indications that the modifications of this decree were intended to affect the equitable rights of the assignee, and the vice chancellor considers such rights, and places his decision upon that basis. The contested point was whether the assignment came into legal existence prior to or after the making of the decree, and, the decision being in favor of this latter proposition, the petitioner was refused relief. But this entire inquiry was totally irrelevant. As we have seen, no matter what its result, as between this appellant and respondent, it could have no effect whatever; and it is equally evident that no possible determination that could have been made in the proceeding could either prejudice or benefit the rights of the assignee, she not being a party to the record. If this assignee has any equitable right in this decree, nothing that these parties before us could do in her absence would have the effect of impairing it. Mrs. Millington, the assignee, is now dead, and it is not pretended that her executrix has ever heard of this proceeding; so that neither the legal existence of this assignment nor its effect can be put in question under this petition. A decree with respect to such matters, under present conditions, would be an empty form of words. But as, in the opinion of this court, a right result has been reached, let the decree be affirmed.

GREENWOOD v. LAW. (Court of Errors and Appeals of New Jersey. March 6, 1893.)

STATUTE OF FRAUDS-SALE OF GOODS.

A parol agreement to sell and assign a bond and mortgage is a contract for the sale of goods, wares, and merchandise within the

sixth section of the statute of frauds.

(Syllabus by the Court.)

Error to circuit court, Passaic county; Dixon, Judge.

Action by George Law against Francis Greenwood to recover damages for the refusal of defendant to execute a parol agreement to assign a mortgage to plaintiff. A motion to nonsuit plaintiff was denied, and defendant brings error. Reversed

John W. Griggs, for plaintiff in error. Eugene Emley, for defendant in error.

VAN SYCKEL, J. Law, the plaintiff below, gave to Greenwood, the defendant, a mortgage upon lands in this state for the sum of $3,700. Law alleged that Greenwood entered into a parol agreement with him to assign him this mortgage for the sum of $3,000, and brought this suit to recover damages for the refusal of Green wood to execute said parol agreement. On the trial below a motion was made to nonsuit the plaintiff on the ground that the alleged agreement was within the statute of frauds. The refusal of the trial court to grant this motion is assigned for error. Lord Chief Justice Denman, in Humble v. Mitchell, reported in 11 Adol. & E. 205, and decided in 1840, said that no case directly in point on this

subject had been found, and he held that shares in an incorporated company were not goods, wares, and merchandise, within the seventeenth section of the statute of frauds. He overlooked the cases of Mussell v. Cooke, reported in Finch, Prec. 533, (decided in 1720,) and Crull v. Dodson, reported in 2 Eq. Cas. Abr. 51, c. 28, Sel. Cas. Ch. 41, (decided in 1725,) in which the contrary view was taken. In the case of Pickering v. Appleby, Comyn, 354, this question was fully argued before the 12 judges, who were equally divided upon it. The cases decided in the English courts since 1940 have followed Humble v. Mitchell. They will be found collected in Benj. Sales (Ed. 1888,) in a note on page 106. In this country a different rule prevails in most of the states. In Baldwin v. Williams, 3 Metc. (Mass.) 365, a parol contract for the sale of a promissory note was held to be within the statute. In Connecticut and Maine a contract for the sale of shares in a joint-stock company is required to be in writing. North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430. Chief Justice Shaw, after a full discussion of the subject in Tisdale v. Harris, 20 Pick. 9, concludes that a contract for the sale of shares in a manufacturing corporation is a contract for the sale of goods or merchandise within the statute of frauds, and, in the absence of the other requisites of the statute, must be proved by some note or memorandum in writing, signed by the party to be charged or his agent. He did not regard the argument that by necessary implication the statute applies only to goods of which part may be delivered as worthy of much consideration. An animal is not susceptible of part delivery, yet undoubtedly the sale of a horse by parol is within the statute. The exception in the statute is when part is delivered; but, if there cannot be a delivery in part, the exception cannot exist to take the case out of the general prohibition. Bonds and mortgages were expressly held to be goods and chattels in Terhune v. Bray's Ex'rs, 16 N. J. Law, 53. That was an action of trover for a bond and mortgage. Chief Justice Hornblower, in deciding the case, said that, although the attachment act and letters of administration seem to distinguish between rights and credits and goods and chattels, and although an execution against the latter will not reach bonds and notes, yet there is a sense in which, upon sound legal principles, such securities are goods and chattels. This sense ought to be applied to these words in this case. Reason and sound policy require that contracts in respect to securities for money should be subject to the reasonable restrictions provided by the statute to prevent frauds in the sale of other personal property. The words, “goods, wares, and merchandise," in the sixth section of the statute, are equivalent to the term "personal property," and are intended to include whatever is not embraced by the phrase “lands, tenements, and hereditaments" in the preceding section. In my judgment, the contract sued upon is within the statute of frauds, and it was error in the court below to refuse to nonsuit.

