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and in cash; second, at the expiration of the policy the balance unpaid of the premiums, and of the notes given for premiums, is deducted from the insurance; the notes cannot include the interest, for that is presumed to have been already paid in cash, and at the proper time; third, the surplus or dividend is applied to the payment of the principal of the notes, pro tanto, and such was the practice during the first four years without question, and the interest was paid in cash at the end of each year; fourth, by the construction contended for by the learned counsel of the respondent, the policy would not be an eleven-year policy, or until the death of the insured, but a yearly policy or policy for one year. If the payments are all made for the first

2. The policy provides that "if the said premiums, or the interest upon any note, shall not be paid on or before the days mentioned for the payment thereof at, etc., or to, etc., the company shall not be liable for the payment of the whole sum assured, but only for such part thereof as is expressly stipulated above, and the remainder shall cease and determine." On casual reading this might seem to conflict with these several explicit clauses of total forfeiture, by reason of the in-year the assured may then stop and demand under terest not being paid. But if this conflict can be avoided by any other reasonable construction of this provision from the language itself, it is of course the duty to so construe it. "If the premiums are not paid," is followed by the disjunctive or if the inter

est is not paid." If either is not paid presupposes that one has been paid. Then what is the sense on this necessary hypothesis? Why, most clearly, if the said premiums for any oue year have been paid, or if not so paid, the interest upon any note or upon all the notes outstanding has been fully paid; that is, so long as such notes shall run and bear interest; then the assured may be entitled to as many tenths as the years in which such premiums were paid. The interest on any one note cannot be said to be paid annually in cash, and fully paid, for only a small part of the time in which such note runs or is outstanding. This suit is brought after the expiration of the policy. The condition of recovery of any thing upon the policy by this clause is that the interest on any or all of such outstanding notes shall have all been paid. Another form of the sentence, with the same sense, may be adopted, and that is, if the premiums up to the time of the default and the whole interest on any premium note have been fully paid, then a recovery may be had for such proportion as may be due by reason of the full payments of certain years. To illustrate: The plaintiff brings this suit long after the expiration of the eleven years' time of the policy, and demands $400, as the fourtenths of the whole insurance, because he has paid fully for four years. The defense is that may be true, but he has not paid the interest on the first four premium notes, which has been accruing from year to year since that time, and for that reason a forfeiture is demanded of the whole policy. Those premium notes have not been taken up or paid, and they will continue to bear interest until they are so taken up or paid. They become due only at the expiration of eleven years, the limitation of the policy, or at the death of the assured, by their terms. The interest thereon has been anticipated and appropriated by the company, as a fund certain to be paid, and paid in cash, and annually, so that the future interest upon such interest may be realized by the company.

We may say therefore that "the interest upon any note" means the whole interest on any note, without doing violence to the language of this clause of the policy. Such is the clear and obvious meaning of the language, and there is therefore no conflict between this provision and the other provisions quoted above. But if the language might possibly mean, as claimed by the learned counsel of the respondent, from all the provisions of the policy constituting one general scheme, construed together, to effectuate and carry out what the parties must have intended, such a construction would be compelled in order to give any force to several other provisions, perfectly clear and explicit, and to make such a method of insurance practicable and safe both to the insurer and the insured: First, the interest upon the premium nctes is payable annually,

this policy the one-tenth of the whole amount, or $100, and then give his premium note, and pay the cash premiums and interest, and have an assurance for another year. If the law allowed the company to do this kind of business, most certainly the company would find it most unprofitable to do so. But this is not the scheme of endowment insurance. The company are compelled to forfeit all policies on the failure to pay the interest annually in cash by the exigencies of their business, on this plan of life insurance. The theory that this system of giving premium notes is analogous to the assured paying the money to the company and borrowing it back upon annual interest, does not create one single reason against the above construction of the policy. The interest is made, and would be as imporportant to the company, and its prompt annual payment as necessary to their business by one theory as by the other. It was not only the practice of the plaintiff under this policy during the first four years to pay the interest annually in cash, and apply the dividends on the principal of the notes, but from the evidence it was and had been the invariable practice of the company to require and have the same to be so done, and in default of the payment of the interest in this way, to forfeit the whole policy, and this practice was made the basis of their future plans of business, and indispensable to them, and the plaintiff is presumed to have had notice of it. Fuller v. Mad. Mut. Ins. Co., 36 Wis. 599.

