and 35 feet wide, belonging to the Freehold & Atlantic Highlands Railroad Company, was to be taken; but, on a certiorari prosecuted by that company, this court, in November, 1898, set aside the municipal proceedings so far as they affected the company's land. Subsequently the present prosecutor sued out the writ now under consideration. Manifestly, the improvement for which the prosecutor was assessed cannot be carried out, and thus he is deprived of that which was to be the legal equivalent of the charge imposed upon For that reason the assessment against him. him should be set aside. Long before the prosecutor instituted his suit, he had notice that the town was likely to pay the awards made for land required for the improvement, and the town did pay many of them. Under these circumstances, we think he should be precluded, as a taxpayer, from questioning the legality of the proceedings by which the lands were condemned. The assessment against the prosecutor is set aside, with costs.

WILSON V. PENNSYLVANIA, P. & B. R. CO.

(Supreme Court of New Jersey. Nov. 13, 1899.) ADVISORY OPINION-SETTLEMENT OF FACTS.

Under our practice act, the circuit court is required to settle all disputed facts before it can send a case to this court for its advisory opinion. (Syllabus by the Court.)

state, and, under the authority of Destefano v. Calandriello, 57 N. J. Law, 483, 31 Atl. 385, the case must be dismissed.

SNOVER v. STATE. (Supreme Court of New Jersey. Nov. 13, 1899.) ADULTERY-EVIDENCE.

Upon the trial of an indictment for adultery with H. W., wife of S. W., in the county of Warren, it was not error to admit testimony that a year before the date named in the indictment "the defendant and the said H. W. were at the moving of one Brink, who moved from the county of Warren into the county of Sussex, and that they occupied the same room that night at Brink's"-First, because, as stated, the fact is not inculpatory; and, second, because it is proof of the disposition of the parties towards each other, and hence is germane to their alleged act of adultery.

(Syllabus by the Court.)

Error to court of quarter sessions, Warren county.

Thomas L. Snover was convicted of adultery, and brings error. Affirmed.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

John H. Dahlke, for plaintiff in George A. Angle, for the State.

GARRISON, J. The defendant, who was convicted of adultery with one H. W., wife of S. W., has removed the judgment into this

Action by Robert H. Wilson, executor of Augustus Trimmer, against the Pennsylvania, Poughkeepsie & Boston Railroad Company. Case certified. Dismissed.

Argued June term, 1899, before the CHIEF JUSTICE, and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

Joseph M. Roseberry and Chauncey H. Beasley, for plaintiff. Henry S. Harris, for defendant.

VAN SYCKEL, J. The lands of Augustus Trimmer were condemned by the railroad company. The award of the commissioners not proving satisfactory to the company, an appeal was taken, and the case was tried at the Warren county circuit court in December last, which resulted in a verdict of $7,250.29 for the executor of Trimmer. Thereupon the trial judge granted a rule to show cause why there should not be a new trial, and certified the entire testimony taken on the trial before him for the advisory opinion of the supreme court as to whether a new trial should be granted. Questions of disputed fact are thereby submitted to this court for settlement. The statute authorizing the circuit court to call for an advisory opinion does not give this court the capacity to decide questions of fact. The circuit judge must make and state the facts upon which the questions of law will

that the court below erred in two respects: First, in refusing to charge the jury "that there was no evidence that H. W. was at the time of the commission of the alleged adultery with her by the defendant the wife of S. W." The court made no error in refusing this request. The woman had testified that 17 years ago she had married S. W., and that 3 or 4 years ago his sister told her he had died. Other witnesses testified that for 3 or 4 years they had not seen S. W., but had never heard of his death. This testimony neither proved the death of S. W., nor laid the foundation for the statutory presumption of his death.

The other ground for reversal is that the court admitted illegal testimony over the objection of the defendant. The bill of exceptions states that the state called a witness, who testified that in the spring of 1897 the defendant and H. W. were at the moving of one Brink, who moved from the county of Warren into the county of Sussex, and that they occupied the same room that night at Brink's. To this testimony the defendant objected, upon the ground that it tended to show a separate and distinct charge and offense committed in the county of Sussex, whereas the adultery was alleged to have been committed in the county of Warren. This objection is not well founded, either in law or fact. As stated in the bill of excep

tions, which is all we have, the fact is not inculpatory. The room was without privacy. It is not even described as a bedroom or sleeping apartment. Others who stayed all night after the moving may have used it. A bad construction will not be supplied.

The legal proposition that is raised by the gratuitous assumption that the testimony was that the parties shared a private sleeping apartment for the night is not more favorable to the defendant.

