Volume 65 — New Jersey Law Reports

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

On demurrer to the declaration. An association consisting of twenty underwriters became ■organized according to the laws of the State of New York under the name-of “International Eire Lloyds.” The plaintiffs were engaged in business as insurance brokers for fire insurance associations. Each of the underwriters forming .such an association executed and delivered to the plaintiffs a deed or power of attorney.

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

<p>The railroad company had a gateman employed at its crossing over a>public street in Camden. He had turned down the gates for am approaching train, and when his back was turned, B, a volunteer, • without his knowledge or consent, raised the gates to let the plaintiff through. While the plaintiff was passing, B turned the-gates down and injured the plaintiff. Held, that the company was not liable for the act of B.</p>

<p>•Oil writ of error to the Middlesex Quarter Sessions.</p>

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

On -writ of error to the Camden Circuit Court. This suit was begun by a writ of attachment in the name of Jacob Heatherington against Erancis C. Husbands and Edward W. Inskeep. The plaintiffs in this suit became parties to the attachment as applying creditors by filing the affidavit required by the statute.

<p>The plaintiff had a verdict and the deféndant obtained a rule to show cause.</p>

<p>1. By the act of February 24th, 1849, the corporate existence of the Newark Plank Road Company commenced at the time of the passage of the act and terminated on the 24th of February, 1899, except for the purposes specified in the fifty-ninth section of the act respecting corporations.</p> <p>'2. The act of April 9th, 1889 (Pamph. L., p. 230), under which said company claims that its corporate life was extended, is unconstitutional—first, because its title is misleading. The title is general, and the body of the act restricts its application to companies having certain peculiar characteristics; second, the act is special and is inhibited by the constitution because it grants corporate powers.</p>

<p>1. Where the right of action for a personal injury exists 'in the injured party at the time of his death, and he has done no act to bar a suit by himself, if he had survived, there the right of action under the Death act is a vested right in those who are the beneficiaries under the statute.</p> <p>2. In such a case the payment by the defendant of a sum of money, after the death of the injured person, to one whom he made his oeneficiary under membership in a relief fund established by the defendant, is not a bar to a suit under the Death act for the benefit of the widow and next of kin.</p>

<p>1. Error cannot be predicated upon the overruling of a demurrer to a count in the indictment where a no lie prosequi is subsequently entered to such count.</p> <p>. 2. Upon the trial of an indictment for adultery, evidence is admissible to show other acts of- adultery committed between the same parties prior to that charged in the indictment.</p>

<p>When counts in an indictment are joined for offences different, but not' positively repugnant, and a general verdict of guilty is rendered, the correct practice is to sentence on the count containing the charge of the highest crime, but the sentence must not exceed that which may lawfully be imposed for such crime.</p>

<p>Certiorari lies to review judgments of the Common Pleas given on appeal to that court from judgments of the Court for the Trial of Small Causes, but where suits are originally instituted in the Court of Common Pleas, the review in the Supreme Court is to be had by writ of error.</p>

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

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

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

<p>In an action on contract against several persons, it must appear on the face of the declaration that each defendant is bound by the-entire contract set forth; that the entire contract counted upon is a joint contract. Newman v. Fowler, 8 Vroom 89, distinguished..</p>

<p>"When a person, who is the authorized agent of A and also of B, makes as agent of B a contract with C, and C, to the knowledge of the agent, is led to believe that his contract is with A, and C pays the consideration to the agent under that belief, he can enforce the contract against A. The agent having authority to make such contract for A, and holding out that he is making it for A, the principal cannot disavow it to the detriment of C.</p>

<p>1. A jury should not be controlled in its action, except when the' testimony will support no other verdict than that which is directed.</p> <p>2. The capacity of a child between four and five years of age to care for its own safety is a question for the jury and not for the court.</p> <p>3. A child who, by reason of its mental capacity, is non sui juris, is not to be charged with the negligence of the person in whose custody it is.</p>

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

<p>On special verdict.</p>

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

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

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

<p>On demurrer to indictment. Case certified from Camden Oyer and Terminer.</p>

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

<p>1. The averment in a declaration that the plaintiff was “lawfully driving along the turnpike road” of the defendant, is adequate to show that he was not a trespasser thereon, but it will not justify the conclusion that he was there with any greater right than that ' of a mere licensee.</p> <p>2. The owner cf. lands is not chargeable with the duty of maintaining them- in a" safe condition with- respect to a person who enters .merely by his license. As- to such person the landowner’s only duty is to abstain from acts which are willfully' injurious.</p>

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

<p>On ease certified from the Bergen Circuit Court.</p>

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

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

<p>1. Under the statutes of this state, the tax levied on account of the shares of stock in national banks held by non-residents, is not imposed upon the banks; it is imposed upon the shares, being assessed in form only to the banks, which are required to pay the tax only out of dividends declared on the stock; and these statutes are in accord with the act of congress permitting the state to tax such shares.</p> <p>2. Whether, under our law for the taxation of national bank stock, that stock is assessed at a greater rate than other moneyed capital in the hands of individual citizens of the state, in violation of the act of congress permitting the states to tax such stock, is a question of fact to be decided in each case by the evidence respecting the taxes assessed in the particular district wherein the stock is taxed; and in all cases where discrimination against national bank stock appears, our laws afford ample remedy by application to the commissioners of appeal and the state board of taxation, and by certiorari to this court. .</p> <p>3. Our statutes for the taxation of shares of stock in banks do not violate that provision of the state constitution which requires property to be assessed for taxes under general laws and by uniform rules.</p> <p>4. In ascertaining the true value of the shares of bank stock for the purpose of taxation, our laws do not require that the non-taxable property of the banks should be deducted from their assets.</p> <p>.5. Section 34 of the Bank act of March 24th, 1899, by exempting from taxation all the real and personal property of banks, has done away with the reason of the decision in Orange National Sank v. Orange, 29 Vroom 45, to the effect that the value of their real estate should not be computed in estimating the assessable value of their stock held by individuals.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>■ In tort. On motion to set aside summons.</p>

<p>"If a city has legislative authority to make a public improvement which is beneficial to private property, and to levy an assessment therefor on the property benefited, and the owners of property benefited have permitted such an improvement to be completed in pursuance of proceedings not in conformity with the requirements of law, without invoking the aid of legal process, an assessment may be levied, notwithstanding the illegality of the proceedings, by virtue of the statute approved March 15th, 1898. Pamph L., p. 80.</p>

<p>■On certiorari. On motion to strike out interrogatories.</p>

<p>On rule to show cause why Carl Lentz should not be disbarred or suspended from his profession.</p>

