Volume 50 — New Jersey Law Reports

Trespass for assault, battery and false imprisonment. On motion for new trial. The three defendants plead the general issue, with notice appended, that they will prove that they arrested the plaintiff by force of the writ described below.

Writ of error to Union Circuit. The action was against a national bank for taking usurious interest. The plaintiff’s note, dated May 20th, 1882, at six months, was discounted by defendant the same day, the charge for discount being $164.64. The plaintiff’s note, dated July 10th, 1882, at six months, was discounted July 25th, 1882, the charge for discount being $17.83. The plaintiff paid the defendant April 20th, 1883, $6.79, for interest.

On quo warranto information, it is shown that the relator was elected sheriff of the county of Union, the 4th day of November, 1884, to serve for three years, and has since continued ir- Said office; that as such officer he is entitled to the custody, rule, keeping and charge of the jail of said county, and of the prisoners therein, and that it is his duty so to act; that he has endeavored to discharge such duty, but has been hindered and prevented by the board of chosen…

On demurrer to defendants’ pleas. This action is brought on a joint and several bond given by the defendants to the plaintiff in the penal sum of $2500, with the condition that if the defendants “… Held: before one justice of the peace until the bond was given; fifth, bond given to comply with order of filiation when no notice was given of such order; sixth, that no order of filiation was made by two justices of the peace, according to law.

' By a contract in writing, dated December 8th, 1885, Michael Gilvery released all claim of action and compromised a suit of law against John Trenwith for the sum of $500, and (it was therein set forth) “the said John Trenwith hereby agrees to remove from the place where they now stand, at the option of the said Michael Gilvery, the property of said Michael Gil-very known as the ' Mammoth Swings,’ and to erect them in good order upon the grounds of the Sea View Excursion…

<p>A landlord who contracts with his tenant to attend to all the repairs of the demised premises is only required to exercise reasonable diligence in ascertaining what repairs are necessary, and in making such repairs as due inspection would show to be proper. He does not by his contract guaranty that the premises will never in fact be out of repair.</p>

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

<p>1. An assignment of the common errors refers only to what is technically known as the record, and not to a bill of exceptions.</p> <p>'2. The defendant’s employee had, in the course of his employment, deposited timbers upon the sidewalk of a street, and had improperly,, against the defendant’s instructions, left them there for several days. The plaintiff, while passing along the sidewalk with due care, fell over them and sustained injury. Held, that the defendant was responsible for the damages.</p>

<p>A person in possession of land declared that “ it was hers as long as she-lived, but after her death it was Mr. Miller’s.” Held, that this declaration was competent evidence against those claiming under the possessor, and that it tended to prove that the possession was not adverse to Mr. Miller’s title to the property after the death of the declarant..</p>

This writ brings up a judgment of the Court of Quarter Sessions of Burlington county. The defendant, George H. Peacock, was indicted for an assault with intent to commit a rape, and the trial resulted in a verdict of guilty. The defendant, at the time of the beginning of the trial, was at large upon bail. He was present during the first day of the trial, but absent thereafter during its progress.

<p>1. A sale of a tenant’s leasehold estate, made by a sheriff, under an execution against the tenant, can be proven only by a note in writing, made in accordance with section 2 of the statute of frauds.</p> <p>2. The conduct of the purchaser, subsequent to sale not so proven, may be of such a character toward the original landlord as to fix upon the former the character of a tenant, and subject him to liability for rent.</p>

<p>1. Where no time is fixed by law for the commencement of a term of office, it begins either at the date of the election or appointment, or from the time the person chosen may, by his own act, assume the duties of the office, and not at the time he actually enters upon his-duties of the office.</p> <p>2. A city charter provided that certain officers, including a receiver of taxes, should be elected at the city election, ,to hold office for the term-of three years, and until others are chosen and qualified in their stead. R provided also that such officers should, before entering upon their duties, take an oath of office, and give bond for the performance of official duties, in such sum and with such sureties as the city council should approve. Held—</p> <p>1. That the provision for holding until a successor was qualified was-not designed to extend the tenure of office of the incumbent for his advantage; that its purpose was for public interests, to prevent a vacancy that might occur through delay in his successor’s qualifying. 2. A person elected to an office, or re-elected as his own successor, cannot, by his neglect to qualify, prolong the term of his predecessor, or his own prior term, and so postpone the beginning of the term for which he was so elected.</p> <p>5. The charter empowered the city council, by ordinance, to fix the salary of the receiver of taxes. It provided that no officer of the city government should have his salary increased or diminished during the term for which he was elected or appointed. The relator was elected receiver of taxes March 13th, 1883. He was re-elected at the annual city election, held March 9th, 1886. The city council, whose duty it was to approve official bonds, was in session March 12th, 1886. Held, that the relator could not, by postponing the giving of his official bonds, prolong his prior term, and postpone the commencement of his new term, so as to have the benefit of an ordinance increasing the salary of the receiver of taxes, adopted March 18th, 1886.</p>

<p>1. The board of assessors, in making the apportionment of state and county taxes, being a special statutory tribunal, its action is valid only when its functions have been performed in the manner, and in compliance with the forms prescribed by the statute which conferred the jurisdiction.</p> <p>2. By the thirteenth section of the general tax law, as amended by the act of 1883 (Pamph. L., p. 192), the duplicates of the several assessors are presumed to contain correct valuations of all taxable property in each township or ward. The board, of assessors is not warranted1 in reducing the valuations on any duplicate; nor has it power to increase the valuations contained in any duplicate, unless upon a careful, particular and thorough comparison of the several duplicates, and then only by increasing the valuation by such a percentage as shall appear to be just and proper, and warranted by such comparison.</p>

