Volume 83 — New Jersey Law Reports

<p>An officer making sale of lands under tlie Martin act for unpaid taxes- and assessments is a mere municipal agent, having no authority except that vested in him by the statute, and is without power to make a sale except in strict compliance with the provisions-of the statute with relation to the price which the land must bring.</p>

<p>On quo vmrranto, .Demurrer to plea.</p>

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

<p>On certiorari.</p>

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

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

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

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

On rule to show cause. The plaintiff applied to the defendant to operate upon a rupture in his left groin that had been unsuccessfully operated upon two years before by another surgeon. Upon learning that the plaintiff was a poor man the defendant engaged to operate free of charge.

<p>A conductor of a street railway car may lawfully eject a passenger who refuses to pay his fare; the fact .that the passenger was a city policeman whom the company under a city ordinance was required to carry free of charge did not justify him in arresting the conductor for putting him off the car.</p>

<p>'The common council of Atlantic City, on May 25th, 189C, by the passage of the resolution required by the act of March i4th, 1879 (Pamph. L., p. 270), established a sinking fund under the provisions of that act. On Maróh 25th, 1912, city council passed a resolution rescinding the said resolution of May 25th, 1896, and providing for the handing over of the fund to a committee of -common council. Held, that the power conferred by the act of 1879 in this respect was exhausted by its exercise, and that the attempted rescission of the resolution by which a sinking fund was established was nugatory and ultra vires, and that the handing over of the fund to common council was without legislative or legal warrant.</p>

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

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

<p>On certiorari.</p>

<p>1. The prosecutrix upon tlie trial of an indictment for rape when it is essential to prove that she is under the age of consent, may testify to her own age.</p> <p>2. Upon the trial of an indictment for rape, the court permitted' the prosecutor of the pleas to ask if the girl made a complaint against the defendant; the case was presented to this court under' section 136 of the Criminal Procedure act. Held, that no manifest wrong or injury was done to the defendant.</p>

<p>On certiorari bringing up conviction before a magistrate.</p>

<p>1. In a suit for damages caused by a wrongful diversion of water from a river, the defendant is not chargeable, with the total cost ■of a permanent improvement to the plaintiff’s property made for the purpose of securing a supply of water from another source, where the plaintiff still retains the use of the improvement. The true rule is to allow for the value of its use to the time of beginning suit, which may properly include an allowance for the ' loss due to wear and tear and depreciation.</p> <p>2. The plaintiff in an action for wrongful diversion of water, where he has been compelled to procure a new supply, which is delivered by gravity, must in his claim for damages deduct the cost ■of pumping the' former supply from the cost of the new supply.</p> <p>3. Where water is wrongfully diverted from a river by several corporations. the true basis for apportioning the loss of the plaintiff in an action for the diversion is the proportion of the current flow diverted by each in times of low wáter when the plaintiff could not obtain its former supply.</p>

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

<p>On informations in the nature of quo warranto.</p>

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

<p>1. While, as against a trespasser, a malicious or intentional injury is actionable, a merely negligent act will not form the basis of recovery, because the duty to observe reasonable care is not owing to a trespasser.</p> <p>2. The question whether an injury to a trespasser (an able-bodied man), sustained by reason of his being forced from a siowlymov-ing street car, nothing- more appearing, was malicious or intentional, and therefore actionable, is for the jury.</p>

<p>On certiorari.</p>

<p>3. A sweeping charge of misconduct leveled against a public board without exception, necessarily points the finger of condemnation, at every member thereof, though none are named, and every member of the board may maintain an action therefor.</p> <p>2. The office of member of a district board of registry and election is one of profit, and a member is subject to removal if shown to be disqualified. Words spoken falsely imputing drunkenness while on duty, and unfitness for duty, to a member of such board, reflect upon his capacity, and tend to work a detriment from a pecuniary point of view by rendering his term precarious, and are actionable per se.</p> <p>3. When words spoken are actionable per se, plaintiff is not required to introduce evidence of actual damage to entitle him to substantial damages, since in the absence of any evidence of damage the law presumes damage.</p>

<p>On appeal from tiie District Court of the first judicial dis-ti ic-t of the county of Hudson.</p>

<p>On certiorari.</p>

<p>1. In a prosecution for a penalty under the Tenement House act (Comp. Stat., p. 5321), the board of tenement house supervision created by section 203 of the act, being a state agency, is not liable for costs.</p> <p>2. In this respect section 242 of the Practice act applies to District Courts as provided by section 68 of the District Court act of 1898.</p> <p>3. Hence in an appeal from a judgment for defendant upon such prosecution in the District Court, the board need not enter into an appeal bond.</p> <p>4. The extension of titne to agree upon or settle state of the case on appeal from District Courts (Comp. Stat.. p. 2017, § 213d) must not necessarily be granted by the judge that tried the case.'</p> <p>5. If the time be so extended as to make it impracticable to bring on the appeal by due notice at the next term, the requirement that such appeal be heard at the next term after the “determination or direction” of the District Court is not applicable.</p> <p>6. In a prosecution under a penal statute the evidence should shovv a case clearly 3vithin the terms of the statxrte.</p> <p>7. The question being whether the lowest inhabited floor of a tenement house should count as a “story,” and this depending on whether it was a “basement” more than five feet abo3ro the “grade” and assuming that “grade” is S3'nonymous with “curb level” as used iu the statute, but the word “curb level” being susceptible of two meanings, one of which would result in the lo3vest floor being counted as a story and the other would not, it was incumbent on the plaintiff to show facts which would require the application of the former meaning.</p>

<p>On certiorari. Sixteen cases.</p>

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

In tort. On demurrer to pleas. The suit was in tort for damages for being ejected from a theatre.

<p>1. An agreement by the seller of mortgaged lands to “reimburse and’ pay” to the purchaser thereof the “interest accruing” on the mortgages up to a specified date — Held, enforceable though the purchaser had not in fact paid such interest.</p> <p>2. An agreement by such seller to fill the sold lands up to grade by a certain date, time being of the essence of the contract, and to-pay a stipulated sum per day as liquidated damages for delay in making such fill, upheld as an agreement for liquidated damages..</p>

<p>1. The "Act to incorporate and regulate telegraph companies,” approved April 9th, 1875 (Comp. Stat., p. 5312), is broad enough to include companies organized to transmit telephonic messages over wires by electricity. Duke v. Telephone Co., 24 Vroom 341, followed.</p> <p>'2. Where, at the time of actual construction of a telephone line, the telephone company was not required by statute as a condition precedent to such construction, to obtain from the municipal body a designation of the streets, &c., through which its line was to be constructed, the facts that the company did not then compensate • the abutting owners either by private agreement or by legal proceedings, and that thereafter by statute such municipal consent was made a prerequisite to construction, will not bar condemnation proceedings begun on the basis of the original construction without such municipal consent.</p> <p>• 3. A telephone company in building its line along the public highway may do such reasonable trimming of the branches of trees as is reasonably essential to the proper operation of its line, without unnecessarily interfering with- or destroying trees or parts thereof, upon making proper compensation to abutting owners or other persons interested, for the damage done thereby.</p>

<p>3. In an action for slander, if express malice is shown, punitive damages may be awarded, depending upon the malicious character of defendant’s conduct, the amount being left to the discretion of the jury,'and a new trial will not be granted unless the verdict is so large that the excess is perverse, or the result of some gross error in a matter of principle.</p> <p>2. Punitive damages are not awarded, in a slander suit upon the theory of compensation to the sufferer, but as a punishment of the offender, and a warning 'to others.</p>

<p>1. Where a declaration sets up a condition precedent to be performed by the plaintiff, and then avers non-performance of it, no legal cause of action is shown, and a demurrer to such a declaration will be sustained. ■</p> <p>2. The legal conclusions of the pleader, where set out in the declaration, cannot be considered in determining its legal sufficiency.</p>

<p>Domestic services rendered by a daughter in a household of which her father is the head, will not raise an implied promise on the part of a stepmother, who requested the services, to pay for them out of her own estate, to the exoneration of the husband. To fix such a liability there must be, either an express contract to pay out of her own estate, or circumstances clearly showing the assumption of individual liability on her part, exclusive of that of her husband.</p>

<p>The act of 3931 (Pmnph. L., p. 512'), which excludes from its operation “those cities where boards of education now consist of less than nine members each,” is unconstitutional.-</p>

<p>1. The county boards of taxation are bound to keep a record of tlieir proceedings, and the addition of alleged omitted property to the duplicate of assessments for taxes requires the action of the board, which is not complied with by a direction to its secretary, given by one of its members to add omitted property without proof by record or otherwise that such was the determination of the board.</p> <p>2. In case such board adds to the duplicate omitted properly, it must give to the owner immediate notice thereof and of the time and place of the next meeting of the board, and the entry of omitted property on the tax list is not a binding assessment without proof of such notice.</p>

<p>On certiorari.</p>

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

<p>On certiorari.</p>

<p>’The statute providing for the forfeiture and revocation of a license (Oomp. Stat., p. 2907, § 83) prescribes as a necessary consequence of a revocation that no license shall be granted for a period of a year thereafter to sell liquors in the premises for which the forfeited license was granted, and hence it follows that a judgment of forfeiture cannot stand unless the owner of the premises is a party to the proceedings.</p>

<p>The language of the so-called Commission Government act {Pamph. L. 1911, p. 462) is broad enough and sufficiently clear to include a department of the city of Trenton created by special act {Pamph. L. 1859, p. 38), which acted as a governing body having functions for the administration of affairs of the municipal water works, and this department and the water commissioners were abolished as soon as the commissioners for the government of the city of Trenton organized.</p>

<p>On tleimm-er and motion to strike out deelaration.</p>

On certiorari. The jirosecutor, claiming to be.the clerk of the oily of Trenton, prosecutes this writ to bring under review a resolution of the board of commissioners of Trenton, passed October 13th, 1911, whereby Prank Thompson was elected city clerk, his election to iake effect December 1st, 1911. The following facts appear by stipulation and affidavits taken: On June 20th, 1911, the so-called Commission Government act {Pamph.

On certiorari. The prosecutor has procured to be allowed two writs of ■certiorari, each removing an ordinance jmssed by the town■ship committee of the township of Neptune entitled “An 'Ordinance requiring licenses for.delivery automobiles, motor trucks, motor vehicles and express wagons, fixing fees therefor, and penalties for using the same without such licenses, in the township' of Neptune, in the county of Monmouth.” The return to one of the writs sets forth the ordinance…

<p>1. The affixes Sr. and Jr. do not form part of a name but are descriptive merely, hence, in legal contemplation, their presence orabsenee is immaterial.</p> <p>2. It lies in the discretion of the trial court to permit a party to cross-examine its.own witness, when it appears that such witness is unwilling and hostile, and the party offering such witness has been surprised thereby.</p> <p>In a criminal case, the court has power to withdraw a juror, but this action rests in the sound discretion of the court and is to be exercised only in very extraordinary and striking- circumstances, in order to prevent the failure of justice.</p>

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

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

On error to the Atlantic County Oyer and Terminer. William H. Strong, indicted for the murder of his wife, Mary EL Strong, at their home near ISTeseo, in Atlantic county, on October 14th, 1910, was convicted of murder in the second degree, and sentenced to confinement in the state prison for a term of thirty years.

<p>1. “An act to enable adjoining- municipalities, other than cities, lying in the same county, to consolidate and form a city,” approved April 11th, 1908 (Pamph. L., p. 295) — Held, constitutional.</p> <p>2. Where a new city having less than twelve thousand inhabitants was created since 1899 under “An act to enable adjoining municipalities, other than cities, lying in the same county, to consolidate and form a city” (Pamph. L. 1908, p. 295), and held a municipal election for officers at the general election in November preceding the first day of January next after the making and filing of the order of the justice declaring the consolidating municipalities to be a city — Held, that such election was validated by “An act relating to and providing for the government of cities in this state containing a population of - less than twelve thousand inhabitants,” approved May 2d, 1911 (Pamph. L., p. 755), and its corporate existence began January 1st next succeeding such election.</p> <p>3. Qucery. Is the act of 1911 (Pamph. L., p. 755) constitutional?</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>A more employe of a city under contract, embodied in a resolution passed before the adoption and the taking effect of the Civil Service act (Gomp. 8tal., p. 3795), terminable at the. pleasure of the municipality, is subject to removal, according to the terms of his contract, a.t any time before that act becomes operative in such city.</p>

<p>1. An' order of the board of public utility commissioners requiring railroad corporations supplying drinking water on trains to passengers, to supply therewith a sanitary drinking glass or individual drinking cups, is not an unreasonable regulation under the powers committed to that board by the provisions of chapter 195 of the laws of 1911. Pamph. L., p. 374.</p> <p>2. An order of the board of public utility commissioners requiring railroad corporations supplying drinking water to passengers on their trains, to supply therewith a sanitary drinking glass or individual drinking cups does not result in depriving the railroad companies comprised within the terms of the order, of the equal protection of the law. and is not in conflict with the constitutional inhibition.</p>

<p>Where the parties to a contract oí sale have rescinded, the vendor accepting the property and taking possession of it, the vendee is entitled to maintain an action to recover the money paid on account of the sale.</p>

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

<p>On certiorari.</p>

<p>1. A mandamus will not go against a borough collector who refuses to sign a draft upon the borough depository for the payment of borough moneys where it is clear that there are none or insufficient moneys in the funds upon which the drafts have been drawn.</p> <p>2. Where a warrant for the payment of borough moneys does not conform in its mechanical execution with the requirements of the Borough act, the collector may properly refuse to honor it.</p> <p>3. To warrant the issuing of a mandamus against a public official, the right sought to be enforced must be clear and the public duty must be clear and specific.</p>

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

<p>On certiorari removing resolution of board of freeholders of Mercer county. /</p>

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

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

<p>1. The term “month” in a policy of life insurance construed to mean a calendar month.</p> <p>2. Where a premium was due on a life insurance policy on June 30th, and by the terms of the policy a period of grace of one month was allowed for its payment, and the last day of grace fell on July 31st, which was a Sunday, the insured had the first day 'thereafter upon which lawful business could be transacted, which was Monday, August 1st, on which to pay the same.</p> <p>3. The refusal of the insurer to accept the premium on that day and its claim that the policy had lapsed because the insured had not paid the premium within thirty days and that the policy would not be continued and no premium received unless the insured first underwent a medical examination, was a waiver, by the company, of any further tender of subsequent premiums, without notice to the insured that they would be received.</p> <p>4. The insurer having denied liability on, the policy upon the specific ground that it had lapsed and therefore ceased to continue in force made it unnecessary to fnrnisli proofs of the death of the insured in order that the policy may become suable.</p> <p>5. Where a life insurance company issues several policies on the life of the insured and there is nothing contained in any of them which requires a separate proof of the death of the insured to be made, such proof of death made under one of them suffices to make the policy under which no such proof lias been made, actionable.</p>

<p>The words “immediately thereafter” contained in the provision of the statutory bond required to be given under section 2 of the Insolvent Debtors act (2 Comp. Stat., p. 2825), by an insolvent debtor petitioning for the benefit of the insolvent laws, that he, the debtor, will, if refused a discharge, surrender himself immediately thereafter to the sheriff or keeper of the jail of said county, construed to have the meaning of “directly” or “at once,” after the debtor’s discharge has been refused.</p>

<p>1. Prior to the adoption of the constitution of 1776 of the State of New Jersey, women had no legal claim to vote.</p> <p>2. No right to vote was conferred on females by the constitution of 1776.</p> <p>3. Even though the act of 1797 permitted females to vote, it was subsequently repealed by the statute of 1807.</p> <p>4. The act of 1S07 and subsequent statutes excluding females from the right to vote are not in contravention of the constitution of 1776.</p> <p>0. The act of 1844, calling for a constitutional convention and •which excluded women from voting for delegates thereto, was neither in contravention of the letter nor of the spirit of the constitution of 1776.</p> <p>6. The constitution of 3844 having been submitted to the vote of the people, in pursuance of the act of 3844, and adopted, is the fundamental law of this state until supplanted either by a new constitution adopted, as that was adopted, or by amendment in the manner therein provided.</p>

<p>1. The appellant sought to prove the rental value of certain stands in an amusement park, leased by the plaintiff to the defendant, by a witness who admitted that he had no -knowledge whatever of the rental value of such stands in the locality where they were situated, whereupon the court interposed an objection that the witness was not competent to give such testimony (the plaintiff having failed to interpose any objection), and overruled the question propounded to the witness, by the appellant, as to the rental value of such stands. Held, that the interposi- ■ tion by the court, 'on 'its own motion, and its overruling the . question did not thereby deprive the appellant of any substantial right to which he was entitled.</p> <p>2. Where a witness is called to give expert testimony, the question whether he is so qualified is a preliminary one for the court to decide, and counsel cannot, by either express or implied waiver of proof of such qualification of the witness, deprive the court of its -prerogative to pass upon the competency of such witness to give expert testimony, and to require that his qualifications to testify as such expert should be first established.</p>

<p>1. It was error prejudicial to defendant to exclude the proffered testimony of the defendant’s surveyor and photographer' tending to show observations made by them at a railroad crossing nearly two years after the happening of an accident at said crossing, of the extent of view in the direction in which a locomotive engine of the defendant' approaéhed said crossing and killed several of •the plaintiff’s cattle, which were being driven over the crossing by the plaintiff’s servants, to one approaching the crossing in the direction that the plaintiff’s servants were, where it appeared that the road-bed had remained unchanged, and although it further appeared by testimony on behalf of the defendant, that it was uncertain whether at the time said observations were made certain obstructions and surroundings testified to by the plaintiff’s witnesses to have existed at the time of the happening of the accident, and which it was claimed obscured the view in the direction in which defendant’s locomotive engine approached the crossing, still existed at the time when the observations were made by the defendant’s surveyor and photographer.</p> <p>2. Though it appeared that the observations offered to be proved were made in the daytime and the accident happened in the dusk of the evening, and though the defendant's testimony left it uncertain whether the surroundings of the road-bed and the conditions at the crossing were the same when such observations were made as at the time of the accident, nevertheless such proffered testimony was admissible because the extent' of view to be had at the crossing in the direction in which the defendant’s locomotive engine approached bore materially upon the exercise of reasonable care by the plaintiff’s servants at the time for the safety of the cattle in driving them on to the crossing; the probative weight to be given to such testimony was for the jury to pass upon, under all the circumstances, under proper instruc-' tions from the court.</p>

<p>1. An action for money had and received held to lie against the town of Montclair, because it appeared that the said municipality had received the money through its chief of police, who had obtained it on behalf of the town from the plaintiff by duress.</p> <p>2. The act entitled “An act in relation to the expenditure of public ' money by municipal corporations” (Comp. Slat., p. 3665, § 726), requiring claims to be verified before payment thereof can be demanded, is not applicable to a claim of the nature of the plaintiff’s claim, and therefore he was not precluded from a recovery thereon without first making such verification and presentation of it to the municipality for payment.</p> <p>3. The municipality, having received the money which had been obtained from the plaintiff, by duress, was chargeable with interest thereon from the time it actually received it.</p>

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

<p>On certiorari.</p>

<p>1. The vested interest, which a wife had under policies in her favor, on her husband’s life, where he survived her, passed to him, and upon his death became a part of his estate and subject to his debts.</p> <p>2. Insured, after the death of his first wife, the beneficiary, under policies on his life, remarried without- making any change as to the beneficiary. Subsequently he died, and a check for the insurance proceeds, payable to defendant and decedent’s three children, was collected by defendant, who procured the endorsement of the plaintiff, under a promise, as claimed by her, that defendant would settle with her. ■ There was no evidence that defendant waived her -legal exemption as widow. Held, in an action against defendant for one-fourth of the proceeds of the check, that the plaintiff was not entitled thereto, but merely to one-fourth'- of what remained after deducting defendant’s exemption and decedent’s debts, and hence it was error to exclude proofs by defendant as to what debts she had paid.</p>

<p>1. The description in the advertisement of sale of land for unpaid assessments should be such as to warn the owner for what property he is assessed, and such as to secure a fair sale by showing to purchasers what property is to be sold, and where it appears that these requisites have not been complied with, the sale will be set aside.</p> <p>2. The fourteenth section of the act of 1903 (Pamph. L., p. 348), which provides: “No certiorari shall be allowed to review any sale of land to. enforce any assessment or tax, unless such writ be allowed within three years from the date of any such sale,” is not applicable where no assessment, has been laid or proper sale made.</p>

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

<p>On demurrer to replications!.</p>

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

<p>1. The bond prescribed by section 5 of the Quo Warranto act is not required to be given by a relator who institutes proceedings under the act until the information is filed.</p> <p>2. The warden of the Essex county penitentiary holds an office, and not a “position.” within the meaning of that word as used in our decisions upon the subject of municipal employment; and the proper proceeding to test the right of an incumbent to hold that office is by information in the nature of a quo warranto, and not by certiorari.</p>

<p>On petition of the attorney-general.</p>

<p>A bill having been introduced into and passed by the house of assembly was sent by it to the senate for the latter’s consideration of, and action upon, the measure. The senate upon its consideration of the bill amended it in several particulars, passed it in its amended form, and returned it to the assembly, and that body then passed the bill as amended. Thereupon the bill as originally passed by the assembly, and without the amendments adopted by the senate and afterward concurred in by the assembly, was presented to the governor, and was, after consideration, signed by him. Held, that, as the amended bill as adopted by both houses has never received the approval of the governor, and as the bill to which the governor’s signature was attached was not the act which, in point of fact, was passed into a law by the legislature, neither the one nor the other has become a part of the statute law of this state.</p>

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

<p>1. Upon the authority of the case of Van Blarcom v. Central Railroad Co., 44 Vroom 540, it was erroneous to instruct the jury that it was the duty of the motorman and conductor to use “a high degree of care” to avoid a collision with plaintiff’s automobile.</p> <p>2. A verdict based upon an erroneous rule of law as to the defendant’s liability may be set aside on rule to show cause, although no exception to the erroneous instruction was taken at the trial.</p>

<p>1. The offence charged by the allegation in an indictment that the defendant committed an assault upon E. with intent to kill the said E. may be sustained by proving that the assault was made upon E. with the intent to kill G.</p> <p>2. Facts pleaded in an indictment according to their legal effect may be proved by evidence that determines their legal character.</p> <p>3. The general principle of the criminal law that the intent with which an act is done determines the legal character if its consequences, although such consequences operate upon a different person from that intended, applies to statutory as well as to common law crimes.</p> <p>4. Upon the trial of the accused for committing an assault upon E. with intent to kill E. proof that liis intention was to kill G. is relevant and not evidence of a distinct offence.</p>

<p>The twentieth section of the Road act of 1859 (4 Comp. 8tat., p. 4451, § 66. art. 19) does not apply to boroughs ; and section 84 of the Road act does not apply to the section cited.</p>

<p>An action for alienating a wife’s affections, for enticing her away and for criminal conversation is in effect an action upon the case and barred only after six years; it is not an action for injury to the person and barred after two years under section 3 of the statute of limitations as amended in 1896. Comp. Stat., p. 3164.</p>

On certiorari. Certiorari to review the appointment of commissioners to' condemn a portion of the water works of the prosecutor, from which the edy of Plainfield and other municipalities in the counties of Union and Somerset are supplied with water. The prosecutor is a corporation formed the consolidation of the Plainfield Water Supply Company and the Union Water Company, pursuant to the General Corporation act. The consolidation agreement is dated September 21st, 1906.

This is a suit upon an insurance policy in the standard form. It contained a privilege -to keep three automobiles.

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

<p>On certiorari.</p>

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

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

<p>1. To recover in an action lor the value of goods sold and delivered there must be proof of delivery and acceptance.</p> <p>2. In an action to recover for the value of materials sold and delivered, it is erroneous for the judge , to instruct the jury as a matter of law that the “materials were delivered to the defendant,” when it appears that they were not installed as a part of the plant for which they wore intended, and when the evidence upon the part of the defendant tends to show that before the materials were brought to his premises he notified the plaintiff “not to deliver them” as they were “not needed” and that the plaintiff said “all right.”</p>

<p>1. A motion to nonsuit was properly denied where the evidence justified a finding- that the plaintiff, a passenger, was injured 'through the giving- way of the adjustable hand-rail, which he took hold of in boarding a vestibule car of the defendant’s train, because the lower end of the rail had not been put in the socket by the defendant’s servant, who'adjusted it for the assistance of passengers .boarding the car at that stop.</p> <p>2. Requests t'o apply certain rules of law, submitted to a judge, sitting without a jury, are properly refused when they are either unsound or inapplicable to the facts in evidence.</p>

<p>Pour writs of certiorari to review indictments. Heard on motion to quash.</p>

<p>An indictment for perjury will not be quashed upon the ground that the alleged false testimony ‘.‘was not material to the investigation of the complaint by the grand jury,” when it avers in effect (1) that the grand inquest in and for the county of Camden was investigating the alleged misconduct of the board of excise commissioners of the city of Camden in corruptly refusing to grant a license to sell intoxicating liquors to one Leon Miller; (2) that during such investigation it appeared that Miller had held a license for three years then last past, and had never violated any law or ordinance relating to the sale of intoxicating liquors; (3) that the question then became material whether any legal and sufficient reason existed for such refusal, and (4) that the defendant appeared before the grand jury and was duly sworn as a witness and willfully, corruptly, falsely and knowingly testified, among other things, that Miller, while holding a license, continually opened his place of business before five o’clock in the morning, contrary to an ordinance of the board of excise • commissioners.</p>

<p>1. An ordinance declaring that “Any person * * * who shall publicly * * * perform, or cause to bo publicly * * * performed, in any place whatever, for any price, gain or reward, any ® ® * dancing, * * * feats of uncommon dexterity and agility of the body, * * * and any ® ® ® person having possession or care of any building ® * * who shall permit any performance of any kind in such building * * * without first having' obtained license for that purpose, shall be liable to a fine of fifty dollars for every offence,” applies to an individual performer who may be hired to help make up an exhibition.</p> <p>2. On certiorari, the Supreme Court need not consider matters which, although they appear in the state of the case, are not referred to in the. argument or brief presented on behalf of the prosecutor.</p>

<p>1. Liability of a county clerk for a breach of his official duty in respect to indexing a mortgage delivered to him to be recorded, inures only in favor of one who was prejudiced by the breach of such duty.</p> <p>2. One who has actual knowledge of the existence of a mortgage covering property, and with such knowledge buys such property, is not damnified by the fact that the county clerk failed to index the mortgage when it was delivered to him for record.</p> <p>3. On appeal from a judgment of the District Court rendered by the judge, sitting without a jury, where opposite conclusions might have been drawn from the testimony, that conclusion which is essential to support the judgment will be taken as found.</p> <p>4. A determination of a question of fact by the judge of the District Court, sitting without a jury, is final between the parties when there is legal evidence to support it.</p>

<p>The action of a court of law in directing a new summons to be issued and served by reason of error in the issuing of service of tlie original summons (Practice act of 1903, section 53) is not reviewable by certiorari but only by writ of error after final judgment.</p>

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

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

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

<p>Where, in an action of replevin, the defendant interposed as a defence that he was entitled to retain the possession of the chattel replevied, by reason of a lien in his favor, arising out of repairs placed upon such chattel by him, and the record of a former suit between the same parties was offered in which recovery had been sought for the value of such repairs, and judgment had passed for the defendant therein — Held, that the maintenance of the defence that the defendant had such lien was dependent upon some amount being due for such repairs, and that that identical point, having been litigated in the former suit between the parties, in a court of competent jurisdiction, the resulting judgment possessed all the elements of estoppel by record, and precluded the defendant in replevin from setting up such defence.</p>

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

<p>1. The Common Pleas is without jurisdiction to try de novo an appeal from the small cause court, adjudging a defendant guilty of a violation of the provisions of the sanitary code of a municipality, ordained under the provisions of the act creating local boards of health. 2 Comp. 8tat., p. 2662.</p> <p>2. If such a right of appeal exist, it confers no power upon the Common Pleas to adjudicate upon the reasonableness of the regulation of the local board of health, since such an issue can be determined only by this court upon certiorari.</p> <p>3. It was not within the legislative Intent in enacting legislation conferring upon the local boards of health the power to prescribe quarantine- regulations, in a district or locality infected with a contagious disease, to Subject the discretion of such boards to the review of the local courts for the purpose of substituting the judgment of such tribunal for that of the hoards to which the power is specifically committed.</p> <p>4. If the boards of health so constituted transcend their authority, in a given case, the act itself provides a remedy to the party aggrieved.</p>

<p>1. Where mill castings were deposited with an express company for delivery to a repair shop, and no specific instructions were given to the carrier as to the necessity for an expeditious transportation of the castings by the carrier to and from the shop, and the carrier was not informed that pending the return of the castings the mill would have to shut down and the plaintiff’s business cease, the damages recoverable for delay in transportation and return of the castings are governed by the rule laid down in Hadley v. Baxendale, 9 Exch. 341.</p> <p>2. For an inordinate and unnecessary delay in the carriage of goods, the consignor is entitled to recover the loss' directly and proximately resulting from the delay.</p> <p>3. Whether the delay was unreasonable is generally a question of fact.</p>

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

<p>The excise commissioners passed a general resolution purporting to deny new licenses lor tlie sale of intoxicating liquors until January 1st, 1918. Before the expiration of that period they granted a license to the owner of a place which had been previously licensed, but whose application for a renewal for the previous year had been refused. In the interim the owner had not abandoned the place, but had altered and repaired it with a view to the continuance of the business when licensed. Held, that the place was not a new place, and that the resolution in question did not include it.</p>

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

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

<p>Where the contract between the purchaser and seller of real estate contained a provision fixing the compensation of the agent who procured the purchaser, and also fixing the period of payment of ■such compensation as the time “of the consummation” of the sale — Held, in an action by the agent to recover his commissions that the consummation of the sale contemplated by the parties was the passing of the title, and that the agent's compensation under the contract was contingent upon that.</p>

<p>On error (o the Hudson Oiremit.</p>

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

<p>The fact that a payment of a license fee to a city board of health was accompanied by a written protest against the right of the board to exact it, does not relieve the payment of the character of having been voluntarily made.</p>

<p>On certiorari reviewing two indictments, and order quashing same in Passaic Quarter Sessions.</p>

<p>1. An instrument reciting that the assignor agreed to pay a company for any amount of flour delivered to B. to any amount to $500 was a continuing guarantee, and did not contemplate merely a single transaction.</p> <p>2. A continuing guarantee.to pay for any amount of flour delivered to another to any amount up to $500 was revocable at any time by the guarantor.</p> <p>8. A promise by one who had theretofore revoked his guarantee to pay plaintiff for flour furnished another up to a certain amount, to stand by his guarantee, if made after the flour was furnished, .was without consideration and unenforceable.</p>

<p>On certiorari.</p>

<p>1. The exclusive possession of a part of a public highway by an individual, no matter how long continued, does not destroy the public easement therein. The right of the public to appropriate such portion of the highway to public use whenever their wants or convenience may require it, may be exercised whenever in the judgment of the public authorities it may be advisable to do so.</p> <p>2. Ejectment will lie by the public authorities having charge of highways against a defendant who is the owner of the fee in the land upon which the public easement of way has been imposed, and who excludes the public from the use thereof.</p>

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

<p>A justice of the peace holding office in a city in which a District Court exists has .no jurisdiction to entertain a proceeding for a violation of the jiro vision of section 13 of the act for the prevention of cruelty to animals.</p>

<p>1. Where both tlie term and the salary of the office of treasurer of a private corporation are. annual and co-extensive, an incumbent who serves in tlie office during the full term is entitled to the full salary, although the amount of the salary was determined upon after his election to the office.</p> <p>2. Action taken at a meeting- of a board of directors at which every member was present binds the. corporation, although no formal call for such meeting was had and no notice thereof was given to members of the board.</p> <p>3. Where no minute is made of the proceedings had at a meeting of the directors of a private corporation, parol evidence of parties who were present is receivable for the purpose of proving such proceedings.</p> <p>4. Where a person subscribes to the stock of a corporation, and he is admitted to membership in the corporation on the strength of his subscription, and thereafter exercises all the rights of a stockholder therein, his obligation to pay for the shares is fixed; and this is so although no certificate for such shares has ever been issued to him, or to anyone standing in his right.</p>

<p>Services rendered by a wife in the home of her husband to a lodger residing with them, even though they consist largely of the personal attendance of the wife, and include the nursing of the lodger when sick, are within the range of her domestic duties, and without an express contract or promise made by the lodger to the wife the latter cannot maintain an action against him, or, in case of his death, his executor, for the recovery of. compensation for such services.</p>

<p>1. An attorney of a sister state may maintain an action in this state to recover compensation for legal services rendered to a client in the state in which he is licensed to practice.</p> <p>2. An attorney of this state may maintain an action against his client for services in examining or in preparing papers which are. not connected with any pending litigation, without first delivering to his client a copy of the taxed bill of his fees, charges and disbursements as provided by section 9 of the Practice act of 1903.</p>

<p>1. The one year limitation in actions for death contained in the General Railroad law (Pamph. L. 1903, p. 674) is superseded and in effect repealed by the Death act of 1907 (Pamph. L., p. 386), by which actions for death may be brought at any time within two years, upon the doctrine that when the legislature frames a new and general rule covering an entire subject-matter, all earlier and different rules touching the same matter are to be discarded in favor of such later rule.</p>

<p>1. The place of work of a servant was a pit under a locomotive tender, which was a reasonably safe place unless the tender was . moved without warning. There was a custom of giving such a warning, but whether it was given as an incident of the work of the master or a.s the duty of the master to warn the servant was a disputed question. Held, that where the testimony was conflicting, and variant inferences could be drawn from it, this question was for the jury.</p> <p>2. A warning is incidental to the work of the master when the act that constitutes such warning is done as part of the work for the master, in the performance of which his servants were at the time engaged, and not as the performance of the master’s duty to warn his servants, although it may incidentally have that effect.</p>

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

On error to the Essex Oyer and Terminer. This writ of error' brings up the conviction of Allison M. MacEarland of murder in the first degree. The jury found that the plaintiff in error willfully caused the death of his wife by placing a bottle of poison where she would take it by mistake and that she did so take it with fatal results.

