pass over said crossing at grade, which crossing is at present protected by appliances commonly known as safety gates, and by a flagman, but, owing to the heavy travel over said crossing by pedestrians, vehicles, and street cars, and the continual and constant passage of trains at a high rate of speed over and along the said railroad tracks at. said street, the inhabitants of the city of Rahway and all other persons passing along said street and across the said railroad tracks at that crossing are constantly and continuously subjected to inconvenience, delay, and obstruction in the conduct of their affairs, and to the liability of bodily injury and death, and that the passengers and employés upon the trains operated upon the said railroad tracks are also constantly and continuously subjected to the liability of bodily injury arising from the collision of such trains with vehicles upon the said crossing; further, that the Pennsylvania Railroad Company, lessee as aforesaid, has been requested by the said board of railroad commissioners to provide some other method for the passage of travel over said Irving street, which will remove or alleviate the present inconvenlence, delay, obstruction, and danger hereinbefore set out, and render the said crossing a good and sufficient passage over or under the said railroad, as required by the act of the Legislature incorporating the said New Jersey Railroad & Transportation Company, but that the said Pennsylvania Railroad Company, lessee as aforesaid, hitherto has refused, and still does refuse, so to do; further, that it is the duty of said Pennsylvania Railroad Company, lessee as aforesaid, by virtue of the premises aforesaid, to construct and keep in repair a good and sufficient bridge or passage over or under the said railroad where Irving street crosses the same in the city of Rahway, so that the passage of carriages, horses, and cattle on said Irving street shall not be impeded thereby, and that this duty is a continuing duty which is not discharged when once performed, but always must be measured by circumstances, and that this duty now demands that the crossing as now maintained shall be discontinued and some other method of crossing substituted, which will be, measured by present conditions and circumstances, a good and sufficient crossing within the meaning of the act incorporating the New Jersey Railroad & Transportation Company.

The prayer is that the United New Jersey Railroad & Canal Company and the Pennsylvania Railroad Company, lessee of the United New Jersey Railroad & Canal Company, may, by mandatory injunction, be compelled to construct and keep in repair good and sufficient bridges or passages over or under the said railroad tracks where Irving street crosses the same in the city of Rahway, so that the passage of carriages, horses, and cattle on said Irving street shall not be impeded there

and determined by the exigencies of the present public travel over said crossing, and that in order to give force and precision to the order of the court and to enable the defendants more readily to comply therewith, and the informant more readily to inform the court in the event of noncompliance with its order, if such should be the case, that the court may inquire into and thereupon direct what method of crossing, whether by change of grade of railroad tracks or of Irving street, or otherwise, should be adopted by the defendants and constructed and maintained by them as a good and sufficient crossing over the said Irving street; and for other and further relief.

To this information the defendants, the United New Jersey Railroad & Canal Company and the Pennsylvania Railroad Company, have jointly and severally demurred. The demurrer is general in form, and it also purports to specify several causes of demurrer in addition. That part which is general reads as follows: "(1) These defendants by protestation, not confessing all or any of the matters and things in the said information contained to be true in such manner and form as the same are therein set forth and alleged, demur thereto, and for cause of demurrer show that the said informant hath not, in and by the said information, made or stated such a case as entitles him in this honorable court to any discovery from these defendants or either of them, or to any relief against them or elther of them as to the matters contained in the said information or any of such matters. For further cause of demurrer the defendants aver (2) that it does not appear by the information that the existing crossing of the railroad tracks by Irving street is not a good and sufficient crossing and passage, nor that the said defendants or either of them have not fully discharged their legal obligation in that behalf; (3) that the mayor and common council of the city of Rahway are not made a party to the information; (4) that the board of railroad commissioners has no lawful power or authority in respect to the conditions alleged in the information to exist at the crossing of Irving street and said railroad, nor any lawful power or, authority to act as relator in the information; (5) that this court is without jurisdiction to grant any relief under the information."

The Attorney General now moves to strike out the demurrer (1) for the reason that it contains in fact both a plea and a demurrer to the information; also (2) to strike out the first cause of demurrer because it is too general, in that it does not state with sufficient particularity the cause alleged, and also because it does not contain any confession of the truth of the matters set out in the information, and thereafter denies that such matters entitle the informant to any discovery or relief, and because it raises a ques

the matters contained in the information; also (3) to strike out the second cause of demurrer because it is too general, and does not aver with sufficient particularity any cause of demurrer; also (4) to strike out the third cause of demurrer because it does not set forth with sufficient particularity any right on the part of the defendants to complain of the misjoinder or nonjoinder of other parties, nor the necessity for a joinder of said parties; also (5) to strike out the fourth cause of demurrer because the same does not set forth with sufficient particularity the reason why the board of railroad commissioners has no lawful power or authority in respect to the conditions alleged in the information, nor to act as relator; also (6) to strike out the fifth cause of demurrer, because it does not set forth with sufficient particularity wherein the Court of Chancery is without jurisdiction to grant any relief under the information. The motion to strike out is rested on six different grounds, and the causes of demurrer, including the general demurrer for want of equity, number five. The first two objections go to the general demurrer, which I have numbered 1. A motion to strike out an insufficient demurrer is in accordance with the established practice. Bishop v. Waldron, 56 N. J. Eq. 484, 486, 40 Atl. 447. The several grounds of the motion to strike out will now be considered in their order.

First. The informant asserts that the demurrer contains in fact both a plea and a demurrer to the information. This objection on the argument was leveled against that part of the demurrer which is general and which is above recited verbatim. The contention of the Attorney General in this regard is that the demurrer does not unequivocally admit the truth of the information, and, that the pleading, as drawn, only qualifiedly admits the truth; that is, admits the truth only for the purpose of argument, and reserves the question of fact. He cites Graham v. Spence (N. J. Ch.) 63 Atl. 344, as authority for his position. Neither that case nor Teeter v. Veitch, 66 N. J. Eq. 162, 57 Atl. 160, upon which it is rested, bear out counsel's contention. The form of the demurrer interposed in neither of those cases is set out in the opinions. In the former case it is distinctly said that a demurrer which denies facts alleged in the bill will not be considered; and in the latter it is held that, if a demurrer introduces any facts or misrecites the statement of the bill, it will not be sustained. The demurrer itself is in the form immemorially used in cases where an attack is made upon a bill for want of equity, and follows the form of the commencement of a demurrer in Dick. Ch. Pr. p. 89, and follows the general averment of want of equity. Id. p. 92. Protestation against the truth of the matters contained in the bill is a practice borrowed from the common law, and undoubtedly intended to avoid conclusion in

put in in case the demurrer should be overruled. Dan. Ch. Pl. & Pr. *585. The only criticism which can be made upon the form of the demurrer, so far as I can see, is that it asserts that the informant is not entitled to any "discovery" as well as any relief. As no discovery is prayed, the demurrer might better have averred that the informant had not made or stated such a case as entitles him to any "relief" against the defendants, omitting reference to discovery. However, the assertion that the informant is not entitled to "discovery" should be and will be disregarded as surplusage. Strictly speaking, there is no "equity" in the information at all.. It is not a bill praying relief under any recognized head of equity jurisprudence, but is a pleading invoking the aid of the court under a statutory jurisdiction recently conferred. The court of chancery is the forum pointed out for the administration of the remedy given by the legislative enactment upon the particular state of facts pleaded because its writ of injunc tion is the only appropriate method of enforcing the statutory duty imposed upon the defendants. However, the defendants are entitled to resist the informant by any defense known to equity pleading, one of which is by demurrer. And the demurrer may be of any kind recognized in practice. There are, as is well known, two kinds, general and special; and, although rule 209 of this court requires that all demurrers, whether general or special, shall distinctly specify the ground or several grounds of demurrer, it has been held that a simple statement of want of equity, in the usual language of a general demurrer, will constitute a sufficient specification of the ground of demurrer in cases where the court finds on looking at the complainant's bill that his right to relief is doubtful or uncertain. Essex Paper Co. v. Greacen, 45 N. J. Eq. 504, 19 Atl. 466; Safford v. Barber (N. J. Ch.) 70 Atl. 371. If in a cause invoking a strictly statutory jurisdiction of the court the defendant conceives that such a case has not been made by the bill, or other equivalent pleading, as entitles the complainant to relief, he may file a demurrer general in form, which form is just as appropriate as a general objection to relief under a statute as under a principle of equity, if the language employed is that such a case has not been made or stated as entitles the complainant to relief. Now, that is exactly what the general demurrer in this case avers, namely, that on the face of the information the informant is not entitled to relief. That question the demurrant is entitled to solemnly argue, and it cannot properly be considered and decided on a motion to strike out, unless upon inspection of the information it so clearly appears that the informant is entitled to relief that the demurrer may be said to be frivolous. In this connection it is sufficient to remark that the matter sub ju

form of the demurrer, and consequently the only question that is decided is as to the form of the pleading. Its form, in my judgment, is good and sufficient.

