the knowledge or consent of the defendants, and they were consequently not liable for his negligent driving of this horse and buggy."

In the case of St. Louis, I. M. & S. Ry. Co. v. Robinson, 117 Ark. 37, 173 S. W. 822, the plaintiff was injured by being run into or struck with a bicycle, ridden by a call boy in the employ of the railway company. It was his duty to call the different train crews as directed, there being three or four of them to be called each day. The division foreman, on the morning of the injury, directed him to make calls of certain crews, and while on his way to do this the injury was inflicted.

The boy was not employed to perform his services on a bicycle nor provided with or required to have one. None of his predecessors had ever attended to the duties of calling the train crews with the aid of a bicycle. He rode from his home, which was beyond the call limits of the station, on his wheel when the weather conditions were favorable, and frequently performed his service of notifying the train crews by riding the wheel instead of walking.

The court in that case said:

The defendant railway company "did not furnish a bicycle for his use in the service, nor require him to provide one therefor, and the duties imposed upon him to notify the other employés did not necessitate such dispatch in reaching them as required the use of a bicycle. It was employed by the caller to facilitate the performance of his duties mayhap, and certainly for his own convenience, and the mere fact that the agents of the railway company knew that the call boy was using the instrumentality in the performance of his service was not an implied authorization of the use thereof by the master nor sufficient evidence of the necessity therefor. If the service required of the call boy could not have been performed in the time given therefor without the aid of the instrumentality used (the bicycle), it would have occasioned a necessity, and the knowledge by the

agent of such use in the performance of the service would have amounted to an implied authorization thereof, making the railroad liable for a negligent injury therefor."

[1] The law that should control in cases of this character, we think, is well stated in Labatt's Master and Servant (2d Ed.) p. 6888, where it is said:

"If the other circumstances involved in a case are consistent with, or require, the inference that the tort complained of was within the scope of the servant's employment, the mere fact that the instrumentality which occasioned the plaintiff's injury did not belong to the master will not preclude him from recovering damages. The action is deemed to be maintainable or not maintainable, according as his use of the instrumentality was or was not authorized, expressly or impliedly, by the master."

[2] The automobile, as shown by the evidence in this case, was used for the con

essary in the performance of his duties under his employment by the defendant, nor was its use in any way beneficial to the defendant. There is also nothing in the evidence tending to show that Talbott was authorized, either expressly or impliedly, to use the automobile in the service of the defendant at the time the accident occurred, if he was at any time thereafter authorized by him to use it.

Talbott testified that, he told the defendant he had an automobile he could use in connection with his work, the defendant replied, "Well, I would not use it for quite a while, for a couple of weeks or so," and the defendant testified, when told by Talbott that he had an automobile he "could go around in," that he said to him, "There would be no use much of that because I would not want you to use any Ford for two or three weeks anyhow, and I do not see where you could use it, because we have a delivery truck to deliver."

Talbott further says, "When I mentioned the fact to him that I could use it and get around, and, while he did not agree with me or did not disapprove, why, I went to work and used the machine." In this statement he evidently did not mean to convey the impression that the defendant did not disapprove of the use of the automobile at once, for in the preceding part of his answer to counsel's question he says the defendant objected to his using it "for quite a while, a couple of weeks or so." Therefore the time to which he alluded in saying that he did not agree or disapprove of the use of the automobile must have been the period commencing at least two weeks after the date of his employment, March 3, 1919. If so, such time was subsequent to the time of the happening of the accident on March 10, 1919, one week only after he entered upon his employment.

Talbott was also asked if Goldsmith did not say to him, "I think that will help and I will be glad to have you use it" (the automobile), and at the time was shown the written statement previously referred to, and was asked to refresh his memory by the use of it. In reply thereto, he said he could not say the exact words. "Q. Well, was not that substantially what he said?" And the answer came, "About that."

This evidence is so indefinite, uncertain, and lacking in probative force that it is not, we think, legally sufficient to go to the jury as tending to show that the use of the automobile by Talbott was authorized by the defendant, either expressly or impliedly; and the instruction asked for by the defendant, that the case be withdrawn from the jury, should have been granted. The judgment will therefore be reversed. Judgment reversed without a new trial,

tory upon her to do this, and therefore one of the features of a precatory trust is wanting."

