Chapin v. James.

the limitation as to citizenship, there can be no doubt that even a stranger who had suffered from the execution of a decree might obtain relief by petition to the court for an order in the case. 1 Hoff. Chanc. Prac. 89; Platto v. Duester, 22 Wis. 482, 485, citing M'Chord's Heirs v. McClintock, 5 Litt. 304, where a person, not a party to a suit, who had been turned out of possession on the execution, was relieved by petition in the same suit. See, also, Dyckman v. Kernochan, 2 Paige, 26; Spann et al. v. Spann, 2 Hill's Ch. 156; Lane v. Clark, 1 Cl. Ch. Rep. 307-9. And as to the United States courts it seems to be settled by the case of Freeman v. Howe, 24 How. (U. S.) 450, 460, that where the process was in a suit at law, a bill on the equity side of the court would lie to regulate or restrain proceedings, and that such a bill would be not original but ancillary, and might be brought by any one whose interests were affected by the process. And while limiting the relief to parties before the court, or who may come before it, the same court, by Mr Justice MILLER, in Buck v. Colbath, 3 Wall. 334, 345, laid down the same rule, viz., that persons interested in the possession of the property in custody of the court may by petition make themselves so far parties as to have their interests protected, although, if it was an original suit, the qualifications as to citizenship would not be such as to give the Federal courts jurisdiction. See, also, Dunn v. Clarke, 8 Pet. 1, and Kendall v. Winsor, 6 R. I. 453. In Christmas v. Russel, 14 Wall. 69, 80, there are some remarks which might seem to throw doubt on this view but for the very peculiar circumstances of that case.

The motion for a preliminary injunction must, therefore, be

Dismissed.

Charles Hart, Benjamin T. Eames & James Tillinghast, for complainant.

Thomas A. Jenckes & James H. Parsons, for respondents.

VOL. XXIII. — 53

Manufacturers & Merchants' Back v. Follett.

MANUFACTURERS & MERCHANTS' BANK V. FOLLETT.

(11 R. 1. 92.)

Promissory note. Alteration Notice to indorser of non-payment.

A note payable to the order of W. was before issue indorsed by F. It was signed by G., and this signature was at the request of W. changed to " G., agent." The note was given for G.'s private debt. F. did not assent to the change, and there was no evidence to show that G.'s principals were accustomed to pay notes drawn in this form. In an action against F., held, that the change was immaterial. Held, further, that F. was not entitled to notice of non-payment.

A

PPEAL from the Court of Common Pleas, heard by the court, jury trial being waived.

DURFEE, J. This is an action on a promissory note, heard by the court, jury trial being waived. The note on its face is in these words:

"$1,276.

SHELDONVILLE, July 1st, 1872. "Four months after date I promise to pay to the order of H. W. & J. M. Wetherill, twelve hundred and seventy-six dollars foo at the National Bank of Wrentham, value received.

On the back the note has the signature of the defendant and the indorsement of the payees. The word "agent" was not on the note when it was signed by the defendant. It was added at the request of the payees, to whom the note was taken to pay a debt which Guild owed them. The defendant was not present and did not assent to the addition. Guild was at the time agent for certain persons, but it does not appear that his principals had ever paid a note signed by him in this form, or indeed that he ever, in the course of his agency, made a note in this or any other form. The defendant is sued as a maker or guarantor. He claims to be discharged by reason of the alteration. If the alteration is material he is discharged; otherwise not. Arnold, Barbour & Hartshorn v. Jones, 2 R. I. 345.

In Byles on Bills it is said that the rule of law as to simple con

Manufacturers & Merchants' Bank v. Follett.

tracts in writing, other than bills and notes, is, that parol evidence is admissible to charge unnamed principals; but that it is conceived that the law as to negotiable instruments is different in one respect, to wit, that when the principal's name does not appear, he is not liable on a bill or note as a party to the instrument. Byles on Bills, *37.

In Pentz v. Stanton, 10 Wend. 271, a bill of exchange was drawn by one Henry F. West, by the name and description of H. F. West, agent; but without any specification of the name of the principal. The court held that the principal could not be charged as the drawer of the bill.

In Beckham v. Drake et als., 9 M. & W. 79, where it was held that the real party in interest under a written contract might be shown and charged by oral evidence, the court except negotiable instruments from the application of the rule, Lord ABINGER saying: "Cases of bills of exchange are quite different in principle. By the law merchant, a chose in action is passed by indorsement, and each party who receives the bill is making a contract with the party upon the face of it, and with no other party whatever." And see Emly et al. v. Lye et al., 15 East, 7; Siffkin v. Walker et al., 2 Camp. 308; Bank of Brit. N. A. v. Hooper, 5 Gray, 567; Williams v. Robbins et al., 16 id. 77.

