Volume 45 — New Jersey Law Reports

Suit upon the following promissory note, viz.: “$1000. “ On or before the 1st day of April, 1873, we, or either of us, promise to pay James W. Anthony, or bearer, the sum of one thousand dollars, with interest from date, without defalca tion or discount, for value received. “April 3d, 1872. “William Crater. “ A. S. Bang-hart. “Joseph B. Fritts.” Interest had been paid up on the note to the 1st of April, 1878, by one of the makers, William Crater.

In assumpsit. This was an action of assumpsit brought by Coleman, the plaintiff, as receiver of the property and things in action of Joseph H. and Daniel-C. Wightman, against Erastus W. Roff. Held: as collateral security for the payment of his judgment — they stating that these leases were all the property they had — and he subsequently collected upon them, between August 9th, 1879, and April 1st, 1880, $626.98, and refused, upon demand, to pay the same over to the receiver.

On error to Essex Circuit. The case was heard before the Essex Circuit, without a jury, upon the following statement of facts agreed upon, and judgment ordered for defendant: On February 14th, 1882, the plaintiff conveyed a plot of land on Springfield avenue, in Newark, to Anthony Kuttruff, for $2000, by a deed of warranty with full covenants, which was left in escrow with the defendant to be put on record, on February 23d, 1882, or sooner, if the encumbrances should be paid…

On demurrer to declaration. The following is the declaration filed by the plaintiff: The Mrs. G. B. Miller & Co. Tobacco Manufactory complain of Matthias Commerce, being in the custody of the sheriff of the county of Hudson, of a plea of trespass on the case: For that whereas they, the said plaintiffs, for divers years before, and at the time of the committing of the grievances hereinafter next mentioned-, did manufacture, vend and sell, and still do continue to manufacture,…

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

<p>To a declaration upon a bond, given for. the faithful performance'of official duty by the city treasurer, the sureties pleaded that the municipality induced and was privy to the misconduct of the treasurer which, was alleged as the breach. Held, that the plea was good on demurrer</p>

<p>1. Whether a building, erected by one person on the land of another, with the latter’s permission, is real or personal property, is a question of fact, to be decided according to the actual or imputed intention of the parties.</p> <p>2. An averment in a pleading that a building erected as a dwelling-house is personalty, is an issuable averment, and is confessed by a demurrer.</p> <p>3. If a pleading appear on its face to be false in an essential allegation, it is bad on demurrer.</p>

<p>1. If the city of Bah way use the moneys raised in the city by tax in the year 1880 to pay the city’s quota of state and county taxes for the year 1879, it will have no right afterwards to have the credit changed to the quota of 1880.</p> <p>2. If the city treasurer, of his own motion, use the moneys raised in the city by tax in tlie year 1880 to pay the city’s quota of state and county taxes for the year 1880, and afterwards of his own motion procure the county collector to change the credit to the quota of 1879, he personally cannot claim the right to rescind the change after the county collector has instituted proceedings to collect only the balance of the quota of 1879.</p>

<p>1. Upon trial of an indictment for abuse and carnal knowledge of a female child under the age of ten years, it is not error to refuse to charge the jury that in order to convict under a count for indecent assault, the evidence must satisfy the jury that the accused committed the alleged indecent act against the will of the child.</p> <p>2. There may be submission by a child of tender years without legal consent.</p> <p>3. It is not error to refuse to exclude the whole testimony of a witness from the case, because parts of his evidence are contradicted by other witnesses.</p> <p>4. Charge of the court to the effect that the accused was to be considered innocent until proved guilty, and that if there was reasonable doubt, and the disclosures did not satisfy the jury of his guilt, they should acquit him, is sufficient.</p>

<p>1. Where a request to charge the jury embodies a correct statement of law, is applicable to the case, is fairly raised by the testimony, and is material, the court should charge upon it distinctly.</p> <p>2. It is not sufficient for the court, in response to several distinct requests by defendant’s counsel to charge upon several propositions of law, to say that the jury must take the law as the counsel for defendant had read it in his address; but the court should charge on each request, either in its own language or by reading the extract relating thereto, which counsel had quoted, and instructing the jury that such is or is not the law.</p> <p>3. There should be an answer to each request that states a proposition of law fairly arising out of the case.</p>

<p>Where, in an action of trespass before the court for the trial of small causes, the defendant pleads title to land, and plaintiff brings suit in this court, to which defendant interposes other pleas besides that of ■title, the question of legality of such pleading cannot be raised on demurrer, but on motion to strike out the pleas.</p>

On certiorari to Mercer Pleas. Hulit, on the 21st of April, 1882, recovered a judgment against Evernham in the court for the trial of small-causes, before Daniel Temple, a justice of the peace of the .county of Mercer, in an action of debt. ‘ Temple was a justice of the peace residing and holding his court in the city of Trenton. Evernham was a resident of the township of East Windsor, in said county.