This case is cited with approval in that of Poor v. Bradbury, 196 Mass. 207, 81 N. E. 882, in which the court states that the scope

(43 R. I. 396)

FITZGERALD v. NICKERSON.

DORNEY v. SAME. (Nos. 5436, 5437.)

In Dexter v. Young, 234 Mass. 588, 125 N. E. 862, the court said:

"While words expressing a hope, wish, request or recommendation that a bequest or devise to a person will be applied by the latter to the benefit of others may be held to create a trust, yet to adopt such construction it must appear that they were intended to be imperative. When property is given absolutely, a trust is not to be lightly declared upon mere words of hope, request or recommendation."

A well-considered case upon this subject is that of Burnes v. Burnes, 137 Fed. 781, 70 C. C. A. 357, in which the court said:

"The test of the creation of the (precatory) trust is the clear intention of the testator to imperatively control the conduct of the party to whom the language of the will is addressed by the expression of the wish or desire, and not to commit to his discretion the exercise of the option to comply or to refuse to comply with the wish or suggestion expressed."

The court also said:

"The tendency of the modern decisions, both in England and in this country, is to restrict the practice which deduces a trust from the expression by a testator of a wish, desire or recommendation regarding the disposition of property absolutely bequeathed."

An exhaustive note upon the subject of precatory trusts is found in 37 L. R. A. (N. S.) 646.

In the case at bar the testator gave his property to his wife, her heirs, executors, administrators, and assigns, forever. His subsequent request that she make a will, devising so much of the property as remained at her death to his sisters and niece, was a request which she was at liberty to carry into effect, or not, as it was not mandatory upon her to do so. If he had intended that his sisters and niece would receive the remainder of his property, it would have been an easy matter for him to have so provided in his will. Upon due consideration of the rights of the parties, the court is of the opinion that Mrs. Costello took an absolute estate in fee simple under said will, and that the testator's request to her to make a will devising and bequeathing the property remaining, at the time of her death, to his sisters and niece, did not create a trust in their favor.

The complainants' appeal is dismissed, the decree of the superior court dismissing the bill is affirmed, and the cause is remanded to said court for further proceedings.

1. Garnishment

1921.)

58-Property taken from prisoner for use as evidence subject to garnishment.

Money or other property taken from prisoner at time of his arrest, upon belief that it is connected with the crime charged, or might be used by the prisoner in effecting his escape, is subject to garnishment in the hands of the officer, notwithstanding Gen. Laws 1909, c. 354, § 30, providing that such property shall be subject to the order of the court, in the absence of collusion between creditors and officers. 2. Replevin 5-Person having bill of sale of property of prisoner in hands of officer not entitled to sue in replevin where property has been attached.

Persons obtaining bill of sale of property taken from prisoner by officers in good faith to use as evidence and to prevent the escape of the prisoner, consisting of an automobile and other property, after such property had been attached by creditors in the hands of the officer, could not maintain replevin suits.

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

Actions by John J. Fitzgerald and Thomas J. Dorney, respectively, against Albert E. Nickerson, in which the Louis K. Liggett Company and another intervened. To a decision in favor of plaintiffs, the interveners excepted. Exceptions sustained.

Fitzgerald & Higgins and William H. Camfield, all of Providence, for plaintiffs. Gardner, Moss & Haslam, of Providence, for defendant.

VINCENT, J. About October 1, 1914, several men, accused of breaking and entering the stores of the Louis K. Liggett Company and the Regal Shoe Company in Providence, were arrested in New London, Conn., and brought back. Certain property found in the possession of these men was taken from them at the time of their arrest, and later turned over to the defendant Albert E. Nickerson, then chief police inspector for the city of Providence. This property consisted of a Pierce-Arrow automobile, one dress suit case full of burglars' tools, one automobile trunk, six hats, five pairs of shoes, one robe, one overcoat, three raincoats, three dress suit cases, one bundle containing wearing apparel and other personal effects, four jackknives, one ring, three pencils, one fountain pen, one nickel watch, one diamond horseshoe pin, eleven diamonds, and $675.12 in money. This property was retained by Nickerson for use

chattels replevied at the time that the two replevin suits had been instituted. Later, testimony on this point was introduced, certain exhibits were put in evidence and stipulations entered into as to evidence, as appears from the transcript of testimony. The trial justice decided in favor of the plaintiffs for possession and 10 cents damages. To this decision the defendant interveners excepted, and now come before this court on their bills of exceptions:

