and title to flow all the lands heretofore flowed by the party of the first part, with the further privilege to flow so much of the land of the party of the first part as the party of the second part, his heirs and assigns, may hereafter require for milling purposes; and also the right of the party of the second part, his heirs and assigns, to use all the earth that may be required for constructing and repairing the dam, from the south side of Tennant creek." The tract now owned by the plaintiffs came to them by descent from Clarkson Brown, and is that portion of his lands which is referred to in the Hensel deed as "the lands on the south side of Tennant creek." The defendant acquired its title to the Hensel tract, with its appurtenances, in 1891. At the time of its purchase, however, the mill had fallen into disuse, the dam had broken out, and the water of the mill pond had run off. The defendant, a short time after taking possession of its property, proceeded to clean out the mill pond, and to restore the dam with the earth which taken from the bottom of that part of the pond which was on the south side of Tennant creek, and, consequently, on the lands of the plaintiffs. This it did, not with the intention of putting its property again in use as a mill seat, but for the purpose of utilizing the mill pond as a reservoir from which to supply the inhabitants of Perth Amboy with water. These acts of the defendant constitute certain of the trespasses laid in the plaintiffs' declaration; and the advisory opinion of this court is asked on the question whether, under the grant by Clarkson Brown to Hensel (to all the rights and privileges contained in which the defendant has succeeded), the defendant had a legal right to clean out that portion of the mill pond which is upon the lands of the plaintiffs, and use the soil taken therefrom for the purpose of restoring the dam, notwithstanding the fact that it proposes to use its property, including the mill pond and dam, exclusively for other than milling purposes. We think that this question must be answered in the affirmative. The deed conveys a "mill seat," and authorizes the maintenance of a mill dam, partly upon other lands of the grantor (now of the plaintiffs), and also the flowing of a portion of said lands for the purposes of a mill pond. Such a grant carries with it, as an incident, the right to enter and cleanse the pond. Ang. Water Courses, § 158; Frailey v. Waters, 7 Pa. St. 221. So far as the right to use the soil taken from the plaintiffs' lands for the repair of the dam is concerned, it is given by the very words of the grant. It is manifest, therefore, that the acts of the defendant which are complained of do not constitute a trespass unless its right to maintain the dam and cleanse the mill pond has ceased by reason of its abandonment of the use of the property for milling purposes. But no such result flows from that action of the defendant. By the conveyance to Hensel, he and his assigns acquired not only the mill seat, but also the right to so much water as was at that time used to operate the mill; and it has been considered as settled law ever since the decision of Luttrel's Case, 4 Coke, *86a (where the question first came up for solution), that, when the easement is of a certain quantity of water, the grantee is not restricted to use it in a particular manner, though the purpose for which it is used be specified in the grant. He may use the water in a different manner, or at a different place, if he sees fit, provided the quantity used is not increased, and the change does not prejudice the rights of others. Carlisle v. Cooper, 21 N. J. Eq. 595; Johnston v. Hyde, 33 N. J. Eq. 632. In our opinion, the facts contained in the question certified to us do not, under the circumstances mentioned therein, constitute a trespass, and afford the plaintiffs no ground of action; and the court of common pleas should be so advised. We have not considered the other questions sent up, for the reason that in each of them disputed questions of fact are involved, which we have no power to settle. All such questions must be settled by the trial court before it certifies the case to this court for its advisory opinion. Destefano v. Calandriello, 57 N. J. Law, 483, 31 Atl. 385. MCLAUGHLIN v. CAMDEN IRON WORKS. (Court of Errors and Appeals of New Jersey. Nov. 18, 1897.) INJURY TO EMPLOYE-ASSUMPTION OF RISK-NEGLIGENCE OF FELLOW SERVANT. A laborer was called from his special work, and, with others, directed by their foreman to raise by hand a large frame. Through lack of bracing or fastening, the frame fell, and injured him. Held: (1) That he could not establish a right of recovery against his employer by proving that it is usual to have work of that sort done by a rigger with a derrick and