would visit the wife and settle with her for as | for $2,800, concealing from her the fact that little as possible, and that he should, as between a greater sum had been paid to him by Mr. him and the husband, be entitled to retain whatever was left, was guilty of embezzlement, Geering; that of the $2,800 he paid or acnot only as to a portion of the amount which counted to her for only $2,400, and would she agreed to take in settlement and which he pay no more without a general release from refused to pay her except upon her giving a gen- her; that while thus demanding a general eral release, but also as to the difference between the amount for which she agreed to settle and release he acknowledged to her or her repthe amount committed to him for purposes of resentative that he owed her $400, but consettlement. cealed the fact that he owed her at least [Ed. Note. For other cases, see Embezzlement, Cent. Dig. § 19; Dec. Dig. § 17.*] Error to Supreme Court. $2,200 (probably $2,400) in addition. It seems to us clear that this evidence justified the trial court in concluding that Gey Robert P. Geyer was convicted of embez-er fraudulently converted $400 of his client's zlement, and from a judgment of the Supreme Court (77 Atl. 805) affirming the conviction, he brings error. Affirmed. error. money to his own use, as charged in the indictment. Such was the conclusion reached by the Supreme Court; but that court in its opinion erroneously treated the case as if it Albert Comstock, for plaintiff in Eugene Emley, Prosecutor of the Pleas, for had been tried by jury. We are not able to defendant in error. PITNEY, Ch. The plaintiff in error was convicted in the Passaic quarter sessions of the crime of embezzlement, under section 184 of the crimes act (P. L. 1898, p. 844), which declares (inter alia) that any agent, intrusted with the collection or care of moneys, who shall fraudulently take or convert the same or any part thereof to his own use, shall be guilty of a misdemeanor. The Supreme Court affirmed the conviction, and the record is now brought to this court for review. The case was tried by the judge of the quarter sessions, trial by jury having been waived. The only question now presented is whether there was any evidence to support the inference that the defendant fraudulently converted to his own use the money in question. concur with the intimation contained in the opinion that Mrs. Geering's right to the $2,200, possession of which was concealed from less clear than her right to the $400, which her and in effect denied by Geyer, was any he admitted having in his possession. Nor the inception of this transaction was merely can we at all agree that Geyer's conduct at dishonorable, and ripened afterwards into actual dishonesty. According to the evidence upon which the conviction rests, the embezoutset of the negotiations between Geyer and zlement was deliberately planned from the Mr. Geering. The judgment under review should be affirmed. (81 N. J. L. 729) HORN v. HAMBURG-AMERICAN PACKET CO. (Court of Errors and Appeals of New Jersey. June 19, 1911.) 1. SHIPPING (§ 86*)-INJURIES TO CONTRACTOR'S SERVANT-INVITATION. Dec. Dig. § 86.*] 2. SHIPPING (§ 86*)-INJURIES TO PAINTER- There was evidence tending to show that Emil Geering, a resident of Passaic county, instituted in the Court of Chancery a suit for divorce against his wife, who was resident in Switzerland; that the defendant, tract to paint all defendant's steamships, plainPlaintiff's employer having a general conGeyer, then an attorney at law and solicitor tiff and a fellow servant were painting the side in chancery of this state, was employed by of a vessel under such contract, and while so Mrs. Geering to defend the suit, and accept-thrown over the rail by some one on the vessel. engaged plaintiff was scalded by hot water ed such employment; that acting as her Held to establish a prima facie case that plainagent he entered into negotiations with the tiff was in the place where he was injured at husband for a settlement of her claim for defendant's invitation. alimony and her inchoate right of dower in the husband's real estate; that, without the wife's knowledge or consent, Geyer made an agreement with Mr. Geering that if he, Geering, would place in Geyer's hands $5,000 for purposes of settlement with the wife, with $200 for traveling expenses, he (Geyer) would visit the wife in Switzerland and settle with her for as little as she was willing to take, and that Geyer should, as between him and Geering, be entitled to retain whatever was left of the $5,200 after satisfying the demands of Mrs. Geering; that pursuant to this arrangement Geering paid to Geyer the $5,200; that the latter went to Switzerland, and prevailed upon Mrs. Geering to settle In an action for injuries to the servant of a contractor while painting the side of one of defendant's vessels by hot water thrown over the water was negligently thrown by one of dethe rail, evidence held to sustain a finding that fendant's servants, and that plaintiff was not guilty of contributory negligence. [Ed. Note. For other cases, see Shipping, Dec. Dig. § 86.