Volume 34 — New Jersey Law Reports

On case reserved. This was an action of replevin, the property replevied consisting of two mules.

Case certified from the Circuit Court of Hudson county. This was a suit founded on a lien-claim. The work was done by the plaintiffs for the defendant, Burns, who was the builder. McCabe and wife were described in the lien-claim as the owners in fee. It was proved that the property had been conveyed to them in fee, by deed in the ordinary form, bearing date October 21st, 1858. It also appeared that the lien-claim was regular in form, and bad been duly filed.

On case certified by the Circuit Court of the counfy of Union. The controversy arose on a motion to set aside an award.

<p>1. A public street may be laid over lands already dedicated by the owner to the public for the purpose of a street, — especially when the owner has united with others in an application that the same may be taken and adopted as a part of a street or avenue, to he continued at either end of the street so dedicated.</p> <p>2. The dedication does not exempt the owner from paying his due proportion of the costs and expenses of operating the avenue.</p> <p>3. A prosecutor will not be allowed to dispute, on certiorari, the validity of an ordinance to open a street, which was obtained by his aid, and in which others are largely interested and have incurred expenses on the strength of it.</p>

<p>On the 10th of March, 1868, the mayor and common council of Jersey City passed a resolution in the following words : “Whereas, Jersey City, with a population of nearly forty thousand inhabitants, does not possess or own exclusively any dock, wharf, or pier fronting the waters surrounding Jersey City; and whereas, in and by a report made to the common council December 8d, 1867, it is therein expressed that the wharves constructed at the end of and over the streets of the city to tide water, are, by reason of their location, free to public use and travel; and whereas, such wharves are controlled and monopolized by private parties, to the exclusion of the public therefrom ; therefore, Besohed, That the committee on streets and public health, and the street commissioner, are hereby authorized and instructed to remove, without delay, all obstructions from the docks, wharves, and piers constructed over the streets of Jersey City to tide water, to enable the free use of such docks, wharves, and piers to the public.” The associates of the Jersey City Company, the plaintiffs, claimed right in the-property referred to in the resolution under grant from Cornelius Van Vorst — the New Jersey Bailroad and Transportation Company holding under them. The defendants, the mayor and common council of Jersey City, claim under an alleged dedication of the streets to the tide water, and, by reason of the location, that the streets and wharves-were free for public use, and that, under authority of their charter, they had power to remove all obstructions from the docks, wharves, piers, &e., erected oyer the streets to tide water, according to the resolution above set forth.</p> <p>On certiorari, brought to set aside the resolution, the court held—</p> <p>1. That as it appeared by the defendants’ own showing that the city was not in the exclusive possession of the streets and of the docks, wharves, and piers from which obstruction was sought to be removed, and that the plaintiffs were in possession, claiming right to the same as private property, and that the enforcement of the resolution might involve questions of right and title between the parties, and the nature and extent of easements and of alleged dedications made to the public, the party complained of was entitled to notice, and to have his rights determined by process of law.</p> <p>2. The power to remove obstructions from public streets, as given to the common council by the sixtieth section of their charter, is only a police ministerial power to prevent and relieve the public from such obstructions in the enjoyment of their streets as are apparent and readily ascertainable without the necessity of any adjudication. It does not extend to cases of a doubtful or uncertain nature, and which require to be first lawfully determined.</p> <p>3. Nothing in the defendants’ charter can interfere with or impair the vested rights and privileges of any person or corporation whatever, except as to property taken for public use upon compensation, (g 79.)</p>

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

<p>1. The prosecutor, being called on'by the assessor of his ward, and furnished with a blank to be filled up with the particulars of bis property, under oath, told the assessor that he would see bis attorney, and if it was right, &c., ho would fill up the blank and return it to the assessor’s office ; held — that the assessor, hearing nothing further from the prosecutor, was justified, by the provisions of the eighth section of the tax law of 1866, in assessing bis property at its highest estimated value.</p> <p>3. The commissioners of appeal could not lawfully reduce the assessment thus made without being satisfied that the prosecutor did not refuse to be sworn, &e., nor unless he satisfactorily proved what was the true value of all his taxable property.</p> <p>8. The seoond section of the act of March 26th, 1852, does not require this court to decide, in the first instance, whether the estimate of the assessor was too high or not.</p> <p>4. This being a mere question of value, depending upon evidence, will not he entertained here, except by way of review, after appeal to the commissioners and their judgment upon it.</p>

On case certified from Monmouth Circuit Court. The defendant, Stillwell, on the 15th of February, 1860, entered into an agreement with the plaintiff, Conover, and one John S. Conover, to sell and convey to them certain real estate in the-county of Monmouth, a portion of the consideration of which was to be paid in cash, and the residue to be secured by a mortgage on the' premises.

On certiorari. In matter of taxation. STATEMENT OE CASE AGREED ON BY COUNSEL. “ The firm of ‘ Whitall, Tatum & Co.’ have their principal place of business in Philadelphia, where they have storehouses, &c., being partners in the manufacturing and sale of glassware, &c.; and own large factories in the city of Millville, Cumberland county, New Jersey.

<p>1. Under the tax law of 1866, property owned in partnership is liable to be taxed in the same way as other property.</p> <p>2. Whether the assessment be against the partners individually or against the firm as such, the whole partnership property is to be assessed at its full value; and no deduction can be allowed from such valuation unless the individual desiring the deduction shall make and sign and deliver to the assessor a true statement in writing, under oath or affirmation, of the several debts which he desires to have deducted, to whom owing, and where the creditor resides.</p>

<p>1. The special act passed April 11th, 1867, to enable the school trustees of West Hoboken school district to purchase land, and to erect a school-house thereon, prescribing the manner of paying for the same, and repealing all acts inconsistent therewith, supersedes the eightieth section of the general school law, and makes void all proceedings under it to levy a tax on said district to pay for said land and schoolhouse.</p> <p>2. These two laws relating to the same subject matter, and conferring similar powers to be exercised by the same persons, but differing in the mode of payment and assessment, are variant and inconsistent.</p> <p>3. Both by the express terms of the later law and by necessary implication, the former law is repealed to the extent of the repugnancy.</p> <p>4. The school trustees cannot proceed under both the special law and the general law, or abandon the former and resort to the latter, in building and paying for the school-house.</p>

<p>Assessments for taxes must relate to the day in each, year when, by law, the assessment is to he commenced.</p>

<p>1. The prosecutors are taxable in the form prescribed, by their charter, and not under the general tax law of 1866.</p> <p>2. The tax law of 1866 excepts from its operation every corporation which, by the terms of its charter, is expressly exempt from taxation,, whether such charter is irrepealable or repealable, in the discretion o£ the legislature.</p>

On rule to show canse why the verdict should not be set aside. The plaintiff sought to recover damages against the Aefendant for obstructing a by-road in the county of Morris, which plaintiff alleged he had a right to use. There was a verdict for defendant, which the plaintiff now seeks to set aside. The principal question involved was, whether the by-road had legal existence, as claimed by the plaintiff.

<p>In case. On rule to show cause why verdict for the plaintiff should not be set aside, and a new trial granted.'</p>

In debt. On demurrer to declaration. The action was brought upon a bond given by defendants to the plaintiffs for the payment of a debt contracted in building a vessel in East Newark, in this state, which debt was a lien on said vessel, according to the provisions of the act of this state entitled “ An act for the collection of demands against ships, steamboats, and other vessels.” Nix. Nig. 576.

<p>On certiorari to remove and set aside an ordinance of the city council of Atlantic City.</p>

On rule to show cause, &c. This causo was tried before the Circuit Court of the county of Somerset. For the purposes of the trial, the judge who presided charged that the plaintiff was entitled to recover. The questions in this court arose on a rule to show cause. The facts sufficiently appear in the opinion delivered.

On the 15th of March, 1866, Nathaniel O. Carpenter and Patrick Long entered into the following articles of agreement, viz., “Articles of agreement made and entered Into on the 15th of March, 1866, between, &c., in manner and form following: The said party of the first part, in consideration of the sum of $100 by him duly paid, hereby agrees to sell unto the said party of the second part, all that certain piece or parcel of land, with the two story dwelling-house thereon,…

On certiorari. In matter of taxation. The company was incorporated 13th of February, 1866, by the name of the United States Casualty Company, for insurance against death, casualties, &c., with a capital of $100,000. By the charter, the whole capital stock was to be vested in securities of the United States or state of New Jersey and deposited with the state treasurer. This was done, and • the deposit made 3d of April, 1867.

<p>Lands and real estate acquired and held by the corporation of Jersey City, under the act to authorize the construction of works for supplying Jersey City and places adjacent with pure and wholesome water, and its supplements, although not in actual use, are exempt from taxation, if not held for speculation or to meet a remote, contingent expectation of necessary use, or mere incidental convenience, hut are held in good faith, and are reasonably necessary to meet the increased and growing demand for water.</p>

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

<p>1. Whether a regulation of an incorporated company is reasonable and therefore valid, was held by this court in Ayers v. M. & E. It. B. Co., 5 Butcher 393, to be a question for the jury, and not for the court, and that decision will be followed by this court.</p> <p>2. The rule is in opposition, apparently, to the more recent authorities, and the rule will probably, before long, be reviewed in the Court of Errors. Per Beasley, Chief Justice.</p> <p>3. An agent of a railroad company cannot expel a passenger from a ferryboat for a violation of the rule of the company requiring such passenger to deliver his ticket at a certain gate, without first notifying such passenger that unless he leaves the boat such an extreme measure will be resorted to.</p>

The declaration in tbis case stated that on August 1st, 1863, the New Jersey Locomotive and Machine Company were in possession of a mill, and water power, which drove the main shaft in said mill; that for a certain rent said company demised and let to Thomas N. Dale and others, the two upper rooms in the said mill, together with the motive power to be taken from the said main shaft, and used in the «aid rooms of a certain designated quantity; also, a building •or shed on…

The substance of the declaration in this case was as follows, viz.: 1. That “ The New Jersey Locomotive and Manufacturing Company” were in possession of a certain mill at Paterson with a right to the use of three square feet of water under a head of twenty-one inches, which water was applied to a water-wheel, and which water-wheel drove a shaft in said mill, called the main shaft, from which the power was transmitted to various parts of the mill. 2.

This was a suit brought by an administrator, to recover damages for the death of the intestate, occasioned by the negligence of the defendants. It appeared at the trial in the Hudson Circuit that the railroad of the defendants ran through their depot yard at Jersey City, and thence was projected over the water on trestle-work for about two hundred and fifteen feet. From this extension of the track, the cars were unloaded into boats.

<p>In replevin. On rule to show cause, Ac.</p> <p>The facts are set forth in the opinion delivered.</p>

On cerliorari to remove resolution, On the 28th of June, 1869, the following resolution was adopted by the mayor and aldermen of the city of Paterson, viz.: “ Whereas, the city charter does empower the mayor and aldermen of the city of Paterson to purchase grounds whereon to build a public market; therefore, be it “Resolved, That the mayor and aldermen of the city of Paterson, deeming it right and expedient that the city should own a public market, this board do now, in…

The writ brings up a- conviction of the plaintiff for violating an ordinance concerning weigh-masters and measurers. The facts are sufficiently set forth in the opinion of the court.

<p>Certiorari to remove and set aside assessment of poll tax, made in the city of Newark.</p>

<p>Commissioners Paving been appointed by a judge of tbe pleas, to examina tbe road of defendants, reported that tbe road was not in such condition as was required by the charter, and tbe gates were thereupon ordered to be opened to the public. A subsequent order directing the gates to be closed, and setting forth that the judge in making the same, acted on his personal inspection and on the affidavit of a competent witness, and showing substantially that the road had been repaired, will be sustained, although no notice was given of the application for such subsequent order, there being no cause pending or parties litigant.</p>

<p>In case. On rule to show cause.</p>

<p>1. A note fraudulent in its inception cannot bo invalidated in the hands of a party taking it for value, before maturity, unless actual fraud can be shown in such party so taking it.</p> <p>2. That snob note was taken under suspicions circumstances wiD not avail to defeat it, unless such circumstances are sufficient to prove mala fldes in the holder of the paper.</p> <p>3. Mere carelessness in taking such note will not, of itself, impair the title; but carelessness may be so gross that bad faith may be inferred inmii _</p>

On demurrer to return made to writ of mandamus. After judgment for defendant on the demurrer, vide 4' Vroom 473, the town of Belvidere applied for and obtained a writ of mandamus (alternative) against the defendants, requiring them to pay the said tax and the interest thereon,, (being twelve per cent, by the statute,) or show, cause, &c. The defendants made return to the writ, setting forth, sundry reasons why it should not be made absolute, the-principal of which were —…

Upon conviction for assault and battery. The defendants were tried at the December Term, 1869, of Passaic Oyer and Terminer, of an assault and battery on Frederick Meller. There being no disputed facts in the case, the court directed the jury to find a formal verdict of guilty, and suspended sentence to obtain the advisory opinion of this court upon the legal questions raised and submitted on the trial.

On rule to show canse why verdict should not be set aside. The facts of the case and the grounds relied on for setting aside the verdict appear in the opinion of the court.

<p>The Circuit Court of Middlesex made an order for the application of proceeds of sales made by the sheriff in virtue of two executions, the older one issuing out of .the said circuit, and the younger out of this court, and decided that a chattel mortgage given upon the property sold was invalid as against subsequent judgment creditors. Held—That the Circuit Court, out of which the first execution issued,"had exclusive jurisdiction to determine the application of the proceeds of the sales, and that this court could not, in virtue of its supervisory powers over other tribunals, review such decision.</p>

<p>On demurrer to first count of declaration.</p>

In trespass. On demurrer to replications. The facts on which the questions in this cause arise are given in the opinion of the court.

On certiorari. In matter of assessment for paving and improving sidewalks, &c. The writ in this case brings before the court an assessment made in virtue of an act of the legislature of April 1st, 1869, by tbe township committee, on the owners o? property *TO the different districts of the township of Montclair, in the county of Essex, for the improvement of streets, sidewalks, &c., on application made to them according to the provisions of the act.

<p>1. The act of the 15th of April, 1868, entitled “A further supplement to-the act entitled ‘An act to revise and amend the charter of the city of Newark, approved March 11th, 1857/ ” the first four sections of which refer to an assessment theretofore made by the defendants, for certain improvements made in said city, and which, on account of certain informalities and defects in the proceedings, could not be collected, and provide for a new assessment, in a manner therein set forth, and for other assessments of a like character; the fifth section confers certain powers upon the common council, in reference to laying out and opening streets and squares, and the sixth section fixes the time within which the tax lists shall be delivered to the receiver of taxes and auditor of accounts, and requires the receiver of taxes to deliver to the city treasurer the list of taxes, after the final returns of the collector of arrears shall have been made in each year—</p> <p>Held — -That the act had but a single object, which was to make an amendment or addition to the city charter, whereby certain defects found to exist therein might be remedied; that the object was sufficiently expressed in the title, and the act does not contravene that section of the constitution which providres that every law shall embrace but one object, and that such object shall be expressed in the title.</p> <p>2. The act does not attempt to render valid the former assessment, which this court had declared illegal, and had set aside. (Vide 1 Vroorn 303.) It leaves that judgment untouched, and orders a new and independent assessment to bo made, and is not in conflict with the judicial power of tlie goverpment.</p> <p>3. Nor is in conflict with the principles settled by the Court of Errors and Appeals, in the case of The Tide Water Company v. Coster, 3 C. E. Green 578.</p>

<p>In assumpsit on a policy of insurance against loss by fire. On motion to strike out pleas.</p>

<p>On motion to strike out return to a writ of alternative mandamus.</p>

<p>1. The owner of a certain farm of two hundred and ninety aeres of land, of which two hundred and twenty acres were in the township of Woodbridge, and seventy acres in the city of Rahway, on which was the dwelling-house and curtilage, occupied by tenants who had no connection with the farm, which was cultivated by one Price, who lived in a small tenement on part of the seventy acres in the city of Rahway, and who received for his labor and services, as farmer, a certain share of the product of said farm, (the owner living on other premises, in the township of Woodbridge,) cannot be taxed in the city of Rahway for the entire farm, but only for the dwelling-house and curtilage.</p> <p>2. A contract between the owner of lands and a third person, that the latter shall work the farm on shares, is not a lease, and does not create the relation of landlord and tenant.</p>

<p>Prosecutors should not be allowed to defeat, by writ of certiorari, the laying of a public road, when it is not shown that any substantial injury has been done, nor that there is, or ever was, any real ground of objection which could have been interposed to the application.</p>

<p>On certiorari, to remove and set aside an ordinance of the common council to abate a nuisance.</p>

Certiorari, to set aside appointment of commissioners to assess damages to ferry-owners, by building a bridge- over the Delaware.

<p>Matter of practice. On motion to set aside judgment and execution for costs.</p>

<p>Case from Circuit Court of Monmouth county for advisory opinion of this court.</p> <p>Argued on written briefs, by</p>

On certiorari, to the common council and water commissioners of Jersey City, to remove and set aside an assessment made for expense of constructing a sewer.

<p>1. The charter of the Central Eailroad Company required them to construct a suitable bridge over any navigable water that they might cross, and required that such bridge should be “located ata point convenient for navigation.”</p> <p>Held — That in the absence of any allegation of the want of care or good faith in the selection of the location of such bridge, the company were not liable at the suit of a party who complained of damage from an alleged mislocation of such bridge.</p> <p>2. Such charter further required that such bridge should be constructed “with a pivot draw with two openings, each of sdventy-five feet in width, at right angles to the main channel.</p> <p>Held — That an averment in a declaration in the following, words, viz., “and although they did construct said bridge with two openings therein, yet they did locate said openings in said draw in a manner not at right angles to the main channel,” did not show any breach of duty, inasmuch as the openings referred to might have exceeded in width those mentioned in the charter.</p>

On demurrer to- pleas. This was an action of debt, founded on a New York judgment in favor of the plaintiffs against the defendants. The declaration contained a count on the judgment, and also the common counts.

On case certified. This was an action to recover damages for the breach of an oral lease. The case certified to this court sets forth in substance these facts: that the defendant, at the time of making the alleged lease, was not the owner of the premises, but had -entered into a written agreement to take them of the owner at a certain price, under a penalty of $500; that these facts, at the time of renting the premises, were known to the plaintiff.

<p>On demurrer to declaration.</p>

<p>In debt. On- demurrer to declaration.</p>

<p>1. The remedy by audita querela having fallen into disuse, the practice has been adopted of giving relief on summary application, when the person or property of a bankrupt is taken under process issued on a judgment recovered before the discharge, and upon which the discharge operates; and the remedy is in the court out of which the execution issued. But the court will not discharge without giving the plaintiff an opportunity to show that the discharge is inoperative as against his debt, and will, in its discretion, determine the question on affidavits, in a summary maimer, or direct an issue to ascertain the facts.</p> <p>2. It is questionable whether, under the bankrupt act in force in the United States, the validity of a discharge may be assailed in the court in which it is pleaded, on the ground that it was fraudulently obtained ; but the creditor may show, in answer to a defence of bankruptcy, that his debt is such that it is not affected by the discharge— as that it was created by fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character.</p>

<p>1. The writ of mandamus can be invoked only where no other adequate remedy exists to prevent the failure of justice.</p> <p>2. A school teacher who has rendered services according to the require • ments of the school law, and is refused compensation out of the fond specially provided for that purpose, is entitled to this writ to compel the proper officers to perform their duty, and make payment of what is justly due.</p>

<p>On motion to set aside judgment.</p>

<p>A tax levied by the authorities of Jersey City on the boats of the New Jersey Railroad and Transportation Company, used for the transportation and ferriage of passengers and merchandise from the terminus of their railroad on the Hudson river, to and from the city of New York, and used as part of a through railroad route between Now York and Pennsylvania, and being part of the property of the company represented by its capital stock, is in violation of the chartered rights of the company, and must be set aside.</p>

The defendants, Bunn & Barber, made a written agreement with George C. Davis to build a house for him in Bordentown, Burlington county. They contracted with the plaintiff, William Robins, to paint the house. On September 20th, 1866, George C. Davis died, before the house was-accepted, leaving a widow and several children surviving him.

On certiorari to set aside assessments. The defendants were appointed commissioners for improving Bergen Wood road, in the county of Hudson, by an act of the legislature approved April 9th, 1868. Acts of 1868, 904. Supplements were passed to this act on the 2d of April, 1869, (Acts 1869, 1294,) and on the 17th of March, 1870. Acts 1870, 861. The writ of certiorari in this case wás sued out by the prosecutors to set aside the proceedings of these commissioners.

On certiorari to .remove the judgment of a justice of the peace, rendered in favor of the plaintiff for $1,265, the amount of fees claimed. It was insisted on part of the defendant below that the act under which the recovery was had was unconstitutional and void, because— 1. It was a regulation of commerce. 2. It authorizes an impost or duty on imports and exports | and— 3. It lays a duty on commerce.

<p>On the hearing of an appeal, it appeared that a materia] witness, who had testified in the court below, had left the slate, and could not, after diligent search, he found, nor his residence ascertained; held, that proof of what the witness had sworn to before the justice was not competent evidence on the appeal.</p>

<p>1. When, upon an appeal taken, the justice has neglected to certify his transcript, the appellant is entitled to a rule upon him to amend.</p> <p>2. If the appellant has been prevented from obtaining such rule through surprise, and without any fault of his own, in consequence of which his appeal has been dismissed, a mandamus will issue to the court below, directing that the appeal be reinstated. i</p>

<p>1. An entire contract is a contract the consideration of which is entire on both sides. A contract to pay a gross sum for a certain definite consideration is an entire contract, and is not apportionable.</p> <p>2. A contract to pay §16 for a month’s service is as entire in its consideration, as a contract to pay a certain sum for a single chattel or for a specified number of chattels.</p> <p>3. The reservation of wages, payable monthly or weekly, will not control the contract so as to destroy its entirety, when the parties have expressly agreed for a specified term — as a year; but if the payment of monthly or weekly wages is the only circumstance, from which the duration of the contract is to be inferred, it will be taken to be a hiring for a month or a week.</p> <p>4. Where a servant, whose wages are due and payable periodically — as quarterly, monthly, or weekly — refuses to serve in the manner contracted for, or is rightfully discharged at any intervening period between the days when his wages are due, he can recover nothing for that portion of time during which he has served since the last periodical payment of wages.</p> <p>5. This court cannot, on certiorari., re-try the case on its merits, or decide on the weight of evidence. If there is legal evidence before the court below, upon which this judgment may be supported, this court will not reverse such judgment.</p>

In case. On the trial of this cause at the Hunterdon Circuit, a verdict was taken for the plaintiff, subject to certain points reserved to be heard at bar. These points are clearly presented in the opinion of the court, and were argued in the presence of Beasley, Chief Justice, and Woodhull, Scudder, and Bedle, Justices.

On certiorari, in matter of assessment. The prosecutor owns a lot and house in the city of Trenton, assessed at $12,500 by the authorities of the city. During the year 1869 he made improvements in the internal arrangements of his house, and changed the roof from a gable to a French roof. No lateral extension was made, nor were the walls altered, except for a bay window on the west side.

<p>1. When, in action of trespass, brought in a court for the trial of small causes, the defendant pleads liberum tenemenlum, and suit is thereupon brought in the Supreme Court, the defendant is not confined to precisely the same plea filed before the justice, but is al liberty to file in this court any other plea which only sets np, by way of defence, title to real estate. If he relies in this court on “ title by way of justification,” it is sufficient.</p> <p>2. A plea in which defendant sets forth his derivative title to the right of way under which he seeks to justify, without averring in direct terms his title to the way, is in accordance with approved precedents.</p> <p>3. The plea, if argumentative, is bad only in form, and cannot be taken advantage of by demurrer. If it may be replied to, under the statute, it should not be stricken out.</p>

On rule to show cause why verdict should not be set aside. On the 31st of August, 1868, the defendant agreed, in writing, with the plaintiff, that he would, for a certain consideration, sell and convey certain lands and real estate to the plaintiff, and give him “ a fee simple title, free from encumbrances.” The defendant's wife refused to sign the deed, thus preventing him from executing the contract.

Case certified from the Warren Circuit Court. The suit was on a promissory note made by the defendants to the plaintiffs, who were partners. This note was given to and belonged to the firm, and the defendants were aware of the fact. Thomas Craig, one of the plaintiffs, became indebted to the defendants in the sum of $700, and agreed to settle this individual debt by endorsing a payment to that amount on the note of the firm. This was accordingly done.

<p>1. The ordinary rule in criminal pleading, where the tenor of a writing is required to be set out, is, that the indictment should contain an exact copy.</p> <p>2. The omission of a letter in a word will not vitiate unless the meaning is thereby changed.</p> <p>?. All such mistakes will be disregarded which can fairly come within the rule de minimis; but this relaxation of the old rule does not authorize numerous abbreviations.</p> <p>4. 'In prosecutions for libel, the court, and.not the jury, decides as to-admissibility of evidence, and questions as to variances.</p> <p>Quere ? — Whether, in such prosecutions, by the constitution of this state, the jury can, on the £ause being submitted to them, lawfully disregard the instruction of the judge as to the law of the case.</p>

<p>On rule to show cause why verdict for the plaintiff should not be set aside.</p>

<p>1. The Court of Common Pleas has jurisdiction to appoint surveyors of the highways to lay out a road within the limits of an incorporated city, in the absence of special provisions in its charter superseding or excluding the means of procuring new highways, within the boundaries of the city, which exists in the general provisions of the road act. Its jurisdiction can only he excluded by an implication arising from the fact that the town authorities are clothed with full and complete jurisdiction over the same subject matter.</p> <p>2. The thirty-fourth section of the act concerning roads, (Nix. Dig. 829,*) which forbids the pulling down or removal of “ any dwelling-house, market-house, or other public building heretofore erected, and which may encroach upon any highway,” is restrictive of the powers of surveyors of the highways in laying out roads, as well as of the powers of overseers of the roads in removing encroachments.</p> <p>3. An engine-house owned and occupied by a fire company, which is situate upon the lands of a private individual, is not a public building within the meaning of this section. Nor is a billiard saloon attached to a hotel, and used by the tenant of the hotel as a billiard saloon, and not otherwise, a dwelling-house within the protection of the section.</p> <p>4. The words “ heretofore erected” in this section, refer to the time of the laying out of the road, and not to the time of the passage of the act.</p> <p>5. The legislature may incorporate towns and villages within townships for special and limited purposes. In such cases the inhabitants of the district, incorporated will remain inhabitants of the township within which the town or village is situate, for all purposes except those within the object of the municipal government, and the jurisdiction of the township officers over them continues, in so far as is not inconsistent with the provisions of the incorporating act.</p> <p>6. The charter of the city of Bordentown, and the several supplements thereto, confer upon the inhabitants of the township,' within the city limits, mere special police powers, or powers of local government, for certain limited purposes, and do not create the territory within the incorporated limits into a separate and distinct community in all respects. A public road may be laid out by surveyors of the highways as a road “ in the township of Bordentown,” although the road, as laid, is entirely within the lines of the city; and the assessment of damages to the owners of land taken therefor may be made against “ the inhabitants of the township of Bordentown.”</p>

<p>On certiorari.</p>

On rule to show cause why verdict should not be set aside and a new trial granted. This was an action of covenant brought by the plaintiffs, who sue for the use of Mary H. Andrews, the wife, assignee of Joseph Booth, deceased. The defendant, by deed dated April 19th, 1860, conveyed to Joseph Booth, a farm in Monroe township, Middlesex county, with the usual covenants, including the covenant of seizin. Joseph Booth conveyed the same land to the plaintiffj Mary IT.

On demurrer to replication. This action was brought by the plaintiff against the defendant, to recover the sum of $325, balance of $600, still unpaid, which‘it is claimed the defendant agreed on the 1st ■of January, 1869, to pay the plaintiff for the right to excavate and carry away the sand then lying and being on two certain lots of land, the property of the plaintiff, in the city of Hudson, within one year then next, under which-agreement, it is said, the defendant did…

On indictment, and questions referred to this court for its advisory opinion. The defendants in the above two cases were separately in-dieted and tried at the September Term, 1870, of the Court of Oyer and Terminer of Burlington county, for a misdemeanor, under the third clause of section one of the supplement to an act for the punishment of crimes, approved February 25th, 1863. Nix.

This was an action of ejectment. The premises in dispute, it was admitted, had been owned by one Asa Munday, under whom both parties claimed.

<p>A company owning coal lands in Pennsylvania sent coal, mined on their lands, by railroad to Elizabethport, in this state, where it was deposited on the wharf for separation and assortment, for the purpose of being shipped in vessels to purchasers in New York and New England. Held—</p> <p>1. That the commission agents of the company, who resided in this state, whose duties were to obtain orders for coal from purchasers in other states, and to superintend its shipment on hoard vessels at Elizabeth-port, had no such property in or possession or control of the coal as to’ be taxable for it under the seventh section of the act of 1866, Nix. Dig. 952, l 89.</p> <p>2. That the property of citizens of another state, sent across this state to markets in other states, and delayed within this state merely for separation and assortment for shipment, has no situs within this state for the purpose of taxation. _____</p>

<p>In covenant. On motion to strike out pleas.</p>

<p>1. The ordinance of the board of aldermen of Jersey City, of June 21st, 1870, fixing salaries of corporation officers, so far as it authorizes and provides for an annual salary to each alderman, held to be -without authority under the charter, and illegal and void.</p> <p>2. The ordinance, as passed, not having been introduced at a previous stated meeting, held to he invalid on that ground.</p>

<p>On motion to set aside proceedings and judgment in the Circuit Court of Hudson county.</p>

<p>1. Where the original act incorporating a city is declared to be a public-act, a supplement to such charter will become a public act, without any clause declaring it to be such, and will not go into operation until the 4th day of July next after its passage, unless otherwise specially provided.</p> <p>2. An act which merely limits the time within which an action shall be brought will not apply to a suit which is pending when such act goes into effect, although the suit was commenced after the act was passed.</p> <p>3. Where the report of commissioners making assessments for benefits for public improvements, under the charter of a city, is declared to be illegal, the court will set aside the assessment not only against the prosecutors, but will annul the whole assessment, if the charter provides for a re-assessment in case the assessment is declared invalid on certiorari.</p>

<p>1. At a special meeting of the voters of a school district pursuant to notice, it was voted to build a new school-house and to borrow money to buy a, lot and pay for the house. The meeting then voted a special tax of §500, and ordered §1,600 to he raised in three years, for the lot and school-house. Held — That the order to raise the §500 was void, no purpose to which it was to be applied having been specified as required by law.</p> <p>2. The clerk of the district having directed the assessor to raise, by assessment the sum of §600 for 1869, towards the expenses of the school-house and lot; held — that the clerk had no right to make such apportionment, and that such order was without authority, and the assessment must be set aside.</p>

<p>1. An ordinance directing the grading of a street will not be set aside on the ground that the grade line has been adopted only for a portion of the street, at the instance of a prosecutor whose lands are on that part of the street for which the grade line has been adopted.</p> <p>2. An ordinance adopting grade lines by reference to a map on file — the map, when produced, not being marked filed — is not void lor uncertainty, the map adopted by the ordinance being sufficiently identified by proof.</p> <p>3. The fourth section of the act of March 17th, 1858, (Nix. Dig. 837,*) provided that “ the grade of no street in any city or town which has been built on shall be altered, unless by the consent of a majority of owners in interest of the lots fronting on the pari proposed to be altered.” Iield — That the consent, if given, did not create an easement or an interest in lands, and need not be given by a formal instrument in writing, or in express words. Any formal act on the part of the owners of the lands affected, clearly indicative of a willingness to have the grade altered in the' manner contemplated, communicated to the common council to influence their action in undertaking the impr-ovement, will answer the requirements of the statute. A petition to the common council asking for the improvement, referring to the grade line shown on the profile map, is a sufficient consent.</p> <p>4. Since the passage of the act of March 17th, 1858, an alteration in the grade of a street is a judicial and not a ministerial act, and an ordinance directing such change of grade must be preceded by a reasonable notice of its passage, that persons affected by it may have an opportunity to be heard.</p> <p>5. The distinction between judicial and ministerial ordinances considered.</p> <p>6. An -ordinance irregularly adopted will not be set aside, the proposed work having been substantially completed, and the prosecutor, by action at law, having recovered the same compensation he would have been entitled to, if the proceedings had been entirely regular. In such case, the writ will be dismissed, without costs.</p>

<p>On application for relief of bail.</p>

Suit upon a promissory note made by Nightingale to the order of Cranmer & Ronsavall, two of the defendants, by whom it was endorsed for his accommodation. The note was drawn in Pennsylvania, and was payable at a particular place in that state. Not being paid at maturity, the liability of the endorsers was fixed by demand and notice.

<p>On application by the sheriff of Essex to amend his return to a writ of capias ad respondendum.</p>

The defendants below owned a lumber yard in Jersey City, built on piles, and through it from that street were three passages or gangways, sixteen feet wide. Wayne street, at that point, had been filled in over the bed of the Hudson river. It was not graded or curbed, but was legally open tó the public. The whole yard was built over the water, and was private property.

On case .certified from the Union Circuit to this court for its advisory opinion. -The facts are so fully given in the opinion of the court as to render any preliminary statement of them unnecessary.

On eertiora.fi. In matter of taxation. The following is a statement of facts agreed on by the counsel of the parties: The above statement is a true copy of the balance sheet-made up from the books of the People’s Fire Insurance Company, May 1st, 1869. The profit and loss account represents the net earnings of the company after deducting losses and expenses, and includes all moneys received for interest on investments and earned premiums on expired risks.

In 1868, the defendants in error were assessed in the city of Newark for the amount of their capital stock and real and personal estate, the aggregate amount being $272,650, the tax on which was $4,633.35.

On error to the Supreme Court. The Mutual Benefit Life Insurance Company, doing business in the city of Newark, were assessed for taxes, in the year 1862, upon the amount of $665,300, which they claimed to be the balance liable to taxation, including real estate.

In ejectment. Error to the Supreme Court. This was an action of ejectment tried before the Chief Justice at the Warren Circuit (a trial by jury having been waived by the parties,) to recover the possession of a tract of land situate in said county. The action was commenced on the 13th of June, 1869, and the plaintiff’s right of possession was alleged to have accrued on the 1st day of April, 1869.

<p>1. The Morris and Essex Railroad Company, in 1865, were taxable under the supplement to their charter, approved March 23d, 1865, and not under the general tax law of 1862.</p> <p>2. This supplement to the charier repealed the general tax law, pro tanto, and fixed the only form of assessment for taxes that could he made against the company.</p> <p>3. Where a later special la.w is positively repugnant to the former general law, and not merely affirmative, cumulative, or auxiliary, it defeats the older law by implication, pro tanto, to the extent of such repugnancy.</p> <p>4. Whore there are express terms of exemption from all other tax, although the prescribed method of taxation is future and contingent in effect, yet no tax can be claimed until the condition upon which the special tax becomes payable is fulfilled.</p>

For the facts in this case and the proceedings and opinion of the court below, see 3 Vroom 467. To reverse the judgment founded on this opinion this writ of error was brought. The case was argued by — •

On the ,23d of February, 1857, Joseph L. Alden recovered a judgment against John Hartman, in the Circuit Court of the county of Essex, for $499.90' damages, besides costs.' Joseph L. Alden afterwards died, and his widow, as executrix, sued out a scire facias to revive the judgment and to recover the amount due thereon, alleging the same to be unsatisfied.

In December, 1868, Alfred Edwards sued out of the Su» 2>reme Court a writ of certiorari, directed to the mayor and common council of the city of Newark, to remove into the said Supreme Court a certain assessment for benefits, and proceedings thereon had and made, in respect to the opening of Bergen street, in the city of Newark, made upon him, the said Alfred Edwards.

<p>1. Where a trial has taken place before a judge, a jury being waived, a. defendant in error who is successful is not entitled to double costs in this court.</p> <p>2. The proper method of doubling costs is to tax single costs and'multiply, them by two.</p>

The suit below was in case. The declaration stated that the plaintiff was the owner in possession of a certain tract of laud adjoining to the Passaic river, and that said river was .a public navigable river, and in it the tide ebbed and flowed; that the plaintiff had enjoyed free access from his lands to the river, for the purpose of washing, bathing, watering his cattle, and for fishing and navigation ; and that the defendants have placed obstructions along the entire water…