On certiorari to Monmouth Pleas. The facts certified in the return to this writ material to the merits of this controversy, are these: One Borden, an agent of Hutchinson, in July, 1880, sold a horse to one Magahan. He took for the purchase money two notes, amounting to $90, payable to the order of Hutchinson, and also a bill of sale in the nature of a chattel mortgage on the horse sold and another horse, to secure payment of the notes.

<p>• • Section 56 of the Chancery act, (Rev., p. 113,) which provides that all decrees and orders of the Court of Chancery whereby any sum of money shall he ordered to be paid by one person to another shall have the force, operation and effect of a judgment at law, and also provides for the filing of and record of an abstract of such decree in the office of the clerk of the Supreme Court, in order to make the same a lien on lands, does not apply to an ordinary decree of foreclosure, and tke record of such a decree in the clerk’s office will be expunged, j</p>

<p>On motion to quash .the service and return of writ of summons.</p>

<p>1. To an allegation by the defendants that a public road had been unused for a period of five years, and that by virtue of section .1 of the act of March 4th, 1880, it had been vacated by the written consent of the land-owners, it is not a sufficient traverse to reply that the road had always been open to travel, and is now used, as far as it can be, with the bridges removed. This allegation does not negative the defence that the road had been unused for the statutory period.</p> <p>2. The word “unused,” in the act of 1880, signifies abandonment by the public. Therefore an allegation that before and at the time of the passage of the act of 1880, legal proceedings were pending in the Supreme Court by the relators to compel defendants to rebuild the bridges which they had removed, and that by the wrongful refusal of the defendants to do so, the road could not be used, sufficiently negatives the averment of non-user. It shows that there had not been an abandonment of the highway, and consequently not such non-user as the statute contemplates.</p> <p>3. The defendants allege that they are a foreign corporation, and therefore do not owe any duty to the state or to the relators in the premises The reply by the relators that it is the.duty of the defendants to erect the bridges, is insufficient. The relators must either demur to the sufficiency of the return in this respect, or traverse it, or reply new matter upon which the duty of the defendants rests. The allegation that it is the duty of the defendants to build the bridges is a statement of 'matter of law. Good pleading requires a statement of the facts upon which the duty arises.</p>

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

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

<p>1. The act entitled “An act to authorize the drainage of marsh and swamp lands” (Pumph. A., 1870, p. 815,) is unconstitutional.</p> <p>1. It commits to a private corporation, thereby created, the right to elect whether it will drain lands without the consent of the land-owners and at their expense.</p> <p>2. The enterprise is of the nature of a private venture for private emolument, and does not justify the exercise of the state’s right of taxation or eminent domain.</p> <p>3. The act does not restrict the aggregate of the assessments which are to be levied on the land-owners to the amount of benefit to be conferred by the proposed work.</p> <p>2. If the act could be regarded as constitutional, to entitle a contract under it to approval, the company must first establish itself in the position of pecuniary responsibility contemplated by the act, by requiring the shareholders to pay for the shares subscribed for in cash, or in authorized property at its fair, actual value.</p>

<p>In controversies arising in Gloucester City under the school law, the appeal is to be made to the county and not to the city superintendent of schools.</p>

On eertiorari. This writ brings up an assessment of the costs and expenses of paving a section of Mount Prospect avenue, from Bloomfield avenue to Hillside avenue, in the city of Newark^ together with the ordinances and proceedings touching said assessments.

On certiorari. This writ brings up a tax levied by the assessor of New JBarbadoes township, by direction of the Hackensack Improvement Commission, under an act to incorporate the Hackensack Improvement Commission, [Pamph. L. 1868, p. 564,) and supplements thereto. Pamph. L. 1871, p. 1510. The tax in question was imposed to pay bonds issued to raise money for the construction of a sewer.

This is a motion to set aside the service of the summons in this case. Mr. Colville, the defendant, is a resident of Atlantic county, in this state. He was in the city of Camden, in attendance, on October 6th, before a master in chancery, not under subpoena, but voluntarily, as a witness in a matter in which Samuel Richards was petitioner and the Philadelphia and Atlantic City Railroad Company and he, Charles R. Colville, the receiver of said company, were respondents.

In ejectment. This is a motion made by the defendant in an action of ejectment brought by the plaintiff as assignee of a mortgage made by Noah Collins, the father of the defendant, to one John H. Marsh. The cause has proceeded to judgment and a writ of possession has issued.

On certiorari. This writ brings up the following ordinance, and notice given, after its passage, to the prosecutor: Whereas, The committee appointed by the common council, at a meeting held on Tuesday evening, March 7th, 1882, to ascertain the lines of Main and Mercer streets, have reported that they find serious encroachments at and near the junction of said streets, and have filed a map duly showing the same: Be it ordained by the common council of the borough of…

On error to Burlington Circuit Court. An agreement, in writing, was made July 19th, 1875, between the plaintiff and defendants, by which the plaintiff agreed to do the melting of all iron at the foundry of the defendants, who were manufacturers of iron pipe at Florence, for the period of at least one year from the date thereof, said Church to furnish all the help required to do the same at his own expense, for the consideration of forty cents per ton of twenty-two hundred…

In seire facias on recognizance. Cornelius Sullivan was arrested on complaint for an assault and battery, and gave a recognizance, with Henry Traphagen as surety, to appear and answer. An indictment was found, Sullivan did not appear, the recognizance was forfeited, estreated, certified to this court, and scire facias awarded against the recognizor to show cause why the recognizance should not be forfeited, judgment entered and execution issued thereon.

<p>1. The sale of lands for taxes, under the provisions of the act of 1879, [Pamph. L., p. 340,) must be made before the expiration of the two years during which, by the provisions of said act, the lie» for taxes is to continue.</p> <p>2. The period of two years, during which the lien exists, commences to run at thfe time fixed by the collector of taxes in the notice required by section 10 of the act concerning taxes, (Pev., p. 114=1,) before which taxes are to be paid, not later than December 19th.</p>

On certiorari. An action of debt was commenced August 9th, 1879, in a justice’s court, by Everitt against Williams as administrator of Peter Morris, deceased, upon a note made by deceased to C. Roe for $53.31, dated Januaryl7th, 1872, and payable one day after date. Morris died in July, 1877, and Williams was appointed administrator July 19th, 1877.

<p>1. An objection to proceedings for condemnation of lands for public use as a street, of which proceedings the statutory notice was given, will not be entertained after the improvement has been completed at the public expense.</p> <p>2. Land-owners, part of whose land was taken for a public street in the city of Passaic, and to whom damages were paid by the city under an award made pursuant to section 61 of the charter of 3873, (Pamph. L., p. 484,) in which award the benefit resulting to the land-owner was considered and allowed, cannot thereafter be assessed for benefits under the original charter or the amendments thereto in 1875; (Pamph. L., p. 570,) although the commissioners to assess for benefits find that such land-owners were more benefited than injured. The first adjudication of benefits cannot be thus reviewed.</p> <p>3. But when, under the first assessment, a land-owner received no award by reason of a finding that his benefits exceeded his damages, an assessment in proportion to benefits, as determined by the commissioners to assess for benefits, may be imposed on him.</p>

<p>1. At the common law, only the attorney-general could exercise the power to enter a nolle pros, upon an indictment, and in this state, there being no statute upon the subject, this power is still reposed in the attorney-general or the several prosecutors of the pleas; but, under the long-established practice in this state, an indictment, after it passes under the control of the court, may not be discharged without the consent or under the advice of die court.</p> <p>2. The peremptory power of the court, where the common law prevails, is never exerted, upon the representative of the state to discharge an indictment, in whole or in part, at the instance of parties. This can only be done where such power is conferred upon the court by statute.</p> <p>Indictment for conspiracy. On motion to discharge the defendants.</p>

<p>1. The act of March 23d, 1881, relating to assessments, requires the Supreme Court, having an assessment before it by certiorari, to make a proper assessment, if the original assessment be erroneous or void, whenever, at the time of adjudicating, such assessment may lawfully be made.</p> <p>2. Where an assessment for street improvements had been laid under a void act, and the same was brought before the court by certiorari, and at that time an act had been passed whereby an assessment could be made for such improvement — Held, that after setting aside the original assessment, it was incumbent on the court to have a proper assessment made.</p>

This suit was brought against Appleby, oue of the sureties on the official bond of J. Elmer Stout, former clerk of the Court of Common Pleas of the county of Middlesex. The bond in form and condition is in compliance with the statute. Bev., p. 145, § 2.

