Willard W. Cutler, for plaintiff. Collins & Corbin, for defendant.

TRENCHARD, J. The aeclaration contains three counts, the first of which alleges that the defendant was the owner and possessor of a certain motor vehicle, capable of being run upon the public highway at the speed of 60 miles an hour, and it thereby became the duty of the defendant to use due care in the management and control thereof, "and to only allow careful, experienced, and competent persons to operate, propel, and run the said motor vehicle, and in such way and manner and at such a rate of speed as to keep the same within safe and proper control." The breach alleged is that the defendant negligently consented and allowed the vehicle to be run along the public highway by an inexperienced, careless, and incompetent person, well knowing the person to be incapable of safely operating the vehicle, and by the negligence of such person it was run at such a high rate of speed, to wit, 60 miles an hour, and in such a careless manner, as to run over the plaintiff while upon the public highway, causing the injury of the plaintiff.

The second count alleges that the defendant possessed and had under his control a motor vehicle, capable of being run along the public highways at a speed of 60 miles an hour, to the great danger of the plaintiff and all other persons lawfully using the highways; that it was the duty of the defendant to use due care in the use and control of the same while being operated upon the public highways to avoid running into the plaintiff and other persons lawfully using the highways, and to keep the same within proper control and to run at no greater speed than authorized by law; that defendant disregarded these duties and did "negligently Jirect, consent, and allow the said motor ve nicle so in his possession and control to be operated by a member of his family, and the said motor vehicle was then and there so carelessly, negligently, and improperly operated, propelled, and run by a member of defendant's family, for the said defendant, and without regard to the safety of the said plaintiff” and other persons using the highway, at such a high rate of speed that it was not under the control of the person so operating the same for the defendant, and through the negligence of such person ran into the plaintiff, who was walking upon the highway, causing the injury complained of.

The third count is substantially the same as the first, with this difference, however, that it alleges that the defendant carelessly allowed his daughter, "an inexperienced, careless, and incompetent person," to operate the vehicle in such manner as not to have it under proper control, well knowing that it was operated by his daughter, and that she

was inexperienced and incompetent, and de fendant "utterly failed and neglected to take any means to prevent the said motor vehicle from being so operated by his said daughter."

The defendant has demurred separately to each count, and assigns, among others, the following grounds: First, that none of the counts show that the motor vehicle was at the time of the accident under the control or management of the defendant, or that the person driving it was under the control of the defendant, or that the relationship of master and servant existed between the defendant and the driver; second, that the counts allege liability of the owner for the negligence of a bailee.

The first and third counts plainly disclose no cause of action. They are apparently based upon the erroneous assumption that, be cause the defendant loaned his motor vehicle to some one over whom he had no direction or control at the time of the accident, he shall be held liable for the mere loaning. But no such liability rests upon him. An owner of a vehicle is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner's business. Herlihy v. Smith, 116 Mass. 265; New York, etc., R. Co. v. New Jersey Electric R. Co., 60 N. J. Law, 338, 38 Atl. 828, affirmed 61 N. J. Law, 287, 41 Atl. 1116, 43 L. R. A. 849. These counts contain no allegation that the vehicle was used at the time in the owner's business; nor is there any allegation therein that the vehicle was under the control or management of the defendant, or that the person driving it was under the control of the defendant, or that the relationship of master and servant existed between the defendant and the driver.

The second count, however, although loosely drawn, we think may stand. It alleges that the defendant did negligently direct, consent, and allow the motor vehicle to be operated by a member of his family, and that, while such person was operating the same for the defendant, the accident was caused by the carelessness, negligence, and incompetency of the person so operating the same. It in effect avers the relationship of master and servant, and that the accident was caused by the negligence of the servant while operating the motor vehicle for the master. There is, perhaps, no rule of law more firmly settled than that a master is ordinarily liable to answer in a civil suit for the tortious act of his servant, if the act be done in the course of his employment in his master's service. Whether so done or not must depend upon the facts of each particular case. Ayerigg v. New York & Erie Railroad, 30 N. J. Law, 460.

The demurrer to first and third counts is sustained, and to the second count is overruled.

(72 N. J. Eq. 812)

BARTON et al. v. SLIFER. (Court of Chancery of New Jersey. April 18, 1907.)

