Volume 52 — New Jersey Law Reports

On case certified for advisory opinion. The following is case so certified, viz.: On February 7th, 1873, an assessment for paving Ogden street, in the city of Newark, was ratified by the common council, including an assessment of $260.45 on property situated on Ogden street, owned by Elias Marsh.

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

Demurrer to pleas. The declaration contained two counts. In substance, the first stated the following facts, viz.: That the plaintiff, on the 10th of October, 1868, obtained a judgment in the District Court for the city and county of Philadelphia, in the State of Pennsylvania, for a certain sum of money, against one William E. Owens; that a fien faeias was issued thereon; that after-wards,, on the 20th of October, 1868, “at the September Term of the said District Court for,…

<p>The act of March 29th, 1878 (Pamph. L, p. 232), authorizing the formation of borough governments in seaside resorts, is unconstitutional, and borough governments formed under it will be dissolved on information filed by the attorney general ex officio.</p>

On demurrer to pleas. This suit was brought against Stout and his sureties upon-his official bond as city treasurer of Newark. The condition, of the bond is, that Stout should “truly and faithfully perform all the duties enjoined on him as city treasurer of the city of Newark.” Stout was appointed treasurer in January, 1867, and continued in office until January 15th, 1875. The bond is dated 'January 11th, 1867, and was made and executed in conformity with the city charter.

<p>1. Statement of mere matters of opinion or judgment, although false, does not constitute actionable fraud in the absence of relations of trust and confidence.</p> <p>2. The false statement of a fact constitutes actionable fraud, hence, if 'a vendor says to a purchaser that the price he asks is the same price that A and B, who are in a like business, are selling at, he states a fact, and if he knowingly misrepresents, he is guilty of fraud.</p> <p>•3. If a person- is dealing with an expert in regard to a matter of which experts only have knowledge, the expert cannot knowingly make a misstatement without -incurring legal liability. The opinion of the expert in such case is a fact.</p> <p>4. Where the right to rescind a contract springs from subsequently discovered fraud, the defrauded party does not lose his right to rescind because the contract has been partly executed, and the parties cannot be fully restored to their former condition. But he must rescind as soon as circumstances permit, and must not go on with the contract after the discovery of the fraud, so as to increase the injury to the fraudulent party by the rescission.</p>

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

<p>Section 3 of the act of May 11th, 1886 {Rev. Sup., p. 510), by which the term of office of the members of the city council, &c., is made three years, does not apply to the alderman of Atlantic City who is ex officio a member of the common council, and elected annually.</p>

<p>This writ of certiorari brings up an ordinance passed by the mayor and common council of Jersey City.</p>

On application for mandamus. These two cases involve the same subject.

On certiorari. The following is the state of the case prepared by counsel: William Mackey, of Oxford township, deceased, in and by his last will and testament, duly admitted to probate by the surrogate of Warren county on July 20th, 1882, provided as follows: “ I give and bequeath to the First Presbyterian Church of Oxford, Warren county, the sum of eighteen hundred dollars to be secured by bond and mortgage, and the interest of fifteen hundred dollars of the same to be used…

<p>1. Fraudulent oral representation by a vendor in respect to the quality of an article sold is admissible in evidence to show deceit, or a right to rescind the sale, although a written warranty as to other qualities of the chattels sold was made at the time of the sale.</p> <p>2. Where fraud in a representation is alleged to consist, not in a knowledge by the vendor of the falsity of the fact stated, but in the falsity of an affirmance that he knew the facts stated to be true of his own knowledge, it is sometimes a question of fact and sometimes one of law whether such an affirmation was made.</p> <p>3. Such an affirmation maybe implied-without express words, and, on the other hand, express words of affirmation of personal knowledge may be nullified by the nature of the facts concerning which the representation was made.</p> <p>4. Bepresentations made by the vendor of a horse that the animal could travel a certain distance in a certain time, when such representations were not coupled with an assertion of personal knowledge of their truth, but with a true statement that the horse had been used in a certain employment, can only be regarded as the expression of a strong . belief in the truth of the representation.</p>

<p>The charter of Hoboken provides that if, after the veto of an ordinance by the mayor, two-thirds of the members of the common council elected shall pass the same, it shall take effect as a law. Under the charter eight members were elected, one of whom had died, and then five members voted to pass a vetoed ordinance. Edd, that it required the votes of six members.</p>

<p>Certiorari bringing up an order appointing commissioners to condemn, and the petition whereon the same was made.</p>

