ing the period of confinement. The declaration contains a special count upon the agreement, setting forth that suit was brought by the overseer of the poor of the township to compel the defendant to support the child and pay the expense of the confinement of the mother; that after the suit was instituted the agreement mentioned was entered into, and that upon its execution the application for support was withdrawn, and the suit to compel it discontinued; and that the defendant failed to keep his agreement. The declaration also contained the common counts. The defendant demurred. The demurrer is not printed, and we cannot tell whether it is to the whole declaration, or to the special count. The case is argued as if it was to the latter, and the defendant claims that the agreement was nudum pactum. The withdrawal by the mother of the claim for support, etc., is a sufficient consideration for the promise.

The demurrer is overruled, without leave to plead over, and the plaintiff is entitled to enter judgment.

In re EDISON.

(Supreme Court of New Jersey. Nov. 10, 1902.)

WITNESS-RULE FOR EXAMINATION-REVIEW ON CERTIORARI-VALIDITY-PRODUCTION OF DOCUMENTS.

1. A justice of this court having made an order that a subpoena should issue requiring T. A. E. to appear and testify and produce certain documents before a commissioner in obedience to a commission issued by the supreme court of New York directing that T. A. E. should appear and testify before the commissioner, held: (1) That such an order is not within the rule of this court requiring rules to be entered on the minutes within 10 days; (2) that such an order is subject to review by the court without a certiorari; (3) that such an order is not voidable merely because formal proof of the commission was not presented to the justice who made the order; (4) that, so far as the order directed the production of documents, it was illegal. Quære, does section 58 of the evidence act (P. L. 1900, p. 362) authorize an order for the production of documents?

(Syllabus by the Court.)

Order for the examination of Thomas A. Edison under a commission from the supreme court of New York. Motion to quash. Granted in part.

Argued November term, 1902, before COLLINS, HENDRICKSON, and DIXON, JJ. Frederick F. Guild, for the motion. Louis Hicks, opposed.

DIXON, J. Under section 58 of the evidence act (P. L. 1900, p. 362) the chief justice made an order for the issuance of a subpœna out of this court directing Thomas A. Edison to appear and testify and produce certain documents before a commissioner appointed by a commissioner sent by the supreme court of the state of New York. A subpoena duces tecum having been issued accord

ingly, a motion is now made to quash the order and the writ. This motion is properly made without a certiorari, because the order, although resting wholly on statutory authority, and not relating to a matter pending in this court, is filed with the clerk of the court, and deals with the process of the court. Hence, both in form and in substance, the order is within the jurisdiction of the court, as is, of course, the writ itself.

The first reason urged for quashing the order is, that it was not entered on the minut s of the court within 10 days after it was signed, in accordance with rule No. 40 of the court. But we think this rule is not applicable to statutory orders not connected with litigation pending in the court.

The second reason is that there was not presented to the chief justice legal proof of the commission issued by the supreme court of New York, the only evidence before him being an allegation under oath that such a commission had been sent. Our statute does not in express words require such proof, and it is now conceded that such a commission was, and still is, in force. On this ground we decline to quash the order.

The last reason is that the statute does not warrant the order for a subpoena duces tecum. The language of the act is that an order may be made awarding process of subpoena out of the supreme court for the person named in the commission to appear and testify before the commissioner. Whether the spirit of this law embraces the production of documents, we need not now decide. It is enough to hold that even the spirit does not extend beyond the making of an order in aid of the commission. The present commission will be satisfied by the testimony of Mr. Edison. It does not indicate that any documents are to be produced by him, and its purpose will be fully effectuated by a subpoena without the duces tecum clause. If the production of documents is desired, the supreme court of New York should first determine whether it will require their production, and then the question can be raised here whether our statute is broad enough to afford the necessary assistance.

The order, so far as it relates to the produc tion of documents, should be quashed; in other respects, affirmed. The subpoena issued should be set aside, and another subpoena, without the duces tecum clause, should be issued in its stead.

MCGUIRE v. CENTRAL R. CO. (Supreme Court of New Jersey. Nov. 10,

1902.)
NONSUIT-NEGLIGENCE.

1. Nonsuit should be directed in an action for negligence: the evidence, though showing no negligence in plaintiff, showing none in de fendant, but merely an accident.

Error to court of common pleas, Hunterdon county.

Action by Joseph McGuire against the Central Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Argued June term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and GARRETSON, JJ.