It is forcibly said in New York Life Ins. Co. v. Statham, 93 U. S. 24, by Mr. Justice Bradley: "All the calculutions of the insurance company are based upon the hypothesis of prompt payment. They do not calcu late on the receipt of the premiums when due, but upon compounding the interest upon them. It is on this basis that they are enabled to offer assurance at as favorable rates as they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment."

In Tait v. New York Life Ins. Co., 4 Big. 479, Emmons, J., said: "Out of a given number of insured persons statistics show that there will be, ou an average, a certain proportionate number of deaths each year, and in a mutual scheme the premiums to be paid each year by the whole number insured are fixed at such an amount as will make their sum total just sufficient to meet the losses arising from the average deaths during the year, and to provide for the unfore seen fluctuations of the law of average and other coutingencies, including necessary expenses. If time were thus held not to be the essence of these unilateral life insurance contracts, it is difficult to see how a mutual company can escape ultimate, if not speedy, bankruptcy."

No other consequence than a complete forfeiture is contemplated from the non-payment of the interest. It is only from default alone in the payment of the premiums that the policy may be valid for a propor tion of the insurance. Where a forfeiture of the entire policy is as necessary and essential to the very ex

istence of this plan of insurance, and to the continued business of the company thereon, and the language of the contract is so clear and explicit, and its sense so obvious, and the object and purpose so apparent, and when the cause and reason of the forfeiture have been so fully established, as in this case, the court cannot hesitate to so declare it. There can be no good reason of public policy, equity, or common justice, and no well-reasoned judicial decision of other courts against it, in such a case, or under such a policy. The contract and the law both force it, and to allow a recovery of any proportion of the insurance in such a case would be a repudiation of the contract of the parties, and a substitution of one never made or contemplated by them.

This view of the case, and such a construction of the contract of insurance, have been sanctioned and approved by several late decisions of other highly respectable courts in cases of the same form of policy, and in cases where some of the same provisions in the policy existed, but not the several conditions of forfeiture as in this. We shall cite only such cases as are found and commented on in the very able briefs of the learned counsel. In doing so however any extended quotations from the opinions in those cases will not be necessary; but any additional reasons therein not given above may be noticed.

In Ohde v. N. W. Life Ins. Co., 40 Iowa, 357, the policy did not contain the several conditions of forfeiture for non-payment of interest on the notes found in this policy, and yet the court construes the second condition of the policy upon which the plaintiff relies in this case to require the payment of the interest on the notes as a condition precedent to the recovery of any proportion of the insurance. The same in Symonds v. N. W. Life Ins. Co., 23 Minn. 491; N. W. Life Ins Co. v. Little, 56 Ind. 504; Ins. Co. v. Bonner, 36 Ohio St. 51; Fithian v. Same, 4 Mo. App. 386.

In New York Life Ins. Co. v. Statham, 93 U. S. 24, supra; Manhattan Life Ins. Co. v. Buck, id., the clauses of forfeiture were as to the non-payment of the premiums, and it was held that the company were legally entitled to the forfeiture; but in the latter case it was held by a majority of the court, that the great civil war having intervened to prevent the payments, the assured was equitably entitled to what his interest in the policy, by reason of the former payments, was worth; but there are strong dissenting opinions in that case that even such a cause was not an excuse to prevent a full forfeiture of the policy. The opinion of Mr. Justice Bradley as to such causes of full forfeiture is especially applicable to this case: "The contract is not for an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but it is an entire contract of assurance for life (11 years), subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract and such is its character. Each installment is, in fact, part consideration of the entire insurance for life; * * * the whole premiums are balanced against the whole insurance."

