Volume 62 — New Jersey Law Reports

<p>An indictment charged two persons with acts of violence upon a pregnant woman, with intent to cause her miscarriage. The Sessions, on the application of the state, directed a severance and proceeded to try one of the defendants. The woman alleged to have been injured was called as a witness on behalf of the state. She was sworn without objection, but it subsequently appearing that she had married the other defendant, her competency to testify was challenged by the defendant on trial, and an exception was sealed to the refusal of the court to exclude her. Held—</p> <p>1. That she was a competent witness and there was no error in refusing to exclude her.</p> <p>In the course of her testimony she testified to acts of her husband from which his guilty connection with the act charged, although he was not present, might be inferred and the testimony was received without objection. Held—</p> <p>2. That the defendant on trial did not suffer manifest wrong or injury by the unchallenged admission of that evidence.</p>

<p>1. When a person purchases a ticket at the station or depot of a railroad company, intending to be a passenger on the cars of the company, the relation of common carrier and passenger is established, and the company is required to exercise reasonable care to protect the passenger from injury in the use of the station or depot for the purposes of the journey, and if the passenger uses the usual ways and passages for the purpose of obtaining checks for baggage, and is injured by any dangers existing in or on such ways and passages, which are known or ought to be known to the servants of the railroad company having charge of such station or depot, or which could have been reasonably anticipated by them, and reasonable care has not been exercised to protect the passenger from such dangers, liability exists on the part of the defendant company to respond in damages for such injury.</p> <p>2. The company is liable for injuries so caused, even if the dangers arose from the acts and conduct of intruders or strangers, if such hcts and conduct were so continued, and so notorious, that the servants of the defendant company in charge of the depot and the passageways thereof, devoted to the -úse of passengers, knew of such Sets and conduct, or should have known of them and of the dangers arising therefrom. . ...</p> <p>3'. The questions whether dangers exist, and whether they were habitual and notorious, and whether the company had knowledge of them, or should have had such knowledge, where the evidence is in dispute, are questions which must be submitted to the jury for their determination.</p> <p>4. A passenger has the right to assume that the usual passage leading . from the ticket office of a railroad station to the baggage-room is safe for use for the purpose of obtaining baggage to be checked, and the use of it cannot be contributory negligence, merely because there was another way which might have been used without injury, when the dangers of the used passageway were not perceivable or avoidable by the passenger in the exercise of ordinary care in the use of the depot and passageway, for the purposes of the journey to be undertaken, and the question whether such care has been exercised where two opposite inferences can be reasonably drawn from the evidence in this respect, is for the jury to determine.</p> <p>5. Where a passenger, in attempting to háve her baggage checked, was knocked down and injured on a passageway leading from the ticket office or waiting-room in a railroad, depot, to the baggage-room therein, by cabmen on the same, awaiting incoming trains, for the purpose of soliciting passengers in their cabs, and which cabmen were not in any sense the servants of the railroad company, the injury being caused by 'the cabmen being engaged in sport, in scuffling on the passageway, and coming violently in contact with the passenger and injuring her, and the passageway being under the control of, and part of the depot of, the railroad company — Held, that evidence of similar occurrences, to the annoyance and injury of passengers previous to the time of the accident in question, was admissible to show the dangers to passengers, existing there, and also as tending to show that the servants of the railroad company in charge of the depot had, or ought to have had, knowledge of such dangers. Held, also, that the railroad company was bound to exercise reasonable care to protect its passengers from injury from such dangers, and that a neglect of the servants of the railroad company to exercise such care, resulting in injury to its passengers, established liability to respond in damages.</p>

<p>On demurrer to the first count of the declaration.</p>

<p>1. In the relation of master and servant, whatever may be the negligence of the master to exercise reasonable care to provide a safe place for his servant to perform his work in, or to provide safe appliances for him to do his work with, still when the risks of danger arising are incidental to the employment, and obvious to the servant, or discoverable by the exercise of ordinary care on the part of the servant, the neglect of the master cannot be made the basis of an action for damages for injuries caused by such risks. In law they are assumed by the servant when he enters and continues in the employment.</p> <p>2. When the danger is latent and concealed, and the facts are such that the master did not have any knowledge of it, and the facts are not such that the master in the exercise of reasonable care should have known of it, or should have been put upon an inquiry, to ascertain the danger, the servant cannot recover for injuries arising from such danger. When the servant and master have a like knowledge and appreciation of the danger existing in the employment, there can be no recovery of damages by the servant for injuries arising therefrom.</p> <p>3. Where a workman digging a deep trench for a sewer, through soil the character of which he can observe, with full knowledge of the nature of his employment, and the manner in which it is being conducted, he cannot recover for injuries arising from dangers which were obvious to him, or whioh he could observe or discover in the exercise of ordinary care. He must show some facts from which the jury can infer or conclude that there was latent or concealed danger of which the master had knowledge, or should have had knowledge, and from which latent or concealed danger the master failed to exercise reasonable precautions to protect him in his employment.</p> <p>4. Under the principles of law well established and heretofore universally applied, when there are no facts upon which reasonably and legitimately a liability can he based, it becomes the duty of the Gourt either to order a judgment of nonsuit or direct a verdict in favor of the defendant.</p>

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

<p>1. The “mayor and city council of the city of Dover” is not authorized, under the provisions of an act entitled “An act authorizing any town, township or borough, or part thereof, containing a population exceeding five thousand inhabitants, to be incorporated as a city after a vote of the people, and providing for the government and powers of said cities,” approved March 22d, 1895 (Pamph. L., p. 506), to exercise any of the rights, privileges, liberties and franchises of a municipal corporation in and over the territory which, under said act, is embraced within it, on the ground that the act is repugnant to article 4, section 7, paragraph 11, of the amended constitution of this state, which declares that the legislature shall not pass private, local or special laws regulating the internal affairs of towns and counties, and shall pass general laws for this purpose.</p> <p>2. This act appertains as well to the regulation of the internal affairs of cities as to the mere structure and machinery of their government. The classification of cities authorized by this act depends entirely and merely upon population and territory, apart from any other characteristic, and as the legislation provided for their government has no natural relation to or connection with mere population and territory, the classification becomes of an artificial and illusory character, and therefore unconstitutional.</p> <p>3. The provision in the first section of the act, that “ none of the provisions of any general or special act relative to cities in this state shall apply to cities organized under this 'act unless the same shall be a supplement to this act, or' such future act shall by its terms be made applicable to cities incorporated under this act,” creates of itself a classification of cities obnoxious to the mandate of the constitution interdicting private, local or special laws for the regulation of the internal affairs of cities, and this provision of section 1 appearing to be in conformity with the intent of the legislature that it should be of force and operative as a part of this act, is, by reason of such legislative intent and by the reasonable construction of the act and the vote and will of the people to whom the act and the incorporation under it were submitted for acceptance, inseparable from the other portions of the act, and therefore the whole act must fall as an invalid and unconstitutional exercise of legislative power.</p> <p>4. Where a portion of a statute is unconstitutional, the other portions, or the residue, can only stand when such result is in accordance with the apparent legislative intention, and upon the question of the intention of the legislator the unconstitutional portion of the statute is to be regarded; and in order to have the residue of the statute to stand, the belief must be warranted that the legislature would have passed the statute as it would stand after the excision of the invalid provision had been made, otherwise the whole statute must fall; and in the consideration of the questions whether the excision can be made and in the construction of the statute, it is a presumption that it was the intention of the legislator that each and every part of the act should be effective.</p>

<p>1. In an action for slander the rule of pleading to be followed is that the words spoken by the defendant of and concerning the plaintiff must be averred m tec verba, in the declaration, in order that the court may determine, either with or without the aid of the innuendo, whether they constitute a ground of action, and also in order that the defendant may know the charge against him and what defence can be made to the action by pleading and proof.</p> <p>2. The declaration must contain the averment that the words were falsely and maliciously spoken. Malice, in fact or in law, is essential to the action, and consequently a corresponding allegation is- essential to a complete declaration.</p>

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

<p>1. In an action under the Death act (Gen. Stat., p. 1188), where it is contended that the advice and counsel of the deceased to the next pf kin is an element of damage, it must be shown by the facts and circumstances that such advice and counsel would relate to the pecuniary affairs of the next of kin, and that such advice and counsel would probably result in a pecuniary benefit, and that by the deprivation of such advice and. counsel a pecuniary injury would accrue.</p> <p>2. The services of a wife in her jmsband’s household, in the ordinary work thereof, or in aiding and assisting him in his occupation, are due and belong to the husband, and her continual services during the life of her husband cannot be a pecuniary benefit to the next of kin, and the deprivation of such services cannot be a pecuniary injury nor' afford ground of recovery of damages under the Death act of this state. Whether such services after the death of, her husband would be a pecuniary benefit to the next of kin is a question too remote to be considered by the jury as a basis of a verdict of damages under such act.</p>

<p>1. In an action based upon the act entitled “An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act or neglect,” approved March 3d, 1848, the plaintiff is entitled to recover nothing but the pecuniary loss sustained by the person for whose benefit as next of kin the action is brought.</p> <p>2. Where the deceased was a boy fifteen years of age, with an earning capacity of about twenty dollars per month, and the cause was tried on the basis that, the pecuniary benefit to the father could only continue during the minority of the son, if his life had continued, and the instructions of the trial court were to that effect — Held, that a verdict of §3,000 was excessive, and that as the verdict of the jury was based upon only a misapprehension of the instructions of the court as to the measure of damage, the plaintiff could have the option of accepting the sum of §1,500, otherwise the verdict be set aside and a new trial ordered.</p>

<p>1. The defamatory words set forth in a declaration, spoken by the defendant of and concerning the plaintiff, “ You killed Thorne and you are now trying to kill Harrison,” and again, “You killed one engineer before ; you killed Thorne and you are now trying to kill Harrison,” are words which impute a criminal offence or offences to the plaintiff and render an innuendo in the pleading unnecessary.</p> <p>2. In a declaration for slander, if the defamatory words can be understood as imputing crime to the plaintiff, no innuendo is necessary, and if it be averred it can be treated as surplusage, but will not render the pleading demurrable because the innuendo attributes a meaning to the words which they will not bear.</p> <p>3. The office of the innuendo is more properly confined to a reference to previous matter as bearing upon the meaning of the words, or when the words spoken are apparently innocent and inoffensive but where, nevertheless, by virtue of their connection with the collateral circumstances as averred, they convey a latent and injurious imputation.</p> <p>4. Under the statute in this state (Gen. Stat., p. 2255, Practice act, § 122) the pleader may aver that the words set forth were used in any defamatory sense he may see fit to attribute to them.</p>

<p>1. The Metropolitan Life Insurance Company of the city of New York, a corporation organized under and in accordance with the laws of the State of New York, engaged in life insurance, having complied with the laws of this state, and therefore entitled to carry on its business here, had an office in the city of Newark, in charge of a' local superintendent by the name of Williams. From day to day there were paid to and received by him various sums of money as premiums on life insurance from the holders of policies of said company in this state, which moneys he deposited in his name as superintendent in one of the national banks in the city of Newark, and at the end of each week he transmitted the entire amount of moneys so collected and deposited by his check to the company, to the home office in the city of New York, and that such sums of money so collected, deposited and transmitted by check would average the weekly amount of $4,500, and that no use whatever was made of such money in this state. Held, that such weekly amounts of money were not assessable for yearly taxes in the city of Newark, by the local assessing authorities thereof, as the personal property in this state, either of the local superintendent or of the insurance company.</p> <p>2. This money was merely in transit from the policyholders in this state to the insurance company, a foreign corporation, and its deposit temporarily in this state was nothing more than an act of convenient transmission, and gave to it no quality of permanency as personal property of the corporation in this state, so as to subject it to local taxation.</p>

<p>D., by his will, devised his residuary estate to his son H. By a codicil he afterward authorized his said son to dispose, by his will, of said residuary estate, and then devised and bequeathed the same to such person or persons as his son should designate and appoint by his will as those to whom he desired it to go. H. died before the testator, leaving a will in which, after reciting the power of appointment contained in the codicil to his father’s will, he designated his wife, A., as the person to whom the estate should go. Held, that while the power of appointment could not be executed by H. during the donor’s lifetime, and that therefore his will was not a good execution of it (because he • could not by his will make a valid disposition of property which was wholly and absolutely in the ownership and control of another), yet that the devise contained in the codicil to the testator’s will, to such person or persons as H. should designate in his will, operated to pass the estate and that the will of the latter could be referred to for the purpose of ascertaining the personality of the testator’s devisee.</p>

<p>A conspiracy to extort money from a person who has violated the criminal law, by threatening to have him prosecuted for the infraction unless he pays the moneys demanded, is an indictable offence.</p>

On quo warranto. An information in the nature of a quo warranto was filed by the attorney-general, on the relation of Samuel T. Hawkins, to test the title of the respondent to the office of marshal of the borough of Wilbur. The facts set out in the information are conceived by the relator to show that he, and not the respondent, is entitled to the office.

<p>Where a forfeiture of demised premises has been incurred by the tenant, the landlord cannot enforce it against such portion thereof as he desires to retake into his possession and waive it as to the rest of the premises.</p>

<p>In suits to recover for personal injuries, or for death by wrongful act, a verdict which is grossly excessive will be set aside, without regard to the number of times the case has previously been tried.</p>

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

<p>Where a bridge has been built by the board of chosen freeholders for the purpose of continuing a highway across a stream of water, the approach to such bridge, when built within the lines of the highway, is a part of the highway itself, and does not constitute an additional burden upon the land.</p>

<p>The by-laws of a benevolent society provided that the suicide of a member should invalidate a benefit certificate issued upon his life. Held, that a suit upon such certificate could not be defeated merely by proof that the attending physician of the deceased member, in an affidavit procured from him by the society, had declared that the decedent had died by his. own hand.</p>

<p>A passenger upon a railroad train who has been illegally arrested by the agents of the company for riding beyond the station to which he has paid his fare — the train upon which he was traveling not having stopped at that station — is entitled to compensation from the company for such physical injuries as he may have sustained, and for the injury to his feelings resulting from the indignity to which he has been subjected, but he is not entitled to recover punitive damages.</p>

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

<p>1. The non-joinder of a defendant, in an action ex contractu, can be taken advantage of only by plea in abatement. Lieberman v. Brothers, 26 Vroom 379, followed.</p> <p>2. The validity of a bond given pursuant to the provisions of the thirty-seventh section of the Attachment act (Gen. Stat., p. 104), and the consequent liability of the obligors named therein for a breach of its conditions, does not depend upon the action of the court or judge in setting aside, or refusing to set aside, the lien of the attachment.</p>

<p>A by-law which provides for the expulsion of a member without affording him an opportunity of defending himself against the charges upon which his expulsion is based, is not altogether null and void, but only so to the extent that it deprives such member of a hearing from which he might possibly derive a benefit, and where it-conclusively appears that no such result has followed its enforcement, the existence of such a provision in it will not be held to invalidate the proceedings taken under it.</p>

The writ was sued out by prosecutors, who are citizens and taxpayers of the State of New Jersey, who voted at the special election held on September 28th, 1897, upon the constitutional amendments.

<p>A writ of e&'tiomri was duly served upon the clerk of a municipal body while in session, under circumstances that showed satisfactorily that the members of that body understood its general purport as a judicial mandate. Certain members assaulted the clerk while he was attempting to read the writ, so that he was actually ousted from office and driven from the room, and was thereby prevented from obeying the writ, which was itself lost or destroyed during the disorder. Held, that the members who thus interfered with the clerk in the performance of his duties under the writ, were guilty of a contempt of the court from which the writ had been issued.</p>

<p>A municipal government which, is organized under an act of the legislature, which is subsequently adjudged to be unconstitutional, is a government defacto, and its officers are officers defacto, and its authority must prevail and be respected until the attorney-general interposes by quo warranto, and secures the actual ouster and removal of the incumbents in office.</p>

<p>1. When an act is susceptible of two constructions, that which will validate it must be adopted, and not that which will render it unconstitutional.</p> <p>2. The word “towns,” in the act of April 20th, 1886 (Pamph. L., p. 243), must be accepted in its broad, generic sense, embracing the whole range of bodies corporate less than counties, established for local government. Applying that meaning to the word, the act is general and constitutional.</p> <p>3. The proceedings to construct the sewer having Been commenced under the act of 1886, the contract between the town and the owners of land adjoining the town, made under that act, was not impaired or violated by making the assessment under the act of February 19th, 1895. Gen. Stat., p. 2138. That act required merely an ascertainment of the amount of prospective benefits to be paid in futuro where connections were constructed, and was a change in procedure only, in nowise affecting the substantial rights of the parties.</p> <p>4. Neither the act of 1886 nor the contract between the landowners of lands outside of the town limits exempted them from liability to assessment for benefits conferred upon their lands within the town by so much of the sewer as is within the town.</p> <p>6. After confirmation by the Circuit Court, under the eleventh section of the act of 1886, questions of fact therein adjudicated and decided will not be reviewed on certiorari.</p>

<p>For the refusal of a justice of the peace to grant the defendants in attachment an appeal to the Common Pleas upon presentation of a bond in due form, the remedy is by mandamus and not by certiorari.</p>

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

<p>On certiorari to review the granting of a license to sell ale, &c., by the Monmouth Pleas.</p>

<p>On oertiorari to review the judgment of the Camden Common Pleas.</p>

<p>The grant to a telephone company, under the act of June 20th, 1890 (Gen. Stat., p. 3460), to place its poles in the highway does not constitute the taking of land within the meaning of the act of 1893 (Gen. Stat., p. 1386), and proceedings for condemnation, under the act of 1890, are unaffected by the act of 1893.</p>

<p>On certiorari to review a judgment of a police justice, &c.</p>

<p>1. The word “reconsideration,” occurring in a statute respecting the re-passage of vetoed ordinances, is to be given its ordinary meaning, not the artificial one it has acquired'in parliamentary usage.</p> <p>2. A municipality that may lawfully consent to the formation of a private corporation for certain public purposes, may lawfully condition its consent upon terms protective of such public interests and germane to the subject.</p>

<p>The date of the passage or approval of an act to be repealed is not required by article 4, section 7, paragraph 4 of the constitution to be inserted in the title of the repealing act.</p>

<p>On certiorari in matter of landlord and tenant.</p>

<p>On certiorari.</p>

<p>The act of March 31st, 1897 (Pamph. L., p. 142), is limited by its title to “ the public service of the State of New Jersey.” It has no application to the employment of Union veterans in any other branch of the public service.</p>

<p>On certiorari.</p>

<p>1. The Telegraph Companies act of April 27th, 1888 (Gen. Stat., p. 3459), supersedes the similar acts of March 11th, 1880, and April 1st, 1887.</p> <p>2. The legal duty imposed upon municipal bodies by said act of April 27th, 1888, to designate streets and highways on which a telegraph or telephone line may be constructed, exists only for the construction of such a line through the municipality, and does not arise with respect to the construction of a local system of lines within the municipality.</p>

<p>On certiorari.</p>

<p>On ceHiorari in aid of an action of ejectment.</p>

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

<p>On certiorari.</p>

<p>Under the charter of the city of Hoboken the common council is authorized to appropriate to such municipal purposes as it selects any surplus remaining out of the additional percentage of taxes levied by the assessors beyond the amount which the tax commissioners ordered to be assessed, and there is nothing in the supplement to the Crimes act approved February 7th, 1876 (Gen. Stat., p. 1085), to interfere with such authority.</p>

<p>In the “Act to regulate the price of legal advertising,” approved April 14th, 1891 (Gen. Stat., p. 2325), the word “line” means a row of words, letters or figures extending across a column, without regard to the size of the type in which it is printed.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. The acts of 1894 (Gen. Stat., pp. 3449, 3450, pl. 779, 787), authorizing block-maps and assessment of taxes thereby in certain municipalities, do not work a repeal in those municipalities of the general act of 1891 (Gen. Stat., p. 3344, pl. 291) directing that when the line between two taxing districts divides a farm or lot owned or possessed by the person taxed the same shall be taxed, if occupied, in the taxing district in which the occupant resides. As to assessment of taxes, these acts extend only to property lawfully assessable.</p> <p>2. The normal rule is to tax property where situate, and the claimant of an exception to this rule must clearly establish it.</p> <p>3. What is a “lot,” within the act of 1891 (Gen. Stat., p. 3344, pl. 291), is a question of fact to be determined by all the circumstances of the case. As against an owner, acquiescence in taxation will be held a controlling circumstance in that regard as long as the situation remains unchanged.</p> <p>4. The rule (58) of this court, that “in matters of taxation not more than four prosecutors shall be joined in one writ of certiorari,” is restrictive, not permissive. There must be a common grievance to warrant any joining of prosecutors.</p>

On certiorari. The owners of land fronting on Broadway, between Portia and Main streets, in the borough of South Amboy, by their certiorari in this ease, attack an ordinance of that borough passed June 15th, 1897, as follows: “An ordinance to regulate, regrade, recurb, reconstruct, reflag, regutter, repair and improve the sidewalks and gutters of Broadway, in the borough of South Amboy, from Portia street, in a northwesterly direction, to Main street. “Section 1.

<p>1. If judgment by default for want of a plea be recorded and signed, it will stand until reversed or set aside, and, although premature, will preclude a plea in the action.</p> <p>2. If such a judgment be vacated, on the plaintiff's motion, as improvident, a new judgment cannot lawfully be entered until the defendant shall have been ruled to plead and shall have made default.</p>

<p>An unrestricted covenant against encumbrances, contained in a deed for the conveyance of lands, is broken by the existence of an outstanding term in the lands, and an action for such a breach of the covenant may be maintained notwithstanding the existence of the outstanding term was known to the grantee when he accepted the conveyance.</p>

On error to the Essex Circuit Court. The case was tried in November, 1897, before Judge Child aud a jury, and by the direction of the court the jury was directed to render a verdict in favor of the plaintiff and against the defendant, the stakeholder, for the sum of $500.

Louis Roesel and George Manshande were indicted for the murder of James C. Pitts, early in the evening of the 9th of September, 1897, at Summit, in the county of Union. Both of the accused pleaded not guilty. On the application of the state and of Manshande the court made an order that the accused be tried separately. Exception was taken to this order of the court and error assigned thereon.

, This was an action brought by the Delaware, Lackawanna and Western Railroad Company against the United States Pipe Line Company and Harry W. Breckenridge, to recover damages for a trespass upon land situate in the county of Warren. At the trial the judge denied the defendants’ motion to nonsuit, and at the close of the case directed a verdict in favor of the plaintiff. To these rulings exception was taken, whereupon the defendants sued out their writ of error.

On error to the Hudson County Circuit Court. Tried at the September Term, 1897, before Judge Nevius and a jury. The declaration in this case is in tort.

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

On error to the Supreme Court. The writ of error in this case is presented to review a judgment on a verdict of the jury for $2,500, on a trial at the Middlesex Circuit before Mr. Justice Collins.

<p>1. A writ of error issued to bring into this court for review a judgment previously affirmed by this court against the same plaintiff in error should be quashed.</p> <p>2. Under section 134 of the Criminal Procedure act of 1898, this court, by a writ of error going directly to a Court of Oyer and Terminer, can review only the judgment by which the criminal is condemned to death; an order made after such judgment and merely appointing a day for execution cannot be so reviewed.</p>

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

<p>If plaintiffs, describing themselves as partners trading under a firm name, prove themselves entitled to maintain the action as individuals, the allegation of partnership is immaterial and may be rejected as surplusage.</p>

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

<p>1. A motion to nonsuit upon the ground that the plaintiff’s injury had been caused by the negligence of a fellow-servant should not be granted when the conclusion of fact is one about which reasonable men might honestly differ.</p> <p>2. A defendant who was testifying in his own defence, apparently, was asked upon cross-examination if it were really in his own interest that he was testifying, or whether he was insured against the result of an adverse verdict. Held—</p> <p>1. That the propriety of the question was addressed to the discretion of the trial court.</p> <p>2. That the inquiry under the circumstances was relevant to the party’s attitude as a witness.</p>

<p>Upon proceedings to review assessments the finding of the Supreme Court upon questions of fact is a finality.</p>

<p>A. statute (Gen. Stat., p. 3239, § 126) authorized borough councils, upon public notice to all parities interested, to grant or to deny to a street railroad a location of its tracks conformably to its route, such grant if made to be upon such lawful restrictions as the interest of the public was deemed to require. Upon notice, consent to a location was given upon the restriction (among others) “ that the limit of this consent shall be twenty-five years from the acceptance of this ordinance.” Subsequently, and without notice, a supplement to this ordinance was passed that eliminated the above restriction. Held—</p> <p>1. The municipal act of the “location” of the tracks of a street railroad operated by the trolley system does not involve any private rights.</p> <p>2. Such location is a legislative and not a judicial act.</p> <p>3. Apart from express statutory requirement, notice is not requisite.</p> <p>4. The notice required by the act is satisfied when it has been complied with.</p> <p>5. Whether the action of council was in bad faith is not a judicial question.</p>

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

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

On error to the Supreme Court upon its affirmance of a judgment of the Monmouth Sessions.

<p>1. Upon a motion to nonsuit ou the ground of contributory negligence,, where the alleged negligence must be deduced from facts and. circumstances in evidence, the question is usually one for the jury, and the-motion will be refused unless it is established by the evidence, beyond fair debate, that the plaintiff was negligent and that the negligence directly contributed to the injury complained of.</p> <p>2. A public bridge is a highway, and those traveling upon it as a part of a public road or street, have a right to presume, in the absence of notice- or knowledge to the contrary, that such bridge is clear of unguarded obstructions and dangers.</p> <p>3. It is not negligence per se for a traveler upon a bridge, who is injured by a defect in the floor thereof, to lift his eyes from the path he is traveling to other objects about him that may attract his attention, and thereby fail to observe the defect. Whether he be negligent or not, under the circumstances, in so doing is a question for the jury.</p> <p>4. The plaintiff was riding a bicycle over a public drawbridge in the 'daytime. As she approached the draw she found it off and a carriage in front of her waiting to cross and another carriage coming up behind her. Concluding to dismount, she wheeled to her left to a timber guard dividing the wagonways, one foot square, and alighted on it. In doing so she stepped on the timber guard with one foot, and in her effort to step upon the floor of the bridge with her other foot she stepped into an opening along the timber guard, nine by five inches in dimensions, and was injured. She did not see the opening, but might have seen it if she had looked at the floor where she alighted. She-brought suit against the board of freeholders of the county, which had charge of the bridge, and at the close of plaintiffs’ case, on the trial,. a nonsuit was granted on the ground that the danger was an obvious one and that in her manner of alighting and in selecting a place to alight she was not in the exercise of due care, but was guilty of negligence which directly contributed to her injury. Held, on error, that the nonsuit was wrong and that the question of contributory negligence should have been submitted to the jury.</p>

<p>1. The opinion of an expert witness as to the cause of an accident is incompetent when it is based upon the existence of certain facts and conditions at the time of the accident of which he has no personal knowledge, and lias not heard all the evidence in the case, unless the opinion is elicited by a question entirely hypothetical in form.</p> <p>2. The opinion of a witness that the kind of block signals used on a trolley road are not such as to insure reasonable safety to the employes operating the cars of that road, is incompetent and irrelevant, that conclusion being a question for the jury alone to determine from all the evidence in the case.</p>

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

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

<p>1. In an action against a devisee, brought under “An act for the relief of creditors against heirs and devisees” (Gen. Stat., p. 1679), a defendant confesses assets by devise if, by his plea, he neither admits nor denies them.</p> <p>2. The defendant, who was sued as devisee of M. upon a contract made with M. by the plaintiffs, pleaded only the general issue, and, at the close of the plaintiffs’ case, moved for a nonsuit on the ground that the plaintiffs had failed to prove that the defendant had received land of M. by devise. Held, that there was no failure of proof, since the plea admitted that the defendant had received by devise from M. land sufficient to answer the plaintiffs’ claim.</p> <p>3. An executor who sues on a cause of action accruing after the death of his testator may do so either in his individual or in his representative character.</p> <p>4. The plaintifls, who were partners, and executors of T., brought suit, in their individual capacity, to recover money of the estate loaned by them. The defendant moved for a nonsuit upon the ground that the proof, which was of a debt due to the plaintiffs as executors of T., on a cause of action accruing after the death of the testator, did not support the declaration, which asserted an individual right of action. Held, that there is no incongruity between such a declaration and such proof.</p> <p>5. A witness may use his own memorandum, made at or near the time of the events recorded, either to refresh or to supplement his memory.</p> <p>6. A bookkeeper, who made the entries in a cash-book which he used on the stand as a memorandum, was allowed to read to the jury, from the book, the particulars of a promissory note. Held, that this was not error.</p> <p>7. A promissory note, made by the defendant’s testator to his own order, and unendorsed, was produced by the plaintiffs and offered and received in evidence. The suit was not brought on the note, but for money loaned nearly five years before the date of the note. Held, that to receive the note in evidence was not injurious error. Unendorsed it proved nothing. If it had been endorsed its effect would have been merely cumulative.</p>

In ejectment. Error to the Supreme Court assigned on the refusal of motion to nonsuit. Action of ejectment by executor against the widow to recover possession of the mansion-house. Plaintiff had judgment and defendant brings error. Tried before a justice of the Supreme Court sitting as a jury.

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 353.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 431.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 443.</p>

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

<p>1. In the act approved April 26th, 1894 (Gen. Stat., p. 1102), the words “if any person * * * shall keep a place to which persons may resort * * * for betting upon the event of any horse-race * * * or for gambling in any form,” import the keeping of a place with intent that persons may resort thither for betting, &c.</p> <p>2. The common law form of an indictment for keeping a disorderly house, charging that the defendant permitted persons to be and remain in his house betting on horse-races, does not legally charge a violation of the statute above mentioned.</p> <p>3. A servant charged with participating in the keeping of his master’s disorderly house, may put in evidence representations made to him by his master respecting the nature of the business carried on by the master in the house, by which representations the servant claims he was led to believe that the business was lawful.</p> <p>4’. No state of proof, short of a substantial admission by the defendant of all the facts essential to guilt, will justify the court in refusing to charge the jury in a criminal case that the defendant should not be convicted unless the jury believed that he was guilty beyond a reasonable doubt.</p> <p>5. On error the court cannot legally look into a so-called -transcript of testimony, unless it be embraced in the bill of exceptions or otherwise authenticated by the trial court.</p>

<p>1. In oases certified by Circuit Courts for advice, the Supreme Court deals with questions of law only.</p> <p>2. The right of stoppage in transitu may be exercised at any time before the goods sold have reached the place for delivery to the consignee.</p> <p>3. The plaintiff sold lumber to T. and T. sold it to the defendant, whereupon the plaintiff shipped it, in Ottawa, to the defendant, in New York, on bills of lading naming the defendant as consignee, and sent the bills to T. Held, that T. received the bills for the defendant, and no further transfer of the bills was necessary to enable the defendant, as purchaser, to defeat the plaintiff’s right of stoppage in transitu for the insolvency of T.</p> <p>4. The plaintiff sold lumber to T. and T. sold it to the defendant for a price which the defendant credited on a pre-existing debt due to him from T. Held, that the defendant was a purchaser for value so far as was necessary to entitle him to defeat the plaintiff’s right to stop the lumber in transitu for the insolvency of T.</p> <p>5. The plaintiff sold lumber to T. on credit and T. sold it to the defendant. Held, that mere knowledge on the part of the defendant that T. had not paid for the lumber was not sufficient to defeat the defendant’s claim as a bona fide purchaser against the plaintiff’s right of stoppage in transitu for T.’s insolvency.</p>

<p>In a declaration by a common informer, the allegation that R. F. lost the sum of $660 on the running of a foot-race between two men, that he paid the said sum of money, and that the said sum of money was received by the defendant as the winner thereof as a bet or wager, does not show a case entitling the plaintiff to sue under the sixth section of “An act to prevent gaming.” Gen. Stat., p. 1606.</p>

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

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

<p>'The defendant’s contract bound him to deliver to the plaintiff a conveyance of lands within a reasonable time after February 27th, 1893, the price having been previously paid. Through his neglect he had not done so up to July, 1897, notwithstanding the frequent demands of the plaintiff, whereupon the plaintiff gave notice that he rescinded the contract and required repayment of the price. Held, that a verdict sustaining the right of rescission should not be disturbed.</p>

<p>1. At a township election fourteen ballots were cast, on which a person had written his own name as a candidate, in a blank space left under the words “ Chosen Freeholder,” as printed on the ballots. Held, that the question whether these ballots were invalid as marked ballots was one of fact for the Circuit Court, in proceedings under section 100 of the Election law, and that the decision of that court thereon could not be reviewed by this court on appeal under section 113.</p> <p>2. In a petition to the Circuit Court contesting an election on the ground that legal ballots had been rejected by the election officers, the reason for such rejection need not be stated.</p> <p>3. In an affidavit verifying such a petition, the circumstances of the case need not be set forth.</p>

<p>The act of May 18th, 1894 (Gen. Stat., p. 581), which empowers the common council or other governing body in cities having a population not less than fifty-five thousand nor more than one hundred thousand, to appoint certain municipal ofiicers for a term of two years, held valid, following the decision in Owens v. Fury, 26 Vroom 1.</p>

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

<p>1. Under the decision in Oler v. Ridgeway, 26 Vroom 10, that the act of March- 10th, 1892 (Gen. Stat., p. 3096), is constitutional, the supplement to that act, passed March 29th, 1897 (Pamph. L., p. 120), is also constitutional.</p> <p>2. According to that supplement, a secretary to the commission of public - instruction, appointed for a term previously fixed by the commission, cannot be removed by the commission at will before his term ends.</p>

<p>1. The bar created by a decree made upon proceedings to limit creditors of deceased persons, applies to debts and demands alleged by way of set-off.</p> <p>2. The remedies given by section 66 of the Orphans’ Court act and by the supplement to that act, approved May 9th, 1889, can be enforced at law only after the estate of the decedent has been settled before the Orphans’ Court, the Ordinary or the Court of Chancery.</p>

<p>I. Under the County Park act (Pamph. L. 1895, p. 169; Gen. Stat., p. 2618), when a single sum has been awarded by commissioners to all persons interested in the land condemned, one of those persons may appeal to the Circuit Court in respect to his separate interest.</p> <p>•2. On such an appeal being taken, the court should ascertain to what portion of the sum awarded by the commissioners the appellant is ' entitled, in order that the costs of the appeal may be legally adjudged, and that the shares of those not appealing fnay be paid to them.</p>

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

On error to the Circuit Court of the county of Middlesex. On complaint of the commissioner of banking and insurance, an action was brought in the Circuit Court of the county of Middlesex, in the name of the state, against John P. Hickman, for negotiating in the city of New Brunswick, as agent for the Mercantile Mutual Eire Insurance Company, of Philadelphia, a corporation of the State of Pennsylvania, a contract of insurance of certain property in New Brunswick against loss…

On error to the Essex Circuit. The plaintiff, a child of eight years, picked up from the •sidewalk of a public street the end of a broken wire that trailed from one of the poles on which it should have hung suspended, and sustained severe injury through electric shock. The wire was an electric light wire, under the control of the defendant.

<p>Oil error to the Essex Sessions.</p>

<p>On rule to show cause why a new trial should be granted.</p>

<p>In a suit against an administrator, an account, containing items of money lent to or paid for the decedent, made up from the plaintiff’s own memoranda, is not legally evidential in the plaintiff’s behalf.</p>

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

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

Ou error to the Hudson Circuit. In a suit against Bandholz, Judge secured verdict and judgment for $470 as the balance due him for work and materials furnished under contract with Bandholz, notwithstanding proof that Bandholz had paid, directly and for materials for which he had become responsible, more than the contract price. The present writ of error reviews exceptions taken at -the trial.

<p>A declaration in trover alleged the following facts, viz : That chattels were mortgaged to a trustee in possession who lost, and defendants found, ■them; that the Court of Chancery discharged such trustee and appointed the plaintiff instead and directed assignment to him of the mortgage, which was assigned accordingly, and then charged that, before the plaintiff succeeded to the trust, the defendants converted and disposed of the chattels to their own use. Held, on demurrer, that the action could not be maintained.</p>

<p>The act of April 9th, 1896 (Pamph. L., p. 236), repealing divers acts of . 1895, which attempted to abolish certain courts, and declaring such courts to have existed and still to exist as if such acts had not been passed, has no effect upon the act of March 26th, 1896 (Pamph. L., p. 149), reducing the number of judges of such courts.</p>

<p>Oil demurrer to the declaration.</p>

<p>1. The single issue presented in the charge of the court was whether a master had exercised reasonable care in inspecting the machine on . which plaintiff was working. Plaintiff was employed to run a facing and tubing machine, and he testified that while oiling the machine one of the bolts which belonged to the shifter or guide was out, which caused the loosening of the shifter, and its shaking and moving back and forth and the shifting of the belt from the tight pulley to the other pulley which resulted in his injury; that after he was hurt he noticed for the first time that there was only one bolt in it, when there should have been two. Defendant’s evidence showed that the two bolts were in the guide in proper place and condition at the time and after the accident; that they had never been out or loose, and could not, as constructed and braced, get out of the guide where they belonged, and that from time to time the machine had been properly and practically inspected by four competent and skilled machinists. Held, that a verdict for the plaintiff should be set aside as the result of mistake or prejudice.</p> <p>2. If the plaintiff’s statement be taken as true, the dropping out or loss of the bolt, under the circumstances, and in view of the inspection of the machine, must have been instantaneous, and, therefore, an unavoidable accident, the risk of which he assumed in his employment.</p>

<p>1. The plaintiffs were manufacturers of a mechanical boiler-cleaning appliance, a patented article, designed to be attached to boilers for the purpose of cleaning them. They contracted by parol with the defendants to furnish two of these appliances at the price of $150 each. The appliances were affixed to the defendants’ boilers, on trial, upon terms that the sale was to be absolute upon certain conditions, either that they were to accomplish a certain purpose or that the defendants were at liberty to take the appliances or not as they saw fit. Defendants subsequently refused to complete the purchase. In an action for the price — Held—</p> <p>L That the transaction was a contract for the sale of goods, wares and merchandise, within the sixth section of the statute of frauds (Gen. Stat., p. 1603), and</p> <p>2. That affixing the appliances to the defendants’ boilers, with their consent, to test their capacity, was not such a delivery and acceptance as would validate the contract under the statute, although on the test it appeared that the articles were entirely satisfactory.</p> <p>2. The statute of frauds applies as well to an agreement for the manufacture and delivery of an article to be made in the course of the general business in which the vendor is engaged as to a contract for the sale of a chattel finished and on hand.</p> <p>3. Consequently, where an order is given to a manufacturer for an article not at the time in solido, but which is to be manufactured by the vendor in the general course of his business, the transaction is in substance and effect a contract of sale within the statute, and not an agreement for work and labor and materials.</p> <p>4. Where the contract is sought to be validated on the ground of the acceptance and actual receipt of part of the goods by the vendee, the buyer must accept and actually receive part of the goods, and the contract will not be good unless he does both.</p> <p>5. Whether the buyer’s refusal to take the goods be reasonable or not is immaterial. The question is not whether he ought to accept, but whether he has accepted them.</p> <p>6. Placing the property in charge of the vendee, with his consent, for the purpose of testing it, with a view to enable him to decide whether or not he would buy, is not such an acceptance as will comply with the statute, nor will an expression of satisfaction with the result of the experiment by the vendee after the trial amount to an acceptance. Testimony to that effect would show that the purchaser approved of the quality of the goods, but is inadequate to prove an acceptance by him.</p> <p>7. To satisfy the statute there must be a delivery of part of the goods by the vendor, with the intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with the intention of taking possession of them as owner, evinced by some act or conduct which would be justified if he was owner and not otherwise.</p>

<p>The prosecutor was incorporated as a railroad company, and the map showing the proposed route of its railroad filed in the office of the secretary of state indicated the route of the railroad through public streets, the title to the fee in which being in Mrs. S. Authority to use the streets for that purpose was granted by a city ordinance. The acquisition of title by the railroad company and the construction of its railroad were enjoined in certiorari proceedings and also by injunction of the Court of Chancery. Held, that the company was liable to taxation upon the property of the company, consisting of embankments, tracks, &c., which were works constructed for railroad purposes, but that under the peculiar situation in which the affairs of the company were placed it was not, while its proceedings were stayed, taxable on the lands as lands, the title of which was in another.</p>

On certiorari. This writ brings up the proceedings for vacating Franklin avenue, including the return of surveyors relaying a new road to be known as Franklin avenue.

<p>1. In virtue of section 41 of the Practice act (Gen. Stat., p. 2540), which provides that courts of law shall always be open, except on Sunday, for the return of all writs and processes in civil actions, &c, the return of writs of capias in vacation is authorized.</p> <p>2. Affidavits setting out as plaintiff’s cause of action the seduction of his daughter, who was under the age of sixteen, are sufficient to warrant an order of arrest without disclosing any special cause for such order. In Benson v. Bennett, 1 Dutcher 166, 172, the practice in this, respect was established in this court'.</p> <p>3. The common law rule requiring fifteen days between the test and return of the writ grew out of considerations long since obsolete. It was superseded by our statutory provisions regulating the service and return of writs. Even under the common law practice the objection that less than fifteen days intervened between the test of a writ of capias and the day of its return was waived where the defendant appeared and filed special bail.</p> <p>4. If there be infirmities in the writ of capias or the order for bail, the proper practice is to apply to the court or a judge to allow further time for filing special bail, pursuant to section 72 of the Practice act, which may be granted on terms either that special bail may be filed without waiver of objections to the preliminary proceedings or allowing further time to file special bail.</p>

<p>An act entitled “An act authorizing the cities of this state to appropriate moneys for the celebration of the Fourth of July, Washington’s Birthday and Decoration Day,” approved March 10th, 1880, does not apply to Morristown, which is incorporated as a “ town ” by an act of the legislature passed in 1865.</p>

<p>On certiorari.</p>

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

<p>Where there are several defendants, all of whom except one reside in this state, a service of process upon such non-resident, who is temporarily in this state, will not entitle the plaintiff under section 230 of our Practice act, to lay the venue in the county where the non-resident is served with summons.</p>

<p>1. A first mortgagee of chattels has no right until his mortgage debt is due to take from the mortgagor the possession of the chattels mortgaged, unless an attempt is made to remove the goods from the county.</p> <p>2. A second mortgagee, whose mortgage debt is past due, may take possession of the goods and sell the right, title and interest of the mortgagor in them. The purchaser under such sale will stand in the place of the mortgagor, and hold title to them subject to the prior mortgage, and to the exercise by the prior mortgagee of all the rights he would have. had as against the mortgagor to take and sell the property when his mortgage debt matures.</p>

<p>1. For the shares of capital stock of a national bank, owned by a nonresident, the bank must be assessed for taxes in the taxing district where the bank is located, in accordance with the federal and state statutes.</p> <p>2. The assessment in this case was erroneously made in East Orange, and proceedings must therefore be taken, under the act of March 23d, 1881, to make a proper assessment in the city of Newark, where the bank is located.</p>

<p>A contract which a party is induced by a false representation to sign without reading, and without a knowledge of its contents, is void, although he might have discovered the fraud by reading it.</p>

<p>On certiorari.</p>

<p>A contract was awarded to the prosecutor upon condition that if a bond were not furnished by a certain day the contract would be re-awarded. At the time fixed, the bond was not forthcoming- because of the pendency of a certiorari. The contract was thereupon awarded to the defendant corporation. Held—</p> <p>1. That as the prosecutor stands upon the award, it must acquiesce in the condition.</p> <p>2. That as the condition was without qualification, the prosecutor’s reasons for not fulfilling it are immaterial.</p> <p>3. That the prosecutor was not entitled to a notice of the doing of that to which it had already agreed.</p>

<p>Ou rule to show cause under section 44 of the Corporation act. Pamph. L. 1896, p. 291.</p>

<p>On rule to show cause why a peremptory or alternative writ of mandamus should not issue.</p>

<p>On certiorari.</p>

<p>On application for rule to set aside interlocutory judgment, and rule for writ of inquiry for assessment of damages.</p>

<p>On certiorari.</p>

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

<p>1. An indictment, although the defendant is misnamed therein, is a valid indictment under article 5 of the amended constitution of this state, which provides that “no person shall he held to answer for a criminal offence unless on presentment or indictment of the grand jury.”</p> <p>2. The practice upon a misnomer of the defendant in an indictment is established and regulated by section 41 of the act entitled “An act regulating- proceedings in criminal cases.” Gen. Stat., p. 1128. The indictment shall not he abated by such misnomer, hut amended according to the truth, by affidavit or otherwise, upon an allegation or plea of misnomer, and to such amended indictment the defendant must plead as if there had been no allegation of misnomer.</p> <p>8. On habeas corpus, where it appears by the return and the facts that the person indicted is in custody, upon a writ of capias issued upon the indictment, and that he is the person as defendant actually indicted, although misnamed in the indictment, and his application is for a discharge merely because of such misnomer, the matter will he heard as if a plea or allegation of misnomer had been made under the statute in the court in which the indictment has been presented, and a motion to amend according to the truth of such plea or allegation, and his discharge will be refused.</p>

<p>In the city of Trenton, by reason of the existence of a District Court, the Courts for the Trial of Small Causes have no jurisdiction when the matter in dispute exceeds the sum of §100, such jurisdiction being excluded by the proviso of the act entitled “An act to increase the jurisdiction of justices of the peace,” approved March 12th, 1879. Gen. Stat., v. 1897.</p>

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

<p>On application for rule to show cause why the verdict against the defendant should not be set aside.</p>

<p>An action will not lie against the heirs of a deceased devisee to recover debts or obligations incurred by the devisor.</p>

<p>On certiorari.</p>

<p>1. Where a license to sell intoxicating liquors has been granted by a municipal body contrary to law, such action may, in the discretion of this court, be reviewed on certiorari, at the instance of a citizen and taxpayer of such municipality.</p> <p>2. The refusal to grant such a license by a municipal body whose licensing power is subject to the same restrictions and provisions as are imposed by statute upon the like power when exercised by the courts of common pleas of this state is final, and subsequent reconsideration of such action, resulting in the granting of the license, is contrary to law and void.</p>

<p>By an act entitled “An act authorizing any town, township or borough, or part thereof, containing a population exceeding five thousand inhabitants, to be incorporated as a city after a vote of the people and providing for the government and powers of such cities,” approved March 22d, 1895 (Pamph. L., p. 506), it is provided that the inhabitants of any “ town or borough, or of any township or part thereof,” which had by the United States census of 1890, or which may have by any state or national census, a population exceeding five thousand, may become a body corporate by name ‘ the mayor and city council of-’ ” whenever at an election prescribed it shall be so decided by a majority of the voters, to which city none of the provisions of any general or special laws relative to cities in this state shall apply, nor shall any such act thereafter apply unless the same shall be a supplement to the act in question or be made applicable to cities incorporated under it, is repugnant to the provisions of the constitution which prohibit the enactment of private, local or special laws to regulate the internal affair of towns and counties, in that</p> <p>1. The classification it adopts does not in any degree justify the restriction of the powers and forms of government given to the cities it creates, and</p> <p>2. It does not exhibit a substantial distinction, with reference to those powers and that form of government, between such cities and other cities of equal population and of similar location and needs.</p>

<p>The by-laws of a beneficial association provided that the amount of the mortuary tax paid by the other members in every case of death of an active member, shall be remitted to that one of the heirs who shall be adjudged to have the greatest right thereto. Held, that an adjudication of the society as to who had the greatest right was necessary to enable an heir to maintain an action therefor.</p>

<p>1. A servant has implied authority to do what is necessary for the protection of his master’s property which is entrusted to him or for fulfilling the duty which he has to perform for the master.</p> <p>2. A brakeman in the employ of a railroad company and one of a crew in charge of a freight train of the company has implied authority to eject a trespasser from the train.</p> <p>3. The inference of implied authority arising from the brakeman’s employment, from his custody of the company’s property and from the duty owed to the master in respect to the train, will not be overcome by proof that the instructions of the company to its servants expressly required freight conductors not to permit unauthorized persons to ride upon freight trains.</p> <p>4. The company will be liable for an injury to a person who was a trespasser on its freight train, occasioned by the use of excessive or inappropriate force by a brakeman in ejecting him from the train.</p>

<p>A writ of error will not lie to an order of the Supreme Court denying a motion to quash an indictment removed into it by certiorari from the Sessions and remitting the indictment to the Sessions, to be proceeded in according to law before final judgment.</p>

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

<p>Under an indictment presented prior to the taking effect of chapters 23T and 238 of the laws of 1898, the review upon error will include the particulars contemplated in the one hundred and .sixty-third chapter of the laws of 1894, and among them inquiry whether the plaintiff in error has suffered manifest wrong and injury upon the evidence adduced upon the trial.</p>

<p>In replevin. 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 ante p. 156.</p>

<p>. On error to the Supreme Court. For opinion of Supreme Court, see 32 Vroom 177.</p>

<p>The plaintiff picked up a wire that was lying in a public highway and was injured by an electric current. He brought suit against the telephone company whose wire it was and against the trolley company whose current, it was contended, did the harm. Held—</p> <p>. 1. That the question whether the linemen of the telephone company had been reasonably diligent in discovering the fallen wire and in preventing probable injury was properly left to the jury; also, that</p> <p>2. Whether the failure of the trolley company to use guard-wires was negligence by which the plaintiff was injured was for the jury.</p> <p>3. Testimony that a witness had certain uses of his hand after an accident somewhat similar to the plaintiff’s was properly excluded.</p> <p>4. If the plaintiff used reasonable care in the selection of a reputable physician to cure his injury he cannot be kept out of damages because with a better physician he would have had better results.</p>

<p>1. Whilst the endorsement of a party on the back of a negotiable promissory note, prior to that of the payee, standing alone, does not express or imply any contract upon the part of the endorser because of such signature, yet the note, upon proof of its execution and endorsement, is admissible in evidence as the basis of proof of the real engagement between the parties thereto.</p> <p>2. Whether any liability at all arises against a party so signing such note on the back thereof, in connection with extrinsic proof of the intention of the party so signing, or if liability be found whether it be that of maker, surety, guarantor or endorser, where the facts are in dispute or where there is evidence tending to establish more than one conclusion in respect thereto, or where the facts are not in dispute yet different conclusions can be reasonably and legitimately reached, are questions which, under proper instructions by the court, must be left to the jury to determine.</p> <p>3. Where there is evidence tending to establish that the defendant, so signing such note on the back thereof, intended to become the maker thereof or a surety thei'eon, and where there is also evidence tending to establish that he only intended to become a second endorser, the question in dispute of whether the contract was only that of a second endorser or that of a maker or surety must be determined by the jury. The only question which the trial court can determine, upon a motion to direct a verdict for the defendant, is whether there is any evidence to go to the jury to support a verdict for the plaintiff The credibility of the evidence, the meaning and force thereof and its sufficiency, are questions for the jury, and upon error their determination will not be interfered with.</p>

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

<p>In a suit brought against a street railroad company by a passenger for injuries caused by the derailment of the car, proof of the happening of the accident is sufficient to charge the company with negligence and to place upon it the burden of showing that the injuries were not received through any fault on its part.</p>

<p>1. The rule of duty, for a master to use reasonable care that the place of working of his servants shall be kept safe, is not fully applicable in a case where the work itself involves the place of working. In such a case the duty extends only to the use of reasonable care to discover and give notice of latent danger. The case of Van Steenburgh v. Thornton, 29 Vroom 160, explained and distinguished.</p> <p>2. The rule that a master is not liable for injury resulting to a servant from the negligence of fellow-servants in the same common employment, if such servants are selected with reasonable care, is applicable to the construction, under one foreman, of a road with a brick sewer therein. In such a case the bricklayers who build the sewer are in a common employment with the laborers who excavate and sheathe the trench and with the foreman who directs the whole work.</p>

<p>One passing along the sidewalk of a public street must use such care and circumspection as the circumstances require, and it is error to instruct a jury that ordinary care to avoid danger need only be used if the danger is known or seen.</p>

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

<p>The driver of a vehicle, upon a road used by the public at large, which, crosses the track of an electric railway, must exercise reasonable care to avoid collision, and the same duty rests upon the motorman of a trolley car in approaching the crossing of such a road, whether the crossing is in the country or in a town; and in case of accident, the question whether either or both of said parties failed in such duty is one to be determined by the jury, when the proofs on the subject of negligence leave that question in doubt. Neither party at such a crossing has a paramount right of way.</p>

<p>1. When a demise of lands is made for the term of one year, with the privilege of four more years from a fixed date, the lessee has the option to extend the term for the additional period of four years, if he shall so elect, but not for a shorter period.</p> <p>2. Such election may be made by the tenant, in lieu of other notice to the landlord, by holding over at the end of the first year and paying rent, and, when so exercised, such election will entitle and bind the lessee, for the whole of such additional term, without any express notice of his desire for the further term.</p> <p>3. A notice given to the landlord by the lessee under such a demise, just before the expiration of the first year, that he will remain on the farm for the succeeding year, and work the same according to the lease, is not such an election as will extend the term, but the landlord may treat the notice as an election not to extend the term according to the lease, and may proceed at the end of the year to terminate the tenancy.</p> <p>4. Where the lessee himself, under such a demise, fails to make any election on his own part to extend the term, but such a notice as the one last named is given to the landlord, by a substituted tenant of the lessee who entered under the lease and'performed the covenants toward the lessor, without any apparent interference or control on the part of the lessee, such notice will operate in the manner before stated as fully as if given by the lessee himself.</p> <p>5. Where a notice was given to the landlord of the character, and under the circumstances above recited, and thereupon the landlord broke and entered the dwelling-house in the temporary absence of the tenant and his family, and removed the tenant’s goods into the public highway, the charge of the judge that the landlord and those with him had a right to take possession and remove the goods, at the time they did, provided they did so without committing a breach of the peace, and that their only liability in damages was for any unnecessary injury done to plaintiff’s property in the removal, was sustained.</p> <p>6. It was also held that the charge of the judge to the effect that there could be no recovery for injury to the goods by rain, was not erroneous in view of the fact appearing that plaintiff had a reasonable opportunity to place his goods under shelter before the rain began.</p>

<p>1. Where a minor servant is employed at dangerous work, the risks and hazards of which are not, by reason of his youth and inexperience, so obvious that he can fully appreciate them, it is the duty of the master to explain to such servant the dangers of the service, and to instruct him how to avoid them.</p> <p>2. When a duty thus devolves upon the master to explain to his minor servant the hazards of the service, and to instruct- him how to avoid them, such duty cannot he delegated, and where the master has entrusted that duty to a foreman, he cannot escape the responsibility of failure to perform it, on the ground that such foreman was a Yellow-servant.</p> <p>3. Where the master, under such circumstances, neglects such duty to instruct his minor servant and to warn him of the dangers of the service, or gives him improper instructions, the master will be responsible for an injury resulting from his neglect.</p> <p>4. Where the master is required, by his duty, to thus instruct his minor servant, and warn him against danger, he must put his warning in such plain language as to be sure that the young servant understands and appreciates the danger.</p> <p>5. Under the circumstances of this case, the refusal of the trial judge to nonsuit the plaintiff, or to direct a verdict for the defendants, was sustained, and the questions raised by the evidence were held to have been properly submitted to the jury.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 484.</p>

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see 32 Vroom 349.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 96.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 308.</p>