operate as a discharge of the bond. The construction of the third and sixth sections of the insolvent laws (2 Gen. St. pp. 1727, 1728) is not necessarily involved in the determination of the character of the plea under discussion. The demurrer must be sustained,

with costs.

WHITEHEAD v. BURGESS. (Supreme Court of New Jersey. Nov. 8, 1897.) ACTION ON CONTRACT PROMISE TO THIRD PER

SON-DECLARATION-CONTRACTS-VALIDITY.

1. Where an action is founded upon a contract which at common law is valid without writing, but which the statute of frauds requires to be in writing, the declaration need not count upon, or take notice of, the writing.

2. An action may be maintained on a promise made by defendant to a third person for the benefit of the plaintiff; and the fact that the person to whose benefit the promise may inure is uncertain at the time it is made, and that it is dependent on a contingency, will not deprive the person who afterwards establishes his claim to be the beneficiary of the promise of the right to recover upon it.

3. A promise to A., on sufficient consideration, to pay the owner of the foal of the mare of A. by the stallion of the promisor a certain sum of money if such foal is the first of the get of such stallion that trots a mile in 2 minutes and 30 seconds is a valid undertaking, and is not prohibited by our statutes against the offering of purses for running, pacing or trotting.

(Syllabus by the Court.)

Action by Edward Whitehead against William W. Burgess on a contract. Heard on demurrer to declaration. Demurrer overruled.

Argued June term, 1897, before the CHIEF JUSTICE, and DEPUE, VAN SYCKEL, and GUMMERE, JJ.

Howard McSherry and Theodore B. Booraem, for plaintiff. Paul A. Queen, for defendant.

VAN SYCKEL, J. The first count of the declaration sets out that the defendant, being the owner of a stallion known as "Lynne Bel," published a certain circular, in which he offered the services of the said stallion for the sum of $100, and therein promised to pay the owner of the first one of the foals of said stallion that should trot a mile in 2 minutes and 30 seconds, or less, the sum of $750. The declaration further sets out that one Pursell, being the owner of a mare called "Eva," bred the said mare to said stallion, and paid the said defendant the sum of $100 for the privilege of so doing; that the said defendant, in consideration of such payment, promised the said Pursell to pay the owner of the foal of the said mare the sum of $750 if such foal should prove to be the first one of the get of said stallion that should trot a mile in 2 minutes and 30 seconds; that the plaintiff, having knowledge of the said promise made to said Pursell, did purchase the foal of the said mare Eva by the said stallion, and while the said foal was owned by

the plaintiff the said foal trotted a mile in less than 2 minutes and 30 seconds, and was the first one of the get of said stallion to make the said time. The second count is substantially like the first count, except that it avers that at the time the service money was paid the defendant repeated to said Pursell the promise and undertaking in said circular set forth. A separate demurrer is filed to each count of the declaration.

The first ground of demurrer relied upon by the defendant is that the contract is within the statute of frauds, and must be in writing, and that it must appear affirmatively in the declaration that the contract was in writing, and signed by the party to be charged. In this contention the defendant's counsel has misconceived the rule of pleading. Where an action is founded upon a contract which at common law is valid without writing, but which the statute requires to be in writing, the declaration need not count upon, or take notice of, the writing. If an action is brought upon a promise to pay the debt of another, the declaration need not aver that the promise is in writing, even if such be the fact. The reason is that the statute of frauds merely introduces a new rule of evidence, but does not alter or affect the rule of pleading. As long ago as the time of Lord Holt that was declared to be the rule. 2 Salk. 519. The rule is stated in the same way in the note to Duppa v. Mayo, 1 Saund. 276, and has been accepted as the correct rule ever since the time of Saunders. Elting v. Vanderlyn, 4 Johns. 237; Gould, Pl. p. 191. The declaration, in this respect, is not faulty. It alleges a promise which at common law would be good by parol, and whether it was made in such form that it is good under the statute of frauds is a question which will arise on the trial.

