sary to excavate the loose, drifting soil | 77 S. E. 682, a case in point to the one now which had been washed down under the plat- under discussion, and we concur in that view. form so as to get a proper footing for the uprights to support the platform.

The question propounded to Mr. Shale, the treasurer of the appellant company, overruled by the trial court, and therefore complained of, viz., "If special operations had been specified in this policy under the heading, what effect, if any, would that have had upon the rate of insurance?" was clearly immaterial, and the exclusion of this question by the trial court was not error.

There being no error in the record, the judgment is therefore affirmed, with costs.

(89 N. J. Law, 550) ROSEVILLE TRUST CO. v. BARNEY. (No. 73.)

Nov. 30, 1916.)
(Syllabus by the Court.)

De Vincenzo was employed by the contractor doing the excavation. He recovered a judgment against the respondent, which was affirmed by this court, and which has been paid; hence this suit. It is admitted by the appellant, on the motion to nonsuit, simply making the platform safe would have been a repair or alteration usual and necessary, within the terms of the policy, to the maintenance of the plant. They did not do that is the insistence, but did something more. Now, under the evidence, whether they did or not depended upon extrinsic facts, as to which there is a dispute; hence the jury, and not the court, must determine (Court of Errors and Appeals of New Jersey. the point. The construction and effect of a written instrument is a matter of law to be determined by the court, and not by the jury. This rule of law is firmly settled in this court by a long line of cases. Grueber Engineering Co. v. Waldron, 71 N. J. Law, 597, 60 Atl. 386. But when the construction of a written instrument depends upon extrinsic facts, as to which there is a dispute, its construction is a mixed question of law and fact, and presents a jury question, under proper instructions from the court. 9 Cyc. 592; Kinston Cotton Mills v. Liability Assur. Corp., 161 N. C. 562, 77 S. E. 682. That was the precise situation presented to the trial court, on the motion to nonsuit and to direct a verdict for the defendant. Hence there is no error in the trial court's refusal of these motions.

Second, the appellant submitted 13 requests in writing to the trial judge, on which exceptions are based, in so far as they were not charged. There was no error committed by the trial judge in this respect. For the most part, these requests involve the same questions presented to the court on the motions to nonsuit and direct a verdict. It would subserve no useful purpose to review them in detail. For illustrative cases, somewhat in point to the case under discussion, see Charles Wolff Packing Co. v. Travelers' Ins. Co., 94 Kap. 630, 146 Pac. 1175; Kinston Cotton Mills v. Liability Assur. Corp., 161 N. C. 562, 77 S. E. 682. The cases cited by counsel for the appellant as authorities stand upon the particular facts of each case there decided.

Third, a witness, Charles A. Winston, for the respondent, was permitted to state that certain work described in the questions propounded was repairs and alterations necessary to the care and maintenance of the premises and plant; that the method adopted for repairing the platform was one of the ordinary methods of repairing it. This was held proper in the case of Kinston Cotton Mills v. Liability Assur. Corp., 161 N. C. 562,

1. BANKS AND BANKING

317-TRUST COм

PANIES-LIQUIDATION.
Section 22 of the act concerning trust com-
by Act April 1, 1913 [P. L. p. 282]), author-
panies (4 Comp. St. 1910, p. 5663, as amended
izes the commissioner of banking and insurance,
in certain circumstances, to take possession, as
statutory agent, of a trust company's property
and business and liquidate the same, empower-
ing him to prosecute and defend suits and othér
legal proceedings in the name of the trust com-
pany.

Banking, Cent. Dig. 8 1222; Dec. Dig.
[Ed. Note.-For other cases, see Banks and
317.]

2. BANKS AND BANKING

TRUST COMPANY-SET-OFF.

317-INSOLVENT

A person indebted to a trust company on a promissory note, and having a deposit to his credit therein when the commissioner of banking and insurance takes possession, is a creditor of the company, and, as such, entitled to set off his under the act concerning set-off (4 Comp. St. deposit against the amount due on the note, 1910, p. 4836, § 1).

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 1222; Dec. Dig. 317.]

Appeal from Supreme Court.

Action by the Roseville Trust Company against A. W. Barney, Jr. A judgment for plaintiff was affirmed by the Supreme Court (88 N. J. Law, 146, 96 Atl. 69), and defendant appeals. Reversed and remanded.

Otto A. Stiefel, of Newark, for appellant. Peirce & Hoover, of Newark, for appellee.

WALKER, Ch. [1] On August 14, 1913, the commissioner of banking and insurance took charge of the property and business of the Roseville Trust Company, under the provisions of the act concerning trust companies. Comp. Stat. p. 5663, amended, P. L. 1913, p. 282. The commissioner found, among the assets of the bank, a note for $400 made by A. W. Barney to his son, A. W. Barney, Jr., the defendant, payable three months after date. The note was drawn to the order of the maker, and by him indorsed and turned over to his son, who also indorsed it. On

the same day the note was delivered to the for all purposes as though the same had been Roseville Trust Company for A. W. Barney, executed by the officers of such trust com Jr., who received a credit for it on the books pany by the authority of its board of direeof the company in the sum of $394. When tors. Further, that out of the moneys colthe commissioner took possession, the books lected by the commissioner, and at any time of the trust company showed a balance of after the expiration of the date fixed for the $467.99 to the credit of A. W. Barney, Jr., | presentation of claims against the company, which included the $394 passed to his credit the Court of Chancery may authorize the upon the purchase or discount of the note commissioner to declare out of the funds mentioned. Suit was brought by the commis- remaining in his hands, after the payment sioner for and in the name of the trust com- of expenses, one or more dividends; and pany, against the younger Barney in the whenever the commissioner shall have paid first district court of Newark upon the note to every depositor and creditor (not includin question, and he pleaded set-off for the ing stockholders) whose claims shall have sum of $467.99. The trial judge disallowed been duly proved and allowed the full the set-off and gave judgment for the plaintiff amount of such claims, and shall have made (the trust company), and the Supreme Court, proper provision for unclaimed and unpaid on appeal, sustained that judgment. The deposits or dividends, and shall have paid judge of the district court decided that there all the expenses of liquidation, he shall call was no defense at law by way of set-off, and a meeting of the stockholders, who shall dethe Supreme Court held that the defendant's termine whether the commissioner shall be claim was not within the statute of set-off, continued as liquidator, and shall wind up and affirmed that decision. From the judg- the affairs of the company, or whether an ment entered in the last-mentioned court the agent or agents shall be elected for that defendant has appealed to this court. purpose.

Section 24 of the act, as amended, provides that whenever any trust company shall be come insolvent, or shall suspend its ordinary business for want of funds to carry on the same, the Attorney General, or any creditor or stockholder, may apply to the Court of Chancery for an injunction and the appointment of a receiver, and the court, being satisfied of the sufficiency of the application, and of the truth of the allegations, may proceed in a summary way to hear the affidavits, proofs, and allegations which may be offered on behalf of the parties, and if upon such inquiry it shall appear to the court that the trust company has become insolvent, and is not about to resume its business in a short time thereafter with safety to the public and advantage to the stock. holders, may issue an injunction to restrain such trust company and its officers and agents from exercising any of its privileges or franchises and from collecting or receiving any debts, or paying out, selling, assigning, or transferring any of its estate, etc., except to a receiver appointed by the court, until the court shall otherwise order.

The act concerning trust companies (Revision of 1899; Comp. Stat. p. 5654) was amended with reference to sections 22, 23, and 24 by act of April 1, 1913 (P. L. p. 282). | The commissioner of banking and insurance, as already remarked, took possession of the property and business of the Roseville Trust Company on August 14, 1913, and therefore acted under the powers conferred upon him by the amended section 22, which provides that whenever it shall appear to the commissioner that any trust company has violated its charter or any law of this state, or is conducting its business in an unsafe or unauthorized manner, or in certain other circumstances mentioned, he may forthwith take possession of the property and business of such trust company and retain such possession until it shall resume business or its affairs be finally liquidated as therein provided. Provision is then made that the trust company may, with the consent of the commissioner, resume business upon such conditions as may be approved by him. The commissioner is authorized to collect all debts due and claims belonging to the trust company, and, upon the order of the Court of Chancery, he may sell or compound all bad or doubtful debts, and on like order may sell all the real or personal property of such trust company. It is also provided that for the purpose of executing and performing any of the powers and duties thereby conferred upon him, the commissioner may, "in the name of the trust company," execute and deliver all deeds, assignments, releases, and other instruments necessary and proper to effectuate any sale of real or personal prop-cases in which the same ought to be allowed erty, or compromise, authorized by the Court of Chancery; and any deed or other instrument, executed pursuant to the authority

Section 25, which has not been amended, authorizes the appointment of a receiver for the creditors and stockholders of the trust company, with full power and authority to demand, sue for, collect, and take into his possession all the property of every de scri tion of the corporation, and to institute suits at law and in equity for the recovery of any of its property or demands, and in case of mutual dealings between the corporation and any person to allow just set-offs in all

according to law and equity.

