Volume 47 — New Jersey Law Reports

Suit against executors by -widow of testator. The first count of the declaration sets forth that plaintiff, during coverture, on May 1st, 1863, received $1000 as a gift from her uncle, and that her husband, the testator, received from her such moneys to invest “ for her sole use and benefit,” and that he promised so to invest the same for her for that purpose; that said husband made his will, which contained this clause, to wit: “ I give and bequeath to my beloved wife,…

This suit was for an injury to the plaintiff’s foot, occasioned by its getting between the ferry-boat of the defendant and the dock at the landing. The accident occurred about six o’clock on a November evening, after the boat was lighted. The plaintiff left the boat by the horse-gangway.

<p>A youth sixteen years old was employed to manage a cutting-machine, in the running- of which it was occasionally necessary to displace and replace the belt by which power was communicated from a revolving shaft to the machine. He had run such a machine for several months before, and was told to be careful in replacing the belt, because there was danger of his being caught in it, and was directed always to call some one to assist him in the operation who might hold the belt in place on the machine while he stood behind the shaft and adjusted the belt upon the driving-wheel. The observance of this precaution materially lessened the risk. On one occasion, although assistance was within call, he attempted to replace the belt alone, without asking aid, and was caught in the belt and killed. Held, that he was guilty of contributory negligence, and that his representative could not maintain an action for damages.</p>

<p>On certiorari.</p>

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

<p>1. For an injury resulting from a fall into an opening in the sidewalk of a public street, communicating with a cellar of the adjoining building and left without guard or notice of danger, the owner and occupier of the premises is liable.</p> <p>2. Whether the injured person contributed to the injury by his negligence depends on the circumstances; and where it appeared that he stepped into the unguarded opening while his attention was attracted by objects in a shop window above the opening, the plaintiff should not be non-suited, and a verdict in his favor should not be disturbed.</p> <p>3. When it is claimed that the fall produced or excited disease, it should appear, in order to recover damages for the results of the disease, not only that the fall was a possible cause of the disease, but other causes should be so excluded and the circumstances should be such as to leave a reasonable inference that the fall was the actual cause.</p>

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

<p>On error to the Burlington Circuit Court.</p>

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

On certiorari. This writ of certiorari brings up an order made by a justice of the Supreme Court, appointing commissioners to condemn lands of the prosecutors for railroad purposes, on the application of the Hibernia Underground Railroad Company.

On motion to set off a decree in a federal court against a judgment of this court. Marcus Schautz, on July 13th, 1883, began an action of asswnvpsit in-this court against Anna H. Kearney, by a writ of summons returnable August 6th, 1883. A declaration was filed, containing only common counts.

On certiorari to Hudson Pleas. In matter of proceedings to condemn. The prosecutor is a corporation created by the consolidation of the Delaware and Raritan Canal Company, the Camden and Amboy Railroad Company, and the New Jersey Railroad and Transportation Company, in virtue of powers to consolidate granted by the legislature. Pamph. L. 1867, p. 114 j Pamph. L. 1872, p. 567, § 1402.

On certiorari to the city council of Camden, to review the protest, resolution and proceedings of said council concerning the trial for removal of the prosecutor from his office of city councilman for the Eirst ward of the city of Camden. The minutes of council and depositions show that at the municipal election held March 12th, 1883, the prosecutor, Frank A. Kendell, and Daniel R. Smith were opposing candidates for the office of councilman.

<p>A partner cannot bind his copartner by warrant of attorney, under Ms hand and seal, in the name of the firm, where there has been no previous consent or authority given, or subsequent ratification.</p>

On certiorari to the Court of Common Pleas of the county of Hunterdon. An action on the case for trover and conversion was brought by Judiah Higgins and William E. Higgins against the prosecutor, Joseph Housel, before a justice of the peace, and judgment was recovered against him for $1 damages and the costs of suit, May 10th, 1883. The damages an4 costs were paid to the justice by the defendant.

On rule to show cause why a writ of mandamus should not issue, directed to George H. Farrier, county collector of Hudson county, to receive and discharge an assessment against Gustave Brennert for grading, paving, flagging, &c., Paterson avenue and Secaucus road.

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

<p>1. The design of the insolvent law is to discharge the debtor from confinement if he will deliver up to his creditors all his estate towards the payment of his debts.</p> <p>2. The section of the law which requires the conduct of the debtor to be fair, upright and just, is restricted to his conduct in making his account and inventory.</p>

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

<p>On petition for writ of prohibition.</p>

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

<p>On certiorari.</p>

<p>1. The act of March 31st, 1882, {Pamph. L.t p. 256,) entitled “An act to authorize the compromising or settling by arbitration of any tax or assessment laid by any public road board in this state,” is constitutional.</p> <p>2. The effect of the act is to give the land-owner or mortgagee a right of review where the assessment is in excess of benefits.</p> <p>3. The arbitrators must make the assessment conform in amount to the benefits conferred, and it must appear that they are guided by this rule.</p> <p>4. A mortgagee who has purchased the property covered by his mortgage may apply under the act.</p> <p>5. The act is retrospective.</p> <p>6. To entitle the petitioner, under the act, to a review, he must present to the judge such a statement of facts, duly verified, as show, prima, faoie, a case of injustice.</p>

<p>On certiorari to review report of appraisers of damages for Bloomfield avenue.</p>

<p>On certiorari.</p>

<p>On certiorari to the Monmouth Pleas.</p>

<p>On certiorari.</p>

<p>1. A demand for rent by a landlord upon a tenant holding over is not conclusive evidence of consent snch as converts a holding at sufferance into a tenacy from year to year.</p> <p>2. Summons dated October 5th, for an appearance on Thursday, the 16th day of October next, read as the next 16th of the then month of October.</p>

<p>On certiorari.</p>

<p>A surety of a receiver in chancery held to be concluded in a suit at law on the bond, by the amount found due on an account taken in chancery, he having, by due notice, had an opportunity to intervene in the taking of such account.</p>

On error to the Supreme Court. This case was tried at the September Term, 1884, of the Hudson Circuit Court, before Mr. Justice Knapp and a jury, and a verdict rendered for the plaintiff below, Haring, for the sum of $1000, and judgment being entered thereon, a writ of error was brought to this court.

<p>1. A writ of error will not go directly from the Court of Errors to the Oyer and Terminer.</p> <p>2. The legislature cannot sanction such a proceeding, as it is one of the prerogatives of the Supreme Court to exercise, in the first instance, jurisdiction in such cases.</p> <p>3. Final judgments in the Circuit Courts may be transferred to this court by writ of error by a direct procedure ; but this is an exceptional case created by the constitution itself.</p>

<p>1. By the provisions of the act to facilitate the collection of taxes in the township of Woodbridge, in the county of Middlesex, (Pamph. L. 1873, p. 758,) the tax certificate given to the purchaser at the sale for unpaid taxes, is to be deemed to be canceled if the owner or owners of the land appear before the township committee within two years from the date of the certificate, and deposit with them, for the purchaser of the lease, the amount paid by him for the lease, with interest at the rate of fifteen per cent, per annum, which money shall, on demand, be paid to the party owning and holding the certificate. Held, that a tender of the money to the purchaser was a compliance with the provisions of the statute.</p> <p>2. Statutory provisions for the redemption of land from tax sales are to be construed liberally. ,</p>

<p>Error to Passaic Circuit Court.</p>

<p>1. Sureties on the official bond of a city clerk, who by the city charter is also ex officio register of licenses of the city, are liable for the embezzlement by him of license fees received by him as such register of licenses.</p> <p>2. A surety upon an official bond must be held to have contracted with reference to the obligations devolved upon his principal by law.</p>

<p>Error to the Supreme Court.</p>

<p>Error to Camden Circuit Court.</p>

<p>It is in the discretion of the court to limit the time to he occupied by counsel in addressing the jury, and unless that discretion is so exercised as practically to deny to the accused his constitutional right to have the assistance of counsel, it is not error.</p>

<p>1. Where a reference is made by consent of parties, the order of reference being general in form, the report must be treated as the verdict of a jury.</p> <p>2. Exceptions cannot be taken to the decisions of the court on motion to confirm the report. The only remedy for erroneous decisions of the referee is by motion to set aside the report and grant a new trial.</p>

<p>Under a devise of lands to A for her life, and at her death to her children who may be living at the time of her decease, no estate vests in a child who dies before A.</p>

<p>After a note had matured, but was still held by the payee, two sons of the. maker, for the purpose of inducing the payee not to pass the note into, the hands of a third person, and to give further time for payment, placed their names under that of their father already upon the note. Seld—</p> <p>1. That there was a good consideration to support their contract, which was to pay the amount of the note upon demand.</p> <p>2. That their contract was not within the operation of the statute of frauds.</p>

On error to the Supreme Court. Steinbrenner, the plaintiff below, sued to recover damages for personal injuries received in a collision with a train of the defendant at the crossing of a public road over the defendant’s track. The plaintiff was riding, with his four nieces, in a coach owned by one Merkins, and driven by a driver who was employed by Merkins.

<p>Error to the Supreme Court.</p>

<p>On error to the Cape May Circuit.</p>

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

<p>On error to Morris Quarter Sessions.</p>

<p>On error to the Monmouth Pleas.</p>

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

<p>1. The common count for money had and received will sustain a claim for money fraudulently obtained by the defendant from the plaintiff.</p> <p>2. The defendant, a member of the board of chosen freeholders, made out bills to himself against the county, ostensibly for money paid by him for work on bridges, not showing when, or by whom, or on what bridges, or under whose authority the work had been done. Thes& bills were certified by the defendant as one of a committee of the freeholders, were ordered paid by the director of the board, and were receipted by the defendant. Held, that they were competent evidence-in support of the charge that the defendant had fraudulently obtained the county funds.</p> <p>3. Proof that the bills above described, being each for less than $500, were paid by the county collector, pursuant to the orders of the-director, is evidence that the moneys paid were county funds.</p>

<p>If a defendant in a suit before the court for the trial of small causes omit to file his claim as a set-off,-he may nevertheless recover the sum due him in any other court having cognizance of the same, provided he prove therein that the balance due him exceeds $100.</p>

<p>In computing time under the statute of limitations, the day on which the cause of action accrued is not to be counted.</p>

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

An information filed by the attorney-general, on the relation of Jacob C. Daubman, set out that on November 12th, 1884, the board of chosen freeholders of Camden county resolved to adopt the provisions of an act entitled “An act to transfer the charge and keeping of the jails and the custody of the prisoners in the counties of Essex and Hudson from the sheriffs to the board of chosen freeholders, and for the employment of prisoners, and to regulate the term of service…

<p>The second section of the supplement to the Crimes act, approved March; 30th, 1876, (Rev., p. 1295,) which makes criminal the seduction of a single female by a single man, under certain circumstances, and the-proviso to which provides that if the person offending under the section shall marry the seduced female he shall be discharged from custody, &e., does not repeal the prevision of section 4 of the act concerning marriages, birth and deaths, approved March 27lh, 1874, (Rev., p. 631,) which imposes a penalty on clergymen and officers who solemnize the marriage of minors under certain ages, without the consent of parents or guardians, as required by that act. A clergyman who-solemnizes the marriage of a minor without the requisite consent will be liable to the penalty, although the minor marries for the purpose of obtaining the remission of punishment provided for in the proviso to the second section of the Seduction act above referred to.</p>

<p>1. When corporate acts may be done by a definite number of individuals, and the charter of incorporation does not prescribe the number of votes necessary to the doing of such acts, a quorum, when duly met, may legally do such acts by a majority thereof.</p> <p>2. This rule applies to a board of councilmen of a municipality in the election of a presiding officer, under authority to elect annually one of their number to be president of the board, when the charter does not prescribe the number of votes necessary to such election.</p>

On application for leave to file an information in the nature of a quo warranto against certain persons claiming to exercise the franchise of a railroad corporation under the name of the New York, Susquehanna and Western Railroad Company.

