In this instruction the judge told the jury that their verdict should be the capital sum which "would represent the money which his mother had a reasonable expectation of receiving from him during the term of her natural life, and it would seem from the evidence in this case that she did not get over six dollars per week."

Defendant's counsel argues that this comes under the ban of this court's decision in Hackney v. Del. & Atl. Tel. Co., 69 N. J. Law, 335, at page 337, 55 Atl. 252, where Justice Fort said, speaking of the verdict in that case:

be operated, the company will not be heard,ceiving that, and then capitalize that in a fixed to complain that a person passing over the sum, and let that be your verdict." railroad tracks at the crossing was not entitled to assume that the gates were in good and proper order and would be duly and properly operated, especially as there was no notice present bearing an inscription that the gates were out of order. This act may be said to be equally as strong for the plaintiff as the prior one, because it provides that in the situation in which this plaintiff's intestate found himself the action is not barred because of his failure "to stop, look and listen before passing over such crossing," while the former provides that whether he "was or was not guilty of contributory negligence shall be a question to be determined by the jury."kin as a present value the whole amount which "That was giving to the widow and next of We also think that the facts of the case the jury might find the intestate, had he lived, under consideration are clearly distinguish- would have given to the widow and next of kin, able from those present in Lindsay v. Penn- in installments, at future periods, during the sylvania R. R. Co., 78 N. J. Law, 704, 75 Atl. whole of his life. Such an instruction does not 912. In that case the deceased was partially next of kin will come into the present possestake into account the fact that the widow and deaf, and therefore it was his duty in ap- sion of the fund with the future income thereproaching a railroad track, before entering of. What the plaintiff is entitled to recover is thereon, to rely especially upon his sense of a 'capital fund' (so to speak) which shall represent the present value of all the pecuniary sight. It appeared that he was familiar with loss which will fall upon the widow and next the crossing and of the movement of the of kin by the premature taking off of the intestate." train, and that while in a place of safety, four feet from the first rail of the track, he had an unobstructed view in the direction in which the train came that struck him. But in the case under consideration the view of the deceased was obstructed by a line of freight cars which stood within five feet of the crossing, and it was only when he passed the line of the obstructing freight cars that he was enabled to see the approaching train. Although there was a space of eight feet and three inches between the extreme end of the rails of the tracks, that is, from the track upon which the freight cars stood and the track upon which the train approached, we think that the circumstance that he was on a railroad track, a place of danger, without warning by the railroad company, a jury question was presented, whether the deceased, in proceeding onward, acted, under all the circumstances, with that degree of care and prudence which an ordinarily prudent person would have exercised under like circumstances.

[5] Aside from the question of contributory negligence, the defendant-respondent urges sustaining of the Supreme Court's decision because of alleged error in the trial judge's charge with respect to the measure of damages. That portion of the charge excepted to on the question of damages is as follows:

"You have to say in your best judgment, if you come to the question of damages, what capital sum-which is your verdict-whatever it may be, would represent the money which his mother had a reasonable expectation of receiving from him during the term of her natural life, and it would seem from the evidence in this case that she did not get over $6 per week. You have to say how many weeks you think she had a reasonable expectation of re

If any vice inheres in the first sentence of the portion of the charge excepted to, it may be said to be cured by the second sentence which was:

"You have to say how many weeks you think she had a reasonable expectation of receiving that, and then capitalize that in a fixed sum, and let that be your verdict."

This was equivalent to saying that the jury should say how many weeks they thought the mother had a reasonable expectation of receiving from decedent $6 or less-the jury fixing the number of weeks and the sum per week—and that the sum so ascertained should be capitalized.

True, the trial judge did not define the word "capitalize" as applied to the measure of damages with which he was dealing. Counsel for the defendant give the definition of "capitalize" from the Standard Dictionary, including: "(2) to convert (a periodical payment) into a sum in hand."

If the jury understood the meaning of the word "capitalize" as thus defined, and they are presumed to have so understood it, then they were given a technically correct, though not luminous, instruction.

The defendant did not prefer any requests to charge as to the law of damages, and relies solely upon the exception to the charge as delivered. We think the instruction is not reversible error.

[6] Defendant also urges that the Supreme Court's judgment should be sustained because there was error in the trial court's overruling an inquiry as to the earnings of the plaintiff's second husband, claiming that that would tend to show that plaintiff's pecuniary loss would not be as great as if her deceased deceased son were her sole support. The

question which was asked and overruled was
this:
"Q. 'He (referring to plaintiff's hus-
band) makes good wages, doesn't he?'"

nature of the case will permit, although the mortgage would be valid against creditors who became such after it was recorded.

