ficient to support an action under section 27 of | tice that we demand of you possession of the the Landlord and Tenant Act.

holding over after termination of the term this, a suit by one of these two claiming and notice demanding possession. The third | double the annual rental value of the whole is for use and occupation. The fourth is on property. It has been held in a suit under an account stated. As noted in the Supreme 11 Geo. II, c. 19, § 18, which is now section Court opinion, no pretense of a claim is made 28 of our Landlord and Tenant Act, prescribunder the fourth count. Under the count ing the penalty of double rental value for for use and occupation this court concurs in holding over after the tenant himself gives what was said by the Supreme Court (79 N. notice, that the notice must be direct and J. Law, 377, 378, 75 Atl. 452) that the posi- positive and should not depend on a contintion taken by plaintiff in repudiating the gency. Farrance v. Elkington, 2 Camp. 501. relation of landlord and tenant by the notice A fortiori should such a rule apply when necessarily negatived any claim for use and the notice is given by the landlord or reveroccupation, which must be predicated on that sioner. Under such a notice as the present relation. In fact, that part of the former one, if held adequate, the tenant by surrendecision is not now questioned. The sole dering all might surrender more than he was point now made is that the Supreme Court legally bound to do, and by surrendering erred in holding that the notice was insuffi- only two-thirds might subject himself to cient to support an action under the statute. penalty of double value notwithstanding his To support this, plaintiff in error now at- supposed compliance. We concur therefore tacks a passage in the opinion in 79 N. J. in the view of the Supreme Court in the Law, 377, 75 Atl. 452, which intimates that former case that the notice was insufficient the demandants in the notice were not en- to support the action. titled to possession of the whole premises The declaration seems also to be faulty but only of two-thirds, as incorrect, and urg-in claiming double value of the whole ines that in ejectment they would be entitled as against a stranger to recover the entire possession. This may be so under section 24 of the Ejectment Act (2 C. S. p. 2058; Bouvier v. Baltimore & N. Y. Railway Co., 67 N. J. Law, 281, 296, 51 Atl. 781, 60 L. R. A. 750), although apart from this the rule seems to vary in different jurisdictions (10 Enc. Law [2d Ed.] 512; 15 Cyc. 180, 181). But a determination of this point is not essential to a decision of this case, for we may assume that plaintiff could have recovered in ejectment possession of the whole premises as against defendant-a rather violent assumption, in view of the judgment for possession of one-third in favor of Carrie Schorb which plaintiff put in evidence. A recovery in ejectment, however, is a very different thing from a suit for double the rental value of the premises, which is an action resting on a penal statute. 18 Enc. Law (2d Ed.) 409; 24 Cyc. 1193; Wood, L. & T. § 622. Its penal character is indicated not merely by the recovery of double the rental value, but by the provisions that the defendant shall be obliged to give special bail, and that he shall have no relief in equity. Hence the plaintiff's case must be clearly within its terms.

[2] The ordinary notice to quit is sufficient to support an action for unlawful detainer (Townley v. Rutan, 21 N. J. Law, 674), and the statute of unlawful detainer is almost identical in its language with that now under consideration (C. S. 2599, § 5), so that such a notice would seem sufficient to support this action also. But we have here in combination a notice by two parties ascertained by the evidence to be owners of the reversion in only two undivided thirds, claiming the whole or two-thirds of the premises as the rights of the claimants may be determined in the future, and, based on

stead of double value of plaintiff's moiety. The rule as laid down in the cyclopedias and text-books seems to be that, unless there has been a joint demise, tenants in common cannot sue jointly; but each may and apparently should bring a separate action for double the value of his moiety. 24 Cyc. 1195, note 69; 18 Enc. Law (2d Ed.) 410, note 11; Wood, Landlord & Tenant, § 527. Granted the sufficiency of the notice, Mrs. Mason properly brought her separate action; but improperly laid claim to double the whole yearly value. It may be that the court might have controlled this in the trial; but on the face of the pleadings she as one plaintiff laid claim to all that she and another had jointly claimed in the notice. Whether this would justify a nonsuit need not be considered, for the nonsuit was properly rested on the insufficiency of the notice. The judgment will be affirmed.

PITNEY, Ch., and KALISCH and VROOM. JJ., dissenting.

AMERICAN SILK DYEING & FINISHING
CO. v. FULLER'S EXPRESS CO.
(Court of Errors and Appeals of New Jersey.
March 4, 1912.)