***

In St. Louis M. Life Ins. Co. v. Grigsby, 10 Bush, 310, the terms and conditions of the policy were almost exactly the same as in this case. The court held however that the interest on the premium notes might be paid in dividends, without citing any provision of the policy allowing it. Here it is to be paid in cash, the whole of it at the end of the year, and the dividends are applied upon the notes to reduce their principal. In that respect the two policies may be different. By this policy, when the time of its expiration arrives, the unpaid cash premiums, and the balance of the premium notes after the deduction of the dividends therefrom, are to be deducted from the insurance, and

nothing is said about the interest which was to be paid annually in cash, and therefore to be compounded if not paid. The yearly interest, when due, constitutes a new principal bearing interest, and would not be included in the term "notes." It is cash interest, to be paid promptly, while the principal of the notes need not be paid at all, but remains to be deducted from the insurance at the end of the policy. It is admitted in that case that the condition of the policy was that the entire policy might be forfeited for nonpayment of the interest, but that such forfeiture was in the nature of a penalty; but the court refuses to enforce such a condition because it may be compensated in the same way as the non-payment of the premiums. By what warrant of law or construction is the nonpayment of the interest placed upon the same footing as the non-payment of the cash premiums, when the contract of insurance makes the first a condition precedent to the recovery of any part of the insurance, and the second forfeits that part only for the years beyond the full payment, and allows a recovery of a proportion as to the time in which the premiums were paid? Such a broad license of equitable construction of a contract, where time is made the essence in respect to the performance of conditions, upon which the very business of life insurance depends, cannot be approved.

In Talt v. N. Y. Life Ins. Co., U. S. Cir. Ct. (Tenn.), 4 Big. Ins. Cas. 479, the policy provided for a full forfeiture on non-payment of the premiums. In an elaborate and most able opinion of Judge Emmons, it was held that the condition was essential to the business of the company, and the time of payment was the essence of the contract, and that the intervention of the civil war even would not excuse the non-performance, or affect the company's strict right of forfeiture of the whole policy. But in Hancock v. The Same Company; in the United States Circuit Court for the District of Kentucky, reported in the same volume, page 488, in a similar case, it was held that the assured, being provented by the civil war from further payment, after several years' payment of the yearly premiums, might recover in equity such damages as the plaintiff might have suffered in the matter, not however on the criterion of the actual premiums paid in the years before the default caused by the war. The legal right of the company to a full forfeiture of the policy was conceded, but the intervention of the war was supposed to have raised an equity in favor of the assured; that is, that under the peculiar circumstances the company ought in equity and good conscience to allow the assured something on the policy. But this ruling was opposed to numerous authorities cited by Judge Emmons in 4 Big., supra, in cases of interruption of performance of such contracts by war. When by a great preponderance of authority, it is held that even war, by which performance has become impossible, will not affect the right of an insurance company to declare an entire forfeiture of the whole contract, in which strict performance of conditions is made essential, and in default of which a forfeiture of the entire contract is stipulated in clear and unmistakable terms, what should be said of the Grigsby case, supra, of Ohde v. Ins. Co., supra 4 Little v. N. W. M. Life Ins. Co., supra, and Dutcher v. Brooklyn Life Ins. Co., 2 Cent. L.J.153, or 4 Big. Ins. 665, and perhaps some other cases, where the assured, not only without cause or excuse, but willfully and persistently refused to pay the interest on the premium notes, and where the contract in clear terms makes such a default the condition of complete forfeiture, and it is yet held that only a partial forfeiture or a forfeiture pro tanto may be declared? The only apology for such cases is that they were decided in courts of equity, where equitable constructions may sometimes. be allowed.

In Russum v. St. Louis M. Life Ins. Co. (St. Louis Court of Appeals), 5 Big. Ins. Cas. 243, the policy was precisely like the present one, and it was held in an elaborate and learned opinion by Judge Grant, that the entire policy is forfeited on failure to pay interest on the notes. The learned author of these reports, in a note appended to this case in which other cases are reviewed, sums up the result of his investigations on this question as follows: (1) This provision on the face of the policy of life insurance, that it will be forfeited for failure to pay interest on a premium note as agreed, will be respected and enforced in a court of law; (2) equity will in proper cases afford relief from such a forfeiture, and enforce a settlement between the parties, such as will preserve the rights of both." It may here be observed that if the assured in certain or proper cases, where the performance became impossible, or a great hardship, may be allowed some equitable compensation for his investment of payments for a certain part of the time of the insurance, by what rule of equity or of law can the court say that such compensation shall consist of a proportion of the insurance under another stipulation of the contract, made with no reference to the non-payment of interest, but only of premiums? In the first class of cases there is some consistency in holding that the non-payment of the interest worked a forfeiture of the whole policy in law, but that in equity the assured should be allowed some reasonable compensation, to be determined by the peculiar circumstances of the case.

