Volume 48 — New Jersey Law Reports

Writs of certiorari were taken on behalf of the Central Railroad Company of New Jersey and thirty-three other railroad corporations, and designed to correct and set aside the assessments and valuations made by the state board of assessors of the property of the said railroads, under the provisions of the act of the legislature entitled “ An act for the taxing of railroads and canal property,” approved April 10th, 1884. The several cases were by consent argued together.

The action was founded on the following sealed bill: “ $407.17.

<p>1. Under section 31 of the act incorporating the chosen freeholders of the several counties (Rev., p. 132), the board may appoint such officers for the government of the poor-house as the public need requires, continue them at their will, appoint them for such time as they see fit, and abolish the office or change the incumbent at their pleasure.</p> <p>2. Where the offence of intrusion in office is of a public character, and where costs are not, under the circumstances, sufficient and adequate punishment of the offender, such fine should be imposed as will fill the just measure of punishment, and, as well, tend to repress the commission of such wrong.</p>

This was an action of ejectment for lands in Hoboken. Plaintiff claimed under Bernard Colgan, who purchased the lands in 1829, and died seized of them in 1835. He left Ann Colgan, his widow, but no issue. He left three brothers and one sister, all aliens.

<p>Error to the Essex Sessions.</p>

<p>1. By contemporaneous conveyances of lots on an alley, by descriptions bounding thereon, with a right of way over the alley in common with the other owners, the title passes, unless there are express words of exclusion, to the centre line of the alley, subject to the private way; and for an injury to the soil and things affixed thereto an action of trespass will lie by an owner in possession of the adjoining lot.</p> <p>2. For injury occasioned by the interruption of the easement of way, damages are to be awarded for the inconvenience thence arising up to the commencement of the suit; for injury by digging and removing soil, <6c., (though subject to a right of way,) the damages are to be measured by compensation for the diminished value of the property, viewed in its existing relations to the alley.</p> <p>3. Each owner of such common private way over an alley is entitled to its unobstructed use for its full width, and to remove therefrom anything interfering with such use; each owner of the soil is entitled to the advantages and subject to the disadvantages of its original surface, except that such surface may be reasonably adapted to use for the way created ; and the erection of improvements adapted to the original or any altered surface of the way will not change the rights of the respective owners unless by their acts they have estopped themselves from asserting such rights.</p>

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

<p>Error from Monmouth Pleas.</p>

<p>A plea setting up a by-law of an insurance company, to the effect that if the president of the company should cause notice in writing given to the insured that the company declines an arbitration, or to pay loss without suit, the insured must bring suit within six months, or be barred, is bad, unless it alleges that such by-law was adopted before the contract of insurance was made.</p>

The relator, an attorney and counselor-at-law, practicing his profession in the city of Hew York, resides at East Orange, in this state, tie testified that he is permanently residing at that place, having resided there since August, 1884, occupying a rented house, the present lease of.which expires May 1st, 1886. East Orange is on the line of the Delaware, Lackawanna and Western Railroad, the only railroad between East Orange and Hew York city.

On certiorari. This writ brings up an ordinance for the improvement of Adams- street, from the northerly line of Third street to the northerly line of Seventh street, passed September 15th, 1885. This ordinance provides for the grading of the street, between the limits mentioned, to the highest established grade, the resetting of the curbs and relaying of the flagging. The lands adjacent to said street and in that locality were part of the estate of John G. Coster, deceased.

<p>1. A defendant in a justice’s court, in an action of debt upon contract) begun by a warrant on the ground that the debt was fraudulently contracted by means of false and fraudulent representations with respect to the defendant’s property and circumstances, may apply to the justice to set aside the warrant for the insufficiency of the affidavits on which the order of arrest was made, and for a wrongful refusal of such an application may have remedy by appeal. But he cannot offer evidence to show that he made no such representations, and that he was perfectly responsible for all debts he might incur. Oole v. Oliver, 14 Yroorn 182; S. G., 15 Id. 212, distinguished.</p> <p>'% Parol evidence that a note payable in three months was given upon an agreement that it should be renewed when it became due, is incompetent within the rule- that oral testimony cannot be received to vary the terms of a contract in writing.</p>

Ou rule to show cause why a mandamus should not issue to compel the defendants to pay the bill of the relator, the official stenographer of Ocean county, incurred in the trial of' State v. Rockwell, in the Oyer and Terminer of that county.

