Volume 55 — New Jersey Law Reports

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

<p>1. The act approved March 8th, 1892, which establishes a Police Court in certain cities of this state is constitutional.</p> <p>2. Population is a proper basis, in this respect, for a classification of cities, as a difference of population calls for a difference of police' regulation.</p> <p>3. It is for the legislature to delineate such classes, and if such act he not plainly elusive of constitutional restrictions, it cannot he judicially interfered with.</p>

<p>1. The act providing for the creation of a police department in certain cities of the second class, enacted in the year 1892, is constitutional.</p> <p>2. The statute regulating the removal of Union soldiers from office is no restraint upon legislation producing that result.</p>

<p>The act providing for the establishment of a commission of public instruction in certain cities of the second class is constitutional.</p>

<p>The act constituting a board of public works in a certain class of cities,, enacted in 1892, is constitutional.</p>

A. petition, with affidavits annexed, was presented on the 28th of March, 1892, to the justice of the Supreme Court holding the Circuit Court in the county of Sussex, representing that at an election just held in the township of Wantage, in said county, for the election of a town clerk, •collector and other officers, the votes of a certain class of voters had been rejected by the board of election; thereupon the following order was made, viz.: “A petition, with affidavits…

<p>'On error to the Essex Quarter Sessions. On a judgment -of conviction for larceny.</p>

<p>1. The clerk of the Supreme Court has no authority' to certify, under the-seal of the court, the hour of the day when the judgment was-entered.</p> <p>2. ' The day may be thus certified, and the presumption will be that the judgment was entered at the earliest hour when it could be entered ire the usual course of the business of the office.</p> <p>3. The exact time of entry may be proved, as matter dehors the record, by competent evidence.</p> <p>4. Where there are disputed facts the intention to deliver a deed and the time of delivery are for the jury. The court can only conclude a delivery where it is a positive inference of law.</p> <p>5. While a deed takes effect between parties from the time of delivery, it is void and of no effect against subsequent judgment creditors, without notice, until duly recorded. The vendee has not, in such case, fifteen days after delivery to record his deed, with preference. Pamph. L. 1883, p. 215.</p> <p>6. While the power to sell lauds by the sheriff under judgment and execution must be in strict pursuance of the power, no mere irregularities, such as are here shown, will invalidate his conveyance to a bona ■ fide purchaser.</p>

<p>A corporation, working a mine by a general superintendent, is not responsible for an injury to a miner which resulted from the negligence of a person employed to point out to the miners the places where holes were to be drilled, and who had authority to hire and discharge workmen.</p>

On error to the Camden Circuit. A writ of attachment was issued against Levan at the suit of H. Sternfeld & Co. An appearance was entered by the defendant, and thereupon the said H. Sternfeld & Co. filed their narr. containing' the common counts. To this the defendant pleaded non assumpsit as to all of the plaintiff’s demand ■except the sum of $39.70, and, as to that sum, that the defendant had tendered it and had paid the said sum, with costs, into court.

<p>1. When a railroad company, having power to condemn land, has been permitted by the 'landowner to enter and lay its tracks and make improvements without compensation first made, and afterward the question of compensation arises in a suit in equity, the measure of compensation is the value of the land and damages at the time of entry, with interest. When, however, the company, under such conditions, takes a statutory proceeding to condemn such land, the measure of ■compensation is the value of the land and damages at the time of the , appraisement.</p> <p>% In a proceeding, to condemn, piers previously placed upon the land by another company are to be regarded as a part of the land itself.</p>

<p>-1. Under the act of April 4th, 1873 (Pamph. L., p. 796), the county board must adjudge that the value of property contained in any duplicate is relatively less than the value of other property in the eounty before it can act.</p> <p>'.2. The proviso contained in the sixth section of said act makes the direction in said section to give notice to taxpayers, in the manner therein prescribed, directory. Failure to give notice in the mode ■ specified in said section will not invalidate the proceedings, provided ’.reasonable notice in some other manner is given.</p>

<p>1. A manufacturing company, to bring itself within the proviso of section 4 of the act of April 18th, 1884 (Rev. Sup., p. 1017), must be actually engaged in the business of manufacturing in this state.</p> <p>2. A manufacturing company wishing to withdraw, from active business must, to escape taxation, take proceedings under- the thirty-fourth section of the Corporation act to dissolve and surrender its charter and wind up its affairs.</p>

<p>1. Taxes become a lien.on property only By force of legislation.</p> <p>2. There is no statutory provision by which, in Jersey City, a lien can be established upon lands for taxes assessed against personal property.</p>

<p>Certiorari bringing up a resolution of the board of councilmen of the city of Bayonne, passed July 19th, 1892, granting'a license to Charles MacDonald to keep an inn, &c., in that city, and the application and recommendation on which 4he resolution was founded.</p>

<p>A corporation organized under the “Act to incorporate societies for the-promotion of learning,” approved April 9th, 1875 (Rev., p. 577), andi the supplements thereto, owns real estate which it leases to individuals who keep a boarding and day school thereon, and pay rent by paying the interest on a mortgage, the taxes (if any can lawfully be-assessed), the water rates and fire insurance premiums — Held— 1. That such real estate is not exempt from tax under the second! clause of section 5 of the Tax act of 1866. Rev., p. 1150. 2. That such corporation is properly taxed upon its real estate’ either' -bmder section 105 of the Corporation act (Rev., p. 196), as amended im 1878 (Rev. Sup., p. 170), or under sections 15 and 23 of the Tax acd of 1866. Rev., p. 1150.</p>

