trial of cases, and in looking up evidence and examining books of account; that he has also done some other work, and has managed to sup port his family and rear and educate his children, three in number, one of whom is now a practicing attorney of this state; that he has compromised the claims against him, referred to in the above decision as existing at the time of his disbarment, in the manner shown by the testimony herewith submitted, which is probably as much as could be reasonably expected in view of his circumstances and limited income; that the claimants above referred to, so far as your committee has been able to ascertain, appear to be satisfied with his efforts to reimburse them

and to be favorable to his reinstatement as an attorney.'

We conclude that the partial restitution the petitioner has actually made is not inconsistent with his moral reformation, and that his failure to make complete restitution should not be held to be an insuperable bar to his present petition.

This brings us to a consideration of the merits of the present petition as disclosed by the proofs. Before taking up their consideration, however, it should be noted as a most significant circumstance that the petitioner's application is accompanied by the unanimous recommendation of the Camden County Bar Association, at whose instance the petitioner, 20 years ago, was disbarred.

In Mr. Justice Van Syckel's opinion in 66 N. J. Law, 473, 49 Atl. 728, stated as one of the grounds for denying the petition at that time that:

"The Bar Association did not appear by any reresentative before the committee (appointed by the court) and took no part in the proceedings.'

In

That objection is now not only removed, but in its place we have the affirmative recommendation of the association, based upon an investigation that was comprehensive in its range and judicial in its character. the examination of the evidence itself we are impressed, at the outset, with the manner in which it was obtained, viz., that it was not procured by the personal solicitations of the petitioner or by any one acting in his behalf, but was elicited by the Bar Association in the course of an independent investigation, conducted entirely by its agents. Personally solicited letters or mere signatures obtained to a petition, while plenary evidence of the unwillingness of such signers to deny a personal favor, is very far from being cogent evidence of any particular state of facts, especially if it relates to the moral character of the person who obtains the letters or circulates the petition. This sort of evidence, if such it can be called, is so well understood as to be practically negligible. On the contrary, the body of testimony now before us lacks nothing that could make for its spontaneous and impersonal character. It is given by citizens of the highest standing from all walks of life, divided between the profession of the law and the laity, although naturally the for

mer predominate over any other class. These witnesses, each in his own way and from his own knowledge or observation, give testimony to the same general effect, which can be best stated in the language of a few taken at random. A former judge of the Camden pleas, and also of its district court, and one of the most respected members of its bar testified:

mission to the bar, and I do not know of a sin"I have known Mr. Harris ever since his adgle thing that has occurred since his disbarment that should prevent his reinstatement to the bar."

The present district court judge testified: "Since his disbarment his conduct and reputation, as far as I have observed, have been excellent."

To the same effect is the testimony of the mayor of the city, a former mayor, the sheriff of the county, the former sheriff, the county clerk, surrogate, and pretty much all of the city and county officials now or formerly holding office.

The judge of the circuit court, although not appearing as a witness, was present as

a member of the Bar Association at the special meeting at which the resolution favoring the petitioner's reinstatement was unanimously adopted.

The Congressman representing the district testified:

"I have known, I think, 'very intimately Mr. Harris for the past 20 years, and his conduct has been of the best. I have never heard a single insinuation passed on John Harris since he was disbarred."

Mention has been made of the fact that the petitioner has supported himself in part by the preparation of law students for their examination, and not the least impressive of the evidence before us comes from such former students; let one speak for the rest:

"Mr. Harris prepared me, among others, for talks to us has stood only for the highest, nomy bar examination, and in all his lectures and blest, and best ideals of the profession. We all know to whom we can go when blocked by a knotty or complicated problem, and know, too, Mr. Harris has long been known as 'Dean of our that we'll get good, square, honest advice; for Legal Advisers.'"

It may be added, by way of parenthesis, that of the 220 students prepared by the petitioner, one only failed to pass the bar examination.

Business men and members of the bar of Camden county, as well as of the nearby counties from Burlington to Atlantic, give evidence similar to the quotations already given, which could be extended to include the testimony of every one of the 125 witnesses. It may be well to conclude with a single quotation from the testimony given before the committee by a judicial officer who, more than any other, is in constant and intimate touch with the local bar and all that concerns its interests. Vice Chancellor Leaming testified:

"I know what Mr. Harris' conduct has been in this city since his disbarment. I know that

it has been in every way exemplary. If it is possible for a man to be reinstated after being once disbarred, I think Mr. Harris is entitled to that reinstatement."

