Volume 42 — New Jersey Law Reports

Trespass guare clausum fregit, &c., and there digging and carrying away certain zinc ore, &c. There were certain special pleas which, as a justification, attempted to show, by the statement of certain facts, that the ore in question was the property of “ The New Jersey Zinc and Copper Mining and Manufacturing Company,” and which company had the right to enter upon the bous in quo, and to take said ore therefrom.

Suit on subscription for stock. The transaction was a Michigan transaction. The plaintiff was a corporation organized under the laws of that state, with a capital of $30,000.

This was a suit for alleged breaches of a guardian’s bond. The declaration stated that Heishon, at an Orphans’ Court held in the county of Salem, on the 24th of April, 1866, was appointed guardian of the person and estate of Elizabeth B. and Mary E. Heishon, infants under the age of fourteen years, and that he thereupon executed a bond to the Ordinary, the other defendants being his sureties, with a condition stated in .these words, viz.: “That if the above-bounden Joseph B.…

<p>Rule to show cause.</p>

<p>1. A ferryman is not chargeable for the absolute safety of property retained by a passenger in his own custody and under his own control.</p> <p>2. The property, in such cases, is not at the sole risk of either party. The ferryman undertakes for its safety, as against any defects in his boat, or the want of proper appliances for its security, as well as for the skill and care of himself and his servants. The passenger is hound to exercise ordinary care and skill in its management; and if he is guilty of negligence contributory to the injury, he cannot recover.</p> <p>3. Where the ferryman carries the property gratuitously, he is liable only for gross negligence.</p>

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

<p>1. While an attorney-at-law acts merely in the character of attorney, making usé of the process of the law to enforce his client’s demand, however groundless and vexatious it may be, he is not liable to suit. But when he steps beyond that, and actively aids his client in the execution of his purpose, he is not shielded from responsibility.</p> <p>2. In an action by a mortgagee for injury to the mortgaged premises, the measure of damages is not the depreciation in the market value of the premises, but the diminution in the value of the security.</p> <p>3. Where there are several mortgagees, each may, without reference to the other, recover such damages as he can show he has sustained.</p>

<p>1. The estate which the owner has in lands in the city of Newark, may be sold for personal taxes assessed against him, before resorting to his personal property.</p> <p>2. By the seventy-seventh section of the charter of Newark, taxes assessed upon real estate have priority over mortgages, but taxes assessed upon personal property of the owners of land, have not such priority.</p>

<p>■On an issue whether a misdescription of insured premises caused the insurance to be effected at a lower premium than would otherwise have been charged, the company’s agent, through whom the policy was issued, was permitted to swear to his opinion as to the rate at which he could have procured insurance of the premises, as they were, from other companies, and his knowledge as to the rate actually ■charged by other companies for insurance of buildings of similar character. Held—That the evidence was admissible, in the discretion of the trial judge.</p>

<p>In error to Somerset Circuit.</p>

On application for a mandamus, commanding the respondent to make payment to the relator of salary, as a judge of the District Court of the city of Yew Brunswick. This case was argued on a statement of facts, agreed on, which will sufficiently appear by the opinion.

<p>On certiorari.</p>

<p>On certioi'ari to a justice of the peace of Union county, to' reverse a judgment given for the defendant on set-off.</p>

<p>1. The county collector of each county shall receive and hold in trust the state appropriation for public schools belonging to his county, and pay the same to the collectors of the several townships and to the city treasurers of the cities of his county, only on the orders of the county superintendents, and is responsible for these moneys if otherwise expended.</p> <p>2. School taxes are to be levied and applied for the fiscal year beginning September 1st succeeding the assessment, and not for the preceding year.</p> <p>3. A mandamus will be allowed for the payment of the county superintendent’s order for the state appropriation for public schools, where the moneys have been applied for school purposes in the preceding year, beginning January 1st.</p>

<p>On certiorari to a justice of the peace. In attachment.</p>

<p>1. Under Section 85 of the charter of Trenton, (Pamph. L. 1874, p. 84,) an advertisement of sale “for benefits arising'and for money laid out and expended,” &c., instead of “for so much money laid out and expended,” is not irregular; and “the shortest period of time” is equivalent to “ the lowest term of years.”</p> <p>2. The treasurer of the city may sell and purchase lots, by resolution of the common council directing him to make sale, under Section 83 of the charter and Section 7 of the supplement of 1875. Pamph. L., p. 346.</p> <p>3. This power may be delegated to the treasurer as a ministerial duty, for which agents or committees may be appointed.</p>

<p>lf a party assessed for taxes lias notice and opportunity to make his appeal and proofs before the commissioners of appeal, and fails to attend and produce his proofs of error in the assessment, he will he refused relief on certiorari.</p>

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

On certiorari. The judgments brought up by these several writs were rendered against the prosecutors by justices of the peace in the county of Passaic, for penalties incurred through violations of an ordinance of the city of Passaic against the sale of ale and other malt liquors without license. The parties in each suit were represented by the same counsel, and for convenience the cases were heard together, substantially the same questions being involved in each.

