The principle that the decision of a court of competent authority is binding and conclusive upon all other courts of concurrent power is of universal application; and for this reason, as was said by Chancellor Kent in Simpson v. Hart, 1 Johns Ch. (N. Y.) 91, 97, in discussing the question which we are now considering: "Where courts of law and equity have concurrent jurisdiction over a question, and it receives a decision at law, equity can no more re-examine it than courts of law in a similar case can re-examine a decree in a court of chancery." allowed. Upon the hearing of that order it was disclosed by affidavits submitted on behalf of the defendant that, at the time of the trial, the complainant's substituted attorney was aware of the importance of R. as a witness, and of the value of the papers in his possession as proof supporting the defense; that, notwithstanding this knowledge, no attempt was made on behalf of the complainant either to compel the appearance of R., or the production of the papers at the trial. It further appeared by these affidavits that in due time after the rendition of the verdict application for a new trial was made by the complainant to the court in which the action was brought, that the grounds upon which the application was rested were the same as those upon which relief is sought by the present proceedings, and that, (Court of Errors and Appeals of New Jersey. after consideration, the application was denied by the trial court. The conclusion reached by the Court of Chancery was that, on the facts set out in the bill of complaint, and the defendant's answering affidavits, a preliminary injunction ought not to issue, and it was so ordered. From this order the complainant appeals. The order appealed from will be affirmed. BERLA v. STRAUSS et al. Nov. 15, 1909.) TRUSTS (§ 371*)-RESULTING TRUSTS-ACTION in land received by defendant by devise, on the Although the hearing of applications for new trials in actions at law is a part of the ancient jurisdiction of a court of equity, yet, even in the days before courts of law had extended their jurisdiction over that subject, chancery exercised this power sparingly. Smith v. Lowry, 1 Johns. Ch. (N. Y.) 320. Since courts of law have assumed jurisdiction over applications for new trials in causes instituted before them, equity has gradually withdrawn from that field of juris-missal, complainant appeals. Affirmed. prudence, so that in the present day it may be said, as a general rule, that it will only interfere in that direction when adequate relief cannot be afforded by the court in which the judgment has been obtained; or, to state it differently, when the grounds upon which the new trial is sought are not cognizable by the legal tribunal. Hannon v. Maxwell, 31 N. J. Eq. 318, 329. Upon this ground, therefore, the refusal of the Court of Chancery to direct an injunction was entirely proper. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 598; Dec. Dig. § 371.*] Appeal from Court of Chancery. Suit by Eliss Berla against Florence Rice Strauss and others. From a decree of dis Chauncey G. Parker, for appellant. Louis Hood, for respondents. GUMMERE, C. J. The complainant, by his bill in this case, seeks to have a resulting trust decreed in his favor in a tract of land held by the defendants under a devise from one Bernard Strauss, deceased. The ground upon which he bases his right to such relief is that Strauss, in his lifetime, purchased the tract of land in question with moneys which were, to some extent, furnished by the complainant, and took title in his own name for the joint benefit of the complainant and himself, by virtue of an understanding to that effect existing between them. The learned vice chancellor before whom the hearing was had reached the conclusion that the proofs in the case did not support the allegations in the bill, and advised a decree of dismissal. The refusal is to be justified also upon a broader ground. Assuming that, as a general rule, the exercise of jurisdiction by the Court of Chancery in applications for new trials is a matter of discretion in that court, nevertheless the jurisdiction over that subject is concurrent with that of the law courts, and a litigant may select either tribunal as the forum in which to have such an application considered and determined. If he selects the law court, he cannot afterwards be heard upon the same matter in a court of equity, for such a proceeding would be, in its essence, a review of the determination of the legal tribunal, and such power of review does not reside in the Court of Chancery. We think he was right in the conclusion which he reached, and that the decree should be affirmed. Upon the argument had before us, it was suggested to counsel, by a member of the court, that, even if the complainant was not tions, and the inspectors relied upon such recthe two engines in question shortly before and ords when they testified as to inspections of shortly after the fire: Held erroneous to exclude evidence offered by plaintiff in rebuttal to show that, during the period of the alleged invariable practice of frequent and careful inspection, the engines of the defendant threw sparks in great numbers and of large size, and sparks such as to occasion fires to property adjacent to the defendant's railroad. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1718-1723; Dec. Dig. § 481.