adapted safely to do the work. In our judg- (77 N. J. L. 434) YOUNG v. SPAGNUOLA. PARKER, J. The plaintiff while in the | the direction of the foreman over such servemploy of the defendants as a stone mason ant, a hook or appliance not furnished or was injured by a large block of stone falling on his foot, and in this action recovered a verdict of $1,500 for the injury, and the matter has been argued on rule to show cause why a new trial should not be had. A number of reasons are assigned, but one will suffice. It appears that the stone which caused the injury, weighing from 1,000 to 1,500 pounds, was suspended from a derrick, and had been swung over a trench where plaintiff was working, for the purpose of being lowered into place, when it slipped from the tackle by which it hung and fell on plaintiff's foot. The plaintiff claims that the defendant company, his employer, was negligent in failing to use due care in supplying a reasonably safe appliance to suspend the block of stone. The appliance in question was what is known as a stone hoist, consisting of a loop of rope on which were strung two large stone hooks having eyes through which the rope ran, and the points facing each other; so that, when the hooks were applied to opposite ends of a block of stone and strain put on the loop of rope, the hooks would be drawn together, and grip the stone tightly enough to raise and hold it in the air. One complaint was that "dog holes" should have been drilled or cut in the stone for the points of the hooks to engage in. This omission, however, if it was negligent, was clearly the fault of a fellow servant, for which the master was not responsible. The principal complaint was that the points of the hooks turned outward instead of inward, or, as one witness put it, bent backward so as to bring a curve instead of a point into contact with the stone, and thereby permitted it to slip and fall. This somewhat extraordinary claim was evidently entertained by the jury as a basis of recovery. An appeal from the judgment of district court cannot be taken as to matter of fact, but as to matter of law only. The finding of the trial court on matters of fact is conclusive on appeal if there is any evidence upon which to found it. [Ed. Note. For other cases, see Courts, Dec. Dig. § 194.*] (Syllabus by the Court.) Appeal from District Court of Newark. Action by O. W. Young, a corporation, against Irena Spagnuola. Judgment for plaintiff, and defendant appeals. Affirmed. Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ. James M. Trimble, for appellant. Riker & Riker, for appellee. VOORHEES, J. This is an appeal from the Second district court of Newark. The action was brought against Irena Spagnuola, the wife of Vincenzo Spagnuola, on a book account, the first item of which is $22, under date of October 3, 1906, and the last September 3, 1907, together with credits running from October 29, 1906, to and including AuWithout going into the question of weight gust 27, 1907. Judgment was given for $176.of evidence on this point, we think it was 18, being the amount claimed with interest. satisfactorily made out that, however im- The state of the case shows that it was adperfect the hooks in use may have been, the mitted that the account constituted a correct master had supplied, and placed at the statement of the goods delivered, and that service of the foreman who selected them, the only question to be decided was whether perfectly safe and adequate hooks and rope the goods had been sold to the defendant or for this very purpose. These appliances to her husband. The grounds specified for were at the storehouse in Paterson where reversal are (a) that there is no evidence to the foreman procured what he needed; so show that goods were sold to the defendant; that, if he negligently selected insufficient (b) that, if the goods were charged to the ones, it was the negligence of a fellow serv-wife, it was done with full knowledge that ant for which the master is not responsible. they were supplied to the husband's business; The foreman was in no sense the representa- (c) that the motion for nonsuit should have tive of the master in furnishing the hooks been granted. and tackle as in Steamship Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619; but was a co-worker with the plaintiff, and the choice of appliances was incidental to the work. The judge charged the jury that, if safe and proper tools and appliances are supplied by the master, he is not liable for any injury which his servant received by using, under It appears that previous to October 9, 1906, an account was in existence between the plaintiff and the husband of the defendant; that on the last date the plaintiff wrote to his agent, Mr. Asnis, not to sell any more goods to the husband of the defendant, but to sell to the defendant; that on receipt of that letter the agent called at the