had possession of bill of sale to him. In addition to that, it would not be necessary to make any paper title at all, where personal property is concerned, if there is an actual delivery, and vendor takes them into her possession; but where property is not delivered, and vendor does not take possession, it is necessary, in order to protect the property from the creditors, to pass a paper title. There is no record that this title has passed; the bills of sale were not recorded; and you will take the testimony, and ascertain whether or not the title did pass to Mr. Suderly, and whether he ever had either actual or constructive possession, so he could pass it to Mrs. Kulin. But, if the possession of the goods and chattels changed to vendee, title would not be necessary." Exception was taken, and error assigned. The evidence of Stuhr, which was uncontradicted, is that a bill of sale of the goods from Frederick Kulin to Suderly, and a bill of sale from Suderly to the plaintiff, were executed in his presence for the purpose of conveying the title from the husband to the wife, and that when they were duly executed both of said bills of sale were handed by him to the plaintiff. The charge of the trial court left the jury to understand that because the bills of sale were not actually delivered into the hands of Suderly, and by him delivered in person to the plaintiff, no title passed to Suderly or to the plaintiff. That was a fatal error. The delivery by Stuhr was a delivery for the parties to the transaction.

The judgment below should be reversed.

(69 N. J. L. 52)

FAUX v. WILLETT." (Supreme Court of New Jersey. Feb. 24, 1903.) APPEAL-REVIEW-CONFLICTING EVIDENCE.

1. A verdict founded upon divergent facts will not be set aside because the court may think that, if it had been passing upon the facts, it might have found otherwise.

(Syllabus by the Court.)

Action by William J. Faux against Sarah J. Willett. Verdict for plaintiff. Rule to show cause discharged.

Argued November term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, FORT, and PITNEY, JJ.

A. H. & T. Strong, for the rule. George S. Silzer, opposed.

FORT, J. There were but two grounds upon which it was seriously contended that there should be a new trial in this case. They were (1) because the verdict was against the charge of the court and (2) because it was against the weight of the evidence.

The charge of the court certainly did give to the defendant every intendment and implication which the jury might gather from the

11. See Appeal and Error, vol. 3. Cent. Dig. § 3922.

facts, and state to the jury that an acceptance of the view of the facts as expressed by the court could lead to no other result but the finding for the defendant; but it likewise left a theory upon which the defendant might be found to be liable. That view the jury took. While we might not have found that way had we been the jury, still we cannot say that the result is erroneous. The jury may be right in their view. The law as to the liability of a married woman was correctly stated to the jury by the court, and under it they have found, from the evidence, that the contract in this case was made with the defendant.

Nor can we say that the weight of evidence is so preponderatingly against the verdict as to require its overthrow. If it be true that the original order for the purchase of the coal in this case was given by the defendant-and the jury have so found-then many other facts are explainable from the method of transacting the business. The order of the defendant was given by Theodore Willett, her husband. He was the person with whom the plaintiff had all his negotiations and correspondence. This makes a perfectly clear theory for explaining the fact that all the letters were addressed to him. They were written to him as the agent of the wife. The jury evidently accepted the plaintiff's explanation of the way the account came to be charged on the plaintiff's books to Theodore Willett instead of Sarah J. Willett. About the fact that the original order was given in the name of Sarah J. Willett, and that Theodore Willett was authorized to and did sign it in her name, there is no fair doubt under the evidence. This being established, it would not be proper to reverse a verdict because subsequent letters from the plaintiff might be said to throw doubt upon the original order when the original order itself proved to be free from doubt. There is a the ory, as we have above seen, upon which these subsequent letters are all explainable, consistent with the defendant's personal liability. That theory the jury were told they must find, or the defendant was entitled to their verdict. They found that theory to be the explanation of the letters. We cannot say it was not justified under the proof. This leads to the discharge of the rule to show cause.

(69 N. J. L. 111) UNITED NEW JERSEY R. & CANAL CO. et al. v. GUMMERE, County Clerk, et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

CERTIORARI-REVIEW OF ASSESSMENT.

1. A certiorari should not be allowed to set aside an assessment levied under the public road act of March 22, 1895 (Gen. St. p. 2902) § 14, merely because of defects in the commissioners' report of assessments, unless the cer tiorari is applied for within 30 days after the confirmation of the assessment

(Syllabus by the Court.

Certiorari by the United New Jersey Railroad & Canal Company and the Pennsylvania Railroad Company against Barker Gummere, Jr., and others, to review an assessment. Writ dismissed.

Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

Alan H. Strong, for prosecutors. J. Lefferts Conard, Aaron V. Dawes, and Linton Satterthwait, for defendants.