Second. It is asserted that the first specified cause of demurrer is too general, in that it does not state with sufficient particularity the cause alleged, and because it denies any confession of the truth, and denies that the statements of the information entitle the informant to any relief, and because it raises a question of fact upon the denial of the truth of the matter contained in the information. This is disposed of in the observations already made on the form of the general de

murrer.

Referring again to the form of a demurrer as regulated by rule 209, it is to be observed that it has been held that, where the defect in the bill is obscure or latent to such an extent that the court cannot readily discern it, an explicit statement of the ground will be required. Essex Paper Co. v. Greacen, ubi supra. And, where the want of power in the court to grant the relief prayed springs out of some cause which can be distinctly stated in the demurrer in an intelligible proposition, whether it be collateral to the bill, strictly speaking, or whether involved in the main case, then the cause of demurrer must be specified. Safford v. Barber, ubi supra. The grounds of demurrer specified in the pleading under consideration will now be examined with a view to ascertaining whether the specifications distinctly point out specific objections to the information.

Third. The assertion is that the second specified cause is too general, and does not aver with sufficient particularity any cause of demurrer. This cause asserts that it does not appear by the information that the existing crossing at Irving street is not good and sufficient, or that the defendants, or either of them, have not fully discharged their legal obligation in respect to it. To my mind the assertion in the demurrer in this behalf is insufficient. The information shows by the recital of facts which are above set forth, and which it is not necessary here to repeat, that the railroad crossing at Irving street, Rahway, is such as subjects to inconvenience, obstruction, and delay the citizens of this state who are required to pass and repass over the crossing on foot or with horses and wagons and subjects to the liability of bodily injury and death all such persons, and also the passengers and employés upon the trains of the railroad operated at the place in question; further, that it is the duty of the Pennsylvania Railroad Company, lessee, by virtue of the act of the Legislature incorporating the New Jersey Railroad & Transportation Company, to maintain a good and sufficient passage over or under the railroad at Irving street, and

charged when once performed but always to be measured by circumstances, and that that duty now demands that the present crossing shall be discontinued and some other method of crossing substituted, which will, measured by present conditions and circumstances, be a good and sufficient crossing within the meaning of the act incorporating the railroad company last mentioned. The information contains an averment of facts showing, or tending to show, the inadequacy and danger of the present crossing of Irving street, and the specification of demurrer directed at this state of facts is that they do not make it appear that the crossing is not good and sufficient. Here is no denial of the truth of the facts alleged, but an attempted denial that those facts warrant the conclusion which the pleader draws from them. This in my opinion may not be done, because whether or not the crossing is at the present time of the character attributed to it by the information is an issuable averment, which is confessed by the demurrer. Pope v. Skinkle, 45 N. J. Law, 39. Although a demurrer only confesses the matters stated in the bill to be true which are well pleaded, and does not admit any matters of law which are suggested in the bill or inferred from the facts stated (1 Dan. Ch. Pl. & Pr. *545; Redmond v. Dickerson, 9 N. J. Eq. 507, 59 Am. Dec. 418; Paterson H. R. R. Co. v. Jersey City, 9 N. J. Eq. 434), nevertheless because in the information it is averred that the crossing is insufficient and dangerous, stating facts tending to warrant that conclusion, and because the demurrer confesses those facts, a question is presented which is traversable and not demurrable.

Fourth. The informant contends that the third specified cause of demurrer is too general, and does not with sufficient particularity point out any right on the part of the defendants to complain of nonjoinder or necessity for the joinder of any other party. The cause alleged is that the city of Rahway is not made a party to the information. In Wilson v. Bellows, 30 N. J. Eq. 282, Mr. Justice Scudder, speaking for the Court of Errors and Appeals at page 284, said: "There can be no question that this defect in joining proper parties can be taken advantage of by demurrer where it appears on the face of the bill as it does in this case." Whenever a want of parties appears on the face of a bill, it is a cause of demurrer, unless a sufficient reason for not bringing them before the court is suggested. 1 Dan. Ch. Pl. & Pr. *558. The Legislature has imposed upon the railroad company the duty of constructing and maintaining a railroad crossing at Irving street in the city of Rahway, and has also clothed the relator with the power and duty of enforcing this obligation of the railroad. Whether or not the charter of Rahway imposed upon it any duties in

of the relator, or with reference to which it may or must act in conjunction with the relator, might properly be raised by plea. Certain it is that the information does not, and the demurrer cannot, give us any information on the subject. Duties committed formerly to the municipality of Rahway and devolved upon the relator by the act of its creation, if any such there be, would seem to be duties now belonging to the relator under the rule for the construction of inconsistent statutes; but that is not a matter decided or even mooted upon this argument. There is nothing upon the face of the information whereby it can be said that it appears that the city of Rahway should be made a party to the information, or that the defendants are injured by want of the presence of the municipality named as a party in the cause. This objection to the cause of demurrer is in my opinion well taken.

Fifth. The motion is to strike out the fourth cause of demurrer because it does not set forth with sufficient particularity the reason why the relator has not lawful power or authority in respect to the premises nor to act as relator. The answer to this is that the assertion by the demurrant that the relator has no power in the premises goes directly to the question of the validity of the act under which the relator was created, and to the scope and extent of its powers. It is only another statement of the want of jurisdiction appearing upon the face of the whole information, and it is in my judgment comprehended under the general demurrer and is bad as a specified cause.

Sixth. It is claimed that the demurrer does not set forth with particular sufficiency wherein this court is without jurisdiction to grant any relief under the information; the cause alleged being that the court is without such jurisdiction. This is only a statement in another form of the general want of jurisdiction, and for the reason given as to the last cause considered it is insufficient. If it refers to any collateral matter, it should have been specifically stated. As the demurrant by his formal demurrer first above referred to has attacked the power of the court to grant relief generally, the attack made in the sixth specified cause of demurrer may well be considered to refer to some collateral matter, else it is entirely unnecessary to be pleaded, and it should, for want of particularity, be overruled.

The result is that the motion to strike out the first cause of demurrer-that is, that part of the demurrer which is general in form-will be overruled, and the motion to strike out the specified causes of demurrer will be granted, and they will all be struck out. That leaves the cause before the court on a general demurrer limited in its scope under the rule of court and decisions to which reference has been made.

(76 N. J. L 754)

DORAN V. THOMSEN. (Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. MASTER AND SERVANT (§ 301*)-LIABILITY FOR INJURIES TO THIRD PERSONS-RELATION OF PARTIES.

Where a father was possessed of an automobile which he kept upon his premises, and his daughter, about 19 years of age, was ac customed to drive it and did so whenever she felt like it, asking permission to use it when the father was at home, but when not at home took it sometimes without permission, there being no proof that the daughter was actually employed by the father to operate the machine, held, in an action against the father, where the daughter in using the machine for her own pleasure in driving her personal friends negligently injured a person in the highway, that such proof was not sufficient to constitute the daughter the servant or agent of the master, and that a motion for a direction of a verdict for the defendant should have prevailed.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 301.*

For other definitions, see Words and Phrases, vol. 7, pp. 6422-6429; vol. 8, p. 7798.]

2. MASTER AND SERVANT (§ 302*)-INJURIES TO THIRD PERSONS-SCOPE OF EMPLOYMENT. An act by a servant not malicious is within the principle that, to render a master liable for the negligent act of the servant, such act must be within the scope of the employment.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1217-1225; Dec. Dig. § 302.*]

3. MASTER AND SERVANT (8 302*)-INJURIES TO THIRD PERSONS-SCOPE OF EMPLOYMENT.

To render the master liable for the negligent act of the servant, the act must be done for the purpose of executing the master's orders and in doing his work and while actually engaged in serving the master, and it is not enough to say that the injuries complained of would not have been committed without the facilities afforded by the servant's relations to his master.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1217-1225; Dec. Dig. § 302.*]

4. MASTER AND SERVANT (§ 301*)—LIABILITY FOR INJURIES TO THIRD PERSONS-RELATION OF PARTIES.

The court charged the jury: "If she took that machine out at that time in pursuance of a general authority of her father to take it whenever she pleased for the pleasure of the family, and for her own pleasure, for the purpose for which the master bought it, for the purpose for which her father owned it, for the purpose for which he expected her to operate it, then she was the servant of the father. Under those circumstances, that was the business for which the father bought the machine." Held error, because it based the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child, ignoring an essential element in the creation of that status as to third persons, that such use must be in furtherance of, and not apart from, the master's service and control.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 301.*] (Syllabus by the Court.)