store and The facts are as follows: Prosecutor was arrested on writs of ca. sa. in two suits: In the first on October 28, 1907, and in the second on February 9, 1908. After the first arrest, he gave the bond and made the inventory provided for by section 6, and in saw the defendant, showed her the letter, | court of common pleas has power to extend and stated to her that in the future he could the time within which the creditors are resell no goods to her husband, but was author- quired by that section to plead thereto, or ized to sell to her; that the defendant took to permit the filing of pleas out of time. the letter, showed it to her daughter, who explained it to her, and thereupon stated that she would purchase the goods. This is denied on the part of the defendant. The case was tried by the court without a jury. It was a question of fact to whom credit was given and sales were made. There was evi- | regular course his petition was presented to dence from which the trial judge sitting as a jury might find that the goods were sold upon the wife's credit. An appeal cannot be taken as to facts, but on matter of law only. The finding of the trial court on matters of fact is conclusive here. It appears that by the state of demand the first item on the bill is "50 gallons, $22," under date of October 3, 1906. Evidently this was not chargeable to the wife because it is not claimed by the plaintiff that the credit was given to the wife until after the letter of October 9, 1906. A corresponding credit of $22 appears in the credit items on November 9, 1906. This has not been alleged as a cause for reversal and no point has been made of the application of payments; hence this matter is excluded from the consideration of this court. The judgment will be affirmed. (77 N. J. L. 358) COMPTON v. CALVERT et al. In proceedings under the act for the re- (Syllabus by the Court.) Certiorari to Court of Common Pleas, Union County. Certiorari, on the prosecution of Andrew W. Compton, against James C. Calvert, clerk of the court of common pleas, and others to review a proceeding before the Union County Common Pleas. Order set aside. the court and a day fixed for hearing. In the meantime the defendant Ramey, another creditor, had caused his arrest on a ca. sa. in a second suit, and a similar bond was given and inventory delivered to the sheriff. Notice of the time and place of hearing was duly given, the examination was held and the two plaintiff creditors attended, and pursuant to section 13 expressed themselves as dissatisfied with the truth and honesty of his statement and inventory, etc., and undertook to prove by the first day of the next term that he has secreted some part of his estate, and was therefore not entitled to a discharge. The court therefore remanded Compton as required by law upon the creditors entering into the undertaking to pay his prison board as prescribed by the statute. The The next step in the proceedings was for the debtor to file the statutory declaration within 30 days after his remand. Section 14. This he did; and it became the duty of the creditors, if they desired to contest his claim to discharge, to file their respective statutory pleas "within twenty days after filing the said declaration but not afterwards." same section further provides "that if within twenty days after filing the declaration of the debtor, no creditor do file a plea to the same, the clerk of the court, on the application of the debtor, is hereby required to enter in the minutes of the said court a certificate that no plea has been filed by any creditor to the declaration of the debtor, and that the debtor may produce a copy of the said certificate under the hand of the clerk and seal of the court, to any two judges of the court, who being together, are hereby empowered to make their joint order in writing under their hands and seals, that the debtor for default of a plea filed to his declaration by any creditor, be discharged out of custody." 2 Gen. St. 1895, pp. 1730, 1731, 14. The act of March 26, 1896 (P. L. p. 149) reduced the number of judges of the court of common pleas to one besides the Su Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ. William Newcorn, for prosecutor. John S. preme Court Justice assigned to the county, Mackay, for defendants. PARKER, J. The question for decision in this case is whether in proceedings under the insolvent debtors' act so-called (2 Gen. St. 1895, p. 1726), after the debtor has filed the statutory declaration, the form of which is set out in full in section 14 of the act, the and gave that one judge all the powers of the three formerly existing, since which time his signature alone has been sufficient. No plea was filed within the 20 days, and the clerk's certificate was duly entered as provided in the portion of the statute above quoted. We come, now, to the particular proceed (77 N. J. L. 