party to the contract.17 An action for breach of promise of marriage does not survive the death of one of the parties.17 Relying upon a promise to marry, a milliner gave up her business, but no marriage took place. An action was brought, but before the trial the defendant died and his executor was joined. Held:-The action could not be înaintained against the executor.18 Although a promise to marry is sued upon as a contract action, i. e., as assumpsit,19 yet it is regarded as a personal action.20

An action for malicious prosecution sounding in consequential and punitive damages, although affecting business and property is such a personal action as does not survive to the personal representative.20 However, there is no doubt that in most jurisdictions personal actions which set forth special damages to property rights will survive the death of the parties. In the case of Noice v. Brown21 which was brought for the seduction of a daughter it was the injury to property rights which gave the suit the quality of survivorship. The action was for loss of services.

The true line of demarcation at common law separating those causes of action which survive from those which do not is that in the first the wrong complained of affects primarily and principally property and property rights, and the injuries to the person are merely incidental, while in the latter the injury complained of is to the person, and the person or property affected are merely incidental. In the former case the cause of action survives, while in the latter it abates.22 S. B. F.

RECENT DECISIONS.

SAMUEL B. FINKELSTEIN, Editor-in-charge.

BILLS AND NOTES - PRESUMPTION OF CONSIDERATION -DIRECTION OF VERDICT.-Action of promissory note. Plaintiff put note in and rested. Defendant put in evidence to prove no consideration. Lower court ruled "there is no evidence to overcome proof as made by Defendant" and directed verdict accordingly. Held, error. Bergen, Black, Heppenheimer and Williams, J. J., dissent. McCormack vs. Williams, 95 Atl. (N. J.) 978.

A negotiable note is deemed to have been issued for valuable consideration. Comp. Stat. p. 3734, Sec. 24. Plaintiff, therefore, received benefit of a presumption by putting the note in evidence. Absence or failure of consideration is a matter of defense as against any person not a holder in due course. Comp. Stat. Supra. Sec. 28. Therefore, the defense of no consideration, if proven, is a good one. Tucker v. Michaels, 112 N. Y. S. 1044. But when plaintiff proved

"French v. Seamans, 48 N. Y. S. 9; 21 Misc. Rep. 722; Reversed on another point, 50 N. Y. S. 776; 27 App. Div. 612.

18Quirk v. Thomas, 113 L. T. 239 (England) 1915; 64 Univ. of Penna. Law Rev. 207; Hayden v. Vreeland, supra.

19Donovan v. Folly, 5 Pa. Dist. Rep. 91 (1895).

20 Hayden v. Vreeland, supra; 64 Univ. of Penna. Law Rev. 207.

2139 N. J. Law 569; Currier and Bate, Cases on Torts, 448; Cooper v. Electric Co., 63 N. J. Law 558, page 562.

221 C. J. 174.

the note, offered it, and rested, he established a prima facie case. Polhemus v. Prudential Realty Corp. 74 N. J. L. 570, 67 Atl. 303, which was in effect evidence. Williams v. Hasshagen, 166 Cal. 386. Plaintiff having made out his case, prima facie, the lower court should have put Defendant on his defense. Platts v. Rosebury, 28 N. J. L. 146. A trial judge is justified in granting a nonsuit or directing a verdict only upon a question of law arising from the admitted or uncontroverted facts of the case. Dickenson v. Erie R. R., 90 Atl. 305. Therefore, as there was conflicting testimony in the principal case and conflicting testimony is for the jury, D. L. & W. R. R. Co. v. Toffey, 38 N. J. L. 525, the reversal in the principal case is correct. It has been held that, whether testimony tending to show a valid defense overcomes the presumption created by the introduction of a note in evidence, it is a question for the jury though evidence in rebuttal is uncontradicted. Citizen Bank of Tifton v. Timmons, 84 S. E. 232, 15 Ga. App. 815. New Jersey seems to be in accord with this doctrine.

