fore dishonor was a debtor within the meaning of the statute for the relief of creditors against "heirs and devisees." The case presented was plainly within the statute. In the case of Insurance Co. v. Meeker, 37 N. J. Law, 282, it was declared that the act embraced within its policy even so uncertain a liability as inhered in a warranty of title to lands. It is true that in the opinion read in Dodson v. Taylor the view is expressed that by the mere act of indorsement a person becomes a present debtor. It is said: "But from the time of the indorsement he is bound for the payment of the debt, and a person so circumstanced is, in both common and legal parlance, a debtor." It is not perceived how this doctrine is to be sustained. So far as is known, no person ever thought or styled himself or was styled by others a debtor by reason of his having become an accommodation indorser. If a merchant were called upon to make out a list of his debts, it is not believed that it would ever occur to him to put in such account the moneys called for in the paper that had been gratuitously indorsed by him. Under the law of this state the debts of the citizen taxed can, to a certain extent, be deducted from his assessment; and certainly no one can doubt that if any person, for such a purpose, should include in his sworn statements the amounts secured by his accommodation indorsements, such taxpayer could be convicted of perjury. The hypothesis suggested would in practice be fraught with embarrassments. If by the mere indorsement the indorser becomes, ipso facto, a debtor of the holder of the note, then, by parity of reasoning, it follows that from the same cause the maker of the paper becomes the debtor of the indorser. And indeed it has, on several occasions in legal practice, been attempted to utilize this notion in the entry of judgments on bonds with warrants of attorney. Such was the course essayed in the case of Blackwell v. Rankin, 7 N. J. Eq. 152, the facts being that the plaintiff had taken judgment on an affidavit showing that he was the indorser on certain notes of the defendant, and which situation, it was insisted, showed a present debt. This contention is thus met by the chancellor. He says: "It is an abuse of language to say that because I indorse your note to-day, payable three months hence, to be used by you, you are indebted to me to-day for the amount of it; and that it is a debt due and owing to me to-day." This doctrine is pointedly approved by this court in Clapp v. Ely, 27 N. J. Law, 592. But it is to be remembered, that while the phraseology in question is deemed to be open to this criticism, nevertheless, in the connection in which it was used, it properly embodies the legal rule that the relation which the holder and indorser of a promissory note bear to each other is that of potential debtor and creditor, which is all that is required by the statute giving relief to creditors against devisees and legatees. This construction was the result of a consideration of the lax language of the act as enlightened by its evident policy. It was a remedial measure, and was, therefore, to be liberally construed. But the present case demands the application of a rule the exact opposite of this. We are not now called upon to ascertain the meaning of statutory language or legislative policy; our entire province being to demarcate the rule of evidence promulgated by ourselves that makes the existence of fraud in voluntary conveyances, under a certain condition, a mere inference of law, irrespective of the truth. The rule is one of the most rigorous character, having the operation of an estoppel, and is to be kept within the narrowest limits. It is therefore enough for this court to say that the contingent liability of an accommodation indorser before dishonor does not make him a debtor, so that the holder of the paper can invalidate a voluntary conveyance made by him, when there was no actual fraud in the transaction. It is obvious that the case of the complainants as exhibited in the proofs will not stand the test of the foregoing exposition of the equitable rule in question. The decree, consequently, must be reversed, and the bill dismissed. Before leaving this case, it seems to me that there are certain matters which, although they appear to have escaped the attention of counsel, should not be passed in this court sub silentio. They are alluded to only for the purpose of "excluding the conclusion" that the present course of law has our sanction. The general theory exemplified in the bill before us is that a creditor, having neglected or refused to present his claim to the executor within the time limited by the court, can, at his will, proceed in equity, and levy his debt out of any lands that his deceased debtor has honestly settled on any member of his family; and this without regard to the condition of the assets of his debtor's estate. Plainly, such a rule would be productive of the most flagrant injustice. In the present case, why should this gift to the granddaughter be defeated, unless after the exhaustion of the other assets of the estate? The claim is of a right to pass by the primary assets, and sequestrate this donation in their stead. Again, the decree finds the estate of the donor is indebted to the complainants in the amount of several thousand dollars, and yet the personal representative of that estate is not a party to the suit. Again, the complainants are creditors at large, and the bill is personal, and not in behalf of themselves and other creditors similarly situated. And, lastly, the decree orders the land in question to be sold for the payment of the complainants' debts. Does the chancellor possess the power