A further reason to support the demurrer is that the promise as alleged was made to Pursell, and that there is no privity of contract between the plaintiff and defendant. The law of this state is that an action may be maintained on a promise made by the defendant to a third person for the benefit of the plaintiff without any consideration moving from the plaintiff to the defendant. Joslin v. Car-Spring Co., 36 N. J. Law, 141. The fact that the person to whose benefit the promise may inure is uncertain at the time. it is made, and that it cannot be known until the happening of a contingency, cannot deprive the person who afterwards establishes his claim to be the beneficiary of the promise of the right to recover upon it. In the familiar case of a promise to give a reward for the arrest and conviction of a criminal, the right of the person who secures such conviction to recover the reward is well settled. Sergeant v. Stryker, 16 N. J. Law, 465; Furman v. Parke, 21 N. J. Law, 310.

The remaining reason to be considered is that the alleged contract is illegal and against public policy, and prohibited by section 226,

p. 1091, Gen. St., by which it is enacted "that no person or persons, shall make up any purse, plate or other thing, for any running, pacing or trotting of any horses, mares or geldings, or contribute or collect or ask any other person to contribute or collect, any money, goods or chattels to make up any purse, plate or other thing, to be run, paced or trotted for by any horse, mare or gelding, at any place in this state, except when authorized by a fair or agricultural society," etc., "shall be deemed guilty of a misdemeanor," etc. Also, by section 222, p. 1090: "That if any person not authorized by an agricultural society, or incorporated body of this state, shall be concerned in making up any purse, for any running, pacing or trotting of any horse, or horses, mares or geldings, such person shall be deemed guilty of a misdemeanor," etc. The point made is that the object of this legislation is to prohibit all persons in this state, not within the exceptions stated in the statutes, from offering any reward for the trotting and pacing of horses. There is nothing in the declaration which, by expression or by implication, shows that the defendant undertook or assumed any obligation to provide an opportunity for the trial of speed. The time mark might lawfully be secured at an agricultural fair, or out of the state, as in this case. The defendant was not under any duty to aid the owner of the foal, and was under no obligation to pay the promised sum until the condition was performed. An intention to violate the criminal law cannot be imputed to either party to this contract. The demurrer must be overruled, with costs.

STATE (CONSOLIDATED TRACTION CO., Prosecutor) v. TOWNSHIP OF EAST ORANGE et al. STATE (SLOCKHOWER, Prosecutor) v. SAME. STATE (HOLLAND, Prosecutor) v. SAME.

(Supreme Court of New Jersey. Nov. 10, 1897.) MUNICIPAL CORPORATIONS-ORDINANCES-VALIDITY POLICE POWER PROTECTION OF SHADE TREES GRANT TO STREET-RAILROAD COMPANY. 1. An ordinance of the township of East Orange, in the county of Essex, adopted by the township committee of that township, entitled "An ordinance to regulate the running of electric wires in the township of East Orange," which provides "that no person shall trim, cut, or break any tree, limb, or twig thereof, standing upon a public street or highway of the township, without first obtaining permission of the township committee or their authorized agent," and providing for the imposition of a penalty of $25 for a violation of such provision of such ordinance, is a valid and reasonable exercise of the police powers vested in a municipality, under the statutes P. L. 1867, p. 124, P. L. 1873, p. 324, which authorize the township committee to provide by ordinance for the regulation of the use of the public streets, and "to direct and regulate the planting, rearing, trimming, and preserving of shade trees in the streets and public places of said township; and to authorize or prohibit the removal or destruction of said trees and to re

strain and punish persons injuring or defacing the same."

2. Permission by an ordinance, cr agreement with the township authorities, to an electric street-railway company to operate its cars through the streets, is not a grant, ipso facto, of the right of the township to the trees standing in such street, nor does it devest the properly constituted municipal authorities of the reasonable control over such trees as a part of the street, and a reasonable regulation or ordinance controlling the company in the use of such trees in the operation of the street railway will be upheld as an exercise of the police power of the township.