<p>On certiorari to the First Criminal Court of Jersey City.</p>

<p>On rules to show cause why respondents should not be -disbarred.</p>

<p>On certiorari.</p>

<p>1. The “true transcript or duplicate of the assessment of taxes” that the assessor is required by Gen. Stat., p. 3309, pi. 140, to deliver to the collector, must show the assessment as revised and corrected by the township committee or town, borough or city council, under Gen. Stat., p. 3301, pi. 93, 98; p. 3321, pi. 201, 203, where applicable, and completed by the general meeting of assessors, under Gen. Stat., p. 3309, pi. 140.</p> <p>2. In boroughs, as now governed by Pamph. L. 1897, p. 285, the provisions of the tax laws above cited are applicable.</p>

<p>On certiorari.</p>

<p>‘■Under “An act for the construction, maintenance and operation of water works for the purpose of supplying cities, towns and villages of this state with water,” approved April 21st, 1876 {Gen. Stat., p. 2199), there can be no condemnation of property unless there has first been filed with the secretary of state a “consent in writing of the corporate authorities, if any, of the town or city proposed to be supplied with water,” to the formation of a company under such act by designated persons in a manner specified.</p>

<p>The title “An act relating to certain illegal borough governments, requiring the payment of their debts,” cannot constitutionally support an enactment creating boroughs.</p>

<p>The revised act concerning District Courts (Pamph. L., 1898, p. 556) includes the following provisions: “Section 35. District Courts shall have jurisdiction over actions by or against boards of chosen freeholders, quasi domestic, and municipal corporations equally with natural persons. Section 44. The first process to compel an appearance, except as in this act otherwise specially provided, shall be a summons. Section 45. The summons * * * shall specify a certain time and place, not less than five nor more than fifteen days from the date of such process, and shall be served at least five days before the time of appearance mentioned therein. Section 47. * * * If the defendant be a board of chosen freeholders, the summons shall be served by leaving the same with the director of the board or clerk thereof at least thirty' days before the time of appearance mentioned therein.” Meld, that sections 45 and 47 must be construed together and that therefore the limit of fifteen days for the return of process is not applicable to actions against boards of chosen freeholders.</p>

<p>1. The provision of the United States Bankrupt act of 1898 for avoiding judgments and liens obtained against an insolvent person within four months prior to the filing of a petition in bankruptcy by or against him, in case he is adjudged a bankrupt, does not apply to the case of a judgment obtained after the filing of the petition.</p> <p>2. Qumre. Does not the administering of relief under such provision rest exclusively with the federal court having cognizance of the bankruptcy proceeding?</p>

<p>In A. d. 1899, tbe Long .Branch Commission had no power by virtue either of its special act (Pamph. L. 1875, p. 477) or of 'any general statute to grant by resolution an exclusive franchise for twenty years for the collection and cremation of garbage.</p>

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

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

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

<p>On certiorari.</p>

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

<p>1. The Court of Common Pleas is invested by the general statutes (Gere. Stat., p. 2804) with the power to appoint surveyors of the highways to lay out public roads, and when the proceedings are in conformity to the statutes relating to such subject-matter, jurisdiction will always be presumed to be vested in such court, and the burden is upon those by whom such proceedings are attacked to establish the want of jurisdiction.</p> <p>'2. The direction of the statute that the return of the surveyors with the map and draught of the laying out of the public road must refer to “the most remarkable places and improvements through which it may pass,” is for the purpose of having the true location to appear, and when such location does so appear by reference in the return, map and draught to places and objects along and near the line of the road on either side, the object of the statute has 'been fully accomplished.</p>

<p>Iu ejectment. On rule to show cause why judgment should! not be opened and defendants allowed to plead.</p>

<p>An ordinance otherwise legal is not invalidated by the separable unauthorized provision that, on failure of a person convicted of a violation of the ordinance to pay a fine, the magistrate shall commit him to the county jail for ten days. Doran v. Camden, 35 Vroorn 666, followed.</p>

<p>In a suit upon two promissory notes, the defendant claimed they were void because the consideration for which they were given had failed, and the plaintiff denied that they were given for full consideration, and testimony was produced in support of both contentions. Held, that it was error to direct a verdict for the plaintiff.</p>

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

<p>1. Ordinance under review declared valid. Doran v. OamUen, 35; Vroom 666, followed.</p> <p>2. Conviction in summary proceedings means the establishment of the fact of guilt. If this is arrived at by proof, the proof must beset out in the conviction. If it is arrived at by a plea, the pleat must be set out, and if not challenged as record or as <to its le^ali results, the judgment based upon it is sound.</p>

This writ of error brings np a judgment in an action on contract. The action was founded on a written instrument, of which-the following is a copy: “Wallace, Multase & Co. (Limited.) “New Yoek, Sept. 30th, 1897. “Messrs. Wallace, Muller & Go., Ltd., 48 Pearl St., City: “Deae Síes—In accordance with our agreement, we-hereby guarantee to you that the duty on the 4,OOP bags of Dutch Sugar, bought to-day from Messrs.

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

On error to the Supreme Court. This cause was tried at the Ocean County Circuit Court, at the April Term, 1899, before Mr. Justice Van Syckel and a jury, and a verdict rendered for the defendant.

On error to the Atlantic Circuit Court. The case was tried •at the December Term, 1899, of said Circuit, before Mr. Justice Ludlow and a jury and a verdict rendered for the ■plaintiffs below.

<p>On error to the Supreme Court. Tried at the September-Term, 1899, by the Camden Circuit, before Mr. Justice Gar-' rison (a jury being waived).</p>

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

In tort. On error to the Supreme Court. The cause was-tried at the Union Circuit, before Hon. B. A. Vail, sitting as a Circuit judge, and a jury, at the January Term, 1900, and a verdict of $1,100 rendered for the plaintiff below.

<p>On motion to quash writ of error.</p>

<p>On the trial of an indictment, charging the defendant with the statutory misdemeanor of attempting to cause the miscarriage of a-woman pregnant with child) in consequence whereof the womaw died, the dying declarations of the woman are legal evidence.</p>

<p>Upon the trial of an action against a railroad company for the negligent manner in which its train was started from a station, there was conflicting testimony from which the 'jury might conclude that, the plaintiff boarded the defendant’s train as a passenger at its Paterson station; that the train was not in motion when he stepped on the lowest step of a car platform; that the platform and step were crowded with passengers; that in this condition the train started upon signals previously given by the conductor and1 brakeman; that by the starting of the train the passenger in front of the plaintiff was thrown against him and knocked off the step, and that the conductor and brakeman who had stationed themselves between the car steps to see to the loading of the train, had, after signaling to the engineer, left their posts and entered the cars before the train actually started so that they did not see the plaintiff at all. Held, that this was evidence to go to the jury upon the question whether the servants of the defendant had failed to use reasonable care to see that the plaintiff was not in such a position that he would be likely to be endangered by the starting of the train, and that a motion to nonsuit the plaintiff and a mo.tion to direct a verdict for the defendant were each properly refused.</p>

On error to the Supreme Court. Tried at the April Term, 1900, of the Hudson Circuit, before Mr. Justice Lippincott and a jury. The plaintiff was nonsuited. His action was for damages for the loss of the first two fingers of his right hand, which were cut off by the knife of “an egg noodle cutting machine,” at which he was working as a servant of the defendant. The plaintiff at the time was thirteen years of age.