<p>On certiorari to the Second District Court of the city of Newark.</p>

<p>An order for discovery in aid of an execution cannot be made in District Courts where the amount due on the judgments is less than $50.</p>

On certiorari to the Court of Common Pleas of Essex county. Haines sued Roebuck in the Second District Court of the city of Newark, and recovered judgment. Roebuck appealed to the Court of Common Pleas, and the court ordered that the judgment be set aside and that there be a new trial. Upon this order or judgment of the Pleas, Haines sued out this writ of certiorari.

<p>The complaint avers that the defendant below retailed ale without a license to keep an inn and tavern, restaurant and victualing-house, with the privilege of retailing spirituous liquors. Held, that the complaint is fatally defective in failing to aver that the defendant had not license to sell ale, which is not a spirituous liquor.</p>

<p>A promissory note, valid in its inception and unaffected by usury, was discounted by the plaintiff for the payee at a rate greater than the legal interest. Held., that the defendant, who is the maker of the note, cannot, under the Federal Banking act, set up in his defence usury in the contract of endorsement. The plaintiff is entitled to recover the full amount of principal and interest due on the note.</p>

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

<p>1. Under the terms of the statute the complaint must be treated as a state of demand, setting out the plaintiff’s cause of action.</p> <p>2. The complaint must allege that the defendant did the act of cruelty complained of, or that he caused or procured it to be done. It is not sufficient to allege that he did it by his servant or agent; his direct agency must be shown by his presence, order or direction.</p> <p>3. On appeal, the court refused to non-suit for insufficiency of complaint, because such motion was not made before the justice. Held, that the sworn complaint, being the foundation of the action, must conform to the statute, and the objection may be taken to it on appeal, and there was no waiver.</p>

On certiorari to the Court of Common Pleas of Hudson county.

<p>1. If an assessor of taxes attend the meeting of the assessors of the several townships and wards in the county, and produce his duplicate but refuse to make affidavit thereto, the majority of the assessors convened shall estimate the value of the property liable to assessment in his township or ward, according to the best of their information and belief. Beo., p. 1155, <¡ 121.</p> <p>2. Where, in such case, the assessors added $100,000 to the assessor’s valuation of real estate in the township, it will not be adjudged, in the absence of proof, that they acted arbitrarily, but according to the bes of their information and belief.</p> <p>3. Assessors acting as elected representatives of the townships and wards at such meeting held to be officers de facto, and their acts valid so far as the rights of the public and third persons are concerned.</p>

<p>On certiorari to a justice of the peace to review a conviction under the act concerning disorderly persons.</p>

On certiorari to the clerk, mayor and common council of the borough of Washington, to review Ordinance No. 33, entitled “An ordinance to suppress and prevent groggeries and tippling-houses.” The ordinance enacts “ that if any person or persons, without a license for that purpose first had and obtained from the said council, shall, directly or indirectly, sell or knowingly permit to be sold on any premises occupied by him, her or them, in any quantity whatever, where the same…

On certiorari to review the tax for 1876, on land in the Third ward of Rahway, assessed to Julia Chapman and sold for taxes to the mayor and common council of said city. The certificate of sale, the assignment thereof and the declaration of sale to Caroline H. Hunt are returned.

