Volume 49 — New Jersey Law Reports

On certiorari to review the assessment made by the state board of assessors. The facts appear in the opinion of the court.

On error to Quarter Sessions of Middlesex. The indictment charged a justice of the peace with having obtained money of one Margaret McCarten by falsely pretending that “three several.complaints, in writing, under oath, had been filed before him, charging her with having sold to sundry persons intoxicating drinks, she having no license; such complaints being the commencement of prosecutions to recover certain penalties denounced by the city ordinances; and that the said…

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

<p>The agent of the owner renting a house, knowingly, for the purpose of a brothel may be indicted as the keeper of such house.</p>

<p>1. When a statute, in defining a crime, refers by name to another well-known crime, and makes such named crime a constituent of the defined crime, in an indictment for the latter, it is not sufficient to use the mere statutory language, but the particulars constituting the named crime must be shown.</p> <p>2. In an indictment for murder, when the fact that the killing was in the commission of a rape is relied on to make such killing murder in the-first degree, a count in the general form authorized by the forty-fifth section of the Criminal Procedure act is sufficient.</p> <p>3. A verdict in a capital case will not be set aside unless the irregularities-committed by the jury he of a nature to raise a suspicion that they may have prejudiced the prisoner.</p>

<p>That portion of the forty-fifth section of the General Road act which authorizes the overseer to enter upon private property and cut and make a drain, is void as being inconsistent with the constitutional provision that declares that private property cannot be taken for public purposes without compensation.</p>

<p>On case certified from Bergen Circuit on the following statement of facts:</p> <p>“ This action is brought by Zimmerman, collector of Lodi township, against Mathe, late collector of the same township, to recover the balance of school funds in the defendant’s hands, which he had failed to pay over to the plaintiff as his successor in office, pursuant to the order of the township committee of that township.</p> <p>“The defendant was elected township collector of Lodi in March, 1873, and thereafter annually until and including March, 1883. The plaintiff was elected as his successor in March, 1884.</p> <p>“ Eor some cause, which does not appear to be chargeable to the defendant, the school moneys for the respective districts paid to him by his predecessor and otherwise received by him from school appropriations made before September 1st, 1873, were not sufficient to meet the orders issued by the respective district clerks, for school expenses incurred prior to September 1st, 1873, and therefore he paid some of those orders out of school moneys appropriated tfo the respective districts for the year from September 1st, 18.73, to August 31-st, 1874. Consequently, the district appropriations of that year were inadequate to meet the district orders issued for the school expenses of that year, and the defendant supplied the deficiency out of the district appropriations of the next year. A similar course was pursued by him throughout his incumbency.</p> <p>“ The orders issued sometimes showed in what school year the debts for which they were given were contracted, and sometimes did not, but in no case did they expressly direct that payment should be made out of the appropriations for any particular year.</p> <p>“ The plaintiff insists that in order to ascertain the balance of school moneys payable to him by the defendant, the defendant can charge against the school appropriations of each district for each year only such orders as were issued for debts incurred in that year. The defendant insists that he can charge against the sum of all the school moneys received by him for each district the sum of all the school orders of that district paid by him, without distributing the same among the several years.</p> <p>“ The Circuit Court of Bergen county desires the advisory opinion of the Supreme Court, as to Avhich of these principles should govern the accounting, and as to any other matter which may seem to the Supreme-Court necessary for the ascertainment of the balance due.”</p>

<p>3. In an action by the pledgee for the debt for which the pledge was made, the defendant may set up a wrongful conversion of the pledge by way of a defence and be allowed the value of the pledge as payment of the debt pro tanto.</p> <p>2. Stock of a mining corporation was pledged as collateral security for a loan. The company, by legislative authority, afterwards reduced its capital and proportionately reduced the nominal value of the shares of its capital stock. Held, that the surrender by the pledgee of the original certificate of stock and the acceptance of a new certificate for the same number of shares was not a wrongful conversion.</p>

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

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

<p>1. Whether an act is illegal, and what constitutes a disorderly house, is a question of law to be settled by the court, but it must be left to the jury to find, as a question of fact, whether satisfactory evidence is produced to show that the defendant is guilty of habitually permitting such acts upon his premises as are declared to be illegal.</p> <p>2. Playing cards for beer to be purchased and paid for by the loser, is gaming.</p>

<p>Demurrer to narr.</p>

<p>On certiorari.</p>

<p>On error.to the Burlington Circuit Court. The facts fully ■appear in the opinion.</p>

In ejectment. On rule to show cause. The cause was tried before Judge Reed, at Hudson Circuit, without a jury. The following facts were found by the trial judge: This is an action of ejectment, brought to recover a strip of land six and thirty hundredths feet in width, now in the possession of the defendants. The parties to this action own adjoining lots, and the question involves the location of the correct line of boundary between them.