*] Error to Supreme Court. Action by Bernard Horn against the Hamburg-American Packet Company. for plaintiff affirmed by the Supreme Court, Judgment and defendant brings error. Affirmed. The following opinion was delivered in the | 217, 71 Atl. 58. We think there was such Supreme Court by Parker, J.: evidence. "The suit was for damages for personal injuries, and was tried by the court sitting without jury. The ground urged for reversal is that there was no evidence on which a judgment for the plaintiff could be based, and that in consequence the court should have nonsuited or found for the defendant. "The judgment will be affirmed." A. Leonard Brougham and A. C. Streitwolf, Jr., for plaintiff in error. Weller & Lichtenstein, for defendant in error. PER CURIAM. The judgment of the Supreme Court should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Parker in that court. (78 N. J. E. 557) COLLERD v. TULLY et al. "Horn was a journeyman painter in the employ of one Badenhausen, who had the general painting contract for all the defendant's steamships. As the steamer Auguste Victoria was at the Hoboken wharf, Horn and another man employed by Badenhausen were painting her side, standing on a raft (Court of Errors and Appeals of New Jersey. for this purpose, when some one on the vessel threw a pailful of hot water over the taffrail, scalding Horn. The locality was that of the 'steam kitchen' or kitchen for steerage passengers. [1] "It is said that plaintiff was not there by invitation so as to throw any duty of care on defendant. But we think a prima facie case of invitation was sufficiently made out. Badenhausen, as it appears, had a general painting contract, and it was in the performance of that contract that plaintiff and his fellow were working on the raft. There is nothing to show that they were in the wrong place, as in the case of Daug v. North German Lloyd S. S. Co., 73 N. J. Law, 770, 65 Atl. 199. Hence there was a duty of care resting on defendant and its servants on the steamer to avoid injury to the painters by anything thrown over the side. [2] "Appellant claims that there is no proof that the man that threw the water was a servant of defendant. But, as the steamer was in dock and all her passengers were "The questions of negligence and contributory negligence in the case were, of course, questions of fact, and within the control of the trial judge sitting as jury. If there was any evidence to support the plaintiff's claim, the judgment cannot be disturbed. Lavin v. Public Service Railway Co., 77 N. J. Law, June 19, 1911.) (Syllabus by the Court.) 1. SALES (§ 467*)-CONDITIONAL SALES-Loss OF GOODS. Upon a conditional sale, where the goods are delivered to the buyer and the title is retained by the seller as security for unpaid purchase money, the risk of loss is the buyer's. [Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1354, 1358-1364; Dec. Dig. § 467.*] 2. CHATTEL MORTGAGES (32*)-CONSIDERA TION-PRECEDENT DEBT. A precedent debt is a good consideration for a chattel mortgage. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 80; Dec. Dig. § 32.*1 3. CHATTEL MORTGAGES (§ 55*)—AFFIDAVITS— SETTING FORTH CONSIDERATION. The affidavit required to be annexed to a chattel mortgage must set forth the consideration completely, and if it fails so to do the chattel mortgage is absolutely void as against creditors. [Ed. Note.-For other cases, see Chattel Mortgages, Dec. Dig. § 55.*] Appeal from Court of Chancery. Bill by Amelia E. Collerd against John J. Tully and others. Decree for defendants (77 N. J. Eq. 439, 77 Atl. 1079), and complainant appeals. Affirmed. James A. Gordon, for appellant. James E. Pyle, for respondents. He SWAYZE, J. [1] We agree with the result reached by the Vice Chancellor, and with the essential portion of his reasons. His opinion, sions which call for remark. however, contains some inadvertent expresHe says, in discussing the question whether the horses sold by Brown to Tully were upon a conditional sale: "Some of the horses died after they were delivered to Tully, but this fact was ignored by Brown in his account. did not by reason thereof lessen his claim against Tully, as he undoubtedly would have and must have done if the sales were conditional and the horses were his and not Tully's." This passage indicates that in the case of a conditional sale, where the goods are delivered to the buyer and the title is retained by the seller as security for unpaid purchase money, the risk of loss is the sel ler's. The weight of authority is to the con- | plant the judgment creditor. Her liens are trary. Williston on Sales, § 304; American prior in time, and she does not need to show Soda Fountain Company v. Vaughn, 69 N. J. Law, 582, 55 Atl. 54, cited with approval by this court in American Soda Fountain Company v. Stolzenbach, 75 N. J. Law, 721, 724, 68 Atl. 1078, 16 L. R. A. (N. S.) 703, 127 Am. St. Rep. 822. The rule has been embodied in section 22, subd. "a," of the sales act of 1907 (P. L. p. 321). [2] The