2. The laying of a steam railway longitudinally in a street, unless by authority of a legislative grant, express or implied, will be regarded as such an exclusive and wrongful appropriation of that part of the street to a purpose foreign to the easement as to sustain such action of ejectment by the abutting owner against the company.

(Syllabus by the Court.)

Error to Supreme Court.

Actions by Albert Bork and wife against the United New Jersey Railroad & Canal Company and others and by George Rathacker and Philip Wilson against the same defendants. Judgments for plaintiffs, and defendants bring error. Affirmed.

J. H. Gaskill, for plaintiffs in error. F. D. Weaver, for defendants in error.

HENDRICKSON, J. This writ brings up for review a judgment of the Supreme Court entered upon a postea from the Camden circuit. The action is ejectment, and was brought by the plaintiffs, abutting owners on that part of Front street, in the city of Camden, between Clinton street and Kaighns avenue, in order to secure the removal of the track and roadbed of the defendants, laid down by them in front of plaintiffs' premises for steam railway purposes. The use of the track was limited to the operation of freight cars thereon. A verdict for the plaintiffs of six cents damages was directed by the learned trial judge. A request of the defendants for an instruction to the jury that no recovery could be had for the premises described in the declaration was refused. To these rulings exceptions were taken by the defendants and sealed, and error has been duly assigned thereon.

The premises embraced in the suit was the strip of land between the center line of the street and the plaintiff's property line, containing the track and roadbed of the defendants, having a length of about 37 feet and a width of 21⁄2 feet from the center line, subject to the public easement to and over said land.

The first ground urged in support of these assignments of error is that ejectment will not lie to recover possession of a portion of a public street; actual possession being inconsistent with the public easement, and constituting a nuisance, which would render the plaintiffs liable to indictment. The defendants cite as authority for this doctrine Cincinnati v. White, 6 Pet. 431, 8 L. Ed. 452; Stiles v. Curtis, 4 Day, 328. But the authority of the former case would be more persuasive if the point here referred to and there discussed had been necessary to the decision. For it will be remembered that the case was determined against the plaintiff in his suit to recover a plot of ground contained in what was known as a "city common," on the ground that it had been dedicated to public use by a previous grantor in the plaintiff's chain of title. But the law upon the subject now under discussion has so long been

settled in this state against the contention of the defendants that it would seem to be now too late to question it. In 1858 a suit of ejectment was brought by the owner of the fee in a turnpike road, which carried with it the public easement of the highway, against a defendant who was the tenant of a tollhouse built upon part of the highway. Other questions were involved, but Chief Justice Green, in delivering the opinion of the Supreme Court, said: "It is admitted that ejectment will lie by the owner of the soil for a part of the highway illegally appropriated by a third party to his own use. So the law is settled." The case went to this court afterwards, and there was a reversal, but no opinion was filed. No question was raised, however, as to the propriety of the form of action, and the ejectment suit prevailed. See State v. Laverack, 34 N. J. Law, 201; Burnet v. Crane, 56 N. J. Law, 285, 28 Atl. 591, 44 Am. St. Rep. 395. In the latter case this court held that ejectment was an appropriate remedy for the owner of the fee against one who, having a right of way over the locus in quo, extended his fence and took exclusive possession thereof. In French v. Robb, 67 N. J. Law, 260, 51 Atl. 509, 57 L. R. A. 956, 91 Am. St. Rep. 433, the abutting owner brought ejectment, to remove an electric light pole in the public street, used for private lighting. This court held in that case that the owner of the soil in a street may maintain ejectment against any person wrongfully taking or claiming exclusive possession of the same. This doctrine is supported by the great weight of authority elsewhere. It was fully sustained in the early English case of Goodtitle v. Alker, 1 Burrow, 143. One of the questions was whether an ejectment will lie by the owner of the soil for land which is subject to passage over it as a King's highway, and the opinion recited that 1 Ro. Abr. 392, letter "b," pl. 1, 2, is express "that the King has nothing but the passage for himself and his people, but the freehold and all the profits belong to the owner of the soil. * Lord Mansfield, speaking for the court, said, among other things: "There is no reason why the owner should not have a right to all remedies for the freehold, subject still, indeed, to the servitude or easement." The legal writers and the judicial decisions are found to be generally in accord with the doctrine here stated. In Newell on Ejectment (1892) p. 31, the rule is stated thus: "It is a well-settled rule of law that the owner of land subject to an easement, servitude, or public use may recover the possession of land in an action of ejectment against a person wrongfully appropriating the same to a purpose wholly foreign to the easement or servitude. The rule applies to the public highways and the like, but in the action the land is recovered subject to the easement or servitude." The rule is similarly stated in 10 Am. & Eng. Enc. of Law (2d Ed.) 473, and the cases in support