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

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

<p>1. A covenant not to engage in a particular business will not invalidate the contract of which it is a part, if such contract has otherwise a legal consideration. The case of Fishell v. Ch-ay, 31 Vroom 5, approved.</p> <p>' 2. A New Jersey corporation engaged in the business of indemnifying against losses on credits, contracted with the plaintiff to act as its agent in Massachusetts for a term of years, and forthwith the plaintiff entered upon his duty as such agent, the insurance com- ■ missioner of Massachusetts having decided that it was lawful for-him to do so. During the prescribed term the corporation became-insolvent, and, for that reason, the contract was broken. Subsequently, the Supreme Court of Massachusetts decided, as is alleged, that the business was unlawful in that state. Held, that: such illegality is no defence to the plaintiff’s suit for breach of the-contract; it can effect only the extent of recovery.</p>

<p>1. Forfeiture clauses in insurance policies are not favored in the law. The rule as to them in this state is settled. The court will never seek for a construction of a forfeiture clause which will sustain it if one which will defeat it is reasonably deducible from the words or terms used.</p> <p>2. The words “occupied” and “unoccupied” in a policy of insurance will be given force with reference to the nature and character of the building, the purposes for which it is designed, and the uses contemplated by the parties as expressed in the contract. The construction given to these words as applied to a dwelling, will not cover a barn, a mill, a saw-mill, a factory, or school-houses, music halls, theatres or churches.</p> <p>3. A church building kept for use for the purposes for which it, is designed, and used as occasion presents, and .as the convenience of the congregation may require, and no intent appearing to abandon , it for the purposes of its use by the temporary periods of nonuser, even though such periods exceed the ten days’ limit in a policy, is not per se leaving the church building vacant and unoccupied within the forfeiture clause of the policy, and upon such proof alone a nonsuit was rightly refused.</p> <p>4. Where there is a conflict in the testimony; whether there is occupancy or non-occupancy, is a question of fact to be determined by the jury.</p>

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

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

<p>1. Words spoken of a person in his office, business or employment, imputing a want of integrity, of credit, or of common honesty, or charging personal incapacity, if without justification, are actionable without proof of special damage.</p> <p>2. Words thus spoken are to be understood in their plain and natural import, according to the ideas they are calculated to convey to those to whom they are addressed.</p> <p>3. If the words of the alleged slander are substantially proven it is sufficient.</p> <p>4. At the close of the plaintiff’s case the trial judge nonsuited the plaintiff. Held, that under the circumstances of the present case tnis was error, and that a venire de novo should issue.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 35 Vroom 65.</p>

<p>1. When credit is given to an agent, in ignorance of the agency, the creditor may, upon the disclosure of the principal, elect to hold either the agent or the principal.</p> <p>2. An action was brought against A to recover the price of goods sold and delivered, which the plaintiff had charged and billed to B. Held, that the fact that the goods had been charged and billed to a person other than the defendant, was not, per se, conclusive proof that the debt was not the debt of the defendant, and did not preclude the plaintiff from showing, if he could, that A was an undisclosed principal, and that B was his agent.</p>

<p>When a case turns on questions of fact as to which the proof is in substantial conflict, it is error to direct a verdict for the defendant.</p>

<p>1. The growing rapidity of train motion, not prohibited by law, on the steam railroads and over their highway crossings, tends to-create new and greater risks to the highway traveler and trains at such crossings, and demands the exercise of a degree of care in avoiding collisions, both by persons crossing and those in charge of the trains, in direct proportion to the added risks.</p> <p>2. G., while standing up on his open wagon loaded with stone, to-which his horses were' attached, in his effort to drive ahead of a westbound train which he saw moving toward him about three-hundred feet away, attempted to cross the defendant’s double tracks at a highway crossing, and was struck and injured by an eastbound express train, moving toward him at a high rate of speed from the opposite direction, but which an intervening hill' prevented him, after reaching the tracks, from seeing, until it was-about four hundred feet from him. Held, that he was clearly guilty of contributory negligence productive of his injury, which proper caution would have prevented, to be deduced from the-circumstances then existing, and more fully detailed in the following opinion.</p>

<p>1. Under the provisions of the city charter of Newark the municipal authorities have no power to pass an ordinance granting permission to a property owner to erect, construct and maintain an arch over a street, connecting buildings on both sides thereof.</p> <p>2. When the Supreme Court, on legitimate evidence, decides that the land of an individual will be depreciated in value by contemplated municipal proceedings, and thereupon holds him entitled to prosecute a writ of certiorari to test the legality of those proceedings, such decision is not reviewable on error.</p>

<p>Oil 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 35 Vroom 434.</p>

In ejectment. On special verdict. This suit was tried in the Circuit Court of the county of Union. A special verdict was taken, which was returned to this court by the postea. .The plaintiff now applies to this court for judgment in his favor upon this special verdict.

Oil demurrer to declaration. The plaintiff’s declaration contains three counts. To the first and second counts the defendant pleaded issuably. The demurrer is to the third count, and to this demurrer the plaintiff filed a joinder.

On demurrer. On ease certified from the Morris Circuit Court. This suit was begun by attachment against the goods and chattels, rights and credits, moneys and effects, lands and tenements of the Magnolia Metal Company, in an action upon contract. The defendant appeared. The plaintiff thereupon filed his declaration containing the common counts.

