92 N. J. L. Herzog's Cloak & Suit Co., Inc., v. Fedorko. The opinion of the court was delivered by SWAYZE, J. If the constable's possession was lawfully obtained, a demand was necessary. He claimed by virtue of writs against Weiner and clearly he had the right by virtue of those writs to levy on any interest Weiner might have in the property. Whether a mere bailee has an interest in the bailment which is subject to levy is sometimes a question of nicety, as may be seen by comparing Dean v. Whitaker, 1 C. & P. 347; 11 E. C. L. 411, with Arnold v. Hatch, 177 U. S. 276. In the present case we think the bailee's interest was sufficient to be subject to levy. We assume that the contract was as the plaintiff claims and that the title remained in the plaintiff. It was, of course, subject to the right of Weiner to make up the goods into ladies' suits and to his lien thereon for his pay. There was nothing to show a termination of this special property and it may have had a value available for Weiner's creditors. At any rate, we see no reason to think that it was not sufficiently tangible to be subject to levy. The question does not arise which was present in Farrel v. Colwell, 30 N. J. L. 123, and in Hopkins v. Bishop, 91 Mich. 328; 51 N. W. Rep. 902; 30 Am. St. Rep. 480, where the officer seized property of one person under process against another. It was therefore right to direct a verdict for the return of the goods. But the judgment entered sets forth that the verdict was generally in favor of the defendant and against the plaintiff, that the plaintiff take nothing by its writ, and that the defendant have a return of the goods and chattels, &c. This was not the verdict and should not be set forth as such. The judgment thereupon was that the plaintiff be dismissed and that the defendant have a return of the goods and chattels aforesaid and recover his costs. But this was not the proper judgment. The judgment should be that the plaintiff take nothing by its writ, that the defendant go thereof without day and that he have a return of the goods, and recover his costs. The matter is important as the issue joined in the case was on the question of title and the verdict did not settle that, but only the right to the immediate possession, and care should be taken that the judgment in this Karth v. Port Reading Railroad Co. 92 N. J. L. case should not be in such form that it might hereafter be claimed as an estoppel on the question of title. Let the judgment be modified accordingly. The defendant is entitled to costs as he substantially prevails, and the error in the form of the judgment was not appealed from. JOHN F. KARTH, PLAINTIFF, v. PORT READING RAILROAD COMPANY, DEFENDANT. Argued June 5, 1918-Decided November 11, 1918. 1. A charge that the plaintiff did not assume the risk of the negligence of his fellow employes, while true as a general proposition, is subject to some qualification where the plaintiff knows that his fellow employes have been negligent, and goes on regardless of that fact. 2. On an issue involving the question of whether a railroad was negligent in the operation of its trains in its yard, evidence as to the practice of other railroads as to warning when trains were drilling in a yard is admissible as showing the care that is ordinarily used by prudent men conversant with the matter in hand. On defendant's rule to show cause. Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD. For the plaintiff, Clarence Sackett and Sydney A. Syme (of New York). For the defendant, John F. Reger and Frank S. Katzenbach, Jr. The opinion of the court was delivered by SWAYZE, J. Karth was employed by the defendant company at Port Reading, and was shifting and drilling cars. 92 N. J. L. Karth v. Port Reading Railroad Co, His train was being operated on track 1 and track 6 of the south yard. He alighted and ran ahead for the purpose of turning switch No. 6 which was between track 1 and track 2. After throwing the switch he started back between track 1 and track 2, to board his engine, which had continued to move. When about five feet from the switch he noticed a little heap of sand in the middle of track 1. He went over on track 2 and bent to pick up some of the sand, and was struck by an engine running on track 2. He saw the engine, but did not know it was moving. We think there is no evidence to show that his duty called him to be on track 2, and that as his train was drilling on track 1 and track 6 the men who were running the engine and train on track 2 could not anticipate that he would be on that track. They had a right to assume that he would work only where the line of his duty called him; and he does not seem to have been under any obligation to pick up the sand, nor does it seem to have been necessary in so doing to go on track 2. We think, therefore, that