Volume 36 — New Jersey Law Reports

<p>A general averment of the performance, on the part of tne plaintiff, of the terms of a contract, requiring him to perform conditions precedent, is sufficient, by virtue of the twenty-fifth section of the supplement to the practice act.</p>

This was an action of debt on a bond given by Farrington Barcalow, as executor of William Barcalow, and John H. Whit.enack, as his surety. The testator died in 1837, and in 1847 the executor filed his account, which was excepted to by one of the children of deceased, but nothing was further done with this account.

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

<p>1. Affidavits of jurors are admissible in their own exculpation, and to sustain the verdict; but when offered for the purpose of contradicting or destroying the verdict, they' have been regarded always by this court as against the policy of the law, and on that ground have been invariably rejected.</p> <p>2. Applications to set aside verdicts for the misbehavior of jurors are addressed to the sound legal discretion of the court, and cannot ordinarily be brought to the test of any fixed and definite rule. Each application must be determined mainly upon its own peculiar facts and circumstances, and should be granted or refused with a view, not so much to the attainment of exact justice in the particular case, as to the ultimate effect of the decision upon the administration of justice in general.</p> <p>3. Where both parties are innocent, a tainted verdict will, in general, be set aside without hesitation, on the application of either party. But this will not be done on the application of one who has attempted^ directly or indirectly, to influence the jury by improper means, or who has encouraged, of prompted, or knowingly permitted such an attempt, or who rests under any just suspicion of having done so.</p> <p>4. The facts in this case, pointing suspiciously to a corrupt arrangement between a friend of the defendant and one of the jurors, but nothing appearing to cast suspicion on the defendant — Held, that on his application, the verdict should be set aside.</p>

This action is founded on two certain policies of insurance, and the several renewals thereof, issued by the defendants to the plaintiff; one dated April 16th, 1866, for $3000; the other dated January 24th, 1867, for $1500. Both are on the plaintiff’s stock of merchandise, consisting of groceries and liquors of all kinds, and all such articles as are usually kept in a wholesale and retail grocery and liquor store, in his store at Morristown.

<p>1. A sole executor (and of course if one, all,) has the power, by a jiew promise, to remove the bar of the statute of limitations.</p> <p>2. One of two or more executors can bind an estate by the new promise, and it does not thereby make the representatives personally liable.</p> <p>S. A co-executor can no more be made personally liable by the new promise of another executox-, than in any other matter where the validity of the act of the individual executor in binding the estate may be unquestioned. The judgment in either ease is de bonis testatoris, and there can be no personal liability, except where the exeeutoxhas made himself chargeable with a devastavit.</p> <p>4. A promise to remove the bar of the statute may be proved against executoi’S in the same way as in other cases, being always sufficiently careful to see that the deduction is properly di’awn from the facts.</p>

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

<p>On certiorari to set aside assessment for the opening of street in the city of Bayonne.</p>

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

<p>1. By the decision of the Court of Appeals in the Tide Water Company’s case, it became the established law of this state that the power to assess the expenses of local public improvements on property peculiarly benefited, is limited in amount to the benefit conferred.</p> <p>2. Lands acquired for a- public use by a corporation under legislative authority, which are essential to the exercise of its corporate franchises, and are held in good faith for that purpose, must be regarded for purposes of taxation as devoted to that public use. In assessing lands so circumstanced for local improvements, the increase in their present market value is not the proper basis of assessment; if not benefited in their present use by such improvement, the assessment should be made on a valuation depending on the probability that they may thereafter he converted to other uses.</p> <p>3. In assessing depot grounds of a railroad company having an exemption from taxation in its charter for benefits derived from local improvements, supposed benefits arising from the probable increase of business in consequence of increased facilities of access to its depot, cannot be made the basis of assessment. An assessment on that principle would be a tax on the business of the company in violation of the exemption in the act of incorporation.</p>

