Volume 51 — New Jersey Law Reports

On demurrer to declaration. On case certified from the Essex Circuit Court.

The plaintiff in error was indicted for the murder of Lillie Sehlemmer, his wife, at Jersey City, at the September Term of the Court of Oyer and Terminer, 1887.

This suit was under the act giving actions in case of death having resulted from neglects, &c. The following facts were set out in declaration: That the defendants were engaged in the manufacture of machinery and machine tools in East Newark, and, at time of injury, were engaged in planing a large casting on a planer; that this planer consisted of a stationary bed on which was a table which, when in operation, moved hack and forth on the bed and across au open space, and…

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

<p>The owner of a building is bound to retain moneys due, or to grow due, to the contractor, after being served with notice by the material-man or workman of the non-payment of his claim in accordance with the Mechanics’ Lien law.</p>

<p>1. Upon the trial of an indictment for keeping a disorderly house, where the answer of a witness included an opinion upon the propriety of granting a license to keep a saloon near a school, the whole answer will not be expunged, it embodying two relevant facts material to the cause, the close proximity of the saloon to a school and the indecorous conduct of persons who frequented it.</p> <p>2. If persons of immoral, indecent or boisterous manner are entertained by the proprietor of a saloon, and they are permitted by him to conduct themselves in and about the premises so as to annoy the public, he becomes responsible for their conduct, through the character which is thereby imparted to the premises.</p> <p>3. It is error to permit a witness on behalf of the state to be asked whether he did not go to the saloon with the intention of buying beer and drinking it on the premises, knowing the defendant had no license to sell by the glass, for the purpose of evading the law, as the inquiry bore in no way upon the motives of the defendant or his conduct in the management of his house.</p>

<p>1. An adjacent land-owner can maintain an action at law for damages resulting from the running of railroad trains on a public highway only when he can show a negligent exercise by the company of its legal rights or a use in excess of such rights, injurious to such owner.</p> <p>2. The opinions of witnesses as to the difference between the value of property, either to sell or rent, estimated with the railroad in the street and as operated by the company, and the value of the same property without the railroad, is inadmissible, the matter not calling for the opinion of experts.</p> <p>3. The owner of land adjoining a railroad who sold the same, reserving no rent and no rent having been assigned to him, and who afterwards receives back a deed for the same, cannot recover damages from injury done to the property when the title was outstanding, even though while out of ownership he was permitted by the owner to collect the rents for his own use.</p>

On case certified. The action was in contract, and the declaration contained the common counts in assumpsit. Annexed to the declaration was a notice that the action was brought to recover $322.50, the proceeds of the sale of certain machines delivered by plaintiffs to defendant to sell for them, and which had been sold before suit brought. The pleas were the general issue'and a release.

<p>1. Section 100 of “An act to regulate elections ” (Pamph. L. 1876, p. 163), confers upon the several Circuit Courts of this" state jurisdiction in cases of contested elections for city officers.</p> <p>'2. An application for a recount of ballots in a contested election case, not offered as part of a party’s proof, must conform to the statutory requirements governing such applications. Qumre. As to the admissibility of a recount under the statute above cited.</p>

<p>1. An action will lie against an individual or private corporation maintaining a nuisance by one who has suffered special damage therefrom.</p> <p>2. The plaintiffs, who have a brick yard on a navigable stream, allege, in their declaration, that the defendants, by an unlawful obstruction therein, have shut them off from the natural market for their wares, but omit to state the place at which the obstruction is placed. Held, on general demurrer, that as a matter of substance such description is unnecessary, and that considered as a matter of venue in the body of the pleading it is a matter of form, and within section 139 of the Practice act.</p> <p>3. An action for an injury to a right incidental to the use of persona] property is properly styled “ in tort,” under Bule 15.</p>

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

On application for a mandamus. On rule to show cause. By an act entitled “An act concerning the construction, care and improvement of the public ways, parks and sewers in certain of the cities of this state, and assessments for the same,” passed February 14th, 1888 (JPamph.

