Volume 82 — New Jersey Law Reports

<p>When the record of a trial court has been removed by writ of error into an appellate tribunal for review, and the judgment of the latter court is that the record bo remitted for further proceedings thereon, such proceedings cannot properly be had until the record is actually returned to the court of first instance.</p>

<p>On certiorari.</p>

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

<p>The oath by which complainants are required to verify a complaint made under section 3 of the Bishops law amending section 10 of the Werts act (Pamph. L. 1906, p. 201) , must be based upon the personal knowledge of the affiants, which, if challenged in limine by an offer to prove by legal evidence that they did not possess such knowledge, presented an issue to be heard and determined by the statutory tribunal upon the question of its own jurisdiction; and the overruling of such an offer, by which such lack of personal knowledge was provisionally established, rendered nugatory a subsequent order for the revocation of a license as an ordefc made by a body upon whom jurisdiction had not been conferred in the manner prescribed by the statute.</p>

<p>Where upon appeal a judgment of the District Court cannot be reversed upon any ground specified it will be affirmed.</p>

<p>Under section 202 of the Practice act the venue may be laid by the plaintiff in any one of four counties according to the fact, but if one only of the contemplated situations in fact exists the venue must be laid accordingly, which will be the place of trial unless changed by the court under section 203.</p>

<p>On rule to show cause.</p> <p>On May 30th, 1909, the Gape May Sand Company executed its bond with warrant of attorney to Annie C. Knight conditioned for the payment of $18,698.03.</p> <p>On the same'day the same obligor executed a like bond to J. Henry Edmunds, conditioned for the payment of $7,190.95, which bond was forthwith assigned by said Edmunds to Annie C. Knight.</p> <p>These bonds were due at once and contained no other obligation than the payment of their principal sums which aggregated $25,888.98. Later, on the same day, the same obligor executed to Annie C. Knight its bond conditioned for the payment of $25,888.98 in one year, with interest payable semiannually, with a provision that upon a default of thirty days in the payment of such interest the principal should be payable immediately, and a further obligation by the obligor to pay all taxes, with a provision that upon a default thereof for ninety days the principal should be due immediately.</p> <p>.For the better securing of the debt evidenced by this bond the obligor executed to the obligee a chattel and real estate mortgage which recited said bond and the obligations contained in it, and also further bound the mortgagor to carry insurance to the full amount of the debt secured by said bond, to assign the policy to the mortgagee, and in default thereof, the expense of so doing to be incurred by the mortgagee and added to the principal debt of the bond.</p> <p>On January 30th, 1911, judgment by virtue of the warrant of attorney was entered by Annie C. Knight, on hex bond conditioned for the payment of $18,698.03, and -also on the Ed-' munds bond for $7,190.95, which had been assigned to her.</p> <p>The defendant in each of these judgments, i. e., the Cape May Sand Company, thereupon obtained a rule to show cause why these judgments should not be vacated, the contention of the defendant being that the judgments were entered in violation of the provision of section 2 of the act of March 23d, 1881 (Gen. Stat., p. 2112), which reads: “That in all eases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage.”</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>In an action for damages the failure of the plaintiff, whose automobile was struck by tbe defendant’s wagon, to prove the possession of a license at the time of the collision is not a ground for a nonsuit.</p>

<p>The rule laid down by sections 3 and 21 of the District Court act (Pamph. L. 1898, p. 506), when read together, is that an outgoing judge of that Court shall carry to final determination all causes upon the actual trial of which he had entered during his term of office, but shall not enter upon the trial of any new cause merely because it was instituted during Ms term, which causes under section 3 are not to abate but to be tried before the incoming judge.</p>

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

<p>Section 14 of the Malt Liquors act (Gen. Stat., p. 1799, pl. 73) enacts that the provisions of the act shall not apply to any city in which laws are in force regulating the sale of the liquors mentioned in the act. J-Ield, that the intent is to exclude municipalities in which such laws are at any time in force.</p>

<p>On motion to amend summons and declaration.</p>

<p>On certiorari.</p>

<p>A contract under seal between vendor and vendee of real estate contained a provision that the plaintiffs wore recognized by the vendor, the present defendant, as the brokers in the transaction and entitled to two and a half per cent, on the amount the property sold for. Held, that the plaintiffs were entitled to recover the specified commission whether the contract was regarded as one made between others for their benefit or as a contract between plaintiffs and defendant. Stout v. Humphrey, 40 Vroom 436, distinguished.</p>

<p>On certiorari.</p>

<p>1. The Supreme Court will not review a decision of the District Court upon questions of fact. It can only look to see if there was any legal evidence upon which judgment might be based.</p> <p>2. In a suit to recover for services rendered, a letter written by plaintiff’s witness and offered in evidence by the defendant, not for the purpose of impeaching the credit of the witness, but for the avowed purpose only of showing the opinion of the writer thereof that the plaintiff was not entitled to recover, was properly excluded.</p> <p>3. Where a compound question is propounded to a witness, part of which is admissible and “¡part inadmissible, it is rightfully excluded as a whole.</p>

<p>On certiorari.</p>

<p>On. certiorari.</p>

<p>1. Sections 4 and 5 of chapter 290 of the laws of 1906 (Pamph. L., p. 644) require the state board of assessors to levy an annual franchise tax upon such proportion of the annual gross receipts of a street railroad corporation as the length of its line in this state upon any street, highway, road, lane or other public place, bears to the length of its whole line.</p> <p>2. The annual franchise tax which sections 4 and 5 of chapter 290 of the laws of 1906 (Pamph. L., p. 644) require the state board of assessors to levy upon such proportion of the annual gross receipts of a street railroad corporation as the length of its line in tMs state upon any street, highway, road, lane or other public place, bears to the length of its whole line, is not levied on the gross receipts of the corporation, nor on the business of the corporation, but is merely an excise tax on the franchises of the corporation, viz., the franchise to exist and the franchise to occupy the streets, which is measured in part by the gross receipts, and therefore such franchise tax is not a regulation of interstate commerce, and the act under which it is levied is not in conflict with the clause of the constitution of the United States giving to congress power to regulate commerce among the several states.</p>

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

<p>1. An amendment of the declaration after the statute of limitations has run—Held, not improper so long as a new cause of action is not introduced thereby.</p> <p>2. The circumstances found to have existed in this case with regard to the custody and deliberations of the jury—Held, not to be such , ^as to vitiate the verdict.</p> <p>'3. The action was for deceit in the sale of certain stock and bond privileges. Plaintiff did not receive the property but paid part of the purchase price son account in exchange for a broker’s receipt agreeing to deliver the privileges on payment of the balance with interest. ^Before the balance was paid he discovered that false representations as to the bonds had been made and demanded his money back, and not receiving it, brought suit for damages on account of the false representations. Held, that the measure of damages was the difference between what he had paid and the value of what he had at the time of discovering the fraud, and in the absence of all evidence as to the value of the broker’s receipt a verdict for nominal damages should have been directed.</p>

<p>1. If a proviso in a statute be directly contrary to the purview of the statute, the proviso is valid and not the purview.</p> <p>2. Under the act of April 2d, 1891, permitting certain cities to disband volunteer fire departments and establish paid fire departments (Gen. Stat., p. 1517), the power given to the board of fire commissioners by section 8, to fix the compensation of members of the fire department, is controlled by the proviso in section 6, making the financial body of the city the sole judges of the amount necessary to operate the fire department.</p>

<p>In an action of libel, when the defendant files a plea of justification and afterwards withdraws such plea, by leave of the court, plaintiff is nevertheless entitled to put such plea in evidence as bearing on the question of malice.</p>

<p>Section 11 of the Criminal Procedure act of 1898 (Pamph. L., p. 869), requiring the sheriffs of the several counties to cause to come before the Courts of Oyer and Terminer at the times and places of holding the same, twenty-four good and lawful men to serve as grand jurors, makes no change in the rule of common law which has always prevailed in this state, that a grand jury shall consist of not more than twenty-three members.</p>