<p>On case referred by Somerset Oyer.</p>

On application for a mandamus. By an act of the legislature passed on the 14th of February, 1872, entitled, “ An act for the purpose of raising money to construct and complete a'public school building in District Number Eleven, of Readington township, Hunterdon county, after reciting that, “ whereas, the trustees of school district No. 11, of Hunterdon county, have purchased a lot and partly erected thereon a public school building, which land and building when finished, and…

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

<p>1. The common council of the city of Trenton have no authority under the general power to regulate streets, to grant to an individual license to lay a railroad track across the public street for his own use.</p> <p>2. Streets and highways are intended for the common and equal benefit of all citizens, to which end they must be regulated.</p> <p>3. Certiorari will not lie in favor of the prosecutors, who have sustained no damage peculiar to themselves.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. A person who takes a note before its maturity in payment of or as security for a precedent debt, is a bona fide holder of it for value, and entitled to protection as such.</p> <p>2. Since the supplement of February 15th, 1871, a note without the words “ without defalcation or discount,” is as secure against defences in the hands of a bona fide holder before maturity, as a note with those words would have been before that time.</p>

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

<p>1. Under the eighth section of the tax law of 1866, (Nix. Dig. 952,) it is not necessary, in order to make a valid assessment, that the assessor shall examine persons to be assessed by oath or affirmation.</p> <p>2. The essential thing to be done by the assessor under this act is to ascertain, to the best of his ability and according to his own judgment, the names of the persons taxable, and the actual value of all taxable property; and this lie is to do by diligent inquiry, by the oath or affirmation of the persons to be assessed, or of other persons if necessary, and by personal examination of the property to be valued.</p> <p>3. With respect to the enumerated means or sources of information, by or from which the value of property is to be ascertained by the assessor, the act is not mandatory, but merely directory.</p>

This was an information in the nature of a quo warranto. The information set forth the following facts, viz.: That Jersey City was duly incorporated by virtue of an act entitled “An act to reorganize the local government of Jersey City,” passed March 31st, 1871, and that by a certain section of said act a board of police commissioners, consisting of five members, was constituted, and that said board should be the individuals named in said act, and that their successors…

This was an action of ejectment. The defendants claimed title under the plaintiff, their contention being that they had acquired the fee in the premises by force of their charter, having taken the land for a public street. The material facts in evidence were as follows: In 1867, the corporate authorities of the city of Bergen took the requisite steps to extend Jackson avenue over the land in question.

<p>Writ of error to the Court of Oyer and Terminer of the county of Hudson.</p>

<p>1. When the record of a will, together with the affidavit at the time of probate, is offered in evidence, it is competent for the opposing party to show statements made out of court by one of the subscribing witnesses who had joined in such affidavit, in order to contradict the statements of such affidavit as to the due execution of the will.</p> <p>2. Such evidence standing alone will not invalidate the instrument.</p>

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

The motion was to quash the writ of attachment. The following was the return of the sheriff to an attachment against the defendant as a non-resident debtor: “ By virtue of the annexed writ, I have this 23d March, 1871, attached Benj’n \V. King, his rights and credits, moneys and effects, goods and chattels, lands and tenements, and the following is a just and true inventory and description of the same, to wit, the right, title and interest of Benj’n W. King in all lands, &c.…

<p>Error to the Circuit Court of the county of Bergen.</p>

The plaintiff was employed as the foreman of the defendants at their rubber factory in Jersey City, from January, 1866, to February 1st, 1870. At the latter date the company leased the factory to Fields & King for a term of five years. Fields & King took the property, business and assets of the company, and assumed their liabilities.

At the trial of the above cause in the Sussex Circuit Court, in April Term, 1872, a verdict was rendered for the plaintiff upon the facts, and several points of law were reserved for the opinion of this court. The following are the material facts of the case.

<p>1. An ordinance to take up, &c., Fulton street, and an ordinance to grade the same having been passed, &c., but without the notice required by the ninety-ninth section of the supplement to the charter of the city of Paterson, approved March 25th, 1869 — Held, that however fatal the objection as to the want of notice might have been if promptly taken and acted upon by the prosecutors, it cannot be allowed to prevail after considerable delay, under circumstances rendering it probable that they were aware of the inception and progress of the work, and especially after the improvement has been completed and paid for by the city.</p> <p>2. The expense of grading, &c., under the ninety-eighth section of said supplement, is to bo assessed, &e., by commissioners possessing the qualifications required by sections 104 and 110, and on the same principle of apportionment adopted by sections 102 and 104.</p> <p>3. The commissioners having reported that they had made a just and equitable assessment, &c., among the property owners, &c., according to the advantages, or benefits, &c.; but it being manifest from the schedule accompanying the report as well as from the testimony, that there was in fact no exercise of judgment by the commissioners, their assessment upon each owner being governed solely by the extent of his frontage — Held, that an assessment so made cannot be sustained</p> <p>4. By the said amended charter, all contracts, &c., are to bo given to the lowest bidder; the contract for grading, &e., in this ease was awarded to H„ the lowest bidder, at fifteen cents per cubic yard ; by the contract as reduced to writing and executed by H. and the city, the grading was to be done “ for the price and sum of fifteen cents per cubic yard for earth excavation, and two dollars and fifty cents per cubiq yard for all rock excavation,” the contract being so drawn in pursuance of an ordinance, the second section of which provides as follows: “ That hereafter, when a contract is made by the city of Paterson, for grading streets or excavating earth, and no price is mentioned for rock work, there shall be paid to contractors two dollars and fifty cents for each cubic yard of rock found, provided said rock shall exceed one cubic yard in size.” — Held, that this section of the ordinance being in direct conflict with a plain provision of the charter, both it and the written agreement made in pursuance of it, are utterly void.</p>

This writ brings up two resolutions passed by the board of public works of Jersey City, on the 13th day of February, A. D. 1872, viz.: Resolved, That the proposition of Mahlon B. Crampton to sell to the city the plot of ground known as a portion of the estate of James Harrison, containing three hundred and ninety-six thousand seven hundred and sixty-four square feet, as shown on a diagram accompanying said proposition, for the sum of $2000 for every two thousand five hundred…

<p>On certiorari to remove assessments.</p>

<p>The plaintiff sued in the justice’s court on a promissory note. The cause was tried on the return day of the summons. Ro statement of demand was filed, but the defendant, in his offset, gave the plaintiff credit for the note, and it was received in evidence without objection. The defendant having appealed to the Court of Common Pleas, and the appeal having been tried in his absence —</p> <p>Held, that the judgment of the pleas would not be reversed on the ground that no demand had been filed, and that no motion having been made before the justice, or in the Court of Common Pleas for a non-suit, for that reason the objection was waived.</p>

<p>1. When a summons in ejectment has been issued to the sheriff, and placed in his hands, it may be served by any person, by direction of the sheriff, without any formal deputation in writing.</p> <p>2. An affidavit of the time and manner of service of a summons in ejectment is required, whether the service be made by the sheriff or a third person.</p> <p>3. If it be shown by depositions, taken under a rule of court, that the service of a summons in ejectment was in conformity to the law, and that the -defendant had notice of the suit and its object, a judgment by default will not be vacated, although the writ was returned without an affidavit of service, but an amendment will be permitted by filing an affidavit nunc pro tunc, if it appear that the defendant has no defence. ,</p> <p>4. A decree of the Court of Chancery, that a sheriff’s deed should become void, and the purchaser reconvey on the payment to him of a certain sum within a specified time, is 1 ol such a decree as becomes a conveyance by force of the fifty-sixth section of the chancery act; and an unaccepted tender of the sum named, after the day fixed, and after ejectment brought to recovery possession under the deed, will not extinguish the deed as a security, and enable the defendant to defend under the decree.</p>

<p>On certiorari to review appointment of commissioners to condemn lands.</p>

On certiorari to set aside the proceedings for the sale of lands for the non-payment of assessments for street improvements.

<p>On certiorari.</p>

<p>On certiorari to remove a resolution of the common council of the city of Trenton.</p>

<p>On motion to set aside rule, &c.</p>

<p>1. A public road described in the return as “ beginning near the New Jersey Central Railway depot, at Roselle, on the northerly side of said depot, and in a line of a road known as Chestnut street,” does not define the beginning with the requisite certainty.</p> <p>2. Where three terms of the court have intervened between the return of a public road and an application for a certiorari, and the road in the meantime has been opened and worked, an allocatur will not be granted, and if one has been ordered, it will he dismissed when the facts are brought to the knowledge of the court.</p>

The defendant was incorporated in 1799 for the purpose of supplying the inhabitants of Morristown with water. By a supplement passed on the 17th of February, 1862, power was conferred to extend its works, and provision was therein made, in case the requisite lands and materials could not be obtained by agreement, to have the damages assessed by corn-missioners in the usual form.

Ou demurrer to replication. In the several counts of the declaration in this case, it was stated that the plaintiff, Christian Weber, being the owner of a certain house and household furniture, insured them for the sum of $800 in the Jersey City Insurance Company, and that said house and furniture were subsequently destroyed by fire, communicated by sparks from the locomotive of the defendants, and by the carelessness of the defendants and their agents, by means whereof the…

On demurrer to declaration. The action was in debt, and the declaration stated that the defendants, on the 1st of January, 1869, by and under the hands and seals of J. II.

<p>1. The driver of a horse oar is not the agent of a passenger so as to render such passenger chargeable for the negligence of such driver.</p> <p>2. When a passenger in a horse car is injured by the carelessness of the engineer of a railroad company in the management of his locomotive it is no defence to show contributory negligence in the driver of the horse car.</p>

On rule to show cause why a new trial should not be granted. This was an action of covenant, the plaintiff being a corporation established by force of the laws of New York.

<p>1. On the trial of an indictment for an attempt to ravish, a complaint made soon after the assault, by the woman assaulted, is admissible in evidence.</p> <p>2. The particulars of the transaction, as detailed by the prosecutrix, are not legal evidence on such trial.</p>

The suit was in replevin, and the following is the case as certified: The horse in controversy being the property of Hall, was stolen from his stable on the night of December 27th, 1868, and taken by the thief to South Orange, in the county of Essex, and there left tied to a post in the public highway, on the lauds of the Methodist Church. Hall made diligent effort to recover the horse, and to apprehend the thief.

<p>On rule to show cause why the verdict should .not be set aside, &c.</p>

<p>1. A fire insurance company cannot be established in Jersey City instead of Trenton, under a charter for such a company to he located in Trenton. It is a perversion of, and a fraud upon, the act, and gives no corporate color to the company for the protection of those who were engaged in, or lent, themselves knowingly to the scheme. Such an organization in Jersey City is entirely outside of the act, and has no existence as a corporation, real or de facto.</p> <p>2. A policy issued by such a company in Jersey City can be enforced against the directors personally, where they consented to become directors, or knowingly allowed themselves to be held out to the world as such.</p>

<p>On rule to show cause why verdict should not be set aside.</p> <p>Submitted on written briefs.</p>

<p>Submitted on written briefs at February Term, 1873.</p>

On certiorari to the Monmouth Pleas, on the trial of an appeal from the judgment of a justice of the peace.

On demurrer to plea. The defendants were created a corporation for the purpose of laying out, opening, and improving streets, roads, highways, and public parks, within prescribed limits, by an act of the legislature, entitled an act in relation to streets in Union township, in Union county, passed on the 29th of March, 1871. Acts, 1871, p. 1034.

On certiorari. The board of health of the city of Trenton on the 26th of' August, 1872, passed the following resolution : “ Resolved, That the skin dressing establishment of Mr. J. Marshall & Son be declared a nuisance, in the opinion of the board, and that such steps be taken by the president as may be necessary to have it abated.” Whereupon the relators were notified and directed within five days to remove, correct and abate said nuisance, which consisted in vattiug,…

<p>1 The assessor, in describing real estate under the act concerning taxes, (Nix. Nig. 952, pi. 92,) may use abbreviations so long as they are-intelligible, and leave no uncertainty as to the property upon which the imposition is intended to be laid.</p> <p>2. The publication of notices to tax payers, required by tax laws, is an indispensable preliminary to the legality of a tax sale, and it must be-made in strict accordance with statutory requirement.</p>

On certiorari. This certiorari brings up an.ordinance passed by the common council of Hoboken, April 15th, 1869, to improve Eighth street, from the westerly line of Willow street to the foot of the hill, and the final assessment under it.

<p>On certiorari to review appointment and report of commissioners, &e.</p>

<p>Where a reference is ordered by the court, with the consent of parties, the report of the referee will be controlled as the verdict of a jury would bo, and set aside if unsupported by the evidence.</p> <p>[See rule of Supreme Court, June Term, 1873, by which the submission may be conclusive or otherwise.]</p>

Attachment in ease. On certiorari to the Burlington circuit. A writ of attachment was issued out of the Circuit Court of Burlington county, at the suit of the plaintiff, against the property and estate of the defendant.

On certiorari to George W. Petty, one of the constables of' the township of Union, in the county of Bergen, to bring up a certain tax warrant issued by the township committee, to make $476 50, for the year 1870, of lands alleged to be the property of Knapp & McPherson, situate in the said township.

On rule to show cause why verdict should not be set aside. The verdict was based on the following conclusions of fact: That each of the parties was doing a separate business in Jersey City, as brokers in real estate and in the procuring of loans for money. That there was an arrangement between them that for any customer furnished by plaintiff to defendant, for whom the •defendant should procure a loan, the commissions should be equally divided.

Rule to show cause. The plaintiff acting as a United States commissioner, took certain depositions in a suit pending in the United States Circuit Court for the northern district of Illinois, in which Martin A. Howell, Jr., a son of the defendant in the present suit, was a party. After this evidence was taken the plaintiff refused to deliver it up unless his fees were paid. It was not shown that the defendant had any interest in the suit, to which these depositions pertained.

On rule to show cause. Eugene T. Henry, the defendant, was the owner of a tract of land in the State'of Pennsylvania, containing about thirteen hundred acres. The title for a portion of the premises, called the Paschal tract, containing about one hundred and seventy acres, was in the defendant’s father, of which the defendant, however, had the control.

<p>On error to Mercer Circuit.</p>

<p>1. Onr state insolvent laws are not bankrupt laws, and are not suspended by tbe passage of the national bankrupt act. Query. Whether they would be suspended if they were bankrupt laws ?</p> <p>2. In a case not provided for by the national authority, the force of state , legislation is undisturbed, for no conflict can arise between the two jurisdictions.</p> <p>3. If our state insolvent laws are suspended, a bond given under the act of April 15th, 1846, (Nix. Nig. 386,) is obligatory.</p>

<p>1. Action against the endorser of a promissory note, in which there was no evidence of demand and notice. The plaintiff relied on a new promise by the endorser, who testified that -he had received no notice. Held, that the plaintiff must show, that at the time of the new promise, the endorser knew that no notice had been mailed.</p> <p>2. Query: Whether, in the first instance, the plaintiff must show not only the new promise, but knowledge by the defendant of the laches, or whether, upon proof of the new promise, the presumption will arise that demand of payment was regularly made, and notice duly given to charge the endorser ?</p>

<p>1. A sheriff is bound to exercise reasonable care and judgment in the management of his sales, so that the property levied on may be sold, to the. best advantage to make the money, subject, of course, to all the requirements of the statutes affecting sheriffs’ sales.</p> <p>2. If there is a failure of bidders, or the circumstances of the sale are-such as to show that the property will be sold for a price unreasonably inadequate to what it ought to bring at a sheriff’s sale, it is the duty of a sheriff, unless otherwise ordered, and where the creditor is likely to be benefited, to adjourn the sale for another opportunity.-</p> <p>3. It is the duty of a sheriff to make the money on an execution, if by fair judgment and skill it can be done according to the modes provided by the law. His discretion should be liberally considered in the absence of bad faith, yet, the sheriff is responsible for a clear neglect of its proper exercise to the measure stated.</p> <p>4. The mere fact of the non-return of an execution is not sufficient to-justify an amercement, yet if an inventory should be filed, there being goods upon which it might operate with effect, the fact that there is. none filed is ground for amercement. .</p>

<p>1. Where, in a matter of bastardy, the finding of the jury was “guilty,” and the justices made the record of it in these words: “ That the defendant, S. G., was. guilty, and the putative father of the said bastard child ” — Held, that the verdict of guilty could mean nothing else than that the defendant was guilty of the accusation; or, in other woffds, the father of the child, and that the justices were justified in making the entry in form, according to the necessary meaning of the finding.</p> <p>2. Where the order of bastardy determines that the child is chargeable to the township, this court will not, in the absence of evidence of payment, or agreement to pay, on the part of the township, for the support of the mother and child, conclude that the child was not chargeable to the township, contrary to what appears on the face of the order.</p>

<p>In case. On motion to non-pros.</p>

<p>On certiorari.</p>

<p>Application for mandamus.</p>

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

The certiorari in this case to the Morris Circuit Court, reviews an order of that court, made March 10th, 1873, in a. suit of foreign attachment, brought by Jerome L. Stout against Amasa Leonard, refusing to quash the writ and supersede the attachment. The writ was issued February 13th, 1872, and a farm and other property of the defendant, Leonard, were taken in said county. The facts upon which the motion to quash was based, appear in the opinion of the court.

<p>1. Where the report of assessment commissioners for street improvements was taken from the file of the city council and returned to the commissioners for amendments, upon objections made by property owners, council cannot recall and confirm it against the protest of the commissioners without amendment, and without notice.</p> <p>2. The contractor under proposals must be held to his bid — not allowed to underbid others and afterwards receive more. The excess will be an illegal charge against the land owners.</p> <p>3. Where the assessment is set aside, new commissioners will be appointed by the court, under the charter.</p>

On certiorari to the village of Passaic, to bring up the assessment or estimate of value and damages, made by Richard R. Post, Edward Morrell and George Denholm, commissioners appointed by Justice Bedle, September 18th, 1871, on the appeal of Daniel Demarest, to review and examine the assessments of Conkling, Condray and Kip, commissioners, &c., appointed March 6th, 1871, by the board of council of the village of Passaic, for the laying and opening of Sherman street.

Several executions were issued on judgments obtained in this court, at the suit of William M. Cox, John R. Ely, Aaron Dawes, and Alfred Perrine, respectively, against the property of Benjamin Marlatt. The sheriffs of Middlesex and Mercer made sale of the defendant’s property, under the executions, and the money was paid into court. By the order of'this court, the amount raised upon the executions, $5419.30, was directed to be paid by the clerk, according to the priorities.

<p>Unless the postea, be filed within the ten days limited by rule forty-five of the Supreme Court, at the first term after verdict, the party holding theposieci cannot, after that time, move for the filing a.nd judgment without notice to the opposite party.</p>

<p>1. Where by the act of March 26th, 1872, constituting a board of commissioners of highways of the township of Cranford, to consist of five persons, freeholders and residents in the township, for the purpose of laying out, &c., public roads, it was provided by section 3, that the said commissioners should be elected by the legal voters of the township, at the next annual town meeting after the passage of the' act, and in the same manner in which the other officers of the said township are elected; four df them were to be elected from the four road districts of the township, and one elected at large, from any road district, as president of the board, and every two years there was to -be an election at the annual -town meeting, and if a vacancy occurred by death or a commissioner becoming a non-resident, the township committee was authorized to fill it; and at the first election Cox and Crane each received the same number of votes for commissioner at large and thereupon the town committee unanimously elected Cox, as president of the board. Held, that the election of Cox was legal, it having been in the manner as other township officers, and the action was warranted by the relation of the act of 1872, to the act of 1860, (Nix. Dig. 992,) in regard to the manner of election.</p> <p>2. The action of commissioners in making assessments of damages and benefits for improvements is judicial, and a commissioner interested in the assessment, otherwise than as a general tax payer, is disqualified from acting on the fundamental maxim, that no man can be a judge in his own cause.</p> <p>3. The effect of his interest is not confined alone to the commissioner interested, for the action of the whole body of commissioners is voidable, if the party interested took part in it, and even if there was a majority of the commissioners left, competent to act without his vote.</p> <p>4. The fact that all power being lodged in the commissioners to lay out roads in the township, and that none could be laid if it happened that a majority of them were interested, unless they were permitted to act, will not create such a legal necessity as to have interested commissioners sit in judgment on their own cases.</p> <p>5. Disqualifications by reason of interests that are common to all tax payers may be removed by the legislature, but the legislature has not the power, where the interest is peculiar and direct, to authorize an interested commissioner to decide his own cause, or to give effect, by a retrospective act, to any action of the commissioners in which he took part.</p> <p>6. When the legislature provides for the exercise of judicial functions it cannot change their essential nature, and authorize a judgment in violation of the maxim that no person can be a judge in his own cause. That maxim is founded in natural justice and fundamental law, and is inherent in and a part of the nature of judicial action.</p>

<p>In debt. On reference.</p> <p>On motion for venire, &c.</p>

In case. On demurrer to declaration. The declaration sets out-, (first and second counts,) that the plaintiffs were large shippers of live hogs from Chicago and Pittsburg to Jersey City, and that the defendants, in the city of New York, on the 1st of December, 1870, agreed with the plaintiffs, that if they would ship by them, they would,on and after January 1st, 1871, transport their hogs from Chicago and from Pittsburg, to Jersey City, at the regular rates, allowing them a…

Declaration in covenant on deed from Ann Maria Bray, the defendant below, to William S. Taylor, the plaintiff, dated March 1st, 1855, which, among other things, contained a covenant that she was seized in her own right of an absolute and indefeasible estate of inheritance, in fee simple of the premises described in said deed, and had good right, full power and authority in the law to convey the same — Broach, that she had not such estate, &c., and had not authority to…

<p>On error to the Supreme Court.</p> <p>For former proceedings in this case see 5 Vroom 377, (State, Pancoast, Pros., v. Troth.)</p>

The certiorari in this case was brought to set aside the tax assessed on certain real estate owned by the prosecutor in the city of Trenton, in the year 1865. After argument, the assessment was affirmed by the Supreme Court at June Term, 1867, an opinion was delivered, but never filed in the office of the clerk. The judgment was removed into this court, and errors assigned.

On error to the Supreme Court. This ease was tried before Justice Depue and a jury, at the circuit for Essex county, at the September Term, 1870. A verdict having been given for the plaintiff, and judgment entered thereon, a writ of error was brought to this court.

<p>On writ of error to Supreme Court.</p> <p>The facts of the case are fully shown in the opinion of the •court</p>

<p>In error to Supreme Court.</p> <p>For former proceedings in this case, see 6 Vroom 208</p>

For former proceedings in this case, see 6 Vroom 265. An article of agreement was made November 3d, 1866, between Henry C. Jeroleman of the first part, and Nelson Edwards and others of the second part, for building a schooner of-specified dimensions, materials, and finish, for the consideration of $54 per ton; the builder to furnish all labor and materials and deliver the vessel in May, 1867.

<p>On error to the Supreme Court.</p> <p>For proceedings in this case and opinion of the court below, see 5 Vroom 332.</p>

The above stated cause coming on to be tried in the Ocean County Circuit Court, before His Honor Edward W. Scudder, Judge, the respective parties agreed that the same should be tried by the court. The plaintiffs offered in evidence a certified copy of a deed from John Borden to William Akins, dated March 2d, 1831, for the lands in question in this suit.

For former proceedings in this case, see 6 Vroom 178. The State of New Jersey, by statute, approved March 14th, 1867, granted to the Morris Canal and Banking Company, all the right, title and interest of the state in and to certain lands under water, defined by boundaries.

<p>The act incorporating- the prosecutors declares that their property shall not be subject to taxes or assessments: Held — that the words ta-xes or assessments are not synonymous, and that they exempt the property from assessments for benefits as well as from taxes for general revenue for public use.</p>

<p>1. A husband may permit a wife to labor for herself, and appropriate to her own use the avails of her labor, and may give to her or allow her to appropriate to her own use the proceeds of her own labor when received by her.</p> <p>2. Such permission or gift is good against the creditors of the husband, if such proceeds have not actually been reduced into his possession.</p>

On error to the Supreme Court. This action was brought in the name of Bailey, by James T. Hatlield, who claims, as the equitable assignee of Bailey, to recover a bounty of $350 from the city, for the enlistment, by Bailey, in the army of the United States. The county of Hudson had offered a bounty of $400 for volunteers, who were duly credited to localities within the county.

<p>1. Where public bodies are entrusted, by statute, with powers of a general nature, it must appear from an inspection of all their proceedings, when properly before the court, that they have kept strictly within their limited sphere.</p> <p>2. It is the duty of the relator to bring up all the proceedings, but a return that all proceedings are sent up, imposes on the defendant the burden of supplying any omission.</p> <p>3. A construction will be adopted to sustain rather than to defeat the proceedings, where it can fairly be done.</p> <p>4. Parties to be affected by such proceedings entitled to notice, whether the statute directs notice to be given or not.</p> <p>5. To set aside an assessment for inequality, it must be shown that commissioners have adopted an erroneous principle.</p> <p>6. If, up to the point of imposing the assessment for benefits, all the proceedings have been strictly correct, a party cannot complain that a larger assessment has not been laid upon him.</p> <p>7. If the land owner permits large sums of money to be expended by the city after the assessment is made, before he applies for a certiorari, the writ should not be allowed where no re-assessment is provided for; and if allowed, it should be dismissed by the Supreme Court when the facts become known.</p>

The suit below was in replevin. The plaintiffs, in their declaration, charge the defendant with taking their schooner, the Rhoda L. Loper, in the waters of Maurice River Cove, in the township of Maurice River, in the county of Cumberland, in this state, with her sails, anchors and appurtenances. To this declaration the defendant filed avowries, in which he admits the taking, and justifies it under the seventh section of the act respecting clams and oysters, {Nix.

On the 15th day of February, 1870, a writ of fieri facias, returnable on the fourth Tuesday of that month, was issued out of the Supreme Court at the suit of Phebe Harris, against Alexander Kirkpatrick, directed to the sheriff of Burlington. It was delivered to the sheriff on the 22d day of the same month, the day on which it was returnable.

On error to the Supreme Court. This case was tried before Justice Depue and a jury at the January Term, 1873, of the Essex Circuit. The horses and wagon of the plaintiff were run over by the train of cars of the defendant, and the suit was brought for damages thus occasioned. A verdict having been rendered for the plaintiff, and judgment entered thereon, a writ or error was brought to this court.

For the facts in this case and the proceedings and opinion of the Supreme Court, see 6 Vroom, 474. To reverse the judgment founded on this opinion this writ of error was brought.

On error to the Supreme Court. This was an action of ejectment. The case came on to trial at the Hudson Circuit, at the Term of October, 1871, before Justice Bedle and a jury. Several exceptions were taken during the trial of the cause, and the judgment of the Supreme Court was removed into this court by writ of error. The facts of the case fully appear in the opinion of the court.

The Morris and Essex Railroad Company, the plaintiffs in error, were indicted at the May Term, 1867, of the Oyer and Terminer of the county of Morris for nuisance. The indictment was removed to the Supreme Court by certiorari, and was tried at the Morris Circuit before Justice Bedle and a jury, at the October Term, 1869, and a verdict of guilty was rendered against the defendants. The record was removed into this court by writ of error.

On error to the Essex Circuit. This was an appeal from an award of commissioners appointed under the act entitled “An act to incorporate the Montclair Railway Company,” approved March 18th, 1867, in the matter of taking the lands of Samuel and Henry K. Benson.