<p>On certiorari.</p>

On application to set aside an election of directors. The Cape May and Delaware Bay Navigation Company is a corporation of this state. At an election for directors held May 28th, 1888, two tickets were voted, one of which will be called the Wyckoff ticket, the other the Edmunds ticket. Eighteen hundred shares of the capital stock of the company had been issued and were outstanding.

<p>1. In a petition for the assessment and appraisement of damages for the taking of lands for the erection of telephone poles, it must appear that the telephone company is organized under the laws of this state, and that the common council of the city within which the poles are erected has designated, in writing or otherwise, the streets in which the poles are to be placed.</p> <p>'2. There must also be a proper description of the poles and the premises to be occupied by them, so that the burden to be imposed upon the land-owner and the rights to be acquired by the company shall be defined and settled.</p> <p>2. The consent of the land-owner to the appointment of commissioners does not give power to the court in a case not within the statute.</p>

<p>■On application for mandamus.</p>

<p>On certiorari.</p>

<p>On certiorari to review the assessment of taxes upon the property of the prosecutor for the year 1886.</p>

<p>1. Where part of the territory composing an old township is by act of the legislature formed into a new township, those persons who, at the time of separation, held a legal settlement in the old township and resided upon the territory so cut off', acquire, ipso facto, a legal settlement in the new township.</p> <p>2. A residence of ten consecutive years in the same dwelling, begun while the dwelling-place is in one township and ended after it has been comprised by act of the legislature within the limits of another township, will confer a legal settlement in the latter township, by force of the statute of April 6th, 1886. Rev. Swp., p. 800.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>In order to review a judgment rendered in the court for the trial of small causes which has been docketed in the Court of Common Pleas, upon the ground of illegality in the proceedings of the trial court anterior to the judgment, the writ of certiorari, when allowable, should be directed to the court for the trial of small causes — not to the Court of Common Pleas.</p>

On certiorari to the Second District Court of the city of Newark. The plaintiffs, a corporation of the State of New York, brought suit on a book account for chemical goods sold and delivered to Bolles Brothers, a firm of druggists, which is claimed to be composed of the three defendants. It was tried before a jury, and the verdict and judgment thereon were for the plaintiffs, $142.92 debt, and $10.65 costs.

On certiorari to review the report and assessment of com- “ missioners for the extension of Pennington avenue, in the city of Passaic, from Prospect street to Main avenue.

On motion for mandamus under rule to show cause. The relator was a candidate for township committeeman at the election on March 13th, 1888. There was a tie vote between him and the opposing candidate, Edward T. Galloway, one of the defendants, who was in office and holds over until another is chosen in his stead.

On rule to show cause why a mandamus should not be issued. ■ The relator applies for a writ of mandamus to compel •the defendant, auditor of the county of Monmouth, to audit; ■adjust, allow and certify to the county collector for payment, three bills rendered bv him for fees, costs and services as justice of the peace in said county, in criminal cases.

<p>1. A farm, which was formerly two farms with buildings on each, is divided by the line between two townships; the owner resides on and tills the land in one township, while, by agreement with him, another person resides on and tills the land in the other township, on shares. Held, that the entire farm is taxable to the owner in the township where he resides.</p> <p>2. The act of May 11th, 1886 (Rev. Sap., p. 981), is not applicable; it • applies where the land lying adjacent to the land on which the owner resides has been acquired by him since 1881; here the adjacent farm was purchased in 1867.</p>

On rule to show cause why a mandamus should, not issue to compel the judge of the second District Court of Jersey City to accept the bond and allow an appeal from a judgment in said court in a plea of tort to the Court of Common Pleas of Hudson county. The summons was for $300 damages; it was served on the defendant, Cohen, who resided in the city of New York, in the city of Bayonne, where the plaintiff, Gartner, resided, and the cause of action arose.

On certiorari to the Court of Common Pleas of the county of Essex, in an appeal from the Second District Court of Newark. This action was brought on a replevin bond, dated February 11th, 1886, in the penal sum of $200, made by the defendants to the sheriff of Essex county in an action of replevin in the Court of Common Pleas of said county, wherein Edward Spaeth was plaintiff and said Frederick Hood defendant.

