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Batchelder v. White

Supreme Court of Rhode Island
Nov 15, 1907
28 R.I. 466 (R.I. 1907)

Opinion

November 15, 1907.

PRESENT: Douglas, C.J., Dubois, Blodgett, Johnson, and Parkhurst, JJ.

The giving of the notice of claim to a city council, under Gen. Laws cap. 36, §§ 16, 18, is no part of the suit, but is a condition precedent to the right to bring suit. The allegation in a declaration that such notice has been given is put in issue by the general issue and must be proved to entitle a plaintiff to recover.

TRESPASS ON THE CASE FOR NEGLIGENCE. Heard on motion for leave to file a petition for re-argument, and denied.

Hugh J. Carroll, for plaintiff.

Edward W. Blodgett, for defendant.


After the filing of the opinion in this case, November 6, 1907, the plaintiff's counsel moves for leave to file a petition for re-argument, on the ground that the defendant had waived its right to object to the failure of the plaintiff to give legal notice of the claim. The application assumes that the giving of the notice in cases like the present is the commencement of the suit, and hence may be waived like any irregularity in process.

Under our system of practice this assumption is erroneous. As stated in the recent opinion, the giving of the notice is no part of the suit, but is a condition precedent to the right to bring suit. This well-settled principle is recognized by the plaintiff in this case, who alleges in the declaration that legal notice was given. This allegation, like all the other material statements of the declaration, is put in issue by the general issue and must be proved by the plaintiff to entitle her to recover.

The motion must therefore be denied.


Summaries of

Batchelder v. White

Supreme Court of Rhode Island
Nov 15, 1907
28 R.I. 466 (R.I. 1907)
Case details for

Batchelder v. White

Case Details

Full title:LUCINDA A. BATCHELDER vs. J. ELLIS WHITE, City Treasurer

Court:Supreme Court of Rhode Island

Date published: Nov 15, 1907

Citations

28 R.I. 466 (R.I. 1907)
68 A. 320

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The notice of claim given to the town council in this case stated that the accident occurred on February 15,…

Provost v. Finlay

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