Volume 38 — New Jersey Law Reports

Demurrer to second count of declaration. This count stated that the plaintiff was the owner of a paper mill and premises, situate in Trenton, through and over which premises rail a certain stream or water course, known as Petty’s run, and which stream, &c., before, &c., had run and flowed, and of right ought to have run and flowed, and still, of right, ought to run and flow “ unto the said mill, in great plenty and abundance;” that the defendant was possessed of certain…

<p>1. A railroad company is "bound to keep its track and contiguous land clear of materials likely to be ignited from sparks issuing from its locomotive, properly constructed and driven.</p> <p>2. A person owning land contiguous to a railway, is not obliged to keep) .tlie leaves falling from his trees, from being carried by the wind to .such railway ; nor to keep his lands clear of leaves and combustible matter; nor, on failure to perform such acts, does he become contributory to the production of a fire originating in the carelessness, on its .own land, of the railroad compjany.</p>

<p>In case. On motion for a new trial.</p>

<p>1. On an application for the appointment of commissioners to estimate the damages on a condemnation of land for the use of a railroad, the only inquiry that., as a general rnle, will be made, is, whether the applicant has a prima facie right.</p> <p>2. In this summary proceeding, contestable questions will not be decided.</p>

<p>1. A city is not liable to suit for damage done by surface water running down in large quantities through a new street constructed over the crest of a hill, and there connected with transverse streets.</p> <p>2. Contra, if the opening of such new street draws off the water from a natural water course.</p>

<p>1. An act and its supplement are to be constiued as one law, so tliat the terms of the act may, in their connection with the supplement, have a broader meaning than they originally possessed.</p> <p>.2. An assessment for damages, for land taken to widen a road, includes all damages occasioned by reducing the land so taken to tlie grade of such road, and, consequently, when the grade of such road was subsequently changed, tlie damages occasioned by such change were held not to include any but such as arose by the alteration of the road in .its entire width from the old establh-lied grade to the netv grade.</p>

<p>After damages have been assessed on a condemnation of land for a railroad, the trees, which may be useful in the construction of the road, standing on the tract taken, become the property of the company.</p>

<p>1. Payment of interest on a note drawn by a firm, by one of the members, after the dissolution of the firm, but within six years after the maturity of such note, will renew it, as against the statute of limitations.</p> <p>2. Nor will the fact that one of the firm is a married woman alter the effect of such renewal.</p>

<p>On writ of error to Warren Circuit.</p>

On case certified by the Middlesex Circuit, on a rule to' show cause why a verdiet in favor of the defendants should not be set aside.

<p>1. When a count In a declaration sets forth a cause of action arising out of a contract, and maintainable only by referring to the contract as creating the right for violation of which the plaintiff complains, a recovery can be had only in an action on contract, and not in action for tort.</p> <p>2. Such a count cannot be joined with counts in tort.</p>

On certiorari to remove the assessment for the opening and grading of Lafayette avenue, from Grant street to the River road, in the city of Passaic.

<p>Ou certiorari to remove the assessments for the opening of' Hamilton avenue, in the city of Passaie.</p>

<p>On certiorari.</p>

On certiorari to remove the proceedings against the prosecutor for violation of the license ordinance of the city of Lambertville.

<p>I. What constitutes a sufficient affidavit in a summary proceeding before a justice of the peace, under the act concerning landlord and tenant.</p> <p>:2. If a tenant enters into possession of premises under a parol lease made by the attorney of a corporation, the tenant will not be permitted to dispute the agent’s authority, if the company subsequently ratifies the agent’s act.</p> <p>3. An agent who demands possession for his jmincipal, must have authority to make the demand at the time of making it. A subsequent assent on the part of the landlord will not establish, by relation, a notice given, in the first instance, without authority.</p> <p>4. It is not necessary to prove an express authority to the agent; it may be inferred from circumstances which show the concurrence of the principal in his act.</p> <p>5. It is not necessary to show the tenant by proof, at the time of the service, that the agent had due authority; it is sufficient if such authority actually exists.</p> <p>6. The act concerning landlord and tenant makes no provision for admitting other parties to defend.</p>

<p>Under the 8th section of the act for equalizing assessments for taxes in the county of Hudson, (Laws, 1873, p. 791,) notice must be given to the tax-payer before the commissioners decide that his assessment shall be increased.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. A municipal corporation is subject to garnishment under our attachment act.</p> <p>2. In such case a scire facias cannot issue out of a justice’s court.</p>

Oil certiorari to review the ordinance, reports, resolutions, of proceedings, in respect to the grading of Park avenue, and sidewalks, from Eighth street to the city lines, &c.