appliances; (2) that the foreman was a fellow servant with the laborers in the same common employment, and that his negligent use of, or failure to use, proper appliances provided by the master, did not entail liability on the master. (Syllabus by the Court.) Error to circuit court, Camden county; Miller, Judge. Action by John McLaughlin against the Camden Iron Works. From a judgment of nonsuit, plaintiff brings error. Affirmed. G. M. Bacon and J. W. Wescott, for plaintiff in error. D. J. Pancoast, for defendant in error. COLLINS, J. The plaintiff sought recovery for personal injuries alleged to be due to the defendant's negligence. The declaration averred that, while in the employment of the defendant as a riveter, the plaintiff was ordered by the defendant to leave his employment, and assist in raising a large frame of great weight, and that by reason of the defendant's careless omission to supply and use in raising the frame the means necessary to raise the same, and hold it in place while being raised, it fell, and injured the plaintiff. At the trial the plaintiff was nonsuited at the close of his case, on the ground that his injury was the result of the negligence of a fellow servant in the same common employment. Upon the consequent judgment the writ in this case was brought, and the nonsuit is assigned for error. The proof was as follows: The defendant (a corporation) was engaged in building a large iron gas holder. Its roof was to be supported by a wooden structure formed by four timbered frames. One of these lay flat on the ground, and about 25 men of the general laboring force were called by the foreman to raise it by hand. The plaintiff, whose ordinary work was riveting, was one of the number. A block and fall were used, not for additional power, but as a guy, and to hold the weight of the frame as it rose. The frame was not braced or fastened, and one end of it slewed around, the rope slackened, and the frame fell, striking and badly injuring the plaintiff. Afterwards the frame was raised by a rigger, using a derrick and appliances. On the subject forming the gravamen of the plaintiff's complaint the only testimony was that of two witnesses,-one a laborer, named Corbett, who said that raising the frame was a rigger's work; and the other a carpenter, named Tice, who said that he "supposed it would take a rigger to handle that sort of a frame," and, again, that he "believed it was generally a rigger's work to handle a frame of that weight and size." When asked his opinion of the method of raising in use at the time of the accident, he said that he did not think such a method safe; but on crossexamination he said that, with both ends of the frame securely fastened, the men could have raised it in that way. A witness named Barker, who ran a hoisting engine at the works, and saw the accident, was called to testify that he warned the foreman that he was doing an unsafe thing. On cross-examination he said that the danger apparent to him could have been removed by bracing or fastening the end of the frame that afterwards slid. He said that all that was needed was a rope and a stake. Another witness, named Davis, testified, on the plaintiff's own call, that the frame slewed around because it had no fastening at the bottom. Of course, the defendant was not obliged to hire a rigger, or use a derrick. The plaintiff knew that the frame was being raised by hand under the direction of the foreman, and he assumed such resultant risk of that method of doing the work as was obvious to him. There was on the ground an abundance of ropes, pulleys, and timbers, and there was a hoisting engine there. Where appliances for work are needed, the duty is on the master to use reasonable care in their selection, and he cannot escape it by delegation; but carelessness in their use, or failure to use them, on the part of his servant, whereby injury is received by a fellow servant in the same common employment, is not chargeable to the master, no matter what may be the grade or authority of the servant. O'Brien v. Dredging Co., 53 N. J. Law, 291, 21 Atl. 324; Gilmore v. Nail Co., 55 N. J. Law, 39, 25 Atl. 707; Steamship Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619; Maher v. Thropp, 59 N. J. Law, 186, 35 Atl. 1057. The nonsuit, therefore, was proper unless legal evidence was excluded or illegal evidence was considered. Error is assigned upon bills of exceptions taken on both of these grounds. They remain to be considered. A witness was asked on cross-examination, "Q. What caused the accident?" and replied, "A. Well, I suppose, if there had been a man there that knowed his business, it wouldn't have occurred, if there had been a rigger there." The court, on defendant's motion, struck out the answer as not responsive. After being instructed