Volume 84 — New Jersey Law Reports

<p>1. Is a defendant in a criminal case entitled to prevail on a motion for arrest of judgment, when it is based solely upon the ground that the proofs affirmatively show his innocence, qacere.</p> <p>2. A warrant of arrest, which is required to be sealed by the magistrate issuing it, is not rendered void by the omission of the seal, but merely irregular; and only the person arrested under it, and not third parties, can take advantage of such irregularity.</p> <p>3. A warrant of arrest is regular and valid without a seal unless the magistrate issuing it ihas a seal of office, or unless a seal thereto is required by statute.</p> <p>4. A peace officer making an arrest, when a hearing cannot be afforded his prisoner at once, has a right, if it be requisite to do so for the safe keeping of such prisoner, to place him in the common jail of the county until a hearing' can be arranged for; and when he produces his prisoner at the door of the jail the sheriff, or otilier keeper thereof, is bound by the statute of the state to receive him into his custody, notwithstanding that no commitment is produced by the officer directing the detention of his prisoner.</p>

<p>On error to Hudson Oyer and Terminer Court.</p>

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

<p>1. It is injurious error for the trial court in a criminal case to charge in effect that an incriminating fact has been proved when such fact has neither testimony nor the color of testimony to support it; such a charge is not a comment upon testimony made for the benefit of the jury but an elimination of testimony from the consideration of the jury.</p> <p>2. Upon the trial of an indictment a charge that deprives the defendant of the benefit of the reasonable doubt that may be engendered by the testimony given to establish an al/iln is erroneous and is not cured by applying the correct rule to a part only of such testimony.</p>

On error to the Passaic Sessions. The plaintiff in error was indicted for grand larceny. He was tried on this indictment and the jury disagreed and was discharged. Afterwards, during the same term, he was again placed upon trial, and the jurors who had sat upon the first trial were excused by the court from sitting on the second trial. The trial jury was then drawn and those jurors not challenged took their seats.

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

On demurrer. The case stated by the plaintiff, a corporation, is that it had a contract with the owner of lots Nos. 37 and 39 Green street, in the city of Newark, to make the necessary excavation for the erection of a four-story stone and brick building on said lots; that the necessary depth of said excavation carried it below the foundation wall of a brick building that the defendant had caused to be erected on the adjoining lot, No. 35 Green street, owned by her; that…

<p>1. An employe earning $8.50 per week lost the first phalange of the index finger. Held, that he was entitled under the Workmen’s Compensation act to $5 per week for thirty-five weeks, besides the cost of reasonable medical and hospital services and medicines for two weeks.</p> <p>2. In commuting the periodical payments under the Workmen’s Compensation act to a lump sum, it is erroneous to multiply the weekly minimum by the prescribed number of weeks; a deduction must be made sufficient to reduce the lump sum to the present value of the periodical payments.</p>

<p>On certiorari.</p>

<p>Under the Workmen’s Compensation act of 1911, compensation may be awarded to a mother who is an actual dependent upon a deceased son, although the son leaves no widow.</p>

<p>On certiorari.</p>

This is an action upon a promissory note of M. Feinstein & Company, to the order of Morris Schultz, which was transferred by Schultz to the plaintiff in payment of his individual debt. The question is whether the appellant, Heilig, can be held as a member of the firm.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>Railroad property was omitted from assessment for taxes in 1906, 1907, 1908 and 1909. An attempt was made to assess it for the taxes of those years under authority of an act passed in 1911 (Pamph. L.. p. 580), which applied to railroad property alone; both the Railroad Tax act and the General Tax act provide that failure to make complaint of the omission of property from taxation within a certain time shall be a waiver. Held, that t]he tax imposed by virtue of the act of 1911 was a new tax and obnoxious to the constitutional provision because imposed upon omitted i railroad property alone, and not upon other omitted property.</p>

<p>On quo warranto.</p>

<p>Losses incurred in speculative dealing in “differences” cannot legally be made the measure of damages in an action against a telegraph company for delay in delivery of a telegram from plaintiff’s brokers.</p>

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

<p>Recorders in boroughs have no jurisdiction of proceedings for the violation of the sanitary code of the board of health, and the fact that the recorder is also a justice of tile peace does not confer jurisdiction when he does not assume to act in that capacity.</p>

On certiorari. The prosecutor seeks to set aside the action of the Board of Water Commissioners of Atlantic City in approving and ordering paid a claim of the West Jersey and Seashore Railroad Company for the cost of a concrete bridge under the railroad tracks in connection with a water main of the city. The railroad company gave the city a license to construct and maintain the water pipe.

<p>1. When a judgment of the Court of Common Pleas, awarding compensation in case of death under section 2 of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, ch. 95), is removed to the Supreme Court by certiorari, the Supreme Court accepts the findings of the Common Pleas Court upon the facts if there be any legal evidence to warrant them.</p> <p>2. To warrant a recovery under section 2 of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, ch. 95), from an employer for the death of an employe, it must appear that the employe’s death was caused by (a) an accident, (5) arising out of, and (c) in the course of, his employment. Even though the injury arose out of and in the course of the employment, if it be not an “accident” within the purview of the act, there can be no recovery. Even if there be an accident which occurred “in the course of” the employment, if it did not arise “out of the employment,” there can be no recovery; and even though there be an accident which arose “out of the employment,” if it did not arise “in the course of the employment,” there can be no recovery.</p> <p>3. The burden of furnishing evidence from which the inference can be legitimately drawn that the death of an employe was caused by “an accident arising out of and in the course of the employment,” in an action under section 2 of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, oh. 95), rests upon the claimant.</p> <p>4. The question whether or not an injury to an employe is an “accident” within the purview of section 2 of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, ch. 95), is a mixed one of law and fact. When applied to ascertained facts, it is a question of law.</p> <p>5. Within the purview of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134. eh. 95), an “accident” is an unlooked-for and untoward event wibicli is not expected or designed.</p> <p>6. In an action under section 2 of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, eh. 95), the Common Pleas judge found as a fact that the decedent was killed by “a, heavy bar of metal falling upon his head from one of the upper stories” of the building upon which he was at work, and that the falling of the bar was caused by another workman. Held, that decedent’s death was caused by “an accident” within the purview of the act.</p> <p>7. Within the purview of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, eh. 95), an accident arises “in the course of the employment” if it occurs while the employe is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.</p> <p>8. Within the purview of the “Employers’ Liability act” of 1911 (Pamph. L., p. 134, eh. 95), an accident arises “out of” the employment when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incidental to it.</p> <p>9. A risk is incidental to the employment when it belongs to or is connected with what a workman has to do in fulfilling his contract of service.</p> <p>10. A risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment.</p> <p>11. When the evidence permitted the Common Pleas judge to find as a fact that decedent, while at work for his employer as a journeyman carpenter, on a building in course of erection, was killed by the falling of a bar of metal from one of the upper stories, which was caused to fall by a workman of an independent contractor who had work on tihe same building, the judge was justified in concluding that decedent’s death arose “out of and in the course of his employment,” within the purview of section 2 of the “Employers’ Liability act” of 1911. Pamph. L., p. 134, eh. 95.</p>

<p>On certiorari.</p>

<p>1. Under the act of March 27th, 1902 (Pamph. L., p. 200), a contract for the removal of garbage cannot lawfully bo aw arded for a term of five years beginning December 15th, 1911, when the advertisement called for proposals for a term beginning September 25th, 1911.</p> <p>2. Under the act of March 27th, 1902 (Pamph. L., p. 200), a contract cannot lawfully be awarded for the removal of garbage in accordance with specifications annexed thereto when, in fact, the specifications so annexed were not in legal existence at the time the call for bids was advertised, and when the call was for bids “in accordance with specifications on file,” and in fact none were on file.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. The general effect of the acts establishing a state water-supply commission (Pamph. L. 1907, p. 633; Pamph. L. 1910, p. 551; Comp. Stat., pp. 5797, 5801) is to invest said commission as a state agency with full control over prospective drafts by municipalities, corporations, or private persons upon either surface or subsurface supplies of water within the jurisdiction and boundaries of the state; to charge it as such agency with the duty of prudently and economically dealing with the supply so as best to subserve the interests of the people of the state at large and not the interests of any particular locality; and to vest in the commission a judicial discretion with regard to permitting municipalities to draw upon that water-supply, such discretion to be exercised within the limits laid down by the statute and subject to review by the courts “for reasonableness, legality and form.”</p> <p>2. When a state tribunal, presumably public spirited and impartial, has after due hearing passed on a question within its jurisdiction and with whose determination it is charged by statute, its finding should not be reversed unless unwarranted in law, or unfounded in fact, or unless a discretionary power has been plainly abused.</p> <p>3. The state water-supply commission denied the application of a municipality for leave to construct municipal water works and to sihk wells as a source of supply, on the ground that as the municipality was already enjoying an adequate supply of good water furnished by a private company at a reasonable rate, and as there was nothing to indicate that the supply was likely to become inadequate or the quality to deteriorate, the plan proposed was not “justified by public necessity or reasonably anticipated public use,” as provided in the statute. Held, that as the custodian of the state’s water-supply the commission was warranted in law, on the facts as found, in refusing the application; that its finding of facts was justified by the evidence, and that its judgment was neither unreasonable nor illegal.</p>