to direct a sale of these premises? Whence is such power derived? The decree for the debt must be construed to be against the executors of the donor, although they are not present, and such decree does not bind the lands of the deceased. Authority is conferred by statute upon the orphans' court to order the lands of a decedent sold under certain circumstances, to settle the claims of creditors; but no such jurisdiction is given to the chancellor. Under such circumstances as are here disclosed, it is entirely unsettled what course is to be taken by the creditor. The subject is both important and difficult. It has not been noticed, either by the vice chancellor or by counsel, and, as this court is not at present called upon to consider it, we leave it as we found it,-undecided. In order to avoid misconception of my own personal views on the subject above discussed, I deem it best to make the remark that, in my opinion, the inquiry is open to this further consideration: Whether or not the rule that a voluntary transfer of property, unattended with fraud, is invalid with respect to existing debts, is applicable unless such debts be past due at the time of the impeached transaction. FAIRCHILD v. FAIRCHILD. (Court of Errors and Appeals of New Jersey. March 11, 1896.) JUDGMENT OF SISTER STATE-IMPEACHMENT-BAR TO ACTION-PENDING SUIT. 1. The only grounds upon which the judgment of a court of general jurisdiction can be disregarded in another state are-First, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and, second, where the adjudication of the foreign tribunal has been obtained by fraud. 2. Where the plaintiff in a cause is required by statute to have been a bona fide resident of the state in which his action is brought for a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case; and the determination of that question by the court is final, not only in the courts of that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud. 3. The pendency of a suit between the same parties, and for the same cause of action, in this state, is no bar to a subsequent suit brought in a sister state. The remedy of the defendant is to apply to the court in which the subsequent suit is brought to stay proceedings, or to refuse final judgment, until the suit here is determined. (Syllabus by the Court.) Appeal from court of chancery. Bill by Nettie F. Fairchild against William G. Fairchild for maintenance. From a decree for complainant, defendant appeals. Reversed. For former reports, see 11 Atl. 426, and 13 Atl. 599. Leon Abbett, for appellant. A. Walling, Jr., for appellee. GUMMERE, J. This is an appeal from a decree of the court of chancery, on a bill for maintenance filed by the respondent against the appellant. The parties were married in the city of New York on August 10, 1885, and a few days afterwards the appellant left his wife, and removed to the state of Colorado, and, in December of the same year, went to Kansas, where he has ever since continued to reside. The respondent was at the time of her marriage, and still is, a resident of this state. On the 11th of March, 1887, the appellant obtained a decree of divorce from the respondent in the district court of Stafford county, in the state of Kansas. The respondent, however, was never within the jurisdiction of that court, nor was she served with process in the suit in which the decree was rendered, nor did she ever receive any notice of its pendency. In April, 1887, this suit was begun in the court of chancery, by the respondent, for the purpose of compelling her husband to maintain her, and, incidentally, to have the decree of the Kansas court declared null and void. In March, 1888, and while this suit was pending in the court of chancery, the appellant commenced another action against the respondent in the district court of Hodgeman county, Kan., for a divorce from her, and an annulment of their marriage. this second Kansas suit the respondent appeared, and made defense; and on the 4th day of October, 1888, a final decree was entered in favor of the appellant, divorcing him from the respondent. In November, 1893, the appellant applied to the court of chancery to open the decree pro confesso which had been entered against him in this suit, and for leave to file an answer setting up the decree of the district court of Hodgeman county as a bar to the complainant's right to a decree. His application was granted, and an answer was filed by him, setting up the Kansas decree. On the final hearing of the cause, the court below found that the appellant had abandoned the respondent without justifiable cause; that he was not a bona fide resident of the state of Kansas, but that he went there solely for the purpose of instituting divorce proceedings against the respondent; and that neither the decree of divorce made by the district court of Stafford county, nor that made by the district court of Hodgeman county, was a bar to the suit; and granted the respondent the relief asked for. To So far as the decree of divorce which was granted by the Stafford county court is concerned, it is clear that it was without extraterritorial effect. The respondent was never within its jurisdiction. She was not served with process, nor was any notice of the pendency of the proceedings given to her, although her place of residence was known to the appellant. Under similar circumstances, a decree of divorce, pronounced by a circuit court of the state of Illinois, was refused recognition by this court in the case of Doughty v. Doughty, 28 N. J. Eq. 581. The decree of the district court of Hodgeman county, however, stands on a different footing. That court had jurisdiction over the parties; the respondent having voluntarily appeared, and made de fense to the action brought against her there by the appellant. It also had jurisdiction, by virtue of the Kansas statute, which was offered in evidence, over the subject-matter of the suit. Counsel for the respondent contended before us that the court was without jurisdiction over the subject-matter of the litigation, because, at the time of its institution, the marriage relation no longer existed between the parties so far as the state of Kansas was concerned, it having already been dissolved by the decree of the Stafford county court. But this was a matter of defense, which should have been set up in the second Kansas suit, and cannot be considered in this action. So, too, the question of the bona fides of appellant's residence in Kansas, which was passed upon by the court of chancery, was one for the exclusive consideration of the Kansas court. By the statute of that state, the plaintiff in an action of divorce is required to have been an actual resident, in good faith, of the state, for one year next preceding the filing of his petition. It was therefore necessary for the Kansas court, before taking up the consideration of appellant's case upon the merits, to determine whether he had been an actual resident of the state, in good faith, for at least a year next preceding the commencement of his action; and that decision, unless procured by fraud, is conclusive, not only in Kansas, but in every other jurisdiction where the validity of the judgment comes in question. Kinnier v. Kinnier, 45 N. Y. 540; Kirrigan v. Kirrigan, 15 N. J. Eq. 147; Nichols v. Nichols, 25 N. J. Eq. 63. Can this judgment, rendered by a court which had jurisdiction over the parties and over the subject-matter of the litigation, be ignored by the courts of this state, notwithstanding the prescription of the constitution of the United States, supplemented by the federal statute of 1790, that the judicial proceedings of each state shall have the same faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state where such proceedings are had? It seems to me not; for, while this constitutional provision and the federal statute referred to have been the subject of more or less diversity of judicial opinion, it is now entirely settled that the only grounds upon which the judgment of a court of general jurisdiction can be disregarded in another state are-First, where the adjudging tribunal had no jurisdiction over the person against whom judgment was pronounced, or over the subject-matter of the litigation; and, second, where the adjudication of the foreign tribunal has been obtained by fraud. Moulin v. Insurance Co., 24 N. J. Law, 222; Mackay v. Gordon, 34 N. J. Law, 286; Jardine v. Reichert, 39 N. J. Law, 165; Davis v. Headley, 22 N. J. Eq. 121; Nichols v. Nichols, 25 N. J. Eq. 60; Doughty v. Doughty, 27 N. J. Eq. 315; s. c., on appeal, 28 N. J. Eq. 581; Royal Arcanum v. Carley, 52 N. J. Eq. 642, 29 Atl. 813. Neither of these conditions exists in the judgments now under consideration. As has already been stated, the Kansas court had jurisdiction over both the subject-matter of the suit, and over the parties to it; and although it was insisted before us, by counsel for the respondent, that the decree of that court was the product of fraud, an examination of the testimony in the case fails to disclose any substantial ground for such a charge. It was contended, both in the court below and in this court, that the fact that the present suit was pending in the court of chancery of this state at the time of the institution of the proceedings in the Hodgeman county court deprived the foreign tribunal of jurisdiction. This contention is without force. The pendency of a suit between the same parties, and for the same cause of action, in this state, is no bar to a subsequent suit brought in a sister state. The remedy of the defendant is to apply to the court in which the subsequent suit is brought to stay proceedings, or to refuse final judgment, until the suit here is determined; and the granting or refusal of such application is a matter of discretion in the court to which it is made. Browne v. Joy, 9 Johns. 221; Hatch v. Spofford, 22 Conn. 485; Newell v. Newton, 10 Pick. 470; Stanton v. Embrey, 93 U. S. 548; Fulton v. Golden, 25 N. J. Eq. 353; Kerr v. Willetts, 48 N. J. Law, 78, 2 Atl. 782. The result is that the decree in the second Kansas suit was a complete bar to the action brought in the court of chancery of this state, and that, consequently, the decree brought by this appeal should be reversed, and the bill of complaint dismissed. ROGERS v. ATLANTIC CITY R. CO. (Supreme Court of New Jersey. March 16, 1896.) CARRIERS-REGULATIONS-ENFORCEMENT. 1. The regulation of a railroad company that a monthly commutation ticket shall be surrendered by the passenger to the conductor on the last trip taken during the period for which it is issued, is a reasonable regulation of the railroad company in the conduct of its business as a common carrier of passengers; and if this regulation be indorsed on the ticket, and the passenger holding said ticket fails or refuses to surrender it on his last trip, or pay his fare to the conductor according to the legally established rates of the company, he can be ejected from the car. 2. The regulation becomes a part of the contract of the passenger with his carrier, and he forfeits his right to be carried further by his refusal to comply with its terms. 