doing business in the state shall be subject to | section of our General Corporation Act. The the provisions of the act so far as it can be ap- provision of the amendment is that: plied to foreign corporations, P. L. 1913, p. 32. amending General Corporation Act, § 51, and prohibiting a corporation organized under the ect from holding, selling, or dealing with the stock of another corporation, has no application to a foreign corporation doing business in the state. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 2551, 2556; Dec. Dig. 654.] The Chancellor and Garrison, Trenchard, and Taylor, JJ., dissenting. Appeal from Supreme Court. Action by the Island Heights & Seaside Park Bridge Company against Brooks & Brooks Corporation. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Charles De F. Besore, of Camden (Berry & Riggins, of Camden, on the brief), for appellant. McDermott & Enright, of Jersey City, for appellee. "No corporation heretofore organized, or hereafter to be organized under the provisions of the act to which this is an amendment, or the amendments thereof or supplements thereto, shall hereafter purchase, hold, sell, assign, transfer, mortgage, pledge, or otherwise disPose of the shares of the corporate stock of any other corporation or corporations of this or any other state." This restriction upon the corporate power is subject to certain provisos which are not material in the determination of the question to be discussed, and they are therefore not specified. In determining the scope of the statutory provision just recited it is to be remembered that a very large number of the corporations of this state are created by, and organized under, laws other than that known as the General Corporation Act. Many of them are created by special charter, more of them are organized under general laws, such as the General Railroad Law, the GUMMERE, C. J. The action in the pres-general law for the creation and organizaent case was brought on a contract of sub- tion of street railroad companies, the genscription to stock in the plaintiff company, eral law for the organization of gas coma New Jersey corporation, made by the de- panies, the general law for the organization fendant company, a corporation of the state of telegraph and telephone companies, and of New York authorized to do business in other general laws too numerous to be specifithis state. The complaint averred that the cally mentioned. It is also to be rememberplaintiff is a bridge company organized un-ed that at the time of the enactment of this der the bridge act of this state (chapter 385 amendment many corporations of our sister of the Laws of 1912) for the purpose of build-states were doing business in New Jersey by ing a bridge from Seaside Park, N. J., to permission of the state conferred by statuIsland Heights, in the same state, and that the defendant is engaged in developing and selling a tract of land at the latter place; that the defendant is a corporation created by, and organized under, the laws of the state of New York, and under those laws has power to subscribe to the stock of the plaintiff company; that in the exercise of that power the defendant entered into a written agreement for the purchase of ten shares of the capital stock of the plaintiff company of the par value of $50 each; that this agreement was duly executed by the defendant, and was accepted by the plaintiff, and in pursuance thereof, and in accordance with the conditions of the said agreement, the plaintiff called upon the defendant to pay certain installments of the purchase money for such shares, but that defendant refused to honor said call, and pay the amount due upon its subscription. A copy of the complaint having been served upon the defendant, it thereupon moved to strike out the pleading upon the ground that the agreement was in violation of chapter 18 of the Laws of 1913. Argument having been heard upon the motion, and the court being of opinion that the contention of the defendant was well founded, it ordered the complaint to be stricken out and judgment entered in favor of the defendant. From that judgment, the plaintiff appeals. tory provisions. That the Legislature was fully aware of this situation when it passed the amendment of 1913 must be conceded, and it cannot be doubted that this amendment was passed with this knowledge in mind; in other words, it intended that the scope of the amendment should be limited in its operation to those corporations of this state which have been or may hereafter be organized under the General Corporation Law. This purpose is clearly expressed by the very language of the statute. Why this limitation was ingrafted upon the act is a matter which does not concern the courts. That it was within the power of the Legislature to so limit the scope of the statute cannot be denied. Where the purpose of the lawmakers is expressed in language so plain as to make it unmistakable, it must be enforced by the courts as it is written, without regard to its wisdom, or its apparently unwise limitations. Douglass v. Freeholders of Essex, 38 N. J. Law, 216. Taken by itself, therefore, the statute interposes no bar to the purchase of the stock of a New Jersey corporation by a corporation created by and organized under the laws of a sister state. It does not, of course, prohibit the sale of its own stock by a New Jersey corporation, even though it be organized under the General Corporation Law itself. The prohibition against the sale of stock by a corpora [1, 2] Chapter 18 of the Laws of 1913 (P. tion organized under that statute is express = [3] The Supreme Court appreciated that I state "the consideration of said mortgage and as this statute, standing alone, interposed no nearly as possible the amount due and