<p>By the provisions of the “Act for building school houses in townships,” approved March 11th, 1880 (Sen, Sup., p. 929), as now altered by the amendatory act of February 22d, 1888 (Laws, p. 93), power is given to the voters of a school district at an armual or special meeting to vote and appropriate money (among other things) for the purchase or acquirement of lands and the construction of a school house, at such place in the school district as the school trustees thereof may designate. Held—</p> <p>1. That the trustees must designate to such meeting the place where the lands proposed to be purchased or acquired lie, and the voters must vote on the purchase or acquisition of the lands so designated.</p> <p>2. That when notice of the object of such meeting should be given it must contain some description of the lands so designated, and a resolution to purchase lands not so designated is not within the powers of such a meeting.</p>

<p>Motion for rule, &c.</p>

Relator obtained a rule on defendant to show cause why a mandamus should not issue requiring him to pay relator $600, received by defendant as county clerk of Middlesex county as fees for licenses granted by the Court of Common Pleas of said county for the sale of liquors, Ac.

Certiorari removing judgment of District Court of Jersey •City. The action was in debt, and the plaintiff’s demand was for $200. This sum. represented a balance thus reached: ‘The plaintiff showed his whole claim to have been $419.66; he reduced the amount by specific credits amounting to $200, and he waived $19.66 of the claim. Defendant filed a set-off for the items for which plaintiff had given credit. Judgment was rendered for $13 debt, and $8.64 costs.

On certiorari to the Court of Common Pleas. Three actions of trespass were brought by the plaintiff below against the defendant in the court for the trial of small causes. Judgmentshaving been given against the defendant in all three cases appeals were lodged in the Court of Common Pleas, where the judgments were in all things affirmed.

<p>Certiorari to the District Court of Hoboken.</p>

On certiorari. This writ brings up for review the proceedings and written determination of Vincent W. Nash and John D. Jaques, two of the justices of the peace of the county of Union, and Philip Radin and Thomas Lee, two of the surveyors of the highways of the township of Fanwood, in said county, who were called upon to view and determine respecting encroachment upon one of the public highways in said township, under section 49 of the Road act.

On certiorari to Salem Pleas. This action was originally brought in the court for the trial of small causes. The justice who heard the case rendered a judgment for the plaintiff in the sum of $50.50. Upon an appeal to the Court of Common Pleas, this judgment was set aside, and a judgment entered for plaintiff in the reduced sum of $40, with costs below, but without costs in the Pleas.

On certiorari. By an ordinance approved March 4th, 1889, the city of Perth Amboy laid out, opened and extended Rector street from its present end or termination through the property of the prosecutrix, and determined to take the land and real estate necessary for the purpose of said extension in conformity with the city charter. The following is a copy of the ordinance in question: Be it ordained by the Oity of Perth Amboy: Sec. 1.

On certiorari. An assessment was imposed by the commissioners of adjustment for the city, of Newark, acting under the act of March 30th, 1886 {Pavyph. L., p. 149), upon the property owned by the prosecutor in lieu of an assessment illegally imposed thereon in 1878 by the comptroller, under the provisions of the city charter.

On certiorari to the Mercer Common Pleas. The writ removes the judgment of the Court of Common Pleas of the county of Mercer, rendered on an appeal from the judgment of a court for the trial of small causes.

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

<p>1. The tax provided for by the supplement to “An act concerning savings banks,” approved April 27th, 1888 (Pamph. L., p. 545), is not a tax on property, and therefore not within the operation of article IV., section 7, paragraph 12 of the constitution, requiring property to be assessed for taxes under general laws, and by uniform rules, according to its true value.</p> <p>2. The exemption from taxation, which that supplement purports to secure, for all the property of savings banks, except real estate purchased under foreclosure, is not the exemption of an entire class of property, and is therefore contrary to the constitutional paragraph above mentioned, and is void.</p>

<p>1. Under the District Court act {Rev. Sup., p. 224), District Courts have jurisdiction in landlord and tenant cases, where the tenant is a body corporate.</p> <p>2. In such cases, the summons should, be served according to section 23 of the act.</p> <p>3. In such cases, the statutory notice to pay the rent in arrears or surrender the premises may be served on any officer or agent of a business corporation, whose duty it is, either in his official capacity or by virtue of his employment, to communicate the fact of such service to the governing body of the corporation.</p> <p>4. It will be inferred, in the absence of proof to the contrary, that a person holding the offices of secretary and treasurer in a business corporation is a proper officer to receive such a notice on behalf of his company.</p>

<p>1. The limitation of two years within which suit may be brought against a national bank, under section 5198 of the United States Bevised Statutes, for taking usurious interest, begins to run from the time when such interest is paid.</p> <p>2. Where commercial paper is transferred to and discounted by a bank at a greater rate of interest than six per cent., and the net proceeds, after deducting the interest charged, are credited to the transferrer, this is a payment of the interest within the meaning of the statute.</p>

<p>1. The duty of common carriers with respect to the transportation of persons or property is a duty independent of contract, arising by implication of law from the fact that persons or property are received in the course of the business of such, employments.</p> <p>2. The plaintiff, a passenger on the defendant’s railway train, received an injury in leaving the depot grounds at the place of her destination, through the defendant’s negligence. In a suit to recover damages for this injury—Held, that the fact that the plaintiff was traveling on Sunday, in violation of the act concerning vice and immorality {Rev., p. 1227), did not preclude her from maintaining the action.</p> <p>3. The duty of a railroad company as a carrier of passengers does not end when the passenger is safely carried to the place of his destination. The company’ must also provide safe means of access to and from its stations for the use of passengers, and passengers have a right to assume that the means of access provided are reasonably safe.</p> <p>4. At the station at which the plaintiff alighted from the cars the track was upon an embankment above the public road, over which the railroad was carried by a bridge. The company had a depot building for passengers on the north side, on a level with the track, at the end of which there were steps, for the accommodation of passengers, leading down to the public road. On the other side of the track there was another stairway resting on the embankment of the railroad, and on the company’s grounds, leading also to the street. This stairway was built and kept in repair by private persons residing in the neighborhood, for their own convenience, as a means of access to and from the station. This stairway had been in use by passengers generally. In use as well as appearance this passageway appeared to have been provided as a means of access to and from the depot grounds. The train reached the depot at 9:35 on a dark and stormy night. There were no lights in the depot, and no person there to direct passengers the way to leave the depot grounds. The plaintiff, in endeavoring to go to this stairway for the purpose of getting- to the public road, fell over some timbers and was injured. Held, (1) that the way of passage taken by the plaintiff being there by the recognition and assent of the company, and held out by it as one of the passageways for the entrance and exit of passengers to the public street, the plaintiff was justified in using it. As between a passenger injured in using the passageway it is immaterial at whose expense the stairway was built and kept in repair. (2) That the company was not absolved from the duty to keep this passageway reasonably safe by the fact that it had provided another passageway which the plaintiff might have taken.</p>

<p>"On 'error to the Supreme Court. For opinion of Supreme ‘Uourt, see 21 Vroom 490.</p>

<p>On error to the Supreme Court. For opinion of Supreme-Court, see 21 Vroom 55.</p>

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

<p>Writ of error to Supreme Court.</p> <p>The opinion of the Supreme Court is reported in 22 Vroom 319.</p>

On error to the Supreme Court in an action for dower. The plaintiff claims as widow of Hezekiah B. Smith, deceased, late of the county of Burlington; the defendants, “ H. B. Smith Machine Company,” are lessees, and the other defendants devisees in fee, and trustees under the will, for establishing and conducting a school for apprentices and young mechanics. The lands in controversy are at Smithville, in Burlington county.

On error to the Hudson County Circuit Court. Prior to the 8th day of March, 1862, Janet Caldwell and her son, John, were seized in fee, as tenants in common in equal shares, of a lot of land situate on a corner of South Seventh street and Newark avenue in Jersey City. By deed dated on that day, containing full covenants, Mrs. Caldwell, with her husband, Francis, conveyed her undivided half of that lot to the son, John, in fee.

<p>On error to the Supreme Court.</p> <p>For opinion of the Supreme Court, see 21 Vroom 235.</p>

<p>On error to the Supreme Court.</p> <p>For opinion of the Supreme Court, see 22 Vroom 140.</p>

The following was the case certified: At the trial of the issues in the above-stated cause before the court, without a jury, the following proofs were made : First.

<p>1. The defendant having insured a steam boiler, which was in a building adjacent to the mill of the plaintiff, and which mill had been injured by the bursting of such boiler; and it appearing that the defendant had co-operated actively with the owner of the boiler in its management —Held, that the defendant was responsible for such damage, if the same was occasioned by its want of care and skill in such transaction.</p> <p>2. In such instances, the owner of the dangerous machine is liable for the immediate and obvious damage caused by its mismanagement, and all persons, whether servants or volunteers, who participate in such mismanagement, are also liable.</p> <p>3. There is a public duty to exercise great care and skill incumbent on those having charge of instruments which, if mismanaged, are highly dangerous to the lives and persons of men who happen to be in their neighborhood; and for the non-performance of such duty a person specially injured thereby is entitled to sue.</p>

<p>1. In a suit against a street oar company, a count alleged that the plaintiff was “ on” a car, and thereby it became the duty of the company “to guard, protect and secure” the plaintiff while leaving the car.-—Held, that the count was bad, as it failed to show any facts giving rise to such duty.</p> <p>2. Another count alleged that-the plaintiff was “on” a car, and that it thereby became the duty of the company to safely and securely carry him, &c.—Held, bad, as the plaintiff might have been on the car as a trespasser.</p> <p>3. A count charging in general terms that the car of the defendant, by the carelessness of the management of those having it in charge, ran over the “body and arm” of the plaintiff, was sustained.</p>

<p>Motion for a new trial.</p> <p>■ The plaintiff was an apprentice to one Duncan Mackenzie, in the iron business. The firm of Furman & Kite, being ■contractors to put up an engine house, engaged Mackenzie to supply and erect the lintels of the door, consisting of iron uprights and cross pieces. The plaintiff and two of his fellow-apprentices were sent by their employer, Mackenzie, to put these lintels in place, and in raising a derrick for that purpose in the engine .house, one of the walls fell upon and injured the plaintiff.</p> <p>The wall in question had been erected by the defendant under contract with Furman & Kite, and there was evidence tending to show that it had been left in a dangerous condition for waut of shoring up.</p> <p>The complementary facts are sufficiently stated in the opinion.</p> <p>The verdict below was for the plaintiff.</p>

<p>On error to the Mercer Quarter Sessions.</p>

<p>■1. When the defendant in a criminal case is not entitled to twenty peremptory challenges and a jury list of thirty-six names has been drawn, such list cannot be added to by the sheriff.</p> <p>2. Qtuxi'e. It is a matter of doubt whether an indictment which charges a rape, and also avers that the girl was under sixteen, can be altered by the court so as to expunge the charge of rape and convert it into an indictment for the statutory offence of carnally abusing such girl.</p> <p>•3. It is also a matter of doubt, whether, if the charge in the indictment for such statutory offence was accomplished without the consent of the girl, the state can succeed when it appears that the offence was with her consent.</p>

One William J. Scott received from the plaintiff a sewing machine on hire with a right to purchase, &c.; that Scott failing to fulfill his stipulations with respect to payment, the plaintiff, in conformity to a condition to that effect in the article of hiring, demanded possession of the machine, which demand was refused and the machine was removed by Scott to some place unknown; thereupon the plaintiff brought an action of trover against Scott and obtained judgment; this…

<p>1. The marriage of a woman after injuries received in a railroad accident, cannot affect her right to recover damages for the loss of her capacity to earn money.</p> <p>2. The question of the loss and the capacity to earn money properly left to the jury.</p>

The plaintiff, who was a woman, was lawfully on the railroad platform of the defendant. A piece of timber projected from one of the cars of a train so as to sweep over such platform, and the plaintiff, in order to avoid being struck by the-projecting timber, was obliged to throw herself on the platform. She did so, and the timber passed over without touching her. By reason of the shock to her nervous system,, occasioned by this peril, her health was seriously impaired.

On demurrer to the declaration. The legislature, on the 4th of April, 1872, passed an act entitled “An act to cede to the mayor and common council of Jersey City certain lands of the state now and heretofore under the tide-waters of Communipaw bay, and to establish a tide-water basin adjacent thereto.” JPamph. L. 1872, p. 1356.

On error to the Camden Circuit Court. An action of replevin was brought by the plaintiff to take .from the possession of the defendant a Singer sewing m'achine belonging to the plaintiff, upon which a- lien was claimed for the amount of the plaintiff’s board at the defendant’s boardinghouse.

<p>In an action of ejectment, the entries of rent paid by and receipts given therefor to tenants, by a person since deceased, are not admissible as evidence of her adverse possession.</p>

'On demurrer. Case certified from the Essex Circuit. The defendants, Amos H. Van Horn and Casper Soer, Jr., were summoned to answer James Van Horn and Emma D. Van Horn, his wife, in tort, for a conspiracy or combination to break up the wife’s separate business of selling fancy goods, ■on consignment, at Newark.

On certiorari. One Catharine Hutchinson filed a complaint before Jesse Pratt, mayor of Camden, sitting as a magistrate.

On certiorari. This writ brings up the proceedings of a meeting held irr School District No. 43, in the county of Sussex, on the 17th day of May, 1888. It was a special meeting, duly called by resolution of the trustees that notice be given that a meeting, would be held on that date, at which meeting would be submitted the question— 1.

<p>On certiorari in case of Georgianna Mackentire.</p>

<p>On certiorari.</p>

<p>On eertiorari.</p>

<p>1. Foreign corporations doing business in this state are subject to a state-tax under the act of April 18th, 1884. Sev. Sup., p. 1016.</p> <p>Such companies are also subject to be taxed for real estate owned by-them in this state, in the township where it is located, under the General Tax law of 1866.</p> <p>3. “ The pipe line ” of the relators is real estate within the-meaning of our tax laws, and subject to be assessed as such.</p>

<p>This court haying, on demurrer to an alternative mandamus, determined that the writ was good and overruled the demurrer—Held,</p> <p>1. Relators are entitled to judgment unless the defendant shows a substantial defence which can be presented by a return, when the court will allow the demurrer to be withdrawn and a return made, on terms of payment of the costs on demurrer.</p> <p>2. When the facts proposed to be set up by a return afford no ground for denial of a peremptory mandamus, permission to withdraw demurrer and make return will not be granted.</p> <p>3. When the matter proposed to be set up by a return raises a question of law which had been raised by the demurrer, the same course will be followed.</p> <p>4. Upon an alternative mandamus directed to two persons, and requiring the performance of a joint duty, a peremptory mandamus cannot issue against one only.</p> <p>5. Costs are the creature of statute; no statute provides for costs to relators who succeed on a demurrer to an alternative mandamus.</p>

On certiorari. This certiorari brings up a resolution of the township committee of the township of Raritan, in the county of Middle-sex, establishing “A district for the purpose of lighting the streets with street lamps,” which, as finally amended and passed, designated by metes and bounds a district called Eb. 1, and declared the rest of the township to be district Eo. 2.

<p>On certiorari.</p>

On certiorari. This certiorari brings up an order of the Somerset Common Pleas, granting to defendants a license to keep an inn. Prosecutor and others remonstrated against the granting of the license, and presented to that court the questions indicated in the opinion.

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

<p>On certiorari.</p>

On certiorari to the Circuit Court of Essex county, where-the following opinion was filed by Judge Depue : This ease wTas argued some time ago, and mainly on a question of law, but also on a question as to the amount of the assessment. I have held the papers, not on the first point, because I had no difficulty about that whatever, but because I thought that the assessment was excessive; and the papers that enabled me to consider that matter only came to my hands recently.

<p>Affidavit insufficient to vest jurisdiction injustice of tlie peace, under landlord and tenant proceedings.</p>

On motion to quash indictment. The indictment was as-follows: The grand inquest of the State of New Jersey, in and for-the body of the county of Bergen, upon their respective oaths present, that heretofore, to wit, at the Circuit Court holden at the township of New Barbadoes, within and for the said county of Bergen, on the eighth day of December, in the year of our Lord one thousand eight hundred and eighty-seven, before Jonathan Dixon, esquire, then being a justice of the…

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

<p>To warrant the making of an order for indemnifying a township, under section 23 of the Bastardy act (Rev., p. 70), notice of the relief sought should be given to the parties entitled to .any residue of the fund in court, and due proof should be made of the facts entitling the township to indemnity.</p>

On certiorari to the Mercer Pleas. The following facts were given in evidence by the defendant, F. A: Dohm, in above case, on the hearing of said case on-appeal by the Common Pleas on May 25th, 1888 : The plaintiffs, holding a promissory note dated November 22d, 1886, made by G. A. Dohm to the order of Benjamin-Gray, for $133.60, and payable three months after date,, endorsed by said Gray to plaintiffs, said note being dishonored and duly protested, brought suit thereon…

<p>1. An affidavit “ that the estate of A B is not resident in this state, and that he owes,” &c., will not authorize the issuance of a writ of attachment.</p> <p>2. Our statute does not purport to allow writs of attachment against executors or administrators, except in the case of joint debtors.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

The suit is on a money bond, in the usual form, executed by husband and wife. The wife filed a plea to the effect that she was a married woman, and that the bond in suit, together with a certain mortgage, was executed by her and her husband to secure part of the purchase money of certain lands conveyed to the husband, and that she received no consideration, and executed bond solely as surety of husband, &c. The plea was demurred to.

<p>On motion to re-tax costs.</p> <p>A Circuit cause having gone off for the term upon the affidavit of the defendant upon the terms of payment of plaintiff’s costs, this motion is made to the court by the defendant to re-tax the bill of costs presented to him by the plaintiff.</p> <p>The facts are as follows: The cause had been upon the day •calendar for Thursday of a week during term, at which time the plaintiff was present, with certain witnesses from a foreign ■county. The cause not being reached on that day, plaintiff was again present with his witnesses on the following day. By agreement of counsel, the cause was then marked by the • court not to be moved before the succeeding Tuesday. On that day the plaintiff and his witnesses were in attendance. 'The defendant then presented an affidavit of his inability to procure a material witness, based upon information received since the cause was last before the court. The court deemed the affidavit sufficient, and ordered that the cause go off upon "the payment by the defendant of plaintiff’s costs. The bill of ■costs now under consideration was thereupon taxed by the ■counsel of the plaintiff.</p> <p>A question arises as to the construction to be given to the '“Act concerning fees and costs,” in so far as it applies to the mileage of witnesses from a foreign county. Rev., p. 408. The contention of the plaintiff is, that he is thereunder entitled to have a mileage allowance for attending court and ■returning taxed for each witness for each day of actual attendance upon court. The contention of the defendant is, that .•such allowance can be taxed but once for each witness, irrespective of the number of days he may have been in attendance upon court.</p> <p>I hereby refer the question above stated to the- Supreme •Oourt for its advisory opinion.</p> <p>C. G. Garrison, Judge.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 22 Vroorn 89.</p>

<p>A judgment debtor cannot defeat Ms own fraudulent conveyance by purchasing, through another, the property conveyed, under a subsequent jiidgment against himself.</p>

<p>1. It is an established rule, in the condemnation of lands, that the just compensation which the landowner is entitled to receive for his land and damages thereto must be limited to the tract a portion of which is actually taken.</p> <p>2. The mere plotting of land upon a map, without more, is not such a, division of it into separate tracts that the owner’s damages must be limited to the particular block, a portion of which, as shown on the-map, is actually taken.</p> <p>3. The law gives as compensation to the owner of lands taken for a public use its fair price for any use for which it has a commercial value-of its own in the immediate present or in reasonable anticipation in-the near future.</p> <p>4. The rule, that the special advantages of the land to the party acquiring-it by condemnation shall not swell the compensation of the landowner, applies to cases where the taking, which is advantageous to the purchaser, is not pecuniarily disadvantageous to the seller. If, however, the advantageous feature is of such a nature that it has a commercial value in the hands of either, then a fair estimate of such valuéis a proper part of the just compensation which the owner is entitled, to receive.</p> <p>5. The situation and surroundings of land sought for railroad purposes-may impart to it a special value for such purposes generally; where-such a value is shown, the owner may reap the benefit of it when compelled to part with his land by condemnation.</p>

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

<p>1. Where the law authorizes a corporation, and an effort is made in good faith to organize a corporation under the law, and thereupon, as a result of such effort, corporate functions are assumed and exercised, the organization becomes a corporation de facto, and private persons who deal with it as a corporation cannot be permitted to say, with regard to those dealings, that it was not a corporation de jure, because some legal formality, not important for their.substantial rights, had not been complied with.</p> <p>:2. Under our act concerning corporations, the recording and filing of the certificate of incorporation are not made conditions precedent to the legal existence of the corporation; they are merely the necessary evidence of such existence, and, when produced, prove the legal existence ■of the corporation “ from the time of commencement fixed in said certificate.”</p>

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

<p>On a reversal in-the Supreme Court of a judgment of the District Court,, the plaintiff in certiorari is not entitled to costs.</p>

<p>On error to the Supreme Court. For opinion of Supreme ■Court see ante, p. 129.</p>

In matter of contested election. The following is the case certified from the Middlesex Circuit Court: A petition, of which a copy is hereto annexed, was presented in the Middlesex county Circuit Court on the 12th 'day of November, 1889, by John H. Conger, contestant, against Patrick Convery, incumbent, duly verified and endorsed by more than fifteen qualified electors of the county of Middlesex, as required by “An act to regulate elections v (Rev., p. 337, § 104), which…

<p>The plaintiff was a child two years of age; she was in the •custody of her sister, who was twenty-two; the former, being left by herself for a few minutes, got upon the railroad track •of the defendant, and was hurt by the car. The occurrence took place in a public street of the village of Phillipsburg. The carelessness of the defendant was manifest, as at the ■time of the accident there was no one in charge of the horse •drawing the car, the driver being in. the car collecting fares.</p> <p>The Circuit judge submitted the three following propositions •to this court for its advisory opinion, viz.:</p> <p>First. Whether the negligence of the persons in charge of. the plaintiff, an infant minor, should be imputed to the said .plaintiff</p> <p>Second. Whether the conduct of the persons in charge of the plaintiff at the time of the injury complained of, was not so demonstrably negligent that the said Circuit Court should have non-suited the plaintiff, or that the court should have directed the jury to find for the defendant.</p> <p>Third. Whether a new trial ought not to be granted, on the ground that the damages awarded are excessive.</p> <p>For the plaintiff, Messrs. Shipman & Son.</p> <p>For the defendant, William II. Morrow.</p>

On rule to show cause. The plaintiff, Harris Feinberg, purchased sixty cows and forty-three calves at the Union stock yard, East Buffalo, New York, and employed the defendant company to transport them from that point to Seeaucus, Hudson county, New Jersey, March 12th, 1888. Part of the freight was paid in advance ■and part, under protest, on delivery of the cattle, March 17th, 1888.

<p>1. A member of a lodge in the Knights of Pythias was accused before his lodge of giving a false age upon entrance; the committee appointed to try him and report their opinion of' his guilt or innocence, reported that they believed a false age had been given, and that a majority of the committee did not believe it had been given with any malicious intent or intent to defraud. Held, that this report did not convict the member of any offence, and that a vote of the lodge thereon, suspending the member for ninety-nine years, without any further hearing or any appeal, was unauthorized and void.</p> <p>2. A grand lodge in the K. of P. has power to reverse the action of a subordinate lodge suspending one of its members, without the regular taking and prosecution of an appeal, and after the death of the suspended member.</p> <p>S. The Endowment Rank of the Order of K. of P. is a voluntary mutual life insurance association, open to members of the order only, and under its constitution, when the action of a subordinate lodge suspending one of its members is reversed by the superior grand lodge, the standing of the member in the Endowment Rank will be deemed in law to have always been the same as if no suspension had taken place.</p> <p>4. A member of the Order of K. of P. actually suspended by his lodge is not subject to assessment in the Endowih^nt Rank until his suspension is reversed, when he becomes bound to pay all assessments levied during his suspension.</p> <p>5. In contracts of life insurance courts do not favor warranties by construction.</p> <p>6. Statements»contained in an application for life insurance are of themselves mere representations, and, in order that they may have the force of warranties, they must not only be made part of the contract, but must also appear, on an examination of the entire contract, to have been deemed conditions upon the literal truth or fulfillment of which the validity of the insurance was intended to rest.</p> <p>7. The known falsity of a representation made by an applicant for life insurance will not vitiate the contract of insurance, unless the representation was material to the contract or was deemed so by the insurer.</p> <p>8. The fact that the representation was made in answer to a question put by the insurer, will ordinarily indicate that it was deemed material; but if, nevertheless, the terms of the contract show that it was not deemed material by the insurer, its known falsity will not vitiate the insurance.</p> <p>9. An applicant for insurance in the Endowment Rank of the K. of R. was required to state,.in his application, to whom he desired the sum insured to be paid and the relationship of the payee to himself; he responded, “ To my wife, Emily Louisa Vivar.” The contract bound . the insurer to pay the sum insured “ to Emily Louisa Vivar, his wife, as directed by said Brother in his application, or to such other person or persons as he may subsequently direct, by will or otherwise.” Held, that the relationship of the payee was not material, and was not deemed material by the insurer, and that Emily Louisa Vivar could recover the sum insured, even though the applicant knew that she was not his lawful wife.</p> <p>10. In the Endowment Rank of the Order of K. of P. the payees of insurance moneys are not confined to the relatives of the members.</p> <p>XI. When a person effects an insurance on his own life and in the policy designates another person as payee of the sum insured, the latter may maintain an action on the policy without showing an insurable interest in the life.</p>

<p>1. In the absence of any statutory or municipal regulations ito the contrary, a tree planted by a private person on the sidewalk of the street in front of his premises, belongs to and is under the control of the owner and occupant of the abutting property.</p> <p>2. Under such circumstances, the owner and occupant of the property is bound to use reasonable care to prevent the tree from becoming dangerous to travelers upon the street, and every -person, specially injured through a breach of that obligation, is entitled to a private action against the party in fault to recover compensation for the damages-arising therefrom.</p> <p>3. Under the circumstances stated, the owner and occupant of the abutting: premises is chargeable with knowledge of his duty.</p>

On case certified from the Essex Circuit. The questions arising upon the following facts, determined' upon the trial of the above stated cause at the Essex County-Circuit ‘ Court, are certified to the'Supreme Court for its-advisory opinion: .

<p>1. The township committee of the township of Summit had power under the act of April 2d, 1888 {Pamph. L., p. 366), to make a contract for supplying the township with water.</p> <p>2. The acts of May 9th, 1884, and April 17th, 1884, invest the township committee with the charge or control of the water supply for the township. Rev. Sup., p. 654, pi. 723, andp. 655, pi. 725.</p> <p>3. The fact that the water supply is not carried to every part of the township does not invalidate the contract.</p>

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

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

<p>. On certiorari to remove an indictment for misdemeanor.</p>

<p>1. An enacting clause cannot extend the operation of the statute beyond' the objects expressed in its title. Dobbins v. Northampton, 21 Vroom 496.</p> <p>2. Where words employed in the title of an act have no legal or other fixed meaning, the body of the act may be looked to in determining the sense in which words are employed in title.</p> <p>3. Held, that “An act to provide for drainage and sewage in densely populated townships in which there is a public water supply,” is not limited to townships in which the ownership of the plant which supplies - the water is in the public, a more reasonable. construction being, that it applies wherever the supply of water is available for the public use in question.</p>

<p>On certiorari.</p>

On certiorari. On the 18th day of December surveyors were duly appointed by the Court of Common Pleas of the county of Cape May for the alteration of a public road in said county, the said alteration involving the vacation of a part of an old road and the laying out and.construction of a new one. The return of .the surveyors was filed January 19th, 1889. No «caveat was filed. The return of-the surveyors was recorded, and the work thereby authorized was begun and completed.

On certiorari. The writ of certiorari in this case brings up the proceedings of the mayor and council of the city of Bayonne for the opening of East Twenty-second street between the easterly side of Avenue E and the westerly .side of Avenue I, and the assessments therefor, and the ordinances authorizing the same, with all maps, reports, resolutions, records and notices connected «therewith.

On certiorari. The board of chosen freeholders of the county of Hunter-don presented to the Chief Justice a certificate that it was unable to agree with the board of chosen freeholders of the-county of Somerset as to the location of a bridge proposed to-be erected across a part of a stream known as the South branch of the Raritan river, said stream being the dividing line between said counties, and the Chief Justice fixed a time- and place for a summary inquiry into the…

<p>On certiorari.</p>

On error to ¡Supreme Oouirt. On quo warmnto. On April 3d, 1.889, the legislature passed an aot ¡entitled . ““An aot to reorganize the hoard ¡©if (chosen freeholders in «counties of the first class in this state.” Pampk. L., p. 1-63. The general scheme of the act is to substitute a board of chosen freeholders elected by assembly districts for a board, elected by townships and wards in counties of the first class. The act now affects only Essex and Hudson counties.

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

<p>1. If a municipal corporation is invested with full power to lay out and1 open streets, its authority is exclusive, and no other tribunal cani assume jurisdiction within the corporate limits.</p> <p>2. The legislature having directed, by an act passed March 1st, 1850,. that compensation shall be made to landowners for lands taken for-public highways, it is not now, by reason of the provision in the constitution of 1844, competent for the legislature to pass an act author- • • izing lands to be taken for highways without compensation.</p> <p>3. The supplement of 1871 to the charter of Keyport (Pamph. L., p. 382,. § 2) makes it the duty of the board of commissioners when they lay out a new street, to order that it be opened within a reasonable time, and an assessment made to the landowners for lands taken for the- . street.</p> <p>4. The mode of assessment prescribed in section 2 of said supplement is. not a constitutional mode of making the assessment, but the act of March 12th, 1878, with its supplement of March 12th, 1880, cures the-defect, and it is the duty of the town commissioners to apply for an assessment to be made in accordance with those acts.</p> <p>5. The authorities of Keyport have exclusive jurisdiction over the subject of laying out streets or highways within the town limits.</p>

On error to the Supreme Court. The action was brought by the firm of J. H. Lane & Cor against Thomas R. & James Watson, as endorsers, upon a promissory note for $5,000 and interest, dated and payable in , New York, and made by The Passaic Bleachery, a New Jersey-corporation, to the order of said Watsons. After the action had been once tried, a rule to show cause--was allowed and afterward made absolute upon the opinion, reported in Lane v. Watson, 22 Vroom 186.

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

<p>• On error to the Supreme Court.- For opinion of Supreme Court, see ante, p. 60.</p>

<p>On error to the Supreme Court. Eor opinion of Supreme •Court, see ante,p. 119.</p>

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