Volume 58 — New Jersey Law Reports

<p>On error to the Circuit Court of Essex county.</p> <p>This was a writ of error to the Essex Circuit Court, before Mr. Justice Child. Judgment was entered upon a verdict of $1,000 against the traction company, in an action of tort, for an assault upon the plaintiff, Sarah F. Taborn, and ejecting her from a horse car.</p>

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

<p>1. Where two experts were employed by a party to make an estimate of the cost of repairing a building that had been damaged by the defendant, and one of such experts had died, the other being called as a witness, it was not competent for such survivor to testify with respect to the opinion of his deceased associate.</p> <p>2. When a street commissioner, without authority, put materials on a street, thereby raising its surface, in the estimation of the damages sustained by such act, it could not be assumed that, by force of such •circumstances, the grade of the street had been permanently elevated.</p>

<p>1. Railroad companies, incorporated under the general act, are bound to put up and maintain, at farm crossings, fences and gates.</p> <p>2. If cattle escape on to the track and are killed by a locomotive, by reason of the deficiency of such fences or gates, the company is liable to indemnify the owner.</p>

<p>If a married woman be tbe real borrower of money, sbe can, by force of the statute, bind herself for its repayment; and it does not invalidate the transaction, if, at the time, she intends to turn the money over to her husband.</p>

<p>1. If the record fails to show that the indictment was one of the hills found by the grand inquest, the omission is fatal.</p> <p>2. So if the indictment he found in the Oyer and tried in the Sessions, and there is no order hy the former court to deliver it to the latter.</p> <p>3. So, also, if the record fails to show that as many judges as constitute a quorum were present in the trial court.</p>

<p>On demurrer to a replication filed to an answer to an alternative writ of mandamus.</p> <p>Au alternative writ of mandamus was filed on behalf of the relator, Frank N. McDonald, directed to the city of Newark, commanding the respondents to show cause why the common council should not cause the name of the relator to be entered on the pay-roll of the officers and employes of the city of Newark, from August 1st, 1892, to August 18th, 1894, and cause a warrant to be drawn upon the city treasurer, in his favor, for his salary during this period, at the rate of $110 per month.</p> <p>The writ set up that the relator had been elected to the office or position of clerk in the city treasurer’s office, on March 19th, 1891, by the committee on finance of the common council and qualified as such, and that the common council had removed his name from the pay-roll.</p> <p>The answer to this writ admitted the appointment and removal, but set up that the relator was a mere clerk, and that he had no official character; that the term for which he was to hold his position was not fixed by law; that his place had been filled by the appointment of other persons by whom the pay for such position had been received from .the city; that during this period the relator had been wholly occupied with his private business, wherein he had earned more than the amount of his salary as clerk.</p> <p>The replication set up that a writ of certiorari had removed the resolution removing the relator, into the Supreme Court, where the resolution was set aside at February Term, 1893; that the city, by a writ of error, removed the judgment of the Supreme Court to the Court of Errors, by which court the writ of error was dismissed at the March Term, 1894; that a writ of mandamus was issued, by force of which the relator was reinstated October 15th, 1894; that defendant tendered himself ready to perform all the duties of the position, and that the city knew of his claim to the right of possession of said office. •</p> <p>To this replication there is a demurrer.</p>

<p>The provision in section 56 of the Criminal Procedure act, that, upon the trial of an indictment for larceny, the jury may return a verdict of ■ guilty of embezzlement, contravenes article 1, section 3, of the state constitution providing that in all criminal prosecutions the accused shall have the right to be informed of the nature and cause of the accusation.</p>

<p>1. The adverse possessions of successive occupants, between whom a privity of estate exists, can be tacked so as to make a continuous twenty years’ adverse possession.</p> <p>2. Where one encloses and possesses more land than is covered by the description in his deed, and sells to another by the same description, who enters into possession of all the land enclosed, the successive possessions can be tacked.</p>

<p>On error to the Middlesex Common Pleas.</p>

<p>On application for the appointment of a receiver in proceedings supplemental to execution.</p>

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

<p>A policy of insurance is a contract of indemnity, personal to the party to whom it is issued, or for whose interest the insurer undertakes to be responsible in case of loss, and cannot be transferred to a third person so as to be valid in his hands against the insurer without the insurer’s consent.</p>

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

<p>On certiorari.</p>

<p>Suit cannot be commenced on a promissory note, payable at bank, on the day it falls due, after the close of banking hours of that day. The maker is entitled to the whole of the due-day in which to make payment.</p>

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

<p>1. The legislature may. reduce the number of judges of the Common Pleas to any number less than five, and may prescribe the qualifications of the judges.</p> <p>2. The legislature cannot abolish the Court of Common Pleas, but if it is conceded that it has such power, then, so long as the jurisdiction which resides in that court is exercised for the benefit of the people, it must be exercised by judges appointed as heretofore. It cannot be bodily transferred, to be exercised by judges not appointed as the constitution prescribes.</p> <p>3. The legislature cannot, by adding to or subtracting from the duties of a given office, or by uniting one office to another, acquire the right to appoint the officer in a manner other than that prescribed by the supreme law.</p> <p>4. The act of June 13th, 1895, known as the County Court act, is unconstitutional.</p>

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

<p>On certiorari removing an ordinance and proceedings of the city council of Camden.</p>

The American Transportation and Navigation Company-presented to Mr. Justice Dixon a petition for the appointment of commissioners to appraise the value of certain lands in Bergen county, which it sought to condemn under its act of incorporation and (what the petition calls) the general public law of the state.

<p>If taxes assessed upon lands in a borough organized under the Borough act of April 5th, 1878, become, by virtue of that act and its supplements, a lien upon such lands which may be enforced by a sale by the borough collector, such sale must be made within two years from the time fixed for payment of taxes, or from December 20th next after the assessment has been made. The act of March 17th, 1882 (Rev. Sup., p. 996, $ 85) does not apply to such a borough.</p>

<p>On certiorari.-</p>

<p>A certiorari directed to a Court of Common Pleas cannot be heard on a stipulation of counsel and a transcript of testimony in lieu of a certification of the record and a judicial report of the facts upon which action below was had.</p>

On certiorari. The defendant was charged with the violation of section 21 of the amended Game law. Samph. L. 1893, p. 48.

<p>A certiorari directed to the judges of a Court of Common Pleas commanding them to send up, under their seals, a certain judgment pronounced by them is not obeyed by filing in this court a narrative of the action signed by the attorneys in the case.</p>

<p>On certiorari.</p>

<p>1. Where a large amount of rock has been excavated in the course of a sewer, the extra cost of such excavation should not be considered as part of the expense to be assessed upon property situate between the rock and the outlet of the sewer.</p> <p>2. The act of April 28th, 1887 {Pamph. L., p. 2S1), is invalid, so far as it aims to require a present ascertainment of the special benefit which will accrue to property, from a main sewer now built, at an unknown period in the future when a connecting branch sewer shall be laid.</p>

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

<p>On certiorari to review conviction.</p>

<p>The act of March 25th, 1885 {Parnph. L., p. 163), regulating the tenure of office in police departments, does not forbid the abolition of an office or rank in the department, for the purpose of reducing public expenses.</p>

<p>1. A special meeting of the voters of a school district cannot legally be held under sections 39 and 86 of the School law (Rev., p. 1070), unless ten days’ notice thereof be given.</p> <p>2. A tax levied to raise a spm of money ordered at such a meeting whereof ten days’ notice was not given, must be set aside, and cannot be reimposed by the court under the act of March 23d, 1881 (Rev. Sup., p. 602), since the vote of a meeting legally convened is essential to the validity of such a tax.</p> <p>3. Neither the conduct of the superintendent of a corporation, nor his information casually obtained, can estop the corporation, if his conduct had no relation to his position as superintendent and his information no pertinency to any matter in which the corporation had empowered him to act.</p>

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

<p>On certiorari.</p>

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

<p>Under the act entitled “An act to authorize the burial of the bodies of any honorably discharged soldier, sailor or marine who shall die without leaving means sufficient to defray funeral expenses,” approved February 13th, 1884 (Parnph. L., p. 17), the boards of chosen freeholders in the respective counties of this state have no legal power or authority to create the independent office, position or employment of “Superintendent of Soldiers’ Burials,” or any like office, position or employment, and affix an annual or' other salary thereto. The power and authority of the board of chosen freeholders under this act are, by the plain provision thereof, limited and restricted to the designation of some county official, already created and in existence, and not having by law the care of paupers and the custody of criminals, to perform the duties provided to be performed under the provisions of this act, and the county official so designated must be one whose accounts aré in other respects audited and paid by the board of chosen freeholders.</p>

<p>On certiorari to review final assessment.</p>

<p>On rule to show cause why judgment should not be vacated and supplementary proceedings thereon set aside.</p>

On error. This writ of error was.sued out by the Western Union Telegraph Company to reverse a judgment entered, on the 15th of January, 1895, for $25,000, upon the verdict of a jury in a case tried in Essex County Circuit Court. The case was originally, brought in the New .Jersey Supreme Court on the 5th of July, 1894, by the plaintiff, Edward McMullen.

On error to the Supreme Court. The writ of error in this case was brought to .reverse a judgment of the Supreme Court entered upon a verdict of the jury rendered in the Hudson County Circuit Court. The action is brought to recover damages for the death of the plaintiffs’ intestate while working in a trench of a sewer which was being constructed in the township of Kearney by the defendants.

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

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

On error to the Supreme Court. By the judgment brought here by this writ the Supreme Court vacated an assessment imposed by the city of Newark on lands of the Mount Pleasant Cemetery Company for the expense of repaving Belleville avenue.

<p>In stating to the jury the degree of care owed by a horse railway company to a passenger who alights from a moving car, it is error to charge that “ the defendant was bound to so control the speed of the car as to insure” the safety of the passenger.</p>

<p>In an action against a railroad company for negligently killing plaintiff's intestate at a public crossing, tbe plaintiff, against objection, was permitted to prove that the municipal authorities of a near-by borough had passed an ordinance requiring the railroad at all times to maintain a flagman at the crossing in question and had directed notice to this effect to be given to the company. Held—</p> <p>1. That the admission of this proof was injurious error.</p> <p>2. That this error was not cured by a subsequent request for permission to withdraw the proof, which was not acted upon by the trial court.</p>

<p>On error to Supreme Court.</p> <p>This case was tried at the Camden Circuit Court before Hon. Eichard T. Miller, Circuit judge, and a jury, and a verdict rendered for the plaintiff.</p>

<p>On motion to dismiss a writ of error.</p>

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

<p>1. M., a practicing physician, promised H. to attend his wife at her confinement ; instead of doing so, however, he sent P., another physician in his stead, who, by his unskillfulness, caused the death of the child. The shock from the child’s death was such as to seriously affect the health of the mother, thereby depriving H. of her society and services, and causing him to incur expenses to which he would not otherwise have been put. Held, that P. being engaged in a distinct and independent occupation of his own, was not the servant or agent of M. in this matter, and that, therefore, M. was not liable for his unskillful or negligent acts.</p> <p>2. No action will lie, in this state, for an injury causad by the death of a human being, except that which is given by the act of March 3d, 1848 (Bev., p. 294), to the personal representatives of the decedent, for the purpose of recovering, for the benefit of the widow and next of kin, the pecuniary loss which they have suffered by such death.</p> <p>3. The case of Ch’osso v. Delaware, Laelcawarma and Western Bailroad Co., 21 Vroom 317, approved.</p>

<p>The testimony of officers or directors of a corporation, called as witnesses in its behalf in an action in which it is a party, is not testimony given by the corporation, and, consequently, is not rendered incompetent by the proviso of the supplement to the “Act concerning evidence,” approved February 25th, 1880 (JRev., p. 287), which declares that a party to an action in cases where his adversary sues or is sued in a representative Capacity, shall not be permitted to give testimony as to any transaction with or statement by any testator or intestate represented in said action.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 28 Vroom 298.</p>

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

<p>1. When a trial judge charges a jury that on the proofs before them they cannot convict of the crime charged in the indictment, but that they, if the facts warrant it, can convict of an attempt to commit the crime charged, at the same time he must instruct them to acquit of the crime charged in conformity with the statute. An omission so to charge will be error.</p> <p>2. Where a charge is made in the indictment of a certain crime but the facts stated show that the charge is nugatory, a defendant cannot be convicted of such charge.</p> <p>S. When the thing done is a nullity, and therefore is not adapted to do the thing intended, there can be no .conviction of an attempt to do the thing intended.</p>

<p>1. If a tenant holding over after the expiration of his term be evicted by force by his landlord, an action of trespass is one of his legal remedies.</p> <p>2. The statutes of this state vest in the person in peaceable possession of land a right to hold the property against a forcible entry, and for an invasion of such right suit can be brought.</p> <p>3. In such cases the tenant can recover only nominal damages for the deprivation of the possession.</p>

<p>Case certified by the Camden Circuit.</p>

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

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

<p>1. The provision in the act concerning witnesses, disqualifying a party from giving testimony “ as to any transaction with or statements by any testator or intestate represented in said action,” has no effect but to exclude personal transactions with the testator or intestate.</p> <p>2. A plaintiff having proved a contract with-the deceased, was then admitted as a witness to show what he had expended and what work he had done out of the presence of the deceased. Held, such testimony was legal.</p>

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

<p>1. In suits for malicious prosecution, the question of the existence of reasonable cause, the facts not being in dispute, must be decided by the court. Error in this respect entitles the defendant to a new trial.</p> <p>2. The verdict was plainly against the proofs and the assessment of damages grossly excessive. On either ground it would be set aside.</p>

<p>1. Every exception taken at the trial should contain a specification of its ground, and the judge called on to sign the bill should exclude thereupon all exceptions not so explained.</p> <p>2. The plaintiff was a minor, complaining of bodily injuries. The trial judge, by oversight, included the damages sustained by the loss of earning power during her minority. The judgment was reversed on this ground.</p>

Case certified from Hudson Court of Common Pleas. This is an action brought to recover for personal injuries received by the plaintiff while at work upon a building which was being erected in the city of Hoboken. On the trial it appeared, according to the plaintiff’s evidence, that the defendant, Foley; had a contract with the owner to do the mason work upon the building, and that the plaintiff’s employer had the contract to do the plumbing.

Case certified. On October 5th, 1892, Knutzen, one of the defendants, entered into a contract with Shefler, the other defendant, to erect for him a dwelling-house at Nutley, in Essex county. The contract was not filed in the clerk’s office until November 14th, 1892, and no specifications were filed, either with the contract or at any other time.

<p>On error to the Monmouth Sessions.</p>

<p>When a partnership business, after it has been sold, continues to be carried on in the firm name, a contract within the scope of the firm business, made by a member of the firm with a person who has no knowledge of the change in the ownership of the business, is binding upon the person to whom the business has been sold.</p>

Rule to show cause certified from Monmouth Circuit. This was an issue tried in the Monmouth Circuit. A jury was impaneled, but afterwards discharged, and, by consent, the issue was tried before the court. The finding of the court was in favor of the defendant. A rule to show cause why the said finding should not be set aside and a new trial granted was subsequently granted and certified into this court for an advisory opinion thereon.

<p>1. If the jury disagree in a trial under the Bastardy act, the justice may issue a venire de novo.</p> <p>2. If the proceedings under the Bastardy act are taken in the court for the trial of small causes, they are void for want of jurisdiction in that court, and .the defendant may be proceeded against under that act before a justice of the peace.</p>

<p>1. Under the acts of 1874 {Pamph. L., p. 45) and 1893 {Pamph. L., p. 157), when a railroad, company presents to the common council of a city a petition offering certain terms if authority is given to change and alter streets, and such terms are accepted by the city, a contract is made between the company and the city within the meaning of the said acts.</p> <p>2. The taking of land in such a case is the taking of it for a public use.</p> <p>3. The fact that the company undertakes to pay the entire expense of the proceeding does not invalidate it. The city is authorized to make such an agreement in ease of the public burden.</p> <p>4. In proceedings under the eightieth section of the city charter, a dwelling-house may be taken upon making due compensation.</p> <p>5. In order to give common council jurisdiction to pass an ordinance, it need not appear in the minutes of its proceedings that the notice required by the city charter was given; it is sufficient if such notice was actually given, and proof aliunde is competent to show compliance with the charter in that respect,</p> <p>6. The provision in the city charter requiring publication of an ordinance between its second and third readings, applies only where the ordinance involves the expenditure of public moneys, and not to a case where the ordinance permits a railroad company to expend its own money in making a change in streets.</p>

<p>1. The act of 1888 (Pamph. L., p. 366) is constitutional, and authorizes Jersey City to contract for a water-supply.</p> <p>2. The charter of the Morris canal, and the fact that its water rights are held for a juasí-public use, furnish no insurmountable obstacle to the appropriation of such rights to the uses of the state for the preservation of the public health and safety, upon just compensation being made, but the right to condemn must be clearly granted by the legislature.</p> <p>3. The act of 1895 (Pamph. L., p. 769) does not authorize the water rights granted by charter to said canal to be condemned for the use of Jersey City.</p> <p>4. In the absence of fraud or palpable abuse of discretion on the part of the municipal authorities, the only question for judicial cognizance is whether there has been any violation of legal principles or the neglect of any prescribed formalities in entering into the water contract.</p> <p>'5. A contract for water-supply must be awarded to the responsible bidder who offers the most advantageous terms, and proposals must be advertised for.</p> <p>6. Bidders must have an opportunity to compete, and that can be afforded only by definite specifications to which all bidders can conform.</p> <p>7. Bids having been expressly invited upon the condition that the contractor should provide reservoirs capable of storing a water-supply for one hundred days’ delivery, at the rate of fifty millions of gallons per. diem, the contract was not lawfully awarded to one of the bidders, for the reason that it offered to provide a storage capacity sufficient for two hundred and fifty days.</p>

<p>1. The District Court of Newark has jurisdiction to maintain a suit to the extent of §300, under the twenty-seventh section of the act concerning landlord and tenant. Gen. Stat., p. 1921.</p> <p>2. It is a private suit for a private wrong, and can be maintained only by the party injured, which distinguishes it from Koch v. Vmderhoff, 20 Vroom 619.</p>

<p>School moneys collected by the collector of the town of Guttenberg musí be paid over by him to the town treasurer.</p>

<p>On certiorari.</p>

<p>On certiorari to review conviction for penalty.</p>

<p>In an investigation ordered to be made into the financial affairs of a county, under and in pursuance of the act in Gen. Stat., p. 2238, the expenses of the investigation must be paid under the order of the Chief Justice. The board of chosen freeholders has no power to order money to be paid by the county collector to associate counsel who appeared for them.</p>

On certiorari. The return to this writ shows a judgment of the Common Pleas of Essex county, affirming a judgment of the First District Court of the city of Newark, in favor of Walter J. Knight and Herbert W. Knight, as partners, and against the Pennsylvania Railroad Company. The action was in debt.

Certiorari bringing up an ordinance of “ The Mayor and Council of the Borough of Riverton/’ directing an election to be held in that borough to determine for or against the issuance of improvement bonds for electrical lighting of the borough and the proceedings concerning the same. The return shows that an election was held under the ordinance, resulting in a majority in favor of issuing such bonds.

Certiorari bringing up an assessment of taxes imposed upon the Riverton and Palmyra Water Company for the year 1894 by the taxing authorities of the borough of Riverton.

The Mercantile National Bank of New York, having entered up a judgment in the Essex Circuit Court against Edwin O. Quigley, aud issued an execution thereon, which was levied on personal and real estate of the defendant, obtained a rule to show cause why an attachment issued out of this court previously levied upon said personal and real estate of Quigley, in favor of the Pequonnock National Bank of Bridgeport, Connecticut, should not be vacated.

On certiorari. This certiorari brings up an order of a justice of this court, made upon the application of “The Proprietors of the Morris Aqueduct,” and appointing commissioners to assess the damages which Kountze, the prosecutor, will sustain by the taking by said proprietors of certain lauds and of certain rights, easements and privileges in certain other lands.

On rule to show cause why a satisfaction of a judgment should not be vacated. The judgment was recovered by Thomas Faughnan against the city of Elizabeth, January 8th, 1882. On December 21st, 1891, Thorndike D. Hodges, the attorney of record of Faughnan, executed a warrant of attorney to' the clerk, requiring him to enter satisfaction of the judgment, which the clerk did on January 18th, 1892, pursuant to section 24 of the “Act concerning judgments.” Gen. Stat, p. 1844.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The Camden and Atlantic Railroad Company operates a steam railroad between the cities of Camden and Atlantic City. Its railroad tracks are upon certain highways of Atlantic City and are still used occasionally for railroad purposes. The railroad company also owns a power-house, dynamos, poles, cars and other equipment of an electric railway which it operates over the same tracks. Held—</p> <p>1. That the tracks and franchise of the railroad were lawfully assessed by the state board of assessors.</p> <p>2. That the corporeal property that constituted the equipment of the line of electric cars was lawfully assessed by Atlantic City as property not used for railroad purposes.</p>

<p>On certiorari.</p>

<p>Under tbe seventeenth section of the act entitled “An'act for the settlement and relief of the poor” (Gen. Stat.,p. 2506), it must appear upon the face of the order, made by two justice's of the peace, for the removal ■ of a poor person to his or her place of-legal settlement, that the application for such order was made by an overseer“of the poor. It is defective and insufficient if it recites that the application was made by , an acting overseer of the poor. The mayor of, a borough has no authority, b£ virtue of his office as mayor, to m%ke such application.</p>

<p>1. . Quo warranto is the only direct and adequate remedy for the trial and determination of a title to a public office, and the judgment in such an action is the only one which affords complete and substantial relief. The review by certiorari of the proceedings of an election or appoint-, ment to a public office, can determine nothing which would be of any efficacy as a bar, or have any other effect, in a subsequent information in the nature of a quo warranto, nor could the question arising upon such review, although judicially determined, b.e regarded as res adjudicata in the subsequent information.</p> <p>2. Collateral questions regarding the legality of an election to office may be raised and determined by certiorari, in testing the validity of laws or the ordinances and resolutions of municipal bodies, yet when the purpose of the writ is obviously to test the right to a public office, and the proceedings of the municipal body brought up .by,the writ consist only of the resolution or other action electing a person to such office, the writ will be dismissed because an information in the nature of a quo warranto is the only proceeding by which the title of the person so elected and claiming the office can be attacked.</p> <p>3. An incumbent cannot proceed by information in the nature of quo warranto against one who has not been in possession and user of the office. The incumbent must await the attack of his adversary, and if the claimant otherwise succeeds in obtaining possession and user of the office, under' the election or appointment of a municipal body having general power to elect, the only remedy of the previous incumbent is by quo warranto to test the title of the person so gaining the possession of the office.</p>

<p>On certiorari.</p>

<p>A writ of certiorari is not an appropriate remedy to review the proceedings of the board of chosen freeholders electing a county physician under an act entitled “A supplement to an act entitled ‘An act respecting county physicians,’ approved April- 21st, 1876,” which supplement was approved April 5th, 1878 (Gen. Stat., p. 1019), even though the act be unconstitutional in its provisions, when the purpose of the writ is to obtain a determination of the title of the incumbent. In such a case an information in the nature of quo warranto is the only proceeding to try and determine the title to the office.</p>

<p>On certiorari.</p>

<p>It is necessary that it shall clearly and unequivocally appear upon the face of proceedings for the issue of bonds of a school district, under the nineteenth section of the amendment to the “Act to establish a system of public instruction,” which was approved May 25th, 1894 (Pamph. L., p. 506; Gen. StaL, p. 3060), that the bonds are to be issued only for purposes which the statute authorizes them to be issued for.</p>

On error to the Cumberland County Circuit Court. The action was instituted to recover damages resulting from the death of Frederick Sage, an employe of the corporate defendant, in the “Jane S. Robinson Cottage,” one of its buildings, in the township of Vineland. He was sleeping in one of the upper stories of that building when it was consumed by fire, on the night of the'25th of February, 1894, and was suffocated or burned to death.

<p>In mitigation of damages the defendant in a libel suit may show that he did not originate the calumnious charge.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 27 Vroorn 431.</p>

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

On error to the Supreme Court. This action was in contract and was commenced by attachment. The defendants having entered an appearance, the plaintiff filed a declaration containing the common counts with a bill of particulars annexed by which it was shown that the action was for work done and materials furnished, part on an express contract as to compensation and part on a quantum meruit. To this the defendants put in the plea of the general issue.

<p>1. A statute that authorizes the holding of an election for the acceptance of a scheme of municipal government by the electors of an area of given size and value upon which resides for any period of the year a population of two hundred, is not a constitutional enactment; the' temporary presence of two hundred persons not required to be possessed of any element of citizenship, is a purely figmentary characteristic and can in no way be germane to the exercise of local municipal franchises by the inhabitants who are possessed of the constitutional and legislative requirements of electors.</p> <p>2. “An act for the formation and government of boroughs ” [Pamph. L. 1890, p. 58) is unconstitutional.</p>

<p>1. A writ of error brought up from the Circuit Court, the record of a judgment, and the exceptions taken at the trial. The judgment was against the receiver of an Ohio corporation, at the suit of a Pennsylvania creditor. Held, that the fact that the action had been begun in this state by a foreign attachment, levied upon the assets of the receiver, and that the effect of the judgment was to give a preference to the defendant in error over other creditors, could not be considered on this writ of error.</p> <p>2. A plaintiff in error will not be permitted to raise in this court a point not taken in the trial court.</p> <p>3, Where an article delivered does not conform to the description under which it was sold, the vendee is not bound to accept, and may recover whatever of the purchase price he has paid.</p>

<p>By written proposals a retail dealer invited the manufacturers of certain goods to make conditional sales to him by which the title was to remain in the vendors until the purchase price was paid; the goods, when shipped to the vendee, were invoiced as goods bought or goods sold, without the indication of any condition whatsoever. Held, that the submission to the jury of the question whether the sale was a conditional or an absolute one, was not one of which a creditor of the purchaser could legally complain.</p>

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

<p>The withdrawal of a plea of guilty in a criminal case, and the substitution of a plea of not guilty, is not a right which the law gives to the defendant, but is a matter which is addressed to the discretion of the court.</p>

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

<p>1. A wife can only join with her husband in an action where she is the meritorious cause of it, or the meritorious consideration passes from her, and the action is grounded upon an express contract or promise to pay her a certain sum, and without such express contract or promise to pay she cannot join in the action nor sue in her own name.</p> <p>2. The wife is not entitled to join with her husband, or to sue in her own name alone, for the care, attendance upon and nursing of a sick boarder of her husband in his household, although the services be of an unusual character, and although they consist exclusively of her own personal services to the boarder.</p> <p>3. If the wife bestows her personal labor and skill in curing a wound, she may, as the meritorious cause of action, join with her husband, or he may sue alone, provided a promise has been made to the wife to pay her a certain sum in consideration that she would cure the wound. The action in such a case is grounded upon the promise made to the wife.</p> <p>4. When a request is made to a trial court to charge the jury that the plaintiff has made out the cause of action upon which a recovery should be had, and that a verdict be directed for the defendant, the request for the direction should expressly state the point or matter of law relied on as ground for the direction, and this should be done without the trial court calling for the ground.</p> <p>5. No error can be alleged in this court except that, either in the objection or the exception taken at the trial, the point or matter of law on which it is grounded be stated to the trial court.</p>

<p>The intestate, who had been in the employ of the defendant company for about one month as an extra conductor, and had only run a car for one day over that part of the road where the accident happened, and at the time of his entering the company’s service had no knowledge of its road, the method of construction or the company’s way of operating it, was collecting fares from the platform step running the car’s length, and, reaching up for the registry rope to mark a fare, struck.his head against a pole which was only six and one-half inches from the outside of the platform step, and was killed, the pole next to the one which caused the accident being ten inches from the step. Held, that it was for the jury to determine whether the intestate was guilty of contributory negligence, there being no direct evidence that he had any knowledge of the pole in question or of the danger and risks therefrom.</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 the Supreme Court, see 28 Vroom 27.</p>

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

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see 28 Vroom 540.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see antep. 31.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 1.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 42.</p>

<p>1. A girl of eighteen was accustomed to help her father in the business of his farm; the father said he left her in charge of his farm on the' day in question as he left for a few hours. Held, that the daughter was not thereby empowered to resist by force an entry upon a part of -tire farm that had legally been condemned for public use.</p> <p>2. In making such resistance the daughter was a wrongdoer and must bear the consequences to herself legally resulting therefrom! '</p> <p>.3. Excessive damages found by the verdict.</p>

<p>1. Plaintiff was struck by a street car, and, on the subject, of contributory negligence, the trial judge charged, “ the measure of the duty of the plaintiff in crossing a public highway, traversed by surface cars propelled by electricity, was to use such precaution and care for his safety as a reasonably prudent man would use under the circumstances.” Held, that it was not error in the judge, on request, to refuse to charge that, if the plaintiff acted in a certain manner under circumstances stated, it was liable.</p> <p>2. How far the judge will apply the legal rule to the facts, is a matter of discretion.</p> <p>3. It is not error to refuse a request to charge several propositions if any of them are bad.</p>

<p>1. An indictment founded on the statute relating to false pretences must • exhibit a pretence which, under the circumstances stated, must have an apparent tendency to induce the person defrauded to part with his property.</p> <p>2. A counselor-at-law, who was present at a conversation between his client and a third person, is a competent witness in behalf of the latter to prove what was said.</p>

<p>1. A struck jury is a legal one within the constitutional requirement.</p> <p>2. The statute does not require the presence of the parties when the judge selects the jury-list.</p> <p>3. An objection that the jury-list was not struck from the jury-book of the sheriff “ as required by law,” is too general and will not avail on' error.</p>

<p>1. When a condemnation case has been appealed, and there has been a trial and judgment thereon, which has been reversed on error, and the case remitted, it is lawful for the justice holding the Circuit to strike a jury and set the case for trial on a day fixed by him.</p> <p>2. In such cases the cause need not be put on the trial list und noticed for trial in the ordinary way.</p>

<p>A new trial will be granted in an action of tort if the verdict be for an unreasonably small amount of damages, they being of definite ascertainment.</p>

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

<p>On error to the Union Common Pleas.</p>

<p>1. The amendments of the mechanics’ lien, authorized by the fourteenth section of the act, can be made at any time before judgment on the claim-</p> <p>2. Such amendments must be in writing and signed by the judge, bur need not be sworn to.</p>

<p>A conviction for false pretences cannot be sustained where the indictment charges that the fraud was perpetrated by the offer of an existing mortgage, and the proof was that the money was parted with on a promise to make a mortgage in the future.</p>

<p>1. When the sole question is with respect to certain forgeries, there cannot be a compulsory reference ordered by the court by virtue of the statute authorizing such reference when the controversy relates to accounts.</p> <p>2. Such an issue is not within the terms of the act giving to them their legal signification.</p> <p>3. Nor could the legislature authorize such a course, as it would impair the right of a trial by jury.</p>

<p>On mechanics’ lien. On case certified from the Camden Circuit.</p>

<p>On error to Camden Sessions.</p>

<p>1. The United States Express Company is a joint stock company or association formed under the laws of the State of New York, which expressly authorize any such company or association to sue and be sued in.the name of its president or of its treasurer. Held, that the company possesses such corporate existence and powers that it does not fall within the provisions of the supplement to the Practice act of May 23d, 1890 (Gen. Stat., p. 2592), and an action may be maintained against it in this state in the manner prescribed by the laws of New York, viz., in the name of its treasurer.</p> <p>2. Whether an aggregation of individuals, formed by law in an artificial body, is a corporation or not, is to be determined rather by the faculties and powers conferred upon the body than by the name or description given to it.</p> <p>3. Plaintiff was injured by being run over, in a public street, by a wagon drawn' by two horses. The evidence showed that the United States Express Company had a stable in the vicinity in which were stabled the horses which drew over one hundred wagons employed in the business of the company, which, wagons were painted in a peculiar manner and marked with the name of the company and a particular device used by it. Held, that evidence that the wagon which ran over plaintiff was so painted and marked was sufficient to justify the inference that the company was its owner, and upon such inference established prima facie that the company was in possession and control of the wagpn by the driver as its servant.</p>

<p>Defendant, was a contractor for the erection of a brick building, and employed plaintiff, who was a laborer, in attendance upon’inasons, also in defendant’s employ. Plaintiff, while engaged in such employment, was injured by the fall of a scaffold constructed by said masons, which fall was due to improper and negligent construction. Held, that the negligence which produced plaintiff’s injury was that of his fellow-servants, and his employer was not liable therefor.'</p>

On rule to show cause, &c. This action is in contract, and the declaration contains only the common counts in' assumpsit. The bill of particulars declares that the declaration is founded upon the following instrument, viz.: “March 28th, 1888. “Messrs. Nightengale Bros.: “ I. O. U. “ ($250) two hundred and fifty dollars for value received. “J. H. Perrine,” assigned by delivery to plaintiff. One of the pleas was the general issue.

<p>1. The duty which this court, in- Gilhon v. Reilly, 21 Vroom 26, declared a landlord owes to his tenants of apartments, access to which is by common passage, he also owes to those who visit such tenants on lawful occasions.</p> <p>2. He is thereby required to take reasonable care to have the common halls and stairways reasonably fit for use for the passage of the tenants, but he is under no obligation to furnish means for their safe use. He is therefore under no duty (unless assumed by contract) to furnish light at night, although such light may be necessary for safe use.</p> <p>3. A visitor of such a tenant passed down a stairway with which she was unfamiliar, in the dark, without waiting for a companion who was familiar with it, or seeking from her friend a light to enable her to see the flight of steps, and using no precautions for safety but by feeling with her hands and feet—Iield, that her conduct was not that of a reasonably prudent person, and that she contributed by her negligence to injuries which she received by falling down such flight.</p>

<p>1. Upon the trial of an indictment for keeping a disorderly house, the defendant was permitted tobe asked,-on cross-examination, whether he had not been indicted for keeping a disorderly house at another place. Held, error.</p> <p>2. A witness for the state, who had resided in the house defendant was charged with maintaining, and who testified to its disorderly character, was asked whether she was not living, at the time of examination, in a house of prostitution. The evidence was admissible for certain purposes, but not for the purposes which defendant’s counsel stated to the court as the ground for its offer. Held, that the rejection of the evidence is not reviewable.</p>

This cause comes to this court on writ of error to the Oyer and Terminer of the county of Hudson. The plaintiff in error was tried at the April Term, 1895, of said Oyer, and convicted of murder in the first degree.

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

<p>On error to Camden Sessions.</p>

<p>1. On certiorari to review the assessment of taxes, the legality of the corporation of the borough cannot be challenged.</p> <p>2. The borough has power to assess taxes and to sell real estate for unpaid taxes, with legal interest.</p> <p>3. The sale in this case having been made for the unpaid taxes, with twelve per cent, interest, was illegal.</p>

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

<p>In a proceeding under the fifth section of the act concerning disorderly persons, it must be alleged and found that the family may become chargeable to the township or city, and also that the father or husband willfully refuses or neglects to provide for and maintain his family.</p>

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

<p>To authorize a lease of the real estate owned by the town of Phillipsburg to be made to a private person, the common council must first pass an ordinance directing such lease to be executed ; it cannot be done by resolution.</p>

<p>On certiorari.</p>

<p>An ordinance regulating the excavation of public streets will not be set aside in ioto because it unreasonably interferes with the exercise of the franchises of a single corporation, provided it be unobjectionable in other respects; and it is only when it is actually interfered with in the enjoyment of its franchises by the enforcement of such ordinance, that a corporation can raise the question of its validity.</p>

<p>The twenty-fifth section of the “Act providing for the formation of towns,” approved April 24th, 1888 (Pamph. L., p. 483), requires the compensation of the members of town councils to be fixed by ordinance, and declares that when the compensation of a member has been so fixed, it shall not be increased or diminished during his term of office. Held, that by virtue of this provision a member of town council is not entitled to compensation for his services until such compensation has been fixed by ordinance as required by statute, and that a resolution increasing such compensation after it had been fixed by ordinance was invalid.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari to the Bergen Common Pleas.</p>

<p>An .honorably-discharged. Union soldier, who is employed as a guard or keeper in a county jail, such employment being for no specific time, is entitled to the protection of the act of March 14th, 1895 [Gen. Stat., p. 3702), which forbids the removal of such soldier from any position or office under the government of any county of this state, the. term of which is not fixed by law, except after hearing and upon good cause shown.</p>

<p>On certiorari.</p>

<p>1. The Camden Horse Railroad Company was incorporated by a special act in 186.6. By its charter it was a horse railroad company having its location in Camden, and by it had no power to use electricity as a motive power. By Pamph. L. 1893, p. 144, it was made unlawful for any horse or street railway company, organized under the general law or any special act, to construct its tracks without first obtaining the consent of the governing body having the control of streets in any municipality. On May 4th, 1893, the board of public works of Camden granted, by resolution, power to said company to construct its railroad in accordance with its charter. After the adoption of the resolution the company commenced the work of laying tracks, but were restrained, by injunction. On June 19th, 1893, the board of public works passed an ordinance granting to the company the privilege of using electric motors and confirming the grant made by resolution. On June 20th, 1893, the ordinance was removed into this court by certiorari. Notwithstanding the writ of certiorari, and pending the litigation thereon, the company proceeded to lay down its tracks under pretext that such work was done in virtue of the resolution of the board of public works. Hdi—</p> <p>1. The writ of certiorari, when served, operated as a stay of all proceedings under the ordinance, and any proceeding ■ in the face of its restraining order was a contempt.</p> <p>2. The ordinance having been adopted on the assumption that the resolution was invalid, as has since been decided, the act of the company in laying its tracks under pretence of authority to do so by the resolution was simply a color for the evasion of the restraining force of the writ of certiorari.</p> <p>3. That the act was done after consultation with counsel, and upon his advice, will not justify disobedience when the proceeding is against the company and is in its nature remedial as well as for the vindication of the authority of the court.</p> <p>2. Proceedings by way of contempt will lie against corporations as well as against individuals. In the case of individuals the process is by attachment, followed by fine or imprisonment or both. Against corporations the writ of attachment is inappropriate. Distringas will issue as an original, to he followed, if necessary, by an alias and plw-ies until'justice be done.</p>

<p>1. Mandamus is not a proper remedy by which a person appointed to a precinct board of registry under section 3 of the Election law of 1895 (Oen. 8tat.,p. 1364) may lawfully call in question the title of an incumbent of the office or oust a defacto officer therefrom.</p> <p>2. Mandamus is the proper remedy by which a person nominated by the chairman of the county committee for appointment as member of a precinct board of registry may compel the board of election to appoint him to the office.</p>

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

<p>Members of fraternal benevolent associations may lawfully agree, as part of tbeir scheme of organization, to submit their domestic grievances in the first instance to the internal tribunals of their order; and, having so agreed, cannot, against the protest of the association, maintain a civil action against it until the condition precedent has been, in legal contemplation, complied with.</p>

<p>On certiorari.</p>

<p>1. The relator, a board of chosen freeholders, passed a resolution making its annual appropriations, upon which the defendant, a municipality affected, made a direct attack by certiorari. The attack failed in respect to the item now under consideration because none of the reasons filed covered the point of its illegality. The relator now seeks by mandamus to compel payment, based upon this previous adjudication, and is met by an attempt to re-litigate the point. Held, that the parties to the certiorari record are bound by the adjudication had thereon and that the judgment of this court then pronounced is, until reversed, binding upon the court when acting upon the same matter between the same parties.</p> <p>2. Held, that an act supplementary to proceeding by mandamus (Gen. Stat., p. 2003, \ 15) does not apply to the above state of facts.</p>

<p>Where a rule to plead has been obtained without the notice required by section 216 of the Practice act, the burden of proving the service of the nile is upon the party seeking to avail himself of the fact of its service.</p>

<p>“An act providing for the licensing of dogs” {Gen. Stat., p. 2237, § 533) supersedes any power of exacting license fees for dogs that the city of Elizabeth possessed under its charter.</p>

<p>The court may, of its own motion, dismiss a writ of cei-tiorari to review a judgment against the prosecutor in a criminal case without looking into the merits or the form in which they are sought to be presented, where the prosecutor fails to argue his case either orally or on brief, and shows no reason for not doing so.</p>

<p>Objections to a verdict and judgment on the ground that there was no case for a jury, should be presented by proceedings in error and not by motion for a new trial.</p>

<p>1. Where an appeal has been taken from a District Court and trial had thereon de novo, in the Court of Common Pleas, this court will not, on cei'tiorari, review disputed questions of fact, or controverted evidence, in order to reverse the judgment of the Court of Common Pleas, if there be any evidence which will sustain the judgment.</p> <p>2. In order to have the competency and the admissibility of evidence before the Court of Common Pleas reviewed upon certiorari, it must appear by the record that objection was made to such evidence on the trial.</p> <p>3. The failure of the Court of Common Pleas to formally reverse the judgment of the District Court, before entering judgment anew on the appeal, can be remedied either by an amendment in the Common Pleas or this court on the hearing of the certiorari.</p> <p>4. The failure of the Court of Common Pleas to include the costs below, in the District Court, in the judgment de novo rendered on appeal, is not cause for reversal. If they are included in the taxed bill of costs and execution upon the judgment, a motion to retax is the proper remedy. Besides, the error is one that is apparent and amendable at any time.</p>

<p>1. A conviction upon an ordinance of a city which provides that the licensed owner of a vehicle for the carriage of passengers in said city shall have the licensed number conspicuously affixed to the vehicle, but which ordinance provides no penalty for its violation, can have no force or effect. Under such an ordinance no fine or penalty can be imposed upon conviction, and if fine, or penalty be imposed the proceedings and conviction will be set aside upon certiorari.</p> <p>2. The general principle is that an ordinance of a city prohibiting the commission of a certain act and prescribing a certain course of conduct to be followed, can have no binding force and is nugatory without the appropriate sanction of a fine or other penalty. The penalty imposed by the ordinance authorized by the legislature for the doing of certain specified aets'amounts to a prohibition, and the prohibited acts thereby become unlawful.</p>

On certiorari. This certiorari brings up for review a certain resolution and ordinance of the city of Cape May.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Under Gen. Stat., p. 1897, 164, when an appeal to the Court of Common Pleas is taken from a judgment of the Court for the Trial of Small Causes, within five days prior to the beginning of the next term, and the papers are not filed with the clerk of the court three days prior to the beginning of such term, the appeal cannot be placed on the list for trial at such term, but must go'over and be put on the list for trial at the next term thereafter.</p> <p>2. The party against whom the judgment is rendered before the justice of the peace, does not waive his right to have the cause go over to the next term, under the statute, by appearing at the term to which the appeal is taken and objecting to the trial at that time. Whilst his motion may be that of delay, yet he only insists upon the rights accorded him by statute, and his appearance for that purpose is no waiver of them.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On motion to correct and amend postea and judgment in the above cause.</p>

<p>A street improvement having heen made, and the assessments of the cost and expense thereof imposed upon certain lands, under and according to the provisions of a statute adjudged to he unconstitutional, the court will not proceed further to examine and determine any other objections arising to the proceedings, hut will set the assessment aside for that reason.</p>

<p>On certiorari.</p>

<p>On certiorari to remove an ordinance of the borough providing for licensing certain trades, occupations and busiuess.</p>

On rule to show cause why the election of directors of the company, held May 16th, 1892, and July 3d, 1893, should not be set aside.

<p>Ou certiorari.</p> <p>'This writ brings up for review an ordinance of the city of Elizabeth, entitled “An ordinance to prevent the use of salt, rock salty saltpetre or salt of any kind or character on any street railway within the city of Elizabeth,” which enacted “ that "hereafter no person or persons, corporation or corporations shall put, throw or place salt, rock salt, saltpetre or any other kind of salt, of causé the same to' be put, thrown or placed on any street railway track or other part of the street or streets within the city of Elizabeth, under a penalty of ten dollars for each offence; provided, that any street railway company may use salt, rock salt or saltpetre on all curves of their railways leading from one street or avenue into another street or avenue running at right angles therewith;”</p>

<p>1. An agreement which controls or restricts, or tends or is calculated to control or restrict, the free exercise of a discretion for public good, vested, in one acting in a public official capacity, is illegal and so reprobated by the courts that no redress will be given to a party who sues for himself in respect of it.</p> <p>2. In an action in which either party to such an agreement se.eks redress from the other for his own benefit, he will be left by the courts in the position in which he places himself.</p> <p>3. If a party to such an agreement, by proof of part of the facts constituting the transaction out of which it grew, makes a prima faoie case for recovery against another party to the agreement, without disclosing the illegality, the defendant’s guilty participation in the transaction will not preclude him from showing that illegality.</p>

<p>1. A charter which exempts a corporation or its property from taxation, exempts also the shares of its stock held by individuals.</p> <p>2. An express exemption of the shares from taxation, nothing else ap pearing, will also exempt the company itself from taxation.</p> <p>3. The sixth section of the charter of the Singer Manufacturing Com pany exempts it from the operation of the act of April 18th, 1884, and the supplement thereto of March 16th, 1891.</p>

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

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

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

<p>On error to the Supreme Court. For opinion of Supreme Court, see antep. 144.</p>

<p>Ón error to the Supreme Court. Por opinion of Supreme, Court, see Millburn v. South Orange, 26 Vroom 254.</p>

<p>1. In an action for personal injury, the plaintiff, in order to recover damages, must do more than show the possible responsibility of the defendant for the injury. In the absence of direct evidence he must show the existence of such circumstances as would justify the inference that the injury was caused -by the wrongful act of the defendant, and exclude the idea that it was due to a cause with which the defendant was unconnected.</p> <p>2. A person using a public street has a right to presume that it is free from dangerous obstacles, and the mere fact that he receives injury by coming in contact with such an obstacle, does not warrant the conclusion that he contributed to the injury by his own negligence. •</p>

<p>1. Plaintiff sold defendant two lots and delivered 'to him a deed which he had received for one of them, with a blank for the-n.ame of the grantee, and a deed of the other in which there was also’ a.blank for the name of the grantee. Plaintiff received in exchange a' bond of a corporation, which defendant guaranteed. Defendant afterwards sold the lots to plaintiff’s grantor, delivering to him the deed which plaintiff had received from such grantor, with the blank for the name of the grantee, and he and his wife executing a deed to such grantor for the other lot, after his wife’s name had been filled in the deed executed to him by plaintiff. Held, that defendant was estopped from claiming that there was no consideration for his guaranty of such bond, whether the deeds received by him from plaintiff were valid as legal conveyances or not.</p> <p>'2. In an action for breach of a guaranty of a bond purchased by plaintiff from defendant, plaintiff claimed that the bond was worthless, and there was evidence that defendant knew the condition of the corporation at the time of the transfer of the bond to plaintiff, but there was no evidence of the value of the bond, either intrinsically or in the market at such time. Held, that a nonsuit was proper, in the absence of any claim by plaintiff in the trial court that she was entitled to nominal damages.</p>

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

<p>Proceedings instituted by a railroad company to acquire lands by condemnation for its road in which commissioners have made their report and award of damages, from which the landowner has appealed to the Circuit Court, do not become void ab initio, nor ábate, by reason of the consolidation and merger of the condemning company with another railroad company, forming a new corporation, under the provisions of the act of March 25th, 1881 (Gen. Stat., p. 2703); but the rights in the land acquired by the condemnation proceedings survive and pass to the new corporation, and it may be lawfully substituted as appellee in the Circuit Court and the causes then proceed to trial.</p>

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

<p>On error to the Supreme Court. For opinion of' the Supreme Court, see 28 Vroom 330.</p>

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