3. The ordinance in question is a reasonable exercise of such police power.

(Syllabus by the Court.)

Three writs of certiorari,-one by the state on the prosecution of the Consolidated Traction Company against the township of East Orange and Stephen M. Long, township clerk; one by the state on the prosecution of Harrison Slockhower against the township of East Orange and George H. Elliott, justice of the peace; and the other by the state on the prosecution of George L. Holland against the same defendants,-to review the validity and reasonableness of an ordinance under which prosecutors Slockhower and Holland, employés of the Consolidated Traction Company, were convicted of injuring shade trees on a street in said township. Convictions affirmed.

Argued June term, 1897, before GARRISON and LIPPINCOTT, JJ.

Spencer Weart and Jarvis M. Atkinson, for prosecutors. Philemon Woodruff, for defendants.

LIPPINCOTT, J. The Consolidated Traction Company, a corporation of this state, is operating an electric street railway in Main street, in the township of East Orange, by virtue of certain leases from the Newark Passenger Railway Company and the New Jersey Traction Company, and also by virtue of an ordinance of the township authorizing such operation. The agreement to operate an electric street railway in this street was originally made between the township of East Orange and the Newark Passenger Railway Company, and by virtue of the leases above mentioned and the ordinance of the township the Consolidated Traction Company became vested with all the rights and franchises of the other companies. On the southerly side of Main street the Consolidated Traction Company had strung its electric feed wires on poles to supply the motive power to the cars. On that side of the street shade trees were growing along the edge of the sidewalk. On December 21, 1896, the company, deeming it necessary for the operation of the street railway, and to prevent them from interfering with these wires, proceeded to cut off some of the limbs and branches of such trees. The employés of the company, Slockhower and Holland, the other prosecutors herein, did the cutting under the direction of the company. Com

was formally enacted by the township committee on February 19, 1889. The agreement for the operation of the street railway was entered into July 30, 1896, and the ordinances permitting its operation some time subsequently. The fourth section of the ordinance provides: "That no person shall cut, trim, or break any tree, limb, or twig thereof, standing upon a public street or highway of the township, without first obtaining permission of the township committee or their authorized agent." The fifth section provides for the imposition of a penalty of $25 for a violation of any of the provisions of the ordinance. The only question arising is whether the ordinance is valid as a reasonable exercise of the police powers of the township authorities. By a supplement to an act entitled "An act to create from a part of the township of Orange, in the county of Essex, a new township, to be called the township of East Orange, approved March fourth, eighteen hundred and sixtythree," approved February 28, 1867 (P. L. 1867, p. 124), it was provided, in section 5: "That the township committee shall have power to pass by a majority of their number such ordinances, by-laws and regulations as they may judge proper, to direct the planting, rearing and trimming of shade or ornamental trees, and to abate and remove all nuisances in the streets and public places of the township of East Orange." By a further supplement, March 10, 1873 (P. L. 1873, p. 324), more ample power was conferred upon the township committee to provide by ordinance for the regulation of the use of the public streets of the township, and "to direct and regulate the planting, rearing, trimming, and preservation of shade trees trees on the streets and public places of said township, and to authorize or prohibit the removal or destruction of said trees, and to restrain and punish persons injuring or defacing the same." It is clear that under these statutes the township committee were possessed of the power to enact ordinances to determine the mode and the manner in which the shade and ornamental trees standing upon the public streets should be cut or trimmed for the purposes of regulating the running of electric wires through such streets and public places of the township. It was the proper exercise of the police power and control over the streets and this subject-matter. Consolidated Traction Co. v. City of Elizabeth, 58 N. J. Law, 619, 34 Atl. 146; Cape May R.