(Syllabus by the Court.)
1. CARRIERS (§ 158*)-CARRIAGE OF GOODS-
LIMITATION OF LIABILITY—VALIDITY.
While a common carrier cannot lawfully
contract for exemption from liability for losses
arising from its negligence, it may stipulate
with the shipper as to the value of the proper-
ty, and contract that its liability shall be lim-
ited to the amount so stipulated.

[Ed. Note. For other cases, see Carriers. Cent. Dig. §§ 663-667, 699-7032, 708-710, 718, 7182; Dec. Dig. § 158.*]

2. CARRIERS (§ 155*)-CARRIAGE OF GOODSSHIPPING RECEIPT.

Where a shipping receipt that contains such a limitation of the carrier's liability is prepared and tendered by the shipper and accepted by the carrier, the shipper is bound thereby.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 677, 679, 682-685, 691-696; Dec. Dig. § 155.*]

Error to Supreme Court.

Action by the American Silk Dyeing & Finishing Company against the Fuller's Express Company. Judgment for defendant, and plaintiff brings error. Affirmed. D. Frederick Burnett and Arthur W. Clement, for plaintiff in error. Griggs & Harding, for defendant in error.

accept, as the agreed value of the goods lost, $50.

[1] It is settled in this state that, while a common carrier cannot lawfully contract for exemption from liability for losses arising from its negligence, it may stipulate with the shipper as to the value of the property intrusted to it, and may contract that its liability shall be limited to such stipulated amount. Atkinson v. N. Y. Transfer Co., 76 N. J. Law, 608, 71 Atl. 278, following in this respect the Supreme Court of the United States, in which it was said: "It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen freight and secure the carriage if there be no loss; and the effect of disregarding the agreement, after loss, is to expose the carrier to a greater risk than the party intended he should assume." Hart v. Pennsylvania R. R. Co., 112 U. S. 340, 5 Sup. Ct. 155, 28 L. Ed. 717. And such is the great weight of authority. 5 Am. & Eng. Ency. 328; 6 Cyc. 402. It remains therefore only to be considered whether, in this case, any such contract was made.

BERGEN, J. The defendant corporation was, at the time of the happening of the events upon which plaintiff bases its action, engaged in the business of transporting merchandise for hire. Its method of business was to receive goods in its wagons in Paterson and deliver them to a railroad company in that city, consigned to defendant in Jersey City, at which point they were taken by defendant and delivered by its wagons in New York City, either to the original consignee, or to another common carrier, if [2] The facts bearing on this point are the ultimate destination of the goods requir- that the plaintiff had in its possession a ed it, limiting its charges to Jersey City or book of receipts or waybills commonly used to the point of delivery by its wagons. In by the defendant, and that it prepared this the present case, it accepted from the plain-particular waybill or receipt and tendered it tiff "one (1) case of silk, 692, marked 'Mar- for signature to the defendant, by whom it shall Field & Co., Chicago, Ill.,'" and de- was signed. Under similar circumstances, livered it to the Erie Railroad Company to this court, in Perrin v. U. S. Express Co., 78 be carried to Jersey City. It was placed by N. J. Law, 515, 74 Atl. 462, 28 L. R. A. (N. S.) that company in a car, duly sealed, which|645, said: "The plaintiffs had knowledge was broken, and the goods stolen at some of the entire contents of the receipt; for point between Paterson and Jersey City, and for this loss the plaintiff brings its action to recover the full value of the silk.

they had, by their agents in charge of shipping the goods, prepared it and tendered it to the defendant, contrary to the general course The trial court, holding that by the con- of such transactions, where customarily the tract of shipment the plaintiff was limited in receipt is filled out by the carrier and tenits right of recovery to $50, so instructed dered to the shipper. Although it was writthe jury, and this direction is the basis of ten upon blanks furnished by the carrier, plaintiff's writ of error. It is admitted by yet these blanks had been in the possession a stipulation, signed by both parties, that of the shippers, and had been uniformly used the reasonable value of the goods lost is and filled out by them in their usual course $1,839.75; that the defendant is an express of shipping goods for more than a year precompany, organized under the laws of the vious to the transaction in question, and state of New Jersey, with its principal office were tendered to them by the defendant, and in the city of Paterson, and is a general so had been adopted by the plaintiffs as emforwarder of freight, packages, money, and bodying their own contract. * * Here, valuables; that the receipt given by defend- then, we have essentially a case of the shipant to plaintiff contained, among others, the per limiting the liability of a carrier, not following words "and it is hereby expressly the usual one where the carrier has sought agreed, and is a part of the consideration to do so." Applying this rule to this case, of this contract, that the Fuller's Express there can be no doubt that this plaintiff tenare not to be liable for any loss or damage dered such a contract with full knowledge except as forwarder only, nor for any loss of its contents; and that it was accepted. or damage of any box, package or thing for It thus appears that this court has already over $50, unless the just and true value decided that a carrier and shipper may lawthereof is herein stated." As no value was fully contract as to a stipulated amount of stated, the contract, if legal, is an agree- liability; and that the shipper will be chargment, entered into by both parties, that in ed with notice of the contents of the concase of loss the one will pay and the other tract, if he himself prepares it and tenders

*

it to the carrier. Such being the status of the present case, the instructions given by the trial judge were not erroneous, and the judgment below should be affirmed.

by the express written declaration of the legatee. It is most important to bear in mind this rule as to the extent to which the evidence must go, unless we are to open the The conclusion which we have reached door for an invasion of the provisions which renders it unnecessary to consider whether the Legislature has adopted by the statute of or not this shipment was interstate com- wills and the statute of frauds. [2] Is the merce; for, the defendant having been held proof then clear and satisfactory? The eviliable as the initial carrier, the only ques-dence is summarized in the opinion of the tion presented is the extent of its liability. learned Vice Chancellor and we need not reThe judgment below should be affirmed.

AUMACK et al. v. JACKSON et al. (Court of Errors and Appeals of New Jersey. March 4, 1912.)

(Syllabus by the Court.)

1. TRUSTS (§ 44*)-EXPRESS TRUSTS-SUFFICIENCY OF EVIDENCE.

In order to establish a parol trust against a legatee, which equity will enforce on account of the legatee's fraud, the evidence must be clear and satisfactory.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*] 2. TRUSTS (§ 44*)-EXPRESS TRUSTS-SUFFICIENCY OF EVIDENCE.

The evidence in this case falls short of that standard.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*]

Kalisch, Bogert, Vredenburgh, and White, JJ., dissenting.

Appeal from Court of Chancery.

peat it. Much of his opinion, and much of the brief of the respondents, is taken up with a discussion of the conduct of the defendant W. Scott Jackson in procuring the execution of a will by Louise C. Aumack, the alleged fraud doer. This evidence is irrelevant. If, as the Vice Chancellor thought, Mr. Jackson procured this will from his sister by the exercise of undue influence, the only persons wronged by his conduct were the next of kin of Louise C. Aumack. The complainants were not thereby injured, since, if she had executed no will, but had died intestate, they would have been excluded from the enjoy ment of the property as effectually as they are by her will. If the theory of the complainants is correct, her duty was to execute a will contemporaneously with that of her husband, or, at any rate, immediately after his death, and her failure to do so for more than two years was a fraud with which Jackson was not connected. The only difference between the case that would have been pre

Bill in equity by Luella Aumack and oth-sented, if she had executed no will, and the ers against W. Scott Jackson, executor, and others. From a decree for plaintiffs (78 N. J. Eq. 189, 78 Atl. 749), defendants appeal. Reversed and remanded, with directions to dismiss bill.

W. H. Corbin and Foster M. Voorhees (I. W. Carmichael, on the brief), for appellants. Edmund Wilson, Atty. Gen., and Aaron E. Johnston, for appellees.

present case, is that in that event her next of kin would have been defendants and not her executor and legatees. The case must therefore be decided without regard to any opinion that may be entertained as to the validity of the will of Louise C. Aumack. It turns entirely upon the question whether she induced her husband to leave his property to her upon her promise to devise and bequeath it to his next of kin, and upon her

SWAYZE, J. The object of this bill is to failure to perform that promise. She was enforce a parol trust.

not present when her husband executed his [3] The theory of the complainants is that will. He told the scrivener at the time that Louise C. Aumack, wife of Selah S. Aumack, he had never made a will because he did not induced her husband to devise and bequeath know how to leave his property, and that he all his property to her upon her promise to guessed he would leave it all to his wife, and distribute it, after her death, among his next she could do what she pleased with it; that of kin, the complainants in the cause. The she helped to earn it. This statement of the law is settled by the decision of this court intent of the testator, contemporaneous with in Williams v. Vreeland, 32 N. J. Eq. 734. the actual execution of his will and made in Equity will enforce a parol promise made by the absence of his wife, is corroborated by a legatee to a testator to hold the legacy for the testimony of neighbors and acquaintances the benefit of a third person where the con- with whom he talked, and the statement that duct of the legatee amounts to a fraud. This his wife helped to earn the property is corcase therefore involves a decision upon the roborated by the facts. To meet this, the facts only. [1] The rule of evidence was thus complainants produced evidence of statestated by Mr. Justice Van Syckel: "Courts of ments by Selah Aumack indicating affection equity act in these cases with the utmost for some of his relatives, particularly nieces caution, and they will not interfere, unless who lived near him, and statements by Louthe promise and the intended fraud on the ise C. Aumack after his death. His statebeneficiary are established by clear and sat-ments however, are of the general character isfactory proof." In that case it was proved that might be expected, and did not indicate