Adultery, from its inherent stealth, is seldom provable apart from circumstances by which the disposition of the parties towards each other may be judged. This disposition develops gradually, and has a duration and progress that generally, if not always, antedate opportunity. Hence the total proof of adultery is not to be circumscribed by the time and space of a single act, but rather is to be extended as widely as the demonstration of the moral qualities involved may require. The discreet limit of such proof is the character of the conduct sought to be shown, -a point of which time, rather than geography, is apt to be the significant feature. Such testimony is in the same category with "motive, intent, or preparation," and is in no wise related to the proof of a separate offense, or of a propensity to commit the crime in question or crimes generally. Meyer v. State, 59 N. J. Law, 310, 36 Atl. 483; Thayer v. Thayer, 101 Mass. 111.

It was admissible without any infringement of the rule illustrated in State v. Clark, 47 N. J. Law, 556; State v. Raymond, 53 N. J. Law, 260, 21 Atl. 328; Meyer v. State, 59 N. J. Law, 310, 36 Atl. 483; Leonard v. State, 60 N. J. Law, 8, 41 Atl. 561; Ryan v. State, 60 N. J. Law, 552, 38 Atl. 672.

The judgment of the quarter sessions is affirmed.

1. An order, made upon petition in proceedings supplementary to execution, which restrains the defendant from collecting moneys due him, is justified only when the allegations of the petition with relation to the existence of the defendant's right to such moneys are supported by legal evidence.

2. An order which directs a discovery by the defendant, and also restrains him from collecting moneys due him, is severable; and the fact that the restraining clause in the order was unwarranted does not require the vacation of the order in toto.

(Syllabus by the Court.)

Action by Catharine W. Githens and others against Elwood Mount. Judgment for plaintiffs. Motion to quash order for discovery. Order modified.

Argued June term, 1899, before DEPUE, GUMMERE, and LUDLOW, JJ.

Gilbert & Atkinson, for the motion. Jerome B. Grigg, opposed.

GUMMERE, J. The plaintiffs, having recovered a judgment in this court against the defendant, issued execution thereon, which was afterwards returned unsatisfied to the extent of $746. They thereupon made application for, and obtained, an order requiring the defendant to appear before a commissioner of this court and make discovery concerning his property and things in action, and restraining him from collecting his share of the residue of the estate of his deceased father due to him under the will of the decedent. This order is now attacked on the ground that the statute providing for discovery in aid of execution (2 Gen. St. p. 1419), under which it purports to have been made, does not justify the restraining clause contained in the order; and we are, for this reason, asked to set it aside in toto. The section under which this order was sued out provides that before the granting of such order the judgment creditor shall present a petition, verified by the oath of such creditor, his agent or attorney, in which he shall state the amount due on the execution, and his belief that the judgment debtor has property or money or things in action due to him, etc., and then proceeds as follows: "On allegation in said petition, or in one supplementary thereto, and proof by the oath of the party, or any other person, of facts and circumstances showing that any person owes the said debtor otherwise than for his labor or personal services, or holds money or property in possession or action in trust for him, or for his use, an order may be made forbidding the payment of such debt. or the transfer of said property or money by or to the said debtor until further order," etc. The application in this present case was made upon a petition setting forth those facts, the existence of which is necessary to justify the making of an order for discovery, and the further fact that the defendant, by the will of his deceased father, was entitled to the one-eighth part of the decedent's residuary estate, which is stated to amount altogether to the sum of $3,500, and which has not yet been paid over to the defendant. This petition was verified by the oath of one of the plaintiffs, but the verification of the facts upon which the petitioner sought to obtain the restraining provision of the order was merely upon information and belief. Such a verification was not a compliance with the requirements of the act, and did not justify the restraining clause contained in the order now before us. The act requires proof of the facts upon which the application for the injunction is based, and "proof," when used in a legislative enactment, means legal evidence, upon which judicial action may be rested. Truax v. Railroad Co., 56 N. J. Law, 277, 27 Atl. 1063; Inglis v. Schreiner, 58 N. J. Law, 120, 32 Atl. 131; Barr v. Voorhees, 55 N. J. Eq. 561, 37 Atl. 134. Obviously, the petition of the defendant, verified in the manner mentioned, does not supply this statutory requirement. As evidence, the affi.

davit is the veriest hearsay. So much of the order, therefore, as restrains the defendant from collecting his distributive share of the residue of his father's estate, must be set aside.