On error to the Bergen Circuit Court. The .plaintiff sued to recover for the erection of a school house. Although the bill of particulars disclosed that he sought to recover only the amount of two certificates by the architect and two small items of extras, the trial judge conceived that matters of account were in controversy and ordered a reference.

Oil error to the Gloucester Circuit Court. Action by vendor against purchaser to recover purchase price of lots. The written agreement of sale requires the payment of the purchase price in monthly installments, and provides that upon default in payment, the vendor may treat the whole purchase-money remaining unpaid as immediately due and payable.

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 197.</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 51 Vroom 217.</p>

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

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

<p>A 'contract for the furnishing of electric current at a stipulated rental for a fixed period of three years provided that the party furnishing the current “agrees to renew this contract at its expiration for an additional three years should the party of the first part desire such a renewal” — Held, that the party furnishing the current was not bound to renew unless the desire of the other party for such renewal was communicated on or before the last day of the original term.</p>

<p>Under the rule laid down in New York, Susquehanna and Western Railroad v. Paterson, 32 Vroom 408, it is not so much the mere existence of a “freight yard” at the place of a proposed street crossing of railroad property as the deprivation of beneficial use by the railroad of such property, that must furnish the test of the municipal right to make the crossing under general powers to open streets and take lands therefor.</p>

<p>1. The defendant by pleading the general issue in an ejectment suit admits a possession by him amounting to an ouster of the plaintiff, and if the latter shows at the trial a title against which an exclusive possession or claim of the defendant would be wrongful, he will he entitled to judgment.</p> <p>2. An easement of a right of way is no defence to an action of ejectment brought by the owner of the fee to recover possession, where the defendant admits by his plea that he has ousted the plaintiff and claims exclusive possession.</p> <p>3. Ejectment cannot be maintained to recover a right of way which is limited to an easement over lands, the fee of which is in another. The appropriate remedy is an action for damages resulting from an unlawful interference, or by injunction if a case for equitable jurisdiction is presented. Nor can such an easement be established in favor of tlie tenant of the easement in an ejectment suit brought by the owner of the fee to recover possession, for it would amount to the recovery of a right of way in a suit not adapted to the adjudication of that question.</p>

<p>The agent of a foreign corporation, which had not obtained from the secretary of state a certificate that it was authorized to do business in this state, negotiated for it a sale of goods to the. defendant. The negotiations were carried on in this state, and resulted in a written agreement signed in this state by the defendant and the agent, which contained an express stipulation that it was subject to the approval of the home office of the vendor in another state. Held, that the writing did not become a contract, binding the parties thereto, until it was approved by the foreign corporation, and such sale not being completed until such approval, it was not “transacting business in this state,” requiring the obtaining of the aforesaid certificate of the secretary of state before any action could be brought upon any contract made by it, as prescribed in section 98 of “An act concerning corporations” and the supplements thereto. Pamph. L. 1896, eh. 185;</p>

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

On error to the Atlantic County Circuit Court. Two suits were instituted in the Circuit Court of Atlantic county against Joshua Jagmetty and Susan A. Jagmetty, his wife, one by Anna Harrington to recover for personal injuries received by her in an elevator accident at the hotel known as Elmont Hall, wherein she was a guest, and the other by Harry W. Harrington, her husband, for .loss occasioned to him thereby. The two suits were tried together.

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

<p>1. No duty to make h'ules is imposed upon the employer for ’the safety of his employes' in the conduct of his business where the ’business is neither complex nor extrahazardous, nor where the .dangers incident to it are obvious, or of common knowledge, and are understood by the servants.</p> <p>2. Whether a particular rule should be enacted should not be left to the jury arbitrarily to find, but there should be proof that the • practice of promulgating such rules in similar manufactories under similar conditions is general. In the absence of proof that it is the general usage of other employers engaged in similar lines of business to adopt rules claimed to be necessary, and that they would be practicable. and useful, a master will not be charged with negligence for failure to make them.</p> <p>3. Where the danger is one that a servant should have reasonably anticipated as a result of the practices customarily carried on and participated in by himself, and their dangerous character one that he must have appreciated, whether such danger arose from a lack of rules or a defect in the system, it was a risk known to him which he assumed.</p>

<p>On error to the, Monmouth Circuit Court.</p>

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

<p>1. In a suit upon a bond for the faithful performance of á contract, where a provision of the bond required that within a stipulated time notice should be sent by registered letter to the obligor of any default upon the part of the principal, and it appeared in evidence that such a letter was sent, and was received by the surety company — Held, that in the absence of proof to the contrary, it would be presumed that the transmission of the letter was by the method prescribed in the contract.</p> <p>2. A question of law not specifically presented to the trial court and not fairly within the scope of an exception taken, does not present a ground for reversal in this court.</p>

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

<p>Where the plaintiff, a carpenter of experience, was employed to repair a pitched roof upon defendant’s shed, and, having worked thereon for two days, upon the third day slipped upon snow and ice, which collected while he was working, and fell from the roof, injuring himself — Held, that the danger incident to the snow and ice upon the roof was as obvious to the plaintiff as to the master, and was a risk assumed by the plaintiff in the performance of his work.</p>

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

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

<p>Oil error to the Supreme Court, whose opinion is reported in 53 Vroom 16.</p>

<p>1. An answer to a question which required the plaintiff to testify as to his mental attitude respecting his willingness to finish a contract entered into by him wibb the general contractor of the defendant, upon the,credit of such general contractor, where the plaintiff had previously testified that lie refused to perform the work for the general contractor, was neither harmful nor prejudicial to the defendant, since it added nothing to the probative force of the resultant act from the mental operation, to which the plaintiff had already testified.</p> <p>2, Whether the form of expression, “I will see that you are paid,” is or is not a collateral promise, necessarily depends upon circumstances surrounding the making of such promise. The real test is, to whom was credit given.</p>

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

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

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

<p>1. In reviewing a refusal to nonsuit or direct a verdict, the testimony will be considered in the aspect which is favorable to defendant in error.</p> <p>2. Where there is a substantial dispute as to the facts, a motion for direction of a verdict is properly refused.</p> <p>3. In cases where a landlord may not be held responsible for injuries caused by the defective condition of the demised premises in the absence of an agreement to repair, ho is nevertheless liable where he undertakes to do work on or about a part of the premises either for compensation or gratuitously, and by reason of the negligent doing of such work a person in the employ of his lessee is injured.</p>