Error to Supreme Court.

Action by Patrick Doran against Hugo A. Thomsen. From a judgment of the Supreme Court, defendant brings error. Reversed, and a venire de novo awarded.

Collins & Corbin, for plaintiff in error. Willard W. Cutler, for defendant in error.

VOORHEES, J. This action was brought to recover for personal injuries inflicted upon the plaintiff by being run into by an automobile at Morristown. A demurrer was filed to the declaration, originally consisting of three counts, and was sustained as to the first and third counts, but overruled as to the second count. The Supreme Court said: "It [the second count] in effect avers the relationship of master and servant, and that the accident was caused by the negligence of the servant while operating the motor ve hicle for the master." Doran v. Thomsen, 74 N. J. Law, 445, 66 Atl. 897. The allega. tions of the second count are that the defendant possessed an automobile of great power capable of being operated at a speed of 60 miles an hour, and thereby it became the defendant's duty to use due care in its management while being operated along the public highways; yet the defendant, not regarding his duty, consented and allowed the said vehicle in his possession and control to be operated along the public highways at such a high rate of speed, to wit, at 60 miles an hour, that the vehicle was not in safe and proper control, and could not be properly managed by the person in charge, and that on the 22d of September he did negligently direct, consent, and allow the said vehicle in his possession to be operated by a member of his family so carelessly and without regard to the safety of the plaintiff and other persons in the highways at such a high rate of speed that the vehicle was not under control of the person operating the same, and then and there through the negligence of the person operating it ran into and collided with the plaintiff, by means of which he was injured. If the defendant is liable for the negligent manner in which the vehicle was operated, then a jury question was presented, and, as to that negligence, the court properly submitted the case to the jury; but there is another and preliminary question to be considered, which arises upon motions to nonsuit and to direct a verdict for the defendant.

The question thus presented is whether upon the theory adopted by the Supreme Court in allowing the second count of the declaration to stand and upon which the case was tried the defendant can be held liable. That theory involves the application of the doctrine of respondeat superior arising out of the relation of master and servant or of principal and agent. The automobile in question was the property of the defendant. He

ises. His daughter, about 19 years old, was accustomed to drive it. She used it sometimes twice a day. At the time of the accident she had three friends in the car with her, and was out for her own pleasure. No other member of the family was with her; so that the machine was then being run by the daughter upon no errand of the father. There was no evidence to show that defendant's daughter was employed by him to operate the machine, but she was allowed to do so from time to time and drove it whenever she felt like it, as also did her brother. The defendant's testimony was that he bought the machine "for our own use, the same as a person might buy a horse and carriage for the family"; that it was operated mostly by his son and daughter, and, when he was at home, they had to come and ask for permission to use it, but, when not at home, they sometimes took it without permission. On the day in question the father was absent in New York City, and did not actually know that his daughter was intending to use the automobile, but he knew that she did use it whenever she desired to do so. She on this particular day took it of her own accord without asking permission. This evidence was uncontradicted. The case was submitted by the trial court to the jury solely upon the theory that the daughter of the defendant in driving the machine was the defendant's servant, and instructed the jury that, unless they found that the daughter was such servant, the defendant would not be liable.

The mere fact of the relation of parent and child would not make the child the servant of the defendant. In McCauley v. Wood, 2 N. J. Law, 86, Chief Justice Kirkpatrick in a case brought against a parent for the trespasses of her sons as such said: "Upon principles of law one person can never be made liable for the trespass of another. It is true that, if one command or authorize his servant to commit a trespass, he is responsible himself, but then it is the trespass of the master according to the well-known maxim of the law, 'Qui facit per alium facit per se,' and it must be so charged in the declaration." To constitute the relation of master and servant as to third persons, it is not essential that any actual contract should subsist between the parties, or that compensation should be expected by the servant. While the relation of master and servant in its full sense invariably and only arises out of a contract between the servant and the master, yet such contract may be either express or implied. "The real test as to third persons," says Mr. Wood in his work on Master & Servant, p. 11, § 7, "is whether the act is done by one for another, however trivial, with the knowledge of the person sought to be charged as master with his assent express or implied, even though there