[Ed. Note.-For other cases, see Chattel MortIf the question had been directed to show-gages, Cent. Dig. §§ 434-437; Dec. Dig. § 192.*] ing how much the plaintiff's second husband contributed toward her support, it doubtless 4. CHATTEL MORTGAGES (§ 192*)—RECORDING

would have been error to overrule it; but the overruling of the introductory question could not in and of itself have been harmful to the defendant.

The other alleged errors we think unsubstantial. The judgment of the Supreme Court should be reversed, to the end that the judgment of the circuit court shall stand.

(83 N. J. Eq. 459)
BOLLSCHWEILER

V. PACKER HOUSE
HOTEL CO. et al. (No. 37-191.)

-TIME-STATUTORY REQUIREMENTS.

The fact that the delay was occasioned by the unexpected absence of the attorney from his office on other legal matters does not render the mortgage valid, since a reasonable explanation for the delay does not satisfy any statutory requirement for immediate record.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 434-437; Dec. Dig. § 192.*]

5. CHATTEL MORTGAGES (§ 192*)-RECORDING -TIME-STATUTORY REQUIREMENTS.

Even if it be held that the contract did not become effective until its execution was approved by the attorney, the delay of one day in recording the mortgage after the return of the

(Court of Chancery of New Jersey. Oct. 1, attorney was, under the circumstances, a failure

.1914.)

SION.

The provision of P. L. 1913, p. 32, excepting from a prohibition of purchases of corporate stock by another corporation purchases authorized by the Corporation Act, applies to the purchase by a corporation of stock necessary for its business, authorized by act of the same date (P. L. 1913, p. 28) which amended section 49 of the Corporation Act (P. L. 1896, p. 293). [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1531-1534; Dec. Dig. § 377.*] 3. CHATTEL MORTGAGES (§ 192*)-RECORDING -TIME-STATUTORY REQUIREMENTS.

to comply with the statutory requirement for immediate record.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 434-437; Dec. Dig. § 192.*]

6. CHATTEL MORTGAGES (§ 90*)-RECORDINGAFFIDAVIT.

If the contract was so essential to the mortgage that the latter did not become effective until the execution of the former, the affidavit for the recording of the mortgage, which mentioned the other consideration, but made no mention of the contract, was defective under 1 Comp. St. 1910, p. 463, § 4, requiring such affidavit to set out the consideration of the mortgage and as nearly as possible the amount due and to become due thereon.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 168-173; Dec. Dig. § 90.**]

Suit by Albert Bollschweiler against the Packer House Hotel Company and others for the appointment of a receiver for an insolvent corporation. Appeal from the determination of the receiver allowing and disallowing certain claims against the corporation. Determination of receiver sustained in part and in part overruled.

Joseph E. Stricker, of Perth Amboy, for receiver. John A. Coan, of South Amboy, and James S. Wight, of Perth Amboy, for exceptant Peterson. T. H. Brown, of Jersey City, for exceptant Taylor.

EMERY, V. C. I will state briefly the conclusions reached on the hearing of the appeals on the claims of Mallon and Taylor.

Where a chattel mortgage was given to secure the payment of notes executed and delivered on the same day as the mortgage, and also the payment of other sums which might become due under the terms of an agreement between the parties, which agreement was drawn at the time of the execution of a chattel mortgage, but sent to the other parties thereto to be signed [1, 2] 1. The claim of William P. Mallon by them, and was returned two days later to as allowed by the receiver must stand. The the attorney who had drawn the papers, at notes of the insolvent corporation on which which time the certificate of the authority of the notary who took the acknowledgment was also it is based are not, as claimed by the exceptreceived, the failure to record the mortgage un- ants, accommodation paper. They were givtil the fifth day after its execution, whether it en partly in consideration of the surrender be regarded as delivered on the date of its execution or as delivered in escrow then to become by Mallon of notes of equal amount of the effective upon the execution of the contract, ren- Packer House Company, which latter comdered it invalid against those who became cred-pany at the same time conveyed to the initors prior to the recording thereof, under 1 solvent corporation all its assets by bill of Comp. St. 1910, p. 463, § 4, requiring the imme

