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ing, nor afford any basis for any presumption of a mutual understanding, that she should receive pay, but, on the contrary, that its only legitimate tendency is to show an express understanding that she was to remain without pay.

But we think that this part of the charge was correct, and that the circumstances statwere supported by the evidence, and therefore that the jury might well infer and find a mutual expectation of reasonable compensation. The exception to what the court charged about the payments made from time to time, and the submission of the question whether they were payments under any agreement, etc., is disposed of by what we said about those payments in disposing of the motion.

[4] The exception to the court's giving additional instructions to the jury without being asked is frivolous.

[5] At the close of the charge the court court urged upon the jury the importance of agreeing, and said, among other things, that neither party could afford the expense of another trial very well, and, unless it was necessary, they should not be subjected to it. On exception being taken to this, the court at once told the jury not to consider it at all as of any importance in their further deliberations. It is now claimed that this language could have had no other effect than to give the jury to understand that it ought to arrive at some kind of a verdict right or wrong, and that the court's retraction did not cure the error.

MORAN v. SOUTHARD. (Supreme Judiby Annie L. Moran against Frank Southard. cial Court of Maine. July 25, 1911.) Action Verdict for plaintiff, and defendant moves for a new trial. Motion overruled. Louis C. Stearns and Louis C. Stearns, Jr., for plaintiff. Martin & Cook, for defendant.

PER CURIAM. A majority of the qualified justices are of opinion that the verdict, which was for the plaintiff, was warranted by the evidence.

TRUSTEES OF DUMMER ACADEMY v. BANKS. (Supreme Judicial Court of Maine. July 14, 1911.) Assumpsit by the Trustees of Banks. the Dummer Academy against Charles E. Verdict for plaintiff, and defendant moves for a new trial. Motion overruled. John H. Pierce, for plaintiff. Eaton, Keene & Gardner, for defendant.

shows sufficient undisputed testimony to warPER CURIAM. The record in this case rant a jury in finding for the plaintiff. Therefore the verdict, which was for the plaintiff, cannot be disturbed. Motion for a new trial overruled.

(78 N. J. E. 298)

ATLANTIC CITY R. CO. v. WOOD et al. (Court of Errors and Appeals of New Jersey. March 6, 1911.) Appeal from Court of Chancery. Suit by the Seacoast Railroad Company and the Atlantic City Railroad Company against R. Francis Wood and others. Decree for complainants (65 N. J. Eq. 530, 56 Atl. 337), and Affirmed. Gilbert Collins, for appellant. Robthe Atlantic City Railroad Company appeals. ert H. McCarter, for respondents.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion of Vice Chancellor Reed. Seacoast R. Co. v. Wood, 65 N. J. Eq. 530, 56 Atl. 337.

March 6, 1911.) Appeal from Court of Chan-
cery. Bill by the Atlantic Refining Company
against Josiah Stokes. Decree for defendant
(77 N. J. Eq. 119, 75 Atl. 445), and complain-
appellant. Wilson & Carr, for respondent.
ant appeals. Affirmed. French & Richards, for

But it is the duty of the trial court to do (78 N. J. E. 301) what it properly can to procure an agree-(Court of Errors and Appeals of New Jersey. ATLANTIC REFINING CO. v. STOKES. ment, and in the performance of that duty it should be allowed a liberal discretion, but which, of course, must be exercised according to law, as all judicial discretion must be; and this the defendant does not deny, but says that the court abused its discretion in going the length it did. But we do not think so, but that it was well within its discretion to call the attention of the jury to the matter of expense as one reason for agreeing, but not whether right or wrong, which it could not reasonably have understood, for the court had repeatedly told them to adhere to the testimony.

Judgment affirmed.

MEMORANDUM DECISIONS

HAYFORD v. DAVIS. (Supreme Judicial Court of Maine. July 15, 1911.) Action by William P. Hayford against Verner H. Davis. Verdict for plaintiff, and defendant moves for a new trial. Sustained on condition. Frederick R. Dyer, for plaintiff. Tascus Atwood, for defer lant.

PER CURIAM. Motion sustained, unless plaintiff remits all of the verdict in excess of

PER CURIAM. The decree appealed from is affirmed, for the reason stated in the opinion of Vice Chancellor Leaming.

(78 N. J. E. 581)

BAYVIEW CEMETERY ASS'N et al. v. COLE et al. (Court of Errors and Appeals of New Jersey. June 19, 1911.) Appeal from tery Association and others against Margarette Court of Chancery. Bill by the Bayview CemeB. Cole and others. Decree for complainants, and defendants appeal. Affirmed. Edward A. S Man, for appellants. Gilbert Collins and John J. Treacy, for respondents.

PER CURIAM. The decree appealed from is affirmed, for the reason stated in the opinion of Vice Chancellor Garrison.

(78 N. J. E. 582)

BIJUR v. STANDARD DISTILLING & DISTRIBUTING CO. (Court of Errors and Appeals of New Jersey. June 19, 1911.) Appeal from Court of Chancery. Bill by Nathan Bijur against the Standard Distilling & Distributing Company. Decree for defendant (74 N. J. Eq. 546, 70 Atl. 934), and complainant appeals. Affirmed. Benjamin N. Cardozo, for appellant. Levy Mayer, for respondent.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opin

N. J.)

(78 N. J. E. 294)

MEMORANDUM DECISIONS

CUMBERLAND LUMBER CO. et al. v. CLINTON HILL LUMBER & MFG. CO. (Court of Errors and Appeals of New Jersey. March 6, 1911.) Appeal from Court of Chancery. Bill by the Cumberland Lumber Company and others against the Clinton Hill Lumber & Manufacturing Company. Decree for complainant, and defendant appeals. Affirmed. Frank E. Bradner, for appellant. Coult & Smith, for respondent.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion of Vice Chancellor Emery.

(82 N. J. L. 523)

DEUBEL et ux. v. MILLARD CONST. CO. (Court of Errors and Appeals of New Jersey. Nov. 20, 1911.) Error to Supreme Court. Action by Frederick Deubel and wife against the Millard Construction Company. Judgment for plaintiffs in the Supreme Court (80 N. J. Law, 98. 77 Atl. 611), and defendant brings error. Affirmed. Joseph M. Noonan, for plaintiff in error. R. L. Lawrence, for defendants in error. PER CURIAM. The judgment under review is affirmed, for the reasons stated in the opinion of Mr. Justice Reed in the Supreme Court. 80 N. J. Law, 98, 77 Atl. 611. In order to guard against an implication that might be drawn from the language of the opinion that the case of Beseman v. Penn. R. R. Co., 50 N. J. Law, 235, 13 Atl. 164, affords any justification for a direct invasion of private property, we desire to cite the case of Costigan v. Penn. R. R. Co., 54 N. J. Law, 233, 23 Atl. 810, in which the distinction between injuries necessarily incident to the operation of a steam railroad and the direct invasion of private property is pointed out by Mr. Justice Depue.

(78 N. J. E. 295)

EDWARDS v. OAKES. (Court of Errors and Appeals of New Jersey. March 6, 1911.) Appeal from Court of Chancery. Bill by Frank C. Edwards against Edward Oakes. Decree for complainant, and defendant appeals. Affirmed. Edward Oakes, for appellant. Albert C. Pedrick, for respondent.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion

of Vice Chancellor Stevenson.

(78 N. J. E. 296)

FRASER V. FRASER.

(Court of Errors and Appeals of New Jersey. March 6, 1911.) Appeal from Court of Chancery. Bill by Mary Fraser against James K. Fraser. Decree for complainant (77 N. J. Eq. 205. 75 Atl. 979), and defendant appeals. Affirmed. Scott Scammell, for appellant. Roberson & Demarest, for respondent.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opin

ion of Vice Chancellor Walker

(78 N. J. E. 586)

1133

of Nelson S. Hibbler, deceased, on his resignation from office and the appointment of his successor. From an order denying application for further allowance (78 Atl. 188), the trustee appeals. Affirmed. Collins & Corbin, for appellant. James A. Gordon, for respondent.

PER CURIAM. The order appealed from will be affirmed, for the reasons stated in the opinion delivered in the court below by Walker, Vice Ordinary, 78 Atl. 188.

dissent.
PARKER, BERGEN, and VOORHEES, JJ.,

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JOURDAN v. BURSTOW et al. (Court of Errors and Appeals of New Jersey. June 19, 1911.) Appeal from Court of Chancery. Bill by Robert Jourdan against Walter Burstow and others. Decree for defendants (76 N. J. Eq. 55, 74 Atl. 124, 139 Am. St. Rep. 741), and plaintiff appeals. Affirmed. Frank Sommer, for appellant. Riker & Riker, for respondents.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion of Vice Chancellor Stevens.

(78 N. J. E. 580)

KAYHART v. WHITEHEAD et al. (Court of Errors and Appeals of New Jersey. June 19, 1911.) Appeal from Court of Chancery. Bill by Edward Kayhart, executor, against Adeline Whitehead and others. Decree for complainant (77 N. J. Eg. 12, 76 Atl. 241), and dedabury, for appellants. Charles A. Rathbun, fendants appeal. Affirmed. Harrison P. Linfor respondent.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion of Vice Chancellor Emery.

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(78 N. J. E. 306)

PER CURIAM. The decree appealed from GOELZ v. CARLOW. (Court of Errors and is affirmed, for the reason stated in the opinion Appeals of New Jersey. June 19, 1911.) Ap- of Vice Chancellor Howell. peal from Court of Chancery. Bill by Herman Goelz against Benjamin W. Carlow. Decree for defendant, and complainant appeals. firmed. William S. Stuhr, for appellant. Lum, Tamblyn & Colyer, for respondent.

Af

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion of Vice Chancellor Stevenson.

(79 N. J. E. 230)

In re HIBBLER'S ESTATE.

(Court of Errors and Appeals of New Jersey. Nov. 20. 1911.) Appeal from Prerogative Court. Proceeding to fix the compensation of William S. Voorhies, executor and trustee under the will

LIONEL C. SIMPSON PLUMBING & HEATING CO. v. GESCHKE. (Court of Errors and Appeals of New Jersey. March 6, 1911.) Appeal from Court of Chancery. Bill by Lionel C. Simpson Plumbing & Heating Company against Edward Geschke. Decree for complainant (76 N. J. Eq. 475, 79 Atl. 427). and defendant appeals. Affirmed. Ralph W. E. Donges, for appellant. Howard L. Miller, for respondent.

PER CURIAM. The decree appealed from is affirmed, for the reason stated in the opinion of Vice Chancellor Leaming.

(82 N. J. L. 530)

LOUDENSLAGER v. ATLANTIC CITY.
(Court of Errors and Appeals of New Jersey.
Nov. 20, 1911.) Error to Supreme Court. Cer-
tiorari by William B. Loudenslager to review
a resolution of the common council of Atlantic
City. From a judgment setting aside such reso-
lution (80 N. J. Law, 658, 77 Atl. 1060), de-
fendant brings error. Affirmed. Harry Woot-
ton, for plaintiff in error. John B. Slack, for
defendant in error.

PER CURIAM. The judgment under review
herein should be affirmed, for the reasons set
forth in the opinion delivered by Mr. Justice
Voorhees in the Supreme Court. 80 N. J. Law,
658, 77 Atl. 1060.

(78 N. J. E. 585)

MCNULTY v. MCCARTHY et al. (Court of
Errors and Appeals of New Jersey. June 19,
1911.) Appeal from Court of Chancery. Ac-
tion by John R. McNulty against Eugene J.
McCarthy and others. From a decree of the
Chancery Court (81 Atl. 568) for complainant,
defendants appeal. Affirmed. Edward J. Luce,
for appellants. Charles H. Hartshorne, for re-
spondent.

PER CURIAM. The decree appealed from is
affirmed, for the reasons stated in the opinion
of Vice Chancellor Stevenson. 81 Atl. 568.
(82 N. J. L. 531)

MARTER v. REPP et al.

(Court of Errors
and Appeals of New Jersey. Nov. 20, 1911.)
Error to Supreme Court. Action by Ezra B.
Marter against Alfred B. Repp and others.
Judgment for plaintiff in the Supreme Court
(80 N. J. Law, 530, 77 Atl. 1030), and defend-
ants bring error. Affirmed. John Boyd Avis,
for plaintiffs in error. A. H. Swackhamer, for
defendant in error.

PER CURIAM. The judgment under review
herein affirmed, for the reasons expressed in
the opinion delivered by Mr. Justice Garrison
in the Supreme Court.

(79 N. J. E. 215)

tional Bank of Burlington. Decree for com-
plainant (77 N. J. Eq. 208, 77 Atl. 410), and
defendant appeals. Affirmed. Ernest Watts,
for appellant. Bleakly & Stockwell, for re-
spondent.

PER CURIAM. The decree appealed from
is affirmed, for the reasons stated in the opinion
of Vice Chancellor Walker. 77 Atl. 410.

(82 N. J. L. 540)

ROCKWELL v. AMERICAN LAW BOOK
CO. (Court of Errors and Appeals of New Jer-
sey. Nov. 20, 1911.) Error to Supreme Court.
Action by W. Locke Rockwell against the Amer-
ican Law Book Company. Judgment for plain-
tiff in the Supreme Court (76 Atl. 334), and de-
fendant brings error. Affirmed. Randolph Per-
kins, for plaintiff in error. Hartshorne, Insley
& Leake, for defendant in error.

PER CURIAM. The judgment under review
herein should be affirmed, for the reasons ex-
pressed in the opinion delivered by Mr. Justice
Swayze in the Supreme Court. 76 Atl. 334.

(78 N. J. E. 589)

ROGERS v. BAILEY. (Court of Errors and
Appeals of New Jersey. June 19, 1911.) Ap-
peal from Court of Chancery. Bill by Freder
ick M. Rogers against Alice C. Bailey. Decree
for defendant (76 N. J. Eq. 29, 73 Atl. 243),
and complainant appeals. Affirmed. Frank
Benjamin, for appellant. Benjamin G. Demar-
est, for respondent.

PER CURIAM. The decree appealed from
is affirmed, for the reasons stated in the opin-
ion of Vice Chancellor Stevens.

(79 N. J. E. 219)
SCHOENFELD v. WINTER. (Court of Er-
rors and Appeals of New Jersey. Nov. 21,
1911.) Appeal from Court of Chancery. Suit
by Abraham Schoenfeld, surviving partner,
against Michael Winter. From a decree of the
Court of Chancery, overruling a demurrer to
the complaint (74 Atl. 975). defendant appeals.
Affirmed. See, also, 73 Atl. 42. William A.
spondent.

MAYOR & ALDERMEN OF JERSEY CITY Lord, for appellant. Osborne & Astley, for re-

(78 N. J. E. 300)

v. JERSEY CITY WATER SUPPLY CO.
(Court of Errors and Appeals of New Jersey.
PER CURIAM. The decree appealed from
Nov. 21, 1911.) Appeal from Court of Chan-will be affirmed, for the reasons stated in the
cery. Suit by the Mayor and Aldermen of Jer- opinion filed in the court below by Vice Chan-
sey City against the Jersey City Water Supply cellor Howell. 74 Atl. 975.
Company. From a decree confirming a master's
report and an order supplemental thereto, the
Jersey City Water Supply Company appeals.
Order and so much of the decree as is involved
in the present appeal affirmed. Collins & Cor-
bin, for appellant. James J. Murphy and
James B. Vredenburgh, for respondent.

TAYLOR v. PUBLIC SERVICE CORPO-
RATION OF NEW JERSEY. (Court of Er-
rors and Appeals of New Jersey. March 6,
1911.) Appeal from Court of Chancery. Bill
by Alexander M. Taylor against the Public
PER CURIAM. So much of the decree as is Service Corporation of New Jersey. Decree for
involved in the present appeal will be affirmed, complainant (75 N. J. Eq. 371, 73 Atl. 118).
upon the opinion delivered by the Vice Chancel and defendant appeals. Affirmed. L. D. How-
lor in the court below. We think that the pe-ard Gilmour, for appellant. George P. Rust,
for respondent.
tition of the appellant, praying that the mak-
ing of the final decree in this cause be with-
held until the determination of the question
whether the $500,000, authorized by the third
item of the contract between the parties to be
retained by the city until the performance by
the contractor of one or the other of the con-
ditions therein recited, is now due and payable
to the contractor, was properly refused; and
we rest this conclusion upon the grounds set
forth in the memorandum opinion of the learn-
ed Vice Chancellor delivered in disposing of
the application. The order denying the appli-
cation will also be affirmed.

PARKER, J., dissenting.
(78 N. J. E. 297)

PARTRIDGE V. MECHANICS' NAT.
BANK OF BURLINGTON. (Court of Errors
and Appeals of New Jersey. March 6, 1911.)
Appeal from Court of Chancery. Bill by Har-

PER CURIAM. The decree appealed from is
affirmed, for the reason stated in the opinion
of Vice Chancellor Garrison.

(79 N. J. E. 225)

WOODRUFF et al. v. WHITE et al. (Court
of Errors and Appeals of New Jersey. Nov.
20, 1911.) Appeal from Court of Chancery.
Suit by Philemon Woodruff and others, execu-
tors and trustees, against Dora De W. White
and others, for instructions as to the duties
of the executors and trustees. From a decree
of the Chancery Court (79 Atl. 304), defend-
ants appeal. Affirmed. John H. Reynolds, J.
W. De Yoe, F. Scott, Robert Williams, and G.
A. Hunziker, for appellants. W. I. Lewis and
Humphreys & Sumner, for respondents.

PER CURIAM. The decree appealed from
will be affirmed, for the reasons stated in the
opinion filed in the Court below by Vice Chan

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MEMORANDUM DECISIONS

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ZABRISKIE v. SULLIVAN. (Court of Errors and Appeals of New Jersey. Oct. 19, 1911.) Error to Supreme Court. Action by Augustus Zabriskie against John Sullivan. Judgment for plaintiff, and defendant brings error. Affirmed. For opinion of Supreme Court, see 80 N. J. Law, 673, 77 Atl. 1075. James R. Bowen, for plaintiff in error. Herrmann & Steelman, for defendant in error.

PER CURIAM. The judgment under review herein should be affirmed, for the reasons stated in the opinion delivered by Mr. Justice Voorhees in the Supreme Court.

COMMONWEALTH V. HUSTON. (Supreme Court of Pennsylvania. May 25, 1911.) Appeal from Superior Court. John H. Sanderson and others were convicted of conspiracy to defraud the Commonwealth, and Joseph M. Huston appeals. Affirmed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER. ELKIN, STEWART, and MOS

1135

CHZISKER, JJ. George S. Graham, Samuel M. Clement, Jr., and A. S. L. Shields, for appellant. J. E. B. Cunningham, Deputy Atty. Gen., James Scarlet, John Fox Weiss, Dist. Atty., John E. Fox and John C. Bell, Atty. Gen., for the Commonwealth.

PER CURIAM. The order allowing this appeal, limited the argument to the assignments of error which relate to the action of the court of quarter sessions in sending the jury back for further deliberations, after a verdict of "guilty of defrauding the commonwealth" had been presented to the court, and the foreman of the jury had attempted an explanation of the verdict, in a colloquy between himself and the trial judge. After a consideration of the whole colloquy, as it appears in the reporter's notes of the case, a majority of the court are of opinion that the judgment appealed from should be affirmed, on the opinion of the Superior Court. Judgment affirmed.

UNITED STATES, for Use of LANHAM et al., v. CARPENTER et al. (Superior Court of Delaware. New Castle. June 16, 1905.) Action by the United States, for the use of James C. Lanham and Galbreith B. Lanham, trading as James C. Lanham & Bro., against Joseph L. Carpenter, Jr., and others. Verdict for defendants. See, also, 4 Pennewill, 487, 60 Atl. 863. Argued before LORE, C. J., and GRUBB and PENNEWILL, JJ. T. Bayard Heisel, Alex. B. Cooper, and E. S. Douglass, for plaintiffs. J. Harvey Whiteman and William B. Prentiss, for defendants.

PENNEWILL, J. (charging the jury). Gentlemen of the jury: The court instruct you in this case to return a verdict in favor of the defendants. (Verdict for defendants.)

END OF CASES IN VOL. 81

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