Volume 64 — New Jersey Law Reports

<p>The act entitled “Supplement to an act entitled ‘An act respecting the prerogative court and the power and authority of the ordinary,’ approved April 16th, 1846,” which supplement was approved April 18th, 1891 (Gen. Stat., p. 1032), has not repealed or modified the provisions of the act entitled “A supplement to the act entitled ‘An act fixing compensation of certain public officers of the state,’ approved March 10th, 1876,” which supplement was approved March 10th, 1879 (Gen. Stat., p. 2960), and the further supplement to the same act, approved February 16th, 1881 (Gen. Stat., p. 2961), in respect to the compensation of the register of the Prerogative Court, and the fees which the register receives under the first-mentioned act are not received for his own use, but for the benefit of the state.</p>

<p>1. The “Act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default” (Gen. Slat, p. 1188), limits the damages to compensation for the deprivation of a reasonable expectation of pecuniary advantage from the continuance of the life of the deceased person.</p> <p>2. The fact that three verdicts have resulted in favor of the plaintiff for the same amount, will not prevent the court from setting aside the last verdict, where it is plainly indicated that it is the result of ignorance, passion or corruption, or is irreconcilable with the evidence.</p> <p>3. Looking at the liability of a father for the support, maintenance and education of a child during minority, and considering what pecuniary benefit the father would receive from the son’s earnings during or after minority, a verdict of §5,000 for the death of a boy four years old far exceeds any possible amount of such pecuniary benefit.</p>

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

On demurrer. The declaration in this case contains a special count and a-common count. The special count sets out plaintiff’s election as one of the commissioners of streets and sewers under the provisions of the act entitled “An act appointing commissioners of streets and sewers in the city of New Brunswick,” approved March 23d, 1871 (Pamph. L., p. 795), for the term of five years, viz., from May 1st, 1881, to May 1st, 1886, and his service in such office during that term.

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

This action is upon contract. Its purpose is the recovery •of damages alleged to have been suffered by plaintiff because it made a loan on the security of a mortgage on real estate upon the faith of a certificate of defendant that it was free from prior encumbrances, which certificate was untrue, there being, in fact, a prior recorded encumbrance, the foreclosure ■of which caused the loss of plaintiff’s loan.

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

<p>1. The Massachusetts Supreme Court having held that credit system insurance in that state is unlawful and within the prohibition of the statute law of the state, that must be accepted by the courts of this state as the correct exposition of the law.</p> <p>2. The laws of another state are facts to be proven, and a mistake in regard to such law is a mistake of fact.</p> <p>3. The general rule is that if a party enter into an absolute contract without any qualification or exception, he must abide by it and perform it or pay the damages.</p> <p>4. Where a contract is made to do an act in another state which is illegal and punishable there, no action will lie by either party for a breach of such contract, both parties having entered into it in ignorance of the law of such state.</p> <p>5. If the plaintiff did not know of the existence of the Massachusetts law, and the defendant company did have knowledge of it at the time the contract was executed, the plaintiff may recover such damages as he has sustained by the fraud of the defendant in inducing him to enter into the contract.</p>

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

<p>A license fee of §2 required of milk venders by an ordinance of the board of health of Hoboken is valid. It is not for the purposes of revenue, but is a reasonable compensation for the expense of issuing license and making the necessary inspection of milk.</p>

<p>Under our Practice act the Circuit Court is required to settle all disputed facts before it can send a case to this court for its advisory opinion.</p>

<p>1. Under the provision of the charter of'Atlantic City, authorizing the city council, when assembled from time to time, to elect and appoint a street supervisor, the city council had power to remove an incumbent and appoint his successor at their pleasure. An ordinance passed in 1893, making the term of such officer one year, cannot deprive the common council of the right to exercise the power expressly given by the charter of the city.</p> <p>The case of Bradshaw v. Camden, 10 Vroom 416, distinguished.</p>

<p>1. The twelfth section of the Werts law (Gen. Stat., p. 1813, pl. 142) is not inconsistent with section 66 of the act of 1898 (Pamph. L., p. 812) and is not thereby repealed.</p> <p>2. Where an indictment alleges an illegal sale of liquor to have been made in one municipality, proof that the sale was made in another municipality will not justify a conviction.</p>

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

On demurrer. To a declaration which was as follows, a demurrer was interposed and the subjoined causes specified : “New Jersey Supreme Court of the sixteenth day of March, A. d. eighteen hundred and ninety-nine. “Warren County, ss. “The Delaware, Lackawanna and Western Railroad Company, the defendant in this suit, was summoned to answer unto Huldah A. Baker, the plaintiff therein, of an action in contract, and thereupon the said plaintiff, by Joseph M. Rose-berry, her…

On rule for a mandamus. The rule required the board of education of the city of Atlantic City to meet together and by resolution order, direct and instruct the teachers of the Indiana avenue school to receive into that school the son of the relator, who had been in attendance there prior to the establishment of a school nearer to relator’s place of residence.

<p>At an election for village trustee four of the ballots counted for Ira A. Kip, Jr., read respectively, “Ira A. Kipp,” “I. Kip, Jr.,” “Ira A. Kip,” “Kipp”—Held, that these ballots were illegally counted for Ira A. Kip, Jr.; also that the Circuit Court, upon a recount of the ballots, was right in refusing to admit proof that no other person by the name of Kip was a candidate at the election or resided within the voting district.</p>

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

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

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

<p>1. In an action, in which the declaration refers to an ordinance, as annexed thereto, the ordinance becomes a part of the declaration as fully as if it was accurately stated therein.</p> <p>2. When the action is by the city against a street railway company to recover a stipulated sum for “ each passenger car” run on the railway, in accordance with the ordinance which provided that in consideration of the grant or authority to lay out and construct such railway, and to-run cars thereon, a certain sum should be paid for “each passenger-car,” the declaration in such action must conform to the ordinance, and the averment should be of the liability of the railway company for the stipulated fee for “each passenger car.” The averment of liability for “ each ” car run on said road is not sufficient. Where the action is upon an ordinance or statute, the defendant must in the declaration be brought within the terms of such ordinance or statute.</p> <p>3. Where the fees for the running of cars are by the city imposed by the-ordinance only upon the railway company named in the ordinance, an action cannot be maintained by the city against the lessee of such railway for such fees, unless there be in the lease some agreement, condition or covenant in reference to such ordinance, made for the-benefit of the city, and which enures to the benefit of the city, and the declaration in such an action is not sufficient without an averment of such agreement, condition or covenant therein, as no privity of contract or obligation between the city and the defendant in such case arises by the ordinance itself.</p> <p>4. A city under the power merely “to regulate the streets thereof, and to prescribe the manner in which corporations shall exercise any privilege granted them in the use of any street,” cannot enact an ordinance imposing license fees for revenue, upon a railway in the use of the streets. The power under such authority is one of police regulation merely, and the fees imposed must be reasonable in view of the accomplishment and fulfillment of such regulation. Under such a power the right of taxation for revenue is not conferred.</p> <p>5. Under the act of 1885 (Pamph. L., p. 317) the power is conferred to- . license by ordinance the running of cars in the streets of cities, and that the fees for such licenses may be imposed for revenue. The ordinance enacted under this statute must provide for such license in express terms, and that the fees for such license are imposed for the-purposes of revenue.</p>