diate recording of a mortgage, which is con- sale. The fact that it was also part of the strued to require recording as quickly as the consideration that the stock of the Packer *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Brewing Company and John N. Peterson was Mr. Gilbert, the attorney of the brewing comdated March 1, 1913, and conveyed all the pany, who acted for them in arranging the chattels then in the hotel known as the contract. The papers were left with him Packer House in Perth Amboy, or to be at his office in New York upon their execuafterwards added to or substituted for these tion on Saturday, March 1, 1913. After the chattels. These were the chattels which had execution of the mortgage and contracts, Mr. been purchased by bill of sale from the Gilbert, being satisfied that the brewing comPacker House Company, executed and deliv- pany would approve, delivered checks for ered on the same day to the Packer House the money to be advanced by the brewing Hotel Company, in connection with the de- company on account of the purchase price on livery of the notes on this purchase, above the transfer from the old company to the referred to, which also took place on the new company, and this transfer was comsame day, but was a separate and independ- pleted independently and subsequently on ent transaction. Pabst Brewing Company the same day. The execution of the mortand Peterson supplied the money which was gage took place on Saturday after the clospaid on the purchase, and this chattel mort-ing of the public offices, and Mr. Gilbert, gage was given in part to secure them for before whom as notary public the affidavit the money advanced in cash, which was paid as to the consideration of the chattel mortover that day to the vendors, who at the gage had been taken, gave directions for prosame time received the new company's notes curing this certificate on the Monday followin substitution for the old company's notes ing, and also on Saturday mailed to the as above stated. Mallon and Taylor do not Pabst Brewing Company in New York the appear to have had any knowledge of the contracts for their execution and return to proposed mortgage given to secure the money him in New York. On Sunday Mr. Gilbert advanced to make the cash payments to them was called to Albany to attend to a case in on the transfer. On the day of executing the Court of Appeals of New York, and at the mortgage, an affidavit as to its considera- the time expected to return on Monday. On tion was taken by Peterson, in which this con- Monday, March 3d, the brewing company, by sideration is stated to have been "$4,000 there- its letter of that date, returned two signed of money actually loaned by the mortgagees copies of the contract to Mr. Gilbert's office. in order to enable the mortgagor to pay part Whether this letter was received on March of the purchase price of the property herein 3d or March 4th does not appear. On March described. The remaining $4,000 to secure 3d the certificate of the county clerk to Mr. the mortgagee, Peterson, for his indorsement Gilbert's notarial authority was also of a note made by the Packer House Hotel ceived at his office. Mr. Gilbert was unexCompany and discounted with the First Na-pectedly detained at Albany and did not tional Bank of Perth Amboy, N. J., in order to raise additional funds to meet the balance of the purchase price for the property herein described," and "that there is actually due on the mortgage $4,000, and in the event of the failure of the mortgagor to pay the note indorsed by Peterson, then the additional sum of $4,000 will be due, making in all the sum of $8,000." There was no reference in the affidavit to any other consideration of the mortgage. The mortgage itself, however, is by its term conditioned not only for the payment of the sum of $8,000, on demand with interest, but is also upon condition that the mortgagor "pay all other sums which may be due or become due by it to the parties of the second part, or either of them, for merchandise sold to it by either of them, and shall also fully comply with the terms of an agreement between the parties, bearing even date herewith, for the sale of Pabst beer and other merchandise exclusively." This agreement is only referred to, but is not set out, in the mortgage, and the affidavit does not refer to it as constituting part of the consideration. It appears by the evidence that such an agreement to be executed in triplicate was drawn at the time of the execution of the mortgage, signed by the mortgagor and Peterson, and was to be signed by the Brewing Company. The mortgage and contracts were left with

return to his office until Wednesday, March 5th. He does not seem to have given, either before leaving for Albany or while there, any directions as to the forwarding of the chattel mortgage for record after procuring the clerk's certificate, and the return of the contracts executed. The transaction had been under his exclusive charge and the chattel mortgage with the contract remained in his office until his return on March 5th, and on that day he sent the chattel mortgage by mail to the county clerk of Middlesex county, where it was received and recorded on March 6th, at 8 a. m.

Five days thus elapsed between the execution and the recording of the mortgage, and treating the direction of the statute as to "immediate recording" to mean as declared by V. Ch. Pitney in Roe v. Meding, 53 N. J. Eq. 358, 359, 368, 30 Atl. 587, 590, "as quickly as the circumstances of the case and the character of the chattels will permit," or as declared by the Appellate Court in the same case to be, "as soon as may be by reasonable dispatch under the circumstances of the case," the question of fact to be decided is whether, applying this test, the chattel mortgage, under the circumstances of the case, was "immediately recorded" as required by the statute. On the part of the mortgagee, it is claimed that the original delivery of the mortgage on Saturday, March 1st, to Mr. Gi!

