would be a superfluous task to append street | bankruptcy is a judicial officer charged by number address in such cases. Nothing appearing to the contrary it will be presumed that the referee adjudged the address of the plaintiffs sufficiently set out in the schedule. Independently of any such presumption it does appear in the record that the bankrupt knew the street address of the plaintiffs.

In discussing the effect of the use of initials and omission of street addresses in schedules filed by bankrupts, Mr. Justice Lamar, in Kreitlein v. Ferger, supra, on page 33 of 238 U. S., on page 689 of 35 Sup. Ct. (59 L. Ed. 1184) says:

"Both as to the use of initials and omission of street address the act must be given a general construction, and in the light of the fact that letters directed to persons by their initials are constantly, properly, and promptly delivered in the greatest cities of the country even when the street number is not given. When it is considered that the schedule must not only include claims of recent origin but debts which have accrued many years before and where the creditor may have changed his residence, it becomes evident that to lay down the general rule that the schedule must give the name of the creditor and the city and street number of the residence of those living in the largest cities would, in a multitude of cases, destroy the beneficent effect of the Bankruptcy Act. These schedules are often hurriedly prepared, long after the date of the transaction out of which the debt grew, and when books and papers, which might otherwise have furnished a fuller and more complete address, have been lost or destroyed. Bearing in mind the general purpose of the statute to relieve honest bankrupts; considering that the act does not expressly require the street address to be stated or the residence to be given unless known; and giving proper legal effect to the order of discharge, we hold that a schedule listing the creditor's residence as Indianapolis is, at least, prima facie sufficient."

We have therefore under the facts of the present case before us no hesitancy in concluding that the trial judge properly found upon the facts before him that the listing of the plaintiffs in the schedule, H. B. Claflin & Co., N. Y. City, was sufficient.

law with the duty to mail the notices to the creditors of the bankrupt, at the various stages of the bankruptcy proceedings. The bankrupt debtor is bound to furnish the list of his creditors, the amount due them, and their place of residence, etc., all of which were complied with in this case. The bankrupt debtor has nothing whatever to do with notifying his creditors of the bankruptcy proceedings; that duty, as has been said, the law casts upon the referee. It will therefore be presumed nothing appearing to the contrary that the officer properly performed the duty devolved upon him by law.

As to the effect of the order of discharge as prima facie proof of notice, Mr. Justice Lamar, in Kreitlein v. Ferger, supra, in discussing that phase of the case, on page 26 of 238 U. S., on page 687 of 35 Sup. Ct. (59 L. Ed. 1184), says:

"There are only a few cases dealing with the where a bankrupt is sued on a debt existing at subject but they almost uniformly hold that the time of filing the petition, the introduction of the order makes out a prima facie defense, the burden being then cast upon the plaintiff to show that, because of the nature of the claim, failure to give notice, or other statutory reason, the debt sued on was by law excepted from the operation of the discharge."

See cases cited in the opinion.

[6] 2. There was uncontradicted proof in favor of the respondent that notice of the bankruptcy proceedings was mailed to the appellants in conformity with the Bankruptcy Act. In addition to the legal presumption springing from the record, there was the testimony of Miss Vanderhoof, cited above,

Of

which tended to establish that she mailed the notice to appellants on June 6, 1902. She refreshes her recollection from the records which she actually made at the time. course, after a lapse of twelve years, it was rather too much of a task for an honest witness to attempt to rely on her memory solely as to this particular instance, since it was only one of many like tasks which she was called upon to perform almost daily in the routine of business. The only proof offered by the appellants on this point must be sought for in the answer to the third interrogatory, and which is as follows:

As another ground for a reversal of the judgment under review, counsel for appellants makes the claim that there was no proof before the trial judge that legally justified him in finding that the appellants had notice of the bankruptcy proceedings in time for proof and allowance of the appellants' "We have no record or knowledge of receivdebt. We think there was ample proof be- ing any such notice. We keep full records of fore the trial judge to justify his finding all notices received, and it is our invariable custom when such notices are received to make that notice of the bankruptcy proceedings proof of our claim and cause the same to be was given in compliance with the require-filed. We filed no proof of claim in this matments of the Bankruptcy Act. This appeared ter. It is our best information and belief that in two ways: no such notice or any notice in this matter was ever received by us."

[5] 1. When the schedules and discharge in bankruptcy of David Wolff were intro- And in their answer to the first interrogaduced in evidence they were at least primatory, where they say that they had no actual facie evidence of what they purported to knowledge of the bankruptcy proceedings unIt is to be observed show. The bankruptcy schedule under date til November 6, 1913. of June 6, 1902, contained this entry: that the answer to the third interrogatory "Mail copies of notices of meeting of creditors was to the following inquiry: to creditors named in the schedule.'

