due in case of default, and not to the right to collect the bond or the coupons already due, a bondholder having unpaid coupons can institute an action to recover the amount due on the coupons.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 568, 570; Dec. Dig. § 218.*1

(Syllabus by the Court.)

Case certified from Circuit Court, Camden County.

Action by John M. Mack against the American Electric Telephone Company. Case Company. certified. Questions answered.

Argued June term, 1909, before SWAYZE, TRENCHARD, and MINTURN, JJ.

John Meirs and McDermott & Enright, for plaintiff. Frank S. Katzenbach, Jr., for de-stan

fendant.

& W. 273. And this is said by Mr. Pollock | to the option given to have the bonds declared to be clear law. Pollock on Contracts, 366; Smith on Master and Servant, 108. A simiSmith on Master and Servant, 108. A similar view has been taken in Indiana (Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. St. Rep. 289), in Iowa (Jessup v. Chicago, etc., R. Co., 82 Iowa, 243, 48 N. W. 77), and in Kentucky (Louisville, etc., R. Co. v. Offutt, 99 Ky. 427, 36 S. W. 181, 59 Am. St. Rep. 467). Notwithstanding this high authority, I should still doubt the soundness of the rule in that general form, or its applicability to a case like this. There is, I think, a distinction between a case where a business has been bought or a claim compromised, and part of the consideration is the promise to give permanent employment, and a case like the present, where the contract is a bilateral one, executory on both sides. The French rule, which forbids such contracts (Code Civil, § 1780), and the German rule, which permits the employé to terminate them after five years by a six months' notice (Code, § 624), both seem to me more in harmony with our constitutional provision, intended to secure the freedom of the individual. It is, however, unnecessary to pursue this interesting question, since I am clear that the contract, if the provision of the manual formed a part of it, would be invalid for another cause. I fail to find any statutory authority for the making of such a contract by the board of Education. The charter contemplates annual appropriations for the support of the schools. There is nothing to show that, when the contract was originally made, there was any appropriation out of which Mr. Vroom's salary could be paid. Obviously it would have been impossible to make an appropriation to cover payments for so many years in advance, dependent upon a contingency so uncertain as human life. The case, therefore, falls within the rule of Atlantic City Water Works Co. v. Read, 50 N. J. Law, 665, 15 Atl. 10, which was followed by this court in Humphreys v. Bayonne, 55 N. J. Law, 241, 26 Atl. 81.

The resolution is therefore affirmed, with costs.

TRENCHARD, J. This action was brought by a debenture bondholder of the defendant company to recover the amount of 40 defaulted interest coupons which have been detached from the bonds, but are still in the hands of the bondholder. The defendant pleaded the general issue and specially a condition of the bond from which the coupons have been detached, restricting individual action. The cause came on for trial at the Camden circuit. A jury was waived, and the evi dence submitted in form of an agreed state of facts. The trial judge reserved decision and certified to this court for our advisory opinion the following questions: "First whether an unpaid detached coupon in the form on which the plaintiff has declared in the hands of a bondholder who has detached the same is still a part of the bond from which detached so as to make the holder of said detached coupon a bondholder within the meaning of the conditions of the bond. Second, whether a bondholder having unpaid coupons can institute an action at law to recover the amount due on said coupons independent of the trustee appointed to administer the trusts of the agreement under which said bonds were issued without having first joined in a request with holders of onethird of the outstanding bonds to the trustee to act and said trustee shall have refused to act."

Each of the coupons sued upon called for

MACK V. AMERICAN ELECTRIC TELE- the payment by the American Electric Tele

PHONE CO.

(Supreme Court of New Jersey. Nov. 8, 1909.) 1. INTEREST (§ 62*)-As DISTINCT CAUSE OF ACTION.

A detached defaulted coupon is a separate cause of action independent of the bond. [Ed. Note. For other cases, see Interest, Cent. Dig. §§ 140-144; Dec. Dig. § 62.*] 2. MORTGAGES (§ 218*)-POWERS OF TRUSTEES -ACTIONS ON DEFAULT.

phone Company to the bearer on a date named in each, at the office of the Knickerbocker Trust Company in the city of New York, of the sum of $30 for six months' interest then due on its debenture 6 per cent., sinking fund gold bond "subject to the conditions of

said debenture." The bonds from which such coupons were detached on their face were to mature April 1, 1920, and each contained the Where the condition of a bond, limiting following condition: "This indenture bond the right of action thereon to the trustee ap- is issued and accepted upon the express pointed to administer the trust agreement under which the bonds were issued. applies only agreement that the conditions indorsed here

solely under the sixth condition, which pro- | any with respect to the collection of the invides that in case of default in interest or terest coupons. It is also to be observed under the sinking fund provision the bond- that in the event that a mortgage is executholders, one-third concurring, may elect to ed, and the individual bondholder elects to declare the entire principal as due. This exchange or to have his bond paid, and the election is to be declared by the trust com- company refuses, no trust or duty is imposed pany, "acting as the agent or trustee of the upon the trust company with respect thereto. holders of the bonds," and is to be declared These rights he must seek in his own name. upon the request in writing of the owners It would be idle therefore to construe the of one-third in amount of the bonds. In case language of paragraph 6, restricting indiof "any such default," the trust company vidual action, so as to make it applicable shall proceed in the manner requested by to every right given to the bondholder. To the holders of one-third in amount; the trust do so would make it necessary for the bondcompany acting as the agent or trustee ap- holder, before enforcing an undoubted right, pointed as above provided of all outstanding to apply to the trustee to take action which bonds. Then follows in sequence the provi- the instrument itself does not give the trussion in question that no bondholder shall tee power or authority to take. Furtherhave the right to take any action in enforce- more, when the trustee does act, it must act ment of the bonds independently of the trust for all of the bondholders, and it would be company, unless, joining with one-third of idle to require the trustee in case of a subsethe bondholders, a request has been made to quent mortgage to demand for one bondholdthe trust company to act, and the request has er an exchange of securities, and for anothbeen denied. This paragraph concludes "that er bondholder the money value of his bond. in case of default as above mentioned pay- Such diverse rights do not need to be asment thereof shall be enforced through the serted in concert, nor is there any utility in trust company as agent or trustee under an doing so. express trust." This language shows that the restriction upon individual action certainly was conceived with special reference to the subject-matter of the paragraph, namely, a premature maturity of the bond declared for default in interest and sinkingly agreed to by all for the corporate scheme fund.

The purpose of this bond was to restrict individual action only in declaring a forfeiture for nonpayment of interest and sinking fund charges. The enforcement of such forfeiture before the lapse of time which was original

may well have been considered a matter of policy, and not to be lightly invoked without the concurrence of a considerable part of those in interest; but there is no necessary purpose indicated to hamper the bondholder in those absolute rights which are given to him individually, such as the right to collect principal and interest of his bond as due, and the right to exchange or declare the bond due and receive payment therefor upon the execution of the mortgage.

The trial court is advised that the first question certified is answered in the negative, and the second question in the affirmative.

The function of the trust company is said to be that of the "trustee of an express trust"; but the only part of the bond, or of the conditions, which can be construed as defining an "express trust," are the provisions of this paragraph, giving the trust company the power to declare the entire issue matured upon default in interest or sinking fund, at the request of one-third of the holders. Such maturity does not occur ipso facto upon default. It must be declared. Furthermore it will be observed that the bonds are to be thus matured by declaration of the trust company, and then only upon the concurrence of one-third of the holders. The following provision is that no bondholder shall have the right to individual action independent of the trust company unless he shall have first joined with holders of one-third of the (Supreme Court of New Jersey. Oct. 25, 1909.) bonds in a request to the trust company, and 1. MUNICIPAL CORPORATIONS (§ 131*) — BORthe request has been denied. Plainly it was OUGH COUNCIL-FILLING VACANCY. intended to provide that the extraordinary Under the borough act of 1897 (P. L. p. remedy which should be invoked by the trus-borough council must be confirmed by the vote trus-285) an appointment to fill a vacancy in the tee at the request of one-third was not to be of the majority of the whole council. frustrated by the refusal of the trustee to. [Ed. Note.-For other cases, see Municipal act upon such request, but that upon such refusal one-third of the bondholders might bring individual action therefor.

As already pointed out, upon the due date of the bond there is no restriction upon the individual holder's right to collect, nor is any trust imposed upon the trustee with respect to the collection of the bond, nor is there

FIELD v. SOFFE.

Corporations, Dec. Dig. § 131.*]

2. MUNICIPAL CORPORATIONS (§ 124*)-BOROUGH COUNCIL-FILLING VACANCIES.

This requirement is not affected by Act April 9, 1908 (P. L. p. 218).

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 124.*] (Syllabus by the Court.)

Quo warranto by the State, on relation of ( Day v. Lyons, 70 N. J. Law, 114, 56 Atl. 153, Albert R. Field, against John Soffe. Judg- followed the earlier decisions in this court. ment of ouster.

Upon the authority, therefore, of these Argued June term, 1909, before GARRI- cases, I feel constrained to hold that the SON, J., by statutory consent.

The reasons for reversal are: First, that the justice had no jurisdiction; second, that he had lost jurisdiction because he had previously adjourned the cause until December 22d, and proceeded to give judgment on December 15th.

the ears of the members of the commission, [ plaintiff, shows that the action was brought they thought it wise to employ an additional for the recovery of a balance due on a book watchman to guard those buildings. Foster, account, for goods sold to the defendant. The the relator, was therefore appointed. He summons was returnable December 10, 1908. was, as is perceived, employed at the begin- It appears by the record that, before the rening of the summer season; but when the turn day of the summons, by request of deconstruction work was finished, and the sea- fendant's counsel the case was adjourned to son was ended, Foster was discharged, while December 15th, and that on that date the White, the regular permanent watchman, was respective attorneys of the plaintiff and dekept in the service of the commission. There fendant appeared, but the defendant did not is no recognized office or position of night appear. The cause being moved, it was tried watchman, or assistant night watchman. It and judgment given. is a well-recognized fact that, in cities with a large summer population, many servants are necessarily employed during the season whose services are not needed during the remainder of the year. But, aside from that consideration, the character of Foster's employment was not of that continuous and permanent quality contemplated by the statute invoked. The distinction between the class of services, the right to continue which was preserved by the statute, and the class of services not within the terms of the act, is exhibited in the case of Lewis v. Jersey City, 61 N. J. Law, 240, 17 Atl. 112. Foster's employment was analogous to that of the general workman employed in that case, and unlike that of the bridge tender, whose duties were continuous and permanent.

The rule to show cause should be discharged, with costs.

SCHWENK et al. v. DE MAIO. (Supreme Court of New Jersey. Nov. 8, 1909.) 1. JUSTICES OF THE PEACE ( 205*)-CERTIOBARI-CONTRADICTING RETURN OF JUSTICE. Affidavits taken to contradict the return of a justice of the peace, made to a writ of certiorari removing his judgment rendered in the court for the trial of small causes, are irregular.

[Ed. Note. For other cases, see Justices of the Peace, Dec. Dig. § 205.*]

2. JUDGMENT (§ 370*)-OPENING JUDGMENTSURPRISE-MERITS.

To open a judgment rendered against the defendant both surprise and merits must be shown.

[Ed. Note.-For other cases, see Judgment, Dec. Dig. § 370.*]

(Syllabus by the Court.)

The controversy in the case is whether the justice adjourned the case to December 15th, as his record shows, or to December 22d. By rule the justice was called upon to certify to the facts regarding the adjournment. His return shows that "after some discussion I stated I would make the date the following Monday, the 15th, and I made a pencil memorandum on the margin of the summons ‘adjourned till December 15, 1908.'" After the justice's return to the rule had been made, an order to take depositions was granted, and under this affidavits were taken to contradict the justice's return. Such proceeding is irregular. Paterson, etc., R. R. Co. v. Ackerman, 24 N. J. Law, 536. The case of Horner v. Conover, 26 N. J. Law, 138, is not applicable, for that case was decided in 1856, before the enactment of the present statute concerning appeals from justices' courts. The old statute (Nixon's Dig. p. 466, § 43) provided that no appeal would lie from judgments by default or by confession or in the absence of the defendant or where the trial did not take place in his presence. Our present statute grants an appeal in such cases except where the judgment is by confession. So that, on the face of the record, the justice at the time the judgment was rendered had jurisdiction of the parties and of the subjectmatter of the litigation. The justice having certified that he had made the adjournment to the 15th of December, and the rule to take affidavits being irregular to contradict such return, he did not lose jurisdiction. That being so. defendant's remedy is by appeal, not by certiorari.

The writ will be dismissed, with costs.

DORAN v. THOMSEN.
(Supreme Court of New Jersey. Nov. 8, 1909.)
APPEAL AND ERROR (§ 1201*) - REMAND —
AMENDMENT OF DECLARATION.

Where, in an action to recover damages a judgment for the plaintiff has been reversed for personal injuries resulting from negligence, and a new trial awarded, an amendment of