3. If, by any carelessness, inadvertence, or casualty, the ticket of the passenger has been lost by him, so that he cannot produce it, the legal fare may be exacted from him; and the conductor is not bound to investigate the excuse of the passenger for its nonproduction, and determine whether it is made in good faith or not. has the right to have the ticket produced and surrendered, or the fare paid, and, if neither event occurs, he can expel the passenger. (Syllabus by the Court.) He Error to circuit court, Camden county; before Justice Garrison. Action by Thomas Rogers against the Atlantic City Railroad Company to recover damages for ejection from a train. From a judgment of nonsuit, plaintiff brings error. Affirmed. Argued before BEASLEY, C. J., and MAGIE, GARRISON, and DIXON, JJ. John W. Wartman, for plaintiff in er ror. J. Willard Morgan, for defendant in error. LIPPINCOTT, J. The plaintiff in error resided at Clementon, in Camden county,about 12 miles from Camden. The business of the plaintiff was in Philadelphia. He traveled to and fro, through Camden, as a passenger on the line of the railroad of the defendant. He had purchased a monthly commutation ticket between the city of Camden and Clementon for the month of December, 1891. This ticket was good from midnight of November 30, 1891, to midnight of December 31, 1891. The condition or regulation under which the ticket was sold to the plaintiff, as indorsed on the ticket, was as follows: "This ticket is to be surrendered to the conductor on the last trip taken during the period for which it is issued." The plaintiff left Philadelphia on the evening of December 31, 1891; passed over the river, on the ferry, to Camden. He was late for his regular train, and he went out into the city of Camden to wait for a later one. When he returned, in order to reach his train, he passed into the ferry house, and thence to the train. In passing into the ferry house, instead of exhibiting and retaining his ticket, he dropped it into the box which was there for the reception of ferry tickets. He called the attention of the collector of the ferry tickets, stationed at the box there, to this fact, who told him he would be compelled to pay his fare on the train. He also called the attention of a brakeman and the train starter of the train to the fact that he had dropped his ticket in this box. He also demanded that the box be opened, and his ticket given him; but that could not be done, because the box was one which could not be opened at that time. He was told before he entered the train that he would be compelled to pay his fare. The proof in the case does not show that the conductor was acquainted with the fact that he had lost his ticket. He entered the train, and soon after it had started the conductor called for his ticket, which he could not exhibit and surrender. The conductor then requested him to pay his fare, which he refused to do. He was then, without any personal injury, ejected from the train, and was forced to spend the night in Camden. In this action he seeks to recover damages for the alleged wrong and indignity of his ejection from the car of the defendant company. The above facts were proven in evidence at the trial, and after the conclusion of the evidence on the part of the plaintiff, on motion of counsel for the defendant, a judgment of nonsuit was ordered by the trial justice, on the ground that the regulation requiring him to exhibit and surrender his ticket to the conductor on this trip was a reasonable and legal regulation, and that, it being contained in his contract with the defendant company, as he could not or would not comply with his contract, nor pay his fare, the conductor was justified in ejecting him. To this judgment of nonsuit an exception was taken, and error has been assigned. We think that this judgment of nonsuit must be affirmed. The first question presented is whether this regulation was a reasonable one to be made by the defendant, in the exercise of its business of a common carrier of passengers, to be included in the contract between the carrier and the passenger. That it is a reasonable regulation, in view of the character of the business of the carrier, and considering the requirements of, and the mode of carrying on, its business operations, cannot be questioned. It is not denied that this regulation was a part of the contract between the plaintiff and defendant expressly entered into by both parties. It is clear in this case that the plaintiff, considering this regulation as a reasonable one, had not performed his part of the contract, in not keeping this ticket to be delivered to the conductor on this trip. His right to ride depended upon the performance of this contract; that is, to surrender his ticket or pay his fare when called upon to do so. This was an exaction which he was called upon to submit to in order to entitle him to a passage. The conductor was not bound to determine whether the passenger had purchased a ticket or not, or whether it had been previously delivered to any other agent of the company. The plaintiff had expressly contracted to relieve the defendant of this sort of examination and adjudication of his rights. As a condition precedent to entitle him to the passage, he must produce his ticket and surrender it, or pay his fare, in accordance with his express engagement with the defendant. Under such a regulation as this, the law seems to be well settled that the passenger must produce his ticket or pay the fare, and, upon his failure to do so, he may be lawfully ejected, no more force than is necessary being used for that purpose. A regulation made by a railroad corporation, requiring passengers to exhibit their tickets whenever requested by the conductor, and directing the ejection from the cars of those who should refuse to do so, is a reasonable and proper one. The passenger is bound to conform to such regulation, and forfeits his right to be carried further by his refusal to comply with it. Hibbard v. Railroad Co., 15 N. Y. 455; Frederick v. Railroad Co., 37 Mich. 342; Duke v. Railroad Co., 14 U. C. Q. B. 369; Car Co. v. Reed, 75 Ill. 125; Ray, Imp. Dut. (Pass. Carr.) p. 183, § 58; Jardine v. Cornell, 50 N. J. Law, 485, 14 Atl. 590; Carpenter v. Railroad Co., 121 U. S. 474, 7 Sup. Ct. 1002. The ticket is the evidence of the contract of carriage, upon which the conductor had the right to rely, and a rule requiring it to be shown and surrendered must be complied with. Ripley v. Transportation Co., 31 N. J. Law, 389-393. If, by casualty, his ticket has been lost, so that he cannot produce it, the company may exact from him the fare according to legally established rates. Id. It is entirely obvious that any other rule would subject the conductor to the duty of an examination and adjudication of the rights of every passenger who chose to say that he had purchased and lost, or mislaid, his ticket, or that he had delivered it to some other agent of the company, and from whom the conductor would be entirely unable to obtain any verification of the truth of the story of the passenger. Such a rule would be disastrous to the business of the railroad company, and it is just such consequences that the law permits the company and the passenger to contract against; and this, considered as a contract or regulation, must be deemed reasonable, in view of the business of a common carrier of passengers. The case of Car Co. v. Reed, 75 Ill. 125, is the only case cited by the plaintiff to sustain his contention that the conductor wrongfully ejected him from the car. In that case the passenger had lost his ticket, which he had purchased for a berth in a sleeping car; and he went back to the ticket agent of whom he had purchased it, and satisfied him that it was lost. The agent then gave him a letter to the conductor, stating the fact that the passenger had purchased the ticket for the particular berth, and that he was entitled to occupy the berth for the night. Besides, the passenger, before its loss, had exhibited the ticket to the porter of the sleeping car, and had taken possession of the berth. The conductor refused to recognize the right of the passenger thus evidenced to him, and ejected him. It will be noticed that there was but one berth to be occupied by the passenger on the night in question, and if any one else had presented the lost ticket, detection of the attempted imposition would be sure to follow. In the case cited the passenger held the evidence of his right to the berth from the agent who made the sale of it to him, and who was authorized to bind the company. He held a ticket of the most effective character. He would have had no better evidence if he had retained the original ticket for the berth. That case distinctly declares the rule that carriers of passengers may require them to exhibit their tickets to the persons designated by the carrier for that purpose, and surrender them when required by the person in charge. The judgment of nonsuit must be affirmed. MAYOR, ETC., OF CITY OF NEWARK v. McLOUGHLIN. (Court of Errors and Appeals of New Jersey. Dec. 30, 1895.) CONSTITUTIONAL LAW - SPECIAL ACTS - DIVIDING 1. P. L. 1894, p. 387, entitled "An act providing for the formation and establishment of wards in cities of the first class," is a special, and not a general, law. Per Garrison, J., dissenting. 2. The title of P. L. 1894, p. 387, entitled "An act providing for the formation and establishment of wards in cities of the first class," is not broad enough to cover a provision for the division of the wards into election precincts. Per Garrison, J., dissenting. Error to supreme court. Dissenting opinion. For opinion of supreme court on which judgment was affirmed by a majority of the court of errors and appeals, see 30 Atl. 543. Samuel Kalisch, for plaintiff in error. Sherrerd Depue, for defendant in error. GARRISON, J. (dissenting). The act entitled "An act providing for the formation and establishment of wards in cities of the first class" (P. L. 1894, p. 387), seems to me to be unconstitutional upon both of the grounds urged against it. First, because it is special. The act applies to cities of the first class only, and in such cities its effect is to place a legislative question affecting election precincts in the hands of the executive, through his appointees, to be administered once for all, without any of those provisions for readjustment to increase of voting population that obtain in the case of less populous municipalities. vision, 337, § 17. Re The mere inexpediency of a law is not a judicial question, but when a statute is saved from unconstitutionality only in case it rests upon a substantial classification, it is pertinent for the courts to inquire whether the classification relied upon is real or whether it is illusory. With this in view, I have sought to discover what there may be in mere excess of population that can specially require that a legislative question be removed from the control of the elective representative branch of the local government and placed in the hands of a nonelective body appointed by the administrative department of such municipality. I am unable to see any reason why cities of the first class are or can be possessed of a sole and special fitness for the imposition of this change. If we turn from the general frame of the act to its main features, it becomes apparent that the resulting departure from uniformity is directly in the face of the pretended classification. A word will make this clear. der this statute, election precincts in cities of the greatest population are created once for all by an appointed commission. Elsewhere Un |