of the doctrine are fully collated there and in 17 Cent. Dig. 1978.

It is further contended by the plaintiffs in error that, granting the doctrine to be as stated, the occupancy of the street in this case was not exclusive or inconsistent with the public use, according to the meaning of the rule; that in fact the space between the rails was planked so as to admit the use of the highway by the public, except as to the small strip in the center of the street when the cars were actually running. But the answer to this is that such a use is an additional burden to the highway, and, unless supported by legislative authority, it does wrongfully appropriate a portion of the highway to a purpose foreign to the easement. In Burlington v. Pennsylvania R. Co., 56 N. J. Eq. 259, 38 Atl. 849, affirmed in 58 N. J. Eq. 547, 43 Atl. 700, it was declared that a steam railroad laid longitudinally in a street is regarded as practically an exclusive appropriation of that part of the street which it occupies to a use inconsistent with the legitimate use of the street by the public. And in Louisville & St. L. & T. Ry. Co. v. Liebfried, 92 Ky. 407, 17 S. W. 870, it was held that, in a suit by the abutting owner, ejectment would lie against a railroad company appropriating the same to its permanent use without legislative grant, express or implied.

It is not contended that there was any error in the refusal to admit in evidence the city ordinance empowering the defendants to construct and operate the branch railroad in question. Such an ordinance would not be admissible in the absence of any legislative grant, or support the ordinance.

Under the evidence the plaintiff was entitled to a direction of the verdict in his favor, and hence there was no error in the rulings of the trial judge.

The same result is reached in, No. 20, George Rathacker v. Same Defendants, and in No. 21, Philip Wilson v. Same; the three cases, involving the same questions, having been argued together.

The judgment in each of these cases is affirmed, with costs.

GARRETSON et al. v. CLARK et al. HARRIS v. GARRETSON et al. (Court of Chancery of New Jersey. Feb. 27, 1904.)

MUNICIPAL IMPROVEMENTS-LIEN FOR LABOR AND MATERIAL-TIME OF ACCRUAL-BANKRUPTCY-PROPERTY IN CUSTODIA LEGISAFTER-ACQUIRED LIENS.

1. Under Act March 30, 1892 (P. L. 1892, p. 369; 2 Gen. St. p. 2078), giving persons furnishing labor or material under a contract for a public improvement a lien on the moneys due or to grow due for the value of the labor or material furnished, on filing a notice of the amount claimed with certain municipal officers, the lien to attach from the time of the filing, 11. See Mechanics' Liens, vol. 34, Cent. Dig. § 303.

the lien arises at the moment that the claims are filed, and not when the labor and material are furnished.

2. Under Bankr. Act July 1, 1898, c. 541, § 70a, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], providing that title to the property of the bankrupt vests in the trustee as of the date of the adjudication, where a voluntary petition was filed by a contractor for a municipal improvement, and the adjudication made the same day, the sum due the contractor from the municipality was in custodia legis, and laborers and materialmen could not afterwards create a lien on the same by filing notice of claims with the municipality in compliance with Act March 30, 1892 (2 Gen. St. p. 2078).

Separate suits by Henry S. Garretson and others against Willard P. Clark and others, and by John H. Harris against Henry C. Garretson and others. Decree advised.

H. C. Suydam, for complainants Henry S. Garretson and others. Theodore Strong, for complainant John H. Harris. J. K. Rice, for defendant Willard P. Clark. McDermott & Fisk and Walter L. McDermott, for defendant Rockland Lake Trap Rock Co. Theodore Strong, for defendant John H. Harris. Dugan & Reger, for defendant Nelson Y. Dungan. Peter F. Daly, for defendant Conrad Seebold.

REED, V. C. These bills were filed under the provisions of an act approved March 30, 1892, to be found in P. L. 1892, p. 369 (2 Gen. St. p. 2078). The act provides that a person who, as laborer, mechanic, merchant, or trader, shall, in conformity with the terms of a contract for any public improvement, made between any person or municipality, furnish material or perform labor toward the performance or completion of such contract, on complying with the second section of the act, shall have a lien, for the value of such labor or materials, upon the moneys due or to grow due under said contract. The facts are these: The firm of Van Duersen & Oliver on August 6, 1902, contracted with the board of chosen freeholders of Middlesex county to macadamize a road in that county. About January 10, 1903, and before the contract was completely executed, that firm was dissolved; and, by the terms of dissolution, Mr. Oliver received all the assets and assumed all the liabilities of the firm. Oliver continued the work under the contract. On July 20, 1903, Oliver filed a petition in bankruptcy, and was on that date adjudged a bankrupt; and subsequently Willard P. Clark was elected the trustee in bankruptcy, and, by permission of the federal court, was made a party to these suits. Mr. Clark, as trustee, completed the execution of the contract. The money due from the county upon the contract was paid to the trustee, with the exception of 5 per cent. of the contract price, which, by the terms of the contract, was retained. There was due on the contract $2,551.74. The 5 per cent. retained amounted to $648.60. There was also paid to the trustee, on account of work done upon the road, outside of the requirements of the contract,

assets of the firm and all claims against the firm, not only the claims of third parties, but of the partners as well. As there is not enough assets to pay all these claims, the question now supervenes, in what manner is the money in the hands of the receiver to be disbursed?

It is quite clear that the claims of the partners cannot be recognized until the other claimants are paid in full. In respect of the claims of the other claimants, the first question propounded is whether the claim of Mary A. Dunn should share in the distribution before all the other valid claims, other than those of the partners, are paid in full. Her claim is for the rent of the store in which the firm carried on its business. The title to this store, when it was originally used for this business, was in Thomas Dunn, the husband of Mary A. Dunn. In April, 1894, he conveyed this store to Mary A. Dunn. In a suit brought against Mary A. Dunn by John J. Thompson, administrator of Joseph B. Thompson, a claimant against the firm assets who obtained a judgment for the amount of his claim, to set the deed from Dunn to his wife aside as fraudulent, a decree was made in the suit in accordance with the prayer of the bill. I think that the testimony taken before the master shows that the conveyance was made in fraud of all creditors. This left her a mere trustee in equity, the real title, in respect of the husband's creditors, being in him. As against the receiver, so far as he represents those creditors, I do not see how she can claim rent for property which was her husband's, any more than her husband could claim rent to be paid out of the firm assets while firm debts remain unpaid. I see no reason why these rents could not be reached by any judgment creditor of the husband as equitable assets belonging to him. While the receiver could not recover them if they were due from a tenant other than the firm (Hiles v. Dunn, 61 N. J. Eq. 391, 48 Atl. 315), yet, being a claim against the firm, it is a claim in equity by the husband, who is a partner. I am of the opinion that her claim is not entitled to recognition in making distribution, unless there remains a surplus after paying firm creditors.