<p>1. A plea in abatement cannot be joined with a plea in bar to the same demand.</p> <p>2. The pendency of a suit by the same plaintiff against the same defendant, for the same cause of action, in another state, cannot be pleaded in abatement to a suit instituted here. The remedy of the defendant is to apply to the court here to stay the suit, or to refuse final judgment until the suit in the foreign jurisdiction is discontinued.</p>

<p>1. Notice of application for the appointment of surveyors of the highways to alter a public road must show in what township the road proposed to be altered lies.</p> <p>2. The act of March 27th, 1874, (Rev., p. 1019,) as amended by the act of March 4th, 1880, (Pamph. L, p. 110,) does not authorize a change in the width of a public road.</p>

<p>The Circuit Court, after affirmance of its judgment in the Court of Errors, and after the record has been remitted in the usual form, has the power to stay execution of the judgment, and to hold it for the purpose of setting it off against a counter judgment. The mandate from the higher court does not affect the power of the Circuit Court to control the judgment for the equitable purpose of set-off.</p>

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

<p>On certiorari.</p>

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

<p>The fourteenth section of “ An act providing for additional powers and certain changes in the government of certain localities governed by commissioners,” passed April 17th, 1884, is unconstitutional as a special or local law regulating the internal affairs of towns.</p>

<p>1. When the plaintiff in an action before a District Court, involving more than 5200, applies for a certiorari to review a judgment of nonsuit rendered therein, it is not necessary for him to tender a bond.</p> <p>2. A plaintiff, employed to work in defendant’s glass-factory, from September to July, testified that he went to work in September and worked until December 22d, and was then discharged and ordered not to come around the factory; that the gates were all locked up the next day, and another man was put in his place, so that he could not get in. He was not cross-examined. Held, that the evidence should have been submitted to the jury on the questions whether the plaintiff was discharged by competent authority, and whether he was willing to continue in defendant’s employ, and that a nonsuit for want of evidence on these points was erroneous.</p>

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

This writ of certiorari and fifteen others are prosecuted to-set aside assessments upon t-he lands of the prosecutors for the repaving of Broad street from Central avenue to the canal bridge, and from Market street to William street, in the city of Newark. The prosecutors have assigned for reversal the following-reasons : First.

<p>Tbe common council of the city of Beverly has no authority to proceed, with the acquisition of water-works, under the ‘‘ Act to enable cities to supply the inhabitants thereof with pure and wholes'me water,” approved April 21st, 1876, (Rev., p. 720,) until the voters of the city (besides assenting to said act,; have also directed the sum to be raised, by loan or by tax, for defraying the expense of supplying the city with water, pursuant to the twelfth section of the city charter.</p>

<p>The court cannot, on certiorari, determine disputes as to the value of ratables, for the purpose of increasing the tax levied thereon.</p>

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

<p>On motion to strike out plea.</p>

<p>On certiorari to set aside licenses to keep inns and taverns in Atlantic City.</p>

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

On certiorari. This cause was heard upon the following statement of facts agreed upon by the respective attorneys: First.

James S. Davenport, Edward L. Voorhees, William S. Johnson and James B. Davenport entered into partnership under the firm name of Davenport, Johnson & Co., by articles of copartnership dated November 1st, 1880. The articles provided that the copartnership should commence November 1st, 1880, and continue for the term of three years.

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

<p>1. The act “ for the taxation of railroad and canal property,” approved • April 10th, 1884, is not in contravention of the provision of the constitution that property shall be assessed for taxes under general laws, and by uniform rules, according to its true value.</p> <p>2. The constitutional provision does not take away from the legislature the power of selecting the subjects of taxation; but it requires that all the members of the class selected shall be included in the taxing law, and that the rule applied thereto shall be uniform as to the whole of the class, and that the assessment shall be made at the true value of</p> <p>, the property constituting the class; and if those requirements are answered by the law, it is not in conflict with the constitutional provision.</p> <p>3. The constitutionality of a law which taxes a class of property separately is to be determined in the same way in which it would be determined if the property taxed were the only property taxed in the state.</p> <p>4. The doctrine laid down in Van Hiper v. Parsons, 11 Vroom 123, that a law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, which, having regard to the purposes of legislation, are distinguished by characteristics sufBciently marked and important to make them a class by themselves, is not a special or local law, but a general law, approved.</p> <p>5. Railroad and canal property has such characteristics, and therefore may be made the subject of separate legislation for the purpose of taxation.</p> <p>6. Being peculiar property, the method of valuing it must be peculiar. The machinery provided for the purpose by the act—a state board of assessors—is appropriate and such as is necessary.</p> <p>7. All taxes, whether levied for state, county or municipal purposes, are state taxes; they can be imposed by no other authority than that of the state, and the state appropriates the proceeds to whatever purposes it sees fit.</p> <p>8. If the legislative provision for taxation be not unconstitutional, the apportionment of the proceeds of the taxation cannot make it so.</p> <p>9. Under the act above mentioned, the taxes imposed are one tax, and the fact that under the act railroad and canal property pays less than its share of municipal or county tax as compared with other property, is no objection to the law.</p> <p>10. The act is not in contravention of the fourteenth amendment to the federal constitution.</p> <p>11. Corporate franchises are property, and are taxable as such.</p>

<p>1. Under the act establishing District Courts in the city of Newark, a. service of a summons issued out of the said courts cannot be made on a nonresident outside of the limits of said city.</p> <p>2. The supplement of 1884 (Pamph. L., p. 169,) to the act of 1877, establishing District Courts in certain cities of this state, whereby the jurisdiction was increased so as to be co-extensive with the limits of the-county in which the city is located, does not apply to District Courts of the city of Newark.</p>

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

<p>1. The property of a corporation which is a judgment debtor cannot be reached under supplementary proceedings taken under the “ act respecting executions.” Rev., p. 393.</p> <p>2. The language of the Execution act clearly indicates that the legislature intended to provide means for compelling satisfaction of judgments against natural persons, and that claims against corporations were not within its contemplation.</p>

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

<p>Error to the Supreme Court. For opinion of Supreme Court, see 17 Vroom 126.</p>

<p>In an action of trespass quare clausum fregit, defendants pleaded title in one S., and entry, ,&c., by them as his servants and by his command. Plaintiffs claimed that they had had a deed for the land in question from said S., but had lost it. They claimed, also, twenty years’ adverse possession. The evidence of title under the lost deed consisted of the statement, made in a subsequent deed from S. to one Riegle, that one of the lines thereby conveyed ran along land of the plaintiffs. The defendants insisted that that boundary was only partially along the land conveyed by the lost deed, and that it was intended merely as descriptive of the northerly line of the land conveyed to R. Held, that that statement in the deed to R., standing alone, was too indefinite to control the title to the land in dispute; that it by no means indicated that the whole of the line ran along those lands.</p>

<p>Error to the Supreme Court. For opinion of Supreme Court, see 17 Vroom 300.</p>

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

<p>Error to the Supreme Court. For opinion of the Supreme Court see 18 Vroom 251.</p>

<p>Error to the Supreme Court. For opinion of Supreme Court see 18 Vroom 101.</p>

<p>On quo warranto. On demurrer to pleas.</p>

<p>A contract was entered into by the city council of Atlantic City, by ordinance, with the plaintiff, for a supply of water, calling for certain annual payments, without limit as to time, except that the city might take the water works at a valuation. Held, such contract was legal and binding on the city.</p>

<p>1. In a criminal case the record need not show that a copy of the indictment and a list of jurors was served on the defendant as required by the statute. If the defendant proceeded to trial without objection on this account, the presumption against him is conclusive that copies were duly served.</p> <p>■2. It is not a ground of exception that some of the general panel of jurors failed to answer to their names when the case was moved for trial. The statute requires that the forty-eight jurors shall be summoned for service, and that a list of them shall be served on the defendant. It does not require that all the jurors shall be present when the case is moved.</p> <p>3. The court has power to excuse jurors for good cause.</p> <p>4. It is within the discretion of the court to determine the order in which the right to challenge shall he exercised by the state or by the defendant, and no exception lies to the exercise of that discretion.</p> <p>5. It was not error in the trial court to order the sheriff to have present in court, on a future day, the requisite number of qualified jurors to serve as talesmen.</p> <p>6. It is not necessary to select talesmen from those actually present in or about the court-room. The officer may go out into the county and summon them.</p> <p>7. There was no error in ordering the tales, when three of the original panel of jurors had not appeared and answered to the call of their names.</p> <p>8. A defendant is entitled to two days’ service of the tales. The proper practice is, unless service is waived in open court, to adjourn the cause for the purpose of making service.</p> <p>9. The tales having been duly served in this case, it was not a legal ground of exception that three of the talesmen did not answer to their names when the trial proceeded.</p> <p>10. It is not a ground of exception that one of the talesmen is exempt from jury duty. That which exempts, but does not disqualify, is no cause for challenge.</p> <p>11. The general panel of jurors for the term must be drawn in the presence of the Court of Common Pleas. In Monmouth county the presence of three judges is necessary to constitute the Court of Common Pleas.</p> <p>12. The judge of the court having, under our statute, the duty to try challenges, his finding upon questions of fact involved in a challenge is conclusive. His decision is reviewable only when he makes a mistake in principle in determining whether a challenge shall prevail.</p> <p>13. The fact that a juror had served in another case of the state against the same defendant, at the same term, and that he had formed an opinion in that case, is not sufficient to sustain a challenge by the state.</p>