The fact that the restraining clause was unwarranted does not, however, vitiate the whole order. So much of it as requires the defendant to appear and make discovery is entirely unobjectionable. The statute does not require, in order to justify the making of such an order, proof of the fact that the judgment debtor has property, money, or things in action, etc., but proof that the petitioner believes such to be the fact; and such proof is made by the affidavit annexed to the petition. The order before us embraces two entirely distinct and independent matters. They need not both be embraced in one petition and order. They might with propriety have been made the ground of two several applications, and of separate judicial action. The order is clearly severable, and only so much thereof as restrains the defendant from collecting his legacy will be set aside. The remaining portion thereof will be permitted to stand. Neither party will be allowed costs

on this application.

SWANSON v. CENTRAL R. CO. OF NEW
JERSEY et al.
(Court of Errors and Appeals of New Jersey.
Dec. 8, 1899.)

ACCIDENT AT CROSSING CONTRIBUTORY
NEGLIGENCE.

The neglect of a railroad company to give warning of the approach of its trains to a highway crossing, even when so gross as to amount to a declaration that the way is safe for travelers upon the highway, does not absolve a person about to cross the tracks from the duty of making an independent observation for the purpose of ascertaining whether or not a train is coming to the crossing; and failure in that regard is, ordinarily, a failure to exercise that reasonable degree of prudence which the law requires of all persons when approaching these places of known danger.

(Syllabus by the Court.)

Error to supreme court.

Action by Tillie C. Swanson against the Central Railroad Company of New Jersey and the New Jersey Southern Railway Company. Judgment for defendants, and plaintiff brings error. Affirmed.

Edmund Wilson and Flavel McGee, for plaintiff in error. William. A. Barkalow and Charles H. Ivins, for defendants in error.

GUMMERE, J. This action was brought against the Central Railroad Company of New Jersey and the New Jersey Southern Railway Company to recover damages for causing the death of the plaintiff's intestate at a railroad crossing at Seabright, at which place he was struck down and killed by a train of the former company, which was running over the latter company's railroad. The following is

a recital of the salient facts proved at the trial: The deceased, Andrew P. Swanson, while crossing, on foot, over the tracks from east to west, was struck by a train south bound, running on the most westerly track. A train north bound on the easterly running track caused him to halt before crossing. Immediately upon the passing of the north-bound train he walked in behind it, and was struck by the other train. The view, to the north, of a person approaching the crossing from the east, was obstructed by freight cars standing on a siding easterly of the north-bound track. There were 8 feet and 9 inches between the side track and the north-bound track. The north-bound track is 5 feet wide, and between the north-bound and south-bound tracks there were 7 feet and 5 inches; making a total of 21 feet and 2 inches between the side track (upon which the cars stood) and the southbound track. After passing the freight cars, there was an unobstructed view to the north (except so far as the north-bound train shut it off) down to Seabright station, 1,850 feet. The view to the south was unobstructed for a much longer distance. It was the custom to maintain gates at this crossing in the summer time, which were taken down and put away in the winter. They were in operation at the time of the accident, and had been for several weeks. They had, however, got out of order on the day before, and were not in actual use on the day of the accident, but instead the gateman was stationed at the crossing with a flag. Immediately before the happening of the accident, and while the north-bound train was approaching and passing, the flagman stood at the crossing, waving his flag. As soon as that train passed, he ceased waving the flag, and held it over his shoulder, retaining, however, his position upon the crossing. The audible signal of the approach of the south-bound train was given, either by the blowing of a whistle or the ringing of a bell, in compliance with the statutory requirement. At the close of the plaintiff's case a nonsuit was ordered, the proofs showing, in the opinion of the trial judge, that the accident which resulted in the death of her intestate was partly due to his own negligence. The propriety of this judicial action is challenged by the writ of error.

That it is the duty of the traveler upon a highway, before crossing a railroad, to look up and down the tracks, and also listen, for approaching trains, and that his failure to do so is such negligence as will prevent a recovery if he is run down at the crossing, has been declared by this court in a long line of cases. So, too, it is entirely settled that, if his ability to see or to hear an approaching train is temporarily diminished or destroyed by obstructions or disturbances which are transient in their nature, reasonable prudence requires him to wait until such obstructions or disturbances have disappeared, and his senses have again become efficient to warn him of danger, before attempting the crossing. Mer