by the court to state only what took place, the witness persisted thus: "Well, that is all I know that caused it. Mr. Flanagan [the foreman] didn't know his business when he rigged that thing up, or the carpenters, or whoever did it." This answer also struck out. The testimony may have been responsive; it certainly was not material. I find no error here. Counsel for the plaintiff then asked the witness this question: "Q. If there had been a rigger there to raise this frame, would this accident have happened?" The court properly overruled the question. It was irrelevant. Failing to secure an answer, counsel moved to strike out, because elicited from nonexperts, the testimony above stated, to the effect that, if the frame had been braced or fastened, the accident would not have happened. The court rightly denied the motion. The testimony was given without objection, and, moreover, was directed to a fact within the range of ordinary observation. Perhaps, in form, it was objectionable, but in substance it was only a statement that the frame could not have slewed around if both ends had been braced or fastened, a fact almost self-evident. No other question is raised by any bill of exceptions or assignment of error. I shall vote to affirm this judgment. DECKER et al. v. HARTSHORN. (Court of Errors and Appeals of New Jersey. Nov. 15, 1897.) LEASE SURRENDER OF TERM ASSENT TO ABANDONMENT. 1. A surrender of a term in demised premises. by act and operation of law, will not be implied upon proof that the lessee has put a third person in possession thereof, and that the lessor has received rent from such third person, and nothing more. Quære: Will such surrender be implied, if it also appears that the lessor, with the lessee's assent, has accepted such third person as his tenant? 2. The mere receipt of rent by a landlord from an underlessee does not evidence his assent to the abandonment of the demised premises by the GUMMERE, J. This was an action brought by the plaintiffs in error, who were the plaintiffs below, to recover from the defendant (trading as Louis Pelouze & Co.) rent for certain premises in the city of Philadelphia which had been leased to him by them. The rent sought to be recovered was claimed to have accrued from February 4, 1893, to April 3, 1894. The defense was that the defendant had ceased to be a tenant before the first-mentioned date. The only assignment of error which requires consideration in the disposition of the case is that which challenges the correctness of the ruling of the trial judge in refusing to direct a verdict for the plaintiffs. The situation at the close of the testimony was this: The plaintiff's having proved the existence of a tenancy, the defendant sought to show that there had been a surrender of his estate in the demised premises by act and operation of law, prior to February 4, 1893. The evidence produced by him in support of this defense was as follows: On November 1, 1892, the defendant delivered up the possession of the premises to the American Type-Founders' Comrany, who thereafter carried on business there as Louis Pelouze & Co., the same name as that used by the defendant in conducting his business there. On November 28th he notified the agent of the plaintiffs of that fact, in a letter sent to their agent, which reads as follows: "Mr. Gailey Dear Sir: Inclosed we hand you check for one hundred and twentythree dollars and fifty-two cents, rent in full to November 1st, 1892. As this foundry became possessed by the American Type-Founders' Company on November 1st, 1892, we square up our account to that date, which we trust is satisfactory. Kindly acknowledge receipt in full to November 1st, 1892. Respectfully, Louis Pelouze & Co." To this letter Mr. Gailey sent the following reply to the defendant, November 29, 1892: "Ness. L. Pelouze & Co.-Gentlemen: Your favor of yesterday, with check for $123.52, in settlement of rent to November 1st, duly received. Please accept thanks for same, and inclosed find receipt. If you wish the rent hereafter to fall due on the first day of each month, it will necessitate a new lease, which I will prepare and take to you for execution, unless you advise me that you wish the rent to become due as heretofore, on the 4th. Yours, truly, S. M. Gailey." On the 13th of January, 1893, a check of the American Type-Founders' Company, for the rent due January 1st, was sent to the plain tiffs' agent in a letter signed "Louis Pelouze & Co." This letter was in the handwriting of the defendant, but he testifies that when he wrote it he was in the employ of the American Type-Founders' Company, and was acting for them. The check was accepted by plaintiffs' agent, in payment of the rent for which it was sent, and the money drawn thereon by him. This is the whole of the