John L. Conover, for plaintiff in error. Wm. C. Gebhardt, for defendant in error.

PER CURIAM. Under the proof, when the plaintiff rested the court should have granted the motion of the defendant to nonsuit. If contributory negligence was not shown, it was quite clear that the plaintiff had not proven that the defendant had done any negligent act or negligently omitted to do any act which was the proximate cause of the injury to the plaintiff's cattle. Where the proof does not show negligence in either party, the plaintiff cannot be permitted to recover from the mere fact of the accident. For the failure to nonsuit, the judgment should be reversed.

STATE (COMBS, Prosecutor) V. LAKEWOOD TP.

(Supreme Court of New Jersey. Nov. 10, 1902.)

MUNICIPAL ORDINANCE-LICENSING VEHICLES.

1. An ordinance of the township of Lakewood licensing and regulating vehicles used in the business of carrying passengers upon its highways is sustained.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Walter R. Combs, to review an ordinance of the township of Lakewood. Affirmed.

Argued June term, 1902, before GARRISON and COLLINS, JJ.

R. Ten Broeck Stout, for prosecutor. J. W. Carmichael, for defendant.

GARRISON, J. This is a certiorari brought to test the validity of an ordinance of the township of Lakewood licensing and regulating hacks, cabs, stages, and vehicles used for carrying passengers for hire, and fixing a license fee for the same. The writ is directed to the clerk of the township, instead of to the corporation. This is said to be fatal upon motion to dismiss. Young v. Crane (N. J. Sup.) 51 Atl. 482. The case has been fully argued, without notice to dismiss, until argument, and will be treated on its merits.

The ordinance prescribes that it shall not be lawful to engage in the business of carrying passengers for hire without a license, for which a fee of $2 for each vehicle so employed must be paid. It subjects persons convicted of pursuing such business in violation of the above provision to a fine not exceeding $100, with commitment until paid. Under the same penalty, it requires licensed vehicles to stand for the purpose of soliciting custom

at certain designated points in the highways, and not elsewhere therein, and that the number of its license shall be displayed by each

vehicle.

The first and third reasons assigned for holding this ordinance invalid are that it is without authority of law. This contention is disposed of, both upon reason and authority, by the following decisions, cited in the exhaustive brief of the counsel for the defendant: Cooley, Const. Lim. pp. 735, 734; State v. Robinson (Minn.) 43 N. W. 833, 6 L. R. A. 339; Jones v. Foster, 43 App. Div. 33, 59 N. Y. Supp. 738; North Hudson County Ry. Co. v. Mayor, etc., of City of Hoboken, 41 N. J. Law, 71; City of Brooklyn v. Breslin, 57 N. Y. 591; Village of St. Johnsbury v. Thompson (Vt.) 9 Atl. 571, 59 Am. Rep. 731; Com. v. Stodder, 2 Cush. 562, 48 Am. Dec. 679; Morrill v. State, 38 Wis. 429, 20 Am. Rep. 12; Bradley v. City of Rochester (Sup.) 7 N. Y. Supp. 237; Bowser v. Thompson (Ky.) 45 S. W. 73; People v. Hotchkiss (Mich.) 76 N. W. 142; People v. Sawyer, 106 Mich. 428, 64 N. W. 333; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

The second reason is that the ordinance makes a distinction between the rights of citizens of the same township. No basis of fact is discoverable to which this reason can apply. Instances of an identical or similar exercise of municipal control that have been supported by the courts are taken as follows from the source above indicated: Freed. Mun. Corp. p. 299; City of Chicago v. Bartee, 100 Ill. 57; City of Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441; People v. Mulholland, 19 Hun, 548; Com. v. Stodder, 2 Cush. 562, 48 Am. Dec. 679; Frankfort & P. Pass. Ry. Co. v. City of Philadelphia, 58 Pa. 119, 98 Am. Dec. 242; City of St. Louis v. Green, 7 Mo. App. 468; City of Bowling Green v. Carson, 10 Bush, 64; Town Council of Winsboro v. Smart, 11 Rich. Law, 551; Com. v. Matthews, 122 Mass. 60; Com. v. Gage, 114 Mass. 328; City of St. Paul v. Smith, 27 Minn. 364, 7 N. W. 734, 38 Am. Rep. 296; City of Chillicothe v. Brown, 38 Mo. App. 609; City of Emporia v. Shaw, 6 Kan. App. 808, 51 Pac. 237; City Council of Montgomery v. Parker (Ala.) 21 South. 452, 62 Am. St. Rep. 95; City of Colorado Springs v. Smith (Colo. Sup.) 36 Pac. 540; Long v. Mayor, etc., 37 N. J. Law, 348; Tomlin v. City of Cape May, 63 N. J. Law, 429, 44 Atl. 209; Trenton Horse R. Co. v. Inhabitants of City of Trenton, 53 N. J. Law, 132, 20 Atl. 1076, 11 L. R. A. 410: Cape May, D. B. & S. P. R. Co. v. City of Cape May, 59 N. J. Law, 393, 36 Atl. 679, 36 L. R. A. 656; Id., 59 N. J. Law, 396, 36 Atl. 696, 36 L. R. A. 653.

