Volume 37 — New Jersey Law Reports

The referee in this case allowed for certain extra work done by the plaintiffs for the defendant in building a railroad bridge. The statement of facts before the court, showed what the contract was between these parties.

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

<p>On certiorari.</p>

<p>1. A contract between a railroad company operating a railroad in tills state under acts of tlie legislature of this state, and certain individuals, the effect of which is to give the latter, the exclusive right of transporting certain kinds of freight over their railroad, is void from considerations of public policy.</p> <p>2. A contract which has been recognized as valid by the courts of another state, will not he enforced by the courts of this state, if it is in violation of the public policy of this state.</p> <p>3. The defendants intending to put an end to a contract with the plaintiffs, proposed to pay a certain sum for a release from the contract. In an action by the plaintiffs for the breach of the original contract — held,</p> <p>1. That tlie proposition was an offer of a compromise which was not binding unless accepted.</p> <p>2. That, if accepted, the consideration which gave it validity as an agreement, was the release and extinguishment of tlie former contract.</p> <p>3. That, if the plaintiffs intended to hold tlie defendants to the terms of tlie offer, they should have sued on the agreement of compromise, if an agreement was concluded; and that they could not sue on tlie original contract, and use the offer of the defendants as a liquidation .of the damages they had sustained by a breach of the original contract.</p>

<p>1. A contract of insurance made out of this state on property hero situated, is valid, and will be enforced here.</p> <p>2. Although it would be competent, by legislation, to invalidate in our courts an insurance contract made in good faith in another state on property located here, it would be so contrary to the comity which has been observed between the states, that such an intention will not be imputed to the law maker, unless the language used so clearly expresses that purpose as to bear no other reasonable interpretation.</p> <p>3. The regulations of our insurance laws are not merely for the purpose of revenue — they impair the contract made in violation of them, so far, at least, as concerns the right of the foreign corporation to sue upon it. Whether public policy requires that the party insured shall be permitted to enforce the agreement, is not decided.</p> <p>4. The declaration is defective, in that it does not show that when the assessment was made upon the deposit note, the defendant was a member of the company, and, as such, liable to assessment; nor does it show that the losses assessed accrued while the defendant’s policy was alive, or that the assessment was made on the basis authorized by the corporation act. If the policy had expired, the defendant could not be held without alleging that the loss accrued before its expiration. If the policy was alive, the losses must have occurred while it was in force.</p>

<p>On certiorari.</p>

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

<p>On certiorari to the Burlington Pleas.</p>

<p>1. By force of the second section of the charter of the town of Phillipsburg, (Laws of 1872, p. 479,) it is the right of said corporation to be served with summons or other legal process, according to the provisions of the third section of the township act. (Nix. Dig. 977.)</p> <p>2. The intention, of the third section of the township act, which provides that a “ copy of the summons, &c., as may issue against the said township, shall be left with the clerk thereof thirty days, at least, before the session of the court to which the same shall be returnable,” was to make at least thirty days between the service of the summons and the return; the act of March 18th, 1851, (Nix. Dig. 732) having abolished the necessity of regarding terms in the return of writs of summons, a legal service can be made on the township at least thirty days before the return day; on that day the court is, by force of the statute, in session for the return of the writ.</p>

<p>In case. On motion to dismiss exceptions, &c.</p>

<p>On certiorari to bring up proceedings of commissioners of sewers in the city of Hoboken.</p>

<p>Where terms, used in a written contract, are of themselves susceptible of a definite legal construction, llie fact that the parties have adopted and acted on an erroneous construction of the contract will not preclude them, as to transactions not clear, from insisting on the proper and true legal construction.</p>

On certiorari to Morris County Court of Common Pleas. The defendant in certiorari was the tenant of two rooms on the second floor of a tenement house of the plaintiff, at Morristown. She was a widow, with two children ; and a woman named Gilmore, lived with her. Other tenants of the plaintiff, in this and the adjoining houses, made complaint to him of the disorderly conduct of persons in these rooms rented to the defendant, Forman.

