Volume 33 — New Jersey Law Reports

In ejectment. On motion for a new trial. In 1784, Col. John Stevens became, by purchase from Cornelius Harring, agent for the sale of forfeited estates, the owner of a tract' of land containing five hundred and sixty-four acres, then in the township of Bergen, in the county of Bergen, upon which the city of Hoboken has since been built. Having in view the projection of a city on this tract of laud, Col. Stevens procured the making of a map by one Charles Loss.

Certiorari. In matter of road. This writ brings up for review the appointment and return of surveyors in vacating part of a public road laid out in 1855, in the county of Salem; also the certificate of freeholders, that such vacation was unnecessary, and certain rules of the Court of Common Pleas of the county, on motion to set aside the certificate of the freeholders, and to record the return of the surveyors.

This was a certiorari in a case of forcible entry and detainer, and was argued before Justices Elmer, Bedle, and Dalrimple, by A. C. McLean, for the plaintiffs in this court, and by W. H. Vredenburgh, for defendant.

Matter of practice. The issues joined in this case were tried at the circuit, in April, 1866, and a verdict having been rendered for the plaintiff, the judge allowed a rule to show cause why there should not be a new trial. A rule for judgment nisi was entered at June Term, 1866, and the defendants’ attorney entered the rule to show cause at the same term.

<p>In matter of public road.</p>

<p>In matter of taxation.</p>

This was a certiorari, bringing up an ordinance and other proceedings of the board of councilmen of the town of Bergen. The reasons assigned for setting aside the same were argued before Justices Elmer, Bedle, and Dalrimple, by I. W. Scudder, for the prosecutor, and W. H. Lewis, for the town, and are set out in the opinion of the court.

The reasons assigned for setting aside the return of a road, were argued before Justices Elmer, Bedle, and Dalrimple, by Mr. Pitney for the prosecutor, and Mr. Vanatta for the applicants for the road.

The above stated cause came on to be heard at a Circuit Court holden at Newark, in the county of Essex, at the Term of January, eighteen hundred and sixty-seven, before the Honorable David A. Depue, one of the Associate Justices of the Supreme Court, and a jury, upon the pleadings; upon which trial the following facts were proved.

<p>1. The authority to make and establish ordinances and regulations for regulating streets and sidewalks, granted to a municipal corporation by its charter, includes the power of determining the respective widths of the street and sidewalks, and how the space appropriated to both shall be apportioned between the two.</p> <p>2. The act of March 14th, 1851, entitled “ an act to provide for the construction of sidewalks along highways, for the accommodation of foot travelers,” (Nix. Dig. 751) does not apply to 'the streets of cities and towns, the charters of which confer on the corporation the authority to regulate streets and sidewalks, on the principle that the general legislation on a particular subject must give way to the special legislation on the same subject.</p> <p>3. A grant by the legislature to a municipal corporation of power to legislate by ordinance on enumerated subjects connected with its municipal affairs, is an addition to that power of making by-laws, which is incidental to the creation of a corporation.</p> <p>4. The seventh section of the supplement of March 15th, 1866, to the charter of the town of Morristown, provides for the appointment by the common council, by ordinance, of a commission composed of the town surveyor and four disinterested freeholders, resident in the town, to run, mark, lay out, and designate the lines and courses of the roads, highways, and streets within the said town, the lines of which have not been, and cannot be certainly ascertained. Held — that the functions of a commission appointed under this section were quasi judicial, and that an ordinance creating such commission to ascertain the lines of South street in said town, which provided that such commission should run, mark, and lay out South street according “ to the original survey thereof, recorded in the clerk’s office of Morris county, in Book A, page 17,” which survey was the return of a public road laid out by surveyors in 1763, delegates to the commission only ministerial powers, and is not in compliance with this section of the charter.</p> <p>6. By the act concerning roads, passed in 1760, (2 Nevill 347) a road four rods wide, which was found inconvenient or disadvantageous, was subject to alteration and regulation by twelve of the surveyors of the highways — six from the county in which the alteration was proposed, and six from the next county, chosen for the townships nearest the. line of the place where the alteration was to be made. Held — that after an user by the public of a road re-laid by surveyors called from different counties, as a road four rods wide, for upwards of a century, substantially in accordance with the lines of the road as thus re-laid, the court would presume that the surveyors, as thus organized, had jurisdiction in the premises, and that they conformed to the mode of procedure prescribed by the act, when their return contains on its face anything that the act requires to be inserted in it.</p>

On rule to show cause, &c. The suit was brought to recover $850, for two years’ service as a substitute for the defendant in the army of the United States. There was a verdict for the plaintiff. On the argument of a rule to show cause why the verdict should not be set aside, it was contended by the defendant, that the contract was fraudulent on the part of the plaintiff, and that the court would not lend its aid to enforce it.