The fourth reason is that the ordinance discriminates between those licensed and not licensed. Every regulation that prescribes duties for those who obey it, and penalties for those who do not, has this effect.

The last reasons are that trial by jury is denied, and that the penalty is excessive, cru

PITNEY, J. This appeal was taken under the act of April 3, 1902 (Laws 1902, p. 565). The action was brought to recover the agreed price of goods bargained and sold. The defendant had judgment below.

From the state of the case agreed upon between the parties, according to the terms of the act, the following facts appear: The plaintiffs were engaged in business at Iowa City, Iowa. The defendant, who seems to have been a resident of Hoboken, in this state, on March 22, 1901, gave to the plaintiffs' salesman an order in writing for a quantity of jewelry at the price of $155, and a show case to be furnished "free," in which order the following clauses were contained, viz.: "This sale is made under inducements and representations herein expressed, and no others, and is subject to approval at Iowa City, Iowa. Goods delivered to customer when delivered to transportation company. Terms: Net cash, thirty days. Profits guarantied: We guaranty that the gross profits to the purchaser from the sale of the jewelry purchased hereunder, and the jewelry hereafter purchased as hereinafter provided, will average $50 a year for three years from the date of shipment. the gross profits do not average $50 per year, we will pay by draft to the purchaser

If

an amount sufficient to make up the deficiency, under the following conditions: That the purchaser keep the jewelry well and tastefully displayed in his store, in the show case furnished for the purpose. Please ship goods mentioned on this order blank at your earliest convenience, and oblige." Here follow the signature and post-office address of the defendant, and the signature of the plaintiffs' salesman. This order was forwarded to plaintiffs at Iowa City, received by them on March 25th, and by them accepted. On March 29th they shipped the jewelry to the defendant, at Hoboken, by express. On March 27th they caused the show case to be shipped by freight from Alliance, Ohio, consigned to the defendant, at Hoboken. The defendant had no notice that the jewelry and the show case were to be shipped separately, or by different modes of conveyance. The case shows no notice given to the defendant that her order had been accepted, other than such notice as may be deemed to result from the following facts: On April 3d she received notice from the express company that a consignment addressed to her was at the office of that company in Hoboken. She thereupon went to the express company's office, and finding only the jewelry there, and no show case, she refused to receive the jewelry. What disposition was thereupon made of it by the express company does not appear. On April 26th she received notice from a railroad company that a show case consigned to her was ready for delivery at the office of that company in Hoboken. She refused to receive the show case, because, as she testified, it was to have been delivered in time for the Easter trade, and, as it did not arrive until after that time, she was unwilling to take it. Counsel for the plaintiffs objected to this testimony of defendant on the ground that it tended to vary the written contract.

The trial court gave judgment for the defendant on the ground, among others, that all the goods mentioned in the order were not offered to the defendant at or about the same time. This we think was correct. The contract was an entire one, and, although it referred to the show case as being "free," it is manifest that this article was a material part of the consideration, for the order showed that the case was intended for the display of the jewelry, and that the defendant was required to use that show case only, if she wished to avail herself of the guaranty of the plaintiffs contained in the same contract. The clause, "Goods delivered to purchaser when delivered to transportation company," did not constitute that a good delivery which would not have been a good delivery if made to her personally. The contract being entire and indivisible, the defendant was not bound to accept any part of the goods unaccompanied by the remainder,--certainly not unless she was notified that the remainder of the goods were to be

