Volume 43 — New Jersey Law Reports

Suit to recover moneys which had been paid by the plaintiff to the defendant on an agreement for the sale and conveyance of certain lands. It was shown, as a defence, that the defendant had tendered a deed, at the appointed time, and that the plaintiff had refused to take it, on the ground that it did not pass the title. The question thus raised was whether the defendant, as the acting executor of the last will of one Metzler, had the legal power to convey these premises.

On error to the Burlington Circuit. Suit by a policeman for an installment of his salary.

The declaration stated that plaintiff being the owner of a certain patent right which had bee.n granted to him by letters patent of the United States, entitled “ Improvement in processes and apparatus for rendering fats,” was in negotiation with certain designated persons for the sale by him of certain interests therein, and that the defendant knowing the premises, wrongfully and injuriously, falsely and maliciously, did publish, and cause to be published in a certain…

<p>In laying the non-payment of a distributive share as a breach of an administrator’s bond, it must be shown that such distributee tendered a refunding bond.</p>

Action for publishing a libel. There were two counts in the declaration, which were severally demurred to. In the first of these counts the plaintiffs, in the inducement, were alluded to as “being the proprietors and owners of the clothing-house of Feder & Co., and being engaged in and doing business under said name of Feder & Co.” There was no direct allegation that they were the owners of this house, or that they were carrying on this business.

This suit was originally in covenant, but it appearing at the trial that the wrong complained of was the non-performance of a parol promise, the form of action, with the sanction of the trial judge, was changed to assumpsit.

Suit on an administrator’s bond. The breach laid was the failure by the administrators to make an account of their administration within twelve calendar months from the date of the bond, according to its terms.

Catherine Welsh died on the 22d of April, 1874. By her will, dated April 20th, in the same year, she made to the plaintiff the following bequest: “ I do give and bequeath to my niece, Aletta Brown, my gold watch, my melodeon, my black ear-rings, my black furs, one set silver teaspoons (second choice,) my cashmere shawl, my brown silk dress, and the interest of twenty-five hundred dollars, to be paid to her annually by my executor; and at her death the said sum of twenty-five…

<p>On certiorari to a justice of the peace to remove the judgment and proceedings under an attachment.</p>

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

This case was an action of debt on a Dond given to the plaintiff by James W. Wroth, one of the defendants, at the time of his election as treasurer of the plaintiff, and dated April 4th, 1871.

Similar points were reserved in this case with those above decided, and a like rule may be entered. An action will lie against an administrator pendente lite, to recover -for services rendered to the decedent in his lifetime. On motion for new trial. The state of the case presents these facts: This action is brought to recover the value of services rendered, as alleged, by the plaintiff to the decedent, Joseph L. Lewis, in his lifetime.

<p>On demurrer to an alternative writ of mandamus.</p>

<p>On error to the Quarter Sessions of the county of Essex.</p>

On certiorari in matter of taxation in eleven cases like the above, except as to the names of the prosecutors, and but one return ordered to be made for all, by consent.

On rule to show cause, certified from the Monmouth Circuit. The rule to show cause in this case and certified to this court, is to review the finding of the circuit judge in an action upon a bond given to the sheriff under the thirty-third section of the Attachment act, by John F. Chamberlain, the defendant in attachment, and the other defendants as his sureties, to Emma L. Stanley, the plaintiff in attachment, the bond having been assigned by the sheriff, under the order of…

On certiorari. On the 13th day of December, 1871, Patrick Connell commenced an action against James McGovern and Michael McGovern, before Thomas Bennett, one of the justices of the peace of tlie county of Burlington.

Ou certiorari to review an appointment of commissioners to condemn lands.

<p>On habeas corpus.</p>

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

<p>1. The prosecutor owned ten acres of upland, and claimed to own a right of reclamation over more than twenty acres of land under water in the Hudson river, fronting the upland. Held, that a valuation of the whole as “thirty-acres of land,” at so much per acre, did not invalidate a tax based on such appraisement under the Eailroad Taxation act. Mev., p. 1166.</p> <p>2. Even though the claim of a right of reclamation were groundless, the tax would still be sustained, unless it were shown that the value of the ten acres, witli the appurtenant riparian rights, was less than the appraisement.</p> <p>3. It is proper, under the Eailroad Taxation act, to appraise the land and improvements separately.</p>

<p>A city treasurer having failed to pay over to the county collector the county’s quota of taxes, he was charged with interest upon the same from the time when he ought to have paid them.</p>

In case. On rule to show cause. The suit was against the defendants, Weldon and Potter, on a promissory note made by Weldon, payable to A. I. Far-rand or order, six months after the date. After the execution and delivery of the note to the payee, Potter, at the request of the maker, put his name on the back of the note. This endorsment was before the name of the payee was written upon the note.

This writ brings up a water assessment upon vacant lots in Jersey City. The tax is assessed under section 81 of the charter of Jersey City. Pcimph. L. 1871, p. 1131.