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

<p>On certiorari.</p>

<p>1. The charter of the relator provides “that the premises, burial lots, vaults, monuments, and other erections and fixtures of said cemetery,' shall not be subject to any assessments, taxes or fines, unless otherwise ordered by the board of chosen freeholders of the- county of Essex.” Held, that this provision has none of the characteristics of a contract with the state; that at most it is an attempted delegation by the legislature to a subordinate public body of the power to tax the cemetery, and, if it is not void as a delegation of power, it is unquestionably repealable.</p> <p>2. The act of April 4th, 1873, page 629, operates as a repealer of any exemption which might exist.</p> <p>3. An assessment laid upon an erroneous principle will be corrected under the act of March 23d, 1881.</p>

<p>On certiorari.</p>

On indictment removed from the Morris Sessions. The following indictment was found at the October Term, 1886, of the Morris Oyer and Terminer, and was found under the act of the legislature of March 22d, 1886 : “ Morris county, to wit: The grand inquest for the State of New Jersey, in and for the body of the county of Morris, upon their oath present that the American Forcite Powder Manufacturing Company, a corporation, on the twenty-first day of April, in the year of our…

<p>The act of May 28th, 1886 (Pamph. L., p. 369), entitled “An act to authorize the boards of chosen freeholders in the respective counties in this state to lay out, open and improve a public road in each of the counties in this state,” is unconstitutional because one county is excepted from its operation.</p>

<p>This court has no power, under section 286 of the Practice act, to appoint a receiver to take charge of the rents of the premises, pending an action of ejectment.</p>

<p>On certiorari.</p>

<p>1. An act of the legislature which in terms applies to all cities, must be construed to apply to all, and to repeal all inconsistent legislation. If any city is excepted from its operation, either by expression or by implication, it would be a special law, and' therefore unconstitutional. The implication in such case will not be made that an exception is intended. The interpretation which validates the law will be adopted. Therefore, the act of March 25th, 1881, applies to Camden.</p> <p>2. Under the provisions of the city charter of Camden, the receiver of taxes must collect all taxes which-are not made by the sale of lands; he has no authority to sell lands for taxes, and no duty to perform with respect to assessments for street and sewer improvements.</p> <p>3. The city treasurer, is the officer to whom payment of assessments must be made, and in whose name suit must be brought to compel payment, if necessary so to do.</p> <p>4. The seventieth section of the city charter applies both to taxes and assessments, and authorized the city council to pass the resolution directing the city solicitor to proceed and sell lands to enforce payment of any taxes or assessments which may be a lien thereon.</p> <p>5. So far as the ordinances of the city council impose upon the city solicitor the duties which are required to be performed by the receiver of taxes, they are unauthorized and illegal.</p> <p>6. Under the fourth section of the Martin act, the city treasurer is the officer whose duty it is to collect the re-adjusted taxes, assessments and water rents, and sell lands for the non-payment thereof.</p> <p>7. In the case specified by section 13 of the Martin act, the city council may elect to proceed under the city charter, and in that event the provisions of the city charter must regulate the proceedings.</p>

<p>1. The common council of Newark, being the sole judge of the election of its members, may, upon a contest respecting the election of one of its members, appoint a committee to take testimony, and to report the facts and the evidence to the council.</p> <p>2. It may also authorize the committee to employ a stenographer for the purpose of taking such testimony, and if the committee employ the stenographer before the resolution giving such authority becomes effective, the common council may subsequently ratify such employment.</p> <p>3. When the common council pass, over the veto of the mayor, a resolution appropriating money to pay a person so employed, it is the duty of the mayor to countersign the warrant drawn for such appropriation, and that duty will, on his refusal to perform it, be enforced by mandamus.</p>

By an act entitled “An act to incorporate the Plainfield Fire Department,” approved March 3d, 1854, the “owners or proprietors of dwelling-houses or other buildings, or of stores of goods, wares or merchandise of any description, liable to injury by fire,” situated within limits defined by the act, in the township of Plainfield, in the county of Essex (now Union), and in the township of Warren, in the county of Somerset, were created a body corporate by the name of the…

<p>The damages which may be appraised and certified under section 2 of the “ Act concerning trespasses by swine " (Sev,, p. 20), are only such as have been occasioned by the swine at the time of the trespass for which they were distrained and impounded, and such as are visible to the appraisers and can be determined without the intervention of proof by witnesses, &c.</p>

<p>Certiorari bringing up orders made in the Essex Circuit.</p>

<p>1. Proceedings once taken by justices of the peace and surveyors of the highways, relating to encroachments upon a public road, are, until set aside, a bar to subsequent investigation before a like statutory tribunal touching the same encroachment.</p> <p>U. In taking these proceedings, the justices and surveyors cannot depart from the line of the old road, and, instead of removing encroachments, practically lay out a new road on other lands.</p> <p>3. The statute does not confer upon the justices and surveyors the right to take lands in the alteration or laying of roads. Lands for such purpose can only be taken by the public upon compensation made to the owner.</p>

<p>After a ease has been tried before a justice of the peace, with a jury, and the jury, failing to agree, has been discharged, by virtue of the forty-first section of the “ Act concerning the court for the trial of small causes” (Rev., p. 547), jurisdiction is restored to the justice’s court over the cause, for all purposes, until final judgment be rendered. If either party desires a jury, he must demand it, or, failing in that, his right is waived, and the justice may proceed in due course to trial and judgment.</p>

On certiorari to review tax. The prosecutors were returned by the collector of Weymouth township, Atlantic county, in December, 1885, as-delinquent taxpayers. They were in arrears for taxes levied upon their real estate in said township for the years 1884 and 1885. A tax warrant was regularly issued to the collector, commanding him to make their taxes by sale of their goods and chattels.