Co. v. Cape May, 59 N. J. Law, 393, 396, 401, 36 Atl. 678, 679, 696. The ordinance is reasonable in its provisions. It provides only, before the trees shall be cut down, or the branches thereof cut off, that the consent of the township committee shall be obtained. This is necessary and reasonable for the orderly control and regulation of the streets and public places in this respect, to the end that the usefulness of the streets and the trees thereon be, so far as practicable, preserved to the public. Under the power and duty conferred by the legislature it would seem to be reasonable that, before such trees should be cut down, defaced, or the limbs thereof cut off by any person or corporation in the use of the street, the consent of the municipal authorities should be obtained in respect to the mode in which the destruction, partial or wholly, should be effected. The ordinance is not prohibitory, but only regulative, and is reasonable in all its essential features. The question is not whether the act of cutting or trimming these trees were reasonable acts in the operation of this electric street railway, but whether the ordinance requiring consent of the municipal authorities is a reasonable exercise of the municipal police power conferred by the legislature of the state upon them. The conclusion is that it is not only a valid, but also a reasonable, exercise of such power. The ordinance is a reasonable one.

A contention is made by the prosecutors that because the township of East Orange granted permission to operate its cars and string its wires through this street, it has also, ipso facto, granted whatever rights it had in the trees therein, in so far as a proper operation of the cars by the stringing of wires is concerned. This contention cannot for a moment be admitted. As a matter of fact, neither the ordinances nor the agreement by which these wires are strung and the cars operated through this street confer or convey any such rights to the company. The wires are required to be strung on poles, and no mention whatever is made of any control over the trees, or any use to which they can at all be devoted. The clear implication, I think, would be that in erecting the poles and stringing the wires all interference with the trees should have been avoided. Nearly all kinds of reasonable regulations can be imposed upon street railways in the use of the streets by the municipality under the authority granted by the legislature to pass ordinances to regulate the use of the streets, and such resolutions are never declared unlawful on the ground that they impair the franchises of the company. Even direct legislative authority to a street-railway company to carry passengers over the streets of a city does not exempt the corporation from municipal or police control. The principle is a general one that, when a business is authorized to be conducted by a corporation within a munici

pality; the latter presumptively possesses the same right to regulate it that it has over a like business conducted by private persons. A grant to a corporation of the right to own property and to transact business affairs confers no immunity from police control to which the citizen would be subjected, and a reasonable regulation of the franchise is not a denial of the right, or an invasion of the franchise, nor a deprivation of its property, or interference with the business of the corporation. The company is presumed to know that the business of operating a city street railway must be conducted under such reasonable rules and regulations as the municipality may impose, and, subject to it, its share of the burdens incident to the conduct of the municipal government. Dill. Mun. Corp. (4th Ed.) 720; Trenton Horse R. Co. v. City of Trenton, 53 N. J. Law, 132, 20 Atl. 1076; Allen v. Jersey City, 53 N. J. Law, 522, 22 Atl. 257; Consolidated Traction Co. v. City of Elizabeth, 58 N. J. Law, 619, 34 Atl. 146; Cape May R. Co. v. Cape May, 59 N. J. Law, 396, 401, 36 Atl. 678, 679, 696; Booth, St. Ry. Law, §§ 223-229. The case of Allen v. Jersey City, 53 N. J. Law, 522, 22 Atl. 257, has no application to the facts presented here. In that case the legislative grant was to do the act which was complained of; i. e. placing its rails and ties on the public street. There is no question that the grant, whether it be by the legislature or by the municipality, to operate a street railway along a street, would incidentally carry with it the right to lay its rails and ties in the public street; and an ordinance providing this should not be done without the consent of any particular municipal board would be unreasonable. See Kennelly v. Jersey City, 57 N. J. Law, 293, 30 Atl. 531. Upon these principles the ordinance in question was a valid and reasonable exercise of the police power of the municipality, and it, and the convictions under it, must be affirmed, with costs.

