Volume 56 — New Jersey Law Reports

<p>The act entitled “An act to create county boards of license commissioners and to define their powers and duties,” is unconstitutional, as it is local in its operation.</p>

<p>1. In a proceeding by information in tlie nature of a quo warranto, it is the title of tlie defendant that is alone put in issue.</p> <p>2. The statute of March 10th, 1893 (Pamph. L., p. 224), declares that in all cases in any city in which the mayor can appoint any municipal officer, no such appointment shall take effect until the board of finance shall have confirmed the same “ by a vote of not less than two-thirds of all the members of such board;" the information alleged that although the mayor of Jersey City did appoint the defendant a member of said board of finance, and although the defendant thereupon took the oath of office and his seat in said board and was recognized by a majority of the members of said board, the relator alleges that the appointment of the said defendant was of no effect, because the same “ has not been confirmed by said board of finance.” On demurrer to this information, Held, by force of this demurrer, the defendant acknowledged that he was not in office de jure and that judgment of ouster must be entered against him.</p>

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

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

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

<p>On- contract. On rule to show cause why a new trial should not be granted.</p>

<p>1. A stranger may, by adverse possession or use of land for the requisite period of time, bar both the legal estate of the trustee and the equitable estate of the cestui que trust.</p> <p>2. One who has by his deed conveyed lands to others in trust, may, by subsequent adverse use, acquire rights inconsistent with the trusts.</p>

<p>A declaration upon a bond given under “An act for the collection of demands against ships, steamboats and other vessels,” should set forth the particular circumstances which, according to that act, entitled the plaintiff to a lien upon the vessel.</p>

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

<p>Under the act concerning proceedings on bonds and mortgages (Mev. Swp., p. 489, &c.), the right of action upon a bond secured by mortgage will not be barred by the lapse of six months after sale of the mortgaged premises in proceedings instituted to foreclose a prior mortgage.</p>

On rule to show cause, &c. The declaration was upon a promissory note dated February 13th, 1890, made by Siegmund T. Meyer & Co., a firm composed of defendants, to plaintiff’s order, for $7,500, payable in five months, with interest. The plea was the general issue.

Case certified. Matthews, the plaintiff, brought an action of tort in the Essex Circuit against the defendants to recover damages for an injury received in a collision between a locomotive of the railroad company and a car (in which he was a passenger) of the railway company. • There was a verdict in favor of the railway company and against the railroad company. The railroad company obtained a rule to show cause why the verdict against it should not be set aside.

On demurrer to declaration. This declaration contains four counts, each founded on an agreement in writing between defendants and George M. Woodward and Edwin S. Dickerson, whereby defendants agreed to sell and deliver to them in lots, from time to time, certain “ crude fish scrap,” at prices to be ascertained in the manner prescribed therein. It was further agreed that Woodward and Dickerson should have a rebate or commission of twenty-five cents a ton for all scrap so sold.

<p>In an action on the case for damages for breach of a warranty in a sale of peach trees, brought in the Circuit Court, an order of reference was made, and upon the referee’s report that there was such a contract of. warranty and that it had been broken, and determining the damages of plaintiff, judgment in his favor was entered. Upon error, Held— (1) that the cause was not one in which matters of account were in controversy, and the order of reference was not within the authority conferred by the provisions of sections 176-180 of the Practice act; (2) that, as the consent of parties did not appear, the order of reference was not within any authority conferred by the common law or the provisions of section 3 of the “Act for regulating references and determining controversies by arbitration” {Seo., p. 34); and (3) that the judgment on the referee’s report could not be sustained.</p>

On error to Mercer Oyer and Terminer. The defendant was tried for murder. At the time the killing occurred he had lived in this country some nine years, his native language being the Slavonic. At the trial he testified in his own behalf, with the aid of an interpreter. The case for the state relied for proof of intention upon a number of statements made in broken English to various witnesses.