This writ brings up a judgment against or conviction of the prosecutor in a proceeding taken for the enforcement of an ordinance of the city of Beverly, entitled “ An ordinance to prevent the establishment of tippling-houses in the city of Beverly.” The summons was in the following form : Summons Eugene’Hershoff to appear before me, at my office, in the township of Beverly, in the said county, on Monday, the tenth day of May (inst.), at ten o’clock A. M. of that day, to…

The writs in these cases bring up for review certain taxes levied by the authorities in Jersey City upon certain personal property owned by the Iron Carbon Roofing Company. The company was a firm consisting of Benjamin H. Taylor, A. J. Deidrick, C. S. Garrett and Wm.H. Rankin. Their business was the manufacture of roofing materials and their factory was situated in Elizabeth.

This is an action brought upon an official bond given by a justice of the peace, in the penal sum of |500. The action is prosecuted by Marcus Meyer by virtue of the tenth section of an act relative to justices of the peace. The damages assessed by the jury amounted to §36. The question now propounded is, whether the plaintiff is entitled to costs.

<p>1. The general tax law exempts cemeteries from taxation.</p> <p>2. Land within the boundaries of a cemetery acquired for burial purposes, but not actually used therefor, is not taxable.</p> <p>3. The public cemetery of the city of Hoboken is also exempt by special act.</p>

<p>An assignee, beneficially interested, suing in the name of his assignor, and failing in the action, is liable to defendant for costs.</p>

On certiorari to the Court of Common Pleas of Essex county. The two cases were argued together; the'facts appear fully in the opinion of the court.

In debt. The following facts are agreed upon by the attorneys of the above-named parties, to be used on the argument of the rule to show cause why the execution issued in the above case, and now in the hands of the sheriff of the county of Union, should not be set aside, viz.: The said James Wemple, a resident of the city of Elizabeth, Union county, New Jersey, died January 28th, 1879, leaving a last will and testament, which was proved by the above-named defendants, the…

<p>On motion to set aside levy.</p>

<p>On certiorari to set aside tax warrant.</p>

On certiorari to review the re-assessment made for the paving of Broad street, in the city of Trenton, from Market to Taylor streets.

<p>A tax of §500 ordered to be raised by a vote taken October 5th, 1880, under authority of the charter of the borough of Eatontown, cannot be assessed until the regular annual assessment is made in 1881.</p>

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

<p>On certiorari to review conviction for violation of an ordinance of the city of New Brunswick.</p>

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

<p>On certiorari to the Burlington Common Pleas.</p>

Eight writs were allowed upon the application of a number of prosecutors to bring up an assessment for the construction of a sewer in Hudson county. Upon motion it was ordered that these writs should be consolidated and a single return made to all.

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

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

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

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

In error. This action was brought in the Supreme Court by Turrell against the city of Elizabeth, to recover $2727.54, paid by plaintiff to defendant, June 23d, 1875, upon an assessment made on plaintiff’s lands December 18th, 1871, for the costs, &e., of paving Grove street, with interest.

On case certified, &c. The plaintiff and defendant were endorsers on a note, of which the following is a copy, viz.: $300. Flemington, N. J., February 14th, 1878. Three months after date we, or either of us, promise to pay to the order of Jacob R. Johnson, three hundred dollars, at the Flemington National Bank, value received, without defalcation or discount. [Signed,! Jacob M. Johnson. C. K. Kline. [Endorsed,] Jas. W. Johnson. J. R. Johnson. John Eamsey.

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

This, was an ejectment, brought by the corporation of Bayonne to recover a certain tract of land alleged to be a public park. These were the facts: Roswell Graves was the owner of a tract of land containing about two hundred acres, at Bergen Point, and which parcel included the premises in question.

<p>1. A sheriff having an execution against the mortgagor of chattels may levy upon and sell them, provided he does not profess to sell clear of the mortgage, and does not deliver possession to the purchasers.</p> <p>2. If the mortgagee notify the sheriff of his claim, the sheriff, after the sale, must retain the goods in subservience to such claim.</p> <p>S. The law will infer, in the absence of contrary evidence, that the officer’s conduct was legal, and the naked fact that the sheriff about to sell goods mortgaged said, at a time not defined, and under circumstances not disclosed, “ that if any one bid at his sale he would get the property,” is not sufficient to show that his conduct was tortious.</p>