<p>On error to the Supreme Court. The facts are fully set forth in the opinion.</p>

<p>A statute passed after certain road improvements were completed by a special commission, authorized the commissioners who were to assess the expenses thereof, to determine what amount of such expenses should be paid by the county of Hudson, and directed that the sum so determined should be raised by general taxation, as other' county taxes are raised, and, when collected, should be paid over to the treasurer of the commission. Held, that the sum so determined was not a general debt of the county, and that the county officers were not bound to raise by tax or to pay any interest on said sum.</p>

<p>In covenant. On error to the Supreme Court. The facts appear fully in the opinion.</p>

<p>Section 5 of the act concerning townships and township officers (Rev., p. 1203, § 54,) which provides that whenever it is deemed expedient to issue town or township bonds for any lawful purpose, the bonds shall only be made or issued on certain conditions mentioned in that act, applies only to cases where it is optional either to incur the debt or not, and not to those where a lawful debt has already been incurred and the payment of it is consequently obligatory upon the township.</p>

<p>In error to the Supreme Court. For opinion of the Supreme Court, see 15 Vroom 126.</p>

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

<p>- In error to Supreme Court. Eor opinion of Supreme Court, see 15 Vroom 131.</p>

<p>In error to the Supreme Court. For opinion of the Supreme Court, see 14 Vroom 505.</p>

<p>In error to Supreme Court. For opinion of Supreme Court, see 13 Vroom 513.</p>

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

On information, &c. The information was to this effect: that the relator, by virtue of the act approved March 4th, 1863, entitled “ An act to authorize the board of chosen freeholders of the county of Hudson to establish a jail and work-house at the county farm in said county,” Was appointed by the board of chosen freeholders of the said county to the office of jailer or keeper of the jail and work-house at the county farm on the 4th day of September, 1879, and said…

<p>On demurrer to replication. The facts appear fully in the opinion.</p>

<p>On rule to show cause why a new trial should not be granted.</p> <p>The suit was brought against the West Jersey Railroad Company for damages by fire, alleged to have been communicated by sparks from one of the locomotives of the defendant. On the trial below a verdict was rendered for the plaintiff.</p>

This case came before the court on writ of error to the Oyer and Terminer of the county of Essex. The plaintiff in error was tried at the January Term, 1882, of the Essex Oyer, and convicted of murder in the first degree.

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

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

On rule to show cause. This case was tried at the September Term, 1882, of the Essex Circuit, before Justice Depue and a jury.

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

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

<p>On certiorari.</p>

<p>On certiorari to the District Court of Jersey City.</p>

<p>On certiorari to the board of public works of Jersey -City.'</p>

Tbe respondent, Charles H. Miller, was chosen assistant clerk of the council of Hoboken May 2d, 1882, and has continued in that position until now.' Leon H. Kendrick was appointed city clerk by the council May 1st, 1882, and held that position until August 4th, 1882, when he resigned.

On certiorari to review water rates against the prosecutors for vacant lots and lots with buildings thereon, in which Passaic water is not taken, situate on streets through which water-pipes are laid, from the year 1872 to 1879, inclusive.

This writ brings up assessments against the property of Mrs. James King, Edward King, C. T)uer and Mrs. Richards for work done under an act to improve Bull’s Perry road, in Hudson couuty, from the northerly line of the township of Weehawken to the Hackensack plank road, and also the branch road leading from Bull’s Perry road, opposite Weeliawken street, in the town of Union, to Nineteenth street, in the township of Weehawken.

On certiorari. This writ brings up certain resolutions and proceedings relating to the paving or repaving of Main street, in the city of Paterson, from the Passaic river to Market street, the paving or repaving of a part of Market street, the paving of Bridge street from Broadway to Godwin street, the paving of Cross street from Market street to Ellison street, the macadamizing of Totowa avenue and a portion of Market street.

On certiorari. This writ brings up an indictment found by the grand jury of Essex county. The following is the indictment: “ Essex Oyer and Terminer and General Jail Delivery.

<p>A county collectin', upon mandamus, will be ordered to pay over to the treasurer of a town or township collector the amount of school moneys apportioned to said town or township, for which the collector holds the order of the county superintendent, although the town treasurer or township collector may owe to the county collector moneys due for state and county taxes.</p> <p>The board of education of the city of Plainfield have a rule upon the collector of Union county requiring him to show cause before this court why a mandamus should not go commanding him to pay to the collector of the city of Plainfield the sum of $6356.77, the amount of an order drawn in favor of said collector upon the collector of Union county by N. W. Pease, county superintendent of public schools, the above sum being the amount apportioned to the said city out of the state school tax.</p> <p>The evidence taken to be used upon the argument upon the return of this rule, shows the following facts:</p> <p>The order above mentioned was drawn by the county superintendent, and by him delivered to the county collector on May 2d, 1879. The county collector did not pay any cash upon this order, but he credited the collector of the city of Plainfield with the amount of the order as so much money received from said collector on account of the state and county taxes due the county from the city of Plainfield. This credit was assented to by the collector of the city of Plainfield.</p> <p>The city collector, at various times, has paid to the relator, on account of the school moneys of 1878 and 1879, the aggregate sum of $4438, leaving a balance of $1928.77 due the relator upon the school tax of that year.</p>

<p>On certiorari.</p>

<p>1. An agreement between an attorney and his client that the attorney shall have a lien upon a certain judgment to be recovered, for a specified sum, as compensation for his services, constitutes a valid equitable assignment of the judgment pro tanto which attaches to the judgment as soon as entered.</p> <p>2. The equity of the assignee under such an assignment is superior to the claim of the judgment debtor to set off against the judgment, a judgment against the plaintiff which he, the debtor, had purchased after ■ the entry of the judgment against himself and before he had notice of the assignment.</p> <p>3. A failure to give to the debtor notice of the assignment of the debt will not subject the assignee to merely equitable claims of the debtor, which do not attach to the debt itself and which accrue to him after the assignment.</p>

<p>On certiorari bringing up a summary conviction of the prosecutor before a justice of the peace.</p>

<p>1. Certificates of inferior courts as to what has transpired in their presence cannot be contradicted by affidavits.</p> <p>2. If an appellant who has taken an appeal from a justice to the Common Pleas, does not exercise proper diligence to have the transcript duly certified and promptly sent up, and thereby the respondent loses a trial-day, it is within the discretion of the Common Pleas to dismiss the appeal.</p> <p>3. Mandamus will not be awarded to compel a court to do what, in its discretion, it might lawfully refuse to do.</p>

<p>1. The mere fact that the defendant in a suit has submitted to the plaintiff an offer of settlement will not justify the defendant in assuming that litigation is to be suspended until the offer be rejected or accepted.</p> <p>2. If, on such assumption, a defendant fails to appear and move in the Common Pleas an appeal which he has taken from a justice’s court, and therefore the Common Pleas dismisses the appeal, a mandamus will not be awarded for its re-instatement.</p>

<p>The “ Act respecting licenses in cities of the first class,” (Pamph. L. 1882, ¡>. 247,) is local and special, and therefore unconstitutional.</p>

<p>1. On a motion to amerce a sheriff for neglecting to levy a writ of Ji. fa., the plaintiff is not required to show with precision the value of the property on which levy might have been made. It is enough if he show that the neglect has deprived him of a substantial benefit under his writ.</p> <p>2. A notice of a motion to be made before this court upon a day specified, (which is a day of general election,) “or as soon thereafter as the court can attend to the same,” is a good notice for the day succeeding the designated day.</p>

<p>On certiorari.</p>

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

<p>Motion to discharge a rule to show cause why a new trial should not be granted, &e.</p>

<p>Under section 69 of the Attachment act, (Rev., p. 55,) to make it the duty of the justice to try the facts on a motion to quash the attachment, there must have been filed with him an affidavit setting forth such facts as, if uncontradicted, evince that the writ was illegally issued and void.</p> <p>2. Upon such an affidavit being filed, the defendant in attachment may move to quash the writ, and the justice is to proceed thereon to a trial. of said facts. On such trial the party having moved to quash, has the burden of proof, and must sustain it by legal evidence: the affidavit so filed cannot be used as evidence on the trial of the facts.</p>

<p>The act incorporating the city of Paterson creates a department of health, and enacts that for the preservation and promotion of the health of the city, that department shall have power (among other things) to , regulate and control the manner of erecting and constructing dwelling-houses and other buildings in said city ; it contains no general welfare clause or clause conferring general police powers. Held, that the power to regulate the erection, &c., of buildings extends only to such matters as affect health in the sense of freedom from disease, and does not justify a regulation requiring the outside walls of buildings to be of a specified thickness.</p>

On January 4th, 1879, Bogert and others recovered a judgment in this court against Cornelius Lydecber. An execution thereon issued August 26th, 1879, returnable to November Term, and was returned unexecuted. An alias execution issued January 10th, 1880, returnable to February Term, and was returned without levy on lauds. A pluries execution issued May 21st, 1881, returnable to June Term, and was levied on certain lands in Bergen county.

<p>On certiorari.</p>

<p>A license to build a fence upon a division line between two adjoining tracts will authorize a fence to be placed on the division line so as to occupy an equal space on each side of the mathematical line of division for a reasonable width, but will not authorize the erection of a fence which, like a worm or zigzag fence, is not built on the division line, bút crosses it from side to side and encloses parts of the adjoining tracts.</p>

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

This writ and another, allowed on the prosecution of Amos W. Cramer and others, call for and bring up the application of James Brands and others for the appointment of surveyors of the highways to lay out a public road in the townships of Knowlton and Oxford, in the county of Warren ; the appointment of surveyors thereon made by the Court of Common Pleas of that county; the return made by the surveyors and the order of the court directing such return to be recorded.

On error to Essex county Quarter Sessions. The defendants were indicted by the grand jury of the county of Essex, at the September Term, 1882, for breaking and entering a storehouse in the night-time, with intent to. steal. The indictment also contained a count for breaking and entering in the daytime. Upon trial in the Sessions there was a general conviction. Errors are assigned upon the proceedings at the trial, and also on the form of judgment.

. In error to the Supreme Court. The opinion in said court will be found ante p. 203. ' Upon the trial of the case at the January Term, 1882, of the Essex Oyer and Terminer, the case was submitted to the jury upon the following charge by Judge Depue: “ Gentlemen of the Juey — The prisoner at the bar is on trial on an indictment for murder in causing the death of Edward Soden, by shooting him, in this.city, on the evening of the 20th of December last.

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

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

<p>1. The liability of a ferryman with respect to property retained by a passenger within his own control and management is not the same as that incurred with respect to goods delivered to him and placed within his control for transportation. With respect to the latter, the ferryman undertakes for their safe carriage as against all perils but such as arise from the act of God or the public enemy; with respect to the former, his duty is to provide his boat with such means and appliances as are adapted to the security and safety of the passenger and his property, and to úse such means and appliances with skill and care. For a failure in the performance of this duty, the ferryman will be liable if injury result.</p> <p>2. But if, in such a case, the passenger, by negligence in the care of property of which he retains control, contributes to its loss or injury, he cannot recover of the ferryman, though negligent.</p>

<p>•On error to the Sussex Sessions.</p> <p>The defendants were indicted for a libel, and being arraigned they pleaded in abatement ill-will and malice on the part of certain of the grand jurors, and malicious misconduct in the sheriff in selecting and summoning such jury. The state demurred to that plea, and the Sessions, upon argument, sustained the demurrer</p>

<p>On demurrer to an information in the nature of a qua warranto.</p>

<p>1. When it is a part of tl>e defence that a note was taken after its'maturity, such fact, in general, must be proved by the defendant.</p> <p>2. An accommodation note is negotiable after its maturity, and if taken for value will bind all parties to it.</p> <p>3. The plaintiff was a married woman, and had taken the note in suit in the State of Pennsylvania by endorsement from her husband. There was no proof of the law of Pennsylvania. Held, that the rule of the common law was applicable, and that she showed no title to the note.</p>

On rule to show cause. This suit was brought against the defendant as the endorser of a promissory note, given March 5th, 1881, at two months, for $1682.64, payable at the National Citizens’ Bank, 401 Broadway. It was signed by, the maker, with his proper signature, thus : “ H. Jacobs, 403 Broome St., N. Y.” It was endorsed by George M. Chapman. ' The defence is that no proper notice of non-payment was given to the endorser. There is no substantial dispute about the facts.

<p>1. The legislature, in a grant of powers to municipal governments, may include in one act provisions for licensing hacks, and also power to license, regulate and prohibit the manufacture or sale of liquor, if the title prefixed to the act be so framed as to comply with the constitutional requirement.</p> <p>2. The legislature may make the title of an act as restrictive as it pleases and may so frame the title as to preclude many matters being included in the act which otherwise might have been included in one act.</p> <p>S. In an act entitled “An act to provide for licensing boats, hacks and other vehicles by incorporated camp-meeting associations or seaside resorts, and for the better government of the same,” the legislature cannot include provisions authorizing the licensing, regulating or prohibiting of the manufacture or sale of liquor, such a subject not being within the legislative purpose as expressed in the title of the act.</p>

On rule to show cause, and applicatiou for judgment on a special verdict The Camden and Atlantic Land Company was incorporated in 1853 as a land company, for the purpose of “ erecting a town and watering-place on Absecum beach, on the Atlantic ocean.” Pamph. L., 1853, p. 387. In September, 1853, the company became the owner of fifty-nine and ten-hundredths acres on Absecum beach, which was conveyed to it by Isaac S. Waterman.

