it did not convey the amount sold by agreement to your orator." The bill also alleges that the dwelling, store, and building stands partly upon this narrow strip of land, and is built up to the western side of Witherspoon street, so that, if said strip of land should be lawfully seized by persons other than the defendants, the buildings purchased as aforesaid by the complainant would be accordingly injured and almost destroyed. He then alleges that he frequently applied to Mrs. Pyatt and Mrs. Waite, and urged them to make a good title to said strip of land, and offered to assist them in doing so, and at times pretended to be doing all in their power to perfect said title to said narrow strip; that they finally ceased their efforts, and failed to do what would have enabled them to convey the entire tract, including the strip. It further alleges that he frequently demanded a conveyance from Mrs. Pyatt and Mrs. Waite and their respective husbands, and from their attorney and agent, assuring them that he was willing to perform his part of the agreement, and have a good and sufficient conveyance of the said land and premises in fee simple made to him, discharged of all incumbrances, and to pay the residue of said purchase money. The bill then alleges the conveyance to George O. Vanderbilt on October 3, 1892, for the sum of $9,000, conveying a part of the land claimed by the complainant, to wit, 22 feet and 6 inches on Nassau street; that he has asked Vanderbilt to convey the same; that he had knowledge of all the facts; and that he is chargeable in equity with such knowledge as to entitle complainant to a decree against him, to make him a conveyance of the premises he took by his deed from the defendants. The affidavit of the complainant, annexed to the bill, says: "On the 23d day of May, Fergus A. Dennis and Ollie H. Hubbard tendered me a deed for the strip of land, which is twenty-two feet and six inches fronting on Nassau street, and one hundred and thirty feet deep, which deed did not include the strip three feet and eleven inches on the Witherspoon street side. I refused to accept this deed. About this time I discovered that there was a cloud upon the title to the narrow strip fronting three feet and eleven inches and bounded on the east by Witherspoon street, and told the defendants and their attorneys that it must be removed before I would accept the deed. * ** I am now ready to pay the balance of the purchase money as soon as the deed for the entire tract fronting twenty-six feet and five inches on Nassau street is delivered to me with all clouds removed from the title of any part of said land." The evidence shows that a deed dated March 28, 1892, was tendered the complainant on May 23, 1892, and that he refused to accept the same, and pay the balance of the consideration money, because the grantor did not have title to this narrow strip of land in question,

which was within the lines of Witherspoon street. Several months were spent in endeavoring to get the borough authorities to give a quitclaim deed for this narrow strip. but they failed on account of the objections of the mayor of the borough. In this effort both complainant and defendants, or some of them, united. When this effort had failed, the defendants again, in the latter part of September, offered to deliver the deed, and demanded the balance of the purchase money. Lyons refused to take any deed, and pay the balance of the purchase money, unless such deed embraced all the property he claimed under the agreement, which was 20 feet 11 inches in width on Nassau street. He was at this time told by one of the defendants that they could not give any other deed than the one already tendered. After this second refusal on the part of Lyons to take a deed unless it embraced the narrow strip described in the bill, the defendants, October 4th, executed and acknowledged a deed conveying to the defendant Vanderbilt the same property described in the deed tendered to Lyons, and which he had refused to accept.

The bill, affidavit, and evidence clearly show that the position taken by complainant both in his suit and prior thereto was that be was entitled to a deed not only for the premises described in the deed tendered to him May 23, 1892, and afterwards again offered to him in September, but also to this narrow strip of 3 feet 11 inches, within the lines of Witherspoon street, and that, so be lieving, he refused to pay the balance of the purchase money he had agreed to pay, unless he got a deed with covenants of general warranty and against incumbrances, which would give him a good title to 26 feet 11 inches, a part of which (3 feet 11 inches) was within the lines of Witherspoon street. The defendants could not give title to this narrow strip to either complainant or Vanderbilt, but, after the sale to Vanderbilt, they, or one of them, offered to complainant the $500 he had paid Hubbard on account of the purchase money, and also $500 for the liquidated damages named in the contract. There are serious questions presented in this case which affect the right of complainant to the relief prayed for in his bill, but we do not deem it necessary to discuss or express an opinion upon any of them except the one upon which we shall decide this case. In this case, if the contract is to be enforced, the complainant was entitled, in equity, to a conveyance of a lot on the corner of Nassau and Witherspoon streets, in Princeton, 22 feet 6 inches wide, and 129 feet deep, and he was not entitled in equity to the narrow strip of 3 feet 11 inches, which was part of Witherspoon street. The learned vice chancellor reached this conclusion, and determined correctly upon the evidence in this case that this complainant never had any right, in equity, to have a conveyance of a lot of more than the

MESSMORE v. MEYER et al. (Supreme Court of New Jersey. Nov. 10, 1893.)