The next question propounded is whether the John J. Thompson, administrator, etc., already mentioned, is entitled to share ratably upon the full amount of his claim of $3,502.75 and his other claim of $619.20. As already observed, he obtained a decree against Mrs. Dunn, setting aside the deed to her as a fraud upon his intestate as her husband's creditor. The property was sold by virtue of this decree, and there remains as the proceeds of such sale the sum of $2,118.19. The query is whether this amount should be deducted from the amount of the claims, and a dividend declared for the remainder, or whether Thompson is entitled to a dividend upon the entire amount of his claims. The rule applied by the bankruptcy courts is that,

if a creditor holds security given him by the bankrupt, he must surrender his security for the benefit of all the creditors, if he asks for dividends upon his entire claim. He can give credit for his security, and claim for the balance, or give up his security altogether and prove for his whole debt. Lindley on Part. 714. This rule is only applicable where the debt is payable out of the estate to which the security belongs. If the security is given by some one other than the bankrupt, the creditor can hold his security and prove for his whole debt. And partners under this rule are regarded as parties distinct from the firm. Therefore, if one partner mortgage his own property for a debt of the firm, the creditor is allowed to prove for his whole debt against the firm, and retain the mortgage security given by the partner. Ex parte Caldicott, 25 Ch. Div. 716; Lindlay on Part. 716. The distinction is apparent from a comparison of the case of Ex parte Caldicott, supra, and the case of Ex parte West Riding Banking Co., 19 Ch. Div. 105, in which a creditor held a mortgage upon the property of a partner who himself became bankrupt, and it was held that the creditor could not prove without giving up his security. This rule respecting securities is the foundation of the rule that where the claimant is the creditor, not only of the bankrupt, but also of another person, he may prove against the estate of the former, and yet sue the latter, and get from him what he can. Ex parte Schofield, 12 Ch. Div. 337. A creditor of a firm, one member of which has become a bankrupt, can prove against the estate of the bankrupt and sue the other partners. Ex parte Isaacs, 6 Ch. Div. 58; Lindley on Part. § 718. Under the rules recognized in the administration of bankrupt estates, it is quite clear that the firm and the partners are to be regarded as distinct parties, and that, inasmuch as the creditor would have had the right to hold a security given him by a partner, so he has the right to sue a partner for a firm debt, and also to prove for his entire debt against the insolvent firm. Nor am I aware that this doctrine has been questioned in the distribution of insolvent estates by receivers or assignees. There is a contrariety of view in respect to whether, where the creditor holds collaterals of the insolvent, he can prove for the whole amount of his debt, but, so far as I know, there is no dispute when the collateral is that of a person other than the insolvent. In the case of State Bank v. Receivers of Bank, 3 N. J. Eq. 266, cited as opposed to the right to prove for the full amount, the pledge consisted of drafts which belonged to the insolvent New Brunswick Bank, and which had been indorsed over to the State Bank as collateral security. It was held by Chancellor Vroom that the amount of the collateral should first be deducted from the claim of the. State Bank. In all the cases cited by the learned chancel lor, the collaterals were given by the bank

rupt. The rule in respect to payments received from others than the insolvent, as applied to the relations of creditor, partner, and firm, is summed up by Mr. Bates thus: "Both in England and here, if a joint creditor has also separate security upon the property of one of the partners, or a separate creditor had also security given by the firm upon joint property, such creditor could prove his debt, and also realize upon his security." 2 Bates on Part. § 842. There is no question of marshaling involved. Thompson's right to the money raised by sale of Dunn's property is complete and unquestioned. If Dunn has individual creditors, they cannot now attack Thompson's right to this money. If the amount had been sufficient to pay Thompson's claim against the firm, then the individual creditors, if any, could perhaps have successfully asked to be subrogated to Thompson's right to prove against the firm. My conclusion is that Thompson should receive dividends upon his whole claim, unless the dividends reach an amount more than the remainder due him, after applying the sum received from the Dunn property.

(70 N. J. L. 633)

CAMERON V. JERSEY CITY, H. & P. ST. RY. CO.

