Volume 70 — New Jersey Law Reports

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

<p>On rule to show cause why a verdict in favor of the plaintiff should not be set aside.</p>

<p>1. The owner or occupant of premises abutting on a public street is under no legal duty to keep in repair the sidewalk in front of his property, unless by virtue of the requirements of a municipal ordinance.</p> <p>2. When the duty of repairing sidewalks is imposed upon the abutting owner by statute or ordinance, the failure to perform that duty does not render the owner responsible to individuals for injuries received by them, due to want of repair; the only liability which rests upon the property owner is for the penalty prescribed by the statute of ordinance.</p> <p>3. An abutting owner is liable for injuries received by one passing along the street and caused by the negligent maintenance by such owner of a drain or trench extending across the sidewalk in front of his premises to- the curb line and used for the purpose of carrying the surface water therefrom.</p>

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

<p>1. In an action, on a replevin bond conditioned for the delivering to the plaintiffs of a piano “in as good condition” as it was at the time of making the claim, an instruction that they were not bound to accept the piano unless it was “received in the same condition or as good condition as it was at the time it was replevied from the sheriff,” is proper.</p> <p>2. A request to charge that the defendant was not bound to return the property in as good condition as it was when it was replevied, but that if it was at the time tender was made in as good condition, reasonable wear and tear excepted, the verdict should be for the defendant, was properly refused-; it appearing that the piano had been in the possession of the principal of the bond in the meantime.</p> <p>3. Where the condition of a piano at a certain time is in issue, evidence of its condition two years subsequent to the bringing of the action is inadmissible.</p>

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

<p>If a railroad company has the right to maintain its railroad longitudinally upon a public street, and there is no law controlling the grade at which its track shall be laid, it cannot be held responsible for damage done by surface water diverted from its roadbed, merely because its track is higher than the established grade of the street.</p>

<p>Certified case.</p>

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

<p>1. A public corporation which has constructed a public sewer is not . answerable in damages to a property owner who has connected his cellar with the sewer, merely because, for want of sufficient fall an'd capacity in the sewer, the1 sewage backs up into- the cellar through the connection so made.</p> <p>2. In devising a plan of public sewers the public authorities exercise a quasi judicial function, and are not responsible to private property owners merely because through errors of judgment the plan adopted does not afford adequate drainage.</p>

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

<p>An osteopathic physician, whose treatment of his patient consists simply of the manipulation of the body, does not violate that provision of the act of May 22d, 1894 (Gen. Stat., p. 2084), which forbids the applying of “any drug, medicine or other agency or application,” by an unlicensed person.</p>

<p>1. Where a condition in a life policy reserves the right of the company at the death of the insured to pay the policy to. either an executor or administrator, husband or wife or relative by blood ■ or lawful beneficiary, upon the death of the insured, leaving a lawful beneficiary him surviving, the contract will be treated as an appointment of the persons named, any one of whom is authorized to receive the payment from the company. It follows that the company may make payment of the policy to any one of the persons so appointed as it may elect.</p> <p>2. In a suit to recover by the executrix upon the death of the insured under such a policy, a plea that before the commencement of the suit the company had paid the amount of the policy to the duly-appointed guardian of the lawful beneficiary, who- was k minor, was held to be good on demurrer.</p> <p>3. Under such a condition the company is. not held to the strict letter of the contract as to making payment to the beneficiary, but the right to make payment to a guardian when the beneficiary is an infant is plainly applied.</p> <p>4. The rule that parties making such a contract are presumed to have regard to the existing law relating to the subject matter and the rule that a contract of insurance will be liberally construed for the protection of the insured, may be applied to sustain such an interpretation.</p> <p>5. The failure to aver in such plea that the person so receiving payment had filed proofs of loss with the company, as required in the conditions, will not invalidate' it. Such a condition is for the benefit of the company and may be waived.</p> <p>6. Whether such a plea, if properly pleaded, would be a complete bar to such an action if brought before payment to the beneficiary under the circumstances of the present case, quiere.</p> <p>7. A demurrer is addressed to matters apparent on the face of the pleading. In aid of it the court cannot look to facts appearing in other parts of the record.</p>

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

<p>1. Under the Eminent Domain act of March 20th, 1900 (Pamph. L., p. 79), as it stood before the amendment of 1903 (Pamph. L., p. 342), the payment by the condemning corporation of the amount awarded by the commissioners, whether it was paid into the Court of Chancery or directly to the landowner, barred any appeal from the- award on behalf of the corporation.</p> <p>2. The amendment of 1903 did not impair the right of the landowner to the money previously paid in satisfaction of the award under the original act. ■</p>

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

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

<p>1. The practice in condemnation proceedings, as prescribed by section 14 of tlie Traction act of 1893 (Pamph. L., p. 302; Q-en. Stat., p. 3235), is superseded by the general Condemnation act of 1900. Pamph. L., p. 79.</p> <p>2. The Traction act of 1893 (Pamph. L., p. 302; Qen. Stat., p. 3235) gives no appeal from the report of commissioners in the sense that the word “appeal” is used- in section 9 of the Condemnation act of 1900 (Pamph. L., p. 79), and therefore companies -organized under the former act are not entitled to an appeal under the terms of the latter.</p>

<p>1. A verdict cannot be sustained upon a theory of the law contrary to that upon which the case was submitted to the jury.</p> <p>2. In an action for death of a boy thirteen years of age, where the father was the sole beneficiary of the action, it appeared that the father had for three years abandoned his wife and family, including this son, and had entered into a bigamous marriage with another woman, by whom he had had a child and with whom he was living at the time the son met his death. The decedent was living with his mother and was earning fifty cents per day at the time of his death. Held, under the circumstances of the case, that the expectation of substantial pecuniary benefit to the father from the continued life of the son was so remote that a verdict for $2,500 damages was clearly excessive.</p>

<p>On case certified by the Court of Chancery to the Supreme Court for its opinion to be certified thereon,. under section 79 of “An act respecting the Court of Chancery” (Revision of 1902). Pamph. L. 1902, p. 537.</p> <p>The certificate of the Chancellor is as follows:</p> <p>In .Chancery of New-Jersey. Between Clarence E. Walker, complainant, and Michael E, Hyland et al., defendants. On bill, &c. Case certified.-</p> <p>The bill of complaint in the above-entitled cause was filed June 16th, 1902, to foreclose a mortgage dated February 20th, 1901, given by Annie Gluck Hyland and Michael E. Hyland, her husband, to Commercial Trust Company of New Jersey, as guardian of Effell Austin, an infant, to secure payment of the sum of $1,000 on' the 1st day of March, 1902, and interest from.the date thereof at the rate of five per cent, per annum, covering the following described lands and premises:</p> <p>All of that certain lot, piece or parcel of land, together with the two-story and basement frame dwelling-house erected thereon, situate, lying and being in Jersey City, &c. [Here follows full description of land and premises covered by the mortgage.]</p> <p>Being the same premises conveyed to Annie Gluck Hyland by Samuel Marks and wife, by deed bearing date February 20th, 1901.</p> <p>The mortgage was duly acknowledged and recorded in the register’s office of Hudson county, in Book 439 of Mortgages, page 482, on February 20th, 1901. It was assigned by the Commercial Trust Company of New Jersey, as such guardian, to Clarence F. Walker, the complainant, on the 13 th day of March, 1902. The said lands and premises were owned by said Annie Gluck Hyland. She departed this life at Jersey City, New Jersey, February 14th, 1902, seized thereof, subject to said mortgage, leaving her surviving her husband, the defendant Michael E. Hyland, and one child, the defendant Annie Gluck Hyland, born December 17to, 1901. Mrs. Hyland left a last will and testament, a true copy where'of is hereto annexed, admitted to probate by the surrogate of' the county of Hudson on the 26th day of February, 1902. Christian Handel, the executor and devisee- therein named, quali-' fled as executor of said will February 26th, 1902, and letters testamentary on the estate of Annie Gluck Hyland, deceased, were granted to him on that day by said surrogate. At the time of the filing of the bill of complaint the said Michael E. Hyland and his daughter, the infant defendant Annie Gluck Hyland, resided .together on the mortgaged premises, and still reside there. The said William Gluck Hyland mentioned in the will of the said Annie Gluck Hyland, deceased, was born August 14th, 1899, and died July 21st, 1900. The defendants to this cause are Michael E. Hyland, Christian Handel, Christian Handel, executor- of the last will and testament of Annie Gluck Hyland, deceased, and Annie Gluck Hyland, infant. -Process was duly issued and served, and, on application to this court for the appointment of a guardian ad litem, for the infant defendant Annie Gluck Hyland, her father, the said Michael E. Hyland, was appointed such guardian. He filed an answer and cross-bill in her behalf.' The cross-bill prays that it may be decreed that the said premises, and all the property, real and personal, of which Annie Gluck Hyland died seized, is vested in the-infant defendant, Annie Gluck Hjdand, subject to the right of'curtesy of her father, Michael E. Hyland, in the'real estate. On October 1st,' 1902, the parties to this cause entered into the stipulation, a copy of which is hereto annexed, and also upon the same day agreed upon a statement of facts, a copy of'which is hereto: annexed. The only question, then,'to' be considered in the case was whether, on the death of - the said Annie Gluck Hjdand, the mortgaged lands and premises became 'vested in fee in the infant defendant, Annie Gluck Hyland, subject to the curtesy right of her father, the defendant Michael' E. • Hyland, therein, or whether the title of said lands and premises became vested in said Christian Handel, as pro-" vided'in and by the last will and. testament of Annie Gluck</p> <p>Hyland, deceased. The issue thus raised was- regularly brought before the court on notice to the -solicitors of all the parties and on brief submitted by solicitors -for the complainant. .The question of law arising in this cause and certified to the Supreme Court of the -State of New Jersey for its opinion'thereon, is the following:</p> <p>Is the child, Annie Gluck Hyland, under the law, the owner of the lands and premises above described, or does the same pass to -and-become vested in the said'Christian Handel (subject, however, to the right of curtesy of the said Michael E. Hyland), under the provisions of the last will and testament of the said Annie Gluck Hyland, deceased ?</p> <p>Being in doubt as to the foregoing questions of law, I have caused the foregoing case to- be made and stated, and I do hereby certify the same to be argued before the bar of the Supreme Court for its advisory opinion on said question.</p> <p>W. J. Magie, G.</p> <p>The following is a copy of the last will and testament of Annie Gluck Hyland, deceased, referred to in the Chancellor’s certificate:</p> <p>In the name of God, amen.</p> <p>1, Annie-Gluck Hyland, of the city of Jersey Citjq county of Hudson, State of New Jersey, being of sound mind and memory, do hereby make and constitute this my last will and testament.</p> <p>First. I direct my executor, hereafter named, to pay all my just debts' and- funeral expenses.</p> <p>. Second-. To- my husband, Michael E. Hyland, I give and bequeath the sum of twenty-five dollars.</p> <p>: Third. All the -rest and residue of my property, both real and personal, I give, devise and- bequeath to -my son William Gluck Hyland, to be held in trust for him, until he arrives at the age of twenty-one years, by his guardian hereafter named. . - -</p> <p>' Fourth. In case my said son should die before arriving at the age of twenty-one years, I give, devise and bequeath all my said property to Christian Handel.</p> <p>Fifth. I hereby appoint Christian Handel, executor of this my last will and testament and empower him to serve as such without giving bonds.</p> <p>Sixth. I hereby appoint Christian Handel guardian of my son William Gluck Hyland until he arrives at the age of twenty-one years.</p> <p>In Avitness Avhereof, I have hereunto' set my hand and affixed my seal this first day of June, in the year of our [l. s.] Lord one thousand nine hundred.</p> <p>Annie Gluck Hyland.</p> <p>The following is the stipulation of counsel in the cause, also referred to in the Chancellor’s certificate:</p> <p>STIPULATION.</p> <p>It is hereby stipulated and agreed by and between the complainant and the answering defendants, Michael E. Hyland and Christian Handel, individually and as executor of the last will and testament of Annie Gluck Hyland, deceased :</p> <p>First. That the defendant, Christian Handel, executor of the last will and testament of Annie Gluck Hyland, deceased, has sufficient funds in his hands of the personal estate of Annie Gluck Hyland, deceased, to pay off the indebtedness due on the bond set forth in the bill of complaint in above cause, unless other claims unknown to him shall be filed with him Avithin the time limited for creditors to file their claims; and, in order that any doubt regarding the same -may be properly set at rest, so far as the claim under said bond and mortgage is concerned, this suit shall sleep without prejudice to the rights of either party until the time limited for creditors to file their claims with said executor has expired, and, then, if said executor still hás, or is lawfully chargeable with sufficient funds out of said personal estate, to pay said'bond- and mortgage, tire same shall be paid and satisfied and the mortgage cancelled of record.</p> <p>Second. The question of title to the mortgaged lands and premises raised by the pleadings shall be pushed to determination, irrespective of anything contained in the foregoing stipulation, to the end that the ownership of said lands and to whom the title thereto in fee-simple is vested, may be determined as speedily as possible by the court.</p> <p>Dated October 1st, 1902.</p> <p>Corbin & Corbin,</p> <p> Solicitors of Complainant. </p> <p>Fagen & Murphy,</p> <p>Solicitors for Defendants, Michael B. Hyland and Annie Hyland.</p> <p>Elmer TI. Geran,</p> <p>Solicitor for Christian Handel, individually and as executor of the last will and testament of Annie Gluck Hyland.</p> <p>The following are the statements of facts referred to in the Chancellor’s certificate:</p> <p>STATEMENT OE FACTS.</p> <p>The following statement of facts’ on ’the issue remaining to be determined in the above-entitled cause, under the stipula-. tion herein made and signed by the parties, is agreed upon:</p> <p>1. Mrs. Annie Gluck Hyland died seized of the lands and premises described in the bill of complaint, at Jersey City, New Jersey, on the 14th day of February, 1902, said lands being subject to the mortgage set’ forth in the bill. She left a last will and testament which was duly admitted to probate by the surrogate of the county of Hudson on the 26th day of February, 1902, and Christian Handel, the executor herein named, qualified as such on that day, and letters testamentary were thereupon granted to' him by said surrogate. No proceeding, -by way of appeal or other proceeding, against the admission of said will to probate, or for construction of the terms of said will, have been taken other than the issue raised by the bill in above cause and answer thereto and said stipulation thereon. -</p> <p>2. She left her surviving, her husband, Michael E. Hyland, and one child, Annie -Gluck Hyland, born December 17th, 1901, and still living with its father, the said Michael E. Hyland, at Jersey City aforesaid.</p> <p>3. The child, William Gluck Hyland, mentioned in the said will of said Annie Gluck Hyland, was born August 14th, 1899, at Jersey City aforesaid, and departed this life July 21st, 1900.</p> <p>Dated October 1st, 1902.</p> <p>Corbin & Corbin,</p> <p>• Solicitors of Complainant.</p> <p>Eagen & Murphy,</p> <p> Solicitors .for Defendants, Michael E. Hyland and Annie Gluck Hyland. </p> <p>Elmer H. Geran,</p> <p> Solicitor of Christian Handel, individually and as executor of the last tvill and. testament of Annie Gluck Hyland. </p> <p>It is stipulated and agreed that -the foregoing state of the case is correct and that the copies of papers annexed thereto are true copies of the originals.</p> <p>Corbin & Corbin,</p> <p> Solicitors for Complainant. </p> <p>Eagen & Murphy,</p> <p> Solicitors for defendants, Michael E. ■ Hyland and Michael E. Hyland, guardian of Annie Gluck Hyland, infant defendant. </p> <p>Elmer-H. Geran,</p> <p> Solicitor for defendant, Christian Handel and Christian Handel, executor of the last tvill and testament of Annie Gluck Hyland, deceased. </p>

On certiorari. The following statute contains, the text of the agreement or treaty (so called) of 1833 between the States of New Jersey and New York: “An act to ratify and confirm- an agreement made between the commissioners appointed by the governor of the State of New York and the commissioners appointed by the governor of the State of New Jersey, respecting the territorial limits and jurisdiction between the said states. “Passed February 26th, 1834. “Whereas,…

<p>'The Traction act of 1893 (Gen. Stat., p. 3239, §§ 13, 14) authorized the condemnation of land for the construction of any railway built under the provisions of this act, “either as an extension of the line of an existing railway or of a new line not exceeding sixty feet in width.” A company operating on leased land a railway so built, procured the appointment of commissioners to condemn a strip of land adjoining the strip on which its existing line was operated, the two together not exceeding sixty feet in width. Held, that the proceeding so taken was within the provisions of this act.</p>

<p>On appeal from the District Court.</p>

<p>On application for summary determination as to certain lands which have been assessed by the local authorities of the taxing district of Jersey City, and also assessed by the state boai'd of assessors as property used for railroad purposes, for the years 1897 to 1902, inclusive.</p>

<p>1. A janitor of a city police station is a municipal employe, and not the holder of a public office.</p> <p>2. The appointment to such a position in the city of Orange and its acceptance constitute a contract between the municipality and its employe, voidable by- the former in accordance with section 8 of the city charter. Horan v. Orange and Hardy v. Orange distinguished.</p>

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

On application for leave to file a quo warranto. After the annual election of Fairview borough, held March 10th, 1903, a vacancy in the council was created by the resignation of Mr. Hurley, and the defendant, Mr. Lyons, was appointed by the mayor to fill the vacancy until the next election, which will be held in March, 1904. Mr'.