1. COVENANTS-USE OF LAND-BUILDING RESTRICTIONS-WHO MAY ENFORCE.

Where an owner of land lays it out into streets and lots, and adopts a restrictive covenant as to the building line, and inserts the covenant in all deeds as an exaction from all purchasers for the benefit of each, the equitable right to enforce the covenant inures to each purchaser, irrespective of when he purchased. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 50, 78.]

Where the deeds to all lots in a town contained a uniform restrictive building covenant, complainants' right to enforce it against a neighboring owner was not lost because there had been several violations of the covenant, where the violations in no substantial way affected their property, and did not show any intention to abandon the general plan in the district wherein the parties' property was located. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Covenants, §§ 50, 120.] 4. INJUNCTION

RESTRICTIVE COVENANTS

BREACH-BUILDING LINES-LACHES. Complainants were not estopped by laches to enforce a restrictive building covenant, where when defendant attempted to violate it, they promptly notified the foreman of the work that their rights were being violated, and where a bill was thereafter filed as quickly as it could be procured.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, § 199.]

Bill for injunction by Charles S. Barton and another against Levi K. Slifer. Preliminary injunction advised.

The bill is filed by complainants to restrain defendant from the erection of a building in violation of the following restrictive building covenant:

"And also under and subject to the express conditions and restrictions that no building of any description whatever shall at any time be erected within ten feet of the front line of said avenue, nor within four feet of the side lines of said lot (excepting where a party may own two or more contiguous lots, then a building may be erected on any part of the lot or lots the owner thereof may desire, without regard to the intervening line or lines, provided the same is not built within four feet of the outside lines of said lots, nor within ten feet of the front lines thereof), and also that no building, or any part thereof, erected upon the said lot or lots, shall be used or occupied as a livery or

sales stable, dye-house, bone-boiling or skindressing establishment, soap, candle, glue, starch, lamp-black, poudrette or fish-guano manufactory, slaughter-house, piggery or tannery. Nor shall any building be used or occupied as a drug store, without the written consent of the said party of the first part hereto."

The act sought to be enjoined consists of the violation of that part of the covenant prohibiting the erection of a building within four feet of the side line of defendant's lot.

In the year 1879 the tract of land which now comprises Ocean City, Cape May county, was a wild beach and was purchased by the Ocean City Association, and laid out in streets and lots with a view to the establishment of a Christian seaside resort. To that end the covenant in question, with other covenants, was adopted by the association and inserted in all deeds made by it as a part of a general scheme adopted by it for the benefit of the entire tract, with the purpose of securing, among other things, a space of at least eight feet between all buildings to afford light, air, view, and fire protection.

The lot now owned by complainants was conveyed by the Ocean City Association to John C. Lake by deed dated February 3, 1885. The lot now owned by defendant was conveyed by the Ocean City Association to Jacob B. Graw by deed dated July 21, 1886. The deed held by defendant expressly recites that the conveyance is subject to the operation of the covenant above referred to.

The northeasterly line of Ninth street forms the southwesterly side line of the two lots in question, and the lot owned by defendant is next oceanward of that owned by complainants.

A building has been erected on the lot owned by complainants, and that building is located on the lot in conformity to the requirements of the covenant. The proposed building of defendant, if erected of the width intended, will operate to obstruct the view and air to complainants' lot to a greater degree than would be the case if the building should be erected in conformity to the restrictive covenant.

This cause has been heard at the return of an order to show cause for a preliminary in junction on amended bill and affidavits and answering affidavits.

efit of each purchaser, the equitable right to the enforcement of the covenant enures to each purchaser, irrespective of the time of his purchase. Under the conditions named the benefit to be derived from the covenant as a part of the general scheme necessarily enters into the consideration of each purchase, although the covenant may, in terms, only bind each purchaser and his heirs and assigns.

It is urged on behalf of defendant that the present amended bill and annexed affidavits do not afford sufficient evidence of the conditions above stated to warrant the issuance of the preliminary writ sought. While the amended bill and affidavits annexed to it are not as explicit in details as might be desired, I entertain the view that the averments are sufficient to bring complainants' case within the rule stated. The amended bill shows the purchase of the original tract by the Ocean City Association and its subdivision into lots for sale, and the preparation and filing of a map showing the lots thus defined and the adoption by that corporation of "a general building scheme for the purpose of securing the unobstructed view and light and air," and the adoption of the restrictive covenant now in question and the insertion of that covenant in all deeds which have been executed by the corporation. The affidavit of S. Wesley Lake, annexed to the amended bill, sets forth that the corporation was organized for the establishment of a Christian seaside resort, and that the corporation inserted the covenant in question in all deeds made by it in order that the place might be more desirable as a place of residence, and that the object of the corporation was to make it impossible for the city to be built up solid and to secure a space of eight feet between all buildings for the circulation of air and the preservation of view and fire protection for the enjoyment of all people, and that over 7,000 lots have been sold by the corporation, and that no lot has been sold without the covenant in question being embodied in the deed of conveyance. of these averments are controverted.

None

It is also contended on behalf of defendant that there has been such a departure from the general scheme designed to be preserved by the restrictive covenant as to amount to a waiver of the right to its enforcement.

The record discloses that the territory extending from Eighth to Ninth street, in Ocean City, has in recent years become the business portion of the city. In that territory the covenant in question has been frequently violated. Some 12 buildings have been there erected in disregard of the covenant, some as to the front building line and some as to the side lines. But the amended bill alleges that the territory extending southwesterly from Ninth street to Fourteenth street and from the ocean to the bay, in which territory there are now 380 buildings, of which 330 are resi

dences, is essentially the residential portion of the city, and that in that territory the covenant has been preserved. The side lines of the lots in question are on Eleventh street, which street runs northwesterly and southeasterly from the ocean to the bay, and is approximately the center of the territory referred to in the bill as the residential portion of the tract. The answering affidavits point out six buildings within the territory between Ninth and Fourteenth streets which are claimed to be located contrary to the requirements of the covenant. One of these is on Ninth street and another on Asbury avenue near Ninth street. These two buildings are approximately two blocks distant from complainants' lots, and are on other streets and are adjacent to the territory which has been referred to as the business section of the city, and it is manifest that any violation of the covenant occasioned by these two buildings in no way affects the desirability of complainants' property. A third building referred to as between Ninth and Fourteenth streets is the Steward building, which building is located on the east corner of Twelfth street and Asbury avenue. It is averred that the porch posts of that building are flush with the side line of Twelfth street. As to this building, it may be said that it is by no means certain that the location of the porch posts as pointed out operates as a violation of the covenant. But, without determining that question, it will be observed that the location of the Steward building, like the two buildings already referred to, is on streets other than that on which complainants' property is located, and is more than a block distant, and in no way affects the desirability of complainants' property. The fourth building pointed out by defendant's affidavits is at Twelfth street and Asbury avenue. This, like the other properties already referred to, is too distant from complainants' property to in any way affect its desirability. The fifth violation of the covenant referred to as within the residential district is one now under construction at Eleventh street and Bay avenue, which building is being erected on the line of Eleventh street. The map filed by defendant does not disclose Bay avenue. It is evident that this structure must be many blocks distant from complainants' property. The sixth violation of the covenant referred to as within the territory defined as residential is a building occupied by N. C. Clelland, which is situated on the corner of Eleventh street and Asbury avenue. This building fronts on a street in which complainants are not interested, but the side of the building is on the opposite side of the same street on which complainants' property is located, and one block oceanward thereof.

It is pointed out that the front of this building violates the covenant in question, and that at the side of the residence portion of the building brick steps lead from the building to the side line of the street, and the

porch encroaches on the building line. Complainants' property is in no way affected by the front encroachment, and, while the porch and steps at the side of the building may operate to violate the covenant, it is manifest that any violation there may be is trivial in its nature.

This review of the testimony is made necessary to intelligently determine whether complainants' right to enforce this covenant against defendant has been lost. From the review it will be observed that there have been no violations of the covenant which have in any substantial way affected the property of complainants, and but two possible violations upon the streets on which complainants' lot is situated, and that but six violations of the covenant are alleged within a district in which 380 buildings are erected.

