The following is the opinion of Vice Chancellor Stevens:

it as laid. This rule seems well established | Goodwin, deceased. From a decree for com. in this state, as well as in foreign jurisdic- plainant, defendant appeals. Affirmed. tions, as was pointed out in the well-considered brief of the defendant in error. In the case of Partridge v. Woodland Steamboat Co., 66 N. J. Law, 291, 49 Atl. 726, it was held in this court that "both in action of contract and tort this court has held that the trial court can only submit to the jury questions within the issue," following Mr. Justice Dixon in Excelsior Electric Co. v. Sweet, 59 N. J. Law, 441, 31 Atl. 721, who said, "It is a cardinal rule for the control of a trial court that the questions submitted to the jury should be within the issues raised by the pleadings." The following cases all lay down the same doctrine: Martinez

v. Runkle, 57 N. J. Law, 111, 30 Atl. 593; Kent v. Phoenix Art Metal Co., 69 N. J. Law, 532, 55 Atl. 256; Murphy v. North Jersey St. Ry. Co., 71 N. J. Law, 5, 58 Atl. 1018. In my opinion the trial judge made no error in charging the jury that the plaintiff was bound to prove the injuries were sustained in the manner alleged in the declaration. No error appearing upon the record, the judgment below is affirmed.

(74 N. J. E. 856)

SEYMOUR v. GOODWIN.

(Court of Errors and Appeals of New Jersey. Nov. 17, 1908.)

1. APPEAL AND Error (§ 1195*)-LAW OF THE CASE.

A decision, on appeal from an order overruling a demurrer to the bill, which determines that the bill states a cause of action, settles the questions of law.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4661; Dec. Dig. § 1195.*] 2. EXECUTORS AND ADMINISTRATORS (§ 233*)

FAILURE TO PRESENT CLAIMS-RELIEF-AL-
LEGATION-PROOF.

A bill seeking to enforce a claim against a decedent, after decree of the orphans' court barring claims, on the theory that the solicitor of the executrix had waived a verification of the claim, which alleges that the solicitor acted as the business agent of the executrix, is sustained by proof that the solicitor was the agent of the executrix in the transaction involving the presentation of the claim.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 831; Dec. Dig. § 233.*]

"The complainant alleges that he is a creditor of the defendant's testator. He has sued at law to recover his claim. The defendant has, inter alia, pleaded that complainant did not present his claim under oath, and that he is barred by usual decree of the orphans' court barring creditors. To prevent defendant from availing herself of his decree the complainant has filed this bill, alleging that he did present his claim within the time limited, and that, if he did not present it under oath, it was because of the defendant's solicitor's conduct, which amounted to a waiver of it. The demurrer came on for hearing before Vice Chancellor Emery, and, both in this court and on appeal, it was held that the facts set out in the bill showed waiver, and consequently the demurrer was overruled. The defendant then answered, and the case was brought to final hearing. The question of law has been settled, and the only question now open is as to whether the allegations of the bill have been proved.

"On demurrer the waiver was held to result from the language of a letter, dated September 12, 1901, written by Mr. Cortlandt Parker, the defendant's solicitor, to the com

plainant, in which he says, among other things: 'Mr. Bolmer tells me that he met you the other day and that you broached the subject of the bill you have presented to me for work and materials furnished the late Mr. Goodwin, with, apparently, some anxiety about it.' In reference to this part of the letter, in an opinion adopted by the Court of Appeals, Vice Chancellor Emery says: "This letter recognized the claim as presented that is, I take it as duly presented-and offered a settlement in stock for about twice the amount of the claim. The letter notified the complainant that the claim was not to be settled in cash, but did not object to the lack of verification, or to the amount of the claim. I think that if this formal objection of lack of verification was intended to be insisted on, it should have been given distinctly by this letter; and, while there was still time to remedy it, and, that

3. EXECUTORS AND ADMINISTRATORS (§ 233*)- not having been then given, it must be conFAILURE TO PRESENT CLAIMS-RELIEF-VER-sidered waived.' The letter has been put in IFICATION-WAIVER.