272) WILKIE v. MARSHALL. (Supreme Court of New Jersey. March 4, FRAUDS, STATUTE OF (§ 23*)-PROMISE TO PAY A promise by A. to pay a debt incurred by B., in the course of a specific litigation if B. was unsuccessful in such litigation is not within the statute of frauds. [Ed. Note. For other cases, see Frauds. Stat (Syllabus by the Court.) Appeal from District Court of Trenton. Action by James Wilkie against Erwin E. Marshall, executor. Judgment for defendant, and plaintiff appeals. Reversed. ing brought up by this writ of certiorari, | power to extend the time to plead; and the which is an order by the court of common order brought up will therefore be set aside. pleas that, notwithstanding their default, the with costs. creditors Gere and Ramey be allowed until May 16th to file their pleas, which by law were due on April 15th. This order was apparently based on affidavits of the respective attorneys for the named creditors, to the effect that they expected to be served with a copy of the declaration, and each attorney (so say the affidavits) thought the other one would file the necessary plea. The prosecutor attacks this order as illegal and beyond the jurisdiction of the court, and we think he is right. We find no authority of law for such an order, nor do the defendants undertake toute of, Cent. Dig. § 18; Dec. Dig. § 23.*] cite any in their briefs; and they were not represented by counsel at the oral argument. Prosecutor suggests section 112 of the practice act of April 14, 1903 (P. L. p. 569), and its predecessor (Act March 26, 1903, P. L. p. 129), permitting opening of judgments by default due to negligence of attorneys. Whether the Pleas resorted to this statute or the discretionary power of the court in actions at law to extend the time for pleading in certain cases is of no moment, for neither the section of the practice act cited nor the discretionary power has any bearing on insolvency proceedings. Even if they had, the order would be irregular, as made, without notice after time to plead had expired. Lucke v. Kiernan, 68 N. J. Law, 281, 283, 53 Atl. 566. But apart from this these proceed-R. S. Woodruff.” ings are special and statutory, and the statute is specific in limiting the time to plead to 20 days, not after the declaration is due, as in common law actions, but after it is filed, and in expressly forbidding the filing of a plea beyond the 20 days' period. The creditor, therefore, must be vigilant in watching for a declaration and in pleading in time, or his rights are gone. * * * * * The brief submitted for defendants is devoted mainly to argument that the court is not bound by law to discharge the debtor from custody on default of creditor's plea duly certified by the clerk. The words used in the statute are: "Empowered to make order that the debtor * be discharged." While this precise point is not perhaps before us for decision, it is a corollary of the order extending time to plead; for, if that time cannot be extended, no issue can be framed for trial. The debtor's declaration, that he has well and truly complied with the act, stands confessed; and he is entitled to his discharge as of course. This clause has always in practice been regarded as mandatory, and in a case arising under section 11, where the word "may" is used, the court regarded discharge as a right. Weeks v. Buderus, 39 N. J. Law, 448. This would seem to be indicated clearly by the title of the act. The agreed state of facts is as follows: This action was brought upon two promissory notes, copies of which are as follows: "$200.00. Trenton, N. J., Nov'r 20th, 1903. "Sixty days after date I promise to pay to the order of Irwin P. Wolfinger two hundred dollars at First National Bank Trenton, N. J. Value received. "[Signed] James Wilkie." Indorsed: "Irwin P. Wolfinger, R. S. Woodruff." Also: "Protest waived, 1-19-1904. "$50.00. Trenton, N. J., Nov'r 23, 1903. "[Signed] R. S. The plaintiff, having moved his case, offered as a witness on his behalf Irwin P. Wolfinger, who testified in substance as follows: "I had a suit in the Court of Chancery, entitled Irwin P. Wolfinger v. Dora McFarland, which had been decided against me as complainant in said court. It was an important case to me, and I had not the means to take an appeal. I needed $250 to pay for printing the testimony in the case, with which to take an appeal to the Court of Errors and Appeals. My solicitors in the case were the late Judge R. S. Woodruff and Carroll Robbins. Judge Woodruff requested me to make an effort to raise the sum of $250 to pay for printing for an appeal. I called upon my friend Mr. Wilkie, the plaintiff herein, and asked him to help me. Mr. Wilkie and I met Judge Woodruff at the judge's office on November 20, 1903, for the purpose of having Judge Woodruff explain the situation of the suit in chancery to Mr. The court of common pleas was without Wilkie, the