a deed of it carries only a right to use it for burial purposes. With these facts and au thorities in mind the court says: "While we do not mean to say that a burial lot is not property, yet all of these limitations tend to show that it has been shorn of so many of the ordinary attributes of property as to raise the presumption that it is not intended to be passed under a general devise in which it is not specially mentioned. A strong rea son for this is found in the right to control the corpse, as between a widow and next of kin, as shown in Pierce v. Swan Point, ю R. I. 227, 14 Am. Rep. 667, and Hackett v. Hackett, 18 R. I. 155, 26 Atl. 42, 19 L. R. A. 558, 49 Am. St. Rep. 762. The right of cus tody of the remains and the right of property in the burial lot should go together, where it is possible. Following the doctrine of Derby v. Derby, 4 R. I. 414, and the implied ap proval of it in Gardner v. Swan Point, 20 R. I. 646, 40 Atl. 871, 78 Am. St. Rep. 897, a burial lot does not pass under a general residuary devise, "but it descends to the heirs as intestate property. It is a family burial lot. It is that fact alone which givers a pecul iar limitation to its tenure. The heir takes it subject to all the conditions for which the an cestor held it. A sort of trust attaches to the land for the benefit of the family. Neither the widow nor the child can be excluded from it for want of title, yet such a result might follow if the tenure was like that of the other real estate. Children could exclude a widow, or a widow could exclude children, by virtue of ownership of the land. The view therefore, taken in Derby v. Derby, supra, was founded in sound reason and policy, and it has been regarded as the law in this state for a long time. It did not quite touch the point involved here, because the question was whether the lot should be sold to pay debts or legacies. Still we do not hesitate to fol low its doctrine." Accordingly the court was of the opinion that a burial lot does not pass by a residuary clause in a will, but descends to testator's heirs as intestate property.
DAMAGES. (ASSESSMENT ON DEFAULT.)
SUPREME COURT OF RHODE ISLAND. Dyson v. Rhode Island Co., 57 Atlantic Reporter 771, is a learned and scholarly opinion delineating the practice in assess ment of damages on default from the earliest times to the present. The Court reviews the authorities on this point and quotes ex tensively from Coke, the Year Books and other authorities. As a result the court comes to the conclusion that the court has authority to assess dainages on default, with or without the aid of a jury, and that in case a jury is called in to determine the damages the court has inherent power to award more or less than the jury award. For those de siring to brush up on their Latin and law French this opinion is of special interest as is contains numerous quotations from the authorities in the original. As the opinion may, perhaps, be unavailable to many of our readers, who nevertheless desire to be up on legal forms, we quote the form of a wri/ ad inquirendum de damnis as given in the opinion. This writ is as follows: "Rex vie' salntem. Ostensum est nobis ex parte P. de L. quod cum B. de S. in curia nostra, etc., sum' essct ad respondend' eidcm P. de plácito quare cepit nimm cquum ipsius Petri in séparait ipsius Pétri, & cum injuste dctinuit contra radium 6- pleg', or idem B. venisset in eadem curia &• dixisset quad ¡pse cfpit averia illa in damno stw pascentia separalcm pasturam ipsius Bcrnardi & partes hiñe inde posuisscnt se in junitam patriae, per quam postea in eadem curis nostra convictum fuit quod pracd' Bernardus averia ccpit in damno suo in scparali pastura iiisins Bcrnardi. ita quod idem Bernardus per considerationem cttriae nostrae habcrct rctorinnn ttveriorum praedict^run: Pracfatus Bernardus licet pracdictus Petrus rationabiles <Sr sufficientes einend1 pro damnis &• transgressant praedictis sae ins ci obtnlerit. pracdicta averia detinct iinparcata, contra legcin &• consuetudinem rcgni nostri, ad dammim ipsius Pétri non modicum &• gravamen. Et quia nolumus quod pracdictus Petrus injurictur hoc parte, tibí praecipimus quôd ¡ч pracscHtia eorundem Pctri & Bcrnardi ad hoc praemonitorttm si intéresse voluerint, per sacramcntum