Evidence held to show that the solicitor of an executrix had authority to waive the verification of a claim against decedent, authorizing a recovery on the claim, as against the objection that it had not been properly presented within the time limited.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 831; Dec. Dig. § 233.*]

Appeal from Court of Chancery.

Suit by James M. Seymour, Jr., against Rebecca Goodwin, executrix of Hannibal

evidence, and the defendant's sole ground of attack is that Mr. Parker had no authority to write it. The bill alleges that Mr. Parker acted as Mrs. Goodwin's 'business agent.' It is urged that this allegation is not sustained by the evidence. The words 'business agent' are probably misapplied. That Mr. Parker was the 'agent' of Mrs. Goodwin in this transaction, which has a legal, rather than a business, complexion, is all that complainant is required to prove. Has he proved the

agency? It appears that Rev. Hannibal | timation was given that Mr. Parker did not Goodwin, who for many years officiated in have authority to act in the matter. He, unone or more of the Protestant Episcopal doubtedly, supposed that he had. This is Churches of Newark, was an inventor, and abundantly evident, not only from what was that, among other things, he invented the said at the various interviews with Mr. Goodwin film, used in photography; that Ziegler, but also from the letter of SeptemMr. Parker was at once his friend, his legal ber 12, 1901, and of May 12, and May 23, adviser, and his financial backer; that in 1902. There is nothing in Mrs. Goodwin's consequence of injuries received in a trolley statement of the case to indicate that she accident, Mr. Goodwin died; that Mr. Par- did not vest Mr. Parker with such authority ker took charge of the suit for damages aris- to act for her as the occasion called for. ing thereout, and that he also took charge Her evidence on this point is that she never of the probate of his will for his widow, wrote to Mr. Parker on the subject; that she thereby constituted sole executrix. It also saw him probably in April, and told him that appears that Mrs. Goodwin had no other Mr. Seymour had called, and had mentioned legal adviser, or, as far as appears, 'business the fact that he had a little business; that agent.' She did not need to have, for the she supposed it was a little claim against estate that he left, outside of his patent the estate, and would he not kindly look into rights, was insignificant. The evidence, as the matter, and let her know if it was a just I understand it, shows further that the pat- one; that afterwards Mr. Parker called upent for the film stood in Mr. Goodwin's name on her, and told her he had seen Mr. Seyat the time of his death, and that Mr. Parker mour and the lawyer, and knew something took charge of its disposition-a matter not about the claim; that it was early in the exclusively legal, involving no little labor. summer, or in the fall that she first came to "This being the general situation, what know the particulars of the claim, and that happened in regard to this particular claim she had a number of conversations with was this: Mr. Seymour, the complainant, Mr. Parker about the claim, to use her exhad equipped a factory, in which Mr. Good-pression, 'as the thing developed.' She says win had proposed to manufacture his film, finally, 'Well I understood at the last that with machinery valued at $2,463. Shortly Mr. Parker would assist me in the matter. after Mr. Goodwin's death, Mr. Seymour I never asked him. It seems to have all made Mrs. Goodwin a visit of condolence. When about to take his leave, he testifies: 'I asked when, or where, or how, or tried to find out in some way where my account against Mr. Goodwin stood, and where I could get my pay, and Mrs. Goodwin told me that she could not do anything about it; that everything was in the hands of Cort-ker's testimony in the cause, an affidavit he landt Parker; to go to Mr. Parker. He knew all about it, and had everything to do with the affairs of Mr. Goodwin.' Mrs. Goodwin's direct testimony about the same interview, the only personal interview ever had between them on this subject, is as follows: 'I was ill that day, and I came down [stairs] simply because I supposed it was a visit of condolence entirely, and I said at once, "I am not able to attend to business, Mr. Seymour. 1 shall have to refer you to Mr. Parker."' On cross-examination she testified: 'I said I was very nervous and very ill. "Really," I said, "Mr. Seymour, I am not able to talk to you about this matter. I really would not know how to express myself on business matters" -and told him to see Mr. Parker.'

