the particular breach. Under the law as above stated, it is clear that the breach of the covenant in question by the lessees was a continuing one, and that the acceptance of rent by the plaintiff for the month of January, 1902, even if it had knowledge of the breach at that time, was not a waiver of its right to maintain its present action for a subsequent and continuing breach of said covenant.

As a new trial must be granted on account of the error above referred to, there is no occasion for us to consider the fourth and last ground for a new trial, namely, that the verdict is against the evidence.

Several other questions have been quite fully and learnedly discussed by counsel both at the hearing and in their briefs, but, as they are not involved in the case as presented by the record, anything which we might say relating thereto would be mere dictum, and hence we refrain from discussing them at the present time. The plaintiff's petition for a new trial upon the grounds therein set forth raises all the questions which we can now proper' decide.

Plaintiff's petition for new trial granted.

(25 R. I. 40)

mon pleas, and purporting to be filed by the executive committee, stated that it was filed by the railroad in compliance with the act of 1836. It appeared that the persons signing the report as executive committee of the company were dead, and the defendant company, which was the successor of the New York, Providence & Boston Company, did not deny that the reloIcation was in fact made, and offered no testimony on that question. Held, that the report was properly admitted, without specific proof that the persons who signed it as executive committee were such in fact.

6. Refusal to charge in the exact words of a request is not error, where the point presented is covered in other instructions.

7. In an action against a railroad for damages by fire, refusal to permit defendant to ask what plaintiff paid for his farm was not

error.

Action by James N. MacDonald against the New York, New Haven & Hartford Railroad Company. Verdict for plaintiff. Heard on petition of defendant for a new trial. Petition denied.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

James C. Collins, Jr., for plaintiff. John W. Sweeney, for defendant.

ROGERS, J. This is the defendant corporation's petition for a new trial, after a verdict for the plaintiff, of an action of debt

R. CO.

(Supreme Court of Rhode Island. Feb. 14,

1903.)

RAILROADS-FIRES-EVIDENCE-BILL OF PAR

TICULARS-SUFFICIENCY-INSTRUCTIONS.

1. In an action against a railroad for damages by fire, a bill of particulars showing the number of acres of each kind of wood burned, the years of growth, the kinds of fence destroyed, etc., was sufficient, without showing the value of the wood growing on certain oaksprout land, the value of a certain pine grove, the value of wood growing on certain pasture land, the value of a rail fence, and the value of other wood claimed to have been destroyed by the fire.

2. In an action against a railroad for damages by fire, evidence of fires originating prior and up to the time of the fire in issue, of cinders lying along defendant's tracks, and as to whether or not defendant's locomotives were in the habit of throwing off sparks and cinders prior to the time of the fire in issue, and whether these cinders and sparks were of such a nature as to be able to ignite fires, was admissible on the issue of the cause of the fire.

3. Evidence that some of defendant's own Jand had been burned over was admissible on the same issue, though defendant had a right to intentionally do what it chose with its own property.

4. In an action against a railroad company for damages by fire, the admission of evidence as to who owned the land lying between plaintiff's land and the right of way, and on which the fire was supposed to have originated, was harmless to defendant.

5. In an action under R. I. Acts & Res. June Sess. 1836, p. 3, § 2 (being an act_to_incorporate the New York, Providence & Boston Railroad Company, and providing that that corporation should be liable to the owner for all damages arising from the burning of property by fire communicated from its engines), the plan and report of relocation of the company mentioned, filed for record in the court of com

"An act in amendment of an act entitled 'An act to incorporate the New York, Providence & Boston Railroad Company' passed at June session, A. D. 1836" (R. I. Acts & Res. June Sess. 1836, p. 3), which reads as follows, viz.: "Sec. 2. And be it further enacted, that said corporation shall be liable to pay to the owner or owners for all damages which may arise from the burning of houses, wood, hay, or any other substance whatever, by fire communicated from the engines, cars or other vehicles of said corporation, or by those in their employ, damages equal to the value thereof, with all the lawful costs; to be recovered in an action of debt, in any court competent to try the same." The defendant had succeeded the said New York, Providence & Boston Railroad Company, and was liable in this case to all the duties, liabilities, and obligations imposed by said act upon said last-named corporation.

There were 23 grounds alleged for a new trial, many of which were practically duplicates. The first ground was that the trial court erred in not requiring the plaintiff to state in his bill of particulars the value of the wood growing upon said oak-sprout land, value of the pine grove, the value of the wood growing on the pasture land, the value of the rail fence, and the value of the wood claimed to have been damaged, injured, or destroyed by the fire. The defendant had asked for a bill of particulars in extremely minute detail; and the plaintiff had furnished many particulars, giving the number of acres of each kind of wood burned, the years of growth, the kind of fence, etc.; and the

trial court ruled that the order for a bill of particulars had been sufficiently complied with. We think that ruling was a proper exercise of that court's discretion. The purpose of a bill of particulars is to give the defendant such information as will enable it intelligently to prepare its defense and to guard against surprises; but, as said by Durfee, C. J., in Cox v. Providence Gas Co., 17 R. I. 200, 21 Atl. 344: "The rule of certainty in pleading is not too rigid to be reasonable. It was designed to further, not to defeat, the ends of justice, and it is elementary that it requires no more particularity than the nature of the thing pleaded admits." In Lee v. Reliance Mill Co., 21 R. I. 323, 43 Atl. 536, this court said: "The rules of pleading require reasonable certainty in the statement of essential facts, to the end that the adverse party may be informed of what he is called on to meet at the trial, and to this end the allegations should be as precise and definite as the nature of the case will reasonably permit." See, also, Sullivan v. Waterman, 21 R. I. 72, 41 Atl. 1006. In Muller et al. v. Bush, etc., Mfg. Co., 15 Abb. N. C. 90, Dykman, J., said: "The plaintiff has commenced this action to recover damages sustained by reason of injuries to his house from an explosion in the defendant's oilworks. The complaint states the injuries with considerable particularity, and the amount of damages sustained. The defendant, desiring a bill of particulars of the items of damages, made a motion therefor to the special term, which was denied, and an appeal is brought from the order of denial. This is not a case where the plaintiff should be required to furnish particulars. The action is for damages which the plaintiff cannot specify with certainty. The amount will depend on proof to be furnished after examination of the injuries, and may well consist of the testimony of experts. Great caution should be exercised by the courts in requiring parties to furnish particulars in actions for damages resulting from negligence. It is usually impossible for a plaintiff to know with any degree of precision what the proof will be, and the bill of particulars would in most cases of that character be an instrument of embarrassment and injustice." Although the case at bar is not one of negligence, yet it approximates sufficiently to it to come within the application of the learned judge's words. In the case at bar the declaration gave the gross amount of damage claimed, and the bill of particulars gave various other details sufficient to inform the defendant for all the purposes of defense.

A class of exceptions relating to the admission of testimony of fires originating prior and up to the time of the fire in this case, or of cinders lying alongside of the track, either inside of the railroad company's land or outside of it, or as to whether or not locomotives on the road of this defendant were in the habit of throwing off sparks and

cinders prior to May 4, 1901, the date of the fire in this case, or whether these cinders and sparks are capable of igniting fires, or of such a nature that they could and do ignite fires, form eight grounds for the petition for a new trial.

It devolved upon the plaintiff, in order to entitle him to recover, to show that the damage complained of was caused by fire communicated from the engines, cars, or other vehicles of the defendant, or by those in their employ, but whether with or without negligence was quite immaterial. MacDonald v. N. Y., N. H. & H. R. Co., 23 R. I. 577, 51 Atl. 578. As there are few, if any, cases where persons see the fire directly communicated, proof of the communication must necessarily be more or less circumstantial. As tending to show that the fire was set by the defendant, it has been held competent to prove that at various times before the fire occurred the engines of the company set out fires along its line in the vicinity, and it has also been held competent to show that coals of fire had previously been dropped or been found on the track at or near the place where the injury occurred. See 3 Elliott on Railroads, § 1243, and notes 1 and 3 on page 1939, and 1 and 3 on page 1940. In Smith v. Old Colony, etc., R. Co., 10 R. I. 22, 27, Durfee, C. J., said: "A second purpose for which such testimony might be admissible is this, namely, to show the possibility of communicating fire by sparks from a locomotive, if any question were made upon that point, and for this purpose it would be immaterial whether the testimony related to fires of an earlier or later date than the one in question. If, however, the possibility were not questioned, and especially if it were admitted that the fire so originated, testimony relating to fires of a later date should be carefully excluded, as being irrelevant, and as having a tendency to excite prejudice against the company." In the case at bar the defendant did not admit anything. By his plea of the general issue the defendant held the plaintiff up to strict proof, and the record of the trial shows no oral admissions as to how the fire originated, or as to the possibilities in relation thereto, and the presiding justice excluded all testimony as to any such fires subsequent to the date of the fire complained of in this case. In Union Pacific Ry. Co. v. De Busk, 12 Colo. 294, 20 Pac. 752, 3 L. R. A. 350, 13 Am. St. Rep. 221, where it was shown that a fire sprang up just after a train had passed, and that there was no other fire on the premises before, and no other apparent cause for the fire, it was held that the evidence was sufficient to warrant a finding that it was set by the passing train. See, also. A., T. & S. F. R. Co. v. Gibson, 42 Kan. 34, 37, 21 Pac. 788. We think the testimony showing the circumstances referred to was competent, as tending to show the origin of the fire in this case.

As to a lot of the defendant corporation's

land inside its fence being burned over, we think it comes within the rule laid down as to other lands just passed on, for it was apparent that the sole purpose of the question was as to the possibility of the defendant's engines igniting fires, and not as to the right of the defendant to intentionally do with its own property what it chose.

*

The several grounds of exceptions relating to the questions of damage do not seem to us sustainable. What the defendant corporation is liable for under the act is "for all damages which may arise from the burning of houses, wood, hay, or any other substance, damages equal to the value thereof." The declaration alleges the damage to be $2,000, and the declaration and bill of particulars give many details of the kind and amount of damage done, and we think that is a sufficient allegation to support the verdict. In Spink against this same defendant (24 R. I. 560, 54 Atl. 47), this court, in construing this act, said the terms of the act making the company liable for damage caused by fire from its engines, embracing the burning of "houses, wood, hay, or any other substance whatever," are broad enough to cover all kinds of property. It is to be noted that the act under which the action in this case is brought has no clause providing for the railroad company's insuring property against the liability entailed by said act, as the statutes in some other states do. So the reasoning of the courts of some of those states, predicated upon such an insurance provision, has no force here.

The eighteenth ground for asking for a new trial is because the trial court, it is alleged, erred in admitting the question to the plaintiff as to who owned the land south of the railroad fence, where the fire is supposed to have originated, and his answers thereto, because it was irrelevant and immaterial. Though the defendant would be liable for damages to the plaintiff if it set out the fire that caused the damage on his land, whether with or without negligence, whoever owned the intervening land, yet we cannot say that the question of ownership of such intervening land would necessarily be so irrelevant and immaterial as to afford sufficient ground for a new trial. Under some circumstances, it might be highly relevant; and though, in the circumstances of this case, we fail to see the materiality of the ownership of that intervening land, yet we think its admission was utterly harmless to the defendant, and could not have confused the jury or have prejudiced the jurors against said defendant, and hence we think it does not. form a sufficient ground for granting a new trial.

The nineteenth ground alleged for a new trial is that the trial court erred in admitting the report of location or relocation of the New York, Providence & Boston Railroad filed in the court of common pleas for Washington county on October 17, 1836, without first proving that S. F. Denison and Ephraim

Williams, who signed it as executive committee of said New York, Providence & Boston Railroad Company, were the executive committee of said company. The liability under which the defendant was sued in this case arose under section 2 of the amendment of June 25, 1836, of the charter of the New York, Providence & Boston Company. The declaration does not formally state that "within ninety days from the rising of this General Assembly" (viz., the one that passed the said amendment) the corporation did "signify in writing to the secretary of this state, their assent to the requirements and provisions of this act," as provided for in section 10 of said act; but it did set out, step by step, the proceedings under said act by said New York, Providence & Boston Railroad Company, and, among other things, its relocation of said road as authorized under said section 10, and which relocation was tantamount to an acceptance. On demurrer to the plaintiff's declaration, this court so decided, and that the acceptance was sufficiently alleged. See 23 R. I. 558, 51 Atl. 578. The defendant's contention now seems to be that the relocation is not sufficiently proved. We think the plan and report of the relocation of the New York, Providence & Boston Railroad Company, filed for record in the court of common pleas for Washington county October 17, 1836, was properly admitted. It purports to be filed by the executive committee of said railroad, which had not then completed its formal organization. It states that it is filed by said railroad, and in compliance with the amending act of 1836. These are all formal acts necessary for the preservation of its charter, and were performed nearly 70 years ago. It is stated that Messrs. Denison and Williams are now dead, and it is not denied. The defendant does not deny that the relocation was made in 1836, and its charter thus preserved-in fact, it more than half admits it-but contends that strict proof of the agency must be shown. It offers no testimony itself upon the matter, though it must have succeeded to its predecessor's books and papers and to this relocation. It takes but slight evidence to make out a prima facie case under circumstances like these, where the defendant has such ample and exclusive means of, protecting itself against possible error; the best evidence being exclusively within its own control. We think there is a presumption that an official report like this, of such paramount importance to this defendant and its predecessor, filed officially in court in compliance with a legislative act, is done with authority. The age of the writing should cause it to be taken for what it purports to be until the contrary is shown. The authority of these members of the executive committee is of cardinal importance to this defendant and its predecessor, for it goes to the base of its organization. The defendant offered no evidence to rebut it in any way, and we think

The twentieth ground alleged for a new trial is the court's alleged refusal to charge in the defendant's exact words in defendant's third request as to the value of oak sprouts, as requested. We think the court had substantially covered the question of the value of oak sprouts previously in its charge, and that there was no reversible error there.

In the refusal of the court to allow the defendant to ask the plaintiff what he paid for his farm, we find no error. It is utterly immaterial what the plaintiff paid for it, and the price would not shed, nor tend to shed, any light upon the question at issue.

As to the other grounds alleged for a new trial, all of which we have carefully considered, we fail to find any sufficient to warrant us in granting a new trial. The verdict does not seem to us to be against the law and the evidence, and the weight thereof; nor does the verdict, $982.13, seem to us to be excessive.

For the reasons above set forth, the defendant's petition for a new trial is denied and dismissed, and the case is remitted to the common pleas division, with directions to enter judgment on the verdict for the plaintiff.

Action by Malinda McKinnie, as executrix of the estate of Henry McKinnie, deceased, against James Parke Postles. On demurrer to the declaration. Overruled.

The third count of the declaration was as follows:

"And also for that whereas, to wit, on the 21st day of July, A. D. 1897, the said Henry McKinnie, in his lifetime, and the said defendant, entered into an agreement in the following words and figures, to wit: "Contract for Quarters During the Knights

Templar Conclave, to be Held in Pittsburgh, Pennsylvania, October, 1898. ""This indenture, made in duplicate this 21st day of July, in the year of our Lord one thousand eight hundred and ninety seven, between Henry McKinnie, Proprietor Hotel Anderson, Pittsburgh, Pa., of the first part, and J. Parke Postles, Committee of, and representing St. Johns Commandery No. 1,

Wilmington, in the State of Delaware, of the second part:

66

'Witnesseth, that the said party of the first part, for and in consideration of one dollar ($1.00) part payment, receipt of which is hereby acknowledged, to be kept and performed by the said party of the first part, their heirs, executors, administrators, and assigns, has leased and demised, and does hereby lease and demise unto the said party of the second part, as hereinafter mentioned, lying and being in the City of Pittsburgh, County of Alleghaney, State of Pennsylvania, as follows, to wit:

"For Sleeping Rooms Nos. 250, 252, 253, 254, 255, 256, 258, 260, 263, 262, 264, 266, 267, 268, 269, 270, 272, 279, 281, 283, 293, 295, 297, 298, 299, in the Hotel Anderson, located at Penn Avenue and Sixth Street, in the City of Pittsburgh aforesaid, from October 10th to October 14th, 1898, inclusive, same being five days; it being understood that said 25 sleeping rooms will be made to accommodate One Hundred and Seven people comfortably in beds and cots.

"For the above sleeping rooms and meals, the said party of the second part agrees to pay to the said party of the first part Four ($4.00) Dollars each person per day for One Hundred and Seven People.

"It is further understood and agreed that the said Four ($4.00) Dollars per day includes all charges for rooms and meals.

"It is further understood and agreed that in case the said party of the second part should wish to remain in possession of the rooms for any number of days in excess of the five days mentioned, that the same rate per day will be made to apply to the actual number of people accommodated, whether the excess shall be before, or after, the dates mentioned.

"It is further understood and agreed that the above compensation pays for the actual service, in all particulars, of a first class hotel, i. e. chambermaids, porters, towels, hot and cold water for baths, etc.

"In case this 27th Triennial Conclave of Knights Templar for any reason, should not be held in Pittsburgh, Pa., thirty (30) days' notice in advance to be given, and this contract will be null and void; otherwise to remain in full force and effect.

"In witness whereof, the parties above named have hereunto set their hands and seals the day and year first above written. ""Henry McKinnie. "J. Parke Postles. "'Witness: W. W. Colville.'

"That the said St. Johns Commandery No. 1, Knights Templar, for which said defendant in the making of said agreement is described as the "committee of" and as "representing," is an unincorporated association having no corporate or legal status, and said agreement was entered into and executed in the state of Pennsylvania. That, although

the said Henry McKinnie, from the time of making the said agreement or lease, was, during his lifetime, and the said plaintiff since his death, always ready and prepared to fulfill all things on the part and behalf of the said Henry McKinnie agreed to be performed and fulfilled, to wit, at New Castle county aforesaid, yet the said defendant, contriving and wrongfully intending to injure the said Henry McKinnie in his lifetime and the said plaintiff since his decease, did not nor would perform any of said promises or undertakings mentioned in said agreement, and did not nor would permit or suffer the said Henry McKinnie at any time during his lifetime, nor the said plaintiff since his death, to perform and fulfill any of the things to be performed and fulfilled under said agreement or lease on the part of the said Henry McKinnie, and then and there wholly hindered and prevented the said Henry McKinnie and said plaintiff from so doing, and thereby then and there wrongfully discharged the said Henry McKinnie in his lifetime, and said plaintiff since his decease, from the performance or completion of any of the aforesaid promises and undertakings of the said Henry McKinnie, whereby the said Henry McKinnie, in his lifetime, and said plaintiff since his decease, lost and were deprived of all the profits and advantages which said Henry McKinnie or said plaintiff otherwise might and would have derived and acquired from the performance and fulfillment of his said promises and undertakings, to wit, at New Castle county aforesaid, to the damage of the said plaintiff of twenty-five hundred dollars; and therefore she brings her suit," etc.

To the above count the defendant's counsel filed a general demurrer.

JJ.

Argued before SPRUANCE and GRUBB,

Harry Emmons, for plaintiff. William T. Lynam and Herbert H. Ward, for defendant.

LORE, C. J. We overrule the demurrer. Upon election of defendant's counsel, let judgment of respondeat ouster be entered.

(69 N. J. L. 230)

PERRINE v. NORTH JERSEY ST. RY. CO. (Supreme Court of New Jersey. April 9,

1903.)

CARRIERS-STREET RAILWAYS-EJECTION OF PASSENGER-TRANSFERS TIME LIMIT-ER

RORS OF ISSUING-CONDUCTOR-ACTIONS EX DELICTO.

1. Where a passenger on a street car was entitled to continue his journey for the same fare on a connecting line within 10 minutes after leaving the original car at the junction, and he was ejected from the connecting car, which he had boarded within the time, by reason of the failure of the conductor of the first car to correctly punch the time of plaintiff's leaving the car on his transfer, such passenger

was not limited to an action for breach of contract, but was entitled to recover for his expulsion in an action of tort, unless by his own fault or negligence he aided in producing the situation which led to the expulsion.

Error to Circuit Court, Essex County.

Action by James H. Perrine against the North Jersey Street Railway Company. From a judgment in favor of defendant, plaintiff brings error. Reversed.

Argued November term, 1901, before GARRISON, GUMMERE, and COLLINS, JJ.

Van Buskirk & Parker, for plaintiff in error. Charles L. Borgmeyer, for defendant in

error.

PER CURIAM. This was an action of tort for the wrongful ejection of the plaintiff from a trolley car of the defendant company. It appears from the evidence that the plaintiff took passage on one of the cars of the company, which ran over what is known as its "South Orange Line," for the purpose of going to Bayonne. To reach his destination, it was necessary for him to transfer to another car of the defendant company, which ran over its New York line. By paying his fare on the first car, he was entitled to ride not only on that car, but also on the New York car, provided he transferred to the latter within 10 minutes after disembarking from that which he first took; and he was entitled to receive a transfer ticket as an evidence of his right to do so. When he paid his fare he demanded of, and received from, the conductor of the South Orange car a transfer ticket to the New York line. He left the South Orange car at the junction point of the two lines, and boarded the next New York car which came along. He tendered the transfer ticket to the conductor of the lat ter car, but it was refused upon the ground that the time within which it was required to be used (that is, 10 minutes after leaving the South Orange car) had expired. Declining to pay an additional fare, he was then expelled from the car.

The rules of the company required that a conductor issuing a transfer ticket should punch upon it the time at which the passenger left the car, and that no other conductor should receive it in lieu of fare unless it was tendered within 10 minutes after the time punched upon it. The uncontradicted testimony of the plaintiff is that he boarded the New York car not more than 2 or 3 minutes after leaving the South Orange car. The uncontradicted testimony of the conductor by whom the transfer ticket was refused was that much more than 10 minutes had elapsed between the time punched on the ticket and the time when it was offered to and refused by him. It would seem to follow from this testimony that the conductor of the South Orange car had, by mistake, wrongfully punched the time on the ticket; thereby making it valueless as an evidence of the plaintiff's right to transportation on the New York