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

<p>1. The act entitled “An act respecting the election and terms of the clerk and collector or receiver of taxes in certain towns, boroughs and townships,” approved April 14th, 1891 (Pampk. L., p. 417), is unconstitutional. It is special and not general; it does not embrace the entire class of objects to which the legislation is directed.</p> <p>2. The act is unconstitutional also because it contravenes paragraph 4, section 7 of the constitution of this state, “ that every law shall embrace but one object, and that shall be expressed in the title.” The title is deceptive in that it imports a regulation of “ certain towns, boroughs and townships.”</p> <p>3. The town clerk of the town of Guttenberg is elected for only one year, or for the term of office of the couneilmen, in whom the power to appoint such clerk is reposed, in accordance with the provisions of the act “An act to incorporate the town of Guttenberg.” Pampk. L. 1859, p. 199.</p>

<p>1. A plea of autrefois acquit at common law must be specially pleaded in writing, and must set out the former record of acquittal, also the identity of the offence and person by proper averments.</p> <p>2. Under section 54 of the act entitled “An act regulating proceedings-in criminal cases” (Gen. Siat., p. 1119), and section 45 of the revision of the same act (Pamph. L. 1898, pp. 866, 882), the plea must still be in writing, but the averments of such plea need only be that the defendant has been lawfully acquitted of the offence charged in the indictment. The averments of the plea need not he any more specific-than . required by the statute.</p> <p>3. The proper practice is for the state-by replication to traverse the averments of the plea of autrefois acquit when in form provided by the statute, and conclude to the country, and if this he not done the-traverse or similiter will be assumed, and the issue as made by the plea tried and determined.</p> <p>4. The determination of the issue made by or joined upon such a plea must be determined by a jury, under the rulings of the court as to the admissibility of evidence and instructions to the jury upon matters of law.</p> <p>5. The burden of proof is upon the defendant to support such plea by a preponderance of proof.</p> <p>6. The judgment upon such plea upon the finding of the jury, if in favor of the defendant, is that he he dismissed and discharged of the premises contained in the indictment, and that he go without day; if the finding of the jury be against the defendant, then the judgment is-answer over or plead anew generally to the indictment.</p> <p>7. If in a plea of autrefois acquit, if the requisites of the statute he well-pleaded—that is, that the defendant has been lawfully acquitted of the same offence charged in the indictment, and a demurrer by the state he interposed to such plea—then the plea stands admitted, and the judgment by the court must be in favor of the defendant, that he be-discharged of the premises contained in the indictment and that he go without day.</p>

<p>On rule to show cause taken by the defendant.</p>

<p>1. When an action is brought upon a lost writing, on the trial thereof the question whether the proof of loss, and diligent search for such lost writing, is sufficient to admit secondary evidence of the contents, is for the trial court to determine, and if the loss be proved, and if reasonable means have been taken for discovery, to the satisfaction of the court, then secondary evidence of the contents becomes admissible.</p> <p>2. A letter written and mailed by the owner of real estate, to an agent, and received, is sufficient authority in writing to maintain recovery thereon for the commission for a sale or exchange effected by such agent, if the letter contains the authority to such agent to make the sale or exchange, and the rate of commission therein fixed pursuant to the tenth section of an act entitled “An act for the prevention cff frauds and perjuries.” Qen. Stat.,p. 1602.</p> <p>3. Where there is a dispute in the evidence relating to that subject, or from the evidence an inference or conclusion in either direction can be drawn, the question of whether any such letter was ever written, mailed and received, or, in other words, whether such authority to the agent was ever in existence, is one for the jury, so, too, is the question for the jury, where under all the evidence and circumstances different conclusions can be drawn, whether the agent was instrumental in making the sale and exchange.</p>

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

This is a controversy over the taxation of certain property in Jersey City. The property in question consists of elevator pier No. 1, and an elevator building thereon, extending into tide-rwater at Harsimus Cove, on the Hudson river, and situate adjacent to the terminus of the Erie railroad, at Pavonia Ferry, on the Hudson.

<p>1. By the act of 1874, entitled “An act to authorize any city of this state to enter into contracts with railroad companies whose roads'enter their corporate limits, whereby said companies may relocate, change or elevate their railroads, and when necessary for that purpose, to vacate, change the grade of or alter the lines of any streets or highways therein,” it was enaeted that the proper municipal authorities of any city should be authorized and empowered to enter into such contracts with any railroads whose roads enter their cities, respectively, &c. Held, that this act, by its title and in the body of the act, was restricted to contracts with railroads whose roads enter their corporate limits.</p> <p>2. By the act of 1893 the first section of the act of 1874 was amended, the title being retained. The body of that act enlarged the powers conferred by the act of 1874 and authorized municipal authorities to enter into such contracts with any railroad company whose road may enter or lie within their cities. Held—</p> <p>1. That the enacting clause of the latter act must be restricted to the object expressed in its title, and the words in the body of the act, which purpose to enlarge the powers of these municipal bodies beyond the purpose expressed in the title, must be rejected.</p> <p>2. Neither the act of 1874 nor the act of 1893 empowered the municipal authorities of a city to make such a contract with a company having its termini entirely within the city.</p>

<p>On certiorari.</p> <p>This writ brings up an assessment against the prosecutors for street improvements.</p>

<p>City lots owned by a railroad company not within the present or proposed lines of the company’s right of way, nor necessary for the enjoyment of its franchises, are liable to assessment for street improvement, though the lands were acquired by the company, with the intention of using it some time in the future, for the purpose of enlarging its yard.</p>

<p>On certiorari.</p>

<p>In the computation of the time within which the requirement of a statute is to he complied with, where the last day falls upon a Sunday or a legal holiday, and the act is to be done by the court, and not by the party, it may be done upon the earliest succeeding day on which the court can perform the duty imposed upon it.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>A writ of attachment was issued against the property of the defendant, on an allegation that she had transferred a certain portion of her estate with intent to defraud her creditors. Held, that the proofs offered in support of the allegation did not justify the conclusion that such transfer was fraudulent, and that, therefore, the writ should be quashed.</p>

<p>On certiorari.</p>

<p>1. An order, made upon petition in proceedings supplementary to execution, which restrains the defendant from collecting moneys due him, is justified only when the allegations of the petition, with relation’to the existence of the defendant’s right to such moneys, are supported by legal evidence.</p> <p>2. An order which directs a discovery by the defendant, and also restrains-him from collecting moneys due him, is severable; and the fact that the restraining clause in the order was unwarranted, does not require the vacation of the order in toto.</p>

<p>1. A bond and warrant of attorney, given by a husband and wife jointly, to secure the payment of a debt of the husband, is void as to the wife, and judgment thereon should be entered up against the husband alone.</p> <p>2. The act of March 23d, 1881, which requires that a party who holds a bond, the payment of which is secured by a mortgage, shall foreclose the latter instrument before bringing suit upon the former, has no application where the existence of the mortgage has been terminated before the institution of the suit upon the bond.</p>

<p>Application for summary determination as to the character and use of property assessed for taxes.</p>

<p>1. An honorably-discharged Union soldier holding the position of janitor of the county court-house for an indefinite term, under the appointment of the board of chosen freeholders, made after the passage of the Veteran act of 1895 (Gen. Stat., p. 3702), holds said position during" good behavior, and cannot be removed except for cause.</p> <p>2. Where such an appointee is afterwards wrongfully removed from his-position hy the action of a subsequent board adopting a rule to fix the- • term of office of the janitor at one year, and another honorably-dis' charged Union soldier is appointed with full knowledge of said rule, " and at the end of the year the latter replaced by the appointment of the former incumbent, certiorari will not lie t'o set aside the last appointment on the ground that such election was illegal under the-Veteran act.</p>

<p>On certiorari.</p>

<p>On certiorari to Middlesex Common Pleas.</p>

<p>A certiorari was issued against a city corporation, pending proceedings by quo warranto to dissolve it, and before the certiorari was brought to a hearing a judgment of ouster was rendered, and the municipal government passed into the control of a previously existing town corporation. Held, that judgment should not be pronounced on the certiorari unless the town corporation was brought into court, and the prosecutor having failed to bring it in before the hearing, the certiorari should be dismissed.</p>

<p>1. A mortgage of real estate, securing a contemporaneous loan of money advanced by a national bank, is valid inter partes.</p> <p>2. The taxation of the shares of stock in national banks, under the act of April 1st, 1869 (Qen. Stat., p. 3302), is substantially taxation of all the property of the banks, so that debtors of such banks, who have secured the debts by mortgaging their real estate, may properly claim to deduct the debts from the assessed value of the realty.</p> <p>3. The act of March 28th, 1895 (Qen. Stat., p. 3455), does not impair the ■ right to have debts, which are due to national banks and are secured by mortgage on real estate, deducted from the assessed value of the realty, for the purpose of taxation.</p>

<p>The charter of the city of Bridgeton does not empower the city council to require railroad companies running through the city to erect, maintain and operate safety gates at the street crossings.</p>

<p>On certiorari.</p>

<p>1. If a complete machine, purchasable in the market as such, and capable of being used wherever power can be supplied, is placed in the owner’s machine shop for use, and is not fastened to the realty, or is fastened only by being screwed to the floor so as to keep it steady while in operation, it does not thereby become part of the realty.</p> <p>2. A constable having levied upon chattels in the possession of a sheriff under prior executions, and having acquiesced in an absolute sale of the chattels by the sheriff, by virtue of the prior and of subsequent executions in the sheriff’s hands—Held, that the constable was entitled to the proceeds of sale in advance of such subsequent executions.</p>

<p>On certiorari.</p>

Oil rule to show cause why writs of mandamus should not issue. Chapter 157 of the laws of 1899 (Pamph. L.,p._355) is as follows: “An act providing for the annexation of the town of Stockton, in the county of Camden and the territory embraced therein, to the city of Camden, in said county. “Be it enacted by the Senate and General Assembly of the State of New Jersey: “ 1.

<p>On certiorari.</p> <p>The town of Stockton, in the county of Camden, having sheen annexed to the city of Camden, in that county, by a ■special act approved March 24th, 1899 (Pamph. L., p. 355), five qualified electors, resident within the annexed territory, presented on March 27th, 1899, to the justice of the Supreme Court assigned to the judicial district in which the city of ■Camden is situate, a petition for the division of such annexed territory into wards, pursuant to the seventh section of “An act concerning consolidated cities and annexed municipalities and townships and portions thereof,” passed March 30th, 1888. Gen. Stat., p. 2245. After the statutory notice, such justice, on being satisfied of the truth of the matters contained in the petition, appointed commissioners to make the ■division and to perform the other duties required by the act. The present certiorari, prosecuted by a taxpayer resident in the territory so annexed, removes to this court for review the order appointing such commissioners.</p>

On rule to show cause for mandamus. The borough of Deckertown was organized in 1892, under the General Borough act of 1878. Gen. Stat., p. 179. On December 17th, 1895, the'electors of the borough voted to adopt the provisions of “An act to enable incorporated towns to construct water works for the extinguishment of fires and supplying the inhabitants thereof with pure, wholesome water,” passed March 5th, 1884.

<p>1. Mandamus to admit to membership in a public body will not be ordered if the effect will be to oust incumbents whose claim of title is not frivolous. Quo warranto is the only proper procedure to try title to office.</p> <p>2. Under statutory authority the township committee of Woodbridge, in the county of Middlesex, is composed of three members, each holding for three years, one member being elected annually. Official notice to elect one member at the annual town meeting of 1899 was published. A received five hundred and forty-two votes, B three hundred and sixty-one votes, and C, D and E each two or three votes. On contention of unconstitutionality of the later statutes, B, C, D and E claimed membership in the committee on the ground that the only valid law on the subject required a board of five members with an annual term. Held, that the question would not be determined on mandamus to seat persons not intelligently chosen by the voters, and that the only way to raise it would be by application for mandamus to the township clerk to give notice of the election at the next annual town meeting of five members of the township committee for one year.</p>

<p>Oil certiorari.</p>

<p>In actions for slander or libel, brought in a District Court and appealed to the Common Pleas, where the defence is that the communication was privileged,, and it appears the privilege is one qualified by the condition that the communication must have been bona fide and without express malice, a mixed question of law and fact is presented, the decision of which will not be reviewed on certiorari if there be any evidence to support it.</p>

<p>Ou certiorari.</p>

<p>On petition for a summary investigation of an election for directors of the Newark Library Association, held at a general meeting of the stockholders January 4th, 1899.</p>

<p>The provisions of section 147 of the Practice act which authorize the opening of a juágment by áefault by a single juáge upon satisfactory proof that áefenáant has a legal áefence to the action, are not repealeá or moáifieá by the act of May 5th, 1889 (Gen. Stat., p. 2590), so as to forbiá the opening of such a juágment, although entereá for want of an affiáavit of merits, if there is satisfactory proof of a real áefence.</p>

<p>Where the record brought up by a writ of error from a county Circuit Court fails to indicate any request or appointment of a judge of the Court of Common Pleas to hold such Circuit Court under the act of 1891, this court will take judicial notice that there is no such Circuit Court judge. A bill of exceptions signed by such judge presents no reviewable questions.</p>

<p>1. An averment in a declaration that a telegraph, wire broke and gave way at the point where it had been fastened to the pole, with such force that the plaintiff was by reason thereof thrown from the top of the pole to the ground, is not specific enough for good pleading.</p> <p>2. Proper practice requires that such deficient pleading be stricken out on motion only.</p>

<p>On rule for certiorari.</p>

On error to the- Supreme Court. This case was tried at the December Term, 1898, of the Hudson Circuit Court, before Mr. Justice Lippincott and a jury, and a verdict, directed for the plaintiff for $1,620.80 and costs.

On-error to the Supreme Court. This cause was tried at the October Term, 1898, of the Gloucester Circuit Court, before Mr. Justice Garrison and a jury, and at the close of plaintiff’s case a nonsuit was ordered.

On error to the Supreme Court. This case was tried at May Term, 1899, of the Union Circuit Court, before Mr. Justice Van Syckel and a jury, and a verdict rendered for the plaintiff for $2,500.

On error to the Supreme Court. The Middlesex Water Company, the defendant in error, brought an action in the Supreme Court to recover the-amount due for water supplied to the defendant, a manufacturing company whose factory and place of business were in the township of Woodbridge, and for furnishing and setting up a meter and connecting the defendant’s premises with the-mains of the plaintiff, in pursuance of an agreement between the parties set out in the plaintiff’s…

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see 34 Vroom 379,</p>

On error. This cause was tried at the Atlantic Circuit Court at the September Term, 1899, before Mr. Justice Ludlow and a jury, and a verdict directed in favor of the plaintiffs.

On error to the Supreme Court. The judgment under review in this case was rendered in an action by John C. Blore against the -board of chosen freeholders of Union county for salary as warden of the Union county jail from February 1st to June 28th, 1898. A verdict was-directed for the plaintiff for the sum of $491.84 by Mr. Justice Van Syckel at the January Term, 1899, of the Union-Circuit.

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 217.</p>

On error to the Circuit Court of the county of Atlantic. This cause was tried at the September Term, 1899, of the Atlantic Circuit, before Justice George C. Ludlow and a jury, and a verdict directed for the plaintiffs below.

<p>1. A motion to dismiss a writ of error because it was issued and is prosecuted without authority from the plaintiff may lawfully be made by the defendant.</p> <p>2. A retainer to prosecute a suit does not of itself constitute a retainer to bring a writ of error to reverse a judgment rendered in that suit.</p> <p>5. The fact that an attorney has a disputed agreement with his client, which, if established, would entitle him to a share of whatever money might be recovered in a certain cause, will not warrant the attorney in prosecuting as attorney of record for his client, but against her will, a writ of error to reverse a judgment rendered in the cause.</p>

<p>Under tlie circumstances of this case the plaintiff was so clearly guilty of negligence, in failing to perceive the approach of a railroad train hy which he was struck while crossing the track on foot, as to justify a nonsuit at the trial.</p>

<p>When a specific objection to the admission of testimony is obviated by further examination of the witness, and then the testimony is received without other objection, the party objecting is not entitled to contend on error that the testimony was objectionable on other grounds.</p>

On error to the Supreme Court. The plaintiffs, by a bill of particulars annexed to their declaration, showed that by their own account with the defendant there was a balance in her favor of $11,756.66. Upon a reference that sum was reported as due the defendant.- When the cause came on to be tried at the Union County Circuit, the plaintiffs did not move the case; The defendant then moved the case.

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 32 Vroom 107.</p>

On error to Essex Circuit Court. This case- was tried April 17th, 1899, before Judge Child and a jury, and a verdict rendered for the plaintiff for $3,500.

<p>A policy of insurance, in and by which the parties thereto agree for insurance against fire upon property in which the party to whom the policy is issued has no insurable interest at the time of making the contract, is not on that account void. It is sufficient to support the policy that an insurable interest subsists during the risk, and at the time of the loss.</p>

<p>1. The provision of the act of March 21st, 1867, entitled “An act to establish a system of public instruction,” which makes it “ the duty of the township collector of each township to receive and hold in trust all school moneys belonging to the township” and to disburse the same, does not impose upon the person holding the office of collector the performance of a duty which is outside of those which he is required to perform as collector—it ingrafts an additional duty upon the office itself.</p> <p>2. The act of March 14th, 1879 (Pamph. L., p. 219), which authorizes certain of the townships of the state to compensate their collectors by the payment of an annual salary in lieu of fees, was not repealed by the amendment of May 25th, 1894, to the “Act to establish a system of public instruction.”</p>

Tried at the September Term, 1899, before Hon. George C. Ludlow, judge, and a jury, and a verdict rendered for the plaintiff below.

<p>1. The credit of a witness may be attacked either by his own cross-examination, or by calling other witnesses for the purpose.</p> <p>2. A master, though liable to make compensation for injuries done by his servant within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive or malicious intent on the part of the servant.</p> <p>3. If a train hand, in repelling an assault made upon him by a passenger, uses more force than is reasonably necessary for the purpose of defending himself from the attack and ejecting the passenger from the company’s train, the company is liable for damages resulting from such excess of violence.</p>

On error to the Supreme Court. The plaintiff, in the first count of his declaration, complained that the defendant, a common carrier of passengers upon an electric street railway, did not use due care to assist him to get safely off a car on which he was a passenger, at the terminal station at the foot of Exchange Place, in Jersey City, near the Pennsylvania railroad ferry lo New York, and to pass through such station to the street, and so negligently managed another car as…

<p>1. An indictment for a statutory offence need not contain an averment that the defendant is not within an excepted class, unless the exception is found in the enacting or prohibitory clause of the act; if it is found in a separate substantive clause, or in a subsequent statute, and-is not an essential part of the description of the offence, it is matter of defence.</p> <p>2. It is unnecessary in such an indictment to recite a public statute on which it is founded, but where it is recited with a material variance, and the indictment concludes with the words, “ contrary to the form of the statute in such case made and provided, ” without referring to-the recited statute, the recital may be rejected as surplusage, and atrial thereunder be held regular.</p> <p>3. Upon the trial of an indictment charging the defendant, at a certain-time and place, with commencing the practice of medicine, without-license, by then and there prescribing for one C. H. a certain medicine, &c., a business card of the defendant containing his name with' the title “Dr.” prefixed, and advertising himself as pharmacist and-chemist, and with having a free dispensary at his place of business, where registered physicians were in attendance daily to give medicine- and surgical advice free of charge, after being identified by him on cross-examination as having been put in circulation by him within' two years previous to the date of the offence charged, was admitted in evidence over the objection of defendant. Held, on review, that-the card was admissible as a declaration of the defendant, tending to-prove that he had been engaged in carrying on the prohibited business, which was corroborative of the proof offered in support of the offence charged.</p> <p>4. Where the statute on which such indictment was based declared,among other things, that the use by a person of the title “Dr.,” “Doctor,” &c., or the exposure of a sign, circular, advertisement or any other device or information, indicating thereby the occupation of the person, shall be considered prima facie evidence, a charge of judge to the jury to the effect that the card which the defendant gave-to the prosecuting witness, along with the bottle of medicine, on which his name appears as “Dr., A.M.,” was, under the act prima facie evidence to the jury that the defendant was practicing medicine, or holding himself out as practicing medicine at that time, was held on review not to be erroneous.</p>

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

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

Ou error to the Union County Circuit Court. This cause was tried May 25th, 1899, before Hon. B. A. Vail, judge, and a jury, and a judgment of nonsuit granted.

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

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

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 34 Vroom 407.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 33 Vroom 533.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 34 Vroom 3.</p>

On error to the Hudson Circuit. The declaration contained the common counts for work and labor, &c., performed by Charles B. Brush, plaintiff’s testator, for and at the request of defendant. At the close of plaintiff's case a nonsuit was granted.

<p>On demurrer to plea in quo warranto.</p>

<p>A boy nine and a half years of age, playing in a public street, ran across the track of a trolley road and was struck and injured by a passing car. He testified that he neither saw nor heard the car. There was no obstacle to his seeing the car if he had looked before going on the track. Held, that a verdict in his favor cannot be supported.</p>

<p>There was evidence from which the jury might infer that plaintiff'a passenger on a trolley car, had notified the conductor of his desire to alight; that the'car had slowed down; that the passenger had got upon the run-hoard in preparation to alight; that the car then increased its speed, and that the passenger, in endeavoring to again signal the conductor, leaned over so far that his head was brought in contact with the handles of the door of a milk wagon proceeding in the same direction with the car, and that he thus received the injuries for which he brought suit. (1) Quaere. Whether, in respect to dangers ab extra not created by the carrier nor the result of the construction or operation of its road, it is per se negligence in the passenger to take a position on the run-board of a car. (2) Held, that on taking such a position the passenger was under a duty to use his powers of observation and observe and avoid dangers ab extra, and that the evidence that he leaned over so far as to be carried against a passing vehicle which lie did not observe, and which, if he had used observation, he could have observed and avoided, established his negligence contributing to his injury.</p>

<p>When, to justify a conviction upon an indictment, an intent to steal must be proved, it is error to charge that a mere taking of property will justify the inference of such intent if the circumstances appearing in proof may justify also the inference that the taking was without intent to permanently deprive the owner of his property therein, but was a mere incident of a reprehensible trespass for which a civil action for damages would lie.</p>

<p>Upon an indictment framed under the provisions of section 119 of the Crimes act of 1898, which charges defendant with using an instrument upon the person of a pregnant woman, with intent to cause her miscarriage, and that defendant’s act caused the death of the woman, evidence of the dying declarations of the deceased is inadmissible.</p>

On case reserved at the Essex Circuit. This suit is brought upon a policy of insurance. The Empire Life Insurance Company, a corporation created by and having its place of business in the State of New York, issued a life policy to Emil C. Traflet, of Yonkers, New York, dated May 8th, 1896, in the sum of $1,000, payable at the home office of the company, in the city and State of New York.

<p>1. Action on a contract under seal with the plaintiffs, made by the defendant and one John V. Wise, parties of the first part, which recited that all the parties were engaged together in the coal business in the township of Morris, in the county of Morris, under the corporate name of the Morristown Coal Company, and that the plaintiffs were about to purchase the interests of the defendant and W. in the business. The declaration, after reciting the purchase and the consideration paid, averred that Wise and Foster covenanted with the plaintiffs for the term of five years; that they would aid and assist in every way, except financially, the plaintiffs in their coal business known as the Morristown Coal Company, and that Wise and Foster would not enter into the coal business for the term of five years nor act as agent or agents of any coal company or coal merchants, nor directly nor indirectly engage in business pertaining to the sale of coal. Held, that these two covenants, when construed in connection with the other parts of the agreement, relate to the business in the township of Morris.</p> <p>2. The breach assigned is that Foster, within the five years, at the township of Morris, entered into the coal business other than the business of the Morristown Coal Company, and that he acted as agent of other coal merchants and engaged in business pertaining to the sale of coal other than the business of the Morristown Coal Company; that he became a partner of the firm of Sands, Weeks & Company, coal merchants, and continued in the coal business during the residue of the five years. Held, that on this construction of the covenant, the ques- ' tion whether it he a reasonable limitation or such a contract in restraint of trade as would be void must arise at the trial.</p> <p>3. A copy of the contract was annexed to the declaration, with a statement, “ as by the said indenture reference thereto being had that it may more fully and at large appear.” Held, that this averment is not sufficient to make the writing annexed to the declaration part of the pleading. The court cannot, on demurrer, take notice of a writing annexed to the declaration unless it be referred to in the body of the pleading as so annexed.</p> <p>4. In the declaration, as well as in the covenant itself as annexed, the allegation is of a joint and several contract—joint as to those things required to be done by both parties jointly, such as the sale of the property, and several with respect to those acts to be done by either party. Held, that on a covenant which is joint and several the covenantors may be sued jointly for any act that is a breach of the covenant, though done by one, and where it is several as well as joint, either may be sued for any act done that is a breach of the covenant, as a joint covenant. The act complained of in this case being the act of Foster, the suit was properly brought against him on the covenant as his several covenant.</p> <p>5. In an action for the breach of the covenant, whether the damages recoverable shall be liquidated damages or not is a question that can arise only at the trial. A contract in due form, with a proper allegation of breach, presents a cause of action which will stand the test of a demurrer. The ad damnum clause annexed to the declaration is all that is necessary to support the pleading.</p>

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

<p>1. To support an action for malicious prosecution the plaintiff must show by a preponderance of evidence—first, that the prosecution is ended, and that he is duly discharged; second, that the defendant instituted the proceedings against «him without reasonable or probable cause; third, that the defendant was actuated by a malicious motive in making the charge.</p> <p>2. The mere fact that the complaint was rejected by the grand jury, is not sufficient to show a want of probable cause.</p> <p>3. If probable cause is shown, it is immaterial whether or not there was malice.</p> <p>4. If the defendant fairly states the facts in his possession to counsel, and is advised that he has a right to make the complaint, an action will not lie against him.</p> <p>5. When facts not controverted show reasonable and probable cause, a verdict should be directed for defendant.</p> <p>6. The burden is not on the plaintiff to establish his innocence of the charge; his innocence is presumed and is not in issue.</p>

<p>A declaration counting upon an express assumption of a mortgage by the grantee in a deed (the deed being made part of the declaration) will not be supported by a clause in the deed, “ that the land is conveyed subject to such mortgage,” the words of assumption being absent. Qucere. Whether, if the declaration counted upon a contract to pay the consideration in the deed, the action at law could be' maintained ?</p>

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

<p>1. It is within the discretion of the trial court to grant separate trials, where two are jointly indicted, and also to admit the evidence of a witness under twelve years of age.</p> <p>2. The indictment contained five counts, and the trial judge directed the jury that they must disregard all the counts except two, one for entering without breaking, and the other for larceny. There was a verdict of guilty and judgment for punishment less than 'might have been imposed for entering without breaking. The entire record being before the court in virtue of the act of 1898, page 915, section 136, the judgment cannot be reversed for any imperfection, omission, defect in or lack of form, and it does not appear that there was any error on the trial which prejudiced the defendant in making his defence upon the merits, nor does it appear that the defendant suffered manifest wrong or injury in respect to any matter submitted under the act of 1898.</p> <p>3. Qiuere. Whether, under the act of 1898, the question passed upon in the Kohl case (30 Vroom 445) can now arise ? '</p>

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

<p>1. Under the fiftieth section of the act for the punishment of crimes (Revision of 1898; Pamph. L., p. 807), the evidence in corroboration of that of the female prosecutrix to establish the essential elements of the offence under such section is required to be of such a character as to clearly turn the scale and overcome the denial of the defendant under oath of the promise of marriage and consequent seduction.</p> <p>2. This corroborative evidence is properly producible and admissible on the part of the state in making proof against defendant of the commission of the offence, as the state can presume, under a plea of not guilty that the defendant will deny the elements of fact necessary to be established in order to convict. This evidence must be introduced as a part of the case of the state, and is not rebuttal in its character.</p> <p>3. Evidence of the admission of, and acquiescence of the defendant in, the truth of the charge, his conduct and promises are evidential as corroborative proof, even though such admissions, acquiescence, conduct and promises do not take place until after the time of the alleged promise to marry, and seduction and pregnancy. The conversations of other witnesses with each other, and with the prosecutrix and defendant, and pertaining to the elements of the offence, are admissible in evidence as corroborative proof, if at the time of such conversations the prosecutrix, the defendant and witnesses were present, in the hearing of each other, and taking part in such conversations.</p>

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

<p>1. Upon a rule to show cause why a verdict should not be set aside and' a new trial had on the ground of newly-discovered evidence, the newly-discovered evidence must be of such a character that it would probably change the result. It must be such evidence as would probably produce on another trial the opposite result.</p> <p>2. The question whether it would probably change the result upon a new trial, or probably produce the opposite result, is one for the decision of the court before whom the rule to show cause is to be heard and determined. The question whether a new trial under all the circumstances of the newly-discovered evidence should be granted is for the discretion of the court before whom the rule is heard.</p> <p>3. The party seeking a new trial upon newly-discovered evidence, must show by evidence, not merely general but circumstantial in its character, that due diligence was exercised to produce it on the former trial, and especially is this so after a second trial is had, and the need of it has been or should have been discovered.</p> <p>4. If the newly-discovered evidence is of the same general character and cumulative of that produced on the trial, and merely additional or corroborative of such evidence, and merely multiplying the number of witnesses on the one side or the other, a new trial will not be granted.</p>

<p>1. It is not error in a trial judge to charge the jury that if the motorman operating on the public streets an electric street railway car, on which a bell or gong is maintained to be rung or sounded as a signal of danger, fails to give timely signals of danger in approaching a street crossing which he intends to cross, that such failure is evidence of negligence on the part of the motorman.</p> <p>2. The principle of law is now well established, and must be applied, that it is not negligence per se or negligence in law for a person driving a vehicle in approaching a street crossing over which he intends to cross, to fail to look for an approaching street car, in order to avoid danger from it. The questions whether he was negligent or not must be submitted to the jury for them to determine as a question of fact.</p>

<p>1. A fire insurance broker is a specialist in the business of fire insurance and holds himself out to the world as possessing sufficient skill requisite to his calling, and if he does not exercise the proper and customary care and skill in effecting the insurance of the property of the person for whom he is acting, under his instructions and agreement with such person, the neglect of such skill and diligence is actionable, if it proximately results in loss or damage to the insured by whom he is retained and employed.</p> <p>2. A concealment and misrepresentation by such broker in bis application to the insurer, and in procuring insuraiice of the interest and ownership of the insured, in accordance with which the insurance is effected, will avoid the policy of insurance, if there be any express conditions therein, to the effect that if the interest of the assured be not truly stated, or if the interest of the assured be other than unconditional and sole ownership, the policy shall be void. The application for insurance in the face of and taken in connection with, such conditions contained in the policy is a warranty on the part of the assured as to such interest and ownership, a breach of which avoids the policy.</p> <p>3. Where a husband and wife are owners together of a seven-eighths interest and ownership in personal property, and an insurance is effected by their fire insurance broker under an employment and agreement with him to have their interest and ownership, of which he is informed, truly stated and specifically designated in such insurance, and where by his concealment or misrepresentation, either by mistake or the want of customary skill and diligence on his part, an insurance is effected, the policy so obtained, which insures such property in the name of the husband alone as sole and unconditional owner, with no other statement of interest or ownership in any one else, is void, under the express conditions of the policy which provides that the interest of the assured shall be truly stated. Such a policy is also void under the condition that it shall be so void, unless otherwise provided by agreement endorsed thereon or added thereto, if the interest of the insured be other than unconditional and sole ownership, if it appears that it has not been so otherwise provided by such endorsement or addition.</p> <p>4. If such insurance be effected in the name of the husband aione, and so stated in the policy, a clause in the policy that the loss, if any, shall be payable to the wife as her interest may appear, will not have the effect of an insurance covering her interest or ownership, there being nothing else in the policy disclosing that the insurance was to have such effect. This clause in the policy can have no other effect than as a direction to whom the loss shall be paid. It is nothing more than an assignment of the loss, if any should accrue to the interest of the husband, and is not an insurance of her estate or ownership.</p>

<p>1. When the work of the construction, repair or alteration of a street railway track in the streets of a city is authorized by law, and excavations are made in such work, which are to be kept open at night, the duty is incumbent upon those in the performance of the work, under a contract with the street railway company, to exercise reasonable care to guard such excavation to protect those in the use of the streets from injury from such excavations.</p> <p>2. In order to be reasonable the degree of care must be a high one, be-' cause those who are in the use of the street have the right to assume, unless their attention has been attracted to the danger, that the street is free from such excavations.</p> <p>.3. Such persons as are in the use of the highway or street are bound to the exercise of only ordinary care to avoid injury from such excavations.</p> <p>4. The question of whether the defendant, in an action for injuries received by falling or driving into such excavations, has exercised reasonable care in guarding, signaling, screening or fencing such excavations, when the facts are in dispute, or where inferences may be reasonably drawn either in favor of or against the exercise of such care, is one for the jury, as well as the question of whether the plaintiff under such circumstances is guilty of contributory negligence.</p> <p>.5. When the fact of injury and the extent thereof are in dispute, the jury as matter of fact must determine the injuries and condition of the injured plaintiff, and determine whether the injury is the proximate result of the accident, and apply the principle of compensation and fix the damages under the proof, and if the amount be not the product of bias, feeling or-prejudice, or excessive, the verdict will not be set aside.</p>

<p>1. District Courts have no jurisdiction in causes where the title to lands or real estate may come in question, and in an action in such courts to recover back money paid by the purchaser upon a contract for the conveyance to him of lands and real estate, upon the ground that the defendant with whom the contract to convey was made, had no marketable title to convey, if the right of recovery depends upon an adjudication of the title of the defendant, the action should be dismissed for want of jurisdiction in the District Court to try and determine the same.</p> <p>2. Where documentary or other evidence of the title to lands is relied on, the District Court should, upon the admission of such evidence, dismiss the action. The want of jurisdiction over the subject-matter is fundamental, and it appearing in the record may be taken advantage of at any time.</p>

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

<p>On certiorari to review an ordinance of the street and water board of the city of Newark.</p>

<p>Proceedings against the Tinton Falls Turnpike Company to compel the keeping open of its gates because its road is out of repair, must conform to the act relating to turnpike companies, approved February 24th, 1882, and its supplement approved March 23d, 1892.</p>

<p>1. An act regulating internal affairs of townships is not special because limited to townships.</p> <p>2. The title of the act of March 1st, 1886 (Gen. Stat., p. 3646), constitutionally expresses the object of the law.</p> <p>3. The title of a public statute may properly be used to denote the law embodied in the statute as modified by its amendments and supplements.</p> <p>4. The act of March 1st, 1886 (Qen. Slat, p. 3646), does not require the inhabitants of townships to determine how much money the township committee shall expend in securing a building for township purposes.</p>

<p>The prosecutor sued out a certiorari to reverse a judgment rendered against - him on a complaint which purported to rest on a penal statute, and' assigned various reasons for reversal, the first being that the complaint failed to show the commission of an offence within the statute, and others being that the statute was unconstitutional. Afterwards, by stipulation, he confined his objections to the constitutional question. Held, that as the complaint did not present a case within the statute, the constitutional questions should not be considered, and the writ should be dismissed.</p>

<p>Land acquired by a railroad company for a right of way and for terminal-facilities, on no part of which a railway has been constructed, and which is not otherwise used for railroad purposes, is subject to taxation' by the local authorities, under the Railroad and Canal Tax aet of March 27th, 1888.</p>

<p>The supplement, approved March 26th, 1896, to the District Court act of March 9th, 1877, is rendered special by the clause which limits its operation to the cities that adopt its provisions within one year after its passage, and is therefore unconstitutional.</p>

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

<p>1. The act of May 7th, 1889 <(Pamph. L., p. 378), relating to the change-of grade of streets in the cities of this state, requires that, when the-owners of houses or other buildings standing upon a street are injuriously affected by a change in the grade thereof, the municipal authorities shall, at one and the same time, award damages for all such injuries, and assess such damages upon the lands and real estate benefited by the improvement, in proportion to the benefits received.</p> <p>2. The city of Elizabeth, after changing the grade of certain portions of three of its streets, refused to recognize its liability for injuries to-abutting property-owners resulting from such changes in grade, for the reason that it was exempted by its charter from such liability, and was not (as it claimed) affected by the act of May 7th, 1889. One C., an abutting owner upon each of these streets,- thereupon began suit to enforce the liability of the city under the statute of 1889 for the damages done to his property by these grade changes. The remaining owners took no steps to establish their rights until after the determination of C.’s suit and the consequent action'of the city thereon. Held, that such owners were justified in assuming that, if it should be finally determined by the 0. litigation that the statute of 1889 applied to the city of Elizabeth, the municipal authorities would then proceed to assess all damages and benefits, accruing from these changes of grade, in the manner provided by that statute, and were not guilty of laches in not sooner instituting legal proceedings for the enforcement of their rights.</p>

<p>1. Acknowledgment of service of summons by the attorney of a corporate defendant submits the' person of the corporation to the jurisdiction of the court.</p> <p>2. The president of a corporation, virtuie officii, has authority to employ an attorney to defend a suit brought against his company.</p> <p>3. Failure to return a summons into court upon the day on which it is made returnable is an irregularity which can only be taken advantage of by the plaintiff in the suit.</p> <p>4. The time allowed by section 105 of the Practice act for the filing of a plea is given solely for the benefit of the defendant, and he may waive that benefit and consent to the entry of judgment before the expiration of the statutory period given to him within which to plead.</p> <p>5. A judgment at law which is fraudulent as against certain of the creditors of an insolvent corporation, but valid as against others, will not be set aside by the court in which it was entered at the instance of the receiver of such corporation by reason of the fraud. The rights of those creditors, as against whom the judgment is fraudulent, can be protected in the distribution of the company’s assets by the court having control of that matter.</p>

<p>■The supplement to the General Tax law, passed April 13th, 1887 ((•?«»,■ Stat., p. 3312), which provides for the taxation of real and personal property held in trust by the Court of Chancery, is unconstitutional because it does not apply to like property held in trust by other courts-of the state.</p>

<p>A' license to lay a private sewer in a public street is revocable at the option of the municipality.</p>

<p>As between two opposing factions of a religious association, land acquired-' by the association before any schism arose will remain the property of that faction which abides by the doctrines, principles and rules of the-church government which the united body professed when the land was acquired.</p>

<p>An order made by a board of police commissioners removing a patrolman from his position, upon charges, and after notice and a hearing, as provided by the “Act respecting police departments in cities,” &c., will not be set aside if the proceedings were had in conformity to the statute, and the testimony adduced at the hearing afforded a rational basis for the judgment against him. ,</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. The failure to endorse upon the process in a penal action the title of the statute, as required by section 254 of the Practice act (Gen. Slat, p. 2575), is an irregularity that will, upon objection, defeat the process. It is not a jurisdictional defect.</p> <p>2. The third section of “An act to increase the jurisdiction of justices of the peace” (Pamph. L. 1879, p. 115), which makes it a penal offence for any justice of the peace to issue a suidl ons on behalf of any person for whom he is agent is inoperative for the reason that it is not within the object expressed in the title of the act.</p>

<p>1. An assessment made and confirmed under “An act to provide for the-permanent improvement of public roads of this state,” approved March 22d, 1895 (Pamph. L., p. 424), which act provides that assessments when confirmed by the Circuit Court shall be final and conclusive, may nevertheless be reviewed by this court on certiorari whereihe prosecutor challenges the right to impose any assessment at all upon his lands.</p> <p>2. To come within the territorial range of assessment permitted by said act, namely, “ lands and real estate fronting or bordering on the road or section thereof improved,” the land assessed must at some point' adjoin the section of road improved.</p>

On indictment. An indictment for libel, found in the Atlantic Oyer, was removed to this court by certiorari. In behalf of the defendant it is now moved to quash because the conclusion of the indictment runs “ against the peace of this state and the dignity thereof ” instead of “against the peace of this state, the government and dignity of the same,” as prescribed by article 8, paragraph 4, of the constitution.

<p>Under the general act of 1897 {Pamph. L., p. 285) it is doubtful if a borough council has power in any case to declare an office vacant. If it-has, it cannot do so without a hearing, on notice to the incumbent if practicable, and proof of facts legally warranting such action.</p>

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

<p>1. Dedication by an owner of land to public use as a street whenever the municipal authorities should choose so to use it, cannot be retracted, but is irrevocable, and proof of formal acceptance of the locus in quo as a public street or public user is not necessary.</p> <p>'2. An action may be maintained by the municipal authorities to obtain possession of land dedicated to public use.</p>

<p>The admission of parol evidence of an agent, that he had authority to issue a license to cut wood on the principal’s land is error, where it appeared that the authority of the agent was conferred by writing, and’that the writing is in existence and can be produced.</p>

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

<p>1. A party indicted for a crime may he convicted of any offence of a-lower degree provided such lower offence is included within the description in the indictment, without regard to the question whether it-was or was not technically a felony. State v. Johnson, 1 Vroom 185, followed.</p> <p>2. An indictment in the statutory form by implication charged all the-facts which at common law were necessary to be set forth to constitute-the crime, and the defendant is' not thereby deprived of any right under the constitutional provision “that in all criminal prosecutions the accused shall be informed of the nature and cause of theaceusation.”</p>

<p>On certiorari.</p>

<p>Where a justice of the peace, after hearing a cause, takes time to consider the cause, a proper adjournment or at least notice to the parties of the time when judgment would be rendered, is necessary to preserve his jurisdiction.</p>

<p>On certiorari, &c., for opening of Camden street.</p>

<p>1. The construction of written instruments in litigated cases is matter of law for the determination of the court, and in making such determination, the court will, prima facie, attribute to each word of the instrument its ordinary and common meaning.</p> <p>2. As words which have a common and well-defined meaning are frequently employed, by persons engaged in a peculiar business or trade, in a peculiar or technical sense, evidence that by the usage of such business or trade certain words have acquired a meaning different from their common and ordinary meaning, is admissible.-</p> <p>3. Upon the production of such evidence, the court must submit to the jury to determine whether it establishes the fact that the words in question have acquired by the usage of the business or trade in question a peculiar or technical meaning, and what that meaning is; and whether the parties used the words in the instrument in question in the ordinary or in the peculiar and technical sense. It is not error to charge that if the words in question have acquired a peculiar trade meaning, and have been used by the parties in the instrument in question in that meaning, the liability of the parties upon such instrument must be fixed by attributing to such words that peculiar meaning.</p> <p>4. Evidence that words having a well-defined ordinary meaning are used in a particular business or trade in another and peculiar meaning, doubtless should be clear, accurate and convincing. Upon a rule to show cause, a verdict attributing a trade meaning to words having a well-defined ordinary meaning, upon evidence which is contradictory , r and inconsistent,.could not be permitted to stand.- >But when, on error, . it appears that evidence on this, subject was properly admitted and the jury properly instructed thereon, it is not ground for reversal if, in fact, there was evidence before the jury which would justify their finding that the words in question were used in a sense which would render the defendant liable.</p>

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

<p>Proceedings to construct sewers under the provisions of the “Act to authorize cities to construct sewers and drains and to provide for the cost-thereof,” approved March 8th, 1882, and its supplements, considered.</p>

On error to the Supreme Court. This case was tried at the Atlantic Circuit and resulted in a verdict for the defendant, and is here on exceptions to the judge’s charge. The facts will be stated in the opinion.