"(1) To a certain ruling of said justice made on October 29, 1915, sustaining the plaintiff's demurrer to the defendant Nickerson's third plea.

"(2) To a certain ruling of said justice made on January 15, 1918, sustaining the plaintiff's demurrer to the defendant Nickerson's fourth plea.

"(3) To a certain ruling of said justice, made on November 4, 1919, overruling the interveners' demurrer to the plaintiff's replication to the interveners' plea.

"(4) To the said decision of said justice made at the trial of said case on September 21, 1920, in favor of the said plaintiff."

The two questions which appear to be essential for our consideration in determining the present controversy are: (1) At the time of the attachments in the suits of the Liggett and Regal Companies, was the property in question in custodia legis so as to render such attachments void? and (2) Can the plaintiffs, claiming title under bills of sale made subsequent to the attachments, maintain their actions of replevin?

[1] It is not disputed that the property in question belonged to the persons who had been arrested; that it had been taken from them by police officers at New London, and by them turned over to the defendant Nickerson, chief inspector of police in Providence, by whom the same was held in case it should be needed as evidence in the criminal proceedings. Under these conditions the Liggett and Regal Companies brought their suits against the owners of the property for the purpose of reimbursing themselves for the losses which they had suffered, and attached the personal estate of the defendants in such suits in the hands of Nickerson. The plaintiffs' only claim of title to this property is based upon certain bills of sale, which were executed by the owners thereof subsequent to the service of the writs of attachment. The property appears to have been taken in good faith, and retained with the belief that it might be needed later as evidence. There is nothing from which an inference can be drawn that this property was taken or retained by the officers for the benefit or convenience of, or in collusion with, the two attaching companies.

The officers doubtless were justified in retaining this property for the purpose of evidence, and for such purpose it may be said to have been in custodia legis, but such custody did not change or affect the title thereto.

The plaintiffs argue that the garnishment of these articles might interfere with their use at the trial; that public officers should be saved from the vexation and annoyance of incidental litigation; and that such garnishment, if held to be valid, might induce collusion between creditors and police officers. We fail to see any force in these contentions. In the first place, the garnishment neither removes the property from the possession of the garnishee nor prevents its production and use as evidence in the criminal proceedings against the owners. Were it otherwise, the section of the statute above quoted makes all such effects subject to the order of the court until the termination of

the proceedings. The fact that the property in the possession of the garnishee could not be seized under attachment or execution, because temporarily subject to the order of the court, does not prevent the charging of the garnishee in respect thereto, because he can hold it until such time as he is permitted to deliver it. Drake on Attachment (6th Ed.) § 464.

The garnishee is required by law to make an affidavit disclosing what property of the defendant he had in his hands and possession at the time of the attachment, and for that he receives the statutory fee. The performance of this duty cannot be said to be a vexation and annoyance, any more than the compliance with any other law might be vexatious and annoying, but, however that may be, the garnishment in no way defeats the ends of justice by rendering unavailable any evidence which the property taken from criminals might supply.

As we have said before, there is no evidence of any collusion between creditors and officers in the present cases. In cases where such collusion is shown the authorities clearly point out that the attachment would be void, and therefore any consideration of the question on the ground of public policy is un

necessary.

While there is some conflict of authorities, we think, as stated in 20 Cyc. 1025, that—

"The better rule seems to be that money or other property taken from the person of a prisoner at the time of his arrest by an officer, upon the belief that it is connected with the crime charged, or might be used by the prisoner in effecting his escape, is subject to garnishment in the hands of such officer."

In Reifsnyder v. Lee, 44 Iowa, 101, 24 Am. Rep. 733, a case where money and valuables