UNITED NEW JERSEY RAILROAD &
CANAL CO. et al. v. MAYOR, ETC., OF
CITY OF JERSEY CITY et al.
(Court of Errors and Appeals of New Jersey.
March 6, 1893.)

RAILROAD LANDS-TAXATION.

The authorized right of way of a railroad, duly acquired, over which a railway has been constructed, and is in good faith operated, is used for railroad purposes, within the meaning of the act of April 10, 1884, (P. L. 142,) although it may not, for the time being, be wholly occupied by tracks, or other railroad appliances.

(Syllabus by the Court.)

Error to supreme court.

Petition by the United New Jersey Railroad & Canal Company and the Pennsyl vania Railroad Company, its lessee, against the mayor and aldermen of the city of Jersey City and others, to determine the right of defendants to enforce the assessment of certain taxes. Defendants had judgment, (22 Atl. Rep. 59,) and plaintiffs bring error. Reversed.

James B. Vredenburgh, for plaintiffs in error. James P. Northrop, for defendants in error.

MCGILL, Ch. The judgment reviewed determined that a strip of land 400 feet long and 65 feet wide, belonging to the United New Jersey Railroad & Canal Company, and by it leased to the Pennsylvania Railroad Company, was properly assessable by the local assessors of the city of Jersey City for the taxes of the years 1884, 1885, 1886, and 1887, and that taxes assessed thereon in those years, which were subsequently adjusted by commissioners acting in pursuance of the provisions of the act of the legislature of March 30, 1886, entitled "An act concerning the settlement and collection of arrearages of unpaid taxes and assessments and water rates or water rents in cities of this state," etc., commonly called the “Martin Act," should be paid to the municipality of Jersey City, and that taxes assessed thereon in the same years by the state board of assessors, and paid by the plaintiffs in error, should be refunded to them by the state treasurer. The strip of land in question is a portion of the right of way, 100 feet wide, which was acquired by the United New Jersey Railroad & Canal Company prior to the year 1872 in virtue of authority granted to it by the act of the legislature of March 30, 1868, (P. L. 551,) to construct and build a branch railroad not exceeding 100 feet in width from Harsimus cove, ou the Hudson river, to a point in the line of its then existing railroad in or eastward of the deep cut in Bergen hill, with as many sets of tracks and rails as said directors shall deem necessary, and with power to procure the right of way for such branch railroad." Shortly after acquiring the way thus authorized, the United New Jersey Railroad & Canal Company built over the entire length of it, on its southerly side, two railroad tracks, upon a structure elevated above the level of the streets of Jersey City, which, when the assessments for taxes complained of were levied, actually

occupied 35 feet of the southerly side of the right of way. The unoccupied remainder of that right of way, at the point in question, bounds on Sixth, Monmouth, and Brunswick streets in Jersey City, and is the land assessed. Until after the questioned assessments, the two tracks originally constructed adequately answered the requirements of traffic over the branch road, but lately it has become necessary to add an additional track, and widen the elevated structure some 25 feet. From the time of acquiring the right of way, until after the levying of the taxes considered, that portion of the right of way which was unoccupied by tracks was held vacant, in anticipation of demand tor increased track age and other structures in cident to the operation of the branch road, and for use in process of the construction of the elevated tracks, but for no other purpose. It was not rented, or otherwise used for profit. The act of April 10, 1884, entitled "An act for the taxation of railroad and canal property," (P. L. 142.) provides that all property of any railroad company used for railroad purposes" shall be assessed by a state board of assessors, and not by the assessors of the municipalities in which they lie.

The plaintiffs contend that the lands in question, within the meaning of the act last referred to, are used for railroad purposes, and were properly assessed by the state board of assessors, and not properly assessed by the authorities of Jersey City In view of the facts stated, it is observed that the precise question now presented is whether a portion of the right of way of a railroad company, which is not, for the time being, actually covered by tracks, erections, or appliances necessarily incident to the operation of a railroad, although acquired and strictly held for that purpose and use in railroad construction, is, within contemplation of the act of 1884, "used for railroad purposes. The question is an important one, for it is within the knowledge of every one who is observant of railroads that the entire right of way is rarely occupied. This is not so noticeable in the older roads, whose increasing business has demanded additional trackage, yet even with such roads unoccupied portions of the right of way are not uncommon. Are we to say that each of those portions is not used for railroad purposes, merely because it is not presently, and all the time, in actual orcupation? Such a construction of the statute appears to us to be too literal and narrow. We think that where an authorized right of way has been acquired, over which a railroad has been constructed, and is in good faith operated, which right of way is not devoted to another purpose, it is used for railroad purposes, within the meaning of the statute considered, although it may not, for the time being, be wholly occupied by tracks, or other railroad appliances. The part of it which awaits railroad occupation, upon the demand of Lecessity, is in use, like the curtilage to a dwelling house or the sides of a country highway. It does not stand in the category of those quantities of land, limitless by law, which railroad companies