<p>In case. On case certified from the Warren Circuit.</p>

<p>1. Where the policy in express terms refers to the application or other papers connected with the risk, and adopts them as part of the contract of insurance, they become part of the policy, and the statements therein relative to the situation, use and character of the risk are warranties on the part of the assured.</p> <p>2. Conditions in a policy which create forfeitures, will be construed most strongly against the insurer, and will never be extended beyond the strict words of the policy.</p> <p>3. A policy issued on a written application for insurance, in which one of the questions propounded is left unanswered, is a waiver of the right to the information called for by such a question, and the contract of insurance will be considered as based on answers given to inquiries to which the applicant has responded.</p> <p>4. An application for insurance on a mill property contained the following questions : (18th.) Ownership—Is the mill owned and operated by the applicant? Ans.—Yes, by the applicant and his son. Is any other person interested in the property; if so, state the interest. Ans.-—None. (19th.) Encumbrances—Is there any encumbrance on the property ? Ans.-—-Expects to borrow §2500 and use the policy as collateral. If mortgaged, state the amount? To this question there was no answer. The applicant had title to the premises in fee simple, but they were subject to four mortgages. The policy was written in, “ Loss, if any, payable to Israel Baldwin, mortgagee.” Baldwin was one of the four mortgagees Held—</p> <p>1. That the first of these inquiries had reference to the state of the legal title, and that the subject of encumbrances was dealt with exclusively in the inquiry contained in the other subdivision.</p> <p>2. That the applicant being the owner in fee of the legal estate, the mortgages were no breach of the warranty with respect to the ownership of the property.</p> <p>3. That the policy having been issued upon an application in which no answer had been given to the inquiry as to encumbrances, there was no warranty on that subject.</p> <p>5. The policy contained a stipulation “ that the insurer should not be liable, by virtue of this policy or any renewal thereof, for any loss that may occur before the premium had actually been paid to this company.” The policy was sent to P., an agent, for delivery, whose duty it was to deliver the policy and receive the premium. The agent testified that the rule of the company was for the agent to report once a month; that he always held the funds for a month and sometimes longer. His commissions were deducted from the premiums when he made his remittances. The agent delivered the policy and took the note of the assured with an endorser, payable at a bank, for the premium. He had the note discounted and the proceeds placed to his credit in the bank before the loss occurred. Held—</p> <p>1. That a condition in a policy “ that if any broker or any other person than the assured has procured this policy he shall be deemed the agent of the assured and not of the company,” did not debar the company of the power to appoint agents and clothe them with such authority—general, special or limited—as might be advisable; and the delegation of such authority will carry with it such powers and consequences as are incident to the relation of principal and agent within the scope of the authority conferred.</p> <p>2. That P. was constituted the agent of the company for the purpose of receiving premiums on policies negotiated by him, and that payment of such premiums to him was payment to the company; and</p> <p>3. That the premium on this policy was paid when the note was discounted and the proceeds passed to P.’s credit in the bank.</p> <p>6. A stipulation in a policy that “no agent of this company is authorized in any respect to change the terms and conditions of this policy, and they shall neither be changed nor waived except in writing, signed by the president or secretary of the company,” applies only to those conditions and provisions in the policy which relate to the formation and continuance of the contract of insurance and are essential to the binding force of the contract while it is running, and does not apply to those conditions which are to be performed after the loss has occurred in order to enable the assured to sue upon his contract. After the loss has happened, conditions in the policy with respect to notice of loss and preliminary proofs may be waived by parol, though the policy contain such a stipulation as is above referred to.</p> <p>7. A condition providing that ‘‘all fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim under the policy,” is available as a defence only when it appears that the assured knowingly and intentionally swore falsely, or said or did that which is claimed to be fraudulent. Mere mistake in stating facts, or an over-valuation, is not sufficient to sustain the defence.</p>

On demurrer. In trespass for false imprisonment. The defendants pleaded that Lance, one of the defendants, was a justice of the peace; that while he was holding a court for the trial of small causes and engaged in the trial of a cause, the plaintiff entered the room where the said court was being held and commanded a witness who was under examination to leave the court-room, .and called the justice a fool and a nuisance, and that thereupon the witness left the room before…

<p>Oil case certified from the Warren Circuit Court.</p>

<p>1. A turnpike company has, as incident to the purposes of its incorporation, a right to take and hold under lease necessary premises for storing implements used in road repairs and for sheltering its servants. It is within the meaning of the necessary rights and powers conferred in its charter.</p> <p>2. To bind a corporation under a lease for years, execution under its corporate seal is not requisite.</p> <p>3. A corporation may hold as tenant from year to year.</p>

<p>1. Where the payee designedly altered a promissory note after delivery to him, and without the maker’s consent or knowledge, by writing in the body of the note, after his own name, the word “ collector,” and this disclosure is made before the note is offered in evidence, it was correctly held to be inadmissible, upon the ground that it was an altered instrument.</p> <p>2. Where a township collector, at the request of a person assessed for taxes, assumed the payment of the same, gave his official receipt and charged hi mself with the tax as paid to him, and on retiring from office settled with the township upon the basis of having this money in the township treasury, and paid over to the township the balance due to it in his accounting—Held, that he was entitled to recover such moneys in an action for money paid for the use of such person on his request.</p>

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

<p>1. The provision in the constitution of this state forbidding the legislature to pass any law depriving a party of any remedy for enforcing a contract which existed when the contract was made, applies to remedies against municipal corporations.</p> <p>2. Where municipal authorities have power to levy a tax for the payment of debts, judgment creditors of the corporation, whose debts are not collectible by execution, have a right to the exercise of that power, which the court will enforce by mandamus.</p> <p>3. Where such a power existed at the time the debt was contracted, the remedy by mandamus is within the protection of the constitution.</p> <p>4. A statute which merely regulates the mode of pursuing the remedy, without impairing its substance, is constitutional.</p> <p>ó. The supplement to “An act for the better regulation of proceedings upon writs of mandamus,” approved March 3d, 1880, (Pamph. L. 1880, p. 102,) requires the court, before issuing such writs to compel the levy of a tax for the payment of municipal debts, to determine the highest rate of taxation capable of being imposed on the municipality without injury to the interests of the creditors of the corporation whose claims are not yet due, and forbids the court to direct the levying of any more than that rate will produce. Before the passage of this statute the relator was a creditor of the city of Rahway, the authorities of which had ample power to levy taxes to pay his debt. 12eld, that the enforcement of the law would deprive him of his constitutional remedy, and hence, as to him, the statute was invalid.</p> <p>8. This statute is unconstitutional, also, because it aims to devolve upon the judicial department of the government an exclusively legislative function pertaining to the taxing power—the duty of determining the highest rate of taxation which can be borne by a municipality without injury to its creditors at large.</p>