On rule to show cause why mandamus should not issue to the treasurer of Jersey City, requiring him to audit and pay certain warrants.

<p>1. The charter of the prosecutors provides for the payment by the company of a state tax, and contains a proviso “that no other tax or impost shall be levied or assessed upon said company.” Held—1. That the word “assessed” in the proviso cannot have the force and meaning of describing special levies for public improvements, but is used merely to describe the act of levying the tax or impost. 2. That the company is not, by the proviso, exempt Bom assessments for local improvements.</p> <p>2. The effect of Section 9 of the act of 1873 for the taxation of railroads, is to subject the property of all railroad corporations of a character to be benefited by local improvements to special assessment for the costs of such improvements, when the public work benefits the property in the uses to which it is applied.</p> <p>3. When property is legally subject to assessment, and the proceedings of the commissioners are regular, the report is conclusive, in the absence of other proof, of the fact of benefit actually received, and of its amount and value.</p>

<p>1. Two farms, owned by T., were divided by the township line between M. and S., so as to leave in S. a dwelling-house and one-acre lot belonging to No. 1, and a dwelling-house and fifteen acres belonging to No. 2. The residue of both farms lay in M., where T. lived and cultivated No. 1, including the one-acre lot in S., the dwelling-house being occupied by a tenant who had no connection with the farm.</p> <p>2. No. 2, with the exception of the woodland and some acres of rye in M., was leased for a money rent to a tenant who lived in the dwelling-house in S. Assessment against T. in S. for the house and lot, part of No. 1, and for the whole of No. 2, sustained as to the dwelling-house belonging to No. 1, and so much of No. 2, on both sides of the line, as was occupied by the tenant; and set aside as to the one-acre lot, the woodland, and the rye.</p> <p>3. The plain import of the sixth section of the act 'of 1866, {Rev., p. 1152,) is that, where a farm is divided by a township line, and is occupied by a tenant residing in one of the townships, while the owner resides in the other, the entire farm must be assessed in the township where the tenant and occupant resides, and may be assessed there, either to the tenant or the owner, at the discretion of the assessor.</p>

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

<p>1. A tract of between three thousand, and four thousand acres of woodland, lying in one township, and forming part of the Weymouth estate, upon which the prosecutors resided, in another township, held to be, for the purposes of taxation, iunoccupied land, and assessable to the prosecutors in the township where it was located.</p> <p>2. Unless there is such an occupation or possession of land as will enable the tenant or possessor, without the aid of a paper title, to maintain an action for trespass upon it, such land cannot be said to be occupied, in the sense of Section 6 of the tax law of 1866. Sev., p. 1152.</p> <p>3. The general policy of our law with respect to the taxation of real estate is expressed in the provision that all lands shall be assessed in the township, &c., in which they are situate. The single exception is in the case of occupied land divided by a township, ward or county line. The property to be assessed, whatever may be its character, whether a cultivated farm or a tract of wild land, is to be taken and valued in the actual condition in which the owner holds it.</p> <p>5. If held as a'farm or as an entire tract,.the question is not, what would this or that part of it sell for if separated from the rest, but what would the property as it is—as the owner actually holds it in that taxing district—sell for at a fair private sale ?</p>

<p>1. That the trustees of a school district, in their corporate capacity, are not liable to be sued in a justice’s court, must be regarded as settled, in this court, by the case of Townsend v. Trustees, &c., 12 Vroom 312.</p> <p>2. A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition, which expresses the conclusion of the court, is as effectually passed upon and settled, in that court, as the very matter directly decided.</p> <p>S. Jurisdiction oyer the subject matter of a suit cannot be conferred by-consent, nor can the right to object to the want of it be lost by acquiescence or neglect; _</p>

The writ of certiorari in this case was allowed to bring up an act of the board of public works in Jersey City, in entering into a contract for the construction of a public sewer in the streets of that city. A motion is now made by the counsel of the city to dismiss the writ, upon the ground that it was improvidently granted.

On motion for a peremptory mandamus. The following state of the case was agreed upon as the evidence to be used at the hearing on the return to the rule granted in the cause: The attorneys of the above parties hereby stipulate that the following facts are agreed upon as the testimony to be used in the argument of the rule granted in the above cause: 1.

<p>1. Depositions taken on a legal holiday, upon notice to, hút against the objection of the opposing counsel, cannot be used.</p> <p>2. Where a complaint was filed under the forcible entry and detainer act, containing a statement of the estate of the complainant in the-premises, and, upon the trial, a motion was made by complainant’s-counsel to strike out the statement, which motion was allowed—Held—</p> <p>1. That there was no power in the justice to order the amendment, and the complaint remains in legal contemplation, as when filed, and so-there is no defect in the complaint.</p> <p>2. That inasmueh as, by force of the construction heretofore given to-Section 23 of the act, proof of the estate of the complainant was no part of his case; therefore, that the fact of the allowance of the amendment could not affect the proof in the case, and no presumption arises-therefrom that legal proof of complainant’s case was not offered at the trial. _</p>

On certiorari. This writ brings up the assessments and tax warrants issued thereon against two ferry-boats assessed for the years 1876 and 1877, as the property of the Midland Terminal Ferry Company.

This writ brings up a judgment entered in an action between Caleb A. L. Shinn, plaintiff, and George Wills, William H. Wills, Moses Wills and Mary Wills, in the Court of Common Pleas of Burlington county. The action was commenced before a justice, tried before a jury, and resulted in a verdict for the defendants.

Ou return to a rule to show cause why a writ of mandamus should not go to John Disbrow, late collector of South Amboy township, commanding him to pay over to his successor in office, the relator, the sum of $2641.89, the alleged balance •of school moneys held by said Disbrow at the end of hip term.

The plaintiff in error was convicted in the Essex County General Quarter Sessions of the Peace, of keeping a disorderly house in the city of Newark, the alleged disorder consisting in the habitual selling of ale, beer, &c., on Sundays. Upon a writ of error, the cause was brought before the Supreme Court, and the judgment below affirmed. 12 Vroom 6. From this judgment, an appeal is now had to this court.

This case was argued at June Term, 1879, before the Supreme Court, on demurrer to the information filed by Elmer Cowpertliwaite, and judgment was rendered for the relator.

<p>Tie act of March. 26th, 1852, entitled “An act regulating the proceedings of courts in cases of erroneous taxation,” {Rev., p. 1172,) is not repealed hy the thirty-second section of the general tax law approved April 11th, 1866. Rev., p. 1160, l 90.</p>

On error to the Supreme Court. This case was tried at the Essex Circuit, before Mr. Justice Depue and a jury, and a verdict rendered for the plaintiff, Dennison, for $4086.96.

This case was certified to the Supreme Court, for its advisory opinion, from the Essex County Circuit Court, and was removed into this court by writ of error. For opinion of Supreme Court, see 12 Vroom 39.

On error to the Supreme Court. This was a suit on two accommodation notes, both dated March 1st, 1874, to ran for six months, the one for $500 and the other for $600, drawn by the plaintiff in error to the order of M. Sandford, as payee.

An action was brought by Mr. Righter and wife against the Pennsylvania Railroad Company, for damages occasioned by a collision between a train of the company and a carriage -of the plaintiffs below, driven by his servant, and containing, as occupants, Mrs. Righter and two daughters. At the trial a verdict was returned in favor of the plaintiffs. The present writ of error brings up the judgment thereon and the record of the proceedings upon the trial.

<p>1. The Delaware, Lackawanna and Western Railroad Company having legislative authority to construct a tunnel through Bergen Hill, contracted with M. to do the work. The tunnel was driven through rock? was begun in 1873, and completed in 1877. M. constructed near the eastern end of the tunnel, and within the limits of Jersey City, a magazine for the explosive materials which he used in blasting. In 1876, at night, the materials exploded, doing great damage to property, and injuring, among the property, some houses belonging to C. In a suit brought to recover damages for the injury— Held—</p> <p>1. That the legislative authority to a private corporation, or an individual, to do a work for its or his own profit, does not include authority to use, at whatever hazard to the persons or property of others, dangerous materials, even though they are necessary to the convenient prosecution of the work.</p> <p>2. They will be liable for the injury, although no negligence or want of skill in executing the work is proved, and liable for actual damages, even though they show that they have done the work in the most careful manner.</p> <p>2. Where a nuisance complained of is a public nuisance, no degree of care will relieve a party from liability to respond for damages arising from it. __</p>

Writ of error. Complaint was made before a justice of the peace of the county of Atlantic, of a violation of the second section of the act for the preservation of fish, passed April 5th, 1878.

In replevin. The property in dispute was claimed by the plaintiffs by-virtue of a chattel mortgage executed to her by her husband,, to secure the sum of $350, alleged to be due to her from him for so much money loaned to him by her. This mortgage-was due. The chattels mortgaged remained in the possession of the husband, and were seized by a subsequent execution-against him in favor of the defendants.

<p>Rule to show cause why a new trial should not be granted^ The action was covenant.</p>

<p>1. A husband is an improper party to a suit on a judgment obtained in another state by his wife.</p> <p>2. Unless, however, the notice of misjoinder which is required by the practice act be given, such imperfection cannot be taken advantage of by demurrer.</p>

Case certified from the Middlesex Oyer. This was an indictment for embezzlement, &c., and was found in September Term, 1879, and at the trial the state was-permitted to show criminal acts done within five years antecedent to the finding of such indictment. There was no pretence that the defendant had been a fugitive from justice.

In debt. On special case. This was an action of debt brought by the plaintiff, as the holder of sundry coupon bonds, against the defendant as the maker thereof, to recover the interest due thereon, that is to say: 1.

In debt. On special case. This was an action of debt, brought by the plaintiff as payee or obligee of two sealed promissory notes or writings obligatory, against the defendant as maker thereof, to recover the amount due thereon, and whereof the following are copies respectively: (!) $100,000.

This was an action for an assault upon and imprisonment of the person of the defendant by the plaintiff.

The board of chosen freeholders of the county of Bergen were indicted at the December Term, 1878, of the Bergen county Oyer and Terminer, for not repairing a public' bridge in a regularly laid public highway in said county. The indictment came on for trial before the Oyer and Terminer of said county, and a verdict of guilty as charged in the indictment rendered.

<p>1. The “street commissioners of Greenville,” by virtue of the several acts of the legislature referred to, were a quasi corporation, and had power to seal the certificate of indebtedness sued on.</p> <p>2. The certificate being the foundation of the action, “ nil debet ” not a good plea.</p> <p>3. The plea of “non estfactum” properly tenders the issue whether the specialty was lawfully sealed by the commissioners, and if so, whether it is the deed of the defendants by force of the act of February 4th, 1873.</p>

<p>1. A delivery of a deed to a third person for the use of the party in whose favor a deed is made, where the grantor parts with all control over the deed, makes the deed effective from the instant of such delivery; the law will presume, if nothing appear to the contrary, that a man accepts what is for his benefit.</p> <p>2. The question of delivery must be left as a question of fact to the jury upon the whole evidence in the cause. The court may instruct the jury to find a delivery, when the whole testimony shows a state of facts from which delivery is a positive inference of law. But where there is conflicting testimony, the case should be left to the jury, with proper instructions.</p>

<p>On demurrer and on motion to strike out pleas. The facts fully appear in the opinion.</p>

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

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

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

<p>1. The jurisdiction of a state court over a cause is not, ipso facto, suspended. by the filing of a petition and bond for the removal of the cause into the federal court. In cases arising under the act of congress, the question of jurisdiction rests upon this principle, if the case be one of which the federal court has jurisdiction, under the act of congress, upon compliance with its provisions for the removing the cause, the jurisdiction of the state court is, ipso facto, determined ; but if the cause be one of which the federal court has not jurisdiction, under the act of congress, or the proceedings to remove it are not in compliance with the act, the state court retains its jurisdiction, notwithstanding a petition and bond he filed for that purpose.</p> <p>2. Whether a particular cause has been removed from the state to the federal court, by the proceedings to effect its removal, may be decided by either court; but in case of a conflict of decision, the decision of the federal court will prevail, and if it be ultimately decided that the federal court had obtained jurisdiction over the cause, the proceedings in the state court, subsequent to the filing of the petition of appeal, if (hey be not considered void, as being coram nonjudice, will, at least, be reversed as erroneous.</p> <p>3. If the proceedings on the part of a defendant to remove the cause into the federal court are so imperfect as not, in fact, to effect a removal of the cause, the suit in the state court is not stayed, pending the decision of the federal court as to the removal of the cause. If the defendant desires to protect himself from the consequences of proceedings in the state court, pending a decision by the federal court of the question of the removal of the cause, if, in fact, the decision on that subject be adverse to him, he should obtain a stay of proceedings either by certiorari or by an order of the state court to that effect.</p> <p>4. Petition for the removal of a cause into the federal court, and bond, were filed. The federal court decided that the proceedings, not being in compliance with the act of congress, the cause was not removed, and made an order remanding the cause into the state court. Held— That interrogatories under Section 155 of the practice act (Hev., p. 872,) served after the petition and bond were filed, and before the order of remand was made, were regular.</p> <p>3. Section 155 of the practice act allows interrogatories to be served by either party, upon the opposite party. If interrogatories may not be served upon a corporation which is a party to the suit, to obtain discovery under this section, they may be served upon the opposite party, who is an individual.</p> <p>' 6. A writ of error issued out of the Supreme Court of the United States, directed to the Circuit Court, upon proceedings there for the removal of a cause to the federal court, will not operate as a stay of proceedings in the original suit, in the state court, after an order has been made, though bail in error has been filed and perfected in due season.</p>

<p>1. A writ of error directed to the Circuit Court, having been dismissed for want of prosecution, the plaintiff in error cannot sue out a second writ of error.</p> <p>2. The record being removed into this court by the first writ, a second writ, directed to the court below, commanding it to certify and return the record, would be a nugatory thing.</p> <p>S. If the first writ of error was irregularly or improvidently dismissed, the remedy of the plaintiff in error is by motion to set aside the order of dismissal.</p>

<p>On rule to show cause why a mandamus should not issue.</p>

The state of facts agreed on by the parties shows that, at December Term, 1878, of the Somerset county Circuit Court, the court found for the plaintiff, $942.12 damages, in.an action of assumpsit. A rule to show cause for a new trial was granted, argued, and discharged, in this court, June Term, 1879. Judgment final was entered, and a writ of execution, tested June 10th, 1879, was issued, returnable the second Tuesday in July, 1879.

<p>1. Section 26 of the charter of the city of Camden, (Pamph. L. 1871, p. 224,) enacting that the city council shall be the sole judge of the election returns, and qualification of its own members, is not repealed by the act entitled “An act to regulate elections,” (April 18th, 1876, Rev., p. 355,) giving jurisdiction to Circuit Courts to hear and determine contested elections of county, township, or city officers. There is no general repealing clause, and if there were, it would not repeal the special provisions of this charter.</p> <p>2. Quo warranto, and not mandamus, is the proper writ to unseat a member of council.</p>

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

<p>1. The state has the right, by legislation, to protect fish in rivers and streams not navigable.</p> <p>2. A fish warden for a county, appointed by the governor, under the act of 1871, {Rev., p. 433, § 3,) has the right to enter on lands and destroy a fish-basket, constructed in violation of the statute, and the materials of which it is composed, so that it may not be again used; and such materials are forfeited to the state.</p>

<p>Where goods distrained for rent are left on the demised premises, in the possession of the tenant, and there impounded, in an action for pound breach and treble damages, (JRev., p. 310,$10,) against a person claiming to be the owner, it is necessary to prove that he had notice of the impounding.</p>

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

<p>Application for mandamus to the collector of the county of Sussex.</p>

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

On certiorari. In matter of taxation. The prosecutor is a corporation chartered by special act of the legislature of this state. It was assessed in the city of Trenton for general taxes, for the year 1879, upon all its real ■estate in said city, which was valued at the total sum of $139,783, and also upon personal property valued at $47,200. The capital stock of the company was $47,200.

<p>1. Ppwer in a municipal corporation to regulate and license a business or trade, confers no pov/er to impose a tax upon sucb business or trade.</p> <p>2. The rules and regulations which a corporation may make in respect to business or trade, under its police power, are such only as have relation to the public health, morals, and order of the community.</p>

Oa certiorari to review proceedings in attachment in a court for the trial of small causes, before Nehemiah O. Pillsbury, Esq., a justice of the peace of Essex county. For the plaintiff, S. C. Mount. For the defendant, J. W. Taylor.

<p>1. The place of birth is, prima facie, the place of one’s settlement, but this may be overcome by showing a different derivative settlement from the father, either communicated at birth or acquired while the child is unemancipated.</p> <p>"9. The birthplace of the father will be taken as his settlement, in the absence of proof of one derived from his parents or subsequently acquired.</p>

<p>On certiorari to remove ordinances.</p>

<p>Under the District Court act, the judge is authorized to designate a constable to attend the sittings of the court, to preserve order therein, but such constable is .entitled only to receive the compensation fixed by the act for attendance upon the court when sitting for the performance of its judicial functions.</p>

<p>On certiorari to Common Pleas of Hunterdon county.</p>

<p>In error to Monmouth Circuit.</p>

This is upon a rule to show cause why a writ of mandamus should not be allowed to be directed to the respondents, requiring them to reinstate an appeal in their court.

On certiorari. This writ brings up the record of a cause commenced before a justice of the peace, and, upon appeal, tried before the Court of Common Pleas of Union county. The present inquiry touches the validity of the judgment rendered in the Court of Common Pleas.

These are four writs of certiorari, all sued out by the same prosecutor, bringing up the assessment upon a tract of land in said township of Woodbridge, a certificate of sale and a lease made to the said township for a thousand years. The lease was assigned to Clark, who is therefor made a defendant. The property, at the time of the assessment, was owned by Rufus N. Edgar. The prosecutor now holds his title.

This writ brings up the appointment of Samuel Hufty as accountant of the finance committee of the common council of the city of Camden, and the ordinance under which the finance committee made the appointment.

On rule to show cause why mandamus should not issue, requiring the collector of Bergen county to pay to the relator $230, for the per diem allowance for his services in the courts of that county, from April 1st, 1879, up to and including September 1st, 1879.

<p>1. In proceedings under Section 5 of the act concerning disorderly persons, {Rev., p. 305,) the complaint ought to show the residence of the deserting husband or father, and can only be made in the township oi-city where he resides.</p> <p>2. Where the complaint is defective on that ground, prosecutor cannot avail himself of it, if he has filed no reason specifying or fairly including that objection, nor will he be permitted to file such a reason now, when it appears that no such objection was made below, and that, as a matter of fact, the prosecutor was a resident of the city where the complaint was made.</p>

<p>On certiorari. In matter of tax. The facts fully appear in the opinion.</p>

<p>Writ of error to the Supreme Court, bringing up a judgment entered on a special verdict taken at the Essex Circuit.</p>

This was an action brought to recover certain moneys paid to the defendant by the plaintiffs’ assignor, under the following circumstances: Mr. Fuller became the owner of a piece of ground in the city of Elizabeth, that had been sold for non-payment of a. certain sewer assessment, at a time when the period of redemption, under the provisions of the city charter, was about to expire.

On error to the Supreme Court. This writ brings up a judgment of the Supreme Court, affirming a judgment against the plaintiff in error, rendered by a justice of the peace of Passaic county, in an actioni brought for a penalty for a violation of a malt liquor ordinance of the city of Passaic.

<p>1. A citizen has a standing as an applicant for a quo warranto, when the office is a public one.</p> <p>2. Quosre—Whether the title of the applicant for the writ can be set up and tried in the proceedings, as well as the title of the incumbent.</p> <p>3. It is only in a plain case that a statute will be declared void because its title does not express the object of the law.</p> <p>4. An act was entitled “An act relating to the assessment and revision of taxes in cities of this statethe body of the act related to the mode of appointing the members of boards of assessment and revision in eases of taxation. Held, that the title sufficiently expresses the subject.</p> <p>5. But such statute was declared unconstitutional, on the ground that it, ■ was a special and local law, regulating the internal affairs of two-cities, as it appeared that it applied only to such two cities, and that it never could apply to any others.</p> <p>6. The question of statutory classification considered.</p>

Rule to show cause. On motion for a new trial. The action was by foreign attachment issued against Emma A. Totten,' the above-named defendant, and one John Totten, her husband.

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

<p>The plaintiff was riding in the cars, by virtue of a ticket that did not give him the right to a discontinuous passage. Having stopped at an intermediate point, and having entered another train, he claimed the right to continue his journey on such ticket, under permission given by a conductor of the first train. Eefusing to pay his fare, he was put oflj it appearing that only train agents had the power to modify the force of such tickets. Held, such expulsion was justifiable, although, at the trial, the plaintiff testified that it was, in point of fact, a train agent, and not a conductor, that had given him the privilege claimed.</p>

<p>On error to Hunterdon Circuit</p>

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

<p>1. In a suit by a servant, the negligence by which he is injured, to be actionable, must be that of the master, or such as can be imputed to the master. »</p> <p>2. To constitute persons fellow-servants, they need not be on a parity of service; it is sufficient if they be engaged in the same common work and acting for the accomplishment of the same general purpose.</p> <p>S. A corporation is liable to' its servant for the negligence of its president, who is its chief executive officer, in the discharge of those duties which the corporation owes to its servants.. In that case, the negligence of the president is the negligence of the company itself.</p>

<p>Whenever a transaclion resolves itself into a security for a debt, it is a mortgage. The right of redemption must exist, to constitute a mortgage, so that the debtor shall be entitled to a release of his property, on the payment of the debt.</p>

<p>On rule to show cause why a new trial should not be granted. The facts fully appear in the opinion.</p>

<p>On certiorari.</p>

<p>On certiorari to review an ordinance of the common council of the city of Trenton.</p>

<p>1. A mandamus directed to a foreign corporation engaged in business in this state, commanding the performance of some duty growing out of that business, may be legally served upon any officer of the company in this state, upon whom lawful service could have been made, according to the ancient common law, if the corporation were domestic.</p> <p>2. Where the thing enjoined by the writ was the building of a bridge, service upon a mere financial officer of the company was not sufficients</p>

On certiorari to the Middlesex Court of General Quarter Sessions of the Peace, to remove proceedings in the matter of the legal settlement of Sarah M. Truxton, a pauper.

<p>1. The act entitled “ An act to authorize towns to levy taxes for the pay ment of legal corporate obligations and debts heretofore incurred,’ approved March 20th, 1878, (Pamph. L., p. 161,) does not apply to-townships.</p> <p>2. The inhabitants of a township cannot, by their approval, at an annual meeting, validate an unauthorized assessment of taxes levied in a previous year.</p>

<p>On certiorari to remove an ordinance of the common council of*'the city of Trenton.</p>

<p>1, The caption of an indictment may, at common law, be amended according to the truth.</p> <p>2, An excavation adjoining a public highway, or so near thereto that a person, lawfully and with ordinary care, using the way, might, by accident, fall into it, is per se a nuisance, unless proper means are adopted to guard against the occurrence of such accidents.</p> <p>3, Whether, if the excavation existed before the highway was laid out, the land-owner is bound to provide guards against persons falling into it, qucere? But, in an indictment against the land-owner for maintaining the nuisance, the pre-existence of the highway need not be averred.</p>

<p>On certiorari to remove assessments.</p>

<p>On motion to dismiss writ of. certiorari.</p>

This writ brings up an order discharging a rule made in the Court of Quarter Sessions of Camden county. The rule discharged was a rule to show cause why a judgment entered in a cause in said court, wherein said Davis was defendant, and the overseer of the poor of said township was plaintiff, should not be set aside.

This cause is before the court upon return to a rule to show cause why an order should not be made prohibiting the assignment or satisfaction of a certain judgment in this court, until one-third of the amount of said judgment shall have been paid to John C. Lee and John M. Brown. . The facts upon which the order is asked, will appear in the opinion.

This writ brings up a special assessment upon the property of the prosecutor, for a part of the expense of grading the westerly side of Main avenue, known, at the time of the execution of the improvement, as the New York and Paterson plank road, within the limits of the city of Passaic. The reasons urged for the vacation of this assessment will appear in the opinion.

On certiorari. Six writs of certiorari were issued to remove the taxes assessed in the township of Kearny, in Hudson county, against the Pennsylvania Railroad Company, and which were assessed in the years 1873,1874, 1875, 1876, 1877 and 1878. They were all returnable to November Term, 1878, and were, by rule of court, consolidated.

A judgment was entered in favor of Jonn O. Magie, on December 19th, 1870, for $11,426.75, against the township committee of the township of Union. A writ of mandamus is craved by the relator, to be directed to the said committee, commanding them to borrow such sum as may be necessary to pay said judgment, and provide for the payment of such sum by the issue of bonds.

<p>1. The “Act to provide for the payment of fixed annual salaries to the several prosecutors of the pleas of this state,” passed March 12th, 1880, is a special law, and does hot govern the compensation of a prosecutor whose term of office commenced before the passage of the act.</p> <p>2. A law which operates upon the class to which it relates, with inequality, and does not have a uniform application on some general principle, is a special law.</p>

<p>On rule to show cause why a mandamus should not issue.</p>

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

<p>On motion to open judgments, &c.</p>

On motion for rule to show cause why the sheriff of Atlantic. county should not pay the sum of $334, with interest, the amount of bid at a sale of goods under execution.

<p>1. If a legal levy be made by the sheriff on personal property under execution, subsequent levies may be made by Mm without view, or notice to defendant.</p> <p>2. An order on the sheriff to pay the surplus of purchase money, after satisfaction of a first execution, dated before, but presented after a second execution was delivered, will not be preferred.</p> <p>3. A prior lien on a vessel enrolled or registered under the laws of the United States, can be obtained by a bill of sale recorded in the office of the collector of customs where such vessel was registered or enrolled, but not by order for surplus arising from sale under execution</p>

On exceptions to the assessments made by Amos Hoagland, James Boyd and William L. Johnson, commissioners appointed by the Supreme Court, filed by Aaron Van Buskirk, Isaac Cummens, the Crane Iron Company, Robert L. Kennedy, Charles S. Warts, and others.

<p>On certiorari.</p>

<p>On certiorari.</p>

The rule in this case required Nelson Runyon, the city judge of Plainfield, to show cause why a mandamus should not be allowed, commanding him to issue warrants for the collection of taxes in arrears in that city for the years 1875 to 1879, inclusive. From the affidavit and agreements on which the rule was argued, the following facts appear: Defendant became city judge on the first Monday in January, 1880.

<p>In case. On motion to vacate so much of the judgment, entered in this cause as awarded costs.</p> <p>The action was for libel. The verdict was in favor of plaintiff, and his damages were assessed by the jury at $75. Upon the postea showing this verdict, judgment has been entered for $75 damages and $90.78 costs.</p>

<p>On certiorari.</p>

<p>In ejectment. On error to the Supreme Court. The facts fully appear,in the.opinions.</p>

<p>1. The act of the 8th of April, 1875, [Pamph. L., p. 519,) entitled “A further supplement to an act entitled ‘ An act to improve Paterson avenue,’ ” &c., is valid, as it, when properly construed, does not leave it to the uncontrolled discretion of the commissioners to fix the amount to be paid by the county.</p> <p>2. The direction of this act is to put the costs of the improvement, to the-extent of the special benefit, on the land-owner, and the surplus of such cost on the county at large.</p>

<p>1. A statute that provides, in proceedings of assessments for public improvements, for a hearing, on notice to all parties interested, before the Court of Common Pleas, to which court the commissioners are to report, cannot be declared void on the ground that such parties are not, in the first instance, given a hearing before such commissioners.</p> <p>2. It is a legislative function to decide the kind of hearing that is proper-</p>

<p>1. A law requiring assessments for special benefits in laying a street, may restrict the area of assessment to the lands fronting on such improved street.</p> <p>2. Such assessments depend for their justification on ancient usage.</p> <p>3. The court will not look into matters sent up and returned with the certiorari, which are not within the mandate of such writ.</p>

On error to the Supreme Court. This was an action of trespass. Proceedings had been taken, by virtue of the charter of the city of Passaic, for the-opening of a street over the land of the plaintiff in error,, who was also the plaintiff in the court below.

<p>A naked power to sell a chattel, conferred on a person not the general agent of the vendor, does not comprise an authority to warrant the quality of the thing sold under it.</p>

Od error to the Supreme Court. At February Term, 1880, the Supreme Court affirmed the aotiou of the common council of Morristown; no opinion was filed.

<p>1. When an assessment has been made for municipal improvements, and paid, and subsequently such assessment is vacated and set aside, and a re-assessment made for a less sum than the original assessment, an action will lie to recover the difference between the first and second assessments.</p> <p>2. The right of action accrues by reason of the setting aside of the assessment, and such right cannot be barred by the statute of limitations until the running of six years after that act.</p> <p>H. The state of the case agreed upon by counsel having admitted that the assessments in question were ‘‘ set aside and vacated by the board of finance and taxation, &e., and a new assessment made,” and such admissions not being qualified by reservations, or by allegations of informalities or defects, the legal presumption must be in favor of the correctness and legality—if such legality be possible—of the official action.</p> <p>-4. The act of March 7th, 1877, (JRev., p. 1357, (S 6,) authorizes the vacation of the entirety of void assessments, and is not restricted to such as are unpaid. Edwards v. Jersey City, 11 Vroom 176, distinguished.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 12 Vroom 519.</p>