This is the conclusion to which we are led by the evidence before us, which is both ample in quantity and convincing in its character; and we may say that upon no other kind of evidence would we lend a favorable ear

to a petition of this sort. Having determined that a disbarred attorney may be reinstated, and having decided that in the present case restitution has been made to the extent of the petitioner's capacity and to the satis faction of those whom he injured, the evidence as to the moral fitness of the petitioner should, we think, be dealt with upon the general rules applicable to its weight and character. Finding the testimony to be ample in quantity, given in a quasi judicial inquiry by witnesses of the highest standing and of unquestioned opportunity for knowing the truth of that to which they voluntarily testify, we can reach no other verdict upon the proofs than that the case is a proper one for the interposition of the court to relieve the petitioner from the disability under which he now rests, especially in view of the fact that the Bar Association, upon whose charges and presentation he was disbarred, has, after a thorough investigation, unanimously asked for his reinstatement.

tion of the negligence of the employer railroad company.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

3. MASTER AND SERVANT 204, 216 INJURIES TO SERVANT-ASSUMPTION OF RISKINTERSTATE COMMERCE.

The doctrine of assumption of risk has no application to risks arising solely and directly out of negligent acts of fellow servants nor can it apply under Act Cong. April 22, 1908, providing that every common carrier by railroad, while engaged in interstate commerce, shall be liable in damages to any person suffering injury while employed in such commerce resulting from negligence of any of the officers, agents, or employés of the carrier.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 544-546, 567-573; Dec. Dig. 204, 216.] 4. COMMERCE 8-ACTS OF CONGRESS-STATE LAWS-CONFLICT.

Where the employé of an interstate carrier was killed by negligence of the carrier, his recovery cannot be limited by the state Workmen's Compensation Act (Act April 4, 1911 [P. L. p. 134]) for the federal Employers' Liability Act April 22, 1908, superseded all state laws on the subject of liability of carriers in interstate transportation, and no subsequent state legislation could impair or curtail the rights conferred by the federal law. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. 8.] 5. TRIAL 260

CIENCY.

INSTRUCTIONS

SUFFI

There is no error in refusing a requested charge, the substance of which has already been given.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.]

(88 N. J. Law, 1)

peals. Affirmed.

Argued February term, 1915, before GUMMERE, C. J., and GARRISON and MINTURN, JJ.

George S. Hobart, of Jersey City, for appellant. Frank M. Hardenbrook, of Jersey City, for respondent.

GUMMERE, C. J. This action was based upon the federal statute of April 22, 1908, entitled "An act relating to the liability of common carriers by railroad to their employees in certain cases." The plaintiff's intestate, on January 11, 1912, while in the employ of the railroad company at its ash pit, in its Jersey City terminal yard, was run over and killed by a locomotive engine. This ash pit was constructed between and underneath certain of the yard tracks, and incoming locomotives were moved over it so that the ashes which had accumulated during their trips might be dumped into it. The plaintiff's decedent was engaged in cleaning out the ashes therefrom, and was just coming out of the pit, when the accident occurred which caused his death. The trial resulted

in a verdict for the plaintiff, and from the judgment entered thereon the defendant company appeals.

[1] The first ground upon which the defendant seeks a reversal of the judgment is the refusal of the trial court to direct a verdict in its favor. This motion was rested upon several grounds: First, that the proofs did not bring the case within the federal statute, as the accident to plaintiff's decedent did not happen while the defendant was engaged in interstate commerce, and that the decedent did not come to his death while employed by the defendant in such commerce. We think the motion to direct a verdict upon the ground stated was properly denied. The first section of the federal act provides that every common carrier by railroad while engaging in commerce between any of the several states or territories shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employé, to his or her personal representatives for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carriers. The proofs show that the ash pit was a part of the plant of the defendant company, that it was a necessary part of that plant, and that it was used both in interstate and intrastate commerce. The keeping of it clean, and thereby maintaining its effectiveness, was required equally for both kinds of commerce, just as the keeping in repair of tracks or bridges which are used for both kinds of commerce is a necessary incident to each of them. In Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, it was held that:

"One engaged in the work of maintaining tracks and bridges in proper condition after they have become and during their use as instrumentalities of interstate commerce is engaged in interstate commerce, and this, even if those instrumentalities are used both in interstate and intrastate commerce."

And the application of this principle led

less the latter at the same time was engaged therein. Under the law as laid down by the cited case, therefore, and which is controlling upon us, the present case comes within the federal statute.

[2] The second ground upon which the motion was rested was that there was no evidence which would support the conclusion that the accident was the result of any negligence on the part of the defendant, or of any of its agents or employés. The accident occurred from the backing of the engine. It had been run upon the pit, and been brought to a stop after clearing the manhole in which the decedent was working by three or four feet. The engine was backed by the fireman under instructions from the engineer, who was at that time upon the ground alongside of it. The engineer testified that before directing the engine to be moved he looked toward the rear to see if everything was clear, and saw no one in the way, but that he made no special observation of the manhole. No warning was given the decedent of the intended movement of the engine, unless the bell was rung by the fireman; and this was a disputed fact in the case. If the bellwas not rung, as the jury might have found, then it cannot be said, as a matter of law, that in backing the engine over the manhole without first using reasonable care to ascertain whether any one was in it and likely to be endangered thereby, and without giving warning of such movement, the engineer and fireman were, each of them, free from negligence. Moreover, there was evidence to show that the decedent came out of the manhole of the ash pit in response to a signal given to him by a fellow employé who operated the gas engine which furnished the motive power to hoist the loaded buckets out of the ash pit; and it was for the jury to decide whether it was negligence to give such a signal without first ascertaining whether or not the engine was about to be moved. The motion to direct a verdict upon

this ground was therefore properly denied.