<p>1. The description of a public road given in an act of legislation as the boundary of townships created by said act, is sufficiently certain when used in the preliminary proceedings to divide and assign said road between the adjoining townships for repairs.</p> <p>2. Where doubt exists as to the true location of such road it may be determined by long public user.</p>

<p>1. Plea will not be stricken out where defendant shows a defence prima facie.</p> <p>2. A contract made by one under arrest through lawful process, as a condition of his deliverance from imprisonment, cannot be avoided on the ground of duress, although it be shown that no cause of action actually existed.</p> <p>3. An agreement to pay money in compromise of a suit is valid, and that regardless of the validity of the plaintiff’s demand.</p>

<p>1. Under the Road act (Rev, p. 1009, $ 70,) limitations have been imposed upon the powers of municipal authorities over streets which have been built on, in the matter of altering the grades. It can be done only by the consent of a majority of the owners in interest upon the part proposed to be regraded. Such consent need not be in writing, but may be evidenced by parol.</p> <p>2. An ordinance providing that a street should be filled up to the “highest grade,” does not indicate a grade with sufficient certainty.</p> <p>3. The changing of the grade of a street, where the burthen is to be borne by special assessment, is in its nature a judicial act, and the parties affected by it are entitled to a notice that they may have an opportunity to be heard.</p>

<p>1. An assessment for opening a street upon lands specially benefited, after such lands had been expressly relieved from assessment by an act of legislation, presents no feature which should relieve the person so assessed from the usual consequences of laches in prosecuting a certiorari.</p> <p>2. Such an assessment violates no provision of the constitution, or justifies a disregard of a special provision of the charter limiting the time for suing out the writ.</p>

<p>A summons issued out of the court for the trial of small causes, against a corporation, must be served upon the president, treasurer, cashier, or clerk of such corporation, if found, and if not found, on any of the directors or managers thereof.</p>

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

<p>On error to Bergen Sessions.</p>

<p>On certiorari.</p>

On error to the Supreme Court. This action was tried at the September Term, 1883, of the Hudson Circuit Court, and under the direction of the court a verdict was rendered for the plaintiff below for $25,836.79.

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

Ou error to the Essex Circuit Court. Blackburn, the plaintiff below, a Virginia dealer in bark, entered into a contract on May 13th, 1882, to sell to the defendant below, Reilly, a Newark tanner, for use in his business, fifty-two car-loads of bark at the price of $18 per ton, to be delivered at the rate of one car-load per week until the whole should have been delivered. Under'this contract, five car-loads were actually delivered.

<p>In error tó the Supreme Court. Eor opinion of the Supreme Court-, see 17 Vroom 495.</p>

On error to the Circuit Court of Passaic county. This action was brought to recover'the price of three brewery trucks which were ordered by the defendants, but which they refused to accept and pay for on delivery. The defence was the statute of frauds. The defendants, who were about to enter the brewing business at Newark, went to the plaintiffs, who were carriage and wagon manufacturers in Paterson, and wished them to build three trucks.

<p>Where a deed is made and accepted, in pursuance of an executory contract, the law presumes that it fully expresses the final intentions of the parties as to so much of the contract as it purports to execute.</p>

<p>Error to the Supreme Court.</p>

<p>There can be no lien upon the land of a minor under the mechanics’ lien law.</p>

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

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

<p>On error to the Supreme Court. For opinion of Supreme Court, see 17 Vroom 341.</p>

<p>Error to the Supreme Court. For opinion of Supreme Court, see 17 Vroom 76.</p>

The suit was for a malicious prosecution. The declaration set forth, in the usual form, the good character of the plaintiff and that the defendant, intending to injure her in her fame and credit, without any reasonable cause made a charge of peijury against her, and so caused her arrest and imprisonment in the county jail, until she was discharged on account of no indictment having been found against her by the grand jury - that by means of these facts she was greatly…

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

<p>The receiver appointed in proceedings under the act in aid of executions, is not entitled to wages due to the defendant in execution for his personal services.</p>

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

This case was certified by the Circuit Court of the county of Passaic for the advisory opinion of this court.

