Volume 39 — New Jersey Law Reports

<p>On case certified from the Hudson Circuit.</p> <p>Mechanics’ lien filed May 28th, 1873. Summons was duly issued and declaration filed. The builder pleaded non-assumpsit and the owner the statutory plea. Notice of the nonjoinder of one John Lindsey, as a plaintiff, was duly served.</p> <p>The plaintiff thereupon made a motion to amend the lien-claim and other proceedings by the insertion of the name of said Lindsey as co-claimant and plaintiff.</p> <p>This motion was certified to this court for its advisory opinion.</p>

<p>On error to the Monmouth Pleas.</p>

On error to Gloucester Circuit Court. This was an action of trover, brought by the sheriff of Salem county, John Hires, to recover the value of two hundred bushels of corn, under the following circumstances: In November, 1873, George W. Heritage was the owner of about five hundred bushels of corn, in bulk, and sold two hundred bushels of the same to William Hurff, who paid cash.

On rule to show cause why a new trial should not be; granted. The plaintiff brought an action of debt against the defendant on a sealed bill or agreement, wherein Joseph A. Cor lies; promised to pay Hannah Quick, the plaintiff, one day after.' date, the sum of $500, not to draw interest until his fCorlies’)' death ; “ and it is not to outlaw by the statute of limitations,, value received.” Dated December 15th, 1854. Joseph Corlies died February 4th, 1875.

<p>1. Where the commencement of an official term is not otherwise fixed, the term begins as soon as the appointee is authorized, by his own action, to legally assume the duties of his office, and not merely when he actually enters upon the office.</p> <p>'.2. Under thé second section of the supplement to the charter of Jersey City, approved March 24th, 1873, (Pamph. L. 400,) the mayor’s power to veto extends only to such action of the city boards as partakes of a legislative character, and not to the appointment of city collector.</p> <p>.•3. WThen a board has completely exercised its power of appointing a person to an office, and that person is not removable at the will of the board, a rescission of the appointment will not affect the right to the office.</p> <p>•4. The power to remove an officer “ for cause,” can be exerted only for just cause, and after the officer has had an opportunity for defence.</p>

The plaintiff sued to recover three distinct claims. One was for money paid usuriously upon various loans by plaintiff to the defendant. • The amount so paid was $46.75. At the trial at the Monmouth Circuity the court charged that this amount so paid could be recovered, to which charge an exception was taken.

On certiorari. In matter of laying out a street in the village •of Long Branch. This writ of certiorari is prosecuted to review the proceedings of “ The Long Branch Police, Sanitary and Improvement Commissioners,” in opening and widening First avenue from Depot avenue to Chelsea avenue.

<p>A foreign corporation, whose business is the mining of coal in Pennsylvania, which is sent by railroad across this state to tide-water for shipment to customers in other states, and whose office for receiving orders for coal and transacting its business, is in. New York city... 1-Ield—</p> <p>1. That such corporation is not taxable on coal lying on its dock, which' is delayed within this state, awaiting shipment to'other states.</p> <p>2. That such corporation is not taxable on coal shipped direct from its-mines and delivered in this state, in cars, to local dealers, on. orders-transmitted through its office in New York city.</p>

<p>The Board of Aldermen of Jersey City, acting under the charter of 1871,. (Pamph. L., 1871-, p. 1094), passed the following ordinance: “ Sec. 1. No person or persons shall drive, or cause to be driven, any drove or droves of horned cattle, (except milch cows), through any of the-streets, avenues, &c., in Jersey City. Sec. 2. That any person, &c.,, that shall violate the provisions of this ordinance, shall, for every such, offence, forfeit and pay the sum not exceeding §50.” Sec. 24, pi. 5,, of the charter, authorized the board to pass ordinances to regulate and control the driving of cattle, &c., through the streets, &c., of the city. Held—</p> <p>1. That the ordinance in question is not bad for uncertainty in the penalty.</p> <p>2. That it is bad for vagueness and uncertainty in the thing forbidden»</p> <p>3. That if the effect of it is effectually to prohibit, &e., it is void, for the additional reason that the board had, by their charter, no authority to make such an ordinance.</p>

<p>On certiorari:</p>

<p>1. A state cannot be sued in its own courts without its consent, and, therefore, money in the hands of the state’s treasurer, due to a nonresident debtor, cannot be attached at the suit of a creditor.</p> <p>2. No other property being attached, the writ is quashed.</p>

<p>On ceriiorari to remove the assessments for a sewer on Harrison avenue, in the town of Harrison.</p>

<p>Notice must be given of the making of the final assessment, under Section 7 of the supplement to the city charter of Elizabeth, passed April 4th, 1873.</p>

<p>Under Sections 11 and 14 of the charter of the city of Camden, the office of a councilman becomes vacant, and the right to make an appointment in his stead arises, when he ceases to have such a residence in his ward as will entitle him to be an elector.</p>

'Oil rule to show cause why mandamus should not issue to the township committee, directing them— 1. To cause the damages awarded for laying out a public road to be duly assessed, collected and paid. 2. Directing said committee to assign said public road to an overseer of the highways. 3. Directing said committee to appropriate to the opening and construction of said road, so much of the road moneys assessed and collected in said township as may be necessary for that purpose.

Ou certiorari to Monmouth Pleas. The facts are contained in the following state of the case certified: This canse was tried before-the Monmouth Pleas, without, a jury, at the O’ctober Term,. 1874..

' On 'certiorari to remove proceedings of the board of aider-men of the city of Paterson for the payment of money. Two bills were presented to the city of Paterson by Mr. Woodruff, for legal services rendered by him under an employment, as it is claimed, by the city authorities. One bill for $1000 was paid, and the other, for $3723.60, remains unpaid.

<p>On certiorari to remove assessment of taxes.</p>

On certiorari to review tax. The assessor of Holmdel township, in the .county of Monmouth, assessed “ Elizabeth Longstreet, deceased, estate of/7 for personal property, in 1873, value, $12,500, and in 1874, the same form of assessment ón valuation, $12,000.

On rule to show cause why a new trial should not be granted. In this case it appeared from the evidence that William W. ■Cook, deceased, owned five-sixteenths of the barque Tillie Van Name, in common with the plaintiffs and others.

This was an action of assumpsit, founded upon a policy of insurance, issued under seal by the plaintiffs in error, upon the life of Frederick Day, deceased, the testator of the defendant in error, in his lifetime, and dated October 29th, 1868, for $10,000. The declaration was filed December 10th, 1874, and the defendant’s pleas were filed February 15th, 1875.

<p>A justice of the Supreme Court has power to strike out, as a sham plea, the general issue, accompanied by the statutory affidavit. ' If the plea is false, it is not an invasion of the right of trial by jury.</p>

<p>1. In an action against persons as partners, mere reputation of partnership is incompetent. The plaintiff cannot make out a prima facie case so as to shift the burden of proof by showing reputation simply, and: not connected with facts evincing that the reputation existed by the authority, assent, connivance or negligence of the person sought to be-charged.</p> <p>2. Whether a statute of the State of Illinois, respecting limited partnerships, can be proved in the courts of this state by the parol evidence of a witness learned in the laws of that state, is not a question presented in this case, because the limitation here relates only to the nature and scope of the partnership business, and not to the extent to-which one of the partners may be liable. Statutes respecting limited partnerships apply to the latter class of partnerships, and not to the-former.</p>

<p>By agreement under seal, T. agreed, among other things, to sink shaft No. 4, on the Morris and Essex tunnel, &c., to drive the headings, and tunnel from the shaft to points where the headings should meet the headings driven from the other shafts, and to place all materials taken ■out of the shaft into cars at the mouth. M., the contractor with the railroad company in the construction of the tunnel, agreed to furnish as many cars as he could conveniently supply, and the track for the same, for removing materials from mouth of shaft—$4 per cubic yard to be paid for the sinking of the shaft, and $6 per cubic yard for the headings and tunnel. It was further agreed between said parties, that if T. did not drive the work to the satisfaction of the chief engineer, M. should have the right to enter upon and take possession of the works, and put on as many men as would insure the completion of the work.</p> <p>M., having received notice from the chief engineer that the work was not driven to his satisfaction, forthwith notified T. of his intention to enter, &c., and did, shortly afterwards, enter and take possession of the work, and completed it, without the consent and against the will of T., who thereupon brought this action.</p> <p>Evidence having been produced at the trial tending to prove bad faith on the part of M., the court charged the jury, that if the defendant, by unreasonably withholding cars from the plaintiff, caused the delay, or designedly embarrassed the plaintiff in his work, and procured the notice to be given merely to get possession, &c., and did so get posses- • sion, and get the plaintiff out of his employment, then the plaintiff should recover;' that the clause as to furnishing cars did not mean that M. should furnish only such as might suit his whim, but as many-as he could without inconvenience to himself, in meeting the reasonable demands of the work as a whole; and that the plaintiff, if entitled to recover at all, was entitled to recover, as damages, all the profit that would have resulted to him from the work if he had been permitted to perform it according to the contract. Held—</p> <p>1. That there was no error in the charge.</p> <p>2. That, although at common law and in this state, before the act of March. 17th, 1855, an objection to the form of action might have.been fatal,, it was rightly held by the court below that the error was amendable.</p> <p>3. That damages arising after suit brought might properly be allowed by the jury.</p>

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

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

<p>1. The action of a board of health, finding that a nuisance exists on a person’s property, such finding being in the absence of such person, and without notice to him, is void, even when it comes collaterally in question.</p> <p>2. The question whether a nuisance exists, cannot be settled conclusively, except in a.regular course of law, before the established courts of law or equity.</p>

<p>In error to the Supreme Court.</p> <p>For opinion of the Supreme Court, see 9 Vroom 228.</p>

On demurrer to the following pleas: And these defendants, by way of amendment, for and ire lieu of the seventh and eighth pleas by them heretofore pleaded, say, as to the moneys alleged in said declaration to> have been embezzled by the said Josephus Sooy, junior, and withheld, that the said State of New Jersey ought not, by reason thereof, to have or maintain their aforesaid action against them; and thereupon they say that it is required by the laws of said state that the…

In assumpsit. On attachment. On case certified from Hudson Circuit Court., The above-stated cause is assumpsit for ships’ stores, and was commenced by an affidavit in attachment, made by Robert H. Thayer, one of the plaintiffs, that Webster Treat owed to the plaintiffs the sum of $266.10, and was a nonresident.

On rule to show cause. The action was, in form, quare clausum fregit. The defendants were the owners of a brickyard, which was sold under a foreclosure, at which sale the plaintiff became the purchaser and took a deed from the sheriff, dated March 21st, 1874. On the day of the sale, or within a day or two. thereafter, the plaintiff agreed orally to give the defendants two months to re-purchase the premises at a fixed price.

<p>1. A judgment rendered in another state, when sued on here, can be impeached only on the ground that the adjudging court did not have jurisdiction over the person of the defendant or the subject matter.</p> <p>2. If the defendant was present in the foreign state when proceedings were begun, and process was served upon him, no irregularity, in such service, unless such as deprived it of all eitatory effect, can be set up against the judgment ensuing thereon, in a suit on such judgment, in this state.</p>

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

On demurrer to the declaration. The articles of agreement sued on, commenced in these words, viz.: “ Agreement made this, &c., between Anson G. P. Segur, of, &c., of the first part, and Hudson Hoagland, of, &c., of the second'part, witnesseth.” The substance of the agreement was, that Segur would sell and convey to Hoagland a certain lot and banking-house.

On rule to show cause why a new trial should not be granted. The facts were as follows: The plaintiff was a farm laborer in the employ of William L. Coleman, living at Flanders village, four miles from Succasunna, in Morris county, and was sent on the morning of December 5th, 1874, with an empty wagon and team to the Suecasunna station for a load of lime.

<p>In an assessment of damages under judgment interlocutory by default,, the only matter that the plaintiff has to prove, or the defendant is permitted to controvert, is the amount of damages. The cause of action stated in the declaration, and the right to some damages in respect to-it, are admitted by the default.</p>

<p>Under the act to provide for the drainage of lands, approved March 8th, 1871, (Pamph. Laws, p. 25,) only the lands described in the report of the managers of the geological survey, and in the notice of the application for the appointment of commissioners, are liable to assessment.</p>

This is an action upon a lien-claim. Anderson is the builder and Voorhees the owner. No plea was filed by Anderson, and a judgment was entered against him. Judgment went in favor of the owner, Voorhees.

This is an action originally brought in the Common Pleas of Warren, against the administrator of a lunatic. The claim Avas for board, lodging, &c., of the lunatic from June 9th, 1873, to October 22d, 1873. There Avas offered in evidence, on the trial, proceedings upon a commission of lunacy, the return to Avhich was a finding, dated October 14th, 1873, that said Sarah Search was a lunatic and had been such for three and a half months-previous to that date.

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

<p>1. What a state of the case, sent up by the judge of the District Court of the city of Newark, to the Court of Common Pleas, shall contain, will depend on the nature of the legal decision to be reviewed. If the objection is to the rejection or admission of evidence, the state of the case should comprise so much of the case and of the prior evidence as will fairly present the legality of the judge’s ruling. If the case be tried by a jury, and exception has been taken to the charge, it should contain so much of the evidence as will submit to the Court of Common Pleas the propriety of the instructions given. If it be tried by the judge, and the complaint is of the legal principles on which the issue was decided, it should contain only the facts as found by the judge— his determination in that respect being final.</p> <p>2. If the judge refuses to make and sign a state of the case, he may be compelled to do so by mandamus ; and if a state of the case has been made and signed, but is defective, the Court of Common Pleas may require the judge to certify in relation to such matters wherein the state of the case is found to be deficient, and his return to a rule to certify will be conclusive. Neither this court, on mandamus, nor the Court of Common Pleas, on an alleged defect in the case stated, will take affidavits of what occurred in the District Court, and compel the judge to embody, in his certificate of the case, the facts so ascertained.</p> <p>3. A writ of mandamus will lie to the judges of an inferior court to seal a bill of exceptions, but not to settle it in a particular way. The writ when issued will be in the alternative form, quod si ita est, and if it be returned quod non ita est, it is sufficient.</p> <p>4. Where the thing in issue, on an application for a mandamus, relates to . a matter with respect to whicli an inferior court or special tribunal is, by law, invested with a discretionary power to decide questions of law or to ascertain matters of fact, the court will not, by proceedings by mandamus, usurp_ the power to dictate how the discretion shall be exercised, or to decide what conclusions of law or of fact shall be reached.</p>

<p>1. The ancient rule of the common law, that it was of the essence of a highway that it should be laid to a market town, or from town to town, and be a thoroughfare having no terminus a quo or terminus ad quem, has been overruled. It is now not essential tó a highway that it be a thoroughfare. If, in fact, it is open and common to all the public, it is a public highway, without regard to the place of its termination.</p> <p>2. A road may be laid out as a public road, under our statute, though it have, at one end, no outlet, and terminate on private property.</p> <p>S. The fourth section of the act concerning roads, which provides for laying private roads, does not limit the public right of laying public roads. Its purpose is solely to provide a means for private individuals to obtain access to highways, under circumstances in which a public road might not be deemed necessary.</p> <p>4. The jurisdiction to determine whether the public road applied for is necessary for public convenience, is lodged exclusively in the surveyors of the highways, and the power to review their determination is conferred exclusively on the freeholders who shall be appointed to review their proceedings.</p> <p>5. The Court of Common Pleas has jurisdiction to determine whether the proceedings have been conducted in compliance with the statute, and may set aside the report of the surveyors, or the certificate of the freeholders, for non-conformity with the requirements of the statute, or illegality in matter of substance, but it cannot review the judgment of the surveyors in determining that a public road was necessary, and set aside their return, on the ground of error in judgment.</p>

<p>1. When an inferior tribunal fails to pursue the provisions of a legislative grant and to keep within it, the right of this court to review the erroneous proceedings attaches, and it is beyond the power of the lawmaker to arrest the employment of the appropriate writ for that purpose. A legislative act prohibiting a writ of certiorari in such case, is unconstitutional and void.</p> <p>2. A reasonable time may be limited within which the writ in such case shall be sued out.</p> <p>3. Quere. Whether it is within the range of judicial inquiry to determine what is a reasonable time?</p> <p>4. Where the provision of the law under which an assessment is made, is unconstitutional, the right of the legislature to limit a time within which a certiorari shall issue to review it, doubted.</p>

On application on the part of defendant to have judgment recovered against him bjr plaintiff set off against a judgment against plaintiff, held by defendant by assignment.

<p>Under the act of 1869, p. 1225, (the ñve-oonaty act), all lands to which it applies are to be taxed in the township wherein they lie. This repeals, by necessary implication, the provision in the general law of 1866, (Nix. Dig. 951, pi. 88,) that an occupied farm or lot lying partly in one township and partly in another, shall be assessed in the township where the occupant resides.</p>

<p>The act of March 26th, 1852, (AYr. Dig. 946, pi. 61,) confers upon this court power to correct an assessment for taxes, if it can be shown that • the amount or value of taxable property for which any person is therein assessed, is too great.</p>

<p>On certiorari.</p>

On certiorari bringing up proceedings touching the laying-out of a public road in the township of Bedminster, in the county of Somerset.

<p>On certiorari.</p>

<p>On certiorari.</p>

Indictment for misdemeanor. On motion in arrest of judgment. The defendant was indicted by the grand jury of Burlington county for obtaining money of the said county not justly due and owing to him. The indictment was removed into this court by certiorari, and went down for trial before the Circuit Court of that county, at the September Term, 1876.

On habeas corpus. The writ was allowed on the petition of Clara M. Landis, setting out that she had separated from her husband, on account of cruel treatment, and was living in a state of separation ; that there were two children, each under the age of seven years, in the custody of Charles K. Landis. The writ was prayed for, &c. It ivas allowed, and made returnable August 9th, 1875.

On habeas corpus to bring the body of the relator, Edward T. McDonald, before the Supreme Court, directed to John G. Vermilye, warden of the Essex county penitentiary. The facts appear in the opinion.

<p>In error to the Morris Circuit.</p>

This case was tried before the Circuit Court of the county of Essex. The facts were as follows : The plaintiff, since 1865, has been the owner of a mill or manufactory, situate near Tony’s brook or First river, a natural stream, in Montclair township, Essex county. For sixty years, the mill had the use of the water of the stream, which was conveyed from the mill-pond, across or under the turnpike, by means of a flume or raceway.

This action was brought by Salmon, the defendant in error, against the railroad company, to recover damages for the» destruction of his property by fire. At the trial at the circuit, a verdict was had against the defendants below, on which judgment was entered, whereupon this writ of error .was sued out.

<p>1. Upon the removal by the Orphans’ Court of an executor or administrator who has wasted the estate, the right of redress for such devastavit passes to #his successor in office, and cannot be exercised 'by creditors.</p> <p>2. If a creditor has commenced a suit against such original administrator, founded on a devastavit, upon the removal of such administrator the action cannot be continued against such administrator.</p> <p>Query—May such action not be continued against the substituted administrator?</p>

<p>A combination between one member of a partnership and a third person, to issue and put in circulation tbe notes of the Arm, drawn by such partner for tbe purpose of [laying his individual debts, tbe intention of the combination being fraudulent, is an indictable conspiracy.</p>

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

<p>1. A second mortgagee of realty may maintain an action on the case-against the mortgagor, or his assigns, for an injury to the security resulting from the removal of fixtures or other waste by the defendant.</p> <p>2. In such action, the plaintiff need not prove actual knowledge of his mortgage on the part of the defendant: constructive notice, by proper-registration, is sufficient. Nor need he prove that the defendant acted fraudulently, or intended to injure him: actual damage, necessarily resulting from the defendant’s act, is the legal basis of his suit. Nor is-the insolvency of his debtor a material fact.</p> <p>3. In such an action, the damages recoverable are to be measured by the injury to the mortgage as a security; and if it be doubtful whether the damages should not go to the first mortgagee, the court will exert its equitable powers to control the disposition of the fund so that no-injustice may be done.</p>

<p>In replevin. On writ of error to the Essex Circuit Court.</p>

<p>In assumpsit. On demurrer to replications.</p>

<p>The act of March 22d, 1871, {Pamph. L., p. 691,) which divided the township of Hackensack into the townships of Ridgefield, of Englewood and of Palisades, and which declared that the inhabitants of said townships should be liable to pay their just proportions of the debts of the inhabitants of the township of Hackensack, did not, proprio vigore, make any single township legally responsible for any particular debt, even though the debt had been wholly contracted for work within its territorial limits.</p>

On demurrer to declaration. The declaration in this case sets out substantially the following: That the defendants, on December 19th, 1874, made a contract in writing with one McDonald, by which McDonald was to erect and finish two pavilions on Snake Hill, in Hudson county, according to specifications, and to find materials for the same, for which said McDonald was to receive $6718; that said contract, or a duplicate thereof, was, on December 23d, filed in the office of the…

In January, 1875, John Van Horn filed his claim against Mary E. Middleton and John A. Middleton, her husband,, builders, and Darwin R. James, owner. Suit was brought. James alone appeared. The cause was tried without a jury, at the September Term of the Somerset Circuit,, in the year 1875.

On rule to show cause. The defendant was indicted for forging, and also for uttering, as true, five several promissory notes. The first was a note for $800, of the date of October 7th, 1874, drawn to the order of Clement Hall, and signed by Louis M. Hall. The second was for $800, of the date of October 16th, 1874, drawn in the same form. The third was for $1000, of tho date of October 29th, 1874, drawn in the same form.

In ejectment. On casé certified from the Salem Circuit Court.

On certiorari. In matter of taxation. The following state of the case was agreed upon by the-counsel of the respective parties : The North Ward National Bank of Newark, the prosecutor, is a banking association, organized under the act of Congress of the United States, having its banking house in the city of Newark, in the county of Essex, in the State of New Jersey. The capital of the said banking association is the sum of $250,000, and its surplus the sum of $11,000.

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

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

<p>1. The term of office of chosen freeholders commences on the second Wednesday of May, and ends on the corresponding day in the succeeding year. The commencement of the fiscal year of the board of chosen freeholders of Hudson county was changed, by the act of 1874, p. 202, from the 1st day of May to the 1st day of December in each year, and, by the same act, the amount to be raised for county' purposes must. ■ be fixed at a meeting of the board held prior to July 15th in any year. It was the duty of the board of freeholders who came into office on the second Wednesday of May, 1876, to make, prior to July 15th, 1876, the appropriations necessary for the fiscal year from December 1st, 1876, to December 1st, 1877. After the 15th day of July,''1876, they had no authority to make an additional appropriation, save only for the purpose in Section 5 of the act of 1874 specified; nor had they any power to make an appropriation for the fiscal year from December 1st, 1877, to December 1st, 1878.</p> <p>2. Under the act of February 7th, 1876, (Laws, 1876, p. 16,) members of said board of freeholders are indictable for passing, December. 14th; 1876, a resolution to purchase property, and for issuing, in payment therefor, bonds to the amount of §225,000, payable out of .the amount appropriated for the fiscal year from December 1st, 1877, to December 1st, 1878, no appropriation having been made for that year, and'no power existing in the members of said board to make such appropriation. ’ . .</p> <p>3. Where a statute specifically defines what acts shall constitute a misdemeanor, it is sufficient in the indictment to bring the defendant within the statutory description of the crime. The distinction is between cases where a legislative act forbids a ministerial officer to do an act, which, by reason of such prohibition, becomes indictable, at common law, and cases where the statute declares what shall be indictable. In the former case, under the common law, allegation of corrupt intent or guilty knowledge is essential in the indictment.; in the latter, it is otherwise.</p> <p>4. Ignorance of the law is no excuse for crime. The case of State v. Gutter, 7 Vroom 125, distinguished.</p>

<p>In actions upon contract for the payment of money, the defendant, after suit brought, may tender a sum less than the plaintiff’s demand, so as to save costs subsequent to the tender, if the plaintiff fails to recover in excess of the tender.</p>

<p>On certiorari.</p>

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

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

<p>1. Section 159 of the charter of Jersey City, (Laws, 1871, p. 1160,).forbida-any board or department of the city government to make a contract for work or materials without previous advertisement for proposals,, with certain exceptions. Held, that although this section does not make the breach of its terms a crime, it is indictable.</p> <p>2. The violation of a prescribed public duty by a ministerial officer is. indictable without being made so in terms by statute.</p> <p>3. In the absence of express words in the statute, making the act criminal,, the indictment must charge that the offence was committed with an. evil intent, or wilfully.</p> <p>4. The indictment should negative provisos in the statute, which constitute excepiions to the duty imposed.</p> <p>■'5. Where an indictment charges a crime, made such by statute, it is sufficient to charge it in the words of the statute, without a particular statement of facts and circumstances, when the offence is thereby described without ambiguity and uncertainty, or there may be such a particular statement of facts as will bring the accused within its operation.</p> <p>■6. If either count in an indictment be good, it will not be quashed.</p> <p>7. A clear legal intent, by a repeal of the act imposing a penalty or constituting a crime, or some other expressed purpose, is necessary to annul a penalty or condone a crime.</p> <p>8. Constructive repeal and discharge in such cases are forbidden by Rev., p. 832, \ 4, title “ Statutes,” except in mere matters of practice or modes of procedure.</p> <p>:9. If an indictment found by a grand jury fail to set out any crime, the court cannot so amend it as to charge the crime which it is supposed they intended. Sections 43 and 53, Criminal Procedure Act, authorizing amendments, considered.</p>

The Crane Iron Company and Mary V. Wurts filed their respective objections to the assessments made by the commissioners upon their lands in Warren county, under Section 2 of the act to provide for the drainage of lands, approved March 8th, 1871, and Section 2 of the supplement, approved March 19th, 1874. The assessment against the Crane Iron Company amounts to $1232.46, and against Mary V. Wurts, $13,247.84.

On rule to show cause why judgment by default.on a bail-bond should not be vacated, and an assessment by the clerk of the court set aside.

<p>On certiorari to bring up assessment of taxes.</p>

<p>On rule to show cause why a judgment in ejectment should not be set aside.</p>

<p>A debtor in insolvency proceedings will not lose his right to a discharge- . by an accidental omission to give the required notice to one or more-creditors.</p>

On certiorari to the Union county Common Pleas. The following facts appeared at the' trial before the Court of Common Pleas: In August, A. D. 1875, William H. Perrine purchased a horse of Jabez B. Cooley for the sum of $150; that Perrine paid Frederick Franklin, who was a clerk of said Cooley, $75 in cash and gave his note for the remaining $75; that thereupon Franklin executed to Perrine a memorandum in writing as follows : Elizabethport, N. J., Aug. 19th, 1875. - Mr.…

<p>On certiorari to remove assessment, &c.</p>

<p>Oh certiorari.</p>

On certiorari. The defendant was charged by allegation, in the Special Sessions of Hudson county, with publicly setting up, opening and making a certain lottery for money in that county, and with selling a lottery ticket therein.

On certiorari The defendant was charged, by allegation in the Special Sessions of Hudson county, with keeping a disorderly house in that county, and upon his plea of not guilty, the court found facts similar to those found in the case against the same defendant just decided, and thereupon convicted him. Upon this conviction, the defendant sued out a writ of certiorari to the Supreme Court, and there insisted that the facts found do not show him guilty of the crime specified.

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

This was an action of ejectment for a small strip of land, being one-half of what had been a public street, in front of a lot of land which the plaintiff liad conveyed to a certain person, and which lot had come, by divers nresne conveyances, to the defendants.

<p>In error to the-Union county Circuit'Court.</p>

<p>When no time is fixed by law for tbe commencement of an official term, it begins to run from tbe date of the appointment..</p>

This action was brought in the Essex county Circuit Court, to recover for a total loss by fire on a policy issued by the-defendants below to Catharine Meyer, owner of a dwelling-house therein described, situate in the city of Newark. At the trial, the execution of the policy of insurance and the burning of the building insured, during the continuance of the risk, were proved or admitted.

<p>Where the by-laws of the plaintiff, a mutual insurance company, provided for public notice, in two newspapers, of the assessment by the company upon its members, and required payment to be made of such assessments within sixty days after such notice—held necessary, in order to maintain suit against a member, to aver and prove publication of such notice, and that the specified time lias elapsed, when the action brought.</p>

<p>1. A- certiorari recited the desire of the Supreme Court to be certified as to the employment of the individual defendant by th.e corporate de-. fendant, and as to. the hills of the former for services under that. employment, and of tlie proceedings of the latter in reference to such bills, bnt the writ expressly commanded only the certification of the, bills and proceedings relating thereto. The return contained the resolution of employment, a.nd the reasons filed denied the right to pay the bills, because of want of power in the corporation to employ the individual defendant. Held, that the legality of the employment was involved in the issue before the court.</p> <p>'2. The fact that services have been rendered to a municipal corporation, under a contract with it which it had no power to make, will give no legal right to compensation from it, and therefore furnishes no ground for refusing or dismissing a writ of certiorari, designed to test the legality of the contract.</p> <p>3. The rule that a certiorari will not be allowed before a final decision is reached in the inferior tribunal, is confined to cases where the office of the writ is in the nature of that of a writ of error.; it is not applicable to the writ when designed for the review of municipal proceedings, in which cases the time for its allowance is discretionary; and where discretion was rightly exercised in allowing the writ, a dismissal, on the ground that the writ was improperly allowed, will be reversed on error.</p> <p>4. Where such dismissal is ordered on final hearing, the Court of Errors will not merely reverse the judgment below, but will render such ‘judgment of affirmance or reversal of the proceedings brought up by the certiorari, as the Supreme Court should have given upon the merits.</p> <p>5. The approval of a claim against the city of Paterson, by the department of finance, under the city charter, (Pamph. Laws, 1871, p. 808, $ 84,) is reviewable by certiorari.</p>

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

A writ of certiorari brought to the Supreme Court the assessment of taxes, duplicate and proceedings thereon, for the year 1873, against John Hoey, which tax was assessed under the act entitled “ An act to establish the Long Branch Police, Sanitary and Improvement Commission,” approved April lltli, 1867, and supplements to the same. In November Term, 1876, the Supreme Court affirmed the assessment.

The declaration contained a count, stating, that by an act of the legislature of this state, entitled “ An act in relation-to streets in Union township, in Union county,” approved March 29th, 1871, the inhabitants of a certain part of Union township, in the county of Union, therein described, were-created a body politic and corporate, to be called the “ Southeasterly Road District of the township of Union, in the county of Union,” for the purpose of laying out, opening and…

This case was tried before the Monmouth Circuit Court, a jury being waived. The defendant assigned,, by deed, a mortgage and bond to the plaintiffs, in the court below, and in which deed was inserted the following guarantee, viz.: “ And I do hereby guarantee the payment of the said mortgage at the time therein specified, but only upon the failure of the said Alvah Wiswall to pay the same.” The word “ only ” in this clause was written over an erasure.

<p>'On case certified from the Essex Circuit.</p> <p>This suit was brought by the plaintiff to recover $250 due to him by the city of Belleville, for his salary as city clerk.</p> <p>This city was chartered by the act of March 27th, 1874, (.Pamph. Jauos, 1874, p. 674,) which act was repealed by that «of March 27th, 1876, {Jdamph. Laws, 1876, p. 482.)</p>

On demurrer to plea. Covenant for non-payment ,of rent, and non-repair of premises.

<p>1. A claim arising from a bonus paid on a usurious loan, is the subject of a set-ofij and will be barred, if not presented as a set-off, in a suit that offers an opportunity.</p> <p>2. A plea of set-off containing a specification of various items as in the common counts, will be treated, as to form, in the light of a declaration, and if any of the specifications are good, a demurrer to the whole plea will not be sustained.</p>

<p>A plaintiff in ejectment, when a hill of particulars is demanded, is not required, by the statute, to give notice to his adversary of the documents which it may become necessary for him to use in rebuttal of the case made by the defendant.</p>

<p>On special verdict.</p>

<p>1. Where an owner of lands assessed for a city improvement, lias paid the amount assessed, and the assessment is afterwards set asid'e on certiorari, he may, after such reversal, and demand made, recover back the amount paid, in an action of assumpsit, though the assessment was voluntarily paid.</p> <p>2. Where a cause is tried by the court, without a jury, its findings on questions of fact are not reviewable by writ of error. All that can be reviewed is the sufficiency of the facts found to support the judgment.</p> <p>3. The effort of the court is always to give a statute a prospective effect only. A statute will be construed to be prospective only, unless in cases where there is something on the face of the enactment putting it • beyond doubt that the legislature meant it to apply retrospectively.</p> <p>4. The fifth section of the supplement to the charter of the city of Elizabeth, passed March 17th, 1875, applies only to assessments which have been set aside since the act was passed.</p>

<p>In assumpsit. On application for judgment on award of referees, and counter application to set aside the award..</p>

<p>1. Notice to the agent is notice to the principal, if the agent comes to the knowledge of the fact while he is acting for the principal, in the course of the very transaction which becomes the subject of the suit. Such knowledge of the agent is imputed to the principal for the benefit of an innocent third party who has dealt with the agent in good faith.</p> <p>2. The law will not impute turpitude to a principal by charging him with constructive notice, when he had no actual knowledge, for the benefit of one who sets up his own wrongful act in his defence.</p> <p>3. An agent rented premises to the defendant, knowing that he intended to use them for gaming purposes; held, that the principal, who had no actual knowledge of such intended unlawful use, could disown the agent’s contract, and recover, on a quantum valebai, for the use of her premises.</p>

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

<p>1. If a written contract is expressed in such terms that its meaning and intention cannot he ascertained to a reasonable degree of certainty, it is so far inoperative and void.</p> <p>2. The court, in this case, being unable to interpret the writing with satisfactory certainty, it was .properly submitted to the jury as a circumstance in the case, in connection with the other facts disclosed at the trial.</p>

On certiorari to remove the assessment for the costs and expenses of lighting the road in a lamp district, in the township of Montclair.

<p>On certiorari.</p>

<p>On rule to show cause why a new trial should not be granted.</p>

<p>In error to the Monmouth Pleas.</p>

<p>Error to Monmouth Sessions. On indictment for attempt to produce abortion.</p>

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

On certiorari. ■ The prosecutor, Henry J. David, was arrested on capias ad satisfaciendum, issued on a judgment recovered against him in this court in an action of debt, at the suit of Legrand M. Anway, executor, &c., in July, 1876. The prosecutor gave bond to take the benefit of the insolvent laws, was discharged from arrest by the sheriff, and the writ was returned with the bond and inventory.

<p>1. Where a plaintiff in certiorari to the justice’s court, is allowed costs, by the order of the court, such costs become an incident to the judgment, and may be enforced by execution; an attachment will not be allowed.</p> <p>2. Where there is an order or rule to pay costs or money, which cannot be enforced by execution, a writ of attachment may issue; but where costs are allowed by an order of the court, as an incident to a common law judgment, the ordinary process of execution must be used for collection.</p>

On rule to show cause why a mandamus should not issue, requiring the city council to direct and authorize the city solicitor to proceed and sell, according to law, the lands of delinquents, to enforce the payment of taxes which may be a lien thereon, by virtue of the charter, for the year 1875.

<p>1. The charter of the town of Union, Hudson county, {Laws, 1874, p. 654, | 18,) excepts from the general assessment, “taxes for gas, water, and ferry, which shall be assessed in equal proportions on all lots.” Seld—that an assessment for gas and lamps upon all the town lots by their number, as they appeared on the map, each for an equal sum, without regard to value, is not in equal proportions.</p> <p>2. Where a tax (for interest on township bonds) appears to be regular on the face of the duplicate, the person assessed must show affirmatively and clearly that such tax is illegal or excessive, to annul or reduce it.</p>

On rule to show cause why a mandamus should not issue to pay an award against the city of Jersey City, in favor of the relator.

<p>1. A resolution of a board of chosen freeholders directing the issue of county bonds, in excess of the appropriation and limit of expenditure as fixed by law, is rendered illegal by the supplement to the Crimes Act, approved February 7th, 1876. Pamph. Laws, p. 16.</p> <p>2. If the resolution for the issue of the bonds is one of several resolutions passed together, providing for the purchase of lands for which the bonds are the price, all the resolutions are tainted by the illegality, and will be set aside.</p> <p>3. The fact that the deed for the lands lias been delivered, and the bonds have been issued to the vendor, will not prevent the reversal of the resolutions, where the tax-payers who prosecute have been guilty of no laches in bringing their suit, and the lands appear to be undisturbed, and the bonds to be non-negotiable, and to show upon their face under what resolutions they were executed.</p> <p>4. It is not necessary that the vendor should be brought in as a defendant to the certiorari, unless his title to the bonds, as well as the validity of the resolutions, be directly assailed.</p> <p>5. The question of the mere legality of such a corporate act is peculiarly one for a court of law, not for a court of equity.</p>

By an act of the legislature, approved March 18th, 1874,' {Pamph.

<p>1. To overcome the report of commissioners of assessment as evidence, clear proof of great force is requisite.</p> <p>2. A determination of such commissioners that no property lying more than one hundred feet from the improvement is benefited, and that by reason of the uniformity of the land, the actual benefits are distributed according to frontage, is not necessarily illegal.</p> <p>3. The greater value of land may justify a larger assessment.</p> <p>4. The fair cost of an improvement which reasonable owners would make for the better enjoyment of their property, is a just criterion for determining the benefits received.</p> <p>■5. Whether commissioners will make personal examination beyond the line of the improvement, to discover what property is benefited, provided they take into consideration how far the benefits extend, is a matter for their own discretion, unless it be shown that they have failed to embrace all such property.</p> <p>t>. An injustice done to the city in making a local assessment, will not be good ground for complaint by a prosecutor who does not show that he is injured thereby.</p>

<p>On certiorari.</p>

<p>Commissioners appointed by the Orphans’ Court to divide real estate, who have sold the same and invested one-third of the proceeds, under the order of the court, to secure the interest to the widow, in lieu of her dower, are not taxable for the securities they hold for that purpose.</p>

<p>A debtor owing an apportionable annuity, is entitled to a deduction for the same as a debt, from his taxable property, only to the extent of what had accrued on the day fixed for assessment.</p>

<p>1. Objections to the manner of appointing commissioners to conduct a public improvement and make an assessment therefor, will not be entertained after they have completed the work.</p> <p>2. In reviewing the assessment made by such commissioners, the jurisdiction of the body that appointed them, their own judicial qualifications to act, and the manner in which they have exercised their functions, are open to inquiry.</p> <p>3. The township committee were authorized to do certain work, if they deemed it of public advantage ; they resolved that, in their judgment, it was of public advantage, and thereupon did it. Held, that then it was too late to show that in fact they did not so deem it.</p> <p>4. Lands are not assessable for-the increase of healthfulness which may accrue to a neighborhood by reason of the drainage of swamps and lowlands lying in their vicinity ; such benefits are too uncertain and indirect. The lands drained are the lands peculiarly benefited.</p> <p>5. Where commissioners of assessment have exercised an intelligent judgment in deciding the matters submitted to them, according to legal principles, the courts will not disturb their conclusions, except upon proof which is quite satisfactory.</p> <p>6. Interest upon money borrowed to carry on an improvement, forms part of the expense for which an assessment may be imposed.</p>

<p>1. Mandamus is generally a proper remedy to enforce the levy of taxes for the payment of judgments against municipal corporations, when the ordinary process of execution is inadequate.</p> <p>2. Every lawful tax rests upon legislative enactment, and when subordinate bodies seek to impose such a burden upon the citizen, they must show a clear and unmistakable authority so to do, derived from the express words or necessary implication of a statute.</p> <p>3. Where the power of a municipality to levy taxes for its general purposes, was expressly limited to a certain amount, an authority to contract debts beyond that amount, for a special purpose, will not justify an inference that the power to levy taxes to pay those debts, was also conferred.</p> <p>4. If the authority of a municipality to levy taxes is doubtful, a mandamus directing such levy, will not be awarded.</p>

This certiorari brings a certain order of appointment of commissioners to appraise lands and assess damages and compensation for taking the same for the Ravine road sewer.

On certiorari. The township of Montclair was set off from the township of Bloomfield, in Essex county, by an act. passed April 15th, 1868. Latos, 1868, p. 998.

On role to show cause why a mandamus should not issue to the respondent, to compel him to deliver books and papers belonging to the office of treasurer of the township of Weehawken, in Hudson county.

This suit is upon certiorari, directed to the Common Pleas of Burlington county. The action was for the recovery of the sum of $70, for the use and occupation of a house and lots in Riverside. The return to the writ contains the state of demand, an offset for $50 and interest, the evidence taken at the trial, and the rule for judgment in favor of the plaintiff below.

<p>On certiorari.</p>

<p>On certiorari.</p>

On error to the Supreme Court. Kane brought an action of assumpsit against the insurance company on two policies of insurance (not under seal,) against loss by fire. The defence was that the building insured was burned by design, with the knowledge and procurement of the plaintiff.

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