H. L. C. S.

CARRIERS-FEDERAL EMPLOYER'S LIABILITY ACT-INTERSTATE COMMERCE. -In Moran v. Central Railroad of New Jersey, 96 Atlantic, 1023, it was held that a car which had been engaged in interstate commerce, lost its character as an interstate commerce carrier the instant its cargo was fully discharged and did not acquire a new character as an interstate commerce car until the railroad manifested its intention, by act or word, to use it for interstate commerce again, and that an employee injured by the car while it was empty and awaiting orders could not recover under the Federal Employer's Liability Act (U. S. Comp. Stat. 1913 Sec. 8657-8665). The car in question had been engaged in carrying coal from Pennsylvania to New Jersey, had discharged its cargo at Newark and had been taken to the railroad's yards to await further orders. While it was there the plaintiff was injured. The first Federal Employer's Liability Act (1906) was construed by the U. S. Supreme Court in the Employer's Liability Cases (207 U. S. 463; 28 Sup. Ct. 141; 52 L. Ed. 297). That court held that the statute dealt with all the concerns of the individuals or corporations to which it related and did not confine itself solely to the interstate commerce business which such persons may do. So holding, it considered that the act included subjects wholly outside of the power of Congress to regulate commerce and that it was repugnant to the Constitution. With this judicial declaration in mind, Congress passed the act upon which the plaintiff bases his right of recovery. By it liability is imposed upon a common carrier, in case it is engaged in the business of interstate commerce, but only while engaging in such business at the time of the happening of the accident which produces injury to an employee. And it does not impose such liability, even when the carrier is so engaged, unless the person injured is, at the time of the occurrence of the accident, himself employed by the carrier in such commerce. (Pierson v. N. Y. S. & W. R. R., 85 Atlantic 233.) The purpose of the statute is to secure the safety of interstate transportation and of those who are employed therein. (Mondou v. N. Y., N. H. & H. R. R. 1, 51.) The final test is the relation of the employee's work to interstate transportation at the time of the injury. (Pederson v. D. L. & W. R. R., 197 Fed. 537.)

F. v. d. S.

CARRIERS-PASSENGERS-FREE PASS-STIPULATION AGAINST LIABILITY.In Morris v. West Jersey & Seashore R. R., 94 Atl. 593, it was held that a contract by which, in consideration of a free passage, a passenger assumes the risk of injury to his person from the negligence of the servants of the railroad is valid in law and a passenger who receives knowingly a free ticket, with an endorsement of such contract upon it, will be bound by the terms of such contract and cannot recover for injuries from such negligence. A pass issued to a person in the employ of a railroad company is nevertheless a free pass within the meaning of the "Hepburn Act" (U. S. Comp. Stat. 1913 Sec. 8563). The rule is so in the Federal Courts as well as in the State Courts of New Jersey. (See Charleston R. R. v. Thompson, 234 U. S. 576.) The rule as to passengers for hire is that a railroad may not by contract limit its liability. The only consideration that will support such a contract is that the passage is free and only such passes as are defined by the "Hepburn Act" as free passes are construed to be free. In the case of Kinney et als., Adm'rs v. C. R. R. of N. J., 32 N. J. L. 407, Chief Justice Beasley declared that such contract was not made by the railroad in its capacity of common carrier but that as to such passenger it stood in the character of a gratuitous bailee. In the courts of New York the rule is similar to that of New Jersey (See Welles v. N. Y. C. R. R., 24 N. Y. 181; Perkins v. Same, 24 N. Y. 196). Some courts, which can discern different degrees of negligence, vary the rule somewhat in that they will not enforce such contract if the negligence is "gross" negligence. (See Ill. Cent. R. R. v. Reed, 37 Ill. 485 and Ind. Cent. R. R. v. Mundy, 21 Ind. 48.) In the Pennsylvania case of R. R. v. Coleman (89 Atl. 87) it was held that a railroad may not, even in the case of a free passenger, limit its liability. It is objected to the rule, that if the railroad can limit its liability, it will tend to become careless in the conduct of its business but this contention can be disposed of with the answer that the presence of one free passenger will not alter the fact that the railroad owes to the many passengers for hire the duty to use great care.

F. v. d. S.

CONTRACTS--ACCORD AND SATISFACTION-PART PAYMENT-COMPROMISE AND SETTLEMENT.-A short but full review of the law of accord and satisfaction in New Jersey is to be found in a recent Court of Errors and Appeals' decision. Decker v. Smith & Co. 96 Atl. 915 (1916). In a suit brought for the balance due on a contract, the defendant pleaded accord and satisfaction. Held, the facts did not sustain the defence. To constitute a compromise and settlement there must be a satisfaction of the entire debt so as to extinguish it entirely. Line v. Nelson, 38 N. J. Law 358. When there is a payment of a sum, in order that this will be a satisfaction of a larger debt, there must be some consideration for the implied promise not to sue for the balance. Daniels v. Hatch 21 N. J. Law 391, 47 Am. Dec. 169. Without a consideration the agreement is nudum pactum and the creditor has a right of action for the balance. Watts v. Frenche 19 N. J. Eq. 407. There must be an acceptance by the creditor of the smaller sum with the understanding that it is in full satisfaction of the debt, and with an intention to discharge the debtor. Morris Canal etc. Co. v. Van Vorst 21 N. J. Law 100; Oliver v. Phelps 20 N. J. Law 180. But if the amount claimed is liquidated, a part payment even though accepted in full, will not bar suit for the balance, as the promise not to

collect the remainder is without consideration. Chambers v. Niagara Ins. Co. 58 N. J. Law 216, 33 Atl. 283; Eckert v. Wallace, 75 N. J. Law 171, 67 Atl. 76. Should the amount not be due, the payment prior to the due date furnishes consideration. But when the debt is unliquidated, or disputed, an acceptance of a smaller sum than that claimed in full satisfaction will sustain a plea of accord and satisfaction. Rose v. American Paper Co. 83 N. J. Law 707, 85 Atl. 354; Line v. Nelson, supra. The use of a check, marked "in full" does not bar the recovery of the balance of a liquidated, due claim, even though the debtor requests that unless it be accepted on those terms it be returned. Castelli v. Jereissati, 80 N. J. Law 295, 78 Atl. 227. An executory accord and satisfaction is not a good plea. Stone v. Todd, 49 N. J. Law 274, 8 Atl. 300.

E. A. S.

INFANT'S CONTRACTS.-T, an infant, by his next friend, brought suit to recover four hundred and fifty dollars, the price paid by said T for an automobile, which he had purchased from the defendant on July 17th, 1915. On August 2, 1915, said T repudiated his contract and tendered back the automobile; defendant refused to accept same on the ground that said machine had been damaged to the extent of about two hundred and fifty dollars, and that plaintiff was not entitled to recover unless he returned the automobile in the same condition as it was when he bought it, or made an allowance for depreciation. Judgment was given for plaintiff. Taplitsky v. Donohue, N. J. Law, Jan. 1916, p. 13. (East Orange District Court.)

It is elementary that contracts of an infant are not void, but merely voidable, and a contract made with an infant is valid until avoided.1 Infancy is a good defense to a contract action and the courts also hold that an infant may plead infancy in tort cases which arose out of the contract.2 In New Jersey where an infant made a false representation as to age, he will be estopped from disaffirming the contract.3 The plea of infancy is a shield which the law gives to the infant.4

Most of the cases cited by the Court, in the Taplitzky case, to sustain its contention, were cases where the plea of infancy was used as a shield to avoid the contract. In the main case the infant uses the plea of infancy not as a shield but as a sword, not to protect himself but to defraud his vendor.

While there are many cases in New Jersey regarding infants' contracts, none present a situation such as we have in this case. In most of the cases the infants were the defendants, and set up the plea in order to avoid the action.5 In the cases where the infants were plaintiffs, the facts showed that the infants were able to return the

1Voorhees v. Wait, 15 N. J. Law 343; Paterson v. Lippincott, 47 N. J. Law 457.