HAILE et ux. v. CLAYTON & HOFF CO. (Supreme Court of New Jersey. Nov. 12, 1897.) CARRIERS-NEGLIGENCE-DRIVER OF STAGECOACH.

The driver of a stagecoach should, before commencing his journey, ascertain that the passengers are seated; but in his journey over ordinary streets and highways, where frequent or occasional necessary stoppages are made because of crowds, parades, or the like, or because of the use of the street or highway by others of the public, he is not bound, before he starts again, to give notice to the passengers that he is about to do so, or to ascertain, in the care required of him, whether the passengers remained seated as before the stoppage was made. In the commencement of the journey, as soon as the passenger has entered and taken his seat, the coach may start, and continue its journey to the end, with such temporary stoppages as are necessary, without notice to the passenger. The driver has the right to assume that the passengers will remain seated in the position assigned to them or which they accepted at the commencement of the journey.

(Syllabus by the Court.)

Action by George Haile and Caroline Haile, his wife, against the Clayton & Hoff Company, for personal injuries to the feme plaintiff, in which there was a verdict in favor of plaintiffs. Heard on rule to show cause why the verdict should not be set aside. Rule made absolute.

Argued June term, 1896, before BEASLEY, C. J., and MAGIE, GARRISON, and LIPPINCOTT, JJ.

Edward Kenny, for plaintiffs. Frank M. Bradner, for defendant.

LIPPINCOTT, J. On August 3, 1893, a committee of the Sunday school of the Davis Memorial Church of Harrison, N. J., engaged. five stages of the defendant to carry the members of the Sunday school of that church, and their friends, to a Sunday school picnic to be held at Huntley, in the county of Essex. Thesupervision of the transportation and of the affair was in the control of one of the members of the Sunday school committee. In one of these stages, one of the plaintiffs, Caroline Haile, rode to the picnic grounds. The stage or omnibus was a long vehicle, with seats extending along each side, with a top frame and side curtain, and an open doorway at the rear, and three steps leading down to the ground from this doorway. Mrs. Haile and another lady, by the name of Mrs. Hooly, went in this stage for the purpose of going to the picnic, and also to take charge of the children riding in it to and from the picnic. No difficulty occurred on the way to the picnic grounds. On the return journey of the stage, the plaintiff Mrs. Haile was seated on the right-hand side of the stage, next to the doorway, with her right side to the driver. Mrs. Hooly sat on the left side of the stage, next to the open doorway, and the children were seated on both sides, between them and the front of the stage, or between them and the driver. The stage, with its load thus seated, proceeded on its way through High street, in the city of Newark, until it reached Springfield avenue, where it was stopped by a policeman, to allow some parade or procession,. with music, to pass by. There is evidence. showing that Mrs. Hooly and some of the children stood up to watch the procession The evidence of Mrs. Haile is that she did not stand up; that she was in charge of Mrs. Hooly's luggage, while Mrs. Hooly was standing up; and that she could not stand up. She says that some of the children were standing up on the seats, and that one of the children, a little girl, was standing upon the seat upon which Mrs. Hooly sat, with her body partly out of the window. Mrs. Haile thought that the child was in danger. The evidence is that Mrs. Haile rose up, and reached over to the other side, to get hold of the child, when the driver (the procession having passed) started his horses. To use her own language, she "rebounded back," and was thrown out the back door of the stage.

A scream was heard by the driver, and the horses were stopped within three feet. There is some difficulty in determining whether she was thrown out of the stage by reason of the starting of the horses or the rebound when they were again stopped. The evidence in the case is that the horses attached to the stage were gentle horses, and easily managed. After the parade had passed, the driver pulled the reins, and the horses started, as one of the witnesses relates, "suddenly." The driver did not whip or strike the horses, did not call to them, nor do anything to excite them, and it does not appear that they were excited or frightened. The evidence is that the driver had them under complete control, and stopped them within three feet of starting. Mrs. Haile appears to have been injured quite seriously, and the action is by her and her husband to recover damages arising by reason of her injury. A motion to direct a nonsuit was refused. No evidence was produced on the part of the defendant company, and the motion to direct a verdict was also refused.