On certiorari to the District Court of Newark. The facts, as they appear in the case certified by the judge, ■in the trial before him, without jury, are that the plaintiff was employed by the defendant as gardener, at first for a period of ten successive years; afterwards, when a gardener subsequently employed had died, he was engaged by her for a period of one year from April 10th, 1883, at the rate of $55 per month, for the months from March to November, inclusive, and $50…

<p>At a special meeting called by the board of trustees of a school district to build an addition to a school house, a majority of the votes of the taxable residents present at the meeting is sufficient authority to act.</p>

On certiorari. Review of assessment of taxes. This writ brings up an assessment for taxes made against Caroline M. Darcy, the prosecutrix, living in the city of Newark. It is an assessment for the amount of a mortgage for $1,300, made by James A. Chambers on lands and premises in Greenwood county, in the State of Kansas.

<p>1. If a constable, under an execution issued out of a justice’s court, takes-actual possession of defendant’s chattel, or places a 'keeper in possession, it will amount to a valid levy, although no inventory be taken.</p> <p>2. An inventory, made as required by section 67 of the Justices’ Court act, is necessary to support a levy resting upon a constructive seizure-only.</p>

On certiorari. This writ brings up a judgment of the District Court of the city of Camden, dispossessing the prosecutor from rented premises.

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

<p>On error to the Supreme Court. For opinion of Supreme Court, see 20 Vroom 292.</p>

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

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

<p>Motion for new trial. Suit upon a life policy of insurance.</p> <p>The policy was stated to be “ upon condition that the statements made by said member (the insured) in his petition for membership, and the statements made by him to the medical examiner, be made a part of this contract.”</p> <p>One of the clauses of the statement subscribed to the answers of the applicant for insurance was in these words, viz.: “ I certify that the answers made by me to the questions propounded by the medical examiner of Goethe Lodge, &c., which are attached to this application and form a part hereof, are true, in which there are no misrepresentation or suppression of known facts; and I acknowledge and agree that the above statement shall form the basis of the agreement with the Supreme Lodge, Knights of Honor, and constitute a warranty. * * * The above questions are answered to my best knowledge and belief, and I agree that should Goethe Lodge, &e., convict- me of having willfully made a misstatement, such misstatement shall be deemed evidence of fraud on my part, and shall, from- date of such conviction, sever my connection with the order, and render all obligations of the Supreme Lodge to me null and void.”</p> <p>The policy in suit was made by the Supreme Lodge.</p> <p>The defence was that one of the statements of the applicant for the insurance to the medical examiner was not true.</p>

<p>1. An officer’of a de facto municipality cannot be ousted, at the instance of a private relator in quo warranto, on the ground that such publie corporation has no legal existence.</p> <p>2. Such existence cannot be called in question, either directly or indirectly, at the instance of a private person, but only by the interposition of the attorney general, acting for the state.</p>

<p>1. In a case of homicide, the narrative of the transaction given by the-injured man, a few minutes after the affair and after the defendant had' left, is not admissible in evidence as a part of the res gestee.</p> <p>2. The mere unlawfulness of an act done, the same not being malum in se, will not make the doer criminally liable for its unforeseen consequences, such act being neither dangerous in its nature nor dangerous from the-mode of its execution.</p>

Rule to show cause, &c. The suit was brought on a promissory note, dated New York, August 12th, 1887, for $5,000, payable in New York, six months from date, made by the Passaic Bleachery, a corporation of this state, to the order of the defendants, and endorsed by them to the plaintiffs.