NEGOTIABLE INSTRUMENTS-DELIVERY LIABILITY OF ACCOMMODATION MAKER.

Plaintiff was a creditor of one Simmons, and held S.'s note for $7,500, which was past due. Plaintiff informed S. that he would not extend payment of the indebtedness except upon an obligation of defendants. S. applied to defendants, and requested them to make their note for that amount to the order of plaintiff for the accommodation of plaintiff and himself. Defendants consented, and made the note in suit, which they delivered to S., taking from him a receipt, which stated that the note was for the accommodation of plaintiff and S. S. delivered the note to plaintiff, who promised to surrender to S. his overdue note. Afterwards plaintiff indorsed the last-named note, "Paid by a new note," but never delivered it to S. Held that, as between plaintiff and defendants, the note in suit was accommodation paper, and a finding by a judge trying the case without jury, in favor of defendants, was proper.

(Syllabus by the Court.)

Action on a promissory note by Daniel Messmore against Seigmund T. Meyer and another. There was a verdict for defendants, and plaintiff obtained a rule to show cause why a new trial should not be granted. Heard on rule. Rule discharged.

The declaration was upon a promissory note dated February 13, 1890, made by Seigmund T. Meyer & Co., a firm composed of defendants, to plaintiff's order, for $7,500, payable in five months, with interest. The plea was the general issue.

Argued June term, 1893, before the CHIEF JUSTICE and DIXON, MAGIE, and GARRISON, JJ.

Blair & Crouse, for plaintiff. Richard V. Lindabury, for defendants.

MAGIE, J. The issue in this cause was tried in the Hudson circuit before Mr. Justice Werts without a jury. The learned judge found in favor of the defendants, but the finding did not specially state the facts adjudged to have been proven, or the legal principles applied thereto. Under such circumstances, the question upon a rule to show cause is whether, upon any view of the facts justified by the evidence, the finding is correct in law. The facts which may have been found to be established by the evidence are that the note in suit was made by defendants on April 22, 1890; that they were not then indebted to plaintiff, but made the note at the request of one Simmons for the accommodation of plaintiff and Simmons; that they were not then indebted to Simmons, but delivered the note to him, taking from him a receipt, which stated that it was made for accommodation of plaintiff and Simmons; that at that time Simmons owed plaintiff $7,500, for which plaintiff held his overdue note; that plaintiff had told Simmons that he would not extend the pay

ment of his overdue debt except upon a note of defendants; that Simmons delivered the note in suit to plaintiff, who promised to discharge and surrender to Simmons his overdue note, and that afterwards plaintiff indorsed on the last-named note the words, "Paid by a new note," but never surrendered it to Simmons. Upon these circumstances the first question is whether the note in suit, as between plaintiff and defendants, is mere accommodation paper or commercial paper importing an obligation which plaintiff may enforce. Had this note been made payable to Simmons' order, and had plaintiff obtained it from him by indorsement in good faith and for value, a different question would arise, in respect to which no opinion need be expressed. But it was made payable to plaintiff's order, and it came into legal existence either when defendants delivered it to Simmons or when Simmons delivered it to the plaintiff. If the delivery of the note by defendants to Simmons gave it existence, it is obvious that Simmons was the agent of plaintiff to accept delivery. Plaintiff was therefore bound by his acceptance, which was for the accommodation of himself and Simmons. If the delivery of the note by Simmons to plaintiff gave it existence, then Simmons was the agent of defendants. He was not, however, a general agent, but a special agent, intrusted with the note to deliver to plaintiff as an accommodation to him and Simmons. His authority was thus limited, and no representations of Simmons could enlarge that authority. As the note was made payable to plaintiff, to whom defendants were not indebted at all, the possession of it did not tend to hold out Simmons as possessed of greater authority than that actually conferred upon him. In either view plaintiff must be considered as having taken the note for his accommodation, and therefore he acquired no right of action thereon against defendants. It is unnecessary to determine what plaintiff's right would have been had defendants made this note for an indebtedness due from them to Simmons or as an accommodation to Simmons alone. The conclusion reached sustains the finding, and we need not consider any of the other matters argued. rule must be discharged.

The

VAN SYCKEL et al. v. WOOLVERTON et al.

(Supreme Court of New Jersey. Nov. 10, 1893.)

DECLARATION ON COMMON COUNTS-PLEA OF COV

ERTURE.