DIXON, J. This certiorari brings under review an assessment for the improvement of a public road in Mercer county under the act of March 22, 1895 (Gen. St. p. 2902). The assessment was confirmed by the circuit court of the county on April 3, 1902, and certiorari was allowed October 22, 1902.

The fourteenth section of the act above mentioned enacts that no certiorari shall be allowed to review any of the proceedings, nor in any way to effect any assessment, after the lapse of 30 days from the making of the order of the court confirming such assessment. The prosecutors rely on a single reason both to escape from this limitation and to overthrow the assessment, namely, that the commissioners failed to report that their assessment on the several parcels of land had been made in proportion to, and not in excess of, the benefits received from the improvement. Such a distribution being necessary to a constitutional assessment, the prosecutors insist that under our decisions the statutory limitation cannot be enforced, and they refer in support to Meredith v. Perth Amboy, 63 N. J. Law, 520, 44 Atl. 971, and cases there cited. But these cases do not sustain the position of the prosecutors. Their purport is that, where a statute under which the assessment is levied is unconstitutional (Traphagen v. West Hoboken, 39 N. J. Law, 232; Id., 40 N. J. Law, 193; Kirkpatrick v. Commissioners, 42 N. J. Law, 510), or where the tribunal confirming the assessment is without jurisdiction of the matter-for example, if it has failed to give the required notice (Pardee v. Perth Amboy, 57 N. J. Law, 106, 29 Atl. 587), or where the circumstances are such that no assessment can constitutionally be made (Benedictine Sisters v. Elizabeth, 50 N. J. Law, 347, 13 Atl. 5; Meredith v. Perth Amboy, 63 N. J. Law, 520, 44 Atl. 971), there the statutory limitation will not bar. None of these grounds, nor any akin to them, appears in the present case. The statute provides for a constitutional assessment, the lands of the prosecutors are subject to assessment, and the circuit court caused due notice of the time and place for hearing objections to be given. The sole ground of complaint is the defect in the report of the commissioners. Such a complaint is precluded by the statutory bar. Benedictine Sisters v. Elizabeth, 50 N. J. Law, 347, 13 Atl. 5. The defect could certainly have been remedied by order of the

circuit court under section 13 of the act in question, and ought now to be disregarded as a cause for reversing the assessment under the act of March 23d, 1881 (Gen. St. p. 3404).

The writ should be dismissed, with costs.

(69 N. J. L. 94)

LOWRY v. TIVY. (Supreme Court of New Jersey. Feb. 24, 1903.) ACTION ON NOTE-EVIDENCE-TRANSACTIONS WITH DECEASED PARTNER.

1. In an action founded upon a promissory note, in which a surviving partner and the personal representative of a deceased partner are joined as parties defendant severally liable, pursuant to section 29 of the practice act (Gen. St. p. 2537), if the several issues are tried together without objection, the plaintiff may give testimony concerning transactions with and statements by the deceased partner, so far as relevant to show the liability of the partnership firm upon the note, notwithstanding section 4 of the revised evidence act (Laws 1900, p. 363). (Syllabus by the Court.)

Error to Circuit Court, Hudson County. Action by Hannah Lowry against Peter Tivy and others. Judgment for defendants, and plaintiff brings error. Reversed.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Leon Abbett, for plaintiff in error. liam S. Stuhr, for defendant in error.

Wil

PITNEY, J. This action was brought to recover moneys alleged to have been loaned by the plaintiff to the firm of Tivy & Schmidt. composed of Peter Tivy and August J. Schmidt, as partners, and alleged to have been secured by two promissory notes made by Schmidt individually, payable to the order of the plaintiff, and indorsed with the firm name of Tivy & Schmidt, signed in the handwriting of Schmidt. Schmidt having deceased, the plaintiff joined as parties defendant the administrator of the deceased partner and Peter Tivy as surviving partner. The declaration contains the common money counts, and to it are annexed copies of the promissory notes, which are referred to in the declaration, and thereby made a part of it, as permitted by section 123 of the practice act (Gen. St. p. 2554). The pleader relied upon section 29 of the practice act (Gen. St. p. 2537), entitling the holder of a promissory note, instead of bringing sepa rate actions against the parties separately liable, to include them in one action. No question is raised as to the applicability of that section in a case like the present, for notice of misjoinder was not given in the manner prescribed by section 38 of the practice act (Gen. St. p. 2538). Therefore the plaintiff was entitled to proceed to trial and recover judgment against either or both of the defendants, according as her proofs warranted. Patterson v. Loughridge, 42 N. J. Law, 21; Elliot v. Bodine, 59 N. J. Law,

567, 36 Atl. 1038; Bank of Toronto v. Mfrs. & Merchants' Fire Assn, 63 N. J. Law, 5, 42 Atl. 761, at page 13, 63 N. J. Law and page 764, 42 Atl.

