Volume 41 — New Jersey Law Reports

On demurrer to the declaration. The plaintiff brought this suit in his character of receiver of the Third Avenue Savings Bank. The allegations touch.ing his right to sue were the following:.

<p>On error to the Essex Oyer and Terminer.</p>

This suit was on two promissory notes, alleged to have been made by the decedent.

<p>On rule to show cause why a new trial should not be granted, the issue having been tried in the county of Middlesex.</p>

<p>1. Where an accomplice is convicted after having been made a witness by the state, and received as such by the court, and after having made an ingenuous confession, such accomplice has an equitable claim to a judicial recommendation to the mercy of the pardoning power, which cannot be withheld without a violation of an established rule of practice.</p> <p>2. It is competent for the court to order the accomplice to be acquitted at the trial, for the purpose of qualifying him as a witness for the state, or to accept from the defendant a plea admitting guilt to such á degree as, in the opinion of the court, is requisite; or for the court to assent to the entering of a nolle prosequi by the attorney-general.</p>

<p>1. In an action for malicious prosecution, the plaintiff’ must show that the prosecution or proceeding of which he complains, is legally at an end, and that it was instituted maliciously and without probable-cause.</p> <p>2. The legal termination of the prosecution is sufficiently shown by the refusal of the grand jury to find a bill, without a formal order of discharge by the court.</p> <p>3. A rejection of the complaint by the grand jury is prima fade evidence of want of probable cause.</p> <p>4. There is no error in refusing to non-suit, if, from the facts proved, the jury might infer that the defendant had no actual belief or suspicion of the plaintiff's guilt.</p> <p>5. A defendant in such an action cannot excuse himself by showing that he acted under the advice of an unprofessional person.</p>

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

On demurrer, &e. The plaintiff declared on the common counts, and on a special count setting out that the defendants, at Philadelphia, to wit, at Camden, were indebted to the plaintiff in the sum of $500 for goods, &c., sold and delivered to the defendant Kate B. Williams, wife of the defendant Frederick G. Williams, at the special instance and request of the defendant Kate B. Williams, and averring that the said debt was contracted by the defendant Kate B. Williams, and was…

This cause was certified from the Essex Circuit. It was ■ an action upon a mechanics’ lien filed against buildings belonging to Harlan P. Smith. Pie had leased them to James V. Hervey. During his tenancy the tenant had caused to be done upon the buildings the work for which the lien was filed.

This action was brought by Green & Platt, partners, to recover from the city of. Cape May the price of a Babcock steam lire engine and ten fire extinguishers, alleged to have been sold by the plaintiffs to the defendants. A verdict was rendered for the plaintiffs. A rule to show cause why a new trial should not be granted was allowed by the trial judge. The facts upon which the reasons for a new trial are dependent appear in the opinion.

The statement of the case shows that this cause involved the trial of two feigned issues framed to try the validity of two judgments entered upon notes, with warrant to confess judgment against the said Emma M. Remington. The said notes were signed by Emma M. and her husband, S. Remington, at Chicago, and were payable at the same place. They were made payable to the order of Kent & Keith, and were endorsed by them to the plaintiff after maturity.

This was an appeal taken to the Court of Quarter Sessions of Camden county, from an order made by two justices in a bastardy proceeding. The cause was tried in the Sessions, before a jury. At the conclusion of the trial, the judges left the room. Upon the return of the jury to render their verdict, .there was no judge or clerk present. Neither were the counsel for the respective parties present. The crier took the verdict of the jury.

On certiorari. This writ brings up an assessment of a tax made in the township of Greenwich, in pursuance of a resolution passed by the town meeting of the inhabitants of Greenwich township, held on March 14th, 1876.

<p>In assumpsit. On rule to show cause why a verdict for the plaintiff should not be set aside.</p>

On certiorari. In matter of city ordinances. This writ brings up for review four ordinances of the mayor and common council of Hoboken, adopted on these respective dates: July 27th, 1861; December 5th, 1861; November 9th, 1875, and July 3d, 1877. The first-named ordinance contains ten sections, the major part of which was devoted to prescribing the mode in which street railways should be laid, and how the cars should be run.