<p>1. Executors in selling land under a general power in a will may-divide it into lots and lay out streets through it and thus create easements of a right of way in the several purchasers, if the estate will be benefited by such a disposition of the property.</p> <p>2. Deeds made by executors under a power of sale in a will for lots with a description by boundaries on such streets, will create in purchasers an easement of the right to use the streets.</p> <p>3. The provisions of the Orphans’ Court act for the sale of lands of a decedent for the payment of his debts impose a' duty upon the Orphans’ Court to sell no more of the lands of the deceased than is necessary for the payment of debts after the personal property is applied.</p> <p>4. Comprised within the duty of the Orphans’ Court in the premises is an obligation to have the lands so set up for sale as that they may be sold on the most advantageous terms, that no more of the lands of the deceased shall be sold than is necessary to provide a fund for the payment of debts.</p> <p>5. The principle that justifies an executor in selling under a power contained in a will, in dividing the property into lots, laying streets through it, and creating easements of a right of way in the several purchasers, if the estate will be benefited by such a disposition of the property, applies equally to the Orphans’ Court in the exercise of its discretion.</p> <p>C. In making orders for the sale of lands of decedents for the payment of debts, the Orphans’ Court exercises a jurisdiction which, though limited, is not special. Its orders and decrees upon all subjects within the scope of its jurisdiction are entitled to every presumption in favor of their regularity that the judgments of this court are entitled to, and infirmities in the proceedings of the Orphans’ Court are not available in a collateral proceeding.</p> <p>7. The Orphans’ Court having jurisdiction to order the sale of lands of a testator for the payment of his debts, if there be irregularities or infirmities in the proceeding by which it exercises its jurisdiction, the order of sale might be set aside in a direct proceeding for review, but the conveyances made by the executor in pursuance of the'order of sale cannot be called in question or set aside in a collateral proceeding, much less in favor of a party who has not title to the premises.</p> <p>8. An acceptance by the public authorities of a dedication to public use is not essential to conclude the owner from the power of retraction where his intention to permanently abandon his property and dedicate it to public use is one unequivocally manifested. In that event, the right of the public to appropriate the lands to the public use at any future time when their wants or convenience require it, immediately attaches.</p> <p>9. The local municipal government within the limits of which the dedicated lands lie, by virtue of its representing the public, may maintain actions to vindicate the public right of possession.</p> <p>10. The township in this instance is the local municipal government which represents the public in this respect, and ejectment is the proper form of action to recover lands that they may be appropriating to public use.</p>

<p>On ease certified from the Circuit Court of Camden county.</p>

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

<p>The Circuit Court must settle all questions of fact before it can send-a certified case to this court as one of doubt and difficulty.</p>

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

<p>1. “An act relating to the office of receivers of taxes and treasurers in cities of this state,” passed March 31st, 1897 (Pamph. L., p. 142), violates that provision of the state constitution (Art. IV., § 7, pi. 11) which prohibits the passing of local and special laws regulating the internal affairs of towns and counties.</p> <p>2. The appointment to a municipal office for a definite term, and the acceptance of such office, do not create a contract between the appointee and the municipality. Hardy v. Orange, 32 Vroom 620, distinguished.</p>

<p>The starting of a trolley car before an infant passenger, who is in-her mother’s care, has been seated, is not, in itself, a negligent act.</p>

<p>' 1. Apprehension of personal injury, not in fact received, which is caused by the negligent act of another, will not support an action, even when physical suffering follows as a consequence of the fright.</p> <p>2. In the general conduct of business and the ordinary affairs of life, although a person is bound to anticipate and guard against consequences, which may be injurious to others, he has a right to assume, in the absence of knowledge to the contrary, that those who will be affected by his actions are of average strength, both of body and mind.</p>

<p>1. In a criminal prosecution mere irregularity of procedure, which is not objected to until after conviction and sentence, affords no ground for reversal of the judgment.</p> <p>2. A witness may be permitted to express his own opinion of the truthfulness of him, whose testimony is sought to be impeached, when the latter’s general reputation for truth and veracity is known to the witness, and his opinion is based thereon.</p>

<p>On error to the. Burlington 'Circuit.</p>

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

<p>1. If a thief may be said to be an accomplice of a person who receives from him stolen goods, knowing them to have been stolen, that fact alone will not justify the court in directing a verdict of acquittal against the receiver, even when the evidence of the receiver’s guilt may be solely that of the thief, if the testimony of the thief be supported by corroborating facts and circumstances.</p> <p>2. The purchase of goods very much below their value is an element which may be considered by the jury upon the question of guilty knowledge.</p> <p>3. The fact that the grand jury was sworn in the Quarter Sessions, in the absence of the justice of the Supreme Court pursuant to statute, and that the caption of an indictment returned by it was entitled in the “Oyer and Terminer” when the grand jury was subsequently received by the justice of the Supreme Court and the judge of the Common Pleas, and a rule was entered in the minutes of the Oyer, ruling the said indictment down to the Quarter Sessions, will not be considered as plenary evidence of the fact that the indictment was, as a matter of fact, returned into the Oyer, when the record shows that the return, signed by the foreman, “The bills herewith presented are true bills,” was entered in the Quarter Sessions minutes. The error in the caption is amendable if brought to the attention of the court by the prosecutor or on a motion to quash, and cannot be taken advantage of after trial and conviction in the Quarter Sessions on a motion in an arrest of judgment. The forty-fourth section of the Criminal Procedure act applies to such a case.</p> <p>4. The charge of the court upon an indictment for receiving stolen goods, that “that which a man ought to have suspected in the position of the defendant, he should have suspected and he must be regarded as having suspected, in order to put himself upon his guard and upon inquiry. The proof in any case is. to be inferential,” is error. The proof must be that the defendant1 had knowledge, not that he had suspicions.</p>

<p>Whether the striking of a match by the plaintiff to discover where the smell of gas, which he detects, comes from, is negligence which contributes to the injury resulting from an explosion caused thereby, will depend upon the circumstances of the case and is a question for the jury.</p>

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

<p>1. Where, in an action of tort, the damages are so exorbitantly high and so far exceed the injury sustained by the accident as to make it manifest that the verdict could not have been the result of a fair, impartial and dispassionate consideration of all the unimpeached evidence in the cause, the verdict should be set aside.</p> <p>2. Where it appears that the jury, in reaching its result in a cause, must have disregarded the whole range of the medical or other testimony of the plaintiff or defendant, notwithstanding the credibility of the witnesses stands unimpeached and that their testimony can be reconciled with’ the other evidence in the cause; this of itself is ground for a new trial.</p>

<p>Under the Death act the damages to be recovered by an executor or administrator are limited to the actual pecuniary loss of the next of kin of the deceased. Where it appears that there is no next of kin except a father, and that he has not been heard from for five years, and that the deceased was sixteen years of age at his death, a verdict of $900 is excessive. Telfer v. Northern Railroad Go., 1 Vroom 188, followed.</p>

<p>On error to the Quarter Sessions of Mercer county.</p>

On demurrer by the plaintiffs to the fourth plea of the defendant, and on' demurrer by the defendant to the replication of the plaintiffs to the third plea of the defendant.