<p>A municipality entered into a contract with a railroad company providing for the elevation of its railroad tracks in order to abolisli grade crossings. To accomplish this it was necessary either to eliminate an industrial siding, which crossed a street and connected prosecutor's factories with the railroad, or elevate it. The contract required the town to vacate the street, and- the railroad company to elevate its tracks, and preserve the industrial siding at the same elevation. The prosecutor, with this understanding, permitted the railroad company to build its depot on its land in furtherance of the contract; made no objection to the vacation of the street along its land, and permitted the removal of the existing siding. The town then adopted a resolution to modii'j the original contract by eliminating the siding, and agreed to pay all damages the prosecutor might suffer from the discontinuance by the railroad company of the siding. Held, that the town had no authority to pledge public funds in exoneration of the liability of the railroad company to the prosecutor because of its non-observance of a right which the prosecutor claimed to be due to it from the company.</p>

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

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

<p>In order to warrant the direction of a verdict for a defendant it should appear that the evidence offered by the plaintiff to sustain his case was clearly insufficient to justify a verdict in his favor, and that a verdict rendered for the plaintiff thereon would be set aside as unsupported by the evidence or against the weight of it.</p>

<p>1. A clerk of the street department is one of the subordinate officers whose appointment by r,he council is authorized by the charier of the city of Trenton, but his term of office is for one year unless sooner removed, and an appointment for three years is beyond the power of the council.</p> <p>2. Where such subordinate office is created by ordinance the incumbent, must be selected and appointed by the common council, and this is a duty which cannot be delegated to one of the city officials appointed by the council.</p> <p>3. A member of the common council duly elected, who, having qualified, is recognized as a member of council and acting as such, is at least a de facto officer, and an ordinance, of interest to the public, cannot be successfully assailed upon the ground that by reason of his non-residence in the ward he represents, his office has become vacant under the terms of the city charter, although his vote was essential.</p>

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

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

<p>On demurrer to assignment of error.</p>

<p>On certiorari.</p>

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

<p>By the Death act (Gen. Stat., p. 1188) the legislature has constituted the personal representative magister litis, and as such he may, in his judgment in good faith, release or compromise the cause of action before suit brought, and after it has been instituted, he will control the litigation, and may, acting without fraud, settle and discontinue it.</p>

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

<p>On certiorari.</p>

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

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

<p>On certiorari.</p>

<p>1. The driver of a truck heavily laden with fruit, approaching a trolley track, his horse being on a walk and about nine feet from the track, saw a car coming very fast about two hundred feet away, continued his. course, at the same gait, across the track, and before the rear end of the truck had entirely cleared the track it was struck by the car and upset, injuring and , damaging the horse, truck and fruit. Meld, that the court committed no error in submitting the question, whether the driver exercised due care in crossing the track, to the jury' for determination.</p> <p>2. Although the remarks of counsel for plaintiff in summing up were improper, they were discontinued upon objection being made thereto by defendant’s counsel, and the court was not asked to admonish counsel, nor was there any request made to the court to charge the jury to disregard them, nor was there any refusal on part of the court to interpose, and, therefore no basis was laid for a valid assignment of error requiring a reversal of the judgment.</p>

<p>The increase in fees, by virtue of section 215 of the act of 1910, to be paid to jurors summoned to serve in a District Court, does not thereby authorize the clerk to demand more than $5.75 for a venire for a jury of twelve men.</p>

<p>Injuries received by a person which are the result of the lawful act of another, done in a lawful manner, and without carelessness or negligence, constitute no ground of liability.</p>

<p>A sent a quantity of raw silk to B to be “thrown.” After the silk was thus treated by B, he delivered it to a common carrier to be shipped to the domicile of A, but took the bill of lading in his own name. The common carrier without authority from B delivered the silk to A. Subsequently, a dispute having arisen between A and B as to the compensation B was entitled to receive for his service, and the parties not being able to agree, B demanded from the common carrier the whole amount which he claimed he was entitled to receive from A. The common carrier paid this amount, and then sought to recover it from A by suit. Held, that the limit of the carrier’s recovery was the amount actually due from A to B.</p>

<p>It is error in law if, in the charge of the court to the jury, a fact of moment, which goes to the merits of the ease, is declared to be supported by testimony produced on one side, and not to be contradicted by any proof offered on the other side, when the contrary is true.</p>

<p>In ejectment. Case certified from Camden Circuit.</p>

<p>1. A statute which looks to a single general object, although it contains and enacts various and multiform matters, is not prohibited by the constitutional provision which requires that “every law shall embrace but one object, and that shall be expressed in its title,” provided that such matters are properly related to each other, and tend to effectuate the general object.</p> <p>2. But, in order to make the legislation valid, the title must be broad enough to express the general object sought to be accomplished ; for, under the constitutional provisions referred to, the title is not only an indication of the legislative intent, but is also a restriction upon the enacting part of the law.</p> <p>3. The title of an act, the object of which is to amend the title of a pre-existing statute, must express the character of the amendment to be made. Sawter v. Shoenthal, 52 Vroom 197, followed.</p>

<p>1. Sales of liquor made by a duly licensed wholesale vendor to customers not residing within the territory covered by his license, and which are completed by the delivery thereof at the place of the customer’s residence, are in violation of the provisions of the statute regulating the sale of spirituous, vinous, malt and brewed liquors.</p> <p>2. Such sales are a violation of the statute even though the delivery ' is not made by the vendor personally, or by his ordinary employes, but by a common carrier who is selected by him to transport the goods and deliver them to the customer.</p> <p>3. A person convicted of crime, who takes advantage of the liberal review provided by section 136 of the Griminal Procedure act, relinquishes any advantage which might have come to him by reason of mistakes made by the court at the trial, unless he can show that he has suffered manifest wrong or injury thereby.</p>

<p>1. A criminal court of general jurisdiction has power, upon good cause shown, to vacate an order made by it fixing a day for the trial of an indictment, and to direct that the trial be brought on at a day earlier than that originally specified by it.</p> <p>2. Upon the trial of a defendant upon an indictment for receiving stolen goods, guilty knowledge may be found by the jury where he receives the goods under such circumstances as would satisfy a man of ordinary intelligence that they were stolen.</p> <p>3. An instruction to the jury that the defendant, although he had the opportunity to testify as a witness’ in his own behalf, had elected not to do so, coupled with the fact that he had been • present in court and heard the statements made by witnesses upon the stand, would warrant the jury in presuming, that he could not deny that the statements were true, is not erroneous in law.</p>

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

<p>Testimony of a police officer given on the trial of an indictment that he made the charge against the defendant, upon which the latter was afterward indicted, from information given to him by two other persons who were jointly indicted with the defendant, is incompetent. By necessary implication it is a statement that the officer was informed by these two persons that the defendant had committed the crime charged against him, and such evidence is hearsay.</p>

<p>1. Neither at common law, or by authority of the statute which permits the clerk of the court, in the absence of the judge, to receive a verdict in a criminal case, has the clerk power to discharge a jury until that body has rendered its verdict.</p> <p>2. The discharge by the clerk of a jury in a criminal ease, before a verdict is reached, produces a mistrial, and a second trial is not interdicted thereby.</p> <p>3. Neither the allowance of leading questions, over objection, nor the rulings of a trial court upon any other matters which are committed to its discretion, constitute ground for reversal upon a review on strict bills of exception.</p>

<p>Under the seventy-fourth section of the Criminal Procedure act an ' indictment is properly framed which charges that the defendant, upon a day specified, and on divers other days and times between , the specified date and the day of the finding of the indictment, ¡unlawfully and habitually sold, and offered and exposed for sale, ■and knowingly permitted to be sold, offered and exposed for sale, ■spirituous, vinous and malt liquors without a license for that purpose first had and obtained.</p>

<p>1. The fact that, after two tenants in common have executed a bond to a third person, and have secured its payment by a mortgage upon their common property, one of them conveys all of his interest in the mortgaged premises to the other, and the latter as a consideration for the conveyance agrees to pay the mortgage . debt, does not relieve the former, as against the holder of the bond, from his obligation to pay the money due upon it.</p> <p>2. Other defences considered and overruled.</p>

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

On certiorari. The assessment of the property of the prosecutor for the year 1910 having been sustained by the county board of taxation was taken upon an appeal to the board of equalization of taxes where the following memorandum was filed: This appeal brings before us for review an assessment of property situated in the borough of lladdonfield, Camden county, owned by the Bancroft Training School.

