Volume 54 — New Jersey Law Reports

<p>On demurrer to declaration.’</p> <p>Argued at June Term, 1891, before Beasley, Chief Justice, and Justices Knapp, Van Syckel and Garrison.</p>

<p>On rule to show cause. From the Monmouth Circuit.</p> <p>Argued at June Term, 1891, before Beasley,. Chief Justice, and Justices Knapp, Van Syckel and Gabbison.</p>

By the petition of Joseph E. Haynes, mayor of the city of Newark, it appeared that a dispute or controversy existed in said city concerning the rights and title of certain persons therein mentioned, appointed to office by said mayor under the provisions of an act entitled “An act concerning cities of the first class in this state, and constituting municipal boards of street and water commissioners therein, and defining the powers and duties of such municipal boards, and…

<p>In attachment. On case certified from the Passaic Circuit.</p> <p>Argued at June Term, 1891, before Beasley, Chief-Justice, and Justices Van Sycicel, IInapp and Garrison.</p>

On error to Mercer Circuit. ' Riley drew a bill of exchange on the Trent Tile Company, the- plaintiff in error, for $850, dated at Chicago November 7th, 1888, payable to the order of the defendant in error. The defendant in error forwarded the bill to the Mechanics National Bank of Trenton for presentation and collection.

On quo warranto. On demurrer to information. The facts appear fully in the opinion of the court. Argued at June Term, 1891, before' Beasley, Chief Justice, and Justices Van Syckel, Knapp and Garrison.

<p>On rule to show cause. The facts appear fully in the-opinion.</p> <p>Argued at February Term, 1891, before Beasley, Chief Justice, and Justices Magie, Dixon and Garrison.</p>

<p>'The act of March 17th, 1874 (Pamph. L., p. 280), gives to the clerk of the county of Camden a fixed salary for his services as clerk of the criminal and civil courts, and declares that all fees, costs and compensation now allowed him in said courts shall be taxed in all bills of costs and shall be collected by the sheriff, who shall pay them over to the collector of the county for the use of the county. Upon an action by the county collector against the clerk, for such fees alleged to have been collected by the clerk, Held — (1) that the sheriff alone is entitled to receive the fees in lieu of which the salary of the clerk is given by the above act; (2) that if the clerk has collected the fees the county may ratify his agency and sue him as for money had and received; (3) that such suit cannot be brought in the name of the county "collector.</p>

<p>1. Statutes conferring the power of condemnation under the right of eminent domain are strictly construed. Every condition prescribed in the grant must be complied with, and the proceedings must'be conducted in the manner and with the formalities prescribed in the grant of power. Formalities and modes of procedure prescribed are of the essence of the grant, which the courts cannot disregard on a conception that they are not essential.</p> <p>2. The act of March 24th, 1885, entitled “An act to enable cities to build main sewers in certain districts, and to acquire private lands for that purpose” (Rev. Sup., p. 580), is a general law in force in all the cities of this state, and purports to deal with the entire subject of the drainage of a neighborhood as distinguished from local sewerage, and operates to supersede special provisions in city charters on the same subject, except so far as their provisions are retained or adopted by the act.</p> <p>3. The act provides that the proceedings for acquiring lands for the construction of sewers constructed under that act should conform to the proceedings now provided by law for the acquiring of land for the opening of streets in such cities. Held, that in proceedings to condemn lands for a sewer to be constructed under the act in any city, the special provisions in its' city charter for acquiring land for a street, whatever they may be, must be complied with.</p>

<p>On motion to strike oat a plea.</p> <p>Argued at June Term, 1891, before Justices Depue, Dixon and Reed.</p>

<p>On certiorari.</p> <p>Argued at November Term, 1891, before Justices Dixon, Reed and Garrison.</p>

On contract. Defendant is a New Jersey corporation. Summons for $3,000; tested April 22d, 1891; returnable April 30th, 1891; declaration, including bill of particulars and statement of amount claimed, was attached, and a notice to defendant endorsed that an affidavit of merits was required to be filed within ten days after service upon it, and' a- plea in thirty days after such service, in case defendant intended to make a defence.

<p>1. A dispute over the election of a school trustee is a controversy with regard to which the opinion and advice of the county 'superintendent may be sought, under section 28 of the Public School act.</p> <p>2. The county superintendent has no authority, under the Public School act, to decide controversies, so as to bind the parties; he can merely express an opinion and give advice after such investigation as seems to him reasonable.</p>

<p>On certiorari.</p> <p>Argued at June Term, 1891, before Justices Depue, Dixon and Reed.</p>