<p>The legislature cannot confer upon Circuit Courts power to review the judgment of District Courts in matters of law which may be reviewed by the Supreme Court by a writ of certiorari. It is immaterial by what name the proceeding to review is styled; the certiorari power in such case cannot be conferred upon the Circuit Courts.</p>

<p>1. Trolley cars and tlie driver of ordinary carriages have equal rights upon the public streets and street crossings. The first to reach the crossing has the right to pass over first, but if it appears that the motorman does not intend to respect his right of priority and that the driver cannot, in the exercise of reasonable prudence, exercise his. right, he is guilty of contributory negligence if he fails to wait or turn aside if he can do so by the use of due care, and thus protect himself from injury.</p> <p>2. In such case the remedy of the driver would be by suit against the trolley company for failing to observe his right of priority at the crossing.</p>

On error to the Supreme Court. This cause was tried at the April Term of the Hudson Circuit, before Mr. JusticeLippincott and a jury, and at the close of the plaintiff’s case a judgment of nonsuit was ordered. -

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 51.</p>

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

On error to the Morris Circuit. The writ of error brings up for review a judgment rendered on the verdict of a jury at the May Term, 1899, of the Morris Circuit Court, in favor of the defendant in error, plaintiff below, against plaintiff in error, defendant below, for the sum of $245.49 and costs.

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

On error to the Supreme Court. This cause was tried at the April Term, 1899, of the Hudson Circuit Court, before Mr. Justice Lippincott and a jury, and a judgment of non-suit ordered.

This cause was tried at the October Term, 1899, of the Union Circuit, before Hon. B. A. Vail, county judge, sitting as a Circuit judge, and a jury, and a verdict rendered for the plaintiff below.

On error to the Supreme Court. Tin's cause was tried at the Middlesex Circuit at the April Term, 1899, before Mr. Justice Collins and a jury, and a verdict of $3,000 rendered for the plaintiff below.

<p>On error to the Supreme Court. Tried. May 27th, 1899, before Mr. Justice Garrison without a jury.</p>

<p>On error to the Hudson Circuit Court. Tried at the Hudson Circuit, April Term, 1899, before Mr. Justice Lippincott and a jury, and a judgment of nonsuit ordered.</p>

<p>1. The contract of a married woman who signs a promissory note for the accommodation of the payee, is that of a surety within the meaning of . the first proviso of section 5 of the Married Women’s act, as amended in 1895 (Gen. Stat., p. 2017), and her want of power to bind herself by such a contract can be set up by her as a defence to a suit at law upon the note.</p> <p>2. The second proviso, contained in section 5 of the Married Women’s act, as amended in 1895, declares “ that if, on the faith of any * * * contract of suretyship, * * * any married woman obtains, directly or indirectly, any money, property or other thing of value for her own use or for the use, benefit or advantage of her separate estate, she-shall be liable thereon as though she were unmarried.” Held, that, by force of this proviso, the reception by a married woman from the payee of a promissory note, of a money consideration for her act in signing the same for his accommodation, makes her liable thereon to-the same extent as if she were a feme sole.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 39.</p>

<p>On the trial of an indictment for murder—Held, not to be error to permit the state, for the purpose of showing motive, to prove that the prisoner and the wife of the deceased occupied the same room together for two successive nights almost immediately after the murder ; nor to receive in evidence a confession which was neither extorted by threats, nor obtained by any direct or implied promise; nor to permit the state to contradict portions of the statement contained in the prisoner’s confession. Held, farther, that on the evidence which had been adduced at the trial, a request that the jury be instructed that they could not convict the prisoner -of murder either in the first or second degree, was properly refused.</p>

. On error to the Supreme Court.. This cause was tried at the Hudson Circuit, before Mr. Justice Lippincott and a jury, and at the conclusion of plaintiff’s case a judgment of non-suit was ordered.

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

On error to Supreme Court. This cause was tried at the December Term, 1899, of the Cape May Circuit, before Mr. Justice Ludlow and a jury, and a judgment of nonsuit ordered.

<p>On error to the Supreme Court.</p> <p>Tried at the April Term, 1899, of the Hudson Circuit •Court, before Mr. Justice Lippincott and a jury, and a non-suit ordered.</p>

<p>The United States Treasury Department issued a printed pamphlet,.containing specifications for the building of the revenue cutter “ Hudson,” and in it called for the Ward boiler, a patented article, of a specified size and mode of construction. The pamphlet contained also a statement, authorized by the patentee, that he would furnish and set up such a boiler for 86,750. Held, that the particulars contained in the pamphlet as to the size, mode of construction and price of the boiler were binding on the patentee, but that he might nevertheless refuse to deliver the boiler to the contractor except upon a definite agreement, satisfactory to himself, as to time and mode of payment therefor.</p>

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

<p>A railroad company is bound to inspect its trains, but not to keep up a continuous inspection, or to know at each moment the condition of. every part of a train.</p>

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

<p>D.r sitting on the seat of a one-horse buggy-wagon, having its top down,- and with no side curtains, drove his horse upon the tracks of a rail-road crossing and was struck and killed by a passing passenger train. Held, that he was guilty of contributory negligence to be inferred' from these conditions of fact, viz., if he took the precaution to look before attempting to eross, even though he did not stop, he had, at a-distance of more than thirty feet from the track on which the approaching train was running, an unobstructed view of it for about two-fifths-of a mile, for a period of time sufficient to enable him to stop his horse before reaching the tracks and escape the danger.</p>

<p>•C., the husband of the defendant, sublet a portion of certain leased premises to plaintiff for a store, retaining possession of part of the second door, to which the only means of access was through the stpre. Subsequently he gave up his lease, and plaintiff leased the premises from the owner, C. remaining in possession of the second door after the execution of the last lease. Afterwards C. surrendered possession of the premises to the plaintiff, the defendant retaining a key to the door of the store and continuing to occupy the rooms on the second door. The plaintiff demanded possession of so much of the building as defendant occupied. Held, in ejectment, a nonsuit should not have been granted, there being a sufficient case for the jury.</p>

. On error to the Supreme Court. Tried at the Essex Circuit before Judge Child and a jury at the September Term,. 1899, and a verdict rendered for the plaintiff for $1,000.

<p>A fire insurance policy described the location of the household furniture insured as a store and dwelling. Afterwards the insured removed the insured property and the risk transferred by endorsement described the location as a frame dwelling-house, the insured using the front room of the first floor of the building as a store. Held, that the description contained in a “frame dwelling-house,” excludes any other use of the building than as a dwelling; it is a warranty against any such use and for the falsity of that warranty the contract will be void,, although no .injury was thereby done the insurer.</p>

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

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

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

<p>On error to the Supreme Court. For opinion of the Su-preme Court, see antep. 45.</p>

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