Upon these facts the plaintiffs claim (1) that, when a filed finding is subsequently amended materially by the judge and refiled, the party giving notice of appeal is entitled to written notice from the clerk, under the statute, of such refiling, and that until such notice is given the 10 days allowed for filing, the appeal do not begin to run against him; (2) that the filed finding in this case was thus subsequently amended by the judge and refiled; (3) that the clerk never gave the plaintiffs any written notice of such refiling; and that consequently the appeal was filed within the time prescribed by statute. For the purposes of the argument, merely, we concede, without deciding it, the point involved in the first of these claims; and, as it clearly appears that the third claim is true, there is thus left for consideration the single question whether the second claim is true. We are of opinion that it is not. The changes made in the finding after it was filed on the 14th day of February were slight and immaterial. Legally speaking, the finding, after the judge handed it back to the clerk on the 27th day of February, was precisely the same as when it was originally filed. In legal effect, the judge took the filed finding from the clerk on the 25th day of February, looked it over, in view of the plaintiffs' exceptions and motion, decided to make no material change in it, and then handed it back to the clerk. The finding was neither redated nor refiled. It may be true that under section 104 of the general rules of court, had it then been in force, it would have been the duty of the clerk to make an entry that

the finding was refiled on the date when it was returned to him by the judge; but that rule has no application here, because it did not come into operation until some months after the appeal in this case had been filed. Upon the point now under consideration it is difficult to distinguish this case from Comstock's Appeal, 54 Conn. 116, 6 Atl. 196. There an immaterial change had been subsequently made by the judge in the filed finding, but the finding was not refiled, and it was held that the time for filing the appeal was not changed by this action of the judge. That case, upon this point, is decisive of this case in favor of the defendant upon the plea in abatement. Upon the facts found, we think it is clear that the filed finding in this case was neither amended nor refiled in such a manner as to entitle the plaintiffs to written notice thereof, and that the time for filing an appeal in this case, in the absence of any extension by the judge of such time, expired at the end of 10 days after the 15th day of February, 1899. If the plaintiffs had desired an extension of the time so fixed, they should have followed the method pointed out by the statute. It was the duty of the then counsel for the plaintiffs to ask for such an extension, if he required it, either to perfect his exceptions or his motion, and doubtless such an extension would have been granted; but, if not granted, he could still have gone forward and perfected his appeal. It was clearly his duty to procure from the stenographer a copy of the evidence he desired to have certified, in the absence of any order of the court in that behalf.

The defendant, in addition to the plea in abatement, has filed a motion to erase, upon the same ground set up in the plea. As the matters set up in the motion do not appear upon the face of the appeal process, the defendant cannot by a motion of this kind take advantage of the alleged defect. The plea in abatement is sustained, and the case is dismissed. The motion to erase is denied. The other judges concurred.

(78 Conn. 309)

BREEN v. TOWN OF CORNWALL. (Supreme Court of Errors of Connecticut. Nov. 1, 1900.)

HIGHWAYS-DEFECTS-INJURIES-NOTICE OF CLAIM-PLEADINGS.

1. Under Gen. St. § 2673, as amended by Act 1895, requiring that the cause of the injury must be described in the notice of claim for injuries caused by a defective highway, a notice sufficiently describes the cause of injury when it identifies the road and the place of the accident, and states that plaintiff was thrown out of her wagon "on that ledge of rocks in the road, and very much injured," while driving carefully along the road; "that the condition of the road was the cause of the accfdent; and that bushes and grass hide holes and rocks so that a driver cannot see danger until he meets it."

*

2. A general description of the cause of the injury in a notice of claim for injury caused by a defective highway does not prevent plaintiff

from alleging the cause more specifically in the complaint.

Appeal from superior court, Litchfield county; Silas A. Robinson, Judge.

Action by Julia C. Breen against the town of Cornwall for personal injuries caused by defective highway. The court sustained defendant's demurrer to the complaint, and plaintiff appeals. Reversed.

Paragraphs 1, 4, and 5 of the complaint are as follows: "(1) On June 23, 1897, and for a long time prior thereto, there was a dangerous defect in the public highway or road in said town of Cornwall known as the 'Cook Road,' at a point in said highway or road about two rods northerly of the ruins of an old house known as the 'Cook House,' which said defect consisted of dangerous rocks, from which the earth had been washed and worn away, and deep, dangerous crevices and holes in said rocks; said dangerous condition being caused by the washing and wearing of the earth from said highway. Said highway or road was further defective at said point by reason of bushes and grass being allowed to grow up and overhang the traveled part of the same in such a manner as to hide the dangerous and defective condition of said highway from travel thereon, and for all of said reasons said road was unsafe." "(4) On said day the plaintiff, with due care, was driving a horse and wagon or cart along said highway or road, and by reason of the defective condition of said highway or road, as set forth and described in paragraph 1, the wheel of the wagon or cart in which the plaintiff was then riding, while traveling over said point in said highway or road, ran into, and was caught and held fast in, the crevices or holes in the rocks in said highway at said point; and by reason of the same the wheel to her wagon or cart in which she was then riding was broken, and she was thrown violently out upon the ground or rocks at or near the said point, all of which while she was in the exercise of due care. (5) In consequence of said defective road, and of the catching and holding fast of the wheel of said wagon or cart in the crevices or holes of the rocks at said point as aforesaid, and of the breaking of said wheel and being violently thrown from said wagon or cart, the plaintiff was severely and permanently injured in her perThe statutory notice given by plaintiff to defendant, and set forth in the complaint, is as follows: "Cornwall Bridge, Conn., June 24, 1897. To the Selectmen of Town of Cornwall-Gentlemen: I hereby notify you that myself and a friend, Miss Mary McCormick, of Bridgeport, while driving on the road between the Warren turnpike and Richard Brophy's house,-I think the road is familiarly called the 'Cook Road,'near the ruin of an old house, we were thrown out of our wagon on that ledge of rocks in the road. Our wagon was broken, and ourselves very much injured. As it is beyond dispute that the condition of the road

son.

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*