evidence of its contents. The rule to justify the admission of secondary evidence of the contents of a paper on an allegation of the loss or destruction of the original, as a general rule, is that the party is expected to show that he has in good faith exhausted in a reasonable degree all sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. Johnson v. Arnwine, 42 N. J. Law, 451. The plaintiff testified: That he received a letter by mail, which contained an authority to him to sell or exchange the property. That he received the letter in the early part of September, 1895. That the letter contained a card, which he produces, giving the dimensions of the property. He also produces the envelope, directed in the handwriting of the defendant. That the letter was taken from the envelope, and laid upon his desk in his office. That he had occasion to refer to it several times, and read it several times, and that it lay upon the desk quite a time. That, when a dispute came up between the plaintiff and defendant, he looked for it, and could not find it there. He then made a search for it through his desk, and through other desks in his office. He searched for it through his pockets, and made a thorough search at his home, and everywhere he could think that it might possibly be laid, and also offered a reward for it. He was scarcely cross-examined upon the diligence of the search made. The trial court, after this evidence, admitted secondary proof of the contents of the letter. The question of the sufficiency of the evidence of loss and diligent search was for the court, and this determination cannot be disturbed on this rule, unless it clearly appears that the court below was in error; and, applying this rule of law to the facts, it would appear that the proof of loss and of diligent search was such as was reasonable, considering the character of the writing and the circumstances of the case. Johnson v. Arnwine, supra. The paper or document may be said to be lost in respect to the admission of secondary evidence when it is actually lost or destroyed. This must be supplemented with proof of diligent search. And as to both elements of proof in respect to secondary evidence it is not necessary that proof of loss or the results of the search are beyond the possibility of mistake, but only to a moral certainty. Reasonable proof, stronger or weaker, according to all the circumstances of the case, seems to be all that is required. The party is expected to show that he has in good faith, with reasonable diligence, exhausted in his search all sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. 2 Best, Ev. (Morgan's Ed.) $ 482, and note. The question of the sufficiency of the proof of the loss and the diligence of the search for it is for the court, and is one of some nicety of decision. The facts found are exclusively for the trial court, and

the holding, as matter of law, cannot be set aside unless it clearly appear that it was er

The conclusion reached is that the proof of loss of and diligent search for this letter was such as was reasonable, considering the character of the writing and the circumstances of the case, and that the secondary proof of its contents was properly admitted.

The existence of the letter was disputed by the defendant and the evidence offered in his behalf, but this only raised questions for the jury to determine, and the facts were properly submitted to them, and the verdict cannot in any wise be attacked on the ground that it was contrary to, or against the weight of, the evidence. The rule to show cause must be discharged, with costs.

BROWN et al. v. REDDY. (Court of Errors and Appeals of New Jersey. Nov. 20, 1899.)

INSTRUCTIONS-AMBIGUITY-OBJECTION AT TRIAL-REVIEW.

The court charged that the plaintiff, who was not an attorney at law of this state, could not recover for taxed costs, or for any services that inhered in the office of attorney. Later in the charge, with respect to certain exhibits, the jury was told that, if an account had been adjusted so that a promise to pay on the part of the defendants might be found, the plaintiff would be entitled to rely on that promise. There were services and questions of amount to which this language correctly applied. Held, that the express charge of the law of the case as to taxed costs and services as an attorney was not withdrawn or superseded by the general expression of the latter clause, and that, the court's attention not having been called to the possible ambiguity, the judgment will not be disturbed. (Syllabus by the Court.)

Error to supreme court.

Action by William C. Reddy against Marcus A. Brown and others. From a judgment Affor plaintiff, defendants bring error. firmed.

E. Cutter, for plaintiff in error. Colie & Swayze, for defendants in error.

GARRISON, J. This action is brought to recover for services rendered in litigation and otherwise, both in New York and in New Jersey. The plaintiff is a lawyer practicing in New York, and is not an attorney or counselor in New Jersey. The nature of the testimony led the trial court to charge the jury as to the law of New York and of New Jersey with respect to the right of a counselor to recover for his services, and of an attorney of this state for his. The jury were also correctly informed as to the rule with regard to taxed costs,-to all of which no exception was taken. There being some contention as to the amounts charged and as to the sums paid on account, the judge, at the close of his charge, referred to certain statements in writing, which were exhibits in the cause, and said: "Well, you have all these accounts. If the account has been adjusted, so that you may

to rely on that promise." To this language an exception was sealed for the defendants, who now rely solely upon it for a reversal of the judgment against them.