<p>1. The act relating to regulating and providing lor the government of cities, &c. (Pamph. L. 1911, p. 462), does not have the effect of abolishing boards of health organized under the general act of 1SS7 (Comp. Stat., p. 2656 et seq.) in municipalities which adopt it as a governmental scheme.</p> <p>2. A writ of certiorari bringing up two convictions in separate proceedings for separate violations of municipal -regulations is multifarious.</p>

<p>1. In cases arising under section 2 (elective compensation) of the Workmen’s Compensation act (Pamph. L. '1911. p. 134) the statement of facts as determined by the trial judge, required by section 20, should be specific as to the nature and extent of the injury, so that the reviewing court may be enabled to judge of the propriety of the award as supported by the facts found.</p> <p>2. The determination of the trial judge required by said section should also set fortih in cases where weekly payments are commuted to a lump sum, the basis of award in amount per week and number of weeks; the commuted amount being expressly predicated on such finding.</p> <p>3. Whether facts supporting commutation to a lump sum should be stated, qucBre.</p>

<p>On certiorari.</p>

<p>1. In replevin, where the goods are retaken by the defendant and the judgment, if for plaintiff, is by statute for the value of the goods and damages for detention, separate findings of value and damages are not required, but both items are properly included in one verdict.</p> <p>2. Possession of personal property is prima fade evidence of title thereto,</p> <p>3. A document attested by a subscribing witness must be proved by the testimony of such witness, unless it appear that this testimony is unavailable.</p> <p>4. When a claim of property in chattels served under legal process is made pursuant to section 190 of the District Court act, and not followed up by a demand for jury and trial pursuant thereto, and such chattels are subsequently sold under such process, the officer is exempt from action for taking and selling the goods, but the exemption does not preclude an action by the claimant against the purchaser at the judicial sale or any other person subsequently found in possession of the property.</p>

<p>1. Rule 90 of this court, requiring in appeals from District Courts a specification of the determinations or directions of the District Court with which appellant is dissatisfied in point of law, and providing that the appeal shall be heard and determined solely upon the points of law so specified, calls for no more than is required by way of assignments of error in the review of judgments according- to the course of the common law by writ of error, or by way of reasons where, the review is by certiorari.</p> <p>2. In appeals from District Courts, an alleged error not specified pursuant to rule 90 will not be considered. If the judgment cannot be reversed on any ground specified, it will be affirmed; • if there be no specification, the practice is to dismiss the appeal.</p> <p>3. A demise of real estate to two or more tenants without more, imposes a liability on each tenant for the entire rent. Semble, that such demise creates a tenancy in common of an estate for years.</p> <p>4. Under such circumstances, an apportionment by the tenants as between themselves of the part to be occupied by each and the respective shares to be contribuí ed by each to the rent, does not legally create the relation of landlord and tenant between them, even though it be agreed that one tenant shall primarily pay the whole rent and be reimbursed by the other for his share.</p>

<p>On rule to show cause why mandamus should not issue, commanding the Civil Service Commissioners of Yew Jersey to certify on the sheriff’s payroll of Essex county the sum of $45.50 as due relator for pay as court attendant from April 1st to April 15th, 1912.</p>

On certiorari to a judgment in the Bergen County Common Pleas, reversing on appeal a judgment before a justice of the peace in a proceeding under the “Cruelty to Animals” act; and on motion to dismiss the certiorari and rule to show cause thereon.

<p>On the trial of an indictment against a railroad company for nuisance in negligently emitting excessive and unnecessary quantities of black smoke at its terminal, evidence of conditions obtaining in other terminals controlled by well-managed companies is relevant, not as setting a standard of care or negligence, but as some evidence of the degree of care exercised by presumably careful railroad companies under substantially similar conditions.</p>

On motion to strike out interrogatories propounded by defendant under section 140 of the Practice act of 1903. The pleadings are framed under the Practice act of 1912. The complaint is in two counts — first, that defendant being an innkeeper at Delaware Water Gap, Pennsylvania, on July 19th, 1911, refused to lodge plaintiff for the night and compelled him to travel a long distance to secure lodging and accommodation elsewhere (2 Chit. PI.

<p>On certiorari.</p>

<p>The plaintiff in her declaration averred that the defendant, for his own convenience, removed from the sidewalk of a public street adjoining his premises, a large quantity of snow, which had naturally fallen there, and deposited it upon his adjoining premises and there permitted it to remain for a long time; that as a consequence the snow melted and the water therefrom ran upon the sidewalk, where it was congealed into ice, and that the plaintiff as she was walking along the sidewalk stepped upon this ice and was thereby thrown and injured. Held, that a cause of action was set out and the declaration was not subject to a demurrer.</p>

<p>To an alternative mandamus requiring the board of chosen freeholders of the o.onnty of Morris, .to erect and construct a bridge over and across the waters of Lake Hopateong, as a part of a public highway recently laid out, the respondent by its. return set up that the bridge extended over and across an arm of Lake Hopateong which was navigable waters. To this return the relators filed a demurrer thereby admitting that the proposed bridge would cross navigable waters. Held, that under the statute approved March 28th, 1892 (Pamph. L., p. 308), and the amendment thereto (Pamph. L. 1906, p. 93), a board of chosen freeholders is not compelled to bridge navigable waters. It may do so if it determines that it is advisable, and as in the return it sets up that it has considered the matter and decided that the utility and necessity of the bridge was not required, it is not compellable to build it.</p>

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

<p>A statute declared it to be a misdemeanor for any member of a board" of commissioners of any city to be directly or indirectly concerned in a contract for any public improvement to be constructed or made for the public use or at public expense. The defendant was convicted under an indictment which set out facts showing that he was indirectly concerned in a contract made by the board of commissioners of the city of which he was a member, with a corporation of which he was at the time a stockholder and officer. The indictment concluded, after stating the facts, by charging “that he was unlawfully and corruptly interested and directly concerned” in the contract. Held, that where the facts set out in the indictment clearly disclose a violation of the statute of being indirectly concerned in such a contract, the indictment is sufficient in form to sustain a conviction of being indirectly concerned. The conclusion of the pleader that the facts show that the defendant was directly concerned, is of no importance where the facts stated clearly show that the defendant was indirectly concerned in a forbidden contract, and the words expressing the conclusion of the pleader may be treated as surplusage.</p>

The plaintiff was a fireman in the service of the Jersey City fire department, and while driving a team of horses attached to a fire engine, in response to a fire alarm, collided with a trolley car belonging to the defendant, resulting in injuries to the plaintiff for which he brought his suit and recovered a judgment, and the defendant has appealed for the following reasons, viz., refusal to allow nonsuit upon defendant’s motion; the admission of evidence over the objection…

<p>On certiorari.</p>

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

<p>On certiorari.</p>

<p>On certiorari removing order of the defendant, and upon rule to show cause why a mandamus should not issue.</p>

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

<p>Where ilie plaintiff rented apartments under an agreement that steam heat would be supplied by the landlord, and during the possession of the demised premises by the tenant the steam escaped through a disjointed radiator, injuring the tenant’s furniture, and causing her to take up ilier abode elsewhere — Held, that the landlord was liable for the damage thus caused.</p>

<p>The defendant’s “usual place of abode,” under our statute, for the purpose of obtaining service of process — Held to be his father’s home in this state to which he returned, -at vacation periods, from the seminary in another state where he was pursuing his studies.</p>

<p>On certiorari to recorder’s court of Atlantic City.</p>

<p>Ou certiorari removing resolution of the commissioners of the "New Jersey reformatory.</p>

<p>1. Where the testimony shows indisputably that there are no facts in the case upon appeal from the District Court, upon which the judgment of that court can be supported, it will be reversed in this court.</p> <p>2. Where one entrusted with the care and custody of an automobile, by the owner thereof, in an effort to protect the possession thus acquired against the claims of his own creditors, obtains a loan of money for the use of the owner of the automobile, for the purpose of depositing tihe same as indemnity with a surety company, in a replevin suit, and for other purposes in that suit in defence of the owner’s title, and there was no testimony from which it could be inferred that the deposit thus obtained was for his own benefit — Seld, that the person thus situated occupied the legal status of a bailee to the owner of the machine, and that in the absence of evidence to the contrary, ibis conduct was consistent with that theory in procuring the loan. ‘</p>

