89 N. J. L.

PER CURIAM.

Walther v. American Paper Co.

We think the death of Walther did not arise out of his em

ployment. The case cannot be distinguished in this respect from Hulley v. Moosbrugger, 88 N. J. L. 161. We ought to add that our opinion in that case had probably not been published when the present case was decided by the judge of the Common Pleas. He relied on the opinion of the Supreme Court in that case, the reversal of which could hardly have been known publicly at the time. The judgment is reversed.

For affirmance-MINTURN, KALISCH, JJ. 2.

For reversal-THE CHANCELLOR, CHIEF JUSTICE, SWAYZE, PARKER, BERGEN, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, JJ. 9.

PUBLIC SERVICE GAS COMPANY, APPELLANT, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., RESPONDENTS.

CITY OF PASSAIC, APPELLANT, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., RESPONDENTS.

CITY OF PATERSON, APPELLANT, v. BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL., RESPONDENTS.

ORDER.

It having been called to the attention of the court that, through a mistake, the report of the decision of this court in the above entitled cases appears in the official reports (87 N. J. L. 581) under a headnote and indexed by a subject-index statement, indicating that the final decision of this court was exactly the opposite of what it really was in the first of said cases, and that the final decision in the other. two cases, wherein the decision of the Supreme Court (reported in 84 Id. 463) was reversed, is reported in said official reports (87 Id. 705) without any head-note or subject-index reference whatsoever, it is now ordered that there be printed in the volume next to be issued of the official Law Reports a head-note (preceded by the foregoing memorandum to explain its so appearing) and an item in the subject-matter index of said volume under the caption "Public Utilities Rates," as follows, to wit:

1. The special franchises of a public service company are property, but property of a peculiar kind; the right of property in them is not absolute, but is qualified by the right of the state to fix reasonable rates. In determining the reasonableness of rates, no allowance should be made for the value of the special franchise in a case where it is not legally exclusive and where the state still retains the right to fix the rates. See opinion of the Supreme Court, 84 N. J. L. 463, and the per curiam affirmance by this court upon that opinion, reported in 87 Id. 597.

2. Where, upon the application of a municipality, the Board of Public Utility Commissioners have found the rate charged by a gas company unreasonably high and have in consequence prescribed a lower rate, which lower rate the municipality still thinks unreasonably high, the latter's remedy is by certiorari to procure the setting aside of the order fixing such rate, so that the way may be open for the establishment by such board of such still lower rate as shall be proper under the evidence. See the per curiam opinion of this court reported in S7 N. J. L. 705.

By the Court: March 20th, 1917,
E. R. WALKER,
C. & P. J.

Endorsed: "Filed March 20th, 1917,

THOMAS F. MARTIN,

Clerk."

734

INDEX.

ABORTION.

See CRIMES, 2.
CRIMINAL LAW, 11.

ACCORD AND SATISFACTION.

possession continued for twenty
years and that it was, in fact,
adverse, that is, with the inten-
tion to claim the fee, indicated
by some act on his part which
would convert mere occupation
of the land into adverse posses-
sion. Myers v. Folkman, 390

APPEAL AND ERROR.

"Paid and satisfied" in a manufac-
turer's employer's liability policy
of insurance, as applied to a
judgment, mean when the judg-
ment is fully paid. The judg- 1. It is a settled rule that a party

ment to be paid and satisfied!
does not necessarily mean can-
celed of record. Phila. Pickling
Co. v. Maryland Cas. Co., 330

need not be heard on a point
not taken or a matter not raised
and considered in the court be-
low. Ruggles v. Ocean Accident,
&c., Corp.,

180

2. A question not presented and ar-
gued in the court below will be
held to have been waived and
abandoned, and will not be con-
sidered in an appellate tribunal.
State v. Heyer,
187

3. An appellate court will not re-
view matter assigned for error
unless the record shows it was
assigned for error in the court
from whose judgment the appeal
was taken. State v. Shapiro, 319

4. This court will not consider the
question of excessive damages on
appeal from a judgment at law;
judgments of the inferior law
courts are reviewed by this court
upon matters of law only. Klitch
v. Betts,
348

See also DISTRICT COURTS, 1.

ARMORIES.

1. The mere ownership of a pro-
posed armory site gives no stand-
ing to the owner to invoke the

735

tracted to purchase. Doremus 1. Although the Morris Canal and
v. Freeholders of Passaic, 197

Banking Company is not dis-
charged by its lease to the Le-
high Valley Railroad Company
from the obligation to maintain
bridges over the canal, imposed
by its charter, the lessee took a
lease in perpetuity which is
equivalent to a title so far as
concerns this obligation, and
thereby assumed the public bur-
den of maintaining bridges. State
v. Lehigh Valley R. R. Co.,

48

2. By the statute creating the state
military board (Pamph. L. 1913,
p. 502), that board is made the
state's agent with discretion to
determine the advisability of ac-
quiring lands for armory pur-
poses, the place of erection, the
price to be paid for it, the char-
acter of the building to be
erected on it, and to supervise
the construction of the same.
The right to enforce the obliga- 2. The obligation under the charter
tion of the board of chosen free-
holders to issue bonds to raise
the money necessary to pay for
such armories rests, therefore, in
the state board and not in any
private citizen who may see fit
to interest himself in the matter.
Ib.

BANKRUPTCY.

See PRIVILEGED COMMUNICATIONS,

1, 2.

BILLS AND NOTES.

of the Morris Canal and Bank-
ing Company to maintain bridges
over the canal is not limited by
the necessities of such traffic as
existed at the date of its charter,
but extends to a case where traf-
fic is increased over a pre-exist-
ing highway.
Ib.

3. The operation of motor vehicles
and the improvement of a high-
way by macadamizing does not
affect the charter obligation to
maintain bridges over the Morris
canal.
Ib.

1. Where, after a note has been de- 4. In order to recover damages

livered and the contract thereby
created has been fully consum-
mated, a third party writes on
the note over his signature the
following irregular endorsement:
"This note to be paid out of my
estate after my death," that en-
dorsement constitutes a promise
to pay the debt of another, and
requires a new consideration to
support it. Schaus v. Henry,

607

caused through an obstruction to
navigation by a bridge across a
navigable stream in this state, it
is not necessary for a plaintiff to
plead or prove that the secretary
of war has not proceeded under
the River and Harbor act of
congress, approved March 3d,
1899, to ascertain that the given
bridge is an unreasonable ob-
struction to free navigation.
Chew v. Penna. R. R. Co., 171

2. The defendant's written promise 5. The federal "River and Harbor
to pay the debt of another has no
legal validity, if there be no evi-
dence of consideration outside of
the promise itself.

Ib.

act" (U. S. Comp. Stat. 1901,
p. 3540) is silent on the subject
of closing bridges over navigable
streams for the purpose of repair-

7. The supplement to the act respecting bridges, enacted in 1896 3. (Pamph. L., p. 250), which fixes the time within which needed repairs, &c., may be lawfully made between November 1st and January 1st, contains a proviso that the act shall not apply to any navigable river or water where the depth where any bridge is erected exceeds four feet six inches at mean high tide. Held,

that the act of 1896 does not 4. Upon trial for carnal abuse of a