tioner was inexcusable for not delivering the quotas for the months of January, February and March. The decree, therefore, compels a party, not in the wrong and against his wish and presumbly to his disadvantage, to accept ore at times and in quantities uncalled for in his contract, for the purpose of aiding the party who, without excuse, refused to deliver the ore according to his agreement. In this view of the question involved the decree seems to be erroneous. Nor does this seem the less true because of the existence of the circumstance that by the assent of both parties the court of chancery had placed a manager in charge of the business, whose duty it was to make deliveries of ore, and to collect pay for them, and it was the manager who stopped the deliveries during the three months. It is obvious that the manager was not appointed to modify the terms of the contract between the parties, but for the purpose of executing that instrument. And the power of direction over his conduct, which existed in the court of chancery, would be exercised in the light of the rights of the parties under the provisions of their agreement. It has already appeared that under the contract the circumstances which surround the present transaction afford no ground for the present order. And if the manager be regarded in respect to his previous conduct as the representative of both parties to the contract, then no act on his part can be the subject-matter of complaint by the petitioner, nor can the result of such be visited upon the defendants in the shape of this adverse decree. In any aspect in which the cause can be viewed, I think that the decree is erroneous, and should be reversed. ROCHAT v. NORTH HUDSON COUNTY RAILWAY COMPANY. March Term, 1887. If the trial court erroneously refuses to nonsuit the plaintiff for want of evidence of the defendant's responsibility, and exception is thereupon sealed, and the defect in proof be not subsequently remedied, error may be assigned upon the exception and the judgment may be reversed. It is no evidence of negligence in a driver of a horse car, that he whipped a pair of horses when about to start a car full of passengers, unless there appears to be something unusual in the manner of his whipping them. In error from the supreme court. J. C. Besson and H. C. Pitney, for plaintiff in error. M. T. Newbold and G. Collins, for defendant in error. DIXON, J. On September 1, 1884, John May was injured by a horse car of the defendant, and subsequently brought suit in the Hudson circuit for the resulting damages. He there recovered judgment, which was afterward affirmed in the supreme court on writ of error, and is now in this court for review. The principal assignment of error is based upon an exception to the refusal of the circuit to nonsuit the plaintiff at the trial for want of proof of negligence on the part of the defendant. This assignment seems to have been deemed unavailable in the supreme court, because, after the nonsuit was refused, the defendant introduced evidence tending to show how the injury was occasioned, and did not subsequently renew the motion or ask the court to instruct the jury to find for the defendant on this ground. But this idea is not in accord with the settled doctrine and practice of this court. At least since the Central R. R. Co. v. Moore, 4 Zabr. 824, exceptions of this nature have been constantly regarded as properly sealed, and judgments have thereupon been affirmed and reversed. Ň. J. R. R. & T. Co. v. West, 4 Vr. 430; N. J. Express Co. v. Nichols, id. 434; D., L. & W. R. R. Co. v. Toffey, 9 id. 525; Penn. R. R. Co. v. Righter, 13 id. 180; D., L. & W. R. R. Co. v. Dailey, 8 id. 526. The objection made to the practice is, that after the exception is allowed the defendant may have supplied the defect in proof complained of, and, although such supplemental evidence ought to prevent the reversal of the judgment, yet it would not theoretically, and, if the defendant insisted on his legal right to have the bill sealed immediately upon the refusal, could not actually, be embodied in the bill. But the objection is without substance. The bill is never in practice sealed until all the testimony is put in, and, therefore, the trial court is able to refuse to affix its seal unless all the pertinent evidence is set forth, and the appellate court will examine all the testimony before it to see whether the defect is remedied. Perth Amboy Man. Co. v. Condit, 1 Zabr. 659; D., L. & W. R. R. Co. v. Dailey, 8 Vr. 526. Even if the bill had been sealed at once upon the refusal, the trial court might justly strike that bill from its records, because it did not fully present the grounds on which the question raised ought to be decided. A similar objection might be urged against the reversal of a judgment for the improper admission of a document insufficiently proved, since due proof might afterward in the trial have been produced; but such reversals do take place when the proper proof is not added, and when it is, the error is disregarded. Practically no difficulty results from these rules in the administration of the law. The powers of the courts are ample to insure their use for the furtherance of justice only. The assignment of error on this exception