<p>On certiorari.</p>

<p>3. It was orally agreed, as part of a contract to put roofs on plaintiff’s buildings, that the defendant would give plaintiff a written guaranty to the effect that the roofs would remain water tight for a period of ten years, and if by reasonable wear or tear the same should leak to repair the same without additional cost, and which guaranty was not put in writing until the final payment was made. Held, that the agreement to give a guaranty was a part of the original contract and that the written guaranty was merely a performance of this part of the contract and was not without consideration.</p> <p>2. The roofs having leaked, tihe burden of proving that the leakage was not due to reasonable wear and tear, under the guaranty was, as a matter of defence, upon the defendant.</p> <p>3. Plaintiff being the beneficial owner of .the buildings, his right to sue for a breach of warranty by defendant was not affected by a subsequent change of title to the buildings.</p>

<p>1. Held, that under section 3 of the act of 1906 (Pamph. L., p. 210), providing that each board shall upon organization elect from among their number a president and shall have power to employ a secretary, and fix his compensation * * * and in view of the fact that the statute compels a reorganization of the board annually, for the reason that one member of the board retires each year and a new member takes his place, fixes the employment of a secretary by the board, for the term of one year.</p> <p>2. Although such secretary is an office-holder in the paid service of the state, his term being- fixed disentitles him to any claim of protection under the Civil Service law.</p>

<p>1. Tlie phrase “husband of a daughter,” in Pamph. L. 1909, p. 326, § 1, exempting from inheritance taxation property passing to the husband of a daughter, includes within its meaning the surviving husband of a deceased daughter, even though he subsequently married.</p> <p>2. The question arising for the first time in this state out of a provision of an act which was taken from a statute of a sister state and construed by her courts, such construction is entitled to great weight and will be followed, unless it is contrary to some declared legislative policy of this state.</p>

<p>1. The act of 1892 (Pamph. L., p. 414; 3 Comp. Stat., p. 3767, § 24), which provides: “That it shall be lawful for the common council * * ® with the consent of the mayor of any city of the second class (Hoboken is a city of the second class), to designate by resolution the official newspaper or newspapers published in any such city, in which sihall be solely published all official notices, ordinances, advertisements ® ® * and to fix a compensation to be paid by the city for the service rendered ‘ by such official newspaper or newspapers,” is not mandatory in its terms upon cities- of the second class, to designate any official newspaper or newspapers.</p> <p>2. The act is purely directory and does not limit the number of official newspapers that may be so designated.</p> <p>3. The statute relates to proper, orderly and prompt conduct of business, by a municipality of the second class.</p> <p>4. A substantial compliance with its essential provisions is sufficient. An omission of a formality which does not affect the essence of the transaction does not taint such transaction with illegality.</p> <p>5. By resolution, tihe common council of the city of Hoboken, which resolution was approved by the mayor, ordered the payment of claims of the Ivins Printing and Publishing Company, who publish a newspaper in said city, for the publication therein of official notices, ordinances and other matters coming within the section of the act recited, though such newspaper had not been formally designated as the official newspaper and though the “Hoboken Observer,” some years prior thereto, had been so designated. Held, that the action of the mayor and common council in ratifying the publication in the newspaper, though irregularly and informally done, was equivalent to the designation of another official newspaper and authorized the payment of the claim.</p>

<p>On certiorari.</p>

<p>1. A news reporter, who wrote and published a libelous article in a newspaper, who, in testifying before a grand jury in a proceeding instituted against the newspaper and others for publishing the same, may be proceeded against and punished for contempt, for refusing to answer a question propounded by that body, the purport of which was to ascertain who furnished tjhe libelous matter and participated in its publication, the witness having stated that he wrote the article upon information obtained from various persons.</p> <p>2. The fact that the witness was a reporter for the newspaper and received the information in that capacity afforded no legal excuse for such refusal.</p>

<p>1. The repaying of a street is an improvement within the meaning of the charter of the city of Trenton, providing for improvements, but since none of the sections or paragraphs of the charter refers to and provides for repaving it does not fall within the operation of section 107, relating- to improvements provided for by the act, in that the contract therefor shall be let to the lowest bidder.</p> <p>2. The act entitled “An act for tihe repavement of streets in cities of this state and for issuance of bonds in payment therefor” (Pamph. L. 1898, p. 43), applies to the city of Trenton, and enlarges the scope of its charter so as to include repaving.</p> <p>3. The act of 1912 (Pamph. L., p. 593), entitled “An act relating to the expenditures by public county, city, town, township, bor- . ough and village bodies,” is constitutional and expresses the object of the act in its title in conformity with article 4, section 7, paragraph 4 of the constitution.</p> <p>4. Under the act of 1912, requiring the letting of contracts to the lowest responsible bidder, the fact that a sample submitted by a higher bidder was of a better brick for a higher price than the lower bid, furnishes no legal justification for awarding the contract to the higher bidder, where the sample submitted by the lowest responsible bidder comes up to the standard of the proposal.</p>

<p>Tile plaintiff, an infant, under the age of fifteen years, while in the employ of the defendant company, the prosecutor, under the Workingmen’s Compensation act (Pamph. L. 1911, p. 137), section 2, paragraph 11, had his fingers smashed, which resulted in having- parts of them amputated. The injuries produced a temporary disability, partly due to an infection of the left hand during which he was unable to work. Held, that damages were properly allowed, both under clause “a” of paragraph 11, concerning temporary disability, and clause “c” of paragraph 11, providing for disability partial in character, but permanent in quality, even though the damages would exceed the maximum recoverable under clause “b,” relating to total and permanent disability.</p>

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

<p>On certiorari.</p>

<p>1. While the weight of evidence may appear to show a certain state of facts, yet, where there is evidence tending to show the contrary, a jury question arises, and, there being evidence to support it, the court, on error, is not at liberty to disturb the jury's verdict.</p> <p>2. Where a question of fact is fairly presented as to decedent’s negligence contributing to an accident -resulting in his death, that question must, under our decisions, be submitted to the jury.</p> <p>3. Where at the close of the plaintiff’s case there is evidence upon which the jury might find for the plaintiff, the court should not direct a nonsuit; nor should it, at the close of the defendant’s case direct a verdict for the defendant on the ground of contributory negligence, where both are disputed questions of fact, — ■ such questions being solely for the jury to determine.</p>

<p>1. Under an indictment charging a man in separate counts with rape and with carnal abuse, a general verdict of “guilty in manner and form as he stands charged,” is to be supported on the count for carnal abuse, where the evidence showed him to be guilty of that offence but not of rape.</p> <p>2. Where a general verdict of guilty was rendered upon an indictment charging a man in separate counts with rape and with carnal abuse, which conviction is to be sustained as to carnal abuse, and he was given an indeterminate sentence, the maximum of which is the extreme penalty for rape and is in excess of the . maximum sentence which may be imposed for carnal abuse, this court, having to reverse the judgment because of error in the sentence, has the power under section 144 of the Criminal Procedure act (Comp. Stat., p. 1867), to render such judgment as should have been rendered, that is, by amendment make the sentence such as might have been passed, or to remand the case for that purpose to the court before which the conviction was had.</p> <p>3. Where there are several counts in an indictment each charging a distinct crime, a general verdict of guilty amounts to a conviction of each separate offence, and, even if the verdict cannot be supported as to one or more of the crimes charged, it will be upheld as to the offence described in a single good count.</p>

<p>1. On indictment for adultery the jury returned a verdict of “guilty of- attempt adultery.” As the trial court would have, the right to mold the verdict to express the conviction with technical accuracy as “guilty of an attempt to commit adultery,” the conviction, being otherwise legal, will not be reversed.</p> <p>2. The attempt to commit a crime is an act done, beyond mere preparation, with intent to commit it, but falling short of its actual commission. Furthermore, to constitute an attempt to commit a crime there must be an overt act directly moving toward its commission, and the overt act must be such as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.</p> <p>3. Preparation for adultery necessarily consists of such preliminary arrangements as appointing the time and place of meeting, and repairing to the rendezvous; but, after the parties are met and are disrobed or disrobing, and nothing but an extraneous cause, namely, one not moving from themselves, prevents the accomplishment of the intended criminal purpose, then the offenders have progressed beyond the stage of preparation and are actually engaged in the attempted commission of crime.</p> <p>4. While prior to the enactment of the Criminal Procedure act (Revision of 1898), (Comp. Siab., p. 1834, § 43), a defendant could not be convicted of an attempt to commit a crime without having been acquitted of the commission of the crime itself, yet now, when the evidence fails to show that a defendant committed the crime charged against him but that he-is guilty of an attempt to commit the same, the jury are at liberty to return a verdict of guilty of an attempt to commit the crime, without acquitting the defendant of the commission of the crime itself.</p>