plaintiff. The judge (Woodruff) diyidual undertaking was also liable for the debt is not significant if his failure to pay the debt was not the event upon which Woodruff's liability was conditioned. If Wolfinger had succeeded in his appeal, Woodruff would have been entirely released from his promise as proved by the oral testimony, and the fact that Wolfinger did not pay his debt would have been an immaterial circumstance as far as Woodruff was con told him (Wilkie) that there was a large | credit was given. This is the test to be amount of testimony in the case, and that it applied. The fact that Wolfinger on his inwould have to be printed if an appeal was taken. Judge Woodruff said to Mr. Wilkie: 'If Mr. Wolfinger succeeds in his suit, he can pay you handsomely,' and then judge slapped Mr. Wilkie on the knee with his hand, and said: 'And, if he fails, I will pay you.' Whereupon Mr. Wilkie made the note for $200, dated the same date, and made at that sitting and drawn up by Judge Woodruff in his office, signed by Mr. Wilkie, and at the same time indorsed by R. S. Wood-cerned, which would not be the case if ruff. It was soon ascertained that more money was needed and the second note was made, and $50 additional was loaned, and Mr. Wilkie paid both notes at bank. Mr. Wolfinger further testified that his suit in chancery was taken by appeal to the Court of Errors, and the opinion below was affirmed. Woodruff's promise to pay the debt had been Argued November term, 1908, before GAR- GARRISON, J. (after stating the facts as above). Woodruff's promise was that, if his client failed in his appeal, he (Woodruff) would pay the money obtained from the plaintiff to do the printing required on such appeal. There was no objection to the competence of this testimony, and no point is made that the promise thus proved lacked consideration. The appellant was nonsuited solely upon the ground that the promise thus proved was to pay the debt of another, and was not in writing. Two questions that are not raised, and hence will not be considered, are (1) whether the notes signed by Woodruff do not satisfy the statute of frauds; and (2) whether the action in the court below being on the notes should have gone off on the parole promise of the indorser. It was error, therefore, to direct a nonsuit upon the ground stated, and no other ground has been suggested for its support. Because of this trial error, there must be a venire de novo, to which end the judgment of the district court is reversed. (77 N. J. L. 408) TEN EYCK v. MENDEL. (Supreme Court of New Jersey. Feb. 23, 1909.) Where the summons is in the ordinary form of an action on contract, and the declaration declares upon a penal statute which requires that there be indorsed upon the process the rule of the statute, and also upon the declaration a special note of the date of the institu tion of the action, the summons will not be quashed when there is nothing in it which shows that the suit was instituted by a common informer to recover a penalty, but the declaration being clearly founded upon a penal statute, and motion to strike it out will be allowed. not complying with the law in such cases, a [Ed. Note.-For other cases, see Process, Cent. Dig. § 213; Dec. Dig. § 157: Pleading, Cent. Dig. § 1081; Dec. Dig. § 352.*] (Syllabus by the Court.) Action by Edward M. Ten Eyck against Milton Mendel. Rule to show cause why summons should not be set aside. Motion to quash denied, and motion to strike out Upon the case made in the trial court and presented and argued here the sole question is whether the promise proved by the oral testimony was within the statute of frauds. Upon this point we think it clear that the promise proved at the trial was not within the statute-i. e., that it was an original promise as distinguished from a collateral one and that it was none the less original because conditional. The only condition that would render such a promise collateral would be that Woodruff was to pay in case Wolfinger did not. That, however, was not the condition. It was not Wolfinger's failure to pay his debt, but his failure to succeed in his appeal, that constituted the condition upon which Woodruff was to pay. When H. & Theo. Strong, for defendant. Wolfinger failed in his appeal, the sole condition upon which Woodruff's promise BERGEN, J. The plaintiff brought suit hinged was fulfilled. Such a promise was against the defendant to recover for cutting an original one, upon the strength of which timber. After suit brought and declaration declaration allowed. Argued November term, 1908, before REED, BERGEN, and MINTURN, JJ. Walter L. Hetfield, Jr., for plaintiff. Alan filed, a rule was allowed requiring the plaintiff to show cause why the declaration should not be quashed, and the summons set aside, because a special note was not indorsed on the declaration of the date of the institution of the