to grow due thereon," where the affidavit to such a mortbar to the making of the contract sued on. gage stated correctly that the consideration was This is apparent from the opinion delivered three promissory notes given to the mortgagee therein by Mr. Justice Kalisch. But it was for store account and money advanced, correctly considered that section 96 of the Corpora- stating the due dates of the notes, but misstating that one of them was due on demand, tion Act (Comp. Stat. p. 1657), which pro- while failing to name the makers, a father havvides that "foreign corporations doing busi- ing executed one and his son the others, and ness in this state shall be subject to the failing to state that the son had assumed his deceased father's note pursuant to a plan to avoid provisions of this act, so far as the same administration and had given the other two for can be applied to foreign corporations," was money and goods supplied himself and mother to be taken in conjunction with the amend-by the mortgagee, such affidavit was sufficient. ment of 1913, and so made that amendment applicable to the situation disclosed by the The CHANCELLOR and GARRISON, LIPPINCOTT et al. v. SHIVERS et al. 1916.) see Chattel [Ed. Note.-For other cases, Mortgages, Cent. Dig. 88 125-135; Dec. Dig. 63.] Bill between Charles A. Lippincott and another, copartners trading as C. A. Lippincott & Bro., and Harry A. Shivers, and others. On return of order to show cause. Order to show cause discharged. George B. Evans, of Camden, for complainants. Davis & Davis, of Camden, for defendants. LEAMING, V. C. The single question here involved is whether the affidavit annexed to defendant's chattel mortgage satisfies the requirements of our statute. The affidavit is as follows: "Geo. T. Middleton, the mortgagee in the foregoing mortgage named, being duly sworn, on his oath says that the true consideration of said mortgage is as follows, viz.: Three promissory notes payable at the Moorestown National Bank, as $307.26, with interest, $637.88, with interest, and $40, with interest, bearing date in order as follows: 10-26-1909, 4-29-1915, 7-26-1915, on demand, amounting to ten hundred and seventy-two dollars and twenty cents ($1,072.20) which was given to Geo. T. Middleton, mortgagee, for store account and money advanced-and that there is due on said mortgage the sum of ten hundred and seventy-two dollars and twenty cents ($1,072.20) due one day from date, besides lawful interest thereon from the 30th day of October, A. D. 1915." The statutory requirement is that the affidavit shall state "the consideration of said as nearly as possible the mortgage and amount due and to grow due thereon." The affidavits filed at the return of the order to show cause adequately establish that the chattel mortgage affidavit here in question was true and entirely accurate to the There was due to the following extent: mortgagee from the mortgagors at the time the mortgage was executed the sum named in the affidavit annexed to the mortgage, and that indebtedness was evidenced by three several promissory notes held by the mortgagee of the dates and amounts specified in the affidavit, and these three promissory notes had been given to the mortgagee for "store account and money advanced." The details of the transactions between the (Court of Chancery of New Jersey. Feb. 25, parties to the mortgage which disclose more specifically the origin and history of the notes AFFIDAVIT OF and the indebtedness which they represent, Under the statute requiring that the affida- and which are not included in the affidavit vit of consideration of a chattel mortgage shall annexed to the mortgage, relate almost whol CHATTEL MORTGAGES 63 CONSIDERATION-SUFFICIENCY. ly to the old note of October 26, 1909. That, held by the mortgagee for that aggregate innote, it is now shown, was given to the mort- debtedness and the place where the three gagee on the day it bears date by Joseph C. Shivers for supplies from the store of the mortgagee. Joseph C. Shivers subsequently died intestate leaving a widow, Rebecca Shivers, one of the mortgagors, and a son, Harvey A. Shivers, the other mortgagor. The deceased at the time of his death still owed the present mortgagee the note referred to, and was also indebted to others in small amounts. The chattels covered by the present mortgage are farming implements and farm stock which were owned by Joseph C. Shivers at the time of his death. To save the necessity of administering the estate of Joseph C. Shivers in court, the son and widow (present mortgagors) took over the chattels as their own and arranged with all the creditors to waive court administration of the estate by assuming the payment of all debts. Among the debts so assumed was the note of October 26, 1909, referred to in the chattel mortgage affidavit. Middleton, the mortgagee, after the decease of Joseph C. Shivers and the assumption of payment of the note by his son and widow, continued to supply goods from his store to the son and widow as he had formerly extended credit to Joseph C. Shivers, and also assisted the son and widow in paying the debts of Joseph C. Shivers by supplying money for that purpose. The three notes named in the affidavit are the note of Joseph C. Shivers, the payment of which had been assumed by his widow and son (the present mortgagors), and two other notes which had been made by the son after his father's death for goods supplied to the son from the store and money advanced to assist the son and widow in discharging debts of Joseph C. Shivers. There is also an inaccuracy in the mortgage affidavit in referring to the notes as "on demand." The old note of Joseph C. Shivers was not a demand note; the two notes of the son were demand notes. Had the foregoing illuminating