<p>1. Plaintiff’s building having been partially destroyed by fire, a second fire occurred in it at a later period and totally destroyed what was left of it. Plaintiff sued upon a policy of insurance issued to Mm by the defendant to recover the loss sustained by him through the second fire. Proof was offered to show the value of the building before its partial destruction by the first fire, but none was submitted to show how much of that value remained after that fire. Held, that, for lack of such proof, even if the liability of the defendant had not been in dispute, the direction of a verdict in favor of the plaintiff for the full amount of the policy was without legal justification.</p> <p>2. A provision in a fire insurance policy that it shall be void if the building insured shall be or become vacant or unoccupied, and remain so for ten days, applies to a vacancy necessarily resulting from the partial destruction of the building1 by fire, unless it is otherwise provided in the policy either expressly or by fair implication.</p> <p>3. The law will not make a better contract for parties than they themselves have seen fit to enter into, or alter a contract for the benefit of one party and to the detriment of the other.</p>

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

<p>1. A beneficiary in a life insurance policy has something more than a more pecuniary interest in the insured, when the relations between them are such as to justify a reasonable expectation that the continuance of the life of the insured will result in advantage or benefit to him.</p> <p>2. The refusal of the Supreme Court to review a finding of fact by a District Court, there being some evidence to support such finding, affords no basis for an assignment of error in this court.</p>

<p>An order striking out a demurrer which is so framed as to prejudice, embarrass or delay a fair trial of the action, cannot be reviewed on writ of error unless and until it is incorporated in the record of the final judgment entered in the cause.</p>

<p>1. A deed of conveyance made upon an express money consideration and without right of re-entry stipulated that the grantee as part of the consideration should provide support and maintenance for the grantor during his natural life. Held, that the continuing obligation of the grantee was a part of the consideration for the deed and that for the breach of it the grantor had his action for damages, but that it did not render the fee conveyed by the deed conditional or base so that an action of ejectment would lie.</p> <p>2. If an action of ejectment is brought in a case where ejectment will not lie and the trial court erroneously denies a motion to direct a verdict for the defendant on this ground, and the jury finds for the defendant, the plaintiff is not prejudiced by the charge and cannot avail himself of errors therein if upon appeal it appears that he is not entitled to succeed in any event.</p> <p>3. Under the new Practice act a judgment for the defendant in ejectment entered upon the verdict of a jury will not be reversed for error in the charge if the same verdict ought to have been directed upon the ground that ejectment will not lie.</p>

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

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

<p>1. Under the power given by the charter of Camden to the city council to regulate the streets and prescribe the manner in which corporations shall exercise any privilege granted to them in the use of any street, an ordinance may be passed requiring street cars running from Merchantville and Moorestown through Camden to the Philadelphia ferry to stop for passengers at the intersection of all cross streets. Such an ordinance is an exercise of the police power.</p> <p>'2. In a prosecution for violation of an ordinance requiring street cars to stop for passengers at the intersection of all cross streets, it is no defence that the person signaling the car to stop was a policeman acting as a detective for the purpose of securing evidence of a violation of the ordinance without any bona fide desire to become a passenger.</p> <p>8. Where a public official is acting for a public purpose in pursuance of Ms official duty, his motive is of no importance when his evidence is offered to sustain a prosecution.</p>

<p>Section 6 of the act relative to writs of mandamus (Comp. Stat., p. 3216), allowing the relator to prosecute a writ of error where the constitutionality of a statute is determined, applies only to cases where the writ is denied or the rule to show cause is discharged. Neptune Township v. Mannion, Collector, 44 Vroom 816; Morris & Cummings Co. v. Bayonne, 47 Id. 573, and Matlock v. Lloyd, distinguished.</p>

<p>1. When in proceedings to condemn land by a corporation, the determination of its existence de facto results in the determination of a question such as the constitutionality of the act of incorporation or the applicability of the act to the corporation whose existence is challenged, the court is not compelled to stay its hand because its decision incidentally involves the very right of the corporation to exist.</p> <p>2. When in proceedings to condemn land by a corporation, its right to do so is challenged, and the facts are questioned or the inferences are disputable, the court ought not upon certiorari to settle either the facts or the inferences. The proceedings should be held until the legality of the corporation can be settled once for all upon an information by the attorney-general. The corporation is entitled to take the verdict of a jury in quo mairanto,, and not to be exposed to the hazard of conflicting judgments in .condemnation proceedings against different landowners.</p>

<p>Action at law. On appeal from a judgment of the Supreme Court, whose opinion is reported in 54- Vroom 246.</p>

<p>On quo warranto. On error to tlie Supreme Court, whose opinion is reported in 53 Vroom 160.</p>

<p>A judgment in the Supreme Court in a proceeding begun in that court by attachment pursuant to section 89 of the Practice act of 1903, but continued erroneously by the procedure prescribed in the Attachment act (Comp. Stat., p. 132) up to and including the confirmation of an auditor’s report and the award of a money judgment thereon, is final in its nature and reviewable in this court by writ of error, although no motion was made in the Supreme Court to set it aside.</p>

<p>1. A declaration which avers that a street car of defendant was by its servants slowed down almost to a standstill upon notice by plaintiff to defendant’s servants operating the car, for the purpose of permitting plaintiff safely to board such car as a passenger, and that said defendant by its servants then and there requested plaintiff to board said car to become a passenger therein, and that while said plaintiff was so boarding said car it was suddenly speeded up, to plaintiff’s injury, is not bad on general demurrer.</p> <p>2. The word “request’’ in such declaration does not imply a conclusion of law.</p> <p>3. Kennedy v. North Jersey Street Railway Co., 43 Vroom 19, distinguished.</p>

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

<p>The plaintiff was struck, while in the employ of the defendant, a railroad company, by a car running on the tracks of the defendant company, which were used for the transportation of interstate and intrastate commerce as the needs of the company required. The car which struck the plaintiff and caused the injuries upon which his action was based was not at the time being used for the purposes of transportation of freight, nor did it appear in the case that the movement of the car had any immediate relation to the making up of a train for the purpose of engaging in interstate commerce. At the time of the injury the plaintiff was placing a cover over a switch mechanism which he had just oiled, according to a direction given him by his superior officer, and was standing so near the track that he was struck by the car. The right of the plaintiff to recover under his pleadings depended upon the question whether the act of congress entitled “An act relating to the liability of common carriers by railroad to their employes in certain cases” can be applied to these facts. Held, that neither the car nor the plaintiff was engaged in interstate commerce within the meaning of the act evoked.</p>

<p>Oil error to tlie 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>The plaintiff’s decedent, a boy about nine years of age, in company with a grown woman, while attempting to cross defendant’s tracks, upon a public highway, after a freight train had delayed their passage, was struck by an express train running in the opposite direction from the freight train. There was testimony from which a jury might properly infer that the express train had not given the statutory signals, and that the deceased was in the exercise of due care. Held, under the circumstances that a motion to nonsuit and a motion to direct a verdict for the defendant were properly denied.</p>

<p>1. Defendant hired the plaintiff’s automobile by the hour. The plaintiff’s chauffeur operated the car. The car ran into a ditch and became stalled. The defendant employed one Sooy to extricate the car and care for it until called for. Sooy approached the machine at night with a lighted lantern equipped with an ordinary glass globe, notwithstanding there was a strong odor of gasoline from the place, and without making an examination to see whether there was a leak, or whether it was safe to so approach it. The gasolene ignited and the car was destroyed. Held, that the court properly submitted to the jury the question of the negligence of Sooy in bringing an open light about the machine before examining it to ascertain whether it was safe to do so.</p> <p>2. Defendant having hired Sooy to remove the automobile from the place where it was stalled, Sooy was defendant’s servant for that purpose and not an independent contractor.</p> <p>3. The defendant’s servant having approached the machine with a lighted lantern, which was the only light near the pan of the car at the time escaped gasoline took fire and destroyed the automobile, the facts were sufficient to support the finding of a jury that it was the light from the lantern which caused the fire.</p>

