crossing was fully exposed to view by the light from an electric lamp in the immediate vicinity, and a warning or sign post to indicate the crossing was erected near by. The track was straight and was visible up the direction from which the train came for a distance of three-quarters of a mile from the crossing; the only obstruction to the view at all near the crossing being a growth of underbrush or bushes, which was located about 40 feet from the track in the direction from which the plaintiff came.

The plaintiff testifies that he pulled up his horse and looked and listened before entering on the crossing, and, seeing no light and hearing no bell or whistle, drove on and was struck, as it appears, by one of defendant's freight trains. The plaintiff's story was more or less supported by Barnes, a colored man who drove a horse and wagon a short distance behind the plaintiff, and by one Grother, who come up after the accident. The entire train crew were called for the defendant, and testified in support of the defendant's contention that none of the alleged elements of negligence complained of by the plaintiff existed to cause this accident. According to them, the headlight was lit as well as two classification lights upon the engine, and the whistle was blown 1,600 feet from the crossing, and the emergency whistle, 400 feet away; the bell was ringing continually. The engine driver, the conductor, and the engineer went to where the plaintiff was lying unconscious immediately after the accident, and heard Barnes, his witness, say to him, "Bert, Bert, I told you not to drive on." "I told him to look out; I said, 'Look out, Bert, because there is a train coming.'"

If the testimony of the train crew is to be believed, and no reason is apparent why it should not be, the defendant, upon the great weight of the evidence, failed to perform no duty imposed upon it by law. If Barnes, who was driving behind the plaintiff, could warn him of an approaching train and caution him not to drive on, it is difficult to perceive upon what theory the plaintiff can excuse his rash

ness.

The verdict can be supported only upon the theory that the testimony of the defendant's witness must be false because of the plaintiff's inability to hear a whistle or a bell or to see a light, which indicated the approach of a train, which his own witness heard coming and cautioned him to avoid. We may entirely leave out of consideration the fact that the personal safety of the train crew demanded that the headlight should be lit for the safe and intelligent operation of the train, and we are still confronted with the fact that, if this plaintiff pulled up his horse and looked and listened before attempting to cross, the noise incident to a moving heavy freight train must have been sufficiently audible to enable him to conclude that the train was approaching. The failure of the

defendant, if it were conceded, to perform its statutory duty, will not excuse the plaintiff from performing the duty imposed upon him by law, and his failure in that respect is contributory negligence. P. R. R. v. Righter, 42 N. J. Law, 180; Farese v. North Jersey St. Ry. Co. (N. J. Sup.) 69 Atl. 959.

The great weight of the testimony, as well as the inherent improbability of the plaintiff's story under the conditions surrounding him, lead us to conclude that this rule should be made absolute.

(77 N. J. L. 115)

SCHAAF v. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. Nov. 9, 1908.) EASEMENTS (§ 70*)-OBSTRUCTION-DAMAGES.

Upon proof of slight inconvenience only, and without any proof of substantial damage to plaintiff in the use of a right of way, a verdict for $400 is set aside.

[Ed. Note. For other cases, see Easements, Dec. Dig. § 70.*]

(Syllabus by the Court.)

Action by Catharine L. Schaaf against the Pennsylvania Railroad Company. Verdict for plaintiff. Rule to show cause made absolute.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

Alan H. Strong and Charles E. Gummere, for the rule. Vroom, Dickinson & Scammel, opposed.

MINTURN, J. The plaintiff obtained a verdict for $400 at the Mercer circuit, as damages for the obstruction of a right of way which she claimed as appurtenant to a lot which she owned, and upon which lot stood a store and dwelling house. The lot is situated on the easterly side of Rose street, in the city of Trenton, to which the way in question led. The record shows that for many years the plaintiff's father, who was her predecessor in title, used this easement as a roadway. It adjoined the plaintiff's lot on the south, and ran parallel with the Delaware & Raritan Canal, and at right angles to Rose street. Between the way and the canal was a strip of land which has been used at times as part of the canal towpath until 1885, when the defendant company constructed a siding upon it, and the properties lay relatively in this condition until 1906, when the defendant company elevated its siding a distance of about two feet. The plaintiff then made the claim that the easement appurtenant to her property was interfered with by the new construction, and instituted this suit to recover damages for the alleged trespass. The plaintiff contended that the siding had been moved over toward her property, so that while the way could be used practically to the same extent and for

the same purposes as formerly, yet a loaded hay wagon could not be hauled to her premises, although a wagon with a small load of hay could be hauled there. Such, substantially, seems to be the extent of the trespass; while, opposed to this contention, was the testimony of the railroad engineer, that the siding remained substantially upon its old alignment, and that the only change made consisted in its elevation.

Testimony was offered by the plaintiff tending to show damage to plaintiff's business as a proximate result of the trespass, which testimony, although excluded by the court, we think was entirely relevant, as the measure of damages in trespass is compensation for the loss. Outcalt v. Durling, 25 N. J. Law, 448; 13 Cyc. pp. 57, 156, and cases.

We do not think, however, that the testimony now in the case presented as a basis for damages more than a question of nominal inconvenience to the plaintiff. The verdict established the right to the way as an easement appurtenant to her land; but our examination of the case discloses no testimony upon which the jury could award her more than nominal damages for a trespass purely technical in its character and results. Phillips v. Phillips, 34 N. J. Law, 209; Albright v. Cortright, 64 N. J. Law, 330, 45 Atl. 634, 48 L. R. A. 616, 81 Am. St. Rep. 504; 13 Cyc. p. 14, and cases.

The rule to show cause is made absolute.

(77 N. J. L. 57)

STATE MUT. BUILDING & LOAN ASS'N OF NEW JERSEY v. BATTERSON. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. JUDGMENT (§ 45*)-BY CONFESSION-WARRANT OR POWER OF ATTORNEY-REQUISITES AND SUFFICIENCY.

Where a bond and warrant of attorney to confess judgment is given to secure the payment of a sum of money, at such times, in such places, and in such installments as may be required by the Constitution, by-laws, and regulations of a building and loan association, with the provision that upon default the whole may become immediately due at the option of the obligee, judgment may be entered upon the bond and warrant, notwithstanding no definite date of payment is mentioned in the bond.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 62; Dec. Dig. § 45.*]

2. MORTGAGES (§ 497*) - FORECLOSURE - DeCREE CONCLUSIVENESS MATTERS CONCLUDED.

Where a bond and mortgage are given for the same indebtedness, and a decree is had in favor of the mortgagee and obligee upon a bill to foreclose the mortgage, that decree is conclusive, in an action brought upon the bond for the deficiency, as to any defense that was available in the foreclosure suit.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1473; Dec. Dig. § 497.*]

(Syllabus by the Court.)

Motion by James G. Batterson to open a judgment entered against him by the State

SWAYZE, J. This is a motion to open a judgment entered upon a bond and warrant of attorney. The bond was secured by a mortgage, which was foreclosed. The case is reported in 67 N. J. Eq. 595, 59 Atl. 469. It was there held that the mortgage did not secure the premiums, fines, and charges, for the payment of which, together with the principal and interest, the bond was conditioned. In every other respect the decree in favor of the complainant in the foreclosure suit was sustained. Judgment was then entered upon the bond, by virtue of the warrant of attorney, for the penalty of the bond; and it is this judgment which the defendant now seeks to set aside. This method of entering the judgment has been already sustained by this court. Earl v. Jenkins, 42 N. J. Law, 416, 58 Atl. 1086. It is urged, however, that the bond in the present case is not such a bond as is contemplated by the act directing the mode of entering judgment on bonds with warrants of attorney to confess judgments (Gen. St. 1905, p. 172), for the reason that section 5 limits the right of the obligee to apply for the entry of judg ment pursuant to the warrant, to a time after the day of payment mentioned in the bond. The bond in this case provides for the payment of the moneys secured, at such time, in such places, and in such installments as now are, or may hereafter be, required by the Constitution, by-laws, and regulations of the obligee. It contains also a special provision that, if default is made in the payment of interest and principal, premiums, fines, charges, or tax, for the space of 30 days after the same shall first become payable then the whole principal debt shall, at the option of the obligee, become due and payable immediately; and payment of said principal debt, and all interest thereon, may be enforced, and recovered at once, anything contained in the bond to the contrary notwithstanding. It is not denied that there had been default, and that the 30 days had elapsed, so that the whole amount became due at the option of the obligee. If so, the date of payment had arrived when the judg ment was entered, and it would be too narrow a construction to say that that day of payment was not mentioned in the bond, because it was not fixed by reference to the calendar, but by reference to a default of the obligor. The case is very different from the case of Hildreth v. Harwood, 24 N. J. Law, 51, where the bond, on its face, showed that

it was subject to the conditions of another agreement.

Most of the other questions sought to be raised were questions that might have been raised in the foreclosure suit, and were necessarily involved therein. As to these questions, the matter is res adjudicata. This covers the objection that the loan was made in New York, and was usurious under the New York statute, so that no recovery could be had therefor.

There seems, however, to have been an error in computing the fines. The fines should cease with the commencement of the foreclosure suit. Manhattan & S. Savings & Loan Association v. Massarelli (N. J. Ch.) 42 Atl. 284. This error, however, does not vitiate the judgment, which, in any event, would be entered for the penalty of the bond. If an execution has been issued, the indorsement thereon may be corrected.

The motion to open the judgment is denied, with costs.

(77 N. J. L. 138)

NEW JERSEY SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS et al. v. KNOLL.

(Supreme Court of New Jersey. Nov. 9, 1908.) FINES ($ 19*) - REVERSAL OF CONVICTION RESTITUTION.

Where a fine and costs have been imposed on a conviction, under an act for the prevention of cruelty to animals, approved March 11, 1880 (P. L. p. 212), and the supplements thereto, instituted by the Society for the Prevention of Cruelty to Animals and an informer, and had been paid to the justice of the peace before whom such conviction was had, held, upon reversal of such conviction, that a writ of restitution would issue against the district society and the informer, requiring each to restore a oiety of such fine, and to repay the original costs of prosecution collectively.

[Ed. Note.-For other cases, see Fines, Cent. Dig. §§ 20-22; Dec. Dig. § 19.*]

(Syllabus by the Court.)

Anthony Knoll was convicted of cruelty to animals, and his fine was divided between the informer and the New Jersey Society for the Prevention of Cruelty to Animals. Conviction was reversed on appeal, and he applies for writ of restitution. Writ granted. Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.

Coult, Howell & Smith, for prosecutor. Manning & Atkinson, for respondents.

VOORHEES, J. This is an application for a writ of restitution. Anthony Knoll, having been convicted before a justice of the peace on a charge of cruelty to animals, was fined $20 and $3.60 costs. Knoll, the prosecutor, carried the conviction to this court by writ of certiorari, and there the conviction was reversed, with costs, and the court adjudged that "the prosecutor in certiorari be restored to all things that he had lost by

By

col

reason of the said judgment." The prosecution was through the New Jersey Society for the Prevention of Cruelty to Animals. section 5 of the act of incorporation of that society (1 Gen. St. 1895, p. 32) it is provided that one-half of the fines and forfeitures collected through the instrumentality of the society, its members or agents, shall accrue to the benefit of the society; and section 11, p. 32, provides that "of all fines, * lected * * * one-half shall be paid by the justice or by the clerk or other officer of the court receiving the same, to the informer, complainant, or prosecutor, and the other half to the district society if one is in existence, and if not, then to the New Jersey society." Section 15, p. 33, provides for the organization of district societies. Section 31, p. 37, provides substantially for the distribution of the fines in like manner. The record in this case before the justice of the peace is entitled, "Adolph E. Roede, Agent for the New Jersey Society, etc., Hudson County District v. Anthony Knoll, Defendant." The warrant, after reciting that "whereas Adolph E. Roede, an officer and agent of the New Jersey & Hudson County District Societies, etc., has made complaint," authorizes the apprehension of the defendant, "to answer the New Jersey Society for the Prevention of Cruelty to Animals, Adolph E. Roede, prosecutor." From this it would appear that there was a district society in the county of Hudson, and that Roede was the prosecutor or informer. Therefore, this fine having been levied, it was the duty of the magistrate to divide the money between the prosecutor and the district society. It would seem, therefore, that in order to issue a writ of restitution both the prosecutor and the district society which was entitled to the moiety of the fine should be before the court, and that because the whole of the fine never could legally be collected by or paid to the district society, it should be in no case liable for the whole amount, but only for the half, and the prosecutor for the other half. The case would be different if the money was all collectible by the society, and the society was authorized to distribute a share of it to the informer. The stipulation of facts shows that the entire fine was paid to the justice, and by him turned over to the district society. This was contrary to the statute. He ought to have divided it. The ordinary rule in a case of writ of restitution is clear. It will go for the whole amount of fine, as well as the costs, in order that the prosecutor in certiorari may be made whole (Arrowsmith v. Van Arsdale, 21 N. J. Law, 471), but it is not clear that it will issue against one of two persons for the whole amount of such fine or penalty, which must by law be distributed by the court as the agency of the law, as provided by the above-mentioned statute.

Where the law disposes of the proceeds of the litigation, in definite proportions by the hands of its own officer, the writ should go against those to whom the law gives such proceeds in like proportion.

An order will be made that the writ issue requiring the district society and the informer each to restore a moiety of the fine, and requiring them collectively to repay the costs which were paid to the justice of the peace on the original judgment. The writ will also include the costs of this proceeding, to be in like manner levied against the society and the informer.

(77 N. J. L. 117)

SHERWIN v. STERNBERG et al. (Supreme Court of New Jersey. Nov. 9, 1908.) MONEY RECEIVED (§ 6*)—RIGHT OF ACTION.

Defendants entered into a written agreement with plaintiff, wherein they agreed to incorporate as L. Sternberg & Co., upon the strength of which plaintiff contributed $1,500 to defendants. The corporation was never formed, and in a suit by plaintiff to recover the amount paid, held that, the consideration having failed, the defendants were liable under the agreement as joint contractors in an action of assumpsit.

[Ed. Note. For other cases, see Money Received, Cent. Dig. § 27; Dec. Dig. § 6.*] (Syllabus by the Court.)

Error to Circuit Court, Hudson County. Action by Anna Sherwin against Lazar Sternberg and Rose Sternberg. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued June term, 1908, before the CHIEF JUSTICE, and TRENCHARD and MINTURN, JJ.

MINTURN, J. The plaintiff and defendants entered into a written contract, whereby they agreed, within five days from the date thereof, that the defendants would form a corporation, to be known as L. Sternberg & Co., in pursuance of which the plaintiff contributed to the defendants, one of whom, at least at that time, was conducting a department store business in Jersey City, the sum of $1,500, for which the plaintiff was to receive stock and a position in the business. The defendants failed to form the corporation within the time limited, or at all, and the plaintiff brought suit upon the common counts to recover the amount paid. The trial court directed a verdict upon this testimony for the plaintiff, and this writ of error is intended to review the correctness of that direction.

The testimony demonstrated that the defendants received the money; that an ef

fort was made to incorporate, but that the Secretary of State refused to allow the incorporating papers to be filed because of a similarity of title to that of an existing corporation. Defendant's contention that the filing of the incorporation certificate with the county clerk resulted in the formation of at least a de facto corporation is without merit, for the reason that the plaintiff's agreement was to contribute to the formation of a de jure corporation. Furthermore, that question was not raised by exception at the trial, and it cannot therefore be noticed here. Associates v. Davison, 29 N. J. Law, 415; Potts v. Evans, 58 N. J. Law, 384, 34 Atl. 4. The contention that the defendant Rose Sternberg occupied the status only of a sure ty is erroneous. Her status was fixed by the agreement in evidence in which she acknowledged herself to be a "party of the first part," and further acknowledged that the plaintiff had contributed $1,500 for the purpose of the incorporation, "the receipt whereof is hereby acknowledged by the said parties of the first part." She is therefore estopped from denying that she had an interest in the business, or that she was benefited by the payment. 16 Cyc. 679, and cases; State Bank v. Chetwood, 8 N. J. Law, 1; L. R. 10 C. P. 315; 2 Rice on Ev. 708. The facts proved make it clear as a matter of law, that, under the terms of the agreement, the defendants were liable as joint contractors; and, upon the well-settled principles applicable to that status they became liable, in an action of assumpsit, upon failure of the consideration expressed in the agree ment, to repay to the plaintiff the money advanced by her as quid pro quo for the performance of the defendant's agreement. 4 Cyc. 229, and cases; 1 Chitty, Pl. 99; 1 Parsons on Cont. 22; Alpaugh v. Wood, 53 N. J. Law, 638, 23 Atl. 261; Cory v. Freeholders, 47 N. J. Law, 181; National Trust Company v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632.

Entertaining this view of the case, we find the remaining assignments of error without merit, and conclude that the judgment should be affirmed.