<p>1. In cases of ordinary misdemeanors a constable cannot arrest the offender without warrant, unless he is present at the time of the offence.</p> <p>2. The fact- that a warrant has issued directed to any constable of the county will not avail such officer unless such precept be in his possession at the time the arrest be made.</p>

<p>The constitution of this state provides that “ when a vacancy happens during the recess of the legislature in any office which is to be filled by the governor and senate, or by the legislature in joint meeting, the governor shall fill such vacancy, and the commission shall expire at the end of the next session of the legislature, unless a successor shall be sooner appointed.” Held, that under this clause the governor may, in the recess, make an appointment to fill the office temporarily, where the vacancy first began during the session of the legislature.</p>

<p>A defendant whose goods are seized by an officer in obedience t.n the cnrn_m&ndi of legal process cannot, under any circumstances, maintain replevin against such officer for the goods so taken into legal custody.</p>

<p>On mandamus. On demurrer to return to alternative writ.</p>

This is an action brought by the plaintiff to recover for water delivered by it into the main pipe of defendant’s water system, under a written contract between the parties to the suit. The cause was tried before the court below without a jury, and the transcript is returned to this court with the following “findings” : First.

Rule to show cause why a new trial should not be granted.. The following is a copy of the agreement referred to in-the opinion of the court: “Whereas, I, Charles Y. Moore, have this day received of Robert O. Babbitt his three several promissory notes, each, endorsed by William W. Gibbs, and payable at the Second-National Bank, Jersey City, one for $515, payable six months-after date; one for $530, payable twelve months after date,, and one for $545, payable eighteen months…

<p>1. In an action on an insolvent bond, the declaration assigned as a breach of the condition that the statutory notice of the time and place at which the debtor would present to the pleas his application for discharge had not been given to the plaintiffs. Held, on demurrer, that this matter could not be called in question collaterally, and that it constituted no breach of the bond.</p> <p>2. The gravamen of the second count of the declaration was that the debtor had failed to appear in person at every term of the Court of Common Pleas subsequent to that at which he applied for his discharge. Held, that the refusal of the court to grant his discharge upon his application was a virtual commitment to custody, and that the failure of the plaintiff to allege in his declaration facts to rebut the presumption thence arising was fatal to his cause of action.</p>

<p>On rules to show cause for a mandamus.</p>

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

<p>On certiorari to remove an ordinance of the common council of the city of Elizabeth.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>A summons in an action in this court will not be quashed, nor will its service be set aside, because it was issued, tested and served by the sheriff on one of the days made legal holidays by the provisions of the act of June 1st, 1886. Rev. Sup. 361.</p>

<p>Motions to quash indictments.</p>

<p>On certiorari.</p>

Relators filed a complaint in the District Court of Jersey City against Jacob Nathan and Caroline Krause, charging them with forcible entry and detainer, &c. The persons charged pleaded not guilty. The jury empaneled to try the issue thus formed found them guilty. Relators thereupon asked the district judge to order judgment upon the verdict. The judge refused the request, and allowed a rule to show cause why the verdict should not be set aside and a new trial granted.

<p>1. A return by surveyors of the highways laying out a road, which does not contain reference to the cross lines of lands of different owners, nor the names of the devisees or heirs of a deceased former owner, and a particular assessment to each, is defective, and will be remitted to the court which appointed the surveyors for amendment.</p> <p>2. Where defects in the return are obvious, objection should be first made in the court where the return is made, and an opportunity to amend there given; if not done, costs will be refused in this court.</p>

On certiorari in matter of special school tax for purchase •of land, building a new school house, furnishing, painting, and for fencing the lot.

<p>On motion to quash a peremptory writ of mandamus.</p>

This is a rule upon Oliver L. Marvin to show cause why he should not be compelled, by a writ of m¡andamus, to accept certain moneys and improvement certificates heretofore tendered to him by the relator in payment of certain assessments made upon its property. The facts will appear in the opinion.

On certiorari. The counsel for the respective parties agreed upon the following state of the case, upon which the cause is to be decided: Neumeyer sued Clancy in a court for the trial of small causes, before Joseph Hay ter, Esquire, a justice of the peace of Middlesex county, on contract, demanding $200 for rent of premises occupied by Clancy under alleged verbal lease from Neumeyer.