details been embodied in the affidavit annexed to the mortgage, no question touching its sufficiency could now arise. The only question now is whether the omission of these details, or any of them, renders the affidavit insufficient to meet the requirements of the statute. It will be observed that the affidavit annexed to the mortgage accurately states the amount of the indebtedness of the mortgagors to the mortgagee, and accurately states the dates and amounts of each of the three notes notes are payable, and truthfully states, though not with detailed accuracy, that the three notes were given to the mortgagee for "store accounts and money advanced," but does not specifically state the names of the makers of the notes or the fact that the store account represented by the old note was a store account of Joseph C. Shivers for which the old note had been given by him and assumed by his son and widow. The situation thus presented is that of an honest transaction between laymen who have sought to secure by a mortgage an honest indebtedness, and to that end the mortgagee has made and annexed to the mortgage an affidavit stating the consideration of the mortgage as he understood it. The consideration was stated by him with substantial truth. It lacked details which would have been useful to enable a stranger to fully understand the course of dealings which had brought about the indebtedness, but it was an honest statement of substantial truth so far as the consideration was concerned. That I understand to be the test of sufficiency applied in Howell v. Stone, 75 N. J. Eq. 289, 71 Atl. 914. The error in the failure to limit the words "on demand" to the two later notes is not an error which goes to the question of consideration. The broad view of the situa tion as it would almost necessarily appeal to laymen was that the consideration of the mortgage was the three notes specified in the Middleton, mortgagee, for store account and affidavit as having been "given to Geo. T. money advanced." From the viewpoint of the mortgagee, that the goods and money, and had received for was the whole transaction; he had supplied his goods and money the three specified notes, and the mortgagors owed him the amount, and the mortgage was being executed to secure the amount. The legislation in terms exacts no more than the naked requirement that the consideration of the mortgage be stated in the affidavit of the mortgagee, and the statute is wholly silent as to the purpose of the requirement. In such circumstance it seems impossible to determine that any fair and honest and reasonably accurate statement of the indebtedness which the mortgage is to secure is insufficient to meet the requirements of the statute. I am convinced that the affidavit here in question states the consideration of the mortgage with substantial truth and must be held sufficient. I will advise an order discharging the order to show cause. (88 N. J. Law, 610) STATE v. SHUPE. (No. 4.) (Court of Errors and Appeals of New Jersey. March 6, 1916.) (Syllabus by the Court.) CRIMINAL LAW 1179-WRIT OF ERRORREVIEW DECISIONS OF INTERMEDIATE COURTS. A court of last resort need not hear a party as to a question which could have been, but was not, raised in an intermediate court of ap peals, except where the question goes to the jurisdiction of the subject-matter, or where a question of public policy is involved. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3001; Dec. Dig. 1179.] Error to Supreme Court. William F. Shupe was convicted of an assault with intent to commit rape (86 N. J. Law, 410, 92 Atl. 53), ar 1 brings error. Affirmed. William D. Wolfs Keil, of Elizabeth, for plaintiff in error. Alfred A. Stein, prosecutor of the pleas, of Elizabeth, for the State. WALKER, Ch. The defendant was indicted by the grand jury of the county of Union for an assault with intent to commit rape in that county, and was convicted by a traverse jury. He brought error to the Supreme Court, where the judgment was affirmed, and now brings error to this court. We agree with the soundness of the views expressed by the Supreme Court in its opinion affirming the judgment. Two alleged errors are urged upon us which appear not to have been argued in the court below. The questions considered in the Supreme Court were three, namely: (1) The trial court's refusal to sustain a challenge to the array of jurors; (2) that the judge erroneously permitted the prosecuting witness to testify that on her return home she told her mother what had happened; and (3) that if the defendant were found guilty by the jury's verdict he could not thereafter be tried in Essex county (there being proof tending to show that the crime charged occurred in Essex and not in Union). fendant (who afterwards retracted it and pleaded not guilty); and (2) the charge of the court that the jury should be governed by the preponderance of evidence; but where all things are equal, then the preponderance goes witnesses, and that ought to carry the verto the side producing the greater number of dict with it. Counsel for the state contends that the assignments of error upon which the two points argued here are raised were not argued in the Supreme Court, and were therefore waived and abandoned. As already stated, there is nothing presented to us which shows that any other points were argued in the Supreme, Court than those mentioned in that court's opinion, and therefore we must conclude that no other points were argued than those decided. It is a settled rule that a party need not be heard on a point not taken or a matter not raised and considered in the court below. See the cases in N. J. Dig. Anno. title, Appeal and Error, V (A). And this applies in a court of last resort as to questions which could have been, but were not, raised in an intermediate court of appeals. 