Volume 66 — New Jersey Law Reports

<p>1. In an action by an administrator appointed by letters issued by the surrogate of the county of Essex, in this state, to recover damages for death caused by wrongful act, neglect or default, under the statute (Gen. Stat., p. 1188), the declaration averred that the wrongful act of the defendant causing death was done in this state and that the deceased .died here. The defendant pleaded that the grievances in the declaration mentioned were committed jointly by the defendant and the Pennsylvania Railroad Company, a corporation of the State of Pennsylvania, and that one G. Branehi, being the administrator of the said deceased duly appointed by the Surrogate’s Court of the county of New York, by his deed, under seal, &c., did release and discharge said Pennsylvania Railroad Company from all claims and demands which the said Branehi, as administrator, had or might have against the said Pennsylvania Railroad Company by reason of the personal injuries sustained by the deceased, whereby he lost his life, &e. Held—</p> <p>1. That a replication that the defendant and the Pennsylvania Railroad Company were not joint tort-feasors, is good as a traverse of a material averment in the plea.</p> <p>2. A replication which sets out that the deceased, at the time of his death, was a resident of and domiciled in the State of New Jersey; that the cause of action arose in the State of New Jersey and has always been outside of the State of New York, is a good replication to a plea alleging release by an administrator appointed in the State of New York.</p> <p>3. The grant of administration on the personal estate of a deceased is vested primarily in the courts of his domicile. Administration taken out in another state is ancillary to the administration in the forum of the domicile.</p> <p>2. The damages recovered u^der the statute, being the property of the widow and next of kin, do not go into the personal estate of the deceased to be applied to the payment of debts. The action is brought wholly for the benefit of the widow and next of kin, and the administrator on the record is a formal party for the maintenance of the action. Where the cause of action arose in this state, and is prosecuted by an administrator appointed in this state, a release given by a foreign administrator, without the approbation or consent of the widow and next of kin, is a nullity.</p> <p>3. A replication to a plea setting up a release by the foreign administrator, charging that the defendant, fraudulently contriving with the railroad company to deprive the widow and next of kin of the 'rights and benefits accruing to them under the statute, procured the said foreign administrator to be appointed for the purpose of having him release all right of action vested in'the personal representative of the deceased, and that the foreign administrator, carrying out the design of the said conspiracy, fraudulently and secretly, without the consent of the widow or next of kin, by false representations, obtained the grant of letters in New York, is good.</p> <p>4. To maintain the case set up in this replication it is not necessary to attack the grant of administration in New York, nor is it necessary to have it set aside. The next of kin in this state who are prosecuting this suit may avoid a settlement for fraud such as is charged in this replication, without having the letters to Branehi in New York vacated or the release set aside by a formal suit. So far as this suit is concerned, the letters in New York and the release by the foreign administrator are nullities.</p>

<p>1. A contract in writing- dated September 24th, 1897, was entered into between the electrozone company, a corporation conducting the business of manufacturing what is known as electrozone and medetrina, the party of the first part, and W. A. Mears and W. H. Hibbard, parties of the second part, whereby the parties of the second part agreed that they would order for the first year from and after the date of said agreement not less than one thousand gross of bottles of electrozone or medetrina, or both, and pay therefor $20 per gross of bottles, and in consideration thereof the electrozone company agreed to sell and deliver to the said parties of the second part said quantities of electrozone and medetrina at said prices. The declaration charged that the defendant did not purchase the quantity of goods specified in the period of one year from the time the agreement was made, but defaulted in the purchase of seven hundred and thirteen gross and ninety-four bottles. This suit is brought to recover damages represented by the loss of profits occasioned by the failure of the defendant to purchase the quantity of goods specified in said agreement. The contract contained the following- provisions: “If the parties of the second part shall fail to order and purchase from the party of the first part and pay for, during any one of the aforesaid periods, the amount of electrozone or medetrina in the last aforesaid article of this agreement provided to be ordered, purchased and paid for during said period, this agreement shall thereupon, ipso faoto, and without any notice, action or proceedings on the part of the party of the first part, become null and void, and all rights and interests thereunder of the parties of the second part shall be immediately forfeited to the same extent as if this agreement had never been made.” Held, that the right to rescind for the failure of the parties of the second - part to perform their contract was conferred on the party of the first part, and did not include the right Of the parties of the second part to work a rescission by their own breach of contract.</p> <p>2. The contract sued on provided that “this agreement shall be binding upon the successors and assigns of the parties hereto.” Contemporaneous with the making of this agreement, Mears and Hibbard assigned all their right, title and interest in and to the foregoing agreement to the Electrozone Commercial Company, and the Electrozone Commercial Company accepted such agreement, and the electrozoné company thereby ratified and confirmed “such assignment and acceptance.” This agreement was under seal and was signed by all the parties at that time in interest. Held—</p> <p>1. That the general rule is that the liability to an action on a contract cannot be transferred or assigned. This doctrine rests upon the principle that the promisee cannot be compelled by the promisor or a third party to accept performance of the contract from anyone but the promisor-. This rule is subject to some exceptions. Thus, the liability may be assigned with the consent of the party entitled, but this is in effect the rescission by agreement of one contract and the substitution of a new one, in which the same acts are to be performed by different parties.</p> <p>2. The acceptance by the electrozone company of the assignee as the party to perform the agreement is clearly expressed in the assignment, and the contract of the defendant to accept the agreement shows the transaction to be an assumption by that company of the liabilities on the part of Mears and Hibbard expressed in the agreement.</p>

<p>Where a rule to show cause is granted at the Circuit, reserving exceptions, this court will not on the hearing of the rule to show cause consider any question that is embraced within the exceptions.</p>

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

<p>In an action for a tort the defendant pleaded a parol contract by the plaintiff discharging the defendant from liability, and the plaintiff replied that the contract had been obtained from him by fraud and deceit on the part of the defendant. Held, on demurrer, that the general averment of fraud, without setting forth the particulars, was sufficient.</p>

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

<p>1. Tlie conditions of this case were such as to warrant a jury in applying the rule, that if a steam railroad company creates extraordinary dangers at a highway crossing, it must use extra precautions to give notice of approaching trains.</p> <p>2. The conditions of this case were not such as to require the trial justice or the jury to find that the plaintiff had been guilty of negligence contributing to the accident for which the suit was brought.</p>

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

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

<p>1. An offer to enter into a contract must be accepted within a reasonable time in order to render it obligatory.</p> <p>2. An option to sell at a fixed price an article of fluctuating value must be exercised promptly.</p> <p>3. An option to deliver five thousand shares of corporate stock at fifty cents a share, “on or after three months from November 6, 1891,” expired before April, 1898.</p>

<p>On case certified from the Passaic Circuit Court.</p>

<p>The existence of a duty on the part of a telephone company, when' constructing a subway, to anticipate and provide against the accumulation of illuminating gas therein, depends upon whether or not the escape of such gas from the mains and service pipes of the gas company can be prevented by the latter by the use of reasonable care.</p>

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

<p>This case comes before the court on an application to enter judgment on a special finding of facts contained in the postea sent up by the Hudson Circuit Court, where the case went for trial.</p>

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

<p>By the provisions of the School law all controversies arising under it are, in the first instance, to be determined by the county superintendent, whose decision is subject to an appeal to the state superintendent of public instruction, the decision of the latter official being reviewable, on appeal, by the state board of education. - Held, that -these special tribunals created by the statute, have exclusive jurisdiction over all such controversies; and that an-action at law cannot be maintained by a public school teacher for the purpose of contesting the legality of the action of a local school board in dismissing him before the term of service provided in his contract of employment has expired.</p>

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

<p>On demurrer to return to alternative writ -of mandamus.</p>

On case certified from the Circuit Court of the county of Essex, condensed as follows: On September 1st, 1894, the plaintiff, by written lease, under seal, demised to the defendants, for a term of five years, from October 1st, 1894, at the yearly rent of $1,100, payable monthly, in advance, the “Essex Hotel,” on Washington Place, East Orange, access to which, by passage-way from Prospect street, was thereby guaranteed'.

On special finding. On May 13th, 1896, the Passaic county freeholders awarded a contract for the mason work of a bridge, which it had legal power to build, to Stanley & Shire, the lowest bidders, with a proviso that the contractors should furnish a bond satisfactory to the director of the board. On.

<p>Where trees valuable only for lumber or cordwood are cut down by a trespasser under circumstances involving no peculiar injury to the landowner, punitive damages are not recoverable even though permission to cut was asked and not granted. In such a case the true measure of damage is just compensation.</p>

<p>On the trial of a suit for the price of goods delivered to a subcontractor for use in a building on land owned by the defendant and erected with his funds, it was proved that the subcontractor, being denied credit for the goods, referred the seller’s agent to the defendant and that the agent, by telephone, made inquiry of the defendant, through an employe who answered the call, and who, as he testified, reported at once the inquiry to the defendant, and, in his hearing, as admitted by the defendant, returned his reply. The substance of this telephonic conversation was disputed in the testimony. The version of the seller’s agent was that he asked if the defendant would pay the bill of goods ordered and was told after a short interval that he would in these words: “I have just spoken to Mr. Moore. He will pay this bill for the goods.” Reid—</p> <p>1. That it was legally permissible for the jury to accept the agent’s version of the conversation as establishing the contract between the parties, and</p> <p>Ú. That the promise proved was original, not collateral, and therefore need not, under the statute of frauds, be in writing in order to be actionable.</p>

<p>In a suit on a beñefit certificate issued by an incorporated fraternal order the plaintiff’s declaration averred generally, under section 126 of the Practice act (Gen. 8tat., p. 2554), the performance of all conditions precedent to recovery, and the defendant’s pleading specified compliance with a law of the order alleged to have been enacted after the issuing of the certificate as a condition precedent, the performance of which it intended to contest. Held—</p> <p>1. That the burden of proving the enactment of such a law was on the defendant.</p> <p>2. That such enactment could not be proved by the testimony of a member of the order that a printed book produced by him, in which such law was included, contained the laws of the order in force at a date stated.</p>

<p>On certiorari to the Second District Court of Newark.</p>

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

<p>On certiorari to review summary conviction.</p>

<p>The plaintiff was employed for four and a half months as a color mixer by the defendants in the manufacture of wall paper. He agreed to do his .work in a workmanlike manner and to the satisfaction of the defendants. Held, that the defendants had a right to judge for themselves whether his work was satisfactory, and that it should not have been left to the jury to detennine whether they ought to have been satisfied.</p>

<p>Where two separate tracts of land are separately assessed for taxes, each tract must be sold by itself for the unpaid tax on it, so that the person entitled to redeem after the sale may exercise his right to do so without paying the sum bid at the tax sale for both properties.</p>

<p>On motion to set aside service of summons.</p>

<p>1. The superintendent of buildings, under the charter and ordinances of the city of -Newark, is a city office and exists because of the power to create it under sections 21 and 31 of the city charter of 1857.</p> <p>2. Such officer is one of the subordinate officers of the city authorized to be provided for, but not named, in section 21 of the city charter, and under said section his term of office can only continue until his office is declared vacant or until another person is appointed to succeed him.</p> <p>3. An appointment to such office for the term of two years and an acceptance thereof by the appointee will not create a contract for such term. The case of Hardy v. Orange, 32 Vroom 620, is not applicable, but the principle of Gear v. Hoboken, 3 Dutcher 265, applies.</p> <p>4. The act of April 28th, 1886, providing for the appointment of an inspector of buildings in cities and authorizing his appointment for two years and prohibiting his removal except for cause, has no relevancy to the incumbent of the office of superintendent of buildings created by the ordinances of the city of Newark under the power conferred by the city charter.</p>

On certiorari. On application to set aside certain action of the common council of the city of Newark declaring the prosecutors’ offices vacant.

<p>On certiorari to the Monmouth Pleas.</p>

<p>On certiorari. On proceedings to review a judgment of dispossession of the Atlantic City District Court in a landlord and tenancy case.</p>

<p>On certiorari.</p>

On certiorari. This writ brings up a conviction of the prosecutor for the violation of section 1 of an ordinance of the defendant borough, passed June 19th, 1900, which section reads as follows: “See. 1.

<p>1. A mandamus will issue ,to the mayor of a city to require him to perform a duty imposed by statute, when the relator is otherwise without remedy.</p> <p>2. To entitle a relator to a mandamus two things must appear — ■ first, that he has a legal right to have something done by the party to whom he seeks to have the writ directed, and which has not been done; second, that he has no specific legal remedy to which he can resort to compel the performance of this duty.</p> <p>3. When by statute it is made a condition precedent to the right of the purchaser at a tax sale under the Martin act to reimbursement for expenses incurred for an abstract of title made to ascertain the owner or mortgagees, or both, of the property purchased, that such fees shall be approved by the mayor, upon his neglect or refusal to act thereon a mandamus will issue directing that he proceed to the performance of the duty thus imposed.</p> <p>4. While the writ will issue directing the mayor to consider with view to approval, which is a statutory duty, it will not direct the amount of expenses which he shall approve as necessarily incurred in securing such search, as that is discretionary and dependent upon facts to be established to his satisfaction.</p>

<p>1. On a trial of a Supreme Court issue at Circuit before the justice holding the Circuit, upon agreed facts, and without a jury, a jury being waived by consent, the finding of the justice upon the agreed facts takes the place of the verdict of the jury and judgment was rightly entered on the postea.</p> <p>2. The fact that a case is tried at the Circuit by the justice without a jury, and by consent, on the record sent down, and on agreed facts, does not make it a case tried at bar — -it is still a Supreme Court issue, tried at Circuit.</p> <p>3. The method for review pointed out.</p>

<p>On certiorari.</p> <p>Heard on rule to show cause why a certiorari should not issue to bring up the following resolution of the mayor and aldermen of the city of Paterson:</p> <p>“Resolution by Alderman T. C. Wright, that this board place itself on record as desiring to favor anything calculated to benefit the working people of this city, and desires to express its sympathy for those who are endeavoring to better their condition.</p> <p>"Resolved, That in furtherance of this idea we think that it should be the sense of the city government, in every way possible, to patronize such establishments as recognize trade unions and pay union wages to their employes.</p> <p>“Resolved, That in pursuance of such principle, that the printing and stationery committee of this board, and the officers of this city, be and they are hereby directed to confine all orders for printing and advertising, so far as it can be legally done, to such offices and newspapers that recognize the Typographical Union, and that the finance committee and comptroller audit no bills for printing done in other than union printing offices."</p>

In tort. On rule to show cause why the judgment entered in this cause should not be opened and the defendant given leave to plead or demur to the declaration filed thereip. Rule allowed in open court at the June Term, 1900, and returnable at the November Term, 1900, with leave to take affidavits.

<p>On rule to show cause why a mandamus should not issue.</p> <p>The following statement of the facts of the case is taken from the brief of the attorney-general:</p> <p>“The relator held the office of commissioner of public roads. There is no other office of like character in the state. He was commissioned May 21st, 1895, under an ad interim appointment. He was again commissioned March 26th, 1896, for a term of three years, which expired March 26th, 1899, and on March 26th, 1899, he was commissioned for the third time for a term ending March 26th, 1902. On the 23d of March, 1900, an act was passed (Pamph. L., p. 386, ch. 155) entitled ‘An act to amend an act entitled “An act giving the state commissioner of public roads a fixed salary instead of per diem pay, and limiting the expenses connected with the office,” approved March 25th, 1896, and all amendments thereto.’ By this act it was provided as follows:</p> <p>“1. The first section of said act shall be amended so as to read as follows:</p> <p>“1. The' annual salary of the state commissioner of public roads shall be twenty-five hundred dollars, and he shall be allowed the sum of fifteen hundred dollars per year, or so much thereof as shall be necessary, for clerk hire, attorney and consulting engineer fees, stationery and actual traveling expenses.</p> <p>“2. He shall be allowed the sum of one thousand dollars per year for the employment of supervisor to assist him in supervising construction and performing such other duties as necessity may require.</p> <p>“The third section was a repealer of inconsistent acts, and contained a declaration that the law should take effect immediately.</p> <p>“It will be seen that this act was passed during the term of the road commissioner, which began March 26th, 1899,. that being thd date of his commission, and expires March 26th, 1902. This proceeding is instituted for the purpose of compelling the respondents to pay the amount of increased salary provided by the act of 1900, and it is alleged that the act in question is constitutional, and therefore the relator is entitled to the relief sought. It is conceded that if the act be constitutional he is entitled to be paid this additional salary. The pertinent provision of the constitution is one of those amendments introduced in 1814, and is to be found in section 1, paragraph 11, and is as follows: “The legislature shall not pass private, local or special laws in any of the following enumerated cases. * * * Creating, increasing or decreasing the percentage or allowance of public officers during the term for which said officers were elected or appointed/</p> <p>“The question in the case is whether the act of the legislature increasing the allowance of the state commissioner of public roads during his term of office is a special law.”</p>

<p>On certiorari.</p>

<p>On petition for a rehearing.</p>

<p>Section 88 of the charter of the city of Trenton provides for the initiation of certain municipal improvements by common council by ordinance unless, after public notice of the intention of common council to make such improvement, the owners of one-lialf in running feet of the lots bordering on the highway affected shall, by a specified date, remonstrate against it. Section 77 of the charter provides that no ordinance for any improvement shall be adopted by common council until public notice shall be given in response to which written objections to the making of such improvement'may be filed on or before á specified date. Held, that notice of the hearing required by the seventy-seventh section was not given by the publication of a single notice by which the time for filing such objections was made exactly to coincide with the date for filing remonstrances under the eighty-eighth section M the charter.</p>

<p>On certiorari.</p>

<p>1. Notes of testimony and of the proceedings at the trial sent up by a judge of- a District Court with his return to a writ of certiorari, but not in response to a rule upon him allowed in the cause, form no part of the return.</p> <p>2. Practice in such cases indicated.</p>

<p>On certiorari.</p>

<p>On certiorari. On motion to reinstate.</p>

<p>1. A oertiorm-i directed to the judge of a District Court is returned to this court with the required certification by such judge as to the record in his court, to which is appended a state of the case agreed to by the counsel of the respective parties for use in this court. Held, that such state of the case will not be considered, inasmuch as it is not part of the return and is not in accordance with the practice of this court.</p> <p>2. The proper practice in such cases indicated.</p>

<p>On certiorari.</p>

<p>1. A special law applicable to a single county providing a method for securing a uniform assessment for taxes in the county was not i-epealed by the adoption of that amendment to the constitution which px'ovides that “property shall be assessed for taxes under general laws and by uniform rules according to its true value,” where the genex-al law uses diffex-ent machinery for accomplishing the same result.</p> <p>2. The notice required to be served upon the individual taxpayer by the sixth section of an act entitled “An act ex-eating a county board of commissioners of appeal in cases of taxation and fox-equalizing assessments for taxes in the county of Hudson” (Pamph. L. 1873; p. 794), is dispensed with as to assessments for real estate only, by the act entitled “An act concerning taxes and the equalization of values,” approved May 22d, 1894. Gen. Stat., p. 3450.</p>

<p>1. Where a resolution was vetoed by the mayor and returned to the council, who altered it to meet one of the objections set out in the veto, and again passed it, the resolution as last passed could not become effective until again submitted to the mayor for his approval.</p> <p>2. This court, in its discretion, will refuse a mandamus upon a city officer to sign a warrant for money when it appears from the evidence that the relator should establish his.right in a proceeding in which the city might present a defence.</p>

<p>1. A delegation of power by the legislature to the Circuit Court to designate a route for a telephone line through a municipality in case the municipal authorities do not, upon application, make the designation within fifty days, is improper and void.</p> <p>2. An application for the designation of a route for a telephone line part way through a municipality, where the part applied for connected other parts of a through line, is within the acts of the legislature of 1880, 1887 and 1888 relating to telegraph companies.</p> <p>3. The act of 1900 (Pamph. L., p. 74) does not confer any discretion upon the municipality, upon application, to designate a route for a through line.</p>

<p>1. Where it does not appear that an ordinance is introduced at a previous regular meeting of a common council acting under “An act concerning cities” (Pamph. L. 1886, p. 361), was altered substantially at a special meeting called to pass it, the ordinance is valid.</p> <p>2. Where an ordinance provides that a non-resident defendant shall be brought into court by a warrant, and a resident defendant by a summons, a resident defendant brought in,by .a warrant going to trial without making objection to the process waives the irregularity.</p> <p>3. The evidence in the case before the recorder held to justify the conviction.</p>

<p>On certiorari.</p>

<p>Oil certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Taxes for lamps and roads levied under “An act authorizing the division of townships into street lighting districts and the erection and maintenance of street lights therein and the election of street light commissioners in said district” (Gen. Stat., p. 3009),'and a supplement thereto (Pamph. L. 1896, p. 132), and under “An act concerning public roads and parks and creating boards for the control and management of the same” (Gen. Stat., p. 2951), held valid under the authority of Smith v. Howell, 31 Vroom 384.</p>

<p>A resolution of a common council which, to be effective, must by the charter of the municipality be approved by the mayor or passed over his veto by a two-thirds vote of the council, will not be reviewed on certiorari when it has only been passed by the council and no approval or passage over veto appears.</p>

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

<p>Where a plea filed after a demurrer interposed to the declaration has been overruled, and which raises one of the questions alleged as a ground of demurrer, and determined against the defendant, it should be stricken out.</p>

<p>Where au application to enforce against a witness, who liad been called to testify before a commissioner of this state, the penalties for refusing to answer questions provided by section 56 of the Evidence act (Gen. Stat., p. 1408), it appearing that not even a prima facie case is made out as to the materiality of the questions propounded, the motion will be denied.</p>

<p>On certiorari.</p>

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

On application for a mandamus. On error to the Supreme Court. An act of the legislature approved February 28th, 1901, enacted: “1.

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

<p>1. The railroad company located its road, not upon, but near the line of the church property, on which the church was erected. The railroad was projected and constructed in 1881. In constructing it along the church property the company made an excavation of nineteen feet. In the process of excavation the earth on the south side of the church was almost entirely removed and the foundation exposed, and the church on that side began to show signs of deterioration and damage. On the 5th of December, 1881, a proposition'was sent to the company, by the officers of the church, containing an estimate of damages, amounting to $3,500, and offering for that sum to release the company from all responsibility for present repairs and future damage by reason of constructing and operating the railroad,. That proposition the company declined. Then an agreement was made that the company should put the outside of the building and the foundation and adjoining walls in repair and make them safe, and that the church should, at the expense of the company, improve and refit the interior walls. The company did all the work outside. The inside work was done by the church. It cost $1,000, which was paid by the company. On the 9th of January, 1882, the church gave a receipt to Mr. Hobart in these words: “Received from G. A. Hobart, Pt. Pat. Extension, one thousand dollars in full settlement and discharge of all damages done by Railroad Co. against our church. Railroad Co. to pay for all work in process.” The wall was built by the company. Its location, dimensions and construction and the character of its foundations were committed to the exclusive control of the company. It was located within four and one-half feet of the track on which the company was to run its trains. The projection of the ties brought the force of the vibrations caused by the running of the trains nearer the wall. At the top the wall is clear of the church property; at the bottom it is five feet upon the church property, leaving the wall at the base three feet in width on the property of the company. In 1886 further damage to the church building was sustained, which was settled by the payment of $100. In 1887 the south wall of the church had settled, the floors had gone down and gables cracked, involving a considerable outlay for reparation. A suit was brought by the plaintiffs against the defendants to recover the damages sustained in 1887. It appeared at the trial that the wall was not properly underpinned, and that the jarring of the trains passing kept it settling all the time. The plaintiffs' were nonsuited. In the Supreme Court the ruling of the Circuit was sustained, on the ground that the cause of action, if any, accrued as early as 1881, and was discharged by the receipt given in January, 1882, and also that the plaintiffs’ suit was barred by the statute of limitations. Held, that the damages sued for in this case did not result from an unlawful act of the defendants in making the excavations in 1881. The digging out of the cut was the occasion for requiring the erection of a wall for the protection of the church property, but was not the cause of the injury which was subsequently sustained.</p> <p>2. In such cases the cause of action depends upon actual damage, and the statute of limitations begins to run from the time such damage is sustained.</p> <p>3. It is a fundamental principle of law, applicable alike to breaches of contract and to torts, that in order to found a right of action there must be a wrongful act done and a loss resulting from that wrongful act. The injury done in 1881 was a complete cause of action, in respect of which compensation was made; but there was a liability to further disturbance. In 1886 additional damages were sustained, which gave a new and distinct cause of action. In any action brought to recover the damages sustained in 1881, or brought in 1886 to recover the damages then sustained, the plaintiffs could not have recovered for the damages that might be sustained in 1887.</p> <p>4. The damage resulting from time to time to the church property from the condition of the wall created a new cause of action, which gave the plaintiffs a right to recover such damages as had arisen within six years.</p> <p>5. The injury for which this suit was brought was a new cause of action, which arose in 1887, and the suit was brought within six years from the time those damages were sustained.</p>

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

<p>1. If a contractor contracts to erect a building, he cannot recover, even upon a quantum meruit, unless he has substantially complied with the contract.</p> <p>2. But if he substantially complies with the contract, even though he has failed in some minor particulars, he is entitled to recover the contract price, less what will be a fair allowance to the owner to make good the defects in the performance of the contract.</p> <p>3. When there is not a substantial compliance with the contract, there may be a recovery for what the building is reasonably worth, if the owner has accepted it; but in determining the question of acceptance, it is not sufficient to find that the owner has occupied it — the jury must find some positive act on his part showing an intention to accept it.</p> <p>4. When a building contract provides that the building shall be completed at a specified time, and that for every day it remains unfinished after such date the contractor shall pay the owner .$5 as liquidated damages, and also provides that the contractor shall be allowed additional time when he is delayed by the fault or neglect of other contractors, provided he gives notice, in writing, to the owner of such neglect of other contractors, the owner is entitled to the written notice, and the contractor cannot be allowed additional time in the absence of it.</p>

<p>A testatrix devised and bequeathed to her husband a life estate in her property, and then directed as follows: “Tlwrd. Upon the death of my said husband I give, devise and bequeath all my said hereinbefore mentioned estate in such manner as he may, by his last will and testament, or by an instrument in the nature of a last will and testament, devise and bequeath or appoint to receive the same, trusting entirely to his discretion to carry into execution such charge and instructions as I may, during my life, have expressed to him in regard thereto.” By subsequent clauses she devised and bequeathed the remainder of her property, in the event of her husband dying without executing the power, and she appointed her husband her executor. Held—</p> <p>1. That the intention of the testatrix was to confer upon her husband not an absolute, but a fiduciary power.</p> <p>2. That as the persons or objects to be benefited by the exercise of the power were left indefinite by the will, and were not afterwards defined by any instrument executed as a will, the trust accompanying the power was incapable of judicial enforcement, and therefore the power failed, and the subsequent devises and bequests of the will took effect.</p>

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

<p>1. A writ of error in an ordinary action brings up for review nothing but the record of the judgment and the bills of exception.</p> <p>2. A judgment will not be reversed for technical defects in the record which are not noticed in the brief or argument of counsel for the plaintiff in error.</p>

On error to the Bergen Circuit. This action was brought in tlpe Circuit Court upon a note, of which the following is a copy: “$422.29.

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

<p>The charter of Newark (Pamph. L. 1857, p. 116) authorizes, through the common council of that city, regulation and inspection of buildings and the appointment of necessary subordinate officers to hold during the pleasure of the council; every officer elected or appointed in pursuance of the act to take and subscribe an official oath before entering upon his duties. Later general legislation, enacted after the constitutional amendment requiring regulation of the internal affairs of cities to be by general laws, authorizes the appointment in any city, by its common council, of a building inspector, to hold for a term to be fixed, within a stated limit, by the council, with specified duties and other duties to be defined by the council. Pamph. L. 1886, p. 321; Pamph. L. 1899, p. 21. The common council of Newark ordained building regulations and provided for an officer, styled superintendent of buildings, with, substantially, the powers of the general law, and appointed such an officer, and fixed his term at the maximum allowed by that law. It also appointed assistants to such officer and attempted to fix for them like terms. Held—</p> <p>1. That such appointment of “superintendent of buildings” must be taken to be that of the statutory “inspector of buildingsthat the appointee could not be removed by a succeeding council, at will, during the fixed term, and that his failure to take the official oath prescribed by the city charter, before he entered on. his duties, did not deprive him of a standing to contest by certiorari his attempted removal from his office.</p> <p>2. That the attempt to fix terms for the assistants, holding simply under the city charter as subordinate officers, was void as against a succeeding council.</p>

This cause was tried at the Salem Circuit, before the late Mr. Justice Ludlow and a jury.

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

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

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

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

<p>1. One who passes on foot along a crosswalk” over a highway is bound to use his powers of observation to discover approaching vehicles, and should exercise a reasonable judgment as to when and how to cross without collision.</p> <p>2. This rule governs the relation of a pedestrian to all vehicles, including trolley cars.</p> <p>3. Trolley cars have characteristics of their own, but are not therefor set apart, for legal treatment, in a class by themselves. Their peculiarities are circumstances that have sometimes to be taken into account in applying the general rule to a particular case.</p>

<p>An accord between the plaintiff and a third person as to the subject-matter of suit, and a satisfaction moving from such third person to the plaintiff, who accepts and retains it, „are available in bar of the action if the defendant has either authorized or ratified the settlement.</p>

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

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

<p>1. Where the plaintiff in error obtained in the Court of Errors and Appeals not only a reversal of the judgment of the Supreme Court, but also an affirmance of the original judgment of the trial court, thus ending the litigation, he is entitled to costs in the Court of Errors and Appeals.</p> <p>2. If the cause has been brought into the Supreme Court by certiorari, the question of costs there is, by statute, committed to the discretion of that court, and application must be there made for costs on certiorari.</p>

<p>1. Where in an action against a street railway company for injuries to a passenger caused by collision with a wagon, there was proof from which the jury might infer the negligence of the motorman, there was no error in refusing to nonsuit the plaintiff.</p> <p>2. Where the collision of the car with the wagon occasioned some physical injury to the passenger, such injury would justify an award of damages, and if it produced fright or other mental disturbance, damages therefor might be included.</p> <p>3. A request to charge that the plaintiff must establish negligence by preponderance of evidence was improper. It .was for the company to establish that the motorman was not, in fact, negligent.</p>

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

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

<p>1. The plaintiff Mary Healey, while walking along the sidewalk in a street in the city of Newark, was kicked by a horse of the defendant, which a servant was leading by a halter on the sidewalk. For the personal injuries she sustained, this suit was brought, and resulted in a verdict for the plaintiffs. It was neither alleged in the declaration nor proved at the tidal that there was any mischievous propensity on the part of the horse. The contention of the defence was that in order to allow the plaintiffs to recover damages for the personal injuries sustained, a vicious or mischievous propensity on the part of the animal must be shown and the scienter established. The trial judge charged the jury that this proposition was not the law as applied to this case.</p> <p>2. Riding, driving or leading a horse on a public sidewalk is unlawful, and the negligence which will make the owner liable for damages done by it consists in the fact that the horse was voluntarily permitted to be upon the sidewalk, where it had no right to be. In such a case the owner will be liable in damages for an injury sustained by one who was lawfully using the sidewalk.</p> <p>3. The distinction is this: If domestic animals are rightfully' in the place where they do the injury complained of, the owner will not be liable unless he had knowledge of the vicious propensities of such animals, and in an action for such injuries, knowledge on the part of the owner must be alleged and proved. But when a horse is where it should not be, and kicks, the kicking is not so far remote from what is to be expected from the natural disposition of horses that the injury cannot be said to follow in the natural and obvious sequence from the original wrongful act which allowed the horse to get where an opportunity of doing injury is given.</p> <p>4. This suit was by the wife to recover damages for her personal injuries; the declaration also contained a count by the husband for consequential damages. The trial court admitted evidence that the married woman was carrying on business for herself, selling notions of all kinds by peddling them from house to house, and the amount that she earned in that way. Held, that that testimony was competent under section 4 of the Married Women’s act, which enacts that the wages and earnings of any married woman,, acquired or gained by her in any employment, occupation or trade in which she is employed, and which she carries on separately from her husband, and all investments, &c., shall be her sole and separate property.</p> <p>5. A personal injury which disqualifies a married woman from carrying on the business in which she is engaged, vests in her the right to recover damages sustained by her in respect to her separate business. The impairment of her capacity to perform labor may be considered as an element of the damages, since the husband’s right to recover for loss of services does not preclude her right to recover for the loss of her capacity to earn for herself.</p> <p>6. The distinction is between the effort to award the wife damages for loss of service to her husband in his household in the discharge of her domestic duties, and the loss of ability to make earnings outside of the household duties and irrespective of the husband, especially where the married woman is engaged' in carrying on any business on her own account.</p>

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

<p>1. The plaintiff, a grocer, had supplied Dr. McBride with groceries and meat until 1894, when the doctor died, leaving a widow and five infant children. The defendant was appointed guardian of the children. The plaintiff, after the death of the doctor, called on the defendant in regard to continuing to deal with the widow, and the defendant, on August 28th, 1894, wrote a letter to the plaintiff as follows: “You give Dr. McBride widow all the meat and groceries they want for one week, and bring me the bill every Tuesday morning.” (Signed) “Horace McBride.” Plaintiff supplied the widow with groceries and meat until some time in 1897, receiving payments from the defendant from time to time. The bills were made out to the widow as purchaser, and were from time to time sent to the defendant, on which he made various payments. Subsequently, meat and groceries were furnished until the bill amounted to $1,700, which, with credits, was reduced to $562.73, for which this suit was brought. In November, 1897, the defendant, describing himself as guardian of these children, certified in writing that he had delivered to the plaintiff a deed for premises of the infants; that the purchase-price to be paid was as follows: “Taxes, assessments,” &c., and then follows this clause: “and to credit the balance of said purchase-money on account of the bill for groceries sold by him to me as such guardian.” (Signed) “Horace McBride.” The defendant set up as a defence the statute of frauds. Held, that if the person receiving goods is liable to pay for them, then, ordinarily, the promise of a third person to pay for them is a collateral liability, and not actionable, unless in writing. But if the vendor sells goods solely on the credit of one person, and, at his request, delivers them to another, the former is alone liable, and his liability is not affected by the statute. The fact that the goods are charged to the person to whom delivered is not conclusive that they were sold on his credit. The question whether the defendant’s undertaking is an original undertaking or collateral, must be determined from all the facts in the case. The trial judge submitted to the jury the question whether the defendant intended to be personally liable for the goods in question, and the statute of frauds was no defence.</p> <p>2. It was contended by the defendant that the written order related to the delivery of meat and groceries for one week only. That construction is against the language of the order, which directed the plaintiff to “bring me the bill every Tuesday morning.” If there be any ambiguity on the face of the paper, it was cured by the conduct of the parties. The weekly bills were delivered to the defendant, and accepted by him without objection until the account reached the amount of $1,700, extending over a period of more than three years.</p> <p>3. It was insisted that the obligation assumed by the defendant was to pay out of the proceeds of the property in his hands as guardian. Such was undoubtedly the expectation of the defendant, with the knowledge, probably, of the plaintiff. But the contract was a contract with the defendant individually, and it was incompetent to vary the terms of this contract by oral testimony of the understanding of the defendant.</p> <p>4. Objection was made to a stipulation made by the attorneys of the respective parties at a former trial of this suit. The stipulation concerned the manner in which the plaintiff had made payments on the property conveyed to him by the defendant. It was made in open court, and taken down by the court stenographer as part of the record in the case. The court admitted this stipulation in evidence under an exception. Held, that the admission in this case being distinct and formal, or such as may be termed a solemn admission, made for the express purpose of relaxing the stringency of some rule of practice or of dispensing with the formal proof of some document or fact at the trial, it was properly received in evidence.</p>

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

<p>1. The declaration averred that the plaintiffs purchased of the defendants certain lands for the price and sum of $5,000, to be paid by the plaintiffs by the assumption by them of the amount due on a certain mortgage .for $4,000 on the premises conveyed, together with the interest to accrue from and after January 20th, 1898. The declaration charged that the defendants produced a receipt in writing, made by the mortgagees, acknowledging the receipt of interest to and until the 20th day of January, 1898. The declaration then averred that the defendants wrongfully and injuriously contriving and intending to deceive, defraud and injure the plaintiffs, &c., falsely, fraudulently and deceitfully represented that there was then due and owing upon said mortgage the sum of $4,000, together with interest from January 20th, 1898. Then followed an averment that in fact the interest on the said mortgage of $4,000 had not been paid to and until the 20th of January, 1898, but was then and there in arrears from the 20th day of June, 1897, and that the receipt of the mortgagees, so shown by the defendants to the plaintiffs, was a false and fraudulent receipt, by means whereof, &c., the plaintiffs were compelled to expend and lay out a large sum of money in payment and discharge of said arrears of interest, &c., and certain costs and expenses arising in and about the proceedings had in the foreclosure of the said mortgage. . Held, that the declaration disclosed a good cause of action.</p> <p>2. As a matter of pleading, frmidulenter without seiens, or seiens without frwudulenter, is sufficient.</p> <p>3. One cause of demurrer assigned was that the declax-ation avers that the defendant’s wife had only a dower right in the premises. The declaration charges that she, as one of the defendants, made these representations, and that they were made falsely and fraudulently. As a matter of pleading, we think that is sufficient.</p> <p>4. In a tort arising out of a contract of sale, all the parties to the sale are jointly liable, on the assumption that they all combined in the false and fraudulent representations that are charged.</p>

<p>In an action on contract the declaration set out a promise to John W. Peale, “who was the agent of the said plaintiff,” with an averment “that the said contract then and there became in law a contract of the said defendants with the said plaintiff.” Held, that this averment is an averment of a matter of law, and is not supported by facts from which that legal result could be deduced.</p>

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

<p>1. A motion to discharge or modify a rule to show cause for a new trial, on the ground that the rule was irregularly allowed, should be made in the branch court, and should not be considered in the main court, on final argument of the rule.</p> <p>2. The condition of a bond to “save and keep harmless” the obligee from certain debts existing against him is not broken by the fact that the debts have passed into judgment against him.</p>

<p>1. A declaration is sufficient on demurrer, if it set forth facts which, being proved and not avoided, would entitle the plaintiff to judgment.</p> <p>2. The breach of a contract gives a right'of action without proof of substantial loss.</p> <p>3. If in a count setting forth several covenants of the defendant, the breach of one covenant be properly assigned, that is sufficient to support the count.</p>

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

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

<p>If it appears that the parties to a negotiation, although they have agreed on all the terms of their bargain, mean to have them reduced to writing and signed, before the contract shall be considered as complete, neither party will be bound until that is done.</p>

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

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

<p>1. In charging a violation of section 68 of our Crimes act, it is sufficient to describe the liquors sold, &c., as “spirituous, vinous, malt and intoxicating.” State v. Fox, 1 Harr. 152, distinguished.</p> <p>2. Duplicity in .an indictment is cured by a plea of guilty.</p>

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

<p>1. Approval by the chief engineer of a public road authorized by the act of April 7th, 1888 (Gen. Stat., p. 2882), or its supplements, is a prerequisite to recovery under a contract for the building and construction of such road, unless payment of the claim shall have been ordered by a two-thirds vote of all the members of the board of chosen freeholders of the county within which such road is laid out.</p> <p>2. Work and materials necessary fcr the maintenance or repair of such a road may be awarded by such board of chosen freeholders, without advertisement and contract with the lowest bidder, notwithstanding the cost may exceed $1,000. The requirement of the statute of advertisement and contract applies only to original construction.</p> <p>3. A contract for a county public road fixed the price for excavation and filling at specified rates for excavation only, and required all fills to be made with materials excavated from the road, unless the contractor should prefer to borrow filling, in which case it should be without cost to the county. The required excavation of the road did not furnish enough material for the required fills. Held, that the contractor was entitled to recover for the deficiency provided from borrow-pits.</p> <p>4. Interest on a demand required, by “An act in relation to the expenditure of public money by municipal corporations,” approved April 4th, 1871 (Gen. Stat., p. 2237), to be verified before payment is legal, can only be allowed from the date at which such • verified demand is presented for payment.</p>

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

<p>On error to the Essex County Circuit Court.</p> <p>The plaintiff brought suit in the Circuit Court of the county of Essex, and in his declaration averred that the debt sued for, contracted by the defendant Harry J. Nicholas, was, by virtue of “An act to secure to mechanics and others payment for their labor and materials in erecting any building” [Revision of 1898], approved June 14th, 1898 (Pamph. L., p. 538), a lien upon a dwelling-house and curtilage therein described of Susan Yan Syclde, owner. The builder did not defend. The owner filed pleas — -first, that the builder did not undertake or promise as complained, and second, that her house and lands described in said declaration were not liable to the supposed debt. The cause came on for trial upon these issues. A proper lien claim, duly filed, was offered in evidence. “ A debt of $5399.63 as sued for was proved, and, for the purposes of the suit, it was admitted that said debt was for materials furnished by the plaintiff for that house and used therein. The builder was called as a witness for the plaintiff, and testified that he had erected the building in question, under a contract with the owner, the terms of which were not stated. On cross-examination he testified that the building was erected in accordance with the specifications annexed to a paper-writing purporting to be a contract between himself and such owner to erect such a building for $5,100. On the plaintiff resting its case, a motion to nonsuit was denied, and the defendant then proved the execution of the paper-writing referred to and offered the same in evidence, and also proved that such paper-writing was filed with the clerk of Essex county before the furnishing of such materials, and then rested her defence. In rebuttal the court entertained the following offer in behalf of the plaintiff:</p> <p>“Mr. Guild — I offer to prove that the real contract betweén these parties was for the erection of a house to cost $4,100; I also offer to prove that Thomas A. Murphey, president of the plaintiff company, examined the contract on file, and finding that it called for a house to cost $5,100 he sold and delivered to Nicholas the materials set out in the lien' claim in this suit for the erection of this house; I also offer to show that at $5,100 there would have been a profit to the builder putting up this building, but that at $4,100 there would not have been; and that it was the fact that the contract stated that $5,100 was to be paid that induced the plaintiff company to part with its material; I also offer evidence going to show that the bid submitted by Nicholas for the erection of this house was $4,100.”</p> <p>The court excluded the evidence, and directed a verdict in favor of the defendant. Upon exceptions sealed to these rulings the present writ of error, brought upon the consequent judgment, was argued.</p>

<p>1. In a suit against a corporation to recover damages for personal injuries received in its service, the defendant relied upon a release drawn in the English language and executed by the plaintiff, who understood only Slavonic. The execution of the release was procured by the English-speaking secretary of the corporation, who knew no Slavonic. A fellow-countryman of the servant, in the same employment, was, without objection by the servant, called in to interpret, and, through him, the secretary undertook to make known the purport of the instrument presented for execution. . Held, that the interpreter must be considered the agent of the defendant; and that, if the purport of the instrument was not adequately imparted to the plaintiff, it was not a valid release.</p> <p>2. A verdict will not be set aside on the ground of the insanity of a juror, who gave no evidence of unsoundness of mind before or at the trial and took part with apparent intelligence in deliberation with his fellows, although not long afterward his insanity was indisputable, and was of such a nature as probably to have existed, to some extent, at the time of the trial — medical opinion differing as to whether it would then have impaired his power of deliberative judgment as a juror.</p>

<p>The plaintiff sued the defendant, operating an electric street railway, for personal injuries received in an attempt to board a car as a passenger. The evidence showed that, at the lower corner of a street intersecting that on which ran the line of the railway, a group of intending passengers stood awaiting a car; that the plaintiff crossed to the upper corner and stood there, with others, as a car was approaching; that he waved his hand toward the car, which slackened its speed, but did not stop; that two passengers got safely on the car; that the plaintiff seized the hand-rail and placed one foot on the step and, with the other on the ground, was dragged along until he came in contact with some railroad ties, near the track, in the middle of the intersecting street, when he lost his hold, and was injured. The plaintiff and one witness testified that the speed of the car increased after he had taken hold of the railing; another witness for the plaintiff and several witnesses for defendant testified that there was no increase, but, instead, a decrease of the speed of the car. No proof was offered that the motorman in any way indicated that he meant to stop at the upper corner, and he testified that he did not notice anyone there. Helé, that a verdict in favor of the defendant should have been directed (1) because, on the facts stated, a jury could not fairly find negligence chargeable to the defendant, and (2) because, with the railroad ties in full view, the plaintiff assumed all risk of injury from them when he attempted to get on the moving ear.</p>

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

On demurrer to pleas. The plaintiff, in his declaration, alleges that the defendant “willfully stated or transmitted on, &c., * * * to John Alfred Potter, editor, proprietor and publisher of a newspaper published, &c., * * * known as the ‘Cranford Chronicle,’ for publication therein, a libelous, false, slanderous and defamatory story or statement of and concerning the plaintiff, and thereby secured the actual publication of the same in said newspaper in the issue of March…

<p>The defendants maintained in the shed of their lumberyard a stairway, resting at its foot, with a bearing of only two and a half inches, upon the outer edge of an elevated platform composed of hemlock planks, two inches thick and a foot wide, supported by projecting beams. The stringers were placed so that one of the beams, upon which met two of the planks of the outer line of the platform, came between them. As the plaintiff (a customer) and defendants’ manager were descending the stairway, these planks split off under their weight and the stairway 'fell twelve feet to the ground. The plaintiff sued to recov° for personal injuries sustained by the fall. It was proved there were old “checks” along the line of the break. Held, that it was negligent to maintain such stairway, without proper inspection, notwithstanding that it had been originally constructed (five years before) by reputable carpenters employed for the purpose.</p>

<p>1. The general principle governing the relation of the street railway to the traveling public is that their respective rights in the public street must be exercised by each of them, with due regard to the rights of the other, in a reasonable and duly careful manner.</p> <p>2. Where a traveler in a carriage at a public' crossing was about to drive over the tracks of a street railway, and saw a trolley car bound towards him, but which, at the time, was standing still, about forty feet away, taking on or letting off passengers, and thereupon he proceeded to drive over the tracks without further looking towards the car, which struck his horse while crossing, throwing the driver out and injuring him, in an action for the injury, a motion to nonsuit for contributory negligence was denied. Held, on review, that the ruling was correct.</p>

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

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

<p>The plaintiff, while out driving with a party of four others, in the early morning, on a hunting trip, was injured in a collision with one of the defendant’s trains, while crossing its tracks. They were in a plumber’s wagon drawn by a single horse. The plaintiff’s evidence tended to prove that it was quite dark at the time; that the party halted their horse about twenty feet from the track and looked and listened for trains, and not seeing nor hearing any, and not hearing any bell or whistle, they proceeded to cross; that as the horse crossed the first rail the train struck him, causing á jar of the wagon, which threw the plaintiff upon the ground, causing personal injuries, for the redress of which the action was brought. Upon the trial motions were made to nonsuit and to direct a verdict. The grounds were failure to prove negligence against the company, and for contributory negligence. The plaintiff had also offered evidence before he rested tending to prove that the view of the approaching train from where the carriage stood before starting to cross was cut off by a growth of bushes and trees along the railroad track to within a few feet of the crossing. After the motion to nonsuit was denied, the defendant offered witnesses tending to prove that the obstructing bushes and trees had been cut down more than six months before the accident, and also to prove that the required signals were given before reaching the crossing. The motions to nonsuit and to direct a verdict were denied by the trial judge, and a writ of error was brought. Held, on review, that the evidence upon the points raised presented questions that were fairly debatable; that there was not such a failure of proof as to justify the direction of a verdict, and that there was no error in the rulings of the court beiow.</p>

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

<p>1. The failure of the sheriff to make legal service upon one or more of the persons drawn upon a struck jury, summoned to serve on the trial of an indictment, who for that reason were absent at the trial, is not sufficient ground to quash the array, provided a sufficient number attend to try the cause.</p> <p>2. Nor will a challenge to the array of such a jury be sustained on the ground that the motion for the struck jury, although regularly made and allowed in open court, had not been formally written up in the minutes of the court, but a memorandum of which had been made and entered by the clerk in a minute-book or blotter kept by the clerk in his office for that purpose, in accordance with the usage of the court, unless it should appear that the defendant has suffered injury because of the brief and informal character of such entry.</p> <p>3. Where the record shows that an indictment found in the Oyer and Terminer, by an order of that court, has been handed down to the Court of Quarter Sessions for trial, it is sufficient to give the latter court jurisdiction.</p>

<p>1. A party offering a witness will not be permitted afterwards to impeach the character of the witness for truth and veracity or to impugn his credibility by general evidence tending to show him to be unworthy of belief.</p> <p>2.. But this rule does not preclude the party from proving the truth of any particular fact by any other competent testimony in direct contradiction to what such witness may have testified.</p>

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

<p>Reasons for refusing the application of John Harris’ application for admission to the bar — disreputable conduct and want of good moral character.</p>

<p>On certiorari.</p>

<p>The act of March 21st, 1901, which gives the governor power, in his discretion, on the application of one hundred voters, to appoint a commission to district or redistrict wards in the cities of this state is unconstitutional and void — first, it is an unlawful delegation of legislative power; second, the act is local and special; third, it authorizes the regulation of municipal affairs by a commission.</p>

<p>1. An act entitled “An act to establish an excise department in cities of this state” cannot be applied to a “town,” although in its enacting clause it is provided that it shall apply to “any town or city.”</p> <p>2. The title of an act is a limitation upon the extent to which effect can be given to it.</p>

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

<p>If a landlord, after the expiration of a term of years, consents to the continued occupation of the premises, a tenancy from year to year arises. Such consent may be inferred from the words or conduct of the parties. If, upon an action for rent before the District Court, such consent be inferred from testimony capable of supporting such an inference, a return to that effect establishes the tenancy in this court and a judgment for the rent due under it will not be disturbed.</p>

<p>On certiorari to District Court.</p>

On rule to open a judgment entered by virtue of a warrant of attorney. The agreed facts are that on the 21st day of February, 1898, the defendant was the owner of real estate in Atlantic City, and on that day executed a mortgage to the plaintiff, in which her husband joined, to secure to the plaintiff a certain sum of money evidenced by a bond with warrant to confess judgment and a promissory note.

<p>1. Money paid under legal process in a judicial proceeding, with full knowledge of the facts, is, in the absence of fraud or duress, not recoverable.</p> <p>2. An owner of a wharf at which a scow had been unloaded libeled the scow in admiralty for the amount of the wharfage. The owner of the scow, without contesting the claim, paid it to the proctor of the libelant and then brought his action in the state courts and recovered it from the libelant. In this action it was found that the plaintiff did not owe the wharfage, but it was not found that the defendant had as libelant been guilty of fraud or extortion or that he knew or ought to have known that the scow was not liable. Held, that the money paid in the admiralty suit was paid voluntarily and not under duress of goods, and that upon the facts proved it could not be recovered.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>When a mortgage was assigned by the owner thereof to another, who held certain notes of the assignor, as collateral security for the payment of the notes, the mortgage was taxable as the personal property of the assignor so long as the notes remained unpaid and the mortgage continued to be held as security for the payment.</p>

<p>1. The Borough act of 1897 (Pamph. L., p. 285) authorizes the council “to cause an assessor’s map of the borough to be made, among other things showing the location and width of each street, road or avenue and of each individual lot of land and premises and cause the same to be numbered or otherwise designated thereon,” and a resolution and contract for such a map may fairly include as incidental thereto, if not actually within the terms of the act, the furnishing of lists of property owners for five years, and furnishing the location of not more than fifteen monuments.</p> <p>2. That an imperfect map covering but part of the borough was already in existence did not prevent the council from causing to be made such a map as was authorized by the Borough act.</p> <p>3. When the Borough act provides that three councilmen and the mayor shall constitute a quorum for the transaction of business, a resolution passed by the votes of three councilmen and the mayor, who has a vote only in case of a tie, will be sufficient, notwithstanding a by-law of the borough that no resolution involving the expenditure of money should be passed without the votes of two-thirds of all the members of the board.</p> <p>4. A by-law cannot control a general law of the state.</p>

<p>On rule to show cause why proceedings on execution to the sheriff of Cumberland county should not be stayed.</p>

<p>On certiorari to review assessment for benefits in constructing a trunk sewer.</p>

<p>An act entitled “An act to protect the planting and cultivating of oysters in the tide-waters of this state,” enacted, in its body, that its provisions should not apply to the waters or bottoms of Delaware bay or Maurice river cove. Held, that the statute did not comply with the constitutional requirement that the object of every law should be expressed in its title.</p>

<p>1. Unless otherwise provided, the power to sell land for taxes must be exercised within the period during which such taxes remain a lien upon the land to be sold.</p> <p>2. The thirteenth section of the “Martin act” does not extend the duration of tax liens in those cities which have accepted its benefits; it merely provides an additional method of enforcing such liens.</p>

<p>On certiorari.</p>

<p>Heard on depositions taken under a rule to show cause why the respondent should not be disbarred. -</p>

<p>1. A rule to show cause would be futile in a case in which it is evident that, on the return of the rule, a second verdict would not be set aside.</p> <p>2. Improper remarks by counsel in addressing a jury may be cause for setting aside a verdict; but where it appears that, at the time they were made, the counsel was rebuked by the court and withdrew the same in the presence of the jury, and that the court, in its charge, cautioned the jury with respect thereto, they are not a ground for reversal.</p> <p>3. 'This is clearly the case where, from the fairness of the verdict, it is evident that the remarks were harmless and the jury not prejudiced thereby.</p>

On certiorari. This opinion covers four eases, bearing the same title and involving the same questions and having relation to as many streets in the city of Paterson.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari to the District Court of Atlantic City.</p>

<p>A record of conviction in the police court of Jersey City for the violation of a city ordinance, which contains only the following, viz.: “Witnesses, Officer Rooney, Sergeant Snow, Officer Graf; defence, Christopher Neihaus, guilty, $25 fine,” is bad, even under the statute simplifying what the record need show in police courts of cities.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

<p>1. Proceedings in a police court for violation of a city ordinance are of a summary nature, and the conviction must recite the facts necessary to show a legal conviction.</p> <p>2. The “judgment,” so called, returned in this case does not show the charge against the defendant, or that the magistrate found the defendant guilty of any offence.</p>

<p>The action of a colonel of the national guard in dropping an enlisted man from the roll of his company involves neither the personal liberty or property of the individual, and one wlio enters the national guard must submit himself to military law, and, in such a case, must find his remedy by an appeal to the military tribunals.</p>

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

<p>On certiorari.</p>

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

<p>Where, in an action for death, the evidence shows that the deceased was about forty-seven years of age and was not earning above $10 a week, from which his own expenses must be deducted; that his wife was forty years of age and his two children eighteen and fourteen years of age, a verdict for $7,000 is excessive, the law limiting the recovery to damages for the pecuniary injury resulting from such death to decedent’s wife and next of kin, and to that only.</p>

<p>The attorney of the plaintiff has a claim upon the plaintiff’s judgment for his taxable costs and court charges, which is -entitled to be preferred to the defendant’s right to offset the judgment held by him against the plaintiff.</p>

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

<p>On error to the Supreme Court.</p> <p>These two cases present the same question. They differ only in the names of the relators and the manner in which the litigation was begun. The writ of error in the case first named brings up for review the judgment of the Supreme Court overruling the demurrer of the plaintiffs in error to the alternative writ of mandamus directing the board of education of Jersey City to appoint two of its members to a board of school estimate in Jersey City, in accordance with an act entitled “An act to establish a system of public instruction,” approved March 23d, 1900 (Pamph,. L., p. 192) , and the supplements thereto. At a meeting of the board of education, held April 11th, 1901, the relator Lewis, who is a member of the board of education, introduced a resolution that the board proceed to an election of two of its members to the board of school estimate, which resolution was defeated by a vote of six of the members present voting in the negative and three in the affirmative. Of those voting in the affirmative, Ward was one.</p> <p>The writ of certiorari brought up certain resolutions of the board of education of Jersey City, passed on the 14th of March and 4th of April, 1901. It is contended by the prosecutors that the said resolutions were passed in violation of the general school laws of 1900 and 1901. It is stipulated in the state of the case agreed upon that in adopting the said resolutions the hoard of education did not proceed under the provisions of the act of March 23d, 1900, and the supplements thereto, and that the said board has in all its acts disregarded the provisions of said act and the supplements thereto, on the ground that the said acts are unconstitutional and void.</p> <p>The reasons assigned for reversal present the question whether this law is in violation of those provisions of the constitution which prohibit private, local or special laws regulating the internal affairs of towns or counties, and also that other provision which forbids the passing of a private, local or special law providing for the management and support of the public schools. The Supreme Court, in a judgment, sustained the act now in question and gave judgment accordingly. This writ of error brings up the judgment of the Supreme Court in both cases for review.</p>

The legislature at the session of 1901 passed the following act: “1. In all cities of the first class in this state there shall be and hereby is established a board*of excise commissioners to consist of four persons for the terms hereinafter specified, each of whom shall be elected at large in such city as hereinafter provided. “2.

<p>1. A defendant on trial for a crime, who offers himself as a witness on his own behalf, may be asked on his cross-examination whether he has been convicted of crime, for the purpose of affecting his credibility.</p> <p>2. “Crime,” in section 1 of the Evidence act (Gen. Stat., p. 1397), means any crime.</p> <p>3. It is competent to ask the defendant in a criminal trial, on his cross-examination, whether he has pleaded non vult conteniere to an indictment for petit larceny.</p>

<p>1. From the falsity of an affidavit upon which an arrest was procured, malice and want of probable cause may be inferred.</p> <p>2. Where a person makes an affidavit as to facts which do not constitute a crime, but which a judicial officer holds to be a crime, and procures another thereby to be imprisoned, he is liable to an action for malicious prosecution, if his affidavit is false, malice and want of probable cause being found.</p>

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

<p>The defendant’s son was indebted to M., who desired additional security. The defendant thereupon applied to the plaintiff to become surety for the son, and promised to reimburse him if he was compelled to pay the debt. Accordingly the plaintiff .became surety, and afterwards was obliged to pay the debt. Meld, in an action on the promise, that it was within the statute of frauds as a “special promise to answer for the debt, default or miscarriage of another.”</p>

<p>1. Under the act creating a commission for streets and sewers in the city of New Brunswick (Pamph. L. 1871, p. 795) and its supplements, the municipal corporation itself did not become indebted to the commissioners for their salaries.</p> <p>2. Under the general act (Pamph. L. 1888, p. 29; Gen. Stat., p. 640), in pursuance of which the commission was abolished, the municipal corporation did not become chargeable in an action at law for the salaries of the commissioners. Scaine v. Belleville, 10 Vroom 526, distinguished.</p>

On error to the Supreme Court. The plaintiff was a passenger on one of the defendant’scars, and in alighting on the highway, at a point of transfer, received the injuries for which she brought this suit.

<p>The diversion or altered transmission of surface water, caused by the erection of a building upon land over which it is accustomed to flow, affords no ground of action to a person who suffers injury by reason thereof.</p>

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

<p>An employe, although a minor, in accepting service, assumes the risk of such dangers connected with his employment as are obvious to him, and cannot hold his employer responsible for injuries resulting therefrom, notwithstanding the latter lias failed to point out such dangers to him.</p>

On error to the Bergen Circuit. At the trial of this cause the plaintiff was nonsuited upon his offer to prove the following facts: The plaintiff is a corporation under the laws of the State of New Jersey, duly incorporated, and on November 25th, 1900, which was a Sunday, was the owner of a coach and pair of horses. The defendant was keeping an inn in the borough of Wallington, under license duly granted to him September 11th, 1900.

<p>On error to the Supreme Court. For opinion of the Supreme Court, see ante p. 58.</p>

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

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

<p>1. To sustain a conviction under the act of May 28th, 1890 (Cien. Stat., p. 1334), it must be clearly shown that the person indicted not only procured the name of an unqualified voter to be registered, but also that he knew at the time of such registration that such person was not entitled to vote at the next election.</p> <p>2. The word “knowing,” in a criminal statute, means mental assurance, knowledge or scienter, and such knowledge must be clearly proved or shown by circumstances which leave no reasonable doubt on a fair and considerate mind.</p>

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

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