"Mr. Seymour did see Mr. Parker, the first interview taking place on March 14, 1901, on the occasion of the Public Library celebration. Shortly after this Mr. Seymour requested Mr. Ziegler to act as his attorney in the matter, and Mr. Ziegler had several interviews with Mr. Parker, but none with Mrs. Goodwin personally. From the time of the interview of Mr. Seymour with Mrs. Goodwin up to the time of the beginning of

grown out of the case. I looked to him for
any interest in the matter.' In view of this
evidence can there be any doubt but that Mr.
Parker was authorized to do what in fact
he did? Could I, sitting as a jury, come to
any other conclusion about the matter?
"There was put in evidence, as Mr. Par-

is an en

* nor was I

had made on the application for injunction.
In this he says: "That I acted as the busi-
ness agent of Mrs. Goodwin, taking charge
of the administration of the estate of the
said Hannibal Goodwin, deceased, as stated
in the bill of complaint
tire mistake.' This statement of Mr. Parker
is, no doubt, correct, but it does not disprove
his authority to write the letter of Septem-
ber 12th. Further on he says: 'I was not
authorized by the defendant to accept in her
stead the service of a copy of his claim un-
der oath or affirmation, *
ever authorized to waive the defense which,
under the statute, bars the suit.' This para-
graph, doubtless, refers to authority express-
ly conferred in reference to these particular
subjects. So understood, there is no evidence
to the contrary. But when we consider Mr.
Parker's long experience at the bar, his emi-
nence as a lawyer, and his punctiliousness in
all that concerns his professional relations
with his clients, it is impossible to suppose
that he did not, by reason of what passed be-
tween him and Mrs. Goodwin at their vari-
ous interviews in reference to this claim,
reach the conclusion that he had authority

sion was not entirely correct. This being so, | and, finding no such rule in the record, we and the effect of what he said and did hav- are not at liberty to consider the state of ing been already settled by the highest ju- the case. Spencer v. Bartine, 73 N. J. Law, dicial tribunal in this state, I can come to no 362, 63 Atl. 870. other conclusion than that the material allegations of the bill are sustained by the evidence, and that complainant is entitled to the relief prayed for against Mrs. Goodwin." Chauncey G. Parker, for appellant. Thomas L. Raymond, for respondent.

PER CURIAM. It has previously been decided that the bill of complaint herein sets up a good cause of action. Seymour v. Goodwin, 68 N. J. Eq. 189, 59 Atl. 93; Id., 69 N. J. Eq. 833, 66 Atl. 1134. The cause came on to

final hearing before Vice Chancellor Stevens, who held that the material allegations of the bill were sustained by the evidence, and thereupon advised a final decree for the

complainant. We agree with his conclusions, and the decree should therefore be affirmed,

with costs.

(77 N. J. L. 443)

The reasons assigned for reversal of the judgment below are reduced by counsel for the prosecutor to two, the first of which alleges that the complaint fails to allege the particular subdivision of the act which the state board of health claims to have been violated. The complaint alleges that on the 9th day of August, 1906, the prosecutor “had in his possession at Hackensack, with intent to distribute and sell the same, milk to and in violation of section 4 of an act of the which had been added water, contrary to Legislature of the state of New Jersey entitled "An act to secure the purity of foods, and medicines; and to prevent deception in beverages, confectionery, condiments, drugs the distribution and sale thereof," approved March 21, 1901 (P. L. p. 186); "said milk being impure under the provisions of section

three of the aforesaid act, as said section was amended by act approved April 12, 1905 (P. L. p. 245)." Section 4 of the original act

BOARD OF HEALTH OF STATE OF NEW provides that: "No person shall distribute

A complaint filed to recover a penalty, which alleges that the defendant "had in his possession, with intent to distribute or sell," milk of a quality condemned by the statute, is not met by a plea that the defendant did nothing to produce the condition complained of; and, in the absence of other proof upon the part of defendant and uncontradicted proof upon the part of the state, the court was warranted in directing a verdict for the plaintiff.