<p>1. In a petition presented to contest an election, under sections 100-115-of “An act to regulate elections,” approved April 18th, 1876 (Rev., p. 355), the particular circumstances of the case must be set forth in-such manner as will enable the court to see that the case is-within the-statute, and will enable the incumbent properly to prepare for -hisdefence.</p> <p>2. It is not enough to show that illegal votes were received in number-greater than the plurality returned for the incumbent; there must also-be shown circumstances rendering probable, prima fade, a conclusion, that these illegal votes were cast for the incumbent.</p> <p>3. Irregularities on the part of election officers or others, which do not appear to have affected the voting, the counting or the returns, willl not form a ground of contest.</p> <p>4. Various allegations rejected as too vague. •</p>

<p>In section 52 of the supplement to the act to regulate elections, approved May 28th, 1890 (Pamph. L., p. 361), the terms “ election district” and “voting precinct”'are synonymous, and denote the territory within which there is a single polling place for all the. resident voters.</p>

<p>'On certiorari.</p> <p>Argued at June Term,1891, before Justices Depue, Dixon •and Reed.</p>

On motion to order the prosecutor' to pay the state tax, as a? condition of further prosecuting -the writ of certiorari to review the tax. Argued November Term, 1891, before Justices- Dixon, Reed and Garrison.

On certiorari. This writ of certiorari brings into this court the following ordinance passed by the common council of the city of Trenton : “A supplement to an ordinance entitled ‘An ordinance to authorize the Trenton Horse Railroad Company to construct their road or track through the streets of the city of Trenton/ passed July twenty-sixth, eighteen hundred and sixty-three. “Whereas, application has been made to the common council of the city of Trenton by the Trenton Horse…

On certiorari. This writ of certiorari brings up a resolution passed by the common council of Newark on December 17th, 1890. The resolution, in its first clause, purported to grant to the Rapid Transit Street Railway Company of the city of Newark, and to several other companies, the right to use electrie motors to be supplied with electricity from overhead wires supported by posts to be placed in the street.

An indictment against John H. Hagerman is brought up from the Monmouth County Oyer and Terminer into this court, by a writ of cetdiorari. The motion is to quash the indictment. Argued :at February Term, 1889, before Justices Scudder, Dixon and Reed.

On certiorari. This writ brings up an ordinance to open- a- street in the-city of Orange, together with all the proceedings touching the-same. Argued at June Term, 1891, before Justices Depue, Dixon and Reed.

On certiorari. This writ brings up a judgment entered in the First District •Court of Jersey City. The action was brought to recover an unpaid part of a reward offered for the apprehension of a fugitive defaulting officer of the city of Hoboken. The following is a copy of the paper upon which the-plaintiff grounded his right of action : Mayor’s Office.

On certiorari. This writ brings up a contract entered into between the Inhabitants of the City of Plainfield and the Water Works Company of Plainfield for the construction of water works. Argued at June Term, 1891, before Justices Depue, Dixon .and Reed.

On certiorari. This writ of certiorari brings up a resolution passed by the common council of Bayonne changing the lines of the wards of the city, but not increasing the number of the wards. Argued at June Term, 1891, before Justices Depue, Dixon and Reed.

<p>A writ of certiorari was allowed, before judgment, bringing up a proceeding-before a justice under the Landlord and Tenant act. Upon the return-of the writ, the record of the justice shows that the facts stated in the affidavit upon which the writ was allowed did not exist, and the-writ is thereupon quashed.</p>

'On certiorari to review an order made by the Circuit Court of Atlantic county appointing the defendants commissioners to estimate and assess damages for the laying out, opening and constructing drives or walks along and upon the beach or ocean front in Atlantic City, under an act of the legislature entitled “An act to authorize cities in this state, located on or near the ocean, and embracing within their limits or jurisdiction any beach or ocean front, to lay out and open…

Upon certiorari removing to this court an assessment of taxes made by the state board of assessors upon prosecutor, under the provisions of the act entitled “An act to provide for the imposition-of state taxes upon certain corporations and for the collection thereof,” approved April 18th, 1884.

On certiorari. The above entitled writ of certiorari has brought up an* assessment of taxes by the tax officers of the city of Newark against the Merchants’ Insurance Company. Three other writs have brought up like assessments against the American Insurance Company, the Firemen’s Insurance Company and the Newark Fire Insurance Company.

The writ of certiorari allowed to the above-mentioned prosecutors, and other writs allowed to other prosecutors, has brought up proceedings for the grading, curbing and flagging of Washington avenue, in the city of Newark, resulting in an assessment imposed for benefits to the lands of such prosecutors. Argued at June Term, 1891, before Justices Scudder and Magie.

<p>On motion for judgment on postea.</p> <p>Argued at June Term, 1891, before Justices Scedder and Magie.</p>

Application was made to the Passaic Circuit for the confirmation of a report of an assessment for the construction of •a sewer in the city of Passaic, made by the board of assessors •of that city. The board of assessors was appointed and the application was made under the “Act to provide for a board of assessors 3n cities of the third class,” passed May 12th, 1890. Pamph. L., p. 327.