<p>On information in nature of quo warranto.</p>

On error to the Hudson Quarter Sessions. The plaintiffs in error were convicted at the Hudson county Quarter Sessions upon the following indictment: “ The grand inquest of the State of New Jersey, in and for the body of the county of Hudson, upon their respective oaths, present: “ That William H. Garrett, late of the township of Kearny, in the said county of Hudson, on the first day of January, in the year of our Lord one thousand eight hundred and eighty-four, and on divers…

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The prosecutor was licensed as a cartman in the city of Plainfield, where he resided. At his stand there he was hired to go into the borough of North Plainfield for two loads of furniture, to be carted from the borough into the city. For fulfilling this contract without paying a revenue tax to and oblaining a license from the borough, he was fined under a borough ordinance. Held, that he had not become subject to taxation in the borough, under the provisions of the act respecting licenses, approved May 2d, 1885 (Pamph. L. 1885, p. 317), and that the fine was illegal.</p>

<p>Foreign administrators are not liable to be sued in their representative character in the courts of this state.</p>

<p>1. The superior courts of this state, modeled after the English courts of common law, have authority to punish summarily for any words uttered by speech, by writing or by printing, outside of the regular course of litigation, whicli are designed to bring contempt upon the courts in the exercise of their judicial functions, or to pervert in a pending cause the due administration of justice</p> <p>2. The jurisdictional facts necessary to legalize a conviction for contempt in the superior courts of law are, first, that matters constituting a contempt should appear to the court to be true; secondly, that the party charged with contempt should have a fair opportunity to confess or deny those matters; thirdly, that he should confess their truth. Outside of these facts, the steps to be taken are matters of practice only, and although a regular course of procedure has been established, yet strict conformity to it may be waived by the person accused.</p> <p><5. A conviction for contempt may be sustained, although there was no affidavit preliminary to the rule to show cause, no writ of attachment was issued, and no interrogatories were presented.</p> <p>4. On appeal from a conviction for contempt under the statute of 1884, page 219, this court will not consider the general policy of punishing such contempts as that of which the appellant is guilty. If, according, to the law and the facts, the judgment appealed from is lawful and just, it will be affirmed.</p>

On certiorari to Passaic Common Pleas. William Cahill brought an action in the Paterson District Court to recover the sum of $32.40, the balance of an order' for $174.40 given to him by John Ackerman, a road overseer in the township of Wayne.

<p>On certiorari bringing up an assessment for taxes against the prosecutor and the proceedings thereon.</p>

<p>1. The transfer of an employee in the Jersey City fire department from his position of engineer to that of stoker, which last position is attended with different duties and decreased pay, is invalid under the act {Pawph. L., 1885, p. 130) regulating the terms of officers and men in fire departments.</p> <p>2. Such employee is protected, although he was appointed without filing an application sworn to and having a physician’s certificate showing his physical condition, according to the requirements of a rule adopted by a preceding board of fire commissioners.</p>

This writ brings up the proceedings concerning the election of a clerk and the removal of Van Alst from his position of clerk to the board of fire commissioners of Jersey City. Van Alst was elected clerk of the board of fire commissioners April 17th, 1880. At a meeting held on April 28th, 1886, the board voted to proceed to ballot for a clerk to fill the position then occupied by the prosecutor, but after a number of ballotings without success the board adjourned.

Kaskel, the defendant, was arrested by the sheriff of Middlesex county, by virtue of a writ of capias ad respondendum. He was admitted to bail by the sheriff on the 14th day of December, 1885. He failed to put in special bail, and on January 2d, 1886, the sheriff was ruled to bring in the body of the defendant, so as to have it before the court on January 18 th, 1886.

<p>On certiorari.</p>

<p>1. If, in the court for the trial of small causes, a party files a legal affidavit of the absence of a material witness out of the state, the justice may postpone the trial to a time not exceeding three months from the return day.</p> <p>2. If, upon filing such affidavit, the justice adjourns to a time less than thirty day from the return day, a second adjournment cannot be legally granted the party, to a time exceeding thirty days from the return day, a further affidavit of the continued absence of the witness not being filed.</p> <p>3. In this case, the justice proceeded with the trial and rendered judgment after he had lost jurisdiction of the cause.</p>

<p>1. On certiorari, the court will not consider evidence as to value of the property assessed for taxation, except by way of appeal from the decision of commissioners of appeal.</p> <p>2. If a party assessed has opportunity to appeal to the board of commissioners and fail to do so, he cannot have relief on certiorari on the question of valuation.</p>

<p>1. A charge against a policeman for incapacity, based on the report of the examining physician, and made by the direction of the commissioners, is for good cause and in proper form, within statutes of May 2d, 1885 (Pamph. L., p. 326), March 25th, 1885 (Pamph. L., p. 163), February 23d, 1886 (Pamph. L., p. 48).'</p> <p>2. A reasonable notice and a fair hearing and investigation, without formality in the procedure, are all that is required.</p> <p>3. The court, on certiorari, will not weigh the evidence. It is sufficient if there is a legal and substantial basis for removal on which the commissioners acted, within their authority.</p> <p>4. Police officers, serving under the appointment and authority of the board of police commissioners, are not in position to question the constitutionality of the act constituting the board, on certiorari.</p>

<p>The change of members of the police force from detectives to patrolmen is not within the terms of the acts restraining the right of removal from office or employment in the police department.</p>

<p>On certiorari.</p>

<p>1. An action to recover damages for causing death by negligence, is not within rule 16 of the Supreme Court, requiring certain actions to be styled, in the process and pleadings, actions of tort.</p> <p>2. The objection may be raised by a general demurrer.</p>