Several writs of certiorari bring up the taxes assessed against the prosecutors for the years 1866, ’67, ’68, ’69, ’70, ’71, ’72, on certain lots of land in Jersey City, viz. : on Block 2, twenty-six lots on Hudson street; half pier at foot of Essex street; Block 33, lots nine, ten, eleven, and twelve, Hudson street; Block 33, lots two, four, six, eight, ten, and twelve, Bergen street; Block 164, lots A, B, C, D, Van Vorst street; Block 64, South street, house and stable;…

On certiorari to bring up an assessment for damages and benefits in opening Gregory avenue easterly to Main street, and westerly to Howe avenue, and for grading, curbing, guttering and flagging between said Main street and Howe avenue.

On certiorari to the Court of Common Pleas of Monmouth county, bringing up the proceedings in laying a public road, on application of Richard R. Hulick and others.

<p>On certiorari to the Court of Common Pleas of Essex comity.</p>

<p>1. An assessment for damages and benefits, in laying out, opening, widening, and improving two streets, parts of wliich do not form a continuous line of improvement, and under distinct ordinances passed at different times, but all blended in one appointment of commissioners, report, and assessment, is illegal.</p> <p>2. The law must provide a method for condemning land for streets, before such streets are opened and assessments made.</p> <p>3. A report of commissioners, written on their map, giving only the-names of the property owners, size, and number of lots, and the amount assessed to each, without showing upon what principle the assessment, is made, is irregular, and will be set aside.</p> <p>4. Although the time limited by the statute for reviewing an ordinance for improvements has passed, yet if the assessment is brought up in. time, the court will consider the act and ordinance in determining the-legality of the assessment.</p>

By an act of the legislature, passed March 29th, 1871, a certain part of the township of Union, in the county of Union, was set apart as a road district, and was incorporated under the name of the “ Southeasterly Road District of the township of Union, in the county of Union.” The purpose was to have streets and highways laid out and improved in this district, and for this purpose five commissioners were appointed.

<p>1. When two or more persons, though not acting in concert, occasion an. injury, they are severally liable for the consequences.</p> <p>2. When a house was badly built in consequence of the joint neglect of the architect and the contractor, a suit, founded on such neglect, will, lie against the architect alone.</p> <p>3. Nor will the fact that the owner of the house refuses to pay the contractor a part of the money due to the contractor, on the ground that the house is badly built, bar such suit.</p>

In replevin. On case certified from the Hudson Circuit. The defendant, Jahn, as bailiff of one Ruh, distrained the goods of plaintiff, Weiss, in Hoboken, in November, 1871, for $125, one quarter’s rent due on November 1st, 1871, in advance, for premises in Union Hill, hired by Weiss from Ruh, from May 1st, 1871, to May 1st, 1872.

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

<p>II. and S. entered into business, October 1st, 1871, to continue until April 1st, 1875, unless, at the expiration of eighteen months from the former date, the business did not pay its own expenses, in which event, S. was to have the rig-lit to close it after that time. The entire working-capital, 85000, -was furnished by S. It appearing that, on the 8th of August, 1872, this working capital was lost — held, that S. was not obliged to furnish more capital, or to pledge his credit in the prosecution of the business, and that he might, therefore, terminate the agreement, August 8th, 1872, subject to his liability to pay II. wages to April 1st, 187-3.</p>

<p>1. Fishing for oysters in the navigable waters of this state, is a right common to all its citizens, which may be exercised by them at will, except so far as it is restrained by positive law.</p> <p>2. The legislature may grant the right to plant oysters in the bed of navigable streams to one citizen to the exclusion of others.</p> <p>3. Section 1 of the supplement to the oyster law, approved March 9th, 1855, (Nix. Dig. 134, pl. 26,) gives such exclusive right to the adjacent land owner, when he slakes it off in good faith for planting. But it is a mere license to the land owner, subject to revocation.</p> <p>4. The action of trespass will lie for an invasion of this right.</p>

On rule to show cause why a new trial should not be granted iti the above stated cause, tried at the Essex Circuit, April Term, 1873. James Eaton, of Irvington, Essex county, died January 25th, 1853. He left four sons, James, Thomas, George and Matthias, and his wife Phebe, surviving. Matthias, the plaintiff, was about fourteen years old when his father died ; and James, the defendant, aged about twenty-five years.

