Volume 69 — New Jersey Law Reports

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

<p>On demurrer to declaration.</p> <p>This action is brought to recover damages for the breach of a contract, which is thus set out in the plaintiffs’ declaration: “The defendant bargained for and agreed to purchase from Phineas M. French [plaintiffs’ testator], in his lifetime, a certain claim of the said Phineas M. French against the Plainfield Poultry Farm Company, amounting to the sum of $845.11, with interest thereon from-the 23d day of September, 1899, and to pay to the said Phineas M. French the amount of the said claim, on the consideration that he, tíre said Phineas M. French, would put the claim, in judgment and make an assignment of the said judgment, when obtained, to him, the said defendant; and the said Phineas M. French, at the special instance and request of the said defendant, then and there agreed to sell to the said defendant the said claim, for the amount of the said claim, and to put the said claim in judgment, and to make an assignment of the said judgment, when obtained, to him, the said defendant.”</p> <p>It is expressly alleged in the declaration that the entire agreement sued upon was by parol, and not in writing.</p>

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

<p>1. The owners of a mine having furnished an employe with a guide-to take him down the mine and- to his place of work, it was not necessary to warn him of the dangers he might encounter if lie-wandered off from the path.</p> <p>2. A miner, who-, up to the time of the accident, had always been-taken to his place of work in the charge and care of a guide, on that occasion, finding the guide had gone on before, attempted the-experiment of finding his way in the darkness to his place of work, and fell and was injured, cannot, recover, because negligence om his part contributed to the injury.</p>

<p>.In an action of ejectment, brought by the daughter of a testator against his widow, to recover certain lands, and thereby to test the validity of the will of decedent, whereby plaintiff had been cut off, on. the ground that the will was a nullity, it appeared that the locus in quo was the mansion-house of the testator, and that he resided there, with his wife, up to the time of his death; that she continued to reside there up to the institution of this suit, and that no dower had been assigned to her. Held, that a verdict for the plaintiff could not he sustained, for, if the will was valid, the plaintiff had no right, title or interest whatever in the premises, an'd if the will was void, the decedent d-ied intestate, and1 defendant, by virtue of her right of quarantine, was entitled to the occupancy of the mansion-house so long as her dower remained unassigned Gen. Stat., p. 1270, § 2.</p>

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

<p>In an action of ejectment, where the whole claim of the plaintiff, by his declaration, is demand of possession of the loous in quo, alleging that he has been wrongfully deprived thereof by the defendants, there can be no recovery of damages for mesne profits, the statute (Gen. Stat.,' p. 1289, § 45) requiring that, in order to hold defendants for use and occupation after forfeiture, claim therefor should be made in the declaration.</p>

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

<p>The effect of the action of commissioners appointed under the Martin act (Prnvpli. L. 1880, p. 149, oh. 112) in readjusting assessments, is to cure all defects or illegalities which existed in them as originally laid. The fact that the assessments as originally laid were defective or illegal, affords no ground of relief, after such, readjustment.</p>

<p>1. Plaintiffs contracted to build for defendants an observation wheel, and in consideration of the sum of $200 per annum agreed to give the defendants the exclusive privilege of running and operating the wheel at a seaside resort during the continuation of the letters-patent. The wheel was completed and paid for by defendants, and operated for the period of one year and the royalty for that year paid. In an action to recover the accrued royalties for the succeeding four years unpaid—Held—</p> <p>(1) That it was no defence to the plaintiffs’ action that for two years of the time for which royalties were demanded defendants did not own or run the wheel.</p> <p>(2) That the contract sued on was in no way violative of public policy.</p> <p>2. Where the defence of fraud is not specified in the notice attached to the plea, the question of fraud in the consideration of the contract may be gone into at the trial with the consent of counsel of plaintiff.</p> <p>O. A charge that the defence of fraud, under the conditions developed in the testimony, could1 only be used for the purpose of reducing the amounts of plaintiffs’ recovery, and that even if the evidence would support; the conclusion that there was fraud in the consideration of the contract, yet there was nothing to show that any ■' loss had been sustained by the defendants by reason of such fraud, was correct.</p> <p>4. A. promise to remit royalties, made by one of the plaintiffs to one of the defendants, unless the plaintiffs should stop other wheels from running in competition, was, if made, without consideration to support it.</p>

<p>1. When a widow, after the death of 'her husband, remains in possession of lands of which he died seized, or to which she has not released her right of dower, it is, in law,, presumed to 'be her possession in right of her dower until dower is assigned.</p> <p>2. If the husband, in his lifetime, has conveyed the land by a deed, in which his wife did not join, and she, after the first husband’s death, marries the grantee, who lives with her upon the premises, the possession is the possession of the wife until her dower is assigned, and not the possession of the husband.</p> <p>3. Such possession by the grantee cannot be set up by those claiming under him, as a possession which will draw to it the possession of an adjoining tract, left in the possession of the widow of the first husband (and over which her right of dower extends), in order to support a title to such adjoining tract by adverse possession.</p>

<p>A servant of Wlian, while in a safe position and free from danger, in doing his master’s work, at the request of the engineer of the elevator company, which was engaged in an independent employment, over which Whan had no control, attempted to loosen the elevator which had stuck fast, and while so doing was killed. Held—■</p> <p>(1) That Whan is not liable, as the accident did not happen while decedent was engaged in. serving him.</p> <p>(2) That the elevator company is not liable. If the engineer had authority to employ the decedent, they were fellow-servants. 'If he. had no sueh authority the decedent was a mere volunteer. The danger was also obvious.</p>

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

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

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

<p>1. An indictment for compounding a crime must distinctly aver that the crime compounded has been committed.</p> <p>2. The record of acquittal of the person charged with the crime compounded is at least prima facie evidence in favor of the person charged with compounding.</p> <p>3. Whether, notwithstanding such acquittal, the state can be permitted to prove the guilt of the person acquitted, and whether it requires proof beyond a reasonable doubt or only a preponderance of evidence, it is not necessary to decide.</p> <p>4. The defendant not having been, convicted under the third count, no opinion is expressed in respect to the proper construction of the act of 1899 (Pamph. L., p. 214), which makes it a misdemeanor to commit any act for the perversion or obstruction of justice or the due administration, of the laws.</p>

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

<p>Ill replevin. On case certified from the Atlantic County Circuit.</p>

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

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

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

<p>1. Mere imperfection or lack -of form in pleading are not good grounds for demurrer.</p> <p>2. A declaration will be stricken out, on notice under section 132 of the Practice -act, as being so defective or so framed as to prejudice, embarrass or delay a fair trial of the action, although a demurrer would not be sustained against it.</p>

<p>1. Where the evidence, when the plaintiff rests, leaves the eon- ' tributary negligence of the plaintiff in doubt, the case is for the jury.</p> <p>2. In referring to photographs, the judge said to the jury: “I have admitted these photographs in. evidence. They are put before you. You ought to look at them with a good deal of caution. I suppose all of you know that a photog'raph of natural scenery is more or less misleading as to distance on account of what the artist would call perspective or want of perspective. Do not be misled by the photographs in an estimate of distance; in that respect, it is fair to say that they are unavoidably misleading; it is the nature of photography.” This was not an erroneous statement but one within the legitimate right of comment by a trial judge.</p> <p>3. It is for the jury to say whether the testimony of a witness, having an equal opportunity to hear and whose hearing isr equally good, and who testifies that he did not hear the blowing of a whistle or ringing of a bell, notwithstanding he listened, shall or shall not be given equal credit with the testimony of a witness, similarly situated, who testifies that he did hear.</p>

<p>It is not negligence per se for a motorman to open tbe gate on the front platform of a trolley car before the car has come to u full stop.</p>

<p>In tbe trial of a criminal case, it is error for tbe trial judge to say to tbe jury that they may consider tbe fact that the public, in a certain locality, think tbe defendants guilty, as corroborative of the particular facts proven in tbe cause.</p>

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

<p>1. Under the “Act concerning juries,” approved March 27th, 1874 (Gen. Btat., p. 1852, § 40), and the “Act concerning jurors,” approved April 9th, 1902 (Pamph. L., p. 640), the right of peremptory challenge in civil actions must be exercised as the names of the jurors are drawn from the box.</p> <p>2. The supplement of 1887 to the Jury act of 1874 (Pamph. L., p. 132; Gen. Btat., p. 1855, pi. 54), applies only to challenges for cause, and not to peremptory challenges.</p> <p>3. Where a challenge is permitted “at any time before the juror is actually sworn,” it must be interposed before the commencement of the ceremony.</p>

<p>Members of a de facto board of education, organized under the General School law (Pamph. L. 1902, p. 69), cannot be ousted at the instance of a private relator in quo warranto on the ground that such board of education has no legal corporate existence.</p>

<p>1. The vice of duplicity in a pleading cannot be reached by general demurrer.</p> <p>2. A replication professing to answer the whole of a plea that is bad for duplicity, must reply to each distinct material matter that is contained in the plea.</p> <p>3. A misrepresentation as to the legal effect of a written instrument will not avoid the instrument.</p>

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

<p>Upon a rule to show cause, a verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury.</p>

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

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

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

<p>The motorman of an electric street railway car started his car at moderate speed to cross an intersecting steam railroad consisting of three tracks, after his conductor had gone forward upon the crossing and had used proper care to ascertain that no railroad train was to be expected; while thus proceeding over the crossing at moderate speed, the motorman became suddenly aware of a railroad train rounding a curve nearby and coming toward his car at a high rate of speed without timely warning by bell or whistle; a collision seemed imminent and was in fact narrowly averted; the motorman, on seeing the danger, instantly applied all power and increased the speed of his ear to the utmost in order to escape the collision; it was claimed that in the lurch of the street car thereby occasioned, a passenger was thrown to the floor of the car and injured. 3eld, that a verdict attributing negligence- to the motorman on these facts cannot be supported.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari to review assessment.</p>

<p>In order to sustain a tax for visible personal property, levied against an inhabitant of this state elsewhere than at the place of his residence, it must be shown that the property was found in the taxing district on the day prescribed by law for commencing the assessment of taxes.</p>

<p>On certiorari.</p>

<p>1. The Paterson and Passaic Gas and Electric Company was formed March 1st, 1899, by the consolidation and merger of eight corporations, some of whom possessed and exercised municipal franchises within the definition laid down in State Board of Assessors v. Plainfield Water Company, 38 Vroom 357, and since its formation the consolidated company has constantly exercised those ' franchises. Held, that the company is subject to taxation under section 4 of the act of March 23d, 1900 {Pamph. L., p. 502), for the taxation of franchises.</p> <p>2. The tax to be levied on the corporation under that section is two per cent, of its gross annual receipts from all its business, not merely two per cent, of its receipts from the exercise of municipal franchises.</p>

<p>Rule 58 of the defendant’s relief department reads as follows: “Should a member, or his legal representative, make claim or bring suit against the company or against any other corporation which, may be at the time associated therewith in administration of the relief departments in accordance with the terms set forth in regulation No. 6, for damages on account of injury or death of such member, payment of benefits from the relief fund on account of the same shall not be made until such claim shall be withdrawn or suit discontinued. Any compromise of such claim or suit, or judgment in such suit, shall preclude any claim upon the relief fund for benefits on account of such injury or death, and the acceptance of benefits from the relief fund by a member or his beneficiary or beneficiaries on account of injury or death shall operate as a release and satisfaction of claims against the company and any and all the corporations associated therewith in the administration of the relief departments for damages received from such , injury or death.” Held, that the judgment intended by that rule is a judgment awarding the plaintiff some damages.</p>

<p>On certiorari.</p>

<p>By virtue of a municipal ordinance for opening a street, the relator’s land was taken and the residue of his land was assessed for benefits, and he paid the assessment under the belief that all rights necessary for opening the entire street had been acquired by the municipality. Afterwards he discovered that all necessary rights had not been acquired. Held, that, prima facie, he was entitled to mandamus directing the municipality to acquire the omitted right.</p>

<p>The act of April 4tk, 1892, concerning the docketing of judgments rendered in the courts for the trial of small causes {Gen. 8tat., V- 1898), authorizes the docketing of such judgments without an affidavit of belief that the debtor is not possessed of goods and chattels to satisfy the amount due.</p>

<p>Section 17 of “An act to provide a uniform procedure for the enforcement of all laws relating to fish, game and birds, and for the recovery of penalties for violations thereof,” approved March 29th, 1897 (Pamph. L., p. 109), is unconstitutional, because its object is not expressed in the title of the act.</p>

<p>1. When a city is about to change the grade of a street on which a building- stands, the fact that the owner of the building secures such a modification of the proposed change as will result in less injury to him does not bar his right to damages for the change actually made.</p> <p>2. Under the circumstances of this case the relator’s right to relief is not barred by laches.</p>

<p>Under the peculiar circumstances o£ this case, the bail to the sheriff should be discharged and money deposited with the sheriff as additional security should be returned to the bail, without formal surrender of the defendant.</p>

<p>Under the ordinances of Atlantic City, approved May 31st, 1902, and July 15th, 1902, the compensation of a counselor, employed to assist the city solicitor in pending or prospective litigation, is to be paid by the city solicitor out of his salary, and consequently a taxpayer is not entitled to question by certiorari the validity of a resolution of the council employing a counselor for that purpose.</p>

<p>Under the Atlantic City ordinance for licensing auctioneers. &c., passed July 14th, 1902, no license foe becomes duo and payable until June 1st, 1903.</p>

<p>On certiorari.</p>

<p>1. Invalidity in the provision of “An act to establish public parks in ! certain counties in this state and to regulate the same,” approved March 5th, 1895 (Gen. Stat., p. 2618), as to the appointment of the members of the board of commissioners therein authorized, will not render the statute invalid. In such a case the constitutional provision (article 7, section 2, paragraph 9) for the appointment of officers by the governor, with the advice and consent of the senate, is operative.</p> <p>2. On'certiorari to review the action of the board of chosen freeholders of a county, for the issue of bonds, under said act or its supplements, on the requisition of a park commission organized thereunder, this court cannot inquire into the title of the members of the commission. Being a de faeto board, such title cannot collaterally be questioned.</p>

<p>By an act of the legislature, making a change in the government of a class of cities, it was provided that it should not go into effect in any city unless accepted by the voters at a general or charter election under submission, by resolution, of a specified municipal board, approved by the mayor. Such a resolution having been passed and approved, in Jersey City, a certiorari without stay was allowed to a private prosecutor. It was returnable and was duly returned before the election, and came on for hearing, on briefs, after the election. Held—</p> <p>(1) That opportunity would be given the prosecutor to inform the court of the result of the vote on the submission; and</p> <p>(2) That if the act was rejected, the writ would be dismissed, but without costs.</p>

<p>A company organized under the General Railroad law purchased land within its filed route. The deed was given on a condition subsequent which was not performed. Under a right of entry for breach of such condition judgment for possession was recovered. Held, that in case of inability to agree with the present owners, the company might lawfully condemn such lands for the purposes of its railroad.</p>

On certiorari. On January 17th, 1902, the mayor of Jersey City appointed a hoard of excise commissioners, under chapter 346 of the laws of 1894, and such board, as then constituted, has been ever since continuously in existence.

On certiorari to the District Court of Atlantic City. The writ in this case removes a proceeding in the District Court of Atlantic City, brought by a landlord to dispossess his tenant for non-payment of rent.

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

<p>1. A street or avenue laid out by an owner upon his land and by him dedicated to the public use, in the absence of its acceptance by the public, is not a street or highway within the meaning of the Traction act of 1893, and the supplement thereto. Pamph. L., p. ' 302; Gen. Stat., p. 3235. •</p> <p>2. The owner of land in a street thus dedicated, but not accepted, is an owner of land within the meaning of section 14 of the Traction act regulating the proceedings to condemn lands.</p>

<p>On certiorari.</p>

<p>Under the act entitled “An act to regulate the practice of architecture,” approved March 24th, 1902 (Pamiph. L., p. 54), creating the state board of architects, and requiring persons about to engage in the practice of architecture to submit to examination and obtain a certificate from the state board, it is provided that any . person who shall at; the time of the passage of the act be engaged in the practice of architecture in this state and shall present to the state board an affidavit to that effect, shall be entitled to receive such certificate upon the payment of the regular fee. The prosecutor presented his application in due form, accompanied by his affidavit, showing that he was engaged in such practice in this state at the time of the passage of the act. He was afterwards examined before the board upon the facts stated in the affidavit and as a result the board rejected the application. Held, on review, that the refusal of the certificate was not justified by the facts developed and that the action of the board should be reversed and that a certificate should issue.</p>

<p>1. The passage of the act to consolidate the local or charter elections with" the general election in the cities of this state, known as the Meeker act {Pamph. L. 1901, p. 41), does not operate to alter or abolish the compensation allowed by statute to the election officers for duties connected with the local or charter elections.</p> <p>2. The compensation of a public officer belongs to him, not by force of any contract, but because the law attaches it to the office, and it is not affected by a diminution of the duties of the office—the office itself remaining.</p>

<p>The defendant in this ca'se was summoned before a Justice’s Court by his proper surname, which was preceded by the initial letter of his Christian name. On the return day no regular appearance was entered, but his attorney-at-law appeared for him and objected to the summons and moved to set it aside because, as he stated, the first or Christian name of the defendant was not inserted therein. 'Xlie justice denied the motion, and thereupon amended the summons by inserting the proper Christian name of the defendant. It was held, on review, that the justice had power to amend under the one hundred and thirty-eighth section of the Practice act (Gen. Siut., p. 2556), and also under the supplement thereto, approved April 16th, 1891 (Gen. Stat., p. 2594), these acts having been extended to the practice of Justices’ Courts.</p>

<p>On certiorari to the District Court of the city of Camden.</p>

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

<p>T. The right to a trial by jury cannot be denied to a defendant in . Justices’ Courts, who makes seasonable application therefor, , because- of his refusal to prepay the costs of the jury.</p> <p>2. A judgment obtained before the justice, after such refusal, is invalid for want of jurisdiction.</p>

On rule to show cause why a mandamus should not issue directing the city clerk of Paterson “to admit N. E. Warmolts as a member of the board of aldermen in the place and stead of August Winters, and to strike the name of August Winters off the roll and put the name of N. E. Warmolts thereon instead.” The facts established by the proofs taken under this rule are: At a meeting.of the board of aldermen of the city of Paterson, held on the 16th day of February, 1903, at which…

<p>On certiorari.</p>

<p>A determination by city council in a specific case, based upon the finding of that body in a matter in which a discretionary judgment was reposed in it, is so far judicial in character as to be voidable if any one of the quasi judges who participated was at the time disqualified by private interests at variance with the impartial performance of his public duty.</p>

<p>1. A prosecutor in certiorari will be held in laches where six years have passed before the legality of the ordinance had been directly drawn in question by the application for the writ.</p> <p>2. » Whether the use of the highway was a reasonable one for a trolley company, in view of the facts, was for the municipality and not for the court.</p>

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

<p>On rule to show cause why mandamus should not issue.</p>

On rule to show cause why a mandamus should not issue to compel the defendant corpbration and its registered agent in this state to permit the relator to examine its stock and transfer-books during ordinary business hours. The testimony established the following facts: The relator was, on October 11th, 1892, the registered owner of five shares of the common stock of the defendant corporation.

<p>When it appears from the evidence that the defendant in a writ of attachment against an absent debtor has a dwelling-house and usual place of abode within this state where a summons may be served, the writ of attachment will be quashed.</p>

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

<p>On certiorari.</p>

<p>1. A foreign corporation may maintain suits in this state on con-, ■ tracts made outside of New Jersey since the passage of the act concerning corporations (Revision of 1896), without complying with the provisions of the ninety-seventh section of that act.</p> <p>2. Unliquidated damages cannot be set off in suits in the District Courts.</p>

<p>On certiorari.</p>

<p>1. Whether a child a little over seven years old, who had been injured by being run over by a car of defendant, was, or was not, sui juris, was a question for the jury, and also, if found sui juris, whether, taking into consideration his tender years, he was guilty of contributory negligence.</p> <p>2. It is purely discretionary with the trial court to allow the plaintiff, after closing his case, to open it and introduce further evidence. Such an action affords no ground for review.</p>

<p>The withdrawal of a juror, by direction of the court, produces a mistrial. There never having been a trial of the cause, a new trial cannot be directed. The original venire still remains in force, and parties are entitled to proceed under it.</p>

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

<p>A plaintiff, in an action against an executor .for .services rendered to the intestate by the plaintiff as nurse, is not competent to testify to services rendered in the presence of the intestate. Dickerson v. Payne, 37 Yroom 35, followed.</p>

<p>On information in nature of quo warranio. Demurrer to plea.</p>

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

<p>When the overwhelming weight of the testimony contradicts the story as to how the plaintiff was injured, and his story is entirely uncorroborated, and the evidence shows that he was injured only by reason of his own negligence, a verdict for the plaintiff will be set aside.</p>

<p>Where two separate actions of tort, by the same plaintiffs against different defendants, were tried together, and the trial judge instructed the jury that the actions were separate and gave separate instructions in each case, and the jury rendered but a single verdict against all the defendants, saving one, who was discharged by order of the judge, there must be a new trial.</p>

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

<p>1. ■ Where a passenger on a street car was entitled ,to continue his journey on a connecting car, without the payment of additional fare, providing he boarded the connecting car within ten minutes after leaving the original car, and was entitled to a proper transfer ticket as an evidence of his right to so do, an action of tort will lie for his wrongful expulsion, unless by his own fault or carelessness he aided in procuring the situation which led to his expulsion.</p> <p>2. If inquiry on the part of the passenger would have informed him of the rule which made it necessary that the transfer ticket should be used within ten minutes of the time punched on it, and if due care on his part required that he should make such inquiry, then his failure to do so would have been a contributing cause to the injury complained of, and a bar to his right to recover.</p>

<p>Proof that a person was the driver of a “licensed bus” .in a city, does not show that-this compelled him to be a common carrier, and required to carry passengers for legal fare.</p>

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

<p>Defendants were constructing a building, the front of which stood on the building line of the street; a derrick was fastened to the floor beams of an upper story by a rope and stood within a fence enclosing a part of the sidewalk adjoining the building. From the head of the derrick a guy rope extended downward and outward to the street, being secured to a barrel, filled with sand, standing on the roadway near the curb. Plaintiff, a boy seven years of age, was seated at or near the edge of the sidewalk, within two or three feet of the guy rope; a crowd of boys came on the premises after defendants’ workmen had left, and began hanging on the guy rope and swinging the derrick. Either because of their weight or because of the cutting of the head rope, by rubbing against a floor beam, it bi;oke, and the derrick swung over into the street, breaking down the fence and injuring the plaintiff. Held, that no negligence on the part of defendants was shown.</p>

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

<p>Where the case is one in which the jury was justified in awarding punitive damages, this court cannot say that they are excessive.</p>

<p>On error to tbe Union County Circuit Court.</p>

<p>Oil error- to the Supreme Court.</p> <p>The following is a copy of the contract and assignment thereof contained in the bill of particulars annexed to the declaration and referred to therein, and upon which the declaration is founded:</p> <p>“Atlantic City, N. J., Aug. 25, 1900.</p> <p> “Messrs. S. E. Crowley & Co.: </p> <p>“Gentlemen—I hereby empower and authorize you to sell all that certain property now owned by me in the city of Atlantic City, county of Atlantic'and State of New Jersey, No. .........Pierpont hotel, N. J. avenue, described as follows:</p> <p>“The price for which I authorize you to sell the above-described property is $70,000.00 seventy thousand dollars. I will accept $......in cash and allow......to remain on first mortgage at rate of 6 per cent, per annum. On which amount I agree to pay you a commission of 2 per cent., or on any selling price which may be agreed upon between myself and the purchaser, in case you procure a purchaser for the same.</p> <p>“Should I, or any agent sell the said property, I will notify you immediately of such sale.</p> <p>“Signed,' Chas. R. Myers.</p> <p>“Witness: W. J. Middleton.</p> <p>“P. S.—This agreement is void after 10 days from date.</p> <p>“Ch. R. Myers.”</p> <p>“For one dollar and other valuable considerations, we .hereby sell, assign, transfer and ■ set over unto the S. E. Crowley Company all of our right, title and interest in and to the within contract and agreement.</p> <p>“S' 'E Crowley and Co</p> <p>“S. E. Crowley and Co.</p> <p>“Dated August 25th, 1900.”</p>

<p>1. Plaintiff, doing business in Germany, had furnished the defendant corporation certain heddles, articles used in weaving silk. The last lot furnished consisted of one hundred thousand heddles. By letter defendant notified plaintiff that it had paid to plaintiff’s bankers the price of that lot, and ordered plaintiff to make and ship to it one million heddles, in lots of one hundred thousand as made. By the same letter defendant notified plaintiff of certain defects in the lot last received, and requested plaintiff to avoid such defects in the next lot made. By reply letters plaintiff accepted the order for the one million heddles at the price of $1.25 per thousand. By a subsequent letter plaintiff requested defendant to furnish samples of heddles such as desired. After that letter would have beeh received by defendant, in the usual course of mail, defendant telegraphed plaintiff, _ “Make same as last.” Held, that the contract between the parties was properly construed as only binding the plaintiff to furnish heddles, under the order, of the character and quality of the lot of one hundred thousand last furnished, and that it' did not oblige plaintiff to furnish heddles that were'perfect, or heddles that were satisfactory to the defendant, or heddles that were adapted to the use for which defendant wanted them.</p> <p>2. The one million heddles were made and shipped by plaintiff to ■ defendant in eight lots; three of them were received and used by defendant; the remaining five were rejected. The trial judge charged that, if the whole of the shipments were proved to be of the character and quality required by the contract, the plaintiff was entitled to recover the price of all of them. He further charged that, if the shipments were not of the character and quality required, plaintiff could not recover for the last five lots shipped, but might recover the price of the three lots received and used by defendant, less a reasonable deduction because of defects. An assignment of error, based on an exception to the instruction respecting the three lots, is presented in argument as ground for reversal, and it is contended that the trial judge erred in not submitting to the jury the question whether the three lots had been accepted by defendant so as to bind it to pay for them. Held, that this contention will not be considered, because the jury having found that all the heddles furnished were such as required by the contract, the error in the instruction (if it was erroneous) was innocuous, and afforded no ground for reversal.</p>

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

<p>The acknowledgment, by a sole executor, of the existence of a debt due from the estate of his testator, and a promise to pay it, will bar the operation of the statute of limitations, provided such acknowledgment and promise are in writing.</p>

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

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

<p>1. It is the duty of the master to use reasonable care to furnish proper tools to his workmen.</p> <p>2. If the master has proper tools within reach of the workmen, and they, through negligence or lack of judgment, select the poor ones, the master will not be liable for any resulting injury to them.</p> <p>3. When the defect in the tool taken by the servant is obvious, the servant who takes it, although it is the only one on the premises, assumes the obvious risk of danger to himself, but he cannot assume an obvious risk in such case for a fellow-servant who does not know of the danger.</p> <p>4. As to a fellow-servant, it will not be presumed that his do-seiwant would have selected an obviously imperfect tool when he might have chosen a good one.</p> <p>5. Where the negligence of the master concurs with -that of the servant in producing injury to a fellow-servant, the master is liable, and therefore the burden is on the master lo show that he- had furnished proper tools which the servant might have used.</p>

<p>The next of kin of a child adopted under our “Act concerning infants” {Gen. Stai., p. 1714) are the next of kin by blood, and not the' adopting parent.</p>

<p>In a suit against a bank, a gratuitous bailee, to recover the value of securities left with it, and which have been stolen by one of its employes, a want of ordinary care on the part of the bank not appearing, the bank is not liable for the loss of the plaintiff.</p>

<p>The County Park act, approved March 5th, 1895 (Gen. Stat., p. 2618), authorizes the aTroointaagnt. hv-n justice of the Supreme Onm-fof commissioners to lay out public parks in any county having a population exceedmgTwo huShedthousañ^ provides that the act shall not go into operation in any county unless the voters of the county accept it, and it directs certain county officers to -take steps for submitting the question of acceptance to. the voters at the next election. Held—•</p> <p>(1) That the distinction drawn between the more populous counties and the others is legitimate for the purposes of the act.</p> <p>(2) That the provision for submission at the “next election” is directory only, and the act may be accepted at a subsequent election, and may be accepted in counties which acquire the designated population after the passage of the act.</p> <p>(3) That the legislature had constitutional authority for conferring upon a justice of the Supreme Court the power of appointing the park commissioners.</p>

On error to the Supreme Court. The certiorari was heard before Mr. Justice Fort, under a written stipulation of consent, under section 295. of the Practice act, and his opinion was as follows: ' Fort, J. The certiorari in this case brings np a resolution of the Long Branch commission, passed November 24th, 1902. There are but few questions that need to be considered.

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

On error to the Supreme Court. Tire writ of error in this case brings up for review the judgment entered in the Supreme Court, in- favor of the plaintiffs, in tlie sum of $3,435.15, upon a verdict of a jury rendered at a trial-at the Hudson Circuit, before Mr. Justice Collins.

On error to the Supreme Court. This suit was brought to recover damages for the death of William Huebner, son^of the plaintiff, caused by the alleged negligence of the defendant. At the time of the injury the plaintiffs intestate was employed by the defendant as a fireman, and was, in the performance of his duty, upon his engine, standing at a point where the engine was coupled to the tender.

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

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

<p>1. On error, it will be presumed that a court of general jurisdiction had the authority to enter the judgment which it did, unless the contrary appear in the record.</p> <p>2. When a single debt exists for work done or materials furnished in the erection of several buildings, the liens therefor are to be enforced by a single lien claim and a single declaration, in which the debt is to be apportioned among the buildings and curtilages according to their respective liability. On this point, Johnson v: Algor, 36 Vroom 363, is overruled.</p> <p>3. The rights of the builder and the several owners and mortgagees, in proceedings under the Mechanics’ Then not, are to be settled in a single suit, by the judgment in* which the priorities of the liens of the plaintiff and each of the defendants are to be settled.</p>

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

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

<p>1. An unrecorded contract for the conditional sale of goods and chattels, accompanied by an actual delivery, and followed by an actual and continued change of possession of the things contracted to be sold, wherein it is provided that the ownership of such goods and chattels is to remain in the person so contracting to sell the same until the same are paid for, or until the occurring of some future event or contingency, is valid, and may be enforced against ordinary creditors- of the person contracting to buy the same. The Recording act of 1889 (Pamph. L., p. 421), as amended by the act of 1895 (Pamph. L., p. 302 ; Q-en. Stai., p. 891), voids such instruments, when not recorded, only as against judgment'creditors of the person so contracting to buy the same, and subsequent purchasers and mortgagees thereof in good faith.</p> <p>2. A landlord who has caused a distress to be levied upon such goods and chattels in possession of the person so agreeing to buy, for arrears of rent of the premises occupied by him, is not a judgment creditor Within the meaning of said amended act.</p>

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

<p>1. In an action brought under the Mechanics’. Lien law (Pamph. L. 1898, p. 547, §§ 23, 24), where “legal service” of the summons has'been made upon a non-resident builder, and such builder then appears generally in the action or makes defence upon the merits, he thereby submits himself to the jurisdiction of the court, and' if the-verdict goes against him, the resulting judgment is to be a “general” judgment, binding upon such builder in personam.</p> <p>2. The language of section 24 of the Mechanics’ Lien law (Pamph. L. 1898, p. 549), .to the effect that, “when only legal service of the summons has been made,” the judgment against the builder shall be “specially for the debt and costs to be made of the building and lands in the declaration described,” prevents a judgment m personam (called in the section a “general judgment”), against the builder, only in case of judgment by default, where the jurisdiction of the court over his person depends alone upon the service of process; and not in cases where such builder has appeared generally to the action or has made defence upon the merits.</p> <p>3. Where a contract is made for lathing and plastering to be done at a specified rate per square yard, it is error to permit the jury to ignore the measured area of the walls and ceilings lathed and plastered, and to estimate the area according to the number of laths used in- the work, where the evidence shows that the number of laths bears no definite relation to the area.</p>

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

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

<p>1. In an ordinary action commenced by summons the plaintiff, in ■ order to succeed, must show that his right of action was complete at the time the action was commenced.</p> <p>2. The same íule applies to an action brought against the builder and owner by virtue of the Mechanics’ Lien law. Pamph. L. 1898, p. 538, §§ 23, 24, &c.</p> <p>3. A building contract that required the contractor to do the work and furnish the materials required for the construction of certain buildings in this state contained provisions for the payment of the consideration' price in installments as "the woj:k progressed, the final, payment to be made when the buildings were “completed and delivered to the owner, with a full release of liens.” Held, that the clause quoted was intended to protect the owner against liens and claims arising, under the Mechanics’ Lien law. Pamph. L. 1898, p. 538.</p> <p>4. In such a case the delivery of a release of liens is a condition precedent to the contractor’s right to recover, unless it affirmatively appear that there are no liens or claims to be released.</p> <p>5. In an action brought against the builder and owner, under the Mechanics’ Lien law (Pamph. L. 1898, p. 588), the releases must be delivered or tendered before suit brought.</p> <p>6. It is erroneous to permit a witness to use, as a memorandum from which to testify, a document in the preparation of which he did not participate and concerning the accuracy of which he has no personal knowledge.</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>Oil error to the Supreme Court. .</p>

<p>1. In the case, as presented by the plaintiff’s evidence, the court properly refused defendant’s motion for a judgment of nonsuit; and the charge of the judge to the jury clearly and correctly placed upon the plaintiff the burden of establishing, by the weight of evidence, the terms of the contract, upon which alone his right to their verdict should depend.</p> <p>2. In the absence of contrary evidence, the law presumes that payment for services rendered 'by one at another’s request shall be made in money.</p>

<p>1. A passenger on a railroad train, as he approached his destination, prepared to alight, and, while standing inside of the car, near the rear door, which was open, a violent jerk or start of the train threw him out of the ear to the ground, and he was seriously injured. Held, that it was not error to refuse a nonsuit at the close of the plaintiff’s case, nor to refuse to direct a verdict at the close of the defendant’s evidence.</p> <p>2. A written statement, signed by a witness, if submitted to the jury, cannot be considered by it as affecting the credibility of any witness other than the subscriber.</p>

On error to the Hunterdon Circuit Court. The action was on contract and brought by the plaintiff, an attorney-at-law, against the defendant, a hotel proprietor in Flemington, to recover the sum of $1,175.

On error to tlie Supreme Court. This was an action of tort brought by the plaintiff against the defendant corporation.

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

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

<p>On case certified from Bergen Circuit Court.</p>

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

<p>A inan may keep a vicious dog for the protection of his hom'e and • '. property; but, if he does so, he is bound to exercise a degree of , care,, cojnmensurate with the danger to others which will follow the dog’s escape from his control,' to so secure it that it will ^ot injure' anyone who does not unlawfully provoke or intermedclle with it ; if such care is used, and the dog nevertheless escapes and - inflicts injury, the owner will not be liable.</p>

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

<p>On error to Cumberland Quarter Sessions.</p>

<p>1. An owner sued by a workman or materialman, on a notice and demand of payment, under the third section of the Mechanics’ Lien law, may plead that there was due at the time of the service of the notice by the claimant “a sum less than the amount- claimed in said notice and demand.” Such a plea is not demurrable.</p> <p>2. Tlie fact that the declaration recites that after the notice and demand, and before commencing the suit, the claimant had obtained a judgment against the contractor for the amount claimed, ■ does not defeat such a plea. Such a statement in the declaration is surplusage, being merely a statement of the plaintiff’s evidence.</p> <p>3. A judgment by a claimant against the contractor is not conclusivo upon the owner. It may be offered as evidence of the amount due, but it will not prevent the owner from showing the truth to be that the claim made is knowingly excessive to the knowledge of the claimant.</p> <p>4. The conclusion here reached we think to be in conformity with the principles declared in Reeve v. Elmendorf, 9 Vroom 125, and Camden Iron Works v. City of Camden, 52 Atl. Rep. 477.</p>

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

<p>1. Where a general exception is taken to a charge, under section 140 of the Criminal Procedure act, any assignment of error thereon must, under section 141 of the act, set out “the portion of the charge” alleged to be erroneous.</p> <p>2. An assignment of error in the following form: “Because the whole charge of the said court was contrary to law and injurious to the interests of the defendant,” is not good. It alleges the parts of the charge which are unquestionably good to be as bad as the parts which may not state the correct legal principle. Such an assignment is not within section 141 of the act.</p>

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

<p>1. The order of proof is always discretionary with the trial judge. He may reopen the case on rebuttal, if he so wills, if no injury will follow to the defendant by way of surprise or otherwise.</p> <p>2. An engineer, called by the plaintiffs, testified that he had made a map of the locality of the accident for the defendant. On cross-examination the defendant produced, and the witness identified, the map, and stated that it was made from actual measurements, made by himself upon the ground, and that it was drawn to a scale. The defendant had the map marked for identification. The defendant did not offer the map in evidence. Upon the defendant’s resting, the plaintiffs called for the map, and offered it on rebuttal. .The court admitted it. Held, that in this there was no error. Nor was there error in the court’s allowing the witness to subsequently testify to pertinent questions as to the map itself and to locate certain points thereon.</p> <p>3. Where the verdict is clearly excessive, in view of the character of the injury and sufferings of the plaintiff, when injury and sufferings are the only questions submitted to the jury, it may be set aside. -</p>

<p>1. The legislature may confer upon a single justice of the Supreme Court power to hear and determine, after return and upon notice, any proceeding in certiorari, and direct that the order and determination of such justice therein shall be entered as the judgment of the Supreme Court.</p> <p>2. Where the prosecutor was present at, and participated in, an election in a street lighting district, and, without objection or protest, voted upon the question of the sum to be raised for street lighting purposes in the district for the ensuing year, he will be held to be estopped from questioning the regularity of the election because of an allegation that the requisite ten days’ notice thereof was not given by the township clerk.</p>

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

<p>1. A married Woman could not, at the common law', maintain an action for enticing away the husband and for the alienation of his affections.</p> <p>2. Nor is such a right of action conferred upon a married woman in this state, under the Married Women’s act (Gen. Stat., p. 2012), or under the twenty-fourth section of the Practice act. Gen. Stat., p. 2536.</p> <p>3. The demurrer to a declaration setting forth such a cause of action in this case was sustained.</p>

<p>1. Where a declaration charged that a municipal corporation, by its agents duly authorized, empiowered and' directed so to do, committed upon the plaintiff a tort consisting of assaults, batteries and false imprisonment, it was held, on demurrer, that’ this was a sufficient allegation of the tortious act by the corporation; that the details of the authorization was a matter for proof at the trial, rather than a necessary allegation in the pleading.</p> <p>2. The demurrer to such a declaration admits that the acts complained of were not ultra vires, but that the agents of the corpora- . tion had competent authority to commit the assaults. Whether . they actually had such authority is a question of fact, to be determined at the trial.</p>

<p>1. Duplicity in a pleading must, at common law, be taken advantage of by special demurrer; under our stautory practice by a motion to strike out.</p> <p>-• Where, in a single count of.a declaration, there be joined together several causes of action, or several grounds of special damage, some of which are sustainable, but the others not, if there be a verdict for the plaintiff, with entire damages, the verdict and consequent judgment thereon will be sustained by the presumption that the trial judge directed the jury not to find damages upon the defective allegations.</p> <p>3. The case of Parioell v. Smith, T Harr. 133, commented on in Potts v. Clarke, Spene. 537, lias been overruled by subsequent decisions, so fq.r as it stands opposed to the above rules.</p> <p>4. The ad damnum clause in a declaration may limit the scope and effect of the plaintiff’s claim, with respect to his title to the special damages laid in the declaration.</p> <p>5. In an action of tort, brought by husband and wife, the declaration (which contained but a single count) set forth some grounds of .special damage, for which' the plaintiffs were entitled to sue jointly, and another ground of special damage, for which the husband, in his own right, was alone entitled'to recover. The ad damnum clause claimed simply the “damages of the said plaintiffs;” the verdict awarded a single sum for “the damages of plaintiffs,” and the judgment was that the plaintiffs' recover "their said damages.” Held (following Consolidated Traetinn Co. v. Whelan, 31 Vroom T54), that the effect of the'verdict and judgment was to give only those damag to which the plaintiffs were jointly entitled.</p>

<p>1. The declaration avers that-, by reason of plaintiff’s occupancy of three fax-ms, situate at different places upon a certain public highway, it was necessax-y fox- him, fx-om time to time, to cart fax-m produce and other things used in husbandx-y back and forth from farm to farm; that the highway formed the only feasible means of travel for the purpose, except a long, steep and circuitous passage, the xxse of which was so expensive as to be impracticable; that the defendant company, by its charter, was bound to keep and maintain in repair a bridge in the road between farm No. 1 and the other two farms, and that the defendant failed and neglected to keep the bridge in repair, and permitted it to be so mxxch out of repair as to become unsafe and unavailable for use, whereby the plaintiff was hindered from passage along the highway from farm No. 1 to the other two farms, and was put to actual pecuniary expense in carting farm products, &c., from farm to farm over the long, steep and circuitous passage aforesaid.</p> <p>2. On demurrer—Held (following Melvrhof v. Delaware, Laehawamna and Western Railroad Go., 26 Vroom 56), that the declaration shows such a special and particular damage to the plaintiff as to sustain his private action.</p>

<p>1. Where one has wrongfully converted the personal property of another to his own use, the injured party may, at his option, waive the tort, treat the tort-feasor as having purchased the goods in. question without stipulation as to their price, and recover the market value of the goods upon the implied promise to pay so much as they were reasonably worth at the time of the conversion.</p> <p>2. Where an unexecuted agreement has been made for the sale of goods, and the goods remain in possession of the vendor, one who buys from the vendee with notice that he has not paid his vendor for the goods is put upon inquiry to ascertain whether the first vendee is entitled to the goods without payment on delivery.</p> <p>3. A sale for cash is a conditional sale; as between the parties, no title vests thereunder by delivery without payment, unless the delivery be made under such circumstances as to evince a waiver . of the condition.</p> <p>4. The recipient of a letter having been a non-resident of this state, and having died before the trial of the action, production of the original letter by the sender is excused, and. secondary evidence of its contents is admissible if the original would have been admissible.</p> <p>5. Our statute requiring conditional contracts of sale to be recorded (Gen. Stat., p. 891, § 191) does uot apply to a contract made between non-residents concerning personal property situate out of this state, the contract not contemplating the removal of the property into this state.</p> <p>(5. The Georgia statute for the recording of conditional contracts of sale—Held, not to apply to a sale on condition of payment of the price in cash on delivery.</p>

<p>1. Under section SI of the Criminal Procedure act (Pamph. L. 1898, p. 890), where two or more defendants are jointly indicted and tried, they together, and not severally, are entitled to ten peremptory challenges.</p> <p>2. The finding of a trial court that a defendant’s confession was voluntarily made, is a finding of fact, not reviewahle on ordinary writ of error if there be any legal evidence to support it.</p> <p>3. Questions of law not appearing by the bills of exceptions to have been raised in the trial court, will not be considered on ordinary writ of error.</p> <p>4. If a reasonable doubt of guilt is raised, even by inconclusive evidence of an alibi, the defendant is entitled to the benefit of it.</p> <p>5. Where two defendants are tried together upon an indictment charging that they, with many other persons unknown, committed a riot, and the defendants are severally convicted, a trial error that affects only one of the defendants will not work a reversal of the conviction as to the other defendant.</p>

<p>1. An indivisible contract for employment of a broker in the sale of both real and personal property and for payment of commissions upon the purchase-price, the contract not being in writing, is totally void under the statute of frauds. Gen. Stat., p. 1604, § 10.</p> <p>.2. A verbal promise to pay compensation for services rendered in negotiating a sale of real estate, whether made before or after the services are performed, is void-under the statute of frauds. Gen. Stat., p. 1604, § 10.</p> <p>3. A bill of particulars annexed to a declaration or delivered pursuant to demand, under section 23(5 or section 237 of the Practice act (Gen. Stat., p. 2572), limits, for the purposes of the trial, the generality of the pleading.</p> <p>4. Where the issue as made up on the pleadings and bill of particulars has been fully tried and correctly settled, no amendment having been applied for in the court below, the court of review will not permit the plaintiff in error to amend the bill of particulars in order to bring about a reversal of the judgment and. a new trial upon a different issue.</p>

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

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

<p>On certiorari.</p>

<p>1. Unless a mortgagee of chattels tabes immediate possession of the chattels, or records his mortgage immediately, his mortgage will be postponed to the claims of creditors. Immediate possession or recording means with reasonable dispatch.</p> <p>2. Whether the mortgage is recorded with reasonable dispatch is a question of fact under the circumstances of the case, and the finding in the court below will not be reviewed in this court where it has evidence to support it.</p>

<p>1. The plaintiff in a junior judgment, by suing out execution and levying upon land, acquires priority over an-older judgment upon which execution is subsequently issued.</p> <p>2. An insufficient levy cannot be fortified or perfected by a levy made after the return of the execution.</p> <p>3. A description in the levy made by which the land' intended to be levied upon can be fully' distinguished- and identified- is sufficient.</p>

<p>A married woman living apart from her husband under a decree of divorce a mensa et thoro, is not enabled by our statutes to maintain an action at law against her husband.</p>

<p>In summary proceedings the record of conviction must show with precision of what offence the accused was convicted.</p>

<p>1. A mayor’s approval of a search is not his approval of tiie amount to be paid for the search, which is required under the act of April 5th, 1902 (Pamph. L., p. 344), in order to charge that amount against a person redeeming lands sold for taxes.</p> <p>2. On final hearing it will be assumed that the prosecutor in certiorari has sufficient interest to give him a standing in court, unless his interest has been previously challenged.</p>

On rule to show cause why a mandamus should not issue to compel the defendant, as county clerk, to receive and file a certificate nominating the relator as the candidate of bis party for the office of member of common council from tbe Fourth ward of the city of Hoboken, said certificate being in conformity with section 42 of “An act to regulate elections.”

<p>The return of the finding and judgment of a board of police commissioners upon the trial of an officer upon a charge of neglect of duty cannot be contradicted by evidence taken under a general rule to take testimony.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On appeal from First District Court oj Jersey City.</p>

<p>The Court for the Trial of Small Causes has jurisdiction of a suit for a penalty under chapter 210 of the laws of 1902 (Pampli. L., p. 661), and a writ of certiorari will not lie to remove the proceedings before final judgment.</p>

<p>On certiorari.</p>

On certiorari. This cause was heard on the original argument at the February Term, 1902, upon the reasons filed therein, and a decision was rendered setting aside the assessment brought up by the writ. The certiorari was brought to review an assessment made by the borough of Tenafly for the improvement of Clinton avenue, in the said borough, upon lands belonging to the Allison Land Company, which do not front upon the avenue.

<p>Under section 200 of the General Tax law (Gen. Btat., p. 3320), the buildings used by incorporated educational, religious and charitable institutions, together with a curtilage not exceeding five acres, if necessary to the fair use and enjoyment thereof, are exempt from taxation, unless the owner of the land receives rent therefor.</p>

<p>On certiorari.</p>

<p>On motions for a trial at bar and for a struck jury.</p>

<p>On application to set aside an election.</p>

<p>Where, in-'an-action for injuries received by the flying of a piece of wood thrown by a circular saw, the proof was almost plenary that the servant had been warned of the.danger of the saw and forbidden to pass through the room where it was working, another way being expressly' provided, and the only evidence to the contrary was • the practically uncorroborated evidence ■ of the plaintiff, a verdict finding the plaintiff was „not warned was against the clear weight of evidence.</p>

<p>Where the side lines and grades of a street were fixed and established by an ordinance passed in 1896, and the properties of several owners on said street were made to conform to the grade so fixed, and intersecting streets have also been improved and a sewer system constructed with reference to said lines and grades— Held, that after more than five years after the ordinance became effective, prosecutors were barred by laches from maintaining a • certiorari to set aside said ordinance.</p>

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

<p>On certiorari.</p>

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

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

<p>The- trial judge properly refused to order a nonsuit where it would only have been done by entirely disregarding the. testimony submitted on the part of. the plaintiff.</p>

<p>Application for leave to file information.</p>

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

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

<p>Where in an action for breach of a contract of hiring it appeared that the plaintiff’s efforts to secure other employment were intermittent and not during the whole period after the breach of the contract by the defendant, a verdict in favor of the plaintiff for 'the whole unrun period of the contract is excessive and snould be sot aside.</p>

<p>1. A declaration on contract set forth a breach of warranty in the sale of certain shares of oil stock, consisting of false representations as to the lands of the company, number of oil wells in active operation, producing capacity and the dividends that were being paid and as to the value of the stock. It further averred that defendant represented himself to be a director and familiar with the affairs of the company and that relying upon the representations thus made, which were wholly untrue, and that the stock was wholly without value and the consideration money was wholly lost to the plaintiff—Held, that while the declaration did not disclose the facts necessary to sustain an action for deceit or for the recovery of money had and received, it was sufficient to sustain an action upon contract for breach of warranty.</p> <p>2. Representations of facts as to the property of the company, its productiveness and other conditions having relation to the value or desirability of its shares as an investment, may be regarded as proper elements in a contract of warranty in the sale thereof.</p>

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

<p>1. When a defendant in an indictment avails himself of the privilege accorded by law and becomes a witness in his own behalf, he waives any constitutional or common law protection against being compelled to be a witness against himself, and may be cross-examined as a witness by the state’s prosecutor. The extent of such cross-examination, and the mode of requiring answers thereto, are not deemed to require consideration in this case, for the defendant, having voluntarily testified in his own behalf, in respect to his conduct and whereabouts during a period of time involved in the inquiry on the trial, a question by the prosecutor respecting the clothes worn by him on a day included in such period, was permissible cross-examination, and there was no error in admitting that question.</p> <p>2. When a defendant in an indictment, under the provisions of the Criminal Procedure act, takes a general exception to the charge of the trial court and assigns error upon a portion thereof, the reviewing court is not restricted to the consideration of such portion of the charge, severed from its context and the rest of the charge, for the duty to reverse in such case only arises when it appears that error in law was committed in the part of the charge so selected, to the prejudice or injury of the defendant in maintaining his defence.</p> <p>3. The trial court, in its charge to the jury, defined the crime of murder in the first degree in the language approved by this court in State v. Donnelly, 2 Dutoher 601, and, in respect to the time required for deliberation and premeditation, declared that “it is (time) enough if the design to kill be fully and clearly conceived in the mind and purposely and deliberately executed.” The definition in this respect was not criticised nor disapproved in Slate v. BonofigUo, 38 Vroom 239. A finding that a defendant had time sufficient to fully and clearly conceive in his mind an intent to kill, and that he did thus conceive the intent and proceeded to purposely and deliberately execute it, satisfies the provisions of our statute as to both premeditation and deliberation.</p>

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

<p>1. A writ of error, under the practice prevailing in this state, may be sued out before the actual entry of judgment; but, if it be made returnable before judgment entered, it will be quashed upon motion.</p> <p>2. The statutory provision relating to the effect to be given to a rule for judgment, pending the actual entry of the judgment in the records, is limited to the court in which the judgment is obtained. In all other courts the rule for judgment has no other force and effect than that attributed to it by the common law.</p>

<p>1. An ordinance which authorizes a municipality to make a contract with a water company for a water-supply, is not necessarily invalid because of the fact that although it recites that a plan of the streets of the municipality in which it is proposed the company’s 'pipes is annexed to it, no such plan is in truth attached.</p> <p>2. The consent of the municipal authorities, required by the Water Company act of April 21st, 1876, and which is neeéssary in order to enable the incorporators to become a body corporate,' is a consent to the formation of the corporation by the parties who sign the certificate of incorporation; not a consent to the adoption of the corporate name proposed to be used.</p>

<p>A corporation owning land-along the shore of Shrewsbury river where the tide ebbed and flowed, obtained - the state’s grant of the adjoining land under the water of the river' as far out as the exterior line for solid filling established by the riparian commissioners, and also the state’s grant of the right to build piers beyond the said exterior line as far out as the exterior line for piers established by said commissioners. Afterwards the corporation dedicated to public use a street having its designated terminus at the exterior line for solid filling; subsequently a grantee of the corporation, holding his title subject to the dedication, filled in the land under water at the terminus of the street beyond the exterior line for solid filling, and excluded the public from passage over the same. Held, that the land so' filled in was subject to the public easement, and that an action of ejectment to secure the enjoyment of the public right of passage could be maintained by the local municipality.</p>

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

<p>1. For the purpose of* legislation “providing for the management and support of free public schools,” classification of school districts is permissible, within due limits of generality, and divergent legislation based thereon is not “local or special” within the prohibition of article 4, section 7, paragraph 11, of the constitution.</p> <p>2. The legislature, upon subdividing the whole territory of the state into school districts co-extensive with the municipal bounds of the several cities, incorporated towns, boroughs and'townships, may establish divergent regulations for the management and support of the schools, based merely upon the common law classification of the municipalities themselves.</p> <p>3. A legislative classification of school districts, proceeding on lines germane to the objects and purposes of the law, may serve to make general an enactment providing for the management and support of the schools.</p> <p>4. The so-called General School law of 1902 (.Pamph. L., p. 69), classifies school districts without adhering either to the common law classification of municipalities or to any method of classification that is germane to the purposes of the enactment. It is therefore unconstitutional as being a local and special law providing for the management and support of free public schools.</p> <p>5. Unconstitutional provisions may be eliminated from a statute only where they are interjected into an enactment otherwise valid, and are so independent and separable that their removal will leave the constitutional features and purposes of the act substantially unaffected by the process.</p>

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

<p>In an action for libel when damages are sought which are compensatory only, evidence of lack of ill-will or malice in mitigation is not admissible, the compensation depending not upon the motive or intent,, as in the case of punitive damages, but solely on the actual injury done by the publication to reputation and feelings.</p>

<p>It is a settled doctrine of this court that it will not review nor reverse a judgment under review, because of an alleged error, involving' judicial action therein, unless such action was invoked upon the ground relied on, which was distinctly and plainly made known to the court below.</p>

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

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

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

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