On demurrer to an information in the nature of quo warranto. Held: ■used and exercised, and yet doth use, intrude into and unlawfully hold, use and exercise the office of member and director •of the board .of chosen freeholders of the county of Hudson, to the great disadvantage of the said relator as a member of said board, and as a citizen and tax-payer of said county, to wit, at Jersey City,…

<p>At the time and place designated for the annual meeting of the board of chosen freeholders of Hudson county, the members assembled. A person who, by virtue of his election as director, had previously been entitled to preside at meetings of the board, but whose office of director was then legally abolished, and who had become ineligible to the office of president, claimed the right still to preside, and assumed the chair. The board acquiesced and proceeded to business, and by ballot chosé the relator to be county collector. Held, that the relator was legally elected.</p>

In debt. Tbe inhabitants of the township of Woodbridge, in the county of Middlesex, a municipal corporation, brought this suit for breach of a bond of which the following is a copy: “ Know all men by these presents, that we, Alfred Hall,, Eber Hall and Edward J. Hall, of the city of Perth Amboy, in the county of Middlesex, and State of New.

<p>The declaration was based upon a contract of insurance made “according to the terms of the constitution, by-laws and conditions” of the defendant association. The plea set up a defence under a by-law of the association. The replication' was that the only by-laws and conditions embraced in the contract were those annexed to the policy, and that the by-law set forth in the plea was not so annexed. On demurrer to the rejoinder — Held, that the replication constituted a departure from the declaration, and .that the defendant was entitled to judgment on the demurrer.</p>

<p>On rule to show cause why a new trial should not be had, certified from the Middlesex Circuit.</p>

The action is in debt. The declaration avers that the defendant, on January 1st, 1869, by its writing obligatory, “denominated Bond No. 84, * * * signed by J. J. and J. L., two of its commissioners appointed for that purpose, and registered in the county clerk’s office, * * * acknowledged itself to owe to the bearer thereof $500 * * * and * * * duly issued and delivered the same to plaintiff in pursuance of authority granted by law * * * in that behalf, and thereby promised…

On demurrer to declaration. The action is in case. The declaration avers that the city of Paterson, under the authority and direction of its charter, maintained a fire department, of which plaintiff was a member, attached to a certain company, which used a steam fire engine; that it was the duty of the city to provide for that engine a brake and to keep it in good order and repair; that by reason of failure on the part of the city to perform this duty, plaintiff, while…

<p>In case. On case certified from Somerset Circuit.</p>

<p>In ejectment. On case certified.</p>

• On rule for a mandamus. At the December Term, 1884, of the Court of Oyer and Terminer of Ocean county, an indictment was presented by the grand jury against Elson K. Rockwell and four others, for the murder of James I. Wainwright. The indictment was traversed and came on for trial at the term of January, 1885. The trial was begun on the 20th of January, and concluded on February 27th, resulting in a verdict of guilty of murder of the second degree as against Rockwell.

On case certified on proceedings for discovery in aid of an execution. Plaintiff recovered judgment in the Supreme Court against the defendant on postea at February Term, 1884, on which execution was duly issued to Middlesex county, and returned satisfied in part only by sale of all of the defendant’s property subject to execution.

<p>1. The provision in the charter of the city of Trenton, that real estate in said city shall be assessed for all purposes without any deduction for any indebtedness whatever, is a local and special law inconsistent with the general tax law (Hev., p. 1157, $ 78,) and so far as inconsistent therewith was abrogated by paragraph 12 of the amended constitution.</p> <p>2. A tax-payer and resident in the city of Trenton, owning real and personal property taxable in said city, is entitled to have debts bona fide due and owing by him to creditors residing in this state deducted from the taxable valuation of his real and personal estate.</p>

<p>1. The curative force of the act of March 23d, 1881, extends to all the-proceedings in making and collecting the assessment.</p> <p>2. In the case of those non-resident in this state no method being prescribed for giving notice of application to increase valuations, no laches can be imputed for failure to do so. In such cases it is incumbent on the prosecutor to show affirmatively that the valuation made by commissioners of appeal is unjust, or.it will be affirmed.</p> <p>3. In the case of resident tax-payers where notice is required, and has not been given, the assessment will be reduced to the valuation made-by the assessor, unless evidence is taken to show its insufficiency, and. application is made under the act of 1881 to increase it.</p>

<p>1. Where an act of the legislature requires the county clerk to pay the fees of his office to the county collector, mandamus will not issue at the suit of a tax-payer to enforce such payment.</p> <p>2. The right of action is vested in the collector, and it is his duty to collect the sum due the county.</p>

<p>1. The act of 1879, p. 337, is special and local, and therefore unconstitutional, so far as it relates to townships. The distinction necessary to. mark a class for legislation must be something in the situation, or circumstances of the places embraced by the legislative enactment, which would render like powers, if granted, inappropriate to and unavailable for other like political districts.</p> <p>2. Under the act of March 15th, 1881, (Pamph. L., p. 118,) it was compe- - .tent to make a contract for the period of ten years, to commence after the lapse of a reasonable time, for the erection of the works necessary-to a water supply.</p> <p>3. To support a township tax for a water supply it is not necessary that every part of the township shall be supplied with water.</p>

<p>1. The concurrence of the board of finance and taxation with the board of public works is required for the making of any improvement, or the doing of any work or procuring any materials, by section 9 of the supplement to the charter of Jersey City of 1874, repealing section 37 of the supplement of 1873.</p> <p>2. A ratification by the board of public works of an order for work done in repairing a public sewer by the street and sewer commissioner, by approval of the bill presented therefor, is not sufficent to bind the city.</p>

<p>On certiorari to review the election of Charles F. Adams-as steward of the almshouse of Camden county.</p>

<p>1. On a contract in writing made by a person in the name and behalf of his infant son, with his knowledge and consent, a suit cannot be maintained against the father on the contract.</p> <p>2. An agent’s liability, where the contract is made in the name of his principal, rests on the implied warranty of his authority to make it, and its breach.</p> <p>3. It is not a breach of the implied warranty of authority to show that the principal is an infant, for the contract of an infant, in a purchase that may be for his benefit, is voidable and not void.</p> <p>4. A party to a contract with an infant cannot disaffirm it, and sue a third person as principal, where the agency is disclosed at the time of making, alleging the infancy of the real principal. Infancy is a personal privilege which can only be set up by himself, or his personal representatives.</p>

<p>1. To constitute a combination a conspiracy, it must be corrupt.</p> <p>2. An indictment against members of a board of chosen freeholders for combining to vote a sum of money out of the county funds to a third person, hut which did not charge that the confederation was corrupt, or that the third person was, to the knowledge of the defendants, dis-entitled to the money, is bad.</p>

On certiorari bringing up a dismissal of a cause in - the Court of Common Pleas of Middlesex county, upon appeal from the judgment of a justice of the peace.

<p>1. A vendor of a horse, sold by his agent authorized merely to sell for a fixed sum, is not responsible for a breach of a warranty made by such agent.</p> <p>'2. An innocent vendor is not liable in an action for deceit brought for the fraudulent representation of his agent.</p> <p>■'3. Although the principal may have knowledge of defects in the horse, he is not bound to disclose them, and is an innocent vendor unless he authorized the agent to make misrepresentations or use some artifice to conceal defects.</p>

On oeHioray'i. This writ brings up an assessment against the prosecutors for taxes upon their property in Egg Harbor township.

<p>When the declaration is for breach of covenant, and the plaintiff avers due performance on the part of the plaintiff, and the defendant pleaded that the performance of the work was a condition precedent to plaintiffs’ right to payment and non-performance by plaintiffs of said work, a replication averring that plaintiffs tendered themselves ready and willing to perform, is a departure from the declaration.</p>

This writ of certiorari brings up a resolution of the common council declaring vacant the offices of the chief of police and patrolmen in the city of New Brunswick, and the resolution appointing another chief of police and other policemen in the places declared vacant.

