Volume 53 — New Jersey Law Reports

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

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

<p>When there is a contract between two persons for the benefit of a third, the two may rescind at any time before acceptance by the third.</p>

<p>1. When untrue answers to interrogatories propounded in writing to the applicant at time of his procuring a written contract from a society calling for the payment of a certain sum, and there is no allusion in such contract to such answers—Held, such answers are not warranted to be true, but are mere representations.</p> <p>2. If representations of this sort are willfully false, and constituted in part the basis of the contract, the contract will be void on the ground of fraud.</p>

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

<p>1. .The constitutional provision with regard to prosecutions for libel {Art. I., $ 5) was not intended to affect the duty of the court, on such prosecutions, to decide all questions of law relating to the admission of testimony and such other matters as are preliminary to the final submission of the case to the jury; nor to affect its duty to instruct the jury respecting their legitimate province in the decision of the cause, and respecting those general principles of the criminal law and of the law of libel, which are of a technical nature.</p> <p>2. This provision does not deprive the court of the right to express to the jury its opinions touching the character of the particular publication charged as libelous, and the motives and ends presented for its justification.</p> <p>3. This provision enjoins upon the court the duty of admitting evidence tending to show the truth of the publication and the motives and ends of the defendant in publishing it; and it declares and secures the right of the jury to decide for themselves, with proper regard to the views of the court, whether the meaning and tendency of the publication are such as to bring it within the legal definition of a libel, whether it was privileged under common law rules, and whether it was true and published with motives which to them appear good and for ends which to them appear justifiable.</p> <p>4. Although a sentence in the charge of the court to the jury be incorrect, if taken alone as an abstract proposition, yet if, when taken in connection with the rest of the charge and as applicable to the facts of- the case, it is substantially correct, it will not be deemed erroneous.</p> <p>5. The refusal of the court, in a prosecution for libel, to express an opinion whether certain portions of a libelous newspaper article are libelous, is not an error requiring the reversal of a conviction, especially if; in the view of the court sitting in review, those portions were libelous.</p> <p>6. The challenge of a juror “for cause” is insufficient, unless it be stated whether it is for principal cause or to the fiivor, and set forth the facts on which it rests.</p> <p>7. If a challenge of a juror for cause, presented by a defendant, be improperly overruled, and then the defendant challenges the juror peremptorily, and does not exhaust his right to challenge peremptorily before the whole jury is empaneled, the error cannot have prejudiced him in maintaining his defence upon the merits, and so under our statute forms no ground for reversing a conviction.</p> <p>8. A question, on examination of a witness, which contains an unwarranted assumption of a fact, may properly be overruled.</p>

<p>1. If an indictment avers that certain acts essential to the crime of publishing a libel occurred at the city of Newark, in the' county of Essex, wherein the venue is laid in the margin, and then sets out the libelous publication, in the body of which “ Hoboken, Hudson county, N. J.,” is mentioned, and then proceeds to aver that other acts essential to the •crime occurred at the city and county aforesaid, the' place last referred to is Newark, in Essex county.</p> <p>% The criminal publication of a libel is complete when the accused, with intent to scandalize, affords, or causes to be afforded, to another the opportunity of learning the contents of the libelous instrument, although in fact the contents do not thereby become known.</p> <p>3. An allegation that the defendant “ published,” or “ caused to be published,” the libel, is sufficient, even though the libel be in a foreign language, the word “published” being the proper and technical term to denote an illegal publication.</p> <p>4. If a libel set out in an indictment expressly attacks a person in his professional character, that fact sufficiently shows that, if published, it was published of him in that character.</p> <p>5. If an indictment presents with reasonable certainty all the facts necessary to render the offence judicially apparent, it should not be quashed.</p> <p><6. On indictment for the publication of a writing under a qualified privilege, the court charged that if the defendant published it from malice, to gratify a feeling of revenge for supposed injury, he was guilty. Held, not erroneous, as a response to the defendant’s request to charge that the state must prove express malice.</p> <p>'7. The legality of certain questions, on the examination of witnesses, considered.</p>

<p>On error to the Burlington County Quarter Sessions.</p>

<p>1. In an indictment for being a common scold, it is not necessary to set out the specific facts which show the accused, to be a common scold; it is sufficient to charge that she is a common scold, to the common, nuisance of the public.</p> <p>2. It is the habit of scolding, resulting in a public nuisance, which constitutes the offence; and whether the scoldings by the defendant have been so frequent as to prove the existence of the habit, and whether the habit has been practiced under such circumstances as to disturb the public peace, are questions for the jury alone.</p> <p>8. In all criminal trials, it is the right of the accused to have all the relevant testimony, including that relating, to.his good repute, considered by the jury, and if, on such consideration, there exists reasonable doubt of his guilt, even though that doubt be engendered merely by his good reputation, he is entitled to an acquittal.</p>

<p>1. An act giving authority for the construction of works to supply the city of Rahway with water was by its terms to take effect immediately, but ' it was also enacted that its provisions should remain inoperative until assented to by a majority of the voters of the city at an election held therein. A supplement to that act repealed the clause requiring the-previous assent of voters and revived and continued the original act. Held, The object of the latter act was sufficiently expressed by its title—“A supplement to,” &c.—to satisfy the constitutional requirement.</p> <p>2. The act gave authority to certain commissioners to issue bonds of the city for certain purposes. Held, That the commissioners were thus made agents of the city to issue such bonds, and an averment in a declaration upon such bonds, that they were issued by the city, was propel.</p> <p>3. The act provided that the bonds were to be denominated on their face “ Rahway City Water Bonds.” Held, That as such denomination was not made essential to the validity of the bonds, it was not necessary to aver in a declaration upon such bonds, that they were so denominated ; but, if necessary, an averment that the bond's were writings denominated “ Rahway City Water Bonds,” is sufficient.</p> <p>4. Nor was it necessary to aver in such a declaration that certain duties, which the acts required to be done by city officials after- the issue of the bonds, had been performed, for the non-performance of such duties could not affect the validity of the city’s obligations previously issued.</p>

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

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

<p>. On certiorari to District Court.</p>

On rule to show cause why mandamus should not issue requiring the board of finance of Jersey City tc> forthwith appropriate, raise and pay to relators $25,533.15. The rule was allowed February 15th, 1890.