<p>On certiorari to set aside ordinance, &c.</p>

<p>1. After the assessor has ascertained and set down the name of the owner and the real estate to be assessed, in the course of his duties in making the assessment, he is not obliged to substitute the name of a subsequent owner, even if requested before the time to complete the assessment has expired.</p> <p>[This was an assessment in 1860. The act of 1866 makes the assessment relate to the day when the assessor may commence.]</p> <p>2. The township or ward where the owner resides is the proper place to claim a deduction for a mortgage debt on real estate in another township.</p>

On verdict for plaintiff, and points reserved by the court. This was a suit on a promissory note drawn in Newark, in this state, by the defendants, payable to their own order at the Newark City National Bank, and endorsed by them. After its execution, it was delivered in Newark to a Mr. Havell, to procure the money on it for the defendants.

<p>In case. On verdict for plaintiff, and rule to show cause why new trial should not be had.</p>

This was an action of trespass for assault and battery. The jury, on the trial of the issues, rendered a verdict Tor the plaintiff. Exceptions were taken to the opinion of the court upon several points, and the case was brought into this court by writ of error. The matters excepted to and assigned for error are set out seriatim in the opinion of the court, and need not be otherwise referred to.

<p>On certiorari to Hunterdon Pleas.</p>

On motion to quash indictment. An indictment for bribery was found against the defendant in the Quarter Sessions of Hudson county, charging him with having wickedly and corruptly offered the sum of fifty dollars to a member of the common council of Hudson City, to vote for a certain application to lay a railroad track along one of the public streets of said city.

<p>This was a motion for a new trial. The point decided is intelligible without any prefatory statement.</p>

On application for a mandamus. At the last charter election of the city of Rahway, one of the councilmen of the second ward of said city was elected mayor, and thereupon resigned his office of councilman. Common council having failed to proceed and order an election to fill the vacancy thus created, the present application is made by a resident of the second ward, for a mandamus to compel council to appoint a special election to fill the vacancy.

<p>On application for a mandamus.</p>

In ejectment. Application was made to the court, by the defendants, (1) for permission to plead specially, in order to avail themselves of such title to the laud in question as they may have acquired under their charter; and (2) for liberty to deny, at the trial, that they were in the possession of the premises claimed, or of some part thereof, in such a manner as to subject them to an action of ejectment to recover the possession thereof; and (3) for an order, that the…

In case. On rule to show cause, &c. The declaration in this case contained only the common counts in assumpsit, for goods sold, work and labor done, money lent and advanced, money had and received, for interest and on account stated. The following bill of particulars was furnished by the plaintiff: Hugh Holmes to John Byard, Dr. Nov. 30, 1864. To money had and received by the defendant from the plaintiff^ for the use of plaintiff, $1000 Dec. 1,1864.

Demurrer to declaration. The plaintiff, in the first count of his declaration, alleged that he was the owner of a lot of land in Newark, and that the defendants, by a resolution of the common council, altered the grade of the street along said lot, and thereby caused the damage complained of, and which was specially set out.

Demurrer to pleas. The action was trespass for assault and false imprisonment.

On error to the Essex Circuit. The action was on a bail bond. The plaintiff proved the bond. He, also, proved the assignment of the bond by the sheriff to him, and that such assignment was made in the presence of two witnesses, it appearing, however, that only one of such witnesses subscribed the assignment as a witness. When the plaintiff rested, a motion was made to nonsuit, on the ground that the statute required two witnesses to the assignment.

<p>1. An indictment for extortion against a justice of the peace, must show with explicitness that the fees taken by the officer were greater than those allowed by law, it not being sufficient merely to allege that they were so.</p> <p>2. A justice of the peace, in criminal proceedings before him, has no right to demand or take any fees for his services, unless upon the conviction of the party charged: to do so prior to such event, would be a clear case of extortion.</p> <p>3. An indictment charged that a justice demanded and took for his services, in taking the examinations of witnesses on a criminal proceeding before him, a certain sum, alleging such sum exceeded the fees allowed by law, but did not state the length of such examinations, by which the fees are graduated, nor that such money was taken before the conviction of the offender, held insufficient.</p>

Action on the case brought, under the statute, by administrators and next of kin, to’recover damages against defendants for killing the intestate on their railroad, through negligence and want of care. The first count charged, in substance, that the defendants were owners of a certain railroad which was constructed upon and across a certain public highway (describing it), and owned a variety of cars and locomotives, propelled by steam, and used on said road.

<p>This was an action upon a policy of insurance against fire^ in which a verdict was rendered for the plaintiff.</p>

In case. On rule to show cause why verdict should not be set aside. The plaintiff brought suit against defendants, to recover an amount alleged to be due him on a certain article of agreement in writing between the parties, whereby the defendants, for a valuable consideration, agreed to pay to the plaintiff the sum of seven thousand dollars.

In trespass. On case certified, &c. This was an action of trespass quare clausum fregit, brought and tried in the Circuit Court of the county of Sussex. The principal question was as to the true location of the locus in quo. Much evidence was given on both sides, and the jury gave a verdict for defendants.

This was an action on the case for forcibly preventing a minister from preaching in the church, and occupying the parochial school house. Upon the trial, the following facts were elicited.

In case. On rule to show cause, &c. This action was brought to recover the amount of a check, dated March 28th, 1867, drawn by the defendants on the State Bank at New Brunswick, payable to Christopher Sheak, or bearer, for fourteen hundred dollars.

This was a motion to quash a return to an alternative mandamus.

On certiorari. In matter of proceedings to open Fifth street, in the town of Bayonne. The object of the writ was to have set aside the appointment of commissioners to open a street in Bayonne, on the ground that the proceedings were not in conformity with the act of 16th March, 1857, under which act the said street had been described and mapped.

<p>1. A mutual life insurance company was incorporated by the legislature, without any capital stock — held, that the company could not, by the mere force of a by-law, change from a corporation having no capital stock to one which has; such a by-law contravenes the policy of the eighth section of the act of 28th of March, 1862. Pamph. Laws 818.</p> <p>2. Where the commissioners of appeal in matters'of taxation adjudge, upon notice and hearing, that a certain amount be added to the assessment against an individual, there is no error on the part of the commissioners.</p>

<p>A bastard child, whose mother, before its birth, moved out of this state, and who, together with her child, has ever since continued to reside in another state, is not chargeable upon any township in this state.</p>

<p>Certiorari. In matter of taxation.</p>

<p>1. A service of a notice, under section 21 of the tax law of 1866, upon the prosecutor’s tenant, is not sufficient.</p> <p>2. The defect is not cured by the prosecutor’s attorney appearing before the commissioners of appeal and protesting against the legality of such service.</p>

In matter of quo warranto. A rule to show cause why an information in the nature of a quo warranto should not issue against the defendant, to inquire by what authority he holds and exercises the office of alderman of the city of New Brunswick, was applied for and allowed by this court, at June Term, 1868.

On certiorari to Mercer Pleas. The action was brought, originally, in a justice’s court to recover of the defendant the price of certain materials furnished to a contractor, and used by him in the erection of a building for the defendant. The judgment below was for the plaintiff, and was affirmed by the common pleas on appeal. The judgment of the pleas was brought before this court by certiorari for review. The facts of the case appear in the opinion of the court.

On the trial of this cause, in the court below, a verdict was given for the plaintiff. Several exceptions were taken to the rulings and charge of the judge, and the case was brought to this court by writ of error. The facts, as they appeared in evidence, and the points excepted to, are so fully given in the opinion of the court as to render any further reference to them unnecessary.

On certiorari to remove proceedings under city ordinance. The writ of certiorari, in this case, brings up for review proceedings had before the mayor of the city of Bridgeton, in action of debt; brought before him, in the name of the treasurer of the city, against the plaintiffs in certiorari, to recover a penalty of two dollars for the violation of an ordinance of the said city in relation to streets and highways.