<p>1. The legislature has the power to put upon a municipal corporation a portion or the whole of the expenses of a public improvement within its limits, either before it is undertaken or after its completion.</p> <p>2. An act directing an assessment for public improvements upon all lands and real estate which, “ in the opinion of the commissioners, or a majority of them, shall be benefited, in proportion to the benefit received,” is valid.</p> <p>3. The legislature may'limit the area of assessment for a public improvement; it need not include the whole territory benefited by the improvement; provided that the assessment upon such lands as are within the prescribed limits is restricted to the amount of benefit received by them.</p> <p>4. It is essential to the validity of an assessment for benefits that the land owners have notice, legal or constructive, of the meeting of the commissioners by whom the assessment is made, and an opportunity of being heard before them. It is not sufficient that they have notice of the hearing before the court on an 'application for the confirmation of the report of the commissioners.</p>

<p>On certiorari. In matter of assessment for benefits for the opening of Passaic avenue.</p>

<p>A writ of certiorari may be served by any person and in any manner by means of which the persons to whom it is directed may reasonably be made aware of the fact of the issuing of the writ and of its requirement. If the original is in fact delivered to the persons to whom it is directed, in such a manner as to communicate the information that they are required to obey it, the service is sufficient.</p>

<p>1. The first section of the act entitled “An act to establish just rules for the taxation of railroad corporations, and to induce their acceptance and uniform adoption,” approved April 2d, 1873, {Rev., p. 1166,) exempts from township and municipal taxation the main stem or road bed and track of such corporations, not exceeding one hundred feet in width.</p> <p>2. Under the above act, the Central Railroad Company of New Jersey is not taxable for county, township or municipal purposes, for a railroad bridge over the Delaware river at Phillipsburg, which was erected by the Lehigh Coal and Navigation Company, a corporation of the State of Pennsylvania, under permission granted by the legislature of this state; the said bridge being leased to the former company, and being used by it as part of its line of railroad, and being, with its piers and abutments, less than one hundred feet in width.</p>

On certiorari. In matter of taxation. This writ brings up an assessment of taxes for the year 1877. The reasons for reversal will appear from the opinion.

<p>In a suit before a justice of the peace, for rent, the defendant offered in evidence two deeds, to show that before the due day of the rent the demised premises had been conveyed to C., and that, as an incident of such conveyance, the right of action for the rent was in 0., and not in the plaintiff. Held, that the title to lands thereby came in question, and that the justice should have dismissed the suit for want of jurisdiction ; also, that the defendant was not, in such case, required to plead title and give bond.</p>

<p>1. The declarations of a steamboat clerk, made after the delivery of goods, are not competent to charge the steamboat company with negligence in their transportation.</p> <p>2. When the judgment of the Common Pleas on appeal is reversed in this court for the admission of illegal testimony, the case should he sent back to the Pleas to be re-heard.</p>

On certiorari. The prosecutors are assessed for taxes in the township-of Morris, for state, county, and township purposes, in the year 1877, upon a “house and lot,” at a valuation of $3000.

The plaintiff, John S. Wills, recovered judgment in this court against the defendant, William McKinney, August 12th, 1875, for $4664.79. A writ of fieri facias was issued, recorded and delivered to the sheriff of the county of Sussex, August 16th, 1875. It was levied on personal property and lands of the defendant in said county, on the same day, and stayed by the plaintiff until further order, or a junior execution should come into the hands of the sheriff.

On certiorari to set aside an ordinance. The prosecutors are the lessees of the Morris and Essex railroad, which runs through the township of East Orange, and is used by them in carrying on their business.

On petition and rule to show cause why a mandamus should not issue. The facts in this case appear in Schvmm v. Seymour et al., 9 O. E. Gh’een 143, in Chancery, May Term, 1873. The street commissioners of Greenville, afterwards made a part of Jersey City, contracted with the relator to do work and furnish materials for the improvement of a street in said township, called the New Bergen road.

On certiorari to review the proceedings to condemn lands of the prosecutor, and make assessment for street improvement, under an ordinance for the widening of Cherry street, from North avenue southeasterly to Seventh street, passed May 6th, 1876.

<p>Ou rule to show cause why an attachment should not issue against the late sheriff of Warren county, for refusing to pay money into court, upon the application of H. D. Yah Ostrand and others, judgment creditors of the defendant.</p>

<p>Tie first section of the act of April 2d, 1873, for the taxation of railroad corporations, does not enlarge or restrict the power of companies subject to its provisions, to acquire or hold lands for roadway. Such companies are exempt from local taxation upon their road-width, as allowed by their acts of incorporation, and all structures thereon suitable and proper in use for the purposes of the corporation, and not otherwise used. Upon all lands outside such road-bed, intermediate the termini, they are subject to local taxation.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Commissioners appointed by the Circuit Court to award compensation to owners of land damaged by a change of grade in the streets of Newark, have no power to make such awards in cases where no house or other building was erected on the land at the time of the alteration cf grade.</p> <p>2. An award made in such a case, although confirmed by the Circuit Court on motion of the city counsel, will be set aside on certiorari, at the instance of the municipal corporation.</p>

On error to the Supreme Court. By an act of the legislature, approved March 18th, 1874, it was made lawful for the board of chosen freeholders of Hudson county to take, by condemnation, for public use, the residue of Snake Hill not owned by the county, to be used for the purposes of an alms-house, jail, &c. In accordance with the provisions of this law, commissioners were appointed to assess the damages of the owners of these lands, and the report of such officers was…

<p>1. The legislative right to order low lands to be drained, at the expense of the owners, rests entirely on ancient custom, and cannot be deduced from the power to legislate, unless, in the particular case, the lands are so situated or conditioned as to make their reclamation a matter of direct public concern.</p> <p>2. In this state, ancient usage sanctions legislation that provides for the drainage of low lands at the-expense of the owners.</p> <p>3. But such legislation, to be valid, must conform to the usage upon which the right to legislate is founded.</p> <p>4. A law authorized the cost of a drainage scheme to be estimated, and such estimated expense to be allotted to the land owner in proportion fixed by the mere judgment of the appraisers, in advance of the doing of the work. Held — that such a method was a departure from the old usage, and was illegal.</p> <p>-5. The rule of the Agens case does not apply to these meadow cases.</p>

<p>Counsel fees cannot be recovered by action, unless a contract fixing the; amount can be shown.</p>

<p>On error, a point not embraced in any exception taken below cannot be considered or decided.</p>

<p>1. Improvement certificates, in the usual form, are assignable, but not negotiable, and are taken subject to any defence which existed in favor of the public corporation against the original holder, at the time of the assignment.</p> <p>2. Where payments are to be made, as the work progresses, on the certificate of the engineer in charge, and securities for such payments are given in conformity with the contract, if the proposed improvement is subsequently abandoned by the concurrent acts of the contractor and the public agents, so that assessments cannot be made for the payment of the certificates according to their terms, the assignee may maintain an action against the corporation for the value' of such certificates.</p>

<p>In error from Union Circuit.</p>

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

Demurrer to narr. The declaration contained six counts, that related to two classes of transactions. The first class of counts was founded on a breach of duty in the defendant’s intestate, arising out of an alleged retainer of such intestate, as an attorney at law, by the plaintiff in regard to certain mortgages about to be purchased by the plaintiff, by means of which his money was lost.

In trover. On case certified from the Circuit Court of the county of Ocean.

Indictment for conspiracy. The gravamen charged was, that the defendants “fraudulently and unlawfully did conspire and agree between and among themselves, by means of divers false, wicked and malicious charges, to injure'and defraud him, and to cause him to he regarded as a dishonest man and a thief.” The overt acts laid, in substance were that the defendants “ reported to and among his neighbors that the said Dringer was a thief, and had dishonestly obtained certain brass,…

<p>1. In a suit on a bond against the heir at law, who has aliened the descended lands before suit brought, the recovery will be only for the value of the lands in the condition in which they were at the time of the descent cast. ■</p> <p>2. In such a suit, the improvements put on the land by the heir will not enter into the valuation of such land, nor will the heir' be called on for the rents and profits, nor, on his side, can he claim for repairs.</p>

Action of covenant. The substance of the first count of the declaration was that on April 1st, 1868, the plaintiff being the owner of certain described premises, executed to his father, one John Golden, ' a bond secured by a mortgage on said land, in the sum of $10,000, payable in five years; that afterwards, on March 9 th, 1874, he conveyed the premises, subject to the mortgage, to the defendant, and that it was therein “declared, covenanted and agreed by the defendant,…

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

On rule to show cause, &c. Action for money had and received, brought to recover the sum of $945, obtained by the defendant from the plaintiff under the following circumstances: April 1st, 1867, the defendant sold and conveyed a farm to one Henderson, and took from him a purchase-money mortgage for $10,500, payable in five years after its date.