should, therefore, be considered. The testimony most favorable to the plaintiff tends to prove that on September 1, 1884, toward evening, John May stood smoking on the right side of the front platform of a horse car belonging to the defendant; he was directly behind the brake, facing it, with his back against the front of the car, and holding the hand rail behind him with his left hand; he was about thirty-five years of age, in good health, and accustomed to ride on the platform of cars and had taken the position. above described when he boarded the car, a few moments before the accident; the car was full of passengers, five or six of them being on the front platform, and was drawn by two horses; the track was straight and the grade about level; under these circumstances, the driver stopped or almost stopped the car for a lady to alight, and when she was off he whipped up his horses, and although Mr. May saw that done, yet not being prepared for it, as he says, the sudden jerk threw him off the platform, and he was injured. The question is, whether this testimony indicates, directly or inferentially, any negligence on the part of the company's driver. Certainly it is not improper to whip up a pair of horses when they are required to start a car loaded with people, unless there is something extraordinary about either the horses or the whipping. Nothing extraordinary is asserted by the witnesses; but it is claimed that something of the kind may be inferred from the other statements that the car gave a sudden jerk and Mr. May was thrown off. There are several considerations which render such an inference unreasonable, if not impossible. First, Mr. May, the only witness who testified to the whipping, did not intimate that it was severe, and no witness spoke of any thing unusual in the behavior of the horses. This, under the circumstances, is tantamount to affirmative evidence that both were ordinary. Secondly, some sudden jerk was only a normal consequence of the effort of two horses to start a car full of passengers, to which the horses were attached by loose traces, and in this case it cannot be presumed that the jerk was attended by a great and instantaneous increase of speed, because the strength of the horses would not be able to impart that to such a load. As Mr. May saw that the start was about to be made, he should have been prepared for the jerk which it would necessarily occasion. Thirdly, the statement that Mr. May was thrown off seems unfitted to afford any indication of the character of the driver's act; for it is not conceivable how whipping the horses could cause such a movement as would throw Mr. May off the car from the position in which he stood. Every movement so induced must have been accompanied by only a moderate increase of speed, and must also have been in a straight line forward, and its effect on Mr. May could only be to incline him backward against the point of the car where he was already leaning, steadying himself with his left hand upon the rail. Such a movement would have no tendency either to loosen his grasp or to hurl him sideways off the platform. If, therefore, while standing in the position which he describes, he was thrown with the violence in the direction to which he testifies, there must have been some other cause than the sudden jerk of the car which the whipping of the horses occasioned. Hence, when we seek in the evidence for some ground on which to base a rational inference that the driver's manner of whipping the horses evinced a want of due regard to the safety of the passengers, we are unable to find it, and so are left to the bare fact of whipping to support the charge of negligence. That fact alone affords no evidence of negligence in this case. No proof of the defendant's negligence was afterward supplied. On the contrary, the testimony subsequently adduced made it quite clear that the accident was caused by circumstances which the defendants' agents had no opportunity to control. The judgment should be reversed. DODD v. WILKINSON.* March Term, 1887. The court in cases of impertinence ought, before expunging the matter alleged to be impertinent, be especially clear that it is such as ought to be struck out of the record, for the reason that the error on the one side is irremediable, on the other not. Managers of a savings bank may be charged with liability if they participate in the prohibited acts which lead to loss complained of, or if they in any way promote them, or if they neglect to bestow in their conduct of the affairs of the bank that measure of care which the law exacts of them, and in consequence thereof their associates are not restrained, or are enabled to do those acts which prove disastrous to the institution. It is competent to consider the illegal course of conduct which managers have employed when present with their associates, in order to determine whether such managers are liable for like illegal acts done by such associates in their absence. On appeal from court of chancery. J. W. Taylor, George W. Hubbell, Henry Young, C. Borcherling, F. Frelinghuysen, J. O. H. Pitney, H. C. Pitney, J. R. Emery and T. N. McCarter, for appellants. F. W. Stevens and J. D. Beadle, for respondents. VAN SYCKEL, J. The general object of