2 Cyc. 676. In Wyckoff v. Luse, 67 N. J. Law, 218, 54 Atl. 100, a case on appeal from the court for the trial of small causes to the Warren pleas and thence to the Supreme Court, the costs taxed before the justice of the peace appeared to be excessive; but as no attempt was made to correct the taxed bill in the common pleas, on intermediate appeal, the Supreme Court held that it could not grant the relief on appeal there from the common pleas. This court, in Marten v. Brown, 81 N. J. Law, 599, 601, 80 Atl. 476, declined to consider grounds mooted upon the argument here, but not presented to the Supreme Court, upon which the judgment of the district court, which was under review, was asserted to be erroneous. The doctrine that a party need not be heard as to a question which could have been, but was not, raised in an intermediate court of appeals, is subject to these limitations, namely: (1) Where the question goes to the jurisdiction of the subject-matter (Dodd v. Una, 40 N. J. Eq. 672, 713, 5 Atl. 155); and (2) where a question of public policy is involved (Mass Nat. Bank v. Shinn, 163 N. Y. 360, 57 N. E. 611). But the questions presented to us in the case sub judice, which were not raised in the Supreme Court, do not fall within either of the exceptions. The Supreme Court's opinion concludes with a discussion of the third question, which, it said, is "the only other ground of reversal which is argued by counsel," and nothing has been presented to this court showing that any questions, other than the three, were presented to and argued in the Supreme Court. The case was submitted here on briefs, and counsel for the plaintiff in error urges two reasons, other than those presented to the Supreme Court, why the judgment of that tribunal should be reversed, as follows: (1) The admission in evidence of the minutes of the court of quarter sessions showing a plea of non vult made by the de- be affirmed. To consider the questions in the case at bar, which are mooted before us, but which were not presented to or argued in the court of first appeal, would be to depart from established precedent. The judgment under review will therefore For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 Pa. 175) DONNELLY v. PENNSYLVANIA CO. (Supreme Court of Pennsylvania. Jan. 3, 1916.) 1. CARRIERS 318(2)—INJURIES TO PASSENGERS-ACTIONS EVIDENCE. In an action for injuries to a passenger, evidence that he was the last to board the train at a certain point, and that on the starting of the train a passenger ahead of him lurched back, causing his body to project beyond the train and be struck by a truck left standing near the track, is sufficient to sustain a judgment for plaintiff. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1207, 1208; Dec. Dig. 318(2).] .2. NEW TRIAL 72-GROUNDS-WEIGHT OF EVIDENCE. A new trial will not be granted on the ground that the verdict is against the weight of evidence, where it is not an unreasonable deduction from the whole evidence, though it is not such as the court would have rendered. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 146-148; Dec. Dig. 72.] 3. NEW TRIAL 99 GROUNDS-AFTER-DISCOVERED EVIDENCE. After-discovered evidence which is merely cumulative and would not effect a change in the verdict will not authorize a new trial. [Ed. Note. For other cases, see New Trial, Cent. Dig. 88 201, 207; Dec. Dig. 99.] Appeal from Court of Common Pleas, Alle gheny County. Action for trespass by William J. Donnelly against the Pennsylvania Company for personal injuries. From a judgment for plaintiff for $10,000, defendant appeals. Affirmed. The facts appear in the following opinion of Shafer, P. J., in the court of common pleas sur defendant's motion for a new trial and for judgment n. o. v.: and make his body project some distance from the car, and he was in that way struck by the truck, which was still standing near the car, and that in that way he was thrown off and received his injury. There was also evidence tending to show that the trainmen were in somewhat of a hurry, either because the train was late, or another train following them very closely, and it was not in dispute that the train started while the expressmen were still throwing packages in the car, and some of them were left behind. The defendant's testimony was to the effect that the plaintiff ran around the engine and down along the train, and undertook to get in while the car was in motion. [1] As to the motion for judgment notwith- Verdict for plaintiff for $10,000, and judg- The action is for the loss of a leg caused by being run over by a car when the plaintiff was boarding a train. The plaintiff's testimony is to the effect that he went to the station at Rochester, Pa., to board a train; that he desired to get on the smoker, which was the rear half of a car the front half of which was used by an express company; that a truck of the express company was standing at the door of the front half of the car, near the car, and the Richard H. Hawkins, of Pittsburgh, for expressmen were throwing packages into the appellant. Meredith R. Marshall and Rody car; that a considerable number of foreigners were getting on the car in front of him; and P. Marshall, both of Pittsburgh, for appellee. that he was the last person to mount the step. The train was started while he was on the lower step, holding with each hand on the rails provided for that purpose, and the motion of the car, or something, caused the foreigner immediately in front of him to lurch back against him PER CURIAM. This judgment is affirmed on the opinion of the court below denying defendant's motion for judgment n. o. v. and refusing a new trial. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |