probate court, shall fail to show reasonable opinion of the court, but was not formally cause therefor, said court may decree that rendered on account of his death. It is now he is guilty of unfaithful administration; adopted as the opinion of the court. and thereupon an action may be brought upon the bond of such executor or administra

tor by any such creditor who may have been damnified thereby." And section 16 of the same chapter makes the entry of such a decree a prerequisite to a suit on an executor's or administrator's bond. But there is no such requirement in the case of a guardian.

Section 25, c. 321, Gen. Laws 1909, is as follows: "Sec. 25. If a guardian shall neglect to return a true inventory of his ward's estate or shall neglect to apply the real and personal estate of his ward to the payment of his debts, it shall be deemed a breach of his bond, and he and his sureties shall be liable to an action thereon by any creditor or person interested, and judgment shall be entered in such action and execution shall issue and recovery shall be had in like manner as on administration bonds." Inasmuch as the probate court of Barrington had no statutory authority to enter a decree of unfaithful administration, it follows that the appellant's exception to the decision of the superior court affirming said decree on appeal must be sustained.

The plaintiff's intestate was killed while engaged as an employé of defendant in harthis action is brought by his widow and next nessing a pair of defendant's horses, and of kin to recover damages for such death. At the close of the testimony in the superior

court the defendant moved for the direction

of a verdict, on the ground that no negligence of the defendant had been proven, and also that the plaintiff assumed the risk of the accident in question, which motion was said denial, and after verdict for the plainThe defendant duly excepted to tiff has brought the cause to this court upon said exception.

denied.

The evidence is undisputed that the horses in question were what is known as "green" horses, and were nervous and high-spirited; but it is equally uncontradicted that they evidence, too, that at some time prior to the were not of a vicious disposition. There is broken to the use of a wagon of the weight accident the horses in question, while being and size of an ice wagon, had attempted to run. It was conceded that Armington, the deceased, was a skilled horseman of nearly

20 years' experience in driving all kinds of

The case is remitted to the superior court, with direction to enter a decree reversing the aforesaid decree of the probate court of Bar-horses, and the real question, therefore, is as rington as being made without jurisdiction.

ARMINGTON . PROVIDENCE ICE CO. (Supreme Court of Rhode Island. March 9, 1912.)

OF

ous.

to the notice which he had of the character and disposition of these horses. On that fact the uncontradicted testimony of plaintiff's witness Corcoran, a fellow driver and eyewitness of the accident, is as follows: "Q. 127. They had seemed nervous? A. NervQ. 128. And that was apparent to MASTER AND SERVANT (§ 217*)-INJURY TO both of you, was it not? A. Yes; more so, SERVANT NEGLIGENCE ASSUMPTION the off horse. * * * Q. 133. Now, I unRISK. Not only was there no negligence of the derstand you to say they sometimes acted master, but the employé, killed in harnessing a as if they would like to break away. pair of horses, assumed the risk; he not only that during the four days you and Mr. Armbeing an experienced horseman, and having knowledge that the horses were green and nervington were using them on the wagon? A. ous and high-spirited, and had repeatedly tried Yes; they always were naturally nervous, to break away while being hitched to the wag- hitching them up. * on, but having been specially warned as to their character and disposition, and having understood the warning.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Jane M. Armington, administratrix, against the Providence Ice Company. Verdict for plaintiff, and defendant brings exceptions. Exception sustained.

Ralph M. Greenlaw and Waterman, Curran & Hunt, for plaintiff. Vincent, Boss & Barnefield and Alexander L. Churchill, for defendant.

PER CURIAM. The following opinion was prepared by Mr. Justice BLODGETT as the

Was

And

Q. 140. Mr. Armington knew that the horses were green, and you and he discussed it, didn't you, somewhat? A. The only thing Mr. Armington knew, to my knowledge, that they were green horses. Q. 141. He knew they were green horses? A. Knew they were green horses. Q. 142. And you spoke to each other about their being nervous and highstrung, didn't you? A. No; I don't recollect saying anything to Mr. Armington to that effect, anything more than he could see for himself. Q. 143. It was perfectly apparent, wasn't it, that the horses were highstrung and nervous, and needed particular

care? A. Yes, sir; it was. Q. 144. I understood you to say he was a man experienced with horses. He wasn't a new man around horses? A. No, sir; he was a man that had drove for years. Q. 145. He didn't

make any complaint to you about this team [ court correctly awarded counsel fees to attorin any way? A. No, sir." neys of defendants, in the absence of evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3782, 3787; Dec. Dig. & 936.*]

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Suit by Alice W. Crowell and others against Russell C. Dubois and others. From a decree, complainants and defendant Henry J. Dubois appeal. Affirmed.

The undisputed testimony of Brennan, the defendant's superintendent, is as follows: "Q. 42. What did you tell Mr. Armington? A. I told him I should put his route on on Monday, and that he was to take the pair of horses that Corcoran was exercising; told him they were green horses, and I wanted him to chain the wheels at every stop; also I didn't want either of the horses to leave the barn without one or the other had hold of each horse, and they were both to be with them, one to look out for them at their heads, and the other to hitch. Q. 43. Did he say anything? A. Said, 'All right.'' Likewise the testimony of the defendant's witness Sweet is uncontradicted, as follows: "Q. 27. Did you have any conversation with Armington at that time? A. I did. Q. 28. PER CURIAM. A final decree of partition What was it? A. I made the remark to Armington that I understood he was going was entered in the above suit March 28, 1911. to have this team. Q. 29. Did you charac-To portions of this decree appeals have been terize the team? A. Yes; I said the green claimed, to wit, by Henry J. Dubois and by

pair of grey horses. Q. 30. What did he say? A. He says, 'Yes.' 'Well,' I said, 'I understand they are pretty high-strung, and you want to look out for them.' Q. 31. Did he make any answer? A. He did. Q. 32. What did he say? A. Said, 'I am not afraid of them.' Said, "They are all right.'"

The foregoing extracts from the testimony show that, in addition to the knowledge which Armington had that these horses were nervous and high-spirited, and repeatedly tried to break away while they were being hitched to the ice wagon, Armington was specially warned as to their character and disposition, and understood the warning. Under these circumstances, we see no negligence on the part of the defendant, and are of the opinion that Armington assumed the risk, against which he had been warned.

It follows that the defendant's exception to the refusal to direct a verdict for the de

fendant must be sustained.

CROWELL et al. v. DUBOIS et al.

E. W. Blodgett, for appellants Crowell and others. Claude J. Farnsworth and James F. Murphy, for respondent Schuyler. Dubois & Dubois, Cooney & Cahill, John E. Bolan, Alfred S. & Arthur P. Johnson, and Gardner, Pirce & Thornley, for various respondents.

the complainants. Said Henry J. Dubois, who was not an original party to the cause, was made a party respondent, by an order of the superior court, entered January 14, 1911, with his consent, wherein it appears that he and other parties were ordered to be made parties respondent by reason of being attach

ing creditors of the interest of Samuel H. Stephens, a person also not originally a parorder of said court entered October 8, 1910. ty, who had been made a party respondent by answered the bill. No transcript of evidence Neither Stephens nor Dubois appear to have has been brought to this court, and there is nothing in the papers before this court to Dubois in this cause is, or the nature thereof, show what the interest of the said Henry J.

other than as above set forth.

[1] Said Dubois claims an appeal from

said decree, claiming error in that it allots a portion of the estate to George A. Schuyler, administrator with the will annexed of the estate of Mary T. Merriss, and in that no provision is made therein for the benefit of the devisees under the will of said Mary T. Merriss. As no transcript of evidence and no documentary evidence of any kind is be

(Supreme Court of Rhode Island. March 9, fore this court as to the respective titles and

1912.)

1. APPEAL AND ERROR (§ 934*)-PRESUMPTIONS-DECREE.

a

The Supreme Court, on appeal from decree of partition, must presume that the decree was rightly entered on the evidence, in the absence of any transcript of evidence or documentary evidence as to the respective interests of the parties.

interests of the parties to the bill, from which it is or can be made to appear that the superior court in the entry of this decree ordering partition was in error, we are bound to presume that the decree of the superior court was rightly entered upon such evidence as was before that court. The appeal of

said Henry J. Dubois is therefore dismissed. [Ed. Note.-For other cases, see Appeal and [2] The claim of appeal by the complainError, Cent. Dig. §§ 3777-3781; Dec. Dig. 8 ants relates to a portion of the decree award934.*] ing counsel fees to certain attorneys for re2. APPEAL AND ERROR (§ 936*)-PRESUMP-spondents in said cause. This court is entireThe Supreme Court, on appeal from a ly without knowledge of any evidence or condecree of partition, must assume that the trial siderations which may have influenced the

TIONS-DECREE-ATTORNEY'S FEES.

superior court in its determination in this j leased a dog which was then chained in the regard; and we must therefore assume that this portion of the decree was entered by the superior court in the exercise of its own sound discretion, in view of its own knowledge of the travel and circumstances of the cause. The appeal of the complainants is therefore dismissed.