<p>1. A declaration which sets out a bond to the Ordinary by a guardian with condition for the “faithful discharge of her trust as such ' guardian in respect to money so paid to her, and that if she should duly account according to law for the same, then the said obligation to be void or else to be and remain in full force and effect,” and which alleges a breach of such condition in that the said guardian “did not duly account according to law for said money so paid to her as such guardian but did wholly neglect and refuse and still does neglect and refuse so to do” and which concludes with the statement that “neither the said guardian nor the obligors or either of them, though often requested so to do, have paid said money or any part thereof to the plaintiff or otherwise, but have wholly neglected and refused so to do,” is good.</p> <p>2. When a' bond is “to render a just and perfect account in writing of all sums received,” if the obligor neglects to turn over, he is guilty of a breach of the condition.</p> <p>3. It is no cause for demurrer to a declaration against an executor, that the said declaration does not contain an averment that proof of the claim has been filed with the executor before the commencement of the suit.</p>

<p>1. It is a question of fact for the jury whether the maintenance by the defendant of a mechanical contrivance in a public highway, and the sudden raising of a red flag thereby, without warning of any kind, thus frightening the plaintiffs’ horse and causing an accident which results in the injury complained of, is a negligent act which is the proximate cause of the injury.</p> <p>2. The charge of the court that the jury might, in fixing the damages of the wife, consider the remote possibility of her husband’s death and in the event thereof the possible loss to her in her earning power thereafter, was error, but in view of the reasonableness of the damages awarded in the case, considering the character of the injuries to the wife and the evident lack of harm to the defendant arising from the erroneous instruction, the verdict should not be set aside. Harmless error is not a ground for reversal.</p>

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

Certified case. Question, of tire sufficiency of the petition to contest an election under the one hundred and sixty-third section of the act-respecting elections. Rev. 1898.

<p>Certified case. Question of the sufficiency of the petition to contest an election under the one hundred and sixty-third section of the act respecting elections. Rev. 1898.</p>

On demurrer .to the declaration by the defendant, the city of Cape May, and on demurrer to the plea of the statute of limitations of two years, filed by the other defendants.

<p>Where the evidence is conflicting upon the question of the defendant’s negligence, or as to whether the negligence of the plaintiff contributed to the injury, the case is a proper one for the jury.</p>

Case heard on agreed facts at the bar of the court, a jury being waived. The following are the agreed facts: “It is agreed between counsel that the foregoing case shall be argued before the bar of the Supreme Court on the pleadings and the following facts: “George S. Duryee, the defendants’ testator, was commissioned as commissioner of banking and insurance'on June 23d, 1891, to fill a vacancy.

<p>On demurrer to declaration.</p> <p>The following is a copy of the obligation sued upon >in this case:</p> <p>“Know all men by these presents: That Peter Greenwald, of the town of Stockton, county of Camden, State of New Jersey/ as principal, and the Fidelity and Deposit Company of Maryland, a corporation created and existing under the laws of the State of Maryland, having its principal office in the city of Baltimore, Md., as surety, are held and firmly bound unto the town of Stockton, in the county of Camden, in the sum of thirty thousand dollars ($30,000) lawful money of the United States of America, to be paid to the said town of Stockton, in the county of Camden, its certain attorney, successors and assigns, to which payment, well and truly to be made, the said Peter Greenwald binds himself, his heirs, executors and administrators, and the said Fidelity Deposit Company of Maryland binds itself, its successors and assigns, jointly and severally, firmly by these presents.</p> <p>“Sealed with our seals and dated this first day of June, in the year of our Lord one thousand eight hundred and ninety-six.</p> <p>“Whereas, at a meeting of the town council of the town of Stockton, in the county of Camden, held on the 26th day of May, a. D. 1896, the above bounden Peter Greenwald was appointed town treasurer of said town of Stockton until the appointment and qualification of his successor.</p> <p>“Now the condition of this obligation is such that if the above bounden Peter Greenwald shall properly deposit all moneys received by him as town treasurer, to the name and credit of the town of Stockton, in such bank or banks as shall be approved by the financial committee of the town council, keep regular accounts of moneys received and paid out by him as such town treasurer; make monthly detailed reports of the receipts and disbursements of the treasury during the month; turn over to his successor in office all moneys, books, papers, vouchers, goods, chattels and effects belonging to the town of Stockton, which shall come into his hands as such town treasurer, and shall faithfully and impartially perform all other duties which by law or ordinance, now or hereafter, may be required to be performed by him as such town treasurer, not only for the term hereinafter sped-fled, but for and during such succeeding terms as said above bounden shall continue to perform the duties of the office of such town treasurer.</p> <p>“It is further mutually agreed and understood between all the parties hereto, that the Fidelity and Deposit Company of Maryland may, upon giving at least thirty days’ notice in writing to the town council of the town of Stockton, in the county of Camden, State of Few Jersey, terminate its liability hereunder, in so far as concerns the acts or defaults of said Peter Greenwald, subsequent to the end of such thirty days, in which event the Fidelity and Deposit Company of Maryland, upon request, will refund the proportion of the premium paid for the unexpired term of this bond, then the above obligation to be void, otherwise to be and remain in full force and virtue.”</p>

<p>1. The general rule is that courts will refuse to quash an indictment, unless the reason for quashing it is entirely clear.</p> <p>2. The interlocutory proceedings of a Court of Quarter Sessions upon a valid indictment should not be brought into the Supreme Court for review before final judgment.</p>

<p>Under the Corporation Tax act (Gen. 8tat., p. 3335), the 18th day of April in each year is the date on which the capital stock of miscellaneous corporations is to form the basis for computing the annual tax of one-tenth of one per cent.</p>

<p>On certiorari.</p> <p>For the prosecutor, Randolph, Gondict & Blade.</p> <p>For the defendant, G. Augustus Muir.</p>

<p>Under the supplement to the charter of the city of Hoboken (Pamph. L. 1871, p. 1417), the rate of taxation for city purposes is not limited, as it previously had been, to eight mills on each dollar of ratables.</p>

<p>1. The provision in the supplement to the charter of the city of Hoboken, approved March 23d, 1859 (Pamph. L., p. 654), which directs the commissioners of appeal to reduce the valuation of an individual’s property, for the purpose of taxation, to the sum specified by the owner under oath, was annulled by the constitutional amendment of 1875 requiring property to be assessed at its true value.</p> <p>2. The commissioners of appeal having, under that supplement, illegally ordered a reduction of the valuation of the prosecutor’s property, and the collector having disregarded the order, this court, in obedience to the act of March 23d, 1881 (Gen. Stat., p. 3404), affirmed the tax on the original valuation, which did not exceed the. true value of the property.</p>

<p>1. The act of April 2d, 1888 (Gen. Stat., p. 2210), does not authorize municipal corporations to enter into contract with another party by which the latter shall furnish a supply of water to the inhabitants of the municipality and collect from them therefor such rents as it shall from time to time prescribe-within certain limits fixed by the contract with the municipal corporation.</p> <p>2. An important part of an ordinance being illegal, other connected parts must be deemed invalid.</p>

<p>The act of April 2d, 1888 (Gen. Stat., p. 2210), is a general law passed in obedience to the constitution of the state, and as such it supersedes and annuls all prior special and local laws which authorized municipal corporations to contract for a supply, or further or other supply of water, for the use of such municipalities or the inhabitants thereof.</p>

<p>On certiorari.</p>

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

<p>The act concerning assessments, approved April 1st, 1898 (Pamph. L., p. 203), is constitutional, so far at least as it provides for the levying of assessments for benefits accruing to land from local improvements and the creation of liens therefor, and is applicable to lands the title of which is vested in the Chancellor of the state in trust for the benefit of A during her life, and after her death for the benefit of persons who cannot be ascertained until she dies.</p>

<p>On certiorari.</p>

<p>An unexplained delay of three years in prosecuting a writ of certiorari to remove an assessment of taxes, held to be laches.</p>

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

<p>1. Under section 57 of “An act concerning townships” (Rev. 1899; Pamph. L., p. 372), whenever a police department has been lawfully established for any township, it is the right and duty of the township committee thereof to ordain laws for its management, which may, at its discretion, include a tenure' of office such as that adopted in,this case.</p> <p>2. Ordinances for municipal regulation passed under a delegation of legislative authority have, within their respective spheres, the force of general laws.</p> <p>3. Under the statute above cited, the township committee of the township of Weehawken had no authority to appoint members of a police department so long as an. ordinance under which the prosecutors had a tenure of office was unrepealed.</p> <p>4. The case of Bradshaw v. Camden, 10 Vroom 416, followed; that of MaiMs v. Rose, 3,5 Vroom 45, distinguished.</p>

<p>On certiorari to review an ordinance of the -township of Weehawken.</p>

On rule to sbow cause why a mandamus should not issue. This matter was heard upon the following agreed state of facts: It is stipulated and agreed by and between the attorneys of the respective parties in the above-stated action that said cause be disposed of upon the following agreed state of facts: First.

On certiorari. The following indictment has been removed into this court and a motion made to quash it: “Cumberland County, to wit. “The Grand Inquest, for the State of New Jersey, and for the body of the county of Cumberland, upon their respective oaths present that Jacob Nelson, late of the township of' Commercial in the county of Cumberland, on the twentjrfirst day of December, in the year of our Lord one thousand eight hundred and ninety-nine, at the township of…

On certiorari. The following indictment has been removed into this court and a motion made to quash it: “Cumberland County, to wit. “The Grand Inquest, for the State of New Jersey, and for the body of the county of Cumberland, upon their respective oaths or affirmations, present that Isaac Corson, Jr., late of the township of Commercial, in the county of Cumberland, on the tenth day of February, in the year of our Lord one thousand nine hundred, at the township of…

Hpon an application under the Road act (Gen. Stat., p. 2803) for the vacation of a public road connecting two other public roads in the township of Eranldin, in the county of Bergen, the Court of Common Pleas of that county made the statutory appointment of six of the surveyors of highways, and. they made a return vacating a part only of such road.

On certiorari. On November 25th, 1899, a writ of attachment was ordered and issued out of Essex County Circuit Court, under the act of March. 10th, 1893 (Gen. Btat., p. 2601), authorizing such a writ in cases of fraud. The writ was returnable December 9th, 1899, and was duly executed on goods and lands and duly returned. On December 9th, 1899, the defendant entered his general appearance in the action and served notice thereof.

On certiorari. On June 29th, 1899, the following petition was presented to the city council of Camden: “We, the undersigned property owners in the first ward of the city of Camden, hereby petition your body to order York street, from Point street to Third street, paved with sheet asphalt. And your petitioners will ever pray/’ &c. Thirty-six signatures.

<p>1. A purely educational association is not subject to assessment under “An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof,” approved April ISth, 18S4, and its supplements (Gen., Stai., p. 3335 et seq.), although formed under the General Corporation act, with capital stock and conducted for the private benefit of the stockholders.</p> <p>2. Qucere. Was it in 1895 lawful to organize such an association under the General Corporation act, there being then other general statutes providing for incorporation of societies for the promotion of learning?</p>

On certiorari. The plaintiff recovered a judgment for $592.39 in the Circuit Court of the county of Hudson against the defendant, a person of unsound mind, for whom an attorney was appointed by the court. Execution was issued and returned unsatisfied.

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

On rule to show cause why the venue laid in the plaintiff’s declaration in Hudson county should not be changed to Morris county.

<p>A mortgage on lands was given to secure a bond and warrant of attorney to confess judgment. The mortgagor afterwards conveyed the mortgaged premises to a third person with an agreement that the grantee should sell the premises clear of the lien of the mortgage, and apply the proceeds to the payment of the amount due on the bond and warrant so far as they would extend. Held, that after such sale by the gr.antee and the application of the proceeds of sale in accordance with said agreement the mortgagee could lawfully enter judgment upon the bond and warrant, and that the forty-seventh section of the act concerning proceedings on bonds and mortgages (Gen. Stat., p. 2112) does not apply.</p>

<p>Flagging of sidewalk laid by the borough in 1896, in the presence and' with the knowledge of the landowner, the assessment therefor made in February, 1897, and writ of certiorari issued in September, 1899—Held, that prosecutrix cannot after such lapse of' time take advantage of the want of regularity in the proceedings, of the borough, and the writ is dismissed for laches in suing it out-</p>

<p>On contract. On rule to show cause why venue should not be changed.</p>

<p>1. After bond given and appearance entered in attachment, the writ of attachment will not be quashed, but if it clearly appears that it is sued out wholly for a claim for which attachment will not lie, or against a person who is not subject to attachment, the property attached will be discharged from the lien attempted to be imposed upon it.</p> <p>2. If there is a question of fact as to the existence of a claim for which attachment will lie, the plaintiff is entitled to go to a jury upon it, and the lien will not be vacated.</p>

<p>1. A proceeding under the Borough act of 1897 for the condemnation of lands for widening a street tends to impose a pecuniary obligation on the borough and a resolution providing for such condemnation must, under the twenty-seventh section of said act, be submitted to the mayor for his approval.</p> <p>2. A petitioner for such improvement and condemnation is interested in it, and is disqualified to act as a commissioner to assess the damages of the owner of lands taken.</p> <p>3. The report of the commissioners of assessment must show affirmatively that they have made a just and equitable assessment as required by section 58 of the act.</p>

<p>It must appear affirmatively that the statutory notice of' hearing was given to the landowner assessed for benefits in the opening .of a street, and also that the assessment made against him is not in excess of the benefits conferred upon his lands.</p>

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

<p>1. Where no notice by advertisement or otherwise was given to a prosecutor of the proceedings for vacating a road and laying out a new road, and he- was and is a non-resident, be is not guilty of laches in applying for a writ of certiorari within thirty days-after the consummation of the proceedings in the Common Pleas.</p> <p>2. The act of 1890 (p. 247) provides a mode of altering short pieces-of a public road by vacating it, or a portion thereof, by relaying the same, or substituting another road therefor; does not authorize the vacation of an existing road and the laying out of a new road in another place, whereby the prosecutor is entirely deprived-of the way from his farm over the road vacated.</p>

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

<p>1. Where the entire record of the proceedings had upon the trial has been returne 1 by the defendant with the writ of error, under section 136 of the Revised Crimes act, and the only cause for reversal specified is that judgment passed against the defendant instead of against the state, no other error can be considered.</p> <p>2. Where defendant was one of a party of four who assaulted an officer, but did not actually strike the officer, yet was present aiding and abetting the attack, he was guilty of assault and battery.</p>

<p>A corporation cannot evade liability on a contract made by its general manager, upon the ground that the making of the contract was not within the scope of his powers, when it appears that the contract was made by him in pursuance of specific instructions from the vice president and managing director, each having full power to confer upon him such authority.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 113.</p>

<p>Plaintiff was the tenant of one of the defendants, under a written lease, for the term of one year, from April 1st, 1899, at the rent of $202, “payable as follows: $22 a month for the six months, April, May, June, July, August and September, and $11.67 per month for the remainder of the year.” Held—</p> <p>3. That by the terms of the lease each monthly payment became due at the end of the month, and that a distress warrant for the August rent, issued and executed on August 2d, was premature.</p> <p>2. That evidence that the parties, at the time of the execution of the lease, agreed, by parol, that each monthly portion of the rent should be paid in advance, was properly excluded, because it tended to alter and ■ vary a written contract complete upon its face.</p>

On error to the Court of Oyer and Terminer of the cpunty of Monmouth. The plaintiff in error was indicted for murder in causing-the death of James Walsh, a constable of the county of Monmouth, on ^November 13th, 1899. At the trial he was convicted of murder of the first degree and sentenced to death.. Thereupon he sued out this writ of error.

<p>1. The plaintiff filed a lien claim on the 14th of March, 1898, on the property of the Eden Mills Paper Company, builder and owner, claiming a lien upon the premises for materials -furnished. Judgment by default was entered for $1,512.89, both generally against the Eden Mills Paper Company, as builder, and specially as a lien upon the premises mentioned. The defence is that the plaintiff has not prosecuted his claim in the manner required by the statute, and that by reason of his failure in that respect the lien was discharged. The statute in question provides, among other things, that “if such claimant shall fail to prosecute his claim diligently within one year from the date of the issuing of such summons or such further time as the court may by order direct, such lien shall be discharged.” Gen. Siat., p. 2074. The judgment in this case was not entered until the 13th of July, 1899, more than one year after the issuing of the summons. In all other respects the suit was prosecuted strictly in conformity with the act. On June 3d, 1899, which was more than a year after the date of the furnishing of the last materials for which the lien was claimed, and more than a year from the date of issuing the summons on the mechanics’ lien, the judge at the Circuit made an order allowing the plaintiff three months further time from the date of the order to prosecute his claim upon the mechanics’ lien. Held—</p> <p>1. That an order extending the time to prosecute the claim must be made while the lien claim is still in force and undischarged. The act was designed to permit the court to enlax-ge the time for the prosecution of the lien claim, and cannot be construed to authorize the court to revive a lien claim which by force of the act has expired.</p> <p>2. The language of the statute, “px-osecute his claim diligently,” does not mean that the suit shall be prosecuted in strict conformity with the prescribed procedure. “Diligently” is a word of indefinite signification. “Diligence” and “negligence” are relative terms, depending upon varying circumstances. Ordinary diligence is defined to be that degree of care which men of common prudence generally exercise in their affair’s, and depends upon the circumstances of the particular case.</p> <p>2. On the day the lien claim was filed the paper company went' into the hands of a receiver appointed by the Court of Chancery. The debt due to the plaintiff from the'company was admitted by the receiver, and the px'operty on which the lien was claimed was sold by the receiver and purchased by George A. Bagley, who purchased subject to the claim of the plaintiff. On May 29th, 1899, the plaintiff presented a petition to the Chancellor, asking permission to prosecute his suit on the mechanics’ lien, and the Chancellor made an order to that effect. This order was filed in the office of the clerk of the couxxty of Morris on the 3d of June, 1899. The same day the judge of the Circuit Court granted a rule requiring the defendant to plead within thirty days after service, &c. This rule was duly served on the president of the Eden Mills Paper Company, personally, on June 12th. No plea or demurrer having been filed within the time limited by ihe order, on the 13th of July, 1899, judgment final was entered. Held, that while the appointment of a receiver did not per se stay the plaintiff’s suit, yet such an appointment does operate practically to stay suits which are in progress for or with a view to the establishment of liens upon the property of the insolvent. The plaintiff would have gained nothing by the entry of the judgment except an ascertainment of the amount of his claim which, in fact, was not and is not disputed. Under such circumstances it cannot be said that the plaintiff was guilty of negligence in not having done the nugatory act of entering judgment.</p> <p>3. On August 7th, 1899, Bagley filed his petition in the Circuit Court in the name of the Eden Mills Paper Company and the receiver, asking that the judgment be opened or set aside for the non-compliance of the plaintiff with the provisions of the Mechanics’ Lien act. On presenting this petition, the judge of the Circuit Court granted a rule to show cause, with leave to take depositions. This rule was discharged on the 16th of October, 1899. Held—</p> <p>1. That the judgment as against the Eden Mills Paper Company was regular, and that Bagley having become the purchaser at the receiver’s sale, not only with knowledge of the plaintiff’s claim, but subject to it, had no equitable ground on which to ask that the judgment be opened or set aside.</p> <p>2. The judgment in this case being regular, whether it should be opened to admit a defence to the suit was a matter largely in the discretion of the Circuit Court. This court, on a writ of error, will not interfere with that discretion, unless for substantial reasons.</p>

In tort. On error to the Supreme Court. This cause was tried at the September Term, 1898, of the Middlesex Circuit, before Justice Collins and a jury, and a verdict rendered for the defendant.