This opinion not to affect any assessment or collection of taxes which have been placed in the tax levy by the common council, under the authority of the act of 1869.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On error to Passaic Circuit Court.</p>

<p>1. The Supreme Court, in virtue of its right of control over its own process, has full power to set aside and annul, for good cause, levies and sales made by sheriffs and other officers in execution of final process issued out of said court, when proper parties are or can be brought before the court.</p> <p>2. Irregularities and willful disregard of statutory directions by the officer having process to execute injurious to the parties, or any misuse, abuse in fraud of or to the injury of parties, afford such good ground.</p> <p>3. The determination of the court below on questions of fact will be re-viewed on writ of error only so far as is necessary to determine whether or not there be competent evidence legally sufficient, upon a reasonable interpretation of it, to support the finding.</p>

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

<p>1. On a demise of a house or lands there is no contract or condition implied that the premises shall be fit and suitable for the use for which the lessee requires them. Consequently, their unfitness for such a purpose will not justify the tenant in abandoning the premises, and on such grounds making defence to an action for rent, unless there has been a fraudulent misrepresentation or concealment by the lessor as to the state or condition of the premises, or the premises are uninhabitable by reason of some wrongful act or default of the lessor.</p> <p>2. The premises demised consisted of a house, with the furniture in it, situate at a seaside resort. The letting was for a term of five months, and by a lease under seal. The tenant abandoned the premises on the ground that the cellar was in a damp and unhealthy condition by reason of water that was in it. Held, that there being no false representation or fraudulent concealment by the lessor, the tenant could not set up the unhealthy condition of the cellar, and his abandonment of the premises for that reason, as a defence to an action for rent.</p> <p>3. Smith v. Marrable, 11 M. & W. 5, commented on; Wilson v. Finch, 2 Fkch. Div. 336, disapproved.</p>

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

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

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

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

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

<p>On error to Burlington Oyer.</p>

This suit is for damages alleged to have been done to the-houses and lands of the plaintiff by the running of the defendant’s trains.

On case certified from Hudson Circuit. The plaintiff offered evidence tending to show the following facts: The defendant, by regular proceedings under its-charter, graded Montgomery street from Jersey City Heights-by a cut through the rock on the brow of the hill, and by a filling between retaining walls over the meadow down a steep-incline to the low lands, and constructed a main sewer therein for the drainage of the Heights.

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

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

On demurrer to plea. The declaration stated that on the 17th of November, 1884, and for a long time before, the defendants, as such receivers, were in possession and had the management and control of a certain railroad, &c., which was engaged in carrying passengers, &c., from, &c., for hire and reward to them, the said defendants, as such receivers, &c. Then followed an averment that plaintiff purchased a ticket at a station, and in. going from that place to the train the…

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

In ejectment. . On rule to show cause why a verdict for defendant should not be set aside, certified to this court by the Middlesex Circuit.

<p>On writ of error to the General Quarter Sessions of Camden county.</p>

<p>In tort. On rule to show cause why a verdict for the plaintiff should not be set aside.</p>

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

<p>. On contract. On rule to show cause why a verdict for the plaintiff should not be set aside.</p>

This cause was tried in the Monmouth Common Pleas and. resulted in a verdict for the defendant. The plaintiff has. brought the judgment entered thereon into this court by writ, of error.

<p>In an action by a first endorsee against the payee and endorser of a note, who had not received legal notice of the dishonor of the paper, the pleader set out in his narr. that at the time of making and thence until the time for paying of said note, the maker had in hand no effects of the endorser, nor had received any consideration from the endorser for making or paying the note, but, on the contrary, made the same for the accommodation of the endorser. Held, that this presented a legal excuse for a failure to present the note to the maker for payment and to give notice of dishonor to the endorser.</p>

<p>1. Neglect to keep a bridge in repair across a cut made by a railroad company, where its road crosses a public highway, so that travel is obstructed upon the highway, is a breach of duty to the public for which the owners or operators of the railroad are indictable.</p> <p>2. The duty of building and keeping in repair such bridges, which was imposed upon the Montclair Railroad Company by its charter, devolved upon a new corporation which purchased the property and franchises of the old corporation, at a sale made under a decree of foreclosure, and organized itself under section 56 of the Railroad and Canal act.</p> <p>3. The recital of a decree of foreclosure, contained in a duly acknowledged master’s deed, is prima facie evidence of the existence of the decree.</p>

<p>The “ Supplement to an act entitled ‘An act to establish a state board of' health,' approved March 9th, 1877," which supplement was approved March 12th, 1880 (Pamph. L., p. 322), makes animals with contagious or infectious diseases common nuisances, and authorizes their destruction by certain officials under certain conditions. The “ Su pplement to an act entitled ‘An act to prevent the spread of glanders in horses,’ approved March 31st, 1864,” which supplement was approved March 12th, 1884 {Rev. Sup., p. 8), makes horses affected by glanders common nuisances, and authorizes their destruction by certain officers. Held—</p> <p>1. These acts, so far as they relate to glanders in horses, are within the police powers of the state.</p> <p>2. They are not within the prohibition of the fourteenth amendment ■to the federal constitution, because although they authorize the abatement of such nuisances in advance of a judicial adjudication of the ‘fact of nuisance, yet they do not make the determination of the offi■cials as to that fact conclusive, and only permit their acts, in abating the nuisance, to be justified by proof of the actual existence of such nuisance.</p> <p>■'3. The conditions under which such officials may act, under the act ■of 1880, are mere limitations on their power for the benefit of the property owner, and their adjudication that such conditions exist will not protect them, unless the existence of the common nuisance is shown.</p>

<p>1. By the common law no action would lie for an injury caused by the death of a human being.</p> <p>2. The rule of the common law in this respect has been so adopted in this country that whatever was its original reason, or whether that, reason has ceased to exist or not, it cannot be disregarded or annulled by the courts, but, if injurious, its repeal or modification must be sought from the legislature.</p> <p>3. The modification of the rule contained in the act of March 3d, 1848 (Rev., p. 294), does not extend to injuries suffered by a husband as the result of the immediate killing of his wife.</p>

<p>1. A will executed according to the law of the testator’s domicile will pass personal property wherever situate, but with respect to devises of lands the will must be executed according to the formalities prescribed, by the law of the state in which the land is situated.</p> <p>2. The probate of a will in one state, though conclusive as to personalty,, if the probate be made at the testator’s domicile, is of no force in establishing the sufficiency or validity of a devise of lands in another state. It can obtain such force only in virtue of some law of the slate ■ in which the lands lie.</p> <p>3. The act of 1882 (Pamph. L., p. 112), amended and re-enacted May 11th, 1886 (Reo. Sup., p. 775), which authorizes the recording of wills-probated in another state for the purpose of making title to lands in this state, simply makes such record'or a transcript thereof competent evidence, dispensing with proof by the subscribing witnesses, leaving the legal effect of the will as a devise of lands to be determined as it would be if the original will was produced and proved.</p> <p>4. A will recorded under the last-mentioned statute, though executed in a manner sufficient to devise lands at the testator’s domicile, will not operate to devise lands in this state unless executed in the manner required for a devise of lands under the laws of this state.-.</p>

<p>1. The seventeenth section of the charter of the city of Trenton provides the mode in which the common council shall appoint the police force,, and the twenty-fifth section authorizes the common council to fix by ordinance the term for which they shall hold their office.</p> <p>2. The common council, in the exercise of its power, having provided that policemen shall hold their offices during good behavior, they cannot be removed, by force of the act of February 23d, 1886, for any cause other than the causes for removal specified in said act.</p>

<p>'The chief of police of the city of Trenton, as a member of the police department, is entitled to hold his office during good behavior, and can be removed only for causes specified in the act of February 23d, 1886.</p>

<p>In matter of costs.</p>

<p>On habeas corpus.</p>

<p>1. A certiorari will not be granted to review an assessment made by commissioners under the Martin act, for alleged irregularities in the proceedings of the .commissioners, or for undue or excessive assessment, or for alleged mistake in the manner of making the assessment.</p> <p>2. The writ allowed in this case on the ground that the relator is exempted by statute from any assessment; the relator will not be permitted to raise any other question.</p>

<p>On certiorari.</p>

<p>Application for attachment.</p>

<p>A suit will not lie in the District Court of the county of Hudson for a trespass to lands in the county of Essex.</p>

<p>1. The special legislation relating to making assessments in East Orange is repealed by the general law of March 9th, 1877, which repeals all inconsistent legislation. This act, to be constitutional, must be general, and if general it must include and apply to East Orange, and necessarily sweep away all legislation inconsistent with it.</p> <p>2. Assessments in East Orange must be made in accordance with the general law of 1877. <</p> <p>3. The act of 1878 (Pamph. L., p. 70) applies only to those municipalities in which a “board of commissioners” has power to make local improvements and impose taxes.</p>

<p>The mayor is under no legal duty to sign a warrant for the payment of a bill against the city, which is passed by the common council without being sworn to as required by the city charter.</p>

<p>On certiorari.</p>

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

<p>On certiorari to remove an ordinance of the village of Irvington.</p>

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

<p>' 1. The Road act (Rev., p. 993), requires of the surveyors of the highways to determine on the necessity for the road applied for. If they determine it to be a matter of public need, they are required to lay the road as it may appear to them to be most for the public and private convenience, having regard to the best ground and shortest •distance. When they certify that the statutory requirements have 'been observed by them, their judgment will not be reviewed on certiorari, either as to location or as to the necessity for the road.</p> <p>"2. A road proceeding will not he set aside because the application and appointment described minutely the courses and distances of the road to be laid out.</p> <p>■3. One of the applicants for the alteration of a public road represented to the surveyors, as an inducement to them to make the proposed alteration, to pay all damages and expenses of said alteration, and by reason of such representations the township committee were induced not to oppose said alterations. — Held, that the return of the surveyors should be set aside, on the ground that the course of the applicant to suppress and hush, by illegal promises, opposition based on public consideration, violates the spirit and policy of the road law.</p>

On certiorari to review the assessment ancl sale of lands of Nigel Murray, in Landis township, Cumberland county, for taxes of the year 1882.

<p>1. A tax on real and personal property by the description of “ Estate of T. D. Endicott” will be amended by the court.</p> <p>2. The personal property of the unsettled estate of a decedent must be-assessed in the township where the executor resides, if within this-state, not in the township where the deceased lived at the time of his death, and where some of the property still remains.</p>

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

<p>On eertiorañ to the Court of Common Pleas of the county of Essex, in matter of laying a road in Franklin township.</p>

On certiorari to annul an ordinance of the common council ■of the city of Orange, entitled “An ordinance to license and regulate hawkers and peddlers,” passed and approved September 15th, 1887.

<p>On certiorari to the Circuit Court of the county of Salem in the matter of attachment.</p>

On application for a writ of mandamus commanding the board of freeholders to make a rate, tax and assessment for the erection and construction of a jail, or the enlargement of the present jail, sufficient and adequate for the wants of the ■county of Camden, with due regard to sanitary arrangement and ventilation.

Suit on promissory note drawn by Leeds as maker, payable to the plaintiff. The note was not, by its terms, negotiable.- It appeared while the maker of the note held it, it was signed on the back by Note, Carter and Powdermaker; there was no evidence showing in what capacity they did such act. So far as related to these three last-named defendants, the plaintiff was non-suited at the trial.

<p>1. The plaintiff below planted his oysters upon natural clam beds in Raritan bay. Ip fishing for clams the defendants injured the plaintiff’s oysters. — Held, that it will constitute a complete defence to a suit for this injury, if the defendants can show that they went upon the natural clam beds in good faith for the purpose of taking clams, and that in the exercise of that privilege they acted with reasonable care and did no unnecessary damage to the plaintiff’s property.</p> <p>2. It is a right common to ad the citizens of this state to take shell-fish from natural beds in the tide-waters of this state, and may be enjoyed by them at will, except so far as it is restrained by positive law, or by grants from the state to individuals.</p> <p>3. The individual citizen may not lawfully abate every public nuisance; his right to abate arises only when the nuisance becomes an obstruction to the exercise of his private right. It then becomes as to him a private nuisance.</p>

<p>1. The plaintiffs below deposited in Maurice River Cove, in 1884, a boatload of oyster shells. To these shells the germs of oysters floating in these waters attached themselves, and in about two years developed into marketable oysters. — Held, that these oysters belonged to the plaintiffs, and that they could maintain an action against the defendants for the removal and conversion of them.</p> <p>2. Conceding that the planting of the shells constituted a public nuisance, that fact furnished no justification for converting the property of the plaintiffs to the use of the defendants.</p>

On error to the Supreme Court. One Blumenthal, being the owner of a lot of cattle, and being indebted to Moses Fox in the sum of $4000, to secure that indebtedness sold him the cattle. The cattle were at the time in the loading-pen at the depot in Baltimore, ready to be loaded on the cars for shipment to New York city.

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

On error to Monmouth Circuit Court. This action was brought upon a policy of insurance, dated on July 2d, 1883, and issued to Acton C. Hartshorne, as-owner, which provides that the loss under it, if any, shall be paid to C. S. Holmes and Tunis V. Schanck, mortgagees,, as their interest might appear.

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

'On error to the Supreme Court. The plaintiff below became a passenger on an open car of the defendant company which at the time had passengers on ■board in number sufficient to occupy .all the seats. When the plaintiff was invited to go on board the car there was no •other room than a standing-place on the running-board along the side of the car. Other passengers stood upon the running-board of the same, as well as the other side of the car.

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

<p>1. The tenth section of the “ act to establish just rules for the taxation of railroad corporations” (Pamph. L. 1873, p. 112), authorizing the surrender of all claims of exemption from taxation, and the acceptance of the provisions of that act in lieu thereof, does not extend to corporations that have repealable charters on the subject of their taxation.</p> <p>2. Neither the charter of the Paterson and Ramapo R. R. Co., nor its supplements impose special conditions upon that corporation that can operate as a consideration for a contract between it and the state upon the subject of taxation. By the provisions that the charter and its supplements may be altered, amended and modified, the legislature has expressed an. intention not to deal irrevocably on that subject; the company, therefore, has no substantial claim of exemption to surrender, and is not among the corporations contemplated by the tenth section of the act of 1873.</p>

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

On demurrer to pleas. The following plea was demurred to: And for a further plea in this behalf the said defendant, by ■leave of the court here for this purpose had and obtained, according to the form of the.statute in such case made and provided, says- that the said plaintiff ought not to have and •maintain her aforesaid action thereof against it because it says that the several supposed promises and undertakings in the said declaration mentioned were, and each and every of…

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

<p>1. In a proceeding for a discovery under the statute in aid of executions, it is not a necessary prerequisite that an execution de bonis et terris shall have been issued; a fi.fa. against personalty alone will suffice.</p> <p>2. The petition in such case, in order to give the Supreme Court Justice jurisdiction, must be verified by the oath of the plaintiff in execution ; an affidavit by his agent will not fulfill the requirement of the act.</p>

<p>A recovery of the consideration money and interest in a suit on a covenant in a conveyance that the grantor is the lawful owner of the premises, is a bar to a subsequent suit, based on a covenant of warranty of title contained in same deed.</p>

<p>A was employed in the blacksmith shop of a locomotive and machine works, and upon the direction of an officer of the company, repaired a chain which had been used in raising locomotive driving-wheels, to be worked on by B, employed by the works for that purpose. When repaired, the chain was again furnished to and used by B for the same purpose, and B was injured by its breaking at the link which had been repaired. Held, that A and B were fellow-servants in a common employment, and that an instruction to the jury that A was the agent of the employer, who was responsible for any failure on A’s part to actually exercise reasonable care and skill in making such repairs, was erroneous.</p>

<p>A person cannot be convicted of keeping a disorderly house under the Malt Liquor act of April 4th, 1872 (Rev., p. 494), upon mere proof of a single sale of the liquors therein mentioned, by less quanity than a quart, without license; it must further appear that the liquors sold were drunk on or about the premises where sold.</p>

<p>On case certified from the Mercer Circuit.</p>

<p>Upon an indictment framed under the supplement to the Crimes act, approved March 17th, 1874 (Rev., p. 262, $ 2011, a fraudulent conversion to his own use, by an agent entrusted with personal property to sell, of said property, or of the proceeds of the sale thereof, is an essential ingredient of the crime charged, and evidence merely of neglect to pay over the proceeds of such a sale will not justify a conviction.</p>

<p>1. Where a railroad company provides offices for the transaction of its business, accessible from the public streets, the presence in the freight-yard of the company of a person having business with such offices is not a necessary incident of his business with the company. He is at best a licensee, towards whom the company owes no special duty.</p> <p>2. D., who had business with the freight department of the Pennsylvania R. R. Co., whose freight-offices are on Market and Ailing streets, is struck by a car while he is standing on a track in the drilling-yard of the company, with his back towards the only direction of danger. Held, that he was guilty of contributory negligence.</p> <p>3. “An act to prevent accidents on railroads” (Pamph. L. 1869, p. 806 ; Rev., p. 920, $ 67), is not limited in its application to the main tracks of railroads.</p>

<p>1. The liability to punitive damages springs from the wrongful motive of the defendant, and where such motive is not inherent in the offence which fixes his liability, plaintiff must present some proof from which it may be legally inferred.</p> <p>2. Where libelous language is inserted in a newspaper by a reporter, without the knowledge or consent of the proprietor, the latter is liable to the extent of compensatory damages; he can, however, be visited with punitive damages only upon proof from which his approval of his employee’s conduct may be legally inferred.</p>

On rule to show cause why a new trial should not- be-granted, certified from the Union Circuit Court. Plaintiff purchased at Rahway a ticket consisting of three parts, viz., a ticket from Rahway to Waverly, an admission ticket to the state fair at Waverly, and a return ticket from Waverly to Rahway. The plaintiff was carried to Waverly. and was admitted to the fair grounds. In the evening he returned by train from Waverly, in company with his brother and an employee.

<p>1. The omission to prove that the complaining witness, in an indictment for fornication was a single woman, is not error; the single state being the natural one will be presumed until testimony to the contrary is offered.</p> <p>2. Upon the trial of an Indictment for fornication, where both the bastard and the putative father were viewed by the jury, the jury may consider whether there is a resemblance or not between them. In such cases the proper instrument of proof is inspection by the jury, and not the testimony of witnesses.</p>

<p>1. The constitutional mandate that the object of every law shall be expressed in its title, has given the title of an act a two-fold effect. It has added additional force to the title as an indication of legislative intent in aid of the construction of a statute couched in language of doubtful import, and it also operates as a constitutional limitation upon the enacting part of the law. The enacting part of a statute, however clearly expressed, can have no effect beyond the object expressed in the title. To maintain any part of such a statute, those portions not embraced within the purview of the title must be exscinded; and, if the superaddition to the declared object cannot be separated and rejected, the entire act must fail.</p> <p>2. The act of March 27th, 1882 (Rev. Sup., p. 1058), entitled “An act authorizing the township committees in any township in this state not containing an incorporated city or borough wholly or in part within its limits, to pave or macadamize any street or streets, road or roads, or part or parts thereof, within said township,” &e., although in the enacting part applicable to all the townships of this state, must be construed in subordination to its title, and is therefore special and local within the interdict of paragraph 11, § 7, art. 4, of the constitution.</p>

<p>A discharge in bankruptcy may be set up in a state court to stay proceedings by execution for the collection of a judgment recovered against the bankrupt after the commencement of the proceedings in bankruptcy, and before the discharge, although the bankrupt did not, before' the judgment, apply for a stay of proceedings in the suit.</p>

<p>On motion to strike out errors assigned.</p>

<p>Under the act of 1884 {Pamph. L., p. 133) and 1886 [Pamph. L., p. 397), the sole power to pass ordinances to regulate and prohibit the sale of intoxicating liquors and beer is vested in the excise board, and not in the common council.</p>

<p>On certiorari.</p>

<p>An inn-keeper is not indictable for being drunk in his own inn, unless it becomes a nuisance and is so charged in the indictment.</p>

<p>The word ordinance in the act of 1882 (Paraph. £., p. 241) means something more than a verbal motion subsequently reduced to writing by the clerk of the town committee. The statute requires the committee to put in writing, in the form of an ordinance, what grade is intended to be established, before its adoption.</p>

<p>1. In a complaint under the Forcible Entry and Detainer act (Rev, p. 440, § 7), such certainty in description as apprises the defendant of the-premises he is charged with entering and will guide in executing the writ of restitution, is all that is requisite.</p> <p>2. The introduction in a complaint of the name of an improper person, when he did not sign the complaint or appear to have been in tfiepossession of the premises, is not objectionable; no harm arose to the defendant by the mistake, and the name can be rejected as surplusage.</p> <p>3. A complaint, stating the forcible entry as made on the 15th of February, omitting to name the year, is defective; but where the objection-was not made until after the jury was returned into court and sworn, it will be regarded as waived.</p> <p>4. There is nothing in the Forcible Entry and Detainer act requiring the justice to enter in his docket a copy of the complaint before the summons issues.</p> <p>5. It is not ground for error that the justice endorsed the summons, which was issued in due form, on the back, as in the court for the trial of small causes. This endorsement formed no part of the summons, and gave no character to the proceeding.</p> <p>6. Where objection was made that the officer had returned the venire with the panel unsigned, it was proper for the justice to require him to add his official signature to the return before permitting the j urorsto be sworn.</p> <p>7. Although no express provision is found in the Forcible Entry and Detainer act, directing a tales de cireumstantibus to meet the case of jurors failing to appear, or, appearing, are found to be disqualified, the grant of a jury trial necessarily implied the use of the means ordinarily employed to make the grant effective.</p>

<p>1. It was too late to present on appeal before tbe Common Pleas, an objection that at the time of the service of the summons the defendant was not a resident of the state, the defendant having appeared before the justice without raising the objection.</p> <p>2. A covenant by a lessee “ to repair the buildings, build all fences, and to generally improve the property, the material to be furnished by the lessor,” does not embrace work done by the lessee at the request of the lessor, and on promise to pay him therefor, in the erection of new buildings, whether built entirely of new material and in part of old structures, nor in the cutting off of parts of the dwelling-house, and setting them up as independent structures.</p> <p>3. A covenant by a lessee to “generally improve the property,” by a fair construction, refers to the treatment of the lands in their use for agricultural purposes when the demised premises are farming lands.</p>

<p>1. Where, in an application for a public road, the beginning and ending points were slated with sufficient exactness, but the line of the road was not described definitely, the term “ about ” being used to qualify what would otherwise be specific, the surveyors are not bound to any fixed courses, but may lay the road out in the general direction called for.</p> <p>2. The assessment of damages to “the heirs of” one deceased is not a sufficient designation of the persons to whom the award was made, and the proceedings and return will be remitted for amendment.</p>

On certiorari in matter of road. In 1843 application was made to the Common Pleas of Monmouth county for the laying out of a public road, two rods wide, in the township of Freehold. Thereupon the court appointed surveyors, who, on September 4th, 1843, dated and signed a return to the effect that they had laid out the road applied for, and had fixed the second Tuesday in December then next as the time when the overseer of highways should open the same for public use.

<p>1. Tbe form of conviction prescribed by the supplement of the Oleomargarine act which went into effect May 1st, 1887 (Pamph. L., p. 192), may be used in prosecutions instituted after that date for offences previously committed.</p> <p>2. Under section 5 of the Oleomargarine act, approved March 22d, 188& (Pamph. L., p, 107), it is not essential to the guilt of a person selling oleomargarine colored with annotlo, that he should know that the oleomargarine was so colored.</p> <p>3. The legislative design in enacting this section was to secure to dairymen and to the public generally a fuller and fairer enjoyment of their property, by excluding from the market a commodity prepared with the view of deceiving those purchasing it, and of obtaining thereby an improper advantage over rival commodities offered for sale. Hence, it is immaterial that the prohibited commodity is a wholesome food, since it would be equally wholesome if prepared without the deceptive ingredient.</p> <p>4. The legislature may forbid the sale of counterfeits.</p> <p>5. Laws passed by the individual states, under their general authority over internal concerns, may incidentally affect foreign and interstate commerce, without conflicting' with the constitution of the United States, provided they do not discriminate against such commerce, and are not inconsistent with the acts of congress.</p> <p>6. The act of March '22d, 1886 (Pampk. L, p. 107), rendering penal the sale of oleomargarine colored with annotto, is valid as applied to a sale made in this state by the agent of the manufacturer in Indiana, although the package sold here was that which had been sent by the manufacturer from Indiana to this state for sale.</p>

<p>On certiorari.</p>

<p>If oleomargarine derive any color or stain from “ annotto, or any other coloring matter or substance,” mixed in at any stage of the manufacture, whether of the-several ingredients or of the final product, then the sale of that oleomargarine is forbidden by the Oleomargarine act. Rev. Sup., p. 70.</p>

On certiorari to the Mercer Common Pleas. An action was brought in the Trenton District Court by John Malaney against Thomas Hughes and Eliza Hughes, upon a judgment recovered in a court for the trial of small causes, the sole evidence of which judgment was presented by the following entry in the docket of the justice, viz.: “ John Malaney v. “ Thomas Hughes and “ Eliza Hughes.

On certiorari to the Court of Quarter Sessions of Mercer ■county. In an action for a penalty of $100, under section 9 ■of “ 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 (Pamph.

On certiorari. An application was made by certain inhabitants of the township of Manasquan, in the county of Monmouth, to incorporate a part of that township embracing an area not exceeding four square miles, and containing a population not exceeding five thousand, to become a borough, under the act for the formation of borough governments, passed March 5th, 1878. Pamph. L., p. 403.

On certiorari. A statement of the case, filed with the return to the writ, shows these facts: March 17th, 1885, the prosecutor was appointed a policeman. He had served prior to that time, and since 1884. Section 24 of the charter gives the appointment of the police to the city council, to hold their office under the control and at the pleasure of the council. October 2d, 1885, the prosecutor was discharged by resolution of council.

<p>On certiorari to the Court of Common Pleas of Essex county to review their judgment on an appeal from the Second District Court of Newark.</p>

This is a writ of certiorari bringing up a certain assessment levied upon the lot of George W. Penwarden in the borough •of Dunellen, in the county of Middlesex. The assessment, -amounting to $255.82, is the amount of the cost incurred by the borough commission of Dunellen in flagging the sidewalk ■on Prospect avenue in said borough, in front of property -owned by said George W. Penwarden.

On motion to strike out plea. The declaration is upon a bond for $8000, made by the defendant to the plaintiffs. It states that this bond was accompanied by a mortgage, made by the defendant upon certain lands of his, to the plaintiffs, to secure the sum mentioned in said bond. That upon the foreclosure of this mortgage a sum was realized, which was applied to the payment of the said $8000, leaving a balance of $3877.53 still due.

On certiorari bringing up a judgment of the Court of Quarter Sessions of Hunterdon, affirming an order of removal of two persons from the township of Bethlehem, in Hunter-don county, to the township of Bridgewater, in Somerset county.

On certiorari. This writ brings up an assessment for taxes made against the prosecutors in Ocean Beach, for the year 1887.

<p>1. An act entitled “An act to regulate the sale of intoxicating and brewed liquors,” may lawfully interdict the sale of such liquors by the small measure. It is regulation, and not prohibition. The act is not void, within that provision of our state constitution, which says : “To avoid improper influences, which may result from intermixing in one and the same act, such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.”</p> <p>2. The said act prohibits only the sale by the small measure.</p> <p>8. The classification by population for the purpose of fixing the minimum license fee in the several townships and cities, is a valid classification, and imparts to the law the quality of general legislation.</p> <p>4. The provision in the law, that if a majority of the-legal voters in a A county shall vote against the sale of intoxicating and brewed liquors, ' no license shall be granted within the county for the sale thereof, is not an unlawful delegation of power by the legislature.</p> <p>5. The lawisnotin contravention of our constitutional provision, that “the legislature shall not pass private, local or special laws, regulating the internal affairs of towns and counties.” This inhibition in the constitution is not intended to secure uniformity in the exercise of delegated police powers, but to forbid the passing of a law vesting in one town or county a power of local government not granted to another.</p> <p>6. The law, in providing that the circuit judge shall determine whether the circumstances have arisen which require an election, and appoint the day for the election, is not in violation of that part of the constitution which says: “ The powers of government shall be divided into three distinct departments — the legislative, executive and judicial; and no person or persons belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided.”</p> <p>7. The notice of application to the judge for the ordering of an election, was published in all the newspapers among which the governor and comptroller must make their selection of those entitled to publish the laws. Held, that this was a sufficient publication, although the selection by the governor and comptroller had not then been made.</p> <p>8. The provision of the general election law, requiring special elections to be held on Tuesday, does not apply to the election to be held under the law in question in this case.</p> <p>9. The said act is constitutional in respect to its “ high license ” and “ local option ” features.</p>

<p>1. In cases of contract, trust or fraud, the equity courts of one state or country having jurisdiction of the parties, are competent to entertain a suit for specific performance, or to establish a trust, or for a conveyance, although the contract, trust or fraudulent title pertains to lands in another state or country. But a decree in such a suit imposes a mere personal obligation, enforceable by injunction, attachment or like process, against the person, and cannot operate upon lands in another jurisdiction to create, transfer or vest a title.</p> <p>2. This rule rests .upon the principle that the courts of one state or country are without jurisdiction over title to lands in another state or country. The clause of the federal constitution which requires full faith and credit to be given in each state to the records and judicial proceedings of every other state, is subordinate to this rule, and applies to the records and proceedings of the courts only so far as they have jurisdiction.</p> <p>3. Where a testator, in the disposition of his estate, imposes on his executor trusts to be executed or duties to be performed which require for their execution or performance an estate in his lands or a power of sale, the executor will take by implication such an estate or power as will enable him to execute the trusts or perform the duties devolved upon him.</p> <p>4. F., by his will, disposed of all his estate, real, personal and mixed, upon certain trusts for the benefit of his wife during her life, aud after her death for the establishment of a charitable institution, and constituted the Right Reverend J. F. W., Roman Catholic Bishop of Philadelphia, and his successors in office, executors. He provided that his widow should, during her lifetime, have the interest of all his estate, real, personal and mixed, and that if the interest arising annually should not be sufficient to maintain her, his executor or his successors should give her, annually, a sufficient amount of the principal to maintain her according to her station in life. For the establishment of the charitable institution, the testator directed his executor or successors in office to purchase a suitable farm for that purpose, and that the balance of the money arising out of his estate, if any, after the death of his wife and the purchase of the farm, should be appropriated to the erection of suitable buildings for the institution, and any surplus remaining should be put out at interest and applied for improvements. The will contained no devise to the executor, in express words, nor any express grant of power to sell lands. Held,</p> <p>1. That the executor took, by implication, a fee in the testator’s lands, or at least a power of sale, and that in either event his-deed would convey the legal title.</p> <p>'2. That if conveyance by the executor was prematurely made, or for an inadequate consideration in breach of trust, the title would nevertheless be good at law, the relief being in equity and at the instance only of the cestuis que trust, whose interests were prejudiced thereby.</p> <p>5. The act of March 17th, 1882, (Pamrph. L., p. 12), which provides for recording foreign wills for the purpose of making title to lands in this state and making the transcripts of such record legal evidence of title, applies only to foreign wills that have been admitted to probate in the state from which the copy of the will has been exemplified. Probate in the foreign jurisdiction, as evidence of the factum of the will, is a condition precedent to its being made a record in this state, and that jurisdictional fact must appear by the certificate transmitted with the copy of the will. An affidavit that the will has been admitted to probate in the state from which the copy was exemplified, is not competent to establish that fact.</p> <p>6. Where the object of making such a will a record in this state is for the purpose of making title to lands, the record exemplified from another state must contain the proofs taken on the probate, that it may appear that the will was made and executed in the manner and with the formalities prescribed by the statute of this state for devils of lands.</p>

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

In error. The action below was in case. By the declaration, Jennie C. Griffiths, the plaintiff, claimed damages for the obstruction, by John and Ann Eliza Street, the defendants, of a right of way appurtenant to lands of said Jennie. The plea was the general issue. After evidence on both sides, the trial judge directed a verdict in favor of the plaintiff. To this ruling an exception was taken and error has been assigned thereon.

This was an action of ejectment, to recover possession of part of Broad street, in the city of Rahway, in front of the property of the defendant in error. The case was tried at the October Term, 1883, by the Union Circuit Court, before Justice-Van Syckel, without a jury, and, upon the facts then appearing, the finding was for the defendant -below. A rule to show cause was allowed and made absolute by the Supreme Court. The opinion is reported in 19 Vroom 44.

<p>1. The determination of the Supreme Court on the question of the laches of the prosecutor in applying for a writ of certiorari, is final, not subject to review on error.</p> <p>2. When there is a city ordinance prescribing appropriations and the limit of expenditure for city purposes for a stated period, it is criminal for the city council to incur obligations during that period in excess of such appropriations and limit of expenditure, and the obligations so incurred are invalid, pursuant to the crimes act, approved February 7th, 1876. Rev., p. 1294.</p> <p>3. The water companies act of April 21st, 1876, (Rev. Sup., p. 650), does not modify the operation of the above mentioned crimes act.</p> <p>4. The act of March 15th, 1881, (Pamph. L., p. 118), authorizing municipal corporations to contract for a supply of water for public uses, did not validate prior criminal arrangements entered into by municipal authorities for a water supply.</p> <p>5. In view of the public policy embodied in the crimes act above mentioned, persons dealing with municipal authorities are required to exercise reasonable diligence to ascertain, before attempting to bind the public by obligations outrunning th-e official life of those boards who are willing to assume them, whether there be legally provided the funds from which the obligations may be met; and in the absence of such diligence, the public will not be estopped from setting up the illegality of the obligations, by the fact that the other party has acted in reliance upon their validity.</p>

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

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