the bill filed in this case is to hold the managers of the Newark Savings Institution liable for the losses resulting from the loan of money and bonds to Fisk and Hatch, at sundry times between August 1, 1882, and May 15, 1884. The questions now before the court have arisen upon exceptions to certain allegations in the bill as impertinent. The portions excepted to are fully set forth in the opinion of the vice-chancellor, and, therefore, it is not necessary to state them here. The exceptions are particularly pointed: First. At that part of the bill which sets forth the petition and order of December 12, 1877, and what was done in consequence thereof. Second. At that part of the bill which charges the managers with a gross breach of trust, setting forth, in general terms, that in the year 1881 the said managers began to loan money in deliberate disregard both of the letter and spirit of the orders of the court of chancery, and of the statutes regulating savings banks, and of the law of the land, and continued to do so until the institution ceased to do business in May, 1884, and then giving what the complainant regards as conspicuous instances of such illegal loans. The rule of law applicable to this subject cannot be more clearly stated than in the language of the chief justice in Camden & Amboy R. R. Co. v. Stewart, 6 Č. E. Gr. 489. He there says: "It is always to be remembered that a bill in equity has a two-fold purpose. The first is to bring before the court, and to put in issue the facts upon which the complainant's right to relief exists; thus far the bill is equivalent to a declaration in an action in the common-law courts; but it is likewise an examination of the defendant for the purpose of obtaining evidence to establish the plaintiff's case, or to counterprove the defense which must be permitted to set forth any fact, the admission of which *Affirming 8 East. Rep'r, 539. VOL, XI.-25 by the defendant will go, either to establish the complainant's own case, or overturn that of his adversary. The testimony sought for must in some way appear to be of use to the parties seeking it, otherwise it is useless in the case, and serves but to incumber the record. I fully concur in the views upon this subject of Mr. Vice-Chancellor BRUCE in Davis v. Cripps, 2 Younge & Coll. Ch. 443, expressed in the following terms: "The court in cases of impertinence ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record, for this reason, that the error on the one side is irremediable, on the other not. If the court strikes it out of the record it is gone, and the party may have no opportunity of placing it there again. Whereas if it is left on the record, and is prolix or oppressive, the court, at the hearing of the cause, has power to set the matter right in point of costs." The same view is expressed by Chancellor WALWORTH in Hawley v. Wolverton, 5 Paige, 522: "The complainant may, therefore, state any matter of evidence in the bill, or any collateral fact, the admission of which, by the defendant, may be material in establishing the general allegations of the bill as a pleading, or in ascertaining or determining the nature and extent, or the kind of relief to which the complainant may be entitled, consistently with the case made by the bill, or which may legally influence the court in determining the question of costs. And where any allegation or statement contained in the bill may thus affect the decision of the cause, if admitted by the defendant or established by proof, it is relevant and cannot be excepted to as impertinent." Now the managers may be charged with liability if they participated in the prohibited acts which led to the loss complained of, or if they in any way promoted them, or if they neglected to bestow in their conduct of the affairs of the bank that measure of care which the law exacted from them, and in consequence thereof their associates were not restrained or were unable to do those acts which have proven so disastrous to the creditors of the institution. It must be conceded that under the well-settled rules of law which apply to litigation of this nature, the field of inquiry and investigation here opened is not a narrow one. The object of the complainant is to show that the managers either joined in or acquiesced in a course of practice which was a continual violation of law, or that through their actionable negligence such violation of the law ensued, and that such acquiescence or neglect led to the culminating act. The facts alleged are that the managers violated the order of the chancellor as to the investment of the funds, and that they made or wrongfully permitted to be made in violation of law, through a period of three years, various loans, of which a number are specially set forth in the bill. The managers reply that these statements can have no effect upon the issue, because this court has adjudged on the proceedings for contempt, that the orders of the chancellor were without jurisdiction, and that the alleged loans which they made or actively participated in, although in violation of law, were all subsequently paid, and that no loss whatever was sustained by the bank in consequence thereof. It is too obvious for discussion that this would unduly limit and |