[Ed. Note. For other cases, see Food, Cent. Dig. § 16; Dec. Dig. § 16.*]

(Syllabus by the Court.)

Proceeding by the Board of Health of the State of New Jersey against Ernest Vandruens. From a judgment for a penalty, defendant brings certiorari. Affirmed.

Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ.

John S. Mackay for prosecutor. Josiah Stryker and Robert H. McCarter, Atty. Gen., for defendant.

MINTURN, J. The writ of certiorari in this case is designed to review the record of a judgment obtained for a penalty by the state board of health against the prosecutor before a justice of the peace of the county of Bergen and the affirmance of that judgment upon appeal by the court of common pleas. With the record in the case is sent up a state of the case signed by the judge of the common pleas, which under the adjudications of this court forms no part of the record unless diminution has been alleged;

or sell or have in his possession with intent to distribute or sell, any article of food or drug which under the provisions of this act Section 13 shall be deemed to be impure."

of the act as amended by section 3 of the act of June 13, 1906 (P. L. p. 686), fixes the penalty for violation and furnishes a statutory definition of the term "impure milk," viz.: "If it contains more than eighty-eight per centum of watery fluids, or less than twelve per centum of solids." The original act and its amendments of 1905 and 1906 provide a legislative policy or regulation for the protection of the public against the use of impure and counterfeit foods, are clearly in pari materia, and in our judgment are sufficiently indicated in the complaint to give notice to the defendant of the nature of the violation of law he was charged with, and the specific enactments which made his acts an offense. State v. Spear, 63 N. J. Law, 179, 42 Atl. 840; Shivers v. Newton, 45 N. J. Law, 469. In this connection it may be observed that it does not appear from the record before us that this objection was brought to the attention of the trial court, and such omission, it is settled, debars the prosecutor from taking advantage of the objection here. Steward v. Sears, 36 N. J. Law, 173; Butts v. French, 42 N. J. Law, 397.

The second and final objection urged by the prosecutor is that the court directed the jury to find a verdict against the prosecutor and in favor of the state board, thus depriving the prosecutor, as he alleges, of his right to a jury trial. This claim to the right of trial by jury is based upon the contention that, as the proceeding sub judice was to recover a penalty, it was at least a quasi crim

ferred by legislation that may be read into the contract of incorporation.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 2338; Dec. Dig. § 583.*] 3. CORPORATIONS (8 581*)-CONSOLIDATION— CORPORATIONS WHICH MAY-SIMILAR BUSI

NESS.

Under Act March 8, 1893 (P. L. p. 121), and Act April 21, 1896 (P. L. p. 309), § 104, the power to merge two corporations is conpurpose of carrying on business of the same or a ferred only where they are organized for the similar nature.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 7; Dec. Dig. § 3.*] 5. CORPORATIONS (§ 180*)-CHANGE OF PUBPOSE ASSENT OF STOCKHOLDERS.

As between the corporators, the corporate objects expressed in its certificate of incorporation cannot be changed without unanimous consent, unless changed by virtue of some act of legislation which may be read into the contract.