<p>The existence in a city of a court, of whatever name, which has jurisdiction to try violations of the act concerning disorderly persons, excludes the right of justices of the peace to try such cases under the act of 1880. Pamph. L., p. 210,</p>

On certiorari. An action was commenced by William Taylor against Henry J. DeMott in the court for the trial of small causes. The summons in the cause was made returnable on December 3d, 1887.

<p>Under the supplement to an act entitled “An act concerning the government of cities of this state,” approved April 6th, 1889, which supplement was approved April 19th, 1889, it was enacted that whenever there shall be instituted or commenced any action or proceeding, at law or otherwise, to try or determine or affect the title to office, or the powers, privileges or rights of any person appointed under the provisions of the act of April 6th, 1889, that the chief justice of the Supreme Court should, upon application being made to him for that purpose by any mayor, appoint a special term of the Supreme Court, to be held within thirty days of such application, for the purpose of hearing and determining such action or proceeding. Section 3 of the said supplement provided that upon application being made to him for a special term as aforesaid, the chief justice should summarily determine and direct, by an order to be entered for that purpose, which of the persons claiming such office shall discharge the duties of the offices affected by the act during the pendency of the proceedings.</p> <p>This was an application for such a determination, made by the mayor of the city of Jersey City.</p>

On petition of Orestes Cleveland, mayor of the city of Jersey City, for the hearing and determining the dispute and controversy which has arisen concerning the right or title of certain persons appointed to office in Jersey City under the provisions of “An act concerning the government of cities in this state,” approved April 6th, 1889.

<p>The third section of the act to secure mechanics and others payment for their labor and materials in erecting any building {Rev., p. 668), does not afford a remedy for one who has sold and delivered materials used in a building by a sub-contractor.</p>

<p>On motion to strike out the assignments of error.</p>

<p>A common carrier employing a servant to work at a terminal point, and contracting to transport him to and from work, cannot, through its train officials, lawfully require him to vacate a seat which he is occupying in the car, to which he has been duly assigned.</p>

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

<p>On contract. On special verdict.</p>

<p>Case certified by the Circuit Court of the county of Monmouth for advisory opinion.</p>

White and Rowland, in 1867, began a suit in the Hudson Circuit against James H. McLaughlin upon an account, in which they recovered a judgment on February 11th, 1869. Pending this suit, to wit, on the 30th day of May, 1868, MoLaughlin filed a petition in bankruptcy in the District Court of the United States for New Jersey, and, on the 25th of May, 1869, obtained a discharge. No application was made to stay the plaintiffs’ suit pending the proceedings in bankruptcy.

<p>1. As a general rule, upon the sale of personal property, the act of selling is an affirmation by the vendor that he is the owner, and is therefore an implied warranty of title.</p> <p>2. But where the facts and circumstances connected with the transaction show that the purpose of the sale, as it was understood by the parties at the time, was not to convey an absolute and indefeasible title, but only to transfer the title or interest the vendor had in the property, no warranty of title will be implied.</p> <p>3. In these two propositions there is no distinction between a sale by a vendor who is in possession and a sale where the property is in the possession of a third person. The fact that the vendor is in or out of possession is only a circumstance of more or less weight, according to the nature and circumstances of the particular transaction.</p> <p>4. The city of H. proposed to build a breakwater. The defendant applied for a contract to do the work. Members of the city council informed him that the contract had already been given to G. $ D., and that if the defendant would make satisfactory arrangements with G. & D. the city would give him the contract. The defendant thereupon made a contract with G. & D., whereby, for a consideration, G. & D. assigned to the defendant “ all our right, title and interest in a certain contract entered into by the authorities of the city of H. and ourselves to build a certain breakwater ordered built by a resolution passed April 14th, 1887.” The city, subsequently, on the advice of counsel that it had no power to build a breakwater, refused to ratify the arrangement of the defendant with G. & D., and abandoned the project of constructing the work. In an action on a note given by the defendant as part of the consideration of the assignment — Held,</p> <p>1. That there was no implied warranty by G. & D. of the validity of their contract with the city.</p> <p>2. That the transactiqn was the purchase of G. & D.’s interest in the contract, to consummate an arrangement whereby those parties were to be got out of the way that the city might give the defendant a contract, and that the defendant having obtained by the assignmenl all he bargained for, there was no failure of consideration ; and</p> <p>3. That there being no fraud, either in representation or concealment, on the part of G, & D., the defendant had no defence to the note, although, in fact, the contract of the city with G. & D. was ultra vires. and was, for that reason, repudiated by the city.</p>

On certiorari to the Passaic Court of Common Pleas. This was an action brought in the District Court of the-city of Paterson, to recover damages for defective workmanship in dyeing silk. The judge of the District Court certified to the Common-Pleas the following state of the case: The plaintiff was a manufacturer of silk braids at the city of Paterson. The defendants were silk dyers doing business-in that city.

<p>1. The defendant kept a room in the city of Paterson, to which persons commonly resorted for the purpose of betting on horse races. Held, that he was properly convicted of keeping a disorderly house.</p> <p>2. The act of March 30th, 1887, does not make it lawful to keep such a resort, and, if it did, the act is unconstitutional, and in violation of article 4, section 7, paragraph 4, of the state constitution.</p>

<p>1. Process issuing irregularly from a court of competent jurisdiction to a proper officer will justify such officer, acting under it, at any time before it is vacated, but such process, when vacated, is no justification to the party who procured it to be issued.</p> <p>2. The irregularity to charge the party must be in the pursuit of legal methods, which constitutes a mistake of law, and not a mere mistake of fact.</p> <p>3. An action cannot be maintained against a creditor who regularly sues out a writ of attachment against his debtor, in a court of competent jurisdiction, unless he has no reasonable or probable cause to make the affidavit upon which it is founded. If he acts rashly and without due care and circumspection, the presumption of malice will arise against him, and he must respond in damages if it is set aside. In the absence of malice, he pursues his remedy only at the peril of costs.</p> <p>4. If a creditor causes the goods of his debtor to be seized by virtue of a writ of attachment issued out of a court which has no jurisdiction, he becomes a trespasser ab initio.</p> <p>5. In such case the fact that the goods were subsequently returned to the debtor must be considered in mitigation of damages.</p>

<p>The people of'the township of Hanover, in the county of Morris, with comparatively few exceptions, were prevented by the great storm,, known as the “blizzard,” from attending the township election of March 13th, 1888. An act was subsequently passed by the legislature-authorizing a township election to be held where an election had not been held by reason of the said storm, and, under that act, an election was held in said township on the 10th of April, 1888. Held, that the persons who received the majority vote at the election of April 10th were the duly elected officers of the township.</p>

<p>Indictment for nuisance. On error to the Bergen Quarter Sessions. The facts appear in the opinion.</p>

<p>On certiorari.</p>

<p>In a landlord and tenant case, for removal, formal defects in tlie summons are waived by an appearance, adjournment on application of the tenant, subsequent trial and examination of' witnesses, before objection is made.</p>

<p>On scire facias.</p>

<p>On certiorari to review tax levied on lands of prosecutor .and sale of lands for such tax.</p>

<p>On certiorari to review an order of the Circuit Court of Union county refusing to confirm the report of commissioners of adjustment of taxes of the city of Elizabeth for the Sixth ward of said city (No. 2) and referring it back to them for correction and revision, by expunging therefrom the assessments, taxes and liens upon and against the lands of the Chancellor of the State of New Jersey, William T. Day, Thomas King and Elisha S. French.</p>

<p>If power to lay streets is conferred by a special charter incorporating a town, the general authority of the Court of Common Pleas for laying roads in the townships of the state, is excluded.</p>

<p>“An act for the construction, maintenance and operation of water works for the purpose of supplying cities, towns and villages of this state with water,” approved April 21st, 1876 (Rev. Swp., p. 650), authorizes the formation of more than one company in a city, town or village for the purposes designated.</p>

On application for mandamus. This proceeding brings before the court for review the refusal of the Court of Common Pleas of the county of Camden to fix a day to hear what could be alleged for or against the discharge of the relator as an insolvent debtor.

<p>On certiorari.</p>

An appeal in' an action of debt, begun in a court for the trial of small causes, came on for trial in the Essex Common Pleas. The plaintiff, whose administratrix is now the defendant in certiorari, was sworn as a witness on his own behalf, and subsequently the defendant, now prosecutor in certiorari,. tendered himself as a witness in his own behalf.

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

<p>On certiorari.</p>

<p>1. When a foreign corporation enters this state for the transaction of business, the person to whom it commits the management and control, of its business here becomes the agent of the corporation for the purpose of receiving service of process in all actions arising in this state-out of the conduct of the business.</p> <p>2. What a sheriff, who has served a summons, adds in his return to the statutory return “'served” or “summoned,” may, if incorrect, be-rejected as surplusage.</p>

<p>Pifteen days must intervene between the day of service and the return day of a summons, in an action against a municipal corporation.</p>

On certiorari. The following is that part of the state of the case agreed upon by counsel to be used upon the argument which is deemed important for the decision of the cause: This action was brought by the Hartman Steel Company, Limited, the plaintiff below, to recover a bill of $44.61 and interest, for goods, wares and merchandise sold and delivered by the plaintiff to the defendant, and was tried in the Middlesex Common Pleas, on appeal from a judgment of non-suit in the…

On certiorari. This writ brings up certain resolutions and proceedings of the board of chosen freeholders of Hudson county touching the laying out of a public road extending through Hudson county. The proceedings were taken in compliance with the provisions of the act passed in 1888. Pamph. L., p. 397.

<p>Motion to attach for contempt, &c.</p>

<p>The act entitled “A supplement to ‘An act for tlie formation of borough governments,’ approved April 5th, 1878,” which supplement was approved March 6th, 1888, does not empower the borough assessor and collector to assess and collect state, county or township taxes within the borough.</p>

Upon an affidavit of a debt due from “ the estate of Henry Mueller,” a justice of the peace issued a writ of attachment .against the effects of “ the estate of Henry Mueller.” Gustave Mueller, executor of Henry Mueller, came before the justice, protested against his jurisdiction, and moved 'to ■quash the writ.

<p>The “Act to increase the jurisdiction of justices of the peace,” approved March 12th, 1879 (Bev. Sup., p. 402), gives jurisdiction to a justice of the peace, sitting in the court for the trial of small causes, upon a bond whereon is due more than $100 but less than $200, although the penalty named therein exceeds $200.</p>

On certiorari. Motion to confirm assessment. Held: however, that, under an act entitled “A general act respecting taxes, assessments and water rates” (Pamph. L. 1881, p. 194), it was its duty to see that a proper assessment was made, and a reference was thereupon made to-a Supreme Court commissioner to take testimony in the-premises. This was in 1886.

<p>1. A writ of mandamus will not issue to compel a justice-of the peace, who has presided at a trial in the court for the trial of small causes, to alter the entry made in his docket of the date at which an appeal bond was filed and approved by him.</p> <p>'2. Mandamus issues to inferior officers and bodies to compel the performance, in a specified manner, of ministerial duties so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of their performance; but as to all acts or duties depending upon a’jurisdietion to decide questions of law or to ascertain matters of fact, on the part of the officer or body at whose hands their performance is required, mandamus will not lie. In such cases the writ will not issue to dictate in advance how the judicial discretion shall be exercised on the matter of fact decided, still less will it be allowed to disturb such determinations already reached.</p> <p>3. The duty of receiving and filing papers in a cause and of making docket entries of the same is a ministerial duty on the part of the justice of the peace presiding in the court for the trial of small causes, but the entry of the dates at which a bond and affidavit were presented to him for the purposes of an appeal involves the determination of questions of fact, the entry of which by the justice cannot be regarded as a purely ministerial office.</p>

<p>1. Under the provisions of the act entitled “An act concerning the settlement and collection of arrearages of unpaid taxes, assessments and water rates or water rents in cities of this state, and imposing and levying a tax, assessment and lien in lieu and instead of such arrear■ages, and to enforce the payment thereof, and to provide for the sale •of lands subjected to future taxation and assessment” (Pamph. L. 1886, ,p. 149), the jurisdiction of the commissioners of adjustment extends to all assessments for improvements previously made and remaining unpaid, without regard to the invalidity thereof, or to the lack of power in the municipality originally to impose such assessments. Of this jurisdiction the two essentials are (1) that the improvement has been made and an assessment ascertained and imposed or attempted so to be; and (2) that payment thereof has not been made.</p> <p>2. An assessment made by municipal authority is, notwithstanding the unconstitutionality of the law under which it was made, a subsisting assessment, which, until set aside, is binding upon the city; and the payment of such an assessment has, likewise, a binding effect upon the municipality, removing from its jurisdiction, for the purpose of levying contributions, the lands in respect to which the payment was made.</p> <p>3. Where such an assessment has been paid, the party making payment cannot recover the amount paid so long as the assessment remains uncanceled ; and the municipality is not only under no compulsion to make restitution, but is without authority so to do, unless thereunto expressly empowered by the legislature.</p> <p>4. Where an assessment, illegal at its inception, has been paid, and the amount so paid has afterwards been refunded by the city, the assessment not having been set aside, the action of the city, in making such repayment, does not annul the original effect of the payment, which was to extinguish the city’s claim against the lands in respect to the assessment. In such a case there remains no unpaid assessment within the meaning of the act of 1886, and the commissioners of adjustment are without jurisdiction in the premises.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Where a party removes a record into this court for the purpose of reversing a judgment rendered below in a civil cause, it must appear, by the state of the case, by competent testimony, or upon the face of the return, that such judgment was rendered contrary to law. It is not enough to raise doubts, as all intendments will be taken in favor of the record.</p>

<p>Under section 6 of the Disorderly act (Rev., p. 305), a complaint which, conforms in substance to the language of the act, and is specific as to-time, locality and language used held good; also that trial by jury is not a right of defendant under said act, and that the right of appeal is not dependent upon the action of the justice who heard the cause*</p>

<p>On certiorari.</p>

<p>1. An employe takes upon himself all the risks that are naturally and fairly incident to the employment in which he engages. This rule is-modified so far as to require the employer of an infant to explain to-him fully the hazards and dangers connected with the business, and to-instruct him how to avoid them.</p> <p>2. Minor servants are held to assume, by their contract of employment, those ordinary risks of their service which are obvious to them, or have been pointed out in a manner suited to their youth and inexperience.</p> <p>8. The law upon the subjects embraced in the requests to charge having been correctly declared by the trial judge in his charge to the jury, his refusal thereafter to charge otherwise than had been charged was not error.</p> <p>4. To conclude the plaintiff from maintaining his. action, his conduct must have been negligent, and his negligence must have contributed to the injury in such a way that if he had not been negligent he would have-received no injury from the negligence of the defendant.</p>

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see 21 Vroom 132.</p>

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

Writ of error to the Supreme Court removing a judgment affirming an assessment on prosecutors’ lands made by the city of Passaic. For opinion of Supreme Court, vide ante, p. 109.

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

<p>1. Shells designed for use by cloth printing machines, held not .to be parts of those machines.</p> <p>2. The purpose of the Mechanics’ Lien lav is to afford mechanics a lien upon machinery of which they cannot have such possession as would give them a lien by the common law. This statutory lien is confined to fixed machinery.</p> <p>3. Where machinery is of such a character that the common law lien may be had upon it, doubts should not be so resolved as to hold the machinery to be also subject to the statutory lien.</p>

On error to the Supreme Court. For opinion of the Supreme Court, see 21 Vroom 549. The action below was for a penalty of $100 under section 9 of “An act to prevent deception in the sale of oleomargarine, butterine or any imitation o'f dairy products, and to preserve the public health,” approved March 22d, 1886 {Pamph. L., p. 107), and for a violation of section 4 of that act.

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

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