delivered shortly, and not even in that event unless she was given the option to accept conditionally that portion of the goods which was delivered in advance of the rest. 21 Am. & Eng. Enc. Law (1st Ed.) tit. "Sales," p. 541, and cases cited; Benj. Sales (Corbin's Ed.) §§ 535, 1032. The case of Kelsea v. Manufacturing Co., 55 N. J. Law, 320, 26 Ati. 907, 22 L. R. A. 415, furnishes no support for the claim of the present plaintiffs. In that case the objection that all the goods were not delivered at once was not taken in the trial court. Moreover, it there appeared that, at the time of the defendants' refusal to accept the goods, the entire quantity of goods called for by the contract had been delivered according to the terms of the contract, of which fact the defendants had notice.

In our view of the present case, the error assigned upon the admission of defendant's testimony as to the understanding with respect to the time when the goods should reach her becomes immaterial. That testimony went only to the question whether it was agreed that the goods should reach her in time for the Easter trade. While the defendant assigned this as a reason for refusing the show case, it abundantly appears that she was justified in refusing it on other grounds. Unless the plaintiffs made such a delivery of the goods as constituted a performance of the contract on their part, she was not bound to accept them. The reasons that operated in her mind to induce her to reject them are of no consequence; there being nothing to show that her reasons were communicated to the plaintiffs, or that they were in any wise misled by her attitude.

The judgment will be affirmed, with costs.

1. A verdict in an action to recover compensation for personal services will not be set aside by the trial court as excessive merely because it is larger than the court would have found if it had been serving as a jury.

Action by Elizabeth R. Dickerson against Middleton W. Payne, administrator. Rule to show cause why a verdict in favor of plaintiff should not be set aside. Rule discharged.

Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ.

George S. Silzer, for plaintiff. Leslie Lupton and Alan H. Strong, for defendant.

PER CURIAM. This action is brought by the plaintiff to recover a claim against the defendant's decedent for personal services as housekeeper and nurse, performed for him

at his home, for a period extending from April 29, 1893, to January 1, 1899. At the trial there was a verdict for the plaintiff for $1,523.20. We find nothing in the case which would justify us in interfering with the verdict. The right of the plaintiff to recover at all depended upon disputed facts, and the finding of the jury in favor of her right is supported by the evidence. The amount which she was entitled to recover, if she was entitled to recover anything, was also a matter in dispute, and, although it is perhaps somewhat larger than this court would have found due if it had been serving as a jury, nevertheless we cannot say that it is excessive. This disposes of all the grounds upon which the defendant seeks to have the verdict set aside, except the refusal of the trial court to admit in evidence certain promissory notes made by the defendant in this suit to the plaintiff. Our examination of the case satisfies us that these notes were entirely immaterial, and were properly excluded. The rule to show cause should be discharged.

PERTH AMBOY TERRA COTTA CO. v. RYAN. (Supreme Court of New Jersey. Nov. 10, 1902.)

WAY OF NECESSITY-NONUSER-ASSIGNMENT -CONSTRUCTION OF EASEMENT.

A right of way had been granted to Alfred, Edward, and Eber Hall, and their assigns, by the deed of one Coddington, the predecessor in title of the defendant. The right of way had been granted for the purpose of enabling the Halls to cart clay, etc., from their clay banks (a tract of 21% acres) to a certain public road. The grant provided that when the road was no longer required by the Halls, their heirs and assigns, it should revert to Coddington, his heirs and assigns. In a suit by the assigns of the Halls against the defendant for damages for obstructing the way, held:

(1) That this was not a way of necessity. The right granted did not become extinct because the Halls or their assigns, subsequent to the grant, acquired another way of carting clay from these clay banks to some other road.

(2) The right granted did not become extinct by mere nonuser.

(3) The right of way was assignable. (4) It was not limited to carting clay from pits opened at the time of the grant, but extended to all clay banks upon the tract of 211⁄2

acres.

(Syllabus by the Court.)

Error to circuit court, Middlesex county. Action by the Perth Amboy Terra Cotta Company against Patrick L. Ryan. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKLE, FORT, and GARRETSON, JJ.

Ephraim Cutter, for plaintiff in error. James S. Wight, for defendant in error.