The appellant, Samuel M. Clark, owns land in the city of Elizabeth. Two lots, Nos. 22 and 26, are within the line of a proposed street, called Bay way, which was ordered to be opened by an ordinance of the common council, passed July 19th, 1870. Commissioners were appointed under the charter, (Laws, 1863, p. 146, § 96,) to assess the appellant’s damages, with others, in opening said street.

<p>Ou certiorori.</p>

<p>On certiorari in case of bastardy.</p>

<p>On certiorari.</p>

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

<p>On certiorari.</p>

<p>An overseer of the poor has a discretion in refusing to make complaint under the supplement to the vagrant act (Nix. Dig. 1008,) to compel a husband to provide for his family, where there is no reasonable ground to believe, on fair inquiry by the overseer, that the application is a proper one.</p>

On certiorari to remove the judgment and proceedings of the city judge of the city of Plainfield, in a matter of complaint, made against William Howe, the plaintiff in certiorari, for a violation of one of the ordinances of said city.

<p>1. The object of a warrant is to bring the party defendant into court, and if legally insufficient for that purpose, objection should be made to it before the defendant submits himself to the jurisdiction of the court, and goes to trial on the merits of the case.</p> <p>2. The general appearance of the defendant is a waiver of all objections to the form of the process and the manner of its service.</p> <p>3. The due and proper effect of an order made under the supplement of 1864 to the vagrant act, (Nix. Dig. 1008,) upon the defendant to pay a certain sum for the support of his family for the space of one year, is not to absolve the defendant from all liability under the vagrant act to maintain his wife after the expiration of a year from the date of the first order. The first order cannot be set up as a bar to subsequent proceedings.</p> <p>4. Before this court can interfere on certiorari with a matter confided to the discretion of the court below, it must be clearly shown that there has been an unwarrantable and illegal exercise of such discretion to. the substantial injury of the party complaining.</p>

On certiorari. The writ, in this case, brings up the tax assessed against the prosecutor in Mullica township, Atlantic county, in the year 1872.

Three cases between the same parties argued. On certiorari. The actions below were brought to recover penalties for violations of the second section of an ordinance of said city, entitled “ an ordinance regulating the sale of vinous, spirituons or fermented liquors,” whereby it is ordained that it shall not be lawful for any person within said city, to sell any fermented liquors, without obtaining a license for such sale from the mayor and common council, and that any person…

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

<p>1. At common law, and independently of recent statutes, courts of law had the power to order inspection of papers, which, by the pleadings or by being used in evidence, came within the control of the court. But the court, in exercising this control over papers, will merely grant inspection and examination by the party and his witnesses, either in open court, or before an officer of the court, or in the presence of the party iwoducing them, or his attorney, and will not take them from the latter and deliver them into the possession of the other side.</p> <p>2. Quere. Who is entitled to the custody of the duplicate of the assessment of taxes, and the tax warrant, issued for unpaid taxes, after the ■collector of taxes is out of office ?</p>

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

<p>In scire facias to revive a judgment, if the defendant does not appear within four entire days (exclusive of an intervening- Sunday) after the return day, judgment may be taken for the default in not appearing, without a declaration being filed; but if the defendant appears within that time, the plaintiff is required to declare, and the cause proceeds as in other cases.</p>

<p>On motion to set aside rule vacating final judgment.</p>

<p>On motion to set aside service of a summons.</p>

This was a motion to quash an indictment charging a conspiracy.

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

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

<p>In trover. On case certified from, the Hudson, Circuit..</p>

This was an action of debt upon two deputy collector’s bonds, given by Cornelius M. K. Paulison, Dudley S. Gregory, Alfred Spear and Simon Zabriskie, to Eugene Ayers, collector of internal revenue for the fourth collection district of the state of New Jersey.

On certiorari to Isaac H. Pierson and George Godfrey, two justices of the peace, of the county of Union, and John J, Marsh and Anson F, Grant, two surveyors of the highways-of the township of Westfield, in said county, and Clark Scudder, an overseer of the highways of said township, to review certain proceedings for the removal of encroachments on a highway in said township, commencing in front of Samuel E. Young’s blacksmith shop, passing Aaron Clark’s lands, and others, to…

<p>1. On proceedings to condemn lands required by a railroad company, the date of the report of the commissioners is the time with reference to which the valuation of the land and damages for the taking, is to be made by the jury on the trial of the appeal.</p> <p>2. Interest from the date of the award of the commissioners should, as a general rule, be allowed, not strictly as damages, but as an equitable mode of compensating the owner for the necessary delay in ultimately ascertaining the amount be is entitled to be paid.</p> <p>3. This general rule for the allowance of interest, is liable to be controlled by the circumstances of each case. If the owner has bad the profitable use. of the premises, or has received, rents pending the appeal, these circumstances should be taken into account, and interest abated accordingly.</p> <p>1. If the owner is the sole appellant, and the verdict is not in excess of the award of the commissioners, interest should be disallowed. In. that event, the owner is the cause of the delay.</p> <p>5. 4f the company is'also an appellant, Interest should be allowed. By its appeal, the award of the commissioners is superseded, and the power of the owner to enforce payment of his compensation is suspended until the issue is tried.</p> <p>G. in proceedings under statutes for the condemnation of lands, costs are not recoverable, unless given by the statute; and, if given by The statute, the allowance of them in any case will depend upon the terms of the enactment.</p> <p>7. The charter of the company providing that, if the owner appeals, and the jury find the same or a less sum than the company shall have offered, or the commissioners awarded, the costs shall be paid by him; heW>, that if the jury find a less sum as the valuation of the land and damages than was awarded by the commissioners, exclusive of interest, the owner who appeals must pay costs, although the company also-appeals.</p>

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

<p>1. When the Delaware and Raritan Canal Company, the Camden and Amboy Railroad Company, and the New Jersey Railroad and Transportation Company were consolidated into one corporation by the name of The United Railroad and Canal Company, by the acts of 1867 and 1872, each of these corporations had an irrepealable contract with the state, on the subject of taxation, which was embodied in the-consolidating act.</p> <p>2. A corporation having an irrepealable charter which provides for a special mode of taxation, and that “no other or further tax or imposition shall be levied or imposed upon the said company,” may consent to other taxation, or a different mode of assessment from that specified in its charter, by the acceptance of subsequent legislative acts, without impairing the exemption from general taxation contained in its charter. In such event, the new taxation becomes part of the original contract, and modifies its terms to that extent, leaving the restriction, therein on further taxation in full force.</p> <p>3. A grant of lands of tlie state to a corporation by an act of the legislature, for an actual consideration, is a conveyance, and the grantee takes, not as the recipient of corporate franchises, but as owner by the same tide as would be acquired by an individual grantee, and with all the rights and privileges annexed. An exemption from general taxation contained in such legislative grant, is a right which gives value to the estate, and is part of the thing granted, and cannot he modified or repealed without the consent of the grantee.</p> <p>4. The United Railroad and Canal Company having an irrepealable charter and a contract therein with the state on the subject of taxation, is not taxable under the first section of the general railroad tax law of 1873, (Acts, 1873, p. 112,) and not having surrendered their former contract and accepted the provisions of that act in lieu thereof, has not subjected itself to taxation, as provided by the tenth section.</p>

On certiorari to the board of chosen freeholders of the-county of Hudson,, bringing up the resolution of the board ordering payment of a bill presented by one of the coroners-of the county..

Tlie certiorari in this ease brought np the taxes of prosecutors in the borough of Chambersburg for the year 1873. It was argued together with several other cases involving the same questions. One set of certioraris brought up the tax assessed in Chambersburg, another that assessed in Hamilton township, and the third that assessed in the city of Trenton. All the taxes complained of were assessed in the year 1873, and on the same property.

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

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

<p>1. James A. McCreary having acted as one of the commissioners, from April, 1872, until January,-1874, without any objection being made to his authority to act, the court will presume that he is the person named and intended to be appointed by the act of March, 1872, (Laws, 1872, p. 365,) unless there is full and clear evidence to the contrary.</p> <p>2. The assessment set aside—</p> <p>1. Because three of the commissioners who "made it were land owners to be assessed, and therefore judges in their own cases.</p> <p>2. Because the assessment was not imposed according to th.e benefits received.</p>

<p>Taxes and water rents, imposed in Jersey City in 1868, 1869 and 1870 are subject, after February 28th, 1872, to the same penalties for nonpayment as if they had been laid under the charter of 1871, and the city may recover interest and penalties for non-payment subsequent, to February 28th, 1872.</p>

<p>The act, under which the assessors were appointed, (Laws, 1870, pp. 181, 714,) requires the benefits to be assessed upon all the property benefited by the road in proportion to the benefits received. The return certifies that they adjudged that the lands, in their report mentioned, were peculiarly benefited to the extent of the aggregate of the sums assessed as damages, and they assessed the same upon the specified lots in proportion to the benefits received. The return held to be defective, because the assessors do not certify that they assessed all the lands benefited.</p>

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

In covenant. On demurrer to the declaration. This action is brought against the defendants, as heirs and •devisees of Samuel Meeker, deceased, under the act entitled, '“An act for the relief of creditors against heirs and devisees,” passed March 7th, 1797, (Nix.

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

<p>L When the holder of a promissory note receives from the maker a conveyance of certain property as collateral security for the payment of the note, the law implies no contract on the part of the creditor to proceed on the collaterals before he can sue the surety. The surety may at any time after the debt becomes due and owing, discharge it and take the collaterals.</p> <p>2. The rights of the parties are not affected by the fact that the collaterals have depreciated between the time of the maturity of the debt for payment of which they were pledged, and the commencement of suit against the surety.</p>

In covenant. Rule to show cause why the finding in favor of the plaintiff should not be set aside and a new trial granted.

In ejectment to recover possession of lands in the county of Monmouth. On rule to show cause why the verdict for the plaintiff, rejecting the will of James P. Allaire, should not be set aside.

<p>On certiorari.</p>

<p>1. After a public improvement lias been completed and the costs and expenses incurred, it is too late to apply for a writ of certiorari to review tlie preliminary proceedings in laying out the improvement. A writ allowed on such reasons alone will be dismissed, and such reasons will be disregarded if assigned with other reasons.</p> <p>2. A reference by the Essex road board, of an assessment for benefits, back to the appraisers for amendment in a matter of form, is not illegal.</p> <p>3. The Essex road board commissioners are authorized to make compensation for injuries arising from a change in the grade of such avenues only as are constructed by them, and only such damages are to be included in the assessments for benefits.</p> <p>4. Assessment set aside on authority of The State, Kilburn, pros., v. The Essex Public Road Board, ante p. 273.</p>

This was an action of assumpsit, brought by Samuel W. Torrey, plaintiff, against Eli Thayer, defendant, in the Monmouth County Circuit Court, October Term, 1873, on a contract in writing between the parties, dated November 8th, 1869.

A mechanics’ lien claim was filed for §221.68, May 28th, 1873, and a summons issued thereon the same day. The pleadings were filed in due time.

<p>On certiorari to one of the justices of the municipal court of Jersey City.</p>

On certiorari. This writ brings up the proceedings of the city council in relation to the construction of a sewer in Wall street, from the Sound to the summit above Third street. The ordinance under which these proceedings were had, was passed August 21st, 1868, and authorized the construction of a brick sewer between the points above designated.

<p>1. By virtue of the supplement of March 21st, 1873, to the “act for the preservation of deer and other game, and to prevent trespassing with guns,” approved April 16th, 1846, all forfeitures given by the first section of the act of 1846 can be recovered only by actions of trespass.</p> <p>2. The record of a conviction, under a penal statute, must show, on its face, everything necessary upon general principles to constitute a legal conviction; it should set out such facts as are necessary to constitute a statutory offence; that the defendant was convicted thereof; upon what evidence lie was convicted, and the judgment of forfeiture.</p>

<p>1. In laying out a road between two fixed points, the surveyors are charged with tlie duty of determining its course and length, according to their discretion, limited only by tlie description of tlie road applied for, and by tlie requirements of tlie statute.</p> <p>2. It is sufficient if tlie surveyors liave laid out a road which, taken as a whole, does not vary materially from the one described in the application.</p> <p>3. "When the route and length of a road have been adopted by the surveyors, in tlie fair and proper exercise of the limited and qualified discretion which the law gave them, their judgment upon these matters will not he reviewed by this court on certiorari.</p> <p>4. An assessment of surveyors will not be disturbed in this court, merely, on tlie ground of its inadequacy as a compensation to the land owner; but, whenever it plainly appears that such inadequacy resulted from the surveyors having adopted and acted upon a wrong principle in making up their judgment, the whole proceedings will be set aside.</p> <p>5. In assessing damages, sustained by tlie owner of land through which a road is laid, the value of tlie advantages which would accrue to him from the laying of the road should not be taken into consideration.</p> <p>6. An assessment of damages, made in favor of the estate of E. B., is fatally defective, it not specifying particularly the owner, as required by the statute.</p>

<p>On habeas corpus.</p>

<p>■*" aoiaon f°r breach of promise of marriage could not at common law be maintained by or against the personal representative of either party to the contract.</p> <p>2. This is an action ex conlraetu, and not in tort, and, therefore, not within the act of March 17th, 1855. (Nix. Dig., p. 4.)</p> <p>3. Hot being an action which may originally be prosecuted against the personal representative, it abated by the death of the defendant after issue joined.</p>

<p>On certiorari. In matter of grading Graham avenue.</p>

<p>On certio'i'ari.</p>

<p>On certiorari.</p>

<p>On motion to quash writs.</p>

<p>On certiorari.</p>

<p>1. Where a charter makes lands, fronting on a street, subject to assessment for improvements, in proportion to the benefit received, a land owner cannot, after the ordinance is passed and the work commenced, withdraw a portion of his lands from liability to assessment by conveying away a ribbon fronting on the street.</p> <p>2. This assessment made upon an erroneous principle; it should have been made according to the provisions of section 39 of the charter of 1871, and not under the charter of 1870.</p> <p>3. ■ Assessment set aside as to all the parties who have been assessed, so that a new assessment may be made.</p>

<p>In February, 1872, this assessment was set aside as to eleven prosecutors-The act of April, 1871, authorizes the appointment of new commissioners, when an assessment is set aside. Under this act new commissioners were appointed, who made the assessment in this case. Held, that the word “ assessment,” in the act of 1871, signifies an entirety, and that no new assessment could be made until the entire original assessment was set aside.</p>

<p>Savings banks without capital stock, being taxable for the full amount of their property and valuable assets, without any deduction for debts or liabilities, are to be taxed for their deposits.</p>

<p>It does not appear that the commissioners who made the assessment, were either legally appointed or sw'orn. A new assessment being provided for, the assessment for grading set aside as to all persons assessed.</p>

<p>On certiorari. In matter of Totowa avenue.</p>

On error to the Supreme Court. The 7th section of the charter of Newark (Pamph.

<p>1. By a devise to S. of “ all that part of the premises situated on the southeasterly corner of Elm and Mulberry streets, now occupied by him,” the devisee takes that part of the premises with all the rights and privileges in the yard, parcel of the premises, which he had held and occupied of right under and by virtue of his agreement with the testator.</p> <p>2. Parol evidence is competent to show the terms of such agreement, and the extent of the occupation by virtue of the contract.</p> <p>3. This case distinguished from Fetters v. Humphreys, 4 C. E. Green 471.</p>

<p>1. The making of deeds by land owners, recognizing the existence of a street, is conclusive evidence against them of the dedication of the street to the public use, either by the grantors themselves, or by those under whom they claim.</p> <p>2. It was within the powers of the commissioners to lay out streets and avenues in the city of Elizabeth, under the act of March 13th, 1807, to close and vacate public streets, but the mere fact of the omission of a street on the map made by said commissioners, is not evidence that they adjudged and determined that such street should be closed, or even of the intention of the commissioners to close the street.</p> <p>3. If such street was, in fact, closed by the commissioners, the presumption is, that it would have been laid down upon the map, and marked as other streets designated to be closed.</p> <p>4. Such street not having been closed by the commissioners, the common council of Elizabeth may, under the charter, accept the same in the mode prescribed by law.</p>

<p>1. In an action of assumpsit, brought to recover compensation for services as an agent in selling real estate, tiio declaration contained a special count on a contract for tlie payment of a stipulated per eentage on a specified price, and also the common counts. Held, that the plaintiff might recover on the common counts.</p> <p>2. Interest on such a claim is recoverable from the time when the contract between the seller and the purchaser procured by the agent was made.</p> <p>8. The fact that the agent had taken out no license, as a real estate agent under the internal revenue law of the United States, will not affect his right to recover compensation. The sole object of that law, in requiring a real estate agent to take out a license was to raise revenue. The question in such cases is, whether the statute was intended as a protection or merely as a fiscal expedient; whether the legislature intended to prohibit the act unless done by a qualified person, or merely that the person who did it should pay a license fee. If the latter, the act is not illegal.</p> <p>4. The rule that an agent, employed to sell, cannot himself be a purchaser unless he is known to his principal to be such, applies where the employment is to sell at a stipulated price.</p> <p>5. It should be clear that a misdirection in a charge has done no injury to the party complaining of it, and if there is reasonable doubt on that head he is entitled to the benefit of it.</p>

<p>In error to the Supreme Court.</p> <p>For former proceeding's in this case, see 6 Vroom 415.</p>

<p>In error to the Supreme Court.</p>

In error. The New Jersey, Hudson and Delaware Railroad Company iras chartered by act of the legislature of New Jersey, March 8th, 1832; and, by said charter and several supplements, authorized to survey, lay out, and construct a railroad, or lateral roads, from the Delaware river, between the New 'York state line and where Paulius Kill empties into said river, to the Hudson river, opposite the city of New York.

<p>()n error to tlie Supreme Court.</p> <p>The facts of the ease are fully shown in the opinion of ■¿he court.</p>

The suit below was iu replevin. Gilbert Compton, the defendant in this case, was the special officer appointed under and by virtue of an act of the legislature, approved March 21st, 1871.

On error to the Supreme Court. This case was tried at the Hudson Circuit, before Justice Bcdle and a jury. A verdict having been rendered for the plaintiff, and judgment entered thereon, a writ of error was brought to this court.

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

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

<p>L Railroad corporations are common carriers and they occupy a peculiar relation to the public as invested with certain franchises for the public benefit, and they are hound to use them with fairness and for the common good.</p> <p>2. A common carrier owes an equal duty to all and it cannot he discharged if he is allowed to make unequal preferences and thereby prevent or impair the enjoyment, of the common right.</p> <p>3. A contract of a railroad company which gives to certain persons an exclusive advantage or monopoly over all other transporters in the transportation of goods, is unjust and cannot lie legally enforced.</p> <p>4. In the. grant of a franchise of building and using a public railway, there is an implied condition that it is held as a quasi public trust for the benefit of the public, and the company possessed of the grant must exercise a perfect impartiality to all who seek the benefit of the trust.</p>

<p>1. The charter of the village of Passaic provided for the assessment of the cost of grading streets upon the lands fronting on the improvement, in proportion to the benefit to be received by each lot or parcel thereof — held, that the legislature intended by the language employed “in proportion to the benefit to be received,” not only ratio of assessment, but limitation also, and by implication to have limited the assessment to the amount of benefit. It is a necessary implication from the language of the provision, that the assessment must be confined to those whose lands are benefited by the improvement, because the ratio is based on the benefit received.</p> <p>2. It is essential to the validity of an assessment made under the provisions of this charter, that it affirmatively and unequivocally appear that the assessment does not exceed the benefits.</p>

<p>Error to the Supreme Court.</p>

<p>1. A sheriff cannot be amerced for a failure to return an execution and file an inventory on or before the return day of the writ. Nor for refusing to grant an adjournment of his sale.</p> <p>2. But he may be amerced for neglecting to execute his writ, and any misconduct which substantially deprives the party of the substantial benefit of such writ is such neglect.</p> <p>•3. Held — the sheriff was properly amerced, because, after levy, he permitted the defendant in execution, being a store-keeper, to continue selling the goods taken in execution.</p>

<p>1. To entitle (lie workman, or materialman, to an action against the owner, under the 3d section of the mechanics’ lien law, (Nix. Dig. 572,) and the 2d section of the supplement thereto, of March 14th, 1863, (Nix. Dig. 581,) there must bo a debt due from the owner to the contractor at the time the notice required by the statute is given.</p> <p>2. If, before that time, the debt has been legally assigned, so that the contractor has no control over or right of action for it, a notice given to the owner by the workman or materialman will create no obligation under the statute as against the owner.</p>

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