<p>On error to the Supreme Court. Por opinion of the Supreme Court, see ante p. 161.</p>

<p>On error to the Supreme Court. The opinion of the Supreme Court is reported in 35 Vroom 532.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, .see 33 Yroom 142.</p>

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

<p>1. An indictment for obtaining money by the false pretence that a certain lot of land was unencumbered, should negative the pretence by stating the encumbrance which existed; but a general averment, that the pretence was false, will be deemed sufficient after verdict.</p> <p>2. If, after contracting to convey a lot of land to A. and obtaining from him part of the price by the false pretence that the lot is unencumbered, the defendant conveys the lot to a stranger, that fact may be proved, on trial of an indictment for the false pretence, as evidence of the defendant’s intention to defraud A. by making the pretence.</p>

<p>On error to the Supreme Court. Eor opinion of the Supreme Court, see 35 Vroom 123.</p>

<p>Where fixtures have been constructively severed from the freehold, but their physical annexation is permitted by the purchaser of the realty and of the fixtures, to remain undisturbed, the execution, by such purchaser, of a subsequent conveyance of the realty, in which the fixtures are not referred to either by way of transfer- or of reservation, is a constructive re-annexation of the fixtures to the freehold, and makes them a part thereof.</p>

<p>On. error to the Supreme Court. The opinion of the Supreme Court is reported ante p. 377.</p> <p>The revised charter of the city of Newark, approved March 11th, 1857 {Pamph. L., p. 116), provides, in its twenty-first section, that the common council shall from time to time appoint certain officers named and such others as they shall think necessary, and'that “every person who shall be appointed to any office under the provisions of this act shall be a resident and elector of the said city, and shall continue in office until the office for which he shall have been appointed shall be declared vacant or until another person shall, be appointed to succeed him and shall enter upon the duties of his office.” A supplement, approved March 16th, 1859 {Pamph. L., p. 476), repeals a'charter provision for the election of collectors of taxes for the city wards, and enacts that “the common council shall from time to time appoint-a receiver of taxes for the city, who shall possess the qualifications, continue in office for the term, and be appointed in the manner specified” in said twenty-first section and perform the duties theretofore imposed on the several ward collectors.</p> <p>On May 21st, 1897, the common council of said city •appointed Andrew G. Yogt as such receiver of taxes and he duly qualified and took possession of the office.</p> <p>In January, 1899, the following was promulged as a city ordinance, viz.: “The receiver of taxes of the city of PTewark now holding office, and every receiver of taxes of said city who shall be hereafter appointed, shall hold such office for the period of five years from the date of his or their appointment, respectively, by the common council.”</p> <p>On May 4th, 1900, said common council passed resolutions as follows,:</p> <p>“1. Moved that the position of 'receiver of taxes now held • by Andrew G. Yogt be and the same is hereby declared vacant.</p> <p>“2. Moved that Edward PI. Uffert be and he hereby is .appointed receiver of taxes at the annual salary of twenty-five hundred dollars, payable monthly.”</p> <p>Mr. Uffert duly qualified and demanded the office, but Mr. Yogt refused to surrender it, until after judgment against him upon his demurrer to an information in the nature of a quo warranto setting up above facts; which judgment he now brings to this court by writ of error.</p>

<p>On error to the Supreme Court, on affirmance of a conviction in the Hudson Quarter Sessions. The opinion of the Supreme Court is reported ante ¶. 192.</p>

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

<p>1. By the common law it was the duty of everyone against whose person or property a crime had been committed, to prosecute the guilty one to conviction. He was in the discharge of his duty, often compelled to employ counsel, procure the indictment to be drawn and laid before the grand jury, with the evidence in its support, and if found, to see that it was properly prosecuted before the jury of trials.</p> <p>2. The common law rule is not observed with us. The reason for its adoption does not obtain here. We have public prosecutors, in every county. AVith us, whatever be the English usage, the true rule is believed to be that the party may institute the proceeding for damages as promptly as he chooses, only he must not bring on the trial in advance of his public duty.</p> <p>3. The duty of a private person ceases when he has made his complaint and appeared before the grand jury and secured or failed to secure an indictment.</p> <p>4. The declaration of any party to a cause as to the subject-matter of the controversy—the issue in the cause—is competent to be proven by the opposite party as a substantive matter of proof for the plaintiff or defendant.</p> <p>5. Where a witness, who is also a party to the action, has made-material statements out of court which are in conflict with his testimony, the opposing party may prove them without first laying-a foundation for the reception of the evidence upon the cross-examination of the witness. The fact that a party chooses to-take the witness-stand in his own behalf can in no way limit or restrict this rule.</p>

<p>1. It is not error to refuse to direct a verdict for the defendant when there is evidence upon the question of the defendant’s negligence and of the plaintiff’s contributory negligence in addition to that of the happening of the accident from which the defendant’s liability may be fairly inferred.</p> <p>2. Evidence that plaintiff was intoxicated on occasions previous to the accident is irrelevant and incompetent.</p> <p>3. Where the proof of the intoxication of the plaintiff at the time of the accident depends upon the testimony of several witnesses as to various actions of the plaintiff from which intoxication might be inferred, a direction of the judge that the jury must find intoxication of the plaintiff before considering its effect upon the question of contributory negligence, was proper.</p> <p>4. The charge of the judge that “he [the motorman] says he took the risk. The company should not take risks” and “he [meaning the plaintiff] had, you may say, a right to assume that a trolley car would not run into him,” taken in connection with the rest,of the charge and the evidence in the case, held proper.</p>

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

<p>1. Where the constitution and by-laws of a mutual beneficial association limit the appointment of its officers and the scope of their powers and duties, and forbid the alteration or amendment of such constitution, except by the governing body in the mode therein provided; and where the members of such association have agreed as part of their contract of membership, to strictly comply with the laws, rules and regulations of the association, the officers thereof have no power to waive the provisions of such by-laws as relate to the substance of the contract between the individual member and his associates in their corporate capacity.</p> <p>2. In a suit by the wife of a member of such an association who was the beneficiary named in the certificate, to recover the amount of the death benefit named therein, proof of parol declarations of the secretary to the plaintiff, waiving the payment of assessments for death benefits required by the by-laws, until such time as she should find out whether her husband was dead or alive, was admitted in evidence by the trial judge over objection. Held, on review, that this was error.</p>

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

<p>Whore an agent was employed to negotiate a mortgage loan for his principals upon their property, by a writing which also authorized him to bind them to pay for making “complete searches” of the title to premises proposed to be mortgaged, it was held, that an agreement by him, assuming to act as their attorney, with the loaning company, that he would arrange for giving it “clear title insurance with the mortgage security,” was ultra vires of such written authority.</p>

<p>The redemption from tax sale contemplated bj- the statute of this-state (Gen. Stat., p. 3354, pi. 338), amended by act approved" May 18th, 1898 (Pamph. L., p. 457), must be exercised either by an owner of the lands sold, or by one who holds a lien or right of possession, and therefore owns some estate in such lands.</p>

<p>Oil error to the Gloucester County Circuit Court, upon a judgment on verdict rendered in a cause tried in said court, where the right to use a certain road or private way was in issue.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante ¶. 87.</p>

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

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

<p>On error. Beacon avenue case.</p>

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

<p>On error to the Supreme Court. For opinion of the Supreme Court, see 35 Vroom 510.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 133.</p>

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

<p>On error to the Supreme Court. The opinions of the Supreme Court are reported in 25 Vroom 446.</p>