Batchelder v. White , 28 R.I. 466 ( 1907 )

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.