inal prosecution, and not a civil action; but the adjudications of this court are to the contrary. Brophy v. Perth Amboy, 44 N. J. Law, 217; Cahill v. P. R. R. Co., 56 N. J. Law, 445, 29 Atl. 156; Rutgers College v. New Brunswick, 55 N. J. Law, 279, 26 Atl. 87; McGuire v. Doscher, 65 N. J. Law, 139, 46 Atl. 576. The status of the proceeding having been repeatedly adjudged to be of a civil and not a criminal character, it follows that the rules of procedure peculiar to the civil jurisdiction were applicable in the trial [Ed. Note. For other cases, see Corporations, of the cause, and that upon familiar princi- Cent. Dig. § 2324; Dec. Dig. § 581.*] ples it was competent for the court to direct 4. CORPORATIONS (§ 3*)-PURPOSE CHARTER. a verdict, if the testimony was of such a The purpose for which a company is orcharacter as to warrant the direction. Cros-ganized is primarily to be sought in its charter or certificate of incorporation. by v. Wells, 73 N. J. Law, 790, 67 Atl. 295; Polhemus v. Prudential Co., 74 N. J. Law, 570, 67 Atl. 303. It will be observed that the statute sub judice does not make the defendant's guilt dependent upon his knowledge or ignorance of the constituent physical ele ments of the article he was selling or distributing, and the sole inquiry in the case therefore was whether the defendant, in the language of the statute, had in his possession, with intent to distribute or sell, milk of the quality condemned by the act, regardless of his ignorance of its constituent elements or the intention, bona fide or mala fide, which animated him in selling or distributing it. Waterbury v. Newton, 50 N. J. Law, 534, 14 Atl. 604; Halsted v. State, 41 N. J. Law, 552, 32 Am. Rep. 247; Cigar Makers Union v. Goldberg 70 N. J. Law, 488, 57 Atl. 141; Commonwealth v. Goodman, 97 Mass. 117. The state proved the defective quality of the milk by ample testimony, and the defendant met this issue by alleging in effect that, if the milk was within the condemnatory language of the statute, he did nothing to make it so. This defense was clearly petitio principii, entirely beside the question at issue, and warranted the court, under the uncontradicted testimony, in directing the jury to find a verdict for the plaintiff.

The judgment will be affirmed.

(75 N. J. E. 229)

COLGATE et al. v. UNITED STATES
LEATHER CO. et al.

JOHNSTON v. SAME.

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 672; Dec. Dig. § 180.*] 6. CORPORATIONS (§ 40*)-CHANGE OF PUB

POSE-PROCEEDINGS TO CHANGE.

Action on the part of the corporation to change the nature of its business, pursuant to the authority conferred for that purpose by our general corporation act, is to be exercised, if at all, by direct proceedings taken pursuant to the statute.

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 124; Dec. Dig. § 40.*] 7. CORPORATIONS (§ 581*)—CONSOLIDATION—

AGREEMENTS FOR CONSOLIDATION.

The acts authorizing consolidation and merger of corporations (Act March 8, 1893 [P. L. p. 121], and Act April 21, 1896 [P. L. p. 309],

104) neither permit nor contemplate that a change of the objects of incorporation is to be accomplished by means of a consolidation agree

ment.

Cent. Dig. 8 2324; Dec. Dig. § 581.*]

[Ed. Note.-For other cases, see Corporations,

8. CORPORATIONS (§ 581*) - CONSOLIDATION
CORPORATIONS WHICH MAY-SIMILAR BUSI-
NESS "BUSINESS OF THE SAME OR SIMILAR
KIND."

Upon an examination of the respective certificates of incorporation of the United States Leather Company and of the Central Leather Company, held, that these two corporations were not organized for the purpose of carrying on business of "the same or a similar nature," within the meaning of Act March 8, 1893 (P. L. p. 121), and that the proposed consolidation of violative of the rights of nonassenting stockholders.

(Court of Errors and Appeals of New Jersey. the two companies is unauthorized by law and

[Ed. Note. For other cases, see Corporations, Cent. Dig. § 2324; Dec. Dig. § 581.*] (Syllabus by the Court.)

Appeal from Court of Chancery.

Separate bills by James C. Colgate and others and by Ellen A. Johnston, executrix, and others, to restrain the consummation of against the United States Leather Company a proposed consolidation of the United States

Leather Company, of which company complainants were preferred stockholders, with the Central Leather Company. From orders of the Court of Chancery, modifying the injunctions theretofore granted by that court, complainants appeal. Reversed, and record remitted for further proceedings.

ers.