kle v. Railroad Co., 49 N. J. Law, 473, 9 Atl. 680; Railroad Co. v. Ewan, 55 N. J. Law, 574, 27 Atl. 1064; Railroad Co. v. Pfuelb, 60 N. J. Law, 278, 37 Atl. 1100, on error, 61 N. J. Law, 287, 41 Atl. 1116; Railroad Co. v. Smalley, 61 N. J. Law, 277, 39 Atl. 695. It is manifest, from the facts already stated, that if the deceased had waited, after stepping out from behind the freight cars which stood upon the side track, until the north-bound train had passed far enough away from the crossing to enable him to see and hear the coming south-bound train, and had then used his eyes and ears for his own protection, this accident would never have occurred. That he could have remained in the place indicated with perfect safety is not disputed. The space between the side track and that used by northbound trains was 21 feet. Assuming that the cars on these two tracks had the ordinary overhang, there would have been a space of at least 16 feet between the passing train and the freight cars. His neglect to observe this precaution for his safety, which the law imposes upon every person about to cross over the tracks of the railroad, is sought to be justified by the conduct of the defendant's flagman in ceasing to wave his flag after the passage of the north-bound train, and resting it over his shoulder, which action, it is said, was tantamount to a declaration on his part that the way was safe. I am unable to perceive why the mere shifting of his flag, by the flagman, from one position to another, is to be construed into a declaration that the way is safe, while the flagman continues to remain upon the crossing. But conceding, for the purposes of the case, that this action has all the significance which has been attributed to it by counsel for the plaintiff in error, his case is not benefited thereby. What the flagman's conduct amounted to, if counsel's contention be sound, was a failure to give warning of the approach of the train. This is just what the gateman fails to do when he neglects to lower his gates, or the engineer and fireman when they neglect to blow a whistle or ring a bell. But each of the decisions hereinbefore adverted to rests upon the ground that the passenger on the highway is not justified in relying solely upon the action or nonaction of the employés of the company whose duty it is to give notice of the approach of trains to a crossing. Self-preservation requires independent observation on the part of the person about to cross the track. The declaration of the company's employés that the way is safe does not absolve from the duty of making such observation, and failure in that regard is ordinarily a failure to exercise that reasonable degree of prudence which the law requires of all persons approaching these known places of danger. Extraneous circumstances have, in some cases, been considered to have excused the traveler upon the highway from the observance of the rule of caution which requires him to look and listen when about to cross over the tracks of a railroad. Transportation

Co. v. West, 32 N. J. Law, 91, on error, 33 N. J. Law, 430, and Berry v. Railroad Co., 48 N. J. Law, 141, 4 Atl. 303, are examples of such cases. But such circumstances excuse only when they are of a character to distract the attention of a reasonably prudent person from the danger to be apprehended from an approaching train. No such excusing circumstances are shown to have existed in the case in hand. The judgment should therefore be affirmed.

TRENTON, L. & P. R. R. v. PHILADEL PHIA & R. RY. CO. et al.

(Court of Chancery of New Jersey. Dec. 14, 1899.)

RAILROADS-ROAD CROSSINGS-DETERMINA

TION OF GRADE.

On an application by a railroad company, whose road is in process of construction, to determine the manner in which it shall cross the line of an existing road, where it appears that there will be but a few trains run on the new line, it will be permitted to cross at grade of the old road, under proper regulations, to be maintained at expense of new road, calculated to prevent collision.

Petition by the Trenton, Lawrenceville & Princeton Railroad against the Philadelphia & Reading Railway Company and others to fix the manner in which petitioning railroad shall cross defendants' railroad. Decree for petitioner.

Linton Satterthwaite, for petitioner. James J. Bergen, for defendants.

REED, V. C. This is an application to fix the manner in which the petitioning railroad, now in course of construction, shall cross the railway of the defendants, an already existing road. The petitioner is a spur of the Trenton Branch of the Philadelphia & Reading Railway Company. It is used for gathering and delivering freight, and the trains upon it are infrequent. I see no reason for compelling the petitioner to cross either above or below the grade of the old road. The crossing should be at the grade of the main track of this spur. I use the term "main track of the spur," because at the point of crossing there is a siding which, starting from the main track at a point northerly from the place of crossing, gradually rises, so that at the point of crossing it is about 21⁄2 feet above the grade of the main track. This siding is quite a recent adjunct to the spur, and its position will have to be changed if it is to be used after the crossing is completed. The change can be readily made, at an expense so moderate that the presence of the siding presents no substantial obstacle to a grade crossing. Compensation for the change can be made by agreement, or can be fixed by a proceeding to condemn. The crossing should be guarded by a safety throw-off and signal, which may be operated by the train hands of the petitioner's road; the train coming to a full

stop before crossing, and remaining so until the train hand throws the signal upon seeing that no train upon the cross road is within a distance which will make it unsafe for the petitioner's train to cross; or the petitioners can employ a person to attend the signal, upon which its trains can cross without stopping. The details necessary to effect a safe method of crossing will be more fully embodied in a decree which I will sign upon notice by the petitioner's counsel to the counsel of defendants.