The only element of negligence relied on by the plaintiff for a basis of recovery is that the driver should have notified those inside the stage, before starting again, that he intended to start. That is the only element of negligence which could in any event have been submitted to the jury, and it was the only one submitted. The declaration in this case appears to have been framed upon the theory that the defendant had negligently constructed the stage or omnibus, by reason of not having the open door at the rear securely guarded. It will be seen by the facts and circumstances of the case that the proof entirely failed upon any such point of default by the defendant. In fact, no proof of the character of. negligent construction was offered, nor could have been of any avail if offered; for, so far as the construction was concerned, those who rode in the stage or omnibus did so at their peril, as it was used by them without protest or remonstrance on their part. The dangers of it because of its construction were as much known to the plaintiff Mrs. Haile as to the defendant. It was engaged by contract between the Sunday school committee and the defendant. It has been a question of some consideration whether the alleged element of negligence relied on is within the averments of the declaration. But, assuming it to be so, it is quite evident that the mere fact that the driver failed to notify the plaintiff inside the stage that he intended to start again was not a negligent omission, which created any liability on the part of the defendant for her injuries. It seems to me that the reasonable rule is that, before commencing a route, a driver should see that his passengers are ready, and that it is safe for him to start; but for the frequent or occasional stoppages during the route or journey, over ordinary streets and highways, where stoppages are made because of crowds or parades or the like, it would be a hard rule

that would compel a driver to take his attention from his horses to look back into his coach to see if his passengers were safely seated, or to notify them that he intended to start, unless there be some occasion to which his attention is called which requires just this sort of conduct in the exercise of due care for the safety of his passengers. If this should be the rule, then there should exist no liability because of any dangers arising from having his attention drawn from his horses. The law cannot, under such circumstances as are presented in this case, require him to care both for his horses and passengers to this extent. It is necessary, in running stages or omnibuses of this character through the streets of a city, to make frequent stops. The use of the streets by others makes this ac solutely necessary, and, in the management of his horses, the driver has the right to assume that the passengers will remain in their seats in the same position assigned at the com mencement of the journey, rather than that they will be attracted by the movements of a various character in the streets, so as to re quire care of him to ascertain whether they still retain safe positions. To my mind, when the driver was stopped by the policeman for the parade to pass, it was not his duty to notify his passengers that he was about to start. I think the proposition contended for by the defendant can be safely asserted,— that when the carrier of an adult passenger for hire in a vehicle provided with seats has once started on the journey, and is stopped by some obstruction on the road or street, it is the duty of the passenger to remain seated, and no obligation rests upon the carrier to notify his passengers that he is about to start again, unless it be that his notice is called to the fact that his passengers are in an unsafe or precarious position, or unless some danger presents itself to him rendering this a precaution necessary to take in the exercise of that care required of him. As soon as a passenger has taken his seat, fairly entered the vehicle, and is safely seated, the carrier may start and continue his journey to the end, with such temporary stoppages as are necessary, without further notice to the passenger. Shear. & R. Neg. (4th Ed.) § 508. It has also been held that the bare fact of whipping horses when about to start a car full of pas sengers, after stopping, is not negligence on the part of the driver. May v. Railway Co., 49 N. J. Law, 445, 9 Atl. 688.

It is in evidence that, after the start had been made, the driver heard a scream from the stage or omnibus. It was certainly not a negligent act for him then to stop the horses upon hearing the scream. It seems to me as a conclusion that the trial judge should have ruled that it was not the duty of the driver to notify his passengers that he was about to start, and that negligence could not be infer red from the fact of his starting without giving such notice, and without looking to see that all his passengers were seated, and also