Vice Chancellor also says: "The mere fact that she held the judgment would not be a consideration for the mortgage, unless she agreed that upon receiving the mortgage she would be bound in some way with respect to the judgment. Otherwise it would be a nudum pactum. It is argued that the mortgage was given as collateral security for the payment of the judgment; but, even so, there must be a consideration for the mortgage, and, unless the mortgagee was disadvantaged or the mortgagor was advantaged by reason of the giving of the chattel mortgage, there was no consideration. There is no proof of disadvantage to the mortgagee, or of advantage to the mortgagor, as a consideration of the mortgage, and no proof of any agreement of any kind by the mortgagee respecting the judgment." This passage from the opinion assumes that, in order to make a chattel mortgage good, there must be a then present consideration when it is given. It has, however, been held by this court that a precedent debt is a good consideration for a chattel mortgage. Muchmore v. Budd, 53 N. J. Law, 369, at page 397, 22 Atl. 518, at page 525. Justice Reed said: "In regard to the objection that there was no consideration for the assignment, little need be said. The point could only have substance when the transfer was regarded as an absolute bill of sale. Viewing it either as a mortgage or a trust, all question in respect to the consideration disappears, as the debts intended to be secured were admittedly existing." In the later case of Knowles Loom Works v. Vacher, 57 N. J. Law, 490, 31 Atl. 306, 33 L. R. A. 305, affirmed on Justice Van Syckel's opinion in 59 N. J. Law, 586, 39 Atl. 1114, we not only held that a chattel mortgage given for a pre-existing debt was valid, but also that it was entitled to priority over an antecedent conditional sale not recorded. A distinction that she is a holder for value. All that is necessary is to show a consideration for the chattel mortgage, and the antecedent debt suffices for that purpose. No new consideration is necessary to sustain the validity of these chattel mortgages. It is enough that the parties intended to secure an already existing debt, and it is unnecessary to resort to the theory that there was an implied extension of time for payment, as the Vice Chancellor held in the case of Perkins v. Trinity Realty Company, 69 N. J. Eq. 723, 61 Atl. 167, affirmed 71 N. J. Eq. 304, 71 Atl. 1135. [3] It is suggested by the appellant that if the second chattel mortgage is void as to Brown, because it fails to state the consideration of the indebtedness which Abraham Collerd assigned to the appellant, it is valid to the extent that it secures the judgment recovered by Winant against Tully and assigned to the appellant. There are two difficulties with this argument. Section 4 of the chattel mortgage act (P. L. 1902, p. 487) makes the chattel mortgage absolutely void as against creditors unless the affidavit is annexed, and the statute makes it obligatory that it should set forth the consideration of the mortgage, not partially, but completely. The affidavit is, however, defective in stating the consideration even so far only as it secures the judgment. We do not agree with the Vice Chancellor that it is sufficient to say that the consideration is a balance of $700 due upon a judgment recovered by Effie C. Winant against John J. Kelly and assigned to appellant. The affidavit ought to show either the origin of the debt upon which the judgment was based or the amount, if anything, paid by the mortgagee for the assignment of the judgment. It is in this respect that the present case differs from Simpson v. Anderson, 75 N. J. Eq. 581, 73 Atl. 493. Mr. Justice Bergen was careful to say in that case: "If it did not appear that the appellant had paid something for the assignment, a different question would arise." The decree appealed from is affirmed, with costs. (81 N. J. L. 588) PRATT v. UNION NAT. BANK. is to be made between the validity of a chat- (Court of Errors and Appeals of New Jersey. tel mortgage given for a precedent debt, which is not questioned in our cases, and its right to priority, which might in some cases depend on whether it was required to be for a valuable consideration, as that term is used in some of our registry acts. It is not disputed that one who acquires a mortgage as security for an antecedent debt is not a holder for value. Empire State Trust Co. v. Trustees of William F. Fisher and Company, 67 N. J. Eq. 602, 60 Atl. 940. The complainant in this case does not seek to sup June 19, 1911.) 2. APPEAL AND ERROR (§ 120*)-PETITION FOR [pear from the state of the case. O'Donnell REARGUMENT-REVIEW. Denial of a petition for reargument of an appeal to the Supreme Court in order that the defeated party might include matter erroneously omitted from the state of the case by oversight, having been denied in the exercise of discretion. was not reviewable on a writ of error by the Court of Errors and Appeals. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 840-865; Dec. Dig. § 120.