*] Gummere, C. J., and Reed, J., dissenting. (Syllabus by the Court.) Error to Supreme Court. entitled to the relief sought by his bill, never- | a system of recording the results of such inspectheless that, as the proofs in the case showed that the land in question had originally been owned by the complainant, Strauss, and one Smith, as tenants in common, and that the title which Strauss acquired came to him through a purchase made by him at a foreclosure sale in a suit brought against these tenants in common, the complainant might be entitled to treat the purchase by Strauss as a redemption of the mortgage debt, although he contributed nothing to the purchase money, and to have a decree establishing his rights as such tenant in common, upon reimbursing the defendant for his proportionate share of the purchase money advanced by Strauss. Following this suggestion, briefs were asked of counsel upon this point by the court, and they were submitted. A careful examination of the proofs in the case, however, satisfies us that they were not taken with the view of supporting or defeating the suggested right of the complainant, and that injustice might easily be done to the one side or the other by attempting to settle that right upon the proofs submitted. For this reason we decline to pass upon the matter in this litigation, leaving it to the complainant to present it in an independent suit, if he deems it advisable to do so. GOODMAN v. LEHIGH VALLEY R. CO. (Court of Errors and Appeals of New Jersey. 1. RAILROADS (§ 480*)-FIRES SET BY LOCOMO TIVES EVIDENCE. In an action under section 57 of the_general railroad law of April 14, 1903 (P. L. p. 673). to recover damages caused by fire alleged to have been communicated by a locomotive engine operated by a railroad company, proof that the fire was communicated from an engine is prima facie evidence of a violation of the preceding section, subject, however, to be rebutted by evidence of the taking and using all practicable means to prevent such communication of fire as by said section required. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1711; Dec. Dig. § 480.*] 2. RAILROADS (§ 484*)-FIRES SET BY LOCOMO.TIVES QUESTIONS FOR JURY. The evidence in such an action reviewed. and held to raise questions for the jury, both as to whether the fire was communicated by an engine, and as to whether the company had taken and used all practicable means to prevent such communication of fire as required by section 56 of the act of April 14, 1903 (P. L. p. 673). [Ed. Note. For other cases. see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. § 484.*] 3. RAILROADS (§ 481*)-FIRES SET BY LOCOMOTIVES EVIDENCE. Where defendant. in undertaking to prove that two certain engines, at the time of the fire, were fitted with proper spark-arresting screens, and that these screens were then in good order, introduced evidence of a regular system of frequent and careful inspections of its engines, and Action by Edward V. Goodman against the Lehigh Valley Railroad Company of New Jersey. Judgment for defendant, and plaintiff brings error. Reversed. See, also, 75 N. J. Law, 277, 68 Atl. 63. Clark McK. Whittemore, for plaintiff in error. Robert H. McCarter, for defendant in error. PITNEY, Ch. This action was brought in the lifetime of Edward V. Goodman, and, he having died pending suit, it was revived by order of the court, and continued in the name of his executor. Its object is to recover damages resulting from fires that occurred upon the premises of the deceased, Goodman, and which are alleged to have been communicated from locomotive engines operated by defendant company. One fire occurred on manure. One occurred on July 19th, in the April 1, 1905, and destroyed a quantity of same year, and destroyed a dwelling house, barns, and a large amount of personal property. The third fire occurred on July 23d, and destroyed a growing crop. The first trial resulted in a verdict in favor of the plaintiff for the damages that resulted from all three fires. Upon review by the Supreme Court in banc, it was held there was sufficient evidence to sustain the verdict respecting the first and third fires, but that, so far as the second fire was concerned, there was no evidence to support it. Goodman v. Lehigh Valley R. Co., 75 N. J. Law, 277, 68 Atl. 63. A new trial was therefore ordered. The second trial came on before a justice of the Supreme Court at circuit, and by stipulation of the parties the case was submitted upon the same testimony that was taken at the first trial, with the objections made thereto by counsel and the exceptions taken, with the same effect as if such testimony, objections, and exceptions had been produced anew by both parties to the suit. Respecting the first and third fires, the defendant company conceded its liability, and it was agreed between the parties that the damages attributable thereto amounted to $44. With respect to the fire of July 19th, the trial justice, governed by the decision of the Su preme Court, directed the jury that there was no evidence upon which the company could be held liable, and that in respect to that fire the verdict must be in favor of the defendant. He accordingly directed a verdict in favor of the plaintiff for $44 only, and allowed exceptions to his ruling excluding from the jury's consideration the fire of July 19th, and to his limitation of the damages to $44. To review the judgment entered upon the verdict thus directed, the plaintiff has sued out this writ of