Thus it will be seen that the act concerning trust companies contains two schemes

by the commissioner of banking and insur-act for the company and for the benefit of its ance as a statutory agent, and the other by creditors and stockholders, doing all lawful a receiver in insolvency proceedings.

acts in the name of the company itself. During his administration of its affairs the corporate entity itself continues in existence, and everything done for and on its behalf by the commissioner must be done in its name. The rights of creditors, at least so far as reducing their claims to judgment is concerned, are not affected by the act, which makes express provision that the commissioner, in the name of the company, may prosecute and defend all suits and other legal proceedings.

No right of set-off is given in section 22, either as it originally stood or as it now stands amended. As it originally stood, it authorized the commissioner, if he had reason to conclude that any trust company was in an unsound or unsafe condition, to forthwith take possession of its property and business and retain such possession until the termination of an action or proceeding to be instituted by the Attorney General, or until the appointment of a receiver by the Court of Chancery. And section 24, as it originally The relation between a bank and its destood, provided that whenever any trust compositors is that of debtor and creditor. Tufts pany should become insolvent or should sus- v. People's Bank, 59 N. J. Law, 380, 35 Atl. pend its ordinary business for want of funds to carry on the same, the Attorney General or any creditor, or stockholder, might apply to the Court of Chancery for an injunction and the appointment of a receiver. Then followed a provision that whenever it should appear to the Court of Chancery, on application of the Attorney General, that any trust company was in an unsound condition because of illegal or unsafe investments (or that some of the other conditions existed which are now described in section 22, as amended), the court might issue an injunction to restrain such company and its officers and agents from exercising any of its privileges and franchises, and from collecting or receiving any debts, or from paying out any of its estate, moneys, funds, lands, tenements, or effects, except to a receiver appointed by the court, until the court should otherwise order.

Thus it appears that the commissioner of banking and insurance, as the act concerning trust companies originally stood, did not have the powers of a liquidator, but only power to take possession of the property and business of a trust company until the termination of an action or proceedings instituted by the Attorney General, or until the appointment of a receiver by the Court of Chancery. There was then no occasion for any provision regarding set-off in section 22; that provision was naturally and properly made in section 25, which defined the powers and duties of a receiver to be appointed by the Court of Chancery.

[2] It will be observed that the winding up of an insolvent trust company, a proceeding essentially judicial in its nature, is confided to the Court of Chancery, while for corporate acts, not in and of themselves amounting to insolvency, the commissioner of banking and insurance by section 22 of the Trust Company Act, as amended, is authorized to take possession of the company's business and liquidate its affairs. He is not, like a receiver, vested with title to the corporation's property, nor empowered to sue or be sued in his name as commissioner, but only to

792; Campbell Rec'r v. Watson, 62 N. J. Eq. 396, 50 Atl. 120. Between persons occupying that relation to each other, set-off at law, under the statute, applies. The act concerning set-off (Comp. Stat. p. 4836, § 1) provides that if any two or more persons be indebted to each other, such debts, not being for unliquidated damages, may be set off against each other. Within the very wording of this act, the set-off pleaded by the defendant in the court of first instance was valid, and should have been allowed. Its disallowance was error. This view leads to a reversal of the judgment of the Supreme Court and a remand of the record for further proceedings according to law.

(89 N. J. Law, 601) DUNNEWALD v. HENRY STEERS, Inc. (Court of Errors and Appeals of New Jersey. Nov. 20, 1916.)

(Syllabus by the Court.)

1. MASTER AND SERVANT 411-WORKMEN'S COMPENSATION ACT RECOVERY FOR INJU

RIES.

To warrant a recovery under section 2 of the Workmen's Compensation Act (P. L. 1911, p. 134, as amended by P. L. 1913, p. 302) from an employer for the death of an employé, it must appear, among other things, that the employe's death was caused by (a) an accident (b) arising out of and (c) in the course of his employment, and all these essential facts must be found by the trial judge, and must be contained in his written determination.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 411.] 2. MASTER AND SERVANT 412 — REVIEW WORKMEN'S COMPENSATION ACT.

Upon the review of a judgment against the employer for the death of an employé under section 2 of the Workmen's Compensation Act (P. L. 1911, p. 134, as amended by P. L. 1913, p. 302), when it appears that there has been no finding by the trial judge that the death was by accident, nor that it arose out of and in the course of his employment, the Supreme Court should send the case back for a new trial and proper determination of facts, either upon the evidence already taken or upon such as the parties see fit to put in.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 412.]

Appeal from Supreme Court. I would not have justified a finding that the Proceeding by Lena Dunnewald, adminis- accident arose out of the employment. tratrix of Theodore Dunnewald, against [2] With the soundness of that conclusion Henry Steers, Incorporated, under the Work- of the Supreme Court we are not now conmen's Compensation Act. Judgment for peti-cerned, and respecting it we express no opintioner was reversed in the Supreme Court ion. We think the Supreme Court should not (85 N. J. Law, 449, 89 Atl. 1007), and petitioner brings error.