<p>1. A statute, approved March 9th, 1877, {Rev., p. 1204,) provides a mode of levying assessments in townships ; its title is, “An act in relation to assessments in townships.” Held, that its title expresses its object sufficiently to satisfy the constitution.</p> <p>2. If the act have other objects not expressed in the title, and wholly separable from that which the title does express, the expressed object will not thereby be defeated.</p> <p>3. The act above mentioned is neither special nor local.</p> <p>4. The act is intended to permanently provide a constitutional method of levying assessments for public improvements in townships, wherever assessments therefor are by law directed.</p> <p>5. The act makes it the duty of the Circuit Court, upon proper objection, to review the report of the commissioners as to the amount of each assessment.</p>

<p>1. Where there has been undue delay in suing out a writ of certiorari to review a tax sale, and the writ is not prosecuted in aid of the prosecutor’s title, the writ will be dismissed.</p> <p>2. A municipality is not bound to refund the purchase money received on a tax sale, merely because there has been illegality in the proceedings which defeats the title of the purchaser</p>

<p>Under the bastardy act approved March 27th, 1874, (Rev., ¡p. 70,) when the person charged with being the father of a bastard is acquitted by the jury before the justices, but convicted in the Quarter Sessions on appeal, the Court of Quarter Sessions is authorized and required to make an order of filiation and maintenance against him.</p>

<p>Where the party appealing from the judgment of a District Court has failed to agree with his adversary on a state of the ease, or to apply to the judge to settle the case, within fifteen days after the judgment, it is not erroneous in law for the Court of Common Pleas to dismiss the appeal.</p>

<p>On certiorari.</p>

<p>On motion to admit Mr. John T. Dunn to examination for license as an attorney.</p>

On certiorari. The suit before the justice was brought to recover the amount alleged to be due on an accepted draft, a copy whereof is as follows: “$65.50. Philadelphia, Jan’y 1, 1879. “ Ten days after date, pay to the order of Mr. J. P. Smith, cash’r, for coll’n, sixty-five 50/ioo dollars, value received, and charge the same to account of “Barcroft & Co. “ To Mrs. M. W. Cooley, Lambertville, N. J.” [Endorsed.—“Accepted—payable at the Amwell National Bank.

On certiorari. An indictment was found by the grand jury of Bergen county against Martin H. Zabriskie, and returned to the Court of Oyer and Tebminer at September Term, 1880. It was handed down to the Court of Quarter Sessions, and tried at that term; and there was a mistrial, by reason of a disagreement of the jury. It was again moved at the December Term following, and the defendant was convicted.

This writ brings up a judgment of the Court of Common Pleas of Hudson county affirming a judgment rendered in the above-entitled cause in favor of Derrickson, the plaintiff.

Joseph Spratford made complaint against the prosecutor before a justice of the peace, charging the prosecutor with using loud, abusive and indecent language, in a public place in Mechanicsville, Middlesex county. A warrant was issued for the apprehension of the prosecutor, by virtue of which he was brought before the justice.

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

<p>1. In summary proceedings under the act “concerning landlords and tenants,” where the affidavit is defective, a justice of the peace has no jurisdiction.</p> <p>2. In such case certiorari will lie to reverse the proceedings.</p>

On certiorari to review appointment of commissioners under the supplement of 1880 to the act relative to telegraph companies.

<p>On case certified.</p>

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

<p>On certiorari to review proceedings of commissioners to ascertain boundary line between the counties of Union and Essex.</p>

On application for a mandamus requiring the defendant, as mayor of the city of Newark, to sign a warrant for the payment of $254.80 from the city treasury to relator.

On certiorari to the Quarter Sessions of Camden county, removing an order of filiation made on an appeal under the bastardy act, the order of the two justices, &c.

<p>1. In proceedings under section ,5 of the act concerning disorderly persons, (Hew., p. 305,) and the subsequent sections relating to the same subject, the justice, or the Sessions, on appeal, must first decide, either by their own determination or the verdict of a jury, (when demanded,) whether the person charged is guilty of the matter charged in the complaint of the overseer. Unless such determination appears, there is no power to adjudge him a disorderly person or to direct him to pay money for the support of his family.</p> <p>2. By section 5, a person is declared to be disorderly when he either deserts, or willfully refuses or neglects to provide for his family. Where the complaint is for willful refusal or neglect tq provide, a verdict or finding that the person is a disorderly person under the provisions of the act, or under the fifth section, is not sufficient.</p> <p>3. An adjudication that defendant is a disorderly person must follow the verdict or finding, and is requisite before an order for the payment of money for the support of the family can be made.</p>

On certiorari. Prosecutrix was assessed by the assessor of taxes of the township of Bethlehem, in the county of Hunterdon, for the year 1879, for $7846.23 of personal property. The property on which this assessment was claimed to be made was a mortgage for that amount made by Samuel Creveliug, Jr., to Mary Richey, the prosecutrix, and eight others, upon lands in that township.

On rule to show cause why John Gardner, late sheriff of the county of Warren, should not be amerced for failure to enforce apluries fi. fa. issued out of this court on a judgment against Joseph S. Cook in favor of William M. Force, and delivered to the sheriff on or soon after April 18th, 1877.

<p>When the delay of prosecutors, in applying for a certiorari, lias permitted the expenditure of money in enterprises of a quasi public character, or induced individuals, under the cover of a proceeding of a public nature, to expend their labor or money, the writ ought not to be allowed, or, if allowed, ought to be dismissed upon the facts coming to the attention of the court.</p>

On error to the Circuit Court of Essex county. On July 1st, 1877, one Grace Smith let and rented to the plaintiff, Peter M. Melick, by lease in writing, under their hands and seals, the land and premises No. 199 Plane street, in the city of Newark, to be used for a coal-yard, for the term of one year, the plaintiff agreeing to pay the said Grace Smith, as rent for the same, the sum of $750, in quarterly instalments, at the expiration of each quarter, “ and the further sum of…

This writ of error brings up the judgment and the exception sealed in the course of the trial of this action in the Essex Circuit.

The judgment removed by this writ was rendered in an action of assumpsit, brought in the Supreme Court by the defendant in error against the plaintiff in error. The issues joined in the action were tried in the Union Circuit, before Mr. Justice Van Syckel, a jury having been waived. The justice, upon a finding of facts filed in the cause, gave the postea to the plaintiff below, and judgment was thereon rendered against Blackford for $331.50, besides costs.

<p>1. By tlie terms of a subscription to stock, the subscriber agreed to take the stock, and to pay all charges and assessments regularly levied or assessed by the board of directors. No assessment or call was made. In an action to recover the whole amount of the price of the stock— Held, that by the terms of the subscription, the company could only recover the price after assessment or call.</p> <p>2. The written instrument is the only competent evidence of the agreement, and its terms cannot be contradicted by parol proof that, at the time it was signed, the understanding was that the payment should not be according to calls, but without any call whatever.</p> <p>3. The fact that, notwithstanding the terms of the subscription, the subscriber paid the full price for part of the stock subscribed for, does not establish his liability tp pay in like manner for the rest, and is not evidence of an agreement on his part to pay without call.</p>

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

<p>In error to the Supreme Court. For opinion of Supreme Court, see 12 Vroom 48.</p>

<p>Where, under the charter of Jersey City, all contracts for work and materials are required to be duly advertised, and awarded to that responsible bidder offering the most advantageous terms to the city, a contract for the erection of a police-station house was awarded for the sum of §7200, and the contract provided that all alterations or additions should be specified in writing and approved by the committee on public buildings—Held, that the contractor could not recover for extra work which was, in effect, additions and alterations, none of such additions and alterations having been specified in writing within the meaning of the contract.</p>

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

The substance of the declaration was, that the plaintiff was a blacksmith and horseshoer by trade, of good character, •&c.; that he had obtained the patronage of one Peter Van Piper, and that on a certain occasion he shod a certain mare of the said Van Piper in a good and workmanlike manner; that the defendant, maliciously intending to injure the plaintiff in his said trade, &c., “ did wilfully and maliciously mutilate, impair and destroy the work done and performed by the…

Suit for damages from negligence. This action was brought under the twenty-second section of the Practice act, by Hendrickson and wife, against the Pennsylvania Railroad Company, to recover damages for injuries received by both, alleged to have resulted from a collision between the carriage in which they were riding along a highway in Freehold and the locomotive of the defendants. The declaration contained two counts.

Suit on policy of insurance. The policy was dated April 17th, 1878, and the fire-occurred ou the 14th of October, 1879.' One of the provisions of the policy was that, “ if the dwelling-house insured should become vacant or unoccupied, and so remain, without notice to and consent of this company in writing, ' * * then, and in every such case, this policy is void.” It was shown at the trial that the house in question was, during the summer and fall, occupied by the son of the…

The regular township election in Monroe township, Middlesex county, took place March 8th, 1881, at which, among other officers, three constables were to be chosen. Being the first election held since the passage of the act entitled “ An act relative to the election of constables,” approved March 12th, 1880, (Pamph. L., p. 291,) it was conducted in conformity with the provisions of that act.

This suit was instituted in the Essex Circuit Court. In form, the action is trespass.

<p>The Sessions has no legal authority to reserve or certify cases arising in criminal trials to the Supreme Court for its advisory opinion.</p>

On rule to show cause for new trial. The plaintiff leased to Henry W. Abbott, the Lake House,, at Spring Lake Beach, Monmouth county, for the term of one year from the 1st day of April, 1879, at the yearly rent of $1000, to be paid in three payments or instalments, to wit,. $500 on the execution of the lease, $250 on the 1st day of August, and $250 on the 1st day of September, 1879.

On application for mandamus to compel the respondent, as county collector of Union county, to pay to the relator, a police justice in the city of Elizabeth, certain fees and costs for services under the act concerning disorderly persons. Rev.,p. 306.

This action Avas brought against a corporation publishing “The Evening Journal,” a newspaper published in Jersey City, to recover damages resulting from the publication of an alleged libelous article concerning the plaintiff. The record brought up by this writ of error' contains a judgment upon a verdict taken at the Hudson Circuit, Avith certain exceptions sealed at the trial.

<p>1. Ex parte affidavits may be used for the purpose of obtaining a rule to show cause, but are not competent to prove the facts necessary to support a motion not of course, or to be read on the hearing of a rule to show cause depending on facts extrinsic the record; such facts can only be brought before the court by depositions taken on notice.</p> <p>2. The practice of taking affidavits ex parte, to be used on the argument of a motion, is peculiar to the Court of Chancery, and has never been adopted in the courts of law.</p> <p>3. A residence or place of abode in this state of a temporary or permanent character, at which a summons might lawfully be served, is the condition on which process of attachment cannot be issued. If a debtor has not, at the time the writ of attachment is issued, such a place of abode that a summons could be served at it, he is a non'-resident within the meaning of the statute, and may be proceeded against by attachment.</p> <p>■4. The residence of the wife may be in one place or jurisdiction, and that of the husband in another place or jurisdiction. But where the husband and wife are living together as members of one family, the residence of the husband is considered in law as the residence of the wife.</p> <p>5. The second section of the act of March 23d, 1881, (Pamph. L.t p. 184,) which provides “ that in all cases where a bond and mortgage has or hereafter may be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage; and if, at the sale of the mortgaged premises under said foreclosure proceedings, the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency,” is unconstitutional and void as to antecedent obligations.</p>

On application for a writ of alternative mandamus. The Mount Pleasant Cemetery Company was chartered in 1844. Said charter and any supplements are regarded as in evidence, (pro ut the same.) Pamph. L. 1844, p. 19. The charter and supplements thereto of the Paterson and Newark Railroad Company are also regarded as in evidence, (pro ut the same.) Pamph. L. 1864, p. 663; 1866, pp. 86, 880; 1871, p. 979.

On certiorari to Monmouth Pleas. In October, 1879, the plaintiff and defendant verbally agreed together as follows: The plaintiff agreed to buy from the defendant, and the defendant agreed to sell to the plaintiff, all the rye straw which the defendant had to spare.

<p>On demurrer to writ of alternative mandamus.</p>

<p>1. The Montclair and Greenwood Lake Bailroad Company in 1875 mortgaged its railroad and franchises. On foreclosure of the mortgage its property and franchises were sold in 1878; and the purchasers, in November, 1878, organized themselves as a new corporation, under the corporate name of The New York and Greenwood Lake Bailroad Company. In 1879, a tax was laid upon the railroad, its equipment and appendages, by the commissioner of railroad taxation, pursuant to the act of April 12th, 1876. Men., p. 1168. The tax was assessed against and in the name of the Montclair and Greenwood Lake Bail-road Company. Held—</p> <p>1. That the tax should have been assessed against the new corporation in its corporate name.</p> <p>2. That the assessment might be amended under the act of March 25th, 1881. Pamph. L., p. 174.</p> <p>2. The act of March 25th, 1881, which provides that no tax, assessment or water rate shall be set aside for any irregularity or defect in form, or illegality in assessing, laying or levying such tax, if the person against whom or the property upon which such tax assessment or rate is levied, assessed or laid, is in fact liable to taxation, and giving the court power to amend and correct all irregularities and defects in the form or manner of assessment, should be liberally construed, and its provisions apply to taxes assessed before the act was passed.</p>

<p>1. An action in proceedings to condemn lands finding errors therein, which are objected to and not waived by the land-owner, may discontinue, and proceed anew to acquire such lands; a futile effort to secure condemnation does not exhaust the power to take effective measures to that end.</p> <p>2. The Morris canal, although declared to be a public highway, is not, within the meaning of the fourteenth section of the general railroad law, a street or highway which must be crossed by a railroad above or below grade. The streets and highways therein mentioned are the public thoroughfares in cities.</p> <p>3. Merely crossing a railroad or canal with another railroad, as it involves no exclusive use of the property occupied in crossing, is not a taking or impairment of the company’s franchises whose property is thus burdened.</p> <p>4. When the parties appear before the judge at the time and place designated for the appointment of commissioners, and are fully heard thereon, the judge, deeming it necessary, may take time for his decision, and an order of appointment subsequently made and signed by him, is not thereby invalidated.</p> <p>5. Commissioners, in assessing lands taken in invitum, may acquire information affecting their action from others, and they may receive it in their discretion, under oath.</p> <p>6. It is not illegal for commissioners to agree with the company, whose duty it is to pay for their services, upon a just and equitable compention. The land-owner has ground of complaint only when the amount agreed upon is exorbitant or so large as to create suspicion of corruption.</p> <p>7. Application to the judge to fix the compensation recommended.</p> <p>8. Where the proceedings to condemn are had under an act giving a right of appeal upon the merits, and such appeal has been taken, the court will not set aside the award appealed from unless there has been a plain departure from the law in a matter prejudicial to the parties.</p>

<p>The declaration alleges that the defendants, who are practising physicians, did falsely and maliciously certify in writing, under oath, that they had examined into the state of health and mental condition of Hannah L. Force, and that in their opinion she was insane and a fit subject to be sent to the state asylum for the insane, by means of which false certificate, the defendants wrongfully and without reasonable cause, caused and procured the said Hannah to be arrested by her body and imprisoned in said asylum. This declaration shows no legal cause of action. It fails to aver that the defendants actually caused or procured the arrest, and discloses no facts from which it appears that the false certificate could have been the means of procuring the arrest. There is no logical connection between the wrongful act imputed to the defendant, to wit, the making of the false certificate, and the consequence attributed to it.</p>

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

<p>The map in the register’s office of Camden county, marked “Map of the land of the Gloucester Land Company,” in the handwriting oí Benjamin Browning, clerk of said county prior to 1859, is the map referred to in the twenty-first section of the charter of Gloucester City, and operates as a dedication of Hudson street, as laid down on said map.</p>

<p>On rule to show cause why writ of replevin should not be set aside.</p>

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

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

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

<p>1. The time at which imprisonment imposed for crime shall be borne is not the substantial part of the sentence; imprisonment at hard labor is the essential part of the judgment, which must be strictly executed.</p> <p>2. Expiration of time without actual imprisonment is not an execution of the sentence.</p> <p>3. Where a prisoner, sentenced to imprisonment at hard labor, escapes and remains at large for a time, he must, by the rule of the common law, serve at hard labor, after his recapture, for a period equal to that part of his term of sentence which had not yet run at the time he escaped.</p>

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

<p>On certiorari to the Middlesex Common Pleas.</p>

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

<p>1. The charier of the city of Plainfield, approved April 4th, 1872, {Pamph. L.,p. 1134,) devolves upon the assessor and collector of the city the duty of assessing and collecting the city’s quota of state and county taxes, and also requires the city treasurer to pay such quota for each year to the county collector, out of the first moneys received by him for taxes of the year.</p> <p>2. It appeared that, notwithstanding this charter, the county collector had always demanded his quota directly from the city collector, who had accordingly paid to that officer the state and county taxes as fast as collected, and had paid to the city treasurer only the city taxes; that by this course of conduct the city treasurer had been led to believe that he was in no way responsible foi> state and county taxes, and therefore he had disbursed his receipts, under orders of the city council, for city purposes. Held, that under these circumstances, the county collector was estopped from charging against the treasurer, personally, any deficiency in the state or county quotas. Held, also, that, although the city might be liable for such deficiency, yet no mandamus could be awarded against the treasurer commanding him to pay the same out of the city funds in his hands, unless the city was made a party to the .proceedings, and payment had first been demanded of the common council.</p> <p>■3. A judgment rendered upon an imperfect presentation of facts will not be opened, unless it appears that substantial injustice is done by the judgment as it stands.</p>

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

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

<p>On certiorari to Middlesex Common Pleas.</p>

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

<p>Notices for special school meeting to raise special school taxes, should be put up at least ten days before the time of meeting.</p>

<p>1. Tlie number of constables in a township may be determined by signifying the number on the ballots voted at the annual town meeting.</p> <p>2. Two hundred and thirty-eight ballots were east for constable; upon one hundred and sixty-three of which, was the name of one person, and also the words one constablethat person, and not any others voted for, was elected constable.</p>

On rule to show cause why a verdict should not be set aside ■and a new trial granted. The verdict was returned for the plaintiffs by direction of the trial judge. The facts involved in the cause sufficiently appear in the opinion.

<p>1. The charter of the Morris Canal and Banking Company empowers the company to fake and appropriate to its use any lands or waters necessary for the erection and use of its canal for the purposes of navigation, without compensation first made, subject nevertheless to the right of the owner of lands or water-rights so taken and appropriated, to compensation for his damages, to be ascertained in the manner prescribed by the charter.</p> <p>2. The twentieth and twenty-seventh sections of the charter secure to persons injured in their property-rights a remedy in conformity with the ordinary rules regulating actions at law, according to the nature and extent of the injury sustained. If the injury be one that is temporary and recurrent, successive actions for damages sustained from time to time may be the proper remedy. But when the company has effected a complete appropriation of property by the location of its canal on lands or the appropriation of water-rights to its use, by the construction of works designed to effect a constant and continuous diversion or flooding back of waters, such lands or water-rights are taken, the injury is then done and the damages consist in the entire value of the property and are recoverable in one action; the taking and appropriation being lawful, the occupation or use of the property so taken or appropriated cannot be considered a continuing wrong for which successive actions will lie.</p> <p>3. Where property has been permanently appropriated by the company to its use, the action reserved to the owner by the twentieth section of the charter is the means provided for him to obtain an appraisement and recovery of his damages, in case the company does not proceed to obtain an appraisement by commissioners, pursuant to the sixth section, and the damages recoverable in such action will be the same compensation which is determinable by the award of commissioners— full compensation for the injury done by the appropriation of the owner’s property to the company’s use.</p> <p>4. In analogy with the statute of limitations, which applies only to corporeal hereditaments, the enjoyment of an incorporeal hereditament, adverse, exclusive and uninterrupted for twenty years, affords a conclusive presumption of a grant to be applied as a presumptio juris et de jure.</p> <p>-5. The owner of the servient tenement cannot overcome the presumption, of a grant arising from an uninterrupted user of twenty years by proof that no grant was in fact made. He may rebut the presumption by contradicting or explaining the facts upon which it rests, but he cannot overcome it by proof in denial of a grant.</p> <p>6. The owner of the servient tenement may show that the right claimed is one that could not be granted away, or that the owner of the servient tenement was legally incapable of making, or the owner of the dominent tenement incapable of receiving such a grant. He may explain the user or enjoyment by showing that it was under permission asked and granted, or that it-was secret and without means of knowledge on his part, or that the user was such as to be neither pliysically capable of prevention nor actionable. But if there be neither legal incompetency nor physical incapacity, and the user be open and notorious, and be such as to be actionable or capable of prevention, the servient owner can only defeat the acquisition of the right on the ground that the user was contentious, or the continuity of the enjoyment was interrupted during the period of prescription.</p> <p>7. Mere denials of the right, complaints, remonstrances or prohibitions of user, unaccompanied by any act which in law would amount to a disturbance, and be actionable as such, will not prevent the acquisition of a right by prescription.</p>

<p>1. In laying a tax under the railroad taxation act of April 2d, 1873» (Rev., p. 1166,) for the benefit of counties, townships and cities, the commissioner of railroad taxation performs the same duties as a township assessor under the general tax law, and the proceedings for review are the same as in cases of ordinary taxes, except that such taxes are not subject to review before the local commissioners of appeal in cases of taxation. The writ of certiorari to review such taxation should be directed to the collector of taxes for the township or city in whose hands the duplicate of taxes is placed for collection, and the proceedings under the writ, with respect to the review and correction of the assessment, will be the same as in ordinary cases.</p> <p>2. Neither the charter of the Hoboken Land and Improvement Company (Pampli. L. 1838, p. 92.) nor the act incorporating the Weehawken Docks (Pamph. L. 1867, p. 398,) contains any grant of lands under water, the title to which was in the state. These incorporating acts operated only as grants of corporate franchises.</p> <p>3. The New York, Lake Erie and Western Railroad Company as the grantee of the Weehawken Docks, is not liable to taxation on lands under water in front of their docks, which have never been reclaimed, and over which the tide ebbs and flows. The title to such lands is in the state.</p> <p>4. In estimating the value of lands lying upon tide water, for the purpose of taxation, adjacency to the tide waters is a circumstance which should enter into their taxable valuation, and in so far as the market value of the land is enhanced by reason of its frontage on the water, and of the privileges arising from its location, it should be estimated at such enhanced valuation for the purposes of taxation.</p> <p>■5. State v. Jersey Oity, 1 Duteher 525, explained.</p>

<p>On error to the Supreme Court. See ante p. 135.</p>

<p>In error to the Supreme Court. For opinion of Supreme Court see ante p. 369.</p>

<p>1. One Heminway wrote for the assured, and delivered to him, a policy of insurance, upon which was endorsed “ D. C. Heminway, agent.”</p> <p>2. The policy contained no limitation upon the agent’s authority, and no intimation was given to the insured of the existence of any restriction. Held—</p> <p>1. That H. is to be regarded as the general agent of the company so far as to bind it for any act by him done within the apparent range of his employment.</p> <p>2. The policy-holder cannot be affected by any limitation existing upon the agent’s authority, not communicated to him.</p> <p>3. The agent had power, on behalf of the company, to receive notice •of sale and conveyance of the property insured, to waive the condition of the policy and assent to the alienation.</p> <p>4. If the agent used such language to the assured as reasonably led him to believe that the life of his policy would be secure without any further act on Ms part, the defendant company cannot take advantage of an omission on Ms part thereby induced, to work a forfeiture of the contract of insurance.</p>

On error to the Supreme Court. The action below was brought upon a bond, of which the following is a true copy: “ Know all men by these presents, that we, Timothy Wood, John H. Dayton, Enoch R. Hardy, William H. Lamberson and Hezekiah Warne, trustees of the Methodist Episcopal Church of Jacksonville, their successors and assigns, all of the county of Middlesex, and State of New Jersey, are held and firmly bound unto Abraham Warne, of the same place, in the sum of sixteen…

<p>When a certiorari has been dismissed by the Supreme Court on the ground that in consequence of the laches of the prosecutor it had been improvidently granted, a writ of error will not lie from such order of dismissal.</p>

On error to the Supreme Court. This suit was brought to recover the difference between the amount paid by the defendant in error, on an assessment for improvements, and the sum re-assessed upon his property, the former assessment having been set aside.

<p>1. "Where an order for a warrant made by a justice of the peace fails to state the amount for which the warrant is to be issued, and the cotemporaneous order for bail endorsed by the justice on the warrant supplied the omission, the two together will be a substantial compliance with the provision of the statute.</p> <p>2. No action will lie against a judge acting in a judicial capacity, for any errors which he may commit, in a matter within his jurisdiction.</p>

<p>In error to the Supreme Court. For opinion of the Supreme Court, see ante p. 172.</p>

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