[3] The third ground upon which the defendant rested its motion was that the plaintiff was barred from a recovery because her decedent had assumed the risk of the accident which produced his death. This ground, also, we think, is without substance. doctrine of assumption of risk has no appli. cation to such risks as arise solely and directly out of the negligent acts of fellow servants.

The

sults "from the negligence of any of the officers, agents or employés of such carrier."

(4) A further ground of appeal urged be fore us is that the trial court erred in refusing to charge the jury, in response to defendant's res, jest, that in case of a recovery the plaintiff's damages "must be limited to the expenses of last sickness and burial, not exceeding the sum of $200, as provided by chapter 95 of the Pamphlet Laws of 1911 (our Workmen's Compensation Act). In our opinion this request was properly denied. It has been held by the United States Supreme Court that the federal Employers' Liability Act of 1998 superseded all state laws upon the subject of the liability of carriers by railroad engaged in interstate transportation, to their workmen injured while employed in such commerce. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. €35, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. The necessary corollary of this judicial declaration is that no state, by subsequent legislation, can impair or curtail in any degree the rights conferred upon the employé, or his personal representative, or the liabilities imposed upon the carrier, by that statute.

[6] Lastly, it is asserted that there was error in refusing to charge the defendant's request that, if the decedent contributed by his own negligence to the accident, "the damages, if any, that may be found against the defendant, must be diminished in proportion to the amount of the negligence of plaintiff's intestate as compared with the combined negligence of the plaintiff's intestate and that of the defendant." As a matter of fact, no such refusal appears in the record. Before

the request was submitted, the trial judge, in charging the jury, read to it that portion of the federal statute which deals with this matter, and which is in the following words, "The fact that the employé may have been guilty of contributory negligence, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé" (U. S. Comp. St. 1913, § 8659), and then said to them:

"If you find that plaintiff's intestate was guilty of contributory negligence, then, if you have to find the amount of damages to which decedent's father is entitled, you are to abate or deduct from that sum the amount you shall find represented decedent's proportionate contributory negligence, and your verdict will be for the difference."

At the close of his instructions to the jury, he refused to charge the request, except as he had already charged it. It is not suggested in counsel's brief that what was said to the jury was not an accurate statement of the law upon the subject, and the defendant, was entitled to have nothing more from the mouth of the court. It is elementary that

all that the trial judge is required to do in dealing with such requests, when the legal principles embodied therein are sound, and are applicable to the matter under discussion, is to charge the substance thereof. And this, we consider, was done in the present case.

The judgment under review will be affirmed.

(88 N. J. Law, 57)

PENNSYLVANIA CO. FOR INSURANCE ON LIVES, ETC., v. MARCUS. (Supreme Court of New Jersey. Nov. 5, 1915.) (Syllabus by the Court.) CONSTITUTIONAL LAW 168 — IMPAIRMENT OF CONTRACTS-DEPRIVATION OF REMEDY —

MORTGAGES.

563; 3 Comp. St. 1910, p. 3423), to the act The supplement of May 28, 1907 (P. L. p. concerning proceedings on bonds and mortgages, etc., approved March 12, 1880 (P. L. p. 255), as applied to bonds made prior to its enactment, deprives the obligee of a remedy for enforcing his contract which existed when the contract was made in contravention of article 4, § 7, par. 3, of the Constitution.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 475; Dec. Dig. 168.]

Action by the Pennsylvania Company for Insurance on Lives, etc., against Andrew Marcus. On rule to show cause why judgment by confession should not be set aside. Rule discharged.

Argued June term, 1915, before GARRISON, TRENCHARD, and BLACK, JJ. Clarence L. Cole, of Atlantic City, for the rule. Lewis Starr, of Camden, opposed.

GARRISON, J.

This is a rule to show cause why a judgment by confession should not be set aside for failure to file the notice required by the supplement of May 28, 1907 (P. L. p. 563; Comp. St. p. 3423), to the act concerning proceedings on bonds and mortgages, etc., approved March 12, 1880. The notice that was filed did not comply with this supplement in that it failed to set forth the court in which it was proposed to enter such judgment. This was fatal to the

notice.