<p>A., falsely representing- himself to be the agent of B. & Co., requested plaintiff to send goods to B. & Co.’s stable; A. thus obtained possession of the goods and sold and delivered them to the defendant. Held, that A. had no title to the goods and that an action of trover would lie by the plaintiff against the defendant, although the latter was a purchaser in good faith.</p>

<p>On. certiorari.</p>

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

<p>On certiorari.</p>

<p>On appeal from the Second District Court of Newark.</p>

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

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

<p>The plaintiff’s servant was about to cross five railroad tracks, the two furthest of which were tracks of the defendant; the three nearest, tracks of another railroad corporation. Pie stoxRJed, looked and listened before crossing the track nearest to him, but this observation was made at a point where his view was obstructed by a factory and a car standing upon a switch. Pie had an unobstructed view of seven hundred feet along the track in 'the direction from which the locomotive came when he was at a point thirty feet from the track, which point was between the first and second tracks as he apxDroached. The evidence does not show that there was any other locomotive or train to 'distract his attention. He testified that he could not see the apXU'oa'ching locomotive, and gave as a reason the obstruction of his view by the factory and car. 'Held, that the trial judge should have granted a nonsuit.</p>

<p>A contract between, a real estate agent acting for the vendor and real estate agents acting' for the vendee, to share between them the difference between the price paid by the vendee and the price received by the vendor, which contract is unknown to the vendee, is not enforceable.</p>

<p>Mirrors resting on mantels or slabs and secured at the top by iron spikes driven into the wall, through which screws were driven into the mirror frames, which had been treated by the owners both of the personal property and the realty as personal property, are, under the circumstances of this case, held to be personal . property, although the frames were painted in the same style as the woodwork of the room.</p>

<p>1. The affidavit annexed to a chattel mortgage stated the true consideration to be $520, “being the purchase price of the within-mentioned goods.” The affidavit referred to- the mortgage, which disclosed that $75 of the purchase price was. pay able in cash upon the delivery of the goods. The affidavit and chattel mortgage, read together, fairly disclose the true consideration.</p> <p>2. The affidavit stated that the sum of $445 was due on the mortgage. The mortgage disclosed that this balance of the purchase price was payable in monthly installments1. No part of the’ balance was payable at the time the affidavit was made. The affidavit is not defective for this reason.</p> <p>3. The word “due,” in this case, is properly construed to signify the present existence of a debt payable hereafter.</p> <p>4. In the absence of proof of the date of execution of an undated chattel mortgage, it cannot be assumed that it was executed prior, to the date when it was proved by the subscribing witness.</p>

<p>On appeal from the- First District Court of Jersey City.</p>

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

<p>1. In an action for breach of an express contract of warranty on the sale of a chattel, scienter in the defendant need not be proven.</p> <p>2. The case of McG-lade v. McOormich, 28 Yroom 430, distinguished.</p>

<p>On certiorari.</p>

<p>By force of tlie act of March 28th, 1895 {Pamph. L., p. 760), where an assessment is reduced by the state board of taxation on the application of the taxpayer, interest must be paid on the sum fixed by the state board from the time of the original assessment until it is paid, at the rate of ten per centum per annum. The general law of 1878 {Pamph. L., p. 12), which applies to all cities, controls the rate of interest.</p>

<p>On cerliorari.</p>

<p>The act entitled “An act to secure companies incorporated under ‘An act to provide for the incorporation of street railwaj1 companies- and to regulate the same,’ approved April sixth, one thousand eight hundred and eighty-six, and a supplement thereto, entitled ‘A further supplement to an act entitled “An act to provide for the incorporation of street railway companies and , to regulate the same,” approved April sixth, one thousand eight hundred and eighty-six,’ which supplement was passed March second, one thousand eight hundred and ninety-one, owning and operating street railways up>on public streets, highways or avenues in this state, whose roads have been peaceably and continuously oxxerated for two years without objection, the right to bedome incorporated under the act entitled ‘An act to authorize the formation of traction companies for the construction and operation of street railways or railroads operated as street railways, and to regulate the same,’ approved March fourteenth, one thousand eight hundred and ninety-three, and the several supplements thereto and acts amendatory thereof,” apxxroved April 14th, 1903, is a sxxecial act conferring corporate powers and unconstitutional, being under paragraph 11, section 7 of article 6 of the constitution, which declares that “the legislature shall x>ass no special act conferring corporate powers.”</p>

<p>1. Letters-patent, purchased by stock, issued therefor for property purchased, are a part of the invested capital of a corporation.</p> <p>2. When manufacturing is done under such patents, in this state, they may be considered as a part of the capital invested in manufacturing carried on in this state.</p>

<p>Oil certiorari.</p>

<p>A District Court has power to amend the pleadings by striking out at the trial, on the plaintiff’s motion, one of two defendants sued jointly.</p>

<p>The act entitled “An act to provide for and regulate appeals from any District Court in any city of the state to the Supreme ■ Court,” approved April 3d, 1902, does not give a right of appeal from an' order of the District Court refusing a new trial.</p>

<p>In. tort. On appeal from the First District Court of the city of Newark.</p>

<p>On contract. On rule to show cause why judgment by default should not be opened and defendants be let in to plead.</p>

<p>1. The act entitled “An act creating a county board of commissioners to equalize assessments for taxes 'and defining tlieir powers and duties,” approved March 22d, 1900, is not unconstitutional because the commissioners are to be appointed by the judge of the Court of Common Pleas.</p> <p>2. Before proceedings can be taken to increase the valuation of the property of any township, under this act, five days’ notice of such contemplated action must be given to the assessor of the township, requiring him to show cause why such increase should not be made.</p> <p>3. • When such a notice is given to the assessor to appear on October 1st, and the action increasing the valuations is taken by the board on September 30th, the action of the board is a nullity.</p> <p>4. The act of March 22d, 1900, confers no authority upon the board of equalization, appointed under it, to increase the valuation of the property of an individual, or to put an increase upon any specific piece or class of property; the increase ordered must be a sum certain and it must be assessed pro rata upon all property in the duplicate, x’eal and personal, at the x'atio which each assessment therein bears to the whole sum so added to the duplicate.</p> <p>5. If it were within the power of the board to increase the valuation of the property of any individual, or to increase the valuation upoxx any specific piece or class of property, the board would be without power to make such increase, except after notice to the owner of the property, the valuation of which it was proposed to so increase. *</p>

<p>If when the plaintiff rests there be no evidence from which the jury may reasonably infer that the, defendant’s negligence caused the Injury complained of, the plaintiff should be nonsuited.</p>

<p>On contract. On appeal from the District Court of Atlantic City.</p>

<p>Gertiorari is the only method for the review of proceedings in a District Court in forcible entry and detainer and tenancy cases. The act of 1902, relative to appeals- from District Courts to the Supreme Court, does not apply to such cases.</p>

<p>On certiorari.</p>

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

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

<p>Where, in an action for personal injuries, the plaintiff testified that she was injured on April 23d, 1900, by coming into collision with a bureau being carried by an employe of the defendant across the sidewalk; that she on the same day summoned a physician ' to attend her, and the physician testified as to the injuries, but gave the date of his visit as May 1st, it was error to direct a nonsuit on the ground that the injuries from which the plaintiff was suffering were not received in the manner testified to by her, that question being for the jury and not for the court.</p>

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

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

<p>On rule to sliow^ cause.</p>

<p>On error to the Supreme Court. The opinion of that court is reported in 40 Vroom 133.</p>

<p>1. A company transmitting a current of electricity of dangerous power, through wires, to a converter placed by it on the side of a dwelling-house near to a balcony upon the tin roof of a portion of the first story thereof, having a gutter and leaders therefrom to the ground, owes a duty to anyone lawfully using the balcony to take reasonable care to prevent the escape of the current in case of contact with the wires, without fault on his part.</p> <p>2. The 'duty required in such case includes the exercise of a reasonable provision as to the possibility and probability of one using the balcony for a lawful purpose coming in contact with the wires.</p> <p>3. Evidence that the company protected the wires by insulation, commonly used when the converter is installed at the top of a pole, did not require a nonsuit or a direction for a verdict when the evidence disclosed that more effective insulation could have been employed or other protection furnished. Upon such evidence it was a question for a jury whether the company had performed its duty.</p> <p>4. Upon evidence justifying the inference that plaintiff’s intestate went upon the balcony for the purpose of painting the gutter, in the exercise of his duty as caretaker of the house; that he had been warned of the danger of contact with the wires and had replied that he was not afraid of them; that he was shortly afterward found dead or dying, leaning over a balustrade, with a paint brush in his right hand touching the gutter and with his left hand firmly grasping one of the wires which was within easy reach of him. Held, that it was not erroneous to refuse to direct a verdict for defendant on the ground of the conduct of deceased, for tile evidence did no't require the inference that deceased had intentionally grasped the dangerous wire, and a jury might infer that his left hand had been accidentally, by some unintentional movement of it in the prosecution of his work, brought into contact with the wire and made to grasp it convulsively by reason of the strong current.</p> <p>5. After the trial judge had properly charged that it was the duty of persons using a dangerous agency to exercise a high degree of care to prevent injury to persons who in the exercise of a lawful right might come in contact therewith, he then added: “The usual rule applies, and that is that they are charged with introducing the agency by the use of the best known means and appliances for so doing.” Held, that there was no error in this instruction, which imposed no duty but that of inquiring for and selecting the means of safely using the dangerous current of electricity which are best known for that purpose.</p>

On error to the Essex Circuit. The will of John C. Stager, dated'October 1st, 1889, contained, among other things, the following: “I give the remainder of my real estate to my wife, Jane, for her use and benefit during the period of her natural life, and after her decease I give as follows, the said real estate of which I gave my wife Jane the use and benefit during her natural life, viz.: “First. * * * “Second.