<p>The act of March 4th, 1880 (Rev. Sup., p. 877), amendatory of the supplement to the Road act of March 27th, 1874 (Rev., p. 1019). auolies to applications for the vacation of a part of an existing highway, within the prescribed distance, and the relaying of the highway in another place; when it appears that the proposed relaying is upon land already devoted to and accepted as a public road, the said acts are not applicable.</p>

<p>1. The determination of a justice of the peace on a trial of facts upon a motion to quash a writ of attachment, pursuant to the provisions of section 69 of the Attachment act, is reviewable on certiorari.</p> <p>2. When the facts certified by the justice to have been found by him on such trial show that the aifidavit on which the writ was issued was false, and that it was not made in good faith, it was erroneous not to have allowed the motion to quash, and for such error the judgment in attachment will be reversed.</p>

On application for mandamus. The legislature of the State of New Jersey enacted the following law, which was approved February 18th, 189.2: “ 1.

<p>1. Prior to the passage of the act of March 8th, 1892 (Pamph. L., p. 47), police justices in cities whose population exceeded one hundred thous- and were appointed by the governor. In all other cities 'they were .elected by local boards of city council. The act of 1892 applied only to certain cities of the second class having a population of over fifty thousand. Held, that this classification was substantial and not illusory ; that the effect of the law is to remove the cities selected from the group next below them in population and to bring them into harmony with those next above them, viz., cities of the first class. The act, being general in its terms and application, is a constitutional enactment.</p> <p>2. The Glassification act (Pamph. L. 1882, p. 47) is a rule of interpretation, and, apart from this, has no controlling effect upon either the legislature or the courts. It is a mere formula by which to avoid the repetition of words and numerals when legislating for or interpreting enactments concerning municipalities. It may be ignored without impairing legislation and its employment will not legitimize legislation otherwise vicious in a constitutional sense.</p>

<p>Motion in quo warranto.</p>

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

<p>'On certiorari.</p>

<p>The defendant gave a bond in the penal sum of $10,000, conditioned to be void on payment of $5,000 and interest, with an agreement added that if judgment should be obtained by virtue of the warrant of attorney-annexed thereto or certain other specified events should occur, an attorney’s fee of five per cent, should be payable, and should be recovered in addition to all principal, interest and costs of suit. Annexed to the bond was a warrant authorizing any attorney to appear for the obligor, in case of the breach of the condition of the bond, and confess judgment for the penalty. — Held, that the warrant of attorney did not authorize the confession of judgment for the five per cent, fee.</p>

<p>'The statute of February 17th, 1892 (Pamph. L., p. 24), purporting to fix at three years the term of office of city physician in all cities in which it was not previously fixed by authority of law, and to take from such cities the power of diminishing the salary attached to that •office, is special, and therefore unconstitutional, under art. IV., § 7, ¶ 11, of the-state constitution.</p>

<p>1. A statutory direction that an assessment for benefits shall be levied upon each separate lot or parcel of land, or upon'the several lots or parcels of land, does not authorize the assessors to levy distinct assessments upon the component parts of a tract of land which the owner has always treated as an entirety.</p> <p>2. If it appear that commissioners, authorized to levy an assessment, for the construction of a sewer, upon an entire tract of land on which there are valuable buildings, have ignored the existence of the buildings and levied distinct assessments upon the parts of the tract, dividing it by lines which intersect the buildings, the court cannot infer that the benefit accruing to the entire tract is the aggregate of these distinct assessments.</p>

<p>The power of removal from office on the ground of forfeiture cannot lawfully be exercised, unless there be, when practicable, due notice to the officer of the charge against him and of the time when he may answer it, a reasonable opportunity to defend himself, and sufficient proof of a legal cause of forfeiture.</p>

On certiorari,'-removing a judgment of the Police Court of ¡Long Branch, convicting the-prosecutor of the violation-of • uu ordinance, which forbade the erection of wooden buildings upon Broadway between Eockwell avenue and the sea.

<p>1. Stock in a corporation of a foreign state, owned by a citizen of this state, upon which taxes have been actually assessed in the foreign state and paid by the corporation, within twelve months before the day prescribed by law for commencing the assessment of taxes in this state, is exempt from taxation in this state.</p> <p>'2. Stock in a national banking association, located in another state, cannot be taxed under the laws of this state.</p>

<p>1, The boards of freeholders are invested with discretionary power to-pass upon the sufficiency or insufficiency of a bond presented by a county collector.</p> <p>2. In the absence of proof that such discretion has been abused, the court will not by maniamm require the acceptance or approval of such bond.</p>

<p>1. A road overseer, in a township where the inhabitants elect to work the roads by hire, cannot warn out the inhabitants of his district to work and labor on the roads when there is road money on hand available for the needs of the road.</p> <p>2. Before the inhabitants can be warned or ordered out, there must be an apportionment made of the labor of the inhabitants of the township in the same proportion with the tax for the support of the government, pursuant to section 52 of the road act.</p>

<p>On certiorari.</p>

<p>On contract. On motion to retax costs.</p>

Oh error to the Supreme Court. On the 22d of November, 1889, the plaintiff in error was-a passenger entitled to safe transportation by the Camden and Atlantic Railroad Company from the city of Philadelphia to the village of Berlin, in this state. He crossed the Delaware river upon a ferryboat operated by the defendant company in -connection with its railway, reaching the Gamden side at about six o’clock in the evening.

