run the car with such care and at such a cuit, and a verdict was rendered for the rate of speed that persons on foot might plaintiff in each case, the judgment record use the street in safety, provided they exer- upon which is brought here for review on cised reasonable care for their own protec- writ of error. tion. The evidence fails to show any want of care upon the part of the motorman, either in the management or speed of the car. The nonsuit in favor of the defendant the Public Service Corporation was manifestly right. With respect to the defendant Alcott, the case likewise discloses no negligence. The relative rights of the stage and a foot passenger such as were under consideration in Buttelli v. Electric Ry. Co., 59 N. J. Law, 302, 36 Atl. 700, are not involved in this case. The plaintiff did not insist upon continuing to use that part of the roadway which he was using. The evidence shows that the defendant Alcott on approaching the plaintiff manifested (or others did for him) a desire to have the way cleared for the stage, and the plaintiff walked out of the way. Nor are we called upon to consider the case of a pedestrian imperiled by reckless or furious driving. The evidence shows that Alcott was driving slowly and carefully, and that the plaintiff's excitement or confusion of mind was not attributable to any improper conduct on his part. The direction of a verdict in favor of the defendant Alcott was therefore proper. The result is that the judgment below should be affirmed. (77 N. J. L. 600) SHILES v. PUBLIC SERVICE CORPORA- The plaintiff Wilson was employed as a driver by the plaintiff Shiles, and, while driving a horse attached to a covered wagon, carrying milk, on May 10, 1907, in a southerly direction, along Broad street, in Woodbury, he turned his horse to the right to cross the south-bound track of defendant's railway for the purpose of calling at the store of one Munyan; but, before he was able to cross, his horse and wagon were struck by a south-bound trolley car of defendant company, which threw the horse in. to the air some 20 odd feet, and drove the wagon in a dismembered condition over 100 feet distant, killing the horse and injuring its driver. The car, after the collision, ran a distance of about 450 feet from where the collision occurred, dragged the horse along the track a distance of 26 feet, and drove the top of the wagon about 77 feet from the place of collision. Munyan, who kept the grocery store to which point the driver was directing the horse, saw Wilson about 50 or 75 feet distant before reaching the scene of the accident, driving, as he says, upon a "jog trot." "I looked up the street," he testified, "to see if I could see a trolley coming. I didn't see any whatever. I went in the store, and stood at the net door for a second, and the next instant I saw a car, but he [plaintiff] was coming across the track. I should judge his front wheel was about one foot from the east track of the south-bound track." The plaintiff, this witness continued, was trying to cross the track (Court of Errors and Appeals of New Jersey. at an angle, and “almost in an instant after March 8, 1909.) While driving his horse attached to a covered wagon along a street in Woodbury, plaintiff looked through a small window of the wagon in the back of the top, to ascertain if a trolley car was approaching. He testified he saw none, and turned his horse, which was on a walk, to cross the track, when a car struck the horse, killing him, and demolished the wagon. Held, that a denial of those facts presented a question for the jury. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 117.*] (Syllabus by the Court.) Error to Circuit Court, Gloucester County. Action by Elmer Shiles against the Public Service Corporation of New Jersey, and by Jacob White Wilson against the same defendant. Judgments for plaintiffs, and defendant brings error. Affirmed. E. A. Armstrong, for plaintiff in error. John Boyd Avis, for defendants in error. I saw the horse on the track I saw the trolley car coming" a distance of between 70 and 80 feet away as nearly as the witness could estimate. The car, he says, was “go ing fast"; and he continues: "The next thing I saw I watched the car until I judged it was getting within 5 or 10 feet of the wagon, and I closed my eyes for a second. The next instant I saw the horse turn a somerit was struck." And the car, he says, carsault, and landed 27 feet 6 inches from where ried 449 feet from the place of collision. The plaintiff Wilson testified that, after he started to cross the track, having left the middle of the road, he knew nothing; that, before he crossed, he looked through a glass window located in the back curtain of the wagon top, and saw no car; that his horse was on a walk, and he turned to cross when a car struck the horse, and the plaintiff knew no more. Other witnesses in behalf of the plaintiff substantiated this situation, and the defendant met it by producing the motorman, the conductor, and two passengers, the weight of whose testimony, as opposed to that of plaintiff's witnesses, upon the con MINTURN, J. These suits for damages were tried together at the Gloucester cir tributory negligence of plaintiff as well as the speed of the car, was for the jury. It may also be observed that it was competent from this testimony for the jury to infer that at the time the plaintiff Wilson drove his horse upon the track the trolley car was at least 70 or more feet distant, and to reason therefrom that, if the motorman was then in the exercise of due care in the control of the car, the accident would have been avoided. John P. Lloyd, for plaintiff in error. Clarence Conover, for defendant in error. J. PER CURIAM. The errors assigned in this case are (1) the failure to direct a verdict for the defendant; (2) the failure to submit the question of negligence on the part of the defendant and the degree thereof to the jury; (3) the failure of the court to submit to the jury a question of the liability of the defendant to the plaintiff for damages assignments of error requires a bill of exceptions to support it. We find no such bill of exceptions in the record. There is printed what seems to be a summary of the testimony in the form of a state of the case, as if the case had been tried in the common pleas on an appeal from the court for the trial of small causes, and was pending, in this court upon a certiorari. The record returned with the writ shows that this was not the situation of the case. It was a suit brought originally in the common pleas, and is brought here by writ of error. The practice, therefore, should have been that required upon writs of error. The trial court properly refused a non-resulting from the accident. Each of these suit, and, with equal propriety, refused the direction of a verdict for the defendant, because the issue was essentially one of fact. Whether the plaintiff Wilson was in the exercise of due care when he attempted to cross the track; whether the car was proceeding at an unusual and dangerous rate of speed under the circumstances; whether the motorman was exercising the degree of care required of him by law in the control of his car under the circumstances; whether the negligence of the defendant company, if it existed, or the contributory negligence of plaintiff, if it existed, was the proximate cause of the injury-were all questions under the testimony for the jury, and no exception can be supported to the charge of the trial court in that regard. Pennsylvania R. Co. v. Righter, 42 N. J. Law, 181; Merkl v. J. C., H. & P. Ry. Co. (N. J.) 68 Atl. 74. This conception of the main question involved in the case enables us to concur in the view taken of the remaining exceptions by the learned counsel for the plaintiff in error, "that they are relatively unimportant and possibly of no importance." We are at least of the opinion that the rulings of the court to which they are directed were not productive of injurious error to the defend ant. The judgments under review will be affirmed. DOVI v. CHARLES GEHLHAUS CO. Where an action commenced in the common pleas is brought to the Supreme Court by writ of error, a bill of exceptions supporting the assignments of error is necessary. [Ed. Note.-For other cases, see Appeal and Error. Cent. Dig. 88 2412-2426, 2478, 2479; Dec. Dig. 544.*] Since there are no exceptions to support the assignments of error, the writ must be dismissed. Coxe v. Field, 13 N. J. Law, 215; Ludlam v. Broderick, 15 N. J. Law, 269. FAHR v. NEW YORK, S. & W. R. CO. (two cases). - (Supreme Court of New Jersey. Feb. 23, 1909.) [Ed. Note.-For other cases, see Evidence, Dec. Dig. 558.*] Action by Ida S. Fahr against the New York, Susquehanna & Western Railroad Com Error to Court of Common Pleas, Mon-pany, and by Frederick Fahr against the same defendant. A verdict was found for mouth County. Rule to show cause why new trial should not be granted. New trial ordered. Action by Francesco Dovi against the the plaintiff in each case. Charles Gehlhaus Company. There was a judgment for plaintiff, and defendant brings error. Dismissed. Argued November term, 1908, before GAR Argued November term, 1908, before GUM-RISON, PARKER, and VOORHEES, JJ. MERE, C. J., and SWAYZE and TRENCHARD, JJ. J. W. Deyoe, for plaintiffs. Collins & Corbin, for defendant. PARKER, J. These two cases were tried | a question of the plaintiff's attorney, the wittogether. The plaintiffs, Ida S. Fahr and ness, as we have already seen, had said that Frederick Fahr, are husband and wife. The wife brought her action for personal injuries sustained while she was a passenger on a train of the defendant company, and the husband brought his separate action for damages to himself by reason of the injury to the wife. The jury found a verdict for the plaintiff in each case. We think the question should have been allowed, and that its exclusion was error, necessitating a new trial. (77 N. J. L. 415! In re SCHWARTZ & GRAY, Inc. (Supreme Court of New Jersey. March 1, 1909.) 1. CORPORATIONS (§ 283*)-ELECTION OF DI RECTORS-ELIGIBILITY. When at an election for directors of a cor there were not always objective symptoms in cases of spinal irritation, which statement, if allowed to go unchallenged, would support, or at least not impeach, his diagnosis that plaintiff was suffering from spinal irritation, although no objective symptoms were perceptible. Hence the question put by defendant's counsel was manifestly inOur examination of the evidence and pro- tended to qualify or impeach the witness' ceedings at the trial leads us to the conclu- statement that there were not always obsion that the rule should be made absolute | jective symptoms of spinal trouble by placand a new trial granted for the following ing before him a list of symptoms suggested reasons, namely: That the court erroneous- by defendant, thus requiring him either to ly, as we think, excluded a question asked qualify his original statement and thereby by defendant's counsel on cross-examination, impeach his conclusion, or else adhere to which exclusion was manifestly harmful to it in spite of the suggestion, with the result the defendant. The witness under exam- of subjecting himself to possible contradic!nation at the time was the family physi- tion and impeachment as an expert by the cian of the plaintiff, who had testified in defendant's witnesses. The court of its own regard to her condition before and after the motion, and without any objection on the accident, and who stated that she was suf- part of the plaintiff, overruled the question. fering from traumatic neurasthenia and spinal irritation. On his original cross-examination, he had testified that the muscles were very flabby, but that with this exception all the symptoms on which he based his conclusion were subjective, and that he had observed no objective symptoms indicating trouble with the spine. On redirect examination by plaintiff's attorney the witness testified as follows: "Q. Doctor, you have spoken of there being no objective symptoms in cases of spinal irritation, are there always objec-poration organized under the "act concerning tive symptoms? A. No, sir; not strictly objective symptoms. Q. You spoke about test ing her for the knee test-I think you call it? A. Yes. Q. How was that when you tested her for that? A. Why, I think that was about normal." When the witness was once more turned over to the defendant, counsel began a question as follows: "You said that there were no symptoms of spinal trouble." At which point the court interrupted, saying: "We have been over that. Over-2. ruled. Mr. Hobart: Mr. De Yoe brought that out. I desire to ask the question. The Court: If it is a question that has been omitted, I will allow you to ask it. Q. Are there any objective symptoms of spinal irritation or spinal trouble perceptible by pupillary reflex, or such as atrophy or such as failure to respond to the knee jerk? The Court: I will overrule that question." Whereupon an exception was allowed. Upon the argument it was disputed whether this question related to the condition of the plaintiff Mrs. Fahr as disclosed by the witness' examination, or whether it was a general question intended to test the views of the witness upon the particular condition which he claimed to exist in Mrs. Fahr's case. We have examined the evidence with care in this aspect, and think it is clear that the question was a general one. In response to corporations" (P. L. 1896, p. 277), the directors of all stockholders entitled to vote with the resineglect or refuse to produce an alphabetical list dences and number of shares held by each, although the stock and transfer books be present at such meeting, such neglect or refusal, pursuant to section 33 of said act, renders such directors ineligible to any office at such election, and if any of such directors are voted for and declared elected at such meeting, their election will be set aside. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 283.*] CORPORATIONS (§ 198*) — STOCKHOLDERS— The common law requires all votes of the members of a corporation to be given in person, and the right to vote by proxy is repugnant to law, and therefore void, unless the charter of such corporation, either expressly or by legal implication, confers such power. [Ed. Note. For other cases, see Corporations, Dec. Dig. & 198.*] 3. CORPORATIONS (§ 198*) - ELECTIONS-VOT ING BY PROXY. The corporation act (P. L. 1896, p. 282) § 17, provides that absent stockholders may vote at all meetings by proxy in writing. The validity of voting by proxy must therefore rest upon the statute; and, as the enabling act is carefully limited to absent stockholders, it follows that when a shareholder who has given a proxy attends the election in person, his proxy thereby becomes void, because he is not an absent stockholder. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 198.*] (Syllabus by the Court.) In the matter of the election of directors | This section provides that "the board of of Schwartz & Gray, incorporated. Applica- directors shall produce at the time and place tion to set aside said election. Granted. Argued November term, 1908, before VOORHEES and MINTURN, JJ. Maclear & Fort, for the application. F. W. Hastings, Jr., opposed. VOORHEES, J. Schwartz & Gray is a corporation organized under the act concern ing corporations, on the 30th day of December, 1905, by certificate duly filed. On January 3, 1907, the incorporators of the company held the first meeting, and elected four directors, the number provided for by the by-laws, to wit, Charles B. Gray, Herman C. Schwartz, Mayme J. Schwartz, and Margaret C. Gray. The by-laws provide that an annual meeting shall be held on the first Wednesday in each year for the election of directors. One hundred shares of stock were tor. of such election such books and list there to remain during the election and the neglect or refusal of the directors to produce the same shall render them ineligible to any office at such election." Charles B. Gray and Margaret C. Gray were each members of the old board of directors, in consequence of whose neglect the list failed to be produced. They were declared elected directors in the new board at that election, but clearly they were ineligible, and their election must be set aside. This renders a new election necessary, at least so far as Charles B. Gray and Margaret C. Gray are concerned. It appears that the petitioners were neither of them present at the election for lack of notice, but that one Herman C. Schwartz attempted to vote, and did vote, for them under a power of attorney signed by A. J. Stengel, adminiissued at the first meeting, and since that strator. The stock of Mary and Emily Stenmeeting 63 additional shares, so that at the gel had been transferred to them on the present time there are outstanding 163 shares books of the company December 1, 1908, by of the capital stock. The petition for investi- A. J. Stengel, administrator of Christian W. gation of the election is made by Mary F. Stengel. The petitioners, the owners of the Stengel, who owns 3 shares, Emily A. Sten- stock, were not deceased, and hence their gel, who owns 2 shares, and Christian W. Fei-stock could not be voted upon a proxy given by an administrator, and, besides that, no genspan, who owns 5 shares. Since the meeting of the stockholders in January, 1907, proper evidence was offered to show who was no meeting, except one when additional stock the decedent represented by this administrawas issued, has been held until the first Wednesday of January, 1909 (January 6, 1909), and there has been no election for directors since the first meeting of the company. Those elected at the meeting in 1907 have, pursuant to the by-laws and the constitution, held over and continued to perform the duties of such office. The incorporators held the election now being investigated, on the 6th of January, and at that election Charles B. Gray received 163 votes, Margaret C. Gray, 163 votes, Jean P. Howes, 84 votes, Henry F. Bartosch, 84 votes, Herman S. Schwartz, 79 votes, and Mayme J. Schwartz, 79 votes, and the first four named were declared elected directors. It appears that the petitioners never received any notice of this meeting, and it also appears by the affidavit of the secretary that he mailed notices of the meeting to Mayme J. Schwartz, Margaret C. Gray, and delivered a notice to Henry F. Bartosch, personally, but to no other of the stockholders. The president testifies that he caused postal cards containing notice of the meeting to be prepared, and a witness testifies that such postal cards were mailed to the petitioners, but the petitioners assert that they never actually received, and had no knowledge of, the calling of this meeting. At the meeting it appears that the directors failed to produce an alphabetical list of all stockholders entitled to vote, with the residences and number of shares held by each, pursuant to section 33 of the corporation act (P. L. 1896, p. 288), although the stock and This brings us to a consideration of the vote cast for Jean P. Howes and Henry F. Bartosch. They each received 84 votes. Herman C. Schwartz and Mayme Schwartz were next lower, each having received 79 votes. The stock books show that on the date of election Howes was not a stockholder of record. He was therefore not entitled to vote. The affidavits, however, disclose that Howes, on December 10, 1908, purchased from Charles B. Gray 19 shares of stock which were not transferred to him on the books of the company until after the election; but that at the time of the election Howes held a certificate therefor indorsed with an assignment to him signed by said Gray; that Howes, by proxy signed by Gray, voted these 19 shares in Gray's name, and that at the time of casting the vote on the said 19 shares under the Gray proxy, said Gray was present at the meeting. The ownership in manner aforesaid of these shares by Howes was sufficient to qualify him to be elected a director. Matter of Election of St. Lawrence Steamboat Co., 44 N. J. Law, 529; In re Leslie, 58 N. J. Law, 609, 33 Atl. 954. But as Howes was not a registered stockholder on the books of the company, he was not entitled to vote upon these shares, although he may have been a bona fide owner of them. In re Cedar Grove Cemetery Co., 61 N. J. Law, 422, 39 Atl. 1024; Archer v. Am. Waterworks Co., 50 N. J. Eq. 33, 24 Atl. 508. Was he entitled to vote them as proxy for Gray, the whole board. There being no provision to the contrary in the certificate