error, and assigns error upon the instructions thus given to the jury, and also to certain rulings respecting the rejection of evidence, which were duly excepted to. The first and most important question is whether the evidence made out a case that ought to have been submitted to the jury respecting the liability of the defendant for the damages that resulted from the fire of July 19th. The buildings and personal property that were burned were situate upon a farm owned by the deceased that adjoined a railroad operated by the defendant company. The fire broke out about 4 o'clock in the afternoon in the hayloft of a barn situate about 72 feet from the property of the company, and about 115 feet from its nearest railroad track. A fast mail or passenger train, drawn by engine No. 2454, had passed by upon this track a few minutes before, and a freight train, drawn by engine No. 1458, had passed within about 40 minutes. There was evidence tending to show: That a strong wind was blowing from the railroad toward the barn; that the day was quite warm, and the weather for some time had been unusually dry; that there was no person in or about the barn at the time the fire broke out, or within 12 hours prior to that time; that no fire or any lighted lamp was kept in the barn; that the conflagration commenced in the hay, near a door that stood open leading into the mow, some distance above the ground and facing the railroad; and that at the beginning there was no fire upon the ground or in the lower part of the barn. One witness (Axel) testified that being at a point 25 to 50 feet distant from the railroad, on the opposite side from the Goodman barn, and where he had a clear and unobstructed view, he saw the mail train going by, and as the last car of the train passed he observed the hay smoking, and immediately gave the alarm. Andrew Polimbo testified that when at a distance of 150 feet from the barn he saw the smoke, and on running to the barn saw the hay was afire within two feet from the door. In addition, Charles Cordes testified: That on the same day, while at work in his barn about 300 feet from the railroad, at a distance of about a mile eastwardly from Goodman's property, he observed the mail train in question passing, and before the last car had passed fire started in the grass about 125 feet from the railroad; the engine reached it, and nobody visible to have set the fire. And Thomas MacDonald testified that on the same day, at a place some distance west from the Goodman property, and adjoining the railroad, fire was started in the grass about 30 feet from the track shortly after the mail train passed by. All this evidence was circumstantial, of course; but for that reason was none the less legitimate. Wiley v. West Jersey R. Co., 44 N. J. Law, 247, 249; Minard v. West Jersey, etc., Ry. Co., 74 N. J. Law, 39, 64 Atl. 1054. In our opinion it fairly tended to show that the fire that consumed the Goodman property was communicated by sparks escaping from an engine operated by defendant company-either No. 2454 or No. 1458. The fact that no witness saw sparks actually flying from the engine towards the barn is not of great significance, in view of the testimony (if testimony were needed) that such sparks are not visible in the daytime. The responsibility of railroad companies in the premises is expressed in sections 56 and 57 of the general railroad law of April 14, 1903 (P. L. p. 673). Section 56 enacts that: "Every company or person operating or using any railroad shall take and use all practicable means to prevent the communication of fire from any engine used by them in passing along or being upon such railroad to the property, of whatever description, of any owner or occupant of any land adjacent or near to said railroad, and shall provide such engine with a screen or cover in the smokestack so as to arrest and prevent as much as practicable the escape of fire." Section 57 declares that: "When injury is done to property by fire communicated from an engine of any company or person in violation of the foregoing section, such company or person shall be liable in damages to the person injured; and in every action for an injury done to the property of any person by fire communicated from an engine in violation of the preceding section of this act, proof that the injury was communicated from an engine shall be prima facie evidence of such violation; subject, nevertheless, to be rebutted by evidence of the taking and using all practicable means to prevent such communication of fire as by said section required." Somewhat similar provisions were contained in sections 13 to 17 of the general railroad act of 1874 (Rev. St. 1874, pp. 697, 698; Gen. St. 1895, pp. 2670, 2671, §§ 124-128). In Wiley v. West Jersey R. Co. (1882) 44 N. J. Law, 247, 250, the Supreme Court was called upon to construe the sixteenth section, which declared: "That in every action for the recovery of damages for an injury done to the property of any person or corporation by fire communicated by a locomotive engine of any person or railroad corporation in violation of the preceding sections of this act, proof that the injury was so done shall be prima nevertheless, to be rebutted by evidence of the taking and using all practicable means to prevent such communication of fire as by said section required." In that case the plaintiff claimed that, by evidence tending to show that the fire was communicated by an engine