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

The plaintiff brought an action, in the Supreme Court against the defendant to recover $6,384.66 and interest, as a final balance for work done chiefly under a sealed contract between them, providing for the construction of a grand stand at the Monmouth Park race course. The present writ of error is prosecuted by the defendant to review questions of law raised at the trial in the Hudson Circuit.

<p>The act of 1876 (Seo.,p. 1163) applies to real estate mortgages only, and a mortgage upon commingled real and personal property is not affected by the act.</p>

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

<p>1. A statement inade by the general agent of a corporation, in the course of his employment, of a fact within his official knowledge touching the status of a matter entrusted to him, is admissible in evidence on behalf of the party with whom the corporation was dealing at the time.</p> <p>% Plaintiff, who was insured against fire in defendant’s company, obtained further insurance on her dwelling, which, unless consented to in writing by the defendant, voided its policy. There was testimony competent to prove that after obtaining the additional insurance the insured notified the special agents of the defendant, who undertook to .communicate with the insurer and to let plaintiff know the result. There was also proof of an admission made by defendant’s general manager from which it could be inferred that the company had received actual notice of these facts and had directed the agents to cancel plaintiff’s policy, which they neglected to do until after the plaintiff’s dwelling was destroyed by fire. Upon an action on the policy, Held, that a non-suit was properly refused; there being proof from which the jury might find that the defendant was estopped by its conduct from setting up the forfeiture of the plaintiff’s policy</p>

<p>A parol agreement to sell and assign a bond and mortgage is a contract for the sale of goods, wares and merchandise within the sixth section of the statute of frauds.</p>

<p>An action will not lie because of damages sustained in consequence of a municipal street being out of repair.</p>

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

<p>1. A policy upon the life of A, insuring the payment of a sum of money to B on the death of A, declared on its face that it should not be-binding until it was delivered to A in good health. Held, that it did' not become binding by being delivered to B after A’s death.</p> <p>:2. An agent of the insurance company, who in fact had no authority to make, alter or discharge contracts on behalf of the company, and whose lack of authority was declared in the policy, could not make such a policy as is above mentioned binding upon the eompany, by delivering it to B after A’s death, with knowledge of A’s death.</p> <p>-'3. By approval and acceptance of his application for membership in, and insurance by, a mutual association, A became entitled to a policy of insurance on actual payment of his first annual dues while he was in good health. Held, that without a tender of those dues while he was in good health no action could be maintained to recover the amount of the contemplated insurance.</p>

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

<p>On certiorari to review an order appointing commissioners in condemnation proceedings.</p> <p>On certiorari to review resolutions of the street and water .commissioners of Jersey City in relation to opening a street over Brown place sewer.</p>

<p>On certiorari to review an order appointing commissioners-in condemnation proceedings.</p>

<p>1. In the trial of cases where it appears that both parties were in fault,. the primary consideration is, whether the faulty act of the plaintiff was so remote from the injury as not to he regarded in a legal sense as-a cause of the accident, or whether the injury was proximately due to ■ the plaintiff’s negligence as well as to the negligence of the defendant.</p> <p>2. If the faulty act of the plaintiff simply presents the condition under - which the injury was received, and was not in a legal sense a contribu— tory cause thereof, then the sole question will be whether, under the circumstances and in the situation in which the injury was received, it was due to the defendant’s negligence.</p> <p>.3. But if the plaintiff’s negligence proximately contributed in any degree to the injury, that will disentitle them to recovery. A court of law cannot undertake to apportion the damages arising from the cooperating negligence of both parties, or determine the comparative degree of the negligence of each; and the plaintiff will, in such a case, be without remedy unless the wrongful act of the defendant was willful, or amounted to an intentional wrong. Davies v. Mann, 10 Mecs. & W. 546; Dowell v. Steam Navigation Co., 5 El. & B. 195; Tuff v. Warman, 3 C. B., N. S., 740; S. C., 5 Id. 573, and Radley v. L. & N. W. Ry. Co., 1 App. Cas. 754, discussed.</p> <p>-4. The plaintiffs set up a surveyor’s instrument in the roadway of a public street, where it was liable to injury from passing vehicles driven with the utmost care, and- left the instrument without anyone to look after its safety or to warn persons of its presence. The defendant was driving slowly along the street, looking at some houses on the side of the street, for the roofing of which he had contracted, to see whether the slaters were getting them finished. The street was unobstructed except by the plaintiffs’ instrument. The defendant did not see the instrument, and had no reason to expect to encounter an obstacle of that or any other character. Ildd (1), that the plaintiffs were guilty of contributory negligence such as disentitled them to a recovery, and (2) that there was no evidence of negligence on the part of the defendant to go to the jury.</p>

On certiorari in a landlord and tenant case. This writ brings up the judgment and proceeding of a justice of the peace dispossessing the prosecutor from rented .premises. .