<p>On 'certiorari. In matter of opening an extension of Central avenue.</p>

<p>1. In proceedings to drain lands under the statute, where a married, woman’s land has been sold under foreclosure, and conveyed without change of possession, notice to the owner, and to the husband who occupies the land with his wife under arrangement for reconveyance, is sufficient.</p> <p>2. The prosecutor, having no legal title or exclusive possession of the-land, is not entitled to a writ to question the legality of the proceedings to drain lands.</p> <p>3. Delay and acqui'escence, inducing expenditure of moneys by others, in works of a quasi public nature, waive irregularities.</p>

<p>On certiorari.</p>

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

<p>Where a judgment has been rendered in a justice’s court', in favor of plaintiff, in an action of trespass quare clausum fregit, and it is made to appear that title to- lands came in question before the justice, a certiorari will lie to review the judgment as one rendered without jurisdiction.</p>

<p>1. The decisions of the Supreme Court of the United States with respect to the interpretation and effect of contracts furnish binding rules of construction in cases within the provision of the federal constitution prohibiting the passing of any law by the states impairing the obligation of contracts.</p> <p>2. The legislature may grant to a corporation two classes of rights and franchises, those over which it retains control to modify or withdraw by alteration or repeal, and those which are embodied in a contract» and hence incapable of alteration or repeal; under such circumstances the legislative control by alteration or repeal, is exercisable only upon the charter rights and privileges over which such power is retained.</p> <p>3. In the grant to an existing corporation of additional franchises, there is no new creation of a corporate body. The corporation to which, from time to time, additional franchises are granted, is still the same corporate body — the same legal entity, under one organization and one management, and its franchises are a unit. The legislature may make an additional grant of franchises or take away some of the franchises previously conferred, but the ideal artificial person originally created will remain with increased or diminished powers until it expires by its own limitation, or is extinguished by legislative authority.</p> <p>4. The legislature may grant to a foreign corporation power to exercise its franchises or independent powers in the nature of corporate franchises within the state, without making it a domestic corporation. In such cases the foreign corporation will take, under legislative sanction, those rights only which are within the expressed terms of the grant.</p> <p>5. Immunity from taxation granted to a corporation is a personal privilege, incapable of being transferred to another corporation without express legislative sanction. It is a privilege entirely distinct from the franchises of the corporation, and will not pass by a transfer under legislative authority empowering the corporation to assign and transfer its franchises and property.</p> <p>6. But where the enabling act empowering a corporation to transfer its property and franchises, included its privileges and immunities in the enumeration of the powers granted, immunity from taxation possessed by such a corporation will accompany the property and franchises, and such property and franchises will continue to be held under the immunity from taxation which was possessed by the original corporation, unless a constitutional provision against exemption from taxation has interdicted it, or the contract of exemption has, in the altered condition assumed by the corporation, become impossible of performance.</p> <p>7. By the decision of the United States Supreme Court, in New Jersey v. Yard, 95 U. S. 104, it was established that the supplement to the charter of the Morris and Essex Railroad Company of March 23d, 1865, which enacted that the tax of one-half of one per cent, upon the cost of the company’s road should be in lieu and satisfaction of all other taxation or imposition whatsoever by or under the authority of this state, or any law thereof, created a contract with the company on the subject of taxation. Held—</p> <p>1. That the immunity from other taxation granted by this act applies to the taxation provided for by the act for the taxation of railroad and canal property, approved April 10th, 1884.</p> <p>2. That the contract on the subject of taxation, contained in the act of 1865, is a contract with the company as a corporation, and personal to it in its corporate capacity, and also prospective in its operation, and applicable to taxation, from time to time, as taxes are laid ; that the contract extends to all property owned by the company suitable and proper to carry into execution powers it then possessed, or which it acquired by supplements to its charter subsequently passed; that the cost of works constructed under powers granted after the act of 3865, and of property acquired for that purpose, is included in the estimation of the cost of the road on which the annual tax of one-half of one per cent, is to be assessed, and that such taxation, is in lieu and satisfaction of all other taxation.</p> <p>3. That the operation of the act of 1865 is not controlled or qualified by the fact that the supplements to the company’s charter after that date are repealable.</p> <p>8. The Morris and Essex Railroad Company, by a lease dated December 10th, 1868, demised and leased its railroad and property, and also all and singular the franchises, immunities, rights, powers and privileges which had been or might thereafter be granted to, or conferred upon, or which might be used or exercised by it, to the Delaware, Lackawanna and Western Railroad Company, a foreign corporation, for and during the full term of the continuance of the lessor’s charter. By an act passed February 9th, 1869, the legislature validated and confirmed the lease, and enacted that the Delaware, Lackawanna and Western Railroad Company be authorized and empowered to have, hold, use, enjoy, possess and exercise “ all and singular the property, things., franchises, immunities, rights, powers and privileges” by said lease granted. Held—</p> <p>1. That by force of the lease and the validating act the immunity from taxation, possessed by the Morris and Essex Railroad Company, was conferred upon the Delaware, Lackawanna and Western Railroad Company.</p> <p>2. That immunity from taxation was granted to the latter company, not as a corporation, but as lessee, and with respect to the use, possession and enjoyment of the property, things, franchises, rights and powers “ by said lease and contract leased and demised ” to it, and is therefore limited to such rights and property as it took and holds as lessee, and upon a construction of the lease strietissimi juris.</p> <p>3. That the grant and demise and the validating act apply only to such franchises as the state had conferred, or might thereafter confer, nominatim, upon the Morris and Essex Railroad Company, and with respect to those franchises and the property acquired under them immunity from taxation was granted. But with respect to powers granted to railroad corporations by general laws, property acquired under those acts — not 1 eing property taken and held under the lease — is not within the validating act, and consequently immunity from taxation thereon is not granted by that act.</p> <p>4. That rolling stock, equipment and other property used by the lessee company in operating the railroad, and in its business connected therewith, not taken and held by it under the lease and in the capacity of lessee, is not within the grant of immunity from taxation.</p> <p>'9. The state may alter modes of procedure which do not affect the substantial rights of parties under the contract, and a change in the method of ascertaining the cost of the company’s road, for the purpose of taxation thereon under the act of 1865 would not impair the obligation of the contract. This matter is wholly within legislative discretion.</p>

Action of ejectment. It was held at trial that a docketed judgment was valid which had been docketed on a certified copy of the return of the constable, which was in these words, viz.: “ I return the within execution this 25th day of September, 1872, unsatisfied, no goods or chattels found within my county belonging to the defendant, to make any part of the debt and costs on this execution, except that which is exempt bylaw.” The trial judge sustained the judgment.

<p>The statute entitled “An act to make certain roads, constructed by commissioners under the authority of the legislature, county roads, and to provide for the payment of the expenses of constructing by the county, and for the mode of maintaining and repairing the same” {Pamph. L. 1883, p. 225) — Held to be unconstitutional, as applying to only one county.</p>

<p>1. The supplement to an act entitled “An act relative to the Court of Errors and Appeals ” (Pamph. L. 1885, p. 169), so far as proceedings in the Circuit Courts are concerned, is unconstitutional.</p> <p>.2. The appeal provided by the act in question is in fact a proceeding in error, and no proceeding of the Circuit Court, except a final judgment, can be transferred directly to this court by writ of error.</p>

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

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

<p>1. In an action upon a mechanics’ lien claim, it was not error to permit the lien claim filed in the case, and containing a statement of the particulars of the plaintiff s demand, to go to the jury, when, upon the trial, it was shown to the witness who ordered the goods, and who testified that it was a correct statement of the goods furnished pursuant to his order.</p> <p>2. A mere objection to evidence, specifying no ground of objections, will not sustain an exception.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 18 Vroom 436.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 19 Vroom 101.</p>

Suit on bond, secured by a mortgage, dated May 26th, 1880. The bond, as shown by the declaration, had • been given by the defendant to the Newark Savings Institution, which, being decreed to be insolvent, the Chancellor had appointed the plaintiff receiver. There was a demurrer to the declaration.

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

<p>On conviction for murder. Writ- of error to the Hudson Oyer and Terminer.</p>

<p>1. The rule derived from common law authorities is that in criminal cases the character of the punishment determines the power of the jury to render a privy verdict, or, what is the same thing, a verdict in the absence of the accused. The circumstance that takes away such power is that the case is one involving life or member.</p> <p>2. Assault with intent to commit murder was only a misdemeanor at common law, and retains that character in the statute, and is punishable as at common law by fine and imprisonment.</p> <p>3. In this state, in all criminal cases except capital cases, a verdict taken w ithont the presence of the accused is not irregular.</p> <p>4. The jury, after it retired to consider its verdict, returned into court and made request for further instructions on a point material to the case. The court thereupon informed the jury that the court had already charged fully on that subject, and declined to charge further. The charge did not appear in the case, nor were there any exceptions, to it on the record. Held, that the refusal of further instructions was not erroneous.</p>

The plaintiff in error was convicted upon an indictment for willfully and wantonly sending and conveying to one Henrietta Conover, a female, an insulting, indecent, disgusting, offensive and annoying letter and communication, against her will and consent. The indictment was found under a statute approved March 29th, 1878, entitled “An act to suppress the sending of indecent communications.” Pamph. L. 1878, p. 211.

<p>On case certified from the Passaic Oyer and Terminer.</p>

On rule to show cause why a new trial should not be granted. Stephen B. Tiodd died intestate, January 25th, 1883, leaving the defendants, his brothers and sisters surviving him, his heirs-at-law.

The plaintiff is the owner of a lot of land on the northwest corner of First and Grand streets, in the city of Hoboken, on which he has erected three buildings, in conformity with the grade of First street established by ordinance of the mayor and common council of Hoboken, passed January 5th, 1866. December 4th, 1883, a further ordinance was passed raising the grade of First street two and a half feet higher than the former grade, and in front of the plaintiff’s buildings.

On rule to show cause. An opinion was delivered at November Term, 1886, giving reasons for refusing a new trial. At the term last above stated the opinion was filed; but subsequently, during the same term, on motion of counsel of plaintiff, on allegation of mistake of fact by the court, a re-argument was ordered and the opinion withdrawn from the files of the clerk. The re-argument was heard at the February Term, 1887.

On certiorari to Monmouth Common Pleas. The plaintiffs made a lease to defendant of certain premises for the term of one year. The lease contained a covenant that the tenant, on the expiration of the said lease, would deliver up the possession of said premises to the lessors or their legal .representatives in as good repair as the same were at the commencement of the lease, reasonable wear and tear and damages by fire, war and trespass only excepted..

This is a motion to double the damages found against a landlord, at the suit of a tenant, for distraining and selling plaintiff’s goods when no rent was due.

This writ brings up an ordinance to repeal an ordinance entitled “An ordinance to authorize the Hudson Telephone Company to erect posts or poles in certain streets of Jersey City.”

On certiorari. This writ brings up for review the action of the council of' the city of Bayonne in passing the following resolutions: “Resolved, That the mayor and city clerk be and they are-hereby authorized to make and issue $9000 of city of Bayonne bonds, dated July 1st, 1886, to run twenty years, bearing interest at five per cent.; and be it further “Resolved, That the city treasurer, under the direction of the-mayor and president of the council, be and is hereby…

This writ brings up certain assessments made against the property of the prosecutors, in the course of a proceeding taken to open that part of Twenty-seventh street, in the city of Bayonne, between the line -of Avenue E and the line of Avenue J, except where already opened.

<p>On certiorari.</p>

<p>On certiorari, bringing up a tax upon the property of the prosecutor, in Summit township, for the year 1885.</p>

This writ brings up a judgment of the Essex Common Pleas, affirming a judgment rendered upon a verdict in favor of the New York and New Jersey Telephone Company against Rumsey, before a justice of the peace.

On certiorari. This writ brings up certain proceedings had before Justice Scudder, upon a return to a writ of habeas corpus, allowed upon the petition of Frank Patterson, who was in the custody of the sheriff of Monmouth county.

<p>On certiorari. The facts sufficiently appear in the opinion.</p>

<p>On certiorari.</p> <p>The facts presented sufficiently appear in the opinion.</p>

On certiorari. By agreement of counsel, the following (among other) facts appear: On the 16th day of April, A. D. 1886, a communication was presented to the mayor and common council of the city of Newark, at a meeting of the council held on that day, of which the following is a copy : “ To the Honorable the Mayor and Common Cowncil of the City of Newa/rh, N. J. : “ Gentlemen — The Citizens’ Telephone Company, of Newark, N. J., respectfully petition your honorable body to…

Andrew M. Clarke was allowed a rule to show cause why the board of health of the city of Trenton should not admit him as a member. The rule has been brought to hearing, on affidavits, &c., from which the following facts appear: The board of health is organized under an ordinance passed July 11th, 1882.

On certiorari. On August 11th, 1886, A. Walling, Jr., presiding judge-of the Monmouth county Common Pleas, made an order directing a special election to be held on August 25th, 1886, of the legal voters within the municipality known as the Long-Branch Police, Sanitary and Improvement Commission, to-vote for or against the incorporation of a proposed borough, to be known by the name of “ The mayor and council of the-borough of Long Branch,” and comprising territory designated…

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

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

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

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

<p>The act of March 23d, 1881 (Pamph. L., p. 194), does not give the court original power to tax or assess, but only to apply the provisions of existing valid laws to the case before the court.</p>

<p>On motion to set aside the return of surveyors of the highways.</p>

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

On certiorari to the Monmouth Common Pleas. In laying out a public road in the township of Eatontown, in the county of Monmouth, lands of the defendant were taken and an assessment of damages made to the defendant.

<p>1. The proper control of the time and mode of cleaning sinks, cesspools, &e., is not only a legitimate subject of municipal concern, but is imperatively demanded by a just regard for the comfort and health of the citizen.</p> <p>2. The establishment by the legislature of general and local boards of health is not to be regarded as detracting from the general powers of municipal governments, unless that legislative intent clearly appears.</p> <p>3. The health laws may bring within the cognizance of their constituted boards offences prohibited by the town ordinances, because they injure the public health, yet they are not necessarily antagonistic to the exercise by the municipality of power to regulate and repress noxious and offensive creations, within the statute.</p> <p>4. The complaint for a violation of an ordinance to repress and punish noxious and offensive practices, in carrying and depositing matter removed from sinks, cesspools and privy vaults, charged merely that the defendant, in the night-time of a day named, carted, carried and took into and within the limits of the township a load of night soil. No other circumstances were averred. Held, that an admission of all the facts stated was not sufficient to sustain a conviction.</p> <p>5. An ordinance, general in its scope, may be adjudged reasonable as applied to one state of facts and unreasonable when applied to circumstances of a different character.</p> <p>6. Where a plaintiff in certiorari had, under the law upon which the complaint against him was founded, a right of appeal to the Common Pleas, and thus an expeditious and inexpensive mode of determining his cause upon the merits, a writ of certiorari should be dismissed as improvidently granted.</p>

<p>On habeas corpus.</p>

<p>1. The title of the act of March 26th, 1886 (Pamph. L., p. 133), sufficiently expresses its object.</p> <p>2. The said act applies to townships wherein the power of opening streets belongs to the township committee.</p> <p>3. The said act confers the power of stopping the opening of a proposed street, upon the owners of a majority of the frontage, on the contemplated improvement, of land legally subject to assessment therefor.</p> <p>4. An appeal from an award of damages for land taken, because of inadequacy, is not a waiver of objections based upon the illegality of the condemnation, when the appeal must be taken within a short fixed time or be lost.</p>