Samuel Besson, of Hoboken, for appellant. Lindabury, Depue & Faulks, of Newark (John W. Bishop, Jr., and Kinsley Twining, both of Newark, on the brief), for appellee.

TRENCHARD, J. This is a proceeding under section 2 of the Workmen's Compensation Act (P. L. 1911, p. 134, as amended by P. L 1913, p. 302) brought before a judge of the Hudson common pleas court to recover compensation for the death of petitioner's husband. The learned trial judge rendered judgment for the petitioner and against the dece dent's employer, and that judgment was reversed in the Supreme Court. 85 N. J. Law, 449, 89 Atl. 1007.

have entered upon that investigation. When it appeared that there had been no finding respecting these essential facts by the trial Judge, the Supreme Court should have sent the case back for a new trial and proper determination of facts, either upon the present evidence or upon such as the parties see fit to put in. The reason why such a course should have been adopted appears from a consideration of the proper function of the Supreme Court upon review of such a proceeding. The right to review is limited to questions of law. Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027. The evidence in the trial court which was sent up is no substitute for the finding of facts as required by the statute. Of course, such evidence is properly sent up if a finding of fact is challenged as without any evidence to support it. But the evidence alone, without the finding of facts, is not sufficient for the purpose of re

We are of the opinion that the judgment of the Supreme Court, now here for review, must be affirmed, but not for the reasons giv-view, because the reviewing court cannot en in that court.

know what credit the trial judge gave to the several witnesses, and which of two possible, but conflicting inferences he drew from the testimony. Long v. Bergen County Common Pleas, 84 N. J. Law, 117, 86 Atl. 529; New York Shipbuilding Co. v. Buchanan, 84 N. J. Law, 543, 87 Atl. 86. Those are functions of the trial judge, and his findings of facts, if there be legal evidence to warrant them, are accepted by the reviewing court. Bryant v. Fissel, 84 N. J. Law, 72, 86 Atl. 458.

[1] To warrant a judgment for the petitioner it must appear, among other things, that the employé's death was caused by (a) an accident (b) arising out of and (c) in the course of his employment (Bryant v. Fissel, 84 N. J. Law, 72, 86 Atl. 458), and all these essential facts must be found by the trial judge, and must be contained in his written determination, because paragraph 20 of section 2 (P. L. 1913, p. 308) requires that the determination of the trial judge shall be filed in writing, and shall contain a statement of the facts as determined by the judge. The proceeding in question is not one according to the course of the common law. The judge acts, or professes to act, not upon commonlaw principles, but rather, as directed by the statute (section 2, par. 20), proceeds, at the time fixed for hearing, to hear such witnesses as may be presented by each party, and in LANGE et al. v. NEW YORK, S. & W. R. CO. a summary manner decides the merits of the controversy.

Now in the present case there was no finding by the judge that the death of the decedent was by accident, nor that it arose out of and in the course of his employment. This the Supreme Court recognized, but nevertheless proceeded to examine the evidence returned for the purpose of determining whether it would have been possible for the trial judge to find therefrom the facts necessary to support the judgment. From such examination the Supreme Court concluded that, while the trial judge might properly have inferred that decedent came to his death by accident, and possibly that it arose in the course of his employment, yet the evidence

The judgment of the Supreme Court reversing the judgment of the common pleas court will be affirmed, to the end that there may be a new trial and proper determination of facts, either upon the present evidence, or upon such as the parties see fit to put in. No costs will be allowed in this court.

(No. 8.)

(89 N. J. Law, 604)

(Court of Errors and Appeals of New Jersey.
Nov. 20, 1916.)
(Syllabus by the Court.)

1. NEGLIGENCE 93(1)

IMPUTED NEGLI

GENCE-WHAT CONSTITUTES. One who, while riding in the private automobile of another, is injured by the negligence of a third party, may recover against the latter, notwithstanding that the negligence of the driver of the automobile contributes to the injury, where the person injured is without fault and had no authority over the driver.

whom he was riding, and was not negligent him- counsel were complaining. We have examinself, and the relation of master and servant or ed the charge, and find no error justifying principal and agent or mutual responsibility in a common enterprise did not exist, then the negligence of the driver cannot be imputed to him. [Ed. Note.--For other cases, see Negligence, Cent. Dig. § 147, 148; Dec. Dig. 93(1).] 3. NEGLIGENCE 141(11)-INSTRUCTIONS.