They

The defendants severed in their pleadings, but the several issues were brought on to trial together, without objection. The plaintiff proved the making and delivery of the promissory notes by Schmidt, and proved that the indorsements were in his handwriting, and that a partnership existed at that time between Schmidt and Tivy. The notes were thereupon admitted in evidence. were made long before the enactment of the recent general act relating to negotiable instruments (Laws 1902, p. 583), and so the present case raises no question of the effect of section 17 of that act, which prescribes that, where the language of the instrument is ambiguous, certain rules of construction shall apply, and, among others, that, where a signature is so placed upon the instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser. Therefore,

since the notes in question were the individual notes of Schmidt, payable to the order of the plaintiff, and indorsed in the firm name of Tivy & Schmidt, the indorsement in and of itself alone does not import any contract on the part of the firm. But extrinsic evidence is admissible to show what was the contract of the parties. Chaddock v. Van Ness, 35 N. J. Law, 517, 10 Am. Rep. 256; Haydon v. Weldon, 43 N. J. Law, 128, 39 Am. Rep. 551; Johnson v. Ramsey, 43 N. J. Law, 279, 39 Am. Rep. 580, at page 282; Building Society v. Leeds, 50 N. J. Law, 399, 18 Atl. 82, 5 L. R. A. 353; Middleton v. Griffith, 57 N. J. Law, 442, 31 Atl. 405, 51 Am. St. Rep. 617, at page 448, 57 N. J. Law, and page 407, 31 Atl.

The plaintiff was sworn as a witness, and was asked concerning certain transactions alleged to have taken place between her and Schmidt at the time of the making of these notes. She was also asked whether she had loaned moneys to the firm of Tivy & Schmidt at the time the notes were given. These questions were objected to by counsel for the defendants on the ground that under the revised evidence act (Laws 1900, p. 363, § 4) Mrs. Lowry, being a party to the action, was excluded from testifying to any transaction with or statement by the deceased, Schmidt. The objection was sustained by the trial court. At the close of the case the court directed a verdict in favor of the plain. tiff against Schmidt's administrator, and granted a nonsuit in favor of the defendant Peter Tivy on the ground of want of evidence against the firm. At the instance of the plaintiff, exceptions were sealed to the rulings just referred to, and she now brings this writ of error seeking to reverse the judgment of nonsuit.

If the administrator of Schmidt had been the sole party defendant, the rulings of the

trial judge with respect to admission of evidence would have been manifestly correct. But as against the defendant Tivy, who was sued individually, and not in a representative capacity, the plaintiff was entitled to give testimony as to transactions between her and the deceased partner relating to the partnership business. And, as the trial was permitted to proceed upon the combined issues raised by the pleas of the several defendants, whatever was admissible in evidence against one defendant was proper evidence to be admitted in the cause. If either defendant had a right to limit the force and effect of any testimony, this might have been done by proper instructions to the jury. The total exclusion of the evidence offered was erroneous, and the error obviously prevented the plaintiff from completing her proofs as against the defendant Tivy.

The judgment under review should be reversed, and a venire de novo awarded.

(69 N. J. L. 97)

CORKHILL et ux. v. CAMDEN & S. RY. CO. (Supreme Court of New Jersey. Feb. 24, 1903.) STREET RAILROADS-INJURY TO PASSENGERNEGLIGENCE OF MOTORMAN.

an

1. The motorman of an electric street railway car started his car at moderate speed to cross intersecting steam railroad consisting of three tracks, after his conductor had gone forward upon the crossing and had used proper care to ascertain that no railroad train was to be expected. While thus proceeding over the crossing at moderate speed, the motorman became suddenly aware of a railroad train rounding a curve near by, and coming toward his car at a high rate of speed, without timely warning by bell or whistle. A collision seemed imminent, and was in fact narrowly averted. The motorman, on seeing the danger, instantly applied all power, and increased the speed of his car to the utmost, in order to escape the collision. It was claimed that in the lurch of the street car thereby occasioned a passenger was thrown to the floor of the car and injured. Held, that a verdict attributing negligence to the motorman on these facts cannot be supported. (Syllabus by the Court.)