their joint efforts, their industry, and frugality, had accumulated their fortune, and, if we assume that he was a man with the ordinary feelings of affection toward the wife who had lived with him so long and helped him so well, he would, naturally and properly, when he came to dispose of his property, leave it to her for the reason that he gave the scrivener, that she had helped earn it. The complainants do not claim that the decree effectuates the intention of Selah Aumack. Confessedly he did not mean to distribute his property among his heirs and next of kin in the proportions fixed by statute in case of intestacy, nor is there evidence justifying the conclusion that the legacies given by Mrs. Aumack to her husband's nieces were not exactly what he had intended. If we are to go contrary to the intention of Mr. Aumack and make an equal distribution where he intended an unequal distribution, we are not enforcing a trust, but are making a new will, which he confessedly would not have made. The evidence as to his varying intentions is contradictory. No doubt he expressed himself differently at different times as his mood varied, but the evidence does not justify us in annulling in effect a man's will, supported as it is by his oral declaration of intent at the time of execution, and in finding his widow guilty of fraud, on the uncertain and contradictory testimony of neighbors after both are dead. The case differs widely from In re Boyes, L. R. 26 Ch. D. 531, on which complainants rely. In that case the legatee admitted the trust.

any settled testamentary intention. Upon the contrary, all the evidence shows that there was no settled testamentary intention on his part prior to the execution of his will. The strongest evidence produced by the complainants is an admission of Louise, after her husband's death, that he started to make a will a short time after a stroke of paralysis, but said that he had so many relatives that it hurt his head to think about them all; and that she told him not to bother about his affairs, but to make a short will, leaving everything to her and she would make a will and fix it for his relatives just as she knew he wished to have it. How she could know his wishes when he had not defined them in his own mind, and was unable to do so, is incomprehensible. It is unnecessary to decide whether Mrs. Aumack would have been bound as trustee for her husband's heirs and next of kin, in case it were established that she had assented to this undefined arrangement. The fact that Selah Aumack had never decided in what proportions he would distribute his property among his own relatives is most persuasive that no agreement had been made between him and his wife prior to the execution of his will. If he and his wife made an agreement that his relatives should have the property after her death in shares to be fixed by her, it would have been easy for him to devise and bequeath the property to his wife for her life only and, after her death, to such of his next of kin as she might appoint. This would have avoided the difficulty which the witnesses for the complainants rely upon as an explanation of his failure to make the distribution by his own will. In view of his long and successful experience in business, we find it impossible to explain his failure to protect the interests of his next of kin, unless he meant to do exactly what he told the scrivener and what his will accomplished. The circumstances of the case sustain this conclusion. Louise C. Aumack, immediately after her husband's death, transferred the property to her own name, and although she might have done this without the knowledge of her husband's rel- (Court of Errors and Appeals of New Jersey.

atives, she did more, which those of them who lived in the neighborhood must have known, for she made considerable gifts of real estate to the church and to her brother

without objection on the part of any of the complainants, who, if the theory of their bill is correct, were defrauded thereby. Even her admissions as testified to by witnesses for the complainants, upon which they rely, indicate that the arrangement between her husband and her permitted her to use as much of the estate as she chose for herself, so that there might not be very much left. The will of Selah Aumack was a natural expression of the wishes of a man of proper feeling. He and his wife were aged people, who had lived together many years, and who, by

The decree must be reversed, and the record remitted, to the end that a decree may be entered dismissing the bill. The defendants are entitled to costs in both courts.

KALISCH, BOGERT, VREDENBURGH, and WHITE, JJ., dissenting.

DUBELBEISS v. TOWN OF WEST HO-
BOKEN.

March 4, 1912.)

(Syllabus by the Court.)

1. DECISION OF SUPREME COURT APPROVED.

Dubelbeiss v. Town of West Hoboken, 81 N. J. Law, 98, 79 Atl. 290, approved and 2. COURTS (§ 236*)-COURTS OF APPELLATE adopted.

JURISDICTION-REVIEW OF MUNICIPAL PRO

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes