Volume 68 — New Jersey Law Reports

<p>1. Declarations are admissible, as part of the res gestm, only when they are concomitant with the main fact under consideration, and are so connected with it as to illustrate its character.</p> <p>2. Only such words as are spoken, or such acts as are done, by an agent, in the execution of his agency, are admissible in evidence against his principal.</p> <p>3. Where counsel, in summing up to the jury, travels outside the evidence, bases arguments upon facts which have not been proved and appeals to the prejudice of the jury, it is the plain duty of the court, upon objection made, to interpose; and a refusal of the court to intei'pose, where otherwise the right of the party would be prejudiced, is legal error. •</p> <p>Or rule to show cause why verdict for plaintiff should not be set aside.</p>

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

<p>1. Whether one who temporarily rents a building, which has been constructed for public uses, with the object of holding a public function therein, is chargeable with the duty of inspecting it for the purpose of ascertaining whether it is safe, quiere.</p> <p>2. Assuming such duty to exist, the liability of the temporary lessee to answer for injuries received by spectators or employes, resulting from defective construction or maintenance, is limited to such defects as an inspection would disclose; he is not responsible for an accident which is produced by a defect which is entirely latent.</p>

<p>1. Tbe owner of a way is under no obligation to keep it in'proper repair for tbe benefit of a mere licensee.</p> <p>2. In an action of tort, although it is not necessary to set out in the declaration the precise day upon which tbe wrongful act was done, it is, nevertheless, necessary to lay some day, and the day specified must be one which precedes the commencement of the suit.</p>

<p>An employe, who is wrongfully discharged before the end of the term fixed by his contract of employment, is entitled to recover from his employer, as damages for such wrongful discharge, the amount which he would have earned if he had been permitted to continue his service until the expiration of the time during which the contract had yet to run, after deducting such sum as he might reasonably earn between the time of his discharge and the end of the term fixed by the conti'act.</p>

<p>Where the board of freeholders of a county is legally responsible for the support and maintenance of a pauper who is ill with smallpox, and, by its refusal to perform its duty in that regard, makes it necessary for the township committee, of the township in which the pauper has his legal residence, to maintain and support him, the township committee is entitled to recover, from the board of freeholders, the moneys expended by it for that purpose. It is not, however, entitled to recover, from the board of freeholders, moneys expended by it in maintaining a quarantine for the purpose of preventing the spread of the disease with which the pauper is afflicted, there being no duty resting upon the board to establish or maintain such quarantine.</p>

<p>On error to the Court of General Quarter Sessions of the Peace of Hudson county.</p>

<p>1. There is no implied duty on the owner of a house, which is in an unsafe condition, to inform a proposed tenant that it is in a dangerous condition, and no action will lie against him for an omission to do so in the absence of express warranty or deceit.</p> <p>2. Where the owner invites another to come upon his premises he is required to use reasonable care to have his premises in a safe condition.</p> <p>S. An averment in the declaration that the plaintiff was lawfully upon the defendant’s premises does not show that he . was there with any greater right than that of a mere licensee; the only duty the defendant owed to such a person was to refrain from acts willfully injurious.</p>

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

<p>1. In an action of ejectment the plaintiff must trace his title back to someone who is shown to have been in possession of the locus in quo, or failing in that he must show that his grantor acquired title from the original proprietors. If the plaintiff fails to establish a good paper title, where his case depends wholly upon his paper title, the judgment must go against him.</p> <p>2. The fact that the defendant, in his bill of particulars, claims title by adverse possession does not admit that the plaintiff has a good paper iitle.</p> <p>3. The lands of Jeremiah Leeds, of which the locus in quo was part, were, in 1839, upon petition of his heirs, under the decree of a court of competent jurisdiction, divided by commissioners among his heirs. In the execution of their duty the co.mmissioners went upon the land, assigned the shares and made their report in writing to the court, which was duly confirmed and is on record. Held, that these partition proceedings were such an open, public declaration of right to possession by the agents or representatives of the heirs of Jeremiah Leeds as to be tantamount to an occupation by the lxeix’s themselves, through whom the plaintiff’s paper title is derived.</p> <p>4. Tax receipts were not competent evidence to support the title of the plaintiff.</p>

<p>1. The bringing of an action of ejectment is an acceptance of a dedicated street; no other acceptance need be proven.</p> <p>2. No right can be acquired against the public because a dedicated street is not opened to its full width; it may be so opened at any time.</p>

<p>A motorman is not chargeable with negligence because he fails to apprehend that a boy, who is riding on the back of a wagon, will jump from the wagon and run under his car, while he is engaged in looking at the wagon in order to pass it without a collision.</p>

<p>1. Thai one of the jurors in the trial of a cause does not understand the English language is no legal ground for setting aside the verdict where the right of challenge existed.</p> <p>2. The only remedy is by challenge, and it is immaterial whether the incapacity of 'the juror was known or not.</p>

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

<p>In a suit on a judgment obtained in New-York, the question of jurisdiction in the New York court can be raised by plea only and not by demurrer.</p> <p>On demurrer to narr.</p>

On appeal in matter of contested election. Heard upon an agreed state of facts before the Circuit Court of Monmouth county, whose decision was as follows: “Eort, J. The petitions in these cases are filed under section 163 of the General Election act as revised in 1898. Pamph.

<p>1. In quo warranto proceedings, under our statute, the title of relator to the office may be drawn in issue by the respondent.</p> <p>2. Section 69 of “An act to regulate elections” [Revision] (Pamph. L. 1898, p. 237), is mandatory in character; it not only makes it illegal for an elector to vote elsewhere than in his own district, but also makes his title to vote dependent upon the exercise of that right within the election,district in which he actually resides.</p> <p>3. The effect of a vote illegally cast is that in legal effect no vote has been cast.</p> <p>4. In determining what shall constitute a majority of votes at an election, those ballots only that are in legal effect votes are to be considered.</p> <p>5. A supplement to an act entitled “An act to incorporate the chosen freeholders in the respective counties of the state,” approved April 16th, 1846 (Pamph. L. 1899, p. 427), is unconstitutional in so far as it provides for the election of members of the board of chosen freeholders by a majority vote in all the townships of the state excepting in those in counties of the first class.</p>

On demurrer to pleas. From the brief for defendants the following statement is taken: “The plaintiff declared upon the common counts and annexed a copy of a .promissory note, with a notice that the action was brought to recover the amount due on that note. To the declaration the defendant pleaded four pleas. The plaintiff replied to two of the pleas and demurred jointly to the others.

<p>Declaration bad on demurrer for failure to state the time at which cause of action accrued.</p>

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

<p>A township collector is not required to pay over to the township committee taxes which he is directed by the legislature to pay over ■to other persons or to retain in his own keeping as their official custodian.</p>

<p>A new trial will be granted when the defendant’s demeanor before the jury and his deportment when out of court, as shown by the proofs taken on a rule to show cause, satisfies the court that he was shamming when in the presence of the jury.</p>

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

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

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

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

<p>A suit on a bond to secure the performance of a contract should be in the name of the obligees of the bond.</p>

<p>1. The rule that penal statutes must be construed strictly, is, perhaps, not less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative not the judicial department.</p> <p>2. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words there is no room for construction. To determine that a case is within the intention of a statute, its language must authorize us to say so.</p> <p>3. The indictment in this case is drawn under section 217 of the act entitled “An act to regulate elections" [Revision of 1898], approved April 4th, 1898, and charges the defendant with willful fraud in his duties as a judge of a primary election held for the selection of a delegate to attend the state: convention of the Democratic party to nominate a candidate of that party to be voted for for the office of governor. Held, that this section does not apply to primaries for the selection of delegates to conventions to nominate candidates, but only to primaries held for the purpose of nominating candidates for state, city and county officers.</p>

<p>On certiorari to vacate an order of the mayor of the city of Camden removing the prosecutors from the police force of said city.</p>

On certiorari to bring up resolution of city council of Dover removing- the prosecutor from the office of chief of police.

<p>On certiorari to remove a resolution of the board of fire commissioners of Jersey City, passed December 18th, 1901, making appointments to and promotions in the fire department of the city.</p>

On certiorari to District Court of the city of Orange. A form of the contract referred to in opinion follows, viz.: “'No...... ■ “This is to certify, that I, the undersigned, of full age, have leased from D. Wolff & Co., of the city of' .....'..... county of......State of New Jersey........-.......... at the price of........dollars, which sum I agree to pay in the following manner: ................ dollars on delivery of goods, and balance in .........payments of..........…

On certiorari to bring np a certain resolution of the board of street and water commissioners of Jersey City to open Seventeenth street, between Jersey avenue and Hoboken avenue, passed September 25th, 1893.

On certiorari to bring up a certain ordinance of tbe city of Passaic revoking rights granted to the prosecutor to lay down street railway tracks.

<p>On application for change.of venue.</p>

On application to open a .judgment entered in this court affirming a conviction of the defendants in the Essex Quarter Sessions on an indictment for receiving stolen goods.

<p>On certiorari.</p>

<p>1. A municipal board invested with authority to make rules and regulations for the government of the police department of a city, may lawfully adopt rules regulating the removal of dead bodies from the streets and public places, by delivery to friends or relatives claiming them, or to the morgue, where one is provided by law for that purpose; such power is derived from the authority granted to make police regulations.</p> <p>2. Where the authority granted is limited to the making of rules and regulations not in conflict with the constitution and laws of the state, rules formulated by the municipal board , to promote the health or general welfare of the city, ■ when their validity is challenged, will receive a favorable construction and will be sustained by the court unless their invalidity is made to clearly appear.</p> <p>3. Where rules were made by such board regulating the removal of unknown dead from the public streets, which rules were silent as to giving notice to a coroner of the finding of sueh dead, it was held on review that such rules were not invalid as in conflict with a statute requiring the police officers of any city to give notice to a coroner of the finding of all unknown dead, the court holding that the rules were intended for the protection of the public health and comfort, and not for the purpose of interfering with the requirements of the statute as to the mode of their enforcement.</p>

<p>On certiorari.</p>

<p>1. The ninety-fourth section of “An act concerning districts courts” [Revision of 1898] (Pamph. L., p. 556), allowing the prosecutor costs on reversal of the judgment below, has application only to writs of certiorari in cases where the District Court has no jurisdiction. In cases where the eighty-ninth section, as amended by the sixth section of the act of 1899 (Pamph. L., p. 552), provided for an appeal to the Circuit Court, a certiorm-i is not authorized by the act.</p> <p>2. This result is not altered by the decision in Green v. Heritage, 35 Vroom 567, declaring unconstitutional the provisions of the act relating to appeals to the Circuit Court. AVrits of certiorari to bring up causes formerly subject to such appeal are now issued out of the Supreme Court, not by virtue of the District Court act, but by virtue of its appellate jurisdiction at common ‘law and its right thereunder to exercise supervision over the proceedings of inferior courts.</p> <p>3. In the latter cases, the question of costs is regulated by section 8 of the Certiorm-i act (Gen. Stat., p. 368), which empowers the court on the hearing, in its discretion, to give judgment for costs in favor of either party.</p>

<p>1. Where a city street had been paved and improved under chapter 217 of the laws of 1895 (Famph. L., p. 407; Q-en. Stat., p. 487), authorizing the board or body having control of the streets and highways of any city of the first class of this state to pave or otherwise improve any street, avenue or public highway in such city and to cause so much thereof as shall equal the amount of benefits to be assessed by its proper oflicers upon the property-specially benefited thereby, it was held, on review, that an assessment of such benefits made upon a street railway constructed and operated along the street in question under the authority of a municipal ordinance, was unauthorized and should be set aside.</p> <p>2. The decision is based upon the ground that the right of the railway company to locate its tracks in the street and operate its railway therein was not a lot or parcel of land within the meaning of the statute which, inter alia, directs the commissioners, in making their assessment, to make therewith a report and map showing the benefit to each lot or parcel of land specially benefited by the improvement. •</p> <p>3. An ordinance of the city requiring the railway company to pave the space within its tracks and two feet outside the same, gives no authority in support of such an assessment made against the company under the statute named.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Under the revised act concerning townships (Pamph. L. 1899, p. 372), the power conferred upon the township committee by section 67 to contract with any person or private corporation for a supply of light for public use in the township, is not limited either by section 72 or by section 27 of the act so as to require a previous vote of the people making an appropriation or authorizing a tax to be raised or bonds to be issued to pay the cost of such lighting.</p> <p>2. Under the revised act concerning townships (Pamph. L. 1899, p. 372), the authority conferred upon the township committee by section 31 to apply unexpended and unappropriated moneys of the township to any purpose for which township money may be lawfully expended, is not to be so construed as to limit the township committee to those objects of expenditure for which moneys have been ordered raised by vote of the people.</p> <p>3. Under section 67 of the revised act concerning townships (Pampfy. L. 1899, p. 372), the township committee may make a contract for the lighting of the streets for a term of one year, to commence within a reasonable, time in the future; and this may be done without publishing notice of intention and inviting remonstrances from property owners, as is required by section 68 to be done before the making of a lighting contract for a longer term than one year.</p> <p>4. The official copy of an act of the legislature, on file in the office of the secretary of state, is conclusive proof of the enactment and its contents. As its function is to demonstrate what the legislative. . department has enacted into law, every part of the document is evidential for that purpose, and for all purposes incidental to an inquiry into the legislative meaning.</p> <p>5. While extraneous evidence cannot be admitted to show that an enrolled statute was not passed, or that it was passed in a different form, or to show the course of legislation through which the bill passed, or that it was subjected to amendment after introduction and before passage, or to show what the amendments were, yet where the original document, as deposited by the legislative department among the archives of- the state, shows upon its face that the bill was amended in the course of legislation, and shows what amendments were made, the judiciary may take into consideration the purpose and effect of such amendments in coming to a conclusion as to the proper construction to be given to clauses of doubtful meaning, and clauses inconsistent one with another, in the act as finally adopted into tfie law.</p> <p>6. The official copy of the revised act concerning townships (Paraph. L. 1899, p. 372), as found on file in the office of the secretary of state, shows upon its face that it was introduced as a legislative bill in the senate, referred to a committee and afterwards printed; that thereafter, and before its final passage, it was subjected to numerous amendments, all of which were made with pen and ink upon the face of the printed bill in such manner as to leave the old matter legible, though canceled. Ilelcl, that these amendments may be considered in construing a doubtful provision of the law as finally passed.</p>

<p>1. Where the consignor of goods on his own account contracts with a common carrier for their transportation, such consignor is prima facie liable to pay the charges of transportation, and the mere fact that the charges are left unpaid by the consignor and are to be collected from the consignee at destination, does not discharge the consignor from liability to the carrier.</p> <p>2. The mere existence of the relation of carrier and consignee is not enough to establish a liability on the part of the latter to pay the freight charges. There must be an agreement by the consignee, express or implied, in order to create such a liability.</p> <p>3. Where a common carrier, upon delivery of goods at destination, waives its lien for unpaid freight charges and permits the consignee to remove the goods, and the consignee, with knowledge of the fact that freight charges to a certain amount remain unpaid and that the carrier is giving up a lien thereon for his benefit, accepts the goods and removes them, such acceptance and removal are cogent evidence from which to imply an agreement on the part of the consignee to pay to the carrier the known amount of the freight charges.</p> <p>4. But the mere acceptance and removal óf goods by the consignee, with knowledge that the carrier is giving up for his benefit a lien upon the goods for a stated amount, does not create an obligation on the part of the consignee to pay charges beyond the amount stated.</p> <p>5. Certain goods were sold upon terms requiring their transportation to destination at the expense of the seller, and a contract of shipment was thereupon made between the seller and a common carrier, by which the latter was to transport the goods to destination consigned to the purchasers. By the terms of this contract the transportation charges were not to be paid in advance by the consignor, but were to be collected by the carrier from the consignees at destination, and then charged by the consignees against the consignor when making payment to the consignor for the goods. The carrier at the same time had notice of the fact that by the terms of sale the consignor was to bear the entire charges for transportation, and that payment was to be made in the first instance by the purchasers merely as a matter of convenience ; so that both as between consignor and carrier, arid as between consignor and consignees, the consignor was liable to pay the charges of transportation. The common carrier delivered the goods to the consignees at destination, at the same time rendering to them statements of the charges for transportation, which statements, through gross negligence on the part of the agents of the carrier, were made out for sums considerably less than the just and correct amount of transportation charges. The consignees accepted and removed the goods, at the same time receiving the bills for transportation charges. About the same time the consignor rendered to the consignees a bill for the goods, having deducted therefrom transportation charges agreeing precisely in amount with those stated by the common carrier to the consignees. The consignees had no knowledge of the bargain made for freight charges, and no means of ascertaining the correct amount except through the carrier, and had no notice that the bills of charges were incorrect. A few days after receipt of the goods the consignees, in the ordinary course of business, paid to the carrier the amount of the transportation charges, and took the carrier’s receipts upon the bills as rendered. Shortly thereafter the consignees, in the ordinary course of business, remitted to the consignor the balance due for the goods, after deducting the transportation charges as paid by them. Thereafter, the carrier, for the first time, discovered the error in the amount of the charges as stated and collected. The carrier then called upon the consignees to pay the difference, and upon being refused brought this action against them. In view of the above facts, and it appearing that the consignor is a foreign corporation whose ability to pay is unknown—Sold, that the plaintiff is estopped from recovering from the consignees the difference between the amount of charges as stated by it to the consignees, and the amount which, except for the gross negligence of the plaintiff’s agents, would have been stated.</p>

<p>Oa certiorari to First District Court of Jersey City.</p>

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

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

<p>The act to reorganize boards of chosen freeholders, approved March 6th, 1900, is rendered special, and, therefore, unconstitutional by the requirement, that proceedings for its adoption in any county shall be initiated by the existing board of chosen freeholders on or before March 28th, 1900.</p>

<p>1. Legislation for the drainage of meadows, which authorizes an assessment of the expenses otherwise than in proportion to the benefit received, and which, therefore, can be supported only on “inveterate usage,” must confer upon the persons so to be assessed a right to participate in the management of the enterprise.</p> <p>2. The supplements passed in 1875 and 1894 to the Bog and Fly Meadow act oí 1811 are incapable of validating assessments on lands lying outside of that meadow, because the owners of such lands have no right to take part in the management of the enterprise.</p>

<p>1. A judgment rendered by the City Court of Plainfield that a person convicted of violating a city ordinance should “pay a fine of fifteen dollars, or stand committed to the county jail for a term of forty days,” is illegal under section 3 of the supplement to the city charter, approved March 18th, 1S74.</p> <p>2. An error apparent on the face of a judgment is sufficiently set forth in the general reason assigned on certiorari, that the judgment is unlawful.</p> <p>3. The court may, in its discretion, reverse a summary conviction for a reason sufficiently assigned by the prosecutor in certiorari, but not presented in argument by his counsel.</p>

<p>It is the duty of the collector of the county of Camden to pay to the recorder of the city of Camden, for the use of the city, the fees allowed by law to the magistrate and police office'rs of the city, for services rendered in the case of persons convicted and sentenced to imprisonment or committed to jail for non-payment of the fine and costs imposed under the Disorderly Persons act.</p>

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

<p>The question being whether certain conduct of the defendant, assigned as a breach of its contract, was really a breach, or was merely a tort, and that question being a debatable one which could be raised by demurrer—Reid, that a motion to strike out the assignment should be denied.</p>

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

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

<p>On motion to release property from the lien of an attachment.</p>

<p>1. The return made by a sheriff upon a capias is conclusive upon him, and also, in the cause, upon the parties, except on an application to amend it or set it aside.</p> <p>2. The sheriff having returned upon a capias that he .had the defendant in custody, the plaintiff has no interest in money said to have been deposited with the sheriff on his releasing' the defendant.</p>

<p>A resolution of the borough council, passed November 19th, 1895, purported to grant to the Liondale mill exemption from borough taxes for five years from the time when its manufacturing business should be commenced; that business was commenced in February, 1S97, but the local authorities exempted the property from borough taxes for the years 1896, 1897, 1898, 1899 and 1900, and the owners accepted such exemption. Held, that they were precluded from elaimiug any further exemption under that resolution.</p>

<p>1. Under the fortieth section of the charter of Hoboken (Pamph. L. 1855, p. 46; Id. 1859, p. (554) ordinances to regulate the sale of intoxicating drinks may lawfully prescribe punishment for their violation.</p> <p>2. Where the sale of intoxicating drinks is made dependent upon municipal license or regulation, it is competent to ordain that licenses shall be granted on condition of forfeiture for violation of the regulative ordinance.</p> <p>3. The sale of intoxicating drinks at retail is not one of the privileges or immunities of citizenship protected by the United States constitution or the fourteenth amendment thereto. It may be entirely prohibited, and its regulation, when permitted, is at the discretion of the several states.</p> <p>4. It is a valid police regulation of the sale of intoxicating drinks that women shall not be employed in connection therewith. Such a regulation is not a denial to women of the equal protection of the laws assured by said amendment.</p> <p>5. It is no ground of objection to such a regulation that the licensing of women as proprietors of places where intoxicating drinks may be sold is not also forbidden, or that the wife of a licensed male proprietor is allowed to sell or distribute such drinks.</p>

<p>1. Neither the requirement that demand for a jury shall be made at least one day before the time fixed for trial, nor the omission to prescribe that on such a demand by a defendant the venire shall issue without prepayment of fees by him, nor the omission to prescribe that the jurors shall be resident of the county in which the court is held, renders section 149 of the District Court act {Pamph. L. 1898, p. 550) unconstitutional. That act will be construed with reference to constitutional and statutory requirements, as to trial by jury, that are in pwri materia therewith.</p> <p>2. Under said District Court act, when a defendant demands a trial by jury, the fees for the venire must be prepaid by the plaintiff.</p>

<p>Members of the board of health of the city of Camden are appointed on nomination of the mayor, confirmed by the city council. The mayor made nominations to fill two alleged vacancies. The council declined to act, on the theory that no vacancies existed, the offices being in possession of persons claiming unexpired title thereto. There appears a fair ground of contention that vacancies do exist. Held, that it is the duty of the council, in good faith, to act upon the pending nomination, and others that may be made, in case of rejection, so that, upon confirmation, quo warranto may be possible.</p>

<p>On certiorari.</p>

<p>A contract for street lighting for a definite term at a fixed price per lamp cannot be made by a council of a city governed under chapter 52 of the, laws of 1899 (Pamph. L., p. 9G), except by ordinance or resolution submitted to the mayor under section 15 of the act.</p>

<p>On certiorari of indictment and motion to quash.</p>

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

<p>A jury, under tlio charge of the judge that there could be no verdict for the defendant without some damages found, and, if found for the defendant, the amount must be $533.50 and interest, returned a general verdict for the defendant, and also a paper given by the judge to the jury containing a memorandum of a calculation of interest at six per cent, upon $533.50 for twelve years, making a total of $917.62. Held, that the postea was properly signed by the judge for $917.G2, the paper submitted by the jury being a part of their verdict and' showing a finding for that sum.</p>

<p>A master is not liable for an injury caused by the breaking of a hinge which connected two parts of a ladder, for the defect, if obvious, could have been seen by the plaintiff, and if due to a latent defect, could not have been ascertained by the master by an inspection.</p>

<p>. It is not necessary, in a'declaration for personal injuries, to negative contributory negligence on the part of the defendant; it is sufficient if the contributory negligence of the plaintiff does not appear from the facts set out in the declaration.</p>

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

<p>On certiorari.</p>

<p>On rule to show cause why the judgment entered in the above cause against Lewis M. Coddington should not be canceled.</p>

<p>The refusal of a debtor to apjily the proceeds of sale of his property to the satisfaction of a particular debt is not enough, standing alone, to justify the conclusion that such sale was made for the purpose of defrauding his creditors.</p>

On error to the Supreme Court. This writ of error brings up for review a judgment of the Supreme Court vacating and setting aside an order of P. Farmer Wanser, major-general comanan ding division, national guard of New Jersey, which order was in the following words, viz. : “Headquarters Division, “Nationab Guard oe New Jersey. “Camden, February 18th, 1902. “Special Orders, “No. 3. “The field officers of the 1st Brigade and the commanding officers of Battery A, field…

<p>1. Defendants, by writing, contracted to sell and convey to plaintiffs a tract of land, “free and clear,” for $9,000, of which sum plaintiffs paid to defendants $500. Plaintiffs refused to accept the conveyance of the land tendered by the defendants, and brought this suit upon the contract, and therein claimed to recover the $500 paid, and further damages for a breach of the contract, limited, however, to the reasonable expenses of an examination of the title. The action being at issue upon pertinent pleadings, it was brought to trial, and the facts made to appear in part by a stipulation of the. parties and in part by witnesses called and examined. It thus appeared, without contradiction, that defendants made the contract in question; that plaintiffs refused the conveyance tendered, on the ground that it would not convey to them such title as they were bound to accept. Held, that to entitle plaintiffs to recover under the implied obligation inherent in such a contract that the vendor must make good title, or under the express obligation in this contract to sell and convey free and clear, plaintiffs were bound to establish that the conveyance tendered by defendants would not pass to them a good title.</p> <p>2. Plaintiffs conceded that defendants had acquired and would have conveyed to them, by the conveyance tendered, a very large, though undivided, share of the land in ques'tion, but their contention was that one Patrick McDermott had some interest therein which would not have thus passed. Upon the uncontradicted facts, Patrick had no interest therein, unless he was living in 1890. He was, in 1879, a resident of New Jersey, and a common sailor. In September of that year he left the state and his place of residence, and had never been since heard from. Held, that, by the provisions of the act declaring when the death of persons absenting themselves shall be presumed, the conceded facts, in the absence of rebutting proof, established the presumption of the death of Patrick at the expiration of seven years, and afforded conclusive proof in the action of his death in the month of September, 1880, on some day not later than the last day of that month; that, upon the facts, plaintiffs had failed to make out the want of good title . in defendants, and it was not erroneous to direct a verdict for defendants.</p> <p>3. Whether a court of equity, upon application for specific performance of such a contract, would decline to make a decree upon the ground that the title tendered, though good upon the facts shown, was not a marketable title, was not considered, but—Held, that in an action at law for breach of such a contract, want of good title must be established, and. the question whether the title is marketable is not involved.</p>

<p>1. An intelligent boy, within a few weeks of nine years of age, was struck and killed by a train of the defendant company’s at a crossing of a public highway and the company’s tracks. Deceased was familiar with the crossing and the passing of trains on the railroad tracks. The evidence most favorable to the plaintiff, who was the personal representative of deceased, showed that there was nothing to distract the attention of deceased as he approached the crossing, and that, for a distance of at least fifty feet before he reached the track on which he was killed, he had an unobstructed view of that track for a long distance, and if he had made an observation, he would have soen the approaching train. lie was shown to have walked in front of the train, and was so struck by it. Held, that a direction of a verdict for defendant for the contributory neglect of deceased was -not erroneous.</p> <p>2. The degree of care exacted of minors differs from that exacted from adults, and whether minors have exercised the required care is frequently a jury question. But when the infant’s act exposes him to peril which he must appreciate, and when his personal safety may be secured by means plain to the most immature judgment, his exposure of himself to peril, without any precaution, will leave no question for a jury.</p>

<p>On error to the Supreme Court. The opinion of that court is printed in 38 Vroom 48.</p>

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

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

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

<p>1. The statutes authorizing the Court of Quarter Sessions to organize the grand jury, and to receive and transmit to the Oyer for trial indictments which the Court of Quarter Sessions is not empowered to try, are valid.</p> <p>2. On trial of an indictment the defendant objected to the admission of his confession in evidence before the jury, and the state alleged that the confession itself would show the objection to be groundless ; thereupon the judge, in the absence of the jury, received evidence of the substance of the confession, and finding thereby that the objection was groundless, permitted the confession to be related before the jury. Held, not erroneous.</p> <p>3. If on trial of an indictment for murder the judge uses the word •“murder” to denote murder in the second degree, but explains to the jury the distinction between “murder” so understood and murder in the first degree, no error is thereby committed.</p>

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

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

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

On error to the Supreme Court. Action on common counts, to which was annexed, as a bill of-particulars, “the cost price agreed upon between the parties as follows for the following-named horses” (a list of horses and prices). Plea, the general issue.

<p>1. A decision of a question of fact decided by this Supreme Court upon certiorari is binding upon this court.</p> <p>2. A question not raised by the reasons assigned by the prosecutor will not be decided.</p>

On error to the Supreme Court. The action resulting in the judgment now under review was begun in the Supreme Co-urt in December, 1899.

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

On error to the Hudson Circuit Court. On the night of January 16th, 1900, the plaintiff was shot in the face and back by the servant of the defendant. One of the results of the shooting was the loss of the plaintiff’s eye. The defendant was the owner of certain personal property stored upon a wharf, called by the witness a dock, which is situate upon the Jersey side of the Hudson river, near Eort Lee. The shooting occurred at about six o’clock in the evening. It was dark.

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

<p>1. In a suit fur breaches of an agreement of letting where it appears that the plaintiff held, under a written lease, recovery can be had only for breaches of the covenants of the lease.</p> <p>2. Recovery cannot be had fur failure to furnish articles not specified in the lease, although agreed tu be furnished in conversations had prior to the 'execution and delivery of the lease:</p> <p>3. Recovery cannot be had for failure to give possession at the date of the lease for profits which might have been made from a use of the premises unless the declaration contains allegations of special damages.</p>

<p>On error to the Supreme Court, whose decision is reported in 38 Vroom 76.</p>

<p>Exemplification of the rule that in construing a policy of -insurance the whole of its provisions are to be taken together.</p>

<p>1. A deed of conveyance made by the owner of a tract of land upon a portion of which was located a fresh-water lake, by which deed he conveyed to the defendant a portion of the upland adjoining the lake, “together with” certain rights and privileges to be exercised upon the waters of the lake by the grantee, her heirs and assigns. Held, to grant those rights and privileges as appurtenant to the upland and not in gross.</p> <p>2. Incorporeal rights thus held as appurtenant to land will pass upon a conveyance of the dominant tenement although not mentioned in the deed of conveyance.</p> <p>3. What will pass by certain descriptive words in a grant will be excepted by the same descriptive words in- an exception.</p> <p>4. Every purchaser of land takes title subject to any defects, reservations and exceptions that are referred to in the deed by which he acquires title, or that may be ascertained by reference til his chain of title as spread forth upon the public records.</p>

<p>On error to the Supreme Court. For opinion of the Supreme Court see 36-Y?’oom 488.</p>

<p>1. A husband should' sue alone for the support, in his own household, of a third person, though the services' consisted largely of the personal attendance of his wife.</p> <p>. 2. The objection that the wife was improperly joined as plaintiff is not available unless raised by notice of misjoinder under section 37 of the Practice act.</p> <p>3. It is not error to exclude evidence of a conversation between the parties which is not shown to' have been relevant to the issue.</p>

<p>On error to the Passaic Circuit 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 rule to show cause.</p>

<p>On error to tbe Court of Common Pleas of Hudson county.</p>

<p>On error to the Essex Quarter Sesssions.</p>

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

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

<p>On motion for judgment on postea.</p>

<p>1. To a declaration on a bond with condition, setting out the condition and specifically assigning breaches, non damvnifioatus is not a good plea. The breaches must be traversed with conclusion to the country.</p> <p>2. In a suit upon an agreement to indemnify, in order to make any statements of the party indemnified at the time of the execution of the agreement binding as warranties, they must appear upon the face of the agreement sued on; they must either be expressly set out, or, by inference, incorporated1 in the agreement. If they are not so., they are representations and not warranties.</p>

<p>1. The burden is on the plaintiff to prove affirmatively the facts which impose upon a railroad company the duty of giving a cautionary signal in addition to that required by statute.</p> <p>2. Gates having been placed at the crossing before the accident, but no proof being given that they had been rendered necessary by any act of the company, it was error to charge that it was a question for the jury as to what precautions were reasonably necessary for the safety of the public in addition to the proper operation of the gates.</p>

<p>1. A policeman in a city who claims to have been illegally removed from his offioa because no cause was alleged or complaint made or hearing given him, cannot maintain an action for salary alleged to have accrued after such dismissal, while such dismissal remains unreversed.</p> <p>2. Title to office cannot be tried collaterally in an action for salary.</p>

<p>On quo warranto.</p>

<p>1. In- the trial of an appeal from an award of commissioners assessing- the land of the plaintiff for damages for poles, wires, &c., placed upon it by the defendant, the court instructed the jury as follows: “These are matters which come before you, and you are not bound to adopt the opinions of any witnesses. You may adopt their views so far as reasonable, but you have the right to take into consideration- your own experiences as to- whether such structures are detrimental to the market value of abutting property. If, in your experience, they are, you will make the compensation accordingly. If, in your experience, they are not, and you are not inclined to adopt the views that have been expressed here to the contrary, your award will be proportionately less”—Held, reversible- error because—</p> <p>(a) It allowed the jurors to determine the issue upon their own knowledge or experience, founded, it may be, upon facts outside the evidence delivered to them in open court.</p> <p>(5) It permitted the jury to render a verdict which might not be according- to the evidence given in the cause; but upon their own personal knowledge of, or experience with, the subject-matter, (e) It made each juror in effect a witness before his co-jurors.</p> <p>2. To avail a party of a fact known to a juror, he must be sworn and examined as any other witness, so that his evidence, like that of any other witness, may be first scrutinized as to its competency and bearing upon the issue and- for the further reason that the court and parties may know upon what evidence the verdict was rendered.</p>

<p>1. Every plea pleaded in bar 'to the whole action must contain such averments as, if true, will entirely defeat the action.</p> <p>2. Where a contract does not make the certificate- of the engineer or superintendent of works conclusive as to the performance of the work iir a workmanlike manner, nor as to the fact that the materials used were according to the contract, but only makes the obtaining of such certificate one of the things which the contractor must do to secure his payments, the fact that such certificate has been obtained by the contractor is no bar to an action for damages founded upon alleged breaches of the condition of a bond to indemnify a city against bad or defective workmanship done or materials furnished under the contract.</p> <p>3. In a suit for damages upon a bond given as indemnity against defective work.under a contract with a city for paving a street, a plea in bar which simply alleges that the city has accepted and paid for the work is not good. To be a complete bar to- the whole action made by the declaration, it must allege that the plaintiff, the mayor and common council, accepted and paid for said work, before suit brought, with knowledge of the facts alleged as breaches in the declaration-.</p> <p>4. A surety upon a bond thus given can only be released by some positive act done by the plaintiff, to the prejudice of the surety, as acceptance and payment, with knowledge, would- be, or some negligent act which will imply connivance amounting- to- fraud.</p> <p>5. The payment by a city for work accepted by it, under an honest belief that it was done in the manner required by the contract, will not release a surety.</p>

<p>1. A bequest of personal property to executors in trust to pay the income thereof to L. during his life, gives to L. a vested right in such income, and he may assign the same to M., who may maintain an action therefor 'against the executors, at the period or periods fixed by the will for the payments to L., if at such times there be funds in the executors’ hands due to L.</p> <p>2. A pledgee of personal property, assigned as collateral security, has the right to collect the interest, dividends and income accruing on the collateral assigned, accounting to the pledgor, upon the redemption of the pledge. In making such collections, the pledgee is a trustee of the pledgor for the proper application of the funds collected or to refund the same to the pledgor if the debt be otherwise paid.</p>

<p>On defendant’s rule to slxow cause.</p>

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

<p>A right of way had been granted to Alfred, Edward and Eber Hall and their assigns by the deed of one Coddington, the predecessor in title of the defendant. The right of way had been granted for the purpose of enabling the Halls1 to cart clay, &e., from their claynbanks (a tract of twenty-one and one-half acres) to a certain public road. The grant provided that when the road was no longer required by the Halls, their heirs and assigns, it should revert to Coddington, his heirs and assigns. In a suit by the assigns of the Halls against the defendant for damages for obstructing the way—Held—</p> <p>(1) That this was not a way of necessity: the right granted did not become extinct because the Halls or their assigns, subsequent to the grant, acquired another way of carting clay from these clay-banks to some other road.</p> <p>(2) The right granted did not become extinct by mere non-user.</p> <p>(3) The right of way was assignable.</p> <p>(4) It was not limited to' carting clay from pits opened at the •time of the grant, but extended to all clay-banks upon the tract of twenty-one and one-half acres.</p>

<p>Plaintiff delivered to G. a sewing machine, under a contract for the sale thereof on condition, which was not recorded ; afterwards G. stored the machine with the defendant, a warehouseman, who gave G. a receipt therefor, pursuant to the Warehousemen’s act of March 11th, 1881 (Gen. Stat., p. 3746) ; subsequently the plaintiff, having become, as against G., entitled to .possession of the machine, notified the defendant of its rights and demanded the machine, but the defendant would not comply with the demand, and delivered the .machine to G. on surrender of the receipt. Meld, that, by such delivery, the defendant became guilty of a conversion.</p>

<p>1. The act to empower boards of chosen freeholders to acquire additional accommodations for holding the courts, approved March 5thr 1902, is unconstitutional.</p> <p>2. Proceedings which were intended to rest upon that statute, whereby the responsibility for the expenditure of public moneys is east upon a justice of the Supreme Court, should not be judicially supported by sections 2 and 4 of the Freeholders’ act of April 16th, 1S46, whereby such responsibility is cast upon the board of chosen freeholders, even though the proceedings, if purposely taken under the act of 1846, would be legal.</p>

<p>On certiorari.</p>

<p>Oil certiorari.</p>

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

<p>On certiorari.</p>

<p>On motion to quasb order for a subpoma.</p>

<p> On certiorari. </p>

<p>1. The failure of an officer to take the prescribed oath of office will not prevent his becoming an officer de facto.</p> <p>2. The supplement to the School law, passed March 22d, 1895, is constitutional, at least to this extent, that it modifies the prior law so as to prevent a newly-formed city, borough or incorporated town from becoming a separate school district, unless it contains four hundred children of school ago.</p> <p>3. The borough of Avon-by-the-Sea being, at its formation, in 1900, a part of the school district of Neptune City and not situate in any township, did not, by force of said supplement of 1895, become part of any township school, district, but remained in the school district of Neptune City.</p>

<p>1. A city ordinance prohibiting the erection of any stationary or swinging sign, or any stationary awning shed, across the whole or any portion of the sidewalks, is not necessarily invalid, as being special in character and discriminating in its effects, because it is limited in its operation to a portion of the city only.</p> <p>2. Where the city is populous and the territory thus selected covers the business centre and the most crowded thoroughfares of the city, these conditions may furnish reasonable ground for such discrimination, and render it consistent with the requirements of a valid ordinance.</p> <p>3. It is necessary to the validity of such an ordinance, otherwise regular, that it should be reasonable. And where the ordinance is within the powers delegated in the charter, .its reasonableness is presumed, and unless the contrary is clearly demonstrated, the court will not interfere.</p> <p>.4. Such an ordinance is not invalid as unlawfully invading the rights of the abutting owner; the public right in the street is paramount, and the abutter’s right to proper uses of the street in front of his property are subject to reasonable municipal and police regulation.</p> <p>5. Under the charter of the city of Trenton {Pampli. L. 1874, p. 343) an ordinance of the character indicated above was held, under the circumstances of the case, to be reasonable and valid.</p>

<p>1. Where the defendant appeals from a judgment in a Justice’s Court, after the justice had lost jurisdiction of the cause by reason of an irregular adjournment, he cannot take advantage of the irregularity by a motion to nonsuit when the appeal is moved in the Common Pleas, but must submit to a retrial on the merits. In order to review such irregularity he must proceed by certiorari. The two remedies are concurrent, and he must select between them.</p> <p>2. Quwre. If, after thus losing jurisdiction, the justice fixes a day for trial and the parties appear pursuant to notice, will the failure of a defendant to object for want of jurisdiction until after a jury has been demanded, empaneled and sworn operate as a waiver of the irregularity?</p>

<p>1. The landowner who has stood by without objecting until a street improvement in front of his land has been completed at the public expense, will not be heard upon certiorari, afterwards brought to review an assessment for benefits; to question the validity of the ordinance and contract under which the improvement was made.</p> <p>2. In order to sustain an assessment for benefits arising out of a stre'et improvement, it must affirmatively appear that the assessment is not in excess of the benefits conferred upon the land.</p> <p>3. A statutory provision forbidding the allowance of a certiorari to set aside an ordinance for a public improvement after the contract therefor has been awárded—Held, under the circumstances of the present case, to be a reasonable limitation of the right to the writ that would be sustained.</p>

<p>- On certiorari. Motion to quash indictment brought up from the Hudson Quarter Sessions.</p>

<p>On certiorari.</p>

<p>1. Where a justice of the peace is absent on the day to which a cause has been regularly adjourn'ed, and thereby fails to make a further adjournment, he loses jurisdiction. This is not cured by an entry in the docket explaining his absence and adding that both parties assented between each other for a hearing on a future day named. The same result follows where an adjournment is made for more than thirty days without an affidavit and without consent.</p> <p>2. The transcript of the justice is not evidence of anything that transpires out of court or not in the regular progress of a cause.</p>

<p>On certiorari.</p>

<p>1. The essential requirements of a written assignment of a chose in action considered.</p> <p>2. The history of assignments of choses in action, under the statutes of this state and antecedent thereto, discussed.</p> <p>3. Whether there exists any distinction between a legal and an equitable assignment of a chose in action, qucere.</p> <p>4. Where the Supreme Court reverses a judgment brought before it by certiorari, if the record discloses a finding by the trial court of all facts essential to a determination of the controversy between the parties, those findings are to be treated like a special verdict, and upon them the Supreme Court will render such final judgment as the trial court ought to have rendered.</p>

<p>1. An ordinance of the town of Phillipsburg, passed by the common council under due legislative authority, and providing that no license to keep a beer saloon shall be granted by the common council unless the application therefor shall be signed by a majority of householders, being heads of families, residing within a prescribed distance from the proposed saloon, is, while unrepealed, binding ujion the action of the common council itself, so that it imposes a condition precedent, without compliance with which the common council has no jurisdiction to grant such a license.</p> <p>2. Such an ordinance is analogous to statutes that require previous consent of citizens or property owners; the signatures required are, in effect, votes in favor of the proposed license.</p> <p>3. With respect to the votes necessary to confer jurisdiction upon the common council, the application must speak as of the time when the common council assumes jurisdiction; prior to- that time names may be added or withdrawn; after that time the application is not subject to such change. •</p> <p>4. The applicant for license, shortly before making his application, and in contemplation thereof, jirocured .two persons to take quarters in apartments fitted up by him in the same building with the proposed saloon, for the sole purpose of qualifying these two persons as “signers,” under an ordinance that required the approving signatures of “householders, being heads of families.” Seld, that the conduct of the applicant was a fraud upon the common council and upon the citizens whose voices were entitled to be heard under the ordinance, and that the two persons in question cannot be treated as being householders and heads of families, within the meaning of the ordinance.</p> <p>5. The prosecutors having seasonably presented to the common council a remonstrance against the proposed license upon substantially the same grounds that have been successfully urged in this court, and the common council having refused to grant a hearing upon the remonstrance, the license is set aside, with costs.</p>

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

<p>1. A writ of foreign attachment, having been duly executed, does not become void by failure of the sheriff to return it upon the return day. The plaintiff, if he be not in laches, has the right to require the sheriff to return the writ at any time.</p> <p>2. On certiorari to review an order quashing a writ of attachment, it appearing that the court below based the order to quash solely upon the ground that the writ became void by failure of the sheriff to return it in due season, and that the court had no discretionary power, after three years had elapsed, to validate the return—Held,, that the order cannot be sustained on the ground that the plaintiff’s laches requires the quashing' ol the writ, because the court below has not passed judgment upon this question, and there may be reasons to excuse the delay.</p>

<p>By the statute of frauds, a chattel mortgage that is fraudulently contrived for the purpose of defeating creditors is void at law as well as in equity.</p>

<p>On appeal from the District Court “of the city of Hoboken.</p>

<p>On certiorari.</p>

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

On certiorari.' This certiorari is brought to set aside and annul an ordinance passed by the mayor, recorder, aldermen and common council of Dover, as follows: “An ordinance to establish a board of excise commissioners within and for the town of Dover. “Be it ordained by the mayor, recorder, aldermen and common councilmen of Dover as follows, to wit: “Sec. 1.

<p>On certiorari.</p>

<p>Where a plaintiff has sustained the burden of proof as to some damages and failed as to others, he will be given his election either to hold the verdict for the sum to which he is entitled or to essay the results of a new trial.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Oil certiorari to the Orange District Court.</p> <p>For the plaintiff in certiorari, Samuel F. Leber.</p> <p>For the defendant in certiorari, William A. Lord.</p>

<p>A final judgment of a Circuit Court, possibly regular, is reviewable by writ of error only, although the record may be defective.</p>

<p>1. Traffic in intoxicating drinks may be restricted by fair police regulation, notwithstanding it is being conducted under previous license of the municipal authority imposing the restriction.</p> <p>2. It is a fair police regulation to prohibit any keeper of a house of public entertainment, where intoxicating drinks are sold, from permitting the assembling of females there for the purpose of enticing customers.</p>

<p>1. The act of March 21st, 1901 (Pampíi. L., p. 246), “to provide for the widening of roads and streets in townships,” is a general act. It is an empowering, and not merely a regulating, statute.</p> <p>2. Acquiescence by the owner in a condemnation of property for public use will estop attack by certiorari, if there is constitutional and legal foundation for the taking.</p>

On certiorari. On September 2d, 1898, there was filed with the clerk of the Court óf Common Pleas of'the county of Middlesex a statement, dated June 2'5th, 1898, signed by Levi Walling, a justice of the peace of that county, under his hand and seal, to the effect that, on March 29th, 1897, Charles McLaughlin, plaintiff, had obtained, in a court for' the trial of small causes held by said justice, a judgment against Josephine Berk, defendant, for the sum of $132.75 in an…

<p>On defendant’s rule to show cause.</p>

<p>On certiorari.</p>

<p>On defendant’s rule to show cause.</p>

<p>Under section 6 of act of March 23d, 1900 (Pamph. L., p. 502), providing that a reduction of the apportionment of franchise taxed on filing the return required by section 3, shall not effect any change in the current apportionment, a writ of certiorari will not be granted to review such apportionment of taxes for the current year, since its allowance would be futile.</p>

<p>On error to the Hunterdon Common Pleas.</p>

<p>Maps, which are not original evidence, may be admitted on the trial of an issue and used only as illustrative of evidence otherwise offered and admitted. When the relation, at a particular time, of things of a movable nature to things which are immovable is in question, the former should not be delineated on a map to be thus used, unless it is made to appear by evidence of witnesses that they knew their relation at that time and had correctly pointed out their position to the maker of the map. The delineation thus made may be used to illustrate the evidence, and its force will depend on the credit given- to the evidence of knowledge of the relative position and of its having been correctly pointed out.</p>

<p>1. By section 32 of the General Railroad act, an absolute liability is imposed -on a corporation organized thereunder for all damages to animals coming on its tracks by reason of a failure to erect such a fence as is thereby required. After such a fence has been erected it will be liable for failure to maintain the fence, when the failure is attributable to a neglect of duty-in that regard.</p> <p>2. The duty to maintain such a fence involves the duty of reasonable inspection and observatioh to discover the need of reparation. The duty of inspection, its frequency, &c., must depend upon circumstances. Proof of a recent break, of which the company had no actual notice, and which such inspection as reasonable care would have required would not have disclosed, might fail to establish a case for a jury.</p> <p>3. But where the company permits the land adjoining the fence to be used in the conduct of its business in a mode which imperils the fence, it is a question for a jury whether the duty of inspection does not require more frequent and particular observation, adapted to disclose any break happening from such use.</p>

<p>Plaintiff attempted to cross, on foot, trolley tracks laid in the middle of an avenue with which he was familiar. The time was after • seven o’clock in the evening of February 12th. The night was very dark and rainy. He was struck and injured by a trolley ear coming from the east. In that direction the avenue was straight for a long distance. The car carried a headlight at its top and its interior was also lighted. From the configuration of the ground all the lights of a car thus approaching could be seen, for six hundred and fifty or seven hundred feet, and the headlight for a much greater distance. He testified that when he started to cross he did not see the car, but before he succeeded in crossing he was struck, though he “stepped as quick as he could.” Held, that upon- plaintiff’s case, his negligence contributing to his injury so clearly appeared that it was error to submit the case to the jury.</p>

<p>The mere fact that a person traveling upon the highway, after dark, mistakes the wing wall of a bridge (which carries the highway over an intersecting stream) for a foot-path, and, after getting upon it, falls oil and is injured, affords no ground for concluding that the bridge was improperly constructed.</p>

<p>The trial court properly left it to the jury to determine whether, after a building contract had been filed in the clerk’s office, it had been- subsequently abrogated and a new parol contract substituted for it, instructing the jury that if the written contract had been thus abrogated the land and building were subject, under the Mechanics’ Lien law, to a lien for work done by a subcontractor.</p>

<p>1. When, under a building contract, the contractor has been prevented from completing his work by the fault of the owner, the legal measure of damages is, generally, for the work d'one, such a prqportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and in respect to the work not done, such profits as he would have realized by doing it.</p> <p>2. Evidence as to the cost of the entire work is necessary in order to ascertain what proportion of the whole work contracted for has been done.</p> <p>3. The defendant will be entitled to show that the contractor has not done his work in compliance with the contract, and to claim such rebate as will satisfy the loss to him by reason of such noncompliance.</p> <p>4. The contract provided, “that if the architect shall certify that the refusal, neglect or failure of the contractor to comply with the contract is sufficient ground for such action, the owner may terminate the employment of the contractor.” The architect occupied a judicial position as to the parties, and was bound to act impartially upon his own judgment, and to express in some appropriate language, in writing, his opinion that there was sufficient ground to take the work out of the contractor’s hands.</p> <p>6. A private letter written by the architect to the owner and not communicated to the contractor, will not justify a rescission by the owner.</p>

<p>In ejectment. On error to the Supreme Court, tbe opinion of wbicb court is reported in 38 Yroom 1.</p>

<p>1. Money deposited in pursuance of a wagering- agreement upon a rise or fall in the price of stocks, may be recovered- by the depositor from the depositary, whether the agreement has been fully executed or not.</p> <p>2. Such a recovery may be had upon the common count for money had and received.</p> <p>3. The depositor’s right to such money is a chose in action arising on an implied contract, and therefore is assignable at law, so that the assignee may sue for it in his own name, by force of the Practice act, paragraph 340.</p>

<p>1. When the position of the station and tracks of a railroad company is such that passengers, intending to take a train at the station, must cross intervening tracks to reach their train, and a train approaching the station is so near and moving so slowly as to indicate to prudent people that it is about to receive the' passengers and the passengers then step upon- the intervening tracks without apprehending danger, it is a question for the jury whether they have exercised proper care, even though the approaching train is not designed to stop at the station.</p> <p>2. Under like circumstances it is a question for the jury whether the company is guilty of negligence, if a train running on the intervening tracks strikes one of the passengers.</p> <p>3. Although sentences in a charge may, if read apart from their connection, need some qualification to render them accurate, yet if the qualification be given in the context so that the jury cannot reasonably be thought to have been misled by the charge taken in its entirety, there is no error.</p> <p>4. Rulings on evidence, which have done no harm to the complaining party, afford no ground for reversal of the judgment.</p>

<p>The plaintiff, while acting as a brakeman in the employment of the defendant, fell from the roof of a freight car ánd was injured. The cause of his fall was that the grab-iron on the roof pulled out the screw which held it, as he threw his weight upon it in descending, the defects being the insufficiency of the screw and the deterioration of the wood. The car belonged to the Chicago and Erie Railway Company, and first appears in the evidence as 'arriving loaded at Port Jervis, in a freight train which came from the west over the Delaware division of the defendant’s railroad. Afterwards it was hauled by the defendant to Weehawken, where the accident happened. Held—•</p> <p>1. It must be inferred against the plaintiff that the car was received by the defendant loaded for transportation by it as a common carrier.</p> <p>2. The defects complained of were not such as, under the circumstances, the defendant was bound to guard against.</p>

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

On error to the Atlantic Circuit. The plaintiff recovered judgment below, to reverse which the. defendant brings this writ of error.

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

<p>On error to the Supreme Court. For opinion of that court, see ante p. 64.</p>

<p>1. When the plaintiff alleges in his declaration for libel that he is injured, in his good name, fame and credit among his neighbors by the alleged libelous publication and hence is damaged, he is entitled to recover compensatory damages, notwithstanding the provision of the act entitled “An act relating to libel,” approved June 13th, 1898. Pamph. L., p. 476.</p> <p>2. Under such a declaration he can recover his actual damages. “Actual damages specially alleged,” as used in the statute of June 13th, 1898, means such as would be compensatory damages at common law. Stuart v. News Publishing Co., 38 Vroom 317, followed.</p>

<p>On error to tbe Supreme Court. For opinion of that court, see 38 Vroom 199.</p>

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

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

<p>An insurance company, by its agent, issued and delivered to the insured a binder or binding slip whereby it assumed and bound $2,000 of insurance upon certain property of the insured, the binding slip to be void on delivery of the policy. When the binder was delivered it was assumed by the insured that the insurer proposed to charge a rate higher than it had charged for the same insurance for the previous year, although no rate ’ was mentioned in the binder, whereupon he requested the agent of the insurer to ascertain if he could not obtain from his principal some concession in the rate; this the agent consented to attempt, but before any attempt was made by the agent the building- burned. Held—</p> <p>1. That a complete temporary contract of insurance existed between the insurer and the insured from the time of the delivery of the binder.</p> <p>2. That the insured having accepted the binder, the promise to pay the premium to be mentioned in the policy was a sufficient consideration for the contract.</p> <p>3. That the agent of the insurer having failed to fix the rate before the policy was delivered and before the loss1 occurred, the insured was bound to pay a reasonable rate for the protection' which he had received by the temporary contract.</p> <p>4. Whether one acts as agent for the insurer or the insured is to be determined’ by the circumstances of the particular case; one cannot be the agent for both parties.</p>

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

<p>By the second section of an act entitled “An act for the- pensioning of firemen in certain cities of this state” {Pamph. L. 1897, p. 263), it is enacted that “if any officer or man permanently employed in any fire department in any such city shall be fatally injured while in the performance of, or attempting to discharge, his duties, such' municipal board shall allow the widow, if there be any, * * * an annual pension equal to one-half the salary received by such officer or man- at the time of his death, to. be paid to such widow during her widowhood1.” A member of a paid fire department in one of such cities, whose entire time was devoted to the duties of his office, which consisted of work in the fire-house, upon- the hose and apparatus and in fighting fires, was killed by falling from a trolley car while on his way from- the fire-house to his home in the city during one of the hours set apart by the commanding officer for the taking of meals. His widow brought suit against the city under the above section to recover a year’s pension. At the close of the trial the court directed a verdict for defendant, one of the grounds being that the deceased was not engaged in the performance of his duty within the meaning of the act. Upon reference to the first section of the act, it appeared that a like pension- was awarded to a fireman whose duty required active service in the extinguishment of fires and who should become incapacitated for further duty as a result of injury received in the discharge of, or attempt to discharge, such duty. It was held, on review, that the two sections should be read together in construing the second section, and that it clearly appeared that deceased was- not, at the time of his death, engaged in the performance of his duties within the meaning of the act, and that there was no error in the direction of the verdict.</p>

<p>On error to the Supreme Court, whose opinion is reported ante ¶. 208.</p>

<p>1. Plaintiff’s evidence tended to show that1 a chain furnished by the defendant, his employer, for the use by the plaintiff and others in lifting heavy objects, broke while carrying a weight considerably less than it was designed to bear, and under circumstances that excluded the existence of any immediate cause other than the weakness of the chain. There was evidence tending to show that the chain was an old one; that its links were materially worn where they bore upon each other; that this wear was sufficient to weaken the chain and was easily discoverable upon inspection, and that the link which broke parted at one end, where the wear had occurred. There was in the plaintiff’s case no evidence that the employer had caused any inspection, test or repairs of the chain- to be made prior to the occurrence, nor any evidence of negligence on the part of the plaintiff or those who, with him, were using the chain. In an action to recover damages for personal injuries sustained by the plaintiff through the breaking of the chain—Hold, that a motion to nonsuit was properly refused.</p> <p>2. " There being nothing- to Show that the duty of inspecting or repairing the chain had been imposed upon or assumed by the plaintiff and other workmen who were using it, and nothing- to show that such inspection and repair were incidental to its use— Held, that those employes whose duty it was to inspect and repair were not fellow-workmen engaged in a common employment with the plaintiff.</p> <p>3. The refusal- of a motion to direct a verdict in favor of the defendant, where the bill of exceptions- does- not show that any ground was assigned for the granting of the motion, will not be considered upon writ of error.</p> <p>4. Exceptions not discussed in argument need not be considered.</p>

On error to the Supreme Court. Action by Susan T. Loid, administratrix, &e., of William Ii. Loid, deceased, against the J. S. Rogers Company. Judgment for plaintiff, and defendant brings error.

This cause was tried at the Atlantic Circuit in December, 1901, before Mr. Justice Hendrickson and a jury, and a verdict for the defendant was rendered under the order of the court.

On error to the Supreme Court. This case was tried at the April Tterm, 1902, of the Cape May Circuit Court, before Mr. Justice Hendrickson and a jury, and a verdict was directed for the plaintiff for $1,200 damages.

<p>1. If the plaintiff, when injured by negligence on the part of the employes of the defendant, was employed and’ paid by one who acted in so doing- as the mere agent of the defendant, in such case the plaintiff was a co-servant with those whose negligence occa- • sioned his injury, and there should have been a direction of a verdict for the defendant if the jury found such agency existed.</p> <p>2. If the plaintiff, when so injured, was- -employed by ome who had some contract to repair the tracks of the defendant, the question whether he had transferred' plaintiff’s services pro hao vice to- defendant, with plaintiff’s consent, should have been submitted to the jury.</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>