And then there appears a record of their

"Was not there delivered by mail at the place of business of said plaintiffs a notice of the first meeting of creditors in the matter of David.

It is to be further observed at once that the answers can hardly be said to be responsive. The fact that they, the appellants, have no record or knowledge of receiving any such notice, is not a denial that such notice was mailed to them or received by the person in charge of receiving the mail at that time, for the firm, and falls short of disproving that the statutory notice was mailed. [7] The answer made appears to be an argument why the appellants believe they had no notice of the meeting of the creditors. It appears in the case that since Wolff became a bankrupt, the appellants' firm has changed its composition and character. Three of the partners retired from the firm, and the partnership subsequently became a corporation. There is no presumption that none of the partners had not at that time notice or knowledge of the bankruptcy proceedings. If any of them had notice or knowledge of the proceedings in bankruptcy they would all be affected by it. Whether the three partners who retired from the firm could have shed any light on the transaction does not appear. [8] The mere fact that a creditor denies that he received notice or had knowledge of the bankruptcy proceedings in time to prove his claim, is not conclusive that the statutory notice was not given, or that he had no actual knowledge of the pendency of such bankruptcy proceedings, in face of a record of the district court that such notice was given. [9] At most an issue of fact would be presented for the trial judge to determine, and his finding thereon would be conclusive on us. For the reasons given judgment will be affirmed, with costs.

(88 N. J. Law, 342)

Where the charge in an action for death in a crossing accident stated that, generally speaking, the law imposed upon the railroad the duty the duty was to warn of approaching trains by of using reasonable care, and specifically that a signal bell, the general charge was not erroneous for imposing duties outside the requirements of the law, which were only to warn by a signal bell.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. 351.]

Appeal from Circuit Court, Hudson County.

Action by Lena Wilson, administratrix, against the Central Railroad Company of New Jersey. From a judgment for plaintiff after refusal of nonsuit and refusal to direct verdict for defendant, defendant appeals. Affirmed.

George Holmes, of Jersey City (Edwards & Smith, of Jersey City, of counsel), for appellant. Alexander Simpson, of Jersey City, for appellee.

KALISCH, J. This is an appeal from a judgment entered on a verdict of a jury WILSON V. CENTRAL R. CO. OF NEW obtained in the Hudson county circuit court, JERSEY. (No. 81.)

against the defendant appellant, by the plain

(Court of Errors and Appeals of New Jersey. tiff respondent, whose husband was killed

Nov. 19, 1915.)

by one of the appellant's trains at one of

1. RAILROADS 350-OPERATION-CROSSING its grade crossings, while the respondent's NEGLIGENCE QUESTIONS FOR

ACCIDENTS

-

intestate was driving on it in an automobile. At the circuit the appellant obtained a rule to show cause why the verdict should not be set aside, and was allowed to reserve its exceptions to the refusals to nonsuit and to direct a verdict for the appellant, and to certain objections made to the court's charge. The rule was subsequently discharged.

JURY. Where there was evidence that before approaching a railroad crossing, decedent had his automobile under control and listened for a train, and then approached the crossing at a speed of 12 miles per hour, that the train could not be seen from the road on account of a row of trees along it, that no whistle was blown nor bell rung and that the automatic gong at the crossing did not ring, that the train was seen [1] The legal question arising out of the when decedent's automobile was 40 feet from refusal to nonsuit, and the refusal to direct the crossing, and upon seeing it, decedent immediately applied the brakes, which failed to a verdict is whether there was any testimony work, and that the train was running at a speed from which a jury might have properly conof 55 miles per hour, the defendant was not en- cluded that the appellant was negligent, and titled to a nonsuit, since the jury might have was free found that failure to ring the bell or blow the that the respondent's intestate whistle was the proximate cause of the death. from any negligence contributing to his in[Ed. Note. For other cases, see Railroads, jury and death. This involves an examinaCent. Dig. §§ 1152-1192; Dec. Dig. 350.] tion of the evidence adduced at the trial. 2. RAILROADS 350-OPERATING CROSSING From the plaintiff's case it appears that ACCIDENTS-CONTRIBUTORY NEGLIGENCE. there was testimony tending to show that It is not, as a matter of law, contributory negligence for the driver of an automobile going neither a bell was rung nor a whistle blown at the rate of 12 miles per hour, on seeing a by the locomotive engine in approaching the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"There is a substantial difference between being surprised by an unforeseen peril and being overtaken by one apprehended and recklessly in

curred."