On certiorari to bring up the ordinance and notice for widening Cherry street, from North avenue southeasterly to Seventh street, under “ an act to amend the charter of the city of Plainfield,” approved April 4th, 1872.

Ou motion to strike out the second replication to the second plea of the defendant. The action was brought by the plaintiffs to recover from the defendant the amount of his subscription for seventy-five shares of the capital stock of plaintiffs.

<p>Where a road was laid out March 14th, 1872, and a writ of certiorari to review the same allowed May 12th, 1873, the writ will be dismissed for laches, if it appear that the road has been opened, improved, and built upon, with the knowledge of the prosecutor.</p>

On certiorari to James T. L. Anderson, one of the justices of the peace of the county of Mercer. The facts appear in the opinion of the court.

On certiorari, bringing up a resolution of the defendants, passed November 10th, 1874, designating the Hoboken Standard, and Hudson County Journal to publish the proceedings of the council and board of education of said city. Also a second resolution, of same date, that there be paid the proprietors of said papers for doing said wmrk, annually, the sum of $4000, and no more, to be paid in equal monthly payments.

On certiorari to Samuel Groendyke, overseer of the highways of District No. 23, in fhe county of Middlesex, and James Higgins and Richard McDowell, two justices of the peace, and Abraham J. Selover and Charles D. Perrine, two surveyors of the highways of said county, to certify a certain determination concerning encroachments upon a highway running through lands of Peter H. Gulick and others.

The plaintiff produced a note signed by himself, and dated 18th August, 1873, for $1000, payable to the order of the ■defendant. He then proved that the note was paid by him, and that it was an accommodation note for the benefit of the defendant.

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

<p>In case, on mechanics’ lien. On case certified from the Union County Circuit Court.</p>

In case. On demurrer to declaration. The declaration in this case contained two counts.

<p>1. On a policy of insurance against loss by fire, under seal, issued to the owner of the property, in which the insurer covenants to make good unto the insured, his executors, administrators, or assigns, all such damage or loss as might happen, &c., the owner may sue in his own name, although it may be written on the face of the policy, “ Loss, if any, payable to A B, as mortgagee.”</p> <p>2. The direction on the policy to pay to the mortgagee is not an assignment of the policy. Its legal effect is that of a direction, in advance, as to the mode of payment, which, when made, is performance in the manner agreed to by the insured.</p> <p>3. Under such a'direction, if assented to by the insurer, the person in whose favor the appointment is made acquires equitable rights, which the insurer is bound to regard, bnt the contract with the insured is not thereby merged or extinguished.</p> <p>4. In an action on such a policy, in the name of the insured, if the insurer has paid the insurance money to the mortgagee, he may plead such payment as performance, and the rights of the mortgagee can be protected-, and the insurer obtain indemnity against a subsequent suit by the mortgagee by the payment of the money into court.</p>

On rule to show cause why a new trial should not be granted.

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

<p>1. As a general rule, a statute will be construed to be only prospective. But if the retrospective intention clearly appears on the face of a statute, the court will give it that effect, unless to do so will violate some constitutional provision.</p> <p>2. A statute is not obnoxious to constitutional provisions in its retrospective operation, unless it be an ex post facto law, or impairs the obligation of a contract, or deprives a party of a remedy which existed when the contract was made.</p> <p>3. The power of the legislature to change the form of the reined} where no substantial right under the contract is impaired, is well settled.</p> <p>4. Where an assessment of damages in favor of an owner for lands taken, and also an assessment against such owner for benefits, have been made, for the recovery of which, separate action would lie, it is competent for the legislature to provide, by a subsequent statute, that both may be enforced in one action, by setting off the one against the other.</p>

<p>In case. On demurrer to replication.</p>

<p>1. A railroad track laid down upon land witli a view to its permanent improvement or beneficial enjoyment, is deemed a fixture and part of the really.</p> <p>2. The general rule is, that possession of land is notice to a purchaser of the possessor’s title. But this rule does not apply to a vendor remaining in possession, so as to require a purchaser from his grantee to inquire whether he has reserved any interest in the land conveyed. So far as the purchaser is concerned, the vendor’s deed is conclusive on that subject.</p>

<p>On certiorari.</p>

<p>1. Where an improvement has been completed and paid for, with the knowledge of the prosecutors, and without objection, the court will not entertain objections to proceedings prior to the assessment.</p> <p>2. An assessment under the act of March 21st, 1871, amending the charter of the village of Passaic, set aside — 1. Because it did not appear that the commissioners were discreet and impartial persons. 2. Because they failed to estimate and report the value of lands taken, &c., as required by the act.</p> <p>3. These errors not within the curative operation of section 84 of the act to incorporate the city of Passaic. (Laws, 1873, p. 516.)</p>

<p>A resolution of the county board of commissioners, &c., under the act of April 4th, 1873, {Laws, 1873, p. 794,) to the effect that the West Hoboken book of assessment upon real estate be increased at the rate of fifteen per cent, upon the total valuation of real estate in said township, set aside. 1. Because the commissioners, having failed to adjudge that the value of the whole property contained in the duplicate of that township was relatively less than other property in the county,, were not authorized to act. 2. Because the per centage was added to-the total amount of valuation of real estate, and not as it should have been, to the total value of the whole property contained in the duplicate.</p>

The Court of General Quarter Sessions of the Peace of the county of Mercer, request the advisory opinion of the Supreme Court in the above cause. They find certain facts upon an allegation of crime tried before them, by the prisoner’s consent, under the statute, without a jury, and adjudge the defendant guilty. Upon motion for a new trial, a rule to show cause was granted and the finding sent to this court. The material facts appear in the opinion.

In matter of insolvency. On application for mandamus to require the Court of Common Pleas of Passaic county to discharge the relator as an insolvent debtor, &c.

<p>1. In actions of tori, it is usual and proper to endorse tlie judges’ order for bail on tlie capias.</p> <p>2. The affidavits need not be actually filed before the writ is issued, and arrest made, in actions of tort. Aliter in. actions on contract.</p> <p>3. In actions for seduction, it is sufficient for the affidavits to show a cause of action, without a special cause for ordering bail.</p> <p>4. Where a daughter is over the age of twenty-one years, if she still lives in her father’s house, and is in a position where he enjoys and can command her services, he may maintain the action.</p> <p>5. Where the order on the writ is endorsed before the teste, by obvious mistake of the month, the court will give the plaintiff the benefit by the statute of amendments by overlooking the exception.</p>

<p>If the causes for reversal on certiorari be not written down, and filed with the clerk within thirty days after the return is made and completed, unless good cause be shown, the writ will be dismissed.</p>

<p>On certiorari to remove the assessment for construction of sewers in the city of New Brunswick.</p>

<p>1. A plea setting up a discharge in bankruptcy, under the United States bankrupt act, must set out a copy of the discharge, and-conclude with a verification.</p> <p>2. A defective plea of discharge in bankruptcy is amendable on terms.</p>

<p>1. The mother of a bastard child is a party to the proceedings taken under the bastardy act for indemnifying the township.</p> <p>2. If one of the justices, making the order of affiliation, is a cousin of the mother of the bastard, the proceedings will, on certiorari, be quashed.</p>

<p>On motion to vacate and set aside execution.</p>

<p>On certiorari.</p>

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

<p>1. When the words of a statute and their meaning are clear, and they are not rendered dubious by the context, they cannot be controlled by judicial construction.</p> <p>2. The charter of Belleville construed in several particulars.</p>

On motion for a new trial on a case certified from the Monmouth Circuit. This suit was for the neglect of the defendant in maintaining a certain part of a division fence between his land and that of the plaintiff.

On rule to show cause. The plaintiff was assessed for the benefit to his property in Jersey City, by the construction of a sewer, in the sum of SB 10.57. This assessment was paid by him, and was subsequently set aside on certiorari in the Supreme Court. A reassessment of the expenses of this sewer was then made by the commissioners appointed under the act of 1873, p. 442, such re-assessment amounting to the sum of $333.73.

<p>An agreement of a married man to marry, when a divorce should be decreed between himself and his wife in a suit then pending, is contrary to public policy, and void.</p>

Segur, the defendant was engaged in business as a private banker at Dover, in the county of Morris. His business was confined to receiving and paying out deposits, and discounting commercial paper. He was the owner of a lot of land on which he was erecting a banking-house in which he proposed to carry on his business of banking.

The defendant was the purchaser at a sale of mortgaged premises made by the plaintiff as sheriff of the county of Passaic, by virtue of a writ of fieri facias issued out of the Court of Chancery upon a decree of foreclosure.

<p>1. Bail are entitled to relief when the surrender of the principal is made impossible by the act of the law, where the plaintiff loses nothing by the omission of any act which it is in the power of the bail to perform.</p> <p>2. "Whether relief will be granted by bringing up the principal on habeas corpus, or by extending the time for surrender, or by granting a discharge on motion, will depend upon the fact whether the one mode will be more beneficial to the plaintiff than the other.</p> <p>3. The defendant, M., gave bond under the insolvent laws, conditioned that he would surrender himself to the sheriff'of Atlantic county if his discharge as an insolvent was refused. At the time his discharge was refused, he was in the county jail of said county, prior to his removal to the state prison, to which he had been sentenced for crime. Held —that this did not excuse an actual surrender of M. to the sheriff'. He could have said to the sheriff that he put himself into his custody according to the condition of the insolvent bond, and this would have enabled the sheriff to retake him after he had been liberated from incarceration on the criminal charge.</p>

<p>1. To constitute a valid sale or mortgage, at law, tire vendor or mortgagor must have a present property, either actual or potential, in the thing sold.</p> <p>2. Where there is a mortgage of goods to be thereafter acquired by the mortgagor, an execution levied upon the goods after they are so acquired, will, in a court of law, prevail over the mortgage.</p>

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

<p>Motion for attachment for non-payment of costs.</p>

On motion for mandamus. March 2d, 1871, a contract was made between the water commissioners of Jersey City, of the one part, and John W. Mitchell and David B. Bridgeford, of the other part, for building reservoir number three, according to specifications, drawings, Ac.

<p>L. The court will not regard a mere voluntary statement of facts made between tlie parties, for tbe purpose of preparation for argument on certiorari, as conclusive, until it is filed with the clerk of the court. Before that time, it is within the control of the parties, and they may alter or revoke it at their will.</p> <p>2. In the prosecution of writs of certiorari to remove taxes, the rule oí the court requires the utmost diligence, and that the cause be argued ai the term next after the return of the writ at the furthest.</p>

<p>On certiorari to review tax assessment on lands.</p>

<p>Where a corporation is a party to the record, neither the president, secretary, the individual directors nor stockholders are parties to the action, and they cannot be examined after issue joined, and before the trial of said action, under section one hundred and fifty-nine of the practice act.</p>

On motion in behalf of Phineas K. Apgar and others, creditors in attachment of the defendants, to vacate the rule entering the judgment in the above cause, and to set aside the judgment of this court.

<p>1. Time in pleadings held immaterial.</p> <p>.2. Where a debtor has been arrested on a ca. sa., and been permitted to escape by the sheriff) and afterwards has returned to the sheriff’s custody and given bond and made application for the benefit of the insolvent laws, and the creditor has resisted the application, without having knowledge of the previous escape, the creditor does not thereby waive his right of action against the sheriff for such escape.</p>

<p>1. Practice on filing informations in the nature of a writ of quo warranto, stated.</p> <p>2. When the Attorney-General files such an information ex-officio, no leave of the court is requisite.</p> <p>3. Such informations are not prohibited by paragraph 9, Article I, of the Constitution of New Jersey.</p>

<p>1. On appeal to tlie sessions from an order of two justices in bastardy proceedings, the sessions must re-try the cause and render an independent judgment on the merits — a judgment of affirmance or reversal merely is irregular, and will be set aside.</p> <p>2. Under the revised charter of the city of Camden, passed in 1871, bastards are chargeable to the city and not to any single ward. Bastardy proceedings are properly instituted by the overseer for the ward in which the child is born.</p>

On certiorari to review proceedings purporting to have been taken under section nine/y-eight of the act concerning roads. Rev. Stat. 791.

<p>In trespass. On motion to set aside a judgment by default, in order that the defendants might plead.</p>

<p>1. The legal terminus of the road of the prosecutor is not its junction with the tracks of the Camden and Amboy Railroad Company, but a place near the Delaware river.</p> <p>2. The expression, “ at the termini,” in the proviso of the first section of the railroad tax act, approved April 2d, 1873, means “near the termini.”</p>

On application for mandamus. The state of the case, as agreed upon by the counsel for the respective parties, presents the following facts: The board of assessors of Mercer county, for the year 1875, met at the time and place designated by the law, with their several duplicates. The county collector presented a statement of the amount of state and school tax apportioned and sent down by the state comptroller, pursuant to law. Laics, 1875, p. 81.

<p>1. In an indictment for obtaining money by false pretence, a scienter must appear.</p> <p>2. In an indictment for so obtaining an endorsement on a promissory note for §1500, the valuable thing is the endorsement, and not the sum of §1500, and should be so stated.</p>

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

<p>Where a meeting of the inhabitants of a school district is held, and money voted to be raised by taxation at a special meeting, the previous action of the trustees in calling the meeting, pursuant to Sub. XI of Sec. 39 of the school act, should appear in the certificate of the clerk to the assessor</p>

<p>1. Under the charter of the city of Bahway, commissioners were appointed to assess the benefits and expenses for the widening of Milton avenue. In making their report, the commissioners failed to estimate the value of sixteen feet of land belonging to S. P. On application for a writ of mandamus, directed to the said commissioners, to proceed to assess the said sixteen feet — held, that no authority being given anywhere by the charter to the board to amend their report when once ma,de and filed, the application must be denied.</p> <p>2. If tlie commissioners, in making the assessment, have mistaken the location, frontage, depth, or any other element essential to the proper assessment of damages, that fact can only be shown in a proceeding to vacate the assessment.</p>

<p>In 1871 the plaintiff recovered a judgment against the defendants, an execution was issued and returned unsatisfied ; in 1872 the plaintiff died, the fact of his death was unknown to his attorney; in 1873 an alias execution was issued, and property of defendants levied on; on motion to quash the writ, held — -</p> <p>1. That prior to the passing of the amended practice act, (Rev., 1874, \ 204,) upon the death of a sole plaintiff after final judgment, an execution could only properly issue in the name of the plaintiff’s personal representatives, and no other method but the proceeding by scire facias would serve to bring them into court.</p> <p>2. The fact that the plaintiff’s attorney, who caused the alias writ to be issued, was, at the time of its issue, uninformed of the plaintiff’s death, will in no way affect the case.</p> <p>3. There is no power in the court to so amend this writ as to give it validity; the date of the writ actually does, and by law, should express the true time of issuing the writ.</p>

<p>1. The court will not usually, on motion, dismiss a certiorari which has been allowed in open court, and ex parte, on grounds which were before the court, and which must have been considered in allowing the writ, but will, in its discretion, retain the writ until final hearing.</p> <p>2. Whether the provisions of an act of the legislature limiting the time within which a writ of certiorari shall be allowed or granted to review an assessment made under such act, will prevent this court, after the period so limited, from allowing a certiorari to determine the constitutionality of the act, or the portion of it under which the assessment was made, and the relation of the limitation to such act, may be disposed of on the hearing, if the facts present the question.</p> <p>3. The record before the court fails to show that the fact has transpired upon which the time was to begin to run.</p>

<p>Lands held by trustees for a church, situated apart from the church edifice, do not constitute a part of the “ endowment or fund ” of a religious society, and are not exempt from taxation.</p>

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

Suit for damages done to the property of the plaintiff by the bursting of the boiler of a steam engine on the adjoining property of the defendant, Welwood. Garside, the other defendant, had sold this boiler to Welwood, and was experimenting with it at the time of the explosion. The case came before the court on a motion for a new trial, the verdict having gone for the plaintiff against both defendants.

Replevin for certain household articles. The defendant retained these goods, making claim of property, and giving bond. The pleas were non cepit as to all of the goods and property in himself as to part.

This was a case certified from the Circuit Court of the-county of Essex.

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

<p>1. Where one who has purchased lands upon an agreement that part of the purchase price shall be secured by mortgage, to be given on the delivery of the deed, commences, without the written consent of the vendor, to erect buildings upon the land before the actual delivery of the deed and mortgage; the mortgage, if afterwards given pursuant to the agreement, and duly registered, has preference over any lien claim which may have been filed for labor or materials, although furnished before the execution of the mortgage.</p> <p>2. The seizin of the purchaser was a merely transitory one, to which no lien could attach, the mortgage and deed being delivered simultaneously.</p> <p>3. One who purchased the equity of redemption of the mortgagor, after the deed was delivered to him, and who, subsequently, purchased the premises at sheriff’s sale under foreclosure of the purchase money mortgage, holds the title free from the lien claim filed for materials, furnished before the execution and delivery of the mortgage.</p>

<p>1. The instrument sued on in this case being a deed poll and not the deed of the plaintiff, covenants by implication cannot arise upon it. Finley v. Simpson, 2 Zab. 311, was an exception to the general rule.</p> <p>2. Although a copy of the bond is annexed to the declaration, the court cannot take notice of it, because it is not referred to in the body of the pleading as so annexed.</p> <p>3. Performance of an agreement to forbear doing an act, on which a promise to pay money was made, must be averred either specifically or by general averment of performance according to the statute, and when the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the plaintiff than of the defendant, the declaration should state that the defendant had notice of the x3el'" formance by plaintiff.</p> <p>4. An action of Jebt will lie against executors, on the obligation of the testator, that his executors shall pay after his death.</p>

<p>1. An improvement certificate, payable to the contractor or holder, is assignable, subject to the equities between the original parties.</p> <p>2. Whether the debtor can object that the plaintiff' is a receiver appointed by a foreign court — Quere.</p> <p>8. In actions on improvement certificates given for labor and material furnished to the city under express contracts for improvements authorized by the charter, it is not necessary to aver that all the preliminary formalities have been observed, as in proceedings for assessments against the land-owners.</p> <p>I. Certificates of improvement under tlie charter of Hoboken may be issued, payable out of the general funds of the city, when the city fails or neglects for two years to collect the assessments from the real estate benefited.</p> <p>5. The remedy is by action of debt on the certificate, and not by mandamus to compel the enforcement of the assessments.</p>

<p>On certiorari.</p>

Action was brought before the First District Court of the city of Newark to recover for goods sold by the plaintiffs to a minor child of defendant, upon defendant’s credit. The cause was tried before a jury. The plaintiffs proved their books of account, showing the entries against the father for the son. It was proved that the goods were sold by the plaintiffs without the order, knowledge or consent of the defendant.

<p>1. The word “ costs” is a word of a known legal signification. It signifies, when used in relation to the expenses of legal proceedings, the sums prescribed by law as charges for the services enumerated in the fee bill.</p> <p>2. “ Costs of proving the document ” to be paid on refusal or neglect to admit its execution, under the one hundred and fifty-sixth section of the Practice Act, are such costs only as are legally taxable under the fee bill for the attendance of the witnesses, and will not include the extra expenses incurred in procuring their attendance.</p>

<p>1. The common council, in examining and passing upon claims presented against the city, was sitting as a board of audit. As such it was part of its official duty to ascertain the correctness of any bill before giving it approval. In the absence of proof to the contrary, the presumption is, that this duty was performed, and that the account, as audited and allowed, is correct.</p> <p>2. The burden of establishing the incorrectness of the account is on the prosecutor.</p>

Certioy'ciri to Common Pleas, to remove proceedings and return of the surveyors of the highways, in laying out a public road in Shrewsbury township, and the proceedings of the court thereon.

On certiorari to bring up the proceedings of a justice of the peace, under the act concerning landlords and tenants. Ret., p. 422.

On application for mandamus to compel the comptroller to audit and allow certain moneys claimed to be due relator from the State of New Jersey.

<p>On oertioraris to bring up street assessments for improvements on Grand street, Jersey City, from Washington street to Mill creek.</p>

<p>1. The legislature may cure, in municipal proceedings, the want of formalities which it need not have prescribed.</p> <p>2. A preliminary estimate of the cost of a street improvement, made for the purpose of determining who is the lowest bidder, will not prevent the assessment of a larger actual cost, where the discrepancy is without fraud.</p> <p>S. In such assessment, the cost of necessary surveying and improvement certificates, collection expenses and interest may be included.</p> <p>4. The fact that a penalty to he incurred by the contractor for delay, has not been exacted from him, to reduce the cost of the improvement, will not invalidate the assessment, when it does not appear that such penalty could or ought to be enforced.</p> <p>5. The mere fact that, in making the assessment, the commissioners have paid considerable regard to frontage, will not invalidate the assessment, if they have been guided by the principle of apportioning the expense according to the benefits.</p> <p>6. Where the commissioners have failed to report that they have limited the burdens by the benefits, the court will examine the evidence, to determine whether they have done so, and if it appears they have not, the assessment will be set aside, although the reasons filed take no exception to the form of the report.</p> <p>7. An assessment levied without giving the notices prescribed by the charter, will be set aside.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Certiorari to Common Pleas of Warren county.</p>

<p>Where all the requirements for an appeal from a conviction before two justices, under the bastardy act, have been satisfied, an appeal may be entered in the Quarter Sessions, and that court may rule the two justices to send up the papers in the proceeding.</p>

This was an action brought on a fire insurance policy issued by the defendant to the plaintiff, a copy of which policy is hereto annexed, and forms part of this state of the case. The declaration was in the usual form of assumpsit. The pleas were— First. The general issue. Second. A plea that the policy was made void by reason of a breach of the conditions therein contained, prohibiting alienations. Third.

<p>In error to Supreme Court.</p> <p>The facts of the case fully appear in the opinion of the court.</p>

Griffin was the owner of a-horse, which he offered to sell’ to Schenck. The price was agreed upon between the parties, and the horse delivered to Schenck. Schenck made a note-for the sum agreed on as the price of the horse, payable in thirty days, and gave- it- to Griffin. Before the note came due, the horse died’. The note being- in the hands of a third person for value before maturity, was paid by Schenck when it came due.

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

The defendant (plaintiff in error) is an insurance company of this state, incorporated by act of March 8th, 1859, p. 144. Section thirteenth of the charter provides, “ that especial insurance may be taken without the parties thereto becoming members of the corporation, if desired by the insured.” It was therefore not wholly mutual.

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

<p>1. A statement made in good faith at the time of sale, by the vendor, that seed is of a certain kind, such seed, with respect to kind, not being ascertainable by inspection, will lay a ground from which a jury, or a court having power to pass upon facts, may infer a warranty as to kind.</p> <p>2. Where seed are warranted as to kind, and the vendor knows the use to be made of the seed, he is answerable for the difference between the value of the product of the seed sold, it being put to the use specified, and the value of the product that would have resulted had the seed corresponded to the warranty.</p>

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

<p>1. The supplement to the charter of The Morris Canal and Banking-Company, approved March 14th, 1871, (Pamph. L., 1871, p. 444,) which authorized the company “ to lease to any person or persons, or corporation,” empowered it to make a lease to a foreign corporation which had theretofore been recognized by our legislature, and which had a pre-existing capacity to accept the lease.</p> <p>2. The words “ equal to,” in a contract, held to mean “ not less than.”</p> <p>3. A covenant by The Morris Canal and Banking Company not to allow to others a drawback from established rates on the transportation of merchandise over its canal, which it agreed to allow to the covenante e; is against public policy and void.</p> <p>4. Such a covenant does not, however, invalidate the entire contract in which it exists, and from the remainder of which it is severable.</p> <p>5. The agreement to allow the drawback to the covenantee is valid ami enforceable, and others are entitled to equally reasonable terms.</p> <p>0. An express contract between the director of a corporation and bis company is not void, but is voidable at tlie option of the cestui que trust exercised within a reasonable time. No consideration of its apparent or intrinsic fairness will induce a court, either of law or equity, to enforce it against the resisting cestui que trust.</p> <p>7. Such’ a contract is, however, valid and enforceable as to others.</p>

<p>On writ of error to the Hudson Circuit.</p>

In error. This case was tried before Justice Reed and a jury, at the April Term, 1875, of the Bergen Circuit. A verdict having been rendered for the plaintiff, and judgment entered thereon, a writ of error was brought to this court.

This was an action of trover against the plaintiffs in error. The cause was tried at Hudson Circuit, and resulted in a verdict for the plaintiffs below. Judgment having been entered thereon, this writ of error was thereupon sued out.

<p>1. On an application for the appointment of commissioners to condemn lands, when a petition duly verified is presented to the judge, making a prima facie ease, with due proof of notice, the appointment should be made as a matter of course. All uncertain and debatable questions should he certified to the Supreme Court.</p> <p>2. The Supreme Court, on certiorari prosecuted by the aggrieved landowner, bringing up the appointment of commissioners, has power to pass upon all questions which affect the right of the company to take the plaintiffs’ lands, so far as they will show that as to the plaintiffs no suoli authority exists.</p> <p>3. The state granted lands to the plaintiffs with a covenant that, “the state will not make or give any grant, license, power or authority affecting lands under water in front of said lands so granted.” Quere— Whether the right of eminent domain is not an essential attribute of the slate’s sovereignty, so paramount, that it cannot be ceded away, .so as to preclude the legislature from its exercise in this case? In this case it cannot be assumed that the consent of the plaintiffs to the construction of the tunnel under the river may not be secured.</p> <p>4. After the tunnel company had filed its certificate under the general railroad law, the legislature passed an act recognizing its due incorporation, and granting it four years to complete its entire work. Held, that this enactment healed any errors or informalities which might have existed in the mode of its formation, and gave it power to build the road between the points designated in the certificate filed under the general law, as fully as if those terminal descriptions had been incorporated in the legislative act.</p> <p>5. The exceptions in the thirty-sixth section of the general railroad law (Laics, 1873, p. 103,) are designed — first. To permit one railroad in all cases to cross the lands of another — and, Secondly. To forbid any company organized under the act to take or occupy the lands of another company, which are necessary for the franchises of the latter, for any use except that of a way over, through or under them. The proviso following the exceptions secures a company, after it has located its route, from having its route and franchises appropriated, against its will, by any other corporation under color of this general law.</p> <p>(i. The westerly terminus of the tunnel is defined in the certificate to be on the “western shore of the Hudson river, and within or near Jersey City or Hoboken.” The word “shorg” is not used in its strictest sense, but in the more extended and popular sense; as that Jersey City is built upon the western shore of the Hudson river.</p>

This was an action on a policy of insurance against loss by fire, issued by the plaintiffs in error. The ease was tried at Hudson Circuit, and resulted in a verdict for the plaintiff below — Maackens. Judgment having been entered on the verdict, a writ of error was sued out, and errors assigned on the charge of the judge.

<p>An endowment of a religious society, college, academy, seminary of learning or public library, consisting of land, is not exempt from taxation by the fifth section of supplement of April 11th, 1866, to the “ act concerning taxes.”</p>

By agreement of counsel, this case was submitted with briefs upon the following state of the case: It appeared at the trial below, that the defendant in certiorari acquired possession of the premises in dispute a year or more before said trial, and held the same under a claim of right to the ownership of an' unexpired interest or term of years therein, and had rented the same to various tenants, and that, a short time before the trial below, said defendant in certiorari, by…