evidence from which it is insisted, on behalf of the defendant, that a surrender of his estate in the demised premises can be implied. Are these facts sufficient to warrant the implication? The case most favorable to the contention of the defendant, so far as my examination of the books has disclosed, is Thomas v. Cooke, 2 Barn. & Ald. 119, in which it was held that a surrender in law could be implied where a lessee had put a third person in possession of the demised premises, and the lessor had, with the lessee's assent, accepted such third person as his tenant. This case has been followed to some extent, both in England and in this country, but has, notwithstanding, been frequently doubted. Baron Parke, in Lyon v. Reed, 13 Mees. & W. 284, 308, 310, in discussing that decision, says: "It is a matter of great regret that a case involving so much importance should have been decided by refusing a motion for a new trial. Had the case been put into a train for more solemn argument, we cannot but think that many considerations might have been suggested which would have led the court to pause before they came to the decision at which they arrived. * * * We feel fully warranted in not extending the doc trine of that case, which is open to so much doubt, especially as such a course might be attended with very mischievous consequences to the security of titles." In our own state, also, Chief Justice Beasley, commenting on the same case, in Hunt v. Gardner, 39 N. J. Law, 533, says: "I think it may be safely said that to hold that a surrender in law will be implied or raised up from the facts that a tenant has put a third person in possession of the demised premises, and that such third person has been accepted as tenant with the assent of the original tenant, is carrying the principle to the verge of mischief to titles by leasehold." Whether, in view of the injurious criticism to which the case has been subjected by such eminent jurists, the doctrine established by Thomas v. Cooke should be followed in this state, is a question which, it seems to me, ought not to be determined except after very careful consideration; and the case before us, as I view it, does not call for a determination of that question. In Thomas v. Cooke the person who was put in possession of the demised premises by the lessee was afterwards accepted as tenant by the lessor; in the present case that element is wanting. There is nothing in the letter written by the agent of the plaintiffs on November 29th which can be construed into an acceptance of the typefounders' company as tenant. On the contrary, it clearly appears from it that the agent still considered the defendant to be the tenant of his principals, notwithstanding the change in the possession of the demised premises. So, too, although it appears from the proofs that, after possession of the premises had been delivered by the defendant to the type-founders' company, the latter paid rent to the plaintiffs, yet such payment was made by the company in the name of Louis Pelouze & Co., the name previously used by the defendant; and there is no evidence to warrant the conclusion that, when this payment was made to and accepted by the plaintiffs, they had any knowledge that Louis Pelouze & Co. was no longer Henry L. Hartshorn, the defendant, but had become the American Type-Founders' Company. But, even if the facts had been otherwise, if the plaintiffs had known that the rent was paid by the type-founders' company, and had accepted it with that knowledge,--the result would have been the same, so far as this case is concerned. The mere receipt of rent by the landlord from an underlessee, does not evidence his assent to the abandonment of the premises by the original lessee and is no proof of his acceptance of such underlessee as tenant. Bacon v. Brown, 9 Conn. 334; Tayl. Landl. & Ten. § 512; Copeland v. Watts, 1 Starkie, 95. In my opinion, taking the most favorable view of the facts proved in this case, and of the law applicable to those facts, they will not support a finding that there was a surrender of the estate of the defendant in the demised premises, by act and operation of law, prior to the commencement of the period for which rent is claimed by the plaintiffs. The request of the plaintiffs, therefore, that the jury should be directed to render a verdict in their favor, was improperly refused, and for this reason the judgment below should be reversed. IRWIN v. GRANITE STATE PROVIDENT ASS'N. (Court of Chancery of New Jersey. Nov. 5, 1897.) RECEIVER OF FOREIGN CORPORATION-AUTHORITY 1. Whether, after a foreign corporation doing business in this state has passed into the hands of a receiver in the state of its domicile, a receiver will be appointed in this state, and, if so, whether the domiciliary receiver will be appointed here, will depend upon the volume and kind of business done in this state, and whether any special interest of the creditors or citizens in this state is likely to be involved in the settlement of the insolvent affairs. 