By an act of the legislature entitled “ A supplement to an act entitled ‘ An act to facilitate judicial proceedings in the county of Essex/” passed March 27th, 1867, it was enacted that “ whenever any person shall be charged upon oath, before any justice or police justice, in the county of Essex, with any offence now triable by law before the Court of General Quarter Sessions of the Peace, and such person shall, in writing signed by him or her, addressed to the prosecutor of…

<p>1. Tlie act of March 12th, 1878, (-Pampli. L, p. 70,) is applicable to the township of West Hoboken.</p> <p>% If that act did not apply to West Hoboken, the plaintiff would be entitled to recover, in this case, remuneration for his services rendered for the township under employment of the township committee.</p>

<p>In prosecutions-for the recovery of penalties for violating section 6 of the supplement to insurance laws (Pamph. L. 1877, p. 102,} it is not necessary to prove or aver that the defendant corporation is a foreign corporation ; it is sufficient to show that it has not complied with the provisions of our insurance laws.</p>

<p>In error to the Sussex County Circuit Court.</p>

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

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

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

<p>1. A general owner of goods may be guilty of larceny in stealing such goods from a special owner.</p> <p>2. The indictment in such case charging the stolen goods as the property . of the special owner, is good.</p> <p>3. To constitute the crime of larceny in such cases, the taking must be-felonious.</p>

On case certified from the Monmouth Circuit. This suit was brought on a policy of insurance against loss by fire issued by the defendant for $3000. The policy was dated August 4th, 1873, and was issued to Peter Righter, the owner of the property insured. Written in the body of the policy was this clause: “ Loss, if any, payable to Eanny Lattan and Angelica Lattan, of the city of New York.” The policy was to run for one year.

On certiorari to the board of freeholders of the county of Hudson to review certain preambles and resolutions adopted by them April 19th, 1883, &c., return is made of their proceedings under an act of the legislature of New Jersey, entitled “ An act to authorize the board of chosen freeholders in the counties of this state to lay out, open and improve a public road in each of the counties of the first class in this state,” passed March 7th, 1883. Pamph. L., p. 65.

On motion to quash the return to a writ of alternative mandamus, commanding the board of public works to remove all obstructions from the main sewer on Fourth street, Jersey City, which prevent the contents of said sewer'from flowing out of the same into the Hudson river, and to open the sewer through the new-made land east of Henderson street to the Hudson river, and to continue the Fourth street sewer along the line of Fourth street, extended, to the Hudson l’iver,…

This writ brings up the record of a conviction and judgment in proceedings had before James M. Cassidy, a justice of the peace, against the proseoutor, Richard H. Shivers, under the provisions of an act (Pamph. L. 1882, p. 97,) entitled “ An act to prevent the adulteration and to regulate the sale of milk.” The complaint was made by William K. Newton, who was-at the time, by the appointment of the state board of health, holding the office of state inspector of milk.

<p>A certiorari wiil not be allowed to bring up proceedings under tbe act concerning vice and immorality before conviction.</p>

On certiorari. This writ brings up an assessment for taxes made in Jersey City, against the prosecutors. There is nothing in the.charter of the Jersey City Gaslight Company in regard to taxation. This corporation, by a supplement to their charter, passed in 1852, were authorized to lay pipes in the city of Hoboken.

On certiorari. This writ brings up for review an assessment made upon the property of the prosecutors in the city of Hoboken for the expenses incurred in constructing a sewer in Clinton street, between Second and Third streets.

<p>This is a motion to strike out the second and third replications to a plea.</p>

<p>1. An order of two justices under the Bastardy act, must reoite such facts as show their jurisdiction over the matter they adjudicated upon.</p> <p>2. What facts are requisite under the present act, to confer jurisdiction on two justices, stated.</p> <p>3. When the order of t-wo justices is defective because their jurisdiction does not appear, an appeal therefrom does not waive the objection, nor confer on the Sessions authority to consider and adjudicate upon the matter; if, in such a case, the Sessions do proceed and make an order, both orders must fail for want of jurisdiction.</p>

<p>On certiorari.</p> <p>Motion to quash indictment removed by certiorari from the Hunterdon Sessions.</p>

<p>1. Power given a municipal .corporation to pass ordinances for removing obstructions, encroachments and nuisances from highways, is a mere police and ministerial power. It differs from the power, sometimes given, to fix and determine the boundaries of highways in order to • ascertain whether there are encroachments thereon, which power is judicial, to be exercised on notice, &e.</p> <p>:2. The former power does not justify municipal authorities in removal of buildings occupied along the line of a street for thirty years, under the pretence that they had adjudicated that the buildings were within the line of the street, and therefore encroachments thereon, although •the ordinance so adjudicating was passed on notice to the owner and ■after he had an opportunity to be heard.</p>

