demurrer being overruled: "This is a mere matter of practice none will deny, and, being so, the assessment of damages could be made by the court without a jury. The idea that a party has a constitutional right to have a trial by jury is not controverted. Here was no trial in any sense of that term. The defendant has declined putting his case on trial by abiding the judgment on demurrer."

In Hanley v. Sutherland (1882) 74 Me. 212, the court said: "The assessment of damages by a jury, when done, is a matter of practice rather than of right."

In Lennon v. Rawitzer et al. (1889) 57 Conn. 583, 19 Atl. 334, the full court sustained the assessment of damages by the court on default in an action to recover damages for personal injuries, although the plaintiff desired a jury to assess the damages, saying: "This practice has also in repeated instances received the express sanction of this court. The last time was in 1885, in Seeley v. City of Bridgeport, 53 Conn. 1, 22 Atl. 1017; and for other instances see the cases there cited on page 2, 53 Conn., and page 1047, 22 Atl."

In Parker v. Roberts (1885) 63 N. H. 431, the court says: "A default admits all the material allegations of the writ except the amount of damages, which are assessed by the court, unless for special reasons an inquiry by the jury is ordered." cases cited.

*

And see

Deane v. Willamette Bridge Co. (1892) 22 Or. 167, 29 Pac. 440, 15 L. R. A. 614, was almost identical with the case at bar. The action was for damages for personal injuries alleged to have been sustained on a car of the defendant company by reason of its negligence. The defendant suffered a default, and claimed that the court should assess the damages under the law of Oregon of 1891 (chapter 173), viz.: "In other actions including all actions sounding in damages or tort where judgment is rendered otherwise than on a verdict in favor of the plaintiff, the court, without the intervention of the jury, shall assess the damages which he shall recover," etc. But upon demand of the plaintiff the court ordered the clerk to call a jury to assess the damages, which was done, and verdict for the plaintiff. The question thus presented to the Supreme Court by the defendant was the question presented here. The provision of the state Constitution was almost identical with our own, and was as follows: "In all civil actions the right of trial by jury shall remain inviolate." And the full court said: "This provision of the Constitution creates no new right to trial by jury. It simply secures to suitors the right to trial by jury in all cases where that right existed at the time the Constitution was adopted. * Prior to the adoption of the Constitution of this state, construed in the light of our inquiries, the statute did not give to suitors the right to

have a jury assess damages in case of failure of the defendant to answer." And the court held the act constitutional, and reversed the judgment upon the finding of the jury, saying, page 172, 22 Or., and page 442, 29 Pac., 15 L. R. A. 614: "The only purpose of the writ [of inquiry] in authorizing the jury to inquire into the damages is to inform the mind or conscience of the court. This being its object, unless the court choose to issue the writ for its own information it necessarily follows that it is discretionary with the court whether it will issue the writ, or, when issued, whether it will award the amount of damages found by the jury or assess the damages itself without any inquest. This result proceeds upon the hypothesis that upon default the cause of action upon which issue might have been joined stands admitted, and that there is no issue of fact to try or nothing evolved by the pleadings upon which there can be a trial by jury." And on page 176, 22 Or., page 443, 29 Pac., 15 L. R. A. 614: "Upon default, as we have shown, there is made by the pleadings of the parties no issue of fact to be tried by a jury. The cause of action is admitted, and there is no occasion for a trial by jury. The commonlaw right of trial by jury, which it was the purpose of this constitutional provision to secure, relates only to those civil cases or causes of action in which there has been an issue made by the pleadings of the partieswhere the facts alleged constituting the cause of action are denied and an issue of fact is formed which must be tried by a jury. Such a trial of an action has no application to an inquiry into damages, whether by the court or by a jury, after default, when the cause of action stands confessed."

Our own statute does not prohibit the court from calling to its aid a jury in such a case, as did the statute just referred to. But it does provide, nevertheless, that the damages, when assessed, shall be assessed by the act of the court. Doubtless, in most of the cases where the court might see fit to intrust this question to the consideration of a jury, the court would adopt the finding of the jury and would assess the damages accordingly. But the inherent power of the court to award more or less than the jury awarded is seen to have existed from remote antiquity, and is of necessity implied, recognized, and authorized in the language of the statute. Here the court refused at first to assess the damages, and there is no record that the finding of the jury has been approved or disapproved by the court, or that the court has taken any action in the matter. It follows that the defendant takes nothing by its exception to the discretionary action of the trial court in submitting the question of damages to the jury for their judgment thereon; and inasmuch as the action of the court is necessary to determine the amount of damages to which the plaintiff is entitled, and the court has neither approved

nor disapproved the finding of the jury, there has not yet been an assessment of the damages in the case, and consequently the question of the amount of damages is not properly before us, if, indeed, that question can be raised at all.

Case remitted to the common pleas division for assessment of damages by the court in accordance with this opinion.

(25 R. I. 597)

EDWARDS v. BRAYTON. (Supreme Court of Rhode Island. Feb. 5, 1904.)

PERSONAL INJURY- NEGLIGENCE-PLEADINGGATE OPENING OVER SIDEWALK.

1. A complaint alleged that defendant constructed a board fence with a gate, not apparent to any one passing along the sidewalk, which opened into the street; that it was defendant's duty to give warning and notice to travelers using the sidewalk, and to provide and maintain means of notice or warning of the existence of the gate and of the opening thereof over the sidewalk to travelers when using said sidewalk; that plaintiff, passing along the sidewalk, was struck and injured by the gate, which was suddenly opened against her; and that her injuries were caused by defendant's negligence in failing to give such notice. Held to state no cause of action, the violent opening of the gate, without notice that it was about to be opened, and not failure to give notice that it could be opened, being the proximate cause of the injury.

Trespass on the case for negligence by Gertrude L. Edwards against Lavina E. Brayton. Defendant demurs to the declaration. Demurrer sustained.

Argued before STINESS, C. J., and TIL LINGHAST and DOUGLAS, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff. Comstock & Gardner, for defendant.

DOUGLAS, J. The first count in the plaintiff's declaration alleges that the defendant had constructed and maintained around her land, bordering upon a public street, a close board fence about eight feet high, and in this fence a gate of the same appearance as the rest of the fence, so as not to be apparent to one passing along the sidewalk; that this gate was so constructed as to open outwards into the street, "so that said gate became and was a source of danger when thrown open over and upon said sidewalk"; that it was the duty of the defendant "to give due warning and notice to travelers using said sidewalk in front of said gate, and to provide and maintain some means of notice or warning of the existence of said gate, and of the opening thereof over, upon, and into said sidewalk, to travelers when lawfully using said sidewalk and passing along the portion thereof in front of said gate," etc. The count further alleges that the plaintiff, passing along the sidewalk with due care, was struck and severely injured by the gate, which was suddenly opened against her; and, further, that the injuries received were caused by the negligence of the defendant in failing to give

the notice aforesaid. The second count details substantially the same facts, but assigns the neglect of the person who opened the gate to give warning of the opening as the cause of the injury. The defendant demurs to the first count, and specifies her causes of demurrer as follows: (1) That the negligence alleged is not the proximate cause of the accident; (2) that no negligence on the part of the defendant is alleged; (3) that the count sets out no cause of action.

We think these grounds are all well taken, and the demurrer must be sustained. It is very evident that the construction of the gate was not the cause of the accident. The gate, so hung as to be capable of swinging outward, could do no harm until that capacity was turned into action by some intervening agency. If the gate were so constructed that it would open automatically, or so that it was likely to be blown open, these peculiarities of construction might be assigned as causes of any injury which should be inflicted by such opening; but no such condition of affairs is alleged. The gate, constructed as alleged, might remain forever closed; and, if it had remained so, the accident could not have occurred. Neither is it alleged that the gate was so constructed that it would inevitably become dangerous if carefully opened, and it is difficult to see how an ordinary gate of the height here stated could have been so constructed. If such a gate as is described were opened slowly and carefully, the visible motion would furnish sufficient notice to passers-by; and if opened violently, as alleged, the violent opening, not the neglect to notify of the capacity to be opened, would be the proximate cause of any injury which might ensue. The case on this point is governed by Mahogany v. Ward, 16 R. I. 479, 17 Atl. 860, 27 Am. St. Rep. 753. See, also, McGough v. Bates, 21 R. I. 213, 42 Atl. 873; Afflick v. Bates, 21 R. I. 281, 43 Atl. 539, 79 Am. St. Rep. 801. It follows that if the gate could do no harm until opened, there was no duty devolved upon the defendant to notify anyone of the capacity of the gate to be opened until it was intended to use such capacity; or, in plain words, the duty to give warning did not arise until the gate was going to be opened, and then the duty was to give notice of the intended movement. Performance of the supposed duty would have been useless and unnecessary. Notice that the gate could be opened outward would not be warning to avoid approaching the gate at any particular time. And so, as the notice alleged to be required would have been futile, the law imposed no duty to give it. The erection of buildings and fences along a public street with gates opening so as to swing over the street has been held to be a reasonable use of the highway. Van O'Linda v. Lothrop, 21 Pick. 292, 297, 32 Am. Dec. 261.

Demurrer sustained, and case remanded to the common pleas division for further pro ceedings.

(98 Me. 511)

COTTON v. WISCASSET. W. & F. R. CO. (Supreme Judicial Court of Maine. March 25, 1904.)

FENCES-RAILROADS-SUFFICIENT FENCE DE

FINED.

1. Rev. St. 1883, c. 51, §§ 36, 37, require a railroad company to erect and maintain, along the line of its road, a fence sufficient to restrain and exclude any of the ordinary domestic animals from straying upon that part of its track which passes through or is contiguous to the inclosure where such animals are pastured or kept.

2. A fence abutting a railroad four feet in height, and otherwise complying with the statute, and that will restrain horses, cows, and oxen, but will not restrain sheep, is not a legal and sufficient fence under the railroad statute relating to fences.

(Official.)

Agreed Statement from Supreme Judicial Court, Kennebec County.

Action by Sarah W. Cotton against the Wiscasset, Waterville & Farmington Railroad Company. Submitted on agreed statement. Judgment for plaintiff.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

F. J. C. Little, for plaintiff. L. R. Folsom, for defendant.

SPEAR, J. This is an action brought under Rev. St. 1883, c. 51, §§ 36, 37, to recover of the Wiscasset, Waterville & Farmington Railroad Company a forfeiture of $100 for the failure on the part of said company, after due notice, to repair their fence along the line of said railroad adjoining the plaintiff's premises. The case comes up on the following agreed statement of facts: "It is admitted that Sarah W. Cotton was the owner in fee simple of real estate described in the writ on the 6th day of May, 1902, and for a long time prior thereto, and still is the owner of such real estate," and "that on the 6th day of May, 1902, she gave to said defendant legal notice that the line fence between her close and that occupied by the defendant was defective and in need of repair"; that "said fence, although four feet in height, and otherwise complying with the statute, and suffi- | cient to restrain horses, cows, and oxen, was not sufficient to restrain sheep from passing from her land onto that of said defendant"; "that said defendant did not repair said fence within thirty days after said notice had been given"; and "that, if the action can be maintained upon this statement of facts under the declaration in the plaintiff's writ, the defendant is to be defaulted, otherwise the plaintiff is to become nonsuit."

The statute under which the plaintiff claims is as follows: "The owner of any inclosed or improved land or wood-lot belonging to a farm abutting upon any railroad which is finished and in operation, may at any time between the twentieth day of April 57 A.-50

and the end of October, give written notice to the president, treasurer, or either of the directors of the corporation owning, controlling or operating such railroad, that the line fence against his land has not been built, or if built, that the same is defective and needs repair. And if said corporation neglects to build or repair such fence, for thirty days after receiving such notice, it forfeits to such owner one hundred dollars, to be recovered in an action on the case." The defendant contends that under the agreed statement and this statute the plaintiff shows no cause of action; that, although she alleges that the defendant company has neglected and refused to erect and maintain a sufficient and lawful fence, she at the same time negatives the allegation by the admission that there was a fence erected and maintained which was "four feet in height, and otherwise complying with the statute." But the agreed statement goes further, and admits that, while the fence may comply with the statute, and will "restrain horses, cows, and oxen," it “will not restrain sheep." This qualification that "it will not restrain sheep" contains the very essence of the agreed statement. The other qualifications that the fence otherwise complies with the statute, and will restrain horses, cows, and oxen, are simply terms of exclusion, eliminating these questions from consideration, thereby leaving for determination the single question whether a fence that "will not restrain sheep" is "legal and sufficient" under the railroad statute relating to fences.

The defendant's objection cannot prevail. The cause of action is properly set out. This brings us directly to the issue in question: Does section 36 contemplate the erection and maintenance of a fence by the railroad company that will restrain and exclude not only horses, oxen, and cows, but the other smaller domestic animals, such as sheep? We think it does.

Rev. St. 1883, c. 22, § 1, provides: "All fences four feet high and in good repair, consisting of rails, timber, boards, stone walls, iron or wire; and brooks, rivers, ponds, creeks, ditches and hedges, or other things which, in the judgment of the fence viewers having jurisdiction thereof are equivalent thereto, are legal and sufficient fences." This statute is as old as the state. An analysis shows that it is very indefinite in describing what constitutes a "legal and sufficient" fence. First, it must be four feet high. Second, it may be of rails, timber, boards, iron, or wire. But how shall it be put together? How many rails, how many timbers, how many wires? Upon these details the statute is silent. It would not be contended that one rail, one timber, or one strand of wire, erected at a height of four feet, would constitute such a fence, nor that twenty of either kind would be required. How many, then, are required? Where is the mean between these two extremes? The statute does not say, and

therefore does not fully define what constitutes a "legal and sufficient" fence. In the very nature of the case it could not, for what might be "legal and sufficient" for one purpose might not be for another. A fence that would be sufficient against oxen might not be effective against sheep, but it might be unreasonable to require a fence against oxen to be sheep tight. All these matters were therefore wisely left to the discretion of the fence viewers, so that the sufficiency of each particular line of fence could be determined with reference to the purpose which it was intended to serve. If the parties disagree as to whether a piece of fence is "legal and sufficient" to effect the result expected of it, then the fence viewers are the tribunal designated to settle that question. They can undoubtedly determine whether the material prescribed by statute as suitable is so put together as to constitute, in the particular case upon which they are called to pass, a "legal and sufficient" fence; that is, the legality and sufficiency of a fence is determined, not upon the number of rails or wires it contains, but with reference to the particular office it is intended to serve.

The court will take judicial notice of the historical fact that when this statute was enacted sheep were among the most indispensable domestic animals kept upon the farm, and as late as 1842, when the railroad statutes were enacted, the raising of sheep was a most important feature of nearly every farming industry. Even at this latter date the spinning wheel and the loom had by no means been laid aside, and the homespun was worn by many a country lad. These flocks, then as now, grazed from the earliest spring to the latest fall upon the pastures of the farm, and had to be fenced against as much, and even more, than horses and oxen. In view, then, of the purpose which the division fence, for all these years, has been required to serve, it cannot be doubted that the Legislature intended that it should be sufficient, when properly built and kept in repair, to restrain and exclude sheep as well as the larger domestic animals.

Rev. St. 1883, c. 51, § 36, specifying the kind of fence required along the line of a railroad, is as follows: "Where a railroad passes through inclosed or improved land, or wood-lots belonging to a farm, legal and sufficient fences shall be made on each side of the land taken therefor, before the construction of the road is commenced, and such fences shall be maintained and kept in good repair by the corporation." It will be readily observed that this section specifies and requires fences that shall have exactly the same characteristics as those defined in section 1, c. 22, namely, that they shall be "legal and sufficient." Therefore we think it should be construed with reference to section 1, c. 22, in pari materia, to which it is proper to refer to ascertain what kind of a fence, under section 36, is "legal and sufficient." The

phrase in each statute is the same, and has the same meaning. The interpretation given to section 36 by the court in Gould v. Bangor & Piscataquis R. R., 82 Me. 126, 19 Atl. 85, sustains this view. The court, in construing the phrase "legal and sufficient," in section 36, alluded to chapter 22 as follows: "It must, perhaps, be further conceded that a fence made of barbed wire 'protected by an upper rail or board of wood' may, under the proviso attached to section 1, c. 22, Rev. St. 1883, be deemed a 'legal and sufficient' fence, and, when properly built and kept in repair, a full discharge of the obligation resting upon the corporation by virtue of the statute." It finds that the phrase "legal and sufficient" has the same meaning in section 36 that it has in chapter 22. But we have above held that a "legal and sufficient" fence under chapter 22, when properly built and kept in repair, should restrain and exclude sheep. It therefore follows that a "legal and sufficient" fence under chapter 36 should accomplish the same result. There is no reason why it should not. Our court have held that it should. In the last-cited case pages 126, 127, 82 Me., page 85, 19 Atl., they say: "Hence it is clear that considering the object to be attained and the well-established principles of law applicable, while the fence must be so built and maintained as to be a reasonable restraint against all domestic animals of ordinary docility, it is not to be made unnec essarily dangerous to that class of animals, or permitted to become so by neglect." While the question in the case at bar was not directly in issue in the case quoted, yet the point is there squarely decided that the railroad corporation must fence against "all domestic animals of ordinary docility." Sheep are most certainly domestic animals of ordinary docility, and must necessarily come within the above classification.

It therefore seems clear to us that, with reference to the object it was intended to accomplish, the statute requires a railroad company to erect and maintain along the line of its road a fence sufficient to restrain and exclude any of the domestic farm animals of ordinary docility from straying upon that part of its track which passes through or is contiguous to the inclosure where such animals are pastured or kept. If it passes the inclosure of horses and oxen, it must fence against horses and oxen; if it passes the pasture of sheep, it must fence against sheep; that is, it must build a fence against each man's farm or inclosure that will accomplish the particular purpose for which the fence is required. The corporation is not obliged, in order to comply with the statute, to build a sheep-tight fence along its whole line, whether it passes the inclosure of sheep or not, but only along so much of its line as passes a sheep inclosure.

In accordance with the stipulation in the agreed statement, the entry must be: Defendant defaulted for $100.

(98 Me. 519)

KIMBALL v. DRESSER. (Supreme Judicial Court of Maine. March 25,

1904.)

BANKRUPTCY-PREFERENCE-DEFINED-ACTION

-NOT SUSTAINED.

1. In order to entitle a trustee, under the bank. ruptcy act of July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418], to recover a preference, he must prove (1) the insolvency of the debtor; (2) the payment by the bankrupt to the creditor; and (3) a consequent inequality between creditors of the same class.

Held, that a want of proof to sustain all these elements of a preference will preclude a recov

ery.

(Official.)

Report from Supreme Judicial Court, Oxford County.

Action by Merton L. Kimball against Charles A. Dresser. Case reported. Judgment for defendant..

This was an action brought by the plaintiff, as trustee in bankruptcy of the estate of Edgar F. Hodsdon, of Roxbury, to recover of the defendant the sum of $150, alleged by the plaintiff to have been paid by said Hodsdon to the defendant on an existing debt within four months of the filing of petition in bankruptcy by said Hodsdon, and while said Hodsdon was insolvent. The action is brought under section 60b of the United States bankruptcy act of July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]; and the declaration alleged that at the time of said payment the defendant had reasonable cause to believe that it was intended thereby to give a preference, and that at the time of said payment said Hodsdon was insolvent. It was admitted at the trial below that the payment on account was made but 15 days before the filing of the petition, $100 by check from the Dunton Lumber Company, and $50 as a credit for camps which had been owned by the bankrupt, and were transferred to the defendant by him on the same day that the $100 was paid.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

A. S. & M. L. Kimball, for plaintiff. J. P. Swasey, for defendant.

SPEAR, J. This case comes up on report. It is an action brought by the plaintiff, as trustee in bankruptcy of Edgar R. Hodsdon, of Roxbury, in the county of Oxford, to recover of the defendant the sum of $150, which the plaintiff alleges was paid by said Hodsdon to said defendant in violation of the United States bankruptcy act of July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]. The plaintiff, in his writ, alleges that Hodsdon filed a voluntary petition in bankruptcy on the 16th of May, 1901, and that on the 29th day of April, 1901, "said Hodsdon, being then and there indebted to said defendant in a sum to said plaintiff unknown, then and there paid to said defendant the

sum of $150; that on the day of said payment said Hodsdon was insolvent and unable to pay his debts in the ordinary course of business; that said defendant received said sum of $150 from said Hodsdon on the 29th day of April, 1901, and that said defendant, at the time of receiving said sum, had reasonable cause to believe that said Hodsdon was then and there insolvent and unable to pay his debts in the ordinary course of business; and that it was intended thereby, to wit, by the said payment of $150, to give said defendant preference, within the meaning of said bankruptcy act."

The allegations in the declaration as to the time of payment and the filing of the petition are undisputed. But it is further incumbent upon the plaintiff, in order to sustain his action, to prove that the payment to the defendant was a preference under the bankrupt act. Section 60 defines a preference as follows: "A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors or the same class."

A preference under this law, says Collier on Bankruptcy, p. 6, has but three elements: "(a) Insolvency; (b) the procuring or suffering of the judgment or the making of the transfer by the bankrupt; (c) a constant inequality between creditors of the same class." The making of a transfer under "b" is admitted. We therefore are required to consider only the two other items, "a" and "c." Under "c," in order to entitle the plaintiff to set aside the payment to the defendant, it is incumbent upon him to prove, by a fair preponderance of the evidence, that at the time the payment was made, May 1, 1901, Edgar F. Hodsdon was insolvent, within the meaning of paragraph 15, § 1, of the act of 1898, to wit: "A person shall be deemed insolvent within the provisions of this act, whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed or removed, or permitted to be concealed or removed, with an attempt to default, hinder or delay his creditors, shall not at a fair valuation be sufficient in amount to pay his debts." Upon this point the plaintiff offered no testimony, and did not present any statement of the assets and liabilities of the bankrupt. The only evidence from which an inference of the insolvency of the bankrupt at the time he made the payment could be drawn was the admission that 17 days later he was adjudged a bankrupt on his own petition. While it may be highly probable that the bankrupt