Volume 71 — New Jersey Law Reports

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

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

<p>1. The natural meaning of an accusation that a person is “keeping a disorderly house” is that he is so keeping his house as to make it a common nuisance to the neighborhood.</p> <p>2. Where a plea of justification, in an action of slander, is supported by substantial evidence produced by the defendant, the fact that the proofs offered fail to convince the jury of the truth of the alleged slanderous words, affords no ground for holding, as a matter of law, that the plea was filed in bad faith, or that the words were spoken with a malicious motive.</p>

<p>Where, in an action upon an insolvent bond, the declaration alleges, as a breach, that the defendant failed to appear before the Court of Common Pleas held next after the giving of the bond, or at any other time prior to the institution of the suit, and there apply for the benefit of the insolvent laws in accordance with the condition of the bond, a plea which merely avers that the defendant applied to the court for the benefit of the insolvent laws, pending the suit, does not present a valid defence to the action.</p>

<p>On an inquiry whether a debt recently created by a writing still outstanding has been paid, the burden of proof rests upon the debtor.</p>

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

<p>Persons cannot be guilty of “carrying on the business of private banking without authority,” in violation of a criminal statute, merely because, as president and treasurer of a New Jersey building and loan association, they participate in its lawful business.</p>

<p>The plaintiff, while a passenger on the defendant’s train, was injured in a collision between the train and two freight cars standing ón tlie track. These cars had escaped from a freight yard near the passenger tracks about twenty minutes before the collision. The railroad and its appurtenances, including the freight yard, belonged to another corporation, but were used in common by the defendant and a third company. The tracks in the freight yard had a descending grade toward the place of collision, and the defendant claimed that the escape of .the cars resulted from their being struck by a drill engine of the third company, through the negligence of the engine driver. Held, that the defendant’s duty to its passengers required it to foresee the danger of such an occurrence and to provide means for its prevention, and, since it had provided no means except the care of those engaged in the yard, it was chargeable with their negligence.</p>

<p>1. A provision in the certificate of incorporation of a company organized under our present act concerning corporations, to the effect that the stockholders of record on the books of the company, when assessments or calls for the unpaid amount of subscriptions for stock are made, shall be liable therefor, is not inconsistent with the statute.</p> <p>2. Such a provision is binding upon a person who became a stockholder after the company was organized, and who, when the assessment was made, had sold his stock and given the company notice of the sale, but had not surrendered his certificate of stock or informed the company of the name of his vendee.</p>

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

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

<p>On error to- the Bergen Quarter Sessions.</p>

<p>In an action for negligence, where the testimony was conflicting as to the manner in which a collision occurred, the trial judge charged the jury that a verdict might be found for the plaintiff, “either on the view that you take of his own testimony or on the view that you take of the defendant’s^ testimony.” Held, that a judgment rendered for the plaintiff must be reversed where no negligence of any sort could legitimately be inferred from the testimony offered on behalf of the defendant.</p>

<p>Where a general averment of the performance of conditions precedent has imposed upon the opposite party the duty of pleading specifically under section 118 of the Practice act (Pamiph. L. 1903, p. 570), such duty is not complied with by reason 9! matter contained in a written response to a demand for a specification of defences under the one hundred and fourth section, of the same act.</p>

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

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

<p>Judgment against defendant reversed because of the failure of the trial court to charge, at the request of the defendant, the rule of law specifically pertinent to a bill of exceptions held by the defendant, in which the rule itself had been incorrectly laid down by the trial court.</p>

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

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

<p>1. In an indictment under section 175 of the Crimes act (Pamph. L. 1898, p. 842) for publishing a false statement with intent to induce any person to entrust property to a body corporate, it is not necessary to aver the particular person who was to be or was influenced by the statement.</p> <p>2. Upon the trial of an indictment of a director of a corporation for publication of a false statement under section 175 of the Crimes act (Pamph. L. 1898, p. 842), the state was permitted to prove that the business of a copartnership, to which the corporation was the immediate successor, was held up as fraudulent by the newspapers. Held, that the admission of the evidence was erroneous.</p>

<p>A count in a declaration averring that the plaintiff was seized of a mill, and by reason thereof ought to have and enjoy the benefit and advantage of the water of a canal subject to the annual payment of $400 rent, which plaintiff was ready to pay and defendant refused to receive, and further averring that the defendant wrongfully diverted the water, is properly joined with a count in tort.</p>

<p>A declaration in a suit by a father for injuries resulting in the death of his son, which fails to show any loss of services during the son’s lifetime, and claims only for burial expenses and loss of services after the son’s death, fails to show a cause of action.</p>

<p>1. The willingness of a servant to assume the risk of obvious dangers is not shown by the fact that he knew of the danger, in a case where the servant has made complaint, received a promise of repair and continued work in reliance on the promise.</p> <p>2. Dowd v. Erie Railroad Co., 41 Vroom 451, followed.</p>

<p>1. The legal relation between public school teachers who accepted the provisions of the act of 1896 {Pamph. L., p. 58) and the board of trustees of the teachers’ retirement fund, is that of contract, the terms of which are to be ascertained by reference to the statute. This contract cannot be altered without the consent of both parties thereto, upon sufficient consideration.</p> <p>2. The act of 1899 {Pamph. L., p. 475) is inoperative to affect the contract made between the plaintiff and defendant by the plaintiff’s acceptance of the act of 1896.</p>

<p>In an action for personal injuries, the plaintiff failed to testify to his most serious injury until his attention was called to it by a leading question of his counsel. The defendant was surprised by the testimony, and evidence subsequently taken indicated that the injury in question was of long standing. Held, that a new trial should be’granted.</p>

<p>1. Contracts of a corporation, whether municipal or private, stand on the same footing with contracts of natural persons, and depend on the same circumstances for their validity and effect.</p> <p>2. A contract for a water-supply is a contract for the sale of goods, wares and merchandise, and is within the operation of the statute of frauds.</p> <p>3. Where the legislature lias authorized a municipality to act or contract, and does not require this to be done by ordinance, the legislative body of the municipality may contract by a vote upon a motion or by the passage of a resolution.</p> <p>4. A resolution to take the case out of the statute of frauds must not only be passed, but it must also be communicated to the other contracting party by the direction of the party which adopts the resolution, and it must be accepted to constitute a contract.</p> <p>5. In this case the resolution of the town of Harrison directing the president of council and the town clerk to execute a contract with Jersey City for a water-supply, was inter sese until communicated to Jersey City, and until then no obligation rested on the town of Harrison in respect to it.</p>

<p>On certiorari.</p>

<p>1. The legislature may authorize a municipal corporation to regulate the erection and maintenance of structures used for advertising purposes and placed upon lots near the street line so as to fully protect from danger persons passing along the street, but such regulations must be reasonable.</p> <p>2. When statutes are obviously intended to provide for the public safety, and the ordinances prescribed under them are reasonable and in compliance with their purposes, both the statutes and the ordinances are lawful, and must be given due effect.</p> <p>3. When the control attempted to be exercised over private rights is in excess of that essential to effectuate such legitimate authority, it deprives the owner of his property by circumscribing the use of it, without giving him the just compensation secured to him in such case by the organic law.</p> <p>4. The statute does not authorize the prohibition of all signs; it provides for regulation only, and must be construed, in view of the settled law when it was passed, that regulation must be exercised within reasonable limits, subject to the supervision of the courts. The statute, therefore, cannot be successfully assailed.</p>

<p>On certiorari.</p>

<p>The legislature, representing the state, has paramount authority over its public ways, including the streets in cities as well as the county roads, and the legislature can at any time resume the power previously granted to municipal subdivisions of the state.</p>

<p>1. The act of 1S94 (Gen. 8tat., p. 2236), entitled “An act respecting licenses in cities, townships, incorporated towns, incorporated townships, sanitary and improvement commissions and incorporated camp-meeting associations and seaside resorts,” is valid, and authorizes the City of Atlantic not only to fix a license fee, but also to establish reasonable regulations for the conduct of the business of licenses.</p> <p>2. One who solicits the services of a licensed hachman is a passenger within the meaning of the second section of the city ordinance.</p>

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

<p>Where goods are purchased and marked and charged upon vendors’ books of account by lot numbers, according to the custom of the business, and known and understood by both vendor and vendee, in a suit to recover the account, a state of demand in a Justice Court, containing a copy of the account as charged upon the vendors’ books, is sufficient.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

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

<p>1. An action can be maintained to recover damages for the refusal of the lessor to permit the lessee to take possession of the demised premises under a valid parol lease.</p> <p>2. Where the damages claimed are continuing and cannot be fully ascertained at the time suit is commenced, such damages only 'as have accrued at the time the suit is instituted can be recovered in such suit.</p>

<p>1. The method of appeal from a District Court provided for by the act approved April 30th, 1902 (Pamph. L., p. 565), is concurrent with a review by this court, upon certiorari, upon the matters made appealable by said act within the ten days limited in the act within which an appeal may be taken.</p> <p>2. Appeal from a District Court within the time limited by the act of April 3d, 1902, is a matter of right under that statute. Review by certiorari is a matter of grace, resting in the discretion of the court or justice allowing the writ.</p> <p>•3. AYhere the facts certified show a mistrial, a new trial will be ordered.</p>

<p>On. certiorari.</p>

<p>On an appeal to the Court of Common Pleas from a judgment of the Small Cause Court, if the appellant fail to notice the appeal at the next term of the Common Pleas after such appeal shall be taken, if sufficient time to notice the same for ten days remains between the perfecting of the appeal arid the first day of such next term, the court must dismiss the appeal unless good cause be shown.</p>

<p>1. It is too late to object to a question after the answer has been given. Objections must be timely, and must be made to the question.</p> <p>2. A party cannot take chances as to the answer and accept or reject it, as may appear advisable, after it is in.</p>

<p>1. Tbis court will not review tlie District Court on questions of fact. If there be evidence to justify the finding of that court, its judgment will be sustained.</p> <p>2. The District Court has power to amend the state of demand by inserting therein that the plaintiff sues as assignee.</p>

<p>Mandamus, will not lie to compel the doing of an act which would be a violation of the law.</p>

<p>A valid contract not existing between Jersey City and the Town of Harrison for the supply of that town with water by Jersey City, the resolution of July 28th, 1903, authorizing the construction of a pipe from the junction of Kearny avenue and Belleville turnpike to Kingsland for that purpose, was without authority and void.</p>

<p>1. Where requests to charge upon points of law applicable to the cause are made prior to the commencement of the summing up of counsel upon the evidence in the cause, then it is the duty of the court to charge, or refuse to charge, such requests.</p> <p>2. If a failure to charge may be deemed a refusal to charge, then, if the requests made contain legal propositions applicable to the cause, and the same subject-matter be not covered by the charge of the court as given, there should be a reversal.</p>

<p>The plaintiff’s residence will be presumed to be where he alleges it to be, unless the contrary appear.</p>

<p>1. ■ An order of discharge of an insolvent debtor will be set aside wlien it appears that the petition presented to the court .was not filed with the clerk for more than two months afterwards.</p> <p>2. The making of an assignment to the assignee appointed by the court of all the real and personal estate of the debtor except apparel for himself, his wife and children, tools of his trade and such property as is exempt from execution, the inventory, annexed to. the petition, showing the debtor to be the owner of personal property -which did not appear to be exempt, is necessary before the order of discharge can be made.</p> <p>3. Testimony taken under a notice served by mailing a copy, suppressed ; it not appearing that it was proved in the presence of the attorney of the other party, that the notice was placed in the post-office the legal period prior to the day of taking the depositions.</p>

<p>1. Under “An act relating to, regulating and providing for the government of cities” (Pamph. L. 1902, p. 284), it is not necessary that the municipal authorities have in hand a fund to pay for paving streets before authorizing such improvement.</p> <p>2. In the case in hand, the bid of the defendant company was within the advertised specifications.</p>

<p>Judgment directed by the judge reversed, it appearing that there was evidence which should have been submitted to the jury.</p>

<p>1. In a suit upon the record of a foreign judgment, the lack of jurisdiction must be presented to the court by the defendant.</p> <p>2. A state of demand which alleges the recovery of a judgment upon personal service and defendant’s appearance before the appellate division, second department of the Supreme Court of the State of New York, held in and for the county of New York, on costs and disbursements of an appeal from a judgment recovered below, is sufficient.</p>

<p>Under the sixth section of “An act to revise and amend ‘An act for the taxation of railroad and canal property,’ approved April tenth, one thousand eight hundred and eighty-four,” which latter act was approved March 27th, 1888 (Pamph. L., p. 269), the property of a foreign railroad corporation in this state which leases or operates the property of a domestic railroad or canal company other than that which it derives from the lessor, is assessable in like manner as that of a domestic railroad or canal company.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. An amendment to the Oyster law, approved March 22d, 1901 (Pamph. L., p. 307), known as the “Rough Gull” law, which makes it a misdemeanor for any person engaged in-dredging, oysters from any of the beds and grounds above the “southwest line, under the waters of Delaware river, Delaware bay and Maurice river cove,” to neglect or refuse to cull such oysters, oyster shells and other materials as soon as they are emptied out of the dredges on the deck of the vessel, and before they are shoveled back from that part of the deck, so closely that three' bushels thereof taken from any portion- of a deck load- after the same shall have been shoveled back from that part of the deck, <S;c., shall not contain more than fifteen per centum of shells and other materials, was held sufficient to cover an- alleged violation thereof where the baskets of oysters for the test were taken from a part of such deck load which had been removed from the deck into the hold of the vessel before the officers in pursuit had reached the same.</p> <p>2. A construction of a statute which would have the effect of placing it in the power of a transgressor to defeat, by an evasion,' the object and purpose of the law, will not be favored.</p> <p>3. The failure to caution a prisoner, when he appears before a magistrate and- makes incriminating statements in answer to questions, is no bar to their admission as evidence so long as it appears that the statements were voluntary, and not the product of hope or fear incited by some word or act of those in authority.</p>

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

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

<p>1. When municipal corporations are acting within the power and discretion vested in them, by the legislature, in the absence of fraud the courts cannot interfere unless it appear that the power or discretion is being- manifestly abused to the injury or oppression of the citizen.</p> <p>2. Ministerial agents or officers of a municipal corporation employed durante ft.ene plácito are removable at the will of the municipality, and the duties, terms and compensation of such employment may, with the consent of such officer-, be lawfully changed or altered by the municipality at any time, so long as such municipal action is taken in good faith and in the exercise of reasonable discretion and judgment.</p>

<p>1. Upon proceedings being taken by the board of chosen freeholders of the county of Hudson to erect a new court house for the use of the courts and county offices and to provide for a bond issue to meet a portion of the expense, the validity thereof was challenged, upon certiorari, on the ground that there was no existing valid legislation to support the proceeding. The act of March 22d, 1901 (Pamph. L., p. 275), being cited, in its support, the prosecutor contended that this statute was special and unconstitutional as contravening article 4, section 7, paragraph 11 of the constitution, by reason of the tenth section of the act, which provided “that this act shall not affect the provisions of any other act for the erection of a new court house and county buildings in any county whereunder proceedings have already been taken; nor shall it apply to counties having a population, ascertained by the last preceding census, of less than two hundred thousand inhabitants.” Held, that this act was not open to attack upon this ground, and that the proceedings were valid.</p> <p>2. Since the building of a court house and county 'buildings is unlikely to occur more than once in a generation, and when once undertaken involves important existing conditions, such as large contracts for construction and bond issues to raise the necessary funds, a proviso in a general act such as the above — that it shall not affect the provisions of any other act for the erection of such buildings whereunder proceedings have already been taken — will be regarded as creating a classification which has a reasonable relation to the subject-matter of the legislation, and as not in violation of the constitutional mandate against special legislation.</p> <p>•3. The limitation of the operation of such a statute to counties of a minimum population is not subject to the ban against special legislation, but is in harmony with the rule that where population bears a reasonable relation to the subject-matter, legislation based thereon is constitutional.</p>

<p>1. In order to establish intoxication as a defence at law in cases of contract, it must appear that the intoxication of the person whose competency is challenged was so far complete that he would he unable to understand the nature and effect of the act in which he was engaged and the business he was transacting.</p> <p>2. Under the early English practice a retraxit, the effect of which would be to forever end the litigation, could-be entered only by the plaintiff in person, in open court, and not by attorney; by analogy, under the present practice, when the validity of such a document is challenged by the plaintiff from whom, it was obtained*, its legality, both in form and execution, will be the object of careful judicial scrutiny.</p>

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

<p>1. A contract between the insured, under a fire policy, and the insurance broker, that if the latter will advance the amount of premium to the insurer he may hold the policy as collateral security for repayment of the premium advanced, and in case of cancellation of the policy by the insurer, the insurance broker may also collect the unearned premium and credit the money so received upon the debt so due from the insui-ed, cannot be regarded as tending to fasten upon the policy any new or different contract, so as to exclude the proof thereof by parol testimony.</p> <p>'2. Such a contract is a dealing by the insured with the unearned premium to become due, in case of cancellation before the expiration of the policy, by pledging the same to another to secure the repayment to him of money advanced by the latter to pay the premium.</p> <p>■3. Under such a contract and pledge, if the policy be canceled before maturity and the insured has paid the unearned premium to such broker upon a surrender of the policy, and the latter lias credited it upon the‘debt of the insured thus created, the payment thus made will be a complete defence to any action thereafter by the insured against the insurer to collect such unearned premium.</p> <p>4. Where an agency is coupled with an interest given for a valuable consideration or is part of a security, it is not subject to revocation by the principal.</p>

<p>1. Refusal to nonsuit for failure of proofs is not error, if the defect was supplied by evidence taken in the progress of the cause.</p> <p>2. In the trial of an action for damages by the owner of a horse and wagon against a trolley company for damages arising out of a runaway accident, caused by the frightening of his horse by some construction cars being propelled upon the streets of a city, the acts of alleged negligence relied upon by the plaintiff were the propelling in the streets of a ear of unusual appearance, calculated to frighten horses, and the negligent conduct of the motorman at the time. At the close of the plaintiff’s case a nonsuit was asked on the ground that the plaintiff’s witnesses agreed that the horse did not show any fright until the cars came within a few feet of the horse, and that the motorman had the car under control and stopped it before passing the place where the horse stood, and that the use of these cars upon the street at that point was not uncommon. The motion was refused. Later in the trial the motorman testified that ho saw the horse begin to show fright while the cars were fifty yards away, and that he at once stopped the car. Another witness testified that the dirt car, at which the horse became frightened, was usually run. in the rear, but this time it was in front of the connected cars. Upon review it was held that such error, if any, in the refusal to- nonsuit was cured by the later testimony, which made the question one for the jury.</p> <p>3. In order to maintain an appeal from a District Court under the act providing for such appeals (Parnpli. L. 1902, p. 505), the record brought up must show, in addition to the other requirements of the act, a case either agreed upon or settled by the judge, including the determination- or judgment of the court, and the copies of the case required to- be furnished upon the argument must also show that these requirements have been complied with, or the appeal is liable to dismissal.</p>

<p>1. • Tlie act of March 27th, 1902, entitled “An act to create a sewerage district to be called the Passaic valley sewerage district” {Pamph. L., p. 190), is not unconstitutional.</p> <p>2. The act of April 22d, 1903, entitled “An act to relieve from pollution the rivers and streams within the Passaic valley sewerage district,” &c. {Pamph. L., p. 777), is not violative of par-graph 11 of section 7 of article 4 of the amended constitution, which prohibits the passage of private, local or special laws: (a) laying out, opening, altering and working roads or •highways; (5) vacating any road, town plot, street, alley or public grounds; (c) regulating the internal affairs of towns and counties, appointing local offices or commissions to regulate municipal affairs.</p> <p>3. The act of April 22d, 1903 {Pamph. L., p. 777), is not violative of that clause of paragraph 11 of section 7 of article 4 of the amended constitution, which declares that “the legislature shall pass no special act conferring corporate powers,” &c. This prohibition does not relate to the creation of political corporations.</p> <p>4. The Passaic Valley Sewerage District is not established as a municipal corporation.</p> <p>5. The powers conferred upon the Passaic Valley Sewerage Commissioners are executive and administrative in character-, and not legislative.</p> <p>C. In providing for the establishment, maintenance and operation of public works in order to relieve the natural streams from «.pollution detrimental to the health of the neighboring population, the legislature is not required by any constitutional limitation to delegate the work to existing municipalities, nor to establish a new municipality for the purpose, but may act directly and through its own agencies.</p> <p>7. It is not a constitutional right of the people to have all matters of local concerní entrusted to municipal corporations. Within constitutional limits the people of the state, acting through the general legislature, may delegate to the municipalities such portion of political power as they may deem expedient, may withhold other powers and may withdraw any part of that which has been delegated.</p> <p>8. In the mandatory clause of paragraph 11 of section 7 of article 4 of the amended constitution, declaring that “the legislature shall pass general laws providing for the cases enumerated in this paragraph, and for all other cases which, m its judgment, may be provided for by general laws,” the latter part of the clause leaves much to the discretion of the legislature. Under this language it would require at least a plain case, amounting in effect to an evasion of the legislative duty, to justify the courts in declaring an act void for want of generality.</p> <p>9. The situation of the territory included within the Passaic Valley Sewerage District, in respect to the features that have necessitated the legislation in question (Pamph. L. 1903, p. 777), is wholly exceptional; no parallel to it exists elsewhere in the state at present, nor is it reasonable to anticipate that such a situation will elsewhere exist in the near future.</p> <p>10. A law is special, in a constitutional sense, when by force of an inherent limitation it arbitrarily separates some persons, places or- things from those upon which, but for such separation, it would operate.</p> <p>11. The rule adopted in determining the constitutional validity of a ■classification of municipalities on the basis of population — the rule that municipalities afterwards “growing into the class” must be brought under the operation of the law in question— hss no applicancy to the anomalous conditions that have necessitated the legislation under review (Pamph. L. 1903, p. 777), it being not reasonable to anticipate that the natural streams in other parts of the state will be permitted to become polluted to the extent of endangering the public health.</p> <p>12. The act under review (Pamph. L. 1903, p. 777) being constitutional in its main purpose of establishing and regulating a sewerage district, such of its provisions as incidentally regulate the internal affairs of existing municipalities in order to carry out tire main purpose are not invalid as being special legislation, since the municipalities thus affected are thrown into a class by themselves, from the very necessity of the case, and no distinctions -are made between these several municipalities except such as are germane to the purposes of the legislation.</p> <p>13. The act under review (Pamph. L. 1903, p. 777) is not unconstitutional in imposing the cost of the public work thereby established upon a limited district, rather than upon the state at large.</p> <p>14. The rule enunciated in State, Baldwin, pros., v. Fuller, 10 Vroom 576; 11 Id. 015, that the legislature may not create a taxing district narrower in extent than the political district of which it is a part, lias no applicancy to a taxing district that includes the whole of certain political districts and parts of others, and where the taxes in question are imposed not by any delegated authority, hut by the legislature itself.</p> <p>15. The act under review {Pamph. L. 1903, p. 777) does not delegate to the Passaic Valley Sewerage Commissioners the legislative function of levying taxes, but only the administrative function of assessing and collecting the taxes laid by the legislature in the act.r</p> <p>16. The acts under which the city of Paterson was authorized to empty its sewage into the Passaic river amount merely to a legislative license, revocable at the will of the legislature, at least, whenever the public health and safety require.</p> <p>17. Article 4, section 7, paragraph 4 of the constitution, declaring that the legislature shall not create any debt or liability of the state, exceeding $100,000, without the previous approval of the people at a general election, has no applicancy to municipal indebtednesses.</p>

<p>On certiorari.</p>

<p>1. The “Act for the better regulating and control of the taking, planting and cultivating of oysters and clams on lands lying under the tidal waters of the county of Ocean, in the State of New Jersey,” approved March 26th, 1902 (Pamph. L., p. 170), is constitutional.</p> <p>2. With respect to the constitutional prohibition of special laws granting “any exclusive privilege, immunity or franchise,” the criterion for determining whether a law is special relates to the recipients of the grant, rather than to the territory within which the privileges are to be exercised.</p> <p>3. The constitution contains no specific prohibition of local or special laws relating to the preservation and regulation of the oyster and clam fisheries.</p> <p>4. Where a special or local law relates to a topic that is not within the specific prohibition of paragraph 11 of section 7 of' article 4 of the amended constitution, it would require a plain case, at least, to warrant the courts in declaring a special law void as violative of the affirmative mandate contained in the same paragraph, which declares that the legislature shall pass general laws providing for “all other cases which in its judgment may be provided for by general laws.” That clause leaves all subjects outside of the specific prohibitions to be dealt with according to the judgment of the legislature. 5. An indictment for a statutory oifence need not contain an averment that the defendant is not within an excepted class, unless the exception be found in the enacting or prohibitory clause. If it be found in a separate substantive clause, and is not an essential part of the description of the oifence, it is matter of defence.</p>

<p>On certiorari.</p>

<p>1. In the absence of special contract or custom, the duty of a common carrier of goods is not completed upon the mere arrival of the goods at destination, but includes the duty of delivery to the consignee.</p> <p>2. Where the contract of carriage contemplates delivery of the goods upon the carrier’s premises at the terminus of the route, and no time for the arrival of the goods or for their delivery is stipulated for, the duty of making delivery to the consignee involves either the allowance to the consignee of a reasonable time within which to make inquiries respecting their arrival or else the duty on the part of the carrier of giving notice of arrival to the consignee; and also involves, in either case, the allowance to the consignee of a reasonable time and opportunity, after notice of arrival of the goods, within which to take them awmy.</p> <p>3. The question whát is reasonable time or opportunity, where the facts are in dispute or the inference to be drawn from undisputed facts is in doubt, is a question of fact and not of law.</p> <p>4. The appeal from the District Court to the Supreme Court, under the act of April 3d, 1902 (Famph. L., p. 505), is limited in its scope to questions of law only. This court will not reverse a judgment of the District Court that is based upon its conclusion upon a mixed question of law and fact, if the conclusion is legally inferable from the facts proven.</p>

<p>1. The name by which a joint stock association is to be sued is a question of procedure, and is regulated by the law of the forum.</p> <p>2. A joint stock association, existing under the laws of New York, may be sued in our courts by its recognized name, although under the New York Code of Procedure the suit should be brought either against the president or treasurer by name, or against the associates individually.</p> <p>3. Service of the summons in such a case may be made upon an agent of the organization; it is not necessary that he should be the general agent in charge of the whole business of the organization.</p>

<p>1. The general act relating to boroughs (Pamph. L. 1897, p. 285) provides a complete scheme for the government of boroughs and supersedes special charters.</p> <p>2. Boroughs no longer have the power to license inns and taverns, although that power may have been given them by their special charters.</p>

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

<p>1. It is admissible to prove, upon the trial of an indictment, that the accused, when in custody charged, with the crime, attempted to take his own life.</p> <p>2. The review of the refusal of the court to discharge a defendant under trial upon an indictment, or to direct a verdict of not guilty at the close of the state’s case, permitted and required by section 137 of the Criminal Procedure act of 1898, brings into question only whether there were then presented facts proper to he submitted to the jury in respect to the charge contained in the indictment.</p> <p>3. Upon the trial of an indictment for murder, it was not error to charge the jury that willful, deliberate and premeditated killing was murder in the first degree, although no special motive for the killing was shown by the prosecution, and that the state was not otherwise required to prove motive for the killing.</p>

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

<p>Under tlie Mechanics’ Lien act, a lien will not be imposed upon a building unless in connection with some estate or interest in the land on which it is erected. Following Babbitt v. Condon, 3 Dutcher 154; Coddington v. Dry Dock Co., 2 Vroom 477.</p>

<p>1. A person who seeks to recover the compensation, provided by a contract, for services rendered by him in accordance with its terms, must show either performance of the contract on his part or else that his performance was prevented by the willful or fraudulent act of the other party to the contract, in violation of such party’s undertaking.</p> <p>2. Where a person renders services under an express contract, by the terms of which his right to compensation is made dependent upon complete performance on his part, the contract itself furnishes the sole ground of recovery.</p>

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

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

<p>On error to the Supreme Court. The opinion of that court is reported in 39 Vroom 523.</p>

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

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

<p>1. The fact that a witness, when testifying on a former occasion respecting the same interview to which his evidence is now directed, omitted to mention an important incident which he now narrates, may be shown for the purpose of affecting his credibility, notwithstanding any explanation which he may give for the discrepancy, and a judicial instruction to the jury to disregard the discrepancy because of the explanation is erroneous.</p> <p>2. The fact that a witness for the state, who testifies to circumstances tending to convict the defendant, knows that he himself is officially accused of the crime for which the defendant is being tried, may be shown by the defendant for the purpose of affecting the credibility of the witness.</p>

<p>1. It is error to exclude from a jury trial, as immaterial, a letter written by the plaintiff to a third person, which, contains statements inconsistent with the plaintiff’s claim in the suit.</p> <p>2. If bn such a trial the plaintiff has testified on his own, behalf, his letter to a third person manifesting his personal ill-will toward the defendant is admissible evidence for the purpose of affecting his credibility.</p>

<p>On error to Morris Oyer and Terminer.</p>

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

<p>Where lands are devised to A in language indeterminate as to the quantity of the estate, and an express power is at the same time given to A to dispose of the same without qualification, such devise passes the fee to A, and a devise over of what is left at A’s death to B is void. Following Downey v. Borden, 7 Vroom 460,</p>

<p>On error to the Supreme Court. For opinion of Supreme Court, see 41 Troom 625.</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 the Supreme Court.</p>

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

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

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

<p>Defendant contracted with plaintiff, for a sufficient consideration, to furnish the latter with water for fire protection. By the terms of their contract it was agreed that the defendant should not “be liable, under any circumstances, for a deficiency or failure in the supply of water, whether occasioned by shutting off water to make repairs or connections, or for any cause whatsoever." Held, that by force of the last clause of this provision of the contract the defendant was relieved from liability for loss accruing to the plaintiff-from a fire, the destructiveness of which was due to the neglect of the defendant to furnish sufficient water to extinguish it.</p>

<p>A declaration which counts upon the breach of an alleged duty owing by the defendant to the plaintiff, must set forth the facts out of which the duty arises. The mere allegation that such duty exists is not enough. Such an allegation is not the statement of a fact, but of a conclusion of law; and in considering the sufficiency of a declaration, the court does not accept the conclusion of the pleader, but determines for itself the legal force of the facts which the pleading contains.</p>

<p>An employe who, without his master’s authority, creates a dangerous condition in the place in which he is working, assumes the risk which such dangerous condition produces. He has no claim on his master for protection against it, and no right to compensation from the latter for injuries resulting from it.</p>

<p>Plaintiff was a passenger upon one of defendant company’s street cars. He disembarked from that car for the purpose of transferring to another car of the company, a ticket enabling him to do so having been furnished him on. the car upon which he. first took passage. The point at which he alighted was the proper transfer point. After getting' off the first car, and as ho was about to cross over to the other car, or while he was doing so, the car which he had left started to go around a “loop,” and its rear end struck him, knocked him down and injured him. Held, that the question of the negligence of the defendant’s employes and of the contributory negligence of the plaintiff, were for the jury.</p>

<p>In an action based upon a neglect of duty, it is not enough for the plaintiff to show that the defendant neglected to perform a duty, imposed by statute for the benefit of a third person, and that he would not have been injured if the duty had been performed. He must show that the duty was imposed for his benefit, or was one which the defendant owed to him for his protection.</p>

<p>In the prosecution oí criminal offences the state does not assert a private right, or maintain an individual interest, in any such sense as to be affected or bound by hearsay statements of him who has been- the victim or object of the criminal act. There is no such legal identity or privity between the person so situated and the state as to render admissions made by him competent evidence in behalf of the party charged with the commission of the crime.</p>

<p>1. Although a common carrier is bound 1o exercise' a high degree, of care for the safety of its passengers, it is only responsible for injuries resulting from tbe act of a stranger when such act might reasonably have been anticipated by it.</p> <p>2. Notwithstanding that a common carrier may naturally expect that sometimes during the course of its business passengers may be injured by the careless or wanton acts of fellow-passengers or strangers, it is not, on that account, chargeable with responsibility for any specific act so done; to incur such responsibility, reasonable ground to anticipate the occurrence must have existed.</p>

<p>A declaration for deceit in the underletting of leased premises and in the sale of an unexpired term, held to be. bad upon demurrer.</p>

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

<p>When upon the case made by the plaintiff his assumption of the risk that led to his injury appeared, a motion made for a nonsuit upon that ground should be granted.</p>

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

<p>A real estate broker’s commission that has been fully earned under an express contract may be recovered under the common counts, and the contract itself admitted in proof of the particulars of the general right so set up.</p>

<p>Under the Borough act of 1897 (Pamph. L., p. 317), as amended in 1S98 (Pamph. L., p. 356), a borough council resolved that the question of the construction of water works be submitted to the voters. The ballots used' at such election read “for” or “against” “the proposition of construction or purchase of water works.” Held, that the question directed by the council to be submitted to the voters was not submitted to them at such election, and that the ballot, being in the alternative, .rendered the result of the election inconclusive and nugatory.</p>

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

<p>Upon an appeal from, the District Court, the findings of fact of the trial court will not be reviewed if there was any testimony to support them.</p>

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

<p>1. A charge of the court, “Possession of stolen property soon after the theft is prima fade evidence of the guilt of the person in whose possession it is found and throws on the defendant' the burden of explaining that possession, and if it is made and is reasonable, and rebuts the presumption of guilt arising therefrom, then the burden is on the state to prove that it is false,” is erroneous.</p> <p>2. Possession of stolen property soon after the theft is a circumstance for the jury to consider and weigh in connection with the other evidence.</p> <p>3. In criminal cases, the burden is on the state to prove the guilt of the defendant beyond a reasonable doubt, and that burden never shifts.</p> <p>4. If a reasonable doubt of guilt is raised even by inconclusive evidence of the innocent possession of stolen goods, the defendant is entitled to the benefit of it.</p>

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

<p>1. In an action upon a bond, a defence that it was extorted in proceedings which were void for want of jurisdiction, is the subject of a plea in bar, and not of a plea to the jurisdiction.</p> <p>2. A plea to the jurisdiction averring that the cause, of action arose upon navigable waters and is exclusively within the jurisdiction of the courts of the United States, is bad upon demurrer because it fails to show that the waters were navigable waters of the United States as distinguished from navigable waters of the state.</p> <p>3. Such a plea should set forth the facts, so that the court may determine whether the waters are waters of the state or of the United States.</p> <p>4. Upon demurrer to a plea to the jurisdiction, the declaration is not brought in question.</p> <p>5. The judgment upon demurrer to a plea to the jurisdiction, if in favor of the plaintiff, is respondeat ouster.</p>

<p>1. An accident insurance policy, issued for the term of one year, contained a provision that the insurance should apply only to persons over sixteen years of age and under sixty-five years of age. After the decision of this court that it was essential to recovery, under the policy, that the assured should be within the ages stated at the time of the injury, the plaintiff filed an amended declaration averring that the assured, in a written application for the insurance, and in response to an inquiry of defendant, stated that his age was sixty-four years — field, that the count was demurrable, in the absence of an averment that the assured was under sixty-five years of age at the time of the accident.</p> <p>2. An averment that the defendant, after the death of the assured and prior to the .expiration of the year from the issue of the policy, waived the provisions that the insurance should apply only to persons over sixteen years of age and under sixty-five years of age, and ratified and confirmed the policy as a contract of insurance for one year, sets forth a new contract with the present plaintiff instead of with the assured, and in the absence of any averment of a consideration for this new contract, is demurrable.</p> <p>3. The policy provided that “no conditions or provisions shall be waived or altered by anyone unless by written consent of an officer of the company at the home office.” Held, that the provision that the insurance should apply only to persons over sixteen years of age and under sixty-five years of age, could only be waived or altered by written consent, in accordance with the policy.</p>

<p>A declaration which joins in a single count a claim upon contract with a claim in tort, is bad upon general demurrer.</p>

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

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

<p>This court will not, upon a rule to show cause, grant a new trial merely because of a variance between the negligence alleged and the negligence proved, when the variance was not brought to the attention of the trial judge, and might have been cured by an amendment.</p>

<p>1. The rules of church government pertaining to the True Reformed Dutch Church, when interpreted in the light of the history of that denomination, sanction the right of each particular congregation to withdraw from the classis and synod with which it had been connected and become independent, without loss of ecclesiastical or civil function.</p> <p>2. A congregation, which by unanimous vote of its members has thus withdrawn, retains the right of electing its own minister, elders and deacons, who under our statute are the trustees of the civil corporation, and the classis, to which the congregation was previously subordinate, has no power to remove the officers so elected.</p>

<p>If a landlord, who has rented part of his building to a tenant as a dwelling, permits another part to be used for lewd purposes, which render the tenant’s apartments unfit for occupancy by a respectable family, and fails after due notice to put an end to such improper use when he has legal power to do so, and for that reason the tenant moves away, the conduct of the landlord becomes evidence of an eviction in answer to his claim for rent accruing after such removal.</p>

<p>A judgment on bond and warrant of attorney, entered for the amount of the penalty, in accordance with the act concerning obligations (Gen. Stat., p. 2330, § 5), and in pursuance of the express direction. of the warrant, is not illegal, although a part of the real debt had been collected by foreclosure of a mortgage given for the ' same debt and the case was thus brought within the scope of the act of March 12th, 1880. Gen. Stat., p. 2111.</p>

<p>1. If a bond be required by law to be given on the allowance of a certiorari for the protection of the defendant in certiorari in case the proceedings below be affirmed, the court may, in its discretion, deny an application, presented on final hearing, for the dismissal of the writ because such a bond was not given.</p> <p>2. Whatever the style of action, a summary conviction by an inferior magistrate on a penal statute or ordinance cannot be supported, unless a record thereof be made showing all the requisites of a legal trial and conviction.</p>

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

<p>1. Unless the plaintiff in replevin shows a right of possession in himself, a judgment for the defendant is lawful.</p> <p>2. On an appeal from the District Court, only such facts as appear in a case agreed on by the parties or settled and signed by the judge can, according to the act of April 3d, 1902 (Pmnpli. L., p. •105), be considered in this court.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>An electric company, before sending its current for lighting purposes through the apparatus installed in a building by other parties, is bound, on its own responsibility, to make reasonable inspection of the apparatus to see whether it is fit for use.</p>

<p>On certiorari.</p>

<p>1. The affidavit upon which a writ of attachment may lawfully issue without judicial order, under our statute {Pamph. L. 1901, p. 15S), must appear to have been made by “the plaintiff, his agent or attorney.”</p> <p>2. The secretary of a corporate plaintiff is not, by virtue of his office, the agent of the plaintiff, for the purpose of making- such an affidavit.</p>

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

<p>On case certified.</p>

<p>On habeas corpus.</p>

<p>On certiorari.</p>

<p>1. The record of a proceeding in the Recorder’s Court of East Orange for a violation of an ordinance shows simply that at the return of the summons “the defendant, appeared and pleaded guilty, and paid the penalty of $10.” Quwre. Does this record show a conviction of the defendant, or any adjudication by which he is aggrieved?</p> <p>2. A proceeding in the Recorder’s Court of a city incorporated under the act of 1899 (Pamph. L., p. 283), resulting in a conviction of the defendant on his own confession, held reviewable by certiorari, following Watson v. Plainfield, 31 Vroom 203.</p> <p>3. That the judgment was entered in figures and not in words at length, held a mere defect of form, not prejudicial to the defendant, and therefore furnishing no ground for reversal under Pamph. L. 1899, p. 297, § 34.</p> <p>4. Section 44 of the City act of 1899 (Pamph. L., p. 283) declares that no ordinance shall be passed by the city council unless “advertised after introduction at least once in two newspapers for one week prior to final action thereon,” and that no ordinance shall take effect “until five days after it shall have been published in two newspapers.” Held, that the requirement of advertisement after introduction and prior to final action does not prohibit amendments of the ordinance from being made after such advertisement, State v. Council of Newark, 1 Vroom 303, and ‘Athletic Association v. New Brunswick, 26 Id. 279, distinguished.</p> <p>5. Quaere. Where a defendant pleads guilty to a violation of a municipal ordinance, does he not thereby admit the legal adoption of the ordinance ?</p>

<p>Where a statute requires the “unanimous vote of all the members of the council” to pass an ordinance, that does not mean the unanimous vote of a quorum, or of all the members present, but of all the members constituting the whole council.</p>

<p>A payment upon a book account which has never been recognized in its entirety, without proof showing that such payment was made in recognition of the whole claim and as a payment upon account thereof, will not take the unpaid part of the account out of the statute of limitations.</p>

<p>While it is improper to permit jurors to leave the jury room to communicate with their families by telephone without leave of the court, yet where there is no proof that it resulted in subjecting the jury'to improper influence, it is not cause for a new trial.</p>

<p>1. The certificate of a- notary public of the protest, after due presentment and dishonor of a promissory note, is only admissible in evidence as to the facts therein certified, when a copy of such certificate has been annexed to the declaration, demand or other pleading in the cause, pursuant to section 21 of “An act concerning evidence,” revision of .1900; and not then when the opposite party shall give notice with his plea or other 'pleading that he intends to dispute’the fact of due presentment and dishonor..</p> <p>2. But, when such certificate is evidential under the statute, it will not be held sufficient to charge the endorser if it fails to show upon its face that proper presentment was made and due notice . of dishonor given.</p> <p>3. A payment on account of an overdue promissory note by tbe maker thereof will not remove the bar of the statute of limitations in a suit commenced against the endorser within six years after such payment, but more than six years after the liability of the endorser became fixed.</p>

<p>On application for summary determination of the character of certain property assessed in Bayonne.</p>

<p>In an action- for rent reserved under a written lease, parol evidence is inadmissible to show, in contravention of the terms of the lease, that the plaintiff had orally agreed at the time of the execution of the lease to make certain repairs to the demised premises and had failed to do so.</p>

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

<p>1. A mandamus will issue directing- the mayor of a city to sign and seal municipal bonds duly authorized, where, under the municipal ordinance and the city charter he is charged with the duty of signing and sealing such bonds, and where no legal reason or discretionary right for his refusing so to do appears.</p> <p>2. The act entitled “An act respecting the expenditure of money in cities of the second class in this state,” approved March 23d, 1892 (Pamph. L., p. 202), is local and special and unconstitutional under article 4, section 7, paragraph 11.</p>

<p>It would be a good defence, in a suit between the original parties to a promissory note, to prove that the note was obtained by the plaintiff from the defendant by misrepresentations and was without consideration, and it is error for the court, upon such a defence being opened, to overrule it and to direct a verdict for the plaintiff.</p>

On application for a rule to direct the judge of the First District Court of the city of Newark to certify the transcribed stenographic notes of the trial as the state of the case on appeal.

On certiorari. This writ brings up an appointment of commissioners to make an estimate and assessment of damages and the proceedings of the commissioners. The commissioners were appointed by the common council of the city of Camden in the matter of the alteration of the grade of Broadway and Bulson street in said. city.

The following is the state of the case: The plaintiff sues to recover wages as a workman in the bakery of the defendant. Prior to kfay 15th, 1903, the plaintiff was employed by the defendant, at $37 a month, and when he had worked eighteen days on his work there was a strike of the bakers for higher wages, and the plaintiff left the defendant’s employ.

<p>1. The city of Millville had power under an act (Pampli. L. 1888, p. 3GG) to contract with a water company for a supply of water, and to include in the contract an option to acquire the plant of the water company.</p> <p>2. The statute provides that the option shall be for acquiring the land, water and water rights, for such supply on terms to be fixed in said contract. Whether an option to purchase at a sum to be fixed by commissioners, two of which are to be appointed by each party, fixes the terms upon which the plant is to be acquired, quwre.</p> <p>3. The city council resolved to acquire the plant, provided the purchase price should be fixed at a sum agreeable to the city, and appointed two commissioners; the water company, in response to this resolution, also appointed two commissioners. 'Hold, that the water company acceded to the view of the city’s right expressed in the resolution, and so acceded to its construction of the somewhat ambiguous option clause in the contract. The city therefore having the discretion to take or reject the property at the sum fixed by the commissioners, there is no delegation of power to the commissioners, and the resolution is valid against the attack of taxpayers.</p>

This is an appeal from the judgment of the District Court, taken to the Supreme Court under the act of 1902. Pamph. L., p. 565. The state of the case submitted is as follows: The action was brought to recover the amount of commissions or brokerage claimed to be due to the plaintiffs for the sale of the defendant’s farm.

The facts upon which the decision below was made will appear more readily if stated in connection with the following diagram: The plaintiff brought his action against the defendant for trespass upon lot B. The facts, as they appear in the state of the case, are that one Speer owned lots A, B and 0.

<p>On certiorari.</p>

On motion to vacate an order by a Supreme Court justice, which order overruled a motion to set aside the summons and declaration in this case. The facts appear in the opinion of Mr. Justice Swayze, when ordering the order now under review, ante ¶. 271.

This is a writ of certiorari bringing up an order entered in the Mercer county Circuit Court, similar to the one in the case of Saunders v. Adams Express Company.

<p>This is a motion to amend a remittitur from this court to the Circuit, so as to .improve an order that the appellant shall recover his costs, including the costs of printing.</p>

<p>Agency cannot be proved by the declarations of the person whose agency is sought to be established.</p>

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

<p>On error to the Supreme Court. For opinion of that court see ante p. £76.</p>

<p>1. The trial judge, on an indictment for murder, instructed the jury that the right to take life in self-defence rested upon necessity; and that no one was justified in taking the life of another unless the necessity for doing so was apparent as the only means of preventing his own destruction, or of escaping grievous bodily harm. Held, that if, by the use of the word “apparent,” the idea was conveyed to the minds of the jurors that the necessity must actually exist, rather than that it must reasonably appear to exist, and consequently the instruction was not an accurate expression of the abstract rule upon this subject, the inaccuracy could not have been harmful to the prisoner for the reason that the defence set up by him was that he took the life of the deceased in resisting an assault which the latter was committing upon him with a deadly weapon.</p> <p>2. On the trial of an indictment for murder, where the justification is self-defence, it is entirely proper to instruct the jury that the burden is on the accused of proving, to the satisfaction of the jury, a situation and circumstances under, which the right of self-defence might be lawfully exercised, provided they are also instructed that the accused is entitled to the benefit of the reasonable doubt upon the whole case.</p>

<p>1. The presentation to the Court of Common Pleas, by an insolvent debtor, of a petition for discharge, justifies the court in taking cognizance of the matter and proceeding to its hearing and determination ; and the failure to file the petition in the clerk’s ofiice does not invalidate the proceedings.</p> <p>'2. An order discharging an insolvent debtor is invalid unless it provides that he shall first make an assignment of his real and personal estate (with the exception of that which is exempted by the act) ; and this is so notwithstanding that the inventory previously filed by tlie debtor discloses the existence of no estate whatever.</p>

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

<p>1. After verdict, it must be assumed, in the absence of legal evidence to the contrary, that all' claims made in the declaration for consequential damages which are not legally, recoverable, were disallowed at the trial.</p> <p>2. A matter of fact which is improperly assigned for error is not confessed by the common joinder in error.</p> <p>3. If an assignment of error in fact does not conclude with a verification, the assignment is improper.</p> <p>4. If a matter of fact assigned for error contradicts the record, the assignment is improper.</p>

<p>A deed made by the riparian commissioners conveyed land in Atlantic City, below the high-water mark of the Atlantic ocean, “with the right and privilege * * * to exclude the tidewater from so much of the land * * * as lies under water, by filling in or otherwise improving the same, and to appropriate the lands under water to her and their exclusive private uses.” Held, that the assigns of the grantee could maintain ejectment against one who occupied a pier erected upon the land under water. Polhemus v. Bateman, 31 Vroom 1G3, distinguished.</p>

<p>'The plaintiff in his written application to the defendant for a supply of gas in his dwelling, agreed that the defendant’s agents should have free access to the meter at all reasonable hours, and might remove the same, and accordingly the defendant installed its meter in the cellar and supplied gas to the plaintiff. Several gas bills due, from tile plaintiff, being unpaid, the defendant’s agent applied to the plaintiff’s wife, who was in charge of the house, for admission to the cellar, to remove the meter, but she refused. Afterwards, in the daytime, the agent forced the outer door of the cellar, entered and removed the meter, using no more force than was necessary, and causing no disturbance whatever to any person. Held, that this was not a tort against" the plaintiff.</p>

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

On error to the Supreme Court. The writ of certiorari in this ease brought up two resolutions passed by the Passaic Valley Sewerage Commissioners on the 7th day of July, a. d. 1903, one estimating the cost and expense of the whole work to be undertaken, provided and constructed by the said commissioners under and by authority of the law of this state, at the sum of $9,000,000, and another resolution by which the said commissioners provided for an issue of its corporate bonds…

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

<p>On error to the Supreme Court. For opinion, see ante p. 159.</p>

<p>Por the plaintiff in error, George L. Record and Willia-ñi II. Speer.</p>

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

<p>A condition in a policy of title insurance that “no claim shall arise under the policy unless the party insured has been actually evicted under an adverse title insured against” is not fulfilled so as to give a right of action by the insured, by an adjudication on appeal that an order and decree of an Orphans’ Court confirming the terms of a sale made by an administrator de bonis non oum testamento mnesso of the lands in question and authorizing a deed therefor, to the plaintiffs, should be annulled, reversed, and for nothing holden.</p>

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

<p>1. Upon a review of the evidence returned with the bills of exceptions herein — Held, that there was evidence to show want of probable cause for the charge of larceny preferred by the defendant against the plaintiff.</p> <p>2. The question whether in an action for malicious prosecution, the facts being in dispute, the existence of probable cause is for the decision of the court or the jury, is not passed upon, the question not having been raised in the trial court.</p> <p>3. Malice in the law is the intentional doing of a wrongful act, without just cause or excuse. A sworn accusation of larceny, made as the basis of a criminal prosecution, is justified if the party accused be found guilty. It is excused if probable cause exist for the accusation, although acquittal follow. In the absence of either guilt or probable cause to charge guilt, such an accusation is wrongful, and if intentionally made, it may reasonably be found to be malicious.</p>

<p>A municipal corporation cannot be held bound by either an express or an implied contract in defiance of express restrictions imposed by law as limitations upon the powers of the corporate agents through whose instrumentality the contract is sought to be derived.</p>

<p>1. One of the plaintiffs entered the ferry-house of the Philadelphia and Camden Ferry Company at Philadelphia, intending to purchase a ferry ticket of the company; she had at the time a railroad ticket of the defendant which entitled her to transportation from Philadelphia to Woodbury, including the ferriage from Philadelphia to Camden; she was injured in the ferry-house at Philadelphia while on her way to the ticket office of the ferry company; she used a ferry ticket to pay her fare across the river, left the station and went to a point in Camden on a business errand, in pursuance of her intention, before the injury was received ; she returned to her home by the street railway; the railroad ticket was afterwards used by her husband; she, however, testified at the trial that she intended to use the railroad ticket in order to cross the ferry. Held, that she was not a passenger of the railroad company at the time of the injury.</p> <p>2. The porter, whose negligence is said to have caused the plaintiff’s injury, testified that he was paid by the check of the defendant, but immediately added that he forgot whether it was the railroad or not; there was positive testimony, which was sustained by circumstances, that he was an employe of the ferry company. Held, that his testimony that he was paid by the railroad company was too uncertain to justify the conclusion that he was an employe of the railroad company.</p>

<p>A passenger in a car of the defendant was injured by a collision between the car aiid a wagon. There was evidence from which the jury might infer that the accident was caused by the hind wheel of the wagon “slewing” toward the car while the driver was-crossing from the westbound to the eastbound track, and that a wagon wheel getting in the guard rail would naturally follow over toward the track upon which the car was traveling, and that this result would follow nine times out of ten with a wagon driven in this direction. Sold, that it was a question for the jury, whether the motorman, in the exercise of reasonable care, ought not to have anticipated the danger of the wagon veering toward the westbound track and colliding with the car.</p>

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

On error to the Supreme Court. On May 8th, 1900, Charles Eerguson, a locomotive fireman, while engaged in the performance of his duties upon the engine of the Central Railroad Company of New Jersey (running upon the roadbed of the Philadelphia and Reading Railway Company), was, by its sudden derailment, thrown underneath it and killed.

On error to the Middlesex Circuit Court. These suits were tried together at the Circuit. In the first the plaintiff souglit to recover damages for injuries alleged to have been sustained by him by reason of the negligence of the Middlesex and Somerset Traction Company, and in the second the plaintiff, the mother of said Norman, sought to recover for the loss of earnings in consequence of the same injury.

On error to the Circuit Court of Atlantic county. An action ex contractu was instituted by the plaintiff below against the defendant below in the Circuit Court in and for the county of Atlantic.' The plaintiff declared upon a sealed bill, bearing date of the 12th day of October, a. d. 1897, made by the defendant, sealed with his seal, and delivered to the plaintiff, whereby he undertook and promised to pa3r, upon demand, to her or to her order, the sum of $2,000.

<p>On error to the Supreme Court. For opinion of Supreme Court, see 40 Vroom 460.</p>

<p>In an action for lumber sold tbe contention of the plaintiff was that its undertaking, if any liad been proved, was a collateral one to the undertaking of two persons to whom the lumber had been delivered, and to whom it had been charged in plaintiff’s books of account, and that as its undertaking was not in writing it was void by the statute of frauds. Held, that whether the defendant’s undertaking was original or collateral was a question to-be submitted to the jury.</p>

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

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

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

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