ute require, or a recording "as soon as may be" or "with reasonable dispatch," as construed by the courts.

bert, was in escrow only; that the mortgage, not, in my judgment, as against these credas appears by the terms of it, was to secure itors, make the recording or sending for recnot only the payment of money, but the per- ord after this delay, either an "immediate formance of a written agreement therein re-recording" as the express terms of the statferred to; that this agreement did not become effective until the agreement itself was signed by Pabst Brewing Company and not until after its execution had been approved personally by Mr. Gilbert, in whose hands the chattel mortgage had been left in escrow; that, as he had no opportunity to give his approval until his return on March 4th, the question as to delay is reduced to the delay of a single day in sending the mortgage by mail from New York.

In the cases referred to by counsel, as adopting by construction the qualification "unless the delay is explained," it appears that prima facie the delay in recording was such as to preclude its being considered as an "immediate recording," and the fact that no explanation was given was referred to, not by way of importing a qualifying clause [4] And it is further insisted that the un-into the statute, but by way of confirming expected delay in not sending the mortgage the conclusion justified by the facts which on Monday, March 3d, has been reasonably did appear. This seems to be the express explained, and that under the decisions such declaration in these cases relied on. Dunreasonable explanation of the delay in re- ham v. Cramer, 63 N. J. Eq. 151, 158, 51 Atl. cording satisfies the statute. In my judg- 1011 (Grey, V. C., 1902); Brockhurst v. Cox, ment, the contention that delay "reasonably 71 N. J. Eq. 703, 706, 64 Atl. 182 (Garrison, explained" satisfies the statute cannot be V. C., 1906). allowed. The statute itself requires "imme- Treating the case as one where the delivdiate" recording, and, as construed by the ery of the mortgage was suspended until the courts, recording "as soon as may be with execution of the contract by the brewing reasonable dispatch under the circumstances company, this took place on March 3d, on of the case." This is a different statutory which day also the clerk's certificate was rule from "immediately recording, unless the procured. The agreements were to be exdelay be explained." The delay may be executed in triplicate. On Saturday Mr. Gilplained, and this explanation may be entirely satisfactory, as it is in this case, so far as the parties to the mortgage and their attorney, to whom it was delivered for record, are concerned. But that is an entirely different question, I take it, from whether, as between the creditors of the mortgagor and the mortgagee, the mortgage was, under the circumstances of the case, recorded either as quickly as the circumstances permitted, or with reasonable dispatch. Circumstances of the case which, among others, have a bearing on the question of "reasonable dispatch," are these: The mortgaged chattels, owned by a New Jersey corporation and located in New Jersey, were conveyed to the mortgagor on March 1st by bill of sale delivered in New York City, at the office of a New York attorney, and the notes representing part of the purchase money, or arising out of the purchase, were then delivered to the creditors, who became creditors of the mortgagor on that date, and without, so far as it appears, any knowledge as to a proposed mortgage to be given on the property sold, to secure the payment of portion of the purchase money paid on the transfer to the person or persons who had advanced it for the mortgagee. The chattel mortgage was executed and acknowledged on March 1st, but in New York and before an officer of that state, which required a delay of at least a day for procuring an official certificate to the acknowledgment. The additional delay in recording or sending for record arose by reason of the New York attorney's engagements in the courts of New York. While this explains the delay, it does

bert mailed all three copies (executed by the hotel company and Peterson) to the brewing company, who were to execute all three, and, as appears by the brewing company's letter to Mr. Gilbert of March 3d, to return only two of them to him. The brewing company apparently retained the third copy, and on the mailing of the two signed copies to Mr. Gilbert, for delivery to the other parties, the contract was complete. The retention of the chattel mortgage from record or the failure to send it for record either by mail or messenger on the morning of the 4th was due to the retention of all the papers in Mr. Gilbert's office, pending his return, and his apparent failure or omission to give any directions in relation to the matter during his unexpected absence. He intended and expected, as he says, to be at his office on Monday, and had he been there the mortgage would undoubtedly have been sent or mailed on the 3d or the morning of the 4th. Delay beyond this time, under all the circumstances proved in this case, seems to me to have been a failure to record the mortgage either "as soon as may be" or with “reasonable dispatch." The fact that our courts allow "reasonable dispatch" under the circumstances to be treated as "immediate recording" under the words of the statute, and have thus by construction extended its terms to a reasonable limit, requires, I think, that in the application of the statute, under this construction, we should continue to keep in mind that the language to be construed is still the direction for "immediate recording," not these words as qualified by an express statutory direction for "reasonable dispatch,"