of the defendant company, the burden of proof was cast upon the defendant. The latter, on the other hand, denied that the law became applicable until the plaintiff should further show that the fire was communicated in violation of the preceding sections of the act; that is, for want of the use of screens or some other practicable means. The court rejected the latter contention on the ground that to accept it would render the section utterly futile, and held that the legislative design was to declare that, when fire was communicated to property by any locomotive engine, that fact should be prima facie evidence that all practicable means had not been employed by the company to prevent the communication of fire, and so placed upon the company the burden of proving the exercise of due care. With this construction we agree. In the revision of 1903, the Legislature seems to have intended to render its purpose clear beyond question, for, in place of the phrase "proof that the injury was so done" (upon which it had been contended that the proof must show that the injury was done in violation of the act), the revisers substituted the phrase "proof that the injury was communicated from an engine shall be prima facie evidence of such violation." It results that, in the case before us, the plaintiff's proofs cast upon the defendant the burden of showing that, although the fire was communicated from one of the engines in question, yet the defendant had used all practicable means to prevent such communication of fire, including the provision of screens or covers in the smokestacks so as to arrest and prevent as much as practicable the escape of fire. Defendant's evidence was addressed properly enough to the question of screens; it not being contended by the plaintiff that the fire could have been communicated from the engines otherwise than through the smokestacks. Defendant's evidence tended to show that both of the engines in question were fitted with spark-arresting screens having three meshes to the inch, the apertures being onequarter inch square, that lump anthracite coal was burned in No. 2454, and that No. 1458 used a mixture of half bituminous and half small anthracite coal. Confining our attention to No. 2454 (which, indeed, according to the contention of defendant's counsel, is the only engine that could have started the fire), the testimony on behalf of the defendant was to the effect: That the screen was installed new on February 10, 1905, and was examined and inspected three dif by three different inspectors, all within 30 hours before the fire occurred at Goodman's place on July 19th; that within 24 hours after the fire, the same three inspectors, at three different times and places, again inspected the same engine; and that at each and all of these six examinations the condition of the screen in the smokestack was found to be good and perfect. We may assume-indeed, it is in effect conceded by counsel for plaintiff in errorthat, if this evidence must be fully credited, and constituted the only evidence that bore upon the care exercised by the defendant, it demonstrated that the defendant had used "all practicable means to prevent the communication of fire," and had fulfilled its statutory duty. But, in our judgment, the testimony introduced by the plaintiff to the effect that engine No. 2454 actually threw a spark that retained its vitality for a distance of more than 115 feet, so as to set fire to the hay in Goodman's mow, together with the testimony of Cordes and MacDonald about the throwing of sparks by the same engine on the same trip, had a legitimate tendency to prove not only that this engine started the Goodman fire, but that its screen was not in good order at the time. Moreover, one of defendant's own witnesses, an expert, testified that in his judgment a spark that had passed through the meshes of such a screen as No. 2454 carried (the screen being intact) would not retain sufficient vitality or fire to ignite combustible material at a distance of 116 feet from the railroad track. Indeed, it may easily be inferred, from what we all know, that a piece of live coal so small that it will pass through a quarter-inch mesh, and which, of course, continues to burn, and thereby to consume itself while driven into the air by the exhaust steam and while carried along through the air by the prevailing wind, cannot retain sufficient heat to ignite other combustible materials at an unlimited distance. Whether it can carry its heat for 50, or 100, or 150 feet, or more or less, cannot be solved by the application of any rule of law, and is left unsolved by the evidence. It is clear enough that the evidence introduced by the defendant, tending to show that it had properly maintained the screens so as to prevent the communication of fire, at the same time tended to show that in fact the fire was not communicated to plaintiff's property from defendant's locomotives; and for the same reason the evidence introduced on the part of the plaintiff, that tended to show that the fire was communicated from the locomotives, also tended to show that the locomotive screens were not in good order at the time, and thus to contradict the evidence of defendant's witnesses who testified that they were in good order. In short, if the testimony of plaintiff's witnesses as to the origin of the fire was believed, and if the might infer) that the fire was caused by a spark from a locomotive