[3] It is a familiar doctrine that a motion to nonsuit is in nature of a demurrer to the evidence, and admits the truth of the facts testified to, but denies their legal force and efficacy to sustain the plaintiff's cause of action. A jury question was presented both as to the defendant's and plaintiff's negligence, and therefore the nonsuit was properly denied. And as the testimony introduced by the defendant simply put in dispute the facts developed by the evidence on the plaintiff's case, the trial judge very properly denied the motion to direct a verdict for the defendant. Spargo v. Cent. R. Co., 84 N. J. Law, 251, 86 Atl. 385.

crossing; that there were no gates at the crossing, but that an automatic bell had been installed there to give warning of trains approaching the crossing, and which bell was out of order and did not ring; that a view of the approaching train was obstructed by a line of trees so that it was not visible to the occupants of the automobile until they were within 50 feet of the crossing; that when the motor car was within 40 feet of the crossing a companion of the decedent observed the coming of the train, called the attention of the decedent to it and jumped from the car; that the decedent made a prompt but unsuccessful attempt to stop the car, which was traveling at the rate of 12 miles an hour, from going onto the crossing; that the train was going at a speed, according to the engineer's testimony, [4] The only other point argued in the apof 55 miles an hour; and that when the depellant's brief relates to an objection taken cedent was apprised of the approach of the by counsel for appellant to this language of train he had about three seconds in which to the court's charge: prevent the car from going onto the crossing.

There was also testimony to the effect that the decedent, before reaching a point where the train first became visible and was seen by him, listened and had his car under control, and that his failure to bring the car to a stop in time to avoid the collision was due to the brake of his car failing to work properly in response to his efforts.

"The duty imposed by law upon a railroad, generally speaking, is to use reasonable care."

The appellant's brief concedes that the defendant was charged with the duty to give either one of the statutory signals, and under the act of 1909, where the statute applied warning by signal bell, but it is said that the court by charging that the defendant was bound to use reasonable care put an additional burden on the defendant not sanction

It is manifest that in this state of the evi-ed by our cases. dence the appellant was not entitled to succeed on his motion for a nonsuit. For upon this evidence a jury might properly have found that the appellant's engineer failed to give either of the statutory signals, by ringing a bell or blowing a whistle, and that this failure to ring a bell or blow a whistle was the proximate cause of bringing the decedent's car so near to the crossing and into a position of peril. This being so it became a further jury question whether the decedent, under all the circumstances then present, exercised reasonable care to avoid the collision. Walling v. Cent. R. Co., 82 N. J. Law, 506, 81 Atl. 987.

We do not think that any such inference can be drawn from the charge. For it appears that after making the preliminary statement, as to what, generally speaking, the duty of a railroad company is, the trial judge then proceeded to state accurately the duties which were imposed by law upon the appellant. But if it was meant that the railroad company was bound to use reasonable care in the performance of the duties imposed upon it by law, then the declaration made by the court was most favorable to the appellant. A plain reading of the judge's charge negatives the assertion that the negligence of the defendant was predicated upon the nonexercise by it of reasonable care, outside of any duties imposed upon it by statute.

Judgment will be affirmed, with costs.

(85 N. J. Eq. 425) GRIMMINGER v. ALDERTON et al. (No. 37/82.)

[2] It cannot be properly said as a matter of law that the failure of the decedent to stop his car, which was going at moderate speed and which under ordinary circumstances he could have stopped in time to have averted the accident, was, in the emergency that confronted him, coupled with the unexpected failure of the brake of the car to work properly and to respond to his efforts, negligent conduct of the deceased con- (Court of Chancery of New Jersey. Nov. 5, tributing to his injury and death. Whether it was or not was pre-eminently a question 1. DEEDS 68-VALIDITY-CAPACITY-INDEfor the jury's determination. This court, speaking through Justice Dixon, in West Jersey R. Co. v. Ewan, 55 N. J. Law, on page 576, 27 Atl. 1064, on page 1065, in dis cussing the plaintiff's negligence in that case said:

PENDENT ADVICE.

1915.)

Complainant, who was mentally incompetent, and whose wife, having married him to secure his property, procured his conveyance of all his property to a third person, and thence to them in their joint names, both without consideration, and who afterwards procured his deed to her relatives living in the same house, so

as to be thereby divested of substantially all interest in the property of record, who was unable to work and dependent upon the grantees, and who had not had the benefit of independent advice, might have the conveyances set aside, in the absence of the grantees' proof of the fair-introduced herself, and I understood from her ness of the transaction.

[Ed. Note. For other cases, see Deeds, Cent. Dig. 88 149-155; Dec. Dig. 68.] 2. DEEDS 68-VALIDITY-CAPACITY.

In such case the conveyances would not be allowed to stand, without proof that the grantor understood the nature of the transaction.

[Ed. Note:-For other cases, see Deeds, Cent. Dig. 88 149-155; Dec. Dig. 68.]