ECONOMY BUILDING & LOAN ASS'N v. WEST JERSEY TITLE & GUARANTEE CO.

(Supreme Court of New Jersey. Nov. 29, 1899.) INSURANCE-TITLE-LIABILITIES OF ABSTRACTOR.

A count disclosing that plaintiff agreed to loan money to an applicant upon condition that he should secure the loan by a mortgage on real estate certified to be a first lien thereon by a title company having corporate capacity so to do; that the borrower applied to the company, and made known to it his agreement with plaintiff; that he requested the company to make the required search and certificate; that it agreed to do so, and to deliver the same to him, to be delivered to plaintiff, to be used for the purpose of procuring said loan; and that the company did make the certificate, and deliver it to the borrower, who paid for it, and by its use obtained his loan,-shows a contract on the part of the company including an undertaking to use care in certifying truly as to previous incumbrances, upon which, in case the company carelessly and untruthfully certifies that the mortgage is a first lien, when in fact there is a previous recorded mortgage on the lands, the plaintiff has a good cause of action if injured thereby.

(Syllabus by the Court.)

Action by the Economy Building & Loan Association against the West Jersey Title & Guarantee Company.

This action is upon contract. Its purpose is a recovery of damages alleged to have been suffered by plaintiff because it made a loan on the security of a mortgage on real estate upon the faith of a certificate of defendant that it was free from prior incumbrances, which certificate was untrue, 'there being in fact a prior recorded incumbrance, the foreclosure of which caused the loss of plaintiff's loan. Plaintiff has set out his cause of action in two special counts, and defendant has demurred to each. Overruled.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

David J. Pancoast, for plaintiff. Lewis Starr, for defendant.

MAGIE, C. J. It is not claimed that there has been imposed by law upon defendant a duty in respect to the transaction with plaintiff for the breach of which an action would lie under the authority of Appleby v. State, 45 N. J. Law, 161. In the opinion of Mr. Justice Depue in that case it was suggested

whether the liability of a county clerk for untrue statements in a certificate of search of title would arise out of his official position, or rather out of his employment to make the search, in which case his liability would extend only in favor of the person employing him, and with whom he was in privity by the contract of employment. The defendant has no official character, but from the statements of the declaration we must assume that it has corporate capacity to do the acts which it is charged with doing, viz. examining the title of real estate, and certifying to incumbrances thereon. If possessed of such capacity, there can be no doubt that, upon being employed to examine and certify, it undertook a duty in favor of the employer for the breach of which it would become liable to him. The question presented by the demurrers is whether these counts sufficiently disclose a duty owed by defendant to plaintiff, and a breach of such duty. It will be convenient to first consider the second count. Omitting extraneous and unnecessary matters, that count may be thus paraphrased: It charges that one Moore desired to procure a loan of $3,000, and applied to plaintiff therefor; that plaintiff agreed to make the loan on condition that Moore should secure it by a mortgage on certain land, which mortgage should be certified by defendant to be a first lien on said lands; that Moore applied to defendant, and made known to it his agreement with plaintiff; that he requested defendant to make the required search and certificate, which it agreed to do; that it agreed to make and deliver such search and certificate to Moore, to be by him delivered to plaintiff, and used for the purpose of obtaining said loan; that it made the certificate, a copy of which was annexed to and made part of the declaration, and delivered it to Moore, who paid defendant therefor, and then delivered it to plaintiff, who thereupon made the loan on the faith of the certificate. The certificate avers that the mortgaged lands were not incumbered by any previous mortgage. The count proceeds to aver that the certificate was carelessly made, and was untrue, because the lands were in fact subject to a prior recorded mortgage, which has since been foreclosed, to the injury of plaintiff. The sole contention of the demurrant is that the count discloses no privity between it and the plaintiff, but only a contract between it and Moore. But this is too narrow a view of the transaction set out in this count. Upon its averments there is disclosed either a contract between plaintiff and defendant, made through the agency of Moore, by which defendant was employed to examine and certify the title, or a contract of like employment between Moore and defendant, made for the benefit of plaintiff, upon which a right of action by plaintiff would arise. Joslin v. Spring Co., 36 N. J. Law, 141; Whitehead v. Burgess, 61 N. J. Law, 75, 38 Atl. 802. It is unnecessary to determine in which aspect the facts averred place the