If this paragraph were the whole of the charge, there would be something in the criticism now made, viz. that the plaintiff was permitted to recover for taxed costs if the defendants had adjusted the amount, and promised to pay it. The jury, however, had just been expressly told that, "with regard to taxed costs, or to services rendered by the plaintiff in this state, which are such as inhere in the office of attorney, the plaintiff is debarred from recovery."

There is nothing in the language of the bill of exceptions to indicate the withdrawal of this plain statement of the law of the case, nor was the court's attention called to any such possible ambiguity as is now urged. These were services to which this language correctly applied. We must assume, therefore, that the jury took the whole charge, and found no verdict for services for which the plaintiff was debarred from a recovery.

Under the bill of exceptions the assignment appears to be devoid of merit. The judgment of the supreme court is affirmed.

COSGROVE et al. v. PROVIDENT INSTITU-
TION FOR SAVINGS IN JERSEY CITY.
(Supreme Court of New Jersey. Nov. 13, 1899.)
SAVINGS BANK-DEPOSIT-PAYMENT TO
STRANGER.

Money was deposited in the savings institution subject to the following by-law: "Deposits and dividends shall be drawn out only by the depositors in person, or by their written order, or by some person legally authorized, and only upon production of depositor's book, that such payments may be entered therein, and all payments to persons who present the deposit book shall be valid payments to discharge the bank and its officers." Held that, by the terms of this bylaw, only three classes of persons could lawfully draw a depositor's money, and discharge the bank from further liability: (1) The depositor, on presentation of the book; (2) a person presenting the book with the written order of the depositor to draw the money; (3) any person lawfully authorized to receive the money on presentation of the book. Payment to a stranger, who presented the book without the knowledge or authority of the depositor, did not discharge the bank.

(Syllabus by the Court.) ·

Error to circuit court, Hudson county.

Action by Mary and Catharine Cosgrove against the Provident Institution for Savings in Jersey City. Judgment for plaintiffs, and defendant brings error. Affirmed.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

Chas. H. Hartshorne, for plaintiff in error. Linn & Speer, for defendants in error.

VAN SYCKEL, J. The plaintiffs recovered a judgment in the court below for money

institution. The defense was that the bank paid the money due to plaintiffs to a woman who presented the plaintiffs' bank book, represented herself to be one of the plaintiffs, and demanded payment; that the bank officers used due care to identify the payee, and at the time of payment believed her to be one of the payees. She drew the money without the knowledge of the payees, and unlawfully appropriated it to her own use. To support the defense, the bank relies on a by-law which it had adopted, and which was printed in the bank book given to the plaintiffs when they opened the account. This is the by-law: "Deposits and dividends shall be drawn out only by the depositors in person, or by their written order, or by some person legally authorized, and only upon production of the depositor's book, that such payments may be entered therein, and all payments to persons who present the deposit book shall be valid payments to discharge the bank and its officers." In Smith v. Bank, 101 N. Y. 60, 4 N. E. 123, the pass book of the depositor contained the following printed by-law: "All payments made by the bank upon the presentation of the pass book, and duly entered therein, will be regarded as binding upon the depositor. Money may also be drawn upon the written order of the depositor or his attorney, when accompanied by the pass book." The New York court unanimously held, in an opinion delivered by Ruger, C. J., that the by-law contemplated but two modes of payment, one to the depositor personally, the other upon his written order, both requiring the presentation of the pass book as the condition thereof; and that it did not authorize or protect the bank in a payment to a stranger whose only evidence of authority to receive it was the possession of the pass book. The court distinguished the cases of Schoenwald v. Bank, 57 N. Y. 418, and Allen v. Bank, 69 N. Y. 314, where the by-law clearly authorized payment to any one who presented the book, requiring only due care on the part of the bank to prevent fraud. In Gulick v. Grover, 33 N. J. Law, 470, the court said that "language, however general in its form, when used in connection with a particular subjectmatter, will be presumed to be used in subordination to that matter, and therefore is to be construed and limited accordingly." A like view was expressed in Bartlett v. City of Trenton, 38 N. J. Law, 68, as follows: "When the intention of the lawgiver, which is to be sought after in the interpretation of a statute, is specifically declared in a prior section as to a particular matter, it must prevail over a subsequent clause in general terms, which might by construction conflict with it. The legislature must be presumed to have intended what it expressly stated, rather than what might be inferred from the use of general terms." The rights of the litigants in the case under review are to be determined in accordance with these well-established

revocably appropriated to the use of the prosecutors in the operation of their railroad that they might not be applied to other uses or sold. The theory on which the prosecutors seek to be relieved of these assessments is that the land was bought for railroad purposes, and in the future may be required for such purposes. In the absence of proof that the project of opening this tunnel upwards is within a scheme of improvement adopted and about to be executed, the company will not be relieved from these assessments on that ground. On the other hand, the testimony produced on the part of the city is to the effect that these lands, in their present condition, are benefited by this improvement in the amount of the assessments. The assessments should be affirmed.

MORRIS & E. R. CO. v. MAYOR, ETC., OF JERSEY CITY.

(Supreme Court of New Jersey. Nov. 13, 1899.) MUNICIPAL CORPORATIONS - STREET IMPROVEMENT-ASSESSMENT.

City lots owned by a railroad outside its right of way, and not necessary for the enjoyment of its franchises, are liable to assessment for street improvement, though such lots were purchased for an enlargement of the railroad's yards, as might become necessary at some future time.

Certiorari to set aside an assessment by the mayor and aldermen of Jersey City against the Morris & Essex Railroad Company for benefits imposed on its lands. Affirmed.

Argued June term, 1899, before DEPUE, GUMMERE, and LUDLOW, JJ.

Flavel McGee, for prosecutors. McDermott, for defendants.

Allan L.

PER CURIAM. The object sought to be accomplished by the prosecutors in this proceeding is the setting aside of an assessment for benefits imposed upon certain of their lands lying within the municipality of Jersey City. These lands consist of four city lots, lying together, and were acquired by the company, as appears from the proofs before us, with the intention of using them, some time in the future, for the purpose of enlarging their yard. Whether such intention will ever be carried into effect seems somewhat problematical. The lands were, apparently, acquired by the company a considerable time ago, but as yet no step has been taken by it looking to their subjection to railroad uses. They are not within the present or proposed lines of the company's right of way, nor are they at all necessary for the enjoyment of its franchises. They are simply held as a matter of convenience, so that the company may hereafter utilize them for yard purposes, if the exigencies of its business shall make it advisable to do so. These facts bring the case within the rule laid down by this court, at the present term, in an opinion delivered by Depue, J., in a suit between the same parties,

brought for the purpose of setting aside an assessment for street improvements laid upon certain lands of the prosecutors lying over their tunnel through Bergen Hill. 44 Atl. 937. For the reasons stated in that opinion, the assessment now before us should be affirmed. The defendants are entitled to costs.

RUTHERFORD LAND & IMPROVEMENT CO. v. SANNTROCK.

(Court of Chancery of New Jersey. Dec. 11, 1899.)

JUDGMENT-PARTIES-CONSTRUCTION OF INSTRUMENTS-VENDOR AND PURCHASER-EXECUTORS AND ADMINISTRATORS-MARKETABLE TITLES-NOTICE-WILLS - CONSTRUCTION-POWER OF SALE-SURVIVORSHIP.

1. A decree construing a document, being a question of law, is binding on all the world, though certain persons having an interest in the question are not before the court.

2. A title is not unmarketable, so as to enable a vendee to avoid a contract of purchase, unless the record title contains on its face something which may lead to some fact that may disturb the title, or the title depends on matter in pais, which is itself a doubtful fact, and cannot be determined except by judicial proceedings.

3. A devise to a child does not vest title in him, where a subsequent clause of the will gives the land to the executor, with power to sell if deemed for the estate's benefit.

4. Under the statute and at common law, a devise in trust to two executors survives to one of them on the death of the other.

5. The giving of a power of sale to two executors is not a provision in the will that the survivor should not exercise the power on the death of one of them, within the statute precluding a conveyance by a surviving executor where there is such a provision.

6. Where an executor, having made an unauthorized conveyance, and one that is fraudulent on its face, again acquires the title originally possessed, by reconveyance, he takes the interest as executor.

7. Where a trustee, having power to sell land, but not to mortgage it, conveys it to another, under a trust not expressed in the deed, merely for the purpose of obtaining a loan on the land, a mortgage executed by the latter is binding on the cestui que trust, where the mortgagee had no notice of the trustee's purpose in conveying the land.

8. An executor to whom land is devised in trust, with power to "dispose" of it if deemed for the estate's benefit, has power to mortgage the land.

9. A mortgagee purchasing at a foreclosure sale does not lose any of his rights by force of notice of facts received after he took the mortgage, though such notice, before acceptance of the mortgage, would have invalidated it.

10. A purchaser of a grantee at a sheriff's sale under a mortgage foreclosure is not charged with notice of the fact that the mortgagor was merely a trustee, as shown by surplus-money proceedings instituted after the decree in the suit to foreclose the mortgage, where no notice of such proceedings was served on the mortgagee; and hence the title of such purchaser is good as against that of the cestui que trust.