MCGILL, Ch., (after stating the facts.) The proofs satisfactorily establish that the plaintiff was practically invited by the defendant's employes to pass from the boat by the vehicle way. The northerly passenger exit was closed. The southerly exit was narrow. When the boat was made fast to the bridge, although there were no animal or vehicles upon it, a gang plank or slide was drawn to it from the bridge, and the vehicle way gate, behind which there was a waiting crowd, was thrown open, as though a signal to the crowd to pass off that way. The plaintiff was among the first of those who availed themselves of this offered exit. The use for which the way he took was designed was the transfer of controlled animals and vehicles to and from the boat. Passage over it brought to him knowledge of its customary use, and suggested a prudent watchfulness against the dangers attendant upon that use. In other words, it was a place of obvious danger from a certain use, against which it was the plaintiff's duty to guard, and the invitation to pass that way did not absolve him from the reasonable performance of his duty in this respect. duty did not extend to dangers from causes ab extra that use, such as the rapid, uncontrolled career of a wild horse, whose course was undirected, irregular, and regardless of any way, and who, as he madly ran at random, happened to spring over the end of the bow to the place where the plaintiff was injured. We think that it was not the plaintiff's duty to anticipate use of the driveway by a runaway horse of the defendant, and, speaking with more particularity, to anticipate the bolting of such a horse over the end of the bow into the driveway. I am satisfied that this case is within the reasoning of the well-considered case of Railroad Co. v. Ball, 53 N. J. Law, 283, 21 Atl. Rep. 1052, which cannot fail to elicit approval. It is not perceived that there was negligence upon the part of the plain tiff which contributed to the injury of which he complains; hence we are of opinion that he was improperly nonsuited. The judgment below must be reversed, that a venire de novo may issue.

But the

MAYOR, ETC., OF CITY OF NEWARK et al. v. MERCHANTS' INS. CO. (Court of Errors and Appeals of New Jersey. March 6, 1893.) TAXATION-MORTGAGES.

The act of 1876 (Revision, p. 1163) applies to real estate mortgages only, and a mortgage upon commingled real and personal property is not affected by the act.

(Syllabus by the Court.)

Error to supreme court.

Certiorari by the Merchants' Insurance Company against the mayor and cominon council of the city of Newark and others to review proceedings assessing railroad bonds of plaintiff. There was judgment exempting the bonds from taxation, and defendants bring error. Modified.

William B. Guild and Joseph Coult, for plaintiffs in error. E. M. Colie, F. C. Howell, Whitehead & Condit, and F. Adams, for defendant in error.

99

REED, J. The present writ of error brings up a judgment of the supreme court rendered upon four writs of certiorari, which brought into that court certain taxes levied in the city of Newark against four corporations. These corporations were the Merchants' Insurance Company, the American Insurance Company, the Fireman's Insurance Company, and the Newark Fire Insurance Company. The tax now in dispute was levied upon certain bonds held by these corporations. The bonds were made by certain streetrailway companies, and were secured by nortgages executed by the respective companies. No deduction from the amount assessed against these street-railway companies was claimed by any of them, on account of these mortgages. Included in the property mortgaged was, it is claimed, real estate, intermingled with the personal property of the mortgagors. The contention is that the bonds secured by these mortgages, for which no deduction was claimed by the mortgagors, is exempt from taxation in the hands of the mortgagees or their assignees. This claim is rested upon the language of the act of 1876, (Revision, p. 1163,) which provides "that hereafter no mortgage or debt secured thereby shall be assessed for taxation unless a deduction thereforshall have been claimed by the owner of the land and allowed by the assessor. Street railways are taxable, under section 1 of the act of 1878, (Supp. Revision, p. 170, ) for their real and personal property, as if they were individuals. The proviso to that section, namely, that it shall not apply to railway and certain other corporations, dues not include street-railway companies. The term “railway corporations," as it is there employed, means those steam railroads which constitute a class well defined, and which are treated as a class in our legislative scheme of taxation. The question involved, then, is narrowed to a single point, namely, whether a mortgage which covers both real and personal property is included within the class of mortgages affected by the terms of the act of 1878. An inspection of the first two sections of the act shows unmistakably that they apply to real-estate mortgages. By the direction of section 1 the claim for deduction for the mortgage, if made, is to be made by "the owner of the land.” In case of a claim for deduction, the mortgage is, by direction of section 2, to be assessed by the assessor making the deduction, and collected by the collector in the township or city wherein "the lands in the mortgage described are situate." It is equally clear, from the use of this language, as well as from the obvious purpose of the act, that it was not intended to touch the taxation of personalty, nor the reduction of assessments, on acconnt of mortgages upon personalty. The pur. pose of the act is to tax land for its full value in the taxing precinct in which it lies, while at the same time avoiding the