'On error to Union Circuit Court. Daniel Wade died on the 9th of September/1821, seized •of the land in Union county for -which ejectment is here, brought. On the 3d of November, 1818, while seized of that land, he made his last will, which was duly admitted to probate in December, 1821, and, in the operative parts thereof) is in the following language: “ First.

On error to the Supreme Court. The question in this case was presented to the Supreme Court upon demurrer to the plea of the defendant in error to the information exhibited by the attorney general.

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

<p>There is nothing in the state constitution that prevents the operation of the common law doctrine that when a repealer is itself repealed the original act is thereby revived.</p>

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

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

<p>1. The act respecting writs of error (Hev., p 373) extends to all causes, whether civil or criminal, unless otherwise specified.</p> <p>2. The seventh section of that act applies only to writs of error brought to review judgments rendered in the Supreme Court, the Circuit Courts and Courts of Common Pleas.</p> <p>3. It is the d-uty of plaintiff in error to procure the writ of error to be promptly returned, whether the cause be civil or criminal, and whether embraced in said seventh section or not; and for default in that respect the writ may be dismissed, without the defendant’s ruling the plaintiff to procure the return.</p>

On error to the Supreme Court. Leaman, the plaintiff below, brought an action against the New York, Lake Erie and Western Railroad Company for damages for injuries to two horses and a wagon. The team, driven by a servant of the plaintiff along a public road, was crossing the track of the defendant, when a locomotive struck the horses and wagon.

<p>1. Where nothing appears in the body of a note to indicate who is the maker, and it is signed by a person who affixes to his narile an official title as officer of a corporation, the note is prima fade that of the person so signing; but it is so far ambiguous, in respect to the question whether the officer or the corporation is the maker, that parol testimony is admissible to settle it. If, however, the note is signed by the corporate name, followed by the name of a corporation officer, who-affixes to his name his official title, such note is conclusively taken to be corporation paper.</p> <p>2. A promissory note made in this form, “We promise to pay to the order of-the sum of-,” and signed, “ Warrick Glass Works,. J. Price1 Warrick, Prest.” is the note of the corporation, and not the note of Warrick, or the joint note of Warrick and the corporation.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 24 Vroom 339.</p>

<p>In ejectment.</p> <p>Argued at November Term, 1891, before Beasley, Chief Justice, and Justices Depue and Van Syckel.</p>

<p>1. A by-law of the board of freeholders cannot be proved by a reference to a printed copy at the trial.</p> <p>: 2. The declarations of a director of a board of freeholders as to the amount of appropriations ordered by the board are not legal evidence of such appropriations.</p> <p>■ 3. That a claim presented to the freeholders was unverified will not, under ' the general issue, defeat such claim.</p>

'On case certified. The question certified for the advisory opinion of the •Supreme Court is, whether the following act is constitutional: '“A further supplement to the act entitled ‘An act to secure to mechanics and others payment for their labor and materials in erecting any building/ extending liens to alterations. “ Be it enacted by the Senate and General Assembly of the 'State of New Jersey, That the lien given by the act to which this is a supplement shall be and is…

This writ of error was to the Circuit Court of the county of Hudson, in case of an appeal to that court from the award •of commissioners in a proceeding to condemn land of the • -plaintiff in error for the use of the road of the defendant in terror. Argued at November Term, 1891, before Beasley, Chief -'Justice, and Justices Depue and Van Syckel.

<p>1. The plaintiffs are the owners of a lot of land with dwelling-houses thereon contiguous to a strip of land owned by a railroad company, on which . '.the company constructed a high embankment as a road-bed for its rail•road. In an action of tort by the former against the latter, Held—</p> <p>1. That a declaration which averred that the defendant, wrongfully and injuriously intending, &c., filled in upon its lands a great quantity of earth, &c., and raised thereon an embankment of great height, and thereby forced and pressed a large quantity of said earth, &e., into and upon the plaintiffs’ lot, beneath the surface of the same, and thereby upheaved the surface of the same and caused the foundation and walls of the dwelling-houses thereon to crack and topple over, disclosed a .good cause of action.</p> <p>2. That a plea setting up the charter of the defendant, authorizing it to construct and operate a railroad, was no justification for the injury complained of, although it be averred in the plea that the company constructed its railroad upon its own lands, with reasonable care and prudence, doing no unnecessary damage to the property of others. Beseman v. The Pennsylvania R. R. Co., 21 Vroom 235, distinguished.</p> <p>3. The distinction is between those incidental injuries which are unavoidable in the operation of a railroad in the' transaction of its business, such as the sounding of whistles, the emission of smoke and sparks from locomotives, the noise and vibrations incident to the moving of "trains, annoyances from the character or condition of freight transported, and the like, which are injuries partaking of the nature of public injuries, and acts which are a direct invasion of private property.</p> <p>4. Injuries of the class first mentioned are the necessary concomitants of the use of the franchises granted. The acts from which such injuries arise, being legalized by the company’s charter, are not public ■nuisances, and there is no foundation on which to apply the principle that a private individual may maintain an action for an injury arising-from a public nuisance which is special and peculiar to him beyond that suffered by the public. But for acts done under legislative sanction, which are essentially private wrongs and a direct invasion of private property, the company’s charter is no justification.</p> <p>2. The defendant also pleaded in bar, by way of a release, that the premises owned by the parties respectively were formerly owned-by one A; that A conveyed to C, under whom plaintiff derived title, and in the-deed to C the latter covenanted for himself, his heirs and assigns, that neither he nor they would claim any damage in anywise arising to the premises conveyed from the building or maintaining of the railroad then to be built by the railroad company. Held—</p> <p>1. That a covenant perpetual not to claim damages will be construed, to be a release if necessary to give effect to the intention of the parties. The principle on which this construction rests is to avoid circuity of action — the damages recovered by the covenantor in his suit being the-same as the covenantee would recover back in an action for the breach, of the covenant.</p> <p>2. That the covenant contained in the deed of conveyance by A to 0 was not available by the defendant as a defence in this suit, for the-reasons (1) that the covenant was not a grant of an easement, or of a right in the nature of an easement, and that if it be a covenant real, it did not at law run with the lands and bind the alienee of the covenantor, and (2) that the covenant, being contained in a deed inter partes, must be construed as a covenant inter partes with A individually for his personal indemnity against the recovery of damages from him.</p>