(Supreme Court of New Jersey. March 2, 1904.)

RAILROADS OPERATION

STREET NEGLIGENCE OF MOTORMAN-RUNNING ONTO PERSON IN STREET-EVIDENCE-SUFFICIENCYDAMAGES FOR DEATH.

1. A car was running at a good speed, some of the witnesses expressing it as "a high or terrific rate," on a street where the motorman had a clear view ahead for several hundred feet, and plaintiff's intestate was leading a horse on the highway approaching the car from the opposite direction, and when the car was within a short distance-probably 200 feet-the horse became unmanageable. Held, that it must have been evident to the motorman that the horse's fright was due to the oncoming car, and it was then his duty to put his car under such control as to be able to stop it, and to take necessary precautions to that end, and that it was negligence in him to run into deceased under the circumstances.

2. Deceased was 31 years of age, and was earning $1,000 per year. His widow was 32 years of age, and his two children were 2 and 8 years respectively. Held, that a verdict for $6,540 for his death was not excessive.

Action by Fannie M. Cameron, administratrix of Oscar J. Cameron, deceased, against the Jersey City, Hoboken & Paterson Street Railway Company. There was a verdict for plaintiff, and defendant applied for a rule to show cause why a new trial should not be granted. The application was denied, and is renewed at bar. Rule refused.

Argued February term, 1904, before VAN SYCKEL and FORT, JJ.

Bedle, Edwards & Lawrence, for plaintiff.

PER CURIAM. This action was tried at the Bergen county circuit on the 9th day of December, 1903. The suit was to recover for

57 A.-27

pecuniary injury to the widow and next of kin of Oscar J. Cameron, deceased. There was a verdict for the plaintiff for $6,540. AppliIcation was made to the trial justice, within six days, for a rule to show cause why a new trial should not be granted, which was denied. The application is now renewed at bar.

We have given careful consideration to this case, and the evidence seems to have justified the conclusions of the jury upon the questions submitted to them in finding negligence in the defendant company's motorman in running upon the deceased under the circumstances detailed. The car was moving at a good speed-some of the witnesses expressing it as "a high or terrific rate of speed"— upon a street where the motorman had a clear view ahead of him for several hundred feet; and the deceased was leading a horse in the highway, the car and the deceased approaching each other from opposite directions. When the car was within a short distance-probably 200 feet-of the deceased, the horse which he was leading became unmanageable, and it must have been evident to the motorman that the cause of the fright of the horse was the oncoming car. It was then the duty of the motorman to put his car under such control as to be able to stop it, and to take all necessary precautions to that end. The jury have found that he did not do so, and that under the charge of the court he was not exercising that ordinary care and prudence which was required of him. We are unable to see any reason for saying that this conclusion of the jury was not justified. The charge of the court was, if anything, favorable to the defendant, and it correctly stated the law applicable to this class of cases. The deceased was 31 years of age, and was earning more than $1,000 per year, and the widow was a woman of 32 and the two children of the deceased were aged 2 and 8 years, respectively. The verdict therefore was not excessive. There appears to be no reason for a rule in this case, and it is refused.

(70 N. J. L. 313) COLLIER v. CONSOLIDATED RY., LIGHTING & REFRIGERATING CO. (Court of Errors and Appeals of New Jersey. Feb. 29, 1904.)

CORPORATION-DE FACTO OFFICERS-VALIDITY OF ACTS-CONTRACT OF EMPLOYMENT -ACTION FOR BREACH-EVIDENCE-MATERIALITY.

1. A resolution of a de facto board of directors of a corporation providing for the employment of a sales agent of the corporation cannot be annulled by the action of the president alone.

2. An offer to prove that a resolution of a board of directors of a corporation providing for the employment of a sales agent was passed by a dummy board having no real interest in the corporation, that the president only had the power to employ, and that he immediately notified the agent employed that he was not employed by the company, is not an offer to prove