As his care, and that it was through no fault of hers that the drain disappeared and was lost within the incision made by the defendant, and remained within the wound in her breast, which healed by first intention. such drains are not ordinarily permitted, in the exercise of good surgery, to remain within the body of a patient after a wound has so healed, proof of the fact that the drain in question was left by the defendant in the breast of the plaintiff imposed upon him the burden of explaining that its presence there was not due to his negligence in the premises. [2] The jury found for the plaintiff, and their verdict was sustained by the judge who presided at the trial. In such circumstances, the rule approved in the case of Wilcox v. Rhode Island Company, 29 R. I. 292, 70 Atl. 913, is controlling. [3] The damages awarded are not so large as to shock the conscience of the court, or to indicate that the verdict of the jury was actuated by passion, prejudice, or other improper motive. The defendant's exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict. SAYLES v. STEERE. (Supreme Court of Rhode Island. May 11, 1912.) APPEAL AND ERROR (§ 353*) - EXTENDING TIME. Under Gen. Laws 1909, c. 297, § 3, providing that when a person is aggrieved by a decree, and from accident or mistake has failed to prosecute his appeal, the Supreme Court, if it appears that justice requires a revision of the case, may, on petition filed within a year after entry of such decree, allow an appeal, one cannot be allowed to affect a decree appointing an administrator, entered more than a year before the petition. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1920-1922; Dec. Dig. § 353.*] Petition, under Gen. Laws 1909, c. 297, § 3, of Laura M. Sayles against Varnum Steere. Denied. Frank L. Hanley, of Providence, for plaintiff. Tillinghast & Collins, of Providence, for defendant. PER CURIAM. The petitioner would receive no benefit from the granting of her petition. The same cannot operate to affect the decree of the probate court, entered June 26, 1909, appointing Varnum Steere administrator d. b. n. on the estate of Elliot S. Sayles, from which decree no appeal was taken by the petitioner, and the statutory time for granting relief by allowing an appeal to be taken has long since elapsed. The petition of the said Laura M. Sayles is therefore denied and dismissed. SHAW v. STREICHER et al. (Supreme Court of Rhode Island. May 11, 1912.) APPEAL AND ERROR (§ 1005*)-REVIEW-CONFLICTING EVIDENCE. tions upon conflicting evidence and approved by the trial judge will not be disturbed, in the absence of a showing of improper motive or error in the approval. A verdict rendered under suitable instruc Error, Cent. Dig. §§ 3860-3876, 3948-3950; [Ed. Note.-For other cases, see Appeal and Dec. Dig. § 1005.*] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Henry Shaw against Mark Streicher and others. From a decision for plaintiff, defendants bring exceptions. Ex ceptions overruled, with directions. William A. Heathman, of Providence, for plaintiffs. J. Jerome Hahn, of Providence, for defendant. PER CURIAM. The evidence in this case was conflicting, and was properly submitted to the jury under suitable instructions, and the verdict for the plaintiff has been approved by the justice of the superior court who presided at the trial. In these circumstances, in the absence of anything to indicate that the verdict was the result of some improper motive actuating the jury, or that the judge erred in his approval, the verdict ought not to be disturbed. The newly discovered evidence is not of such a character as to be likely to change the result, if another trial should be had. The defendants' exceptions are therefore overruled, and the case is remitted to the superior court, with direction to enter judgment on the verdict. (34 R. I. 261) LYNCH v. LYNCH. (Supreme Court of Rhode Island. May 13, 1912.) MARRIAGE (8 59*)-ANNULment-DefenSES. If petitioner was married to another when she attempted to marry defendant, in reliance cured and showed to her, the fact that she conupon an alleged invalid divorce which he protinued to cohabit with defendant did not make her in pari delicto, so as to prevent her having the marriage with defendant annulled; the state having an interest in having the marriage annulled, if it were in fact invalid because of the former marriage. [Ed. Note. For other cases, see Marriage, Dec. Dig. § 59.*] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Margaret E. Lynch against Charles W. Lynch. Judgment dismissing the petition, and petitioner excepts. Exceptions sustained, and case remanded for further proceedings as directed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Page & Cushing, of Providence, for peti- | respondent will be given an opportunity, on tioner. Cassius L. Kneeland, of Providence, the 3d day of June, 1912, at 10 o'clock for respondent. a. m., to show cause why said case should not be remitted to the superior court, with direction to forthwith enter a decision in favor of the petitioner, granting her petition, and annulling the marriage between her and the respondent, on the ground that the same was originally void in law, the final decree WAYLAND et al. v. CITY OF WOON- 1912.) Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. against the City of Woonsocket and others. Action by Frances M. G. Wayland and others From a decree for complainants, defendants appeal. Appeal dismissed, decree affirmed, and the cause remanded for further proceedings. PER CURIAM. The evidence clearly shows that at the time of the marriage of the above-named parties the petitioner had a husband living, who is still alive, and that they have never been divorced. The respondent, prior to his marriage with the petition-in such case to be entered in accordance with er, obtained for, and gave to her, a paper the statute in such case made and provided. purporting to be a decree of divorce from her husband, but which was of no validity. Upon the strength of the same, and his representations to her, she married him, and they lived together as man and wife for (Supreme Court of Rhode Island. May 11, many years. For the past ten years they have not cohabited. The petitioner applied for a divorce from the respondent upon the ground of nonsupport. The case was heard, as an uncontested petition, and decision was rendered in her favor. Subsequently the respondent made application to the court to vacate the decision and reinstate the case, in order that he might contest the same, which motion was granted by the court. The counsel for the petitioner thereupon made preparation for another trial of the case, and in the course of his investigations learned of the former marriage of the petitioner, ascertained the residence of her first husband, and had an interview with him, which disclosed the fact of the first marriage and that the same had never been anulled or terminated, whereupon the petitioner amended her petition for divorce by alleging that her marriage with the respondent was originally void. The case was then heard by a justice of the superior court, who decided that the petitioner had not come into court with clean hands, and thereupon dismissed the petition. Erwin J. France, of Woonsocket, for appellants. Green, Hinckley & Allen, Theodore Francis Green, and Arthur M. Allen, all of Providence, for appellees. tice of the superior court, before whom this PER CURIAM. The conclusions of the juscause was tried, are fully sustained both by the law and the evidence. The respondents' appeal is therefore dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings. SMITH V. PROVIDENCE TELEPHONE CO. (Supreme Court of Rhode Island. May 11, 1912.) Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Action by Mary Smith against the Providence Telephone Company. There was a verdict for Overruled, and case remitted for judgment on plaintiff, and defendant brings exceptions. the verdict. Harry J. Williams, of Providence, for plaintiff. Vincent, Boss & Barnefield, and Alexander L. Churchill, all of Providence, for de fendant. His opinion was that the petitioner knew or ought to have known that she was not divorced from her first husband, and that her continued cohabitation with the respondent was of a willfully bigamous nature, and that she was not entitled to relief in the premises under such conditions. Her legal status, however, is something in which the state as well as the parties are interested. If, as a matter of fact, she was already married when she undertook to enter into the married state with the respondent, such second marriage was a nullity, and the courting and maintaining the manhole cover in quesshould so declare. The judge of the superior court found such to be the fact, and declined to give decision for the petitioner solely upon the ground that she was in pari delicto with the respondent. In this the court erred. The petitioner's exception to the ruling of the justice is therefore sustained, and the PER CURIAM. The defendant's motion for direction of a verdict in its favor was properly denied by the judge of the superior court who presided at the trial of the case. The question of the defendant's negligence in plac tion in the sidewalk of Gaspee street was rightly submitted by the judge to the jury under suitable instructions. The defendant does not insist upon the validity of the other exceptions taken in its behalf. overruled, and the case is remitted to the suThe defendant's exceptions are therefore perior court, with direction to enter judgment on the verdict. (82 N. J. L. 596) (Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS (§ 115*)-ORDINANCES-POWER TO REPEAL. As a general rule the power to pass an ordinance includes the power to repeal it. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 266, 267; Dec. Dig. 115.