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existence of a public act is determined by the judges themselves, who, if there be any difficulty, are to make use of ancient copies, transcripts, books, pleadings, or any other memorial, to inform themselves: Sedgwick on Construction of Statutory and Constitutional Law, 2d ed., p. 26. Mr. Justice Miller concludes the opinion of the court in Gardner v. Collector, 6 Wall. 499, 18 L. ed. 890, with these words: 'We are of opinion, therefore, on principle, as well as authority, that, whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which, in its nature, is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which, in its nature, is most appropriate, unless the positive law has enacted a different rule.' So the court may inform itself of the true reading of an act by an examination of the original on file in the office of the Secretary of State: Clare v. State, 5 Iowa, 509.

"These authorities are sufficient to show that, when the existence of a public statute of this state becomes a question before us, we are not confined to the statutes as they are published, but we may examine the rolls in the office of the Secretary of State, and this, too, though such rolls were not produced in evidence.

"It is unnecessary to either plead or make proof of a public statute, for the courts must take judicial notice of them. The statute rolls in the office of the Secretary of State are the primary and best evidence; and as it appears from an examination of them that 570 the two sections in question were not re-enacted, there is nothing left for us to do but declare them invalid, void."

In speaking of that case in Ruckert v. Grand Ave. R. R. Co., 163 Mo. 260, 63 S. W. 814, it is said: "In Bowen v. Missouri etc. R. R. Co., 118 Mo. 541, 24 S. W. 436, it was held that when the existence of a statute is in question, this court is not confined to the published statutes, but may examine the original rolls in the office of the Secretary of State. Nor is it necessary to plead or make proof of a public statute because courts are required to take judicial notice of it." It follows that the court erred in striking out defendant's an

swer.

In Bowen's case all of division one concurred, two in the result, and in Ruckert's case all of this division concurred, so that the entire court are agreed as to the law as announced in those cases, and, as State v. Wray, 109 Mo. 594, 19 S. W. 86, is in conflict with those cases, it should be overruled.

As it necessarily follows from what we have said that the judgment must be reversed, it is deemed unnecessary to pass upon other questions presented upon this appeal, as they may not again arise upon another trial.

The judgment is reversed and the cause remanded.

All concur.

When the Question Arises as to the Existence of a Statute, or of the time when it took effect, or of its precise terms, the judge who is called upon to decide it has a right to resort to any source of information which, in its nature, is capable of conveying to the judicial mind a clear and satisfactory answer to such question: Hollingsworth v. Thompson, 45 La. Ann. 222, 40 Am. St. Rep. 220. See, too, Portland v. Yick, 44 Or. 439, 102 Am. St. Rep. 633; Andrews v. People, 33 Colo. 193, 108 Am. St. Rep. 76.

CASES AT LAW

IN THE

COURT OF ERRORS AND APPEALS

OP

NEW JERSEY.

MORSE v. KING.

[73 N. J. L. 548, 63 Atl. 986.]

EXECUTORS AND ADMINISTRATORS.-A Foreign Executor may Sue in His Representative Capacity, without filing an exemplified copy of his testamentary letters, whenever the action arises out of a contract or transaction to which he is a party. (p. 703.)

C. Doremus, for the plaintiff in error.

C. English and R. H. McCarter, attorney general, for the defendant in error.

548 GUMMERE, C. J. The plaintiffs in this case sued as executors of Robert King, deceased. King was a 549 resident of New York at the time of his death, and the letters testamentary of the plaintiffs were issued to them in that state. The subject matter of the suit is a promissory note, given by the defendant to the plaintiffs, as executors, in payment of the purchase price of the business of Robert King, which was sold to the defendant by the executors. At the close of the trial the court directed a nonsuit to be entered, upon the ground that the plaintiffs had failed to comply with the statutory provisions which require a foreign executor to file, either in the office of the registrar of the prerogative court or in the office of the clerk of the court in which he is about to proceed, an exemplified copy of his letters testamentary as a prerequisite to his right to bring suit.

The correctness of this ruling is challenged by the assignments of error.

The statutory provisions which were made the basis of the direction of a nonsuit apply only in those cases in which the executor sues in the right of his decedent; in other words,

where the cause of action accrued to the decedent during his lifetime. Where the contract or transaction which is the basis of the suit is one to which the executor himself is a party— for instance, where the subject matter of the litigation is a promise made by the defendant, not to the testator, but to the executor-the executor may bring the suit, either in his individual or in his representative character, as he may elect (Myers v. Weger, 62 N. J. L. 432, 42 Atl. 280), and if he elects to sue in his representative capacity, he may do so without filing an exemplified copy of his letters. This is the general rule laid down in the text-books and supported by authority, as will be found by a reference to the cases cited in 13 American and English Encyclopedia of Law, second edition, 950, 951. It is the rule in this state, and was so declared by the supreme court in Green v. Heritage, 63 N. J. L. 455, 43 Atl. 698. In that case, like this, the contention was that the plaintiff, a foreign administrator, had no standing to sue without first filing in the court in which he brought his suit an exemplified copy of his letters of administration. The court held the contention untenable, 550 saying "that is true only when he sues in the right of his intestate, not in a case where he is a party to the transaction, although as administrator." Green v. Heritage was afterward reversed in this court (64 N. J. L. 567, 46 Atl. 634), but the reversal went upon a ground which did not involve the merits of the case, which we expressly declined to consider.

The direction of a nonsuit was erroneous, and the judgment under review must be reversed.

Foreign Executors may Sue or be Sued upon contracts made by them in their capacity of executors, though the rule is otherwise with respect to contracts made by the testator in his lifetime: Johnson v. Wallis, 112 N. Y. 230, 8 Am. St. Rep. 742. See, too, Grayson v. Robertson, 122 Ala. 330, 82 Am. St. Rep. 80.

SHELTON v. ERIE RAILROAD COMPANY.

[73 N. J. L. 558, 66 Atl. 403.]

RAILROADS-Expulsion of Passenger-Failure to Pay Fare. The expulsion from a railroad train by a conductor of a passenger who neither pays his fare nor tenders a ticket that evinces his right to carriage is, in the absence of unnecessary force, not actionable. (p. 708.)

RAILROAD-Passengers-Conclusiveness of Ticket.-If a person on a railroad train proposes to pay his fare by ticket, he must be provided with and tender one that under the established rules of the company has the intrinsic effect of paying such fare, and in the determination of the right to travel under the ticket tendered as fare, conclusive force to be given to the intrinsic effect of such ticket as expressed on its face. (p. 711.)

RAILROADS-Passengers-Ticket as Fare.-A purchase of a ticket by a passenger is not the payment of his fare. When the ticket is accepted by the train conductor it becomes a fare, but not before. (p. 713.)

RAILROADS Expulsion of Passengers for Failure to Present Proper Ticket, Though He Paid Therefor.-A person on a railroad train who refuses to pay fare other than to tender to the conductor a limited ticket which on its face shows that it has expired, may be lawfully expelled from the train, although he has paid for such ticket the full rate asked by the railroad company for an unlimited ticket. (p. 714.)

CONSTITUTIONAL LAW-Privilege Granted to Railroad.The legislature may, by appropriate enactment, alter the charter of a railroad company, and a statute is not rendered unconstitutional by reason of a provision that railroads constructed and operated under a special charter are permitted to charge more per mile than those organized and operated under a general charter. Such discrimination is not based upon an illusory classification. (p. 715.) Cortlandt & Parker and C. G. Parker, for the plaintiff in

error.

A. H. Bissell, for the defendant in error.

559 GARRISON, J. This suit is grounded upon the plaintiff's expulsion from a railroad train under the following circumstances: On December 17, 1903, the plaintiff, being a passenger on the defendant's train from Montclair to Upper Montclair, a distance of one and three-quarter miles, tendered to the conductor in payment of his fare a ticket that bore date December 15, 1903, and read as follows: "Good only for continuous passage Montclair to Upper Montclair beginning on day of sale or the next day." The ticket had been sold to the plaintiff on December 15th, and hence by its terms had expired. Upon being informed by the conductor that under the rules of the company the ticket could not be

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