1. The plea of coverture is no defense to the cause of action set forth in the common counts.

2. Such plea held bad on demurrer to it. (Syllabus by the Court.)

Action by Chester Van Syckel and another, executors, against Margaret Woolverton and another. Heard on demurrer to plea. Demurrer sustained.

Argued before BEASLEY, C. J., and DIXON, MAGIE, and GARRISON, JJ.

H. B. Herr, for plaintiff. H. A. Fluck, for defendant.

BEASLEY, C. J. The declaration in this case set forth a cause of action on the common counts against a man and woman by the name of Woolverton. The female defendant pleaded her coverture, and to this plea the plaintiff demurred. The demurrer must be sustained. Coverture is no defense to most of the causes of action that can be shown under the common counts. Most of the contracts made by a married woman can be legally enforced, and consequently, there can be no inference that the particular contract in suit is beyond her competency. If such be the case, she must show it by her plea. The point is expressly ruled in Hinkson v. Williams, 41 N. J. Law, 35. The demurrer must be sustained.

STATE ex rel. LOUCKS et al. v. BRADSHAW et al. (Supreme Court of New Jersey. Nov. 10, 1893.)

INTOXICATING LIQUORS

CONTROL BY COUNTY BOARD-CONSTITUTIONALITY OF ACT.

The act entitled "An act to create county boards of license commissioners, and to define their powers and duties," is unconstitutional, as it is local in its operation.

(Syllabus by the Court.)

Original information in the name of the state at the relation of Wellington E. Loucks and others against Claudius Bradshaw and others to test the constitutionality of an act of the legislature.

Argued before BEASLEY, C. J., and DIXON, REED, and MAGIE, JJ. D. J. Pancoast, for relators. for defendants.

Alfred Hugg,

BEASLEY, C. J. The information in this case presents, and was intended to present, but a single question of law, viz. whether the statute entitled "An act to create county boards of license commissioners, and to define their powers and duties," is constitutional or not. This act was approved March 20, 1891. One objection urged against this law is that its provisions are special and local. The general purpose of the law thus challenged is to provide boards of license commissioners to be appointed by the governor, whose powers are thus defined: that they "shall have general supervision and control of the wholesale and retail sale of spirituous, vinous, and malt liquors, except where license for the sale thereof has been or may hereafter be granted by a court in their respective counties." It is now contended that

by this exceptive clause the operation of the act is confined to certain localities, and is therefore unconstitutional; and this court is of opinion that this position is well taken. It is obvious that there is nothing in the subject-matter of this legislation that from its inberent nature would make it apposite to some counties and not to others. The fact that in some counties licenses of the kind in question are granted by a court and in others proceed from other authorities is a purely arbitrary distinction, and as such cannot be laid as the basis of a classification for the purposes of legislation regulating the internal affairs of our counties. This principle

has been so often and fully expounded in the decisions of this court that all discussion on the subject would be superfluous. This is the ground upon which the present judgment holding the act ur.constitutional is placed. It is not necessary to decide the other ground of objection to the statute in question. Let judgment be entered in favor of the attorney general.

Plaintiff, with other employes of defendant, was ordered to unload iron from a car onto a platform 16 inches from the bed of the car. It was so dark that it could not be seen whether there was a footboard across this space of 16 inches or not, but plaintiff, supposing that there was one, without examination, stepped into the car, and, on returning with an armful of iron, fell through the space, and was injured. There was a footboard near at hand, and also a lamp, which plaintiff and his coemployes could have used. Held, that plaintiff was guilty of contributory negligence.

Appeal from circuit court, Allegany county.

Action by Ralph G. Piper against the Cambria Iron Company. There was judgment for defendant, and plaintiff appeals. Affirmed.

Argued before ROBINSON, C. J., and BRISCOE, MCSHERRY, and FOWLER, JJ. J. W. S. Cochrane and J. E. Macbeth, for appellant. Ferd Williams, for appellee.

