Volume 60 — New Jersey Law Reports

<p>If a trustee having the legal estate divests it by deed in due form, he cannot, in a court of law, deny the title so created.</p>

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

<p>On error to Hudson Quarter Sessions.</p>

<p>A landowner cannot recover from a railroad company for counsel fees and . other expenses incident to condemnation proceedings regularly instituted by the company and afterwards discontinued.</p>

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

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

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

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

<p>A supplement to the Inns and Taverns act (Qen. Stai., p. 1795) makes it a misdemeanor to sell intoxicating liquors from any “ambulatory conveyance.” Held, that this object is not expressed in the title of the act to which it is a supplement.</p>

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

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

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

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

<p>.An act1 entitled “An act relating to cities of the first class in this state, and providing for the holding of municipal or charter elections therein, and regulating the terms of elective and appointive officers therein,” approved March 18th, 1897, is a local and special law regulating the internal affairs of towns, and for that reason is unconstitutional.</p>

<p>1. In order that a person be exempt from conviction upon an indictment for the sale of intoxicating liquor in the cities of this state on Sunday, under the provisions of the sixty-first section of the act entitled “An act concerning crimes,” the municipality must not only have the power, by its charter, to enact ordinances providing a penalty for such offence, but the ordinance must, by its terms, provide such penalty, and it must embrace within its provisions the class of persons who claim the'benefit of its protection.</p> <p>% When a subsequent ordinance upon the subject of the sale of intoxicating liquors in a city covers the same ground as a former ordinance and revises it, the former ordinance is repealed by implication, and upon such repeal the general law immediately prevails unless the subsequent ordinance provides a penalty for such sale.</p>

<p>1. Whenever, in an action for personal injuries received at a railroad 'crossing, by a collision with a train, there exists a fair controversy upon the question of contributory negligence, upon the proof either of a direct or circumstantial character, whether the plaintiff could see or hear an approaching train, a situation has arisen which requires the submission of the question to the jury.</p> <p>2. Photographs, in order to be admissible in evidence, must be verified by proof that they are correct resemblances or true representations of the subject. Whether they are so verified is a question to be decided by the judge presiding at the trial. Qacere. Can the decision of the trial judge, as to such verification, be reviewed ?</p>

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

On application for summary determination of the character of certain property assessed by the local assessors of the city of Newark, and also assessed by the state board of assessors, for the year 1895.

<p>1. Manufacturing corporations organized under the General Corporation law are taxable under the act of 1892 {Gen. Stat.,p. 3337, § 260), with respect to the amount of capital stock issued and outstanding as a fixed factor, without regard to the purpose for which the capital stock was issued or whether issued for value or not.</p> <p>2. Exemption from this measure of taxation is granted by the statute to manufacturing and mining corporations which have fifty per cent, of their capital stock invested in manufacturing or mining carried on within this state.</p> <p>3. The burden of establishing such exemption is on the corporation claiming it.</p> <p>4. So far as the capital stock of such a company is used to acquire the right to manufacture elsewhere, it is not invested in manufacturing carried on within this state.</p>

<p>1. The standard by which to ascertain the full and actual value for the purposes of taxation', under the second section of the General Tax law of 1866 (Gen. Stat., p. 3292, | 62), is a consideration of market value at a fair sale by private contract.</p> <p>2. Adjacency to tidal waters or navigable streams, so far as location gives ' an increased market value to lands, may be taken into consideration in the valuation for the purposes of taxation.</p> <p>3. The yearly rental of the premises may also be taken into consideration as an element in the ascertainment of true value, where the property is so situated that the yearly rental reflects upon true value.</p> <p>4. The income of property is not the criterion of valuation- for the purpose of taxation.</p> <p>5. The doctrine that income is a criterion for valuation for taxation is-peculiarly inappropriate to the taxation of mining property, in relation to which each year’s income represents to that extent a diminution in the actual intrinsic value of the property.</p>

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

<p>On certiorari.</p> <p>This writ brings up the following ordinance of the borough of Ocean City:</p> <p>“An ordinance granting to the Ocean.City Railroad Company the right to occupy longitudinally a portion of Haven avenue, from Fifty-ninth street to First street, in Ocean City, Hew Jersey.</p> <p>“ Whereas, The Ocean City Railroad Company has been duly incorporated under the laws of this state to operate a railroad between Petersburg, Cape May county, Hew Jersey, and Ocean City, in the said county and state;'</p> <p>“And whereas, The said Ocean City Railroad Company desires to lay its tracks through Ocean City, on Haven avenue, from Fifty-ninth street to First street; therefore,</p> <p>“Section 1. Be it ordained by the mayor and common council of the borough of Ocean City, that the right be and hereby is granted to the Ocean City Railroad Company, to lay, maintain and operate a double-track railroad along the center of Haven avenue, from Fifty-ninth street to First street, and also to lay, maintain and operate such turnouts on said avenue, between the points above designated, as they shall think proper, not, however, exceeding ten; and provided further, that there shall not be two turnouts within any two consecutive squares.</p> <p>“Section 2. •And be it ordained that the rights granted .by section 1 of this ordinance are granted upon the following express conditions, to wit: That whenever the property-owners along Plaven avenue, or city council, shall grade, or cause to be graded, any portion of said street between Eiftyninth street and First street, it shall be the duty of the said Ocean City Railroad Company thereafter to keep and maintain the same in good condition, order and repair, from curb to curb, and if the said street shall become out of repair, the said Ocean City Railroad Company, after being notified by the street committee of city council that said street or any designated portion thereof is out of repair, shall, within sixty days from the service of said notice, put the said street or designated portions in good condition, order and repair, and, in default thereof, the rights hereby granted shall immediately cease and become void.</p> <p>“ Section 3. And be it ordained that the said Ocean City Railroad Company shall direct, construct and at all times maintain good and sufficient crossings at the intersection of the various streets and said railroad whenever it shall be ordered so to do by the street committee of city council, supervisor or the street committee of cit.y council, said crossing, between the rails of said track, and ten inches on either side thereof, to be constructed and built of good, sound plank, laid so that the surface of said plank shall be on a level with the top of the rail.”</p>

<p>1. Where the power to make a contract is by law vested in the common council of the city, it is not competent for the common council to delegate authority to one of its committees to enter into a contract for lighting the city for the period of five years.</p> <p>2. Such a contract should either be negotiated by the common council or, if the negotiations are conducted by a committee, should be submitted to the common council for discussion, consideration and adoption.</p> <p>3. A provision in a city charter providing that no member' of the city council shall be directly or indirectly interested in any contract the expense of which shall be paid from the city treasury, makes no discrimination with respect to the interest which should disqualify.</p>

<p>An order made by a court of criminal jurisdiction limiting the time of defendant’s counsel in addressing the jury, is an order made in the exercise of its discretion, and a judge of such court will not be compelled by mandamus to allow an exception to such an order unless it is made to appear that there is reasonable ground to contend that, by such order, the defendant was practically deprived of the assistance of counsel which the constitution secures to him.</p>

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

<p>The provisions of section 44 of the act concerning corporations (Gen. Stat., p. 916) do not empower this court to inquire into or determine the validity of the election of trustees of a corporation formed under the provisions of the act to incorporate trustees of religious societies (Gen. Stat., p. 2735) in the summary manner provided for by that section.</p>

<p>1. The act entitled “An act concerning the taking of property for public use,” approved March 9th, 1893 (Gen. Stat., p. 1386), requires a court or justice of the Supreme Court appointing commissioners to condemn lands, in all cases, to fix a day in the order of appointment on or before which the report of the commissioners shall be filed.</p> <p>2. The requirement is not directory, but mandatory, and an order which omits to fix a day is fatally defective.</p> <p>3. Quaere. Whether a landowner may use the writ of certiorari to take advantage of such defect, if he appears before the commissioners and permits their reports to be filed before he makes objection because of . such omission.</p>

<p>1. The “Act to incorporate the city of Millville,” approved February 26th, 1866, gave power to the common council to pass ordinances for (among other things) “lighting the streets” of the city. Held, that, looking at the whole act, the grant of that power did not, by implication, confer authority on the city to erect and maintain an electric light plant.</p> <p>% The “Act authorizing the lighting of public streets and places in the cities, towns, townships, boroughs and villages of the state,” approved May 22d, 1894 (Gen. Stat., p. 2174), does not confer power on the municipalities therein enumerated to erect and maintain electric light plants.</p>

<p>On application to amend.</p>

<p>1. A person may be qualified to testify as an expert either by study without practice or by practice without study, but not by mere observation-without either study or practice.</p> <p>2. On the trial it was material to determine the genuineness of a signature purporting to be that of defendant. A witness was called and it was proposed to ask him to compare it with certain genuine signatures, with a view to the expression of an opinion thereon. It appeared that the witness had for many years been engaged in a business which. required him to compare signatures to determine their genuineness. Held, that the evidence of such practice showed that he was possessed of the qualifications of an expert to testify- on'the subject on which he was offered, and that it was error to exclude his testimony because he had not made a special study of chirography.</p>

<p>On certiorari to review proceedings for the laying out and opening of a public road.</p>

<p>A person who voluntarily, and at his oto expense, constructs and opens a public road which has previously been laid out under the provisions of “An act concerning roads,” is not entitled to be reimbursed therefor by the township in which such road is located, and a resolution of town meeting, voting such reimbursement, is illegal and void.</p>

<p>The dismissal of an honorably-discharged Union, soldier from a position under the government of a city of this state is not in contravention of the provisions of the “Act regarding honorably-discharged Union soldiers and sailors,” approved March 14th, 1895, when such dismissal results from the discontinuance of old methods in the administration of public affairs and the adoption of new ones in their, place, provided such changes in administration are substantial and are not mere pretexts for the removal of employes.</p>

<p>Ou certiorari.</p>

<p>1. By virtue of the provision of the amendment to the General Bailroad law, passed March 4th, 1879 (Gem. Stat., p. 2649, § 46), it is the duty of the state treasurer to repay to the directors or treasurer of a railroad company the moneys deposited by it with him in compliance with said act, in sums of $2,000 for each mile of railroad constructed, upon proof to his satisfaction that at least that sum has been expended upon such construction; and the fact that other persons claim a right to or an interest in the moneys so deposited with him will not excuse him from the performance of such duty.</p> <p>:2. The duty of making such payment being purely ministerial in character, relief by mandamus will be granted upon the failure of the state treasurer to perform it.</p>

<p>On certiorari, removing judgment of the District Court of Elizabeth.</p>

<p>By the terms of a lease it was provided, among other things, that the lessors should have the privilege of terminating it at any time, upon giving six months’ notice of their intention to do so, prior to the 1st day of July of any year during the lease. It was further provided that, if the lessee should in any particular violate any of his promises contained in the lease, or should fail to comply with any of the conditions thereof, or notice given under the terms thereof, then the lessors might cause a notice to be left on the leased premises of their intention to determine the lease, and that, at the expiration of ten days from the time of so leaving such notice, the lease should absolutely determine. At the termination of the lease it was extended for a period of five years, upon the same terms, conditions and limitations as expressed in the original instrument. -Held—</p> <p>1. That the provision authorizing the lessors to terminate the lease upon six months’ notice, was one of the “ terms ” of the lease, and consequently became one of the provisions of the renewal by express words.</p> <p>2. That the lessors were entitled to terminate the lease at any time during its continuance, upon giving six months’ notice of their intention so to do, providing the date fixed by them for its termination was at a time of the year prior to the 1st day of July.</p> <p>3. That, having terminated the lease by a six months’ notice, and demanded therein the possession of the premises at the end of the period fixed thereby, the lessors were not required to give a second notice, either by the terms of the lease or by the eleventh section of the Landlord and Tenant act, in order to enable them to maintain an action before a justice of the peace for the removal of the tenant from the leased premises.</p>

<p>Motion for change of venue.</p>

<p>Under a statute which authorizes the governing bodies of municipalities to enforce their ordinances “by reasonable penalties which may be imposed for revenue,” the governing body must itself fix the precise penalty to be imposed, and cannot leave it to the discretion of the trial court.</p>

<p>If boroughs possess the power to license “cars,” the power exists under the act of March 28th, 1892 (Gen. Stat. p. 274), and can be enforced only by a precise pecuniary penalty fixed by the governing board of the borough.</p>

On contract. A supplement to the Corporation act, approved March 14th, 1895 (Gen. Stat., p. 994), requires certain foreign corporations, “ before transacting any business in any manner whatsoever in this state,” to file certain papers in the department of state, and then enacts that, upon filing such papers, “ the secretary of state shall issue to the said foreign corporation a certificate that it has complied with all the requirements of law to authorize it to transact…

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The Practice act (Qen. Stat., p. 2586, pi. 319) denies costs to a plaintiff who does not recover above §200, exclusive of costs, except where title to land comes in question or “ where the parties to a suit in which the amount recovered, exclusive of costs, exceeds §100, do not reside in the same county.” Meld, that the language quoted is not limited to cases where both parties reside in this state, and will apply to a recovery by a foreign corporation.</p>

<p>In matter of habeas corpus.</p>

<p>On error to the Supreme Court. The facts appear in the opinion.</p>

<p>When the legislature has authorized railroad companies to use the dangerous element, fire, for engendering steam for the propulsion of trains,, and have enacted regulations in respect to the precautions to be taken' to.prevent the escape of fire from the smoke-stacks of their engines— Held, that such legislative regulations define and limit the duty of the companies in respect to the precautions required against such escape of fire; held further, that it is error to permit a jury to determine whether or not, on account of excessive drought rendering the . ’ communication of fire more easy, it was the duty of such companies to ' take such care as would be sufficient to prevent the escape of any fire from the smoke-stacks of their engines.</p>

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

<p>•On writ of error to the Union County Circuit Court.</p>

<p>On error to the Supreme Court. The facts are fully stated In the opinion.</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 29 Vroom 126. -</p>

On error to the Morris Oyer and Terminer. ' David Wilson was convicted of murder in the first degree, in November, 1896, in the Morris county Oyer and Terminer, and sentenced to be executed. On the trial Mr. Justice Magie charged the jury as follows: The indictment in this case charges the defendant with the murder of Melinda Wilson, in this county, on the 6th day of June last.

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

<p>The conductor of a trolley car who had undertaken to let off at a given destination the plaintiff, who was a stranger, carried him past it; he then let the plaintiff off on the company’s right of way, and directed him to walk back on the track. While obeying this instruction in the nighttime the plaintiff followed the track onto a trestle, where he was struck by a car of the defendant coming from the opposite direction. Held, (1) that in giving this instruction the conductor was acting as the agent of the company; that (2) whether he gave it and (3) whether it was an act of negligence were properly submitted to the jury, as also (4) was the question of the contributory negligence of the plaintiff in going on the trestle if so directed; held, also, that if the plaintiff was warned by the conductor not to go on the trestle, he was guilty of contributive negligence, also that the motorman whose car struck the plaintiff was under no duty to be on the lookout for pedestrians on the trestle.</p>

<p>On error to the Supreme Court, affirming judgment of the Essex Pleas. For opinion of the Supreme Court, see 28 Vroom 390.</p>

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

<p>1. Certiorari will not lie in favor of private prosecutors to review a municipal ordinance, unless it appears that such prosecutors have a personal property interest which will be specially affected in an injurious manner by the enforcement of such ordinance.</p> <p>2. A corporation organized under the General Railroad law has not, ordinarily, the right to occupy highways of this state longitudinally with its railway.</p> <p>3. The power conferred upon the city of Hoboken by its charter to regulate its streets does not authorize it to permit the construction and operation of a railroad upon its streets by a corporation organized under the General Railroad law.</p> <p>4. The eleventh section of the charter of the city of Hoboken authorizes it to grant permission by ordinance to any person or corporation to lay railroad tracks, and run rail cars thereon, in or over any of the streets within said city, subject to certain conditions therein specified. Held, that this provision is limited to the construction and operation of street railways and does not authorize the city to permit the construction and operation in its streets of a railroad by a corporation organized under the General Railroad law.</p> <p>5. A person who dedicates land to public use as a highway may, in such dedication, reserve to himself and his assigns the right to construct and operate a railroad therein. When such reservation is made the public takes the highway cum onere.</p> <p>6. The owner of an easement in the land of another is not bound to use it in the particular manner prescribed by the instrument which creates it. He may use it in a different manner if he so desires, provided he does not, in doing so, increase the servitude nor change it, to the injury of the owner of the servient tenement.</p>

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

<p>1. The city council of Cape May, by an ordinance, granted permission to a railway company to lay its tracks on certain streets—naming them—and also to construct all necessary switches and turnouts. Held, that turnouts built in pursuance of such authority, unless it clearly appears that the authority has been exceeded, are not such an obstruction of the streets as to warrant their summary and forcible removal by police intervention without notice or a hearing.</p> <p>2. Notice, either actual or constructive, should be given to all who are interested before the adoption of an ordinance which affects and practically adjudicates property rights. An unreasonable ordinance will not be sustained.</p> <p>3. A resolution by a city council declaring the turnout of a street railway to be an unlawful obstruction, and directing the street committee to employ counsel and take legal measures to remove it, is not objectionable.</p>

<p>The plaintiffs purchased tickets for passage on defendant’s railway from New Brunswick to Perth Amboy via Eahway, the connecting point for Perth Amboy by a branch road. It was Sunday evening, and the tickets were bought after the agent had informed plaintiffs that the last train left for Perth Amboy at nine o’clock and thirty-six minutes, that being the last train for the day going in that direction. Upon their entering the train the conductor punched their tickets and informed plaintiffs that the train did not stop at Eahway, but did stop at Metuchen, an intermediate station ; that he thought they could make their train at Elizabeth, which was the next station beyond Eahway, and the extra fare would be sixteen cents. This they refused to pay, and the conductor thereupon informed them that he would put them off if they did not pay. ' This was before reaching Metuchen. They did not alight at the latter station but pursued their journey to Elizabeth without the payment of the additional fare, although the same was repeatedly demanded, with threats to remove them from the train or arrest,them in case of non-compliance. The plaintiffs knew that Eahway was the connecting point for their destination and had traveled that route several times before. When the train arrived at Elizabeth the conductor again demanded the extra fare, and payment being again refused, he ordered the arrest of plaintiffs by police officers, under sections 18 and 19 of “An act respecting railroads and canals.” Gen. Stat., p. 2670. The plaintiffs were locked up for the night, and at the hearing the next morning before a magistrate were discharged, and thereupon they sued the defendant company for damages for malicious prosecution. Upon the trial, at the close of the plaintiffs’ case, a nonsuit was granted by the trial judge. To this ruling exception was taken and the same was brought up for review by writ of error. Held—</p> <p>1. That as the declaration was in form one for malicious prosecution, and did not contain a count for false imprisonment, the proofs must show that the arrest was made maliciously and without probable cause; and the evidence failing to disclose the latter element of proof, the nonsuit was right.</p> <p>2. That regarding the action as one for false imprisonment, as it was treated by the trial judge and by counsel on the argument, still the nonsuit must be sustained, because it was the duty of the plaintiffs, ■ under the law, to have either left the train at Metuchen, and then looked to the company for damages for the alleged misdirection, or to have paid the additional fare from Eahway to Elizabeth; and having failed to do either, they became liable to arrest by the conductor, under said statute, for the offence of knowingly and willfully proceeding in a carriage of a railroad company beyond the distance to which the fare had been paid, without previously paying the additional fare for the additional distance, and with intent to avoid the payment thereof.</p>

<p>1. On a trial by a judge without a jury, it is his province to settle the facts according to his views of the evidence.</p> <p>2. His findings of fact are not reviewable on error. • It' is only where the facts found do not support the conclusion that the judgment can be disturbed on error.</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 29 Vroom 316.</p>

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

<p>On case certified from Mercer Circuit.</p> <p>The declaration in this case is founded upon a written contract whereby the Guarantors Liability Indemnity Company indemnifies the Trenton Passenger Eailway Company against legal liability for injury to, or death of persons arising by reason’of casualty occurring in, upon, about or by reason of the street railroad of the Trenton Passenger Eailway Company or its equipment, to an amount not exceeding $5,000 for the injury to or death of any one employe; not to exceed $5,000 for the injury to or death of any person other than an employe, and not to exceed $20,000 in respect to any one •casualty whereby several may be injured or killed. It further sets out various actions against the Trenton Passenger Eailway Company for injuries which it claims fell within the contract of indemnity of the Guarantors Liability Indemnity Company, and that those actions had been prosecuted to judgment, but that the Guarantors Liability Indemnity Company, although requested, had not paid them in accordance with the terms of their contract.</p> <p>The plea was the general issue.</p> <p>The issued joined was tried by the court, a jury being waived.</p> <p>The trial judge found that the Guarantors Liability Indemnity Company had made the contract declared upon, and that while such contract was in force two judgments were obtained against the Trenton Passenger Eailway Company for casualties and injuries falling within the terms of that contract, which judgments the latter company had paid.</p> <p>Thereupon the trial judge reserved for the determination •of the Supreme Court the following question of law, namely, whether the said contract of indemnity is a valid contract or is void as against public policy as being a contract to indemnify the said The Trenton Passenger Eailway Company (Consolidated) against losses resulting from its negligence or from the negligence of its agents and employes.</p> <p>Argued at February Term, 1897, before Magie, Chief Justice, and Justices Depue, Yah Syckel and Lippincott.</p>

The writ of error in this case brings up the conviction of plaintiff in error upon an indictment charging him with fraudulently and unlawfully taking and converting to his own use certain money of Margaretta C. Campfield, which was entrusted to his care by her, he being her agent, bailee and servant.

<p>1. Upon the trial of a common law indictment for keeping a disorderly house, evidence of the habitual illegal, sales of intoxicating liquors is admissible. The supplement to the Crimes act, approved March 10th, 1893 (Gen. Slat., p. 1101), forbids such an indictment of any person for the offence of keeping a disorderly house only when the offence sought to be punished consists wholly in the unlawful sale of such liquors.</p> <p>2. It was not improper to charge that if the jury believed the evidence adduced by the state, it was their duty to convict, if, in fact, the evidence established defendant’s guilt beyond a reasonable doubt, and the jury were properly instructed on the subject of reasonable doubt.</p>

On certiorari. This writ of certiorari brings up a record of the city court of the city of Plainfield, from which it appears that the prosecutor was convicted of a violation of some ordinance of that city, and thereupon sentenced by the city judge to pay a fine of $100 and be confined in the county jail for a period of sixty days.

<p>1. If there has been conferred upon boroughs organized under the Borough act of April 5th, 1878, power to provide by ordinance for the construction of sidewalks on streets at the expense of the owners of the adjoining lands, such power is judicial in character and can only be exercised upon notice to the owners and giving them an opportunity to be heard.</p> <p>2. In the absence of any provision for constructive notice, reasonable actual notice must be given to the owners, of a time and place when and where they may be heard in respect to the proposed passage of such an ordinance.</p> <p>3. If the proceedings of the borough council show no notice or hearing and none is proved to have been given, such an ordinance cannot be supported.</p>

<p>1. Tie return of a warrant for sale of lands for delinquent taxes, made by a collector of taxes of a borough, which return is not accompanied with a copy oPthe required notice of such sale or with proof that it was published, posted and mailed, as required by law, is fatally defective.</p> <p>2. Although no certificate of sale has been issued upon such a defective return, the owner of lands which had been sold under the warrant, is entitled to have the return examined by a writ of certiorari and vacated.</p>

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

<p>1. John Pfuelb, in attempting to cross the railroad track of the plaintiff in ei-ror on foot, walked over the eastbound track immediately after a train had passed him on that track, and was struck and killed by a train moving in the opposite direction on the westbound track. He had a clear view of the track in the direction from which the eastbound train came for three-quarters of a mile and no danger to him was apparent on that track. It was his duty to look and listen before he reached the westbound track; if he had done so, he could not have failed to see the coming train. The fact that he walked on the westbound track in front of the train is conclusive evidence that he did not look. He was, therefore, chargeable with contributory negligence, and a verdict should have been directed for the defendant.</p> <p>2. The fact that the flagman at the gates had neglected to let them down, before the decedent walked to the eastbound track, did not absolve the decedent from the duty of looking and listening before he went upon the westbound track; it was notice to him that lie could not rely upon the care of the flagman, and should have warned him at least not to abate his care for his safety.</p>

<p>1. At a sale of testator’s property by a decree of the Court of Chancery, the defendant agreed with the plaintiff that if the plaintiff would not bid against him he would pay her and other legatees the amount of their legacies under the will. Only one of the other legatees consented to or knew of this arrangement.</p> <p>2. This agreement is contrary to public policy and void, and will not support this action brought by the plaintiff to recover from the defendant the amount of her legacy.</p>

<p>1. It is not error to overrule a question if the court permits another question in substantially the same form to be propounded to the witness. If the prisoner has the benefit of the evidence to which he is entitled, he is not prejudiced in maintaining his defence.</p> <p>2. Where the provocation consists only in words, and a weapon is used which will probably produce death, words are not an adequate pro- ' vocation to reduce the offence of murder to manslaughter.</p>

<p>The defendant.made an oral agreement twenty years ago that in consideration of certain domestic services to be performed by the plaintiff he would support and maintain her during her lifetime. Held, that this contract was not within the statute of frauds, because it might have been fully performed and terminated by her death within a year.</p>

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

<p>The plaintiff below was injured in 1890 by the breaking of a defective pole which he was directed by the superintendent of the company to ascend. There being some evidence to show that a proper inspection of the pole would have disclosed the defect, and that it had not been inspected since 1888, it was properly submitted to the jury to determine whether the defendant company had exercised due care in the discharge of the duty it owed to the plaintiff to provide poles reasonably safe for the work in which he was employed.</p>

<p>1. Error cannot be assigned upon an exception taken to the mere refusal of the court, in the trial of a criminal indictment, at the close of the evidence for the state, or on the part of the defendant, to instruct the jury to acquit.</p> <p>2. The acts and conduct of the persons who are the inmates of a house charged to be disorderly, and their language, in relation to their acts and conduct and in connection therewith at the same time, are admissible and competent evidence to establish the character of the house, whether the person alleged in the indictment as the keeper thereof be present at the time or not. This evidence can only be of use and effect upon the question whether the place is disorderly in a legal sense, and not to implicate the defendant charged with the offence of keeping it; and before he can be convicted of such offence evidence sufficient to establish his connection, management or control of such a place must be adduced.</p> <p>3. It is the duty of the trial court to define the elements of fact necessary to constitute a disorderly house, but whether the proof is sufficient to establish that conclusion, as well as whether by such proof and the other evidence the person charged in the indictment is responsible as matter of fact for the management and control of the same, are questions which must be submitted to the jury, and which are entirely within the province of the jury to determine.</p>

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

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

<p>1. When the declaration, in an action, by a servant against his master, for personal injuries, by reason of the negligence of the master, avers that the business was a dangerous one, and that the master neglected to exercise reasonable care to provide a safe system for the conduct of the work, and also neglected to exercise reasonable care to provide a safe place in which the servant could perform his work, evidence to show that the master, or the general superintendent of the business, had promised the servant to adopt a safer system, or provide a safer place, or remedy the defect or danger which existed, is admissible in proof for the servant, although no averment of such promise is contained in the declaration.</p> <p>2. Such evidence is admissible on the ground that it bears upon the question whether such reasonable care as is required by law has been exercised by the master during the continuance of the employment of the servant, in providing a safe system or a safe place, and also as tending to show what the dangers were to which the servant was exposed, and with which the service was attended, and whether they were incidental, obvious or such as the servant might perceive by the exercise of ordinary care.</p> <p>3. Such evidence is also admissible on the part of the plaintiff to show that the servant was free from contributory negligence.</p> <p>4. Whether the master has exercised reasonable care to provide a safe place for the servant to do his work in, or a safe system by which to do it, or whetheivthe injury to the servant arose from incidental or obvious dangers, or from risks arising from his own want of ordinary care, or from his contributory negligence, when the facts are in dispute, or where, from the evidence, opposite conclusions can be reasonably drawn, are questions which by the trial court must be submitted to the jury.</p> <p>5. It is the duty of the master to exercise reasonable care to pro vid e a safe place for his servant to work in, for his protection from all but the assumed and excepted dangers, and this duty remains the same where the dangers arise to the servant by reason of the adoption or use of a system by which the business of the master is performed or conducted.</p> <p>6. If this general duty is entrusted by the master to his agent, superintendent, or a co-servant of the servant injured, the negligence of such agent or superintendent in the performance of this duty is imputable to the master.</p> <p>7. Where the system of the working of a stone quarry was one whereby no protection was afforded to the workmen engaged in another portion of the quarry apart from the blasting, from injury from flying stones, caused by the explosions of the blasts in the rock, except the warning word “ fire,” given at the time the fuse was communicated to the explosives of the blast, and one of the rules of the master was that no employe should leave his work to seek safety from the dangers of the blast until the warning “fire” was given by the foreman, whose duty it was to light the fuse, it became and was the duty of the master in the exercise of reasonable care to have such warning announced sufficiently long enough before the explosion for such workmen or employes, in the exercise of ordinary care, to reach a place of safety; and this duty being delegated to such boss or foreman, does not relieve the master from the liability to answer for the neglect of the boss or foreman to perform that duty. This neglect is not an incidental act of the co-service.</p> <p>8. Where the master, or one representing the master as general superintendent of the work, promises a servant engaged in such work to remedy and obviate a certain danger to which the servant has called his attention, this promise does not relieve the servant from the further assumption of the risks of danger if the risks or dangers be obvious or incidental to his employment, or of risks, the danger from which he in the exercise of ordinary care could discover or know, and the master will not be liable for an injury resulting from such risks; but if the employment of the servant be in such a place or under such circumstances that he cannot know of the danger or it is not obvious to him, he can continue in the employment under the assumption that the promise will be performed for his protection, and the master will be liable for injury to him resulting from the danger arising from the default of the master in the non-performance of the promise.</p> <p>9. Where an injury arises to a workman by reason of the united negligence of a master and a fellow-servant, the master is liable to respond for such injuries.</p>

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

<p>On certiorari.</p>

<p>On certiorari to review an order of the Bergen Common Pleas.</p>

<p>Under section 24 of the supplement to the charter of Jersey City passed March 27th, 1874 (Pamph. L., p. 504), the board of finance and taxation may, by resolution, appoint an additional clerk, beyond three, in the city clerk’s office.</p>

<p>The defendant agreed with the plaintiff that if it would purchase a piece of land which the owner had employed him to sell, he would allow his commission to the plaintiff and thus reduce the price by so much. Thereupon the plaintiff purchased the land and paid the full stipulated price to the owner, who afterwards paid the commission to the defendant. Held—</p> <p>1. That the plaintiff could, at common law, maintain an action against the defendant for the amount of the commission on the count for money had and received; and</p> <p>2. That the statute of frauds did not prohibit such an action as one upon “ a contract or sale of lands.”</p>

<p>Under the act of April 16th, 1896 {Pamph. L., p. 270), it is the duty of a township committee to proceed in the dividing of assets and apportioning of debts between the township and a borough organized out of its territory, although such organization was effected before the passage of that act, and although after the organization other boroughs were organized out of the remaining territory of the township.</p>

<p>On certiorari to remove resolutions of the board of chosen freeholders of Hudson county.</p>

<p>A writ of certiorari, bringing into court the appointing body alone, is not a lawful mode of trying the title of the appointee to a public office which he has actually assumed.</p>

<p>On certiorari.</p>

<p>On certiorari. Matter of taxation.</p>

<p>1. It is sufficient for reversal of a judgment that an error complained of may have done harm to the plaintiff in error.</p> <p>2. Where both parties appear on the record in a representative capacity, each is qualified as a witness in his own behalf and may testify to any fact provable in the cause.</p> <p>3. Costs are not recoverable against an administrator prosecuting in the right of his intestate.</p>

<p>On various certioraris removing taxes assessed in the years 1890 to 1896, heard together, under stipulation.</p>

<p>Motion for judgment on postea.</p>

On rule to show cause why a judgment entered upon a bond with warrant to confess judgment should not be set aside. On June 9th, 1896, the defendant, Tice, executed a real estate mortgage to Van Aken to secure the payment of two promissory notes amounting to the sum of $1,400. A bond accompanied this mortgage. On the 23d of July, 1896, a bond with warrant of attorney to confess judgment was delivered by Tice to Van Aken.

On error to Essex Circuit. This suit is brought in the name of the state on the complaint of the insurance commissioner, for the recovery of the penalty incurred by the defendant below by violating the insurance laws of this state. There is no dispute as to the facts. The defendant negotiated a contract of insurance, and delivered a policy of insurance against fire on property in this state, and recovered the premium therefor.

<p>1. A statute that is invalid because its enactment is not for the entire class mentioned in its title, may be cured by an amendment that extends the operation of the act to the whole of the titular class.</p> <p>2. A district composed of all or part of a township with its inhabitants, set off for the purpose of lighting its public streets, is a political division in the exercise of a governmental function to which the power to raise money by a general tax may be granted by the legislature.</p> <p>3. The phrase “at any time” means “from time to time,” when required by the context.</p> <p>4. The fact that the officers empowered to hold a special election were not sworn will not invalidate the result if neither fraud nor other harm be shown.</p>

<p>A mortgage on the lands of the husband is held against husband and wife, and they unite in a note that pays off such encumbrance. Held, that such a contract was within the capacity of a feme covert, as it was a benefit to her dower right, and that it was not affected by the fact that her husband acted as her agent and that she signed the note and gave it to him without further knowledge or inquiry.</p>

<p>A party whose rights are to be directly affected by official action which is judicial in its character, is entitled to have an opportunity afforded him of being heard in relation thereto before such action is taken.</p>

<p>1. The city of Trenton entered into a contract with one M. for the laying of an asphalt pavement upon one of the city streets. By the terms of the contract M. guaranteed the endurance of the pavement for a period of five years and agreed to maintain it in good' condition, at his own expense, during said period. He further agreed that, in the event of his. failure to so maintain it, the city might make such repairs as should become necessary and deduct the cost thereof from moneys due the contractor, but not yet paid over to him. Held, that the repairs contemplated by this provision of the contract are only those which arise from lack of durability of the pavement, an'd that such provision does not impose upon landowners abutting upon the street any burden other than that of having the pavement well constructed at the outset.</p> <p>2. Under a charter provision requiring contracts for municipal work to be awarded to the lowest bidder “ who shall give satisfactory proof of his ability to furnish the requisite materials and perform the work properly,” a person seeking a contract with the city must not only underbid his competitors and be, in fact, able to perform the contract, but must also satisfy the municipal authorities of his ability to perform.</p>

<p>By force of the fifteenth section of the Insolvent Debtors’ act, the fact that the debtor has mortgaged his property with the intention of defrauding his creditors will operate as a bar to his discharge from imprisonment.</p>

<p>1. A person who, as the lowest bidder, is entitled to have a municipal contract awarded to him may, by certiorari, question the validity of its award to another.</p> <p>2. He cannot, however, in such proceeding, question the legality of the advertisement for bids, or of the specifications upon which the contract rests, unless he has some personal or property interest which is injuriously affected by the alleged illegality.</p>

<p>The location of a bridge, the character of its construction and the awarding of the contract for building the same are matters which are committed to the discretion of the board of freeholders, and courts have no right to interfere with their action in these matters so long as they act honestly and within the limits of their power.</p>

<p>On certiorari. On rule to show cause why assessment for benefits should not be confirmed.</p>

<p>1. Under a grant of lands and water privileges, the easement being of so much water as will operate a mill which is upon the lands conveyed, the grantee is entitled to the use of the water for any purpose he sees fit, provided the quantity used is not increased and the change in the use does not prejudice the rights of others.</p> <p>2. Where a conveyance of a “mill-seat” contains a grant of a right to flow other lands of the grantor for the purposes of a mill-pond, such grant carries with it, as an incident, the right to enter and cleanse the pond.</p>

<p>On certiorari.</p>

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

<p>1. The “Act to amend an act entitled ‘An act respecting licenses in the boroughs of this state,’ approved May 1st, 1894” (Paraph. L. 1895, p. 490), is not a mere amendment to the Borough act of April 5th, 1878, but applies to all boroughs, whether created under that act or otherwise.</p> <p>2. Legislation empowering boroughs to license certain trades and occupations and to raise revenue by such license fees, is not obnoxious to the constitutional prohibition against special legislation because it does not apply to other municipalities of higher or lower degree.</p> <p>3. When the title of an act expressly or by necessary implication indicates that its object is to legislate respecting all of certain specified things, then, if the legislation in the body of the act is confined to only part of such things, the act is unconstitutional because of the falsity and deception of its title. But when the title is general and merely indicates its object to be to legislate in respect to certain specified things, then the act will be a valid expression of legislative will, if it legislates in respect to a part of those things included within the title. Wain v. Beverly, 28 Vroom 143, distinguished.</p>

On error to the Supreme Court. This was an action of trover brought in the Monmouth Pleas, by George N. Robinson, to recover damages for the conversion of certain machinery by John and Amos Palmateer. The bills of exception disclose that Robinson, then the owner of the machinery, on October 4th, 1893, contracted to sell it to the New Jersey Mill and Lumber Company, of Long Branch.

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

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

<p>The committing of a trespass upon the rights of another is, per se, a legal injury from which some damage to the plaintiff will be inferred. In the absence of proof showing the amount of such damage, it is error to nonsuit the plaintiff. Nominal damages at least can be recovered.</p>

<p>Suits to ascertain and enforce the liens given by the act of March 30th, 1892 {Gen. Stat., p. 2078), must be brought in the Court of Chancery.</p>

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

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

<p>When an actionable wrong, consisting of or accompanied by personal injury, is committed, the jury, in fixing the damages therefor, are generally entitled to consider the mental agitation and disorder of the plaintiff naturally and proximately resulting from the wrongful conduct of the defendant.</p>

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

<p>In a deed of conveyance the description is: “ Second tract being an undivided third part of all the salt marsh belonging to the said party of the first part situate, lying and being north of the fourth line of the aforesaid three hundred and forty-seven acres and extending to the thoroughfare.” Held, that all that follows the word '1 marsh ” refers to the marsh as a whole and not to the part conveyed by way of limitation.</p>

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

<p>1. A general law, as distinguished from a special or local law, within the meaning of the constitutional provision, is a law that embraces a class of subjects or places and does not exclude any subject or place naturally belonging to such a class. The test of the generality of a law is that it shall embrace all and exclude none whose conditions and wants render such legislation equally appropriate to them as a class.</p> <p>2. The principle by which general laws are distinguished from those which are either local or special applies to all legislation regulating the internal affairs of municipalities. The discretion that enters into the decision of the question whether a particular law is general or local or special is that, where the classification appears to rest on substantial grounds and the line of demarcation which separates the places included from those excluded is a matter of judgment, the resolution of the legislature will prevail unless it plainly appears that such classification is an invasion of the constitution.</p> <p>3. The office of the Classification act of 1882 (Gen. Stat., p. 458), by which cities were divided into classes on the basis of population, is to provide a rule of - construction for the convenience of municipal legislation. Such a classification cannot be made the means of evading the constitutional interdict of local or special laws. Whether any particular statute is local or special must be determined not upon its compliance with the legislative classification, but upon whether, having regard to the character of the legislation and the limitation upon it contained in the act, the statute is or is not a general law as defined by the courts.</p> <p>4. A classification on the basis of population in statutes relating to the structure,' machinery and powers of municipal government is legitimate where population bears a reasonable relation to the necessities and proprieties of the various grades of municipal government, and classification in such cases being committed to the judgment of the legislature, the legislative judgment will prevail unless the classification be plainly illusory or applied illusively.</p> <p>5. When a law is in terms local, satisfactory reasons must be found to exclude it from the constitutional interdict of local laws.</p> <p>6. The act of March 18th, 1897, entitled “An act relating to cities of the first class in this state, and providing for the holding of municipal or charter elections therein, and regulating the terms of elective and appointive officers therein ” (Pamph. L., p. 43), which provides that all municipal officers in cities of the first class shall be elected in each year on the first Tuesday after the first Monday in November, which is the day fixed for the annual election of state and county officers, and upon the same official ballots required by law for the election of state and county officers, relates neither to the structure nor to the machinery nor to the powers of municipal government. Population is not a legitimate basis of classification for the purposes of this act, and no substantial grounds appearing for discriminating between cities of the class designated in the act and other municipalities with respect to such legislation, the act is local and special and therefore within the constitutional interdict of local or special laws.</p> <p>7. Paul v. Gloucester County, 21 Vroom 586; Mortland v. Christian, 23 Id. 538; Randolph v. Wood, 20 Id. 85 ; State v. Borough of Clayton, 24 Id. 277; In re Haines, 25 Id. 28; Matheson v. Caminade, 26 Id. 4; Anderson v. Trenton, 13 Id. 488, discussed.</p>

<p>1. A surrender of a term in demised premises, by act and operation of law, will not be implied upon proof that the lessee has put a third person in possession thereof, and that the lessor has received rent from such third person, and nothing more. Qucere. Will such surrender be implied if it also .appears that the lessor, with the lessee’s assent, has accepted such third person as his tenant ?</p> <p>2. The mere receipt of rent by a landlord from an under-lessee does not evidence his assent to the abandonment of the demised premises by the original lessee, and is no proof of his acceptance of such under-lessee as tenant.</p>

<p>1. In order to bring a review, on writ of error in a criminal cause, within the statute authorizing the return with the writ of the “entire record of the proceedings had upon the trial,” such entire record must be certified by the trial court.</p> <p>2. Illegal evidence will work a reversal except where it is clear that it cannot have harmed the exceptant.</p> <p>3. Competency of proof in a criminal cause of the commission by the defendant .of offences similar to that charged, considered.</p>

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

On error to the Supreme Court. The parties agreed, under seal, that Hawley should erect a building on Miss Cooper’s land, and that she should pay him therefor, in installments, $3,925. The work was to be done under the direction of Herman Fritz, an architect. The following provisions of the contract are pertinent to. the controversy now under review; “ Third.

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

<p>3. It is not contibutory negligence per se to alight from a slowly-moving horse car, and when personal injury and a suit for damages result from so doing, it should be left to the jury to determine, from all the evidence, whether the proximate cause of the accident was the plaintiff’s own negligence, or a want of proper care in the control and management of the car.</p> <p>2. It is not error to refuse to charge that if the jury find certain facts set forth in the request to be true, that the verdict should be for the defendant, when the facts formulated in the request are substantially the very matters in dispute. To so charge would be-a trespass upon the rights of the jury.</p>

<p>1. Where two joint executors have money of their testator’s estate on-deposit in bank, which it is agreed shall not be drawn except upon, the check of both of the executors, and one of them procures his co-executor to sign checks upon the bank drawn to the order of certain creditors to pay claims against the estate, and after receiving them for-the purpose of attaching his own signature and delivering the same to-the creditors, adds his own signature thereto as executor, and erases from the body of the checks the names of the payees, and writes therein his own name individually, and draws the money from the bank, and then settles with the several payees at a less sum than their actual demands and applies the difference to his own use, the executor profiting by such acts, if done with intent to defraud, is guilty of the crime of forgery.</p> <p>2. It can make no difference to the legal character of tbe offence, whether in point of time such executor makes tile forged alterations upon the checks before or after he thus appends his signature thereto as a joint drawer, provided these several acts were but parts of one transaction, done with the common intent to defraud.</p> <p>3. Since the enactment of section 50 of the Criminal Procedure act {Gen. Stat.) p. 1130), it is no longer necessary in cases of forgery, to allege in the indictment or prove on the trial an intent to defraud any particular person; it is sufficient to allege and prove that the forgery was committed with an intent to defraud.</p> <p>"4. It is no defence to a forgery committed by alterations in an instrument, that there was no special, attempt to conceal such alterations, and that they were plain to be seen ; the rule being, that if a signed writing, which is forged, be intended to be taken as true, and might be so-taken by ordinary persons, it is sufficient.</p>

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

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 34.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 46.</p>

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

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