<p>On certiorari.</p> <p>This writ brings up proceedings for opening Tyler street, in the city of Trenton, between Hudson street and Chestnut ;avenue, and the award for damages and the assessment of special benefits attending the proceeding. The proceeding was taken under the charter of the city of Trenton, and its history, as it appears from the record before us, is as follows:</p> <p>On July 2d, 1889, the common council adopted a resolution directing the city surveyor to make a survey of the most practicable road and to stake out the same. On July 16th -common council, by resolution, directed its clerk to give notice ■ of the intention of common council to cause the street to be .so laid out. Such notice having been given, an ordinance was passed on August 20th to open and lay out the said-street, which was approved by the mayor on August 31st. On August 30th common council passed a resolution that the-street committee should treat with the owners of the land to-be taken for the purpose of opening the street. On September 17th a report of the committee was made that the prosecutor and two other owners declined to fix a price. On same day common council adopted a resolution that application be’ made to the board of city assessors to award damages and-assess benefits. On November 1st the board of assessors made its report.</p> <p>At this stage of the proceedings a writ of certiorari brought the proceedings into the Supreme Court, where they were-affirmed; but, upon writ of error to the Court of Errors, the-resolution of September 17th was set aside, and all the proceedings subsequent thereto, but the preceding steps were-affirmed. A judgment of the Supreme Court in conformity with the remittitur sent down from the Court of Errors was-entered on February 24th, 1892.</p> <p>On March 23d, 1892, an act known as the Public Works-act was approved. This act applied to the city of Trenton, and transfers to the board of public works the power to lay out and open streets. Pamph. L., p. 215, § 3. Thereafter,, on May 19th, 1892, the board of public works made an application to the board of city assessors to make an award of damages and an assessment for benefits. This step and the-subsequent steps in the proceeding are now attacked. A statement of their character can be best made in connection-with the several objections urged against their validity.</p>

This writ brings up a resolution adopted by the board of street and water commissioners on April 25th, 1892, and approved by the mayor April 26th, 1892, and a contract dated; April 28th, 1892, for the furnishing of gas in old Jersey City and Lafayette. This contract was signed by the mayor, but-was not concurred in by the board of finance, nor was any appropriation made by that board to meet the expenditure-which would result from the contract.

<p>Under the act (Rev. Sup., p. 650), a water company can condemn a strip of land for the purpose of excavating an open conduit to convey water from a pond to its pumping station.</p>

On certiorari. This writ brings up proceedings of the board of chosen freeholders of Middlesex county for macadamizing a road in Madison township under authority of the act (Pamph. L. 1891, p. 378) and supplement thereto. Pamph. L. 1892, p. 346.

<p>The city of Bayonne has no power to make a contract for lighting streets for a period of five years when no provision is made to meet the obligations of the city to pay the price named in such contract for that period.</p>

<p>1. Under the charter of Egg Harbor City, it is competent for a majority of the whole number of members of council to which the city is. entitled, when convened, to pass ordinances, although there may be some vacancies in council.</p> <p>2. The act of 1891 (Pamph. L., p. 83), which makes Saturday afternoon a legal half holiday, does not apply to proceedings taken by the common council of a municipal corporation. An ordinance may lawfully be passed on Saturday afternoon.</p> <p>3. Asa general rule the legal existence of a corporation cannot be inquired into collaterally, although some of the legal formalities in its organization may not have been observed.</p> <p>4. In virtue of the acts of May 9th, 1884 (Rev. Sup., p. 654, pl. 723), the act of April 17th, 1884 (Rev. Sup., p. 655, pl. 725), and the act of 1888 (Pamph. L., p. 366), the common council of Egg Harbor City had power to pass the certified ordinances.</p> <p>5. If the water company is without the requisite authority to lay its pipes in the public ways, that question cannot be litigated in this suit. The individual whose property is invaded without authority must invoke a different remedy for his redress.</p>

<p>1. Whether an agent, making a contract for the benefit of another, is liable upon a parol promise to be responsible, depends upon the fact whether the credit is given to him or the principal. Both cannot be held as original debtors.</p> <p>2. If an agent purchases goods for a principal, whom he discloses, with a promise that he will be responsible, he thereby simply becomes responsible for the default of his principal. His promise is collateral and cannot be enforced unless in writing.</p> <p>3. But if the vendor asks the agent “ to whom he must look for payment,” and the agent replies “ that the vendor must look to him,” the agent becomes the original debtor, and the credit being given to him, his promise is not within the statute of frauds.</p> <p>4. In this case, although the service was rendered by the plaintiff, at the request of the defendant, for the accommodation of a third person, the agreement of the defendant that the plaintiff should look to the defendant for compensation for the services to be rendered was an original and not a collateral promise.</p>

<p>On certiorari.</p>

<p>1. The right to plant oysters on the lands of the state for the sole use of the occupant is a privilege, and inasmuch as it excludes all others from taking them, it is an exclusive privilege, which paragraph 11, section 7, of our state constitution forbids the legislature to grant by private, special or local laws.</p> <p>2. The act of April 28th, 1890 (Pamph. L., p. 280), is in conflict with the constitution. It does not confer its benefits upon all the citizens of the state who may thereafter elect to accept them upon the terms prescribed by the lawmaker. It can never apply to any persons other than those to whom it applied at the time of its enactment, and does not embrace all of a class according to a legal basis of classification,</p> <p>3. The indictment is infirm in failing to allege that the grounds from which the defendant is alleged to have taken the oysters were grounds used or occupied by a citizen of this state.</p>

<p>On certiorari.</p>

On certiorari to review proceedings of the board of fire commissioners of the city of Newark, upon charges preferred against prosecutor, a fireman employed in the fire department, and a resolution of the board finding prosecutor guilty of the charges and dismissing him from the department.

On .rule to show cause why a mandamus should not issue, requiring the township committee of the township of Brick, in the county of Ocean, to meet with the relators, the township committee of the township of Lakewood in said county, and to proceed to divide between said townships the property belonging to and the debts owing by said township of Brick, in accordance with the provisions of section 4 of the “Act to create a new township in the county of Ocean, to be called the…

<p>On certiorari.</p> <p>The return includes the following ordinance of the common council of the city of New Brunswick, passed May 4th, 1891:</p> <p>“An ordinance to prohibit, restrain and regulate all sports, exhibitions of natural or artificial curiosities, caravans of animals, theatrical exhibitions, circuses or other public performances and exhibitions for money.</p> <p>“1. Be it ordained by the Mayor and Common Council of the City of New Brunswick, That it shall not be lawful to have, hold, maintain, exhibit or perform within the corporate limits of said city any sports, exhibitions of natural or artificial curiosities, caravans of animals, theatrical exhibitions, circuses or other public performances and exhibitions for money or gain, or whereto any fee, reward or gain is demanded or accepted for admission, within four hundred feet of any property whereon is erected any dwelling-house, without the written consent of the owner or owners of each and every such property within four hundred feet of the grounds where such exhibition, sports or games is proposed to be produced or performed, first had and obtained for that purpose; provided, that the ordinance shall not apply to any such sport or exhibition produced or performed wholly within a roofed or covered structure or upon any of the city parks.</p> <p>“ 2. And be it ordained, That each and every person or corporation violating the provisions of this ordinance shall, upon conviction, be liable to pay a fine of fifty dollars for each and every offence.</p> <p>“ 3. And be it ordained, That this ordinance shall take effect immediately.”</p>

<p>1. The power conferred on boroughs by the Borough Government act (Rev. Sup., p. 44), to prevent and remove obstructions from public highways, can only be exercised by an ordinance of the borough council.</p> <p>2. The power conferred on boroughs by the supplement to said act of March 13th, 1883 (Rev. Sup., p. 49), and the further supplement of March 11th, 1885 (Rev. Sup., p. 50), to work, repair and improve public highways out of the road tax, may be exercised by a mere resolution of the council.</p> <p>3, A resolution directing the removal of obstructions from a public avenue and the working of the avenue for travel, cannot be sustained, for the first direction is unauthorized because not by ordinance, and the second direction is so essentially connected with the first that both must fall.</p>

On error to the Circuit Court of Middlesex county. This suit was brought upon a bond given by Thomas Carpenter and George Such to secure Carpenter’s compliance with the terms of an order of filiation made in bastardy proceedings against him by the Court of General Quarter Sessions of Middlesex county.

On error to the Supreme Court. For opinion of Supreme Court, see 25 Vroom 549. The prosecutor, in the year 1890, was incorporated for the purpose of establishing an institution for the promotion of learning, pursuant to a statute of this state.

This suit was brought upon a note, of which the following is a copy: “ $50,000. Held: such surplus, after the payment of this note shall be returned to-or-assigns. “ It is further agreed that upon any sale by virtue hereof, the holder hereof may purchase the wdiole or any part of such property discharged from any right of redemption, which is hereby expressly released to the holder hereof, who shall retain a claim…

The defendants were owners of a lot of land fronting on Union street, in the city of Burlington, upon which they had erected a two-story building. The defendants used the first story for a public library and reading-room. The basement was let by them for school purposes and public exhibitions.

<p>Under a valid contract for tlie manufacture and sale of goods, with instructions by the purchaser to vendor to send them to the purchaser, the delivery of the goods to a common carrier to be forwarded is a delivery to the purchaser, and the title passes to the purchaser subject to the vendor’s right of stoppage in transitu.</p>

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

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see 25 Vroom 274.</p>

<p>1. If one who is known to be an agent for the negotiation of his principal’s draft, transfer the draft to a third person in payment of the agent’s debt, that person will acquire no title to the draft, however honest his actual intention may be.</p> <p>2. The declarations of an agent, although accompanying his acts, constitute no evidence of the extent of his authority.</p> <p>3. If an agent transcends his authority and commits a breach of trust by transferring his principal’s property to pay his own debt, the principal will not be deemed to bave ratified tlie act until be has notice of tbe breach of trust.</p> <p>4. If a transaction between an agent and another person be entire, and be known to such other .person to be a breach of trust on the part of the agent, the principal is not bound at all, although some portions of the transaction might, if standing alone, have been within the agent’s power and duty.</p> <p>5. Persons dealing with one who is known to be a special agent are chargeable with knowledge of the extent of his authority.</p> <p>6. A special agent authorized to negotiate a draft for cash at a reasonable discount, is not empowered to negotiate it for cash and merchandise.</p>

<p>Surveyors of the highways cannot be appointed to vacate a road while proceedings upon a previous appointment of surveyors to vacate the same road are still pending.</p>

On error to the Supreme Court. Eor opinion of Supreme Court, see 25 Vroom 462. The writ of error brings up the record of a judgment dismissing a certiorari prosecuted by plaintiff in error. The certiorari brought before the Supreme Court an ordinance of the city of Elizabeth, approved February 5th, 1891, vacating and closing a part of York street in that city.

On error to the Supreme Court. This case was tried before Justice Depue and a jury, at tbe September Term, 1892, of the Essex Circuit. The horse and buggy of the plaintiff was in charge of his-driver, and was injured by being run over by the locomotive of the railroad company at the Grove street crossing, in Montclair. This suit was brought for damages thus occasioned.

<p>1. Under the decision of this court in The New Jersey Zinc Co. v. The Boston Franklinite Co., 2 McCart. 418, it must he regarded as settled that the Sussex Zinc and Copper Mining and Manufacturing Company, by its deed dated March 18th, 1852, conveyed to the New Jersey Zinc Company all the franldinite and iron ores which it owned in the Mine Hill farm in Sussex county.</p> <p>2. The deed from Samuel Fowler to the Sussex Zinc and Copper Mining and Manufacturing Company, dated March 10th, 1848, and the confirmatory deed between the same parties, dated March-, 1849, purported to convey to the grantee, inter alia, all the veins, strata and masses of zinc ore in the Mine Hill farm, which, in the then state of the arts and sciences, would be deemed reasonably fit to be mined for zinc, and also all the franldinite and iron ores which did not exist in such veins, strata or masses as were capable of being mined without interfering with the veins, strata or masses of zinc ore aforesaid.</p> <p>3. The deed from Samuel Fowler to James L. Curtis and Daniel H. Curtis, trustees, dated December 13th, 1850, purported- to convey to the grantees such veins, strata and masses of franklinite and iron ores on the Mine Hill farm as were capable of being mined without interfering with the veins, strata and masses of zinc ore which the grantor had conveyed to the Sussex Zinc and Copper Mining and Manufacturing Company, as above stated.</p> <p>4. Upon an issue whether certain ore had been taken from such a vein, stratum or mass of ore as is 'described in the deed above mentioned from Fowler to Curtis, or from a different vein, stratum or mass, it was competent for a defendant, insisting that it had been taken from such a vein, stratum or mass, to prove that the vein from which the ore in suit was taken was, in 1848, usually called franklinite; that although this vein was then known to contain certain compounds of zinc mixed with franklinite, yet these were then worthless as zinc ore, and were for that reason rejected by the New Jersey Zinc Company while it held the plaintiff’s title ; that of all the ore discovered in the Mine Hill farm the only zinc ore then deemed commercially valuable was the red zinc ore, which is scarcely found in the vein from which the ore in suit was taken; that this vein was then available only as an iron ore and did not become useful in the arts for the manufacture of zinc until the discovery in 1866 of what is known as the lime process, and that those holding the plaintiff’s title had always acquiesced in the occupation of this mine by those holding the defendant’s title.</p> <p>5. A judicial determination of a question of fact binds only the parties in the cause and their privies, and is not even evidential against others.</p> <p>6. Trover will not lie at the suit of the owner of land against a person who severs and converts to his own use what was a part of the realty, such as timber, ores, &c., if at the time of severance the defendant was in adverse possession of the realty under a bona fide claim of title.</p>

<p>In tbe absence of a bill of exceptions, error cannot be assigned upon matter which such bill should contain, neither can the. judgment below be reversed.</p>

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

<p>On demurrer to declaration.</p> <p>This is a demurrer to three counts of the declaration, the same being the first, fifth and sixth counts. The substance of the first of these was thus expressed, that the plaintiff “ complains for that whereas the said defendant, George K,. Lord, personally and as executor as aforesaid, on the 16th June, 1892, in the county of Monmouth aforesaid, became, was and is indebted to the plaintiff, as endorser personally,.and as maker as the executor of the last will and testament of Mary E. Lord, on the promissory notes hereto annexed in the sum of $29,38948/100_” Then followed the fifth count, as follows i “And in the like sum of money for the price and value of work done and materials for the same provided by the plaintiff for the defendant at his request.” The sixth count was stated in these terms: “And in the like sum of money for money received by the defendant for the use of the plaintiff.”</p> <p>There were other common counts, similar in frame in all respects with the last two just recited.</p> <p>The following is one of the notes mentioned in the first of the foregoing counts, viz.:</p> <p>“ $193.24. • Asbury Park, N. J.</p> <p>“ 5 Feby. 1889. '</p> <p>“ On demand after date I promise to pay to the order of myself one hundred and ninety-three %qo dollars at the Asbury Park National Bank with interest at six per cent. Value received.</p> <p>(Signed) “ Geo. R. Lord, Ext.</p> <p>[Endorsed]—</p> <p>“ Geo. R. Lord, Ext.</p> <p>“ Geo. R. Lord.”</p>

<p>1. A justice is not liable to an action for false imprisonment who, from mistake in law, issues liis warrant founded on an affidavit setting forth a private nuisance dangerous to the prosecutor and many other persons, &e.</p> <p>2. A defendant sued for false imprisonment pleaded that he made com plaint under oath, setting forth certain facts, and that thereupon the justice issued his warrant, &c. In his replication the plaintiff averred that the defendant, when he made such oath, knew that the facts stated did not constitute a nuisance or other indictable offence. Held, such replication was demurrable, it being the duty of the justice to construe, in point of law, the facts.</p>

<p>A. deposited, from time to time, -with B. certain sums of money. A. had no voucher for such deposits, but had in her possession a strip of paper containing a column of figures made by B., the sum total of which corresponded with the aggregate of such deposits. With the exception of a date there was no writing on the paper. A. gave to C., orally, these moneys and delivered to C. the slip of paper in question. Held, such gift is invalid, on the ground that the subject of it was not legally delivered.</p>

<p>A policy declared in explicit terms that it should he void if the assured had at the time any other policy on the premises. To a count stating this stipulation the plaintiff replied that the defendant, the insurer, knew when it issued its policy of the existence of an antecedent insurance. Held, that this replication was bad, as it was an attempt to alter the written contract by parol.</p>

<p>The nonjoinder of a defendant in an action ex contractu can be taken advantage of only by plea in abatement. If the general issue be pleaded, and it appears at the trial that a person ivho should have been a defendant has been omitted, the plaintiff is entitled, the merits being with him, to a verdict against the defendants on the record.</p>

Information in nature of quo warranto, stating that relator was appointed superintendent of buildings July 1st, 1881, and that he held the office without interruption until the 6th of June, 1892, when respondent entered, &c., claiming under an appointment of the common council, under date of May 6th, 1892. To this information a demurrer was interposed by the defendant.

<p>A foreign judgment, when sued on here, is subject to our statute of limitations, being barred by the lapse of six years.</p>

<p>The defendant was charged with libeling the court through a newspaper publication. The court, acting on its own knowledge, and without proof of any kind, issued an attachment against the defendant, and still without proof convicted and fined him. The conviction set aside.</p>

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

<p>When goods axe manufactured or sold, and delivered subject to the approval of the purchaser, it is incumbent upon him, unless he approves, to express disapproval within a reasonable time or within the time limited by the contract, and the absence of such expression is sufficient evidence of approval, or at least of a waiver of the right to insist upon approval as a condition precedent to a recovery by the seller.</p>

<p>The amendment of the Practice act, approved March 4th, 1890 (Pamph. L., p. 24), does not authorize a person to whom a judgment had previously been assigned, to bring suit upon the judgment in liis own-name.</p>

<p>Simpson, and Negley having separate claims against the same corporation, which were contested by certain stockholders who had control of the corporation, Simpson covenanted with Negley that in any settlement which might be made of Simpson’s claims Negley’s claim should be included. Held—</p> <p>1. That the covenant bound Simpson’s executrix.</p> <p>2. That an assignment of Simpson’s claim by his executrix to the contesting stockholders or their representatives, for a cash consideration, was a settlement within the meaning of the covenant.</p> <p>3. That on such settlement Negley became entitled to recover from Simpson’s executrix the amount of his claim against the corporation, although it had not been included in the settlement.</p>

<p>The oath or affirmation required by section 104 of “An act to regulate elections” (Sev., p. 356) should he made by persons cognizant of the particular circumstances alleged in the petition as the ground of contesting the election, and should attest the truth of those allegations.</p>

An action of replevin was brought by the First National Bank against William D. Perrine for taking certain chattels. Upon the trial it appeared that one Samuel E. Perrine, on March 1st, 1889, had made a chattel mortgage upon the property in suit to William jD. Perrine, the defendant below, to secure the payment of two promissory notes, amounting to $1,500.

<p>The rule which excludes the introduction of parol testimony to vary or contradict a written instrument, hinds only parties to the instrument and their privies.</p>

<p>On ease certified from the Hudson Circuit.</p>

<p>1. Under the “Act for the relief of creditors against heirs and devisees” (Sev., p. 476), a creditor of a deceased debtor may recover in an action against his heir or devisee either (1) if defendant pleads properly a special judgment requiring the debt to be made only out of lands descended or devised, and which have not been bona fide aliened before-the commencement of the action, or (2) if defendant fails to plead or pleads falsely or improperly a general judgment as if for the debt of defendant, or (3) if it is made to appear in the manner prescribed that such lands have been so aliened before action brought, a like general judgment, but only for the value of the lands.</p> <p>2. A judgment against an heir or devisee upon his individual debt, and levy of an execution issued thereon upon 'lands descended or devised prior to the commencement of an action against the heir or devisee upon a debt of the ancestor or testator, is not an alienation within the meaning of that act.</p>

On demurrer to the first count of plaintiff’s declaration. The count demurred to is founded upon the following writing, which is annexed to the declaration and referred to in the count as so annexed: “Riverside, Burlington Co., N. J., Aug. 2, 1892. “We the undersine do heare by agree to Wm.

<p>On certiorari.</p> <p>This certiorari has brought up proceedings of the Union Quarter Sessions and an order of that court requiring John W. Ackerman, son of John M. Ackerman,- to pay to his said father $4 weekly (such payment to commence at the date of filing the petition), and to give bond to his said father in the penalty of $500, conditioned for the payment of said weekly sum.</p> <p>The proceedings and the facts on which the order was made sufficiently appear in the opinion.</p>

In attachment. On motion to expunge from the record an appearance entered by one of the defendants in behalf of the other defendants.

<p>On certiorari to review a resolution of the state board of commissioners of electrical subways.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Certiorari to remove assessment.</p>

<p>The discretion to quash an indictment on motion will not be exercised unless upon the clearest and plainest ground, but the defendant will be left to a demurrer, motion in arrest of judgment or writ of error.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. A peremptory mandamus will issue for the payment of state and county taxes by a city where it has collected sufficient moneys for city, county and state purposes to pay such taxes.</p> <p>2. The charter of the city of Paterson only modifies the twenty-fifth section of the Tax act of April 12th, 1866, so far as to give the city authorities until December 20th to pay over the state and county taxes due for the year.</p> <p>8. The proper remedy by the city authorities to attack illegal appropriations of money made by the board of chosen freeholders is by writ of certiorari.</p> <p>4. On an application for mandamus to compel the city to pay state and county taxes of 1892, it would he no defence to set up that there were illegal appropriations made in 1891 by the board of chosen freeholders, which require the imposition of an additional amount of taxes in the tax resolution of 1892.</p>

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

<p>1. A judgment was ordered satisfied and discharged of record, it appear-I ing to the satisfaction of the court and by the receipt of the assignee thereof that, while he held the title thereto, the goods of the defend- | ant in execution were by his direction sold at sheriff's sale on execu- ! tion, and taken by him “in lieu and in full of the purchase-money” bid at such sale.</p> <p>2. Such assignee, having thereafter assigned said judgment to a party taking the same in good faith, transferred the same, subject to the rights of the judgment debtor who had paid the same, and the judgment would be satisfied as against the last assignee, but without costs.</p>

<p>On certiorari.</p>

<p>1. The township of Landis has no right to raise money for “incidental purposes” without specifying what those purposes are, as it may oe that the money proposed to be raised is to be devoted to some object to which the borough is not required to contribute.</p> <p>2. The county board of assessors meet only for the purpose of determining how much each township and borough shall contribute to the state and county tax, and the valuation fixed by that board is exclusively for the purpose of adjusting such quota.</p> <p>3. The tax laws provide a remedy where one or more persons are assessed at too low a rate.</p>

<p>When, the proceedings of the board of commissioners of assessment are irregular and not in conformity to the city charter, the landowner may review them by certiorari, notwithstanding the fact that the oity charter gives to the landowner who presents to the board of public works written objections to the award made to him, a right to bring suit and have a trial by jury.</p>

<p>On certiorari.</p>

<p>1.; An action may be instituted in tlie District Court of Newark against a corporation to recover 5200.</p> <p>2. No jury was demanded on the trial below, and therefore the question cannot be considered whether the prosecutor was entitled to a jury trial without prepayment of the jury fees.</p> <p>3. The act of March '24th, 1892, changed the practice which existed . under the act of 1873, and required the Common Pleas to enter judg- ' ment final on an appeal from the District Court.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

On certiorari. The following state of facts is agreed upon for the purpose of the argument of the above-stated cause: - First. It is admitted by the compact between New Jersey and Pennsylvania, dated May 27th 1783 {Nix.

<p>On certiorari.</p>

<p>The act of April 16th, 1891 (Pamph. L., p. 480), which provides that the cost heretofore or hereafter incurred by any city of the third class for improving sidewalks shall be a lien upon the abutting lands, and may be collected in the same manner as taxes are in said cities, is ¡unconstitutional.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>It is the settled law of this state that the determination of the boundaries-of a street requires action of a judicial nature to ascertain the precise character and extent of the encroachments, and that parties to be-affected by the adjudication have a right to be heard.</p>

On error to the Burlington County Circuit Court. The plaintiff below, Howard Parry, on the 22d of December, 1890, purchased an excursion ticket from Tiverton, where he lived, to Mount Holly, both places being in Burlington county.

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

<p>In error to the Somerset Circuit.</p>

On error. The plaintiff contracted with the defendant, under seal, to do the mason work of a certain building, under the direction and to the satisfaction of J. O’R., an architect, to be testified by a writing or certificate under his hand; and the defendant contracted • to pay the plaintiff therefor as follows: $1,000 when the buildiug was enclosed, $800 when the plastering was finished and $600 when the contract was finished, provided that, in each of said cases, a…

On error. The plaintiff was principal of the public school in School District No. 8, in the county of Hudson, from September 1st, 1882, to July 1st, 1886. His service was rendered under several contracts made with the defendants, and always at a stipulated salary per month. The salary so stipulated was paid to the plaintiff for each calendar month during the stated term.

On error to the Supreme Court. This was an action upon a policy of fire insurance issued by the defendant to the plaintiffs July 14th, 1891, insuring a stock of hardware,' office furniture, &c., in Summit, N. J. A fire occurred December 30th, 1891.

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

<p>The plaintiff, traveling along a street on foot in the daytime, came to the defendant’s intersecting railroad, which consisted of three tracks; he stopped upon the first track, which was not in use, for a freight train, going towards his left on the furthest track, to pass the crossing; this train made a “tremendous noise,” as the plaintiff described it, and emitted smoke which settled down upon the tracks; when the freight train had passed, then, knowing that the middle track was used for trains coming from his left, he looked towards the left, and seeing nothing but smoke upon the tracks and hearing no whistle or bell, he proceeded to walk across at his usual gait and was struck by a train coming from the ,left on the middle track. Held, that he was guilty-of contributory negligence.</p>

<p>In an action by a husband and wife for a personal injury to the wife, his contributory negligence will defeat the suit.</p>

<p>Where a driver of a team, in approaching a railroad crossing, had his view so intercepted by buildings that he could catch only glimpses-of a limited portion of the track from particular points in the cross street upon which he was driving, until he reached the side of a street in which the track was laid, the said side being twenty-three feet from the nearest rail of the track, and at that point his view was further intercepted by trees growing along the curb line of said street — Held,. that it is not so clear that he could, by proper vigilance, have avoided, a stroke by an approaching engine, giving no audible signals, as to warrant a nonsuit.</p>

On error to the Supreme Court. The record discloses the following facts: The action was brought in the Monmouth Common Pleas by William E. Warren against the Monmouth Park Association. Besides the common counts, the declaration contained a count founded on a contract between the parties, whereby Warren agreed to do certain work in grading, &c., for the association, which agreed to pay therefor a specified price, and averring performance and non-payment.

On error to the Supreme Court. Fanny Block, the defendant in error, brought an action of tort against the Newark Passenger Railway Company, the plaintiff in error, in the Essex Circuit, to recover damages for an injury received from a car of the company running in a public street. After the evidence was all in, counsel for the railway company requested the judge to direct a verdict in its favor. The request was refused and exception was taken.

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

This case comes before the court on writ of error to the Morris Circuit Court, where the plaintiff below, Martha Hough, obtained a verdict of $5,000 and her husband $1,500. The facts of the case appear fully in the opinion of the court.