<p>1. The act of March 5th, 1883, reducing all special poll taxes in the state to §1, is not a special or local law within the prohibitions of the constitution. ' a</p> <p>2. A municipal corporation whose power of taxation is modified by a . statute, cannot refuse to obey the statute upon the ground that its creditors are entitled to the exercise of its taxing powers as they existed before the statute, it not appearing that the modified power is inadequate.</p>

<p>On motion for money in court and for a rule against a •sheriff.</p>

<p>1. A railroad company having built a platform on land already dedicated to public use as a highway, cannot prevent the opening of the highway on the-ground that the platform is necessary for the transaction of its business.</p> <p>2. Under “ An act relative to railroad crossings and to prevent accidents,” (Pamph. L. 1881, p. 291,) in order to determine whether a proposed new road is within five hundred feet of an old one, the width of the highways where they cross the railroad bed and tracks, and not the width elsewhere, must be regarded.</p>

<p>1. The defendant borrowed the plaintiff’s plow from one who had possession of it, but had no right to lend or nse it, and after using it a few days returned it to the possessor; the defendant all the time supposing that it belonged to the possessor. Held, that the defendant was not guilty of conversion.</p> <p>2. After the defendant had so returned the plow the plaintiff demanded it of him. Held, that his failure to comply with this demand, compliance being then impossible, was not evidence of a conversion.</p> <p>3. To constitute a conversion of goods, there must be some repudiation of the owner’s right, or some exercise of dominion over them inconsistent with.such right., or some act done which has the effect of destroying or changing the quality of the chattel.</p> <p>4. When the acts of persons are evidence in a case, their ootemporaneous declarations which give character to those acts, are also evidence, as part of the res gestee.</p>

<p>1. Tlie plaintiff was a tenant for years of the defendant, and while he and his wife were carrying a stove along a balcony connected with the demised premises, the balcony broke'down and his wife was injured. In a suit for the damages, the defendant gave evidence tending to show that the plaintiff and his wife knew of the weak condition of the balcony and were guilty of negligence in crossing it with such a weight. Held, that the court erred in refusing to instruct the jury that, if such negligence were made out, the plaintiff could not recover.</p> <p>2. Held, also, that the court erred in refusing to instruct the jury that the landlady was not bound to make repairs to the balcony, unless some agreement on her part to do so were shown.</p>

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

<p>On certiorari to the Hudson Common Pleas. The facts appear fully in the opinion.</p>

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

<p>1. An exception to a refusal to non-suit a plaintiff at the trial after evidence is in, which does not disclose the grounds of the motion, is not entitled to consideration on error.</p> <p>2. Whether a plaintiffj after resting, shall be allowed to re-open his case and produce further testimony, is a matter addressed to the discretion of the trial court, whose action thereon cannot be reviewed by writ of error.</p> <p>3. In a suit upon a policy of insurance, it is no defence that the plaintiff failed to pay when due a time note given to the insurer for the premium, there being nothing in the contract making actual payment a condition precedent to the validity of the policy, or default in payment. a cause of forfeiture.</p> <p>4. A husband, who, with his wife, is in the possession and enjoyment of her personalty, has an insurable interest therein.</p> <p>5. A husband, who, with his wife, is in the occupation and enjoyment of her real estate, in which he has also an inchoate right of curtesy, has an insurable interest therein.</p> <p>6. Tlie amount to be recovered on a policy of fire insurance will depend not on the loss happening to the individual interest of the assured, but on the damage accruing to whatever interests are covered by the policy, so far as the assured represents those interests, whether as his own or by the precedent authority or subsequent ratification of others.</p> <p>7. A husband having, in his o,wn name and with his wife’s authority, insured real and personal property, situated as above mentioned, by a policy whose terms evinced an intention to insure the entire ownersiiip, is entitled to recover for the whole loss not exceeding the amount insured.</p> <p>8. The fact that the particular interest of the assured is not disclosed will not invalidate the contract, in the absence of express provision to that effect.</p> <p>9. A policy insured two barns and certain articles “ contained therein,” and also a horse “ in barn or in fields.” Held, that the horse was insured, although in a barn not one of those specified.</p>

<p>Oq error to Gloucester Circuit.</p>

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

<p>Error to the Supreme Court. Eor opinion of the Supreme Court, see ante p. 12.</p>

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