In the case at bar the note was not given by Guild in the course of his agency, but for his own personal debt. In the absence of testimony to show that the principals have been in the habit of paying notes drawn by him in this form, we do not see how the addition of the word "agent" to his signature can have any effect whatever, even if the rule were the same in regard to negotiable instruments as in regard to other parol contracts.

It seems to us that the alteration is entirely immaterial; or in other words, that, for any thing that appears, the contract, with the word "agent" added to the signature, is precisely the same in legal effect as it was before the addition was made.

No notice of non-payment was required to be defendant to bind him under the law in this State. Sprague, 1 R. I. 8; Perkins v. Barstow, 6 id. 505.

Wingate Hayes, for plaintiff.

Thurston, Ripley & Co., for defendant.

given to the Mathewson v.

Judgment for plaintiff.

Watson v. Tripp.

WATSON V. TRIPP.

(11 R. I. 98.)

Streets-Liability for injury in― City liable, although third parties are bound

to repair.

The charter of a horse railroad company required it to restore all streets through which it should lay its tracks to a good condition, and maintain them in repair, and made the company liable for loss or damage occurring through its negligence in restoring or repairing such streets, and liable over to the city for all money which the latter was compelled to pay by reason of the non-repair of such streets. Held, that the city was liable for neglecting to keep its streets safe and convenient for public travel. Held, further, that the duty, resting upon a town or city, to keep its highways safe and convenient, is a public duty, and that it has no power, unless authorized by statute, to divest itself, either by contract or ordinance, of its capacity to discharge this duty.

Semble, that the liability of the railroad company, as above stated, is a matter which may be considered by the jury in determining whether or not the city has been guilty of any culpable neglect or want of reasonable care.

ETITION by defendant, city treasurer of Providence, for a new trial.

PETIT

DURFEE, J. This is a motion for the new trial of an action in which the plaintiff has recovered a verdict for damages against the city of Providence, for the alleged neglect of the city to keep one of its streets safe for the public travel. The first ground assigned for a new trial is the exclusion of certain jurors from sitting as such in the trial of the case, because they were tax payers in the city. The defendant admits that at common law such an interest would disqualify a juror, but claims that the common law has been changed by statute. Gen. Stat. R. I., ch. 189, §§ 1 and 2. The first of the two sections referred to declares who shall be liable to serve as jurors; the second, who shall be exempt from service. The two sections are obviously designed to define the liability to jury service as a general duty, and not with reference to specific The provisions have long existed without change, except in the list of exemptions. The practice has always been to inquire of the jury, when impaneled, if any one of them has formed or

cases.

Watson v. Tripp.

expressed an opinion, or is related to either of the parties, or is interested in the event of the suit; and to excuse any juror who answers either of the questions in the affirmative. If the defendant's view is correct, the practice is erroneous. We think the defendant's view is not correct. A person may be liable to jury service under the statute, and yet be disqualified from service in a particular case by reason of interest, relationship, or the bias of an opinion already formed or expressed. The very jurors who were excused from service in this case, because they were interested as tax payers, in its decision, were nevertheless liable to service in other cases, and doubtless performed it. The first ground assigned for a new trial cannot be sustained.

The second ground is a ruling in regard to the liability of the city of Providence. It appeared in evidence that the defect in the street, which was complained of by the plaintiff, was caused by: work doing upon a railway track laid in the street by the Union Railroad Company. The charter of the company contains the following provision:

"Said corporation shall put all streets and highways, and every portion thereof, over or through which they shall lay any rails, in as good condition as they were before the same were laid; and they shall keep and maintain in repair such portions of the streets and highways as shall be occupied by their tracks, and shall be liable for any loss or injury that any person shall sustain by reason of any carelessness, neglect, or misconduct of its agents and servants, in the management, construction, or use of said tracks or streets; and in case any damage shall be recovered against said towns or the said city, by reason of any such misconduct, defect, or want of repairs, said corporation shall be liable to pay to such towns and city respectively any sums thus recovered against them, together with all costs and reasonable expenditures incurred by them respectively in the defense of any such suit or suits, in which recovery may be had; and said corporation shall not incumber any portion of the streets, or highways, not occupied by said tracks."

The counsel for the defendant claims that the effect of this provision is not only to charge the company with the duty of keeping in repair such portions of a street as they occupy, but also to discharge the city, and, on the trial, he requested the court so to rule. The court refused to comply with this request. This refusal is assigned as a second ground for new trial.