<p>1. A plaintiff suing in trover and conversion for parts of horse hides sent for tanning to a third person, who sold the parts to the defendant, may show conspiracy, fraud or collusion between the third person and defendant, though the declaration does not allege conspiracy, fraud or collusion.</p> <p>2. In an action in trover and conversion it is incumbent upon the plaintiff to prove ownership of the goods in controversy and such acts of defendant respecting them as amounted to a repudiation of plaintiff’s title or to an exercise of dominion over them, and that fact need not be proved by any particular kind of evidence.</p> <p>3. Where it appears in an action for trover and conversion that the defendant when he acquired the goods by purchase knew that the third person had no title thereto, and participated with the third person in repudiating the plaintiff’s title and in exercising ownership over them, it is not necessary that there should have been a demand and refusal.</p> <p>4. Where the bookkeeper and general manager of the office of the vendor testified that ho had personal knowledge of consignments to the vendee and recorded in the vendor’s ledger kept by him, that he made up and presented to the vendee statements of the itemized accounts as they appeared on the ledger, and that the vendee accepted such statements as true, the statements were the best and primary evidence of the facts stated therein.</p> <p>5. Where a party in possession of writings constituting primary evidence stated in court that the writings were lost or destroyed, true copies of such writings were properly received as secondary evidence.</p> <p>6. In order for the plaintiff to recover in an action in trover and conversion for parts of horse hides sent for tanning to a third person, who sold them to the defendant, it was not necessary for him to establish fraudulent conduct of defendant, but it was sufficient that the fraud was committed by defendant’s agent with his knowledge.</p> <p>7. Errors assigned upon exceptions to the admission of testimony should point out the specific testimony challenged.</p> <p>8. Evidence of a conversation between a witness and a third person had in the absence of defendant was proper where the conversation was a part of the history of the production of articles evolved from a tanning process discovered by the third person, and was admitted only for that purpose.</p> <p>9. Interest may be awarded on the value of the goods in an action for trover and conversion from the time of their conversion as a part of the damages recoverable by plaintiff.</p>

<p>1. The promise of an adjudicated bankrupt that “just as soon as my counsel tells me my case is all cleared up, I will place a policy * * * on my life in your favor, and as soon as I can get back in harness again will do all I can to pay you,” is not an absolute promise to pay.</p> <p>2. The expression of intention to do a tiling is not a promise to do it. An “intention” is but a promise a man forms in Ms own mind; a “promise” is an express understanding or agreement to carry the purpose into effect.</p> <p>3. At common law a verbal promise to pay by a bankrupt after his adjudication, whether made before or after liis discharge, was effectual and revived the debt.</p> <p>4. Since there is no provision in the United States Bankrupt act, July 1st, 1898, c. 541, 30 Stat. 544 (U. S. Comp. Stat. 1901, p. 3418), as to the revival of debts discharged by bankruptcy, as contained in the bankrupt acts of England, the matter in this regard is left wholly to state legislation.</p> <p>5. Under tlie eighth section of an act entitled “An act for the prevention of frauds and perjuries” (Comp. Stat., p. 201(5), providing that no action shall be maintained against a person who has been discharged as a bankrupt under the laws of the United States upon any promise made after such discharge, to pay any debt or demand from which he was or shall be released by such discharge unless in writing, &e., and in view of the Bankrupt act of the United States providing that a discharge in bankruptcy shall release a bankrupt of all his provable debts, a promise by a bankrupt to pay a debt made between the adjudication and his discharge is ineffectual to revive the debt.</p> <p>6. Where the legislative intent was to deal with all the phases germane to the subject-matter of the act, due regard must be had to the old law, the mischief resulting therefrom, and the enacted legislative remedy for the eradication of the evil.</p>

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 16.</p>

<p>1. Where an answer or a part of an answer is irresponsive to a competent question, the examining party may move to strike out what is irresponsive, whether it be competent evidence or not, but if competent the adverse party has no such right.</p> <p>2. If a question be incompetent the adverse party cannot “speculate” by waiting to see if the answer be favorable to him, and if not moving to strike it out. He must object to the incompetent question.</p> <p>3. If a question be competent and the answer incompetent, the adverse party may move to strike out the answer, and he does not lose this right by not objecting to the competent question.</p> <p>4. Statements made in the presence of the accused and injuriously affecting his rights, are not evidential against him because so made, unless it may properly be inferred from his silence or from the substance or manner of his reply that he assented, wholly or partially, to the truth of such statements.</p> <p>5. Where a party is “surprised” by adverse testimony of a witness called by him, the trial court may in the exercise of its sound discretion permit him to offer proof of self-contradictory statements previously made by such witness for the purpose, not of proving the truth of such statements, but to “discredit” or neutralize the effect of such adverse testimony. The trial court will upon request, and should without request, limit the effect of such proof to this purpose.</p> <p>6. Proof of prior self-contradictory statements under these circumstances is not an impeachment of the party’s own witness, but is only an attack upon the trustworthiness of a specific part of his testimony. In case of a “surprise” such an attack is permissible.</p> <p>7. The application of the rule requiring “preliminary warning” as a foundation for proving self-contradictory statements is in New Jersey largely within the sound discretion of the trial court, depending upon whether there is, or is not, in each particular case opportunity for such application without working injustice.</p> <p>8. In the absence of proof to the contrary, a man of full age is presumed to have “ordinary intelligence,” and under an indictment for receiving stolen goods, knowing them to have been stolen, it is in such absence not error for the court to charge— “Guilty knowledge may bo found by the jury 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>9. Where it is claimed that, by reason of proof of a low degree of intelligence of an adult man accused of crime involving guilty knowledge, a lower standard of accountability than men of “ordinary intelligence” are charged with should be applied, specific instructions to the jury regarding this point should be requested of the trial judge, otherwise the presumption of ordinary intelligence will prevail.</p>

<p>0,n appeal from the Supreme Court, whose opinion is reported in 54 Vroom 274.</p>

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 135.</p>

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

Oñ error to the Supreme Court, in which the following opinion was filed: Per Curiam. The only legal errors complained of are the refusal to non-suit the plaintiff and the refusal to find for the defendant. The trial judge found that excessive force was used in ejecting the plaintiff from the train. If there was evidence to justify this finding it is unnecessary to decide whether the plaintiff was rightly on the train or not.

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 242.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 273.</p>

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

On error to the Supreme Court, in which the following opinion was filed: Pee Curiam. The plaintiff below entered into a contract with the defendant for the purchase of some real estate. The plaintiff investigated the title and found that the defendant could not give a good title. The plaintiff thereupon brought this suit to recover his deposit, and the expenses incurred by him in investigating the title, which expenses were $89.50.

On error to the Supreme Court, in which the following opinion was tiled: Per Curiam. This is a certiorari to the judgment of the state board of equalization of taxes in determining the value of the properi/y of the prosecutor, a gas company, for purposes of taxation. The valuation fixed by the municipal assessors was $150,000. There was an appeal to the county hoard of taxation, which reduced the valuation to $87,000.

On error to the Supreme Court, in which the following opinion was filed: Pee Cueiaii. This case is very similar in its main features to the certiorari of Millville Gas Light Company v. Millville, argued by the same- counsel and reported ante p. 409.

The bonded debt of the railroad is $1,700,000 and the bonds sell above par. The capital stock is $100,000. The total value is, therefore, $1,800,000. The main stem is valued at $1,193,000. Other real estate, $203,137, making a total of $1,396,157. The difference is $403,843. The franchise is only assessed at $246,000.

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

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom, 221.</p>

<p>On error to the Supreme Court, whose opinion is reported in 52 Vroom 110.</p>

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 172.</p>

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 161.</p>

On error to the Supreme Court, in which the following opinion was filed: Per Curiam. The defendant was indicted, tried and convicted for sending a threatening letter demanding money, with menaces, and without probable cause. The plaintiff in error devotes a considerable portion of his brief to the examination of certain exceptions upon which no error was assigned.

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 214.</p>

<p>On appeal from the Hudson County Circuit Court.</p>

<p>1. The keeping of a place to which persons habitually resort for gambling by playing for money with cards and dice is a violation of the sixty-fifth section of our Grimes act.</p> <p>2. It is the character, and not the extent, of the punishment imposed as a penalty for the commission of crime which is struck at by the constitutional provision interdicting the infliction of cruel and unusual punishments; and the fact that the legislature provides a punishment for a given crime more severe than the courts approve affords no ground for judicial interference.</p> <p>3. When a conviction in a criminal case is brought up for review under the one hundred and thirty-sixth and one hundred and thirty-seventh sections of the Criminal Procedure act, errors other than those which are alleged to have taken place at the trial of the cause cannot be taken advantage of before the appellate tribunal unless formal assignments of error which set them up are filed.</p>

<p>On certiorari.</p>

<p>1. The proceeding- before the Common Pleas for the computation of compensation under the twelfth section of the Workmen’s Compensation act (Pamph. L. 1911, p. 134) is properly set on foot by the person to whom, under the nineteenth section of the act, payment is to be made.</p> <p>2. Under section 12 of the Workmen’s Compensation act (Pamph. L. 1911, p. 134) the court may compute the compensation of a mother who is an actual dependent upon the deceased son at twenty-five per centum of his wages without regard to whether or not the son left a widow.</p>

This is an action brought on a lito insurance policy by the beneficiary named therein. Number of policy, 45295500; date, August 14th, 1911; name of insured, Johanna Essig; name of beneficiary, Annie Melick (sister); weekly premium, twenty cents; amount of insurance, $124. The weekly premium was regularly paid until the death of the insured on May 1st, 1912.

