argued I conclude that the direction of the court should be that the trustee, for the purposes of the several trusts included in these "items" of the will called the "grandchildren's trusts," is to take only such of the bonds and stocks specified in the several trusts as were left by the testator, and is not to supply bonds or stocks specified in the trusts, not left by the testator, from other bonds or stocks left by him; nor is he to pay in money, from the estate, the amount of the legacies "in bonds" which were not left in the estate. If there is any dispute as to whether any particular bonds or stocks left by the testator are to be taken as the particular bonds or stocks specified in the trust bequests, I will hear counsel further on this point. A memorandum will be filed later as to the other questions which have been submitted, but in the matter of the John D. Vail legacy I will postpone decision pending application to take further evidence, which is referred to in the briefs of his counsel.

Further Memorandum.

EMERY, V. C. Pursuant to the leave reserved in my opinion, a further hearing has taken place before me upon the question whether the bonds of the Fremont, Elkhorn & Missouri Valley Railroad Company, referred to in the bill, and held by the testator at the time of his death, pass to the trustee (to the amount of $100,000) under the several bequests of bonds of that description. The bonds of this company, held by the testator at the date of the will, were all subsequently surrendered by the testator to the company, and in place thereof the bonds held at the time of his death were given, together with some subsequently disposed of in his lifetime. There was no reorganization of the company leading to this exchange. The identity required in these cases, in order to pass by a specific bequest, is a substantial identity, and a change which leaves the thing to all intents and purposes as it was before does not effect ademption. The leading case is Oakes v. Oakes, 9 Hare, 666 (Vice Chancellor Turner, 1852). In this case there was a bequest of "all my Great Western shares, and all the other railway shares which I shall be possessed of at the time of my decease." Testator at the date of the will held 7,000 pounds in shares of the Great Western Railroad Company. Subsequently, under authority of an act of Parliament, these shares were converted into consolidated stock of the same company. It was said (page 672) that "the question is whether a testator has at the time of his death the same thing, existing, it may be in a different shape, yet substantially the same thing"; and the consolidated stock was held to pass by the bequest. The rule laid down in this case has been followed without question. Theobald, Wills (4th Ed.) p. 128.

I conclude that the bonds of this descrip

tion, left by the testator at his death, received in exchange for those held by him at the date of the will, pass by the bequest to the trustee. By reason of this conclusion, the amount left in the trusts is increased over the amount stated in my opinion.

(70 N. J. L. 512)

TILLYER v. MINDERMANN. (Supreme Court of New Jersey. Feb. 23, 1904.) QUO WARRANTO-LEAVE TO FILE INFORMATION-TITLE TO OFFICE.

1. Under the first section of the revised "Act relating to informations in the nature of a quo warranto" (P. L. 1903, p. 375), the granting of leave to file an information in the name of the Attorney General is not a matter of course, but rests in the sound discretion of the court.

2. On application made under the first section of the act (P. L. 1903, p. 375), the fact that the relator himself claims title to the office in question is not a controlling circumstance in favor of granting leave, since the fourth section of the act (P. L. 1903, p. 377) gives him the right to file an information in his own name if he believes himself lawfully entitled.

3. Under the circumstances of this case, leave to file an information in the name of the Attorney General is denied.

(Syllabus by the Court.)

Rule to show cause, on the relation of Lorenzo D. Tillyer, why an order of mandamus should not issue against Frederick W. E. Mindermann. Application denied.

See 55 Atl. 690.

Argued November term, 1903, before FORT and PITNEY, JJ.

Willard W. Cutler, for relator. Benj. W. Ellicott and John B. Vreeland, for defendant.

PITNEY, J. The relator, claiming to be entitled to the office of town clerk of the town of Dover, procured a rule to show cause why leave should not be granted to him to file an information in the nature of a quo warranto, in the name of the Attorney General, against the defendant, Mindermann, the incumbent of that office, in order to test the validity of the incumbent's title thereto.

The application is made under section 1 of the revised "Act relating to informations in the nature of a quo warranto" (P. L. 1903, p. 375), which corresponds in substance (so far as present purposes are concerned) with the first section of the act of March 17, 1795 (Gen. St. p. 2632). Under this section the granting of such an application is not a matter of course, but rests in the sound discretion of the court. Miller v. Utter, 14 N. J. Law, 84; Mitchell v. Tolan, 33 N. J. Law, 195; Bolton v. Good, 41 N. J. Law, 296; Roche v. Bruggemann, 53 N. J. Law, 122, 125, 20 Atl. 730; Miller v. Seymour, 67 N. J. Law, 482, 51 Atl. 719.

Prior to the act of 1884 (P. L. 1884, p. 320; Gen. St. p. 2633), the fact that the applicant himself claimed title to the disputed office

operated strongly in moving the court to allow the information to be filed. But by the terms of that act a bona fide claimant was permitted, as matter of right, to institute the procedure in his own name. Davis v. Davis, 57 N. J. Law, 80, 30 Atl. 184; Roberson v. Bayonne, 58 N. J. Law, 325, 329, 33 Atl. 734; Manahan v. Watts, 54 N. J. Law, 465, 488, 45 Atl. 813. The same provision, in substance, is found in section 4 of the present revision. P. L. 1903, p. 377. Therefore the circumstance that Mr. Tillyer claims title to the office now in question is not controlling upon the present application.

The charter of Dover (P. L. 1869, p. 1165, § 7) provides that the town clerk and other subordinate officers of the municipal government shall hold office only during the pleasure of the common council. The evidence taken in this case, pursuant to rule, shows that the usual, if not invariable, custom has been for the common council, upon organizing in the month of May in each year (shortly after the annual charter election), to select their clerk and other officers, presumably to hold office during the pleasure of the council. The relator was chosen as town clerk on May 13, 1901, and again on May 12, 1902. On each occasion he qualified and took office, serving in that capacity until May 11, 1903. On the latter date, against his protest, the council, in choosing officers pursuant to the custom, elected the incumbent to the office of town clerk, and the latter forthwith qualified and entered upon the duties of the office. Relator invokes two acts of the Legislature as establishing an official term of three years for the town clerk in all incorporated towns in this state. Each of these acts is entitled "An act respecting the term of office of the collector of taxes, town assessors and town clerk in towns." One was approved March 9, 1896, the other March 23, 1900. P. L. 1896, p. 55; P. L. 1900, p. 480. For reasons given in the opinion just delivered in the case of Vreeland v. Pierson, we doubt whether the act of 1896 can be properly construed as modifying the charter of Dover, but are of the opinion that the act of 1900 is valid, and has the effect of modifying the charter. Nevertheless, in the exercise of the discretion of the court, we have concluded that the present application should be denied, for the following reasons:

1. The evidence renders it clear that on each occasion when relator was chosen as clerk, and at all times prior to May, 1903, the common council and the relator, and all others concerned, acted in entire ignorance of the acts of 1896 and 1900, or, at least, in ignorance of any effect of those acts in modifying the charter of Dover. It was supposed by all, upon relator's appointment in 1901, and again in 1902, that he would serve during the pleasure of the council, or, at most, not longer than a year under either appointment. So far as appears, the acts of

1896 and 1900 were first brought to the attention of the council at the meeting of May 11, 1903. It is by no means to be presumed that relator would have been chosen as clerk had it been understood that, instead of holding the office subject to removal by the council at any time, he would hold it for three years, without power on the part of council to remove him. At the time of his removal, in May last, he had enjoyed the office and its emoluments for the utmost period that was contemplated at the time of his appointment.

2. It may be doubted whether, under the circumstances, relator is not estopped from claiming any longer term than was in contemplation when he was appointed. If not, it is because the statute of 1900, by its mere force, operated to override the intent of the parties. The situation thus created does not appeal strongly to the discretion of the court. 3. If relator is entitled to claim the benefit of the act of 1900, its effect must relate to the time of his first appointment in 1901, and his three-year term would expire in May next. The quo warranto proceedings, if contested, could hardly be brought to a conclusion before that time. His learned counsel, it is true, suggests an ingenious theory, which, if accepted, would enable relator to date the commencement of his three-year term from the time of his second appointment, in 1902, thus: His predecessor was first appointed clerk in May, 1899, and reappointed in May, 1900, serving until the time of relator's first appointment. By force either of the act of 1896 or of 1900, it is assumed the predecessor's term was in law extended until May, 1902, during the last year of which the relator is supposed to have been serving the unexpired term of his predecessor. Result, the relator's present term is said to commence in May, 1902, on which basis it would not expire until 1905. But this theory rests so entirely upon legal fictions as to be untenable. At the time of relator's first appointment, in 1901, his predecessor retired. What was intended at that juncture was a "removal at pleasure of council," under section 7 of the charter. Applying (in favor of relator) the provisions of the act of 1900, the transaction must be deemed a resignation by his predecessor, accepted by the council. Thereupon the same statute took effect upon relator, and entitled him to a term of three years from the time of his election. The act says nothing of unexpired terms. On the other hand, supposing relator to have entered upon a three-year term in 1901, he cannot treat his reappointment one year later as a resignation of his unexpired term and the commencement of a new term of three years. To permit this would enable an officer in such case to nullify the statutory limitation, and indefinitely extend his term by choosing favorable times to resign and secure reappointment. Coutant v. People, 11 Wend. 511; Bolton v. Good,

41 N. J. Law, 296, 298; Bird v. Johnson, 59 N. J. Law, 59, 61, 34 Atl. 929.

4. No public interest would be subserved by granting leave to the relator to file an information in the name of the Attorney General. On the contrary, it is plain from the evidence that the public business has already been much incommoded by the pendency of this controversy. Further litigation ought not to be encouraged.

For these reasons, the application is denied, and the rule to show cause is discharged, with costs.

(70 N. J. L. 517)

CLARK V. SEARING.

(Supreme Court of New Jersey. Feb. 23, 1904.) QUO WARRANTO-TOWN TREASURER-TITLE TO OFFICE.

1. Under special circumstances, the application made in this case for leave to file an information in the nature of a quo warranto, in the name of the Attorney General, is denied.

(Syllabus by the Court.)

Rule to show cause why leave to file an information in the nature of a quo warranto, in the name of the Attorney General, by Edward D. Clark, relator, against Edward M. Searing, should not be granted. Rule discharged.

See 55 Atl. 690.

Argued November term, 1903, before FORT and PITNEY, JJ.

Willard W. Cutler, for relator. Benj. W. Ellicott and John B. Vreeland, for respondent.

PITNEY, J. This is an application, made. under section 1 of the revised act relating to informations in the nature of a quo warranto (P. L. 1903, p. 375), for leave to file an information, in the name of the Attorney General, to test the title of the incumbent to the office of town treasurer of the town of Dover. The relator claims the same office. If he believes himself lawfully entitled thereto, he may, as a matter of right, file an information in his own name, under section 4 of the same act. The present application is addressed to the discretion of the court.

In all essential respects, the facts of the case are precisely similar to those presented in the case of Tillyer v. Mindermann, 55 Atl. 690, in which an opinion has just been delivered. The only difference is in the office involved, and the personnel of the parties. The legal situation is less favorable to the present relator. He claims to be entitled to the remnant of a three-year term as treasurer, by force of a general act that is claimed to modify section 7 of the charter of Dover (P. L. 1869, p. 1165). The only act relied on is "An act respecting the term of office of treasurer in towns," approved April 1, 1897 (P. L. 1897, p. 149). It declares that "the term of office of the town treasurer in the towns of this state shall be for the period

of three years from the time when said term shall commence, as now provided by law." It contains a general repealer of inconsistent legislation. A comparison of this statute with the act approved March 9, 1896, entitled "An act respecting the term of office of the collector of taxes, town assessor and town clerk in towns" (P. L. 1896, p. 55), shows a close similarity of phrase between them. For reasons expressed in the opinion of Vreeland v. Pierson (just decided) 57 Atl. 151, we have doubt whether this act has applicancy to towns where no term of office has been previously provided by law for the treasurer. This point was not presented in the case of Reid v. Gorsuch, 67 N. J. Law, 396, 51 Atl. 457, and is not concluded by that decision. It is not necessary to decide the question at this time, however, since all the reasons that moved us to deny the application for leave to file an information in Tillyer v. Mindermann exist in the present case.

The application will be denied, and the rule to show cause discharged, with costs.

(70 N. J. L. 447)

BALDWIN v. THOMPSON. (Supreme Court of New Jersey. Feb. 23, 1904.) NEGLIGENCE-INJURIES-DAMAGES-EXCESSIVE DAMAGES.

1. In an action for injuries to a boy of 10 years it appeared that when taken home after the accident he was in a stupor, had two scalp wounds, and was vomiting; that later he had a discharge from one of his ears, and was kept from school for 6 weeks; that from time to time he suffered with vomiting spells; that he complained of pains in his back, dizziness, and inability to straighten himself. One physician testified that his hearing was normal, but an ear specialist stated it was not quite so. Held, that a verdict for $1,500 was excessive, and $1,000 should be remitted.

Action by Frank Baldwin against John P. Thompson. Judgment for plaintiff. On rule to show cause why a new trial should not be granted. Rule made absolute unless plaintiff remit portion of verdict.

Argued November term, 1903, before GUMMERE, C. J., and DIXON, HENDRICKSON, and SWAYZE, JJ.

Vredenburgh, Wall & Vanwinkle, for plaintiff. Bedle, Edwards & Thompson, for defendant.

SWAYZE, J. The only question to be considered in this case is whether the damages are so excessive that a new trial is required. The plaintiff was a boy 10 years of age, and was injured by being thrown from a wagon by a collision with a wagon driven by the defendant's servant. The boy was taken home and attended by a physician the same afternoon. He was in a stupor, had two scalp wounds, was bleeding freely, and vomiting. Some days later there was a discharge from one of his ears. He was confined in his grandmother's house for a week, and was kept from school for six weeks after the ac

cident. He had occasional vomiting spells afterward and up to the time of the trial. His mother says that he vomited six or seven times. The accident occurred November 26, 1902, and the case was tried May 19, 1903. He complains of dizziness, and of pains in the middle of his back when he stoops to lace his shoes, and of inability to straighten himself. The most serious injury complained of was that the hearing of his right ear was affected. Upon this subject two physicians were examined for the plaintiff. The family physician testified that he had not examined the boy for diminution of hearing, but he was present when he was examined by the expert for the defendant; that the boy, with the drum of one ear covered, was asked to write certain words, and did it correctly; that upon the witness stand his hearing appeared to be normal; that he was apparently in good physical condition, except that he was not so stout as before the accident; that he would get his flesh back in five or six months, and his hearing also, if there was no interior trouble. Dr. Chambers, a specialist in diseases of the ear, was examined as a witness for the plaintiff, and, after detailing the tests made by him, testified that the left ear was perfectly normal, and the hearing of the right ear not quite normal. The verdict was $1,500.

In our judgment, the testimony does not warrant a verdict for that amount. We think that the plaintiff would be compensated with an award of $500, and the rule will be made absolute unless the plaintiff remits the excess over that amount.

1. Any duty of a school district to transport school children to and from school is a public duty, and their right to be so transported is a public right, so that, in the absence of a statute making the district liable, an action may not be maintained against it for personal injury to a scholar from its negligent furnishing of unsafe and unsuitable means of conveyance.

Transferred from Superior Court.

Action by George S. Harris against the Salem School District. Transferred from district court. Case discharged.

Case for personal injuries, brought by the plaintiff, a minor, by his father and next friend. The defendants moved to dismiss the action on the ground that they were no liable as matter of law, and the question of law arising on the motion was transferred. The declaration is as follows: "That the defendant, at Salem, in the county of Rockingham, on the 1st day of September, A. D. 1901, being a town school district for the maintenance of a public school in said town for the education of the children of school age residing in said district, did establish and

maintain a public school at the center of said town, and abolished and discontinued the school in the district where the plaintiff resided; and in place of said school in said district undertook to transport, and did transport, the scholars of said district, including the plaintiff, a distance of over two miles to said school at the center of the town; and it was the duty, and the said district was legally bound, in the transportation of said scholars to furnish proper, safe, and convenient transportation to and from the homes and residences of said scholars and said school, and to so care, protect, and provide for their comfort in such transportation as not to endanger the lives or health of said scholars thus transported. Yet the defendants, well knowing their duty, and though often requested, did not provide safe, convenient, and suitable conveyance of said scholars, and so unlawfully, unreasonably, and negligently transported and conveyed said scholars as to endanger their health; and the said plaintiff, being of legal school age, and being desirous of attending the public schools of said town, where he had the legal right to attend, and being required by the school board of said town district to attend the school kept and maintained at the center of said Salem, and having the right to be carried from his home to and from said school in a safe, suitable, and convenient manner, yet the defendants so transported, carried, and conveyed the said plaintiff from his home to said school and from said school to his home, a distance of more than two miles, and so negligently provided for his safety and comfort, and so exposed him to the cold and storms, that in the month of November, 1901, while being so carried by said defendants, and being by their neglect and want of care exposed to the inclemency of the weather, that he became sick and suffered with congestion of the lungs and other lung troubles, and remained so for a long time, to wit, from that date until the date of this writ, and has been deprived of his education which he was entitled to receive, and by reason of said defendants' neglect his health has become permanently impaired."

John G. Crawford and Arthur O. Fuller, for plaintiff. Eastman & Hollis, for defendant.

BINGHAM, J. If it was the duty of the defendants to provide the plaintiff with transportation to and from school (a question not considered), it was a public duty, from which the district derived no benefit or advantage (Doolittle v. Walpole, 67 N. H. 554, 38 Atl. 19); and the right of the plaintiff to be transported was one he enjoyed in common with other scholars in the district, and was also public (Rhobidas v. Concord, 70 N. H. 90, 116, 47 Atl. 82). But it has long been the recognized law of this state that an ac