<p>1. Where the tribunal acting in the eomdemnation of lands for public use is special, everything necessary to give validity to its action must appear in the report of the proceedings.</p> <p>'2. The charter of the city of Trenton directs the common council to designate a time and place for the meeting of the board of assessors, for the purpose of viewing the lands and to make an assessment of damages and benefits. Held, that what notice was given, and what manner of publication was adopted, must appear by the report.</p> <p>3. The direction in the charter that the report of the board of assessors be completed and filed with the city olerk within a limited time is mandatory, and the board is bound to make the assessment and return it within the statutory period.</p>

<p>1. By virtue of an execution or attachment against a mortgagor, his right, title and interest in mortgaged chattels in possession of the mortgagee may be levied upon, but they cannot be taken by the officer from the possession of the mortgagee without an offer to pay the mortgage debt.</p> <p>2. Under such levy the officer may advertise the interest of the mortgagor for sale, and on the day of sale he may require the mortgagee to expose the property to the view of bidders, and enforce obedience to that dirty on the part of the mortgagee by virtue of bis writ.</p> <p>3. If a sheriff with notice of the mortgagee’s claim attaches the entire mortgaged property, and not the interest alone of the mortgagor, and takes it from the possession of the mortgagee, and it is subsequently sold by the auditor in attachment, the sheriff is liable to the mortgagee for the mortgage debt.</p>

<p>1. A corporation formed under the supplement of the general railroad' act, approved March 12th, 1879 (Pamph. L., p. 166,) acquires, on. condemning a right of way for an underground railroad, not the fee simple of lands, but an easement only.</p> <p>2. - Such a corporation cannot condemn the mere privilege of maintaining. a railroad only until the land-owner shall choose to make an inconsistent use of the site of the road-bed.</p> <p>3. Such a corporation cannot, by eminent domain, compel an owner of the fee simple of land to yield to it a right to construct and- operate a railroad on the happening of a future, contingent event.</p> <p>4. The rights, which such a corporation is authorized to acquire by condemnation are present rights, and whatever may be necessary to make-present rights perpetual.</p>

<p>Error from the Supreme Court.</p>

The writ of error brings up a judgment of the Hudson Circuit, in an action on a covenant against encumbrances contained in a conveyance of lands in the city of Bayonne, dated September 26th, 1872. The cause was tried without a jury and upon facts agreed on. The following thus appeared: A.t the date of the conveyance an assessment for the expense of opening a street, which had been laid on the lands- and was confirmed September 28th, 1871, remained unpaid.

<p>1. In the trial of an indictment for selling numbers in a lottery scheme it was not error to admit in evidence a book called a dream-book and a chequered paper with numbers upon it, both having been found on the premises where the numbers were sold and both being identified as being used in the policy business.</p> <p>'2. It was not error to refuse to charge upon such trial that there could be no conviction unless defendant expressly promised to pay or insure to the purchaser some money or thing in the event of the number being successful; such a promise might be inferable from the general character of the business in which the numbers were purchased.</p> <p>-8. A refusal to compel the state to elect between two or more transactions referable to a count on which there is an acquittal, presents no error injurious to the defendant.</p> <p>4. The state cannot offer testimony to prove that the defendant committed an offence not charged, for the purpose of showing that he would be likely to commit the offence charged ; but the objection to such testimony must be promptly interposed.</p>

On error to the Supreme Court. James Ward brought his action against the Orange and Newark Horse Car Eailroad Company in the Supreme Court, to recover damages for injuries sustained by him by reason of being thrown from and out of his wagon by one of the cars of said company, while driving along Market street, near Ailing street, in the city of Newark, and at a point where several tracks and switches are laid down.

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