See, also, 67 Atl. 657.

bond or debenture and no mortgage shall be made or granted by that company without the consent of the holders of record of 80 per cent. of the preferred stock of the United States Company then outstanding.

consolidation

In December, 1906, when the Central Leather Company held about 90 per cent. of the preferred stock and about 96 per cent. of Pitney, Hardin & Skinner, Lewis L. Dela- the common stock of the United States Comfield, and Eugene D. Hawkins, for appel- pany, a proposed agreement of merger and lants James C. Colgate and others. Chaunwas arranged between the cey G. Parker, Francis C. Huntington, Thom- boards of directors of the two companies for as N. Rhinelander, and Origen S. Seymour, submission to the stockholders thereof unfor appellants Ellen A. Johnston and oth-der the terms of an act of March 8, 1893 (P. Robert H. McCarter, Atty. Gen., Rich- L. p. 121). The bills prayed an injunction to ard V. Lindabury, Edward M. Shepard, L. restrain the submission of this agreement to 0. Krauthoff, and William H. Harkness, for the stockholders of the United States Leathrespondents. er Company, and to restrain the taking of any steps to carry the agreement into effect, without the consent of the complainants These bills of complaint were filed in the Court of Chancery by cerand other nonassenting preferred stockholdtain preferred stockholders of the United ers. Upon the filing of the bills applications States Leather Company, for an injunction for injunctions pendente lite were made beto restrain the consummation of a proposed consolidation or merger of that company with the Central Leather Company.

PITNEY, Ch.

Both corporations were organized under the laws of this state. The United States

fore Vice Chancellor Emery. In his opinion (Colgate v. United States Leather Co. [N. J. Ch.] 67 Atl. 657) he overruled most of the contentions of the complainants, but held in their favor that the consolidation agreement violated the equitable rights of the preferred stockholders of the United States Company because it required them to accept stock of the consolidated company in lieu of the liability of the United States Company to account to the preferred stockholders for accrued and unpaid dividends. The directors of the defendant companies, acquiescing in this decision, rescinded the proposed merger agreement that had thus been denounced, and proposed for submission to the stockholders a modified agreement bearing date October 10, 1907, similar in terms to the former agreement, but containing a provision permitting any holder of preferrred stock of the United States Company to retain “any lawful right, whether past, present, or future, of the holder thereof to demand or receive from the United States Leather Company or the Central Leather Company, any money, value, or thing by reason of any dividends accrued and unpaid upon the said share." Thereupon the court modified the preliminary injunctions to such extent as to permit the agreement of October 10, 1907, to be submitted to the stockholders of the two companies for approval. From the orders modifying the injunctions, the complainants appeal to this court.

Company was incorporated under the provisions of the general corporation act of April 7, 1875 (Revision 1877, p. 175; 1 Gen. St. 1895, p. 907), and its supplements, by articles of association dated, recorded, and filed on February 25, 1893. An amended certificate of incorporation was made under date April 29, 1893. The Central Company was incorporated under the revised general corporation act of April 21, 1896 (P. L. p. 277), under articles of association dated, recorded, and filed April 12, 1905. The amended certificate of incorporation of the United States Company contains provisions entitling the preferred stock to a cumulative dividend of 8 per centum per annum, payable out of the net earnings of the company, before any payment is made on the common stock, and, in case of nonpayment in full of any such yearly dividend, the portion unpaid is to be a charge, without interest, upon the earnings of the company prior to the claims of the common stock. In case of liquidation the preferred stock is to be paid in full at par, together with all earned and unpaid dividends, before any payment is made on the common stock. The common stock is entitled to all dividends declared and payable out of the net earnings after the dividends have been paid upon the preferred stock, and in case of liquidation the common stock is entitled to the entire assets of the company remaining after the payment in full at par of the preferred stock then outstanding, togeth- Firstly. The learned vice chancellor held er with all dividends thereon earned and un- that the right and power of consolidation paid. By the amended certificate it is also must be rested upon the act of March 8, 1893 provided that the United States Company (P. L. p. 121), which was not a supplement may create and issue debentures to the to the general corporation act of 1875, but

The cases present numerous questions that we have not found it necessary to determine, and upon which we must be understood as not committing ourselves: