Katz and Allee that, although the bond was to the association in answer to this and othto be given to Allee's attorney, it was not to er requests, were, as a general proposition, be delivered to the plaintiff should Allee be inaccurate, and the refusal to charge as reimprisoned. What was offered was (a) a quested was an error requiring the reversal conversation between Katz, the witness, and of this judgment, unless it is cured by anAllee. (b) A conversation between Katz, Al- other phase of the case raised by the charge lee, and one Van Winkle, a person in no way and the requests to charge based thereon, interested in the transaction. (c) Instruc- and that is whether, if the condition impostions given by Katz to Allee and Van Win-ed upon McKee was one which was obnoxkle, regarding the delivery of the bond to ious to public policy, it would defeat the the plaintiff. I think this evidence was prop-right of the plaintiff to recover. This queserly excluded; for the character of the con- tion was raised by the court's remark to the dition of a delivery in escrow cannot affect jury that if the condition of the delivery of the position of the recipient unless commu- the bond was an agreement to interfere with nicated to him. All evidence offered to show the wheels of justice, such condition is illethe terms of delivery made known to the gal and would be no defense, even if the depositary by Katz, the obligor, or on his bond was delivered in violation of the conbehalf, was admitted, and the refusal to dition. The court distinguished between a admit conversations between the obligors and condition which involved the interference of other parties in the absence of McKee, the the Building & Loan Association or its depositary, was not error. agents, with the action of the grand jury to prevent an indictment, and one which required the interference of the Building & Loan Association in securing immunity from imprisonment of Allee when the court im

The third, fourth, and fifth points presented by plaintiffs in error and covered respectively by assignments of error numbered 19, 20, and 26, relate to the admission and exclusion of evidence, but they exhibit no sub-posed sentence. stantial error, as the rules applied were fair- The court charged that if the condition ly within the range of judicial discretion. was of the former kind, namely, an interferThe remaining assignments deal with al-ence with the work of the grand jury, the leged errors assigned upon exceptions to the charge of the trial court. The record discloses that the plaintiffs in error presented 15 requests to charge and had bills of exception sealed as to all which were refused, and also excepted to certain parts of the charge, indicating them in the most general way, and included all in one general bill of exception. An exception taken in this form is too general. Still, disregarding this exception, those taken to the refusal to charge some of the requests seem to meet all the material points aimed at by the general exception to the charge.

condition was obnoxious to public policy, and that the defendants could not invoke such a condition as a defense to the action. In the first place, I think the distinction between these two conditions as drawn by the court, is unsubstantial, and its want of substance is exhibited by recalling what the condition laid upon McKee really was. Katz says that he told McKee that "I would sign the bond, providing I could get the freedom of Allee; that is all," and that McKee said that the bond would not be given up without giving Mr. Allee his freedom; Van Winkle testified that McKee said he would hold the bond, and only deliver it in case there was no indictment; Graham said McKee told him the bond was to be held as his, and not to be used if Allee was sent to state prison; Allee said that it was understood if he was indicted, and the indictment was reconsidered, or if he was not prosecuted under it, the bond was to be used, but if he was prosecuted and sent to jail, the bond was not to be used. Van Nordt said it was only to be delivered if Allee was not imprisoned; that there was an understanding that the members of the association would go before the grand jury and notify it that the indebted

The eighth request to charge was that if the jury found that the bond was delivered to McKee by Katz upon the express condition that it was not to be delivered to the plaintiff should Allee be sent to prison, that McKee thereupon became a special agent, and if he delivered the bond in violation of his instructions, the plaintiff could not recover against the defendant, even though the plaintiff did not know that such instructions had been given to Mr. McKee. Instead of charging this, the trial court left the question to the jury as to whether McKee was a special or a general agent, and proceeded to say that if he was a general agent, the associa-ness had been fixed up. tion was not bound to inquire as to the extent of his authority.

It would be difficult for a jury from this testimony of the plaintiff's witnesses, if beUnder the doctrine laid down by the court lieved, to say what condition Katz imposed of errors in Black v. Shreve, 13 N. J. Eq. upon McKee, but taking any view of it, 455, if the condition was imposed upon Mc- whether the condition was that the associaKee by Katz, McKee was a special agent tion should go before the grand jury and and he was bound by the condition whether prevent an indictment, or that the associathe association knew of it or not. Therefore, tion should not prosecute, or a condition that the remarks by the court in respect to the the bond should not be delivered to the ascharacter of McKee's agency and the notice sociation unless Allee got his freedom, that

is, went scot free, the condition in any of notice to him was notice to his principal. these phases was inimical to public policy. The effect of this, taken in connection with McKee was the agent of Allee. His sole what the court had charged on this subject, purpose was to do everything in his power was to instruct the jury that if the condition to enable Allee to make restitution and es- was unlawful, notice of such condition was cape punishment, and if the bond was left not chargeable to the principal. This inwith McKee to be delivered to the grantee struction is clearly erroneous, for if the only upon the happening of a contingency plaintiff had notice of any condition not perwhich could only result from an illegal act, formed, whether lawful or unlawful, it was such condition would avoid the obligation bound by the limitations imposed upon the because its delivery, and therefore its legal depositary, and if the condition was illegal existence, depended upon an act contra bonos the illegality related to the entire transacmores. The use of this bond in the hands tion; for a deed delivered in escrow will be of McKee under such a condition was a inoperative in the hands of the obligee, "by bribe held out to the association to exert its whatever means he may get possession of influence in inducing the court to refrain the instrument, until the condition is perfrom an imposition of sentence of imprison- formed. It is the performance of the condiment. In such a shape the condition was tion, and not the second delivery, that gives as obnoxious to public policy as though the it vitality and existence as a deed." State bond had been directly delivered to the as- Bank v. Evans, 15 N. J. Law, 155, 28 Am. sociation itself, upon the understanding that Dec. 400. And where a deed is delivered to that would secure the immunity of Allee a stranger, upon condition, and apt words from imprisonment. An agreement to secure are used in the delivery thereof, it is of no immunity in sentence, or pardon after sen- more force until the condition be performed, tence, is obnoxious to the rule of public than if it had never been delivered. If the policy. The general tendency of such an condition is unlawful it never can, in conagreement is opposed to the interest of the templation of law, be performed, and the public, and it is invalid, though the intent parties cannot be said to have intended such of those contracting was good, and no in- a delivery as to give it a lawful existence; jury could result to the public in a partic- nor would the performance of such a condiular case. It is the evil tendency of the tion give the obligation vitality. contract, and not its actual injury to the public in a given case, that is the test. I am of opinion that the defendants were entitled to have the jury instructed as stated in the request to charge as above set out, and that its refusal was error.

There was evidence in the case from which

For the reasons given this judgment will be reversed, and a new trial ordered.

(78 N. J. L. 712)

HALM V. BOARD OF CHOSEN FREE-
HOLDERS OF HUDSON COUNTY.

VISIONS.

June 20, 1910.)

(Syllabus by the Court.)

Lighting a bridge by artificial light is no part of its erection, rebuilding, or repair. [Ed. Note. For other cases, see Bridges, Cent.

Dig. § 97; Dec. Dig. § 38.*]

2. BRIDGES (§ 38*)-REPAIR-STATUTORY PRO

VISIONS.

an inference might have been properly drawn (Court of Errors and Appeals of New Jersey. that one De Yoe was acting in this matter for the plaintiff, and that he heard Katz state the conditions upon which he was willing to become surety on the bond, and that 1. BRIDGES (§ 38*)--Repair-STATUTORY PROhe knew that the bond was to be held in escrow by McKee and not delivered to the plaintiff, if Allee was imprisoned or proceeded against criminally, and that the plaintiff or some one acting for it was to go before the grand jury and make known to it that Allee had made restitution for the purpose of influencing the grand jury either to refuse a bill of indictment, or to reconsider its finding if one had been ordered, and upon this proof the eleventh request to charge is based. That request is as follows: "If the jury believe that Mr. De Yoe was acting as the agent of the plaintiff in securing the bond in question, any statement made to him by the defendant Katz concerning said bond was notice to the plaintiff of such statement." To this the court charged that if the jury believed that De Yoe was the general agent acting for the Building & Loan Association, and if notice was given to him that there was a lawful condition An action under Bridge Act (Gen. St. 1895, attached to the delivery of the bond, then p. 307) § 9, providing that if the board of chosen

Proof that a guard rail has been placed at right angles to the side of a bridge where the highway is broader than the width of the bridge running from said bridge toward the side of placed by the board of chosen freeholders and the highway, assuming that such rail was so forms a part of said bridge, is not evidence of wrongful neglect on the part of such board to erect, rebuild, or repair the bridge, to sustain a St. 1895, p. 307), for damages resulting from recovery, under section 9 of the bridge act (Gen. a vehicle running into such guard rail at night. [Ed. Note. For other cases, see Bridges, Cent. Dig. § 97; Dec. Dig. § 38.*]

3.