<p>J. Twenty-seven bills were contracted by the finance committee of the city of Rahway, and, on being presented to the city treasurer without affidavit, were paid by him. He then presented to the common council a single bill in his own favor for the aggregate of the sums so paid, with his own affidavit that it was just and true. Held, that this bill did not comply with the act of April 4th, 1871. Rev., p. 1371. Held,, also, that the treasurer had neglected his official duty to audit said bills and report thereon to the common council, by paying the same before making such report, inasmuch as he had thereby disqualified himself from auditing and reporting upon the bills impartially.</p> <p>2. The bill of the treasurer, presented as aforesaid, was ordered paid by the common council by a vote of less than three-fifths pf the whole number of councilmen. Held, that the mayor, in view of section 35 of the city charter (Pamph. L. 1865, p. 499), was not legally bound to sign a warrant drawn in pursuance of such order, and a mandamus would not be awarded to compel him to do so.</p>

<p>The court will not disturb the report of commissioners appointed to ascertain the partition line between counties, except upon clear proof that it is wrong.</p>

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

On error to the Supreme Court. The plaintiff below, Emma Patterson, was a trader engaged in the retail clothing business, at Red Bank, in this state. The defendants, King and Douglas, in connection with others, conduct a mercantile agency in New York city. Mrs. Patterson sued the defendants for the publication of defamatory words affecting her circumstances and financial condition. The defence was that the publication in question was a privileged communication.

Suit against maker of a promissory note. The declaration alleged the making of the note by the defendant (plaintiff in error) to one Mary A. Watson, and an endorsement by her to Ezra Evans, the testator, represented in the suit by the defenants in error, being the plaintiffs in the suit below. On error to the Supreme Court.

<p>1. If the trial court erroneously refuses to nonsuit the plaintiff for want of evidence of the defendant’s responsibility, and exception is thereupon sealed, and the defect in proof be not subsequently remedied, error may be assigned upon the exception and the judgment may be reversed.</p> <p>2. It is no evidence of negligence in a driver of a horse car that he whipped a pair of horses when about to start a car full of passengers, unless there appears to be something unusual in the manner of his whipping them.</p>

<p>A deed in fee for a burial lot from a cemetery company contained the following habendum clause : “ To have and to hold the granted premises to the said, &c., his heirs and assigns, for the uses of sepulture only, and to or for no other uses whatever, subject, however, to the conditions and limitations and with the privileges specified in the rules and regulations now made or that may hereafter be made and adopted by the managers of the said cemetery for the government of the lot-holders and visitors of the same.” In ejectment to recover possession, Held,</p> <p>1. The conveyance passes to the grantee or his assigns the fee, and the fact that he is limited in the use which he is to make of the property does not deprive him of the right of possession.</p> <p>2. The fact that the company is to have the care and management and exclusive superintendence of the cemetery are not incompatible with possession by him.</p>

<p>Where certain instruments, purporting to be the deeds of a private corporation, are shown to be sealed with the corporate seal, the testimony of a single corporate officer, whose duty might or might not make him cognizant of their execution, that he had no knowledge of corporate authority having been given to execute the instruments, should be deemed legally insufficient to overcome the presumption of due execution to which the affixing of the corporate seal gives rise.</p>

<p>When a horse-oar is paasing on its track in a public highway, it is the-duty of the driver of any vehicle to remove such vehicle from the track in time to give free passage to the car. When the driver should begin to turn his vehicle from the track must depend on the circumstances, on which the driver must exercise a reasonable j udgment and do what a prudent man, diligent to give free passage to the car,, would do.</p>

<p>A person carrying on the business of book-making or betting upon horse races, on the grounds of a horse-racing association, although authorized by the association and paying a rent or fee for the privilege, is indictable for maintaining a public nuisance.</p>

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

On error to the Supreme Court. The action was in ejectment, and brought to recover an equal one-eighth part of a farm in the county of Somerset. The cause was tried in the Somerset Circuit, without a jury. Judgment was rendered in favor of the plaintiff, and the following reasons were assigned for the judgment by Magie, J. The cause is of such importance as to justify and demand a statement of the views of the court on the legal question presented.

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

<p>In error to the Supreme Court.</p> <p>For opinion of the Supreme Court see ante p. 188.</p>

<p>Iii error to the Supreme Court.</p> <p>For opinion of Supreme Court, see 19 Vroom 438.</p>

<p>In error to the Hudson Circuit.</p>

<p>1. By the proper construction of the acts of 1871 and 1874, relating to stenographic reporters, the Circuit judge, in- his discretion, may fix the compensation of such officer for attendance and transcript of proceedings furnished by the order of the court.</p> <p>2. The re-enactment of a law in the late Revision does not, ipso facto, in any respect, change the efficacy of such law.</p>

On case certified from the Union Circuit Court. This certificate brings up for the advisory opinion of this court certain questions arising under an act passed March 30th, 1886 (Pamph.

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

On information in nature of quo warranto. The information in the name of the attorney-general of the state, at the relation of Wesley Gibbs, John B. Somers and others, state the proceedings under “An act for the formation of borough governments in seaside resorts,” approved March 29th, 1878, by which an election was had April 24th, 1886, resulting in favor of establishing an incorporated borough in Egg Harbor township, Atlantic county, by the name of “ The Mayor and Council…

<p>1. An agreement between a lessee of a farm and another person to cultivate the crops and divide them equally, construed not to give such third person an estate in the lands against the landlord, who had no notice and gave no assent to such agreement.</p> <p>2. On surrender of the lease to the landlord by the lessee, the landlord may enter without notice to the lessee, or to his joint cropper on the farm.</p>

On demurrer to declaration. The action is styled upon contract. The first count declares that the defendants rented of the plaintiff a farm for the term of twenty years from the 1st day of October, 1879, paying therefor the sum of $125 for each quarter of a year, and the further sum of $300 for the railroad privileges, which last, sum was due October 1st, 1884.

On certiorari to the Ocean county Circuit Court, bringing up a rule discharging an order to show cause why an execution issued out of said court upon a mechanics’ lien claim, commanding the sale of property previously sold under an execution issued upon a concurrent lien claim, should not b.e set aside, and for a judgment setting aside the rule discharging and making the order to show cause absolute.

On certiorari. This writ brings up an assessment for taxes made against Sarah J. Shotwell, the prosecutrix. She is the widow of James Shotwell, who died seized of a large amount of real property. One of his heirs-at-law filed a bill for its partition in the Court of Chancery. In the course of this proceeding the property was sold, and the widow’s dower interest in the same was included in the sale.

On mandamus. An alternative writ of mandamus was allowed, directing the defendants to issue an execution upon a judgment in the District Court of Hoboken, or show cause for the refusal. The writ recited that the judgment was entered against John and Angelo Podesta, on April 13th; that execution was issued on April 14th, which was unsatisfied, but nevertheless the said court and said clerk refuse to issue an alias writ of execution.

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

<p>Xhe statute of limitations should be regarded as a strict defence, and if the party lets it slip, the court ought not to relieve him.</p>

<p>On certiorari.</p>

<p>1. The act of 1876 (Pamph. L., p. 296) gives the commissioners of streets and sewers in New Brunswick the requisite power to make a legal assessment for street improvements.</p> <p>2. The assessment in this ease will not be set aside because the commissioners failed to assess damages to the relator.</p> <p>3. The relator’s remedy is either by mandamus, or by suit under section 70 of the Road act (Rev., p. 1009), or under the provisions of the act of March 10th, 1880. Rev. Sup., p. 571, \ 343.</p>

<p>1. When the lands of a railroad company are crossed by the laying out. of a public highway which intersects the tracks and station grounds-of the railway at right angles, the railroad company is entitled to an, assessment of damages by reason of laying out the highway.</p> <p>2. A public road cannot be laid across a railroad within five hundred feet of an existing public road, since the passage of the act of 1881. Rev. Sup., p. 874, § 10.</p>

<p>In attachment. On motion to open judgment.</p>

<p>1. Atlantic City passed two ordinances, under which it entered into a contract with a company organized under the “ Act for the construction, maintenance and operation of water works, for the purpose of supplying cities, towns and villages of the state with water,” approved April 21st, 1876. . Rev., p. 1365. The city was thereby to pay a specified sum for water for certain public purposes, for an indefinite period. An information was filed in the name of the attorney-general to set aside the proceedings for fraud. Before a judicial determination of that suit the ordinances were repealed. The company completed their works, but took no steps to enforce the contract for some time. When the company brought an action against the city upon the contract, prosecutor, a taxpayer in the city, applied for a certiorari, which was allowed. Held, that neither the city nor a taxpayer was estopped from contesting the authority of the city to take the proceedings in question, and that the writ was properly allowed, if applied for within a reasonable time after it had become apparent that by the proceedings a burden might be imposed on taxpayers.</p> <p>2. By the law governing the city it was enacted that the debt of the city should never exceed $35,000. When the proceedings in question were taken, the city debt at least equaled that sum, and no provision was made to raise, by taxation, the amounts the city could be called on thereby to pay. Held, that the obligation thus incurred by the city was within the meaning of the provision limiting the city debt, and was prohibited thereby.</p>

<p>On certiorari bringing up a judgment of the Essex Common Pleas reversing a judgment of a District Court in-Newark.</p>

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

<p>Motion to quash indictment.</p>

<p>When a life insurance policy has become forfeited by non-payment of premiums, and a “revival application” is made, asking that the policy be revived, and containing representations as to the insured during the period between the issuing of the policy and the date of the revival application, and a warranty that such representations (as well as the representations of the original application) are true, and that otherwise the insurance will be void, and containing also an agreement that the liability of the insurer is not to exist until the revival is-assented to, and when the insurer afterward assents, by a written approval, of the revival application — Held,</p> <p>1. That upon such assent the original contract, with all its terms, became reinstated, and there was also incorporated into the contract which then arose the new terms expressed in the revival application, and thereby the representations therein contained became part of the contract, and the truth of each was warranted.</p> <p>2. That a statement in the revival application that insured had not, during the period covered thereby, been “sick or afflicted with disease,” was not necessarily to be inferred to be false from the fact, that insured had had “ a cold.”</p> <p>3. But a statement that insured had not “ consulted, or been prescribed for by a physician,” was shown false by proof of such a prescription, although it appeared to have been given for “ a cold,” and the nature of the prescription did not appear.</p>

On certiorari bringing up proceedings under the “ Act for the relief of persons imprisoned on civil process” (Rev., p 497), in the Middlesex Common Pleas, and the order of that court discharging Paul Kaskel as an insolvent debtor.

By this certiorari a judgment of the Essex Common Pleas, affirming a judgment of a special police justice of the city of Newark, has been brought up. It appears by the state of the case that the prosecutor, Pell, was arrested by a police officer of Newark, without warrant, and taken before a police justice.

<p>On certiorari bringing up proceedings and judgment under the Forcible Entry and Detainer act.</p>

<p>In a suit to recover a penalty for alleged violation of the provisions of the act entitled “ An act to prevent deception in the sale of oleomargarine, butterine, or any imitation of dairy products, and to preserve the public health,” approved March 22d, 1886, (Rev. Sup., p. 70) the right to trial by jury does not exist.</p>

<p>1. Where, in proceedings under section 5 of the Disorderly act, after conviction of the defendant, by the jury, of desertion and willful refusal and neglect to provide for his family, the justice failed to adjudge the defendant to be a disorderly person, the Quarter Sessions cannot, on appeal, reverse the justice’s judgment, and dismiss the appeal for want of such adjudication.</p> <p>2. The appeal to the Quarter Sessions is from the decision of the justice or the jury, and brings the whole case before that court for the trial de novo of the issue of fact, and a new determination and order based upon the facts found.</p> <p>3. The act of March 11th, 1880 {Rev. Sup., p. 220), provides that in all' cities having police courts, or police justices, or a recorder’s court, all persons arrested for any violation of the provisions of the act concerning disorderly persons shall be taken for a hearing before such police court, police justices or recorder’s court. Held, that the right to hear and decide the cause implies the authority to use the process-provided by law for bringing in the parties.</p>

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

<p>On eertiorari.</p>

<p>Certiorari to Monmouth Pleas.</p>

<p>By the act of April 6th, 1886 (Rev. Sup., p. 800, l 3), which provided “ that any person or persons who shall have resided in any township of this state for the period of ten years shall be considered legally settled in said township,” the legislature expressed the design to introduce a new condition upon which a legal settlement may be acquired; and when such condition is found to exist, an absolute settlement, and not one prima faeie, is established.</p>

<p>On certiorari.</p>

<p>1. In the legislation of this state concerning the jurisdiction of courts for the trial of small causes, and District Courts, the phrase “every suit of a civil nature at law ” does not embrace actions for statutory penalties.</p> <p>2. The District Courts of the city of Newark have no general jurisdiction-over actions for statutory penalties beyond $100.</p>

<p>1. The act to incorporate and regulate telegraph companies (Rev., p. 1174), and its supplement (Rev. Sup., p. 1022), require such companies to apply to the legislative body of any municipality through which streets, rather than roads, are laid, and to the legislative body of which the control of these streets is given, for a designation of their route through the streets, before they can proceed to have the damages of individuals, to accrue from the construction of their lines, assessed.</p> <p>2. The petition for the assessment of such damages must indicate the size of the poles to be erected and the positions in which they will be placed.</p>

On mandamus. I. On the 17th day of June, 1851, Elias Darby and fifty-six other freeholders of the then township of Elizabeth, county of Essex, now the city of Elizabeth, in the county of Union, in this state, filed their petition in and made application to the Court of Common Pleas of said county of Essex for the appointment of surveyors of the highway of said county for the purpose of laying out a public road in said township deemed by them to be necessary and conducive to…

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

<p>On error to Hudson Circuit.</p>

<p>1. In defence of an action upon a promissory note, when it is between the parties to the note, and where the object is to show that the note has been satisfied, evidence is admissible to show that contemporaneously with the making of the paper it was agreed between the parties to it that merchandise should be taken in satisfaction of the amount to become due, coupled with proof that the merchandise was delivered according to the agreement.</p> <p>2. The admission of such evidence does not infringe upon the well-settled rule that evidence of contemporaneous declarations is inadmissible to vary the terms of a written contract.</p>

<p>The provision in the charter of the city of Trenton that requires “ that all contracts for doing work, furnishing materials for any improvement provided under this act,” &c., shall be given to the lowest bidder, applies only to contracts relating to the streets, &e., and not to a contract to furnish rubber hose for the fire department.</p>

<p>1. The act 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,” approved March 31st, 1882, is constitutional.</p> <p>2. The said act is retrospective in its character.</p> <p>3. Either the owner of land or the mortgagee may apply under the act.</p> <p>4. A case was made before the justice to whom the application was made, which justified him in appointing arbitrators.</p> <p>5. The proceedings and report of the arbitrators are legal.</p> <p>6. There is no difficulty in carrying out the provisions of said act.</p>

<p>1. The act entitled “A further supplement to an act entitled ‘An act constituting courts for the trial of small causes,’” the provisions of which have relation to criminal procedure, is unconstitutional, the title being misleading and not in compliance with art. 4, § 7, ¶" 4 of the constitution, which requires the object of every law to be expressed in its title.</p> <p>2. It is not extortion for a justice of the peace to ask or demand from the complainant in a criminal case, at the time the complaint is made, the statutory fees for his services.</p> <p>3. A justice of the peace cannot lawfully refuse to perform his duties as a conservator of the peace unless his fees be first paid.</p>

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

<p>When a horse in charge of a livery stable keeper becomes sick, it is his duty either to see that proper treatment is furnished to the animal, i. e., such treatment as reasonable care and skill would dictate, or else to give immediate-notice-of the sickness to the owner.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 94.</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 the Supreme Court, see 19 Vroom 27.</p>