In Moses v. Brooklyn Life Ins. Co., 50 Ga. 196, the policy provided for a two-years' policy on the payment of all the premiums for that time. For a part of such premiums notes were given. The condition of entire forfeiture was the failure to pay the premiums or the notes, or any part thereof when due. The dividends were to be applied to the payment of the notes, but there was a balance of such notes unpaid. The plaintiff brought his bill in equity for a paid-up two-years' policy. The court dismissed the bill on the ground of such non-payment of the notes.

In Smith v. St. Louis M. L. I. Co., 2 Tenn. Ch. 727, the condition was the payment of the interest on the notes annually in advance, and it was held that a failure to so pay according to the condition worked a forfeiture, but that the dividends might, under that policy, be applied upon the interest; and the court held the case to inquire whether such dividends as the insured was entitled to would be sufficient to discharge the interest. This was like the case of Hull v. The Same Company, 39 Wis. 397, in which it was provided that the dividends were first to be applied to the payment of the interest, and in that case the dividends exceeded the interest. It was a very different policy from this in many material respects, and may have been very properly called a nou-forfeitable policy. The

case of this Same Company v. Ross, 63 Ga. 199, follows the Hull case, in passing upon a policy containing the same provisions.

In Knickerbocker Ins. Co. v. Harlan, 56 Miss. 512, the condition of forfeiture for non-payment of interest was no stronger than in this policy, and not repeated as in this, and it was held imperative, and that the non-payment of the interest worked a complete forfeiture of the policy and of the whole insurance. In this case the Grigsby case is disapproved, as well as by five of the above cases holding the same rule.

In Putch v. Phoenix Ins. Co., 44 Vt. 481, the same doctrine is held in respect to the same condition. Atty. Gen. of N. Y. v. North America L. I. Co., 82 N. Y. 172, is to the same effect.

A sufficient number of cases on both sides of the question has been cited and examined, and other cases cited in the respective able briefs of the counsel will add nothing to the weight or reasoning of the cases

already cited. The case was well prepared and most ably presented, and I regret that I am not better able to do justice to a question of so much importance. It is not the business of courts to make contracts for parties, but only to enforce them. If a forfeiture has been clearly and explicitly stipulated, it must be de clared in a proper case according to the condition, and a party cannot justly complain of hardship from it, or ask relief against it, where as in this case, he has suffered voluntary default. The assured must be presumed to know and understand the various provisions of forfeiture in his own policy by which he may suffer loss through his own fault or negligence. We cannot but hold that the learned county judge erred in his instructions to the jury on the meaning or construction of this policy.

The judgment of the County Court is reversed, and the cause remanded for a new trial. Cassoday, J., took no part.

FAILURE TO PROVIDE FIRE ESCAPES-NO ACTION BY INDIVIDUAL.

RHODE ISLAND SUPREME COURT, MARCH 1, 1884.

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GRANT V. SLATER MILL AND POWER Co.* A local act of the Legislature affecting the city of Provi. dence provided that every building already built or hereafter to be erected in which twenty-five or more oper atives are employed in any of the stories above the second story, shall be provided with proper and sufficient, strong and durable, metallic fire escapes, or stairways constructed as required by this act, unless exempted therefrom by the inspector of buildings, which shall be kept in good repair by the owner of such building, and no person shall at any time place any incumbrance upon any such fire escapes."

Plaintiff, who was employed as an operative in a building

subject to the act, was compelled by a fire to jump from an upper window and thereby suffered injuries, there being no fire escape on the building, and brought trespass on the case against the owner of the building to recover damages for his injuries, alleging the owner's violation of the duties imposed by the act.

Held, that the action could not be maintained. That the scheme of the act was to secure safe structures as a police measure and for the general safety.

Held further, that it was not the scheme of the act to create any duty which could be made the subject of an action by individuals, and that no remedy in favor of individuals beyond what is expressly given in the act should be implied for mere neglect to perform the duties created by the act.

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The plaintiff's declaration stated that the defendant corporation owned and rented a building in which he was employed as an operative, that the defendant neglected to comply with the provisions of Pub. Laws R. I., ch. 688 of April 12, 1878, although subject to these provisions, in consequence of which the plaintiff was compelled by a conflagration in the building to leap from a window in an upper story in order to save his life; that his leg was fractured in the leap, and ampu tation became necessary.

So much of the act as is involved in the case is re cited in the opinion of the court.

Spooner, Miller & Brown, for plaintiff.

Charles Hart, Benjamin T. Eames & Stephen A. Cooke, Jun., for defendant.

*To appear in 14 Rhode Island Reports.

DURFEE, C. J. This is case to recover damages for injuries to the plaintiff caused by a destructive fire, which occurred November 21, 1882, in a building belonging to the defendant corporation, in which the plaintiff was employed as an operative. The action is founded on Public Laws R. I., ch. 688, § 23 of April 12, 1878, entitled "An Act in relation to buildings in the city of Providence and for other purposes." Section 23 is as follows, to wit:

"Section 23. Every building already built, or hereafter to be erected, in which twenty-five or more operatives are employed in any of the stories above the second story, shall be provided with proper and sufficient, strong and durable metallic fire escapes, or stairways constructed as required by this act, unless exempted therefrom by the inspector of buildings, which shall be kept in good repair by the owner of such building, and no person shall at any time place any incumbrance upon any such fire escapes."

The declaration avers that the building which was burnt was four stories high, and that more than twenty-five operatives were employed in each of the two upper stories. The declaration also alleges that said third and fourth stories were rented for workshops for manufacturing purposes by the corporation; that the operatives were employed by the tenants; that the corporation rented the said stories knowing there were more than twenty-five operatives employed in each of them; that it derived great gains from the renting thereof, and that it thereby became subject to the duties imposed by the act. The corporation demurs to the declaration and contends that it is not liable to the action.

The question raised is one of great difficulty, as the question of civil liability is apt to be under such a statute. Cooley on Torts, 650, 651. The act expressly gives two remedies. Section 37 provides that any person violating any provision of the act, wherein no other penalty is prescribed, shall be fined twenty dollars for every violation, and not exceeding twenty dollars for every day's continuance of the violation after service of warrant in the first complaint. The same section also provides that the Supreme Court may restrain by injunction any violation of the act and may according to the course of equity secure the fulfillment and execution of the provisions thereof. The fines, when recovered, are directed to be paid into the city treasury. If the remedy by fine were the only remedy given, the inference would be, as decided in Aldrich v. Howard, 7 R. I. 199, that it was intended only as punishment for the public offense, and the remedy by action on the case in favor of persons specially imposed, if such remedy were proper, would not be excluded. But in this respect the case at bar differs from Aldrich v. Howard, for in the case at bar there is the remedy by suit in equity which is not purely a public remedy. The question therefore is whether two remedies being given, one of which is not necessarily solely for the public, it is not to be presumed that they were intended to be the only remedies. The familiar rule is, where a new right is created or a new duty imposed by statute, there if a remedy be given by the same statute for its violation or non-fulfillment, the remedy given is exclusive.

Is this rule inapplicable to the case at bar? Or to put the question in another form, is the case at bar au exception to the rule? If it be, it is because the remedy in equity, being purely preventive, is no remedy for an injury already incurred. The answer to that is, if the preventive remedy had been resorted to in season, no injury would have been incurred.

We are not prepared to say that the answer is entirely satisfactory, nor are we prepared to say that a statute might not be enacted, especially if it were enacted simply for the benefit of particular persons, under

which the remedy in equity would be so clearly inadequate that it could not be presumed to have been intended to exclude the common-law remedy by action on the case.

It is evident however that the act here was designed primarily as a police regulation and only incidentally, if at all, for the benefit of particular persons or classes of persons. It is when there is or may be a combination of both purposes that the difficulty arises.

In such a case, says Judge Cooley, the question of civil liability for neglect of duty can only be determined by a careful consideration of the statute. Cooley on Torts, 681. This too is the doctrine enunciated in Atkinson v. New Castle Waterworks Co., L. R., 2 Exch. Div. 441. There an act incorporating a company for the purpose of supplying a town with water gave certain powers and imposed certain duties, among which was the duty of keeping a number of fire plugs, so called, always charged for service in case of fire. The company neglected to keep the fire plugs charged, and the plaintiff's house, situated near one of them, was destroyed by fire. He sued the company for damages, alleging that he had lost his house in consequence of the neglect. The act gave no civil common-law remedy, but prescribed penalties. Some of the penalties were purely public, the penalty for neglect to keep the fire plugs charged being such. Forfeitures of forty shillings a day were however given to rate payers entitled to water for neglect to supply them. The court held that the company was liable to individuals only for these forfeitures, and consequently not liable to them at all for neglecting to keep the fire plugs charged.

The judges, Cairns, L. C., Cockburn, C. J., and Brett, L. J., all of them doubted the correctness of the rule laid down in Couch v. Steel, 3 El. & B. 402, namely, that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed.

Lord Cairns expressed the opinion that the question of liability must, to a great extent, "depend on the purview of the Legislature in the particular statute and the language which they have there employed." The authority of the case as a precedent however is qualified by the fact that the act there was a private act, "in the nature of a legislative bargain," and the court considered it to be entitled to a stricter interpretation on that account. Nevertheless the case is very instructive, for the real pith of it is this, that the Legislature had expressed itself on the subject of remedies, giving a limited remedy to individuals, and that therefore no other remedy in favor of them could be implied. The same reasoning is applicable to the case at bar; for here the Legislature has expressed itself on the subject of remedies, and given an equitable remedy which is applicable in favor of individuals as well as of the public. Shall we say that still another remedy may be implied or shall we hold to the maxim, expressum facit cessare tacitum.

An examination of our act discloses peculiarities which ought not to be disregarded. The act was passed by the General Assembly on the last day of its January session, 1878, and went into effect ten days after its passage. It is difficult to believe that the General Assembly can have expected that all the buildings within the purview of section 23 could be furnished with fire escapes or stairways as required by the act within so short a time, or can have intended, that if not furnished, their owners should be liable civilly as well as criminally for not furnishing them. Again section 23 declares that the fire escapes and stairways shall be furnished but does not declare by whom they shall be furnished; it only declares that

they shall be kept in repair by the owner. If a building be let, why should the owner rather than the lessee be required to furnish the fire escape, when it is the lessee who creates the necessity for it by employing twenty-five or more operatives in some story above the second? It might be plausibly argued that the matter was purposely left uncertain so that the liabil ity to the duty might be determined and enforced in equity. The uncertainty on this point affords an argument, to say the least, that no civil liability was intended except such as could be enforced by the equitable remedy provided by the statute; for certainly the General Assembly would have made clear who is to perform the duty if it had meant to have the neglect of it entail so incalculable a liability. Further it will be observed that the duty does not attach unless there are at least twenty-five operatives employed in some story above the second. Now if the owner be subject to the duty, even when the building is let, the lessee of an upper story, employing less than twenty-five operatives there, has it in his power, by adding to the number, to expose the owner to this tremendous liability, and unless notice be necessary, which if the liability exist, is extremely doubtful, to say the least, he may expose him at any time without notice of the exposure. It cannot be supposed that the General Assembly intended this.

The plaintiff contends that the duty was imposed particularly for the benefit of the operatives, and that therefore if any operative be injured by the neglect of it, he ought to have his action for damages for his injury. This view however is not so clear as at first blush it seems.

Undoubtedly if there be a fire escape on a building where there are operatives, they will have a right to use it in case of fire; and so we apprehend, will any other person who happens to be there, have as good a right as the operatives, which they would not have if the fire escapes were required particularly for the operatives. If in a building six stories high there were twenty-five operatives in the third story, making the fire escape necessary under the act, the fire escape, we think, would have to go to the top, if the building was occupied to the top, though there were not so many as twenty-five in either of the higher stories. Moreover the inspector of buildings has a right to exempt any building from the operation of section 23, though it would otherwise be subject to it. It seems improbable that the inspector would have this power if the duty was imposed particularly for the benefit of the operatives. The inference is that the General Assembly regarded the duty as a duty to the public, and therefore empowered the inspector as the representative of the public to remit or exact it. Section 6 of the act charges the inspector with the duty of executing its provisions.