FOWLER, J. This is an action to recover damages alleged to have been caused by the negligence of the appellee, the Cambria Iron Company, which is a Pennsylvania corporation, doing business in the city of Cumberland, in this state. The court instructed the jury that the plaintiff had offered no evidence legally sufficient to sustain his case, and directed a verdict for the defendant corporation. The propriety of this ruling is the only question involved, but it will be necessary to examine all the plaintiff's testimony in order to determine it. The plaintiff was an employe of the defendant, and while engaged at work in the yard of its mill in Cumberland, on the 18th November, 1892, he, with three other men, was ordered (by whom it

does not appear) to go into the mill for the purpose of unloading a car, to weigh the iron with which the car was laden upon the platform beside the car, and then to put it into another car, also standing near said platform in the mill, a short distance away. It appears that the floor of the car to be loaded was above the level of the platform, and was provided with a fall or footboard for the men to walk upon to and from the car. But the floor of the car which was to be unloaded was on a level with the platform, | and the space between the platform and this car was 16 inches wide and 4 feet deep. There was no footboard over this last-named space of 16 inches, the only footboard owned by the defendant being placed at the other car which was to be loaded with the iron after it was weighed by the appellant and his fellow workmen. It was about 4 o'clock in the afternoon of a very dark day, and on the inside of the mill it was so dark that no one could see whether there was a footboard in position at the car or not without stooping down to examine the place where it was supposed to be. The plaintiff, supposing there was a footboard there, without making any examination, and assuming the place to be safe, stepped into the car without injury, and while returning with his armful of iron, without looking, he stepped into the open space of 16 inches, and was injured. It was also in evidence that a footboard is a usual and necessary appliance for loading and unloading cars, and that a lighted lamp was placed in the car immediately after the plaintiff was injured. Upon this state of facts, we entirely agree with the ruling of the court below. The case was properly taken from the jury. The burden is upon the appellant to show negligence on the part of the appellee, but he has failed. Not only so, but the evidence offered would seem to establish the conclusion that the appellant was the author of his own misfortune. He was required, together with his companions, to take the iron out of one car, weigh it on the platform alongside of the car to be unloaded, and then to place the iron in another car near by. The negligence imputed to the appellee is that it failed to provide a footboard and put it in place, and the absence of light where the work was done. But if, as was contended, a footboard was necessary, there was one near at hand which could have been used, and, if a light was needed, it was the duty of the appellant and his companions to have placed it there. It appears a lamp was lighted immediately aft er the appellant fell, and there is nothing in the record to show why it was not there, if wanted, before the work was commenced. While employers should be held to a strict performance of duty towards employes, yet the latter must be required to exercise some prudence, and to use the necessary means supplied to them to enable them to do their work in a safe and expeditious manner. The

authorities cited by the appellant have not, we think, any application to a case like this. In Darling v. Railroad Co., 17 R. I. 708, 24 Atl. Rep. 462, it was held that a "telltale," or structure erected above the track for the purpose of giving warning of approach to a bridge was not a safe appliance because it was not high enough, and instead of being. as it was intended, a warning of approaching danger, was itself very dangerous to an employe standing on a moving car a few inches higher than the cars in ordinary use. And the other case relied on, (Bank v. Morgolofski, 75 Md. 432, 23 Atl. Rep. 1027,) was not a case in any way involving the legal relations of master and servant, and what was there said cannot be properly applied to this case. Judgment affirmed.

OF DECEDENT-TENDER-FINAL ORDER. 1. To a creditors' bill making a mortgagee of the debtor defendant, and seeking a redemp tion from the mortgage and a sale for the benefit of the creditors, defendant mortgagee demurred on the ground that complainant, being only a general creditor, had no right to redeem. Held, that an order sustaining the demurrer was final, as to proceed further on the creditors' bill would have been fruitless.

2. Though by Code, art. 16, § 188, the land of a decedent is conditionally liable to be sold for the debts, a general creditor is not on that account such an incumbrancer as to have a right to redeem from a mortgage.

3. After a mortgagee has filed his bond, and advertised the property for sale under his mortgage, the administrators of the mortgagor, in order to stop the proceedings and redeem, must tender costs in addition to the debt.

Appeal from circuit court, Kent county. Creditors' bill, aided by injunction, by William McNiece against Thomas Eliason, Jr., and others. From orders sustaining a demurrer to the bill and dissolving a temporary injunction, complainant appeals. Affirmed.

Argued before ROBINSON, C. J., and BRISCOE, BRYAN, BOYD, McSHERRY, and FOWLER, JJ.

H. W. Vickers, Hope H. Barroll, and W. Frank Tucker, for appellant. James A. Pearce and Richard D. Hynson, for appellees.

FOWLER, J. The appellant, William McNiece, filed a creditors' bill in the circuit court for Kent county on the 30th of November, 1892, suing for himself and all other creditors of Norris Bernard, deceased, in the usual form, making the administrators and heirs at law of the deceased debtor, and also Thomas W. W. Eliason, Jr., the appellee, parties defendant. The bill alleges that said "Bernard was in his lifetime indebted to the appellant and other persons in large sums of money which were unsecured, and that there was an outstanding overdue mortgage