(Additional Syllabus by Editorial Staff.) BRIDGES (§ 38*)-ACTION FOR DAMAGES— STATUTORY PROVISIONS.

freeholders shall wrongfully neglect to erect, [avers negligence in the defendants in the rebuild, or repair any bridge, by reason where- erection, rebuilding, and repair of the bridge, of any person shall receive injury or damage to his person or property, he may sue such board whereby the same was dangerous, because and recover judgment, lies only for damages vehicles "were likely to come suddenly, unwhich have been sustained from failure of the expectedly, and unavoidably in contact with bridge safely to perform its appropriate func- the railing"; that the defendants failed to tions, where of right there is a reliance upon them, and gives a private remedy for the neg- "light the bridge by artificial lights," and lect of a public duty which does not exist at erected the bridge so negligently that "it common law. was unsafe for the persons to

[Ed. Note. For other cases, see Bridges, Cent. Dig. § 97; Dec. Dig. § 38.*]

draw near to and enter upon the bridge." At the conclusion of the plaintiff's case, a

Pitney, Parker, Bergen, and Vroom, JJ., dis-nonsuit was granted. To review this Jusenting.

Error to Supreme Court.

Action by Josephine Halm, administratrix, against the Board of Chosen Freeholders of the County of Hudson. Judgment of nonsuit, and plaintiff brings error. Affirmed.

dicial action, this writ is being prosecuted.

The

As negligence of the driver cannot be imputed to the decedent, the question of contributory negligence does not arise. sole question, therefore, to be disposed of is the negligence of the defendants.

It is conceded that in the daytime the

Colby & Whiting, for plaintiff in error. bridge was perfectly safe. Section 9 of the John Griffin, for defendant in error.

bridge act (Gen. St. 1895, p. 307) provides
that if the "board of chosen freeholders shall

wrongfully neglect to erect, rebuild or repair
any bridge by reason whereof, any person
or persons shall receive injury or damage in
his or her persons or property, he or they
may bring his or their action of trespass on
the case against
against said board
of chosen freeholders
* and recover
judgment." The scope of this act has been
narrowed by this court to those cases in
which injuries have been sustained, for fail-
ure of the bridge safely to perform its ap-
propriate functions where of right there is a
reliance upon them. Jernee v. Freeholders, 52
N. J. Law, 553, 21 Atl. 295, 11 L. R. A. 416.
It is also settled that the above act gave a
private remedy for the neglect of a public
duty, which at common law did not exist.
Maguth v. Freeholders, 72 N. J. Law, 226, 62
Atl. 679. Therefore, to warrant a recovery,
the case must be brought within the scope of
this act.

VOORHEES, J. The plaintiff's intestate, while riding at his son's invitation, in an automobile driven by his son, on March 22, 1908, at about 7:15 p. m. on Harrison avenue, was injured by reason of the vehicle coming in contact with a guard rail at a bridge over Frank creek in said highway. The bridge in question was a county bridge. It was not of the full width of the highway, at the time of the accident; the proof being that some two years before the highway had been widened and curbed on one side, so that there was a space of about seven feet on the side of the bridge between it and the line of curbing. It was also shown that from the side of the bridge, extending at right angles toward the curb, there had been erected, by whom does not appear, a fence or barrier composed of 2x4 uprights carrying a top rail of 4x6 timber. This fence or barrier extended some three or four feet from the side of the bridge, the remaining space up to the curb being without any guard, so that a person driving along the curb would meet with no physical barrier to prevent him going into the creek. The automobile in question had proceeded from Paterson to Newark, where the side oil lamps were lighted; but the large gas lamps were not. The journey was continued on the highway in question toward Jersey City. It was dark when the bridge was reached, and there was no light on the fence or railing; but there were lights along the highway, one arc light being within 70 feet of the bridge. The driver describes the occurrence as follows: "When we came to the bridge, it was dark, and there was no light there at all. We came along and we heard a crash of our machine." They came within five or ten feet of the bridge before they saw the railing and ran into it, going through it a few feet, tearing it away. The declaration vision of law that bridges should be con*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

The plaintiff's claim that the bridge should have been lighted by the freeholders must fail. Lighting a bridge by artificial light is no part of its erection, rebuilding, or repair.

The remaining allegations of negligence are that the defendants had repaired the highway over which they had control whereby it became wider than the bridge, and had neglected to provide guard rails or a wing fence, running at a proper angle from the curb to the bridge.

It is at once perceived that a barrier placed at an acute angle to the curb, if not seen by a passing carriage, would be dangerous. So this railing was dangerous, if at all, simply because not seen. It is not argued that there was any defect, either in the bridge proper or the railing. The latter was placed there for the purpose of warning and protection and appears to have been sufficient for that purpose. There is no pro

structed to the full width of the highway, and I apprehend it is a matter of common knowledge that they ordinarily do not extend to such width. This, therefore, did not con- (Court of Errors and Appeals of New Jersey.

of being at an acute angle with the creek, 1. SEARCHES AND SEIZURES (§ 8*)—WRONGbe considered wrongful construction. The ordinary rule must be applied to boards of freeholders, regarding the building of bridg-picion, supported by circumstances sufficiently

question of probable cause is one of law for the defendant company, for the judge charged court alone, and it is erroneous to submit any phase of the question to the determination of the jury.

[Ed. Note.-For other cases, see Searches and Seizures, Cent. Dig. § 6; Dec. Dig. § 8.*]

Error to Supreme Court.

Actions by Michael J. Lane and Ellen Lane against the Pennsylvania Railroad Company. Judgments for plaintiffs, and defendant brings error. Reversed, and new trial granted.

Vredenburgh, Wall & Carey, for plaintiff in error. Herbert Clark Gilson, for defend

ants in error.

TRENCHARD, J. These two writs of error bring up for review judgments against the Pennsylvania Railroad Company entered in the Supreme Court on verdicts in the Hudson circuit, one at the suit of Michael J. Lane; the other at the suit of Ellen Lane. The actions were tried and have been argued here together. In their declarations, as amended at the trial, both plaintiffs averred that the defendant, by its servants, with force and arms, etc., entered the dwelling house of the plaintiffs. In each case the defendant pleaded, besides the general issue, a special plea which was treated at the trial, and in the argument in this court, as a plea justifying under a search warrant. Both plaintiffs replied de injuria. In each case, at the close of the evidence, the defendant moved for a direction of a verdict in its favor for the reason, among others, that the proofs demonstrated that the defendant had probable cause for suing out the search warrant. The trial judge denied the motion, and submitted to the jury the question of probable cause, instructing them that if they found no probable cause for suing out the warrant the plaintiffs were entitled to recover. That action is assigned as error. Not only were the actions tried below both by the court and counsel upon the theory that, if there was a want of probable cause for suing out the search warrant, the plaintiffs were entitled to recover, but they also have been argued in this court upon the same theory.

the jury that unless they found that such warrant had been issued there could be no recovery. He then proceeded with the instruction, of which complaint is made, that, if there was a want of probable cause for suing out the warrant, the plaintiffs were entitled to recover. In cases of criminal prosecutions, "probable cause" means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the accused is guilty of the offense with which he is charged. Spencer v. Anness, 32 N. J. Law, 100; Stricker v. Pennsylvania R. R. Co., 60 N. J. Law, 230, 37 Atl. 776; Miller v. Milligan, 48 Barb. (N. Y.) 40; 26 Cyc. 24, and cases cited. To constitute "probable cause" a prosecutor need not necessarily have personal knowledge of the transaction of which he complains; he may rightfully act upon information communicated to him in the ordinary routine of business, where he honestly believes such information to be true, and the information is of such a character, and is communicated in such a manner as, under similar circumstances, it would be acted upon by a business man of ordinary prudence. Spencer v. Anness, 32 N. J. Law, 100; Gallaway v. Burr, 32 Mich. 332; Lamb v. Galland, 44 Cal. 609; Chatfield v. Comerford, 4 Fost. & F. 1008; Lister v. Perryman, Law Rep. 4 Ho. of L❜ds. 521; Miller v. Milligan, 48 Barb. (N. Y.) 30.

Nor does the question of probable cause turn upon a consideration of what were the facts of the case, as the trial judge seems to have charged, but upon a consideration of what were the facts as they appeared to, or were known by, or were believed to be by, the defendant. James v. Phelps, 11 Adol. & El. 483. The controlling fact is not was there actual cause for the prosecution, but had the defendant, at the time of instituting the prosecution, probable cause for so doing.

In the present case, as we have pointed out, it was undisputed that certain goods had been stolen from the cars of the defendant company. It further appeared from the evidence and was undisputed that Michael Assuming, but not deciding, that the decla- J. Lane, one of the plaintiffs, was employed rations state a cause of action, and assuming, by the defendant as a watchman in the yard but not deciding, that the pleas set up a where the cars were; that he with the othjustification, we are of the opinion, in viewer plaintiff, his wife, lived in the premises of the state of the evidence, that the learned entered and searched; that before the search trial judge erred in submitting the question warrant was sued out, two other watchof want of probable cause to the jury. The men, employed by the defendant company trial judge charged the jury, and properly, to detect stealing, reported to the defendant we think, that it was "manifest and undis- that they saw the plaintiff Michael J. Lane puted" by the evidence that certain goods steal the goods from the defendant's car, and had been stolen from the cars of the defend- that Lane had admitted to them that he had ant company. There was evidence tending done so. Clearly such information communito show, and the jury must have found, that cated by regularly employed watchmen wara warrant authorizing a search of the prem-ranted the defendant in believing that Lane ises occupied by the plaintiffs was regularly had stolen the goods, and, in the absence of issued on the complaint of the officers of the evidence tending to show negligence or bad *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes