Volume 35 — New Jersey Law Reports

On rule to show cause. Tills ivas au action on the case to recover, damages for the death of the plaintiff’s husband, under the act of March 3d, 1848. At the trial before the Hudson Circuit, the plaintiff recovered a. verdict against all the defendants, with an assessment. of (jamages at $3000. A rule to show cause why the verdict should uot be set aside was allowed by the Justice before whom the cause was tried.

On case reserved at the Somerset Circuit. This was an action on two promissory notes, made by defendant, and given by him to one Farrington. The consideration of the notes was certain wine plants sold by Farrington to tilt' maker of* the notes, which were drawn payable to Farrington or order, without defalcation or discount, and subsequently came to the hands of one Bryce, by whom they were sold to Holcomb at a discount, before maturity.

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

<p>On certiorari to remove the proceedings of commissioners, &c.</p>

Demurrer to a plea. The substantial matters contained in this plea were, that the defendant had been declared a bankrupt in the United States District Court for the Southern District of New York, and that the plaintiff proved under said proceedings the debt, to recover which this action was brought.

This was a writ of error to the Hudson Quarter Sessions. The indictment was for larceny, and laid the property in one Michael Martin. The evidence showed that the property-belonged to Jemima Martin, the wife of the said Michael. It consisted of furniture which was in use in the family. The house in which this property was at the time of the theft, was also the property of the wife.

Writ of error io the Court of Oyer and Terminer of the county of Cumberland, to reverse a judgment against the defendant, upon grounds set forth in the opinion of the court.

The following are extracts from the will of William Akins, deceased, viz.: “ Third.

Ou a writ of error brought to reverse the judgment of the Circuit Court of the county of Ocean, rendered in favor of the plaintiff below. The grounds taken for reversal are set out in the opinion of the court.

Rule to show cause why a new trial should not be granted. Certified from the Circuit Court of Sussex county. This was a rule to show cause why a new trial should not be granted, certified from the Circuit Court of the county of Sussex. The suit was on a note drawn by the defendants to the-plaintiffs. It was not negotiable.

In assumpsit. On rule to show cause why verdict should not be set aside. The suit is brought by the plaintiffs to recover back of the defendants, certain moneys alleged to have been unlawfully demanded and taken by them from the plaintiffs for the transportation of goods, wares and merchandise on their road from Paterson to the Hudson river.

<p>On case certified from the Passaic Circuit.</p>

On application for a mandamus to compel delivery of seal,, papers, minutes, &c., of Hudson county, by Charles J. Roe, alleged late clerk, &c., to Nicholas E. Feurey, who claims to be the clerk of the board of freeholders.

Ou case certified from Cumberland Circuit. In ejectment to recover two tracts of land — the one containing- thirty-four and thirty-six hundredths acres, the other two and thirty-lmndrodths acres. The controversy was solety with reference to the latter parcel.

Henry Bennet, being the owner of a parcel of land, containing about ten acres, in the county of Monmouth, on the northerly side of the road to Middletown Point, adjoining, on the northeasterly side, lands of Daniel Conover, in 1858 laid it out into twenty-four town lots, and opened through it three streets, one of which was called Henry street. This latter street was parallel, or nearly so, with his line with Conover.

The agreement upon which this action was brought is under seal, and recites that the plaintiff hath, and by these presents doth, grant, bargain, and sell unto the said Michael Levy, all that certain store lot and premises, situate and being in Belleville, &c., for the price and sum of $1400, upon the following conditions: 1. That the said Levy shall pay the sum of $20 on the execution of the agreement, the receipt whereof was therein acknowledged. 2.

<p>On certiorari to set aside assessments.</p>

On certiorari to bring up an assessment for re-paving, with Nicholson pavement, that section of Broad street, in the city of Newark, lying between Market street and the Morris canal. ' The facts of the case and the reason assigned for setting aside the assessment, are distinctly set forth in the opinion of the court.

On certiorari to remove assessment. For the annual tax due in 1867, for state, county, and city purposes, one of the assessors of Jersey City assessed the Morris Cana] and Banking Company the total sum of $5478, upon “ South basin to the line of the Central Railroad of New Jersey, south of South street, with piers, bulkhead, and water front.” This assessment was certified to this court for review, and many reasons assigned for setting it aside.

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

On application for a mandamus. The relator, Edwin R. Mason, claims that on the 18 th day of May, 1870, he was duly elected by the board of aldermen of the city of Paterson, treasurer of the city, and that he was duly qualified, and served in said office, and still holds the same, but that certain members of the board of aldermen, assuming to be a legally constituted board, have appointed one James Dunn to succeed him as treasurer, and are now permitting him to act, and…

On application for peremptory mandamus to admit and recognize Peter Kelly, the relator, as one of the board of aldei’men of the city of Paterson.

Proceedings under the medical society’s act having been instituted by the defendants against the prosecutor, upon a certain charge of immoral and unprofessional conduct, an application was made to a justice of this court, pending the said proceedings, for the allowance of a writ of certiorari to remove the same into this court. The writ was allowed.

<p>1. In laying out a private road, tlie surveyors must certify that they had regard to the public and private convenience.</p> <p>2. Tlie return set aside, because the applicant paid the surveyors more than their legal fees.</p>

On certiorari to remove certain proceedings and resolutions of the said mayor and common council, touching the power of the railroad companies] to lay down tracks in a public highway, and to regulate and grade streets in the city of Hoboken, and remove obstructions therein.

On eetiiorari to set aside assessment made under the act of April 21st, 1868, authorizing the draining of wet and marshy lands in the upper parts of the counties of Morris and Somerset. The several grounds upon which it was sought to set aside the assessments, are fully set forth in the opinion of the court.

On application for a mandamus to compel the board of chosen freeholders of the county of Camden to accept the official bond of the relator, Ezra Stokes, claiming to have been duly elected collector of said county.

On case certified, &c. This was a rule to show cause why an attachment should not be quashed, certified from the Hudson County Circuit. The facts of the case were these : Perrine, the defendant in attachment, was in the possession of a planing and moulding mill in Jersey City, at which place he carried on his business. Pie was there daily, and remained there usually all day. His home was in New York, where his wife boarded. He usually passed his nights in New York.

Rule to show cause why a new trial should not be granted. The material facts were these. The suit was upon a note of which the defendant was the drawer, one John E. Hunt being the drawee. The consideration of the note was a horse sold and delivered. This horse, it appeared, was the property of George Hunt, the plaintiff, for whom the said John E. Hunt was acting as agent in the sale of the horse. This agency was not disclosed to the defendant.

Tills was an action of trespass, quara clausum freyit, begun in the court for the trial of small causes, but a plea of title being put in, the controversy was transferred to this court. The plea was liberum tanementum..

This suit was in case on promises. The articles of agreement on which the action was founded was between the Erie Railway Company, of the first part, and Kasson & Company and their assigns, of the second part. The following are the articles : SCHEDULE.

On rule, to show cause why the verdict should not be set aside, &c. This suit is prosecuted in the ñame of the plaintiff, at the instance of one.

<p>The plaintiff claimed title under a deed made to him by one David J. Ward, dated August 29th, 1866. After this conveyance, judgments were obtained and executions issued against Ward, by virtue of which the premises in question were sold as Ward’s property. They were purchased at the sale by one Pierson, who afterwards conveyed them to the defendant. It was alleged by the defendant that the deed from Ward to the plaintiff was made to hinder and delay creditors, and void under the statute of frauds. The verdict and judgment below were for the defendant. A writ of error having been brought, it was held—</p> <p>1. That as the deed from Ward to the plaintiff was found to be void as against creditors, the sale by the sheriff to Pierson vested in him the legal title to the premises, and conveyed to him all Ward’s interest.</p> <p>2. That, the payment by Ward of the consideration money for the deed from Pierson to the defendant, did not destroy the title acquired from the sheriff.</p> <p>S. That the court, in the action of ejectment, could deal only with the legal title, and could not inquire as to who, by reason of any implied or resulting trust, arising from the payment of the consideration money for the deed under which the defendant makes title, was the beneficial owner of the property.</p> <p>4. The wife of Ward, who was a party to the fraudulent deed, was a competent witness for the defendant, to testify what, was her intent and purpose in making the deed — that she did not understand, at the time or before, that any payment was to be made for the conveyances and that she was not willing to part with the property.</p> <p>5. The question propounded to one of the witnesses of the plaintiff, “ Was the transaction of passing the title and paying the money conducted in the ordinary way that such transactions are conducted ?’ was incompetent and properly rejected by the court, because not proving, or lending to prove, that the object of the parties was to hinder, defeat, and defraud creditors.</p>

This' was an action of assumpsit, brought in the Circuit Court of the county of Sussex, on a money demand. On return of tiie summons, the plaintiff filed and served his declaration. The defendants, in due season, interposed the plea of the general issue, verified by affidavit. The plaintiff disregarded the plea, treated the same as a nullity, and entered interlocutory judgment by default; had his damages assessed by the clerk, entered final judgment, and issued execution.

This suit was on a bond given by defendants for payment of a debt contracted in building a vessel in East Newark, in this state, which debt is a lien on the vessel, according to the statute entitled “An act for collection of demands against ships, steamboats, and other vessels.” Nix.

In the ease of The State, Feurey, pros., v. Charles J. Roe, (ante page 3 23,) there were two organizations, each claiming to be the lawful board of chosen freeholders of the county of Hudson. The court decided which of the two should be considered the lawful board.

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

On rule to show cause. The issue, in this ease was tried at the Mercer County-Circuit, and a verdict rendered for the plaintiff. A rule to show cause why the verdict should not be set aside, and a new trial ordered, was allowed, and argued upon the facts stated in the opinion of the court.

On ease certified from Essex Circuit, on rule to show cause why the verdict should not be set aside. The declaration contains the common money counts, and the plaintiff’ in support of the issue on his part, gave in evidence a due-bill, of which the following is a copy: “ Irvington, May 23d, 1864. “Due James M. C. Eaton, tho sum of one thousand dollars, for value received. “ §1,000.

On motion made in behalf of defendant to quash the ordeifor bail, and to discharge him from arrest, in an action for broach of promise of marriage.

<p>On certiorari to Mercer Common Pleas.</p>

Ou rule to show cause. The plaintiff is the owner of two tracts of land situate on the north side of Black creek, in the county of Burlington, known as the Kerr and Pearce tracts. The defendant is the ■owner of a tract of six acres of land on said creek, below the plaintiff’s lauds next adjoining the Kerr tract, which he acquired by purchase from one Charles S. Burtis, by deed dated March 24th, 1865.

Writ of error to the Circuit Court of the county of Cumberland. The suit was in case for money had and received. The defence was, that the moneys sued for had been attached and paid over under proceedings in attachment before a justice, at the suit of one George W. Pryor, against the plaintiff, Russell.

This was an action on the case, founded on the following agreement: COPY OF AGREEMENT. “ The undersigned, for value received, hereby agree with each other, and with the New Jersey, Hudson, and Delaware Railroad Company, that each will pay to the president of said company the amount set opposite to each of their respective names, in installments, to be called for by said company, which installments shall not be larger than ten per cent, each; and such installments shall not…

<p>On certiorari to remove proceedings of commissioners, &c.</p>

On certiorari to review and set aside an ordinance for opening, regulating and grading Hudson avenue from Avenue A •to the New York bay, &c.

On certiorari. This certiorari brings up the following resolution of the city of Bayonne, passed January 24th, 1871: u Resolved, That the street commissioner be and he is hereby directed to have removed earth and other obstructions now at the foot of Avenue S, upon the easterly side of the road known as the Bergen road, to the width of three rods westerly from the east side thereof, and to have said road, extending from Avenue S, across First street to the Kill von Kull, as…

Ok question reserved. The plaintiffs were auctioneers and agents of one Under-hill, who was the owner of certain lots of land in Rahway. The property was set up at public sale, under the management of the plaintiffs, at Rahway, on the 29th of June, 1869.

The writ in this cause was issued on the 11th day of October, 1870. By virtue of this writ of attachment, certain lands in the city of Elizabeth, Union county, were attached. On the 12th and 28th of November, 1870, John O. Hoyt and Faulkenreek & Koenig, creditors of the defendant Warden, respectively filed affidavits, and were, by rule of court, admitted creditors under said attachment.

On certiorari. The facts of this case are as follows : The city council of Elizabeth, at a meeting held June 5th, 1871, passed the following resolution : “ Resolved, That it is the intention of the city council of the city of Elizabeth, under and by virtue of the provisions of an act entitled ‘ An act to revise and amend the charter of the city of Elizabeth,’ approved March 4th, 1863, to order and cause Morris avenue, from Broad street to the city line, to be regulated,…

On certiorari to remove proceedings of the city council of Elizabeth, relative to the opening and paving of certain streets in said city.

This canse was before the court at a former stage of it, on a motion to strike out pleas. (See 5 Vroom 244.) This motion having been disposed of, issue was joined between the parties and taken down to the Hunterdon Circuit for trial. The action was assumpsit for an insurance.

<p>1. A special meeting of the legal voters of a school district, duly called, may vote to raise money for school purposes, although such appropriation has been refused at the annual meeting.</p> <p>% On appeal to the commissioners of appeal by some of the tax-payers from such school tax, their judgment remitting the tax, although erroneous, will protect the collector, and restrain him from proceeding to collect such remitted taxes, but not for his neglect or refusal to coileet the taxes of those who have not appealed.</p> <p>3. Where a collector has made no return of delinquent tax-payers, and no warrants have been issued to him during the year, if he be reelected, a mandamus will not be allowed to compel him to proceed and collect the taxes of such delinquents, because he has no statutory authority to do so. Other remedies against him must be used.</p>

<p>1. Where the report of the board of commissioners for assessments of benefits does not show that they ascertained the expense incurred, and examined and determined what real estate should be assessed, and what proportion should be assessed to each owner—</p> <p>Held — That the assessment was defective in substance, and that the sale of land to collect the assessment, and the declaration of sale made thereunder, were void.</p> <p>2. Since the act of April 2d, 1869, (Laws of 1869, p. 1238,) these proceedings, upon which declarations of sale are founded, cannot be questioned collaterally, but must be reviewed directly by certiorari.</p> <p>3. Laches, in bringing the certiorari by the land-owner to invalidate the declaralion of sale, will not be imputed, where he has continued in possession, and has a complete defence of his title.</p> <p>4. If a purchaser takes title to lands, with knowledge of assessments against them while held by a former owner, and assumes to pay them in his deed, he 'may object to the legality of these assessments, in an action between him and the city, and the purchaser under the city.</p>

On motion to strike out pleas. This was an action of debt on a judgment rendered in this court, for a certain sum of debt and damages for the detention, with costs of suit. Defendant pleaded — • 1. That he is a non-resident. 2. That judgment was rendered against him without the court having had jurisdiction of his person.

<p>On motion to amerce the sheriff of the county of Burlington.</p>

On rule to show cause why alternative mandamus should not issue to compel the defendant to sign a contract awarded the relator for paving a section of Broad street with Nieolson pavement. The right to lay this pavement is protected by letters patent ■of the United States, granted to said relator. «

The action is for money had and received by the defendant to the use of the plaintiff, being the amount of a paymaster’s check, of which the following is a copy : No. 21,487. Washington, April 16th, 1868. Assistant Treasurer, U. States, New York. Pay to John Buckley or order, one hundred dollars. $100. W. Vrooman, Paymaster U. S. Endorsed — John Buckley; Charles Crossman, Jersey City; A. Hogencamp, Cash. 2d Nat. B’k, Jersey City. April 28th, 1868.

This writ brings up the proceedings of the board of public works in Jersey City, for the construction of a sewer on Grand street — the work not being yet commenced at the suing out of the writ.

This is an action on the case brought by Weber, who sues for'the benefit of the Jersey City Insurance Company, against the Morris and Essex Railroad Company, to recover damages for loss of property occasioned by the improper and negligent use of their locomotive engines. The declaration contains three counts, to which defendants have put in a general demurrer.

This was a suit on a policy of life insurance, dated December 27th, 1849.

On rule to show cause. The action was upon a policy of insurance, to recover damages sustained from loss by fire. A verdict was rendered for the defendants, and a rule granted to show cause why the verdict should not be set aside, and a new trial ordered. Two points were made in support of the motion : 1. That the premium had not been actually paid to the company before the loss sustained. 2.

On rule to show cause, &c. The defendant was the maker of a promissory note, dated May 28th, 1870, drawn in Phillipsburg, New Jersey, and payable at the First National Bank, Easton, Pennsylvania. The note was made for the accommodation of E. T. Dalton, who was the payee. The plaintiff, John Laubach, endorsed the note at Easton- for the accommodation of Dalton. The note then passed to Messrs..

Suit oil an agreement under seal for the payment of a sum of money therein specified. By an act passed February 22d, 1865, (Pamph.

On indictment, &c. On case certified from tne Court of Oyer and Terminer of the county of Hunterdon.

<p>Under certain circumstances, especially when there has been laches on the part of the prosecutor in suing out his writ, the court may refuse to set aside the whole assessment against him, and order the amount so assessed to he reduced ; the amount of such reduction, if not agreed on, to be ascertained by a commissioner and approved and confirmed by the court.</p>

<p>1. Where tlie return of a public road, laid out by surveyors of the highways, with a map accompanying the same, after having been filed in the proper clerk’s office, has been accidentally lost, on proper proof being made of such loss, the court may order a certified copy of the return, and a map of substantial identity with the original, to be made and recorded in the road-book.</p> <p>2. The mode of assessing damages, as the facts were shown to the court held not to be improper.</p>

<p>On motion to strike out answer to a petition of appeal.</p>

On certiorari. In matter of taxation. The real estate of'Enoch C. Hendrickson, deceased, was, by order of the Orphans’ Court of the county of Monmouth, .sold by Joel Parker and others, commissioners appointed to divide the same.

<p>Motion to set aside judgment by default.</p>

<p>"When commissioners have been appointed under the act of March 27th, 1871, to lay out roads, public parks, highways, &e., in certain parts of the township of Union and county of Union, and to provide for payment of the expenses, a party, though a land-holder and tax-payer within the parts designated, cannot call in question the proceedings of the commissioners unless the natural and necessary consequence of their acts will subject him to taxation, or injuriously affect and interfere with his property or legal rights.</p>

On demurrer to rejoinder. The declaration contaiued special counts upon promissory notes, and also the common counts. Pleas — general issue and statute of limitations to the whole o declara! ion. Replication — that the defendant, at the time of making said promises, was non-resident, and had not resided in this state since the making, for the period of six years.

On certiorari to remove proceedings of appraisers of damage, &c., under the act of March 7th, 1839. entitled “An act to incorporate the Columbia Delaware Bridge Company.”

<p>Where a commissioner to make assessments in certain cases lias been appointed under the fifty-second section of the charter of the city of Bayonne, it must be shown that he was possessed of all the qualifications required by said charter.</p>

On motion for an order that the sheriff of Hudson pay back to defendant two and a half per centum of the amount collected, to enable the company to pay the income tax due the United States.

The action was for the recovery of a certain lien claim on a building in the county of Burlington. On the trial of this cause at the circuit, the question was reserved for the advisory opinion of this court, whether, upon the evidence, the building was subject to the lien claimed by the plaintiffs. The facts appear in the opinion of the court.

<p>Matter of practice.</p>

This is one of eleven certioraris removing the proceedings in laying out a street in Trenton, between Warren and Quarry streets, and the assessment therefor. The determination of one includes all.

This case was tried at the Sussex Circuit Court, September Term, 1871, and a verdict rendered for the plaintiff, for the amount of the note held by him, and interest. The motion for a rule to show cause was argued in this court, on a state of the case agreed upon by the parties.

On application for the appointment of commisbioners, &c. On the 8th day of March, 1871, “An act to provide for the drainage of lands ” was passed by the legislature of this state.

<p>In ejectment. On the trial of this issue at the Middlesex Circuit, a verdict was rendered for the plaintiff, and a rule to show cause why the verdict should not be set aside was granted, on the ground of a misdirection of the justice at the circuit.</p>

On error to the Supreme Court. Vanness sued Chaddoek on a promissory note, of which the following is a copy : “$2091.98. ' Jersey City, April 16th, 1869. “Three months after date, I promise to pay to the order of Jacob S. Vanness two thousand and ninety-one and ninety-eight hundredths dollars, without- defalcation or discount, for value received, payable at Hudson County Bank. “A. A. Woodward.” Endorsed — W. H. Chaddoek, Jacob S. Vanness.

Judgment on the demurrer having been rendered for the demurrant (the plaintiff) in the Circuit Court of Union county, the same was removed to this court by writ of error, and error assigned upon the record, raising the same points discussed in the advisory opinion of the Supreme Court.

The prosecutors, in the year 1859, bought a farm of about one hundred and ten acres, and built to it a branch from their main line, about one and three-quarters of a mile long. The farm was bought for the gravel which was on it, and which was required for the ballasting of their road, and for the maintaining and keeping it in repair. The branch was built to transport the gravel more cheaply to the main line, and had been and was still used for that purpose.

<p>On error to Supreme Court.</p>

• At a Court of Oyer and Terminer and General Gaol Delivery, held at Camden, in the county of Camden, in the term of January, 1871, John Ware was indicted for the murder of John A. Ware.

The plaintiffs were chartered ou March 3d, 1839, (Laws of 1839, p. 151,) and were authorized to erect a bridge over the Delaware at Columbia,.in the county of Warren.

<p>1. An arbitrator need not be sworn before a justice of the peace; his oath, if taken before a master in chancery, is valid.</p> <p>2. It is not necessary that the arbitrator should be sworn before fixing the time and place of his sitting.</p> <p>3. Where the award upon its face appears to be within the submission, it is not competent, in a suit at law on the award, to show by parol that the arbitrator exceeded his authority.</p> <p>4. The case of Hoagland v. Veghte, 3 Zab. 92, affirmed and followed.</p>

<p>1. The term “ accumulated surplus,” as applied to a stock insurance company, is the fund it has in excess of its capital stock paid in, after payment of its debts or fixed liabilities.</p> <p>2. The liabilities to losses upon policies issued and unexpired, is a contingent, not a fixed liability, and does not, therefore, affect the character of the fund arising from premiums as surplus capital or accumulated surplus.</p> <p>3. The usual form of fire policies being a fixed sum paid, or secured to be paid, in advance, for a definite term of insurance, the contract is entire; and the premium, when the risk is begun, is the property of the company for the purpose of taxation, if held by them subject to contingent losses.</p> <p>4. The total amount of capital stock paid in, and premium and interest account, as shown by the company’s statement in this case, less the sum invested in non-taxable securities, is liable to taxation.</p>

<p>An order overruling a demurrer, with leave to plead, is a mere interlocutory order, on which a writ of error cannot he brought.</p>

This cause was brought up from the Supreme Court by writ of error. It was brought on for trial before the Meroer Circuit. Upon the evidence for the plaintiffs being closed, the circuit judge ordered that the plaintiffs be non-suited. To this, a bill of exceptions was taken, and the judgment of non-suit entered on that order is now sought to be reversed. The material facts of the case as collected from the bill of exceptions, appear in the opinion of the court.