2. The receiver in this state is amenable alone to the direction of this court, and not to the direction of the domiciliary receiver. 3. The securities deposited by a foreign building and loan association with the secretary of state as a condition upon which it is permitted to do business in this state will be controlled by this court, so as to secure the payment of the amounts awarded to shareholders in this state upon final distribution of the assets of such insolvent corporation. (Syllabus by the Court.) Bill by Henry E. Irwin to have a receiver appointed for the Granite State Provident Association. On answer and cross bill of David A. Taggert, assignee in insolvency of the company in New Hampshire, praying to be substituted as receiver in place of George R. Gray, appointed by the court. Prayer denied. The Granite State Provident Association is a corporation chartered under the laws of New Hampshire, with power, inter alia, to carry on the business of a building and loan association, which consisted in selling shares of stock upon which the purchaser agreed to pay one dollar a month until the value of the shares reached the sum of $200; also in loaning the money so collected to shareholders, upon which loans interest and premiums were to be paid by the borrower. These loans or advancements, the amount of which to any one shareholder was limited to the natural value of all the shares he held and deposited with the company as collateral security, were to be paid and canceled whenever his share of stock matured,-i. e. reached the value of $200 each, so that the sum total equaled the amount advanced. The loans or advances were also to be secured by real-estate mortgages given by the borrower to the association, which mortgages were, of course, to be canceled at the maturity of the stock. The scheme was substantially that of all building and loan associations. The association sold its shares and made loans, not only in New Hampshire, but in several other states, including New Jersey. Among those who, in this state, bought shares and procured loans, was the complainant, Irwin. He bought seven shares, and borrowed $1,400, and deposited his shares as collateral security, and gave to the association two real-estate mortgages; one for $200, and the other for $1,200. On these shares he paid certain dues and interest. Afterwards, on March 18, 1896, the company became insolvent. The bank commissioners of New Hampshire caused it to be enjoined from transacting further business, and David A. Taggert was appointed assignee. On March 25, 1896, Irwin, the present complainant, filed his bill in this court, setting up the fact of the company's insolvency, and the appointment of an assignee in New Hampshire, and further setting up that he (the complainant) was a stockholder and creditor of the company. Upon this bill, George R. Gray was appointed receiver in this state. In this suit the association was made a party defendant. On December 21, 1896, Mr. Taggert, upon his petition, was made a party defendant, with leave to file an answer and cross bill, which he did on March 27, 1897. The answer and cross bill set up the right of the New Hampshire assignee to all the assets in New Jersey, and that the duty of the New Jersey receiver is only to preserve and deliver those assets to the former officer; that Mr. Taggert, the assignee, should be substituted for Mr. Gray as receiver; that Mr. Gray should be instructed to collect and pay over the proceeds of col lection to Mr. Taggert, and that Mr. Gray should be ordered to conform to the directions given by Mr. Taggert, and approved by the court in New Hampshire. The defendant also asks that it may be decreed that mortgagees are not creditors of the association. Cortlandt Parker, for Taggert, assignee. Howard W. Hayes, for Gray, receiver. As REED, V. C. (after stating the facts). suming that Mr. Taggert, at this stage of the suit, is in a position to question the appointment of the New Jersey receiver, I am of the opinion that there is no substance in the objections raised. The insistence made on this behalf is that all right in the assets of the insolvent corporation passed to him by force of his appointment as assignee in the state of New Hampshire. This proposition undoubtedly states the general rule. The right to collect personal assets everywhere passed to the receiver; but the exercise of that right beyond the limits of the state of his appointment is by virtue of the comity which may be extended to him by the court of the state in which the right is asserted. This comity