*] | Error to Supreme Court. Action by John Pratt against the Union National Bank. Judgment for plaintiff affirmed by the Supreme Court (75 Atl. 313), and defendant brings error. Affirmed. Theodore W. Schimpf, for plaintiff in error. Eli H. Chandler, for defendant in er ror. PITNEY, Ch. This case originated in the Atlantic City district court, where judgment was rendered in favor of the plaintiff (now defendant in error). The judgment was removed to the Supreme Court by appeal under the statute (P. L. 1902, p. 565), and was there affirmed. The record is now brought to this court by writ of error. v. Weiler, 72 N. J. Law, 142, 145, 59 Atl. 1055; Hanson v. Penna. R. R. Co., 72 N. J. Law, 407, 60 Atl. 1101; Burgesser v. Wendell, 73 N. J. Law, 286, 287, 62 Atl. 994; Katzin v. Jenny, 74 N., J. Law, 131, 65 Atl. 192; Frisby v. Jefferson Council, 74 N. J. Law, 213, 64 Atl. 1053; Osborn v. Gurtner, 75 N. J. Law, 224, 66 Atl. 1086. The propriety of this view of the statute was affirmed by this court in Simmons Pipe Bending Works v. Seymour, 78 Atl. 258. It results that the state of the case submitted to the Supreme Court upon this appeal presented no question of law upon which the judgment of the district court could properly be reviewed. [2] After the decision of the Supreme Court, and judgment entered thereon, an application was made to that court by the defeated party, now plaintiff in error, for a reargument upon various grounds, among others, upon the ground that, in fact, the question of law relied upon had been raised in the trial court, and that the failure of the state of the case to show this was due to an oversight. The petition for reargument set Passing an objection to the form of the forth that, as the record upon which the plaintiff's state of demand in the district case was decided in the Supreme Court was court that if tenable would be obviated by defective in the respect indicated, it would be amendment, reliance of counsel for the plain- impossible to obtain a review of the meritotiff in error in this court is upon the insist- rious question by the Court of Errors and ence that the judge of the district court who Appeals without an amendment of the rectried the case without a jury ought to have ord; and to this end a reargument was askrendered judgment in favor of the defendant. ed in order that it might be had upon the The Supreme Court at the outset of its opin-record as thus amended. The application for ion remarked "that it may well be that the record before us presents no legal questions. There seems to have been no request to find and no objections to the actual finding." The Supreme Court nevertheless considered the questions of law argued, with the result of finding that the judgment was right upon the merits. An examination of the state of the case that was submitted to the Supreme Court by the appellant (now plaintiff in error) discloses no objection taken in the trial court, nor any question of law there raised upon which the appeal might legitimately be based. It shows no request for specific findings to be made by the trial judge, nor any objection to the findings made by him. reargument was denied by the Supreme Court, and this denial, being plainly a matter of discretion, is not reviewable here. In this state of the record, we must decline to review the questions of law that the Supreme Court assumed to have been raised, for the reason that they were not raised by the state of the case in that court. Therefore, without affirming or denying the soundness of the views expressed by the Supreme Court upon the merits, we conclude that the judgment of that court must be affirmed. (81 N. J. L. 654) STATE v. SHEEHY. [1] By the statute regulating the matter, and above referred to, review upon such an (Court of Errors and Appeals of New Jersey. appeal has reference solely to "the determination or direction of such district court in point of law or upon the admission or rejec-1. June 19, 1911.) CRIMINAL LAW (§ 695*)-OBJECTIONS TO (Syllabus by the Court.) EVIDENCE-SUFFICIENCY. tion of evidence." In a series of decisions in the Supreme Court it has been declared that A general objection to evidence without the appeal is confined to questions of law, stating any ground of objection is insufficient. that a reversal will not be permitted upon [Ed. Note.-For other cases, see Criminal a ground that was not called to the atten-Law Cent. Dig. §§ 1633-1638; Dec. Dig. § 695.*] tion of the trial judge, and that, if the appellant's complaint is of the legal principle 2. CRIMINAL LAW (§ 695*) - OBJECTIONS TO adopted by the trial judge, something in the An objection to evidence for incompetency nature of an objection or exception must ap- is not available in error unless the evidence was EVIDENCE-SUFFICIENCY. TIONS. A general objection of incompetency following immediately a series of objections to similar questions for incompetency on a specific ground held to justify the trial court in assuming that no other ground of incompetency than that just urged was intended, and held unavailable in error on any ground other than that specified. incompetent for any purpose at the time it was | 30, 1906, without my approval except as whereoffered. in I have excepted certain items contained [Ed. Note.-For other cases, see Criminal therein and specified in the resolution book. Law, Cent. Dig. §§ 1633-1638; Dec. Dig. The items in said resolution of which I disap695.*] 3. CRIMINAL LAW (§ 695*) - TRIAL OBJEC-prove and as to which this communication may be considered my veto all involve expenditures incident to the recent primary and general elections. I will enumerate them." Then follow a number of items including the two in question, and the concluding sentence: "In my judgment every one of those claims is grossly excessive." All this, as just noted, was read without interruption or objection by counsel for defendant, except the objection originally made to the question. The prosecutor then added: "Is that a communication by the mayor to the board of aldermen?" This was objected to, allowed, and exception taken, and the witness answered in the affirmative. The admission of this question and answer is now urged for error. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. § 695.*] 4. CRIMINAL LAW (§ 1129*)-REVIEW-ASSIGNMENT OF ERROR. A judgment will not be reversed on a ground not embraced in the assignments of er ror. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. 8 1129.*] Error to Supreme Court. It is, to say the least, doubtful whether the assignments of error sufficiently identify this Edward Sheehy was convicted of fraud, exception. The only assignments which can and brings error. Affirmed. be said to include it are the first and second, Alexander Simpson, for plaintiff in error. viz., that the contents of the minute book Pierre P. Garven, for the State. PARKER, J. This writ of error presents for review the judgment of the Supreme Court affirming a conviction of the plaintiff in error in the Hudson quarter sessions of conspiracy with other persons to defraud the city of Jersey City by obtaining the allowance and payment of two false and fraudulent claims against said city, one in the amount of $295 in the name of one McCarthy, the other in the amount of $70 in the name of one Fitzgerald. The plaintiff in error was at the time a member of the board of aldermen of Jersey City. The case is submitted on a strict bill of exceptions. The first exception assigned for error arose in this way: The city clerk was sworn and produced, and was examined on the original minutes of the board of aldermen. In the course of his testimony he was asked: "Q. Is there any record which shows what disposition was made beyond what you have already recited of the claims to which you have referred in your testimony? That is to say, the two claims of $70 (sic) and the one of $295?" [1] This was objected to, but without assigning any ground of objection the question allowed and exception entered. The exception, of course, was futile, and is not now pressed. Mooney v. Peck, 49 N. J. Law, 232, 12 Atl. 177. The witness answered, "There is a record under the head of 'official communications' December 14, 1906," and went on without further objection to read from the minutes what is obviously a veto message addressed to the board of aldermen, in which the writer says: "I herewith return to your honorable board your resolution of November were allowed to be read in evidence over objection, and that the court allowed secondary evidence to be given of a communication purporting to have been made by the mayor to the board of aldermen "without producing the written communication, or accounting for its absence, but merely reading from a book purporting to be the minute book of the board of aldermen, which said question was put to, and an answer allowed over the objection and exception of the defendant, as will be found in the bill of exceptions." [2] These would seem fully as appropriate to the first objection above quoted as to the second, and, if applicable to the first, would, of course, fail for lack of specified ground of objection. But waiving this point, we are clearly of opinion that the objection itself to the second question was inadequate to put the court in error by reason of the answer that the witness gave. Apparently, if not manifestly, the objection was to the reading of the contents of a writing not offered in evidence. Now so far as appeared, the entire writing had been read, and without specific objection. So far as what had been read was concerned the objection came too late, and no motion was made to strike out the previous answer, even if such a motion was then permissible. The question objected to was not whether the writing was signed, and what that signature purported to be, but whether the writing was a communication by the mayor to the board of aldermen. That it was a communication in form, and was addressed to the board, had already appeared. All that the question really called for by way of new matter was the identity of the person from whom it had come or by whom it had been sent; and this was all that the witness |