The decree of the superior court, entered March 28, 1911, is affirmed, and the cause is remanded to the superior court for further proceedings.

PALMER v. SACCOCIA.

yard. When the dog had come out of the inclosure of the defendant, the defendant's son incited the dog to attack the plaintiff, who was then out of the inclosure of the defendant. The dog bit the plaintiff and injured him severely. It does not appear that the plaintiff at any time had been within the inclosure of the defendant. The testimony does not show positively who was the owner of the dog at the time of said occurrence, but it does appear that the defendant had kept or harbored the dog on his land for some time previous to that day. After verdict for the plaintiff, the case is here upon exception to the refusal of the justice presiding at the

(Supreme Court of Rhode Island. March 8, trial to direct a verdict for the defendant at

1912.)

ANIMALS (§ 68*)-VICIOUS DOGS-STATUTES-
CONSTRUCTION.

Gen. Laws 1909, c. 135, § 3, provides that, if a dog shall assault or bite any person while traveling the highway or out of the inclosure of the owner or keeper of the dog, the owner or keeper shall be liable for the damages sustained; and section 5 declares that every person keeping or harboring, in his house or on Eis lands, any dog, or knowingly suffering the same to be done by any other person, shall be liable for all damages done by the dog in the safe manner as if he were the owner. Held that, where defendant harbored a dog, which was let loose by a third person and bit plaintif while in the highway, plaintiff never having been on defendant's premises, defendant was Lable, without reference to the means by which the dog escaped from the inclosure.

the close of the testimony as requested by the defendant, and also upon exceptions to certain instructions given by said justice to the jury.

The defendant's exceptions are all based upon his claim that he is not liable, because the dog was chained upon his premises and was released by a third person without the knowledge or consent of the defendant. The said justice instructed the jury that the defendant was liable for damage caused by the dog owned or kept by him, when said dog was out of the defendant's inclosure, regardless of the means whereby the dog was enabled to get out of said inclosure. Chapter 135, § 3, Gen. Laws 1909, provides among other things: "If any dog * a shall assault or bite or otherwise injure any person while traveling the highway or out of the inclosure of the owner or keeper of such dog, the owner or keeper of such dog shall Action by Walter R. Palmer against Mi-be liable to the person aggrieved as aforechael Saccocia. Judgment for plaintiff, and defendant brings exceptions. Overruled, with directions.

Ed. Note.--For other cases, see Animals, Cent. Dig. §§ 225, 226; Dec. Dig. § 68.*]

Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee. Judge.

Henry A. Palmer, for plaintiff. James J. McGovern and Harold W. James, for defend

ant.

said, for all damages sustained." Section 5 of said chapter 135 provides as follows: "Sec. 5. Every person keeping or harboring in his house or on his lands any dog, or knowingly suffering the same to be done by any other person, shall be liable for all damages done by said dog in the same manner as if he were the owner thereof." The statute does not consider or make of any consequence the manner in which the dog gets upon the highway or out of the defendant's inclosure. The liability of the defendant is not at all conditioned upon his negligence or fault in permitting or enabling the dog to leave his premises. The statute intends to place upon the person who owns, keeps, or harbors a dog the liability for injury which said dog may inflict outside of that person's inclosure. The ruling and instructions of the justice of which the defendant complains are without error.

SWEETLAND, J. This is an action to recover damages for injuries caused by a dog, alleged to have been owned or kept by the defendant at the time said injuries were received. At the trial in the superior court, before Mr. Justice Lee, sitting with a jury, the defendant presented no testimony. From the uncontradicted testimony of the plaintiff and his witnesses it appears that on November 13, 1909, the plaintiff, a boy then 14 years old, was playing with a son of the defendant, a boy of about the same age as the plaintiff, on Cranston street, in the city of Cranston, a short distance from the premises of the defendant; that the son of the The exceptions are overruled, and the case defendant became angry with the plaintiff, is remitted to the superior court, with diand, going upon his father's premises, re-rection to enter judgment upon the verdict. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

tion, setting out the existence of a public

GREENOUGH, Atty. Gen., v. INDUSTRIAL street between Market Square and Exchange

TRUST CO.

(Supreme Court of Rhode Island.
1912. On Motion for Reargument,
March 11, 1912.)

BOUNDARIES (§ 54*) - OFFICIAL SURVEY
BUILDINGS-MARKING STREET LINES-“DE-

TERMINED."

Pub. Laws 1895, c. 1406, 8 1, requires every person intending to erect a building within 10 feet of any street to file with the city engineer a written notice of such intention; section 2 provides that the city engineer shall "proceed to mark out and define the street line adjacent to the proposed structure, if such line can be accurately determined," and mark the grade of the adjacent street, if such grade has been duly established, and make return of said marking of line and grade to the inspector of buildings; and section 3 prohibits the inspector from issuing a building permit until he is satisfied that applicant has complied with section 2. Held, that a street line, not correctly marked by the city engineer, was not binding on an adjacent property owner, and could be questioned in a proceeding to enjoin the maintenance of a building within such line, marked by the engineer; the word "determined," as used in section 2, being equivalent to "ascertained" or "limited," and not meaning

"established."

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 268-277; Dec. Dig. § 54.*

For other definitions, see Words and Phrases, vol. 3, pp. 2038-2040.]

Case Certified from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

street, called Westminster street, which March 6, street is improved by a sidewalk on the northerly side thereof, which sidewalk extends to the front occupation line of each of the buildings abutting on said street, including the building on the Benjamin D. Weeden estate, so called, and measures about 134 feet in width; that all the buildings are ancient buildings, built on practically a straight front line abutting immediately on said sidewalk, that the sidewalk is of no greater width than is reasonably required for travel, and that the owners of the buildings dedicated to the public for travel said sidewalk; that the public continually used said sidewalk to the full width under a claim of right from time immemorial; that in 1879 there was an attempted layout of said street, making the sidewalk 91⁄2 feet in width and leaving a space of about 4 feet in front of said buildings; that said layout was not legal as to said Benjamin D. Weeden estate, and has never been observed, and that since said attempted layout said space of 4 feet has been left open to travel by the abutting owners and improved by them as a sidewalk, and that the public has continually since said attempted layout used the same as a matter of right; that the Industrial Trust Company acquired said Benjamin D. Weeden estate, and proceeded to erect a building on said estate, and also proceeded to erect a portico in front of said building over said sidewalk and said space of 4 feet, for a distance of about 4 feet in width and 26 feet in length; that said portico permanently and seriously obstructs said sidewalk; and praying that it may be decreed that said strip of land upon which the respondent has placed structural materials is subject to the public right and easement of travel and a highway easement in and over the same as part of a street, and praying, further, that the respondent may be perpetually enjoined from further building or constructing said portico, or any part thereof, on or over said strip of land, from further continuing or permitting such portico to remain thereona sufficient defense is set up by a plea wherein it is alleged that the respondent, intending to erect a building and permanent structure within 10 feet of a certain street in the city of Providence in the information mentioned, and which it is claimed in the information is obstructed by a portion of a portico being erected by the respondent as a part of a building in process of construction, on June 25, 1909, being more than six days before proceeding to build, and before taking out a permit for the same, filed in the office of the city engineer of said Providence a written notice of such intention, in accordance with the provisions of chapter 1406 of the Public Laws passed May 17, 1895, enti

Information by William B. Greenough, Attorney General, against the Industrial Trust Company, to abate a public nuisance. On certified question to the Supreme Court. Question answered, and papers remitted for further proceedings.

Elmer S. Chace and Albert A. Baker, for complainant. C. M. Van Slyck and Frederick A. Jones, for respondent.

DUBOIS, C. J. This is an information in equity brought in the superior court by the Attorney General, in behalf of the state, to abate a public nuisance erected and maintained by the defendant, to wit, a portico, upon and over a portion of the sidewalk on the northerly side of a public highway called Westminster street, and between Market Square and Exchange street, in the city of Providence, whereon the Benjamin D. Weeden estate, so called, abuts. The defendant filed a plea to the information to the effect that no part of its building or the portico thereof complained of is within the limits of Westminster street, as defined by the city engineer of the city of Providence. Upon consideration of the merits of said plea the superior court ordered that the following question be certified to this court for determination under the provisions of Gen. Laws 1909, c. 298, § 5, namely:

"Whether or not, in a suit in equity commenced by the Attorney General by informa