elect so many justices of the peace for any | istry voters are thereby deprived of any town as they shall think proper, in addition part in their election, either directly or by to those elected by such town." In 1839 (Pub. Laws 1839-40, p. 1092) it was provided: "In the city of Providence the school committee shall be elected by the city council at the commencement of the municipal year." This was continued in force by the school act of June, 1845 (page 627), and remained the law for the city down to January, 1854 (page 1060), when it was changed to the election of 14 members of the school committee by the people, 14 by the council, and 2 ex officio. In January, 1859, the election of all members was given to the people. From the time of the adoption of the Constitution to the present time the office of commissioner of public schools, quite as much a civil office as that of member of a school committee, and far more important, has been filled by the Governor's appointment, and in recent years by the State Board of Education. During all this time civil officers have been elected constantly by the General Assembly, by town and city councils, and appointed by the Governor, who would have had no title to their offices if the provision required an election by the people in all cases. The General Assembly has uniformly elected sheriffs, clerks of court, justices of the peace, notaries public, State Auditor, Insurance Commissioner, and numerous others, without a question as to the legality of the procedure. representation. It is true that an election by a city council operates in this way; but the question before us is one of constitutionality, not of policy. If the right to vote for all civil officers, other than city council, carries a right to vote for school committee, then it carries the right to vote for all other officers that are elected by a city council. To so construe the provision, and to require all the numerous officers now chosen by town and city councils to be elected by the people, would be contrary to the unbroken custom since the Constitution was adopted, and contrary to the accepted and unquestioned meaning of its terms during all that time. It would practically declare that all the administrative officers, for more than half a century, have been illegally elected. We do not think that it was ever intended to require all civil officers to be elected by the people, for it would be impracticable. Custom and reason unite in showing that it was not so. If not, then it applies, as the law in this state has always provided, to such "officers as by the laws of this state are or shall be required." It is argued that if this construction be given it will allow elections to be withdrawn from the people. The question is, not what may be done; but what the Constitution requires. It requires certain officers to be elected by the people. It does not require other officers to be so elected. These are to be provided for by law. If unsatisfactory The laws are made, the presumption is that the people will choose legislators who will make a change. It is urged that the opinion in Re Newport Charter, 14 R. I. 655, supports the right of registry voters to vote in the election of all civil officers. Undoubtedly it does; but the question there raised was very different from this one. In that case the General Assembly had amended the charter of Newport by providing that only taxpayers should vote for the city council. As the Constitution, at that time, confined that limitation to the city of Providence, it was clear that it could not be extended by the Legislature. The charter of Woonsocket, relating to the election of school committee, violates no provision of the Constitution, and is sustained by the practice under it. Evidently the Constitution has not been understood to guarantee a right to every elector to vote for every civil officer. course of legislation and practice of election, which we have noted, have been both a contemporaneous and continuous interpretation that the right to vote for all civil officers means "officers as by the laws of this state are or may be required." It recognizes the right of electors to vote for all officers who are to be elected by the people, except as provided, but it does not require that electors shall vote for all officers whose election, under the law, is not to be made by the people. We must either say that the Constitution allows the General Assembly to provide by law for some elections by civil officers by itself, by councils, or by the Governor, or else that it requires all such elections to be made by popular vote. This latter view has never been held in this state, and we do not understand that it is claimed to be so by any one. The suggestion presented to us, in behalf of citizens of Woonsocket, is this: That the registry voters have a right in the Constitution to vote for all civil officers, except members of a city council; hence, when the city council elect the school committee, the reg We therefore answer the question proposed to us by your excellency in the negative. JOHN H. STINESS. PARDON E. TILLINGHAST. WILLIAM W. DOUGLAS EDWARD C. DUBOIS. JOHN T. BLODGETT. (75 N. H. 197) WALKER, J. In the act relating to fraternal beneficiary societies it is provided that "payment of death benefits shall be to the (Supreme Court of New Hampshire. Hillsbor- families, heirs, blood relatives, affianced hus ough. March 2, 1909.) 1. INSURANCE (§ 770*) MUTUAL BENEFIT the member. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 1933; Dec. Dig. § 770.* For other definitions, see Words and Phrases, vol. 5, p. 4471; vol. 8, p. 7720.] 2. INSURANCE (§ 767*)-MUTUAL BENEFIT INSURABLE INTEREST. Under Laws 1895, p. 444, c. 86, § 10, the money or other benefit paid or rendered by a fraternal beneficiary society cannot be taken to pay the member's debts, so that his creditors had no insurable interest in his life. [Ed. Note.-For other cases, see Insurance, Cent. Dig. 8 1928-1931; Dec. Dig. § 767.*] 3. EXECUTORS AND ADMINISTRATORS (8 494*)COMPENSATION-PERSONS LIABLE. Where an administrator of a deceased member of a beneficiary society has acted in the interests of the heirs of the member to preserve the death benefit for them, they, and not the member's estate, should compensate him. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 494.*] 4. EXECUTORS AND ADMINISTRATORS (§ 510*)REVIEW-QUESTIONS NOT CONSIDERED BE LOW. Whether an administrator of a deceased member of a beneficiary society has done anything to preserve the death benefit for the heirs of the member, and, if he has, what he should be paid by them for it, are not questions for the Supreme Court. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 510.*] Transferred from Superior Court, Hillsborough County. Bill of interpleader by the Supreme Commandery, United Order of the Golden Cross, against Rose Donaghey and others. Case transferred from the superior court. Case discharged. The case is the same as that reported in 74 N. H. 466, 69 Atl. 263. Since the first opinion was filed the plaintiff has paid the amount of the McKean death benefit into court, and the facts on which the rights of the several claimants of the fund are based band or affianced wife, or to persons dependent upon the member" (Laws 1895, p. 440, c. 86, § 1); and the same provision occurs in the laws of the plaintiff association. From the evidence submitted the court found as a fact that Rose Donaghey was a member of the "family," but not a "dependent upon the member." Evidently the word "families," as used in the statute and laws of the association, refers to the families of the members. Was Mrs. Donaghey a member of the deceased's family at the time of his death? It is conceded that she was not a relative of his. Their relations were merely those of friends. It appears that from November, 1906, to the time of his death in March, 1907, he lived with the Donagheys at their home. He paid no board or room rent, and there is no evidence that they were in any respect dependent upon him. The fact seems to be that he lived in their family as a boarder; for, while he did not pay them for his board, they expected to be compensated therefor, and upon his decease Mr. Donaghey, the head of the family, filed with his administrator a claim for his board, covering the period of his residence in the family. His status was either that of a boarder or a visitor in the family of a friend, none of whose members were relatives of his, and none of whom were dependent upon him. The Donagheys had no insurable interest in his life, except upon the ground that they were his creditors. But under section 10, c. 86, Laws 1895, this money cannot be taken to pay the member's debts; so that it follows that, so far as the contract of insurance is concerned, they had no insurable interest in his life, as creditors, relatives, members of his family, or as dependents. Supreme Lodge v. Nairn, 60 Mich. 44, 59 Ohio St. 531, 53 N. E. 54. The finding 26 N. W. 826; Supreme Council v. McGinness, that Mrs. Donaghey was a member of the deceased's family cannot be sustained on the facts reported. It is understood to be conceded that, if Donaghey is not entitled to McKean's benefit, it belongs to his heirs. If that is so, it should be paid to them; for they are parties to this proceeding. If, however, the administrator has done anything to preserve this fund for them, they, and not McKean's estate, should pay him for it; but the question whether he John C. Bickford, for plaintiff. Henry N. has done anything for that purpose, and, if Hurd, for defendant Donaghey. L. Ashton he has, what he should be paid for doing it Thorpe, for defendant McKean's administra- is not for this court. Bean v. Bean, 74 N. tor. Lee C. Abbott, for defendants Mc- H. 404, 68 Atl. 409. Kean's heirs. have been found. Case discharged. All concurred. (76 N. J. L. 729) (Court of Errors and Appeals of New Jersey. CARRIERS (8 292*)-CARRIAGE OF PASSENGERS The plaintiff was a passenger on a trolley car, from which it was necessary that he should transfer to another belonging to the same carrier, in order to reach his destination. He alighted from the first car at the usual point of transfer, and immediately started to pass in the rear of the car, and in doing so fell into the rear fender, which was down, and was injured. It appeared that the usual custom of the company was to have the rear fender fastened up.. Held, that while, in passing from one car to another, the plaintiff continued to be a passenger of the defendant company, no infer ence of negligence on the part of the defendent could be drawn from the fact that the car was being run with the rear fender down. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1177-1179; Dec. Dig. § 292.*] (Syllabus by the Court.) Error to Supreme Court. Action by Albert M. Whilt against the Public Service Corporation of New Jersey. From a judgment for defendant (74 N. J. Law, 141, 64 Atl. 972), plaintiff brings error. Affirmed. William Early and Carrow & Craft, for plaintiff in error. E. A. Armstrong, for defendant in error. pass in the rear of the car the fender was down. On this state of facts there was a nonsuit, the legal propriety of which we are required to review. On a previous trial of this cause there was a verdict for plaintiff, which was set aside by the Supreme Court on rule to show cause, and a new trial ordered (Whilt v. Public Service Corporation, 74 N. J. Law, 141, 64 Atl. 972); and it was there held that the fact that the fender was down, contrary to the usual custom, was not sufficient to justify an inference of negligence; that whether the street railway company should have a fender at one end only, or at both, was a matter of detail in the construction of its cars, which ought to be left to the reasonable judgment of the managers, and, while proof that it was usual to have the fender up would have an important bearing upon the question of the care exercised by the plaintiff, it was not sufficient to justify an inference of negligence on the part of the defendant; that to hold that a change in the method of carrying fenders on a street car justified an inference of negligence would subject the defendant to the peril of being held negligent whenever it made an improvement in the construction of its cars. This conclusion is supported, so far, at least, as it relates to persons not passengers of the company, by Gargan v. West End R. R. Co., 176 Mass. 106, 57 N. E. 217, 49 L. R. A. 421, 79 Am. St. Rep. 298. The case presented on rule to show cause was determined upon the status of the plaintiff as a pe passenger, to whom a higher degree and a different sort of care might be due. The best-considered cases support the proposition that, when a passenger steps from a street car upon the street, he ordi BERGEN, J. The defendant, as a common carrier, undertook to transport the plaintiff from Merchantville to Westmont on its trolley cars, and in order to carry out this undertaking it was necessary to trans-destrian using the highway, and not as a fer the plaintiff from one car to another. To accomplish this he was required to leave the first car at Market and Seventh streets, in the city of Camden, and walk along the latter street to Federal street, at which point he would meet another of defendant's trol-narily becomes a traveler upon the highway ley cars, on which he expected to be carried to his destination. The plaintiff left the car at Seventh street and immediately started to pass behind it, in order to reach the sidewalk, but so near that he struck a fender which projected from the rear of the car a distance of about four feet, fell into it, and was injured. Whether the fender obstructed a street crossing walk does not appear. All the plaintiff testifies to is that he "rode in the car down to near Seventh street," where he got off; that "I started to walk across the street at the rear of the car, thinking I had a clearer passage." He also testified that he was not certain that the car was in motion when he started to cross the street, but that it was moving at the time he struck the fender. There was evidence from which a jury might properly infer that the usual practice of the defendant was to have the rear fenders fastened up against the end of the car by means of a chain, while at the time the plaintiff started to and terminates his relation as a passenger, and the carrier is not responsible for his safe passage from the street to the sidewalk; for, once safely landed in the street, he becomes a pedestrian on the public highway, entitled only to such measure of care from the carrier in the management and operation of its cars as the law imposes in such cases. But in the present case it is insisted that the plaintiff, by virtue of a transfer ticket given him on the first car, continued his relation as a passenger until he had reached his selected destination, and that the care which the company owes to a passenger is of a higher grade than that due a pedestrian using a public street. It is the rule in this state that in the ordinary case of a transfer from one car to another the traveler continues to be a passenger during the transfer. Walger v. Jersey City, etc., Ry. Co., 71 N. J. Law, 356, 59 Atl. 14. In the case under review the plaintiff, by virtue of a transfer ticket given him on the For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes first car, was entitled to be transported to his destination, and for such purpose it was necessary that he be transferred from one of defendant's cars to another; but it is admitted that his contract for passage required that he should alight from the first car at Seventh street, and walk, from the point where he knew he must leave the car, along Seventh street for a distance at least of a city block. Whether the relation of passenger and carrier was suspended during any part of the time plaintiff was passing along Seventh street it is not necessary to decide, for the accident happened before plaintiff had reached the sidewalk, or passed from that part of the street where defendant was operating its cars, and the injury was caused by contact with the very car he had left, and immediately thereafter. The defendant knew that it was necessary that plaintiff cross the street in order to reach the second car by the usual and most direct route, and was bound to exercise toward him the care due to a passenger, at least until he had reached a point sufficiently distant to avoid any danger resulting from the negligent management or condition of defendant's appliances. We are therefore of opinion that when this accident happened plaintiff was still defendant's passenger, and entitled to have it exercise reasonable care, skill, and foresight in carrying him to his destination, and, if it failed to do so, it was negligent. The plaintiff rests his right to recover in this case upon the ground that reasonable care, skill, and foresight was not exercised by the defendant in his behalf as a passenger, because the rear fender was down on the car from which he alighted, although the usual practice of the defendant was to have it fastened up, and therefore a presumption of negligence arose. In order to affirm this proposition, we are required to hold that a presumption of negligence arises whenever the managers of a street railway company make any change in the method of carrying the fenders on its cars without giving notice to its passengers of the change in the method. We think no such presumption arises. The accident did not occur through any negligence of operation or management. The plaintiff was safely landed, a right to be, and we are of opinion that if the rear fender had always been carried as it then was, or if changed from a movable to a rigid one, negligence would not be inferred from such a condition. But it is insisted that because, on this car, the rear fender was down when the custom had been otherwise, such change justifies an inference of negligence, unless the passenger was notified of the change; but this we do not concede, for, as was said by the Supreme Court in Whilt v. Public Service Corp., supra, this would require an inference of negligence whenever the defendant made an improvement in the construction or management of its cars, and we are of opinion that the care due from a carrier to its passenger does not require notice to him of every change made in the construction of its cars or the manner of carrying a proper attachment to it, if the additional use of space in the highway, required as a consequence of such change, is limited in its scope to the right granted the company. There being no other evidence of negligence than the fact that the rear fender was down, the nonsuit was proper, and the judgment should be affirmed. (78 N. J. L. 172) WORCESTER LOOM CO. v. HEALD et al. (Supreme Court of New Jersey. April 7, 1909.) 1. CONTRACTS (§ 68*)-CONSIDERATION-COMPROMISE OF DISPUTED CLAIM. A compromise of a disputed claim made in good faith furnishes a good consideration to support a contract, even though it should appear that such claim was in fact wholly unfounded. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 329; Dec. Dig. § 68.*] 2. COMPROMISE AND SETTLEMENT (§ 6*)-CON SIDERATION. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made. [Ed. Note.-For other cases, see Compromise and Settlement, Cent. Dig. § 50; Dec. Dig. § 6.*] 3. EVIDENCE (§ 145*) - ADMISSIBILITY - DISCRETION OF COURT. The admission of evidence which bears remotely on the issue involved in a cause is within the discretion of the trial judge, and its admission is no ground for reversal on error. Cent. Dig. § 434; Dec. Dig. § 145.*] [Ed. Note.-For other cases, see Evidence, (Syllabus by the Court.) Error to Circuit Court, Camden County. Action by the Worcester Loom Company From a against Alfred Heald and others. judgment for defendants, plaintiff brings er ror. Affirmed. the car was moving forward, and plaintiff undertook to pass in the rear of the car before the fender, an ordinary part of a car, had passed him, and the cause of the accident, accepting the view most liberal for the plaintiff, was the lengthening of the car and its attachments. Street cars are usually provided with fenders at each end, and whether they shall be run with both fenders down, or one up and the other down, is a matter that must be left to the reason- Wilson, Carr & Stackhouse, for plaintiff in able discretion of the company. This car error. William Harris and Frederick A. was being operated in a place where it had Rex, for defendants in error. Argued November term, 1908, before GUMMERE, C. J., and SWAYZE and TRENCHARD, JJ. was entered for defendants which is here for review. The first assignment of error is based upon an exception to the refusal of the trial judge to direct a verdict for the plaintiff, on the ground that the new contract was without consideration to support it. We think this question was properly submitted to the jury. Mr. Thompson one of the defendants testified as follows: "Q. For what purpose was the sum of $791.96 paid? A. The whole sum of $4,021.22 was paid. The $791.96 we objected to paying, and told him we would not pay, and he agreed then to perfect the loom and make it work, and on that ground we gave him the $791.96." Mr. Harley, another one of the defendants, testified as follows: “Q At the time of the payment of this money was anything said as to a new contract? A. Yes. Q. What was it? A. Why, when we paid that seven hundred and some dollars, we found fault with that. The work was not progressing as it ought to have done, and a whole lot of the work was not right. Some of the bills that came in, I had him to change them, the amounts were too great. For instance, I took the question of the weights of the metal, and I drew his attention to it by letter-I don't know what date-and he corrected the bills, and said that that was an error. And then we took up this question, and went into a new arrangement, and he agreed to perfect the loom. * He said that upon that payment he would finish the loom and make it perfect. Q. And at his own expense, or your expense? A. At his." By the original contract, as we have seen, the undertaking of the plaintiff company was "to use its best endeavors to design, construct or reconstruct and perfect" the loom, to keep the defendants fully informed in regard to the progress of the work, and furnish them with drawings. For the performance of that service it was to be paid at rates fixed by the written contract. Now it is observed that according to the testimony of defendants' witnesses above recited it appeared that "the work was not progressing as it ought to have done"; that "a whole lot of the work was not right"; that with respect to some charges "the amounts were too great"; and that because of these matters the bill was disputed and payment refused. We think, therefore, that there was evidence from which the jury might legitimately find a consideration to support the new contract. * TRENCHARD, J. This writ of error brings under review a judgment of the Camden circuit court in favor of the defendants below, in an action brought to recover the balance alleged to be due for work done and for material furnished to the defendants by the plaintiff in pursuance of a written contract. Upon the trial it appeared that the defendants were interested in perfecting and making commercially available a certain carpet loom which was covered by letters patent of the United States. The plaintiff company was engaged in the business of manufacturing carpet looms. The defendants' loom, while in an experimental stage, was delivered to the plaintiff for the purpose of perfecting it, and, if possible, putting it in good working order. The engagement of the plaintiff company was "to use its best endeavors to design, construct or reconstruct and perfect a loom embodying the inventions contained in said letters patent and improvements set forth by the party of the first part (the defendants), and to keep said party of the first part fully informed with regard to said designing and construction, and to furnish said party of the first part copies of all drawings, descriptions of all mechanisms and improvements upon said loom which may arise in the course of construction." The defendants agreed to pay the plaintiff "the sum of 85 cents per hour for all time expended in such designing, and the sum of 60 cents per hour for all patterns and machine work performed in the course of construction and perfection of said loom." After the plaintiff, under the contract, had put upon the machine labor and material amounting to over $3,200, for which it had been paid by defendants, it rendered defendants another bill amounting to $791.96. This bill was objected to by the defendants. The defendants claim that thereupon the plaintiff made a new parol contract with them, to the effect that, if the defendants would pay at once without further trouble the bill of $791.96, the plaintiff would, at its own expense, perfect the loom and make it work. It was undisputed that the defendants paid the bill of $791.96, and that thereafter the plaintiff continued work upon the loom. Afterwards the plaintiff presented a bill for $558.99 for labor and material, which the defendants refused to pay, and this suit was brought to recover the amount thereof. At the conclusion of the testimony the plaintiff moved for a direction of a verdict in its favor, on the ground that there was no We are not now concerned with the quesconsideration for the alleged parol contract. tion whether or not the objections of the This motion was refused, and the question defendants to the plaintiff's claims were unsubmitted to the jury to determine whether founded. The rule is that a compromise of the plaintiff, "at or before the time of the a disputed claim made in good faith furnishes payment of the item of $791.96, and in con- a good consideration to support a contract, sideration of the payment thereof, agreed even though it should appear that such claim with the defendants to do the work necessary was in fact wholly unfounded. The court to complete the loom without further charge." will not inquire into the adequacy or inadThe jury found that the plaintiff had made equacy of the consideration of a compromise |