Certiorari bringing up the “ Ordinance to provide for the opening of Summit avenue, from Malone street to the Hackensack turnpike,” and the proceedings of defendant connected therewith.

<p>At the time of making an assessment of the costs and expenses of constructing a main sewer upon the property benefited thereby, certain lateral sewers had been built connecting with the main sewer and furnishing drainage thereby to property by which they were laid. Held—</p> <p>1. That it sufficiently appeared thereby that the property by which the lateral sewers ran acquired a benefit by the construction of the main sewer for which it might be assessed; and</p> <p>2. That an assessment of the whole costs and expenses of the main sewer upon property benefited, not including that property lying along the lateral sewers, cannot be sustained, because it imposes upon the property assessed more than its proportion of the burden.</p>

This was an action of trover to recover damages for the conversion of a “ Hogel drying machine,” with countershafts and pulleys.

On rule to show cause. Hoppaugh & Wilson made a contract in writing with George M. Douglas to construct and erect for him a dwelling house and stable according to plans and specifications prepared by an architect.. Hoppaugh & Wilson sub-contracted with McGrath to do the mason work and provide the materials for the same. After the buildings were erected Douglas sued Hoppaugh & Wilson to recover damages for defective workmanship and materials.

On certiorari to review a resolution of the board of fire •commissioners dismissing the plaintiffs from service as firemen. Lyon and Johnson were “ call members ” of the fire department of the city when the board of fire commissioners was organized. Johnson was also an honorably discharged Union .soldier.

<p>Tbe defendant is a duly incorporated social club, wbicb out of its common fund purchased liquors in tbe name of tbe club and kept tbe same for tbe benefit of all its members. These liquors were kept with other supplies of tbe club in tbe butler’s pantry or in the cellar-. There was in the club room no liquor or wine room to which the members had the liberty to resort and drink. Any member of tbe club in the club bouse could give an order to a servant or attendant in the club, or to the steward, written or verbally, at his option, and the liquor so ordered was served to him. He then at tbe time it was served paid for it to tbe steward, or signed a memorandum check which was written by the steward, and he paid for it afterwards as charged against his account, which was presented to him at the end of each month. No one but a member could pay for such liquors so ordered. A member could bring a friend to the club once or twice a year, but he could be served only while in the club house upon the order of a member, and the charges were required to be paid by the member. Except in this way, no one but a member could be admitted. This disposition of the liquor was not for the purpose of making a profit out of the member, or for the purpose of evading the law. The club had no license to sell liquor. Held, that this constituted a sale of liquor by the club, and that the club was liable to the penalty provided by the city ordinance for selling liquor by retail without license.</p>

<p>1. The commencement of a railroad, within the meaning of the General Railroad law (Her., p. 934, $ 34), is the actual commencement of the work of constructing the road.</p> <p>2. The work on the road of the defendant company was commenced in December, 1885, and the time for completing it expired in December, 1887, bringing the case within the act of 1887 (Pamph. L., p. 65), by force of which the time for completion was extended to December, 1889. The time was again extended for two years by the act of 1889. Pamph. L., p. 135.</p> <p>3. The fact that the act of 1889 applies only to railroads organized under the General Railroad law does not specialize it. Railroads organized under the general law are a class by themselves, and therefore the law is a general law.</p>

<p>On rule to show cause for certiorari to remove redistricting ordinance.</p>

<p>Qn certiorari to the board of police commissioners of Jersey City.</p>

<p>On rule to show cause why the writ of mandamus should not be dismissed.</p>

On rule to show cause why an information in the nature of a quo warranto should not issue against the defendant to inquire by what authority he holds and exercises the office of director at large of the board of chosen freeholders of the county of Hudson.

<p>On certiorari to the Court of General Quarter Sessions of Middlesex county.</p>

<p>On an appeal taken from the judgment of the Circuit Court in a disputed election case, under section 113 of the act to regulate elections, there must be some formal act done in the court from which the appeal is .taken.</p>

On certiorari. This writ of certiorari brings up an ordinance passed by the-common council of the city of Trenton.

<p>The terms of the aet requiring, in case of a bond and mortgage given for the same debt, that the mortgage shall be first foreclosed (Rev. Sup., p. 490), are not waived by giving, with the bond, a warrant to confess-judgment; and a judgment entered upon such bond before the foreclosure of the accompanying mortgage is irregular.</p>

On certiorari. This writ brings up a judgment of the Mercer County Court of Commou Pleas affirming a judgment taken to that court from the District Court of the eity of Trenton. The plaintiffs in the District Court claimed the sum of $97.40 for iron castings sold and delivered to defendant.

This is a motion to set aside the service, of a summons upon a foreign corporation. The Press Publishing Company is a-corporation organized under the laws of the State of New York and doing business in New York city. It publishes the New York World newspaper. The plaintiff brought, in our Supreme Court, an action against the defendant named and another— an action for libel. The summons was served by the sheriffs of Essex and Union-counties.

The parties to this action are the same as in the preceding one. After the rule to show cause why the service of the summons in the former action should not be set aside-was granted, testimony was taken by the defendants to be used upon the argument of that rule. The testimony was taken before a Supreme Court commissioner in Jersey City.

On motion to quash a return to a writ of peremptory mandamus and to attach the defendants for contempt for disobedience of the commands of the writ.

On certiorari. This writ brings up assessments for taxes in the borough of Manasquan for the year 1888 and for the year 1889.

On certiorari. This writ of certiorari brings up a conviction, judgment and commitment made by the mayor of the borough of Vine-land.

<p>This writ of certiorari brings up an ordinance passed by the board of excise of the city of Camden.</p>

This writ of certiorari brings up a judgment of the Atlantic Court of Common Pleas, entered upon an appeal from a justice’s court. When the cause was moved in the Court of Common Pleas the counsel for the appellant and defendant made an offer of testimony, which was overruled by the court. The overruling of this offer is the single ground of complaint.

<p>Oil certiorari.</p>

<p>On certiorari.</p>

<p>The return of the surveyors appointed to open a public road is accompanied by a map which shows the prosecutor’s dwelling house as standing clear of the road described in the return. There is nothing in the return to indicate otherwise. Held, that the prosecutor is not entitled to have this return disturbed because an expert surveyor employed by him is of opinion that the courses and distances described in the return include part of the prosecutor’s dwelling.</p>

On certiorari to the Court of Common Pleas of the county of Monmouth. The writ in this case issued to the Court of Common Pleas of the county of Monmouth, to bring up for review a matter of road, wherein, on the return of four surveyors laying out the road, there was an omission to assess damages to the owners for lands taken in the laying of the road, and the assessment of damages to others whose lands were not taken.

<p>1. The assignee of a certificate of stock refused to accept the transfer of the certificate, unless the transfer was signed by the principal herself. Held, that the shares passed to the assignee, if the owner’s name was signed by an agent duly authorized for that purpose, although the purchasei supposed the signature was that of the principal.</p> <p>2. The principal said, to a person who was negotiating with A for the purchase of a tract of her land, that A was authorized to sell her land and that he transacted all her business. Held, that. this furnished no ground for the assumption that A was authorized to dispose of her choses in action, or transfer her shares of stock.</p>

<p>An arrest under a tax warrant is illegal unless tlie officer Iras at the time tire warrant with him, so that he can exhibit it if required.</p>

<p>1. In a declaration under the statute against heirs and devisees, it is not necessary to aver that the personal estate of the decedent is insufficient to pay his debts.</p> <p>2. If the endorser of a promissory note die, leaving lands, before its maturity, his heirs or devisees may be sued, under the statute, upon the contract of endorsement.</p>

<p>On writ of error to Supreme Court, bringing up the record of the ease tried at the Bergen Circuit.</p>

<p>1. The General Tax act of April 11th, 1866 {Rev., p. 1150), is a law providing for the taxation of property to afford revenue for local purposes. The Tax act of April 18th, 1884 {Rev. Sup., p. 1016), imposes a-franchise tax on certain corporations to provide revenue for the state.</p> <p>2. The act of 1866, taxing property, is not superseded with respect to the-taxation of corporations by the act of 1884, imposing a franchise tax. Both schemes of taxation apply to foreign as well as domestic corporations.</p> <p>3. A foreign corporation, owning a “ pipe line ” for carrying petroleum, which.is laid under ground, under a grant by the owner of the fee, is taxable for the “ pipe line ” as real estate in the township where it is located, under the definition of real estate contained in the third-section of the act of 1866, although the owner of the fee has reserved, the use of the surface for cultivation, &c.</p>

<p>1. One railroad company may condemn the right to cross the lands of another company of the same character, although those lands be necessary for the railroad purposes of the latter company.</p> <p>2. In such a condemnation, all that is acquired is the privilege or easement of crossing. The place of crossing is to be and remain in the . " common use of both companies, for the exercise of their respective franchises.</p> <p>' 3. The condemning company may, by its petition in condemnation proceedings, designate a lawful manner in which it will cross the lands of the other company, and make compensation for that single manner of crossing, in which case it can thereafter cross only in accordance with the plan thus designated.</p> <p>4. When such petition prescribes the manner of crossing, the legality of the plan and manner of crossing proposed may be reviewed, in the Supreme Court, upon certiorari.</p> <p>5. Upon due compensation, the present use of the lands for the railroad crossed must yield to any necessary interference by the crossing road which will not destroy the reasonably fair enjoyment and exercise of the franchises of the company whose lands are crossed.</p> <p>6. Where the condemning company fails to define in its petition how it will cross, and seeks to condemn the privilege of crossing generally, the damages are to be assessed, not only for any manner of crossing at present lawful and necessary, but also for lawful changes in the manner of crossing in the future.</p> <p>7. In such case, like the case where the manner of crossing is designated, a mere privilege or easement of crossing is acquired, the land being subject to a like privilege or easement in favor of the road crossed.</p> <p>8. If in the use of such easement, whether it be acquired under proceedings to condemn a crossing in a specified manner or under proceedings to condemn a crossing generally, conflict should at any time arise between the companies entitled, the interposition of equity may be invoked to secure to each company the enjoyment of its privilege in a just and lawful manner.</p> <p>9. In condemnation proceedings by a railroad company, the lands sought to be condemned must be within the located route of the condemning company, and must be described with certainty, so that they shall be capable of definite and unmistakable ascertainment. Uncertainty in this respect will vitiate the proceedings.</p> <p>10. Under the act to authorize the formation of railroad corporations and; regulate the same, approved April 2d, 1873 (Seo., p. 925), and its supplements, a railroad less than a mile in length may be built, and an independent company may be organized to build a railroad which will, connect two existing railroads.</p>

<p>•On writ of error to the Circuit Court of Atlantic county.</p>

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

<p>An entry in the minutes of the Supreme Court, that a judgment of a court for the trial of small causes, brought into the Supreme Court by certiorari, be affirmed upon an agreement by the counsel-of the parties “ that a formal affirmance be entered, to the end that a writ of error may be taken,” does not disclose such a judicial determination as will support the issuance of a writ of error from this court.</p>

<p>1. Two distinct misdemeanors may be charged in different counts of the] indictment; they should be tried and passed upon by the jury and court as several offences. '</p> <p>2. When the indictment contained a count charging embezzlement and another charging a larceny, and the jury found the defendant guilty “ of larceny and embezzlement as he stands charged in the indictment ”—Held, the proceeding was regular.</p> <p>3. Upon such a finding it is irregular in the court to pronounce a single indiscriminate sentence conjointly for the two offences; but the judgment for that will not be reversed, it appearing that the punishment thus inflicted is not greater than the punishment provided for either of such misdemeanors.</p> <p>4. Nor will such judgment be reversed in consequence of the counts charging one of such misdemeanors being fatally defective; the intendment will be that the sentence was pronounced on the good count.</p> <p>5. A challenge to the array will not be sustained founded on the fact that in making up the jury list before the Pleas, the assistant clerk, and not the clerk, who was sick, officiated; for such a function the assistant has full competency.</p> <p>6. A juror who has sat in a previous trial of the defendant for one of a series of embezzlements closely connected with each other, cannot sit, if challenged, on the pending trial of another of such series of misdemeanors.</p>

<p>1. In condemnation proceedings, where the damages done to a farm by the location of a railroad arises entirely from its changed agricultural conditions, a farmer is an expert with respect to the value of the lands before the laying of the road, as compared with their value after that transaction.</p> <p>2. But when, beyond this, the value of the lands has been affected in-' juriously in other ways, as from its exposure to be fired bypassing locomotives, &c., a farmer cannot make such a comparison of values as an expert.</p>

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

<p>An indictment described a public road to be in the township of Lodi, and that, between certain termini, it was in bad repair; the evidence showed that the boundary of this township ran only to the centre line of the road, and that one-half of the road was in another township; there was a conviction. Held, on error, that the judgment should be reversed.</p>

On error to the Middlesex Quarter Sessions. The case was tried before John H. Stewart, Esq., law judge of Mercer county, who had been appointed by the chief justice to'preside at the Middlesex Quarter Sessions during the sickness of Judge Cowenhoven.

<p>If, in ap. action where a set off is pleaded, the plaintiff be non-suited at the-trial, the defendant is not precluded thereafter from maintaining an action upon the demand which he had interposed' as a set off.</p>

<p>On contract.</p> <p>The questions of law arising in the foregoing cause, and reserved for review, are the following, viz.:</p> <p>First. At the trial of this cause before the Circuit Court fhe plaintiff proved-his bill of particulars and rested. The defendant then offered in proof the contracts under which the erection of the buildings had been undertaken by the contractor. These contracts were executed not by Mrs. Earl, as -owner, but by Harry Earl, her husband, in his own name. It appeared that these contracts had been duly filed before the buildings had been begun. Objection was made by the plaintiffs, that contracts made with a contractor by a person other than the owner were not such contracts as under the Mechanics’ Lien law would protect the property from liens; which question is hereby certified to the Supreme Court for its advisory -opinion.</p> <p>Second. There was evidence in' the case tending to show ■that before the buildings were completed, the contractor and builder mutually abandoned the building contracts. It also ¡appeared that all of the plaintiff’s bill of particulars had been furnished prior to such abandonment. Plaintiff contended ¡that, upon such abandonment being shown, the power of the -contracts, though filed to protect the buildings, was gone. This question is also certified to the Supreme Court for its advisory opinion.</p> <p>Third. It appeared that during the erection of the buildings begun under the contracts filed, modifications and extensions were agreed to between the builder and contractor, and em-bodied in written contracts between them, which were not filed ■in the clerk’s office. The court held that the failure to file these contracts, in the condition of the testimony, would not •destroy the efficiency of the contracts which were filed to protect the buildings from materials subsequently used under such supplemental contracts; which question is also certified to the ■Supreme Court for its advisory opinion.</p>

<p>1. A common council, being constituted as it will be when a term of office about to expire shall end, and having authority to appoint the successor of the incumbent, may lawfully make such appointment before the expiration of the current term.</p> <p>.2. IVhen a statute empowers the council of a city to appoint to a certain office, an ordinance of the council which, if enforced against succeeding councils, would defeat or materially impair their power of appointment, is void.</p>

On demurrer to a plea to an information filed by the Attorney General ex officio, calling the mayor and council of the borough of Clayton to answer by what warrant it claimed to act as a municipal corporation.

<p>A passenger, entitled to a ride on a railroad train, and who was smoking, entered the forward compartment of a combination car, which was^ arranged for persons smoking. The car was the rear car of the train,■ and the rear compartment of it was arranged for the carriage of baggage. He found every seat in the smoking compartment occupied; and passed into the baggage compartment. There was a rule of the-railroad company requiring those in charge not to permit passengers-to ride in baggage cars. But of this rule the passenger had no knowledge. lie and other passengers had frequently before been permitted' to ride therein without objection, and the conductor had accepted and punched their tickets while in that compartment, as he did on the-occasion in question. By the company’s negligence, a train proceeding in the same direction, on the same track, ran into the rear of the train on which the passenger rode, and he was thereby injured. Held, that by taking his position in the baggage compartment under such circumstances, the passenger took the risk of any injury from dangers inherent in the construction or use thereof for the purpose of carrying baggage, but that his conduct, even if it be considered as contributing,, to an injury received from extraneous causes, such as a collision, could: not he deemed to have been negligent, and that a charge to that effect was not erroneous.</p>

On rule to show cause. Plaintiff’s action was brought to recover damages for an injury received by him by reason of his foot having been •drawn into the machinery of a steam dredge, whereon he was •employed as a “deck hand.” The dredge was owned by •defendant, and was, at the time, used in dredging, the James river, near Richmond, under a contract with the United States government.

The above entitled writ required defendant to certify to this court the proceedings and assessments for the construction of a brick sewer through Fifth street and Ingham' avenue, from Cottage street to the Kill von Kull, in the city of Bayonne. Six other similar writs issued in behalf of other prosecutors.

The action was brought on a promissory note made by ■defendants’ testator to the order of plaintiffs, as trustees for Mary F. and Thomas Newbold.

<p>1. Under the Police Tenure of Office act of March 25th, 1885 {PampA. L., p. 163), “ the appropriate municipal board, officer or authority ” by which charges preferred against members of the police force are to be investigated and tried is that department of the municipal government in which by the charter or general laws the power to remove is lodged.</p> <p>2. Suspension for a specified time without pay is a removal from office pro tanto, within the spirit and meaning of the act.</p> <p>3. By the charter of Plainfield, the power of removal is conferred upon the common council, and that power cannot be delegated to a board established by ordinance called “ The Board of Police.”</p>

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

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

<p>1. The city of Camden has power by its charter, and the statute relating to railroads and canals (Meo., p. 944, \ 163), to pass an ordinance vacating part of a public street, and contracting with a railroad company for an elevated approach in the remaining part of the street to the abutments of a bridge to be constructed across railroad tracks laid in another street, and for a depression of said tracks; giving compensation to abutting landowners sustaining peculiar damages to their private rights.</p> <p>2. The duty of a railroad company to construct and keep in repair good and sufficient bridges or passages where any public road shall cross the same, is continuous.</p> <p>3. The consent of a majority of owners in interest of the lots fronting on the part of the street proposed to be altered, which has been built upon, will not be required under the Eoad act of 1858. Meo., p. 1009, I 73.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. It is the duty of the county collector of Monmonth county, under the-act of 1889 (Pamph. L., p. 325), to publish his financial statements of county affairs in all the newspapers of the county designated by the-governor and comptroller to publish the laws.</p> <p>2. The board of freeholders may cause the publication to be made in papers other than those designated to publish the laws, but the collector must publish in the papers so designated.</p> <p>■3. The limitation of thirty days in the law of 1889 refers to the time within which the board of freeholders may designate additional papers, ' and not to the time within which the collector shall publish in the papers designated to publish the laws.</p>

<p>1. A justice’s court has no jurisdiction of a suit against a foreign corporation.</p> <p>2. A judgment of a justice’s court in such suit is reversible either by certiorari, or .upon appeal to the Common Pleas.</p> <p>3. An appeal in such case to the Common Pleas, which is dismissed because it was not perfected and prosecuted, is no bar to the remedy by certiorari.</p>

<p>On certiorari.</p>

Two writs of certiorari, with a single return to both, argued together. These writs of certiorari bring up an order, made by a •Justice of the Supreme Court, appointing commissioners to assess and appraise the damages which the prosecutors may sustain by reason of the erection of a telegraph or telephone line over their land.

■ On motion to strike out pleas. The pleas were filed in answer to a declaration in an action-upon a bond given in a bastardy proceeding.

<p>A judgment was obtained in the State of New York upon certain notes. A new action was afterwards begun in this state upon the same notes-Later an action between the same parties was begun in this state upon the New York judgment. Held, that a plea in abatement filed in the last action setting up the pendency of the action upon the notes, was' bad, as the respective causes of action were not the same.</p>

On certiorari. A writ of certiorari directed to the mayor and common council of the city of Millville, required that body to certify to this court its resolution of June 12th, 1889, removing the' prosecutor from the office of constable of the First ward of said city.

On error. This cause was tried at Essex Circuit before the court without a jury. The court found the following facts to have been proved: On February 27th, 1889, James S. Cunningham was the owner of the goods and chattels described in plaintiff’s declaration. Previous to that day judgments had been entered against said Cunningham in favor of J. C. Smith and others, creditors, on which there was due $337.01.

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

<p>' 1. A mortgagee cannot convey to a third person the- premises mortgaged,. himself retaining the debt intended to be secured.</p> <p>■ 2. Such a conveyance is a nullity.</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>

On error to the Hudson County Circuit Court. The plaintiffs, Helena Schultz and Valentine Schultz, were the owners of a lot of land in Bayonne, Hudson county, upon which there was a building erected on brick piers set from three feet to three feet and a half in the ground. The defendant, who owned the adjoining land, excavated to the depth of seven feet within three or four inches of the plaintiffs' building, and erected a house thereon.

<p>1. In an action of assumpsit, in which the statute of limitations had been pleaded, the plaintiff under his replication produced testimony competent to prove that payments within six years had been made, on account of the debt in controversy, as part of a system of partial pay- • ments begun twenty years before, by which the defendant had undertaken to pay off the entire debt, and for this purpose introduced written and oral declarations of the debtor that had accompanied the said payments at the inception of the undertaking and during its continuance. Held,- that such testimony was competent, and that the plaintiff was not confined to the proof of such matters only as had happened within six years.</p> <p>2. Payments made to a creditor’s widow, pending administration upon his estate, will, if ratified by the administrator, take the debt out of the statute of limitations, upon proof that they were made as part payments upon the debt in controversy.</p>

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

<p>On appeal from the judgment of the Circuit Court of Middlesex county in a case of contested election.</p>

<p>On indictment for larceny. On error to the Sussex Quarter Sessions.</p>

<p>Indictment for prison breach.</p>

<p>1. According to the Colonial act, passed June 20th, 1765 (All. L., p. 269), there existed, at and after the passage of the act, a public highway, six rods wide, extending through the Elizabethtown Point tract to the waters of Arthur’s Kill.</p> <p>2. Prior to November 12th, 1874, there was a public highway extending through the Elizabethtown Point tract to the waters of Arthur’s Kill, and on that day the State of New Jersey granted to the Central Railroad Company of New Jersey the land below the original high-water line in front of the highway, with all the rights of the state therein. .Held, that the highway did not thereafter extend below the original high-water line over land artificially reclaimed. Hoboken Land and Improvement Company v. Hoboken, 7 Vroom 540, distinguished, and Hoboken v. Pennsylvania Railroad Co., 124 U. S.- 656, followed.</p> <p>3. A private grant of the state, obtained by false suggestion, is not deemed void in collateral proceedings if the false suggestion does not appear on the face of the grant.</p>

<p>.1-. An indictment under section 191 of the Crimes act as amended (Rev. Sap., p. 199, § 43) charged defendants with conspiring to pervert and obstruct the administration of the election laws by doing certain acts with intent to unlawfully influence the result of a certain election. Held, that.a crime under the pi'Q.visipns of that section was sufficiently shown. . .</p> <p>2. When a jury has been struck for the trial of an indictment against two or more defendants for a crime not within section 71 of the Criminal Procedure act permitting twenty peremptory challenges, the defendants collectively, and not separately, are entitled to only three peremptory challenges. The act of April 4th, 1878 (Pamph. L., p. '284), does not apply to struck juries.</p> <p>3. A struck juror is not a petit juror within the meaning'of that clause of section 6 of the Jury act -which makes service as a petit juror within three previous stated terms of the court a ground of challenge.</p> <p>4. A principal challenge was interposed, and the sole cause alleged for the challenge was that, from what he had read, the juror had formed an opinion- of the guilt or innocence of the accused. Held, in accord with the-doctrines of-$f(tfe v.Fox, 1 Hatcher 566,,-(1)-that-neither the formation nor the expression of an opinion of the guilt of the accused will be sufficient to disqualify; (2) while an expression of such an opinion showing malice or ill-will toward accused will disqualify, and he ground- of principal, challenge; yet (3) such expression of opinion will not, of itself, establish such malice or ill-will. Therefore, upon a demurrer or motion to overrule, such a challenge ought to have been overruled.</p> <p>-.5. • 'If, upon such a, challenge, the court below proceed without objection to try, it,and then overrule it, .a.court of-review must assume that no malice or other ground of principal challenge was found, and the determination presenting no legal error, will not be reviewed.,</p> <p>6. If such a challenge be considered as one to the favor; Held farther, (I) that upon the trial of such a challenge the indifference of the juror will be presumed until overcome by legal proof; (2) while the challenged juror may be called and examined as to the expression or even the formation of ah opinion as to the guilt of the accused; yet (3) that neither the formation nor the expression of such an opinion will, of itself, be sufficient to establish bias against the accused.</p> <p>.7. Upon a review of such a challenge to the favor, errors of law, such as the improper admission or rejection of evidence, misapplication of legal principles and the like, can alone be considered.</p>

<p>1. An indietment for procuring one to endorse accused’s promissory note by false pretences, charged that one false pretence consisted in falsely stating that the property of the accused was not encumbered by any lien. Held, that this charge was not sustained by proof that, in response to a question as to his ownership of his property, the accused falsely stated tjiat he did not owe a dollar to any man.</p> <p>2. Upon the trial of the indictment the court directed the jury to convict if they believed the accused procured the endorsement by false-,representations, knowing that he could not ’fulfill the promise. Held, that the charge was erroneous because it ignored two essentials of the crime-charged—(1) the intent to defraud and (2) knowledge of the falsity of the representation—and because it did not restrict the jury to the consideration of the particular false statement charged in the indictment..</p>

<p>A declaration whicli set forth that the defendants had injured plaintiff in her business by malicious acts, among which were false statements concerning her credit, was, upon general demurrer, held to be good. Afterward the defendants pleaded the statute of limitations appropriate only to actions for .words. Held, on demurrer to this plea, that the earlier adjudication in this court having settled that this declaration was not for slander, that question cannot again be litigated on this record.</p>

On certiorari to Warren Pleas to review a judgment of that, court upon the trial of an appeal from a justice’s court. This suit was brought by Dr. Henry M. Cox, a physician,, against the executors of George Vusler, deceased, to recover a bill for medical services rendered to .the testator’s wife between March 27th, 1883, and October 2d of the same year.. The testator died in May, 1886.

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

On certiorari to Justice Stilsing. The plaintiff in certiorari was arrested and prosecuted before the First District Police Court of Jersey City, upon a complaint charging him with the violation of a city ordinance, “ by tearing up a portion of Jersey avenue, a public street in-Jersey City, and placing; or causing to be placed, thereon a number of iron rails and a number of railroad ties, thus obstructing the free use of said street by the public.” At the hearing before the…

<p>On certiorari in matter of bastardy</p>

<p>A resolution by the board of freeholders, to purchase lands under the act of 1887 (Pamph. L., p. 201) set aside the price agreed to be paid, being so excessive as to show that the resolution is in frahd of the said act, and'not a legal exercise of the power Conferred by it.</p>

<p>1. The expenses of erecting booths under the election law of 1890 is to-be borne equally by the county and the city, because they are used both in county and city elections.</p> <p>2. The county must pay one-half the expense of canvassing and making the registry, and each city and township one-half, because it is used in every election. The county is to pay the cost of revising the registry for the November election, and each township is to pay for revising the registry for its sirring election, and the city is to pay for revising the registry for -its November election.</p>

<p>1. Manda mus is the appropriate remedy to effect the restoration of a member of a private corporation who has been irregularly removed from membership.</p> <p>2. In determining whether courts will take jurisdiction, a distinction must be observed between cases in which the association subjects its members to discipline for immoral conduct, or for violation of the rules of the order, and those instances in which the member appeals to the courts to secure property rights or to enforce money demands.</p> <p>3. In regard to matters of discipline, the courts will not interfere against the decision of a club professing to act under its rules, unless it can be shown either that the rules are contrary to natural .justice, or that what has been done is contrary to the rules, or that there has been maiafides or malice in arriving at the decision, or refusal to give the member a hearing.</p> <p>4. When there is an appeal to a superior body within the organization, that remedy must be exhausted before the aid of the law court can be invoked.</p> <p>5. The fact that the body within the organization to which the appeal must be taken is a corporation of another state does not change the rule. The presumption is that such appellate body will do justice between the parties.</p> <p>6. If, after review in the supreme lodge, there remains in the proceedings and judgment against thé'rélatór any such illegality as will give him a standing in this court, he may sue for relief, and the association now defendant will still be within the reach of the mandatory writ.</p>

<p>-Bands owned in fee by the relators, who live in Warren county, were leased to the.Bowers’ Snuff and Tobacco Company (limited), a partnership formed under the act of 1880. Rev., p. 786. The factory in which the business of the association is carried on lies, with a portion of the leased premises, in the township of Washington, in the county of Warren " Other'portions of tlfe premises, including two dwellings occupied by two members of the association, lie in Lebanon township, in the county of Hunterdon. The main office of the association is in the city of Trenton, where other members of the association reside. Held, that so much of the demised premises as lies in the county of Warren must be assessed fo'r taxes in the township of Washington, and the balance in. the township of Lebanon.</p>

<p>On certiorari.</p>

On petition of the United New Jersey Railroad and Canal •Company and the Pennsylvania Railroad Company, its lessees, representing that certain property of the United Companies, situated in Jersey City, has been assessed by the local assessors of the taxing district of Jersey City, and also by the state board of assessors, as property used for railroad purposes.

On rule to show cause why a writ of quo warranto• should! not, issue to show by what warrant or authority the respondent claims to use the office, &c., of city physician of the city of Hoboken.

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

<p>1. A private individual cannot have a writ of certiorari in matters affecting the public, unless he has some personal or property interest to be-specially, immediately and certainly affected by the act of which he complains.</p> <p>2. The order for an election to determine a minimum license fee, under section 4 of the act of March 20th, 1889 (JPamph. L., p. 77), called the-high license law, is not reviewable by certiorari on application of the owner or licensee of a hotel within the township.</p>

On certiorari to review an ordinance and resolution to curb-parts of Cooper and Warren streets in front of lands of the-prosecutors, and ..the proceedings thereon for the collection of' assessments.

<p>“A manufacturing company carrying on business- in this state,” to be exempted from taxation by act of 1884, must actually locate and begin, work under its charter within the state.</p>

<p>1. The act entitled “A supplement to an act entitled ‘An act to enable cities and municipalities of this state to create and maintain a paid fire department,’ ” approved March 1st, 1886, Avhich was approved March 18th, 1891 (P,anph. L.; p. 180)—Held, to be Avithin the prohibition of that part of article IV., section 7, paragraph 4 of the constitution, Avhich provides that “ no laAV shall be * * * amended by reference to its title only, but * * * the section or sections amended shall be inserted at length.”</p> <p>2. When the legislature, in order to express its Avill, resorts to amendatory legislation, it must be made to conform to the express requirements of the constitution in this respect, although the same effect might be produced by enactments not amendatory but independent.</p>

The defendant filed with a justice of the peace a claim of property which she had served upon a constable who, she ■stated in said claim, had levied upon said property under an ■execution against one Fuller on a judgment in favor of the prosecutor, rendered by Beckwith, a justice of the peace. .The justice with whom the claim was filed issued a-venire, and notice was given of the time of trial to Folwell, the plaintiff. Folwell appeared and obtained an adjournment.

This writ of certiorari brings up an assessment of taxes. The facts appear in the following.state of the case agreed upon and signed by the respective attorneys: The prosecutor resides in Belvidere, Warren county.

This writ brings up an .assessment of taxes for the year 1890 against the prosecutor for state, county, township, poll, special school and fire district taxes. . The assessment was made by the assessor of the borough of Vineland, which borough was incorporated under an act for the formation of borough governments. Rev. Sup.,p. 44, and its supplements. The borough lies within the larger territory included within the township of Landis.

This writ brings up a resolution of the board of chosen freeholders of Hudson county dismissing the prosecutor from the employ of the board.