On demurrer to the declaration. This suit was brought upon the following certificate of indebtedness : “The Commissioners op Ridge Road, “In Union Township, Bergen County, N. J., Do hereby certify that they are indebted unto P. S. Page, or bearer, in the sum of One hundred dollars, with interest thereon at the rate of seven per cent, per annum, payable by their treasurer at their office in Union Township on the first day of March, 1875, and redeemable at the option of the…

<p>1. A justice of the Supreme Court and any one of the judges of the Court of Common Pleas may lawfully hold the Quarter Sessions in counties in which there is a law judge of the Common Pleas.</p> <p>2. The act of 1855 (Pamph. L., p. 17), which makes the justices of the Supreme Court ex offieio judges of the Common Pleas, Orphans’ Court and Quarter Sessions, is constitutional.</p> <p>3. The record in this case is as follows: It recites the caption which states — “ That by the grand, inquest it is presented in manner and form following, to wit, the bills herewith presented are true bills.” Then follows the bill on which the defendants were convicted. Pfeld, that this record shows that the said indictment is one of the bills presented by the grand jury.'</p> <p>4. The caption states that the jurors were sworn, affirmed and charged to inquire, and does not set out that those affirmed were conscientiously scrupulous of taking an oath. Held that, since the passage of the fifty-third section of the Criminal Procedure act, this objection comes too late to prevail.</p> <p>5. The record is: “ That the said indictment and proceedings are handed down to the Quarter Sessions, there to be proceeded with according to law.” Held, that this is sufficient to give the Quarter Sessions jurisdiction. The words “handed down” and “ordered to be delivered” are convertible terms.</p> <p>6. There is no error in the charge of the court that the defendants who participated in conducting the disorderly house were guilty of the offence of keeping a disorderly house. In misdemeanors, all who aid, abet or participate are principals, and all equally guilty. If they would escape the penalty denounced against the crime, they must cease to act in complicity as soon as they have knowledge of the criminal character of their conduct.</p> <p>7. The court has the right to settle what the practice shall be as to the time when requests to charge the jury shall be made, and parties must conform thereto.</p>

<p>It is not necessary, in order to charge a defendant with guilt for keeping a disorderly house, that it be made to appear that he had the power to suppress the mischief. If he participated with others in conducting the place in a manner obnoxious to the criminal laws, and lent his aid to maintaining it, the law charges him with guilt as a principal offender.</p>

<p>In error to Passaic Quarter Sessions.</p> <p>Argued at June Term, 1891, before Beasley, Chief-Justice, and Justices Van Syckel and Knapp.</p>

<p>On demurrer to narr.</p> <p>' Argued at November Term, 1891, before Beasley, Chief • •Justice, and Justices Depue and Van Sycicel.</p>

<p>On certiorari.</p> <p>Argued at November Term, 1892, before Justices Dixon, Reed and Garrison.</p>

<p>On application for mandamus.</p> <p>Argued at November Term, 1891, before Justices Dixon and Reed.</p>

On certiorari. The Honduras Commercial Company was organized in October, 1887, under a statute of New Jersey entitled “An act concerning corporations,” approved April 7th, 1875. Rev., p. 175. Its certificate of incorporation is as follows: Certificate of Incorporation.

<p>1. Upon reversal, by writ of error, of a judgment in ejectment, by virtue of which the-plaintiff obtained possession of the premises in dispute, the defendant is entitled to a writ of restitution, in order that he may be restored to the possession of the premises, together with the issues thereof, from the time of entry under the erroneous judgment.</p> <p>:2. Upon application for such writ, the court will not consider whether the plaintiff has acquired an outstanding title, legal or equitable, beside that involved in the action of ejectment.</p>

<p>1. “ An act concerning licenses in boroughs of the second class,” approved March 9th, 1891, is special and in violation of the constitutional prohibition against private, special or local laws for the regulation of the internal affairs of towns and counties.</p> <p>'2. When a license for the sale of intoxicating liquors is granted by a local body not having authority to grant it, the Supreme Court may lawfully allow a writ of certiorari to review such action at the instance •of persons who are residents and taxpayers in the place where the license is to be exercised, and who duly remonstrated before the local 'body against its action.</p>

<p>On motion for mandamus.</p> <p>Argued at November Term, 1891, before Justices Dixon,. Reed and Garrison.</p>

On certiorari. This writ of certiorari brings up for review “An ordinance-to change the grade of Avenue A and certain intersecting streets in the Third ward of the city of Bayonne,” passed December 16th, A. D. 1890, and passed over the veto of the-mayor January 13th, a. d. 1891, and “An ordinance authorizing the grading, paving and flagging of a portion of Avenue A and the construction of a main sewer in West Fifty-ninth, street, from Avenue A to Newark bay, in the Third…

On certiorari. This writ of certiorari brings up a resolution of the board of fire commissioners of Jersey City dismissing from service as-engineer the prosecutor, Daniel Ackerly. Argued at November Term, 1891, before Justices Dixon, Reed and Garrison.

<p>This is a motion to open a judgment entered against the defendant and for a rule allowing him to plead to the action of the plaintiff.</p> <p>Argued at November Term, 1891, before Justices Dixon, Reed and Garrison.</p>

<p>On application for mandamus.</p> <p>Argued at November Term, 1891, before Justices Dixon, .Reed and Garrison.</p>

<p>The attorney of a plaintiff who has recovered a judgment in this court has a claim upon it for his taxable costs and court charges, which is to be preferred to the defendant’s right to offset a judgment held by him against the plaintiff.</p>

'On certiorari. The return to the writ of certiorari in this cause brings up-the following resolutions: “Resolved, That the Doughty Health Association be granted' a permit from this Board of Health to carry on their business-of purifying night soil, being the faecal and effete matter from-the cesspools and privies in the city of Newark, upon the following terms and conditions, to wit: “ 1.

<p>On demurrer to pleas.</p> <p>The action is covenant for non-payment of rent.</p> <p>The fifth plea, which is the one demurred to, stated that the defendants “entered into negotiations ” with a third party, the West End Iron Company, and notified the plaintiff, who encouraged the defendants to sell and assign their lease to the third parties aforesaid, and thereupon they duly assigned and conveyed the same to the West .End Iron Company, who entered upon the demised premises and was duly accepted by the plaintiff as his tenant, who collected rent from said assignee and recovered a judgment for rent which thereafter fell due.</p> <p>Argued at June Term, 1891, before Beasley, Chief Justice, a;nd Justices Van Syckel, Knapp and Garrison.</p>

On certiorari. The prosecutor, whose road-bed is the center of Main avenue, in the city of Passaic, has been assessed for benefits arising-from the construction of a sewer along the westerly side of' said avenue.

On error to the Union County Circuit Court. The plaintiff below, who is also the plaintiff in error, sued the administrator of her deceased brother’s estate for the value of her services as that brother’s housekeeper for the six years which immediately preceded the brother’s death; that is, for the value of her services from January 1st, 1883, to January 1st, 1889.

<p>1. An abutting owner can maintain a certiorari to review an ordinance-changing the grade of a street in front of his property, and if the-change of grade is justified only as part of an entire scheme he may-question the legality of the scheme.</p> <p>2. Under the act of March 19th, 1874 (Rev., p. 944), municipal authorities may, in furtherance of the object there contemplated, vacate any street, or any part of a street, and change the grade upon any street or part of a street without the consent of abutting owners.</p> <p>3. Under that act municipal authorities may also construct bridges as parts of streets, to carry the public way above intersecting railroads.</p> <p>4. If an ordinance, which is intended to change the grade of a street so as to carry the way over an intersecting railroad by means of a bridge and approaches, contains a clause vacating a part of the street on which the approach is to rest, it thereby defeats its main object, and it will be set aside as unreasonable.</p>

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

The plaintiffs in error were indicted at the September Termy 1889, of the Bergen Oyer and Terminer, for assault and battery on one Hannah Collins, the wife of Thomas Collins, who kept an inn and tavern called “ The Octagon,” at Fort Lee, in the said county of Bergen. The defendants were members and marshals of an organization called “ The Riverside Law and Order Society of the Township of Ridgefield.’?

<p>On error to the Supreme Court. For opinion of the Supreme ■Court, see 24 Vroom 498.</p>

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

<p>1. The act of February 12th, 1889, authorizing the Sessions to certify a forfeited recognizance for prosecution to the Circuit or Supreme Court is not unconstitutional.</p> <p>2. Such act is complete in itself, and its reference to the act to which it is a supplement, with respect to the manner of its prosecution, does-not invalidate it.</p> <p>8. A culprit giving a recognizance to appear to an indictment, and not to depart from the court without leave, is not discharged from his obligation by the quashing of the indictment.</p>

<p>Demurrer to each count of narr.</p> <p>Argued at February Term, 1892, before Beasley, Chief Justice, and Justices Depue and Van Syckel.</p>

<p>On demurrer to declaration.</p> <p>Argued at February Term, 1892, before Beasley, Chief Justice, and Justices Depue and Van Syckel.</p>

<p>The supplement to the act relating to “ writs of error,” passed in the year 1890, authorizing the removal of decisions, on motions for new trials, by writs of error, is unconstitutional, as its title does not express its object.</p>

<p>Rule to show cause.</p> <p>Argued at.February Term, 1892, before Beasley, Chief Justice, and Justices Depue and Van Sycicel.</p>

<p>1. The joinder of two or more distinct offences in one count of an indictment is faulty, but where the acts imputed are component parts of the same offence, the pleading is not obnoxious to the charge of duplicity.</p> <p>2. The mere fact that two distinct charges appear upon the face of the indictment does not necessarily render it vicious. If the several acts, set forth enter into and constitute the principal offence, there is no-duplicity.</p> <p>3. Carnal abuse under the statute of 1887 (Pamph. L,p. 230) is necessarily attended with an assault, and, therefore, the offence is accurately described by alleging that there was an assault.</p> <p>4. - In legal contemplation there- cannot be a consent of the infant by which the charge of assault will be repelled. ...</p> <p>5. In an indictment under the said statute it is not necessary to aver whether the carnal abuse was committed with or without the consent of the infant. The effect of the statute is to render the infant incapable of giving a legal consent to the prohibited intercourse with her.</p>

<p>1. By force of the one hundred and ninety-third section of the Crimes aet it is an indictable offence to attempt to commit the crime denounced by the act of April 28th, 1887. Pamph L, p. 230.</p> <p>2. All consistent statutes, which can stand together, though enacted at. different dates, relating to the same subject, and hence, briefly, called statutes in pari materia, are treated prospectively, and construed together, as one act.</p> <p>3. A statute which is amended is thereafter, and as to all acts subsequently, done, to be construed as if the amendment had always been there; and the amendment itself so thoroughly becomes a part of the original statute that it must be construed, in view of the original statute; as it’ stands after the amendments are introduced and the matters superseded by the amendments eliminated.</p> <p>4. The act for the punishment of crimes, in the revision, is a single act, which purports to cover the entire subject, so far as it is intended to be regulated by statute. The effect of an amendment of a section of ' the law is, not to sever it from its relation to other sections of the law,, but to give it operation in its new form, as if it had been so drawn, originally, treating the whole act as an harmonious entirety, with its several sections and parts mutually acting on each other.</p>

<p>1. By the common law the stockholders of an incorporated company are liable to pay their subscriptions, if such, payment be necessary, to discharge the debts of the company. . ,</p> <p>2. A distinction is drawn between one who holds his stock by transfer1 and an original subscriber. The former may, in the absence of any fraudulent purpose, discharge himself from liability for unpaid install-; ments by due transfer of his shares, while the latter, cannot obtain immunity in that way. The subscription to the sto.ok and the acceptance of a certificate for the shares constitute a contract between the subscriber and the company by which the subscriber engages to pay the remaining installments on demand by the corporation. From this agreement the subscriber cannot recede without the consent of the company.</p>

<p>On certiorari.</p> <p>Argued at November Term, 1892, before Justices Depue, Van Syckel and Scudder.</p>

On certiorari. In an action brought before a District Court in Jersey City, the defendant resided in the city of Bayonne. Judgment having been there rendered for the defendant, the plaintiff appealed to the Common Pleas of Hudson county. The Common Pleas refused to retry the questions of fact involved in the suit, and, as there was no statement of facts either agreed upon by the parties or certified by the District Court, the appeal was dismissed.

<p>Tn suits lawfully pending before a District Court, where the debt, demand or .damage in controversy exceeds §200, a writ of certiorari from the Supreme Court will not lie before final judgment.</p>

<p>1. When a statute directs notice of facts to be published in a newspaper, the courts will presume, in the absence of any legislative intimation to the contrary, that the notice is to be given in the ordinary language of the state and in a newspaper published in the same tongue.</p> <p>2. Taxpayers of a city may lawfully, in the discretion of the court, intervene by certiorari to prevent the illegal expenditure of municipal funds, deficiencies in which must be made up by general taxation.</p>

On certiorari. The writ in this case brings up an assessment of $4,212.50 made by the state board of assessors, for the year 1891, against the Singer Manufacturing Company, under the supplement approved March 16th, 1891 (Pamph. L., p. 150), of “An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof, ” approved April 18th, 1884.

<p>The supplement to “An act concerning official newspapers in cities of this state,” approved'April 11th, 1889, is a special law for the regulation of an internal affair of cities, and, therefore, is unconstitutional.</p>

This writ of certiorari brings up a judgment of the Court of Common Pleas of Hudson county affirming a judgment of the Second District Court of Jersey City. The action was brought to recover the sum of $25 as a penalty under section 63 of an act entitled “A further supplement to an act to regulate elections,” approved April 18th, 1876, which supplement was approved May 28th, 1890, and is to be found in Pamphlet Laws of 1890, page 361.

-On certiorari. There are two writs of certiorari, each bringing into this court an ordinance passed by the common council of the city -of Elizabeth vacating a portion of York street in said city. The first ordinance by its terms vacates and closes all that portion of York street from the most easterly line of the Newark branch of the Central railroad to the westerly side of Second street, if extended across York street.

The writ of certiorari in this case brings up a judgment by a justice of the peace awarding the possession of a house to a claimant in a summary proceeding taken against a tenant .under the Landlord and Tenant act.

On certiorari. This writ brings up a resolution passed by the common council of the city of Bayonne, on May 6th, 1890, in the following form: ' “Resolved, That said R. G. Packard be and he is hereby authorized and empowered, at his own cost and expense, to grade to the established grade East 28th street, from the westernmost boundary of his land, to the westernmost side of the canal or basin being constructed by him, and to build, construct and maintain a suitable drawbridge…

On certiorari. This writ of certiorari brings up a resolution passed by the mayor and council of the borough of Brigantine accepting a •proposition of one Miller to furnish sand for filling purposes, •for a certain sum per cubic yard. Argued at February Term, 1892, before Justices Dixon, Reed and Garrison.

<p>1. Where an application under the Road act is in effect an alteration of a highway, by vacating a part and retaining a part, the matter should be presented to the Court of Common Pleas in a single application.</p> <p>% When the return to such an application shows that the surveyors have narrowed the street of any of the villages of this state the return will be annulled under section 79 of the Road act.</p>

<p>An act, approved March 2d, 1891 (Pamph. L. 1891, p. 64), reads as follows: “Be it enacted, &c., That the judges of all district courts in cities of this state now in office shall continue in office until the first day of April, one thousand eight hundred and ninety-one, on which day their term of office shall end; the successors of the judges of said courts now in office shall be appointed by the Governor, by and with the advice and consent of the Senate, and shall continue in office for five years) from the first day of April, one thousand eight hundred and ninety-one ; their successors shall be appointed by the Governor, by and with the advice and consent of the'Senate.” Held, that the 1st day of April, 1891, was within the term of the incumbent of the office at the time of the passage of the statute.</p>

<p>On certiorari.</p> <p>Argued at the February Term, 1892, before Justices Dixon,. Reed and Garrison.</p>

<p>Section 11 of “ An act concerning inns and taverns ” (Rev., p. 488), provides that all applications for license shall be determined by tlie court on the first day of its session, or upon a day then publicly fixed on by the court. An order not made upon either of said days, or upon a day to which the matter has been regularly continued by the court, is a nullity, and will, upon proper application, be set aside.</p>

<p>When a city charter requires commissioners of certain qualifications to be appointed for a special object, it must appear on the face of the proceedings that they possessed or were deemed to ¡«ossess-such qualifications.</p>

On rule to show cause why a verdict for the plaintiff should not be set aside. Argued at February Term, 1892, before Beasley, Chief Justice, and Justices Depue and Van Syckel.

On certiorari removing to this court an order made by two •of the township committee of the township of Washington, Warren county, determining and directing that a part of certain line fence on the line between the lands of the parties should be made and maintained by the prosecutor, Emmeline ■Castner, and another part thereof should be made and. maintained by the defendant Eiegel. Argued at November Term, 1891, before Justices Scuddeb .and Magie.

<p>A certiorari removed to this court an order of the Common Pleas appointing surveyors to vacate a public road, and a supersedeas commanded the surveyors to desist from taking further proceedings until the further order of this court. Upon consideration the certiorari was dismissed, but no remittitur was ordered, nor was the supersedeas■ discharged. Held, that the Common Pleas could not, under those circumstances, order the surveyors to meet and proceed under the original order, and the return of the surveyors thereon would be invalid.</p>

Certiorari of an ordinance to lay out, open and extend Summit avenue, &c., and the proceedings connected therewith. Argued at February Term, 1892, before Justices Magie and Werts.

<p>On certiorari removing to this court a judgment of the Warren Common Pleas affirming a judgment in the court for the trial of small causes, in favor of the defendant here against the prosecutors.</p> <p>Argued at November Term, 1891, before Justices Scudder and Magie.</p>

This action was in tort for the recovery of damages for an injury received by plaintiff, by being knocked down by the-horses attacked to a street car of defendants, whereby one of plaintiff’s arms was seriously bruised and lacerated. The verdict was for the. plaintiff and awarded her $2,500 damages.

<p>1. In actions in the District Courts, which fall within the provisions of the act of 1877 (Rev. Sup., p. 224), objections to the rulings of the court need not be taken by formal exceptions signed and sealed, such as are required in actions in those courts by the provisions of the act of 1882. Rev. Sup., p. 261.</p> <p>2. To obtain a review of rulings in the first class of cases, the state of the case must show that objection was made thereto and the grounds of the objection substantially presented to the court.</p> <p>3. Upon proof that an injury to a horse had affected his disposition for steadiness and gentleness and that his value had been appreciably •diminished thereby, a request to charge that the injury was too remote And uncertain for consideration was properly refused.</p>

<p>Certiorari of proceedings before a justice of the peace under-the Landlord and Tenant act.</p> <p>Argued at November Term, 1891, before Justices Scudder and Magie.</p>

<p>The consent of the corporate authorities of a municipality which is necessary to the incorporation of a company under the provisions of the “Act for the, construction, maintenance and operation of water works for the purpose of supplying cities, towns and villages of this state with water,” approved April 21st, 1876, must be a consent to the formation of the company proposed by certain persons named.</p>

<p>The supplement to an act entitled “An act for the construction, maintenance and operation of systems of sewerage in cities, towns and boroughs,” approved June 13th, 1890, which supplement was approved April 16th, 1891, is obnoxious to the constitutional provision prohibiting special legislation respecting municipalities.</p>

<p>On certiorari.</p> <p>Argued at February Term, 1892, before Justices Magie and Werts.</p>

<p>On certiorari.</p> <p>Argued at February Term, 1892, before Justices Magee and Werts.</p>

On rule to show cause why the order appointing surveyors of the highways to lay out a public road, and their return thereof, should not be set aside. Argued at February Term, 1892, before Justices Magie and Werts.

On certiorari. The writs of certiorari in this case were directed respectively to the clerk and secretary of the board of assessors of Bergen county and to the county collector of that county.

<p>Shares of stock in foreign corporations, owned by citizens of this state, upon which taxes have been actually assessed and paid by the corporation within twelve months next before the day prescribed by law for commeneing the assessment in this state, are exempt from taxation under the laws of this state.</p>

<p>Certiorari to set aside an assessment of taxes for the year-1891, made against the prosecutor by the assessor of Englewood township, Bergen county.</p> <p>Argued at February Term, 1§92, before Justices Magie and Weets.</p>

The Bergen Neck Railway Company, incorporated under the General Railroad law, took proceedings to condemn certain lands in Hudson county, belonging to Ralph G. Packard and adjoining New York bay. After the award, both parties appealed therefrom and an issue was framed and tried in the Hudson Circuit. After verdict and judgment thereon, Packard sued out a writ of error and removed the cause to the Supreme Court.

<p>On error to the Supreme Court. For opinion of the Smpreme Court see 24 Vroom 555.</p>

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

<p>1. A covenant or stipulation inserted in a deed poll binds the grantee,-, his heirs and assigns where such stipulation relates to the premises conveyed.</p> <p>2. In such case an easement may be acquired by the grantor by a clause-of reservation. The technical distinction between reservation and exception will be disregarded and the language used so construed as to ■ effectuate the intention of the parties.</p> <p>3. The grantee in a deed and those claiming under him cannot deny the.binding authority of a reservation in a deed.</p> <p>4. The effect of the reservation in this case is to prohibit the grantee-from building on the common line more than twenty-four feet in depth,, commencing at Main street.</p> <p>5. Qtuzre. Whether the same rule of construction applies to a reservation- or an implied grant as to an express grant, thereby making it necessary to use the word “ heirs ” to create a fee ?</p>

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

<p>1. If, in an action of tort, the defendant relies upon the defence that the act he did was by way of a joke, it is a question for the jury to decide whether the parties had been perpetrating practical jokes upon each other in such a way that the defendant had a right to believe that the plaintiff would accept his act as a joke.</p> <p>2. The maxim de minimis non curat lex does not apply to the positive and wrongful invasion of another’s property. The right to maintain an action for the value of property of which the owner is wrongfully-deprived is never denied.</p>

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

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

<p>.In actions of replevin, the measure of damage is the real value of the chattel at the time the tortious possession of the defendant began, with damages for its unlawful detention.</p>

<p>The rule is well settled that, in an appellate court, a party shall not be heard upon a point not taken or a matter not raised and considered in the court below. Delaware, Lackawanna and Western R. R. Co. v. Dailey, 8 Vroom 526, and Pennsylvania R. R. Co. v. Page, 12 Id. 113, followed.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see antep. 82.</p>

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

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