Fitts v. Hall, 9 N. H. 441.

'Pemberton Bldg. & Loan Association v. Adams, 53 N. J. Eq. 258. Rice v. Butler, 160 N. Y. 578, 55 N. E. 275, 73 Am. St. Rep. 703; Johnson v. Northwestern Mut. Life Ins. Co., 59 N. W. 992, 45 Am. St. Rep. 473.

Voorhees v. Wait, 15 N. J. Law 343; Paterson v. Lippincott, 47 N. J. Law 457.

goods just as they were received and having put the vendor in statu quo, were permitted to recover back the amount of the purchase price.

There are a number of cases holding that an infant can recover back the purchase price even though he be unable to put his vendor in statu quo. But the better line of cases hold that where the infant has used or consumed the consideration or enjoyed the benefits thereof, he may not maintain against the defendant in an action to recover back, unless he places the defendant in statu quo.8

The case of Johnson v. North Western Mut. Life Insurance, above referred to is the leading case on this question of infant's contracts. The Court goes into the matter thoroughly and sustains its judgment by a number of cases, and points out that it is not illegal for infants to make contracts, but that the law in order that infants may not be taken advantage of, gives to the infant as a shield, the plea of infancy. It also points out that where the infant has disposed of the goods and has received the benefits of same, he should not be permitted to take advantage of his vendor. Take the case of a girl about eighteen years of age who buys candy. After she had paid for the candy, taken it away and eaten it, under the ruling in the Taplitzky case, she could go back to the store and demand that her money be returned. Instead of the strong hand of the Law protecting the infant, under the Taplitzky case, it really smoothes the way for those who are unscrupulous to defraud the public under the guise of infancy.

B. D.

LANDLORD AND TENANT-DEFECTIVE PREMISES.-In a suit brought by a tenant who was injured through the falling of a ceiling caused by water leaking through the roof, it was held that the landlord was liable for the injury. Levy v. Perry 94 Atl. 569.

There is no common law or statutory duty on a lessor to keep demised premises in repair, neither does he impliedly warrant that they are tenantable. Lyon v. Buerman 70 N. J. L. 620; 57 Atl. 1009; Heintze v. Bentley 34 N. J. L. 562; Wooley v. Osborne 39 N. J. L. 54. It necessarily follows that he is not liable for injuries sustained by the tenant, his family, employees or guests, by reason of a failure to keep them in good condition. Siggins v. McGill 72 N. J. L. 265; 62 Atl. 411; Sheets v. Seldon 7 Wall. (U. S.) 416; O'Brien v. Capwell 59 Barb. (N. Y.) 497. The reason for the rule is, that inasmuch as the possession of the premises has left the landlord, and because the tenant has full control thereof, the latter has absolute authority over them and he is responsible for their ruinous state. Sebott v. Harvey 105 Pa. St. 222; Mayer v. Carlies 2 Sandf. (N. Y.) 301. Where portions of the premises are leased to separate and independent tenants and parts thereof remain actually or constructively in the possession of the landlord, as stairways, hallways, passageways, etc., then he is liable for failure to keep those portions in his control in repair, because of which an injury results. Harrison v. Jelley 175 Mass. 292; Looney v. McLean 129 Mass. 33; Peil v. Reinhardt 127 N. Y. 381, 27 N. E. 1007; 12

Jaques v. Coffin, 17 N. J. Law J. 304.

"Nielson v. International Textbook Co., 75 Atl. 330; Bradford v. French, 110 Mass. 365; Gaffney v. Hayden, 110 Mass. 137.

'Rice v. Butler, 160 N. Y. 578; Bartholomew v. Finnemore, 17 Barb. 428; Stack v. Cavanaugh, 67 N. H. 149, 30 Atl. 350; Johnson v. Life Ins. Co. supra; Vol. 2 Kents Com. page 240.