<p>1. The notice of an application to have surveyors appointed to change a' public road under the act of 1881 (Rev. Sup., p. 877, $ 31), must stale the residence of the judge before whom the application is to be made.</p> <p>2. An application, under this actr, to change one of two roads' crossing- a railroad so that the one as altered will be nearer to and within five hundred feet of the other, is in conflict with the act of 1881. Rep. Sup., p. 874, § 10.</p>

<p>The act of June 10th, 1890, entitled “An act relative to banking, saving, trust, guarantee, safe deposit, indemnity, mortgage, investment, loan and building corporations,” is intended to treat exclusively of financial corporations and associations, such as banking companies, savings institutions and others designed to derive profit from the loan or use of money and securities, and does not apply to a corporation organized under the General Corporation act as a safe deposit company, one of its objects as stated in the certificate of incorporation filed, being “ to keep and maintain safe deposit vaults and safes and strong boxes for the safe keeping of valuable articles and property of all kinds;” the right to deal in money and securities being expressly withheld from corporations formed under the General Corporation act.</p>

On rule for mandamus. The relator seeks a mandamus to compel the board of health and vital statistics of the county of Hudson to admit him to sign the register of physicians and surgeons practicing in said ■county, as provided by ordinance. On the 6th day of June, 1888, the board adopted a body of ordinances, of which the one hundred and thirteenth section ■is involved in this controversy. The passage of this ordinance is admitted to be under legislative authority.

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

<p>1. If an employe, having been illegally discharged, sends in his written resignation, and the same has been accepted by his employer, a suit will not lie in his behalf on the contract of service.</p> <p>3. The purpose of such resignation, if not illegal, will not destroy or impair such written contract.</p>

<p>The plaintiff, a dealer in coal in Philadelphia, made a contract with defendant for the sale of a quantity of coal of approved size and quality, ito be delivered by the plaintiff at Burlington, at 5>4.10 a ton delivered. The coal was selected by the plaintiff from his stock of coal, and ■shipped in a barge selected by him. The barge reached the port of Burlington in safety, and was laid alongside of the defendant’s wharf for the purpose of unloading in the evening just before usual quitting time. During the succeeding night the barge sank and the coal was lost. In an action by the plaintiff to recover the contract price of the ■coal, Held—</p> <p>1. That delivery of the coal at Burlington, by the vendor, was a material term in his contract, and that the delivex-y of the coal on board of the bai'ge was delivery to the master as the vendor’s bailee or agent to-perform for him the act of delivery in execution of. his contract, and that until delivery was consummated the coal was at the vendor’» risk.</p> <p>2. That under a shipment of goods by a camex, the consignee is entitled to inspect and examine the goods.to ascertain whether they correspond with the invoice, and to a reasonable time to receive and remove the goods. For that purpose a reasonable time within usual business, hours must be allowed, and during that period the liability of the carrier as carrier remains undischarged.</p> <p>3. Under a contract of sale whereby the vendor contracted to deliver goods to the purchaser at a particular place, the carrier selected by the vendor is his agent to perform the contract to deliver, and the vessel in which the goods are carried is pro hue vico the vendor’s vessel, and he must bear the responsibility for the negligence of the carrier and for the condition of the vessel.</p> <p>4. Upon a contract of affreightment for delivery at a port generally, the consignee, if he owns the entire cargo, has the option to designate the place for discharging the cargo, and it is the master’s duty to obey the consignee’s directions if- the option be exercised in a reasonable manner.</p> <p>5. The consignee, in exercising his option to select the wharf, is bound to provide a wharf which is safe as well for the vessel as for the discharging of the cargo. If a loss of the cargo in such a case is occasioned by the condition of the wharf selected, without any negligence of the master in the management and care of the vessel, and wf.o not due to the vessel’s unseaworthiness or defective condition, the consignee must bear the loss.</p> <p>C. In executing a commission to take the depositions of witnesses residing out of this state, under the act concerning evidence {Bov., p. 383), the certificate of the officer before whom the oath of commissioner was taken, that he was lawfully authorized to administer an oath in the state where the commissioner resides or may be at the time, is sufficient evidence that the officer has such authority.</p>

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

<p>1. Under the act of May 2d, 1885 (Pamph. L., p. 326), entitled “An act to remove the fire department in the cities of this state from political control,” the position or office of “ call members,” in the fire department of Newark, may be vacated or abolished.</p> <p>2. Such action is not within the act of March 24th, 1885, prohibiting the removal from office for political reasons, &c.; nor of the act of 1888 (Pamph. L., p. 135), in regard to honorably discharged Union soldiers.</p>

On error to the Supreme Court. The plaintiffs, Alpaugh and Magowau, brought suit in the Supreme Court against the defendants, Wood and Barlow, upon the following contract: “Agreement made this seventh day of May, A. D. eighteen hundred and eighty-three, between Spencer M. Alpaugh and Frank A. Magowan, of the city of Trenton, New Jersey, party of the first part, and William Wood, of the township of Lawrence, and James Barlow, of the city of Trenton, in the county of Mercer…

■ Oír error to the Supreme Court. For opinion by the Supreme Court, see ante p. 178. This writ of error has brought up the record of a judgment of the Supreme Court, affirming proceedings taken by the city of Trenton, by which lands of plaintiff in error were condemned for a public street and an assessment for the expenses-of the improvement imposed on other lands belonging to him..

On April 17th, 1889, judgment was entered in the Hudson County Circuit Court in favor of Samuel Sterling, and against the firm of Petter & Simpson, for $2,214,17 -debt and $4 ■costs. The judgment was on a bond and warrant to confess judgment of even date.

On error to the Essex Circuit Court. The writ of error is brought for the purpose of determining the correctness of the decision of the court below in sustaining-a demurrer to the plaintiff’s declaration. The action was for deceit in the purchase of certain sliaresof the capital stock of the Holbrook Printing Company by the defendant from the plaintiff.

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

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

<p>On error to the Supreme Court. For opinion of Supreme Court, see 22 Vroom 386.</p>

<p>■On error to the Burlington Circuit.</p>

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

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