The reasoning of Mr. Justice Kalisch's since the argument of this rule and not yet opinion in Neu v. Rogge, 95 Atl. 632, filed officially reported, makes this clear. That opinion also makes it clear that the supplement of 1907 places an additional burden upon the plaintiff in the enforcement of his bond, and to that extent deprives him of the less burdensome remedy that existed for the enforcement of his contract at the time when it was made, which was in 1905, and hence prior to the date of the approval of the said supplement. The supplement of 1907 therefore did not affect the plaintiff's remedy, and hence no notice was necessary. Constitution of N. J. art. 4, § 7, par. 3;

Bradley v. Lightcap, 195 U. S. 1, 24 Sup. Ct. 748, 49 L. Ed. 65; Walker v. Whitehead, 83 U. S. (16 Wall.) 314, 21 L. Ed. 357; Wilkinson v. Rutherford, 49 N. J. Law, 241, 8 Atl. 507; Morris v. Carter, 46 N. J. Law, 260; Baldwin v. Flagg, 43 N. J. Law, 495; Rader v. Union, 36 N. J. Law, 273.

The rule to show cause is discharged.

(88 N. J. Law, 83)

RAYNER, Deputy Fish and Game Warden, V. BENJAMIN.

(Supreme Court of New Jersey. Nov. 3, 1915.)

(Syllabus by the Court.)

CRIMINAL LAW 84-JURISDICTION OF JUS

TICES-FISH AND GAME PROSECUTIONS-REPEAL OF STATUTE.

The clause conferring jurisdiction in fish and game prosecutions on justices of the peace in cities, in the amendment of March 31, 1905 (P. L. p. 183, § 1; C. S. p. 2556, pl. 250), was repealed by the amended thirty-first section of the District Court Act (P. L. 1908, p. 76, § 14; C. S. p. 1963).

83 Atl. 961, and of this court in Society v. Whitney, 84 N. J. Law, 136, 86 Atl. 61. The prosecutions in those cases were under the Cruelty to Animals acts, and it is now argued by the state that the decisions are inapplicable because the statute here involved is the amendment of 1905 (P. L. p. 183) to the Fish and Game Procedure Act of 1897 (P. L. p. 109), and which amends section 2 of that act by adding the clause

"and nothing contained in any law heretofore passed shall be construed to prohibit justices of the peace residing within the limits of any city where a district court is or may be established, from exercising jurisdiction under this act."

PARKER, J. The writ is directed to the Hudson county court of common pleas, and brings up the judgment of that court reversing a summary conviction before a justice of the peace in Jersey City of violating the Fish and Game Act, by having certain birds' feathers on sale. The reversal in the pleas proceeded on the ground that a justice of the peace had no jurisdiction in such cases, in view of section 31 of the District Court Act of 1898, as amended in 1908 (P. L. pp. 76, 77), which provides that:

"No justice of the peace or small cause court shall have jurisdiction over any cause or proceedings cognizable before a district court, where the defendant or defendants reside within any city [or judicial district] where a district court is established, nor shall any justice of the

peace, resident within the limits of any city [or judicial district] where a district court is or may be established, exercise any civil jurisdiction whatever."

The bracketed words indicate the material change introduced by the amendment.

The court of common pleas, in reversing the conviction, held that it must follow the decision of the Court of Errors and Appeals in Society, etc., v. Russ, 83 N. J. Law, 450,

and of including such courts within its purview, there is no implied repealer of the jurisdiction expressly conferred by the 1905 act on justices of the peace in cities. Such is the usual rule with reference to amendatory legislation. McLaughlin v. Newark, 57 N. J. Law, 298, 30 Atl. 543; Id., 58 N. J. Law, 202, 34 Atl. 13; Schwarzwaelder v. Insurance Co., 59 N. J. Eq. 589, 593, 44 Atl. 769; Newark v. North Jersey Street Railway Co., 68 N. J. Law, 486, 53 Atl. 219. And if there were nothing else in the case, the rule would no doubt be applicable. But underlying this rule and most, if not all, of the rules of statutory construction is the fundamental one that the intention of the Legislature must be sought for and ascertained, both on the face of the act itself and also in its relation to cognate legislation. Indeed, the rule with regard to amendments and revisions grows out of this very principle. When we come to examine the amending act of 1908 in respect to its bearing on prosecutions under the game law, we find that, irrespective of cities, justices of the peace are prohibited from exercising civil jurisdiction in any judicial district, when created. Now the pre-existing law in respect of their jurisdiction in game law cases stood thus at the passage of the 1908 district court amendment.

P. L. 1897, p. 109, § 2, jurisdiction conferred on justices of the peace, district courts, and police magistrates generally.

P. L. 1898, p. 556, District Court Act, revision of 1898, § 31, supra, as then enacted, forbade justices of the peace or small cause courts in cities to exercise any civil jurisdiction whatever. This clause was new legislation in the District Court Act and was evidently copied into the act of 1902, relative