Section 23 is only one of a multitude of provisions contained in the act in regard to buildings and their construction in the city of Providence. The obvious purpose was to secure good, safe, and durable houses, as a measure of police, for the general security. We do not discover any indications of regard for particufar persons, or classes of persons, except the ambiguous indication which we have already considered. The act is local and therefore not to be extended by construction further than the well-established canons re. quire. Evidently the inspector of buildings was mainly relied on to carry it into effect. The remedy by penal prosecution and the remedy in equity are clearly his only weapons. Undoubtedly the remedy in equity is available in a proper case to individuals. It seems to us that further than this. to quote the language of Lord Cairns, "it was no part of the scheme of this act to create any duty which was to become the subject of an action at the suit of individuals," and

that therefore no remedy for individuals, beyond that which is expressly given, should be implied for any mere neglect of the duties imposed by the act. We do not consider that in so holding we are overruling the decision of this court in Aldrich v. Howard, 7 R. I. 199; for there no remedy whatever was given which was available for individuals, and moreover the action was not for any mere neglect of duty, but for a transgression which made the building complained of illegal, and so a standing nuisance from which the plaintiff was suffering a continuing injury. The court in its decision in Aldrich v. Howard, following Couch v. Steel, laid down the law more broadly than was necessary for the decision, and more broadly too than would now be sustained by the English courts, unless the comments on Couch v. Steel, made by Lord Cairns and Lord Cockburn in Atkinson v. Newcastle Waterworks Co., are very misleading. See also Addison on Torts, 67; Stevens v. Jeacocke, 11 Q. B. (N. S.) 731, 741; Flynn v. Canton Co. of Baltimore, 40 Md. 312; Heeney v. Sprague, 11 R. I. 456.

Demurrer sustained.

UNITED STATES SUPREME COURT ABSTRACT.

JURISDICTION-AMOUNT IN DISPUTE.-The value of two sections of land which are in dispute is conceded to be more than $5,000. The complaint alleges a joint entry and ouster, and the answer does not set up separate claims to distinct parcels of the land by the sev eral defendants. The judgment for the recovery of the possession is against all the defendants jointly. In this respect the case is entirely different from those of Tupper v. Wise and Lynch v. Bailey, 110 U. S. 398; 2 N.Y. Sup. Ct. Rep. 26, 27. We have jurisdiction therefore. Friend v. Wise. Opinion by Waite, C. J. [Decided May 5, 1884.]

TRUST-PROCEDURE-GENERAL GUARDIAN OR GUAR DIAN AD LITEM-STATE LAW--EXECUTOR AND TRUSTEE -WHEN ONE CAPACITY CEASES AND ANOTHER BEGINS. -What was the proper method of proceeding against defendants, whether by general guardian or guardian ad litem, is a question local to the law of the jurisdiction, and in the proceeding under review, was passed on by the State court. It found in the decree that "the said minors were duly represented by their guardians," and that finding cannot be questioned collaterally, as it is not a question of jurisdiction. Coit v. Haven, 30 Conn. 190; Christmas v. Russell, 5 Wall. 290; Thompson v. Whitman, 18 id. 457. It seems to be in accordance with the general practice in Connecticut for a general guardian to be made a party and to defend for his ward, and that in such cases the appointment and appearance of a guardian ad litem are not necessary. Reeves Dom. Rel. 267; 1 Swift's System, 217; 1 Swift's Digest, 51; Wilford v. Grant, Kirby, 114. In the original bequest to the children of Christopher Colt in the will of annuities for education and support during minority, and 100 shares of stock, payable on arriving at age, there are no words creating a trust; and yet the executors in the meantime were bound to them, in respect to these benefits and interests, as executors, and yet in trust, quite as much as they were, in respect to the 500 shares, by the words of that bequest. As long as personal property is held by execu tors as part of the estate of the testator, for the payment of debts or legacies, or as a residuum to be distributed, they hold it by virtue of their office, and are accountable for it as executors; that liability only ceases when it has been taken out of the estate of the testator and and appropriated to and made the property of the cestui que trust. Bond v. Graham, 1 Hare,

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