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

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

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

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 6.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 298.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 246.</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 53 Vroom 312.</p>

<p>On error to the Supreme Court, which affirmed a judgment of the Hudson County Sessions.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 133.</p>

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

<p>3. Collision means tlxe act of colliding, and imports striking together ; violent contact. Both bodies need not be in motion.</p> <p>2. Water and land are “objects,” and an automobile which runs into either or both collides with an object or objects.</p> <p>3. It is a familiar rule that if a policy of insurance be susceptible of two meanings, that construction is to be adopted which is most favorable to the insured. Conditions and stipulations in such a policy are to be construed most strongly against the insurer.</p> <p>4. A provision in an insurance policy that damages to an automobile, resulting from collision due wholly or in part to upsets, shall be excluded, does not operate to defeat recovery where an automobile ran off a highway bridge, was precipitated into the water below and landed at the bottom-of the stream upside down— the collision not being due to the upset — the upset being rather the result of the collision. When the ear ran off the bridge dynamic force and gravitation determined the position in which it would strike first the water and then the bed of the stream; its final position being merely incidental to collision with the water and the land.</p>

<p>While it is a rule that a railway company having the right to lay tracks in a public street, by the general principles of the common law and without either statute or ordinance or contractual obligation, is bound to lay its tracks in a proper manner, and to keep them in a proper state of repair, nevertheless, liability of such a company for failing to keep the surface of the street in repair does not result from the mere fact that the corporation has been vested with a franchise or license to use the public street; the liability to maintain the pavement, as such, if it exists, must rest upon some statute or ordinance imposing such a duty, or must arise, out of the obligations of a contract; and, in the absence of statute, ordinance or contractual obligation creating such duty, a railway company is not liable to one of the traveling public who is injured by stumbling over one- of its tracks which is exposed by reason of the highway becoming depressed at the place of the accident, when such depression in the street lias not been occasioned by the negligence of the company.</p>

<p>1. A witness is always at liberty to refresh his memory before testifying. He may even do so in court while upon the witness-stand by reading from memoranda made by himself at or near the time of. the events recorded.' Instead of doing this, a witness may, if he chooses, refresh his memory out of court by reading a memorandum made by himself of and concerning the incident to which he is about to speak on the witness-stand, and the testimony thus given will be unimpeachable so far as the manner of refreshing * his recollection is concerned.</p> <p>2. The prosecutor of the pleas interrogated one of the witnesses as to what he testified to upon a former trial of the defendant, and whose testimony on the trial under review apparently showed considerable lapse of memory during the interval between the two trials; this was not an attempt by the party offering the witness to impeach his character for truth and veracity, but to revive his recollection as to matters to which he had testified before, and concerning which his memory appeared to have lapsed, and so was clearly admissible upon the theory that the prosecutor was surprised. Counsel, -in thus exploring the mind 'of a witness who has surprised him, is at liberty to go only so far as the trial court, in the exercise of a sound discretion, may deem proper.</p> <p>3. The finding of the trial court that a defendant’s confession was voluntarily made will not be reversed if there be any legal evidence to support it.</p> <p>4. The provision of section 107 of the Crimes act {Comp. 8tat., p. 1780), that in no case shall the plea of guilty to murder be received upon any indictment, and if upon arraignment such plea should be offered, it shall be disregarded and the plea of not guilty entered, and the jury, if they find the accused guilty, shall designate by their verdict the degree of guilt, concerns alone the practice upon a prisoner’s arraignment and trial on an indictment for murder, and does not operate to prevent the conviction of the prisoner upon a voluntary confession made by him even if there be no corroborating evidence, provided the corpus delicti be proved. .</p> <p>5. The only limitation upon the use as evidence against him of a prisoner’s confession of murder, voluntarily made, is the want of proof of the corpus delicti. If death, through criminal agency, be proved, and a man confesses to having caused that death, he may be convicted of murder on his confession.</p>

<p>1. The fact that a verdict has been directed by a trial court upon a ground which is untenable, does not of itself justify a reversal of the judicial action by an appellate tribunal. The question to be determined upon review is the propriety of the judicial action, not the soundness of the reason which prompted it.</p> <p>2. The work of installing new rails in a railroad track, which is used sometimes in interstate and sometimes in intrastate transportation, is not an engaging in commerce but a preparation for engaging therein in the future; and an employe of a railroad company who is injured while doing such work does not suffer injury “while employed by his master in interstate commerce,” within the meaning of the first section of the federal Employers’ Liability act of April 22d, 1908.</p>

<p>The legality of the existence of a grand jury does not depend at all upon the validity or invalidity of the title of the officer by whom that body is selected and summoned. If the title of such officer is colorable, acts done by a grand jury, selected and summoned by him, in the performance of the duty imposed upon it of presenting for trial all violators of the criminal law, are as impregnable against attack as if its members had been selected and summoned by an officer whose title is unimpeachable.</p>

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

<p>1. The provision of section 136 of the Criminal Procedure act of 1898, by which the right of review is extended beyond errors assigned on the record or upon bills of exception, does not supersede the review of such matters upon assignments of error or require that the plaintiff in error shall relinquish any of the advantages of such a review.</p> <p>2. Under the criminal procedure in force in this state, a review in criminal eases may be had under a single writ of error (1) for errors properly assigned upon the record or bills of exceptions, and (2) for matters appearing in the trial record disclosing that manifest wrong and injury has resulted to the plaintiff in error from the judicial conduct of the trial in respect to certain specified matters.</p> <p>3. The case of State v. Lyons, 41 Vroom 635, followed as to the construction of the one hundred and thirty-sixth section of the Criminal Procedure act.</p> <p>4. Where the official character of a document was a relevant circumstance on the merits of the defence, the refusal to admit such document in evidence was error that was not rendered harmless because there was oral testimony in the case as to same facts as those stated in such document.</p> <p>5. ' An indictment, charging the soliciting of a bribe to vote for one Hannis, omitted to state that it was Hannis who was solicited, which was made the ground of a motion to quash, which was denied. The motion disclosed that the fact that it was Hannis’ name that was omitted was known to the defendant, who was in nowise prejudiced at the trial by such omission, field, that ■the denial of a motion to quash, being a matter of discretion, was not reviewable upon error assigned on a bill of exceptions. Held also, that, conceding the right to review such a denial as a matter of discretion under the one hundred and thirty-sixth section, the judgment could not be reversed for an omission in the indictment that had not prejudiced the defendant in maintaining his defence upon the merits. Pamph. L. 1855, p. 649; Rev. 1875, p. 284, § 89; Rev. Crim. Proc. Act 1898, § 136.</p>

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

<p>The provisions of section 6 of “An act to reduce the number of members of boards of chosen freeholders,” &c. (the Strong act, Pamph. L. 1902, p. G7), concerning title terms of office of certain officers, do not apply to a mere clerkship in a county institution.</p>

<p>1. The courts do not undertake to determine so fundamental a political question as the existence of the government they serve. Luther v. Borden, 7 How. 1, followed ; Bott v. Secretary of State, 34 Vroom 289, distinguished.</p> <p>2. The several states have the power to change the qualifications for electors of representatives in congress by changing the qualification for electors of the most numerous branch of the state legis- ' lature.</p> <p>3. Article 4, sections 2 and 3, of the state constitution provides that senators and members of assembly shall be elected by the legal voters; legal voters are the male citizens who by article 2 are given a vote for officers elected by the people.</p> <p>4. The right to vote is not a natural inherent right, but is the creation of constitutions and statutes. Ransom v. Black, 25 Vroom 446, followed.</p> <p>5. Women under our existing law are not entitled to vote for officers, delegates, presidential electors or upon questions referred to the people.</p>

<p>In an action by a child eight years of age for personal injuries caused by a motorcycle striking her, the judge charged that if the jury found that the plaintiff had started to cross the street, had stopped, and then started back on a walk and was struck, they had a right to infer that the cyclist was negligent; that it was the duty of the cyclist to be on the lookout so that in the event that anyone crossed in front of his path, and that person had secured the right of way, he might be in a position to stop the motorcycle; that by securing the right of way was meant that if the child, starting across from the sidewalk, had gotten into the street, and, if she saw the motorcycle, thought she could get across in advance of it, she had a right to suppose that the cyclist would govern his conduct and stop the motorcycle before it ran her down. Held, that this instruction was erroneous because it permitted an inference of negligence from the mere fact of collision, no matter how negligent the child may have been, and because it made the right of way depend on whether the child thought she could get across in advance of the motorcycle without regard to negligence of either party, and permitted the cyclist to be held responsible although she ran-suddenly and carelessly in front of his wheel.</p>

<p>1. Where a claim is unliquidated or in dispute, payment and acceptance of a less sum than claimed in satisfaction operates as an accord and satisfaction.</p> <p>2. To constitute an accord and satisfaction in law, dependent upon the offer of the payment of a less sum than that claimed, it is necessary that the money should be offered in full satisfaction of the demand and be accompanied by such acts or declarations as amount to a condition that if the money is accepted it is to be in full satisfaction, and be of such a character that the creditor is bound to understand such offer.</p> <p>3. The party seeking to settle for a less sum than is claimed to be due must, by his words or conduct when making the offer, clearly inform the other of what is sought and expected. The transaction must bo such that the condition is as plain as the tender, so that the acceptance of the tender will involve the acceptance of the condition. In other words, the tender and the condition must be incajjable of severance.</p> <p>4. The condition that if a tender be accepted it shall be in full satisfaction of the disputed claim, may be expressed in the check itself, or in the letter, or account, or receipt accompanying the remittance, or even orally in conversation.</p> <p>5. Whether a tender is accompanied by such acts and declarations as are necessary on its acceptance to constitute an accord and satisfaction must be determined from the facts of each particular case. If the evidence is conflicting, the question is to bo determined by the jury.</p>

<p>The statute, section 20 of the Orphans’ Court act, declares that 'a transcript of any will duly proved shall be competent evidence in any suit relating to real or personal estate, the same as if the will had been produced and duly proved. Such transcript, if it shows that the statutory requirements have been complied with, is prima facie proof of due execution of the will, and where in an action of ejectment the subscribing witnesses to the will testify to facts inconsistent with the attestation clause and their testimony given in proceedings to probate the will, whicib if believed would overthrow the prima facie case, it was not error to refuse a direction in favor of the party seeking to invalidate the will, for whether the prima facie case had been destroyed was a jury question.</p>

<p>On error to the Supreme Court, Cumberland Circuit.</p>

<p>1. There is power to alter or amend a contract entered into between a railroad company and a municipality under statutes (Gomp. Stat., pp. 4234, 4266, 4258) for the elimination of grade crossings, provided such alterations or amendments concern those matters which are included in the objects of the said legislation, namely, the security of life and property to be effected by a change of grade in railroad tracks or streets.</p> <p>2. A municipal body has no power to indemnify one against his own act which may result in damage to the property of another where public rights are not concerned.</p> <p>3. A mere resolution of the governing body of a municipality will not serve to repeal or modify a duly enacted ordinance. To do so necessitates action of like formality to that required for the enactment of the original ordinance.</p> <p>4. An ordinance judicial in its nature cannot be repealed wholly or in part except upon due and proper notice.</p>

<p>A contract, providing for a certificate of approval to be given by a third person, will be construed to mean an approval of the subject-matter comprised within the terms of the contract unless a contrary meaning clearly appear.</p>

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

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

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 35.</p>

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

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

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

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

<p>Where a township committee borrows money under the provisions of section SI of the Township law of 1899 (Pamph. Jj., p. 372), providing that it may do so in anticipation of the collection of any sum or sums voted or granted for township purposes not exceeding the amount voted, it is not necessary' for the resolution upon which the committee borrows to state that the money is borrowed in anticipation of the collection of such sums as are voted for township purposes.</p>

<p>1. A corporation is not bound by the agreement of a superintendent which is not shown to be within the scoj>e of his express or implied authority, which is not in the course of the ordinary business of the company and which it has not ratified, acquiesced in or knowingly profited by.</p> <p>2. One who seeks to charge another with the act of an agent must prove that the agent acted within the scope of his authority, actual or apparent, or ratification of, acquiescence in or acceptance of the benefit of the act on the part of the employer.</p> <p>3. A superintendent of a water company had made arrangements with a number of persons for the supply of water to the buildings owned by them for ordinary household and mill purposes at the regular scheduled rates. The proof showed that no water was supplied to anyone for fire purposes except at special rates. The plaintiff claimed he had made a contract with the superintendent for a supply of water at a certain pressure for fire purposes, but at the regular scheduled rate charged to persons who did not have a contract for fire purposes, and plaintiff never paid the defendant any other rate. Plaintiff’s mill having burned down' through the alleged failure of the water-supply he sought to hold the defendant liable for his loss. It was not shown that the superintendent'had ever made any similar contract with anyone, that he had never been authorized to make such a contract, that the other officers and directors never knew of it, and the company’s books contained neither that nor any other contract of a similar character. Held, that the defendant was not liable thereon.</p> <p>4. A water company which has a contract with a city for a supply of water is not liable upon such contract to an inhabitant for loss which he sustains - through the' failure to supply sufficient water to extinguish a fire in a building owned by such inhabitant.</p>

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

<p>Qn error to the Supreme Court, whose opinion 'is reported in 53 Vroom 197.</p>

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

<p>On error to the Supreme Court, whose opinion is reported . in 51 Vroom 564.</p>

<p>Oil motion for allowance of costs.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 227.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 168.</p>

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 268.</p>

<p>On error to the Supreme- Court, which affirmed a judgment of the Burlington Quarter Sessions.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 229.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 181.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 279.</p>