*] 2. MUNICIPAL CORPORATIONS (§ 312*)-ORDINANCES-POWER TO REPEAL. Section 33 of the Borough Act (P. L. 1897, p. 301) provides that "the council shall have power and authority by ordinance * * * to lay out, open etc. any street or avenue.' An ordinance for the initiation of such an improvement having been passed by a borough council, a member thereof who had voted therefor demanded $1,000 for land of his that would be taken, and it was ascertained that for the lands of other owners damages would have to be paid. Upon the coming in of the report of the commissioners of assessment the ordinance was repealed, no portion of the proposed street having been actually opened. Held, that at this stage of the proceeding council had power to repeal its said ordinance. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 824; Dec. Dig. 8 312.*] (Additional Syllabus by Editorial Staff.j 3. MUNICIPAL CORPORATIONS (§ 105*) "ORDINANCE." "Ordinance," as a term of municipal law, is the equivalent of legislative action, and in a statute carries with it by implication the usual incidents of such action. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 223, 224; Dec. Dig. § 105.* For other definitions, see Words and Phrases, vol. 6, pp. 5024-5027.] Error to Supreme Court. Action by Jennie T. Stemmler against the Borough of Madison. Judgment for plaintiff, and defendant brings error. Affirmed. The judgment of the Supreme Court set aside an ordinance repealing what is designated in the case as the "Oak Street Ordinance." pealer ordinance was passed by the council and approved by the mayor November 16, 1910. No portion of the so-called Oak street has ever been actually opened or prepared as a street by the borough. The prosecutrix having, between the passage of the ordinance and its repeal, bought land fronting on Oak street as described in the ordinance, the Supreme Court, on a writ of certiorari sued out by her, held that the council had no power to repeal the ordi nance. Charles A. Rathbun, for plaintiff in error. Edward K. Mills, for defendant in error. GARRISON, J. (after stating the facts as above). [1] Of the implied power to repeal ordinances, Dillon tersely says: "The power to make includes the power to repeal." Municipal Corporations, p. 314. In Hudson Telephone Co. v. Jersey City, 49 N. J. Law, 303, 8 Atl. 123, 60 Am. Rep. 619, Justice Reed said of this implied power: "It is a general power, which exists, outside of the express power conferred by the charter, by reason of the right to pass ordinances." And such in varying form is the statement of the rule when the ordinance is not a contract, or one that is, from its nature, exhausted by a single exercise. Cyc. p. 383; 21 A. & E. Enc. Law, p. 1002. 28 [2] The implication in question may, of course, be negatived by statutory language, and such, in the present case, the Supreme Court thought was the effect of sections 33 and 58 of the Borough Act of 1897. We do not, however, find in these sections, or elsewhere in the act, anything that abrogates this salutary and well-nigh indispensable rule, which proceeds upon the principle that, when the Legislature confers upon a deliberative body a power to be exercised by it, such grant, without express words, includes the ordinary incidents of the exercise of similar powers by such a body. Such incidents are by this rule presumed to have been in the legislative mind in the selection of the recipient of its delegated power. The nature of the powers to be implied depends, therefore, upon the nature of their recipient; a power conferred upon a judicial body having one set of implications, and a power conferred upon a deliberative body having a totally different set. In every case something is left to implication, and the line cannot logically be drawn short of the exercise of the power by the recipient in accordance with its characteristic mode of procedure. In August, 1905, the council of the borough of Madison passed an ordinance which provided for the laying out of a street from Cook avenue to Central avenue. This ordinance received four votes, one being cast by Benjamin Warren Burnet, who owned a lot which would be taken. A committee of council interviewed the property owners, and all but three offered to donate the portion of their lands required. Mr. Burnet demanded $1,000. Mrs. Danforth would not [3] "Ordinance," as a term of municipal convey, and the estate of Luke C. De Hart law, is the euqivalent of legislative action, could not convey. On March 8, 1909, the and hence its employment in a statute carcommissioners appointed to assess damages ries with it by natural, if not necessary, imfiled a report, which on July 11, 1910, was re-plication the usual incidents of such action. jected. No conveyance for any of the lands If this were not so, the power to pass an was received by the borough, nor any dam- ordinance would not carry with it the power ages paid to any property owner. The re- to introduce it, or to refer it, or to amend For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes it, or to move for its reconsideration, or to apply to it any of the legislative or parliamentary usages that universally obtain in deliberative bodies as incidents of legislative action. That the right to repeal is as much an incident of ordinary legislative action as the right to enact rests, as we have seen, upon sound authority, and hence must, in reason, be included among those powers that pass by the natural implication that, if recognized at all, as it must be, cannot logically stop short of giving full effect to the legislative will as thus construed. That this should be so is well illustrated by a case like the present, in which an ordinance is passed at the very inception of a proceeding that in its progress may develop or disclose the gross impropriety of permitting it to proceed to a final conclusion detrimental to the public interest. In such a case it may be that the expense involved, when ascertained, renders it highly inexpedient to go on with the improvement. To such a case the remark of Chief Justice Beasley in O'Neill v. Freeholders of Hudson, 41 N. J. Law, 161, well applies. "A man of prudence," he says, "relinquishes a project when he finds the cost is likely to exceed in a large measure its benefit; it would seem intolerably unreasonable to require the agent of the public to pursue the opposite course." If, on the other hand, it transpires, as it did in the present case, that the ordinance on which the whole proceeding rests was vitiated ab initio by a violation of public policy, we have a situation to which the spirit of the judicial remark just quoted applies with equal force. If we thus assume, either that the expense, when ascertained, was excessive, or that, by reason of the interest of a councilman who voted for its passage, the ordinance was invalid as against public policy, and hence voidable, upon the authority of Traction Co. v. Board of Works, 56 N. J. Law, 431, 29 Atl. 163, or if for any other sufficient reason the proposed improvement was inexpedient, it is, in a sense, begging the question to argue that the sole remedy of council was to vacate the street that is thus in fieri. With as much show of reason it might be urged that the council should have procured a prosecutor to attack its ordinance in the courts. Such contentions do not touch the question of the power of the council to do directly by its own implied powers that which it is thus suggested it might properly do by indirection. The question is one of statutory construction. The express grant in the present case is: "The council shall have power and authority by ordinance to lay out street," etc. any to the council, which by its legislative action was to give to the public the benefit of its judgment-not of its snap judgment, but of its sound judgment, and not merely of its initial judgment, but, if necessary, of its mature judgment-and that to this end, under the rule of construction we have discussed, the power to pass the ordinance, which was the required legislative action, included during the pendency of the proceedings the power to repeal it. The right of the prosecutrix to question the action of council by virtue of her status as a citizen, or by reason of her legal interest in the controversy (into which she, so to speak, "bought herself"), although directly challenged, has been tacitly assumed for the purpose of reaching a decision upon the merits. The judgment of the Supreme Court is reversed, and the action of the borough council is affirmed. (2 Boyce, 509) AMERICAN AGR. CHEMICAL CO. v. (Superior Court of Delaware. New Castle. Nov. 27, 1911.) PLEADING (§ 350*)—Judgment ON AFFIDAVIT OF DEFENSE. Plaintiff is not entitled to judgment before the last day of the term on affidavit of davit of defense to be due, provided by statute demand for the amount admitted by the affiand rule 27 of the Superior Court; the motion for judgment by default not having been made until after the second Friday of the term. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1053, 1054, 1070-1077; Dec. Dig. 350.*] ical Company against George S. Gooden. On Action by the American Agricultural Chemapplication for judgment. Application denied. Summons case (No. 76, November term, 1911). Application for judgment at first term, before the last day of the term, on affidavit of demand, for the amount admitted to be due by the defendant in his affidavit of defense; the motion for judgment by default not having been made until after the second Friday of the said term, as provided by statute and rule 27 of the Superior Court. In support of his motion, plaintiff cited the said rule and chapter 135, vol. 16, Laws of Del.; Rev. Code, 699. Argued before BOYCE and RICE, JJ. Josiah O. Wolcott, of Wilmington, for plaintiff. Caleb E. Burchenal, of Wilmington, for defendant. BOYCE, J. This is an application for judgment after the second Friday of the term for the amount admitted by the defend By this language, we think, the expediency ant to be due in his affidavit of defense. of such improvements was committed wholly Notwithstanding the defendant's admission, we think the plaintiff cannot take judgment 2. RECEIVERS (§ 16*)-CONTEST PROCEEDINGS -PROTECTION OF ASSETS. at any other time than that named in the statute and rule of court; that is, on the second Friday of the term, or on the last day thereof. Of course, the plaintiff can make his election to take judgment for the amount admitted to be due, at any time within the term. He now asks for something more than an election to take judgment for the amount admitted to be due in the affidavit of defense; he asks for judgment immediately, and after the second Friday of the term. been adjudged a lunatic and his property trans- Code 1904, art. 93, § 67, provides that, where the validity of a will is contested, letters of administration, pending such contest, may be granted to the person named as executor, or to the person to whom the largest portion of the personal estate may be bequeathed in such contested will, or to the person who would be entitled to letters of administration by law, as in cases of intestacy. Const. art. 4, § 7, prohibits a judge from sitting Such a judgment, as is now asked for, may by special motion be entered on the second Friday of the term to which the process is returnable, or it will, by motion entered on the motion docket, be entered on the last day of the term, unless an adjournment of the court is had before that time for more than 10 days, in which event judgment may be entered on the day of such adjournment. We think the application to enter the judg-in a case wherein he is disqualified by interest ment immediately should be refused. RICE, J. Under section 4, chapter 106, Revised Code, page 789, provision is made for two kinds of speedy judgments. One on the last day of the term in default of affidavit of defense being filed; the other by statute and by rule of court making even a more speedy judgment, that is, on the second Friday of the term. The affidavit of defense, we understand, in this case, was filed on the first Thursday of the term, within the rule, and it gave the plaintiff from that time until the second Friday to elect as to one or more of the speedy forms of judgment, the first of these the plaintiff has failed to take advantage of. The other form of judgment, to my mind, is left to the last day of the term. (117 Md. 170) CURTIS et al. v. PIERSOL. (Court of Appeals of Maryland. Jan. 9, 1912.) 1. JUDGES (§ 42*) - JURISDICTION - ADMINISTRATION OF ESTATES-TRANSFER TO EQUITY COURT. Code Pub. Gen. Laws 1904, art. 93, § 234, confers on the orphans' court full power to take probate of wills, grant letters testamentary and of administration, direct the conduct and settling the accounts of executors and administrators, superintend the distribution of the estates of intestates, secure the rights of orphans and legatees, and to administer justice in all matters relative to the affairs of deceased persons, and that the courts of equity shall not interfere with such power, except on account of some special circumstances to which the power of the orphans' court may not be altogether adequate. Held, that the fact that one of the judges of the orphans' court was a nephew of the decedent and was named as remainderman in the decedent's alleged will was no ground for a transfer of the administration of the estate from the orphans' to the equity court. [Ed. Note. For other cases, see Judges, Cent. Dig. §§ 190-200; Dec. Dig. § 42.*] or consanguinity. Held, that an order appointing a temporary administrator for a decedent's estate, pending a contest of his will, was not invalid, because one of the judges of the orphans' court was named as a remainderman and was a nephew of decedent; there being nothing to show that such judge, if sitting at the hearing of the application, participated in the determination thereof or signed the or der. Cent. Dig. §8 190-200; Dec. Dig. § 42.*] Appeal from Circuit Court, Baltimore Action by Charles H. C. Curtis, Jr., and another against Harry A. Piersol, administrator pendente lite of the estate of Charles H. C. Curtis, deceased. From an order dismissing a bill in equity, praying for the removal of the administration to the equity court, complainants appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Samuel S. Boggs, for appellants. Robert H. Bussey and T. Scott Offutt, for appellee. PATTISON, J. This is an appeal from an order of the circuit court for Baltimore county, sitting in equity, dismissing the bill of the appellant. [1] The bill alleges that Charles H. C. Curtis, father of Charles H. C. Curtis, Jr., and Mary T. Donelson, the appellants, died on the 28th day of January, 1911, after having first made what purported to be his last will and testament, which was filed for probate, but to which a caveat was filed before the same was probated. The bill further alleges that Harry A. Piersol, nephew of the said Charles H. C. Curtis, was appointed administrator pendente lite by the orphans' court of said county; that at the time of the said appointment H. Seymour Piersol, a nephew of Charles H. C. Curtis, deceased, and who, as the bill alleges, is "named as For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |