Volume 77 — New Jersey Law Reports

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

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

<p>Chapter 13 of the laws of 1905, entitled “An act concerning the filling of vacancies in elective offices in towns, and in cities of the third class,” requires that a vacancy which occurs in the common council or other governing body of a municipality of either of the classes designated, shall be filled by the voters of the municipality when the vacancy occurs before the holding of the primary election in the municipality. When, however, (he vacancy occurs after the holding of the primary election the statute requires it to be filled by the governing body itself.</p>

<p>1. One who enters into a written contract, without fraud rr imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.</p> <p>2. A release, under seal, of a claim for personal injuries, is a bur to an action for such injuries, unless obtained by fraud or deceit.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The provision oí the Conditional Sales act of 1889 (p. 421), touching the rights of purchasers in good faith is not affected by section 71 of “An act respecting conveyances” (Revision of 1898), (Pamph. L., p. 670), nor is such Conditional Sales act repealed by “An act to repeal sundry acts respecting conveyances” (Pamph. L. 1898, p. 711), for the reason that in neither case is such object expressed in the title of such later act.</p>

<p>Section 45 of the Inns and Taverns act (Gen. Stat., p. 1794), which provides that the signers of a recommendation for a license shall not have recommended another application in the same township, city or borough for the same year, is a subsisting and paramount regulation of the subject that is unaffected by “An act to establish an excise department in cities of this state” (Pamph. L. 1902, p. 028), or by the creation of the administrative tribunals contemplated by that act, and that is unrepealed and irrepealable by the legislative acts of such bodies.</p>

<p>Section 7 of the act to regulate the ascertainment and payment of compensation for property condemned or taken for public use (Pamph. L. 1900, p. 79), does not authorize a separate action at law by a lessee for the value of his estate.</p>

<p>1. The title of the supplement of 1901 to “An act respecting any execution” (Pamph. L. 1901, p. 372), sufficiently indicates that the act is applicable to District Court executions.</p> <p>2. Examinations in supplemental proceedings may be taken before Supreme Court examiners.</p> <p>3. An order under the act of 1901 (Pamph. L., p. 372), directing a defendant to pay a certain sum weekly out of his earnings, may be made as soon as the examination in supplemental proceedings has been returned to the judge, and before the same is filed with the clerk.</p> <p>4. It is not necessary that the deposition of the judgment debtor taken in supplemental proceedings be actually signed by him.</p> <p>5. An order was made in supplemental proceedings requiring a judgment debtor to pay $30 monthly; he was at the time earning $150 a month ; subsequently his income became reduced to not more than $16 a week—Held, that under the changed circumstances he should not be adjudged guilty of contempt of court for failure to obey the original order.</p>

<p>1. The term of a county officer who is chosen by the board of chosen freeholders to fill a vacancy is, under the act of 1900 {Pamph. L, p. 168), coterminous with the term of the board of freeholders.</p> <p>2. Section 2 of the Civil Service act of 1908 {Pamph, L, p. 235) refers only to officers whose term was not previously fixed by law.</p> <p>3. The classified service under the Civil Service act of 1908 {Pamph. h, p. 235) does not include officials with a fixed statutory term who are appointed by the board of chosen freeholders of a county.</p>

<p>On certiorari.</p>

<p>The term of office of the deputy receiver of taxes of the city of Trenton is a term fixed by law. and is coterminous with the term of the receiver, whose deputy he is.</p>

<p>1. Where a bond and warrant of attorney to confess judgment is given to secure the payment of a sum of money at such times, in such places and in such installments.as may be required by the constitution, by-laws and regulations of a building and loan association, with the provision that upon default the whole may become immediately due at the option of the obligee, judgment may lie entered upon the bond and warrant, notwithstanding no definite date of payment is mentioned in the bond.</p> <p>2. Where a bond and mortgage are given for the same indebtedness and a decree is had in favor of the mortgagee and obligee upon a bill to foreclose the mortgage, that decree is conclusive in an action brought upon the bond for the deficiency, as to any defence that was available in the foreclosure suit.</p>

<p>1. A lease of a bedroom does not carry with it, as a necessary incident, a right to a supply of water.</p> <p>2. Where a landlord demises a bedroom, and permits the tenant to obtain water from other rooms in the house, such permission is a mere revocable license, and vests no legal right.</p>

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

<p>On rule upon the plaintiff to show cause why a new trial should not be granted.</p>

On demurrer to an information praying for process of law against Edward S. Lee to answer by what warrant he claims to hold the office of county clerk of the county of Atlantic.

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

<p>On certiorari.</p>

<p>1. An indictment for the violation of Pamph. L. 1905, p. 224, § 2, which act makes a person who shall willfully counsel, procure or abet the registering of the name of any person on the registry list of an election district, knowing that such person is not entitled to vote therein, guilty of a misdemeanor, w'hich indictment states the number of the district and the ward within which it lies, sufficiently shows that the district is a legally constituted election district.</p> <p>2. Such an indictment is not required to allege that the false registration was made with intent to vote at the general election, as such intention is not a part of the defined statutory offence.</p> <p>3. This statute includes the persuading of a voter to personate another voter or to do any act which may result in the registration of the name of a person not entitled to vote.</p> <p>4. There may be a joint counseling, procuring or abetting the false registration of a person, for which more than one person may be jointly convicted.</p>

On application for a writ of certiorari to bring into this court an indictment found by the Essex county grand jury against several defendants for conspiracy.

<p>1. If a resolution passed at a meeting of the board of directors of a corporation was correctly recorded, then the minutes afford the best evidence as to the contents of the resolution, and none other will be received when the minutes are at hand ; if the correctness of the minutes is to be attacked it is necessary first to offer them for that purpose.</p> <p>2. A resolution of a board of directors of a land company authorizing an agent to execute on behalf of the company agreements for the sale of its property does not empower the agent to make a contract which is not for the sale of property, and is entirely outside of the ordinary course of its business.</p> <p>3. Where, by the presumption of law, a contract is in the hands of the adverse party, secondary evidence as to its contents will not be received in the absence of any demand upon the adverse party to produce the original.</p> <p>4. The non-production, under demand, of a contract, the existence of which was denied, will not justify proof of its contents by secondary evidence, without first proving its existence and due execution.</p>

<p>In an action for libel, where the defamatory matter is general in its nature, a plea of justification must state specific facts showing in what instances and in what exact manner the plaintiff has misconducted himself or has done the things charged against him.</p>

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

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

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

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

<p>By the act of March 28th, 1891 {Gen. Stat., p. 465), as amended by the act of April 22d, 1897 {Pamph. L., p. 248), the power to pass an ordinance granting to a corporation the right to open the streets of the city of Newark, and to lay therein conduits for the distribution of electricity, and to use such streets for such purposes, is lodged solely in the board of street and water commissioners of that city.</p>

<p>On error to the Atlantic Quarter Sessions Court.</p>

<p>The fact that plaintiff’s wagon wheel caught in a switch device, whereby plaintiff was thrown and injured, will not ipso facto furnish the basis for a verdict against defendant, where the latter presented uncontradicted exculpatory proof that the switch was of standard pattern and in general use and that it was properly laid and inspected.</p>

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

<p>Upon proof of slight inconvenience only, and without any proof of substantial damage to plaintiff in the use of a right of way, a verdict for $400 is set aside.</p>

<p>Defendants entered into a written agreement with plaintiff wherein they agreed to incorporate as L. Sternberg & Company, upon the strength of which plaintiff contributed $1,500 to defendants. The corporation was never formed, and in a suit by plaintiff to recover the amount paid—Held, that the consideration having failed the defendants were liable under the agreement as joint contractors in an action of assumpsit.</p>

<p>The finding of the Circuit Court upon the facts in a contested election case is binding upon this court under the provisions of the Election act of 1898 (Pamph. L„ p. 237), if there be any evidence to support such finding.</p>

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

<p>The defendant was indicted for keeping a disorderly house, and upon the trial proof was admitted of specific acts of immorality committed elsewhere by women who obtained admission to defendant’s public house. Held, the testimony was inadmissible to establish the general reputation of the women.</p>

<p>Where a platform between the sidewalk of a public street and a store became suddenly out of repair, such store being occupied by a tenant, and a person passing over such platform in order to enter the store was injured—Held, in a suit against the owner of the premises for such injury that in the absence of a right reserved to the landlord to re-enter the demised premises for the purpose of repairing them, the tenant will be deemed to be chargeable with the duty of making such repairs.</p>

<p>1. In the taxation of trust companies under section 18 of the act of 1903 (Pamph. L., p. 394) the full amount of capital and accumulated surplus must be ascertained by deducting from the gross assets at their true value the liabilities and debts of the company.</p> <p>2. From the full amount of capital and accumulated surplus of trust companies thus ascertained, the true value of all assets by law exempt from taxation is to be deducted ; the balance thus ascertained is the amount upon which the tax is to be assessed, less the amount of the assessment upon their real estate.</p>

<p>In an action by a husband for the alienation of his wife’s affections, his consent to the acts constituting- and contributing to the injury is a bar to recovery.</p>

<p>1. In an action for malicious prosecution, the court having instructed the jury that there was no malice, left the question of lack of probable cause to the jury. Held, error, because both malice and want of probable cause are essential to support the action;</p> <p>2. Want of probable cause being merely evidence of malice, not malice itself, the jury must find the existence of malice to support a judgment for the plaintiff.</p>

<p>Where a fine and costs had been imposed on a conviction under “An act for the prevention of cruelty to animals,” approved March 11th, 1880, and the supplements thereto {Gen. Stat., p. 32), instituted by the society for the prevention of cruelty to animals and an informer, and had been paid to the justice of the peace before whom such conviction was had—Held, upon reversal of such conviction that a writ of restitution would issue against the district society and the informer requiring each to restore a moiety of such fine and to repay the original costs of prosecution collectively.</p>

<p>1. The values of property and securities contained in the sworn statement made by the president of a trust company showing its capital stock and accumulated surplus, and the values of the securities exempt from taxation, submitted to a tax assessor, are not binding upon the assessor in making an assessment for taxes against such company.</p> <p>2. In the absence of evidence to the contrary the presumption is that the county board of taxation in revising and correcting the tax lists and duplicates, and in increasing or decreasing the assessed value of any property pursuant to section 4 of a supplement to “An act for the assessment of taxes” {Pamph. L. 1906, p. 210), acted properly and upon due proof. The burden of proving facts to decrease such assessment rests upon the taxpayer.</p>

On rule to show cause why a writ of mandamus should not issue. The facts established by the proofs taken under this rule are: That the relator, on November 19th, 1907, instituted an action in the Essex County Circuit Court against the board of chosen freeholders of the county of Essex, by the issue of a summons on that day returnable December 6th, 1907. Declaration was attached to and served with the summons November 30th, 1907.

<p>1. Where injury is caused to a servant from the operation of a danger'ous machine, such danger being obvious, a cause of action by the servant against the master cannot be grounded upon the negligence of the master in failing to warn such servant of the danger or to give him instructions regarding the machine, because in such case both servant and master have equal means of forming a correct judgment of the danger.</p> <p>2. The inexperience of a servant must come either actually or by inference to the knowledge of the master, to charge the master with the duty of warning the servant, and then it becomes the duty of the master to warn the servant against such dangers as the servant is not reasonably expected to know and such as are not obvious to him.</p>

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

<p>On certiorari.</p>

<p>In an indictment charging á conspiracy to procure illegally and fraudulently votes at a primary election, the allegation was that such primary election was held by a “certain political party of this state, to wit, the Democratic party.” Held, that the indictment is defective in failing to define the political party in the language of the statute, as one which had at an election for members of the general assembly next preceding the holding of the primary, polled for members to the general assembly at least five per cent, of the whole number of votes cast in the district in which and for which the nominations were made.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>The application for, and acceptance of, a rule to show cause why a new trial should not be allowed by one holding a bill of exceptions, is a waiver of all exceptions not expressly reserved.</p>

<p>The unexplained presence on a public highway of a team of runaway horses harnessed to a wagon, unattended by the owner or other person, raises a presumption of negligent management on the part of the owner, and if they collide with another vehicle on the street because they were not under proper control, the owner will be liable for damages resulting therefrom.</p>

<p>The defendant, charged with the duty of repairing a highway bridge, being notified that it was out of repair and unsafe, undertook to repair the same, and in doing it used a part of the old planking which was worn at the edges, replacing them with the worn side down, so that w'hile the flooring presented a smooth surface, the planking was thin at the point where the worn edges were joined. The plaintiffs’ horse, while being driven over the bridge, stepped upon one of the thin edges of the old planking which gave way, causing the horse’s foot to pass through the broken portion, in consequence of which the plaintiff was injured. Helé, that it was a jury question whether replacing the worn plank with the thin edges joined together, which afterward gave way under ordinary and intended use, was a wrongful neglect in making the repairs.</p>

<p>If a person approaching a street crossing, being warned of the coming of an automobile, looks and sees the machine coming towards the crossing, not more than one hundred and thirty feet away, and thereupon proceeds to cross the street in front of it without again looking or paying any attention to the approaching vehicle, he is guilty of contributory negligence, and cannot recover for injuries caused by a collision with the machine, for being warned, and seeing the machine coming towards the crossing he intends to pass over, it is his duty to sufficiently observe the position of the automobile to avoid a collision if possible.</p>

<p>1. A judgment of nonsuit will not be set aside when it appears that the plaintiff could not recover without such an amendment of the pleadings as would create and institute a new suit with a new question in a controversy between different parties.</p> <p>2. A suit instituted in New Jersey by the administratrix of a deceased person, for damages under the Death act, when the death charged to the negligence of the defendant happened in the State of Pennsylvania, where the only person entitled to prosecute an action for such damages is the widow of the deceased, cannot be maintained by such administratrix in the courts of this state, nor will an amendment of the summons and declaration be allowed, the effect of which is to make the widow of the deceased the plaintiff in the place of the personal representative who instituted the suit.</p>

<p>The action of the county board of taxation in increasing or decreasing the assessed value of property, which, in their judgment, is not truly valued, as authorized by the statute of 1906 (Pamph. L., p. 210), is not reviewable on certiorari unless the board violates some legal principle in adjusting the value of real estate subject to taxation.</p>

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

<p>A drum, part of a laundry mangle, was revolving rapidly towards a rigid rod which extended across the machine parallel with, and about one inch from, the drum. The plaintiff was employed as a laundress in which service -it was her duty to see that the machine was supplied with the materials to be laundered. The drum was carrying a fabric towards the rod, between which and the drum it was passing, and the plaintiff placed her hand upon the drum in trying to remove a fold in the fabric. The rapid motion of the drum carried plaintiff’s hand to and under the rod, causing the injury for which suit was brought. The machine was not defective, and the plaintiff, having worked with mangles of similar character, was familiar with the construction and operation of the machine causing the injury. Held, that the danger of having her hand drawn under the rod, if she put it on the revolving drum, was an obvious one, the risk of which plaintiff liad assumed.</p>

<p>On quo warranto. On demurrer to information.</p>

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

<p>1. Books of account made up in the usual course of business in part from written reports of work done and materials used are competent evidence with or without the reports themselves in an action based on a claim for such labor and materials.</p> <p>2. Evidence of admissions or declarations by an employe of one of the parties was properly overruled, it not being made to appear that the making of such statements was within the scope of such employe’s employment.</p> <p>3. An expression of opinion by the court in charging the jury, that some value had been received by defendant for work done by plaintiffs—Held, mere comment, in view of an instruction that it was for the jury to say whether any service had been performed by plaintiffs for defendant which was worthy of pay, and therefore not prejudicial.</p>

<p>1. If a party to a cause is asserting a legal right in a lawful manner his motives and the underlying reasons for his action are immaterial in law.</p> <p>2. The by-law adopted by the board of street and water commissioners of the city of Newark, pursuant to legislative authority, which by-law requires advertisement between first and second readings of ordinances not based on “notice of intention,” could not, at the time of action by the said board on the ordinance brought up in this case, be suspended so as to render advertisement unnecessary and permit the introduction and passage of the ordinance at the same meeting.</p>

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

<p>Section 13 of “An act concerning the commitment of insane persons into institutions for the care and treatment of the insane in this state, their confinement therein and their support while so confined,” provides that “if any person in confinement under commitment, indictment or sentence or .under any other process, shall appear to be insane,” a judicial inquiry shall be had, and, if insanity be found, such person shall be committed to an asylum until restored to reason, &c. Held, that in the case of one convicted of murder in the first degree and sentenced to death, the statute does not alter the common-law rule that to prevent the execution of such sentences the insanity must be of such character as to render the prisoner incapable of understanding the nature of the proceedings against him, and his impending fate and execution.</p>

<p>Chapter 52 of the laws of 1885 (Pamph. L., p. 61) provides “that whenever any person, firm or corporation shall, subsequently to the time fixed by law for the completion of the annual valuation and assessment for local taxes in any taxing district in this state, bring or send into such taxing district any stock of goods or merchandise to be sold or disposed of in a place of business temporarily occupied for their sale, without the intention of engaging in permanent trade in such place,” such stock shall be taxed at the general rate for the current year. Held, that the words “in such place” must be construed as referring to the “place of business,” and that when so construed the statute creates an unsubstantial and illusory classification of property for taxation and is therefore unconstitutional.</p>

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

<p>1. To hold one liable as master for injury to another claiming to have been his servant, the relation of master and servant must be shown to have existed.</p> <p>2. If the employment is claimed to have been effected through an intermediary, the authority of such intermediary as representing the master should appear, and cannot be inferred from evidence of his own statements.</p>

<p>On certiorari.</p>

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

<p>On error to Morris County Circuit Court.</p>

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

<p>Where a body of land is separated into several parcels by the condemnation of strips of land through it, and a portion of one of such parcels is subsequently condemned, the compensation for such portion is the value of the land taken and the damage done by such taking to the remainder of such parcel.</p>

<p>1. Where a foreman in charge of the work of repairing switches in a railroad yard is charged with the duty of warning those who are at work under him of the approach of locomotives to a switch which is being repaired, his failure to give such warning is imputable to the common master.</p> <p>2. Where a workman in the discharge of his duty has placed himself in a position of probable danger, relying upon receiving timely warning before the danger becomes actual, and he is injured because no warning is given, the question whether he is guilty of contributory negligence is for the jury.</p>

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

<p>On error to Mercer County Quarter Sessions.</p>

<p>The act of May 17th, 1906, entitled “An act for the protection and enforcement of the rights of married women,” creates no new rights in favor of married women—imposes no new liabilities against third persons for their benefit.</p>

<p>The taking in this state of applications for advertising space that do not become contracts until accepted by the officers of a Pennsylvania corporation in that state, which contracts are performed by the insertion of the advertisement in a book made and published in Pennsylvania, is not the transaction of business in this state within the prohibition of section 97 of our Corporation act.</p>

<p>Application for certiorari.</p>

In the brief of appellant the case made by the plaintiff in the District Court is thus stated : “The plaintiff was driving up-hill with a load of flagstones. The hill was slippery and the horses slipped. The wagon was partly in the ear track and partly out of it, A car came along behind the wagon and had to stop because the wagon blocked its progress.

<p>The immunity from condemnation accorded to lands held by any municipality for the purposes of a water-supply under the seventieth section of the Borough act (Pamph. L. 1897, p. 319) is not created by the mere execution and delivery of a deed of lands to a municipality for such uses and the acceptance of the same by the common council of such municipality.</p>

<p>A driver looked in each direction before crossing railroad tracks laid in a city street, and observing an engine apparently pushing a train away from the crossing drove over the tracks. The engine which was in fact running backwards towards the crossing on the “wrong track” pulling the train after it struck and killed the plaintiff's horse. Held, that whether or not the driver had exercised reasonable care was for the jury.</p>

On application for a mandamus to compel the Circuit Court of Middlesex county to reform the record of a judgment by striking out of a declaration two counts in tort and changing the remaining count from tort to contract. The judgment in question was entered in an action brought in 1906, in which the plaintiff’s declaration contained three counts, all apparently in tort.

<p>A railroad’s right of way is regarded, for purposes of assessment for benefits, as land permanently devoted to public uses, hence benefit to the land in such use, not the enhancement of its market value, is the proper basis of its assessment. Where no such benefit accrues no assessment can be imposed.</p>

On appeal. The agreed state of the case is as follows: This action was brought upon two promissory notes, copies of which are as follows: “$200.00. TRENTON, N. J., Nov. 20th, 1903. “Sixty days after date I promise to pay to the order of Irwin P. Wolfinger Two hundred dollars at First National Bank Trenton, N. J. Value received. (Signed) “James Wilkie.” Endorsed “Irwin P. Wolfinger, R. S. Woodruff.” Also “Protest waived 1. 19. 1904, R. S. Woodruff.” “'$50.00.

<p>On demurrer to a replication. Case certified.</p>

<p>On error to Morris Common Pleas.</p>

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

<p>On application for a peremptory writ of mandamus.</p>

<p>Certiorari is not the proper remedy to review a resolution o£ a private corporation removing its president from office, or proceedings to reinstate or re-elect directors who had resigned, in a case where mandamus or quo icarranto are available remedies.</p>

On error to Middlesex Sessions. The defendant was convicted upon an indictment the first count of which charged that he, being the bailee and agent of John Kmonezky, was entrusted by said Kmonezky with the care of the sum of $80, the property of Kmonezky, as such bailee and agent, and having said moneys in his possession, fraudulently took and converted the same to his own use, with intent to defraud Kmonezky.

<p>Upon an indictment for manslaughter it was sought to hold the defendants for the common-law crime, without regard to the act of 1901 (Pamph. L., p. 276), upon proof of failure to provide medical attendance for a child seven years of age. Held, it was erroneous to charge that as it had been proven that the defendants did provide medical attendance, the jury must consider whether they provided this aid with the same diligence that a reasonable and prudent person would have done; and in this case negligence, if it exists at all, is the failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances justly demanded —failure to do what a reasonable and prudent person would have done.</p>

On demurrer to the first and third counts of a declaration, and on a motion to strike out the second count. The argument of the demurrer and the motion heard together.

<p>1. A police justice of the city of Trenton has jurisdiction to try persons charged on oath with violating an ordinance of the board of excise commissioners of that city.</p> <p>2. A police justice holuing a municipal court can take judicial notice of the ordinance passed by the common council creating the board of excise commissioners.</p> <p>3. Testimony by a witness who styled himself the assistant clerk of the board of excise—the clerk of that board being the city clerk and the witness his assistant—that a book he produces is the book containing all the ordinances of the board of excise, and that the clerk is the custodian of the book, was sufficient prima facie proof of the ordinances contained in the book.</p> <p>4. There being an office of police justice, and a person sitting as police justice, a judgment rendered by such officer cannot be challenged on the ground that it was not proved that the common council had assigned him to hold court at the time of trial, or had fixed his term of office.</p>

<p>1. A trolley car on a dark night was, by reason of the trolley pole leaving the wire, left standing unlighted, and while so standing another car, running in the same direction, on the same track, collided with it, and by force of the impact the front platform of the rear car was crushed, and the motorman standing upon it was killed. The testimony was such that the jury could draw the conclusion that the crushed platform was old and rotten, and had been imperfectly inspected. In an action by the administratrix of the deceased—Held, that the trolley company was responsible for the death of the motorman, if caused by the negligence of the company in failing to take reasonable care to maintain the platform in a safe condition.</p> <p>2. The trial judge was asked to charge that the proximate cause of the injury to the deceased was not the giving way of the platform, but was the running of the rear car into the front car. The court refused to so charge, but charged that if the platform was not defective at all, or, if defective, did not bring about or contribute to bring about the death of the deceased, the jury should find for the defendant.</p> <p>3. There was no error in the charge or refusal to charge.</p>

This writ brings up the refusal of the judge of the Mercer County Court of Common Pleas to institute an inquiry respecting the insanity of one Archibald Herron, who is confined in the state prison at Trenton, awaiting execution under a sentence of death pronounced by the Court of Oyer and Terminer of Middlesex county.

<p>1. A to whom a piano was delivered by B gave B a certificate that he, A, had hired from B a piano of the value of $290 for which A -agreed to pay $50 down and to pay the balance in installments of $7 per month, and that the agreement was to be a hiring contract only until A paid for the instrument in full and B gave him a receipted bill therefor ; that the instrument was to remain the property of B, and that upon due payment in full as aforesaid within thirty-four months from date of agreement, B would sell the instrument to A for the said price and give a receipted bill therefor. Held, that this paper amounted to a conditional sale of the instrument.</p> <p>2. Before this agreement was recorded the vendee, although in default in his payment to the vendor, sold the instrument to a purchaser in good faith. Held, that by such sale title passed to the purchaser, and the condition that the ownership should remain in the vendor until the instrument was paid for was void under the statute. Pamph. L. 1889, p. 421.</p>

This is an appeal from a judgment of the District Court. The action was brought for an amount alleged to be due to a materialman, under a stop notice served under the provisions of the Mechanics’ Lien act.

<p>On writ of error to Essex Quarter Sessions.</p>

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

<p>An application for a new trial on the ground of newly-discovered evidence will be granted when it appears that testimony has in fact been discovered since the former trial, which, by the use of reasonable diligence, could not then have been obtained, and that such testimony is material to the issue, goes to the merits of the case, and is not cumulative.</p>

<p>1. It is not negligence per se for a passenger to ride on the step of a platform of a street car, with the knowledge and consent of the agents in charge thereof, when it appears that there was no room in the car nor on the platform.</p> <p>2. A verdict on conflicting evidence will not be set aside unless clearly against the weight of the evidence.</p> <p>3. A court will not set aside a verdict as excessive unless it is perfectly plain that it is so.</p>

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

<p>1. On the trial of an indictment for abortion, evidence of the physical condition of the woman at a time some ten days subsequent to the time when it is alleged the operation was performed is admissible.</p> <p>2. When the trial court overrules a question upon objection which is intended to adduce certain evidence, if immediately prior thereto, from the same witness, the party has had the benefit of the same evidence in answer to a similar question, he will not be heard to complain of the error in overruling the question, because he is not at all prejudiced by the error if it existed.</p>

<p>On error to the Mercer County Quarter Sessions Court.</p>

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

<p>Under a municipal ordinance approved on June 8th, 1908, requiring payment oí certain license fees on or before June 1st of each year, such fees are not enforceable until June 1st, 1909,- though the ordinance prescribed that it should be operative “on and after June 1st, 1908.”</p>

<p>A master who has furnished safe tools and appliances for the doing of a particular work is not responsible for injury to his servant resulting from the use of a defective or insufficient appliance selected by and used under the direction of the immediate foreman of the injured servant.</p>

<p>In proceedings under the act for the relief of persons imprisoned on civil process (Gen. Stat., p. 1726), when the debtor has filed the statutory declaration required by section 14, the creditor or creditors must plead thereto within twenty days after such filing, and the court has no power to extend the time to plead or to recognize a plea filed out of time.</p>

<p>1. In order to sustain an assessment for benefits arising out of a street improvement, it must affirmatively appear that the assessment is not in excess of the benefits conferred upon the land.</p> <p>2. So much of placitum 7 of section 2 of “An act to authorize cities to construct sewers and drains and to provide for payment of the cost thereof,” approved March 8th, 1882 (Pamph. L., p. 60), as forbids the allowance of a certiorari to review assessments made under said act after thirty days from the making of the order of the court confirming such assessments, is repealed by chapter 58 of the laws of 1907. Pamph. L., p. 109.</p>

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

<p>1. A notice in unlawful detainer proceedings, demanding possession of the whole premises claimed, or in the alternative of claimants being found not entitled thereto, then of two-thirds thereof, is not sufficient to support subsequent proceedings in which only two-thirds are claimed, as such notice, if valid at all, is good only as a demand for the whole until such demand is adversely adjudicated.</p> <p>2. When the complaint in unlawful detainer sets up a claim to possession of an undivided two-thirds, a judgment for possession of the whole is bad.</p>

<p>On certiorari.</p>

<p>Plaintiff driving his automobile and about to cross a street car track, observed a trolley car one hundred and fifty feet away and moving at slow speed. He was himself about twenty feet from the track at the time, and judging that he would have suflicient time to cross in front of the car and that the latter would, if necessary, check its speed to enable him to do so, he undertook to cross and was struck by the car which had increased its speed meanwhile. Held, that the question of contributory negligence on the part of the plaintiff was one of fact, which, having been settled by a District Court judge, sitting without a jury, in his favor, was not the subject of appeal.</p>

<p>The assignment of a police officer to the duties of a higher rank does not entitle him to the pay of that rank, nor, in the absence of a legal contract or an enabling statute, to any extra pay for the increased responsibility and duties of such assignment.</p>

<p>On certiorari.</p>

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

<p>So much of section 3 of “An act to provide for the establishment of public playgrounds in cities of this state and for the maintenance, control and management thereof" (Pamph. L. 1007. p. 279, as amended in Pamph. L. 1008. p. 163), as purports to authorize permits for the use of playgrounds having at least five acres area for outdoor exhibitions, &c.. upon such terms as the board of playground commissioners deems proper, including the permit to charge an admission fee, is unconstitutional, both as establishing an illusory classification and as authorizing the gift of municipal property in aid of individuals or associations.</p>

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

<p>In an action for damages to a building, if the injury is so slight that it can be restored to its original condition at a less cost than the amount of the depreciation in the value of the property would be if no repairs were made, and where the repairs will not enhance the value of the property beyond that it possessed at the time of the injury, the cost of restoring the house to the condition in which it was before the injury is the measure of the damages.</p>

<p>Plaintiff was a member of a trade union from which he was suspended and a fine imposed of $100 by a local council of the organization. He refused to pay the fine, and the defendants, members of the local council, thereupon induced his employers to discharge him, to recover damages for which plaintiff brought suit against them. During the pendency of this suit plaintiff appealed, from the order suspending and fining him, to the national association of the order, by which tribunal the order was revoked and plaintiff restored to his membership. Held, that the taking of the appeal from the order did not amount to a waiver by the plaintiff of his right to damages resulting from the illegal acts of the defendants in procuring his discharge from employment.</p>

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

<p>Plaintiff, as a member of the police department of Jersey City, was serving as detective sergeant, from which position he was removed and assigned to duty as a patrolman, the salary of the latter position being less than that of the former. He served as patrolman and was paid the compensation incident to that office, and it being determined, in proceedings instituted by the plaintiff for that purpose, that his transfer from one position to another in the same department of the public service at a lower salary was unlawful, he brought suit to recover the salary incident to his former position for the period of time he served as patrolman. Held, that the money paid him by the city for services as patrolman was properly credited against the amount sought to be recovered.</p>

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

<p>A tenant may surrender a lease by parol, and after he has surrendered it can have no right of possession or entry under it. Evidence of such surrender does not contradict the lease; it admits its existence, but undertakes to avoid its operation by subsequent matters, and in an action of forcible entry and de-tainer, the overruling of parol evidence tending to show that a tenant had surrendered his lease and possession thereunder to his landlord is a legal error.</p>

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

<p>1. Defendant’s wife made a contract with the plaintiff for the performance of certain work. No express contract was made by the husband, but it was insisted that the contract was made by the wife as agent for her husband, and that he had ratified the contract of his agent, because, at one time while the work was in progress, he said to the plaintiff, “My wife is boss. Anything as far as the wife goes that’s all right. You will get your money.” Held, that this statement did not show a ratification by the defendant of a contract made by the wife for him as his agent.</p> <p>2. Where the law requires that the state of the case shall be agreed upon or settled within fifteen days, unless the judge shall grant further time, the settling of such case by the court after fifteen days will, in the absence of anything appearing to the contrary, be presumed to have been done within the further grant of time authorized by the law.</p>

<p>Where the summons is in the ordinary form of an action on contract, and the declaration declares upon a penal statute which requires that there be endorsed upon the process the rule of the statute, and also upon the declaration a special note of the date of the institution of the action, the summons will not be quashed when there is nothing in it which shows that the suit was instituted by a common informer to recover a penalty, but the declaration being clearly founded upon a penal statute, and not complying with the law in such cases, a motion to strike it out will be allowed.</p>

<p>On certiorari.</p>

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

<p>On application to set aside the election of directors.</p>

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

<p>On certiorari.</p>

<p>Where an act required a vote of two-thirds of all the members of common council to pass an ordinance over the mayor’s veto— Held, that where the council consisted of seven members, a vote of four, one member being absent, one voting to sustain the veto and a third refraining to vote because interested in the ordinance, was not effective to override the veto.</p>

<p>On motion to strike out replications.</p>

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

<p>1. A mortgagee in a chattel mortgage which covered chattels, about to be sold under execution by a constable, who had been notified of the existence of the mortgage, is not precluded from asserting his rights as such mortgagee, in a suit in tort against the officer, by the fact that he failed to avail himself of the provisions of the one hundred and ninetieth section of the District Court act providing a mode for trying a claim of property.</p> <p>2. In the absence of fraud, a substantial compliance with the provisions of the Chattel Mortgage act, which requires the statement of the consideration of the mortgage annexed thereto, will suffice.</p>

<p>On certiorari to review an assessment of commissioners for damages for a change of grade.</p>

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

<p>On certiorari.</p>

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

On motion to vacate an order of a Supreme Court justice vacating upon notice and after hearing the allocatur to the writ.

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

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

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

<p>On error to Supreme Court, whose opinion is reported in 47 Yroom 15.</p>

<p>On error to the Supreme Court, whose opinion is reported in 47 Vroom 267.</p>

<p>Statutes are not to be given a retrospective effect if their language reasonably admits of another construction.</p>

<p>1. A request to charge which rests upon a fact assumed to be conclusively proved, but which in reality is in dispute, should be refused.</p> <p>2. On a contract for the sale of merchandise, where the seller has agreed to deliver the goods sold in installments, and the buyer has agreed to pay the price in installments which are proportioned to and payable on the delivery of each installment of goods, the default by either party with reference to any one installment will not, ordinarily, entitle the other party to abrogate the contract.</p>

<p>1. The duty which a railroad company owes to its passengers with relation to the construction of its station platforms is to take care that the method of construction adopted by it will render the platform as safe for the use of passengers as the exigencies of its business will permit.</p> <p>2. The adoption by a railroad company of a method of platform construction which accords with that in general use by well regulated railroad corporations, and which is approved by experience, is a due performance of the duty which it owes to its passengers in that regard.</p> <p>3. In order to support an allegation that a railroad company lias constructed its station platform without due regard to the safety of its passengers, the party who so alleges must show that the platform is of a design which a reasonably careful judgment would disapprove as being likely to cause accident to persons using it as a way to and from trains.</p>

<p>1. Although the notion expressed by “preconceived” is not so exactly the equivalent oí “premeditated” as to render the former a satisfactory substitute for the latter in a definition of the statutory crime of murder in the first degree, the context in which it occurs in a given case may be such that the employment of “preconceived” for “premeditated” in a charge to the jury, although not to be approved, is not an error by which the defendant was injured.</p> <p>2. Although the statement in a charge that “murder in the second degree is devoid of the element of the intention to kill” is erroneous, it is not an error that should lead to reversal if its legal effect, in view of other parts of the charge, was injurious only to the state.</p> <p>3. The victim of an unprovoked assault may protect himself even to the extent of taking the life of his assailant when that act is or reasonably appears to him to be necessary in order to preserve his own life or to save his body from serious harm. Hence a judicial charge that limits such right to what is necessary, and thereby deprives the defendant of the right to have his act tested by the reasonableness of his belief in the existence of such necessity, is erroneous; but such error is not injurious to the defendant when his sole defence is that an unprovoked and murderous assault was made upon him, and there are no grounds or circumstances going to the reasonableness of the defendant’s belief apart from the grounds and circumstances that go to prove the actual existence of the danger and necessity that confronted him if his testimony be believed.</p>

<p>If an abutting owner for his own convenience places an object (in this case a hitching post) in the public highway, his failure to use reasonable care that the highway be not thereby rendered unsafe makes him liable to users of the highway for injuries resulting from such neglect.</p>

<p>On error to the Supreme Court, whose opinion is reported in 47 Vroom 194.</p>

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

<p>1. The conveyance of a lot bounded by a street delineated upon a map, to which reference is made in the deed therefor, does not estop the grantee to deny the title of the grantor to land embraced within the limits of the street.</p> <p>2. Whether a conveyance of land bounded upon a street delineated upon a map, to which reference is made in the deed therefor, includes the land to the centre line of the street as delineated, is a question of intention, and if at the time of the conveyance the land covered by the street is in part washed by the ocean, the line of the grantee’s land can extend no further than the middle of the street as it actually exists at the time upon the ground.</p> <p>3. The Ocean City Association, in 1880 and 1882, conveyed land to one Mathews, describing it by reference to a map of lots owned by the association, and bounding it upon one of the streets delineated upon the map. Held, that if at the time of the conveyance the ordinary high tide of the ocean covered the whole of the land within the bounds of the street, Mathews was the riparian owner and entitled to the subsequent accretions, but that if the ordinary high tide at that time did not cover the whole of the street, the association remained the riparian owner and entitled to the subsequent accretions.</p>

<p>It appears that on the trial of the defendant, indicted for murder, there was testimony from which the jury might have found that the degree of defendant’s criminality was manslaughter. The trial judge defined the degrees of murder, said nothing respecting manslaughter, and then charged the jury that if they found the defendant guilty, it was their duty to declare the grade of offence, either murder in the first degree or murder in the second degree. The defendant was convicted of murder in the first degree. Held, that there was error in thus excluding the degree of manslaughter from the consideration of the jury.</p>

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

<p>1. Where the evidence tends to show that the plaintiff, a passenger on the ferry-boat of the defendant, was injured by a fall sustained by reason of the lateral movement of the gang-plank, furnished for the exit of passengers, on which she was walking, which lateral movement was rendered possible by the insecure manner in which the boat was moored, and was caused by a lurch of the boat occasioned either by the action of the tide or the boat’s machinery, the question of the negligence of the defendant is for the jury.</p> <p>2. The evidence tended to show that the plaintiff, a passenger, was invited to leave defendant’s ferry-boat by using a gang-plank five feet wide furnished by defendant’s servants and serving as a bridge over an eighteen-inch wide space between the boat and the dock, and that while walking in the train of others along the middle of the plank she was thrown by a lateral movement of the plank. Held, that a motion to nonsuit on the ground of contributory negligence was properly refused.</p>

<p>1. An instruction to the jury in a homicide case that, if the defendant had formed in his mind an intent to kill, and then instantly he deliberately perpetrated the act to carry out that intent, this would be the deliberation and p>n?meditation which the law requires to make it murder in the first degree—Held error, the word “instantly” precluding the idea of deliberation, and a mere intent to kill, without deliberation, not being sufficient to constitute murder in the first degree.</p> <p>2. A charge that in order to give defendant the benefit of intoxication as a defence, tQ mitigate the crime of murder from the first to the second degree, he must by the evidence create such a doubt as to his mental capacity as to convince the jury that he was unable to reason or deliberate, is prejudicial to the defendant as imposing on him too heavy a burden of proof.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 273.</p>

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

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

<p>1. The representative of a deceased joint contractor may be prosecuted separately during the lifetime of the other joint contractors, for non-performance, under the third section of “An act concerning obligations.” Gen. Stat., p. 2336. Thompson v. Johnson, 11 Vroom 220, approved.</p> <p>2. If plaintiff declare against one of several joint contractors, and the defendant does not plead it in abatement and give notice of non-joinder, a contract alleged to have been made by a sole defendant may be supported by proof of a joint contract made by him and others.</p> <p>3. The minutes of a board of directors of a corporation are admissible to show the contractual intent of the corporation and the authority of the officers appointed to carry out the corporate act determined on, but they are not binding on strangers, nor are they sufficient evidence of a contract between a corporation and one of its members, for the business transactions of a corporation with its members stand on the same footing as those with a stranger.</p> <p>4. The minutes of a corporation recited an offer to a board of directors by one of its members to purchase its real estate, and also stated the terms of payment. The offer was accepted by resolution, but before the deed was delivered the purchaser was informed of the terms adopted by the directors, which were that the purchaser should pay all the debts of the company and to the stockholders the par value of their stock, to which the purchaser agreed and promised to pay accordingly, and for that consideration he was given, and accepted, a deed in which the consideration stated equaled the debts and stock. Held, that when the deed was accepted, the purchaser became liable to each stockholder to pay the value of his stock as on a contract made for the benefit of each stockholder under Pamph. L. 1903, p. 537, § 28.</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>In order that a defendant may have the benefit of section 136 of the Criminal Procedure act (Pamph. L. 1898, p. 915) the trial judge must, in addition to the formal and ordinary return to a writ of error, certify that the proceedings transmitted by him to the court of review comprise the entire record of the proceedings had upon the trial.</p>

On error to the Supreme Court. Originally, this was an action upon contract brought in the Supreme Court by Albert M. Jordan, notv defendant in error, against I. Whilden Moore, the testator of the present plaintiff in error.

<p>Where the plaintiff, a boy fifteen years of age, employed to adjust a belt from a machine to a revolving shaft, was instructed only as to the method of adjusting the belt to the shaft and the machine, without any reference to the danger incident to the existence of brass hooks in the belt which became worn and sharp by continued friction, and which while revolving caught the plaintiff’s sleeve and injured him, it cannot be said as matter of law that plaintiff assumed such risk as an obvious danger, and that the master was not guilty of negligence. ±\ nonsuit ordered on these ■ grounds set aside.</p>

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

<p>1. Whether a passenger upon a trolley car, who has signaled to the conductor to stop, is guilty of contributory negligence in stepping upon the running board of the car before the car has stopped, preparatory to alighting therefrom, is, where the facts are in dispute, a question for the jury, and is not per se negligent.</p> <p>2. Whether the motorman exercised the care required by law when a passenger was attempting to alight and was thrown, as she alleged, by a jerk or lurch of the car, is a question for the jury, where the facts are disputed.</p>

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

<p>The authority of a master of a vessel to bind the owners in personam falls within the law of principal and agent excepting when such authority arises ex necessitate, and there is no authority ex necessitate in the master of the vessel to pledge the owner’s credit where the owner or his managing agent is either at the port of the ship's anchorage, or so near it as to be reasonably expected to intervene personally.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 157.</p>

<p>On error to the Supreme Court, whose opinion is reported in 47 Vrooni 50.</p>

<p>On error to the Supreme Court, whose opinion is reported in 46 Vroom 282.</p>

<p>On error to the Supreme Court, whose opinion is reported ante p. 68.</p>

<p>On error to the Court of Oyer and Terminer of Cumberland county.</p>

<p>1. The “English rule” as to property-rights in percolating underground water rejected. The doctrine of “reasonable user” adhered to.</p> <p>2. A landowner has not an absolute and unqualified property in all water that may be found percolating in his soil, to do what he pleases with it, as with the sand and rock that form part of the soil; his right is to use such waters only in a reasonable manner and to a reasonable extent for his own benefit, as in agriculture, irrigation, manufacturing, domestic consumption, and the like, and without undue interference with the rights of other landowners to the like use and enjoyment of waters percolating beneath their land, or of water-courses fed therefrom.</p> <p>3. The defendant, a municipal corporation, for the purpose of supplying its inhabitants with water, acquired a tract of land and sank thereon a number of artesian wells, through which it drew out percolating underground water which, but for its interception, would have reached a spring, stream and well upon plaintiffs land, and also withdrew percolating underground water from beneath the surface of his land to such extent as to damage his crop®. Held, actionable.</p> <p>4. Percolating underground waters may not be withdrawn for distribution or sale if it therefrom result that the owner of adjacent or neighboring land is interfered with in his right to the reasonable user of sub-surface water, or if his wells, springs or streams are thereby materially diminished in flow, or his land rendered so arid as to be less valuable for agriculture, pasturage or other legitimate uses.</p>

<p>3. Any person who hears the call of a police officer for assistance in the arrest of a fleeing criminal may respond to that call and aid in the arrest, without waiting for information as to the offence which the criminal has committed.</p> <p>2. It is a settled rule of criminal law in this state that a trial judge may express to the jury his own views with respect to the value of the testimony and the inferences to be drawn from it.</p>

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

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

<p>On error to the Supreme Court, whose opinion is reported in 47 Yroont 2{)2.</p>

<p>1. Authority was conferred by the legislature of the state upon the defendant to divert water from a navigable river into an artificial raceway and to appropriate the water so diverted to its exclusive use, free from any public right or easement therein. field, that such diversion was not rendered unlawful by the construction in the river by the defendant of an unauthorized dam. Held further, that the construction of such dam did not constitute a surrender to the public of the right of exclusive user of the waters of the raceway. Held further, that the fact that the dam was so constructed as to entirely obstruct the navigation of the river, did not justify the use of the raceway by persons navigating the river, it appearing that it could not be utilized for the purpose of passing around the obstruction.</p> <p>2. A dedication may be for a limited public use. The extent of the dedication, when it is implied from an adverse public user, is measured by that user. In other words, the dedication is commensurate with the actual enjoyment of the public easement.</p>

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

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

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

On error to the Mercer Circuit. The defendant is the owner of a water power ; the plaintiff the grantee of water rights for the use of his mill. The action is brought for damages suffered by the plaintiff by reason of the shutting off of water from his mill from June T7th to July 19th, 1906.

<p>1. The proper law of the contract is the law by which the parties thereto intended, or may fairly be presumed to have intended, the contract to be governed.</p> <p>2. A note dated in New York and payable in New York is, in the absence of facts evincing another intention, governed by New York law, although the maker resided in New Jersey and signed the note in this state.</p> <p>3. A married woman resident in New Jersey signed a note in this state as accommodation guarantor or surety; the note was dated and payable in New York, but it did not appear where it. was delivered to the payee. Held, that it was a New York contract and that the married woman was liable upon the note under the law of that state.</p>

<p>Upon the trial of an indictment, where the defendant fails to testify in his own behalf to deny inculpatory facts which, if false, he must know to be so, it is proper for the trial judge to call attention to his failure to testify.</p>

<p>Two cases argued together at the March Term, 1909.</p>

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

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

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

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

<p>On error to the Cape May Circuit Court.</p>

<p>1. An ordinance prohibiting a city officer from receiving any compensation except his salary for services rendered to the city will prevent a city attorney from maintaining an action against (he city for legal services rendered pursuant to request of a special committee that was empowered by resolution of the city council to employ special counsel.</p> <p>2. Jdcinni v. Xrirar/.-. 32 ]'rnow 112, distinguished.</p>

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

<p>Cross-examination on matters either directly in issue or directly relevant to the issue is a matter of right, and its exclusion is error.</p>

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

<p>On error to Him ter clou County Circuit.</p>

<p>On error to the Supreme Court, whose opinion is reported in 45 Vroom 68.</p>

<p>Where, on certiorari to review proceedings appointing commissioners to assess damages for lands proposed to be condemned for railroad purposes, the only substantial objection is that the line of the road cannot be located from the map and description of the route as filed, and the Supreme Court having found as a fact that such map and description were sufficient, such finding is not subject to review on error.</p>

<p>The plaintiff's assignor having procured consents, ordinances and permissions for the building of a trolley railway, sold them, and as part consideration took a bond from the vendee conditioned to indemnify it against loss or claim of any character “emanating from or arising under or in connection with or by reason of said ordinances.” &c., “at any time hereafter”—Held, that the bond only indemnified against losses arising after it was given, and that the obligor was not bound for debts of the vendor incurred in obtaining the consents and ordinances transferred.</p>

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

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

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

<p>1. The Tax act of 1903 (Pamph. L., p. 394) exempts from taxation stocks of corporations of other states held by citizens of this state when taxes have been actually assessed and paid on the corporation’s property in its own state within twelve months.</p> <p>2. The reinsurance reserve of fire insurance companies required by the department of banking to be set apart and maintained by such companies is not as such exempt from taxation under the Tax act of 1903. The liabilities on policies issued and outstanding being merely contingent, should not be deducted from the gross assets to ascertain the capital and accumulated surplus.</p>

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

<p>The plaintiff, while alighting from defendant's car, fell, as she claimed, by reason of the negligence of the defendant's employes in starting the car while plaintiff was alighting. This contention was controverted by defendant's witnesses. Held, that the question was one of fact for the jury.</p>

<p>Where the plaintiff, who had been employed for two days in general work about defendant’s lumber yard, was sent, without any instruction as to the dangers incident to the work, to assist in piling lumber from a wagon between two standing lumber piles, one of which fell, injuring plaintiff, and it was shown that the pile which fell had not been piled in the usual manner adopted by lumbermen, it cannot be said that to the plaintiff, unacquainted with the business, the danger was obvious, and a nonsuit upon that ground is set aside.</p>

<p>Where a passenger on a street car is entitled by his contract to be carried to a certain point, and the railway company breaks the contract by turning the car back at a point short of the destination, the passenger’s right of action is complete; and if he elects to remain on the ear for its return journey, he must pay the fare and may include the amount in his damages; he is not entitled to remain on the car without payment of fare.</p>

<p>At the Supreme Court—Circuit—trial of this case the plaintiffs offered certain material testimony (referred to at length in the following opinion) tending to establish their right to a verdict for substantial damages. The trial judge overruled the offers as inadmissible, and at the close of plaintiffs’ evidence, on the defendant’s motion, directed a nonsuit. Held, that such exclusion and direction was error, and that the judgment below should be reversed and a venire de novo awarded. .</p>

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

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

<p>Where the finding of the Supreme Court has ample evidence to support it, its determination of fact is final, and it cannot be made the subject of review on error.</p>

On error to the Supreme Court, whose decision was based upon the grounds set forth in the following memorandum: Per CuriaM. This action was brought by the plaintiff to recover a commission on the purchase price of certain real estate sold by him, as agent for the defendant, to the Metropolitan Eeal Estate Improvement Company. The case was tried before Mr. .Justice Minturn, without a jury, by consent of both parties.

<p>On error to the Supreme Court, whose opinion is reported in 47 Vroom 327.</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, whose opinion is reported in 47 Vroom 464.</p>