<p>A private relator may not, by mandamus, intervene between a municipal council, empowered by its charter to build public sewers, and the committee directed by ordinance to execute the work of constructing a particular sewer, when it appears that council has refused to make any appropriation therefor and opposes the granting of the writ. Queers. Whether, under Read v. Atlantic City Water Works, 21 Vroom 665, either council or its committee could incur any obligation for which there existed no specific appropriation.</p>

Ou case certified. This cause was tried before the Circuit Court, a jury having been waived, upon the following agreed state of facts: First. The Commonwealth Beneficial Association is a corporation organized under the laws of the State of New Jersey. A copy of its charter, constitution and by-laws is hereto annexed. Second.

<p>X. A declaration setting up the appointment of the plaintiff as receiver of the property of the defendant without showing the recovery of a judgment and the return of an unsatisfied execution, is fatally defective.</p>

<p>On motion for judgment mino pro tuno.</p>

<p>On motion to vacate a rule tó show cause why a new trial should not be granted.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On rule to show cause why mandamus should not issue.</p>

<p>On rules to show cause why these attachments should not' be set aside.</p>

<p>An action was brought in the First District Court of Newark to recover a claim of over $200 under the supplement to the District Court act of March 27th, 1882. Rev. Sup., p. 261. When the case was called for trial the-defendant objected to the judge trying the case without a jury, upon the ground that the defendant had not waived a trial by jury. The judge proceeded to try the case without a jury, and gave judgment for the plaintiffs. Held, that this proceeding was in violation of article 1, paragraph 7, of the constitution, which declares that the right of trial by jury shall remain inviolate; that the defendant is not bound by the judgment, which should be reversed, and the record remitted to the District Court to be proceeded in according to law.</p>

<p>la summary proceedings by tbe landlord to recover the possession of land from a tenant because liis leasehold term had expired, the tenant is entitled to a trial by jury, notwithstanding the passage of the act of April 23d, 1888. Pamph. L., p. 462.</p>

<p>1. Tbe act of March 8th, 1892, entitled “An act concerning the levying of assessments for sewers ” (Pamph. L., p. 58), is constitutional.</p> <p>2. An assessment made since the passage of said act, under an ordinance of the city of Elizabeth, to build a sewer, which provides that so much of the costs and expenses incurred in the making thereof as can be lawfully assessed on property specially benefited, shall be duly assessed according to the city charter and the general laws of the state, will be sustained, including benefits for both trunk and lateral sewers, unless some valid objection is made thereto.</p> <p>3. The court in this case, under the authority of the act of March 23d, 1881 (Pamph. L., p. 194), sustains the assessment made by the commissioners against the prosecutors, as it appears to be fair, and the prosecutors ought in justice to pay the same, as it does not exceed the special benefit received by the lands of the prosecutors from the lateral sewer built under the ordinance and the trunk sewers theretofore constructed, through which the sewage from the lateral is discharged into the final outlet in Elizabeth river.</p>

On application of Charles B. Morris and others for writs of mandamus to James T. Wrightson, clerk of Essex county, and William O’Connor, clerk of the city of Newark, and others, clerks of townships, &c., in said county, requiring them to conduct elections for members of the general assembly according to the constitutional provisions. Heard upon rule to show cause and depositions.

<p>1. The petition for the opening of a street, under section 41 of the Jersey City charter, must show clearly and definitely the location of the lines of the proposed opening.</p> <p>2. The words “ back from the line of improvement,” in section 41, are equivalent to “ off” or “ away from ” the line of the improvement.</p>

<p>The civil power of a justice of the peace is wholly statutory, and where a power is not expressly conferred he does not possess it. The right to set off one judgment against another is the exercise of a purely equitable jurisdiction, which has not been given to a justice of the peace, and he cannot, therefore, order a judgment recovered in another court to be set off against a judgment recovered before him. ■</p>

<p>On motion to quash attachment.</p>

<p>On certiorari.</p>

<p>1. Whenever the proceedings of a court of record are to be reviewed on certwrari, the record itself is the primary source of information as to those proceedings. If it be alleged that the statements of the record are not warranted by the actual facts which occurred or transpired before the court, or if some proceedings not stated in the record are to be shown, then a rule must he taken on the court to certify what those facts or proceedings were, and only when the court is unable to respond to such a rule, can .the testimony of witnesses be invoked.</p> <p>2. If the record avers that an application for the laying out of a road was made to the Court of Common Pleas in term time, three judges being present, it sufficiently indicates that the application was made in open court.</p> <p>3. If, in response to a rule of this court, the judges of the Court of Common Pleas certify that, on an application for the appointment of surveyors to lay out a road, the court, without any reason, omitted to appoint the surveyors of highways in the township wherein the road was to. be laid, the proceedings to lay out the road will he set aside.</p>

<p>1. -Under a title concerning the division of wards in cities, a statute may contain provisions for the representation of the new wards in the municipal government.</p> <p>2. A statute authorized cities “ already divided into wards ” to subdivide the wards when they reached a certain size. Held, that it was not confined to cities which had been divided into wards before its passage.</p> <p>3. Cities may be constitutionally classified on the basis of population, for the purpose of prescribing a limit to the size of the wards.</p>

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

<p>1. When the birthplace of a pauper is severed from a township, and included within the corporate limits of a town, a liability for support passes to the town along with the birthplace.</p> <p>2. The township is not estopped from testing the liability of the town for such support, by the fact that its officers, for a long period of time after such transfer of territory, continued to support the pauper; nor does such conduct raise a conclusive presumption that, at the time of the transfer, a contract was entered into between the town and township by which the latter was to continue the support.</p>

On certiorari. This writ brings up a conviction of the prosceutor by Police Justice Paul, of the city of Camden, upon a complaint that the prosecutor sold malt and spirituous liquors within the city of Camden without a license first obtained for that purpose. Upon the hearing,'the prosecutor admitted the sale of the liquor as charged.

<p>The conviction of the prosecutors for unlawfully taking or catching fish with a net, where the complaint was for a violation of section 1 of the act for the preservation of fish, approved April 13th, 1876, set aside for defects in the complaint and in the record, and because section 1 of the act of 1876 was so far amended by the act of March 8th, 1877, as to repeal the original section, on which the complaint is founded.</p>

<p>On certiorari.</p>

<p>On cases certified from the Warren Circuit Court.</p> <p>The question certified for the advisory opinion of the-Supreme Court is as follows:</p> <p>The above-stated causes coming on to be heard upon rule-to show cause why the judgments entered therein should not be set aside and the executions issued thereon be set aside, om the application of L. Milton "Wilson, receiver of the said Blairstown Creamery Association, the defendants in said judgments named, and it appearing that the said cases present questions of doubt and difficulty, I do hereby certify the said causes into the Supreme Court for its advisory opinion upon the matters involved in said causes, and whether the rules to show cause allowed should be made absolute and the judgments and the executions issued thereon be opened and set aside. The question certified in both cases is whether or not the president had power to sign the cognovit upon which judgment was entered in both cases, and affix a common seal as the corporate seal of the company, and whether" judgment could be entered thereon, there having been no delegation to him of authority by action of the corporation to sign such cognovit.</p> <p>The questions arise as follows</p> <p>Actions were brought in the Circuit Court by the plaintiffs against the defendants, upon contracts for work done and goods sold and delivered. The actions were commenced by the service of a summons dated August 1st, 1893, accompanied by a declaration, which were both served on the defendant by the sheriff that day. Judgment was entered August 2d, in the Raub case, on the following cognovit:</p> <p>WARREN CIRCUIT COURT.</p> <p>Calvin E. Raub v. > Blairstown Creamery Association. ^ On contract. Cognovit.</p> <p>The said The Blairstown Creamery Association, the above-named defendant, hereby confesses this action and that the plaintiff hath sustained damage to the amount of two hundred and thirty-seven dollars and fifty-one cents, as laid in his declaration, besides his costs and charges to be taxed. As witness the corporate seal of said defendant, this first day of August, in the year of our Lord one thousand eight hundred and ninety-three.</p> <p>(Signed)</p> <p>The Blairstown Creamery Association, by</p> <p>Ferdinand Wildrick, President.</p> <p>Charles E. Harris, Atty. of Deft.</p> <p>‘[Common paper seal.]</p> <p>And on the same day, in the Cook case, judgment was entered on a similar cognovit. Execution was issued on both judgments.</p> <p>There was no delegation of authority by the company to the president of the company to sign this cognovit or affix the seal he did, as the corporate seal of said company. On August 8th, L. Milton Wilson was appointed receiver of said defendant corporation, which was declared insolvent, and he gave bonds and entered upon the discharge of the duties of his office. Upon application of the receiver, September 12th, it was ordered that the plaintiffs show cause why the judgments should not be opened and made void, and the executions issued thereon set aside. The case is pending before the Circuit judge on papers and depositions taken by both sides.</p>

On rale to show cause why a writ of mandamus should not issue reinstating Edmon Taylor on the police force of the city of Bayonne.

<p>• 1. A resolution to readvertise for bids for work to be done on a street in Bayonne, because the lowest bid is in excess of the estimate therefor made by the commissioners of assessment, is one affecting the interests of the city, and has no validity unless approved by the mayor or passed over his veto as provided in the city charter.</p> <p>■2. In this case such a resolution not having been so approved, or passed over the veto of the mayor, never became operative, and it is not, therefore, necessary to decide as to its effect if it had ever become operative.</p> <p>.3. The power of the council over streets is a continuing one, and bids for work thereon presented to the council may be acted upon by that body in the present case, notwithstanding an election had intervened in which one-half of the members thereof were to be voted for.</p> <p>-4. The difference in this case between the estimated cost and the lowest bid is not so great as to warrant the inference by this court, from that fact alone, that it was fraudulent or that its acceptance by the council does great injustice to the city, its city council and mayor having both finally exercised their discretion in accepting it, after the matter had been fully presented to them.</p>

<p>1. Where a city charter directs that certain paving or other work shall he awarded to the lowest responsible bidder, or to that responsible bidder who offers the terms most advantageous to the city, it is illegal to divide the work between the highest and lowest bidders.</p> <p>2. It is the duty of the proper city board or officer to determine which of the bidders possesses the statutory qualifications, and then award the work to that bidder, unless they determine to reject all bids and re-advertise for the work under the city charter or the terms of. the original advertisement for bids.</p>

<p>On contract.</p> <p>The defendant is in custody under a capias issued at the suit •of the plaintiff, in pursuance of an order made by a Supreme •Court commissioner, adjudging that the defendant fraudulently contracted the debt for which the suit was brought, by unlawfully and willfully appropriating the moneys of the said •company.</p> <p>The* defendant moves that he be discharged on common •bail, for the reason that the affidavits laid before the commissioner do not support his adjudication.</p>

<p>On July 26th, 1893, the common council of Hoboken passed a resolution for the payment of the salaries of the city officers for the preceding quarter, among them 5250 to the counsel of the commissioners of adjustment. This resolution was signed by the mayor, he being under the impression that the salary of the counsel was not included in it, and intending not to approve a resolution for the payment of that salary. The reason assigned by the mayor for his unwillingness to approve of the payment of this salary is that, about two years ago, the counsel was paid by the city officials, for his salary as such counsel, 5444.12 in excess of what was due to him, which he still retains. For this reason there appears to he substantial ground. Held that, under these circumstances, a writ of mandamus should not he issued commanding the mayor to sign and deliver to the relator a warrant for the payment of the salary.</p>

On error to the Union Circuit Court. Action of ejectment to recover possession of a triangular piece of land in the city of Elizabeth, which lies between the-southerly side of Westfield avenue and the former centre line of Golden street.

<p>1. The customary practice of setting apart proprietary lands for the several owners who held the same in common, was a mere mode of partition, and cannot be used for the purpose of passing title.</p> <p>2. The proprietors cannot transfer title to their lands to a stranger by the use of a warrant and survey.</p> <p>3. After a survey has stood upon the records of the proprietors, without question, for a great lapse of time—in the present case for nearly two-hundred years—it will be conclusively presumed that it had been inspected and approved of by the proprietors.</p> <p>4. So, under such circumstances, the admission to the record of such a survey made in favor of a person described therein as the owner of two proprieties, will estop the proprietors from denying the fact that such person was such owner.</p> <p>5. In ejectment it is not necessary that the defendant should prove title in himself; he will defeat the action by proving that it is out of the plaintiff.</p>

<p>1. The act of 1887 (JPamph. L., p. 231), directing the mode of making sewer assessments in cities, repeals and supersedes the provisions of city charters on the same subject.</p> <p>2. The words ‘‘it shall or may be lawful” in the act of 1887 must be-construed to mean “ must;” the act is not optional.</p> <p>3. The provision in the act of 1887 that the cost of the sewer shall be assessed on the frontage to the full extent of the benefits received, and that the balance only of the cost shall be levied on other property benefited, is valid and constitutional.</p>

On error to the Supreme Court. The plaintiff, Lillie A. Keepers, brought two suits in the Supreme Court against the Fidelity Title and Deposit Company, one an action on contract, to recover $418.22, the balance of $970, which had been deposited in the Howard Savings Institution by and in the name of Minnie I. Munn, aud the other an action of replevin, to obtain possession of stock certificate Ho. 2459, for forty-one shares of the capital stock of the American Insurance…

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

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

<p>1. In an action on the case against several for a tort, though a conspiracy be charged, one of the defendants may be found guilty and the others not guilty, the foundation of the action being the damage and not the conspiracy.</p> <p>2. Where the action is against two or more, alleging a conspiracy to destroy the plaintiff’s business by false and malicious statements concerning his character, and no conspiracy is proven, a recovery may be had against one of the defendants only for injuries produced by false representations made by him with malice and ill-will.</p> <p>3. In such action it is not necessary to set out in the declaration the slanderous words which caused the injury. It is not regarded in the law as an action for slander, and the two years’ limitation does not apply to it.</p> <p>4. A creditor may lawfully inquire into the circumstances of his debtor, and the person inquired of may answer freely, and unless his communication be of facts which he does not honestly believe, or the communication be such as was made not for the honest purpose of giving the desired information, but to gratify a malicious purpose, no action will lie.</p>

On error to the Supreme Court. Snyder, the defendant in error, brought this action in the Warren Common Pleas against the Lehigh Valley Railroad Company (lessees of the Morris canal), the plaintiff in error, to recover (1) freight earned in carrying coal on the canal under the employment of plaintiff in error; (2) damages for unlawful discharge from such employment.

<p>On error to the Supreme Court. For opinion of Supreme Court, see 24 Vroorn 270.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 24 Vroom 315.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 26 Vroom 441.</p>

<p>On contract. On demurrer to the declaration.</p> <p>The count demurred to claimed that the defendant was indebted to the said plaintiff in the sum of $2,000, for the work and labor, care, diligence and attendance of the said plaintiff before that time done, performed and bestowed as the attorney and solicitor of Martha J. Hinckley, the wife of the said defendant, and upon her retainer in and about defending a suit brought against her by the said defendant for the purpose of annulling the marriage then existing between her and the s dd defendant, and which said work and labor, care, diligence and attendance of the said plaintiff were necessary to preserve to the said Martha J. Hinckley, the wife of the said defendant, such of the legal rights as werp involved in said suit, and to establish her innocence of the charges of fraud and conspiracy which were brought against her in the said suit by the said defendant.</p>

<p>1. In case of a joint tort the person injured, if he accept satisfaction from one of such tort-feasors, cannot sue the other.</p> <p>2. One of two tort-feasors, upon being sued, pleaded settlement by plaintiff with his defendant companion. The plaintiff replied that such settlement had been obtained by fraud. The rejoinder was that upon bill filed by the plaintiff to set aside the settlement for fraud, it had been established by decree. Held, that such decree was conclusive between the plaintiff and the defendant who was not a party to the chancery suit.</p>

<p>1. The statute declares that each member of the township committee, a body composed of five members, shall continue in oflice until his successor shall have been elected. At an election held in 1893 there were only four committeemen elected. There were two members of the preceding year entitled to hold over. Bdd, that neither of the two could claim the right to fill the single vacancy.</p> <p>2. The juncture was not provided for; it was a casus omissus.</p>

<p>A contract between two corporations for building a portion of an elevated railway provided that the work should be completed by a specified time; that final payment was to be made only on the certificate of the chief engineer of another corporation, and that if the work was not completed at the time fixed §100 per day might be retained as damages, unless the delay resulted from causes not within the control of the contractor, of which the engineer was to be the judge. In an action on the contract one count in the declaration admitted the non-completion of the work at the t-ime specified, but excused the delay by averring that it resulted from causes beyond plaintiff’s control. It also admitted that plaintiff had not procured the required certificate of the chief ■engineer, but excused the failure by averring that before the completion of the work the chief engineer had resigned his office and no successor was thereafter appointed. Held, that an allegation in a plea that upon the resignation of said chief engineer, the chief engineer of still another corporation became and continued to be the chief engineer of the corporation named in the contract, is a substantial, though argumentative, denial of the allegations of the count on which plaintiff’s excuses for non-performance depend, and that the plea, though irregular, is good on general demurrer.</p>

<p>1. When one who is indebted to an insolvent estate acquires from others claims against the estate and brings an action thereon, if the representative of the estate sets off its claim against plaintiff by plea, a verdict on the issue thus made must be treated as a verdict under the “Act concerning set-off.”</p> <p>2. The only judgment which can be entered on such a verdict will not. accord with the intent of the legislation in respect to insolvent estates, but the verdict should not be set aside, for no plea at law can be devised that will present an issue whereon a verdict can be rendered and a judgment entered which will accord with that legislation.</p> <p>3. If the representative of the estate has a remedy under such circumstances, it must be in equity.</p> <p>4. Qucere. Whether in this case the plaintiff was not entitled to offset the claims.</p>

On ease certified. This case was tried by the court below without a jury. The plaintiff offered evidence tending to show the following facts: The -plaintiff, in the year 1875, was the owner of property on the corner of Kinney and Halsey streets, in the city of Newark. A sewer, built by the defendant, ran through Kinney street, passed the plaintiff’s property and terminated at tide water.

<p>On demurrer to an information in the nature of quo •warranto.</p>

<p>On rule to show cause why verdict should not be set aside.</p>

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

<p>On certiorari to review an assessment for benefits.</p>

<p>'On certiorari. In matter of taxation.</p>

<p>1. At common law a conveyance of land to husband and wife created a> peculiar estate. During their joint lives each was seized of the-entirety, and on the death of either the survivor became entitled to the whole estate. For an injury to the premises by a stranger, the-husband might sue alone or husband and wife might join.</p> <p>2. The effect of the Married Woman’s act of 1852 upon the estate conveyed to husband and wife after that act took effect, was to endow rhe wife with the capacity during their joint lives to hold in her possession as a single female one-half the estate in common with her husband—the right of survivorship subsisting as at common law. For an injury to premises so held, by the destruction of trees and grass and fences by Are, the husband and wife should be joined in the suit.</p> <p>3. In a suit for such injuries brought by the husband alone and issue-joined without notice of the non-joinder of the wife, the cause was submitted to arbitration pursuant to the statute. JRev., p. 34. The arbitrators found that (1) the defendant caused the injury complained ' of; (2) the owners of the property sustained damages to the amount of $462.50, and (3) the plaintiff and his wife were owners of the said property as tenants by the entirety. On an application to enter judgment on the award, and a counter-application to set aside the award, an amendment was allowed and judgment ordered entered on the award in favor of the husband and wife, although the wife’s right of action became barred by the statute of limitations pending the hearing before the arbitrators.</p>

<p>1. Courts of law will not interpose to control the proceedings of ecclesiastical bodies in spiritual matters which do not affect the civil rights of individuals. But when the civil rights of an individual are involved, jurisdiction is committed to the courts of law to protect those , rights which the court cannot discard.</p> <p>2. The call of a rector by the vestry, and the acceptance of such call, creates a contract for the payment of the stipulated salary so long as the pastoral relation continues. This contract is a civil right which the courts will protect and enforce.</p> <p>3. By a canon of the Protestant Episcopal Church a rector canonically elected and in charge cannot resign his parish without the consent of the parish or its vestry, nor can such rector be removed therefrom by the parish or its vestry against his will, except upon the dissolution of his pastoral connection in the manner and by the authority designated in other canons.</p> <p>4. In the diocese of New Jersey, when there are differences between a minister and his congregation which cannot be brought to an amicable conclusion, the procedure for dissolving the pastoral relation is prescribed by sections 3 and 4 of canon 4, title 3. Section 3 provides that when the matter cannot be amicably settled within a reasonable time the bishop shall convene the standing committee and shall give notice to the parties to appear before them and present their proofs and arguments at such time and place as he shall appoint. Section 4 provides that when the hearing shall be concluded the bishop shall make such order in regard to the matter as he may think just and for the true interests of the church, and such order may require the rector to resign his rectorship and may require the church to pay a sum of money to the rector ; and it is made the duty of the rector and of the church and every member thereof to submit to and abide by such order, &e., with a proviso that no order shall be made unless with the advice and concurrence of at least a majority of the standing-committee, who shall have been present at the hearing. Held—</p> <p>1. That by sections 3 and 4 of the canon a special tribunal was created, consisting of the bishop and the standing committee, for the hearing of proofs and arguments presented before that tribunal.</p> <p>2. That the prosecutor was entitled, as of right, to present his proofs before the bishop and the standing committee, and to a hearing before that body on the proofs presented by both parties, especially as the determination of that tribunal might deprive him of property rights which enured to him in virtue of his rectorship.</p> <p>3. That the order under review having been made without hearing proofs, and not being in compliance with the procedure prescribed by the canon, was irregular.</p> <p>4. That the order being one affecting the civil rights of the prosecutor, in that if valid under the law of the church it terminated his contractual relation with the parish, is therefore reviewable on certiorari.</p>

<p>1. The rules of the board of excise require applications for new licenses-to be granted at certain stated times. The board cannot, at a meeting held at another time, lawfully suspend its rules for the purpose of granting such new license at once, because it deprives those opposed to license of a reasonable opportunity to be heard.</p> <p>2. The applicant must have a building upon his premises to authorize the granting of a license. License cannot be granted for a building to be erected in the future.</p> <p>3. The prohibited distance between licensed places and a church or schoolhouse must be measured by the nearest mode of access.</p>

<p>On rule to show cause why a mandamus should not issue.</p>

<p>On certiorari.</p>

<p>'On certiorari to review sewer assessment.</p>

A writ of certiorari bringing up an ordinance passed by the common council of Atlantic City, touching the purchase by the said city of the property of the Atlantic City Water Works Company; also a similar ordinance for the purchase of the property of the Consumers’ Water Company.

<p>1. The West Jersey Traction Company presented a petition to the board of public ■works of Camden, requesting permission to lay a street railway in certain streets in said city. Afterward, without notice, at a special meeting of the board, an ordinance was adopted giving permission to the Camden Horse Railroad Company to lay its tracks in any street in the city. One of the members of the board voting for the ordinance was a stockholder in the last-named company. ITeld, that the former company had a standing to prosecute a writ of certiorari for the purpose of setting aside this ordinance.</p> <p>The adoption of this ordinance was a judicial act, and is voidable, because done without previous notice to interested persons. 2.</p> <p>It is also voidable, because one of those participating in its adoption was specially interested in the result. 3.</p>

On return to a rule to show cause why a writ of mandamus should not issue to compel the surrogate of Hudson county to pay to John Kenney, a lay judge of the Court of Common Pleas of said county, certain fees remaining in the hands of the said surrogate.

<p>A tavern license granted by a common council at a special meeting, of which meeting and its object no general notice had been given, and a notice of a few hours only had been given to one citizen, who had made a request to be heard, is annulled.</p>

A writ of certiorari bringing up a conviction of the prosecutor by the First Criminal Court of Newark, and the impor sition of' a fine of $5 upon him. •

On certiorari. This writ brings up a judgment entered by a justice of the ¡peace, in a proceeding under the Landlord and Tenant act.

On certiorari. Statement of facts agreed upon between the prosecutor and the respective defendants in above certioraris : First. That the valuation made by the assessors of the respective townships—Pohatcong and Holland—is not in dispute. Second.

<p>On certiorari.</p>

<p>If a party, desiring to appeal from a judgment rendered in a court for the trial of small causes, neglects to demand an appeal on or before the first day of the term of the Common Pleas next after the rendition of the judgment, his right of appeal expires.</p>

<p>1. By force of the second section of the act of April 9th, 1892 (Pamph. L., p. 471), boards of chosen freeholders in counties of the second class are forbidden to grade, macadamize or improve any ordinary highway under their control, except with money obtained from the sale-of road bonds.</p> <p>2. Under the act of April 2d, 1878 (Rev. Sup., p. 96), a board of chosen freeholders has no right to make an excessive appropriation for one class of expenditure, in order that with the surplus it may eke out deficiencies in others. An honest estimate of the probable expenditure in each class is required by the statute.</p> <p>8. In certiorari, an illegality not apparent on the face of the proeeedingsmust be specially pointed out in the reasons filed, or it will not avail . for reversal.</p>

<p>On certiorari.</p>

<p>Tile plaintiff below, a real estate agent, was employed by the defendant to advertise her property for sale at auction, to secure the services of an auctioneer and to take charge of the sale. After the plaintiff had advertised the property for sale and secured the services of an auctioneer, but before the day of sale, the defendant herself sold the property privately, and thereupon she agreed with the plaintiff to pay him two per cent, of the price for what he had done. Held, that this agreement was not within the statute which requires a writing to entitle brokers and real estate agents to commissions for selling or exchanging real estate.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

On quo warranto. This was an application for leave to file an information in the nature of a quo warranto against Robert Adrain and Maurice. A. Rogers, to inquire by what warrant they and each of them claimed to have, use and enjoy the office of president of the senate of New Jersey. Upon petition filed by George T. Werts, governor, an order to show cause was granted upon Robert Adrain and Maurice A. Rogers, and depositions were taken to be used on the return of the rule.

On error to the Hudson County Circuit Court. It became necessary to take a parcel of land in the city of Jersey City, of which the plaintiff in error Jacob Tingle was the owner, for the construction of a public road, laid out and in process of construction, in virtue of the authority bestowed1 by a statute entitled “An act to authorize the board of chosen freeholders of any of the several counties of the state to lay out, open, construct, improve and maintain a public road…

<p>1. The legislature, in the exercise of its police power, can lawfully prohibit the use of lands for the purposes of burial when such lands are held by a municipal corporation.</p> <p>2. The plaintiffs, a municipal corporation, held lands under a grant from the proprietors of East New Jersey for burial purposes, to be appropriated for no other use or uses whatsoever. An ordinance of the municipality and an act of the legislature prohibited the use of such lands for burial purposes. Held, that the title to the lands thereby reverted to the proprietors.</p> <p>3. Twenty years’ adverse possession will establish a title against the proprietors. Qucere—Whether the first section of the act of June 5th, 1787 (Hev., p. 598), which provides that sixty years’ possession, actual and uninterrupted, shall vest a complete title to lands, will defeat the title of a municipal corporation.</p>

<p>When goods are sold on terms that the vendee shall give his notes for the ■ purchase-price and that the title shall remain in the vendor until a mortgage is given to secure the notes or the price is paid, and no right of innocent third parties intervenes, the title continues in the seller, although he recovers judgment on the notes. After such judgment he may reclaim the goods by replevin. The case of Heller v. Elliott, 15-Vroom 467, distinguished.</p>

<p>1. A demand by an insurance company for further proof is a waiver of the right to object to the failure of the insured to furnish proofs of loss within the time limited by the policy.</p> <p>'2. The demand for a notary’s certificate in this case was not a demand ■for amended proofs of loss. Such certificate is no part of the proofs •of loss, and need not be furnished with or annexed to the proofs of loss.</p>

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

<p>On error to the Burlington Oyer and Terminer.</p>

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

<p>Error to the Camden Circuit.</p>

<p>In error to Supreme Court.</p>

<p>A person driving a team on a turnpike which ran nearly parallel to and a short distance from a railroad, when within fifteen or twenty yards of where the turnpike turned and crossed the railroad, “ merely turned his head " and looked in the direction from which a train was in approaching the crossing, and seeing no train, and hearing no sound, drove on and was struck just as he was on the railroad tracks, there being nothing to prevent his having an uninterrupted view of the railroad track for half a mile, and nothing to distract his attention before attempting to cross the track, is guilty of contributory negligence, it appearing that proper caution would have prevented the collision, and he should have been nonsuited.</p>

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

<p>On error to the Supreme Court. For opinion of Supreme Court see 26 Vroom 391.</p>

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

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

<p>On error to the Supreme Court. For opinion of Supreme-Court see ante p. 49. -</p>

<p>On error to the Supreme Court. For opinion of Supreme Court see 26 Vroom 220.</p>

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