<p>On demurrer to declaration.</p> <p>The narr. is upon an official bond given by Henry H. Kline, a constable of the fifth aldermanic district of Jersey City.</p> <p>The condition of the bond is, that if the said Henry H. Kline should truly and faithfully perform all the duties enjoined on him as constable of said aldermanic district, then the above obligation to be void, otherwise to remain in full force and virtue. The breach assigned is that, during the year 1876, at divers times, James H. Love, collector of Jersey City, did cause to be delivered unto the said Henry H. Kline, through Frederick T. Farrier, justice of the peace in and for the county of Hudson, divers tax warrants, amounting in the aggregate to the sum of $631.13, which warrants commanded said Kline that he levy the tax so in arrear, &a. • that said delinquents did pay unto the said Kline, as constable as aforesaid, said debts and costs in the said several tax warrants directed to be levied, yet the said Kline hath wholly failed and neglected to pay over to the said plaintiffs, or to the said justice of the peace, the said debts and costs, or any part thereof, although often requested so to do.</p>

On rule to show cause. A verdict was rendered against the defendant, Servin, in favor of the plaintiff, in au action upon a note dated May 1st, 1867, made by one Matthew D. Bogert, in favor of said Servin, for $5000, payable four months from date at the Farmers’ and Merchants’ Bank, at Mata wan, N. J. The note was endorsed first by Servin and then by the North River Brick Company, per B. Ackerson, treasurer.

<p>1. An agreement made by attorneys to postpone an appeal case in the Common Pleas for the term is valid, for though they are not attorneys of record, they are the agents and counsel of their respective clients, and whatever they do in conducting the case is binding on all concerned.</p> <p>% Such an agreement cannot be disregarded by the court, nor can the court dismiss the appeal for want of prosecution.</p>

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

<p>The act of February 24th, 1869, provided for the appointment of a law judge of the Court of Common Pleas for the county of Middlesex, and that such additional judge should receive a salary of $1600 per annum, but should receive no other share of the fees or compensation divisible among the judges of said courts. March 18th, 1869, an act was passed giving to the judges of the Courts of Common Pleas a per diem of $3, which, in 1873, was increased to $5. Held—</p> <p>1. That the term fees and compensation related to the fees and costs allowed by the fee bill and other acts, which are to be paid fof certain official acts and services performed, and are divisible among the judges present. ■</p> <p>2. That such additional law judge is entitled, during his term, as well to the per diem as to his salary, such per diem being in no sense fees or compensation divisible among the judges, or any of them.</p>

<p>1. A railroad corporation, whose railroad, including its rolling stock and equipment, is in possession of its mortgagees, who are operating the road under the mortgage, is, nevertheless, liable to taxation upon the valuation of its railroad, and its equipment and appendages, pursuant to the provisions of the act entitled “An act providing for state taxes on railroads, and the more efficient collection thereof.” Rev., p. 1168.</p> <p>2. The statute above referred to makes a railroad corporation liable to taxation on its railroad, and its equipment and appendages, without .regard to the fact that the railroad is not in the company’s occupation or use, and the means provided for collecting the taxes by a sale of the franchises and property, real, personal and mixed, of the corporation, free and clear of all encumbrances.</p> <p>3. Nor will a railroad corporation be relieved from taxation under the above mentioned statute, by the fact that the corporation is in the hands of a receiver, under an appointment of the Court of Chancery on proceedings against it as an insolvent corporation.</p> <p>4. Placing the property of a corporation in charge of a receiver does not work its dissolution, nor is the title of the property changed: a power only is delegated to take charge of it and sell it.</p> <p>5. The receiver of a corporation, appointed by the Court of Ohancery, takes its property, including its franchises, in the same condition and subject to all the duties, obligations and liabilities that rested upon the corporation itself, and, in the administration of his office, is under obligation for the performance of every duty and obligation imposed upon the corporation by its charter, or by the general laws of the state.</p>

<p>On motion to quash or set aside service of a writ of alternative mandamus.</p>