<p>On certiorari.</p>

<p>1. Ordinarily the prerogative writs of the state will not be allowed in a case arising under the School law until the remedy under that act has been exhausted; but this is a matter of sound judicial discretion, and a writ of quo warranto may issue to determine the title to office of members of a local board of education without waiting for the determination of the double appeal to the commissioner of education and the state board where their action cannot be either final or effective.</p> <p>2. Members of a local board of education whose only title to office is by appointment of the mayor acting under the act of 1911, which was declared unconstitutional in Sheridan v. Lankering, 54 Vroom 123, cannot sustain their claim to the office under chapter 272 of the acts of 1912, nor under chapter 370 of the act of the same year.</p> <p>3. Members of a local board of education who were elected in 1910 for three years, had their terms extended to February 1st, 1914, by chapter 370 of the act of 1912.</p> <p>4. Members of a local board of education who have a valid title to their office by election do not lose it by acting after a void appointment by the mayor.</p>

<p>Plaintiffs leased property to de Jong by a written lease witli a covenant to pay rent and not to assign without written consent of the lessors. Lessors consented in writing to an assignment by de Jong to defendant “subject to all the terms, conditions and covenants contained in the lease.” Subsequently the defendant reassigned to de Jong without consent of the lessors. Held, that the quoted words qualifying the written consent did not bind the defendant personally to the payment of the rent, as they were words of qualification not of contract, and that the covenant not to assign without consent did not operate to prevent the defendant from terminating the privity of estate by the reassignment.</p>

<p>Under the Workmen’s Compensation act of 1911 it is necessary for the judge before awarding a lump sum to determine what sum . should be paid periodically, and he should also state the method by which he reached his result and the reasons that induced him to commute the periodical payments into a lump sum.</p>

On certiorari. Commissioners were appointed upon the application of Jersey City to condemn the right to take and divert perpetually from the Roekaway river, at Boonton, the quantity of water necessary for its water-supply, as against riparian lands of Paterson, known as West Side park, the engine house lot and East Side park.

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Rule 17 under the Practice act of 1912, in requiring in the pleadings a plain and concise statement of the facts and not of the evidence by which they are to be proved, means the facts to be put in issue and not all the facts surrounding the case.</p> <p>2. In an action for libel, a defence that the complaint sets forth only a partial and an unfair statement of the publication, is open to the defendant under a general denial.</p> <p>3. Fair comment upon facts is not libelous and requires no justification, but a newspaper is not justified in publishing falsehoods because they are believed to be true, even where the matter is one of public interest.</p> <p>4. In an action for libel, the defendant may plead in mitigation of damages and not by way of denial of the right of action, its honest belief in the truth of the publication.</p> <p>5. In an action for libel, where the plaintiff claims by reason of special damage to its business, the defendant may set up that the business is unlawful.</p> <p>6. Isolated acts of violation of law in the conduct of a business do not show that the business is unlawful.</p>

<p>1. The title of the Slaughter House act of 1910 [Pamph. L., p. 526) evinces an intent to legislate as to slaughter-houses, as to abattoirs, and as to places where animals are slaughtered for sale for human food; and to limit the legislation for each class to those within the state.</p> <p>2. The Slaughter House act of 1910 (Pamph. L., p. 526) was intended to cover the whole subject of the licensing of slaughterhouses whether intended for horses or for horses and all other animals, and supersedes the act of 1899. Comp. Stat., p. 2677.</p> <p>3. The licensing of slaughter-houses by state authority is within the police power of the states, and not an unconstitutional interference with interstate commerce.</p>

<p>1. On appeal from the District Court, the Supreme Court need not review objections specified in the state of the case, but not referred to upon the argument or in the briefs presented on behalf of the appellant.</p> <p>2. Where plaintiff contracted to erect a building for "the defendant for the sum of $7,766 and did that work and extra work besides, and was paid, all told, $8,800, he may recover for a part of such extra work where it is open to the jury to find that payment for the extra work sued for was not included in any of the payments received by him.</p>

<p>1. It is not erroneous for the trial judge to permit the attorney for the plaintiff to ask the president of the defendant company if a certain person was secretary of the defendant company, when ■ the incumbency of the office is not in issue and the fact is collateral in character.</p> <p>2. Where the parties have carried on a fixed business correspondence, the amount and length of which allow no question of the good faith and identity of the person with whom the witness has corresponded, this is sufficient to qualify the witness to express an opinion as to the genuineness of a writing attributed to the other party.</p> <p>3. 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 the jury.</p> <p>4. Where in the general course of the business of an incorporated business company, the directors or managers have permitted an officer to assume the direction and control of its business and have held him out to the public as its general agent, his authority to act for the company in a particular transaction may be implied from the manner in which he has been permitted by the directors or managers to transact its business.</p> <p>5. Where defendant company proposed to build a machine for a third party, according to a design made by the plaintiff, not for a gross sum, but for $3.60 per one hundred pounds, and contracted to pay plaintiff five per cent, of the amount received for doing such estimated work, the plaintiff is entitled to receive five per cent, of what the defendant company received for what it did pursuant to that design and estimate, regardless of changes made pending the work.</p> <p>6. 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>1. Under the act providing for appeals from District Courts of this state to the Supreme Court (Pamph. L. 1902, p. 565; as amended, Pamph. L. 1910, p. 236; Comp. Stat., p. 2016, § 213a), the appellant must bring up, with the state of the ease, a certified transcript of the judgment record in the court below.</p> <p>2. Under rule 90 of the Supreme Court, upon the argument of an appeal from the District Court, the appellant must furnish to the court, with the state of the case and the copy of the judgment record, a copy of his “specification of the determinations or directions of the District Court with respect to which he is dissatisfied in point of law.”</p>

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. Where the original contract was void, having been made on Sunday, the delivery by the vendors and the retention by the defendant of the merchandise under that contract is a sufficient consideration for a new express promise to pay for it, made thereafter by the defendant, and a recovery may be had on the new express promise.</p> <p>2. On appeal from the District Court, an argument that the judge erred in charging the jury will not be considered where the ease settled by the judge, without objection, does not show that the judge charged the matter alleged to be objectionable.</p>

<p>Under section 12 of the Workmen’s Compensation act (Pamph. L. 1913, p. 139), where the decedent left no widow, but did leave a father and mother who were actually dependent upon him, compensation should be computed on the basis of twenty-live per cent, of decedent’s wages for the number of weeks fixed by the statute.</p>

<p>In an appeal from the District Court, where an appellant has been granted further time in which to have the state of the case agreed upon or settled, and fails so to do, and within such period neither obtains nor applies for any further extension of time, his appeal will be dismissed.</p>

<p>1. In appeals from District Courts, where the state of the case does not contain a copy of the judgment record, the appeal will be dismissed.</p> <p>2. In appeals from District Courts, where the state of the case fails to show the specification required by rule 90 of this court of the determinations or directions of the District Court with respect to which appellant is dissatisfied in point of law, the appeal will be dismissed.</p>

<p>Under Workmen’s Compensation act of 1911 (Pamph. L., p. 184), where several fingers are permanently injured in the same accident, the total award is properly composed of separate awards for the injury to each finger as fixed by the statute, not to exceed, however, the amount provided for loss of a hand. The weekly payments in such ease do not run concurrently.</p>

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

<p>The act entitled “An act concerning the granting of licenses for shows, circuses and athletic exhibitions in cities” (Pamph. L. 1890, p. 360; Comp. Stat., p. 658) does not authorize cities to pass ordinances for the licensing of balls or dances of a social character.</p>

<p>1. Where, on the plaintiff’s case, there is testimony to support his claim, and also testimony tending, if believed, to defeat it, a disputed question of fact arises, and a nonsuit is improper.</p> <p>2. This rule is not affected by the fact that the case is tried without a jury.</p> <p>3. A party calling a witness is in no way concluded by his testimony.</p> <p>4. Whether section 3 of the act of 1901 (Pamph. L., p. 331; Comp. Stat., p. 72, pl. 87) legalizes the summary killing of a dog found chasing, worrying or wounding chickens, qucere.</p>

<p>Under Workmen’s Compensation act of 1911 (Pamph. L., p. 134) a direction of the Common Pleas that the weekly payments be commuted to a lump sum pursuant to paragraph 21 of the act, should be based on specific findings of fact supported by legal evidence.</p>

<p>A corporation engaged in the business of renting out automobiles driven by its regularly employed drivers, having an understanding with a regular customer to carry also such persons as he invites to ride with him, is liable to one so riding by his invitation for damages sustained through the negligence of the driver in operating the automobile, unless it appear that the customer has exercised such control over the operation of the car as to make the negligent act of the driver his own.</p>

<p>On rule to show cause why writ of mandamus should not issue. See ante p. 134. Buie discharged.</p>

<p>Three cases. Certiorari of indictments for nuisance and motion i.o quash said indictments.</p>

<p>1. In charging the jury in a homicide case, the court, after giving proper instructions on the question of manslaughter, told the jury he could recall no evidence justifying a conviction of manslaughter. I-Ield, a mere comment on evidence and not error.</p> <p>2. An instruction that if the defendant was standing by and aiding and abetting, or taking part in a scheme to get possession of a property, even at the cost of the life of the decedent, the defendant would be guilty, even if he did not himself lire the fatal shot, is not erroneous.</p>

<p>Oil error to Hudson Oyer and Terminer.</p>

<p>On appeal from the District Court, first judicial district Somerset county.</p>

<p>1. An ordinance, granting to a street railway company the right to lay its tracks in the streets* of a municipality, contained two sections, one requiring the railway company to pave between its tracks on all streets, and the other dealt with the repairs required to be made by the company, under which the company was bound to repair not only between the tracks, but eighteen inches outside. This section contained a clause which required the company to pave certain streets from curb to curb. Held, that the obligation thus cast upon the company did not require it to keep in repair the streets from curb to curb, but only to pave from curb to curb, and did not relieve the company from keeping in repair, even on the streets it was bound to pave from curb to curb, so much of the street as lay between the tracks and eighteen inches on each side thereof.</p> <p>2. It is a well-settled rule of pleading that a demurrer opens all errors in the pleading and the judgment thereon goes, against the first bad pleading.</p>

<p>On motion to dismiss demurrer.</p>

<p>The absence of a justice of the peace from the place to which he adjourns a case at the time when he should be there, vacates his jurisdiction.</p>

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

<p>1. A stale'of demand which fairlj- sets out the claim against the defendant, and from which it will sufficiently appear afterwards what the suit decided, is sufficient.</p> <p>2. Comp. Hint., p. 1972, § 64b, does not contemplate a nonsuit. The power of the judge is to stay or dismiss the proceeding- in order to compel an answer, but as well the court might attach for contempt.</p> <p>3. Where there is a conflict of evidence, no right o£ appeal from a District Court is given by the statute.</p> <p>4. Where there has been bodily injury, the court is rigid in giving-its judgment for the plaintiff for it and for the accompanying-fright.</p> <p>5. The allegation of erroneous views of the court in assessing damages without disclosing them, is not made the subject of appeal by statute.</p>

<p>1. No appeal from the judgment of a District Court is permitted upon the admission or rejection of evidence, unless such evidence is taken under some legal objection.</p> <p>2. Where it is. clear that there is evidence covering each side of a question, an appeal does not lie.</p> <p>3. Where the court, deciding that one of several parties has been. released, subsequently applies the statute of frauds to prevent liability, this is not, without objection, subject to appeal.</p> <p>4. Where the court had decided that one defendant was released by the notes of the other defendant not sued upon, and not yet due, refusal of judgment upon such notes was right.</p>

<p>Oil appeal from the District Court of the First Judicial District of the County of Essex.</p>

<p>Under the provisions of the statute of 1911 (Pmnph. L., p. 276), the authorization by the county clerk, who is the designated authority to decide, to print a certain number of sample ballots is clear, and any excess is beyond the authority of the proper official, and constitutes a crime.</p>

<p>Where contracting parties have put their contract in writing, the written agreement, if complete on its face, is the only evidence of such contract. Oral testimony is admissible only where the written contract is not complete and does not purport to cover the whole contract.</p>

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

<p>The clerk of the county of Passaic in the receipt of fees for services under the naturalization laws of congress acts as a federal and not a state agent, and the county is not entitled to receive such fees under Pamph. L. 1906, p. 76, which changed the compensation of the clerk to a salary in lieu of the fee system.</p>

<p>1. The plaintiff delivered to his uncle personal property for the purpose of procuring- a loan thereon for the uncle’s use. The latter sent his son, a minor, to the loan office with the goods to dbtain the loan. The loan office refused to contract with the minor but contracted over the telephone with the father, and thereby concluded the loan.</p> <p>2. The plaintiff now seeks in replevin to avoid the loan by alleging the minority of the boy and the illegality of a loan made with a minor under the provisions of the Pawnbrokers act. Held-—</p> <p>(1) That the uncle to whom the goods were delivered for the purpose of obtaining the loan was thereby constituted bailee, and he alone under the circumstances could maintain replevin as bailee in possession of the goods; and</p> <p>(2) That the contract of pledge was entered into no'; with the minor but with the bailee and was valid.</p>

<p>On habeas corpus.</p>

<p>1. Where the defendant entered upon its defence, it is immaterial whether, when it moved for a nonsuit, plaintiff was entitled to prevail if it appears that at the close of the case there was any evidence to warrant the verdict in her favor.</p> <p>2. A sales agent under a contract which provides that he was to devote his whole time and best endeavors to the business of the company and to conform to its rules and regulations, and who was authorized to employ such salesmen to assist him upon such terms and conditions as were required by the company, for which he was to receive a fixed percentage on sales, such agent is a servant of the company and not an independent contractor, though the contract required him to pay his own expenses, and therefore the company is liable for injuries sustained by the plaintiff through the negligence of such agent in the performance of his duties.</p> <p>3. The fact that the sales agent used an automobile for the purpose of transacting his master’s business, it appearing from the contract that it was within the contemplation of the parties that some sort of conveyance to carry the heavy machines was to be used, though no particular kind was specified, does not relieve the master from liability for such agent’s negligent operation of the automobile.</p>

<p>1. The judge charged the jury: “One of the best ways of ascertaining the truth of the statements of a witness upon the witness-stand is to ascertain the interest of the witness in the story he tells on the stand.” Held, that the judge did not by the use of the language, “One of the best ways,” limit the jury to hhe consideration of the test specified to the exclusion of other matters which might tend to affect the credibility of a witness.</p> <p>2. The maxim falsus in uno falsus in omnibus is a rule by which the probative force of testimony may be weighed and does not rise to the degree of an inflexible legal principle to be applied in all cases.</p> <p>3. Where the judge in liis charge left it to the jury to determine to what extent they would accept or reject any or all of the testimony of the defendant, if the jury believed that the defendant had testified willfully false in relation to a material fact, to wit, the speed of the car, the circumstance that the judge had prior thereto inaccurately stated the elements of the rule which should be present to warrant a rejection of such testimony, was rendered harmless.</p> <p>4. An instruction to the jury, as follows: “Hence the duty of the defendant was to use reasonable care to run on Main street, at Day street, and over the westerly cross-walk on Main street at a speed not to exceed twelve miles an hour, if you find that the houses were less than a hundred feet apart, and also not to exceed a speed that was reasonable, having regard to the traffic and use of the [highway, so as to endanger the life and limb of any person” — Hold, not to be erroneous and did not leave it to be inferred, by the jury, that if the speed of the ear was in violation of law that it was conclusive of the defendant’s guilt.</p> <p>5. The court instructed the jury as follows: “Our statute provides that any person who shall drive an automobile while in an intoxicated condition is guilty of a misdemeanor. If you find that the defendant was in an intoxicated condition while driving the automobile which struck Leo McDermott and that because of some grossly negligent act or acts of defendant in the operation of the automobile occasioned by such condition of intoxication McDermott was killed, the defendant is guilty of manslaughter.” Held, that this instruction was proper and did not tend to confuse and mislead the jury, as to whether or not the defendant’s liability would arise from a state of intoxication engendering grossly negligent acts or from the mere driving of the automobile in an intoxicated condition, which the law declares to be a misdemeanor, when read in conjunction with other parts of the charge.</p> <p>O. The act of 1911 (Pamph. L., p. 356) relating to indeterminate sentences — Held, to be constitutional.</p> <p>7. The act of 1911 applies only to where a convicted offender is sentenced to imprisonment at hard labor in the state prison.</p> <p>S. There is nothing contained in the act of 1911 that prevents a judge from exercising judicial discretion as to the character of the punishment to be imposed upon a convicted offender. He may send him to the state prison, county penitentiary or jail, and under certain circumstances to a reformatory institution; or he may impose a fine or suspend sentence altogether.</p> <p>9. In re Marlow, 46 Vroom 400, where the cases are collected, followed.</p>

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

<p>On error to the Suéneme Court.</p>

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 67.</p>

<p>1. Where the signature to a contract is procured by fraud or imposition, practiced upon the signer with intent to deceive him as to the purport of the paper which he signs, he has a right to set up such fraud or imposition as a defence to an action brought against him by the other party to the contract Cor a breach of the provisions contained therein; and the fact that he might have discovered the fraud practiced upon him by reading the paper will not defeat such a defence.</p> <p>2. The principal who seeks to enforce a contract obtained by the fraudulent misrepresentations of ibis agent is as fully bound by those misrepresentations as if made by himself, notwithstanding the tact that they were made without his authority or knowledge.</p>

<p>A husband who is living with his wife, and who supplies her with necessaries suitable to his position and her own, or furnishes her with ready money with which to pay cash therefor, is not liable for the purchase price of other goods sold to her of the same character as necessaries in the absence of affirmative proof of his prior authority to make them, or his subsequent sanction of such purchases.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 332.</p>

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

On June 15th, 1912, the respondent, A. H. & F. H. Lippincott, Inc., entered into an agreement with the appellant, John Schneider, whereby the respondent agreed to sell to the appellant a soda fountain carbonator upon a conditional sale, the terms of which were, net price $130, to he paid as follows: $10 deposit, $20 on tender of goods or bill of lading, and the balance of $100 in ten monthly notes.

On error to the Supreme Court. This suit was brought to recover the sum due on a promissory note made by Henry VanBiper, during his lifetime, of which the following is a copy: “Paterson, N. J., August 28th, 1909. “Thirty days after death I promise, or authorize my executor or administrator to pay to the order of May Wood, the sum1 of three thousand ($3,000) dollars at the First National Bank of Paterson. “Value received. “Henry VanBiper. “Witness: James F. Carroll.…

<p>1. On the trial of an indictment against a railroad company for » nuisance in negligently emitting dense smoke from its locomotive engines, the court, after properly charging that the defendant had the right to burn soft coal in the operation of its road and could be convicted of nuisance only upon proof of negligence, left it to the jury to say whether or not the use of soft coal was in itself negligence. Held, error.</p> <p>2. Where the doing of a thing that would otherwise be a public nuisance is authorized by the legislature, the doing of that thing by the person so authorized in the manner and for the purpose' authorized cannot constitute a public nuisance in the absence of negligence, and such negligence must consist of something more than the mere doing of the authorized act.</p> <p>3. An erroneous instruction is not cured or rendered harmless by reason of the fact that a correct instruction upon the same point was also given.</p>

An inheritance tax was imposed upon the estate of Raymond, who was at the time of Ms death in 1910 domiciled in Massachusetts, and owned stocks in New Jersey corporations. Some of his legatees were of the class subject to tax.

Eobert B. Eeilly in his lifétime, on January 23d, 1900, rented premises in New York from Emily J. De Forest, for a term of ten years.

<p>Evidence that the whistle of a locomotive was blown twice within three hundred yards of a railway crossing; that it was very sharp, loud, long, shrill, a long whistle; that it startled a traveler on the highway; that it was louder than others and seemed unusual to a school-boy, does not in the absence of evidence that it was needlessly, or wantonly blown, justify an inference of negligence.</p>

<p>On appeal from the Cape May Circuit Court.</p>

<p>On appeal from the Cumberland Circuit Court.</p>

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

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

<p>Where suit was brought to recover for an injury received in riding on an amusement device, and the only negligence charged in plaintiff’s declaration against the defendant was faulty construction and want of repair of the machine, which upon trial there was no evidence tending to show, a direction of a verdict for the defendant will not be disturbed on review by writ of error.</p>

<p>On citoi.' to the Supreme Court.</p>

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

<p>On error to tlie Supreme Court, whose opinion is reported in 53 Vroom 317.</p>

<p>Plaintiff brought suit to recover damages which he claimed defendant caused by abstracting subterranean water from his land. A witness was allowed, in answer to a hypothetical question, to give an opinion as to the difference between the rentable and usable value of plaintiff’s land with the water-supply in its normal condition and with such water-supply as remained after defendant had abstracted a considerable portion. It appeared that the witness, as agent, had negotiated the leasing of one or two properties located in the neighborhood of plaintiff’s farm, and that- on one occasion the proposed tenant had given preference to a farm with a water-supply over one without it. Meld, that this did not qualify the witness to give an expert opinion as to the difference in the rental value of plaintiff’s property under the respective conditions assumed in the hypothetical question.</p>

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

<p>On appeal from tlie Supreme Court.</p>

<p>In an action of ejectment based upon an act of the legislature, by virtue of which “certain lands of the state now and heretofore under the tidewaters of Communipaw bay,” and the basin adjacent thereto, were ceded to Jersey City — Held, to entitle the city to recover as against a defendant in possession of the locus in quo, it was necessary for the city to prove the line of hig-h-tido level at the time the act' went into effect, and that the opinion of a civil engineer upon the subject did not furnish the necessary proof.</p>

<p>1. Pamph. L. 1902, p. 284, confers power upon Atlantic Oity to pass an ordinance to license and regulate the sale of malt, spirituous, vinous and intoxicating liquors. Held, that in the ordinance passed by the city council for that purpose, it was not necessary to include the requirements of the provisions of the Inn and Tavern act, regarding the possession by the applicant of beds and provender in the place to be licensed.</p> <p>2. Since the passage of chapter 43 of the laws of 1889, known as the “Werts act.” and the passage of the so-called “Bishops’ act” (Pamph. L. 1906, p. 203), it is competent for the city council of Atlantic City, under the power to license reposed in it by the act of 1902, to prescribe by ordinance the conditions and qualifications necessary to secure a license to sell intoxicating liquors.</p>

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

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

<p>On appeal from the Supreme Court, whose opinion is reported, ante p. 500.</p>

<p>. 1. A dredging company entered into an agreement on October 31st, 1911, with an owner of lots situate near the ocean front in a borough, to pump in and fill with sand his lots for the sum of' twenty cents per cubic yard of sand so pumped in. In the same agreement were two provisions (quoted at length in this opinion) which contemplated the further event of another contract (for-filling with sand certain streets, binding the lots) being secured' by the dredging company, and also provided that “then and' in that case” the said agreement “shall be in full force and virtue,’” and that “the said estimate for said filling of the streets shall not exceed the sum of twenty (20) cents per cubic yard.” The dredging company on December 1st, 1911, secured a subcontract for such street filling- at the sum of twenty (20) cents per cubic yard from a third party, who had the rig-ht to award it, and in December, 1911, proceeded with and completed in March, 1912, the work of filling both lots and streets, and it was held that the dredging company had legally complied with the said provisions of its agreement.</p> <p>2. And held that the payment to the plaintiff by the defendant at various times during the performance of the work, and after its completion, of large sums of money on account thereof, without either protest or objection by him, and with his full knowledge that the plaintiff was doing the work of lot and street filling-under its contracts, should be construed to have been an election by him to affirm his contract with the plaintiff.</p> <p>3. Held also, that the failure of defendant to notify the plaintiff before its work was carried to completion that he elected to rescind his contract with it, coupled with his silent acquiescence in the continuance and completion of the work when he had knowledge of all the facts, and when duty, candor and fair dealing required him to speak, estops him from setting up against plaintiff the defence and counter claim interposed by him.</p> <p>4. Such estoppels in pais may be set up in actions at law as well as in equity.</p>

Frank E. Moersdorf, plaintiffs decedent because of whose death suit is brought, was a lineman in the employ of the city of Jersey City in its lire alarm department, and was killed 'while in the performance of his duties in repairing fire department wires, by the falling of a pole erected in a public highway (Jersey avenue), upon the top bar of which such wires were strung, and at the top of which he was working.

<p>Where the rules of an excise board prescribe that the amount of a license fee shall be paid prior to the consideration of a license— Held, that where such payment has been made and the board possesses no jurisdiction to grant a valid license, that such payment is a deposit for a purpose that has failed and is recoverable by the applicant.</p>

<p>On error to the Supreme Court, whose opinion is reported in 51 Vroom 514.</p>

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 67.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 54 Vroom 3.</p>

<p>On appeal from the Hudson Circuit Court.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 54 Vroom 92.</p>

<p>On error to the Supreme Court, whose opinion is reported in 53 Vroom 21.</p>

<p>On error to the Supreme Court, whose opinion, is reported in 54 Vroom 67.</p>

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

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

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom' 67.</p>

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

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 379.</p>

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

<p>On appeal from the Supreme Court, whose ppinion is reported in 53 Vroom 37.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 54 Vroom 110.</p>

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