<p>On error to the Supreme Court. For opinion of that court, see 40 Yroom 590.</p>

<p>I-I., the receiver of the D. company, brought suit to recover damages from, one D. for the alleged tortious occupation, by her, of certain premises of the D. company,’ both before and after the appointment of the receiver. that the following questi.on, asked by the defendant of the president of the D. company, viz., “Did the D. company receive the rents for the premises from the defendant during this time that she was in possession, of them?” was relevant on.the issue whether her occupation, prior to the appointment of the receiver, was a tortious one, and this notwithstanding that it had previously been shown that the defendant had originally entered into possession of the premises under a lease made to her by a third person, who apparently had no interest in the premises. An affirmative answer would have tended to show that her occupation was with the acquiescence of the company. Held further, that this question calls for a fact, and not for a conclusion, of the witness.</p>

<p>An agreement to write and deliver a policy of insurance does not operate as a present contract of insurance pending the issuing and delivery of the policy.</p>

<p>1. When a demurrer is overruled' and then withdrawn, the decision upon it cannot be reviewed on error; but if the final judgment appears by the record to rest solely on the pleading demurred to, or if a ruling at the trial on the question raised by the demurrer is presented in a hill of exceptions, that can be reviewed on error.</p> <p>2. The right to construct and operate electric railways, with their incidental poles and wires, within the lines of public streets,- for municipal travel, is included in the ordinary public easement and imposes no additional servitude on abutting property.</p> <p>3. In order to obtain the consents required for the construction of an electric railway in a public street in accordance with the act of April 21st, 1896 (Patnph. L., %>. 329), the railway company agreed with an owner of land abutting on the street to give him, for his consent, a valuable option on the purchase of the company’s bonds and stock. Hein, that the agreement was in violation of the policy established in that statute and could not be enforced.</p>

<p>1. A clause in a lease, providing for a forfeiture of the term if the lessee, his successors or assigns, should fail in the performance of any covenant, condition or proviso contained in the lease which, on the part of the lessee, his executors, administrators or assigns, was to be observed, performed, fulfilled and kept, ajjplies to covenants not to do something, as well as covenants to do something.</p> <p>2. A mortgage of the lease, made by the- lessee to secure his debt, followed by his failure to pay the debt at maturity and a sale of the leasehold estate on foreclosure of the mortgage, is a transfer of the estate by the lessee, in violation of a covenant not to transfer it, and a legal cause of forfeiture under the clause first above set forth.</p> <p>3. The fact that the lessee died before the sale under foreclosure does not prevent the forfeiture.</p> <p>4. The fact that the lessor accepted rent with knowledge of the mortgage, but without knowledge of the default or foreclosure, does not prevent the forfeiture.</p> <p>o. Under the clause first above set forth, the executors of the lessee are included among his “successors.”</p> <p>6. Under the same clause the purchaser under the foreclosure mentioned in above paragraph 2 is an “assign” of the lessee, and a subletting by. him is a violation of a covenant in the lease that the lessee, his executors, administrators and assigns will not sublet, and is a legal cause of forfeiture.</p> <p>7. An objection, first raised on the argument of a writ of error, that the plaintiff failed to produce at the trial below any evidence of an essential fact, cannot prevail, if it appears that at the trial the fact was assumed without evidence.</p>

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

<p>1. The Supreme Court is (with the single exception mentioned in Deeue v. Dnfford, 2 Vroom 302) the sole depositary of the remedial writ of certiorari, which, by force of article 10, section 1 of the constitution, it cannot be required to share with another tribunal.</p> <p>2. If, of two interpretations of the language of a statute, one leads to a result that exceeds the power of the legislature, the other will be deemed to be what the legislature intended. Conger v. Convery, 23 Vroom 417; S. 0., 24 Id. 658, followed.</p> <p>3. A supplement to “An act to provide for drainage and sewage in densely populated townships, in which there is a public water-supply” (Con. Stat., p. 3639), provides that upon an application on behalf of a township committee the Circuit Court may appoint commissioners to assess benefits, and shall have power to consider the report of such commissioners and any objection thereto in a summary way, and to revise and confirm said report, with or without alteration, which report, when so confirmed, shall be plenary evidence of said assessment, which shall be paid to the township collector. Held, that inasmuch as the legislature could not empower the Circuit Court to review such municipal assessment to final determination without depriving the Supreme Court of its exclusive prerogative in this respect, the statute must be construed simply as requiring the Circuit Court to take part in perfecting the municipal proceeding.</p> <p>4. A writ of error having been returned, bringing up this statutory proceeding, and a motion to dismiss such writ having been heard —Held, that such municipal proceeding, regardless of the agencies that took part in it, is reviewable by certiorari only, and not by writ of error.</p>

<p>A shareholder in a building and loan association gave a withdrawal notice, and before the period arrived at which, under the laws of the association, he was entitled to be paid the withdrawal value of the shares, he borrowed from the association a sum of money, less than such withdrawal value, for which he gave his promissory note and deposited with the association his shares as collateral. The association having subsequently been declared insolvent, its receiver brought suit to recover the amount of said note. Held, that the defendant could not offset the withdrawal value of his shares.</p>

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

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

<p>A. obtained from B. an option to purchase certain real estate. A. exercised his option and demanded a deed tendering the amount of purchase-money agreed upon. B. refused to make conveyance because of the purpose to which it was intended to devote the property. Held—</p> <p>1. That this was an inadequate reason for B.’s refusal and that A. was entitled to recover the value of his bargain.</p> <p>2. That the facts that B. was a married man at the time when the option was given, and when the deed was demanded and the consideration money tendered, and that B.’s wife had not joined in the option, did not excuse B. from making the conveyance, he basing his refusal to convey on another and inadequate reason.</p>

<p>1. In civil cases, where the action or defence is based upon a criminal act, such criminal act may be established by a preponderance of evidence.</p> <p>2. Exemplary damages may be recovered for a wrongful act founded in malice.</p> <p>3. It is not error in a judge to refuse to charge a jury as to the legal effect of a part only of the material facts proved in the cause.</p> <p>4. In an action for assault and battery the defendant is not entitled to call upon the judge to charge the law of self-defence where the general issue alone is pleaded.</p>

<p>1. The owner of the fee of land, subject to an easement of a public highway, may maintain ejectment against an intruder who wrongfully appropriates the same to a purpose wholly foreign to the easement, but his recovery of possession will be subject to the easement in question.</p> <p>2. The laying of a steam railway longitudinally in a street, unless by authority of a legislative grant, express or implied, will be regarded as such an exclusive and wrongful appropriation of that part of the street, to a purpose foreign to the easement, as to sustain such action of ejectment by the abutting owner against the companj'.</p>

<p>1. The grounds of error should be definitely pointed out in ant assignment or they will not be considered.</p> <p>2. In an action of tort for an assault and battery, where the evidence shows prima facie that the assault was committed, the defence of son assault demesne, in order to be available, must be specially pleaded.</p>

<p>3. The doctrine of equitable estoppel applies to the internal concerns of stock corporations. Saving, so far as public policy and the interests of creditors and other third parties are involved, the stockholders may bind themselves vryter sese and in favor of the . corporation by their own acts and agreements; and what will bind all the stockholders with respect to an obligation from the company to one of its members, will bind the company as such.</p> <p>2. Unanimous consent and acquiescence of the stockholders, acted on by the parties concerned to such extent as to materially change their position, preclude the assenting stockholders as individuals and the corporation as such, from afterwards setting up legal informalities in matters of internal concern affecting only the interests of the stockholders, to the overthrow of rights that have been acquired on the faith of the consent and acquiescence.</p>

<p>1. It is error to allow a witness to express his opinion to the jury where there is no evidence to show that he has expert knowledge of the subject under inquiry.</p> <p>2. Mere observation of a piece of real estate, although continued and attentive, is not sufficient to qualify one as an expert respecting its value.</p>

<p>1. A trespasser, detected in the act of attempting to climb upon a rapidly moving railroad train, may be ordered off, or his attempt resisted with reasonable force, while the train is still in motion. He cannot, by merely gaining a foothold upon the moving train, impose a duty upon the railroad company, either to permit him to ascend or to stop the train for his convenience.</p> <p>2. Where a trespasser, while attempting to board a moving railroad car, is opposed by a threat of improper and excessive force on the part of an employe of the railroad company, the force not being in fact exerted, and the trespasser yields to the show of force and voluntarily releases his hold upon the car and falls to the ground and is injured, he has no action, it not appearing that in the necessary attempt to avoid physical injury he accidentally lost his hold upon the car, nor that he was so overcome with fear as to lose his presence of mind and self-control.</p> <p>3. A person injured while jumping- on or off a train in motion is guilts' of contributory negligence.</p>

<p>1. Section 42 of the General Corporation act (Pamph. L. 189G, p. 291), which provides for a summary investigation by the Supreme Court of corporate elections, authorizes the court either to establish the election complained of, or to order a new election, or make such order’ and give such relief in the premises as right and justice may require. Held, that the court is free to deal with the matter, not necessarily in accordance with strict legal rules, but according to the substantial rights and equities.</p> <p>2. An election of directors being- set aside because the directors receiving a majority of votes had rendered themselves ineligible by failure to produce the stock-books at the election, as required by section 33 of the General Corporation act (Paniph. L. 1896, p. 2S8), and it appearing that the failure of the directors to produce the stock-books occurred under circumstances that negatived any fraudulent or improper motive, and where it was not reasonably to be anticipated that harm would result; and it further appearing that no harm did result therefrom, since every share of the stock of the company was voted at the election by the same per- , sons who, according to the stock-books, were entitled to vote thereon — Held, that it would be unfair to the voting stockholders to install as directors the candidates who received a minority of the votes, and that right and justice require rhe ordering of a new election.</p>

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

<p>1. In order to hold one who has made an absolute guaranty of payment of a non-negotiable promissory note, it is not necessary to give him notice of the default of the maker.</p> <p>2. The evidence in this case fails to establish a binding agreement to extend time to the maker of the note, payment of which was guaranteed by the defendants.</p>

<p>On error to tlie Supreme Court. Eor opinion of that court, see 10 Vroom 194.</p>

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

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

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

<p>On error to the Supreme Conrt. Eor opinion of Supreme Court, see 40 Vroom 139.</p>

On error to the Supreme Court. This case was tried at the Essex Circuit Court, before Chief Justice Gummere and a jury, and a judgment of non-suit ordered. The plaintiff: in error, a young man of the age of nineteen years, in the employ of the defendant, was injured while setting a tool in a planer with a machinist’s steel hammer. A chip' of steel came from the tool and entered his left eye, destroying the sight thereof.

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

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

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

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

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

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

Proceedings to settle title- to office nnder sections 25 and 26 of an act entitled “An act concerning cities of the .first class in this state, and constituting municipal boards of street and water commissioners therein, and defining the powers and duties of such municipal boards, and relating to the municipal affairs and departments of such cities, placed under the control and management of such boards, and' providing for the maintenance of the same,” approved March 28th,…

<p>1. The rule of the road, with relation to vehicles approaching a street crossing, viz., that the first to reach the crossing, traveling at a reasonable rate of speed, has the right to pass over first, applies to fire engines and trucks while being driven to fires, in the absence of legislation, either state or municipal, giving to such apparatus a right of way over other vehicles at these points, and in the absence of any local custom recognizing such superior right.</p> <p>2. Assuming that a right of way over other vehicles, at street crossings, may be conferred by local custom upon fire engines or trucks when being driven to fires, the existence of such a custom must be specially pleaded by the party intending to rely upon it to support his case.</p>

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

<p>1. Any conviction of crime which has been had against a witness may be shown on his cross-examination; and every question which calls for the disclosure of' such a conviction is competent, notwithstanding that it fails to specify the nature of the crime, the time or place of its commission, or the court in which the conviction was had.</p> <p>2. Mere presence at the scene of the perpetration of a crime does not render a person a particeps criminis. To constitute him a party to a criminal act there must not only be presence upon the scene, but an actual participation, an aiding and abetting, in the crime committed.</p>

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

<p>1. Authority, given by a master to his servant, to eject trespassers from the premises of the former, charges the master with liability for the act of the servant in using excessive or inappropriate force in removing one who is a trespasser.</p> <p>2. An averment in a declaration that a person who committed an assault on the plaintiff was the servant of a third person, and was acting within the scope of his employment as such servant in making the assault, is insufficient to disclose a liability on the part of the master for the wrongful act. Whether the act done was within the scope of the employment is a conclusion to be drawn from the facts; and the facts upon which the pleader rests this conclusion must be set out in the pleading so that the court may see if it be warranted.</p>

<p>1. Tlie charter of the Jersey City and Bergen Railroad Company, approved March 15th, 1859, and- its supplements, being private acts, .their provisions cannot, on demurrer, be noticed except as they appear on the face of the pleadings.</p> <p>2. The provision in that charter by which the company was empowered to construct and operate a street railroad in Jersey City, provided that in constructing the railroad the company first obtained the consent of the city council; the ordinance of the council giving- such consent on condition that the company should pay an annual fee for each car run on the railroad; the acceptance of the ordinance by the company and the construction of the railroad in pursuance of the consent, and the supplement to the company’s charter, approved March 17th, 1860, declaring that in constructing and maintaining its railroad in Jersey Oity the company should be subject to the conditions imposed in the ordinance ; placed upon the company a legal obligation to pay the stated fee. '</p> <p>3. If a claim, long dormant, be not discharged by statutory limitation, the lapse of time is not legally a release, but is only evidence of a release, and therefore will not, on demurrer, defeat the claim.</p>

<p>By force of the statutes approved March 14th, 1893 (&en. Siat., pp. 3234, 3235), which authorize one street railway company to lease its property and franchises to another, and the lease made by the Jersey City and Bergen Railroad Company to the Consolidated Traction. Company, in which the lessee assumed all the burdens and liabilities of the lessor, Jersey City can enforce against the lessee the liability of the lessor to pay the city a fee for each car run on the railroad.</p>

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

<p>1. On trial of an indictment for the unlawful dredging of oysters under section 22 of the act approved March 22d, 1901 (Pamph. L., p. 317), it is not necessary for the state to prove that the oyster bed in question had been marked, buoyed or staked by or under the supervision of the state oyster commission.</p> <p>2. When a defendant is on trial for doing certain physical acts with a certain purpose, and the acts charged point indubitably to that purpose, it is not reversible error for the trial judge, in charging the jury, to refer to proof of the acts as sufficient proof of guilt, without expressly referring to the purpose, there being no request or suggestion on behalf of the defendant that llie purpose should be more particularly mentioned.</p>

<p>A policy oí accident insurance declared: “The insurance under this * * ® contract is for the term of one year from the date of issue hereof * * * and applies only to persons over sixteen years of age and under sixty-five years of age..” Held, that the insurer was not chargeable for an accident happening after the person taking out the policy had passed the age of sixty-five years.</p>

<p>The declaration alleged that plaintiff was a carpenter and builder, that he had contracted with defendant to build for him certain houses, that the contract therefor was not filed in the county clerk’s office, that thereby it became the plaintiff’s duty to use all moneys, paid to him. by the defendant on said contract, for the purpose of paying for the labor and materials furnished to him for said houses, so that liens could not be filed therefor, that the defendant had sent the plaintiff a check as part payment on the contract and then had stopped payment of the check, and that on being asked the reason he had answered, “Because he (meaning the plaintiff) misappropriated the money,” thereby meaning that the plaintiff used the money sent him unlawfully and in a dishonest manner, and did not use it for the purpose of paying the materialmen and laborers. Held, on demurrer, that the declaration did not set forth a legal cause of action.</p>

<p>The fact that an employer did not warn an adult employe of a risk which was naturally incident to the employment, will not render the former responsible to the workman for an injury received by him because of his ignorance of the risk, in the absence of evidence that the employer had notice of such ignorance.</p>

<p>1. Under the rules of the common law, this court has no jurisdiction over an action for damages caused by a trespass upon land outside of New Jersey.</p> <p>2. A plea presenting facts showing such lack of jurisdiction need not designate another court which would have jurisdiction.</p>

<p>Under the Mechanics’ Lien law (Pamph. L. 1S9S. p. 538, § 10), a building is not subject to lien for a debt owing for work or materials used in repairing or altering the building, unless the owner contracted the debt, or in writing consented to its being contracted by some other person.</p>

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

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

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

<p>1. Where a testator in a devise of land had described the subject-matter thereof by the words, “the house and lot where I now reside,” and the facts showed that early in his life he had bought a lot fifty feet wide fronting on a city street, and built a dwelling-house and other buildings on twenty-five feet thereof, leaving the other half of his lot vacant; that thirteen years later he bought thirty feet more land adjoining, and thereafter enclosed the whole as one lot, but had not built upon his adjacent land during forty years or more of his occupancy, except that in the last half year . of his life a wood-house had been built upon thirteen feet of the adjacent land for the convenience of his household; and that there was evidence, though conflicting, that about the same time a fence was erected which, with the wood-house, formed an enclosure of the thirteen feet, with the twenty-five feet upon which the house stood, leaving outside of this enclosure forty-two feet of the testator’s land; the plaintiff claiming under this devise brought suit in ejectment to recover the thirteen-foot plot as embraced therein from the defendant, who claimed it under a residuary clause of the will; at the trial, the ‘jury returned a verdict for the defendant. Upon review — Held, that a resort to extrinsic evidence in determining the location and extent of the subject-matter of the devise was proper; held further, that this question was one for the jury and not for the court.</p> <p>2. Under the evidence adduced in the cause it was held, that a request to direct a verdict was properly refused, and further, that the verdict was not so clearly against the weight of evidence as to justify the interference of the court.</p>

<p>Upon the trial of an indictment under the act of March 22d, 1S99 (Pamph. L., p. 210), which charged the defendant with having unlawfully tampered with the metre of an electric light company which supplied him with electric light, thereby preventing the metre from recording or measuring the full amount of the current supplied to him, fixing the date of the offence September 3d, 1902, it was satisfactorily proven that on the day named the metre was found to have been tampered with by removing the seal and inserting a pin between the disc and magnets, so that although the current was passing to the lights which were burning, the disc did not rotate and cause the current to be recorded or measured, as it was its office to do; so that the only question left for the jury was as to whether the defendant had been connected with the tampering with the metre. The defendant offered to prove by the books of the company the amounts charged to him during the years 1901, 1902 and 1903 with the purpose of showing the absence of any discrepancy in the amount charged for the month during which the tampering occurred, and also for the purpose of affecting the credibility of a witness for the state. The offer was overruled by the trial judge. Held, on error, that the evidence offered, if relevant at all, bore so remotely upon the issues involved, that its admission or rejection was within the discretion of the trial judge, so that its rejection was no ground for reversal.</p>

<p>Where a witness for the plaintiff gives testimony that will support the contract or cause of action sued upon, the fact that another of plaintiff’s witnesses gives testimony tending to prove a contract or cause of action variant therefrom, which, if established, would show that the action was prematurely brought, is no ground for a nonsuit or for a direction of the verdict; the question would be for the jury to say whether upon the whole evidence the plaintiff has established her case.</p>

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

<p>1. Where a contract embodies mutual and interdependent conditions ■ and obligations, and ofie party either disables himself from performing, or prevents the other from performing, or repudiates in advance his obligations under the contract and refuses to be longer bound thereby, communicating such repudiation to the other party, the latter party is not only excused from further performance . on his part, but may, at his option, treat the contract as terminated for all purposes of performance, and maintain an action at once for the damages occasioned by such repudiation, without awaiting the time fixed by the contract for performance by the defendant.</p> <p>2. The doctrine of Hoehster v. De la Tour, 2 Ml. é B. 678, approved.</p> <p>3. Where a beneficial organization issues to one of its members a benefit certificate entitling the beneficiaries to a stated sum on the death of the member while in' good standing, upon condition of his paying stipulated periodical assessments during life and complying with the by-laws of the organization, the member has such an interest in the enforcement of the benefit certificate as entitles him to maintain an action to recover damages for its repudiation.</p> <p>4. Where such a benefit certificate is repudiated during the life of the member, he need not continue payment of assessments or otherwise preserve his good standing in the organization, in order to entitle himself to sue for damages. Repudiation absolves the injured party from further performance of conditions precedent on his part.</p> <p>5. Where a benefit certificate is conditioned upon compliance by the member with all by-laws of the order thereafter to be enacted, the condition must be construed as referring only to reasonable by-laws and amendments, adopted in furtherance of the contract, and not to such as would overthrow it or materially alter its terms.</p> <p>6. Where a beneficial organization attempts, by means of an unauthorized by-law, to make a material modification of a benefit certificate previously issued, the member, if he intends to treat such by-law ‘as a repudiation of the contract, must exercise his option within a reasonable time. In ordinary cases, what is a reasonable time is a question for the jury.</p> <p>7. ’An action brought for repudiation of a contract is not subject to a time limitation that arises solely out of the terms of the repudiated contract.</p>

<p>A master is not bound to warn a minor servant concerning a danger incident to the operation of a machine, where there is nothing in the apparatus or in the method of its operation that would charge an ordinarily prudent employer with notice of such a danger.</p>

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

<p>1. Under the act regulating pilots, approved April 17th, 1846, as amended by supplements approved May 17th, 1894 (Pamph. L., p. 432; Gen. Stat., p. 2471), and March 7th, 1898 (Pamph. L., p. 53), a person who has served two years as a deputy pilot, and who thereupon applies for license as a full branch pilot, must fulfill two tests to the satisfaction of the commissioners of pilotage, acting in the exercise of their discretion, viz., (1) an educational test, especially as to his knowledge of tides, soundings, &e., as prescribed by section 4 of the act of 1846 (Gen. Stat., p. 2463), and (2) a test respecting his mental, moral and physical qualifications, to be determined by the commissioners after making “such inquiries respecting him and his qualifications as to them shall appear necessary and expedient.”</p> <p>2. The investigation to be made by the commissioners of pilotage respecting the qualifications of an applicant for pilot’s license (other than the educational examination) need not be conducted in the presence of the applicant, nor with the formality required in judicial proceedings.</p> <p>3. If the commissioners have made the “inquiries” indicated by the act, and on the strength of the information thereby acquired have determined in their discretion that the applicant is not a fit person to be licensed as a pilot, he has no right to require them to go through the empty form of an examination concerning his technical knowledge.</p>

<p>Contested election. On appeal from the Hudson Circuit-</p>

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

<p>1. A common carrier cannot by a special contract secure exemption from liability for losses occasioned by its negligence.</p> <p>2. Nor can a common carrier limit the amount of its liability- for losses caused by its negligence.</p> <p>3. Whether a contract between a common carrier and a shipper of goods by which a valuation is fixed upon the goods, and the liability limited to that amount, is valid, is not decided.</p> <p>4. Where, by contract for the carrying of live stock, the shipper agrees to take care of, feed and water the stock, whether delayed in transit or otherwise, there can be no recovery of damages arising from the failure to care for, feed and water.</p> <p>5. Lewis v. Pennsylvania Railroad Go., approved.</p>

<p>Under the facts of the case, a verdict-for $1,500 is so excessive as to require a new trial, unless the plaintiff accepts $500.</p>

<p>1. A count in tort which avers that defendant sold petroleum upon a representation that it was pure and unadulterated, and would not generate inflammable or explosive gas, and avers that it was impure and adulterated, and generated gas which exploded, but fails to charge fraud or knowledge on the part of the defendant, does not show a cause of action.</p> <p>2. A count in tort with the like averments, and an additional averment that the defendant “knew, or by the exercise of reasonable care might have known,” the defective quality of the oil, also fails to show a cause of action.</p>

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

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

<p>Where money was borrowed prior .to the Negotiable Instruments , act of 1902, by a member of a firm upon his individual note to the order of the lender, and he endorsed the note with the firm name, it is incumbent (in the absence of proof of his authority to bind the firm by an endorsement or guaranty of his individual paper) upon the plaintiff in a suit on the note to prove that the money was loaned to the firm, and that their contract was the contract of makers of the note.</p>

<p>1. Article 4, section 7, paragraph 6 of the state constitution prohibits the legislature from appropriating any part of the school fund to any free public school to which all the children of the state between the ages of five and eighteen years are not admitted. It cannot be applied to any other purpose whatever by which it might be diminished to such an extent that such free public schools might at any time be without sufficient support.</p> <p>2. This provision of the constitution is not a limitation of legislative power over the subject of free public education. It prescribes what must be done with the school fund, not what may be done at the public expense out of the general funds of the state. The facilities for free public education are to be provided by the legislature within the exercise, of a sound discretion subject only to constitutional restraints, which must be found in expression or clear implication.</p> <p>3. It was competent for the legislature to establish an agricultural college at Rutgers and to support it out of the state’s general fund, and the legislation on that subject is not infirm by reason of the constitutional provision against private, special or local legislation, or by reason of the further provision “that no donation of land or appropriation of money shall be made by the state or any municipal corporation to or for the use of any society, association or corporation.”</p> <p>4. These provisions of the constitution do not bar instrumentalities for public education provided by the state and under its own control, if the legislation is general, and the appropriation is made for such state schools. They were designed as an insurmountable barrier to giving free state aid, and to donations to XH'ivate or sectarian schools, and not intended to narrow or circumscribe the legislative power to furnish facilities by general laws for public education under its own supervision.</p> <p>5. Substantial classes may be selected for education as well as property may be selected by a proper classification for taxation.</p> <p>6. Taking all the legislation in this case under review, the legislature, by providing by the act of April 7th, 1903, for payment of the claim in controversy out of the state’s general fund, manifested an intention to impose on the state an obligation to liquidate it, if that mode of payment would remove the constitutional restraint, and that meaning should be given to the proviso in the act of April 17th, 1903.</p> <p>7. The injunction in the proviso of the act of April 17th, 1903, is directed to the state treasurer only, and does not impair the force of a mandamus issued to the comptroller.</p>

On certiorari. The heirs of William D. Cooper proposed to convey to trustees certain lands in the city of Camden for the purpose of erecting thereon hospital buildings and to appropriate moneys for their support, and thereupon an act was passed in March, 1875, incorporating the Camden hospital. The preamble to the act recites the said proposal and the act provided for carrying it into effect.

<p>1. Under the act approved February 19th, 1901 (Pamph. L., p. 31), there were four requisites to entitle a manufacturing or mining corporation to exemption from the state franchise tax— first, that at least fifty per centum of the capital slock of (lie corporation, issued and outstanding on January 1st next preceding the annual return, shall be invested in manufacturing carried on within this state; second, that the annual return to the state board of assessors shall state where the manufactory is located and the character of the goods manufactured; third, the total amount of its capital embarked in the business of manufacturing -and the amount of -the capital stock actually employed in New Jersey; fourth, that the annual return to the state board of assessors shall have been made on or before the first Tuesday of May in each year.</p> <p>2. Exemption from taxation is a favor, and the statutes under which it is allowed must be strictly complied with. Compliance is a condition precedent to the right of exemption.</p>

<p>1. The act relating to the sale of articles of merchandise with a counterfeit label thereon, approved March 15th, 1S98 (Pamph. L., p. S3), is not unconstitutional.</p> <p>2. Knowledge of the fact that the label is a counterfeit is not made, of the essence of the offence, and need not be shown to entitle one suing under the act to recover the penalty imposed.</p>

<p>1. Under the charter of the city of Atlantic City an ordinance may be adopted requiring all omnibus drivers to wear in a permanent position on his clothing a number the same as that issued for his omnibus. Such an ordinance is not unreasonable.</p> <p>2. The act approved April 15th, 1895, making certain designated days legal holidays, does not prohibit the sessions of the courts upon such days.</p>

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

<p>On appeal from the Second District Court of Newark.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

<p>1. The power to levy assessments for the benefits for sewer improvements in the village of Hackensack, in the township of New Barbadoes, in the county of Bergen, conferred upon the commissioners of the Hackensack improvement commission by the act approved April 1st, 1868, was repealed by the act approved March 12th, 1878, and by this latter act was vested in commissioners appointed by the Circuit Court.</p> <p>2. The General Township act (Revision of March 24th, 1899), does not repeal the act of April 1st, 1868, creating the Hackensack improvement commission.</p>

<p>1. The grounds of the decision heretofore announced in this cause (Sehwarg v. Dover, 39 Vroom 576) are overruled by the decision of the Court of Errors and Appeals in Ross v. Freeholders of Essex, 40 Id. 291.</p> <p>2. “An act to establish an excise department in incorporated towns and cities of this state,” approved March 21st, 1901 (Pamph. L., p. 239), is not unconstitutional in authorizing the common council to call upon a court to appoint an excise board for the municipality ; neither does the excise board so appointed derive its powers by delegation from the council.</p> <p>3. An act establishing an excise department in all towns and cities except cities of the first class is general and not special within the meaning of the constitution. 0</p> <p>4. So far as a writ of certiorari issued for the purpose of reviewing a municipal ordinance is a proceeding in rem, the governmental authorities of the town, being custodians of the record, are the only necessary parties. But where the interests of others are involved in the determination of the question, it is proper that they should be heard.</p>

On rule to show cause why leave should not be granted to file an information in the nature of a quo warranto in the name of the attorney-general.

On rule to show cause why leave should not be granted to file an information in the nature of a quo warranto in the name of the attorney-general.

On rule to show cause why leave should not be granted to file an information in the nature of a quo warranto in the name of the attorney-general.

<p>So far as a writ of certiorari brought to review a municipal proceeding operates merely in rem, to affirm or overthrow the proceeding in question, the jurisdiction of the Supreme Court is complete when the writ is addressee! to the municipal authorities, being custodians of the record, and returned by them with the record annexed. But where it appears that the necessary consequence of a judgment such as the prosecutor seeks will be to injuriously affect the interests of third parties, or public interests not already represented in court, it is within the discretion of the court to defer judgment until those who are interested in sustaining the proceeding under review are made parties.</p>

<p>1. Where lands held under lease are severed by the conveyance of a portion thereof from the lessor to a stranger, the rent will be apportioned between the several owners of the reversion.</p> <p>2. The consent of the tenant is not essential to the apportionment of rent where the reversion is severed.</p> <p>3. An eviction of the lessee from a portion of the premises demised, done by the grantee of the lessor without the lessor’s agency or procurement, does not debar the lessor from recovering rent for that portion of the premises remaining in his ownership.</p> <p>4. In apportioning rent, the value, and not merely the area of the respective portions of the demised premises, is to be considered.</p>

<p>Under the supplement of March 22d, 1901, to the act respecting executions {Pamph. L., p. 372, § 3), salary paid to the judgment debtor for his personal services is “income,” out of which he may be required to make payments on account of an unsatisfied judgment.</p>

<p>1. Implied repealers are not favored in the law. Ordinarily an intent to repeal a former statute will not be implied unless the subsequent enactment is either clearly repugnant to the former, or is manifestly intended to cover the same subject-matter by way of revision, and thereby to furnish a complete substitute for the former.</p> <p>2. That portion of the revised Attachment act (Pamph. L. 1901, p. I5S, § 1), which authorizes the issuance of an attachment against the property of absconding and non-resident debtors upon the filing of an affidavit, is not impliedly repealed by section 84 of the revised Practice act (Pamph. L. 1903, p. 560), which permits an action to be commenced by attachment in certain cases upon proof being made of the necessary facts to the satisfaction of the court or a judge or commissioner.</p>

petition. To the Justices of the Netv Jersey Supreme Court: The petition of Reginald Branch, George A. Enright and John A.’ IJartpence respectfully shows to your honorable court: 1. Held: “

<p>On motion to vacate a rule discharging a rule to show cause.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Secondary evidence of the contents of a written contract alleged to be lost will be admitted only when the trial court is satisfied by proof that the missing paper has been searched for with reasonable diligence; and if the document has been traced to the custody of a particular person, a like effort to find such person must also be shown.</p> <p>2. The loss of the missing writing and the reasonable diligence of the search that was made for it, being preliminary questions of fact to be found by the trial court, such findings will not be disturbed upon error if there was any testimony to support them.</p> <p>3. Where the only testimony upon such preliminary inquiry was that a witness, who had given the missing writing to his attorney to bring suit upon it, had made, within sixty days, an effort to find his lawyer, which was unsuccessful, the trial court did not have before it any testimony capable of supporting a finding that what had been done to discover the missing paper was all that reasonable diligence required.</p>

<p>On rule'to show cause why a summons should not be set aside.</p>

<p>A corporation has $96,000 invested in lumber stored for sale upon a city lot valued at $600,000, on which a dressing mill valued at $30,000 is operated in connection with' the lumber business. Heli, that upon the assumption that the work done at the mill is . . “manufacturing” it does not give color to the capita! represented by the lumber and the land on which it is stored so as to exempt it from taxation as capital invested in manufacturing carried on within this state.</p>

<p>It appearing from the testimony that one R., a member of the city council of Elizabeth, was indirectly interested in a contract to do work for' the city, awarded by the board of fire commissioners of that city, the contract will be set aside as against the provisions of the charter.</p>

<p>When chattels are delivered to a bailee in good condition and are returned to the bailor in a damaged state, the law will presume the negligence of the bailee to have been the cause.</p>

<p>Under section 114 of the Corporation act of 1896 a corporation extending its corporate existence is required to pay the same fees as fixed for the original certificate of incorporation, and is not relieved of this obligation by extending its corporate existence under the form of “an amended certificate of organization.”</p>

<p>The state board of taxation has no power or authority to assess the property of an individual owner upon the application of a taxing district.</p>

<p>On. certiorari to Middlesex Circuit Court.</p>

<p>The Veteran act of 1895 (Pamph. L., p. 317) does not prevent the abolition of a position held by an honorably discharged Union soldier if the same is done tona fide and is not illusory.</p>

<p>1. An agreement to pay a percentage upon the price fixed upon by the defendant and such purchaser as the plaintiff might obtain for certain real estate of the defendant, is within the tenth section of the statute of frauds and can be recovered upon only if in writing, signed by the owner or his agent.</p> <p>2. The plaintiff cannot recover on a quantum meruit in such case when it appears that the transaction out of which the claim to compensation arises is a contract for the sale or exchange of real estate.</p>

<p>1. Where a license lor the sale of liquor has been revoked, the license fee cannot be recovered back so long as the order of revocation remains unreversed.</p> <p>2. A stipulation that the order of revocation was made illegally cannot authorize the court to entertain a suit to recover the license fee.</p>

<p>On certiorari.</p>

<p>The rule that a plaintiff has a right to suffer a nonsuit, on his own motion, at any time before the jury have retired to consider of their verdict is applicable in the District Courts.</p>

<p>Oil information in the nature of a quo warranto.</p>

<p>In an action for personal injuries, a verdict of $18,000 in favor of the plaintiff, rendered only a little over three months after the accident, when it was impossible for the experts in the case to tell how serious the plaintiff’s injuries were or whether they were permanent, cannot be permitted to stand.</p>

<p>On certiorari.</p>

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

<p>On certiorari.</p>

<p>An officer, when resisted in lawfully making an arrest, is not justified in killing tbe offender for the purpose of guarding his person from bodily harm, unless the injury threatened is a serious one.</p>

<p>Rules to show cause in cases tried in the District Courts cannot be brought before this court by appeal.</p>

<p>1. The court will not interfere with the action of the board of freeholders in awarding a contract, in the absence of proofs to justify the conclusion that a contract is not an advantageous one, or that in awarding it the board acted fraudulently or in palpable abuse of the discretion invested in it under the authority to award the contract.</p> <p>2. There is no law requiring the board of freeholders to award a contract such as the one in question to the lowest bidder.</p>

<p>An appeal lies from the District Court for an error in point of law or upon the admission or rejection of evidence only. Pamph. L. 1902, p. 565.</p>

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

<p>Where a verdict for negligent death is-admittedly excessive, a new trial will be-granted if the court cannot reduce it to such sum as would compensate the father of the deceased, for whose benefit the action was brought, because his age did not appear.</p>

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

<p>On demurrer of Bergen Turnpike Company to declaration.</p>

<p>Application to open judgment to let defendants in to plead.</p>

<p>A car was running at a good speed, some of the witnesses expressing it as “a high or terrific rate of speed,” upon a street where the motorman had a clear view ahead of him for several hundred feet, and plaintiff’s intestate was leading a horse in the highway from the opposite direction, and, when the car was within a short distance — probably two hundred feet — the horse became unmanageable. Held, that it must have been evident to the motorman that the cause of the fright of the horse was the oncoming oar, and it was then his duty to put his car under such control as' to he able to stop it, and to take necessary precautions to that end; that a finding by the jury that he did not do so was justified.</p>

<p>On error to the Passaic Ojrer and Terminer.</p>

This was an action to recover the price of two “Jones Underfeed Mechanical Stokers,” which defendant in error, by a written proposition, dated December 13th, 1900, offered to furnish to plaintiff in error, and connect with certain of its boilers, for the price of $1,583.

<p>An act done by a servant while engaged in the work of his master, but entirely disconnected therefrom, done, not as a means or for the purpose of performing that work, but solely for the accomplishment of the independent malicious or mischievous purpose of the servant, is not in any 'sense the act of the master; apd, for injuries resulting to a third person from such an act, the servant alone is responsible.</p>

<p>On érror to the Supreme Court.</p>

On error to the Supreme Court. This ease was tried at the Essex Circuit, before Gummere, Chief Justice, and a jury.

<p>1. In an action to. recover possession of land or damages for an injury to land, the plaintiff must either show a title derived from an acknowledged owner or from an authority having power to transmit title, or must show possession by himself or by someone from whom his title comes. A deed to himself from a person not appearing to have had title or possession is insufficient.</p> <p>2. A judgment of nonsuit, rendered because the plaintiff did not appear when the jury returned into court to deliver their verdict, is illegal.</p>

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

<p>In the will under consideration in this cause the words, ‘‘all of this world’s goods of which I may be xxossessed at the time of my death,” included real estate.</p>

<p>The plaintiff having written to the defendant asking for payment of a book account, the defendant directed her daughter to Write a reply, but did not instruct her what to write nor learn what she wrote. Held, not erroneous for the court, trying without a jury a suit for the account, to receive the letter in evidence.</p>

<p>On error to the Union Circuit Court. Tried before Vail, judge, and a jury.</p>

<p>On error to the Atlantic Circuit Court. Tried before Nixon, judge, and a jury, and a verdict rendered for plaintiff.</p>

On error to the Supreme Court. This case was tried at the Hudson Circuit, before Justice Dixon and a jury, and a verdict rendered for plaintiff for $3,000.

<p>1. The right to lien a building lor materials furnished under our Mechanics’ Lien act is not rendered unenforceable by the conveyance of the property to a corporation for railroad purposes.</p> <p>2. The production and control of electric power by mechanical means and its adaptation for use upon a trolley system is a “manufacturing purpose” within the meaning of section 8 of the Mechanics’ Lion law.</p> <p>•'!. In the absence of conflicting- claims between the person who actually performed the labor and the person who, under a contract, caused it to be performed upon a building, the latter is by our Mechanics’ Lien law given a lien for the labor so furnished.</p> <p>4. When a sub-contractor knows that a building contract under which he is proposing to accept employment provides that no subcontractor shall file any lien, the more acceptance of such employment will bar him from asserting a lien in opposition to such provision.</p>

On. error to the Supreme Court. This was an action brought by the plaintiffs to recover certain sums of money, due to them by the terms of a written agreement made with the plaintiffs by the defendant -Johnson and two others. The agreement concerned the sale of the right to operate, at Gloucester City, New Jersey, a patented device known as a roundabout. Johnson alone pleaded to the declaration.

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

<p>On error to the Supreme Court.. Eor opinion of the Supreme Court see 39 Vroom 478.</p>

On error to the Supreme Court. This ease was tried at the Atlantic Circuit, before Justice Hendrickson and a jury, and a verdict rendered for the defendant below.

<p>1. It is not reversible error for the court to refuse to strike out a deposition, offered and admitted in evidence without objection, solely upon the-ground that the witness, whose deposition was so admitted, had appeared in court during the trial and after its admission.</p> <p>2. Some reason must be given alleging surprise at the ability of the witness to attend, and showing that the failure to object to the introduction of the deposition was, due to misinformation or lack of knowledge as to the ability of the witness to appear in court and give oral evidence.</p> <p>3. Such a motion must also- be made, as soon after the ability of the witness to attend and give evidence is discovered, as the proper and orderly conduct of the cause will permit, otherwise the right to make the motion to strike out will be deemed to be waived.</p>

<p>One may resist another, trespassing upon his lands,. whatever the motive for so resisting may be. It is not the design of the resister but the act of the trespasser which is wrongful.</p>

<p>On error to tbe Essex Circuit, upon a judgment on a verdict in a cause tried before Judge Adams and a jury.</p>

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

<p>1. It is one of the duties of an employer to exercise ■ reasonable care that the place in which he sets his servant to work, and the system or method adopted by the employer for the doing of the work, shall be reasonably safe for the servant and free from latent dangers known to the master or discernible by an ordinarily prudent master in the circumstances.</p> <p>2. Where there is evidence from which the jury may reasonably find that the injured servant had no knowledge of the latent danger that necessitated the use of certain precautions for his safety, it cannot be held as a conclusion of law that because the servant knew of the absence of the precautions he thereby assumed the risk of injury resulting to him from their absence.</p> <p>S. It is not merely the physical surroundings of the servant that must be obvious to him in order that he may be held to have assumed the risks arising therefrom, but it must be obvious to him, or at least to an ordinarily prudent servant under the circumstances, that there‘is danger to him in such a situation.</p> <p>4. The rule that the duty of a master with respect .to care as to the tools and appliances furnished for his servant’s work is limited to such as are in fact supplied by the master, has no applicancy to the failure of the master to supply appliances needed not for the work itself, but solely to protect the servant against latent dangers arising out of the work.</p> <p>5. Tlie duty of the master to exercise care for the safety of the servant cannot bo evaded by the employment of others for its performance. The persons so employed are not fellow-servants engaged in common employment with the servant for whose safety the care is to be exercised.</p> <p>6. The question whether a witness has such special knowledge or ■ experience as to qualify him to give opinion evidence is a question of fact for the determination of the trial court, whose finding is not reviewable on writ of error if there be any legal evidence to support it.</p>

<p>1. Tlie payee of a check drawn upon a bank in New Brunswick endorsed it generally, and deposited it to his account in a bank in Washington; the Washington bank forwarded it to the New Brunswick bank for collection; the latter bank paid it, by mistake, as alleged. Held, that there was no privity between the New Brunswick bank and the payee of the check to support an ■ action by the former against the latter to recover the amount of the check as for money paid by mistake.</p> <p>2. The holder of a check has no contract with the bank on which it is drawn, and no legal right to exact its payment. Groveling v. Bloomsbury National Banlc, 17 Vroom 255, approved.</p> <p>3. Where a bank receives in the ordinary course of business a check drawn upon it and presented by a bona fide holder who is without notice of the fact that payment thereof has been stopped, and the bank pays the amount of the check to such holder, it cannot afterwards recover back the money as paid by mistake, on the ground that payment of the check had been countermanded by the drawer.</p> <p>4. Where an agreed state of facts, adopted by the trial 'court as the basis of its finding's and spread upon the record, includes all facts essential to the determination of the controversy between the parties, it Will be treated as a special verdict, upon which the court of review will render the same judgment that the trial court ought to have rendered.</p>

<p>In a street lighting district organized under the act of 1894, as amended in 1896 {Pmnph. L. 1894, p. 540; Gen. Siat., p. 3669; Pmnph. L. 1896, p. 132), the annual meeting of the legal voters prescribed by section 2 of the act is a general election whoso time, place and purpose are fixed by the statute. The requirement of public notice to be given by the township clerk is directory, and failure to give it will not invalidate the election, where the will of the people has been fairly expressed.</p>

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

<p>On error to the Supreme Court upon a judgment on verdict in a cause tried at the Hudson Circuit before Justice Dixon and a jury. ¡</p>

On error to the Supreme Court. This cause ivas tried at the Essex Circuit before Chief Justice Gummere and a jury, and a verdict directed for the plaintiff below.

On error to tbe Supreme Court. Tbis case was tried at the Camden Circuit before Justice G-arrison and a jury, and a verdict directed for the defendants below.

On error to the Supreme Court. This case was tried at the Atlantic Circuit, at the September Term, 1903, before Justice Hendrickson and a jury, and a judgment of nonsuit ordered.

On error to the Supreme Court. Action by Victor S. PL Waldron against Mary E. Davis, administratrix of tire estate of Eliza VanNorden, deceased, Judgment for plaintiff, and defendant brings error.

<p>On error to the Atlantic Circuit. Tried before Judge Nixon and a jury, and judgment rendered for the defendant.</p>

On error to the Essex Circuit Court. This case was tried before Judge Adams and a jury, and judgment rendered for the plaintiff below.

On error to the Camclen Circuit Court. This case was tried at the September Term, 1903, of the Camden Circuit Court, before Hon. James H. Nixon, Circuit judge, and a jury, and a verdict rendered for the plaintiff below. The defendants not having given a bond, the plaintiff had obtained possession of the horses, hence the verdict was nominal — for six cents, damages and costs.

On error to the Supreme Court. • This action was brought by the plaintiffs to recover the value of a box containing goods owned by Mrs. Russell, which had been- consigned from Buffalo, New York, to Rutherford, New Jersey, over the Erie railroad and lost in transit. In June, 1902, Mrs. Russell caused the box in question, containing the goods belonging to her, to be stored with the Goldhagen Storage Company, in Buffalo.

<p>1. The driver of a truck is not guilty of negligence, as a matter of law, in attempting to cross a street railway track in front of a trolley car five hundred and fifty feet away, which is approaching him at a very great rate of speed; he has the right to assume that the car is furnished with appliances to reduce speed and to stop, and with a motorman to make use of such appliances, and that the car will not continue to run in violation of the law limiting the speed of vehicles in public streets to that which is compatible with a safe use thereof by other vehicles.</p> <p>2. In an action for damages resulting from an injury caused by negligence, it is the duty of the trial judge, when requested to nonsuit or (jirect a verdict, to determine whether any facts have been established by evidence from which negligence may be reasonably inferred; if the real facts have not been establshed by the evidence he must submit them 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>

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

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

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

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

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