there should have been a ncnsuit. The trial judge charged that the plaintiff did not assume the risk of the negligence of his fellow employes. This is true as a general proposition, but it is subject to some qualification where the plaintiff knows that his fellow employes have been negligent, and goes on regardless of that fact. We think there was evidence requiring this phase of the case to be put to the jury. The trial judge refused to admit evidence as to the practice of other railroads as to warning when trains were drilling in a yard. We think this evidence was admissible. The obligation is to use the care that is ordinarily used by prudent men conversant with the matter in hand, and surely no evidence could be better than the evidence of men who could testify to the practice of other railroads. For these reasons we think the rule must be made absolute. Molina v. Comision, &c. 92 N. J. L. RICARDO MOLINA, PLAINTIFF, v. COMISION REGULADORA DEL MERCADO DE HENEQUEN, DEFENDANT. Argued June 22, 1918-Decided July 17, 1918. 1. The rule that our courts will not sit in judgment on the validity of the acts of another independent government, done within its own territory, does not, however, deprive the courts of jurisdic tion, once acquired, over the case. It requires only that when it is made to appear that the foreign government has acted in a given way on the subject-matter in litigation, the details of such action or the merit of the result cannot be questioned, but must be accepted by our courts as a rule for their decision. 2. Where the claim of the defendants in an attachment suit is a claim of right not shown by documents which the court can construe, but shown by facts and certain acts of a foreign government, the effect of which and the inference to be drawn therefrom are proper for inquiry by a jury, a motion to strike out the complaint, based upon such defence, will be denied. On motion to strike out complaint. Before Justice SWAYZE, For the defendant, Nelson S. Spencer, Otto C. Wierum, Jr. (of New York), and Robert H. McCarter. For the plaintiff, William Bradford Roulstone (of New York) and Robert S. Hudspeth. The opinion of the court was delivered by SWAYZE, J. After the denial of the motion to dissolve the attachment in this case (91 N. J. L. 382), the defendant obtained leave to move to strike out the complaint, and to take testimony with that in view. This motion is now before me. It is unnecessary to go into the evidence in detail. I am satisfied that on April 15th, 1915, the revolutionary authorities in Yucatan took proceedings against the property of the present plaintiff. These revolutionary authorities were acting under General Carranza; and their action was subsequently 92 N. J. L. Molina v. Comision, &c. recognized by his government as early as 1916. The Carranza government had then been recognized by the United States (on October 19th, 1915), as the de facto government in Mexico; it has since been recognized (on August 31st, 1917), as the de jure government; and the recognition by the United States is retroactive in effect, and validates all the actions and conduct of the government so recognized from the commencement of its existence. Oetjen v. Central Leather Co., 246 U. S. 297. It is settled by the decisions in that case and in Ricaud v. American Metal Co., 246 U. S. 304, that our courts will not sit in judgment on the validity of the acts of another independent government done within its own territory. It is, therefore, unnecessary to inquire whether the action taken by the revolutionary authorities of Yucatan against Molina's property was legal or not. It was effective under the existing circumstances of revolution; and the only question for this court is what the action was. The answer depends in the first instance, upon the construction of two documents: (1) the decree (to call it by that name) of General Alvarado, of April 15th, 1915; and (2), his instructions to Andres Barera, dated April 16th, 1915. Subsequent acts are important as showing that the Mexican government recognized, and, so to speak, took over the action of the Yucatan government, and that the decree of April 15th applied to Mr. Molina. The decree of April 15th does not mention Molina's name; but it is sufficiently proved that he was one of the class of persons therein referred to. The decree prevented him from selling, mortgaging or alienating his property, and, in itself, went no further. The instructions to Barera the next day are more specific. Their force and effect is to be determined by the quotation therein contained from the order issued by General Alvarado to Alvarez, representative of Molina, which was embodied in the instructions to Barera evidently to define the scope of those instructions. On these documents the defendant relies. |