<p>1. In replevin, where the officer has delivered the goods and chattels to the plaintiff, on a finding of the issues for the plaintiff, he is entitled to recover damages for the taking merely: it is only when the property has been re-delivered to the defendant, pursuant to the tenth section of the act concerning replevin, (Rot., p. 973,) that the plaintiff is entitled to have the value of the property, as well as the damages for the taking and detaining, included in the verdict.</p> <p>2. In replevin, where the goods had been delivered to the plaintiff' on pleas of non cepit and property in the defendant, the j ury found a verdict “in favor of the plaintiff'for the sum of two hundred and twenty- • five dollars, for the value of the goods, and for fifteen dollars damages,” the judge having requested the jury to find the valúe of the property in dispute, with a view of determining the question of costs. . On motion to set aside the verdict as incongruous, imperfect, and upon but one of the issues, Held—</p> <p>1. That the finding of the value of the goods would be treated as surplusage.</p> <p>2. That the court would mould the verdict according, to its evident meaning, and treat it as a verdict upon all the issues; and</p> <p>3. That the verdict would not be interpreted as a finding that only so much of the property in dispute as was of the value of $225 belonged to the plaintiff, but would be construed as a finding for the plaintiff of property in all the goods and chattels mentioned in the pleadings, and not in part only of them.</p> <p>3. The affidavit of a juror will not be received for the purpose of impugning or destroying the verdict, or of proving the grounds upon, which it was given.</p>

<p>On certiorari to Monmouth Pleas, to remove a judgment on appeal from a justice’s court.</p>

<p>On certiorari to remove an order appointing a receiver on supplementary proceedings in aid of a judgment creditor.</p>

<p>1. Section sixty-eight of act constituting courts for the trial of small causes, (Bev., p. 552,) enacting that if the constable to whom any execution is delivered shall not perform the duties prescribed by the act, he shall be liable, in an action of debt, to pay the debt or damages, with double costs, applies to the requirement to return the execution within thirty days.</p> <p>2. The action is penal, and must be brought within two years next after the cause of action accrued. Bev., p. 597, $ 21.</p>

On certiorari. In matter of taxation. The writ of certiorari and return bring to this court the taxes of the prosecutors, residents of Perth Amboy, for the years 1874, 1875 and 1876, and their legality is contested.

<p>1. An annuitant can only be assessed for tbe sum actually due and unpaid on the annuity at the time of the assessment. The principal sum producing the annuity, less the sum actually due and unpaid on the annuity, must be assessed to the debtor.</p> <p>2. State, Howell, pros., v. Cornell, 2 Vroom 374; State, Rogers, pros., v. Pettit, 10 Vroom 654, followed. ,</p>

<p>On rule to show cause. The facts appear fully in the opinion.</p>

<p>The District Court act,'so far as it gives that court jurisdiction exclusive of other courts, is unconstitutional and void.</p>

<p>On application for leave to file an information in the nature of a quo warranto.</p>

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

<p>Surveyors of the highways may be appointed to make an alteration in a road within one year after the road has been laid out.</p>

<p>On certiorari to remove conviction for forcible entry and detainer.</p>

<p>Preference in payment will be given to a junior judgment creditor over an earlier judgment obtained without consideration, or for the purpose of defrauding creditors.</p>

<p>On Certiorari to Essex Common Pleas.</p>

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

<p>On certiorari to review tax.</p>

On certiorari to the Common Pleas of the county of Union. The following state of the case was agreed upon by the counsel of the respective parties : The appellees, the plaintiffs below, brought suit against the appellant, as defendant, to recover on a note of $75, dated August 11th, 1875, made to order of Jabez B. Cooley, payable three months after date. Jabez B. Cooley died after the making of the note and before it came due.

<p>1. Every person,is entitled to the inspection of documents of a public nature, provided he shows the requisite interest therein.</p> <p>2. It is not necessary that a suit should be pending before such inspection will be granted.</p> <p>3. It is sufficient, if the person seeking inspection, has such interest in a specific controversy as will enable him to maintain or defend an action, for which the public documents will furnish competent evidence or necessary information.</p> <p>4. It is not essential that he should be legally capable of maintaining oc defending an action in his own private behalf; but it will entitle him to inspection, if he may act in such suit as a representative of a common or public right.</p> <p>5. This court may, in its discretion, at the instance of private persons, act by mandamus, certiorari or quo warranto, for the redress or prevention of public wrongs by public bodies and officers, whose official sphere is confined to some political division of the state, whenever the applicant is one of the class of persons to be most directly affected in their enjoyment of public rights, and the public convenience will be subserved by the remedy desired.</p> <p>6. A citizen of Orange, desiring to ascertain whether the' provisions of the city charter in regard to licensing saloons have been observed, with a view of securing due obedience to the law, is entitled to an inspection of the letters of recommendation filed with the collector of taxes as the basis for the issue of pending licenses.</p>