<p>Fisher, the plaintiff, and Hill, as trustees of the estate of Ira C. Voorhees, held nine railroad coupon bonds, which were deposited by them, for safe keeping, in the defendant bank.</p> <p>Hill was also cashier of the bank. Without the knowledge of the-president or any director of the bank, Hill took from the bank a sum of money, for whidi he put in the bank his own note, which he-kept in his custody as cashier.</p> <p>The transaction did not appear on the books of the bank. The note purported to pledge, as security for its payment, nine bonds of the-description of those deposited by the trustees.</p> <p>After Hill’s death the note was found by the officers of the bank, but the bonds did not accompany it. They were found in a separate envelope, endorsed “ C. S. Hill,” with the name “ Ira C. Voorhees ” written on the bonds in his own hand.</p> <p>It did not appear that the president of the bank, or either of the directors had ever seen or had any knowledge of the note or bonds in Hill’s lifetime. Held, that the plaintiff was entitled to recover the bonds from the bank in the absence of proof to establish an acLual delivery of the bonds by Hill to the bank. The case distinguished from First National Bank v. Christopher, 11 Vroom 435.</p>

<p>1. Where the mayor of a city successfully resisted a proceeding taken in the name of the city against him to compel him to a course of official action which he deemed violative of law and detrimental to the interests of the city, and the • performance of that duty involved the disbursement of money out of pocket, he must be reimbursed, and the proper and only fund out of which it may be done is that of the city in whose behalf, as its officer, and for whose benefit, he acted.</p> <p>2. When the charter of a municipal corporation or a general law of the slate does not provide to the contrary, a majority'of the board of aldermen constitute a quorum, and the vote of a majority of those</p> <p>present, there being a quorum, is all that is requisite for the adoption or passage of a motion or the doing of any other act the board has power to do.</p>

<p>1. A corporation, being a collection of individuals, acting through its officers and agents, who are admitted to testify in cases where the corporation is a party, cannot be said to be under legal disability, and the opposing party in a suit can be examined as a witness.</p> <p>2. A written statement made by the conductor of a car, in the line of his duty, giving details of the accident, immediately after it happened, is not admissible in evidence, but the facts must be proved by the conductor or others who witnessed the occurrence.</p> <p>3. If the conductor be sworn he may use the written statement to refresh his memory.</p>

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

<p>On certiorari to bring up taxes assessed ón the real and personal estate of the prosecutor, and also the poll tax.</p>

On certiorari to Mercer Common Pleas. On May 1st, 1884, one Samuel N. Schwartz, of Hightstown, Mercer county, New Jersey, went to Philadelphia,. Pennsylvania, and there, in the office of the prosecutors, executed the following instrument: “ May 1st, 1884. ‘ Marvin Safe Company: ' “ Please send, as per mark given below, one second-hand safe, for which the undersigned agrees to pay the sum of eighty-four dollars ($84), seven dollars cash, and balance seven dollars per month.

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

On certiorari to review the taxes levied against the prosecutors in the year 1885 for the use of the Long Branch Commission.

<p>On certiorari to review proceedings under an order for discovery in aid of execution.</p>

<p>On certiorari to review proceedings of the board of public works of Jersey City.</p>

<p>1. Chattels in the possession of a mortgagor may be attached for his debts.</p> <p>2. Chattels in the possession of a mortgagor, who, according to the terms of the mortgage, is entitled to possession until default be made in payment of the mortgage debt, do not, before default, belong to the mortgagee, within the meaning of section 60 of the act for trial of small-causes. Rev., p. 550.</p>

<p>On certiorari to review a judgment of the Essex Common Pleas affirming a judgment of the Newark District Court.</p>

<p>In proceedings for the removal of officers and employees in police departments of cities, under the act of March 25th, 1885, the same formalities are not requisite as have been prescribed for inferior criminal prosecutions. It is sufficient if the directions of the statute are substantially observed,</p>

'On certiorari. The writ in this case brings up for review certain taxes ■called “ sewer taxes,” assessed upon the lands of the prosecutors, in the city of Paterson, in and for the year 1885. These taxes were assessed under, in pursuance of and according to the cine hundred and thirty-first section of the present charter of said city, passed in 1871, as amended in 1874. Pcmph. L. 1871, p. 860; Pcmph. L. 1874, p. 467.

<p>In debt. On rule to show cause why a judgment of non pros, should not be set aside.</p>

On certiorari to the board of excise of the city of Trenton,, bringing up the proceedings of said board in the matter of the application of James V. Crawford, to sell strong, spirituous and malt liquors.

<p>On motion for mandamus to pay part of taxes collected for roads in Matawan township to the relators.</p>

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

<p>Certiorari to remove an assessment for taxes.</p>

<p>On eertiorari to review an ordinance of the board of health of the city of Newark.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 18 Vroom 479.</p>

<p>1. The general rule of evidence is that the existence and legal force of a written instrument forming the basis of the issue cannot be proved without its production or its absence being accounted for by the admissions of the defendant, being the party who executed such instrument.</p> <p>2. But, held, as an exception to such rule, that the admission of a party insured, contained in the proof of loss which was required to be furnished to the company, under oath, and to set forth the policies existing on the premises, was admissible to prove the existence of such policies.</p> <p>5. Where a condition of insurance was that if the property should be re-insured, a written sanction thereof should be obtained from the company within ten days, a complete defence was not established by showing the mere fact of the existence of an unauthorized re-insurance, without proving that the same had been in existence at least ten days before the fire.</p>

On error to the Hudson Circuit Court. The Fifth Ward Savings Bank brought an action against the First National Bank of Jersey City, in trover, for the conversion of twenty-five bonds, as follows : 10 Jersey City Improvement 7 per cent, bonds, $1000 each, ..... $10,000 13 Bayonne City 5 per cent, bonds, $1000 each, 13,000 1 “ “7 “ bond, $1000 . 1,000 1 “ “6 “ “ $500 . 500 These bonds were issued by the municipalities named, in virtue of legislative authority.

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

The action below was in ejectment, and was brought by the defendants in error (the plaintiffs below) to obtain possession of a strip of land claimed by them to be a part of a public street or road in the borough of Woodstown, which strip the plaintiff in error (the defendant below) in 1865 enclosed, and has since occupied, to the exclusion of the public.

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

<p>1. In the'absence of a statutory provision making shareholders liable in case of failure to comply with the requirements of a charter, or with the requirements of the act under which a company is incorporated, persons who have contracted with a de facto corporation as a corporation, cannot deny its existence in order to charge its stockholders individually as partners.</p> <p>2. The corporate existence of a corporation de facto cannot be inquired into collaterally; as to all who contract with it, it is to be assumed to be a corporation de jure. The legality of its corporate existence may be inquired into by the state, but not by any one else, and this is as true where the corporation is formed under a general law as it is where formed under a special charter.</p>

<p>A passenger drove his horse, attached to a wagon, into the passage-way fi-om the street to a ferry, and stopped, and, leaving the horse standing unattended and untied, went ten or twelve feet away. While he was absent the horse became startled at a noise, and ran down the bridge into the river, and was drowned. A chain which was habitually stretched across the bridge when no boat was in the slip, as a guard, at the distance of about twenty-six feet from the place where the horse stood, was not up. Held, that the passenger was guilty of negligence contributing to the injury, and therefore could not recover.</p>

<p>1. Actual occupancy by - residence, cultivation or enclosure, or the erection of permanent improvements, is not required in order to establish title by adverse possession, and whether, in any case, title has been acquired by length of possession, and to what extent and within what limits, must be determined by the actual facts.</p> <p>2. It is not error for the judge to call the jury from their room, and give them further instructions in the absence of the plaintiffs and their counsel. In contemplation of law, the parties and their counsel remain in court until a verdict has been rendered, or' the jury discharged from rendering one.</p> <p>3. Where, in an action of trespass qu. cl.fr., the defendant pleaded the general issue and liberum tenementum, and the jury found a verdict of not guilty. Held, that the finding was virtually a finding in favor of the defendant upon the special plea.</p> <p>4. If a verdict is faulty in matter of form only—not in substance—the technical defect is no ground for reversing the judgment. The verdict may be amended, if necessary.</p>

<p>Counsel fees can be recovered by action where an agreement has been made to pay a specific sum for services as counsel. Hopper v. Imdlum, 12 Vroom 182, approved.</p>

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

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

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

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