<p>1. Errors not presented by a bill of exceptions will not be reviewed.</p> <p>2. A ground of error not pointed out by any assignment will not be considered.</p>

On appeal. By section 31 of the Board of Health act of 1887 (Pamph. L., p. 94), the board of health of the town of West Hoboken was required to appoint an inspector whose general duties are outlined in section 5 of the act. On March 28th, 1910, Frank A. Fredericks was'appointed sanitary inspector for the term of three years at a salary of $1,500 a year, which was paid to him up to January 31st, 1911.

<p>On certiorari.</p> <p>Four writs of certiorari bring up for review as many awards by the city of Atlantic City to the United .Paving Company of contracts for the paving of certain streets with bitulithie pavement, a patented article owned by Warren Brothers. The prosecutor is a taxpayer, and one of the reasons filed by him is “because the entire proceedings prevent competition.”</p>

<p>The Geran act (Pamph. L. 1911, p. 276) does not relieve boards of freeholders of the duty of paying the expenses of a general election, held in and for the whole county, imposed upon them by section 180 of the General Election law. Pamph. L. 1898, p. 317.</p>

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

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

<p>On certiorari.</p>

<p>1. The Court of Chancery upon a bill in the nature of an information filed by the attorney-general at the relation of a private party lias jurisdiction to annul a grant of lands under water made by the riparian commissioners to a person not the owner of the shore front. This survival of the most ancient common law office of the Chancellor is a legal remedy administered in equity. The existence of this complete legal remedy renders it an exercise of sound discretion to deny the allowance of a writ of certiorari to review in a like ease the proceedings of the riparian commissioners on which a grant by them of the state’s land was based.</p> <p>2. The case of Shamberg v. Riparian Commissioners, 43 Vroom 132, explained and distinguished.</p>

<p>Under section 45 of the Sale of Goods act (Comp. Stat., p. 4645). the question whether a breach of a contract to deliver goods by installments by reason of defective delivery of one or more in* stallments, is so material as to justify the injured party in refusing to proceed further, is a question of fact, and a plea setting up the breach must aver its materiality.</p>

<p>Section 212 of the Elections act (Comp. Stat., p. 2141) is unconstitutional because it attempts to add to the qualification of voters as prescribed by the constitution.</p>

<p>It Is not error for the court upon trial of an indictment to refuse to charge that if the number of witnesses for the defence exceed the number of witnesses for the state, the evidence for the defence preponderates.</p>

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

<p>Upon an indictment for transporting a girl through tlie state for purposes of prostitution, it is admissible in order to prove the purpose, to prove Ills attempt to transport another girl for that purpose at a date subsequent by a short time to the offence charged in the indictment.</p>

<p>1. Section 97 of the Practice act (Pamph. L. 1903, p. 565). as amended (Pamph. L. 1906, p. 677), is in terms limited to actions on contract, and the notice provided for therein endorsed upon a declaration is ineffectual to sustain a judgment in an action of tort entered at the end of twenty days from the date of service of the declaration.</p> <p>2. A declaration in an action of tort was served with the summons upon a foreign corporation,” by leaving a copy thereof at the office of a division superintendent in this state. It was endorsed with a notice the first part of which is that provided for by section 97 of the Practice act as amended by Pamph. L. 1906, p. 677, and the latter part of which is as follows: “In case the within summons and declaration are served by the leaving of a copy at tEe dwelling-house or place of abode of. the person so intended to be served, then take notice that unless you appear and file a plea or demurrer within twenty days after the date of service hereof upon you, judgment will be entered against you.” Held, that such notice was insufficient to authorize the entry of judgment at the end of twenty days.</p>

<p>1. The ordinance by virtue of which the Public Service Railway Company has the right to operate its street railway in certain streets of the city of Camden contains a provision that “all cars shall stop at street crossings clear of said crossings on signal to let off and take on passengers.” • The city charter of Camden authorizes the city council to pass ordinances to regulate the streets of the city, and to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street. Held, that city council had power to enact an ordinance compelling the railway company to stop each railway car operated by it on the near side of each and every street crossing, as such car approaches such crossing, to take on or let off passengers.,</p> <p>2. Evidence given by witnesses that, acting under orders from the police department of tlae city of Camden, they waited for a street railway passenger car on the near side of a street crossing, and that they desired to board the car as passengers, and that the motorman refused to stop on signal, taken in connection with the admission of the counsel for the defendant at the trial that the cars were in fact operated without stopping at the crossing in question, justified a finding of a violation of an ordinance providing that such cars shall be stopped on the near side of such street crossings, as such cars approach such crossings, to take on or let off passengers.</p> <p>3. The ordinance by virtue of which the Public Service Railway Company has the right to operate its street railway in certain streets in the city of Camden, contains a provision that “all cars shall stop at street crossings clear of said crossings on signal to let off and take on passengers.” »A later ordinance, which was within the charter powers of the city, provided that it should be the duty of all corporations operating under ordinance a street railroad in the streets, to stop each railway car, so operated, on the near side of each and every street crossing, to take on and let off passengers., if eld, that the latter ordinance applies to the operation within the city limits of so called “special” cars intended for the accommodation of the general public, and operated from the “ferry” in Camden to Moorestown and return.</p> <p>4. Where an ordinance of a city declares that any corporation or officer, agent, servant or employe of any corporation operating a street railroad in the city, who shall refuse to stop any railway car, so operated in the city streets, at the near side of any street crossing, on approaching the same, for the purpose of taking on or letting off passengers, shall upon conviction be liable to a fine, a conviction of a motorman was justified by evidence that he was in the employ of the company that was operating under ordinance a street railway car in the city streets, and as such motorman, while driving such car, refused to stop at a street crossing to take on passengers as required by the ordinance.</p>

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

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

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

<p>1. Street railway companies have no superior or predominate right to the use of the highways in which their cars run, over the rights of other persons on foot or with vehicles, except that, because the ears are confined to the tracks, others using the highway must give way to them when occasion requires.</p> <p>2. A correlative duty devolves upon others using the highway to permit the passage of street railway cars when they observe or are informed that such passage is required.</p> <p>3. Such timely warning of the approach of a trolley car must be given as will enable others using that portion of the highway covered by its tracks to avoid danger from it.</p> <p>4. While it is the duty of others not to obstruct the track, yet a violation of such duty does not necessarily constitute such contributory negligence as will relieve the trolley company from responsibility for an accident which might have been avoided by the exercise of due care upon the part of the company.</p> <p>5. An instruction to the effect that if the plaintiff drove along and upon the street railway track in a noisy wagon so that he could not hear the gong of defendant’s car approaching from behind, the plaintiff cannot recover, is erroneous, because the driving of a noisy wagon along and upon a street railway track does not, in itself, necessarily constitute such contributory negligence as will relieve the defendant from responsibility for an accident which might have been avoided by the exercise of due care upon the part of the defendant.</p>

<p>1. Under the act of April 3d, 1902 {Pamph. L., p. 565), as amended by chapter 138 of Pamph. L. 1910, p. 236, an appeal cannot be taken to the Supreme Court until after final judgment is rendered in the District Court. The action of the judge of the District Court in granting an adjournment is not such a final judgment.</p> <p>2. ' By agreeing upon the state of the case on appeal from a District Court, the attorney admits nothing more than that the facts therein stated are correct, and that the legal questions -the appellant seeks to have the Supreme Court pass upon are truly stated. It is not a waiver of the right to move to dismiss the appeal upon the ground that there is no final judgment.</p>

<p>Chapter 258 of the laws of 1911 (Pamph. L., p. 544) provides that every justice of the peace shall use a seal, which shall -bear the inscription. “The Small Cause Court of the County of-, New Jersey,” and the name of the justice and state, ward or township from which he is elected, and also provides that no process issued by any justice of the small cause court shall be valid without the impression of such seal. Held, that a judgment rendered against a defendant who made no appearance in the suit will be set aside on certiorari when it appears that the summons did not bear the impression of a seal in substantial compliance with the statute.</p>

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

<p>1. The requirement that bidders on a contract for public improvement shall submit certified checks to the order of the town treasurer with their bids is substantially fulfilled by the submission of a cashier’s check on an accredited bank, to the order of the .town, endorsed by the bidder.</p> <p>2. An advertisement for bids under section 64 of the Town act of 1898, p. 218, as amended in 1906 (Pamph. L., p. 325), required bidders to bid a percentage of a standard price and also to state the number of working days required for completion, which with the allowance provided for inspector’s wages would figure as an item in the bid. Held, that a statement of such number of working days was an essential element in the ascertainment of the lowest bid, and that its omission by a bidder rendered his bid irregular and the award of the'contract to such bidder invalid.</p>

<p>1. Under Pamph. L. 1906, p. 202, § 3, requiring a complaint for forfeiture of a liquor license to be verified by oath of the complainants, such oath must be based on personal knowledge of the violations complained of; but a general affidavit of the truth of the matters set out in the complaint is prima facie sufficient as implying such personal knowledge.</p> <p>2. Such affidavit, however, may be traversed by evidence showing that complainant did not in fact have such personal knowledge;, and if it so ajDpear, the complaint is insufficient to give the licensing body jurisdiction to proceed.</p> <p>3. But in such case the challenge must be made and the evidence supporting it submitted or offered before the licensing body; and if this be not done the evidence in question will not be available on certiorari.</p> <p>4. The rule that in summary proceedings the substance of the evidence adduced must be set out in the conviction so as to enable a reviewing court to judge of its sufficiency, does not necessarily require evidence to be so set out which does not bear on any issue presented to or determined by the trial body.</p>

<p>In a suit for work done aud materials furnished uuder a building contract, and for extra work, it is not error to refuse to nonsuit on the ground that the main contract was made on Sunday, plaintiff appearing to have a valid claim for the extra items not ordered or agreed for on a Sunday.</p>

<p>On certiorari.</p>

On rule to show cause why writ of mandamus should not issue, commanding the commissioner of banking and insurance to correct a valuation officially made by him of the outstanding policies of the Prudential Insurance Company of America by striking out a certain item and reducing the total valuation by the amount of such item.

<p>1. In order to constitute a place for which a license to sell intoxicating liquors is applied for a “new place” within the meaning of the act of 1906 (Comp. Stat., p. 2908, pl. 84), it must appear, in cases where the premises had for some years previously been used continuously for such purpose, that there has been a substantial abandonment of the business. Eckersly v. Abbott, 50 Vroom 157, followed.</p> <p>2. The action of the licensing body in granting a license to sell liquor will not be reviewed in certiorari on the ground that the license application was not signed by the requisite number of qualified signers, unless the objection was made before that body and it had proper opportunity to ascertain the facts supporting such objection.</p>

<p>On rule to show cause why proceeds of sale under execution should not be paid to plaintiff in part satisfaction of his judgment.</p>

<p>1. Section 4 of the supplement of 1905 to the District Court act (Comp. Stat., p. 1991, pl. 117d), requiring demand for jury trial to be made at least one day before the return date of the summons, is inapplicable in replevin cases where the defendant is not served before the return day and appears pursuant to. extraterritorial service of the unamended writ and an order of court fixing a day for trial.</p> <p>2. The proper practice in cases where service of original process cannot be made in due season before the return day, is to amend the writ by extending the return day, and make service thereof based on such new return day.</p> <p>3. Whether in such latter case the act of 1905 would apply to demands for jury trial, quaire.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

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

<p>'The Circuit Court has control of all attachment proceedings instituted in that court, and where the auditor in making sale of defendant’s property, under an order of the court, is guilty of what amounts in law to an abuse of the order, the Circuit Court has the same power to set aside such sale as it would have if the sale had been made by virtue of an execution issued on a judgment entered in an action at common law.</p>

<p>1. Where propertj’ is granted to a railroad company for railroad purposes, subject to a reversion to the grantor upon the violation of a condition at the option of the grantee, and it happens that the grantee is required by law to default, thus causing the land to revert, such reversion alone will not prevent condemnation proceedings for the subsequent acquisition of the land by the former grantee for railroad purposes.</p> <p>2. An order of the board of public utility commissioners requiring a railroad company to stop such trains as are run on Sundays at a given station is not void as being in conflict with the Vice and Immorality act, for it does not require the running of trains on Sunday, but simply compels such as are run to serve the public without discrimination.</p>

<p>An ordinance granting to a company the right to construct and operate a street railway along the public streets of a city, which provides for a system of transferring passengers, “subject to any future regulations of the board” does not estop the municipality from subsequently requiring that a transfer ticket be given, upon request, to any passenger who has paid his fare, entitling him to a continuous ride in either direction on any railway intersecting or connecting with the line upon which such transfer is to be given.</p>

<p>1. Wliere no objection is made to a question put to a witness it is not error for the trial court to refuse a motion to strike out the answer as hearsay, and as impeaching another witness after the party has thus speculated as to its character.</p> <p>2. On the trial of a defendant indicted for receiving stolen goods, it is not error to charge the jury that guilty knowledge may be found where the defendant receives the goods under such circumstances as would satisfy a man of ordinary intelligence and caution that they were stolen.</p>

<p>1. Where an indictment describes the defendant as a county collector, entrusted with the collection, receipt, care and custody of the money of the county, and charges him with embezzling the money so received for the connty, it describes an offence against the provisions of section 108 of the Crimes act, notwithstanding it also charges that ho converted to liis own use the money of the county as its servant and agent, and it is not void for duplicity, although section 184 of the same act makes it a crime for any agent or servant entrusted with the collection of money to convert it to his own use. Section 168 deals with public officers such as the defendant is described to be, and he is the agent or servant of the county when acting as county collector, and when he embezzles he converts the money or property to his own use. The distinction is that in one case the law is aimed at a public officer, and in the other at one who is simply an agent and servant in a private capaeitj'. In either ease they arc servants or agents, and when either embezzle they convert to their own use.</p> <p>2. A defendant in an indictment has no legal ground of complaint that a grand jury which might, but did not, consider a complaint against him, was discharged by the court. His constitutional right is limited to a grand jury lawfully impaneled, not to have a particular set of men constitute the grand jury.</p> <p>3. A statute which provides that a grand jury shall be summoned by the coroners or elisors, when the venire is directed to them, gives a preference to neither, and the court, when the sheriff has been disqualified and a venire is required, may direct it to either, and a grand jury selected and summoned by elisors, when the venire is sent to them, which is sworn and recognized by the court as a grand jury, is lawfully constituted as such, and complies with the constitutional requirement relating thereto.</p>

<p>The act concerning elections requires the county clerk to preserve for a period of five years, after they are deposited with him, registry lists used at an election and checked to indicate persons voting thereat; the act also makes it a misdemeanor for any officer to willfully or negligently violate any duty imposed on him by the act. The defendant was indicted for withdrawing, removing and carrying away from the possession of the county clerk certain registers which had been used and checked at an election. Held, that if the clerk violated his duty in allowing the registers to be removed out of his possession through the procurement, aiding and assisting of the defendant, it is not so manifest that no judgment could be rendered on the indictment that the discretion to quash it ought to be exercised.</p>

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

<p>Where a landlord who had assumed control of the general entrances and stairways of a tenement house was notified of the danger of the water pipes freezing by leaving- the hallway doors open, and thereafter the pipes did freeze as a result, of the failure to keep the said doors closed, causing damage to the plaintiff, who was a tenant occupying the store upon the ground floor—Held, that the landlord was liable for the damage thus caused.</p>

<p>A justice, of the peace has no jurisdiction to hear a cause of trespass for assault and battery, since súch a cause of action is expressly excepted from the jurisdiction of the small cause court by the act creating it. Pampli. L. 1903, p. 251, § 1.</p>

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

<p>A declaration which alleges a valid contract inter partes, and the inability of the plaintiff to perform it in some particular because of the failure of the defendant to perform his part of the contract, and a tender of performance upon plaintiff’s part, alleges a valid cause of action.</p>

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

<p>An ordinance of the city of Paterson prohibiting the transacting of certain lines of business upon Sunday under penalties of fine and imprisonment is not in derogation of the constitutional rights of the citizen; and is not unreasonable as an unwarranted discrimination against the citizen engaged in transacting the business prohibited as against the citizen engaged in other lines of business not thus specially prohibited.</p>

On certiorari. Two writs of certiorari removing resolutions of the Essex county board of freeholders, removing prosecutors from their employment.

<p>Where plaintiff Was hired for one year to take charge of a poultry-farm and as part compensation for his services was to have the use of a garden and house belonging to defendant, from which the defendant thereafter unlawfully ejected him—Held, in a suit for damages for the illegal ejection, that it was immaterial whether or not the contract of hiring was in writing as the suit was in tort, and that damages to plaintiff’s furniture and the value of the garden product which plaintiff failed to receive by reason of the ejectment was properly considered by the jury under the facts in the case as an element of damages.</p>

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

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

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

<p>1. To constitute a surrender of premises, by a lessee, by act and operation of law it is essential that there be conduct competent to prove mutual intention to that end.</p> <p>2. When the minds of the parties to a lease concur in the common intent of relinquishing the relation of landlord and tenant, and execute this intent by acts which are tantamount to a stipulation to put an end thereto, there at once arises a surrender by act and operation of law.</p> <p>3. The lease contained a provision authorizing the landlord or his agent to enter the premises, as the agent of the tenant, in the event of the premises becoming vacate!} or deserted by the tenant during the term of said lease, and to relet the same; the mere naked fact that the landlord increased the rent of $39 a month stipulated for in the lease to $42 a month for the unexpired term thereof, to be paid by any new tenant is not such a circumstance, in itself, from or on which the trial court was legally bound to infer or find that there was a surrender by act and operation of law.</p>

<p>On certiorari.</p>

<p>Review by writ of error is limited to judgments that are in their nature final; the correction of mistaken decisions in interlocutory matters being postponed until the event of the litigation appears.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 604.</p>

<p>1. Under the “Act for the relief of creditors against heirs and devisees,” passed March 7th, 1797 (Pat. L., p. 243; Gen. Stat. 1895, p. 1679), where a devisee dies without selling or aliening the lands devised, liability for the debts of the devisor, in respect of the lands devised, devolves not upon the personal representatives, but upon the heirs and devisees of the deceased devisee of the original debtor.</p> <p>2. Congar v. Brady, 33 Vroom 641, overruled.</p> <p>Nora.—On March: 18th, 1912, before the entry of remittitur, upon leave and motion of defendant in error, a rule for reversal was entered, which provided that the record and proceedings should be remitted to title Sussex County Circuit Court, with power within the next term after the remittitur went down to open the judgment and allow plaintiffs to amend their declaration, by including an averment of the devise from Timothy Flynn to the defendant, and such further amendment as might be necessary to charge defendant as devisee.— Rep.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 52 Yroom 31,</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 542.</p>

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

<p>1. Whether or not the conduct of an incumbent of an office in respect to an executive order retiring him therefrom constituted a surrender by him of the said office is, when conflicting inferences may be drawn, a question for the jury.</p> <p>2. A judgment of nonsuit, although erroneous upon the ground upon which it was directed, will not be reversed if justified upon some other ground that should have operated upon the mind of the trial court.</p> <p>3. A nonsuit is properly ordered where the plaintiff has conclusively failed to sustain the burden cast upon him by the issue, but where a nonsuit is erroneously ordered with respect to the issue, it cannot be sustained upon a point not put in issue.</p>

On error to the Hudson Circuit Court. The writ in this cause reviews a judgment, on verdict, in favor of the plaintiff, recovered in an action for damages because of discharge from employment under an alleged contract of October 4th, 1909, for one year. The errors assigned are on exceptions to rulings on evidence, to refusal to nonsuit the plaintiff or direct a verdict in favor of the defendant and to the charge.

<p>In an action against a railroad company for damages alleged to be due to a fire communicated from its locomotive, the plaintiff must prove circumstances 'which render it probable and not merely possible that the defendant is at fault, but he is not required to exclude beyond a reasonable doubt, the inference that the damage was due to a cause for which the defendant is not responsible. All that is required is that the circumstances be so strong that a jury may properly, on grounds of probability rather than of certainty, exclude an inference favorable to the defendant.</p>

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

<p>1. Tlie power to strike out a pleading in an action in the Supreme Court is lodged solely in that court or in a justice thereof, and is not possessed by a Circuit Court judge to whom the cause has been referred for trial pursuant to chapter 118 of Pamph. L. 1906, p. 209.</p> <p>2. Under rule 16 of the Supreme Court, counts in debt and in assumpsit may be joined in the same suit.</p> <p>3. A refusal to strike out a pleading cannot be made a part of the record so as to be reviewable on a writ of error. It is only when the motion to strike out has prevailed that section 110 of the Practice act (Pamph. L. 1903, p. 569) permits error to he assigned thereon.</p> <p>4. Where there is no subscribing witness to a bond in suit, the testimony of a witness at the trial that he saw the defendant sign it justifies its admission in evidence.</p> <p>5. An objection that a question on cross-examination was overruled will not be considered where substantially the same question was afterwards put to the same witness and answered.</p> <p>6. Where the evidence will support a verdict for the plaintiff, a motion to nonsuit must be denied.</p>

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

<p>1. The general principle governing the relation of the street railway to the traveling public is that their respective rights in the public highway must be exercised by each of them, with due regard to the rights of the other, in a reasonable and duly careful manner.</p> <p>2. It is the duty of the motorman of a street railway car, when approaching a crosswalk, to have his car so far under control that he will not endanger the safety of pedestrians engaged in the lawful and customary use of such crosswalk.</p> <p>3. Where the plaintiff, who was walking upon a crosswalk of a public highway, was struck by a street railway car, running at a “pretty fair rate of speed,” as he was passing over the last rail of the track, and the evidence tended to show that the motorman, when fifty feet away, ought to have seen the plaintiff when he was five feet from the track, it was open to the jury to find either that the motorman did not make proper effort to prevent the collision, or that the inability to stop the car was due to its excessive and unlawful rate of speed, and the question of the negligence of the defendant company was, therefore, properly submitted to the jury.</p> <p>4. A pedestrian upon a crosswalk where he might reasonably assume that the motorman of a street railway car would expect pedestrians to cross and would have the car under proper control accordingly, had a right to expect that the motorman would respect his right to cross the street if he was in position to justify such crossing under a reasonable belief that he could safely do so if both he and the motorman exercised reasonable care.</p> <p>5. Where, from the testimony, the jury could legitimately find that when the plaintiff, after looking when five feet away from the defendant’s trolley track laid in a public highway, started to cross the track, it was apparently safe for him to do so under the conditions within his observation, one of which was a trolley car, running at a “pretty fair rate of speed,” and sufficiently distant to be checked, or, if need be, stopped before it reached him, the question of the plaintiff’s contributory negligence was for the jury.</p>

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

<p>1. One who causes or procures a libel to be published in a newspaper is responsible therefor.</p> <p>2. The rules as to nonsuits are the same, and have the same application, when the trial is by the court, as when it is by a jury.</p> <p>3. A motion for a nonsuit admits the truth of the plaintiff’s evidence, and of every inference of fact that can be legitimately drawn therefrom, but denies its sufficiency in law.</p> <p>4. Where the evidence, and the inferences reasonably arising therefrom, will support a verdict for the plaintiff, a motion for a nonsuit must be denied.</p> <p>5. In a trial before the judge, sitting without a jury, a motion for a nonsuit should be denied where the evidence, and the inferences reasonably arising therefrom, áre legally sufficient to prove the material allegations of the plaintiff's declaration.</p>

<p>1. The differences in the evidence taken in these cases and that taken at a former trial of the same cases (see 49 Vroom 317) — Held, not sufficient to have required the trial court to nonsuit or to direct a verdict for defendant.</p> <p>2. The introduction in evidence of an answer to an interrogatory under section 140 of the Practice act of 1903 is not conclusive on plaintiff as to the matters of fact covered by such answer.</p> <p>3. Under the conditions shown to have existed, a jury was justified in finding the communication of fire from the burning farm buildings of plaintiff Goodman’s testator to those of plaintiff Mays, over a distance of one thousand one hundred and eighty feet.</p> <p>4. A witness may refresh his memory from a written memorandum made by him or under his direction, even if such memorandum contains statements of fact other than those within the personal knowledge of the witness, so long as he does not undertake to give testimony therefrom that is beyond the limits of his own knowledge.</p> <p>5. In an action for damages to real estate by fire set by a railroad locomotive, evidence of the cost of the buildings burned is relevant to the inquiry as to the damage sustained.</p>

<p>1. The owner of a railroad commutation ticket who surrenders it to the conductor of a train for the sole and momentary purpose of punching out a trip number and handing the ticket back, retains such a legal possession of the ticket as will support an action of trespass de horns asportatis in a case of wrongful conversion of the ticket by the conductor.</p> <p>2. In such case compensatory damages for indignity accompanying the conversion may be recovererd.</p> <p>3. Evidence of a conversation about the ticket between a conductor of the railroad and another person than the plaintiff, claimed 'to have been in possession of the same ticket, on another occasion and not in plaintiff’s presence, held, properly excluded.</p> <p>4. Evidence of a conversation about the ticket in plaintiff’s presence, on the occasion' when the ticket was taken up and converted, between the conductor that took it up and a third party —Held, properly admitted as part of the res gestas.</p>

Motion, on notice, for the retaxation of costs by inclusion of the expense of printing brief for defendant in error in this court.

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 45.</p>

<p>Plaintiff was struck and injured by a rocket set off during an exhibition of fireworks in a pleasure resort owned or controlled by defendant, which exhibition she was witnessing pursuant to invitation from the defendant. The fireworks were set off under the direction of one R., under contract with the defendant, and it was fully proved that R. and his employes were uncontrolled as to the manner of doing the work, except that the time and place, when and where the fireworks were to be set off, were fixed by defendant; and that certain designated fireworks were stipulated for at an agreed contract price. The arrangements for witnessing the exhibition were controlled by defendant’s servants, who kept the spectators at a distance of from three hundred to four hundred feet away from the place of setting off the fireworks, and on the other side of a sheet of water. Seld, that R. was an independent contractor, and that for any negligence of himself or his servants in setting off the rocket, defendant was not responsible; and held, further, that there was no evidence of' negligence of defendant in the arrangements made for witnessing the exhibition, and that a nonsuit was properly directed.</p>

<p>The law of the, road relating to the passing by one vehicle of another one ahead and moving in the same direction, does not relieve the driver of the former from the duty resting on him of using reasonable care to observe and avoid other vehicles, including those going in the opposite direction.</p>

<p>In an action for death by wrongful act. under the statute of 1848 (Gen. Stat., p. 1188), it is competent to show the family relations existing between deceased and the next of kin, and that they benefited in a pecuniary way by her earnings, as a basis of pecuniary injury resulting to them from her death.</p>

<p>1. The plaintiff brought his action to recover damages for an unlawful discharge. It appeared that he was employed as chief clerk in defendant’s factory, subject to the supervision and direction of defendant’s superintendent; that he had an altercation with another clerk who disputed his authority, and the superintendent, having heard the explanation of plaintiff, informed him that he had exceeded his authority, whereupon the plaintiff said, “Well, I will quit,” and followed this by turning over to another clerk the key to the cash drawer and leaving the factory, taking with him certain of his personal effects, and did not return to work. Held, that plaintiff’s subsequent disclaimer of any intent to quit defendant’s service was not sufficient to overcome his declared intention to quit and his subsequent acts in execution of such purpose, and that a nonsuit allowed upon this state of facts was not error.</p> <p>2. An appellate court will not hear reasons in favor of the competency of testimony overruled at the trial which were not disclosed to the trial court, and are first suggested on the argument of the writ of error issued to review such action of the ■ trial court.</p>

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

<p>1. An assignment of error based upon the admission of illegal testimony should clearly indicate the testimony complained of and its alleged legal imperfection. An assignment in general terms that the evidence was admitted “tending to contradict, alter, add to and vary the contents and force of the written instrument sued on,” without indicating the evidence complained of, or the exception relied on, is not sufficient to require its consideration by an appellate court. The rule established in this state is that the appellate court is not required to search for errors not definitely pointed out.</p> <p>2. An objection to the admission or rejection of evidence must point out the precise point of the objection, and an objection to “the entire lino of the testimony,” without pointing out to the trial court any reason for the objection, does not state any ground for the sealing of an exception requiring consideration on a writ of error.</p> <p>3. The case made by plaintiff on the trial of this cause was sufficient to sustain the cause of action set up in his declaration, and the refusal of a motion for nonsuit made at close of plaintiff’s case was not error.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 634.</p>

<p>Where there is no evidence of an express contract of partnership between the parties, nor of any joint ownership of partnership property, nor an agreement for the sharing of profits as such, nor proof of the acting of any one of the alleged partners for the others, or authority for so acting, relative to partnership affairs, the indicia and oitcria of the existence of a partnership inter sese, are lacking.</p>

<p>1. An agreement in writing to pay to real estate brokers the sum of $250 for their services to procure an exchange of real estate is a sufficient and substantial compliance with that part of the tenth section of the statute of frauds and perjuries, requiring the rate of commission on the dollar to be stated in such writing, the real object of this requirement being to achieve •a fixed compensation.</p> <p>2. The plaintiffs, real estate brokers, were authorized by the Success Realty Company., in writing, November 22d, 1909, to procure an exchange of certain of its real estate for certain real estate owned by one Katz, for which the plaintiffs were to receive $250 for their services, to be paid by a note to be made on December 1st, 1909. payable in three months after date. This authority in writing was signed immediately after the parties to the agreement to exchange properties had signed such agreement, it being stipulated therein that the actual exchange of the properties shall be made on December 1st, 1909. On December 1st, 1909, when the parties met to consummate the exchange, the Success Realty Company was unable to convey to Katz the number of feet frontage called for by the agreement, and Katz refused to make the exchange on that account. The plaintiffs intervened and were successful in bringing- the parties together upon the changed condition. After the exchange of properties had taken place, a promissory note dated December 2d, 1909, was made by the defendant to the plaintiffs, in pursuance of the written authority given by the company to the plaintiffs November 22d, 1909. Held, that the authority given by the Success Realty Company to the real estate brokers to procure the exchange of properties contemplated future services to be performed by them and which they did perform, and, in this respect, this case is clearly distinguishable from Stout v. Humphrey, 40 Vroom 436, and therefore the note was devoid of consideration.</p>

<p>The Negotiable Instruments act of 1902, making admissible parol testimony between several endorsers to show that they agreed to become liable otherwise than in the order in which they endorsed the instrument, applies to a note endorsed by several endorsers, which was a renewal of a note made and endorsed by the same parties before the passage of said act.</p>

<p>It appeared in this case that by reason of trees and shrubbery growing along the line of the defendant’s railroad, the plaintiff, who -was driving a horse and wagon along- the road toward the railroad crossing, bad bis view obstructed for a long distance which prevented him from seeing the approach of a locomotive engine to the railroad crossing until he attained a point in the road within twenty feet of the crossing; and it was then for the first time that he was enabled to see a locomotive engine approaching the crossing rapidly, within one hundred and twenty feet of it; neither of the statutory signals had been previously given, to give warning of its approach to the crossing, and none was given until the engine was close to the crossing when it emitted a loud blast from its whistle, which frightened the horse and caused him to become unmanageable and to run into the locomotive .engine, whereby the plaintiff was injured. Held, that the proximate cause of the injury was the original wrong of the defendant in failing to give either of the statutory signals in time to warn the plaintiff from entering into a place of danger, and that it was immaterial that the immediate cause of frightening the horse and causing him to run into the locomotive engine, was the lawful blowing of the whistle for the next crossing, the injury to the plaintiff being attributable to the original unlawful act of the defendant.</p>

<p>1. When the place, assigned by the employer to his employe to work, is safe for him while certain machinery, with which he is obliged to come in contact and over which he has no control, is at rest, but is liable to become a place of great peril to him the instant such machinery is started in motion, and a previous method of warning him of such starting had been uniformly pursued by the employer through the act of another employe, who was in control of the machinery and had undertaken the duty of giving such warning, the neglect of the latter to give the warning is legally imputable to the employer.</p> <p>2. Such employes are not to be regarded in law as fellow-servants engaged in a common employment.</p>

On error to the Hudson Circuit Court. The writ reviews a judgment, on verdict, in favor of the plaintiff, who was three years and two months old, for personal injuries received by him from being run over on the public highway or street in Jersey City by defendant’s runaway horse attached to its delivery wagon. The errors assigned are to a refusal to nonsuit and to a refusal of a motion for the direction of a verdict in favor of the defendant.

<p>1. Under the supplement of March 5th, 1874, to the Landlord and-Tenant act (Pamph. L., p. 27; Gen. Stat., p. 1923, pl. 35), where the lessee relies upon either the injury or the total destruction of the building or buildings as a defence to an action for the rent, it must appear that the injury or destruction occurred without the fault of the lessee.</p> <p>2. Where the tenant sublets the premises he makes the sub-tenant his representative to this extent, that in order to establish a defence against the claim of the landlord-in-cliief for rent, based upon the injury or total destruction of the building or buildings, under the supplement of March 5th, 1874, to the Landlord and Tenant act (Pamph. L., p. 27; Gen. Stat., p. 1923, pl. 35), it must appear that the sub-tenant was without fault.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 98.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Yroom 56.</p>

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

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

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

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 21.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 553.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 658.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 67.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 530.</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>Alleged error in refusing application for a change of venue (assuming the change asked for was a matter of right)—Held, not reviewable by writ of error prior to final judgment.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 614.</p>

<p>On error to the Supreme Court, whose opinion was expressed in the following memorandum:</p>

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

<p>On error to the Supreme Court, which had under review a judgment of the First District Court of Jersey City.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 641.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 619.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 673.</p>

<p>1. A clause iu a bill of lading exempting the carrier from liability for loss or damage caused by fire does not relieve it from liability for negligence.</p> <p>2. In an action to recover for the loss of goods destroyed while in the possession of a carrier under a bill of lading containing an exemption of liability for loss by fire, the evidence examined and held sufficient to warrant an inference of negligence—(a) in shipping the particular goods upon open cars, rather than in box cars, and (6) in failing to keep the spark-arresting screen upon one of defendant’s locomotives in a proper condition.</p> <p>8. The bill of lading having been issued by the Hoboken Railroad Company in the name and for the account of the Erie Railroad Company, it was held upon all the evidence to be a permissible inference that the former company was authorized to act and did act as agent for the latter company in the shipment.</p> <p>4. The responsibility of a carrier of goods does not terminate until after the consignee has had a reasonable time within which to remove the goods.</p> <p>5. A carrier of goods holding them as warehouseman is responsible for damage to the goods attributable to its negligence.</p>

<p>In an action to recover damages for personal injuries sustained by plaintiff while, in the employ of defendant as a car repairer, the evidence examined, and held insufficient to show any negligence on the part of the defendant.</p>

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 118.</p>

<p>1. In an action founded upon the breach by defendant company of an alleged contract made .between the plaintiff and the defendant for the doing of the plumbing work of a public building, for whose entire construction the defendant held the contract from the public authorities, the evidence examined and held sufficient to warrant a jury in finding that the president of the defendant company was authorized to represent it generally in the making of such contracts as that upon which the plaintiff relied, and therefore that the contract in question was within the scope of his agency.</p> <p>2. When in the course of the business of a corporation an officer has been allowed in his official capacity to manage its affairs, his authority to represent the corporation may be inferred from the manner in which he has been permitted to manage its business.</p> <p>3. Where a third party seeks to charge a corporation with a contract made by it through the agency of one of its officers, it is not incumbent on such third party to show that the previous course of business from which the agency is to be inferred was known to and relied upon by him.</p> <p>4. A third party is entitled to hold the principal on a contract made by the agent in the name and behalf of the principal, even though the party does not at the time of the making of the contract know the particular source of the agent’s authority.</p> <p>5. Where there are no directors de jure, an agency for the corporation may be created in favor of third parties by the conduct of directors de faeto; and where the functions normally pertaining to a board of directors are performed by the stockholders themselves, they by common consent dispensing with the election of directors, an agency for the company may result as if such action by a board of directors had intervened.</p>

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

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

<p>3. The owner of a tract of land who causes a part thereof to he delineated upon a city plan book as a street or highway (even though such action is not sanctioned by the public authorities), and then conveys other portions of the tract by descriptions bounding upon such street or highway, thereby dedicates it to public use.</p> <p>2. The dedication of land as a public highway does not, ipso jaoto, create such a highway. There must be not only dedication by the owner for that purpose but the acceptance of that dedication by the public in order to create it.</p> <p>3. Acceptance by the public of the dedication of land as a public highway may be indicated by formal action on the part of the representatives of the public having authority over highways, or by public «iser of the dedicated land.</p>

<p>1. It is mot error for a judge, in charging the jury in a case of criminal homicide, to state the impression which testimony on a given point makes upon his mind; nor is it legally objectionable for him to express his opinion as to the degree of the prisoner’s crime under the evidence in case the jury shall find him guilty.</p> <p>2. It is not open to the jury in a case of criminal homicide to find the prisoner guilty of involuntary manslaughter when the case is barren of any proof tending to support such a finding.</p> <p>3. The use of the word “murder,” in the charge to the jury, to indicate the crime of murder in the second degree, the distinction between the two degrees of murder having been already explained to the jury and the meaning of the judge in using the word being apparent to them, does not constitute legal error.</p> <p>4. Declarations of a party as to the subject-matter of the controversy which are contradictory of statements made by him upon the witness-stand, are competent to be proven as a substantative matter without first calling his attention to them while he is upon the stand.</p>

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

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

On error to the Supreme Court, whose opinion is reported in 51 Vroom 146. An -assessment for benefits for paving Rose avenue in the city of Newark was sustained by the Supreme Court as to a lot of land having a frontage of seventy-five feet on Rose avenue and a depth of one hundred feet, said lot being a part of the right of way of the plaintiff in error not occupied by its tracks. The facts are fully stated in the opinion of the Supreme Court.

On error to the Supreme Court. The judgment of which court set aside an ordinance repealing what is designated in the ease as the Oak street ordinance. In August, 1905, the council of the borough of Madison passed an ordinance which provided for the laying out of a street from Cook avenue to Central avenue. This ordinance received four votes, one being cast by Benjamin Warren Bur-net, who owned a lot which would be taken.

On error to the Supreme Court. This is an action by the Belvidere Water Company to recover the rental of four hydrants for the last quarter of 1909. The written contract under the seals of both parties was made in September, 1877, and provided that the water company should supply any number of hydrants, not exceeding fifteen, within specified limits in the town for $500 per annum, and that for each hydrant outside those limits the town should pay $á5 per annum.

On error to the Supreme Court, whose opinion is reported in 52 Vroom 171. The plaintiff agreed to erect and finish, a house in a good, workmanlike and substantial manner under the direction of Joseph Turek, architect, to be testified by a writing or certificate under the hand of Turek, and also to find and provide good, proper and sufficient materials for completing and finishing all the work.

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

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 567.</p>

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

<p>1. The general rule is that a master is not liable for injuries resulting to a servant by reason of latent defects of which lie is ignorant and which could not be discovered in the exercise of reasonable care and diligence.</p> <p>2. In the absence of evidence that an inspection would have disclosed the defect which caused the injury, the mere failure to inspect will not warrant holding the master liable.</p> <p>3. Reasonable care in the matter of inspection, when inspection is required, requires a master to make such an examination and test as a reasonably prudent man would deem necessary, under the same circumstances, for the discovery of possible defects, and he is not required, unless put upon notice as to the possible existence of defects, to employ unusual or extraordinary tests.</p> <p>4. Paragraph 3 of section 1 of the Employers' Liability act of 1909 (Pamph. L., p. 114) does not make a defendant company liable to its servant for an injury sustained by reason of a latent defect in a machine which the company by its servant was unloading from a railroad freight car for another company that was under contract to install the machine in the defendant company's plant, which machine, at the time of the accident, was neither connected with nor used in the business of the defendant company.</p>

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

<p>1. The statutory action for double the annual value of demised premises for holding over after determination of the term and notice to quit from the landlord or owner (Comp. Stat., p. 3076, § 27), is a penal action, and a plaintiff therein must bring his ease strictly within the terms of the statute.</p> <p>2. A notice demanding possession of the premises, or in the event of its being found that claimant is not entitled to the possession of the premises as set forth, demanding possession of a specified undivided interest in said premises, being in the alternative. is not sufficient to support an action under section 27 of the Landlord and Tenant act.</p> <p>3. Mason v. Haurand, 50 Vroom 375. in this respect approved.</p>

Ó'n error to Gape May Circuit Court. The ?ujt was upon a mechanics’ lien for architect’s services. The declaration contained only 'the common connts for work, labor and materials done and furnished, goods sold and delivered, money lent, account stated, and so on in the usual form, concluding with allegation of a promise to pay and claiming damages for failure 'to make such payment.

<p>1. While a common carrier cannot lawfully contract for exemption from liability for losses arising from its negligence, it may stipulate with the shipper as to the value of the property, and contract that its liability shall be limited to the amount so stipulated.</p> <p>2. Where a shipping receipt that contains such a limitation of the carrier’s liability is prepared and tendered by the shipper and accepted by the carrier, the shipper is bound thereby.</p>

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

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

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

<p>1. Where the court has, in its opinion, discussed and determined a proposition raised by the pleadings, to support which testimony was received at the trial, and the question is necessarily involved in the case, or essential to its determination, the remarks of the judge who delivered the opinion of the court, which are pertinent to the issue thus presented, are not obiter dieta, and an argument on a second writ of error in the same case founded on a contrary theory is the réargument of a question already decided, in avoidance of our rule relating to rearguments, and cannot be given any effect.</p> <p>2. The present record being examined it appears that the precise question now argued was considered and determined in disposing of a former writ of error in this case, and that such consideration and determination was essential to the disposition of the case then presented, and therefore the opinion of the court thereon was not obiter.</p>

<p>1. Dubelbeiss v. West Hoboken. 52 Vroom 98, approved and adopted.</p> <p>2. When the investigation of questions of fact is required for the proper review of ordinances or other municipal proceedings, the Supreme Court has power by its constitutional jurisdiction to consider suth matters of fact, and the source of that power is not statutory.</p> <p>3. In consonance with the practice long adopted by the Court of King’s Bench and approved by this court, the Supreme Court may not only order a reversal of the judgment of an inferior-tribunal but may enter such new judgment in that court as it appears by the record that the tribunal below ought to have rendered.</p>

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

<p>1. At common law, an omission by workmen to use, or a careless use by them of safety appliances furnished by the master, the operation of which is incident to their employment, will not impose liability upon the master for injury to a fellow-servant.'</p> <p>2. If the notice provided for by the second section of “An act to extend and regulate the liability of employers for injury or death to employes in certain cases” (Pamph. L. 1909, p. 114) fairly apprises the employer of the time, place and cause of injury, it is sufficient.</p> <p>3. The evidence examined and held to make a prima facie case of negligence under the said act.</p>

<p>Where a constable was directed by a writ of attachment to attach the goods of the defendant named therein, and accepted from defendant the amount of the plaintiff’s claim and costs, and paid tile same to the plaintiffs attorneys, and thereafter the defendant in the writ succeeded upon the trial of the action and the constable failed to return to him the money deposited— Held, in a suit upon the constable’s bond for a forfeiture thereof, that the acts of the constable were not performed in furtherance of his duty, as prescribed by law. but were performed by him unofficially or colore officii and as such could not subject his sureties to liability on the bond.</p>

<p>Plaintiff was in defendant’s employ and in the course of his work used a bicycle and coat of the defendant. Upon his leaving the employment, the defendant demanded the bicycle and coat, to which plaintiff replied “that’s all right.” The defendant without looking for the articles, had plaintiff arrested for larceny; after a hearing the plaintiff was discharged by the magistrate; all the clerks of defendant made use of the bicycle and coat and plaintiff testified that he left them in defendant’s store. Held, that there were no disputed facts bearing on the question of probable cause, that that question was for the court, and the defendant was not injured by a refusal to charge a request which, in order to justify a verdict for the plaintiff, required the jury to find that there was no probable cause for the complaint.</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 Hudson Circuit Court. .</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 496.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 632.</p>

<p>On error to the Supreme Court, on review of a judgment of the Warren Circuit Court.</p>

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

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

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

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

<p>On error to the Supreme Court, whose opinion, delivered by Mi-. Justice Parker, is as follows:</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroorn, 76.</p>

<p>1. Grounds of objection to the admission of evidence, which were not presented to the trial court, will not be considered on writ of error.</p> <p>2. Where the evidence justifies the points suggested by an hypothetical question, the answer to which is material to the issue, such question is not irrelevant.</p> <p>3. The refusal of a request to specifically affirm a proposition, which had already been affirmed in substance in the general charge, is not ground for reversal.</p> <p>4. An instruction that if the jury should find that the gate, the fall of which caused the injury, was blown down by a wind of onty from thirty-five to forty miles per hour, such a wind would not absolve defendant from liability, is not error. It is a matter of common knowledge that a wind of this velocity • is not an extraordinary wind.</p>

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 181.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 506.</p>

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

<p>On error to the Supreme Court, which affirmed on error a judgment of the Union Circuit Court.</p>