Action by Adam Corkhill and wife against the Camden & Suburban Railway Company and the Pennsylvania Railroad Company. Verdict against defendant Camden & Suburban Railway Company. Rule to show cause made absolute.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Howard Carrow, for plaintiffs. Joseph H. Gaskill, for defendant.

PITNEY, J. This action was brought against the present defendant and the Pennsylvania Railroad Company to recover damages for personal injuries alleged to have been sustained by Mrs. Corkhill while a passenger upon a street car of the Camden & Suburban Railway Company at the crossing of that railway over the tracks of the Pennsylvania Railroad Company. Upon the trial

a nonsuit was ordered with respect to the latter company. This ruling is not complained of. The plaintiffs recovered verdicts as against the present defendant, and a new trial is asked because those verdicts are against the weight of the evidence.

With respect to the liability of the Camden & Suburban Railway Company, the questions raised are, first, was there negligence on the part of the motorman or conductor in attempting to cross the tracks of the steam railway; secondly, was there negligence on the part of the motorman in suddenly increasing the speed of the car while upon the crossing; and, thirdly, did such negligence, if any, result in a physical injury to Mrs. Corkhill.

Taking the evidence most strongly in favor of the plaintiffs, it shows: That while Mrs. Corkhill was seated in an electric street railway car operated by the employés of the present defendant the car came to the crossing of the steam railroad (which consisted of three tracks) at Twelfth and Federal streets, in the city of Camden. That it stopped before entering upon the crossing. That the gates were at this time down. The conductor of the electric car went forward to the center of the crossing, and looked for trains upon the steam railway. He saw no train save a freight train, which was standing on one of the tracks near by. The railroad flagman told the conductor to cross, as the train was going to stand there. Then the gates were raised. The conductor beckoned to the motorman to come ahead, and he did so.

Thereupon the electric car started over the crossing at a moderate speed. While it was passing over, a train unexpectedly approached on the railroad, rounding a curve, and, so far as the evidence shows, it gave no signal by bell or whistle. The evidence shows that a collision appeared imminent. The flagman upon the railroad waved a red flag in front of the locomotive in order to avert a collision, and the train was finally stopped within 50 feet of the electric car. The situation was so critical that every passenger in the car was alarmed, and stood up, and looked out of the windows; and the motorman, seeing the danger, instantly applied all power, in order to carry his car across as quickly as possible. Mrs. Corkhill's story is that by the sudden lurch caused by the increased speed of the electric car she was thrown to the floor, and the inference sought to be drawn from this is that the fall caused the paralysis from which she has since suffered.

The case is devoid of evidence to show any want of care in either conductor or motorman in attempting the crossing; on the contrary, there is affirmative evidence to snow that, the conductor took every reasonable precaution, and that neither he nor the motorman had any warning that a train was coming. As to the conduct of the motorman in turning on ful! power when confronted

with the imminent danger of a collision, his act evidenced complete presence of mind and the exercise of the highest degree of care. If, on being confronted with such a danger, he had failed to make extraordinary efforts to increase his speed, there would, perhaps, have been ground to charge him with negligence, and the only excuse would have been that in the sudden peril he lost his presence of mind. If he had presence of mind (as he manifestly had) it was his plain duty to instantly apply the utmost power possible, in order to carry his passengers across without loss of life. Even though that might necessarily result in some danger of bruising, or even of more serious personal injury to the passengers, such injury was far preferable to the loss of life of one or more of the passengers, which would undoubtedly have resulted from a collision with the locomotive.

The cases that have held street railway companies liable for injuries to passengers caused by the lurch of a car have gone upon the ground that there was a sudden increase of speed under circumstances that evinced a disregard of the safety of the passengers. Consolidated Traction Co. v. Thalheimer, 59 N. J. Law, 474, 37 Atl. 132; Scott v. Bergen Co. Traction Co., 63 N. J. Law, 407, 43 Atl. 1060. See, also, May v. North Hudson Co. Railway Co., 49 N. J. Law, 445, 9 Atl. 688; Haile v. Clayton & Hoff Co., 61 N. J. Law, 197, 38 Atl. 805; Burr v. Pennsylvania R. R. Co., 64 N. J. Law, 30, 44 Atl. 845; Paynter v. Bridgeton Traction Co., 67 N. J. Law, 619, 52 Atl. 367.

In the present case the trial judge properly charged the jury, in effect, that, unless there was negligence on the part of the conductor in allowing the car to cross without exercising proper vigilance, or negligence on the part of the motorman in managing the car as it crossed the railroad, the plaintiff I could not recover. The finding of the jury that there was such negligence was contrary to the great weight of the evidence. It is therefore unnecessary to deal with the question whether Mrs. Corkhill's paralysis did not result, according to the great weight of the evidence, from mere fright, as insisted by the defendant, rather than from her being thrown to the floor of the car, as claimed by the plaintiffs.