engine, and also concluded that the spark could not travel so far and retain its fire unless when it left the engine it was too large to have passed through a quarter-inch mesh, it results that the jury might fairly conclude that defendant's witnesses who testified to the effect that the engines in question were fitted with screens of quarter-inch mesh, that the screens had been inspected with proper care and were in good order and perfect condition at the time, and that there was no way in which sparks could come out of the smokestack without first passing through the screen, must have been in some way mistak The evidence upon the disputed points being thus in conflict, the question could be legitimately solved only by the intervention of the jury. It is unnecessary to lay stress upon the circumstances: That some or all of defendant's witnesses who spoke upon these topics were still in the company's employ; that the screen inspectors were further interested, because, if the screens were out of order, they themselves were responsible; that they testified without any special recollection of the particular engine on the particular occasion, and relied wholly upon records said to have been made by them, shortly after the several inspections, in books kept for the purpose, in which numerous other inspections of other engines were kept. These circumstances affect merely the reliability of the witnesses, and were for the jury's consideration. It seems to us therefore that the question whether defendant was legally responsible for the fire of July 19th ought to have been submitted to the jury. motive engines, for that evidence not only tended to show inspection of the two engines in question immediately before and immediately after the fire, but also tended to show a regular system of frequent inspections of all the engines that were operated upon the railroad; and, upon the faithfulness with which that system was carried out, the reliability of the evidence as to the inspection of engines 1458 and 2454 materially depended. In fact, as already pointed out, the inspectors (whose duties required them, day after day and month after month, to inspect numerous engines distinguished only by numbers) did not, and in the nature of things could not, have any dependable recollection of what they did about inspecting these two particular engines, and what they ascertained about their condition, upon a particular date in the past, and it was a fair construction of their testimony that what they meant to swear to was substantially this: That they knew, for instance, that engine No. 2454 was inspected thus and so at Jersey City on the morning of July 19, 1905, that such and such steps were taken to render the inspection efficient, and that the screen was either found in good order, or, if not, was immediately repaired, because it was their invariable practice to make inspections and repairs in that fashion and to make a short minute in the record, including the entry "screen good," or the like, and because such an entry is in the record respecting inspection of engine 2454 at the time and place in question. Evidence that would have shown that sparks in great numbers and of large size in fact came out of the engines of the company during the very period of the alleged invariable practice of frequent and careful inspections, and sparks such as to occasion other fires to property adjacent to the railroad, would have tended to show that the system, however perfect in theory, was not carefully adhered to in practice, and thus to discredit the defendant's testimony respecting the efficiency of the inspection of the two engines under inquiry at the particular times in question. For these reasons, the judgment under review should be reversed, and a venire de novo awarded. GUMMERE, C. J., and REED, J., dissent. We think there was further error in excluding the following series of questions asked of the plaintiff, Goodman, when called in rebuttal: "Q. At the time that this fire occurred that destroyed your place, had you ever noticed any fires occasioned on your property from the engines of the railroad? Q. Have you ever noticed the quantity of sparks thrown from the engines of the Lehigh Valley Railroad Company, at or about the time of the fire that occurred to your place, during the nighttime? Q. Have you ever picked up any live coals thrown from the engines of the Lehigh Valley Railroad? Q. How large sparks have you seen coming out of the stack of the engines at nighttime on the Lehigh Valley Railroad about the time of the fire?" The third question is in form indefinite as to time; but, read in con- (Court of Errors and Appeals of New Jersey. nection with the others, it no doubt was intended to relate to a time pertinent to the general inquiry. We think that the evidence The act of March 23, 1881 (2 Gen. St. that these questions would have elicited, if 1895, p. 2112, § 47), which requires "that in answered in a manner favorable to the plain- all cases where a bond and mortgage has or tiff, would have legitimately tended to re- may hereafter be given for the same debt, all but the defendant's evidence as to the in-proceedings to collect said debt shall be first to foreclose the mortgage," etc., has no applicaspection of the spark screens upon the loco-tion where the existence of the mortgage has BOWER V. BOWER et al. Nov. 15, 1909.) 1. MORTGAGES (§ 218*)-ACTIONS ON INDEBTEDNESS-CONDITIONS PRECEDENT. |