Volume 40 — New Jersey Law Reports

On demurrer. By the charter of Jersey City, passed in 1871, provision was made for the appointment by the senate and general assembly, in joint meeting, of a fire board, and certain other municipal boards.

Suit to recover an assessment of damages made by the commissioners appointed under the charter of Newark to estimate damages for lands taken for the opening of Bergen street, &c., and for interest thereon from six months after the ratification of said assessment. When suit was commenced, no assessment for benefits had been made, and none, when the case was tried, had been ratified or confirmed.

This was an action of covenant. The facts were these: The defendants are the heirs of Samuel Meeker, deceased. In March, 1861, Samuel Meeker made a conveyance of the premises in question to the New Jersey Insurance Company, the plaintiff; this deed contained a covenant against encumbrances, an alleged breach of which is the ground of this suit.

<p>There is no legal obligation on the part of a railroad company to build its bridges over public roads with an elevation so great that one of its employés standing upright on the top of a car will not be endangered, and consequently, if an employe while thus standing in the course of his business, be struck by one of such bridges, he cannot recover for such injury.</p>

<p>1. It does not follow that because in a declaration in ejectment the plaintiff’s right of possession is averred to have accrued more than twenty years ago, that his right of action is gone; to have produced this result, there must have been an adverse possession covering the statutory period.</p> <p>2. Under the eleventh section of the married woman’s act, (JRev., p. 638,) a, feme covert can maintain an action in her own name, and without joining her husband, for the recovery of “all property, both real and personal.”</p>

On rule to show cause why a verdict in favor of the plaintiff should not be set aside. The firm of Crossley & Moore was formed by articles of partnership dated December 23d, 1872, Charles Crossley and George W. Moore being the general partners; William A. Moore being a special partner, and, as such, contributing to the capital the sum of $10,000. In the summer of 1873, the firm became embarrassed financially, and proceedings in bankruptcy were commenced against the firm.

This case was certified by the Circuit Court, to obtain the advisory opinion of this court upon the construction of the following will: “In the name of God, Amen.

<p>1. The act of March 15th, 1860, (Rev., p. 86, $ 9,) which makes any township or board of chosen freeholders which is by law chargeable with-the erection or reparation of bridges, liable to an action for injuries to persons or property, sustained by reason of a wrongful neglect to erect, re-build or repair any bridge, gives a remedy by action for all injuries to persons or property for the safety of which the duty of re-building or repairing the particular bridge is by law east upon the municipal body. The right of action ig not limited to such injuries as happen to persons or property passing or being carried over the bridge.</p> <p>2. The bridge over the Passaic, at Newark, was erected under the act of November 24th, 1790, and became vested in the counties of Essex and Hudson under the act of March 14th, 1871. The act of 1790 provided for the construction and maintenance, in good order and sufficient repair, of a draw in the bridge, through which vessels navigating the Passaic might pass. Held, That the two counties were liable, under the acts of 1860, to an action for injuries to the plaintiff’s vessel, received in passing through the bridge, where the inability to remove the draw was due to a want of repair of the bridge.</p> <p>3. The act of February 27th, 1833, entitled “An act for the protection of bridges in this, state,” (Rev., p. 88, § 17,) does not require the commander of a vessel, in approaching a draw-bridge, to take down the sails entirely. R only makes it his duty to lower his sails, so as to enable the vessel to approach the bridge with such diminished speed as will permit the removal of the draw, and enable the vessel to pass gently through the bridge.</p>

<p>1. The personal liability of tbe officers and stockbolders of a corporation for a debt contracted by the corporation is inconsistent with the idea of a body corporate at common law, and can arise only out of some-statutory provision.</p> <p>2. In pleading a foreign statute, it must be set forth in substance, so that the court may see that the right or liability which depends on a statutory enactment arises by force of such statutory provision. The averment, “ pursuant to the statute,” without setting forth the substance of the statute, is insufficient.</p> <p>3. The replication must support and fortify the declaration. The plaintiff, where an evasive plea is filed, may re-state his cause with more particularity and certainty in his replication, but he must not depart from'any material allegation in the declaration.</p> <p>4. A departure in pleading is a fault in substance, and may be taken advantage of by general demurrer.</p> <p>5. An argumentative plea is good on general demurrer. An objection of that kind could formerly be taken advantage of only by special demurrer, and is now available only by a motion to strike out.</p> <p>6. The rule that judgment on demurrer will be given against the party whose pleading is first defective, applies only when the defect in the prior pleading is in a matter of substance, such as would be available on general demurrer.</p>

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

<p>The title of a bona fide purchaser for value without notice, will not be affected by the fact that his grantor acquired title by fraud or from one mentally imbecile. Notice that there was an existing lawsuit, and that the title would be contested, will not deprive him of the character of a bona fide purchaser, if such lawsuit has no relation whatever to the alleged fraud or mental imbecility, the defects insisted upon in the present suit. The defendant had a right to infer that the threatened litigation was to proceed upon the same ground as the former suit.</p>

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

<p>1. The supplements of 1870 to the “ Essex Public Road Board act,” provide a certain and constitutional- mode of raising the money necessary to execute the purposes of the act.</p> <p>2. In making the re-assessment, under the supplement of 1875, against those as to whom the prior assessment had been set aside, it was the duty of the assessors to consider and determine what lands in the city of Orange were peculiarly benefited, and the amount that each lot or parcel was so benefited, so that the re-assessments might appear to be relatively fair.</p> <p>3. The cost of the right of way only can be assessed upon the land-owners; by the seventh section of the act of February 16th, 1870, the cost of executing the act is to be borne by the county and city or township in equal portions.</p>

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

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

<p>A bond and mortgage given to the trustees for the support of public schools, cannot be deducted from the valuation of real and personal estate for which an individual shall be assessed for taxes.</p>

<p>On certiorari to set aside proceedings for sale of land for taxes, and declaration of sale.</p>

<p>Where judgments assigned are canceled by fraud and mistake, caused by defendants’ misrepresentations to the plaintiff’s attorney, the cancellation will be vacated.</p>

<p>Where a party has signed a judgment bond, upon which judgment has been entered, it requires more than a doubt raised by uncertain and conflicting evidence, to destroy the security of such judgment, on motion to set it aside by the obligor; its invalidity should be clearly established.</p>

<p>Where a reference is made at the circuit by consent of parties, neither . party can file a dissent or exceptions, or have a trial by jury. A motion may he made to set aside the report, as in case of a verdict,, for legal cause shown.</p>

<p>On motion for allowance of costs of printing, in the bill of costs to be taxed and filed in the above cause.</p>

On certiorari. In matter of taxation. The following facts are agreed upon by counsel in this case, and upon which the court are- to decide: Simon A. Cummins, the prosecutor, lives in the township of Independence, county of Warren. He holds a mortgage for $10,000 on lands situated in the township of Independence. Selden T. Scranton owns the farm in Independence township upon which this mortgage is a lien. The title to the lands is in him.

<p>1. Where a municipal corporation has undertaken to sell real estate for taxes, the sale will be set aside unless all legal conditions precedent appear to have been performed.</p> <p>2. An assessment for taxes will not be vacated merely because only one of two tenants in common was named as owner.</p>

<p>1. A foreign corporation is liable to be sued in this state, on a contract made in this state, when summoned in accordance with our laws.</p> <p>2. If the contract sued on was made in this state, the court will not, upon a motion to set aside the service of a summons, or to vacate a judgment by default, for want of jurisdiction, inquire whether, in truth, the contract was made by the corporation. Such an inquiry must he reserved for the trial of the cause.</p> <p>3. A judgment by default will not he set aside because .the copy of the summons served misnamed one of tbe plaintiffs, when the error did not mislead the defendant.</p> <p>4. It may be proper ground for letting in a foreign corporation to plead after judgment by default, because an honest defence was not interposed through the advice of foreign counsel, bona fids followed by the corporate officers.</p>

<p>When a debtor, who has been remanded to prison upon the undertaking and agreement of a dissatisfied creditor, pursuant to the thirteenth section of the insolvent debtors’ act, (Rev., p. 500,) gives bond, and is released from custody under the same section, the creditor’s obligation to pay the weekly stipend is thereby terminated.</p>

<p>Commissioners appointed by the Supreme Court, under section ten of the certiorari act, (Rev., p. 99,) to make a new assessment of tbe costs- and expenses of regulating and grading a street, under sections nine* teen and twenty of the charter of the village of Passaic, (Pamph. A.,. 1871, p. 619,) have no power to estimate the value of land taken, and make allowance therefor to the owner, in determining the amount to-be assessed against him for benefits.</p>

<p>On application for appointment of commissioners to make a new assessment.</p>

<p>On motion to amend informations.</p>

On certiorari. This writ brings up the proceedings to eject Henry Steffens, a tenant, brought by John W. Earl, the landlord, taken in supposed conformity with that portion of the act constituting District Courts in certain cities in the state, which confers jurisdiction upon such courts over summary proceedings for the recovery of possession of rented premises. District Court act, § 123, Pamph. L., 1877; Rev., p. 1300.

This is a motion to quash a return to an alternative mandamus directed to the respondents, commanding them to apply to the Court of Common Pleas of Essex county for the appointment of appraisers to make an appraisment of the damages sustained by said Wheeler by reason of the taking down of a certain dam by the respondents in the construction of Bloomfield avenue, by virtue of an act approved March 31st, 1869, (Pamph.

On certiorari. This certiorari brings up an assessment against the prosecutors for certain lands in the city of Bayonne. The prosecutors previous to 1870 laid out these lands in city lots, in conformity with a map made by the corporation for the purposes of taxation. The land was assessed by lot as designated upon this map.

On certiorari. The defendant, James Murphy, on the 1st day of August, A. d. 1877, at the city of Newark, N. J., was arrested by John W. Campbell, a special policeman, on view, for selling hawking, peddling and vending ice. He was immediately taken before the police justice by said officer. A complaint, under oath, was made and filed on the same day.

On certiorari. The prosecutor was assessed for a mortgage, by the assessor of the borough of Washington, in Warren county. The mortgage was upon the property of one Joseph F. Van Derveer.

On rule to show cause. This is. an application for a rule to show cause why a mandamus should not issue to compel the mayor and common council of Hoboken to designate two official newspapers for the publication of the matters and things required by the city charter to be published, which papers shall have been in existence and published in .said city for over two years, and to designate the “Hudson County Journal” as one of the official newspapers of said city.

On certiorari to review the proceedings of the mayor and «common council of the city of Camden, under a supplement to the charter of said city, approved March, 1878, providing for a board of excise.

<p>1. Under the act respecting coroners, (Rev., p. 169,) a justice of the peace is only authorized to act as coroner when a coroner cannot be had in due time to take the inquest.</p> <p>2. If the condition of a dead body should be such that it be manifestly improper, in the judgment of ordinary men, to defer its burial long enough to notify a coroner, in such a case a justice would be unquestionably authorized to act, and be entitled to receive the fees allowed by the statute.</p> <p>3. The fact that a justice may be more conveniently located; that he has received the first notice; that he has performed, in good faith, the first official act, believing that a coroner could not be had in due time —no one of these facts, nor all of them together, will authorize a justice to act when it plainly appears a coroner might have been had in due time.</p> <p>4. When a body required almost immediate burial, and a justice has taken charge of it for that purpose, a coroner appearing before it has been finally disposed of, may, at his option, assume control of it, and have the costs taxed and receive them from the treasurer. The justice would be entitled only to receive from the coroner reasonable compensation for services rendered before the coroner arrived.</p>

<p>1. Upon distribution between lien-claimants of tbe fund derived from sale of the premises, their judgments are conclusive of the amount due and the existence of the lien.</p> <p>2. The failure of the-clerk to endorse upon the claim the time of issuing summons, is not, between concurrent claimants, ground for questioning the judgment rendered in the suit. As to them, the statute requiring such endorsement is directory.</p>

<p>An indictment for breaking and entering, &c., the storehouse of the Oxford Iron Company, with intent to steal, &c., the goods and chattels of that company then there being, sufficiently ayers ownership of the premises and of the goods by stating them to be “ of the Oxford Iron Company; ” and it need not ayer that the Oxford Iron Company was a duly incorporated company under the laws of this state.</p>

<p>In error to the Supreme Court. For opinion of Supreme Court, see 8 Vroom 120.</p>

<p>The commissioners appointed under the act of March 26th, 1873, (Pa/mph. L., p. 442,) had no right to revise the assessment of one who had paid his assessment before the passage, of said act; unpaid assessments only were within the act.</p>

<p>The defendant had moneys raised by taxation for public purposes, which he had received as treasurer of the “ commissioners of the Belleville polling district,” a governmental .corporation, whose functions were confined to a portion of Belleville township. Held, that that corporation having been dissolved, it was the defendant’s duty, under “An act concerning townships and township officers,” approved April 21st, 1876, (Pamph. L., p. 297,) to pay those moneys to the township treasurer.</p>

<p>1. The corporate authorities of the city of Paterson have the power, under the provisions of the charter, to employ associate counsel in defending suits against the corporation, or in which the city is interested; the hoard of aldermen are sole judges of the necessity of such employment in any particular case, and the exercise of that discretion is not a question for review in a court of law.</p> <p>2. The power to employ associate counsel does not involve the right, on the part of the city authorities, under the guise of such employment, to withdraw and tahe out of the hands of the city counsel any particular case or class of cases, and to confide their management to others.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 10 Vroom 232.</p>

<p>1. A contract of’ an attorney at law for a certain remuneration for his services is legal and can he enforced by suit, such an officer not standing on the same footing as an advocate.</p> <p>2. The law of maintenance and champerty does not prevail in this state.</p>

In debt, on auditor and treasurer’s bond. The declaration averred that C. entered upon the duties of his office on the 18th day of May, 1869, and continued to discharge them until the June 4tli, 1872, when he surrendered said office.

<p>Suit on treasurer’s bond. The condition, as shown in the declaration, stipulated for the good behavior of the officer “ until the said association, or the directors thereof, should elect another treasurer.” The plea which was demurred to, averred that the said treasurer’s office was an annual office, and that Nugent, at the time the bond was given, had been elected to such office for one year, showing the beginning and ending of such term; and that he was re-elected in the succeeding year. The plea then alleged performance during the first year. This plea was demurred to.</p>

On demurrer to declaration. The declaration stated that the plaintiff was, in the city of New York, “duly appointed receiver of the Third Avenue-Savings Bank by the Supreme Court of the State of New York, and afterwards, to wit, &c., was duly qualified as such receiver, and thereupon became empowered to exercise and perform all the powers and duties imposed upon him as receiver as aforesaid.” It was then alleged that the defendant was before that indebted for money lent,…

Lewis B. Thompson, payee, brought suit against the administrator of the estate of Ephraim P. Snook, who was a co-promisor on a joint promissory note signed by the said Ephraim P. Snook and one A. F. Cleaver; said note was dated Doylestown, Pa., May 31st, 1872, for $1000, and payable ten months after date. Said note became due and was unpaid in-the lifetime of the said Ephraim P. Snook, he, the said Snook, having died August 1st, 1876.

On case certified from the Passaic Quarter Sessions. The facts of the case sufficiently appear in the opinion of the court.

<p>On case reserved.</p>

An action of debt is brought against the defendant, John P. Rittenhouse, late sheriff of the county of Hunterdon, for the voluntary escape of one John Lawyer, taken in execution on cci. sa. issued at the suit of the plaintiff’s testatrix, Esther T. Browning. John Ramsey, a special deputy of the sheriff, went to the. house of 'Lawyer, September 16th, 1874, with the ca. sa.; told him he had a warrant for him to take him to Fleming-ton; at whose suit the writ was issued.

The plaintiffs, Weaver & Pennock, made a contract in writing with Demuth and Haskins, to furnish plumbing and gas fitting work and materials for thirty-four houses on Linden street, Camden. The work was done and materials furnished under the contract, by the plaintiffs, and they received from the defendants $7500, part payment, in second mortgages, which were credited on account of certain of the houses, which were released. .

<p>Where the jury, by their verdict, say “we find the full amount of the plaintiff’s claim,” and it appears that there was one amount claimed in the bill of particulars, and another on the trial before the jury, the verdict is not informally expressed, but is ambiguous and uncertain, and cannot be amended by the court.</p>

<p>On certiorari.</p> <p>These writs of certiorari bring before this court for review certain proceedings and assessments for the grading, curbing, &c., of Paterson avenue, in the city of Paterson, from Front street to Chamberlain avenue, made by Daniel Haines, Theodore Little and Stephen B. Ransom, commissioners appointed to examine, revise, alter and adjust unpaid assessments in said city, under an act approved April 9th, 1875. Laws, p. 639.</p>

On certiorari. The writ in this case brings before this court an award of damages, and an assessment for benefits for grading Totowa avenue, in the city of Paterson, from Hamburgh avenue to Ira Ryerson’s line, made under the act to adjust unpaid assessments in said city. Laws of 1875, p. 639.

<p>On certiorari.</p>

On certiorari. The following statement of facts is agreed upon by counsel of the respective parties: Prior to the year 1869, the territory now comprised in Jersey City, was under four separate local governments, and was divided into four parts, known as Jersey City, the city of Hudson, the city of Bergen and the township of Green-ville. By an act of the legislature passed April 2d, 1869, (Pamph.

<p>This suit was brought before the recorder of Bayonne, to recover a penalty of $20 for violating a city ordinance, and judgment was rendered for $20 and costs ; the act under which suit was brought provided that, in all cases where the fine or penalty shall exceed $20, or where the punishment may be imprisonment, there may be a trial by jury, to be conducted as in cases now triable by jury, in courts for the trial of small causes, and also an appeal, as in cases where appeal may now be made from judgments in courts for the trial of small causes; also, that the recorder shall, if judgment be rendered for the plaintiff, forthwith issue execution against the goods and chattels, and against the body, of defendant or defendants. Held—</p> <p>1. That the costs are no part of the penalty—the ordinance fixes the penalty at $20.</p> <p>2. The power to punish by imprisonment is the right to inflict corporal punishment directly for doing the prohibited act. The recorder had no such power in this case; the only punishment he could impose was the fine, the imprisonment being the mere mode of enforcing its payment. Therefore, the defendant was not entitled to an appeal to the Common Pleas. _</p>

<p>On certiorari.</p>

<p>1. In assessing real estate, the assessment is not invalidated by mistaking the name of the owner.</p> <p>2. W here the relator has failed to apply to the commissioners of appeal for relief, the court may, in its discretion, refuse to aid him.</p>

<p>1. A plea which professes to answer and does answer only part of a count, is good, provided that part is material and severable from the rest of the count as a basis of recovery.</p> <p>2. The assignee of an “improvement certificate” is not affected by ' fraudulent representations of his assignor as to the cost of the work, made after the assignment.</p> <p>3. That an assessment was vacated on certiorari before it could be collected, is a sufficient answer to an allegation of want of due diligence in collecting it.</p>

<p>On certiorari to remove assessment for construction of sewer on Wall street, city of Elizabeth.</p>

<p>On certiorari.</p>

<p>Under the supplement to the charter of the city of Elizabeth, approved April 4th, 1873, (Pamph. L. 778,) the commissioners of assessment, in distributing the burdens, must take into consideration all the lands-benefited, even though some of the lands, for peculiar reasons, are not subject to assessment.</p>

<p>On a judgment against administrators no execution can issue, if, at the time of entering the judgment, the administrators had made application in writing to the proper Orphans’ Court, representing their estate to he insolvent.</p>

<p>This was an action brought by the plaintiff, as trustee of one Middleton Bell, to recover for amount of fruit sold to the defendants. The defendants pleaded payment, with notice of a set-off of a note for $698, due by Johnson, individually, to defendant, Kaiser, individually. Ackerson died after plea filed. The cause was referred. The referee refused to allow the set-off. On the coming in and filing the postea, the defendant moves for a new trial.</p>

On certiorari. This cause was tried before the Second District Court of the city of Newark, before a jury, and a verdict was rendered in favor of plaintiff for $100.

.On a rule to show cause why a writ of mandamus to the board of management of the Carteret Club should not be granted, commanding them to restore George E. Sibley to resident membership in said club.

This is an application for a peremptory writ of mandamus, to be directed to the mayor and common council of the city of Newark, commanding them to divide the said city into wards corresponding in number and boundaries to the assembly districts exclusively embraced within' the limits of said city.

The prosecutors are tax payers, residing in the county of Gloucester, outside of the city of Woodbury. They bring up by this writ a resolution of the board of chosen freeholders of Gloucester county, passed May 24th, 1877, as follows: “That the freeholders from Woodbury be authorized to build a bridge on Hunter street, in Woodbury.” Woodbury is an incorporated city in Gloucester county.

<p>A testator bequeathed to his son James the use and benefit, during his-life, of a certain mortgage, given to him by said son upon certain real estate in the township of Princeton. The will also gave to said son all the interest due on said mortgage at testator’s death, and on his-death the mortgage was given to his children, share and share alike.. The will further declared the bequest of the interest of the mortgage-to James to be special, and not a part of his share. James claimed a deduction for this mortgage from the value of the mortgaged premises. This was allowed by the assessor, and the mortgage was assessed to the executors of the testator. Held—</p> <p>1. That the mortgage having been given by the will specifically to James- and his children, the executors of the testator have no title to it or any of the moneys secured by it.</p> <p>2. The mortgage not being personal estate, in the possession or control of the executors, cannot be assessed to them.</p>

<p>1. Where a judgment creditor has obtained an order for the examination* of the defendant in the judgment, on supplementary proceedings, and the order has been fully executed, and the proceeding heard upon its-merits and dismissed, the case is res judicata; the parties are pre- - eluded as to all matters existing pi-evious to that time, and which, were embraced in the consideration and judgment of' the court.</p> <p>2. A new examination can only be asked for on the ground that after the-judgment of the court in the previous proceedings, the debtor had become possessed of property, in respect to which the creditor was entitled to examine him under the statute.</p> <p>3. The remedy for error in the dismissal of the previous proceedings is-not by another order for examination.</p> <p>4. The writ and proceedings should not be entitled the state, on the relation of the judgment debtor against the judges of the Common Pleas;. the judgment debtor should be plaintiff in certiorari, and the judgment creditor defendant.</p>

<p>On certiorari.</p>

The action was in trespass, brought by the plaintiffs in error to recover damages for timber cut by the defendants, on lands claimed by both parties. Under the instruction of the judge, that the defendants’ title covered the land in dispute, and they had the right to cut the trees in question, the jury rendered a verdict for the defendants.

The assessment of taxes made against the Delaware, Lackawanna and Western Railroad Company in the township of Montclair, and removed into the Supreme Court by certiorari, was affirmed by said court at the June Term, 1877. The facts of the case are fully stated in the opinion of this court.

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 10 Vroom 560.</p>

<p>1. A devise of a fee followed by a limitation that if such devisee shall die “leaving no lawful issue,” created an estate tail by the rules of •the common law.</p> <p>2. Nor is the effect of such terms impaired by a further direction that in case of such dying without issue, the lands shall be sold and the money divided between the testator’s children, excepting one of them</p>

The action below was in debt on an injunction bond, in the-penal sum of $10,000, dated May 24th, 1873, executed by the defendants to the plaintiffs, pursuant to chancery rule-46, and as a condition of the granting of a preliminary injunction, or restraining order, at the suit of the above named James T. Easton and James McMahon, against the plaintiffs-in this suit, whereby the latter were restrained from proceeding with the erection of a railroad bridge over the Raritan,…

For opinion of Supreme Court, see 10 Vroom 612. The relator was arrested on a capias ad satisfaciendum in an action of debt, at the suit of one Anway. He gave bond to apply for the benefit of the insolvent law, and was discharged from custody. He made application for the benefit of the insolvent law, and was refused his discharge, on the ground that his conduct had not been fair, upright and just. The relator did not surrender himself into custody, nor pay the debt.

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

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

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

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

In ejectment. Both parties claim under Thomas Stevenson, deceased, who died on the 8th of September, 1824. By his will he devised to his daughter, Agnes Maxwell, “ the interest and income of one-fifth part (first deducting $1200 advanced) during the term of her natural life. After the decease of Agnes, the one-fifth (first deducting the advance) to all the children of my said daughter Agnes in fee.” The plaintiffs are Agnes Maxwell’s children.

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

This was an action in case. There was a special count that was demurred to, (the common counts having been suppressed by the consent of the parties.) This count stated that by an act of the legislature, entitled “An act in relation to streets in Union township, in Union county,” approved March 29 th, 1871, a certain road board was incorporated for the purpose of making certain public improvements, the powers and capacities of such board being set out; that this board “ did…

<p>Where in a judgment record from another state it appears that in a joint suit against two defendants, a judgment was rendered at different times for the same amount against each defendant, but for the breach of a joint promise, a suit against suclf two defendants, on such record, will be sustained.</p>

In ejectment. On rule to show cause why a verdict should not be set aside.. Thomas Evens, deceased, the father of the defendant, died: April 18th, 1869, seized of several tracts of land in the counties of Burlington and Camden, leaving four sons, Samuel B., William B., Jacob L., and Thomas, his heirs-at-law.

<p>1. A landlord lias no lien on the goods and chattels of his tenant for the payment of his rent, except such as is given by the statute. The statute which authorizes a distress for rent, expressly limits the right of distress to the goods and chattels of the tenant, and no other person. Rev., p. 309, l 8.</p> <p>2. The lien of a bailiff seizing goods and chattels as a distress for rent, relates to the time of actual seizure under the warrant to distrain.</p> <p>3. A chattel mortgage is in law a conveyance of the goods and chattels mortgaged, and passes the title of the mortgagor for the purposes for which it was made. The right of a mortgagee under a mortgage made by a tenant of his goods and chattels upon the demised premises, is superior to that of a bailiff subsequently seizing them under a warrant to distrain for rent.</p> <p>4. But a chattel mortgage in this state is regarded as a mere security for the debt, and does not entirely divest the property of the mortgagor. The interest of a mortgagor in the chattels mortgaged is such an interest as may be seized and sold under the ordinary process of law against him.</p> <p>5. A bailiff having a landlord’s warrant to distrain the goods and chattels of a tenant for rent, or an officer having an execution against him, may levy upon the interest of the tenant in goods and chattels which he has mortgaged to a third person, and may sell the mortgagor’s interest in them, both before and after breach of condition, and even after the mortgagee has taken possession, without being liable to an action by the mortgagee; provided that in doing so no substantial injury be done to the interests of the mortgagee.</p> <p>6. Placing a levy on chattels mortgaged, by virtue of process of distress or execution against the mortgagor, is not such a tortious act as will support trespass, trover or replevin by the mortgagee, unless the levy be accompanied by such acts or conduct as evince an intention to assert under it a right hostile to the rights of the mortgagee.</p> <p>7. The statute (Rev., p. 971, jj 2,) which provides that replevin may be brpught for an unlawful detention of goods and chattels from their lawful owner, or the person entitled by law to the possession of the same, puts the action of replevin on the same footing as an action of trover. There must be an actual conversion, or a refusal to deliver on demand, which is evidence of a conversion, before the detention becomes unlawful.</p> <p>8. To constitute an actual conversion of goods, there must be some repudiation by the defendant of the owner’s right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the chattel.</p>

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

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

On demurrer to replications. This action was brought against the defendants for an injury to the plaintiff’s reversionary interest in certain goods and chattels.

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

On rule to show cause why a new trial should not be granted on verdict for the plaintiff in Hunterdon county Circuit Court.

The declaration in an action of debt sets forth, in substance, that “ the southeasterly district of the township of Union, in the county of Union, under the seal of said corporation, made, executed and delivered to the plaintiff three several promissory notes in writing, two dated December 8th, 1871, for $3000 and $2500 respectively, and a third dated December 9th, 1871, for $1800, all payable on demand to the order of the plaintiff, at the National State Bank of Elizabeth,…

This ease is a special finding of the justice at the Hudson Circuit, without jury, in nature of a special verdict, and the facts found and returned with the postea, were in substance as follows: March 31st, 1871. “ The mayor and aldermen of Jersey City” were incorporated, and, by said act, to the board of finance and taxation was committed the general management and care of the finances of said city, and the several departments thereof.

On certiorari. In matter of taxation. The prosecutor lived in Bernards township, Somerset county, and owned a farm in Piscataway township, Middlesex county, which was assessed in 1876 at $10,000. There was a mortgage on it held by John V. Veghte, of the township, of Hillsborough, Somerset county, for $9000.

This information is filed at the instance of George B. Whitney, to test the right of Hiram Van Buskirk to the office of chief of police in the city of Bayonne.

<p>1. Where an endorser of a promissory note dies before the note matures, notice of dishonor to his personal representatives is sufficient to support a claim on the endorsement against his heirs and devisees, without notice to them.</p> <p>2. Notice served by the notary upon a person in charge of the administrator’s usual place of business, is legal service, and its validity is not impaired by the notice being addressed to the decedent.</p> <p>3. When the notary knows of the endorser’s death, and knows who and where his personal representatives are, a service of notice by mail, addressed to “executors,” “administrators,” or “personal representatives,” is not sufficient. They should be addressed by name, and not by their office merely.</p>

<p>1. The plaintiff is an insurance company of the State of Pennsylvania, its principal office located at Easton, in that state. The defendant made an application in this state to the company’s agent resident here, for insurance on property in this state, and paid the premium, taking an agreement that a policy was to be issued when the application was approved by the company, and if not approved the premium to be refunded. The application was taken to the company’s office in Easton, there approved, and a policy issued and there mailed to the defendant. Held, that this contract was made in Pennsylvania, and not in New Jersey, and would by comity be enforced here, although the agent had not complied with the statute of this state concerning foreign insurance companies.</p> <p>2. A contract must be held to have been made where the last act necessary to complete it was done, when no mutual act remains to be performed to entitle either party to enforce it.</p> <p>3. In this case the contract was complete as soon as the application was accepted and the policy deposited in the mail.</p>

<p>1. A demand by the defendant that the plaintiff’s attorney declare whether the writ of summons or capias was issued by his authority, and the plaintiff’s place of abode, does not stay the running of the defendant’s time to plead.</p> <p>2. If, on such demand, the plaintiff’s attorney refuse to declare the place of abode, or so long omit that his failure amounts to a refusal, the plaintiff can proceed no further in the action without leave of the court.</p> <p>3. If the plaintiff does not take his judgment by default, before or during the term next after the defendant’s failure to plead, he cannot thereafter have such judgment, unless he first rule the defendant to plead.</p>

<p>1. A party may be estopped from objecting to awards for street openings, six years after they are paid, if he had a reasonable opportunity to object before they were paid, and was silent.</p> <p>2. An award for street openings should not be set aside, unless the parties in whose favor it was made are before the court.</p> <p>3. The prosecutor was entitled to an award for land taken in opening a street, but, in the report of commissioners making awards, no compensation was given to him. The report was confirmed, the awards settled, and the street opened in 1871. The prosecutor made no objection, and placed his fence on the street line. Held, that in 1878 he appeared to have dedicated to public use the land taken, and could not disturb the report for want of an award to himself. •</p>

<p>Under the act to adjust unpaid assessments in Jersey City, approved March 26th, 1873, [Pamph. L., p. 442,) those assessments are not conclusive in which it does not appear that the commissioners determined what was a fair and reasonable cost for the improvement, and assessed only that cost upon the lands benefited, in proportion to the benefit received.</p>

This certiorari brings up a certain judgment in favor of the treasurer of Millville, against one William C. Sparks, for the amount of the penalty of $20 due for the violation of an ordinance of the city of Millville.

This cause came before this court by writ of error, to remove to this court the judgment of the Court of Oyer and Terminer of the county of Camden. At the May Term, 1878, of said court, Benjamin Hunter was indicted and tried for the murder of John M. Armstrong. The jury rendered a verdict of murder in the first degree, and judgment was entered upon the verdict.

<p>1. The constitutional provision, in Art. IV., $ 7, ¶ 11, that prohibits special legislation regulating “the internal affairs of towns and counties,”' embraces cities.</p> <p>2. A law altering the boundaries of the wards of the city of Newark, and: displacing from office certain of the officials, and changing the times-of their election, is a special and local law regulating the internal affairs of a city, and therefore within the prohibitory clause above-referred to.</p>

On error to the Essex Circuit Court. Jacob J. Allen recovered judgment in the Essex- Circuit Court against one Thompson, and issued an alias execution thereon, and delivered the same to the sheriff of Essex county, the plaintiff in error, directing him to levy upon certain goods ■and chattels. A third party claiming the ownership of such property, the sheriff declined to sell without indemnity.

<p>1. The provision of the constitution of this state, as amended, that “ property shall be assessed for taxes under general laws and by uniform rules,” proprio vigore, put an end to existing special legislation for the assessment of taxes.</p> <p>2. An assessment of tax on the stock of a national banking association in this state, owned by a stockholder residing in the city in which the association is located, cannot be sustained by the presumption that the stockholder resided in the ward in which the association was located. It is the right of such stockholder, under the laws of this state, to have the assessment in such case made against himself.</p>

<p>1. The prohibition in the act “ in relation to legal holidays,” that no court shall be held on the day on which any general election for members of assembly is held,’ is’ repealed by the provision of the supplement (April 21st, 1876,) to the act “ concerning juries,” that the Court of Common Pleas shall meet for the selection of-jurors on the fourth Tuesday before the commencement of the regular term of the county courts, so far as it is in conflict with that provision of the later act.</p> <p>2. The provisions of the above mentioned supplement as to the proceedings in the selection of jurors, are all merely directory, except that which requires the certificate of the judges ; as to that, the statute is mandatory.</p> <p>3. It is sufficient, under the supplement, for the judges to certify, generally, as required by the act, that the jurors were selected in all respects according to the provisions of the act, without a specification of the particulars of the proceedings.</p>

On error to the Supreme Court. This action was brought upon a policy of insurance, under seal, bearing date April 27th, 1870, issued to the plaintiff as owner of the property insured. At the trial before the Circuit, a verdict was had by Martin, the plaintiff below, whereupon this writ of error was sued out by the defendant. Errors were assigned upon the record, and upon the proceedings at the trial.

On error to the Supreme Court. Hurff, the plaintiff in error, in the fall of 1873, purchased of one Heritage two hundred bushels of corn, out of a lot off four or five hundred bushels which Heritage had in his crib-house. He inspected and approved of the corn before he-bought it, and paid the cash for it immediately on the purchase.

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

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

<p>1. Under section thirty of the act of March 11th, 1866, (Rev., p. 1160, \ 88,) a township collector is entitled to receive twelve cents, and no more, for each name on his duplicate, for collecting all taxes inclusive, state, county, township, school, poor and other taxes, except so far as the section has been modified by subsequent legislation.</p> <p>2. The words “ all taxes ” in the section cannot be treated as distributive, giving twelve cents, or less, for each name separately, instead of for all conjunctively.</p> <p>3. The township committee are the agents of the township only so far as they act within the express provisions of the law, and payments made and sanctioned by them, not authorized by legislative enactment, are ultra vires, outside of th.eir agency, and cannot bind the people.</p> <p>4. Payments received by one knowing the agent to be unauthorized to make them, may he recovered by the principal as money wrongfully had and received.</p>

<p>1. The local municipal government within the limits of which dedicated lands lie, by virtue of their representing the public, may maintain actions to vindicate the public’s right of possession.</p> <p>2. Declarations of former owners of lands made after parting with title in them, are inadmissible.</p> <p>3. The word “park” written upon a block on a map of city property indicates a public use, and conveyances made by the owners of the plotted land, by reference to such map, operates conclusively as a dedication of the block.</p> <p>4. No right can be obtained against the public in dedicated lands, by adverse possession.</p>

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

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