Volume 61 — New Jersey Law Reports

<p>Upon the insolvency of a mutual insurance company holding notes 'of its members which are assessable to pay losses on policies and expenses, &c., and after a determination by the Chancellor that its assets (exclusive of such notes) are insufficient' to satisfy its indebtedness for such losses, &e., an assessment may be made by the Chancellor, by reference to a master in the usual course of chancery practice, upon such notes, and a maker of such notes, having notice of the proceeding to make such an assessment before a master, becomes a party to the suit to the extent that the adjudication of the court fixing the-amount of his indebtedness to the company upon such notes is conclusive in an action at law, and can only be reviewed by appeal.</p>

This action is upon contract. ■ The declaration states that the defendant (Fithian) was, on June 1st, 1896, duly appointed a sergeant-at-arms of the Camden District Court, and became duly qualified and entered upon the duties of the office that plaintiff (Nixon) obtained two judgments in said court against one Seybold, one for $43.71 and the other for $114.60; that exécutions, issued upon said judgments, were placed in the hands of defendant, as sergeant-at-arms, to be…

On error to Mercer Circuit. The record returned with this writ shows a judgment against plaintiff in error in favor of defendant in error in an action for malicious prosecution.

On certified case. Upon the trial of the case before the Circuit Court without jury-the following facts were agreed to: First.

<p>On demurrer to declaration.</p> <p>: The declaration sets out a bond from Charles Miller to William H. Robinson; its assignment by Robinson' to James A. Punderferd; a guaranty of the payment of the sum named in the bond made by defendant’s testator in1 writing under seal, and’ a subsequent assignment of the bond to plaintiffs’ testator. Recovery is sought upon the guaranty.</p>

On error. The judgment returned with the'Writ of error is a judgment of conviction upon an indictment charging the crime of abortion.

<p>On certiorari to remove a resolution of the borough council of Belmar.</p>

<p>1. The act of April 14th, 1891 (Pamph. L., p. 417), which provides that in all towns and boroughs and all townships having a population of ten thousand inhabitants or over, according to the last census, the terms of office of the clerk, collector and receiver of taxes should be for two years, is unconstitutional.</p> <p>2. A law, to be general, must embrace an entire class of objects. If it deals with municipalities they must either comprise what by common consent are regarded as a class, such as all cities or all townships, or they must differ from other municipalities in some peculiar characteristic to which the law relates and which is important enough to-afford a reasonable ground for the legislation.</p>

<p>1. A hypothetical question to an expert witness, with a view to obtain his opinion, must be so framed as to set out the facts with such distinctness that the witness may exercise his judgment upon them in expressing his opinion.</p> <p>2. Entries in diaries exhibiting the acts of a party may be used for the purpose of refreshing the recollection of a witness who had knowledge of the facts to which they relate, but are incompetent as testimony,</p>

On rule to show cause. On ease certified. The city of Newark, having contracted with the East Jersey Water Company to construct for said city certain water works for the purpose of furnishing the city with a new water-supply, to be taken from the Pequannock river by means of a reservoir, called the intake reservoir, by means of which to divert and take from the Pequannock river water for the purpose aforesaid, applied to a justice of the Supreme Court for the appointment of…

On contract. On case certified from Passaic Circuit. The above-stated cause came on to be tried on Tuesday, the 12th day of January, 1897, before his honor Jonathan Dixon, judge of said Circuit Court, and a jury impaneled and sworn for that purpose.

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

<p>In error to the Mercer Quarter Sessions.</p>

<p>1. Where an action is founded upon a contract which at common law is valid without writing, but which the statute of frauds requires to be in writing, the declaration need not count upon or take notice of the writing.</p> <p>2. An action may be maintained on a promise made by defendant to a third person for the benefit of the plaintiff, and the fact that the person to whose benefit the promise may enure is uncertain at the time it is made, and that it is dependent on a contingency, will not deprive the person, who afterwards establishes his claim to be the beneficiary of the promise, of the right to recover upon it.</p> <p>3. A promise to A, on sufficient consideration, to pay to the owner of the foal of the mare of A, by the stallion of the promisor, a certain sum of money if such foal is the first of the get of such stallion that trots a mile in two minutes and thirty seconds, is a valid undertaking, and is not prohibited by our statutes against the offering of purses for running, pacing or trotting.</p>

<p>1. The sheriff returned,a summons duly served personally on the defendant. The declaration in the first count alleges such return, that thereupon the plaintiff entered judgment in the suit, and that the return of the sheriff was a false return.</p> <p>2. The second count is like the first, except that it is alleged that the sheriff, although he returned the summons served, failed and neglected to make any service thereof upon the defendant, and that defendant did not appear to the suit.</p> <p>3. The first count is faulty; the service may have been false in the respect that it was not a personal service, yet a legal service which would support the judgment, so that no damage resulted.</p> <p>4. The allegation in the second count, that no service was made, shows a legal cause of action.</p> <p>5. The demurrer being general to both counts, it must be overruled.</p>

<p>1. The laying out of a highway across a railroad is a taking of the company’s property for public use, and entitles it to compensation therefor; and compensation for such taking includes the making good to the company the moneys expended by it in erecting, maintaining and operating gates at the crossing, provided such gates are necessary for the proper protection of the public, and for the safe operation of the company’s railroad.</p> <p>2. Where a city, which is engaged in acquiring by condemnation the right to lay out and open a street across the tracks of a railroad company, fails to define the manner of crossing, but seeks to condemn the privilege of -crossing generally, the damages will be assessed for that manner of crossing which will be most injurious to the company’s .interests.</p>

<p>In tort. Demurrer to pleas. Case certified from Somerset Circuit Court.</p>

On contract. On demurrer to sur-rejoinder. To the declaration in this ease, which contained only the common counts, the defendant pleaded the general issue and actio non accrevit infra sex annos. The plaintiff joined issue on the first plea, and replied to the second that she ought not to be barred from maintaining her action by reason of anything contained therein, because, at the time her cause of action accrued to her, she was and ever since has been a lunatic and insane.

<p>1. A statute which imposes upon a borough a proportionate part of the liabilities of a township from which it has been set off, and assigns to it a proportionate part of the assets of such township, is valid, although not passed until after the formation of the borough.</p> <p>2. In construing statutes it is an invariable rule that words should never be supplied or altered unless to effect a meaning clearly shown by the other parts of the act.</p>

<p>An ordinance prohibiting a municipal officer from being interested in any city contract or from receiving any compensation except his salary for services rendered to the city, will not prevent such officer from maintaining an action against the city to recover for services rendered altogether outside the line of his official employment, when such services were rendered in pursuance of a contract made between such officer and the city itself, and for a compensation fixed therein.</p>

<p>Proceedings to punish a party for disobedience of the stay implied in a writ of certiorari do not form part of the certiorari suit, so as to authorize the court in those proceedings to take notice of the files in the certiorari suit, without their being put in evidence in the contempt proceedings.</p>

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

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

<p>A resolution of a board of chosen freeholders appointing a lawyer as • “attorney to the board” does not place him in “an office or position” which is within the protection of the Veteran acts.</p>

<p>On certiorari.</p>

On certiorari to the Union Common Pleas. The respondent, Henry D. Poole, leased to the appellant, Minnie C. Engelke, the store' and premises No. 95 Broad street, in Elizabeth. The lease expired on the 1st of April, 1896. The appellant then rented the store and premises from Poole for the month of April, and’ toward the end of April rented them for the month of May, 1896.

<p>On motion to confirm assessment.</p>

<p>The regulation of the Morris Canal Company adopted April 7th, 1873, “that every bridge rebuilt and every new bridge, whether built by the company or by any other authority, over its canal, should leave a clear space of ten feet above high-water mark of the canal under the lowest part of the bridge,” is binding on public authorities when the circumstances of the particular case do not render its enforcement unreasonable.</p>

<p>On motion to quash an indictment.</p>

<p>In tort. On motion to vacate order denying motion to strike out pleas and to strike out said pleas as frivolous.</p>

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

On certiorari removing an order of the Circuit Court of Hudson county, designating streets for a telegraph and telephone line, &c.

<p>On certiorari to Mercer Pleas, removing judgment rendered on appeal from a District Court.</p> <p>Hand was sheriff of the county of Cape May, and as such, at the suit of Hubbard & Company, took in execution the goods and chattels of one Elliott, a tenant of Howell, and, on May 24th, 1894, on the demised premises, sold the same. On June 8th, 1894, he paid to the plaintiffs in execution the proceeds of such sale. Howell sued for eight months’ rent due at the time of the same. At the trial Howell testified that on May 23d, 1894, he posted, prepaid, at Morrisville, Pennsylvania, a letter directed to the sheriff of Cape May county, Cape May Court House, New Jersey, containing notice of his claim for rent; that on the envelope was printed his business card and a request for a return of the letter if not delivered within five days and that the letter had never been returned. He further testified that on the same day he sent to the same address a telegram of like purport. Hand testified that he had never received either the letter or the telegram. Elliott testified that on the day of the sale the sheriff asked him if there was rent due and that he replied that there was. Hand testified that Elliott told him that no rent was due, and further, that he had no knowledge or information, when he paid over the proceeds of sale, that any rent was due.</p> <p>Howell had judgment on verdict, which Hand now attacks as erroneous for various reasons.</p> <p>The following only need be considered :</p> <p>1. The court charged the jury that Howell was entitled to a verdict if Hand, before paying over the proceeds of execution, received notice in any way that the rent was due.</p> <p>2. The court refused to charge, as requested in behalf of Hand, as follows: “The mailing of a letter, directed and properly superscribed with the defendant’s proper address, raises only a presumption that it was received; and the defendant’s positive denial that any such letter was received rebuts the presumption, and disproves, therefore, its receipt.”</p> <p>3. The court admitted in evidence proof of the contents of a letter from Howell to Hand written and received December 22d, 1894, as follows: “ When may I expect a settlement of my claim in the Elliott matter in which notice was served on you in May last ? ” to which letter Hand sent no response.</p>

<p>On certiorari to Essex Sessions.</p>

<p>On certiorari.</p>

<p>On certiorari to remove proceedings for an issue of bonds for the purpose of macadamizing streets, roads and avenues.</p>

<p>In a declaration charging willful and malicious injury to a chattel, allegations of bailment and implied contract to use care and return the chattel in good condition are recitals by way of inducement only. The action is ex delicto, and misjoinder of defendants will not defeat it.</p>

<p>1. It is necessary to the validity of an adjudication of fraud in contracting a debt, by misrepresentation of the collectibility of assets—where the proof is the alleged admission of the debtor—that enough details of time, circumstances and substance of language of the admission should be proved to establish that there was intentional falsehood in the representation.</p> <p>2. A purpose of a debtor to remove or dispose of his property with intent to defraud his creditors is not established by proving his statement that the holder of a judgment against him will not execute his judgment except at his desire and except to protect him from his other creditors.</p>

<p>1. Whether, after the governor of the state, in execution of the duty imposed upon him by an act of the legislature, has issued his proclamation that a proposed constitutional amendment has received a majority vote of the people and has become a part of the state constitution, this court can order a recount of the popular vote, is a question upon which no opinion is expressed..</p> <p>2. The election at which the constitutional amendment was submitted to the vote of the people did not affect any individual or private right. It concerned the government alone. Public policy, therefore, is to be primarily regarded in considering an application for a recount of the votes.</p> <p>3. The legislature, by the act under which this amendment was submitted to the popular vote, having declared how that vote should be canvassed, made it the duty of the governor, after determining that the amendment had received a majority vote, to issue a proclamation forthwith, declaring that it had been adopted by the people. This was a declaration by the legislature that, so far as the government was concerned, public policy required that the question should be at rest when the chief executive had performed the duty imposed upon him by the statute.</p> <p>4. If the power inheres in this court to order the mandamus applied for, it would require a very clear case to induce the court to intervene for the purpose of reopening the count and subjecting to litigation a subject of such paramount importance.</p>

This was an application made by Charles Bott and others for a writ of certiorari to review the statement of the result of an election held in the State of New Jersey, on the 28th day of September, 1897, for the proposed amendment to the constitution of the state relating to lotteries and gambling, as ascertained and determined by the board of state canvassers organized under the act of the 25th of May, 1897, on the 19th day of October, 1897, whereby the said board determined…

<p>There was no statutory authority that authorized the assessor of a borough in 1896 to tax the section of a turnpike road within his borough as so much real estate, against the company that was incorporated to establish and maintain such road.</p>

<p>1. In a summary proceeding for a penalty the conviction must on its face sustain the legal propriety of the judgment founded upon it.</p> <p>2. Where the conviction fails to set out evidence sufficient to support the judgment, the defendant in certiorari will not be permitted by an amended return to show a different conviction.</p>

<p>1. Under the act of the legislature entitled “An act enabling grantees of reversions and lessees mutually to avail, themselves of covenants and conditions” (Gen. Skit., p. 880, §§ 135, 136), the grantees of a reversion have the same right as the grantors to take advantage of a forfeiture which occurs by reason of an express condition of a mining lease, that the same shall become null and void upon a failure on the part of the lessees or their assigns to pay the rent reserved or the royalties upon the ore sold and delivered at the times provided in the lease for such payment.</p> <p>2. When such forfeiture occurs, the lessor or his grantee of the reversion may bring an ejectment to recover the possession of the lands contained in the lease, without making any demand for the rent or-royalties due and unpaid, and without making any re-entry upon ■ the demised premises.</p> <p>3. Where a mining lease reserved a rent of §400 per year, payable quarterly, and this amount to be deducted from the royalties, when they were-in excess of that sum, and which also were payable quarterly on ore as sold and delivered to purchasers, the lease further providing that if payments were not made at such times, the lease should be null and void. This condition required the full payment of all royalties on ore sold and delivered at the end of each quarter year, and if not so paid, it was a forfeiture of the lease.</p> <p>4. The payment of the rent and royalties was a condition subsequent, the non-performance of which had the effect of defeating the estate granted and rendered the agreement null and void and as if it had never existed. A grant with a proviso to pay a certain rent by a certain day, and unless done the estate granted and the agreement should be void, is a condition, and upon the non-performance of which the grantor may re-enter or bring ejectment.</p> <p>5. Where the ore sold and delivered could only be ascertained by the books and accounts of the lessees, and the acceptance of a part of the rents and royalties by one of two joint lessors without knowledge on his part that any greater sum than that tendered and received by him was due and.unpaid, will not be a waiver of the forfeiture caused by the non-payment of the full amount due. If the acceptance is by one of the two joint lessors with such knowledge, then it operates as a waiver against the other.</p> <p>6. Where the evidence as to the existence of such knowledge as an essential element of a waiver is in dispute, the questions must be submitted to the jury.</p>

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

<p>On certiorari.</p>

<p>1. Where the owner of a farm, who was a mortgagor, conveyed the same in fee-simple to the mortgagee, and the owner of the mortgage, as mortgagee, discharged the bond and surrendered the mortgage for cancellation, in good faith, as the consideration of the conveyance, and the mortgage was canceled and discharged of record, the mortgage is no longer a ratable of personal properly for the purpose of taxation and cannot be included by the assessor in the list of ratables of property belonging to the former owner thereof, although it be that at the time of the assessment he remains the owner of the farm covered by the mortgage.</p> <p>2. Certiorari is a proper remedy for relief where the property assessed for the purpose of taxation has no existence whatever, and it is within the discretion of the court to grant such relief, although no appeal has been made by the person assessed for such property to the commissioners of appeal of the township wherein such assessment has been made.</p>

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

<p>1. An ordinance of the township of East Orange, in the county of Essex, adopted by the township committee of that township, entitled “An ordinance to regulate the running of electric wires in the township of East Orange,” which provides “ that no person shall trim, cut or break any tree, limb or twig thereof, standing upon a public street or highway of the township, without first obtaining permission of the township committee or their authorized agent,” and providing for the imposition of a penalty of $25 for a violation of such provision of such ordinance, is a valid and reasonable exercise of the police powers vested in the municipality, under the statutes (Pamph. L. 1867, p. 124; Pamph. L. 1873, p. 124) which authorize the township committee to provide, by ordinance, for the regulation of the use of the public streets, and “to direct and regulate.the planting, rearing, trimming and preserving of shade trees in the streets and public places of said township, and to authorize or prohibit the removal or destruction of said trees, and to restrain and punish persons injuring or defacing the same.”</p> <p>2. Permission by an ordinance, or agreement with the township authorities, to an electric street railway company to operate its cars through the streets, is not a grant, ipso faeto, of the right of the township to the trees standing in such street, nor does it divest the properly-constituted municipal authorities of the reasonable control over such trees as a part of the street, and a reasonable regulation or ordinance controlling the company in the use of such trees in the operation of the street- railway will be upheld as an exercise of the police power of the township.</p> <p>3. The ordinance in question is a reasonable exercise of such police power.</p>

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

<p>1. An application to have a Writ of inquiry executed before a justice of this court, is at the discretion of the court and will only be granted when the case is very special, as where the law is mixed with the fact, or .where the inquiry appears to be of too much consequence for the sheriff to undertake.</p> <p>2. That large damages are claimedis insufficient.</p>

On error to the Camden County Circuit Court. Rachel Fritz, as the executrix of the will of George Fritz, deceased, declared against the Agricultural Insurance Company of Watertown, New York, upon a contract of insurance, alleging that the insurance company, in consideration of $12, paid to it by George Fritz, undertook to indemnify George Fritz against loss by fire to the extent of $700 upon his dwelling-house in Gloucester county, in this state, and $300 upon his household…

<p>1. When, upon a writ of error- in a criminal case, the plaintiff in error procures to be returned the “entire record of the proceedings,” as permitted by the supplement to the Criminal Procedure act, approved May 9th, 1894 (Gen. Stal., p. 1154, $ 170)—Quaere. Whether the reviewing court should reverse for an error, which, if all the proceedings were not before it, the court would pronounce capable of prejudicing the accused in maintaining his defence on the merits, but which is shown by the proceedings before it not to have had any prejudicial effect.</p> <p>2. When a juror was called to the book, counsel for the accused proposed to ask him certain questions and stated that his purpose was to elicit information, so that the right of peremptory challenge might be intelligently used. No challenge had been interposed and it was not proposed to swear the juror as upon challenge made. Held, that the trial court rightly refused to permit the juror to be thus interrogated.</p>

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

On certiorari to the Supreme Court in matter of taxation, and writ of error upon the judgment of the Supreme Court thereon. For opinion of the Supreme Court, see 28 Vroom' 303.

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

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

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

<p>The plaintiff was employed by the defendant to work in a quarry. It was a part of the system under which the quarry was operated that the foreman should supervise the preparation of each blast and light the fuse to fire it, giving warning by a cry of “-fire,” so that the workmen in the quarry might run out of danger. The plaintiff was injured by a piece of rock thrown out from a blast, because the foreman had,</p> <p>^ through negligence, failed to give timely warning. Held, that the giving of warning was embraced in the duty owed by an employer to his employes, that the place where he sets them to work shall be kept safe; that the failure of the foreman to perform this duty carefully was imputable to the defendant as employer; and that such failure was not one of those obvious dangers of which the plaintiff as employe assumed the risk.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 307.</p>

<p>1. To work an estoppel of record, a former judgment between the parties to an action must be pleaded, if there be opportunity to plead it, and must be proved to be directly upon the point in question. Qucere. Can there be a collateral estoppel of record on matter of public law ?</p> <p>2. Under a municipal charter, certain water commissioners are required to elect annually one of their number to be president of the board, who may, under their direction, have the general superintendence of the water works and the business of the board, and are empowered to elect a treasurer. They are also authorized to appoint and employ all proper assistants, officers, agents and clerks. These commissioners, by resolution and written contract, assumed to appoint and employ C. H. C. for five years, at a stated compensation, to perform, under their direction, the duties of general superintendent of the water works and if desired, the duties of treasurer of the board, without further compensation. After some fifteen months he was discharged and another person was appointed in his stead. He sued for compensation under the contract. Held, that the duties of this employment were incidental to public offices created by law and could not be made the subject of a contract extending beyond the term of a president or treasurer incumbent. . Such contract was ultra vires.</p>

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

<p>1. Where the vendees of machines intended or adapted for pulverizing stone and hard materials, and purchased under a warranty of fitness for such purpose, after testing them and discovering defects which cause dissatisfaction, continue to use them, not in order to make further tests but merely for the purpose of their own convenience or profit, such use constitutes an acceptance, and concludes them from the defence of a total failure of consideration, and they must rely upon their warranty.</p> <p>2. In a suit on the note given for the consideration of such contract a charge to the jury to the effect that under the evidence in the cause the defence of a total failure of consideration cannot be interposed, is correct, whether the right of rescission is exercisable or not.</p>

<p>On error to the Supreme Court. For the opinion of the Supreme Court, see 31 Vroom 400.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 278.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 338.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 118.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 66.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 306.</p>

<p>Appeal from the determination of the Camden Circuit Court (Miller, J.) in an election contest.</p>

<p>1. When an employer clearly and explicitly forbids his employe to do a certain act around or in connection with the machine on which the employe is working, and the employe, while violating such prohibition and as a result of such violation, receives an injury, the employer is not liable therefor.</p> <p>2. This rule applies as well to minor as adult employes.</p>

<p>On rule to show cause.</p> <p>This case is presented to this court by the following certificate:</p> <p>Passaic Circuit Court. The Paterson Railway Company ads. Robert Murray. In tort.</p> <p>A rule to show cause why a new trial should not be granted having been made in the above-stated cause, and it appearing that thé defendant has filed reasons for granting a new trial, and that the case is one of difficulty and doubt:</p> <p>I, Gilbert Collins, judge of the said Passaic Circuit Court, do hereby certify that the printed book is the case made and stated in this cause, and I hereby certify the same to be argued at the bar of the Supreme Court for its advisory opinion upon the following questions of law being particularly presented and stated in said reasons filed as aforesaid:</p> <p>First. Whether it was error to refuse defendant’s motions for a nonsuit.</p> <p>Second. Whether it was error to refuse the defendant’s motion to direct a verdict for the defendant.</p> <p>Third. Whether it was error for the trial judge to refuse to charge the jury that they should find under the' evidence that the injuries of the plaintiff were the result of an accident for which the defendant was not liable.</p> <p>Fourth. Whether it was error for the said.judge to decline to charge the jury in accordance with the defendant’s request as follows: That even if the jury found that the defendant was operating the car in question at an 'excessive rate of speed, such excessive speed was not the proximate cause of the plaintiff’s injury.</p> <p>Fifth. It appearing in the case that the plaintiff was crossing the track of the street railway operated by the defendant, and while so crossing, fell prostrate and was run over and injured by a car of defendant which was moving on said track; and one question of fact being whether the rate of speed of said car was unreasonable and excessive; whether the said judge erred in declining to charge in accordance with the following requests of said defendant, or either of them, to wit:</p> <p>(1) That in regulating the speed of the car the motorman was not bound to allow for the possibility that children under three years of age might undertake to cross the track at a place where there was no regular crossing and fall prostrate on the track, and thereby be unable to get off the track in time to avoid being run over.</p> <p>(2) That in regulating the speed according to the circumstances existing at the time, the motorman, while obliged to liave in view the safety of persons, including children, in crossing the track in front of the car, was not obliged to have in view a possibility of persons so crossing falling down upon the track, and thereby being exposed to the danger of being run over.</p> <p>Sixth. Whether it was error for the court to charge as requested as aforesaid with the charges and qualifications of the propositions as set forth in the charge of the court.</p> <p>Seventh. Whether it was error for the court to charge the jury that if they found the motorman negligent in the particulars indicated in said charge they should find for the plaintiff and assess his damages.</p> <p>Eighth. Whether the verdict was contrary to the weight of the evidence.</p> <p>Ninth. Whether the- damages—$10,000—assessed by the jury were excessive.</p> <p>Gilbert Collins,</p> <p> Judge. </p> <p>It appears from the case made and stated, which has been certified for an advisory opinion on the questions above mentioned, that plaintiff, when about two years and nine months old, was run over by a trolley car of the defendant, in a public street in Paterson. In consequence, one of his legs had to be amputated.</p> <p>The action was brought in the Passaic Circuit to recover damages for the injury, and a verdict having been rendered for plaintiff, a rule to show cause why it should not be set aside was allowed by the Circuit judge.</p>

<p>1. By the Werts law, every sale (without appropriate license) of ther intoxicating liquors to which that act applied was constituted the offence of “ keeping a disorderly house.” Held, that its provisions in</p> <p>• this respect did not take away the liability to indictment for the common law offence of keeping a disorderly house, of one who maintained a place in which he habitually sold such liquors in violation of law.</p> <p>2. The first count of the indictment in this case approved as sufficient under the provisions of the supplement to the Crimes act, approved1 March 10th, 1893. Qen. Stat., p. 1101.</p> <p>3. The act of 1871 (now section 8 of the Evidence act), which permits an indicted person to become a witness in his own behalf, by offering himself as such, does not, as do the act of congress and the acts of some states on the same matter, provide that his failure to offer himself shall not raise any presumption against him, nor does it, as do' the acts of some states, forbid allusion to such failure by counsel or court. Held, that when facts have been testified to by witnesses for the prosecution, which, if true, establish defendant’s guilt, which facts-concern the actions of defendant, and if not true, may be disproved by him, his failure to offer himself as a witness may be considered and commented upon.</p>

<p>1. A railroad company which maintains a turntable upon its own land is-not liable for an injury to a child who comes upon the land and receives the injury by playing with the turntable without any invitation, express or implied.</p> <p>2. An invitation to a child will not be implied from the fact that the turntable, obviously designed for another purpose, furnishes a place for play which is attractive to children.</p>

In ejectment. On rule to show cause. On case tried in the Essex Circuit. Verdict for the plaintiff. Rule to show cause granted and case made and certified to this court for its advisory opinion.

<p>On rule to show cause. On information filed in the name-of the attorney-general in quo warranto proceedings.</p>

<p>On information in the nature of quo warranto. On demurrer to the defendant’s plea.</p>

<p>1. In an action to recover damages for the death of a workman employed! by the defendant in his stone quarry, caused by being struck by a. swinging drag-rope and knocked off the ledge on which the deceased was working—Hdd, that it was competent for the plaintiff to show the manner in which such drag-ropes were supported in other quarries to prevent their swinging, in order to aid the jury in determining whether the defendant had exercised reasonable care in the arrangement of the drag-rope in question.</p> <p>2. Where the trial judge charges the jury that the employer contracts with- his employe to use reasonable diligence to protect him from ordinary risks, it is not error for the judge to omit, in that connection, the qualifying words, “ not obvious to the employe,” where the learned judge expressly told the jury that “when the employment presents special features of dangers, yet of such a nature or character that they must have been known to the employe, such as are open and obvious to one ordinarily skilled in the employment, then the servant also assumes the risks of those obvious dangers in taking the employment.”</p>

<p>1. In an action of tort to recover damages for personal injuries, an allegation of duty is insufficient. The facts and circumstances from which the duty arises must be set out in the declaration, and the sufficiency of the pleading must be determined from the facts from which the-duty is deduced.</p> <p>2. On demise of a house or lands, there is no contract or condition-implied that the premises shall be fit and suitable for the use for which the lessee requires them.</p> <p>3. The exemption of a landlord from liability for injuries sustained by a tenant by reason of the ruinous condition of the demised premises, where there is neither a contract nor fraud, applies as well to members-of the family of a tenant as to those who are on the premises by his-consent.</p> <p>4. There is privity of estate and of contract between the landlord and his tenant arising from the letting, but there is neither privity of estate-nor privity of contract between the owner of premises and the persons-whom the tenant may choose to make members of his family in any capacity. Such persons dwell in the premises demised neither by license nor by invitation of the owner.</p> <p>5. Where there is neither privity of estate nor privity of contract, the owner of premises is not liable for injuries sustained by third persons unless, by invitation, -express or implied, the owner induces them to-come upon the premises.</p> <p>6. The general rule is that one who is not a party to a contract cannot-sue in respect of a breach of duty arising out of the contract.</p> <p>7. The declaration averred that on May 23d, 1894, the plaintiff was a sister of the lessee and tenant of a certain house, and was living with her brother as a member of his family; that prior to May 23d, 1894, the lessee and the plaintiff called the attention of the landlord to-different things in the house that were in need of repairs, among which was a certain mantelpiece; that the landlord made a personal examination of the mantelpiece and assured the tenant and the plaintiff that the same was safe, but promised and agreed that he would immediately have the same repaired and put in proper order, but that the mantelpiece fell upon the plaintiff and injured her. Held—</p> <p>1. That the promise to the plaintiff in this respect was without consideration, and therefore did not reach the stage of a contract with her. • •</p> <p>2. That the promise to the tenant having been made after the letting, was also without consideration and would- not sustain an action on his part.</p> <p>3. That if it be assumed that there was a contract with the tenant embodied in the original lease, and for that reason a valid contract as between the landlord and his tenant, such a contract will not sustain this action.</p>

<p>This is an action of ejectment brought to recover the possession of certain lands in the county of Camden, of which one Benjamin D. Cooper died siezed. The case was tried by the court without a jury, and, by agreement of parties, the trial judge found the facts specially and referred it to this court for judgment as to whether, on the facts so found, the defendants or any of them are guilty as in the declaration charged.</p>

<p>A railroad company is not responsible for injuries received by a person who unsuccessfully attempts to cross the track in advance of a train which he knows is approaching the place of crossing.</p>

<p>A person is not legally responsible for an injury which results to another from a lawful act, done by him in a lawful mantier, and without any carelessness or negligence on his part.</p>

<p>On rule to show cause. Verdict for plaintiff.</p>

<p>1. A servant, who chooses to enter into an employment involving danger of personal injury which the master might have avoided, takes upon himself the risks of all the hazards incident to the employment, the existence of which are known to him, or which are plain and obvious, and which he has no reason to expect will be counteracted or removed; and no action will lie against a master for injuries to the servant resulting from such dangers.</p> <p>2. A master owes to his servants the duty of using reasonable care and . prudence in the selection of their fellow-servants; and if he knowingly employs or retains in his service an unskillful or incompetent workman, he is responsible for injuries received by an employe through the unskillfulness or incompetency of such workman.</p>

<p>A master who furnishes to his servant safe and suitable appliances with which to do the work upon which he is engaged, is not responsible for injuries received by the servant by reason of defects in appliances substituted by a fellow-servant for those furnished by .the master.</p>

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

<p>On certiorari to review an ordinance of the board of health of Asbury Park.</p>

<p>Under the eightieth and ninetieth sections of the Borough act of 1897 (Pamph. L., p. 285), a definite plan for the construction of a system of sewers must be submitted for approval to the voters before it can be undertaken by the borough council.</p>

<p>1. By a written agreement the defendants “ leased, demised and to farm let” unto the plaintiff a farm in this state for a term of five years from April 1st, 1893. The plaintiff agreed to cultivate the farm according to the rules of good husbandry, that he would not underlet,, and that he would give to the defendants one-half of the products of the farm. The dwelling-house in the occupancy of a third person was excepted from the lease. Held, that this agreement created the relation of landlord and tenant between the parties to this suit.</p> <p>2. By a note in writing signed by the plaintiff in October, 1896, and delivered to the defendants and accepted by them,- the plaintiff agreed to surrender possession, of the premises to the defendants on the 1st of April, 1897. This operated as a redemise. Such an agreement to surrender a term to take effect in futtiro had the effect of terminating the tenancy created by the lease on the 1st day of April, 1897.</p> <p>3. The affidavit upon which the proceedings before the justice, under the Landlord and Tenant act, were-based, set out a copy of the original agreement, and stated that by a note in writing, dated October 9th, 1896, signed by the plaintiff, delivered to the defendants and accepted ' by them, the plaintiff surrendered the said term to the defendants, said surrender to take effect April 1st, 1897. This was a sufficient statement of facts to show that the term had expired April 1st, 1897, and is not void as being a mere conclusion of law from undisclosed facts.</p>

<p>On certiorari to review an ordinance of the city council of Dover.</p>

<p>The.common council of a city cannot evade the requirement of the city charter to submit every resolution to the mayor for his approval, by using the word “motion” instead of “resolution,” in authorizing the' making of a contract for lighting the city with electricity.</p>

<p>On certiorari.</p>

<p>Under the authority given by the charter of the city of Paterson to lay out and open streets and to take such lands as may be necessary therefor, upon making compensation, the city has no power to lay out-a street through land used by a railroad company as a freight-yard, when it will deprive the company of the beneficial use of such freight-yard and compel it to transfer its freight business to another locality. To authorize such an invasion of the rights of the company there must be an express grant of power by the legislature, or an implication equally conclusive; such power will not be inferred .from the general authority granted to lay out and open streets.</p>

<p>1. If the prosecutors .of a certiorari do not, in their reasons filed, question the status of a foreign corporation, it will be assumed, on final hearing, that the corporation has complied with the statutory prerequisites to the transaction of business by it in this state.</p> <p>2. A corporation owning the fee of land can grant to another corporation the right to use the land for a purpose which is not within the powers of the grantor, but is within those of the grantee, and private persons having no interest in the land cannot question the validity of such a grant.</p> <p>3. Where a corporation has acquired the private right to lay a pipe for the transportation of oil through land which is traversed by a public street in the city of Elizabeth, the city council may by ordinance prescribe the manner in which the pipe shall be laid and used and permit the corporation to dig the necessary trench across the street.</p> <p>4. A pipe line for the transporation .of oil is not rendered a nuisance by the mere fact .that its presence .enhances the rates of insurance on property in the neighborhood.</p>

<p>On certiorari.</p>

<p>1. If, at the time and place appointed for an election of directors, the stockholders of a corporation assemble in two bodies and cast their ballots at separate polls, the court, in ascertaining the result of the election under the Corporation act, may consider the ballots cast at both polls.</p> <p>2. Under the statute the books of the corporation constitute the only evidence as to who are the stockholders entitled to vote at an election of directors.</p>

<p>1. In proceedings for the sale of land for taxes, all provisions of the statute which are designed for or conducive to the protection of persons interested in the land, whether they relate to proceedings before, or at or after the sale, must be strictly complied with, or the sale will be set aside.</p> <p>2. The provisions of the statute (Gen. Stat, p. 3353, $$ 331, 349), which require the officer making the sale to return his warrant within four months after its date, are conducive to the protection of the persons interested in the land.</p>

<p>1. One who, being named as payee in a negotiable promissory note, places his name upon the back of it in order to give credit to the maker, must be regarded as a commercial endorser, when the note is delivered by the maker to a third party.</p> <p>2. In order to bind an endorser, a promissory note payable “ on demand after date ” must be presented for payment in a reasonable time after its date.</p> <p>3. The circumstances to be considered in determining what is a reason- . able time for the presentation of such a note, are only those which relate to the ability of the holder, excluding any notion of credit or indulgence to the maker.</p> <p>4. The rights and obligations of the endorser of a negotiable promissory note cannot be varied by parol evidence of his oral agreement made before or at the time of his endorsing the note.</p>

<p>In docketing thejudgment of a Justice’s Court under the act of April 1892 (Gen. Siat., p. 1898), it is not necessary that the statement of the justice should expressly negative the issue and return of execution, when none has been issued, provided the statement be accompanied by the affidavit required by the proviso of the act.</p>

<p>Under the provisions of the supplement of the Township act, approved March 9th, 1897 (Pamph. L., p. 33), and of the act creating the township of Overpeck, approved March 23d, 1897 (Pamph. X., p. 45), the township of Overpeck is to he governed by a township committee, notwithstanding the fact that its territorial limits are coextensive with those of the village of Ridgefield Park.</p>

<p>The abolition of a municipal office or position, held by an honorably discharged Union soldier, for the purpose of economy or of promoting' the efficiency of the public service, is not rendered unlawful by the Veteran act of March 31st, 1897. Pamph." L., p. 142.</p>

<p>The supplement to the act providing for the .review of summary convictions, which was passed March 31st, 1890 (Gen. Stat., p. 1206), is rendered invalid by article 4, section 7, paragraph 4 of the state constitution, because the object of the law is not expressed in its title.</p>

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

<p>1. A motion to strike out pleadings as sham can prevail only when it is entirely clear that they are devoid of merit.</p> <p>2. In a declaration founded upon a covenant in a mortgage to pay the debt secured by the mortgage, it was averred that on a “bill filed for the foreclosure of the mortgage,” a court in a sister state had decreed that the debt was due from the defendant to the plaintiff, and that the equity of redemption should be barred. The defendant having pleaded certain defences to the alleged covenant—Meld, that the decree was not so clearly an estoppel as to render the defendant’s pleading a sham.</p>

<p>On certiorari to review an ordinance of the council of the borough of Belmar.</p>

On certiorari to District Court. A District Court in Jersey City, having jurisdiction of a ■cause, both as to subject-matter and parties, rendered judgment, after trial, in favor of a plaintiff whose demand was less than $25. The defendants, desiring to review a refusal to nonsuit, brought the present writ.

<p>If, in the judgment of a justice of the peace, the surety upon a bond tendered on an appeal from a judgment in a Court for the Trial of Small-Causes held by him be insufficient, he may reject the bond.</p>

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

<p>Where the defence to a suit by an artisan for breach of a contract of employment is the incompetency of the plaintiff, rebutting proof need not be limited to work done for the defendant.</p>

<p>The docketing in the Court of Common Pleas of the judgment of a District Court does not preclude the granting, by the District Court, of a new trial of the cause in which the judgment was rendered.</p>

<p>The tax imposed by “An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof,” approved April 18th, 1884, and its supplements (Gen. Stat., p. 3335, el seq.), is a franchise, not a property, tax, and is not subject to diminution because some of the capital of the corporation taxed is invested in rights under letters-patent of the United States, not taxable as property.</p>

<p>In Jersey City it is not requisite to the validity of the appointment or employment of officers, clerks or other persons by the board of street and water commissioners that there should he a concurrence therein of the board of finance.</p>

<p>Oa certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>■Under 6m. Stat.¡p. 3345, pi. 291, the tax on visible personal estate is assessable in the taxing district where the property is found, and on other personal estate is assessable in the taxing district where the owner resides. If an assessment at the place of business of an inhabitant of this state is in excess of his visible personal estate at that place, but together with any assessment at his residence, though in another taxing district, does not exceed his entire taxable personal estate, this court, on certiorari (under 6en. Stat., p. 3404, pi. 547), may order proper apportionment and transfer of assessment and tax.</p>

<p>On rule to show cause why a mandamus should not issue to assess and levy an execution.</p>

<p>1. “An act to enable cities of the second class of this state to repave streets and to issue bonds in payment therefor” (Pamph. L. 1896, p. 94) is unconstitutional, for the reason that the localities in which it operates are specified by means of population not classified with reference to it.</p> <p>2. The meaning of the constitutional interdict and its application to legislation are judicial questions.</p> <p>3. The legislature may, without infringing upon this interdict, subdivide cities for the purposes of legislation either by creating the subdivision in the same law that declares the legislative will with respect to it, or by referring for that purpose to a general legislative classification previously made. Whether in either case the legislation present a subject for judicial control depends upon whether the classification be ■substantial or illusive; “substantial,” in this sense, means that the limitation is incidentally consequent upon the character of the legislative provisions; “illusive,” that the selection is extraneous from it. .Such “illusiveness” results equally when a classification is created with “a view to escaping the constitutional restriction,” and when one is adopted that has'a like result.</p> <p>4. Legislation for municipalities may deal with the municipal apparatus as -such, or it may affect the citizen in other respects. Where the governmental apparatus alone is the subject of legislation, population ordinarily so fully connotes all the essential conditions that the general subject is, in the absence of palpable evasion, a question for legislative judgment. But where the legislation affects the citizen or taxpayer in other respects, classification by mere population is substantial or illusive according to the criterion above indicated, and hence presents a question for judicial examination, and, if necessary, for judicial control.</p> <p>5. Quaire. Whether the inequality imposed by this act under color of classification brings it within the fourteenth amendment of the federal constitution.</p>

On certiorari, by a taxpayer, removing a resolution of the common council of the city of Trenton, appropriating-$150,000 for the purchase of lands and the erection of buildings thereon to be used for high school purposes.

<p>On an application for a writ of mandamus to compel a Court of Oyer and' Terminer to amend its record by inserting therein that an indictment was tried by a struck jury—Hdd, that the manner in which the twelve-jurors who tried an indictment were selected from the body of the county forms no part of the record of the court.</p>

<p>A certiorari removed into the Supreme Court the resolution by which the city of Bayonne agreed to sell certain lands that it had purchased at a tax sale under, the Martin act. Held, that the proceeding was nugatory as a means of testing whether the purchaser at the tax sale had legally extinguished the prosecutors’ right to redeem the lands.</p>

<p>The proprietor-of a licensed saloon was convicted under an ordinance that forbade “ Keeping open ” on Sunday. Held,—</p> <p>1. That this ordinance was a la\yful regulation, under the city charter.</p> <p>2. That its .meaning was that the proprietors of public houses should' temporarily cease entertaining the public.</p> <p>3. That the testimony described a saloon that was “keeping open,”' and justified the conviction.</p>

<p>On certiorari.</p>

<p>On •certiorari to the Atlantic Quarter Sessions.</p>

<p>The validity of an ordinance of a city of this state imposing a license fee-for revenue will not be adjudicated upon a writ of certiorari brought by a non-resident prosecutor against whom no action has been instituted.</p>

<p>On certiorari.</p>

<p>1. A by-law of an active fire or hook and ladder company organized according to the general statutes of this state, and governed and regulated by its constitution and hy-laws enacted in accordance therewith, which provide that any member of the company who shall be guilty of an act whereby the reputation of the company may be injured, witnessed by any members of said company, may be punished by expulsion; has no reference to the ordinary business transactions of the company with its members, and no reference whatever to financial difficulties which might arise out of such transactions between the company, its committees and the members thereof; and, considering the nature and character of such an organization under the laws, and its purposes and objects, such a by-law cannot be made the basis of a summary expulsion of a member by the company.</p> <p>2. Such a by-law would only involve a liability of a member to expulsion when the act of the member, witnessed by another member or members, was one of moral turpitude, an act of cowardice or neglect in the performance of the active duties devolving on such member, or some criminal act, and does not involve any member in liability to-expulsion because of business transactions of a financial character merely between the member and the company, -whatever may be the difficulties arising out of the transaction; such differences must be settled by amicable adjustment or by an action or suit in a court of competent jurisdiction, and not by expelling the member and thus depriving him of his rights as a member of the company.</p>

<p>1. The petition, under the fourth section of the act entitled “An act relating to roads and streets in townships, and authorizing the inhabitants of townships to place all roads and streets within the township under the management of the township committee, and to raise money by bonds for grading, macadamizing and improving the same,” approved March 23d, 1888 {Pamph. L., p. 240; Gen. Stat., p. 2920), to the township committee requesting the issue of bonds for the purpose of said act, must specify distinctly and definitely the amount of bonds to be issued. It will not be suflicient, under the statute, if it request an issue of an amount not exceeding a certain sum.</p> <p>2. The resolution to be submitted by the township committee to be voted for or against, at annual or special township election, under the fourth section of this act, must state specifically the amount of bonds to be issued by the township committee, and the discretion as to the amount cannot be vested by such election in the township committee. The voters must, upon such resolution, at such election, determine whether the amount named in the resolution shall be issued or not, and they cannot delegate to the township committee the power, at such election; to name, in their discretion, what amount shall be issued.</p> <p>3. The conditions and limitations provided by this statute, in order to vest in the township committee the power to issue bonds under such act, must be strictly performed and observed, and the proceedings provided by the statute strictly complied with.</p>

<p>1. Proceedings to improve streets in towns by grading tbe same, under the sixty-fourth section of the act of the legislature of this state, entitled “An act providing for the formation, establishment and government of towns,” approved March 7th, 1895 {Pamph. L., p. 218), can i only be taken upon the presentation to the council of such town of a petition for such improvement, signed by the owners of -one-sixth of the lands fronting on such street or part thereof to be so improved, and the council has no power to make such petition a basis for a contract for any other improvement than that requested by the petition, in such a manner that the cost and expense of such other improvement or any portion thereof can be assessed upon the lands speciallyjbenefited -. thereby.</p> <p>2. The presentation of the petition is a jurisdictional fact, without which the council are absolutely without any warrant or power to make any improvement of the character mentioned in the sixty-fourth section of said act, and no such improvement can be initiated without a petition applying for such improvement.</p> <p>3. That where no such power exists to make such an improvement, the inaction or silence of the landowner whose lands are supposed to be benefited thereby creates no estoppel against him to deny the liability of his lands for an assessment for such benefits, and he is not to be considered in laches by reason of such inaction or silence.</p> <p>4. Where an assessment is absolutely void because of the want of authority by municipal authorities to make the improvement out of which the assessment arose, the statute entitled “A general act respecting taxes, assessments and water rents,” approved March 23d, 1881 {Pamph. L., p. 194), can have no remedial or curative effect whatever. That act only provides against the setting aside of assessments because of irregularity, or defect in form, or illegality in the making and levying of the same.</p>

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

<p>On rule to show cause why the writs of summons and the •service thereof should be quashed.</p>

<p>1. In an action quare daumm fregit, by tenants in common in possession, a special plea that one of the plaintiffs was, before and at the commencement of the suit, an infant under the age of twenty-one years, and has declared by attorney instead of by guardian or next friend, duly appointed by the court, is a dilatory plea and is not good as against a motion to strike it out, unless an affidavit be filed therewith proving the truth thereof, or some probable cause be shown to induce the court to believe that the matter of the plea set forth is true according to the provisions of section 115 of the Practice act. Gen. Stat., p. 2552.</p> <p>2. A plea in bar of an action of tort, quare elaumrn fregit, that the close in the declaration described is the close, soil and freehold of one of the defendants, jointly sued with the other, wherefore the one, in his or her own right, and the other as his or her servant and by his or her command, committed the alleged trespasses, as they severally had the right to do, is a plea liberum tenementum and is a good plea in bar of the action.</p>

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

<p>1. Failure to make profert can only be objected to by special demurrer.</p> <p>2. A contract that a single person shall be employed as the sole 'agent of manufacturers to sell all their output, does not violate any principle of law and may be enforced.</p>

On error to the Union County Circuit Court. The plaintiff in error was the plaintiff below.. The case was tried in the Circuit Court before Mr. Justice Van Syckel and a jury, and the plaintiff was nonsuited, and he now assigns error in that nonsuit and in the overruling of two questions at the trial, to which reference will presently be made.

On error to the Supreme Court. For opinion of the Supreme Court, see 31 Vroom 294. The plaintiff below and here seeks damages for breach of covenant for agency between him and the defendant, an insolvent corporation of this state.

On error to the Supreme Court. On the 28th of January, 1896, the plaintiff in error entered á train of cars of Ihe defendant, at its depot in Hoboken, with intent to travel in it to Mount Arlington, in Morris county. He was provided with a “ commutation ticket,” which stated that it entitled T. O. Bullock to sixty rides on continuous trains between Mount Arlington and Hoboken during the month of January, subject to the conditions on its back, to be signed by Bullock.

<p>1. Where the trial judge charged that it was the duty of the managers of a car operated by electric motors át a high rate of speed to give audible signals of the approach of the car, the non-performance of which duty was evidence of negligence, which, if the proximate cause of the injury complained of was actionable—Held, that the charge was free from error.</p> <p>2. Where from the proofs at a trial two conclusions of fact can reasonably be reached, one of which will justify the plaintiff’s recovery, the trial court cannot direct a verdict for the defendant.</p> <p>3. The trial court is not obliged, though specially requested to do so, to apply a legal principle, which it clearly states to the jury, to conditions of fact postulated by the defendant’s counsel, particularly where such conditions do not include all the circumstances which should influence the conclusion of the jury.</p>

<p>On error to the Essex county Court of Oyer and Terminer.</p>

<p>On error to the Supreme Court. On writ of alternative mandamus and return thereto, and demurrer to the return.</p>

<p>1. Where a promissory note is ambiguous on its face, parol proof may he introduced to show whether it is the individual note of the persons who sign it or the note of the corporation they represent.</p> <p>'2. In a promissory note in the following form, it is competent to introduce parol evidence to show what the intention of the parties was:</p> <p>“$1,000. Asbubv, New Jeesey.</p> <p>“One day after date we, the Trustees of Musconetcong Grange, No.</p> <p>114, known as W. Fleming and Company, promise to pay Emma Vliet or bearer the sum of one thousand dollars for value received, with interest at 5J per cent, from date.</p> <p>“Dated April 1, 1895. War. M. Simanton,</p> <p>“Isaac Wooivekton,</p> <p> “Trustees.” </p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 30 Vroom 394.</p>

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

On error to the Supreme Court. This case was tried at April Term, 1897, of the Hudson Circuit Court, before Justice Lippincott and a jury, and at the close of the plaintiff’s case the trial justice granted defendant’s motion for a non-suit, to which ruling the plaintiff excepted.

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

On error to the Supreme Court. The indictment in this case was for assault with intent to murder. The defendant was convicted and the case was removed to the Supreme Court by writ of error. It was argued at June Term, 1897, before Magie, Chief Justice, and Justices Depue, Van Syckel and Gummere.

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

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

<p>1. When the question in issue is whether the agreement or undertaking upon which an action at law is brought is an original agreement or a ' collateral undertaking to pay the debt of another, which must be in writing- under the statute of frauds, and the evidence is in dispute as to the character of the promise or agreement a? matter of fact, and a reasonable conclusion may be drawn in either direction, the question becomes one which must be submitted to the jury.</p> <p>2. The question of fact to whom the credit was given, under all the circumstances, where they are in dispute, is a question which is properly submitted to the jury. •</p> <p>S. When the receipt, acceptance and control of the thing sold or furnished are made to appear to the satisfaction of the jury, the contract, though it rests in parol proof, is completely available like any other contract between the parties.</p> <p>4., When the trial court overrules a question upon objection which is intended to adduce certain evidence, if afterwards, from the same witness, the party has the benefit of the same evidence in answer to other questions, he will not be heard to complain of the error in overruling the question, nor will the court consider whether error was committed in the overruling of the question, because if the party taking the exception has afterwards the benefit of the evidence he is not at all prejudiced by the error, if it existed.</p>

On error to the Essex Circuit. The defendant in error (who was the plaintiff below), on the 15th day of June, 1896, then being thirteen year’s of age, had her foot crushed while in the act of rescuing her brother, a child six years of age, who was playing on a turntable of the defendant company.

On error to the Supreme Court. The administratrix of John Williams, deceased, recovered judgment, on verdict, against the Camden and Atlantic Railroad Company for damages sustained by the widow and next of kin of the decedent, by reason of his death alleged to have been caused by negligence in the operation of the defendant’s street railway in Atlantic City.

On error to the Supreme Court. Henry A. Courtright sued the firm of Enstice Brothers for commissions. Issue was joined and the cause was tried at the Essex Circuit.

<p>1. The act of March 12th, 1878 {Pamph. L., p. 70), and its supplement of 1880 {Pamph. L., p. 309), will apply to Long Branch, which is a political subdivision of Ocean township governed by “The Long Branch Police, Sanitary and Improvement Commission,” which is invested with various municipal powers, among them being the right to lay out, widen and otherwise improve streets and avenues, and the maiing of a reassessment in Long Branch for a part of the costs, damages and expenses of paving streets and avenues, when the original assessment had been set aside as illegal, is warranted by the said acts.</p> <p>2. An assessment for benefits from street improvements based upon the frontage of the property on the line of the streets improved, and when the depth of the lots assessed is not in all cases uniform, is not erroneous unless it appears by the evidence that the benefits have not been fairly and justly assessed among those benefited thereby.</p> <p>3. A decision of the Supreme Court in a case of assessments for special benefits for street improvements, which sets aside ‘ ‘ both the proceedings and assessment,” and a rule has been regularly entered in conformity therewith, invalidates the entire assessment, and is not limited in its legal effect to the prosecutors only.</p>

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see ante p. 67.</p>

<p>The plaintiff was injured by the fall of a scaffold erected by his fellow-laborers, engaged with him in the common employment of the defendant as shipcarpenters, about the hull of a ferryboat upon which they were working. The fall was the result of negligent construction. At the close of plaintiff’s case the latter was nonsuited. Held—</p> <p>1. That the negligence complained of being the negligence of a fellow-servant, and there being no proof of faulty materials or negligence in selecting the workmen, the master was not liable and plaintiff could not recover.</p> <p>2. The fact that there was a foreman, who gave directions, did not alter or modify the application of this rule, because it appeared that the foreman did not represent the master as his agent or middleman exclusively, but was at work with the others in the common employment of the master.</p> <p>3. The operation of the rule stated was not altered by the evidence tending to prove that plaintiff did not enter the service of the master until after the negligent act complained of, it appearing that plaintiff had worked in the yard a short time before, and in other shipyards, and knew that the erection of the scaffold and the shifting of it in the progress of the work, both in this and the other yards, was a duty which devolved upon the shipcarpenters under their contract of service with the master.</p>

<p>The terms of an agreement of partnership, unilateral in form, respecting ' the profits of the renting and sale of real property, construed in the light of the subsequent acts of the parties, and a claim of a right of recovery by one partner against the other for certain interest for the use of money invested in the joint enterprise, denied.</p>

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

<p>On error to the Supreme Court. Eor the opinion of the Supreme Court, see antep. 368.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see antep. 411.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 142.</p>

<p>On error to the Supreme Court. For opinion of the. Supreme. Court, see 31 Vroom 367.</p>

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