The rule to show cause will be made, absolute.

(69 N. J. L. 126) HAWKINS, Fish and Game Warden, v. AMERICAN COPPER EXTRACTION CO.

(Supreme Court of New Jersey. Feb. 24, 1903.)

CONSTITUTIONAL LAW-TITLE OF ACT.

1. Section 17 of "An act to provide a uniform procedure for the enforcement of all laws relating to fish, game and birds, and for the recovery of penalties for violations thereof," ap

proved March 29, 1897 (P. L. p. 109), is unconstitutional, because its object is not expressed in the title of the act.

(Syllabus by the Court.)

Certiorari to Justice of the Peace.

Action by the state, by Charles M. Hawkins, fish and game warden, informer, against the American Copper Extraction Company. Judgment for plaintiff, and defendant brings certiorari. Reversed.

Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

P. H. Gilhooly, for prosecutor. Scott, for defendant.

Francis

DIXON, J. The offense complained of in the court below was a violation of section 22 of "An act for the protection of certain kinds of birds, game and fish, to regulate their method of capture and provide open and close seasons for such capture and possession," approved March 22, 1901 (P. L. p. 261). This section Imposes a penalty of $100 for each offense. The twenty-ninth section enacts that the provisions of the act shall be enforced in accordance with the provisions of the act of March 29, 1897, the title of which is given at the head of this opinion. The seventeenth section of the act of 1897 declares that in all cases where a person shall be convicted a second time double the penalties prescribed shall be imposed upon such second conviction. On the present complaint a penalty of $200 was imposed in accordance with this section 17, and the present certiorari is brought to reverse that judgment.

We think section 17 is rendered inoperative by article 4, § 7, par, 4, of the Constitution, because its object is not expressed in the title of the act. The title relates wholly to procedure, and gives no intimation of a purpose to impose or increase penalties. The recent decision of this court in George Jonas Glass Co. v. Ross, 53 Atl. 675, is based on a similar distinction. Section 29 of the act of 1901 does not aid the plaintiff below, for that sec tion merely directs how the provisions of the act of 1901 shall be enforced, and that act authorizes only the penalty of $100. We incline also to think that the clause in the act of 1901 directing that the penalty for each offense shall be $100, making no distinction between the first and subsequent offenses, is inconsistent with, and therefore overrides, the earlier provision that a double penalty should be imposed for each offense after the first.

The judgment should be reversed, with costs.

reasonable application therefor, because of his refusal to prepay the costs of the jury. A judgment obtained before the justice after such refusal is invalid for want of jurisdiction.

(Syllabus by the Court.)

Certiorari to Justice of the Peace.

Action by Rowland H. Mackenzie against Edward L. Gilbert. Judgment for plaintiff, and defendant brings certiorari. Reversed. Argued November term, 1902, before DIXON and HENDRICKSON, JJ.

Warren Dixon, for plaintiff.

HENDRICKSON, J. This writ brings up for review a judgment in the court for the trial of sinall causes in the county of Bergen. The only ground alleged for reversal is that the defendant was refused a trial by jury, although the same was duly demanded at the trial. The transcript shows that on the first adjourned day "the parties appeared. Defendant demanded a jury, and refused to pay for the same, whereupon the court refused to call a jury. Defendant then moved to dismiss the case. The court refused, and proceeded to trial." There is no provision in the act under which justices' courts are established making the prepayment of the costs of a jury a prerequisite to the right of trial by jury guarantied in our Constitution. It was decided by this court in the case of Clayton v. Clark, 55 N. J. Law, 539, 26 Atl. 795, that in an action brought in the district court, when the matter in dispute is above the sum of $200, a demand for a jury made by the defendant at the proper time deprives the court of jurisdiction to try the cause otherwise than by jury. It was further held that such a demand gives the defendant the right to a trial by jury without prepayment of costs, or to have the action against him dismissed. The early cases show that this court has ever carefully guarded the right to trial by jury, even in the smallcause courts. Carey v. Forsyth, 3 N. J. Law, 432; Morelander v. Hays et al., 2 N. J. Law, 161; Daniels v. Scott, 12 N. J. Law, 27. The principles enunciated in Clayton v. Clark, ubi supra, should, we think, have application to justices' courts, the jurisdiction of which has been enlarged to the sum of $200.

The result is that for the error complained of the judgment below will be reversed, with costs.