will not be extended where the rights of the citizens of the state are likely to be prejudiced, or where it would be in contravention of the policy of the state. Hurd v. City of Elizabeth, 41 N. J. Law, 1; Trust Co. v. Miller, 33 N. J. Eq. 155; Sobernheimer v. Wheeler, 45 N. J. Eq. 614, 18 Atl. 234. In view of this admitted rule, it follows, I think, that whenever application is here made for an appointment of a receiver for a foreign corporation which is already in the hands of a receiver at the place of its domicile, the court in which the application is made can do one of three things: First, it can refuse to appoint a receiver here, and let the domiciliary receiver bring suits in this state to collect all the debts of the insolvent corporation within its limits; second, it can appoint the domiciliary receiver as ancillary receiver; third, it can appoint some one other than the domiciliary receiver. In this instance, the latter course was adopted. The receivership in this state is, however, but ancillary to the receivership in New Hampshire, and constitutes a mere agency to collect assets here, and forward them to the original receiver, unless it appears that creditors or stockholders in this state are asserting a special right in the local assets, which rights should be settled by the courts here. Whether a receiver at all should be appointed in this state depends upon the volume of business and the kind of business which the foreign corporation was here transacting; and whether, if a receiver is appointed here, the appointee should be Mr. Taggert or another, depends upon several considerations, the main one being whether the interest of New Jersey parties would be likely to antagonize in any respect the interest of the general shareholders and creditors. One prayer only in the cross bill need be referred to to justify the appointment, not only of a receiver in this state, but a receiver other than the domiciliary officer. This prayer is that the New Jersey receiver be directed to pay over the proceeds of the money collected by him to the New Hampshire assignee, to be distributed by him according to the laws of New Hampshire. Now, a part of the money to be collected is the sum of $30,000, deposited by the association with the secretary of state for the benefit of the creditors in this state. This condition of affairs therefore raised a question of importance, namely, whether this part of the assets, at least, should not be retained in this state to answer the purpose for which it was deposited. The existence of this question, however it may be decided, is sufficient to show the propriety of a separate receiver in this state. The remaining part of the cross bill seems to be foreign to the subject-matter of the suit. The bill is filed to have a receiver appointed to administer the New Jersey business of the insolvent corporation. So far as the answer and the cross bill are directed to matters pertaining to the right to have such an appointment made, it is entirely proper; but the other matters contained in the pleadings which are designed to obtain the order of this court in respect to the conduct of the New Jersey receiver are not germane to the purpose sought to be accomplished by the bill. Mr. Taggert undoubtedly, as the representative of the general body of stockholders, has a right to the aid of this court in compelling the receiver here to promptly and properly perform his duty. But this object can be accomplished by a petition presented to the court. However, the receiver here, for the purpose of a speedy deliverance of this court upon the question presented by the cross bill, is willing to regard the bill as a petition, and has therefore fully answered it. I will therefore proceed to consider the points involved. One of the prayers of the cross bill is that the New Jersey receiver shall be directed to sue in the name of the New Hampshire assignee. It is apparent that the granting of this prayer would establish a condition entirely novel in the administration of affairs by an ancillary receiver. The fact that a receiver has been appointed in this jurisdiction is the best evidence that in the judgment of the court the presence of a local officer is expedient to gather in the assets here, so that those assets will be under the control of the court, whose officer this receiver is. A suit in the name of the foreign receiver would be exactly the same as a suit by that receiver himself. The receiver here would be no more than the attorney in fact of that officer, not even subject to the direction of this. court either in the collection or the distribu tion of the money collected. Mr. Gray would be merely a receiver in name. The same condition of affairs would result if another prayer of the cross bili should be granted, |