action, and because the summons has not upon it the special note required by the statute upon which the action is founded. The law has been settled for many years in this state that in suits instituted by a common informer to enforce a penalty the proparty who prosecutes, and the title of the statute upon which the action is founded, and also that there shall be indorsed upon cess shall be indorsed with the name of the the information a special note of the day of the institution of the suit. Therefore, if this is a suit for a penalty the proceedings are irregular, and timely objections being made, the summons should be quashed and the suit dismissed. It is urged by the plaintiff that the suit is not by a common informer, but by the owner of land against a trespasser. The answer to this objection appears in the declaration which claims from the defendant $600, being $8 for each tree cut, etc., according to the act entitled "An act to prevent the unlawful waste and destruction of timber in this state." passed February 28, 1828. The record shows that the summons is in the ordinary form of an action on contract, and there is nothing which appears in the summons showing that the suit was instituted by a common informer to recover a penalty, and therefore there is no reason why it should be quashed, but the declaration is clearly founded upon a penal statute, and is not supported by the summons, and should be stricken out. The motion to quash the summons is denied, and the motion to strike out the declaration allowed. As both parties have succeeded in part, costs will not be allowed to either. (76 N. J. L. 660) DANSKIN V. PENNSYLVANIA R. CO. et al. (Court of Errors and Appeals of New Jersey. March 1, 1909.) RAILROADS (§ 314*)—OPERATION—ACCIDENTS AT CROSSINGS-OBSTRUCTION OF VIEW. The fact that at the time a railroad was located across a public highway there existed brush or woods at a crossing which might obstruct a traveler's view of an approaching train is not of itself enough to charge the railroad company with the duty of adopting extraordinary safeguards at the crossing. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 314.*] (Syllabus by the Court.) John S. Applegate & Son and Alan H. Strong, for plaintiffs in error. Gilbert Collins, for defendant in error. SWAYZE, J. This is a case of collision at a railroad crossing. The train which killed the decedent was operated by the Pennsylvania Railroad Company. The railroad on which it ran was controlled by the New York & Long Branch Railroad Company. The negligence alleged against the latter com pany was the failure to provide safeguards at the crossing other than the statutory signals required of its codefendant. The trial judge charged that there was but one question of negligence or want of care against each company: Against the Pennsylvania, the alleged failure to ring a bell; against the New York & Long Branch, the alleged failure to provide safeguards other than the signals on the locomotive, by reason of conditions existing at the time it laid its tracks there. These conditions were said to be the existence, at the time of the location of the railroad, of a brush or woods tract, which remained substantially the same until the time of the accident. The defendants excepted to so much of the charge as permitted the jury to find a verdict against the New York & Long Branch railroad upon the theory of its being obliged to adopt extraordinary precautions beyond the statutory signal. Thereupon the jury were recalled, and told that the liability to give other protection only arose when the railroad company had, either by locating its line in a dangerous place, or by its own act, created dangers which made the place of crossing especially dangerous. Thereupon the defendants excepted to so much of the charge as permitted the jury to find the company liable if it did not adopt extra precautions. There was no evidence of special danger except that caused by the brush or woods. The charge in effect permitted, if indeed it did not require, the jury to find the Long Branch Railroad liable for its failure to adopt extra precautions merely because the brush or woods existed when it located its road. If the charge required such a finding, it was clearly injurious because it laid down as a proposition of law what should have been left to the jury as was done in Pennsylvania R. R. v. Matthews, 36 N. J. Law, 531, N. Y. L. E. & W. R. R. Co. v. Randel, 47 N. J. Law, 144, and in Hires v. Atlantic City R. R. Co., 66 N. J. Law, 30, 48 Atl. 1002. If, however, the charge only permitted the jury to find that the duty to adopt extra precautions arose from the existence of the brush or woods at the time of the location of the railroad, it was equally injurious, for it predicated the existence of the duty upon the existence, at a remote time, of a single circumstance, which may or may not have |