<p>1. A sheriff is not bound, without indemnity, to levy on goods standing in the name of and claimed by another than the defendant in execution. ■ •</p> <p>2. If a sheriff, instructed to levy on specified goods, rightly determines not to levy without indemnity, he must so act that the plaintiff or his attorney shall not reasonably be misled in regard to his purposes.</p> <p>3. The court will not conclude that a sheriff has been guilty of delinquency justifying his amercement, unless the presumption in favor of the propriety of his official conduct be fairly overcome by preponderance of proof.</p>

<p>1. Mere ministerial agents or officers of a corporation, employed durante bene plácito, may be removed without any other cause than that the pleasure of those who appointed them is determined.</p> <p>2. A fire engine company, under the statute, {Pamph. L., 1854, p. 273,) is such an agent, and may be disbanded at the pleasure of the managers of the department.</p>

<p>In the eleventh section of the Essex public road board act, approved March 31st, 1869, [Pamph. L., p. 957,) the phrase “land and real estate ” includes a way appurtenant to a farm.</p>

<p>On certiorari.</p>

On error to the Supreme Court. Suit to recover the amount, with interest, of an assessment paid by O’Callaghan, the plaintiff below, to the defendant. The plaintiff was one of a number of land owners Avhose property was assessed for benefits arising from the laying of a common sewer. The quota of the plaintiff was $1479.74, which he paid to the city on August 9th, 1872.

On error to the Supreme Court. Suit by Campion against the city to recover the amount of an assessment for paving paid by him. The assessment had been made in 1871; it was paid on July 1st, 1873; on May 7th, 1877, the assessment was set aside at the instance of the city, and on November 19th, 1877, a new assessment was made, that imposed on the lands which the plaintiff had ■owned an amount in excess of the sum he had paid.

On error to the Supreme Court. This case was tried in the Union Circuit Court by Mr. Justice Van Syckel, a jury being waived, and his conclusions, as stated by himself, were as follows : “ This action is brought to recover from the city of Elizabeth the sum of $1119.80, with interest, being the amount paid by Davenport to the city upon an assessment made against his lot for a wooden pavement.

<p>Under tlie charter of the city of Bayonne the state and county taxes must be paid by way of preference, out of the first moneys raised by taxation.</p>

On error to the Supreme Court. The facts in this case, and the points relied on for a reversal of the judgment below, siifficiently appear by the opinions delivered in this court.

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

<p>Error to Hunterdon Circuit.</p>

<p>1. The statute approved March 27th, 1874, (Sev., p. 1216,) was not applicable to a state treasurer then in office and holding over because of failure to appoint his successor.</p> <p>2. A bond for the faithful performance of official duty, given to the state by a treasurer so holding over, and sureties, on the demand of the two houses of the legislature, declaring that, if it was not given, they would appoint his successor, is not vitiated by duress, but is valid as the voluntary act of the obligors.</p> <p>8. Such a bond need not be executed before the president of the sendte, nor be approved by the legislature.</p> <p>4. A receipt for moneys of the state, paid by the state’s debtor to the state treasurer, signed by that officer, but not countersigned by the state comptroller, is competent evidence on behalf of the state to charge the treasurer and his sureties with the money so received.</p> <p>5. The treasurer and his sureties are chargeable with moneys collected by the treasurer in advance, which fell due during the incumbency of the same treasurer and the period for which the sureties were responsible.</p> <p>6. In the absence of statutory provision to that effect, neither the legislature nor its members are agents of the state for the reception of bonds or other contracts which impose no obligations upon the state and impair none of its rights.</p> <p>7. In a matter wherein the legislature properly acts as agent of the state, notice to the members of the legislature individually is not notice to the state; such notice, to bind the state, must be given to one of the legislative branches in organized session.</p> <p>8. The knowledge of the agent is chargeable upon his principal whenever the principal, if acting for himself, would have received notice of the matters known to the agent.</p> <p>9. In an action by the state upon a state treasurer’s bond, the obligors can be held responsible for moneys received officially by the treasurer during the period covered by the bond, and applied by him to the satisfaction of defalcations which he had committed before that period, the state having received the moneys without knowledge of the misapplication.</p> <p>10. Cotemporaneous entries made by the treasurer in his official books, and his returns to the state comptroller registered in the latter’s books, showing the application of moneys delivered by the treasurer into the state treasury, are conclusive evidence against the treasurer and his sureties.</p>

Suit in the Hunterdon Circuit on a guardian’s bond. Under the direction of the court a special verdict was rendered. The facts found are sufficiently stated in the opinion.

This case was brought into this court by writ of error from the Essex Oyer and Terminer. The plaintiff in error was indicted with Jeremiah H. Stedwell, Henry W. Baldwin, A. Goodrich- Fay, Henry PI. Trenor, and Rufus C. Frost, for conspiring to cheat and defraud the New Jersey Mutual Life Insurance Company and William Titus, a policy-holder of said company, of their money, goods and chattels and prop-erty, &c.

This proceeding was by attachment. Before the auditor the claim of the plaintiff was disputed by the creditors, and the same being allowed and a report made accordingly, exceptions were filed to the report, and such proceedings were thereupon had that the matter was sent back to the auditor with the ■directions following: “And that so much of said auditor’s report as finds in favor of the plaintiff for the sum mentioned, be and the same is hereby referred back to said…

In debt on treasurer's bond. This action was brought by the mayor and common council' of the city of Hoboken against John Kamena and his sureties,, on a bond given by Kamena to the plaintiffs upon his election as treasurer of Hoboken. The facts appear fully in the opinion of the court.

In ejectment. This was an action of ejectment to recover the possession of a farm in the township of Woodbridge, in the county of Middlesex, in this state. The declaration was in the ordinary form, against the defendants named in the summons. Possession was claimed from April 1st, 1878. Both defendants interposed a plea of not guilty. Cause was tried at Middle-sex Circuit, at the December Term, 1878, and, by consent of counsel, before the court without a jury.

<p>In debt. On ease certified from the Essex County Circuit Court. The facts are fully stated in the opinion of the court.</p>

<p>1. That part of the third section of “An act relative to statutes,” (Rev.,p. 1120,) which provides that when the course of practice or procedure for the enforcement of a right vested or accrued under a statute subsequently repealed, shall be changed, actions then pending or thereafter commenced for the enforcement of such right shall be conducted as nearly as may be in accordance with such altered practice or procedure, applies only to cases where the legislature has substituted a new course of practice or procedure for the enforcement of such antecedent liability. Where no new remedy has been substituted for the enforcement of a right accrued under a statute afterwards repealed, the old remedy remains, notwithstanding the repeal of the statute by force of constitutional provision.</p> <p>2. The fifth section of “An act to amend the laws relating to the property of married women,” {Rev., p. 637,) has not provided a new course of practice or procedure for the enforcement of contracts made 'by married women before that act took effect, and the remedy and course of practice and procedure for the enforcement of a contract made by a married woman, while the act of 1862 (Nix. Rig. 548) was in force, remain as they were under that act, notwithstanding its repeal.</p> <p>3. Where husband and wife are living together, and the wife purchases articles for domestic use, the law imputes to her the character of an agent for her husband. She may contract for such articles as principal, and assume the responsibility of principal debtor. But to fix upon her such a liability, it must appear affirmatively that she made the purchase on her individual credit. There must be either an express contract on her part to pay out of her separate estate or the circumstances must be such as to show clearly that she assumed individual responsibility for payment, exclusive of the liability of the husband.</p>

<p>1. The act entitled “ An act for the security of manufacturers of mineral waters and other beverages,” approved February 21st, 1854, and the supplement thereto, approved March 25th, 1863, (Nix. Dig. 541-542,) was intended to confer a special privilege only on persons engaged in the manufacture of the specified beverages within this state. Its provisions do not extend to persons engaged in the manufacture in other states, though they vend in this state such beverages of their own manufacture."</p> <p>2. The penalties prescribed by those statutes are incurred only by such persons as shall, without the written permission of the owner, sell, dispose of, buy or traffic in any bottle or bottles marked as required by the act — a description of which has been filed in the clerk’s office— or shall wilfully break 'or destroy any such bottle, &e., or shall fill with mineral water or other beverages any such bottle for the purpose of sale. The penalty is not incurred by a dealer of bottles, or junk vendor, who shall have secreted upon his premises, or in any other place, bottles stamped and registered as prescribed by the act.</p> <p>3. The third section of the act of 1854, which authorizes a warrant to search the premises where it is alleged that bottles stamped and registered are secreted, on oath or affirmation being made, before a magistrate, is only in aid of a suit for penalties, to be regularly proceeded with by filing a statement of demand, which shall allege the doing of some one of the acts for which a penalty is given. The affidavit made to obtain such a warrant is nófc a sufficient complaint to proceed on at the trial.</p> <p>4. In an action for penalties, where the case is tried by a jury, it is the province of the jury to determine the amount of the penalties incurred. The justice cannot, on a verdict of guilty, determine how many penalties the defendant shall be liable to pay.</p>

<p>On rule to show cause why a judgment by confession on bond and warrant of attorney should not be set aside and vacated.</p>

On rule to show cause why the judgment obtained by the plaintiffs against the' defendants in this court should not be set aside as to said Harriet T. Woodruff.

On certiorari to the board of public works of Jersey City, in the State of New Jersey, to review certain assessments for water taxes on lands of the prosecutors in Jersey City, for the years 1870, 1871, 1872, 1873, 1874, 1875, 1876, 1877.

On motion to amerce the late sheriff of Warren county, John Gardner, for neglecting to execute a writ of execution to him delivered, issuing out of the Circuit Court in the county of Warren, in April, 1876, for $343.96.

<p>1. La 1758 the colonial government of New Jersey purchased lands for the Indians residing within its borders, with a stipulation that the said lands should not be subject to taxation. The lands were after-wards sold in 1801, at the request of the Indians, from whom the prosecutors claim to derive their title. After the conveyance of the Indian title, the lands were taxed in the hands of their grantees. The state courts affirmed the assessments, but on appeal to the Supreme Court of the United States, a decision was rendered in 1812, denying the right of the state to impose the tax.</p> <p>2. In 1814 these lands were again assessed, and from that date until the year 1877 taxes upon them have been annually assessed and paid by the prosecutors or their grantors without objection. Held—</p> <p>1. That the act of the legislature granting the exemption to the Indians must be regarded merely as authority for and evidence of the contract entered into by the supreme power.</p> <p>2. That this contract is subject to be abrogated, rescinded or its benefits lost to the party seeking to enforce it, according to the rules which apply in other cases.</p> <p>3. That the fact that, after the tax was declared to be illegal, it was again levied in 1814, and that the prosecutors or their grantors, with full knowledge of their rights, paid the imposition, and have uninterruptedly continued to pay it annually since that time, without questioning the right to lay it, raises a conclusive presumption that by some convention with the state the right to exemption was surrendered. _</p>

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

On certiorari to remove assessments for sewer in Grand street, from the Newark .plank road to a point west of Vreeland street, in Jersey City.

<p>On certiorari to the Court of Common Pleas of Camden county.</p>

<p>On certiorari to the Essex Pleas. The facts are fully set forth in the opinion.</p>

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

On certiorari. The proceedings under review are included in the returns to two writs of certiorari, sued out by the prosecutor, to bring up certain assessments made for the construction of sewers in Jersey City. One writ brings up an assessment for a main sewer in section A, second drainage district, in said city, and the other an assessment for main sewer in section B, second drainage district, iu said city.

On certiorari. This writ brings up certain proceedings taken to dispossess a tenant under the landlord and tenant act. Judgment was rendered by the justice, in favor of the claimant, upon the verdict of a jury. The prosécutor seeks a reversal of this judgment.

The writ brings up a certain tax levy and assessment for the year 1875, upon certain property in the city of Elizabeth, described in said assessment as house No. 317 East Jersey street and house No. 319 East Jersey street, and also all the proceedings taken by the city for the sale of said property and the collection of said taxes, including the certificate of sale, the assignment thereof and the declaration of sale to-James Hand.

This writ brings up an assessment made upon the property of the prosecutors for taxes for the year 1878. They were assessed for the amount of $120,700 personalty, and $4800 realty. The tax upon the realty has been paid; the tax upon the personalty is aitacked.

On error to the Supreme Court. The controversy in this case relates to the equal undivided one-half part of a tract of land in the county of Ocean. The premises in dispute are part of a tract of four hundred and twenty acres, situate in the counties of Ocean and Burlington, and called in the pleadings and evidence as lot number seventeen. The tract of four hundred and twenty acres was once owned by Charles T. Lott and Joshua S. Earl as tenants in common.

On error to the Supreme Court. For opinion of Supreme Court, see 10 Broom 402. The defendant was the director of the board of freeholders of the county of Hudson, and was indicted for a violation of the act entitled “ A supplement to an act entitled ‘ An act for the punishment of crimes,’” approved March 27th, 1874, which is as follows, viz.: The act under which the indictment is sought to be sustained is found in the laws of 1876, page 16, as follows: • “ 1.

The plaintiffs in error were tried and convicted of murder in the first degree. That judgment was reversed in this court for errors in the charge of the judge to the jury, and a venire de novo directed to be issued. This was a motion to amend that entry.

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