I think it clear that the equitable right of complainants to enforce this restrictive covenant has not been lost. Even though it should be conceded that the 12 violations of the covenant which have been permitted in what has been defined as the business district northeasterly of Ninth street has amounted to an abandonment, in that district, of the original scheme designed to be preserved by the covenant, it does not follow from that fact that the right to the enforcement of the covenant for the preservation of the original scheme in a separate district where essentially different conditions prevail has been lost. Changing conditions, such as the growth of business interests, may well modify the needs of one portion of a city to such an extent as to induce the abandonment of the general plan as to that portion without any intentional abandonment of the plan as to territory where other and radically different conditions prevail. In this view I am unable to regard the breaches of the covenant in the territory northeasterly of Ninth street as evidence of an intention to abandon the preservation of the general plan in the residential portion of the city referred to.

As to the territory southwesterly of Ninth street, which has been defined as the residential district, I entertain the view that the six violations of the covenant pointed out by defendant cannot be considered as sufficient evidence to indicate the abandonment of the original plan in the district where nearly 400 buildings have been erected in conformity to the plan. The extremely small percentage of the breaches of the covenant which defendant has pointed out rather tends to the establishment of the fact that it has been the defined purpose of the property holders in that district to adhere to the preservation of the original plan sought to be preserved by the covenant.

I think it also clear that the equitable right of complainant to the enforcement' of the covenant in question is not impaired by isolated breaches of the covenant in locations where such breaches can in no way be said to affect the desirability of complainants' prop

erty. It is not to be expected that the courts will be appealed to for the preservation of the general scheme in localities where a complainant is without interest. It is only when the interest of a property owner is affected that, in my judgment, he can be reasonably charged with the duty of applying to the court for the preservation of the general scheme. This view is forcefully expressed by Vice Chancellor Emery in Morrow v. Hasselmen (N. J. Ch.) 61 Atl. 369, 371, and I concur in the conclusions there stated by the learned Vice Chancellor.

It is also claimed on behalf of defendant that complainants are in laches in permitting the building of defendant to become partially erected before the bill was filed. I think complainants have done all that can be reasonably required of them. Defendant is not a resident of this state.

Complainants promptly gave notice to the foreman of the work that their rights were being violated, and the bill was thereafter filed as quickly as it could be procured.

A preliminary injunction will be advised in accordance with the prayer of the amended bill.

(75 N. J. L. 175)

FIVE-MILE BEACH LUMBER CO. v. FRIDAY et al.

(Supreme Court of New Jersey. June 10, 1907.) CERTIORARI-WHEN LIES-REVIEW OF ORDER OF COURT.

Certiorari will not lie to review an order of the circuit court in an ordinary action to enforce a mechanic's lien, since the court is a constitutional court of record of general jurisdiction proceeding according to the course of the common law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Certiorari, §§ 20, 23, 27.] (Syllabus by the Court.)

Application of the Five-Mile Beach Lumber Company against Mary E. Friday and others for writ of certiorari. Rule to show cause. Denied.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

Bleakly & Stockwell, for the rule. Matthew Jefferson, James M. E. Hildreth, and French & Richards, opposed.

SWAYZE, J. After a trial of this case in the Cape May circuit, the defendant obtained a rule for a new trial reserving exceptions. Upon the argument, the plaintiff learned that the only reasons relied upon were the alleged errors covered by the exceptions that had been reserved. Thereupon the plaintiff, relying upon the decision of this court in Holler v. Ross, 67 N. J. Law, 60, 50 Atl. 342, moved to dismiss the rule. Instead of granting the motion, the court amended the rule by eliminating the reservation of exceptions, the benefit of which the defendant waived, and then granted a new trial. It is this order

which the plaintiff now seeks to review by certiorari.

The circuit court is a constitutional court of record, having general jurisdiction over common-law actions inter partes and proceeding therein according to the course of the common law. As such its orders are reviewable, not by certiorari, but by writ of error, and only after final judgment. Taylor Provision Co. v. Adams Express Co., 72 N. J. Law, 220, 65 Atl. 508.

The proceedings in an action to enforce a mechanic's lien proceed according to the course of the common law. The statute expressly enacts that the practice, proceedings, and pleadings thereon shall be conducted, and the judgment entered, as in suits in said circuit court to recover money due on contract. The regular method of review is by writ of error. Numerous instances are to be found in our Reports. It is sufficient to cite a few of the more recent. Barnaby v. Bradley & Currier Co., 60 N. J. Law, 158, 37 Atl. 764; Naylor v. Smith, 63 N. J. Law, 596, 44 Atl. 649; Ennis v. Eden Mills Paper Co., 65 N. J. Law, 577, 48 Atl. 610; MurpheyHardy Lumber Co. v. Nicholas, 66 N. J. Law, 414, 49 Atl. 447; Turner v. Wells, 67 N. J. Law, 572, 52 Atl. 358; Buckley v. Hann, 68 N. J. Law, 624, 54 Atl. 825; Smith v. Colloty, 69 N. J. Law, 365, 55 Atl. 805. So uniform a practice indicates that the method of reviewing proceedings in suits to enforce mechanics' liens is the same as in any commonlaw action in the circuit-by writ of error after final judgment, and not by certiorari.

If it were in our power to award the writ, we ought not to do so in this case. The circuit court has control of its own rules and may correct any inadvertence or mistake therein. 1 Tidd's Practice (3d Am. Ed.) *506. The motion is denied, with costs.

(75 N. J. L. 109)

GRANT v. ANCIENT ORDER OF FOR

RESTERS.

(Supreme Court of New Jersey. June 10, 1907.)

MANDAMUS-TO FRATERNAL ORDER-REMEDY WITHIN ORder.

Application was made to this court by a subordinate branch of a fraternal organization for a writ of mandamus to compel the reinstatement to membership in the parent body of the subordinate branch, which had been suspended by the chief officer of the organization under its rule, with the approval of the executive council after a hearing, and it appearing that no property rights or money demands were involved, and that the applicant had not first exhausted his right of appeal to the appellate body within the organization, it was held that the writ of mandamus must be denied.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Mandamus, § 259.]

(Syllabus by the Court.)

Application by the state, on the relation of Richard Grant, for writ of mandamus to the Ancient Order of Forresters. Application denied.

Argued February term, 1907, before FORT, PITNEY, and HENDRICKSON, JJ.

Cornelius Doremus and William H. Gallaway, for Grant. A. C. Hart, for the For

resters.

HENDRICKSON, J. This is an application for a mandamus requiring the defendant corporation, a fraternal organization, to revoke the order of suspension of Court Manhattan No. 8,483 and its officers and members from membership in the defendant the parent body, and to reinstate such subordinate court to full membership therein. The suspension was summarily ordered by the high chief ranger, the chief officer of the organization, on March 23, 1906, on the ground that Court Manhattan did on March 9, 1906, permit one McNulty, a suspended member of the court, to sit in the sessions of the court and participate in its business, well knowing that he had been suspended. Subsequently a hearing was given to the suspended court before the executive council in New York City, which body sustained and continued the suspension. The relator claims that the suspension was irregularly made, and that the alleged hearing before the executive council was so irregularly and unfairly conducted that the proceeding is void. The defendant denies this, and raises, in limine, an objection to this court's taking action upon the application, on the ground that, before its interference can properly be invoked, the suspended court must first exhaust its remedy by an appeal to the superior bodies of the organization, where such an appeal may be had under its rules. Manifestly, we should dispose of this objection before taking up the merits of the complaint. The case shows that, under the rules of the organization, there is a right of appeal to the subsidiary high court, which will meet in September next, and from the decision of the latter there may be an appeal to the supreme high court. It should be stated that this is not a case involving property rights or money demands, but involves a question of discipline only. While the case shows that the high court has a sick and funeral benefit department, the subordinate courts cannot participate in it, unless they are connected with that department by becoming contributors to that fund. Court Manhattan was not connected with that department, but had its own beneficial department as allowed by the rules. In such a situation, the law is settled that ordinarily the appeal must be first taken within the organization, before recourse can be had to the civil courts. Zeliff v. Knights, 53 N. J. Law, 536, 22 Atl. 63. The relator contends that this principle should not be applied to his application, on the ground that the irregularity of the hearing was so marked that no testimony or minutes were taken and hence there was no record upon which to appeal. But the case