2. See Easements, vol. 17, Cent. Dig. § 78.

GARRETSON, J. By deed dated September 26, 1853, the executors of the estate of Ephraim Harriott, deceased, conveyed to Alfred Hall, Edward J. Hall, and Eber Hall, in fee, a tract of land containing 212 acres. On the 15th day of July, 1854, Robert Coddington, as party of the first part, and the said Alfred Hall, Edward J. Hall, and Eber H. Hall, of the second part, entered into articles of agreement, which were signed by both parties and duly acknowledged and recorded, for the consideration of $1, and for the further sum of $300, to be paid in equal $50 installments, whereby the said Codding. ton did "thereby, for himself, his heirs, executors, and administrators, covenant, grant, promise, and agree to and with the said parties of the second part, their heirs and assigns, that they, the said parties of the second part, their heirs and assigns, shall and may at all times hereafter have free outlet and right of way by the private road hereinafter described, leading from the clay banks purchased of the estate of Ephraim Harriott, deceased, by them, situate in the township of Woodbridge aforesaid, through the premises of the said Robert Coddington, to the old stage road, leading from Woodbridge to Piscataway, for the purpose of carting clay, sand, or other articles from the said clay banks used in the manufactory of the said parties of the second part at Perth Amboy, or by them disposed of at private sale or otherwise, with free liberty to enter, pass, and repass with teams and drivers, and other persons employed by them, subject to the following conditions." The conditions are that the road is to be strictly a private road, to be used by the parties of the second part, their heirs and assigns, for the foregoing purposes, reserving to Coddington or his assigns the right of way, with his teams, drivers, and persons employed by him, to travel and cart on the said private road, and in all other respects to be used by and vested in the said parties of the second part, their heirs and assigns. Coddington agreed to keep up a gate at the outlet of the road on the west side of the old stage road. The Halls agreed to keep the road in good order for the purposes for which it was granted, and to keep up a gate at the commencement of the road, and to be responsible for all damage to the lands of Coddington for want of closing the gates by them or their employés, "and also that when the said road is no longer required by the said parties of the second part, their heirs and assigns, then the said road to revert to the said Robert Coddington, his heirs and assigns, the same as if this agreement had never been made." The agreement also contained provisions as to how the consideration should be paid, and described the beginning and ending points of the road, and its direction by courses and distances, and its width. The road did not begin at any part of the 21-acre tract. The Halls, by deed dated February 18, 1880, con

veyed the 21% acres to the plaintiff, and by deed dated February 18, 1883, conveyed to it the right of way. The title to the Coddington tract had become vested in the defendant in April, 1899. The action was brought to determine the right of the plaintiff to use this private way, which had been obstructed by the defendant. The case was tried by the judge without a jury, and judgment given for the plaintiff.

It appears from the evidence that in 1866 the Halls had purchased a piece of land lying between the 21-acre tract and a public highway other than that to which the right of way granted led, and that for some years prior to that purchase, and afterwards, they and the plaintiff had obtained ingress and egress from the 21-acre tract across these lands; and the defendant claims that, auother means of access to the 212-acre tract existing, there no longer remains any necessity for the right of way which had been granted, and that it ceased by reason of the clause in the agreement "that when the road is no longer required by the said parties of the second part, their heirs and assigns, then the said road to revert to the said Robert Coddington, his heirs and assigns, the same as if this agreement had never been made."

The first assignment of error is that the court below decided "that the right of way mentioned in the declaration, granted by Robert Coddington over his lands, was not one of necessity, under the terms of the grant, and did not terminate when the grantees of said right of way acquired other lands adjoining a public highway, and also adjoining the lands on which their clay banks were located." In this we think there was no error. It was not a way from necessity. It did not arise, nor was it granted, because the grantor of the clay banks had so granted them that there was no other way of reaching them, except through other lands of the same grantor. The lands of C. could not be subjected to a way from necessity because of the situation of lands granted by A. to B. The right of way from the Halls' clay bank to the old stage road leading from Woodbridge to Piscataway, over the Coddington land, was granted to the Halls, their heirs and assigns, for the purpose of carting clay, etc.; and under this agreement, so long as they desire to use this private way to reach the old stage road for the purpose of carting clay, etc., as specified in the agreement, they have a right to do so, and are not in any way limited in that right because they bave acquired another way of carting clay from their clay banks to some other road. The language used in the agreement, "that when the road is no longer required by the said parties of the second part, their heirs and assigns, then the said road to revert," etc., did create a way from necessity, and can only mean that when the Halls and their assigns cease to take clay from these clay banks, and no longer use the private road to