11. The fact that a purchaser of a grantee at sheriff's sale under a mortgage foreclosure had notice that one who was not a party to the suit had an interest in the equity of redemption is no notice to him that such a one had a claim adverse to the mortgage.

Bill by the Rutherford Land & Improvement Company against Frederick Sanntrock

for specific performance of a contract to convey land. On final hearing. Judgment for complainant.

Albert I. Drayton and Joseph F. Randolph, for complainant. John I. Weller, for defendant.

PITNEY, V. C. (orally). I think I will dispose of this case at once. It is an important case. It is an important question to both parties, and its decision may affect other titles; but, if I am in error about it, the parties have their remedy by going to the court of errors and appeals. Now, I think it may be said to be perfectly well settled that so far as concerns a question of general law, or the construction of a document, which is a question of law, this court will decide the one, and construe the other, on a bill for specific performance, for the reason that whatever it settles as a matter of law it settles against all the world, whether all the parties having an interest in the question are here or not; and, if this court cannot settle it, the court of appeals can.

Now, let us see what this case is. It is a bill for the specific performance of a contract for the sale of land by the Rutherford Land & & Improvement Company, vendor, against Frederick Sanntrock, vendee. The making of the contract itself, and its binding effect as between the parties, is admitted. The sole defense set up is that the title of the Rutherford Land & Improvement Company in the property in question is of such a doubtful character as to make it unmarketable. It is quite difficult to define a marketable title. I had occasion during the course of the argument to call attention to the fact that, in the sense of being beyond the reach of serious attack, such a thing as a perfect title is quite rare; that one that is apparently on its face the very best might be attacked, and successfully attacked,-as, for instance, the case of an insane grantor, or of a forged deed, with a forged acknowledgment. A party might be in possession for years under a deed, and yet afterwards an infant might come forward and attack that deed on the ground of insanity of the grantor, or forgery, and prove the insanity or forgery. There are other supposable cases, which I will not take up the time of counsel to state, but they suggest themselves to the mind of every lawyer who has anything to do with handling titles to land. There are, however, two classes of titles which I will mention, one of which depends entirely upon matters of record, or documents which, so to speak, prove themselves; and the other upon matters in pais. There is title by descent, which is almost always a matter in pais. The laws of our state do not provide, upon the demise of a party and the descent of his land to his heirs at law, for any judicial action determining who those heirs at law are, and declaring that the title vests in them. In California I happen to know that

such judicial action takes place in every case. There the heirs at law prove their case, so to speak, before a court corresponding to our orphans' court, and get a new title,-a declaration by that court, which is binding on all the world, that they are the heirs at law of the decedent, and that the title vests in them. Such a thing does not occur here. So that title by descent is almost always, in this country, a matter in pais. Then, in contrast with this class, there are titles of record, supported by documentary evidence which is generally recorded, perfectly good on their face, and unexceptionable, that are nevertheless liable to be disturbed by matters in pais,-by proof of matters in pais. All of us hold our titles subject to that kind of attack. All titles are held subject to attack by matters in pais that we may know nothing about. Then there is a class of titles which can only be sustained at any time when attacked within, say, 10 or 20 or 30 years, by proving a matter in pais, like a matter of descent. I have already referred to that; but I have just now in mind more particularly other matters which are not within the knowledge of many persons, such as the proof of the execution of a writing-of a deed or a will--which is a part of a title. Thus, a title may be held under a deed that never has been acknowledged, which is perfectly good, just as good as if it had been acknowledged, if executed in the presence of a witness-if the grantor is not a married woman; just as good, as far as intrinsic merits go, as one that has been acknowledged and recorded; and the possession of the unrecorded deed itself, if it be witnessed by some gentleman whose signature is well known (if it can be preserved), is probably a better title than a certified copy of the record of a deed with the original gone. Now, for present purposes, I will define, without attempting to do so as I would if I were writing an opinion,-I will define a title that is not marketable as, in the first place, one where the written title contains on its face some notice of something outside which may lead to some fact that may disturb the title; where the deeds, wills, or decrees, give on their face some indication of some existing outstanding fact which will affect the title. Then another one is where the title depends necessarily upon matter in pais, which is in itself a doubtful fact, and never can be determined or established except by bringing every party interested into court,-certainly others besides the immediate party to the suit for specific performance. An instance of this is a will without a proper attestation clause, -properly executed in fact, but not so appearing on its face, and never offered for probate.

Now, let us see whether there is anything in this case which comes within either of the two categories that I have attempted roughly to state. Is there anything on the face of the written record title which the complainant produces in this case to indicate that there