of incorporation, the directors of this company, according to the statute, "hold office for one year and until others are chosen and qualified in their stead." Corporation Act, § 12. Inasmuch as at the election under. investigation there was no legal choice of directors to take the places of those in office immediately preceding such election, and therefore none could legally qualify as such, it follows that the old board of directors are still in office. An order will be made that the corporation hold a new election for directors at the principal office of the company on a day to be fixed in said order, and that notice of such meeting, as required by the by-laws, shall be given to each stockholder in the manner provided by the by-laws. In Taylor v. Griswold, 14 N. J. Law, 222, | Therefore, under the principles stated in 27 Am. Dec. 33, it was held that the common Stratford v. Mallory, 70 N. J. Law, 294, 58 law requires all votes to be given in person, Atl. 347, a new election will be ordered for and a by-law of a corporation which gives to its members the right to vote by proxy is repugnant to law, and therefore void, unless the charter of such corporation, either expressly or by legal implication, confers the power to make such a by-law. See note to this case as reported in 27 Am. Dec. 60, where the authorities are collected. The corporation act, § 17, provides that: "Absent stockholders may vote at all meetings by proxy in writing." The Court of Errors, referring to this section (Chapman v. Bates, 61 N. J. Eq. 666, 47 Atl. 638, 88 Am. St. Rep. 459), says: "Both these sections (sections 17 and 36) seem to have been enacted for the convenience, of stockholders who for any reason do not attend stockholders' meetings." The validity of voting by proxy must therefore rest upon the statute; and, as the enabling act is carefully limited to absent stockholders, it follows that when a shareholder who has given a proxy attends the election in person, his proxy thereby becomes void, because he is not an absent stockholder. We, therefore, hold that Mr. Howes had no (Court of Errors and Appeals of New Jersey. · right to vote the shares which were registered in Gray's name under the proxy, while Gray was present in person at the meeting. Therefore the 19 votes thus cast were illegal ballots. The proofs disclose that they were cast in favor of Jean P. Howes and Henry F. Bartosch. Their rejection by the inspectors of election would have resulted in the choice of Mr. Herman C. Schwartz and Mayme J. Schwartz for directors after the exclusion of the five ballots cast upon the Stengel stock in favor of Herman C. Schwartz and Mayme J. Schwartz, which were voted under an invalid proxy. The whole vote as corrected will stand for Herman C. Schwartz and Mayme J. Schwartz, 74 votes, and for Jean P. Howes and Henry F. Bartosch, 65. The election of Charles B. Gray and Margaret C. Gray will therefore be set aside, and as to them a new election ordered. The election of Jean P. Howes and Henry F. Bartosch will likewise be set aside because they did not receive a majority of the legal votes cast, but such course cannot result in placing in office Herman C. Schwartz and Mayme J. Schwartz, for they, being members of the old board, were also ineligible to election, nor can we declare Jean P. Howes and Henry F. Bartosch entitled, in consequence of the fact that Herman C. Schwartz and Mayme J. Schwartz cannot take the office, unless the votes cast for Herman C. Schwartz and Mayme J. Schwartz are thrown away because voted for ineligible candidates. That would be contrary to the holding of this court in Re St. Lawrence Steamboat Company, supra. (75 N. J. E. 241) BURR v. NIVISON et al. March 1, 1909.) SUNDAY (§ 13*)-CONTRACTS MADE ON SUN DAY. Negotiations for the sale and conveyance of land in New Jersey were had in Connecticut on Sunday between the vendor and the agent of the vendee. The written memorandum required by the statute of frauds was signed by the vendor and delivered to the agent, who in return delivered the vendee's check, made and dated, on Saturday, for the first payment. The memorandum embodied terms to which the agent was not authorized to agree, and it was not delivered to the vendee, nor assented to by him, until Monday. Held, that the contract was made on Monday, and not invalid as a Sunday contract. [Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 36-44; Dec. Dig. § 13.*] (Syllabus by the Court.) Appeal from Court of Chancery. Parker & Van Gelder, for appellant. Thomas P. Fay, for respondents. SWAYZE, J. The bill seeks to set aside and cancel of record an agreement for the sale of land by complainant to the defendant Rosenstein, because it was secured by fraud, and because it is invalid by reason of the fact that it was made on Sunday. We agree with the Vice Chancellor that the complainant failed to establish fraud. As to the other ground of invalidity, we reach the same result, but by a somewhat different process. Our view renders it unnecessary to pass upon the legal question whether the court will intervene at the instance of one of the contracting parties to cancel a con |