<p>1. Where a road is laid out in two or more townships, the surveyors must certify the proportion of assessment by them made which shall be paid by the several townships in which said road.is laid out, notwithstanding the fifteenth section of the act of 1859. Nix. Dig. 841.</p> <p>2. The surveyors cannot assess any part of the damages of land owners in one township to the land owners in another.</p> <p>3. The assessment against land owners must be in proportion to benefits.</p>

In trespass. On motion to strike out plea. After the rule to show cause, &c., heretofore taken in this case oil the part of the plaintiff, had been made absolute, and a new trial ordered, (see 3 Vroom 369,) the defendant applied for leave to file an additional plea to justify the alleged trespass, on the ground that the fishery in the Zooms in quo had become a public fishery by dedication. The court granted leave, in order that the question might appear on the record.

This was a demurrer to the first two counts of the declaration. The action was in case, for obstructing Newark bay, to the special injury of the defendants.

This was a suit in covenant oh a lease. The wife of the plaintiff before her marriage was the lessee, and Cadwallader Sellers was the lessor and owner of the property.

The plaintiff in this case was non-suited on the trial at the Hudson Circuit, and the case was certified to this court for its advisory opinion, on a motion for a new trial.

On motion for new trial. The plaintiff was the owner of a tract of land in Plainfield, fronting for about four hundred and eight feet on Third street, to the centre of which his title extended. About fourteen years ago, the defendants took possession of the greater portion of this street for the purposes of their track, constructing the track in such a way that it could not- be crossed at this point, and cutting off access to the plaintiff’s lot along this street.

This was a writ of error to the Circuit Court of the county of Essex. William EL. Field took a lease for certain premises from John Mills, in which lease was the clause following, viz.: “ And I, William II.

On error to Mercer Circuit. This action was brought by Mrs. Giles to recover of the defendants, the Temperance Hall Association of Trenton, damages for an injury received by falling into an area or passage way leading to a cellar under the Temperance Hall, in the city of Trenton. The facts, as proved on the trial, were substantially these: In the spring of 1867, a course of medical lectures was being delivered in the large hall belonging to the Temperance Hall Association.

Case certified from Hudson Circuit Court. and rebuilding a fence, the fitting up of the basement or lower part of the building, and also repairing and refitting the building generally. This work was not all done by the plaintiff' but that was the character of the work he did. The jury found a verdict against both of the defendants, for the sum of one hundred and fifty dollars damages.

On rule to show cause why verdict for the plaintiff should not be set aside. The facts of the case appear in the opinion of the court.

On case certified, &c. This action was brought in the Passaic Circuit, by the father of a minor, to recover the penalty of three hundred dollars, from a clergyman, for having married the minor contrary to the act concerning marriages. The defendant plead that the cause of action did not accrue to the plaintiff within one year next before the commencement of the suit.

<p>On certiorari to remove an ordinance of the city of Hobo-ken, approved on the 20th of June, 1867.</p>

On rule to show cause, &c. This was an action on the case in the nature of waste, to recover carnages for permissive waste, tried at the Cumberland Circuit.

<p>1. Where the application was for a road to run “ a northwesterly and a northerly direction,” and the road as laid out contained thirty-site courses, all of them either northwesterly or northerly, excepting two, Held, that the variance was not material.</p> <p>2. If the application describes the road by its general direction, and not by strict course and distance, it is sufficient if the road laid out, taken as a whole, answers, substantially, the description in the application.</p> <p>3. The land of a married woman, subject to the provisions of the act of March 25th, 1852, having been taken for the road — Held, that the damages were rightly assessed to the wife alone, without naming the husband.</p> <p>4. If the surveyors have assessed to the land owner an amount equal, in their judgment, to the actual damages sustained by him, their assessment will not be reviewed on certiorari — the remedy in such a case being by application for the appointment of freeholders to review the assessment.</p> <p>5. But if it clearly appears that the assessment was not the result of a fair estimate of the actual damages, but was intended as merely nominal damages, because the surveyors regarded the land owner as an applicant for the road, when they had no right to do so, such assessment is bad, and the return will, for that reason, be set aside.</p>

<p>The authorities of the city of Trenton, in 1866, assessed against the prosecutor a poll tax of five dollars. The prosecutor showed that he came within the provisions of the act of April 5th, 1856. Held, First,' that the act of said 5th of April, 1866, was not unconstitutional as impairing the obligation of contracts; and secondly, that it was not repealed by the thirty-second section of the act of the. 11th April, 1866.</p>

<p>Certiorari. In matter of taxation.</p>

This was a case certified from the Circuit Court of the county of Morris. The facts were these: Under a plea of payment, and notice of’set-off, the defendant offered a promissory note, made to him by the plaintiff, and the plaintiff, in disproof of this claim, introduced evidence to show that the consideration of the note was certain chattels transferred to the plaintiff by the defendant, for the purpose of hindering or defeating the creditors of the defendant.

On certiorari, &c. This certiorari brought up the proceedings of commissioners condemning certain lands of the prosecutors for the use of the Central Railroad Company. The circumstances were these: By an act of the legislature, approved February 9th, 1831, the Elizabethtown and Somerville Railroad Company was incorporated. This company was authorized to take the land necessary for the construction of their road, not exceeding sixty-six feet in width.

On demurrer to the plaintiff’s declaration. Charles Davis, on the 10th of November, 1857, sold and conveyed to one Thomas M. Newbold, a tract of land situate in the county of Union, by deed of conveyance containing the usual covenants. On the 21st of December, 1859, New-bold conveyed the same premises to Edward N. Kellog.

This was a suit on a certiorari bond, the condition of which was in the language prescribed by the act relating to the justice’s court.

On demurrer to plea. This was a suit on a bond of a township collector. One of the breadles assigned was the non-payment of certain moneys which liad Ivan collected by the officer. To this the defendants pleaded that the collector, having the moneys in question in his dwelling-house, the same were feloniously stolen therefrom, by burglars, “ without any negligence, want of due care or other blame or fault whatever on the part of the said collector.” This plea was demurred to.

The writ of habeas corpus in this case, having been made returnable before Mr. Justice Bedle, and the case having been by him referred to this court, it was heard at this term, in banc, before Beasley, C. J., and Justices Bedle, Dalrimple and Depue. The facts sufficiently appear in the opinion of the court.

<p>1. The act of the legislature of March 11th, 1868, entitled “ an act to amend an act to incorporate the town of Union, in the township of Union, in the county of Hudson, approved March 29th, 1864,” and which act, after reciting an ordinance made by the councilmen of said town of Union, entitled “ an ordinance to authorize the construction of a sewer in the Hackensack plank road, from a point one hundred feet westerly of the Bergen line road, to a point three hundred and sixty feet easterly from Durar street,” passed April 30th, 1866, validates the said ordinance, and all the proceedings had under it, as fully as if every provision of the town charier had been complied with, and provides that no certiorari shall be had or maintained to set aside the same.</p> <p>Held — not to be void tinder that provision of our state constitution which directs that every law shall embrace but one object, and that shall be expressed in (he title.</p> <p>2. The unity of the object must be sought in the end which the legislative act purposes to accomplish, and not in the details provided to reach that end.</p> <p>3. The degree of particularity which must be used in the title of an act, rests in legislative discretion.</p> <p>4. There are many cases where the object might, with great propriety, be more specifically stated, yet the generality of the title will not he 1’alal to an act, if by fair intendment, it can be connected with it.</p> <p>5. Enactments which dispense with the use of formalities not essential to the jurisdiction of courts, and which validate proceedings had by municipal corporations under their charters, notwithstanding irregularities apparent, in them, have frequently received judicial sanction.</p> <p>6. Such enactments, even if made pending judicial proceedings, are not unconstitutional.</p>

<p>On case certified from Morris Circuit Court.</p> <p>In matter of costs.</p>

On motion for peremptory mandamus. On the hearing of this motion it was agreed that the following state of the ease should be taken as a return to an alternative mandamus. 1. By section fourth of the act of February 28th, 1865, (pro ut the same) ratifying the issuing of war bonds by the county of Essex, (Pamph.

In case. On rule to show cause why verdict for the plaintiff should not he set aside. Two grounds were relied on for setting aside the verdict: 1. That the suit could not be sustained by the plaintiff, as receiver of the Cataract City Bank, the same not being, and never having been, a lawful corporation ; and 2. That the verdict was for a greater sum than the amount due.

On demurrer to a return to a writ of mandamus. For the facts of the case and former proceedings had on it in this court, and also in the Court of Appeals, vide ante p. 173; and also 3 Vroom 134, 441, 566; S. C. nomine Person, Treasurer, &c., v. The Warren Railroad Company.

On motion to amerce the sheriff of Middlesex county. An alias fi. fa. having been issued in this case, January 29th, 1868, returnable to the February Term, 1869, of this court, was received by the sheriff of Middlesex, January 31st, 1868, and a levy and inventory made by him the same day, on property then supposed to belong to the defendant in execution.

In assumpsit. This case came before the Circuit Court of the county of Hunterdon, and was argued upon the following statement, of facts, agreed to by the parties: Elizabeth Horner, the plaintiff, married Joseph B. Horner in 1853. Joseph B. Horner departed this life in August, 1864, having first duly executed his last will and testament, by which he appointed Abel Webster the sole executor thereof.

This was an action of assumpsit, brought by the defendant in error against the plaintiff in error, to recover the value of a bill of timber alleged to have been sold to the defendant below. Brown was the contractor for building a bridge for the Central Railroad Company of New Jersey, over'Newark bay.

<p>The act of April 2d, 1866, supplementai-y to “an act to authorize the township of Princeton to raise money by taxation, and to issue bonds to pay the indebtedness incurred in' filling the quota of said township,” passed March 22d, 1865, so far as it related to assessments made and completed under the original act, and for the collection of which the duplicate had gone into the hands of the collector, before the passing of the said supplement — held inoperative and void, so far as the prosecutors were concerned.</p>

In case. Error to the Supreme Court. The plaintiff complained and set forth, in substance, that the defendants were owners of a certain railroad which was constructed and laid upon and along a certain public street of the city of Newark, known as the New Jersey Railroad avenue, which street is intersected by a large number of other public streets of said city, and in and upon which said street a large number of other streets open, and across which said avenue it is necessary…

<p>1. Where a deposition is taken before a master in chancery in this state, in the presence of the counsel of the parties, the court will infer from his certificate that the witness was duly sworn — that the witness was sworn in accordance with the requirements of the statute authorizing the taking of depositions.</p> <p>2. That the witness, who was the plaintiff) during his cross-examination, conferred with his counsel privately, notwithstanding the objections of the opposite counsel, will not make his deposition incompetent evidence; it is a circumstance that goes only to his credibility.</p> <p>3. In an action to recover damages for personal injuries sustained by the negligence of the defendant, whereby the plaintiff, who was an architect, was incapacitated from pursuing his business, evidence of the nature and extent of his business is competent to go to the jury, not as furnishing a measure of damages, but to guide them in the exercise of that discretion as to the amount of damages which, to a certain extent, is vested in a jury in such cases; and for this purpose, it is competent to inquire of him as to the average annual income he has realized from his business.</p> <p>4. The plaintiff in an action for injuries resulting from the negligence of the defendant, is not bound, as part of his case, to show affirmatively that the injury was not occasioned or contributed to by any negligence on his part.</p> <p>5. But if it appears by the plaintiff’s evidence when he rests his ease, that his own negligence contributed to the injury for which he sues, it is the duty of the court to non-suit, and in such eases a writ of error will lie for the refusal to grant the non-suit.</p> <p>6. To conclude a plaintiff from maintaining an action to recover damages for injuries occasioned by the negligence of a defendant, on the ground that the iujury was contributed to by his own conduct, it must appear that the plaintiff’s conduct was negligent, and that his negligence contributed to the injury in such a manner, that if he had not been negligent, lie would have received no injury from the negligence of the defendant.</p> <p>7. If the injury was contributed to in this sense by the plaintiff’s negligence, (he comparative degrees of the negligence of the parties is immaterial. If the injury was occasioned in any degree by the plaintiff’s own negligence, he is without redress, unless the act of the defendant amounted to a wilful trespass or intentional wrong.</p>

The plaintiff declared against the defendant as follows : Somerset county, ss. — Reuben A. Drake, the defendant in this suit, was summoned to answer unto David H. Mount, the plaintiff, in a plea of trespass on the case; and thereupon the said plaintiff, by J. F. Hageman, his attorney, complains of the said defendant— For that, whereas the said plaintiff heretofore, to wit, on the eighteenth day of August, A. D. eighteen, hundred and sixty-five, at the township of Franklin,…

Tlie writ of error in this case was returned to the June Term, 1865, and was brought to review the judgment of the Supreme Court, in a matter of taxation, rendered at the Term of February, 1865. The prosecutors, by their attorney, assigned errors for the reversal of the said judgment, as follows : 1.

These cases were tried together below, and were argued together here. They were previously before the Supreme Court on a rule to show cause why a former verdict in favor of the plaintiffs should not be set aside. On the hearing of that rule, a new trial was granted. The opinion of the Supreme Court will be found in 2 Vroom 182.

<p>On writ of error to the Supreme Court.</p>

This was a writ of error brought upon a judgment of non-suit.

Tills suit was brought in the Supreme Court to recover from the defendants the sum of two thousand dollars, on a certain policy of insurance issued by them on the 8th of March, 1864, insuring the life of Anna M. Catoir, wife of the plaintiff, for the term of her natural life.

The suit was brought by the plaintiff to recover of the defendants, executors of Doct. John H. Woodhull, deceased, compensation for alleged extra services rendered by the plaintiff in the testator’s lifetime. On the trial of the cause at the Mercer Circuit,-— Term, 1868, the court, upon the evidence offered by the plaintiff, directed a judgment of non-suit to be entered against her.

Writ of error to the Circuit Court of the comity of Middlesex, returnable to November Term, 1850. John Blean, the lessor of the plaintiff, claimed the premises in question as the heir-at-law of his father, Thomas Blean.

<p>This was a motion to dismiss the writ of error.</p>

<p>1. In a suit brought for injury received in an affray or personal combat between two parties, it is proper to show the attending circumstances. They often affect and characterize the transaction, and as such are part of it, though not the act of either party. It was material to show whether the defendant when attacked was alone or surrounded by persons who could aid him if his life or personal safety were in peril, and whether those persons, or any of them were friendly to him, and declarations made by them at the time were proper evidence on that point. In such ease it is proper to show that a bystander interfered by act or speech — and proving the act or speech is proving- such interference. But the proof is only proof of the fact that, the words were spoken, and not of the truth of anything as stated in them.</p> <p>2. The question how did the plaintiff appear — did he appear sober or otherwise, was proper. It is not a question that requires an expert. It is one of that class, the answer to which depends upon facts observed, and the inference from them, where they are so connected that they cannot be separated.</p> <p>S. The statute requires that all persons licensed in this state as physicians or surgeons, shall be skilled both in medicine and surgery, and in anatomy, and the physician who was examined on the trial was therefore competent as an expert, to give an opinion in answer to the question propounded, “How could such injury be prevented ?”</p> <p>4. False representations, by third persons, of threats, not sworn to by the plaintiff, could not justify the defendant in putting out the plaintiff’s eyes, in an affray, when it was not required for his own safety ; nor could they mitigate the damages. The testimony was properly rejected as irrelevant.</p> <p>5. It is the right and duty of a judge to comment upon the evidence, and in cases where he thinks it required, for the promotion of justice, to give his views upon the weight of it, provided he leaves it to the jury to decide upon their own views'of it.</p>

The defendant had purchased, in connection with another party, a certain tract of land situate in Pennsylvania, in the district known as the Petroleum Oil Territory. Proposing to form an oil company, he applied to the plaintiff and solicited him to become a member. The defendant represented that the original cost of the land was $28,000, and that the scheme would require a working capital of $4000, making the amount of immediate investment $32,000.

The Supreme Court reversed the judgment of the Circuit Court of the county of Morris, upon exceptions taken to the charge upon the trial. The action brought by Freeman was an action on the case for tearing down and taking away the buildings on his premises, of which Headley was in possession under him.

This action was brought by Lucius Tuckerman and others, plaintiffs below, against the Stephens and Condit Transportation Company, for… Held: in this very case, when it was before them, upon substantially the same evidence on this particular point, that the defendants were common carriers not only between Newark and New York, but that they were common carriers over the whole route of this employment from Newark to Saugerties, and that their liability to the plaintiffs to…