3. HUSBAND AND WIFE 14- CONVEYANCE

TO WIFE-EFFECT.

A husband's conveyance of realty to himself and his wife vested in them the lands in common, each holding one-half during their joint lives with survivorship as at common law.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. 88 71-86, 88, 89; Dec. Dig. 14.]

Bill by Charles Grimminger against John Alderton and others to set aside conveyances. Decree for complainant.

Frank G. Turner, of Jersey City, for complainant. Charles E. S. Simpson, of Jersey City, for defendants.

GRIFFIN, V. C. The bill in this cause is filed to set aside three conveyances made as follows: (a) By the complainant and wife, Frances, to John Alderton; (b) by John Alderton and wife to the complainant and

wife, Frances (both made April 26, 1907); (c)

by the complainant and his wife, Frances, to John Alderton and Alice Alderton, his wife (made April 28, 1911). At the time these conveyances were made complainant had no other property.

The substance of the conversation was a request by her of me to ascertain how much money was coming to Charles Grimminger from his father's estate. By the Vice Chancellor: Q. Were they married at that time? A. Unmarried, sir. She at that time that she was to marry Charles Grimminger; and I viewed him as a man unfit to marry, because of this condition; and I was very short and peremptory with this lady, and gave her little information."

This Frances also denies.

On October 5, 1906, Mr. Van Winkle, on the written authority of the complainant, brother of the complainant, for $7,235.14, besent a check to Michael Grimminger, the ing the balance due the complainant upon his share in the partition suit, to be by him deposited in the New Jersey Title Guarantee & Trust Company as a special deposit in the name of George Grimminger, trustee. This, Mr. Van Winkle says, was done because he viewed the complainant as a perPrior to the receipt of these moneys the comson unfit to handle so large a sum of money. plainant had entered into a contract for the purchase of the premises in question for $5,000, the deed for which, while dated and acknowledged September, 1906, was not deOctober 12, 1906, the date of record; the livered nor the consideration paid until about purchase price having been paid out of the moneys received in the partition suit. Adding to this the sum of about $1,300 paid for his board accrued prior thereto, a small sum

remained in his hands out of the moneys received from the suit.

The complainant and Frances spent their honeymoon in Washington, and while there the complainant had a fit. This, she says, was the first intimation she had that he was so afflicted. Immediately after the wedding the complainant and his wife moved into the premises and occupied substantially one half. At the same time the Aldertons, parents of Frances, entered into the occupancy of the other half. Defendants say that the Aldertons, on entering, paid $11, and later $14, a them. From October, 1906, until July, 1910, month as rent for the portion occupied by the occupants of this house were the complainant and defendants and a son of the Aldertons named William, all of whom prac

The complainant and defendant, Frances, were married on October 25, 1906, after an acquaintanceship of four months. From childhood the complainant had been, and still is, mentally deficient, being, as it is said, an epileptic. The brother of the complainant, upon learning of the prospective marriage, acquainted Frances of the complainant's condition, urged her not to marry him, but she replied that she would marry him in spite of his condition. This she denies. At the time she became acquainted with him there was pending in chancery a suit for the partition of the estate of com- tically lived together as a single family. During this period no light is shed upon the plainant's father. The complainant and one other brother were represented by Messrs. and defendants, save only such as comes relations existing between the complainant Vredenburgh, Wall & Van Winkle; the case from the defendants; William not being being in charge of Mr. Van Winkle. Prior called. to the marriage, and also to the payment the complainant says, because of his mental Little weight can be given to what of complainant's share of the proceeds of sale in partition, and before the complain- condition; his stories are contradictory; he ant purchased the premises in question, is forgetful; has little idea of time, place Frances sought to obtain from Mr. Van Win- and circumstances. To illustrate: He says kle information as to what complainant his child (born in 1909) lived three or four would receive from the partition suit. Mr. years, whereas she lived but six months. Van Winkle testified as follows: He did not remember, until his memory was refreshed, that he occupied the house with the Aldertons until after this suit was com

"Q. Can you tell what the conversation was? A. Well, I can only recall the substance of it.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
96 A.-6

menced, and he was advised by his counsel, not work and money matters were causes of to leave, but, on the contrary, said he dispute between the complainant and Franthought he lived at the Boulevard Hotel in 1911, whereas the time was 1913. And in numerous other instances he showed his utter lack of memory and understanding. He spoke freely, without any attempt to dissemble. His manner, personal appearance, and speech clearly indicated a weak and disordered mind. His condition also was such as to render him unfit for work, and of this he did very little, and was therefore dependent upon the property in question and the defendants for his livelihood.

Frances, in speaking of the making of the deeds in 1907, on direct examination tes-about April 8, 1911, there were arrears of tified as follows: