Volume 85 — New Jersey Law Reports

<p>A municipal board cannot bind the corporation which it represents by any contract which is beyond the scope of its powers; and the municipality may successfully defend an action brought against it for failure to perform such a contract upon the ground that it is ultra vires.</p>

<p>An abutting landowner who is injured by a change of the grade of a street in front of his property in a borough incorporated under the General Borough act of .1897, cannot maintain an action under the seventieth section of the General Road act for the recovery of damages for such injury. His remedy is to call upon the commissioners of assessment of. the borough to assess the damages thus sustained by him, and, in the event of their failure to comply with his demand, to sue out a writ of mandamus to compel them to do so.</p>

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

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

<p>Chapter 484 of the laws of 1874 which creates a board of health and vital statistics for Hudson county, and defines its powers and duties, is not repealed by chapter 68 of the laws of 1887, which establishes a state board of health and bureau of vital statistics, and also a local board of health in each of our cities, boroughs, towns and other municipalities.</p>

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

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

<p>Section 28 of the general act relating to boroughs passed in 1897, which authorizes borough councils to license and regulate all vehicles used in any business or occupation for the purpose of soliciting orders, or delivering goods, within the limits of the borough, has been superseded by the first section of “An act respecting licenses in cities, townships, incorporated towns, incorporated boroughs” passed April 28th, 1905. The effect of this later enactment is to deprive borough councils of the power to impose license fees upon merchants whose places of business are located in other municipalities, but who deliver by wagon articles purchased at their respective places of business to customers residing within the limits of such boroughs.</p>

<p>Bequests and devises to charitable corporations of a foreign state are 'not exempted from the payment of collateral inheritance taxes by the amendment to the Collateral Inheritance Tax act . of 1906 (Revision; Pamph. L. 1909, p. 325) which, since it covers the entire subject of such exemptions, lays down the sole rule ’ applicable' thereto to the exclusion of earlier legislative rules upon the same subject.</p>

<p>On certiorari.</p>

<p>1. The reserved right of the legislature to alter the charters of corporations, whether such right be reserved in such charters or derived from general laws, is the continuing right of the. legislature to regulate in the interests of the public the corporations of this state, and as such does not justify the imposition upon a corporation of an alien duty not regulative in its character or subservient of,-any public interest.</p> <p>2. The fortieth section of the General Bailroad law, as amended by chapter 129 of the laws of 1911, provided inter alia that the members of the State Water Supply Commission should pass and repass free, of charge over all the railroads operated in this state. The Delaware, Lackawanna and Western Bailroad Company operating a railroad in this state, demanded and received a fare of one Hoagland, a passenger on its train and a member of said commission. Upon the complaint of Hoagland to the Board of Public Utilities Commissioners that body made an order directing inter alia th.e railroad company to carry the members of such commission free of charge, which order was removed to this court by certiorari. Held, that the order of the Board of Public Utilities Commissioners in the respect indicated was erroneous and that the duty sought to be imposed by the act in question upon the railroad company to carry free oí charge the members of the State Water Supply Commission was not an exercise of the reserved right of the legislature or of the police power, but constituted a taking of the property of the prosecutor without due process of law.</p>

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

<p>On certiorari.</p>

On certiorari. Tlie order brought up by this writ of certiorari is as follows: “The Board of Examiners of Peeble-Minded (including idiots, imbeciles and morons), Epileptics, Criminals and other Defectives, together with David E. Weeks, the chief physician of the New Jersey state village for epileptics, having on the 31st day of May, 1912, regularly convened at the administration building at the New Jersey state village for epileptics (according to the provisions of chapter…

<p>1. Section 40 of the act relative to the Supreme and Circuit Courts gives the Circuit judge the power to request the judge of the Common Pleas to hold the Circuit Court pursuant to section 37 of the act.</p> <p>2. A case brought in the Circuit Court was tried before the judge of the Common Pleas who had been requested to hold the Circuit Court; judgment upon the verdict was entered in the Common Pleas. Held, that this was errdneous, but the error does not lead to a new trial; the entry of a nugatory judgment does not deprive a party of the benefit of his verdict.</p>

On certiorari. Certiorari to review an ordinance for the licensing of hack-men and others and a conviction thereunder. The original ordinance required a license from any person who kept or used for hire any vehicle for transportation of passengers from any point within the borough of Madison.

<p>In a proceeding under the Workmen’s Compensation act of 1911, the court is restrained by the limits fixed by the statute and is bound by the statutory rules.</p>

<p>The general words in the act of 1893 (Comp. Stat., p. 4454, pi. 78g) authorizing the vacation of roads, are to be restricted to the class of roads described in the preamble.</p>

<p>Under section 12 of the Transfer Tax act, stocks of New Jersey corporations are subject to a transfer tax payable to the state on the transfer thereof by a foreign executor or administrator, although the ultimate distribution of the estate is subject to a contingent remainder.</p>

<p>On certiorari.</p>

<p>1. Either party to a contract for the sale of goods, wholly or partially executory on the part of the other party, always has the right to stop performance by the other party subject to that party’s right to damages.</p> <p>2. Repudiating a contract to sell goods, or countermanding performance. does not rescind the contract, but constitutes a breach of it.</p> <p>3. If the breach of a contract to sell takes place before any of the goods have been delivered, the measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, from the buyer’s breach of contract, and where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price at the time when the goods ought to have been accepted.</p> <p>4. Where the buyer repudiated his contract before the seller attempted to deliver the goods, and the seller in his action fails to offer any evidence as to the market or current price of the goods which had an available market, or any evidence from which it is possible to estimate the loss directly and naturally resulting, in the ordinary course of events from the buyer’s breach of contract, a judgment for nominal damages only is proper.</p>

<p>1. Any ambiguity as to the meaning of the body of an act of the legislature may be resolved by resorting to its title.</p> <p>2. The act of April 12th, 1910 (Pamph. L., p. 466), as amended by chapter 394 of Pamph. L. 1912, p. 808, is both for regulation and for revenue.</p> <p>3. The fact that the act of April 12th, 1910 (Pamph. L., p. 466), as amended by chapter 394 of Pamph. L. 1912, p. 808, if viewed as a mere police regulation, cannot be sustained because of the amount of the license fee exacted, is immaterial, when it is found upon examination that the statute is a revenue measure.</p> <p>4. The act of April 12th, 1910 (Pamph. L., p. 466), as amended by chapter 394 of Pamph. L. 1912, p. 808. does not (1) abridge the privileges or immunities of citizens of the United States, nor (2) deprive persons of property without due process of law, nor (3) deny them the equal protection of the laws, in violation of the fourteenth amendment of the federal constitution; nor does it (4) impair the natural and inalienable rights of acquiring, possessing and protecting property, nor (5) take property for public use without just compensation in violation of paragraphs 1 and 16 of article 1 of the constitution of New Jersey.</p> <p>5. The classification of municipalities made by the act of April 12th, 1910 {Pamph. L., p. 466), as amended by chapter 394 of Pamph. L. 1912, p. 808, for the purpose of fixing the minimum license fee, is that permitted by the constitution, namely, cities of the several classes and boroughs, towns and townships, and the statute in that respect is not a special law regulating the internal affairs of towns in violation of paragraph 11 of section 7 of article 4 of the constitution of New Jersey.</p> <p>6. The act of April 12th, 1910 (Pamph. L., p. 466), as amended by chapter 394 of Pmnph. L. 1912, p. SOS, is not a special law granting corporations, associations or individuals, to which by . section 12 thereof it is not to apply, exclusive privileges and immunities in violation of paragraph 11 of section 7 of article 4 of the constitution of New Jersej7, in view of the fact that the tax falls alike on all persons engaged in the occupation taxed by the act, which relegates all persons engaged in that business into a class, upon which it confers the privilege of charging more than the rate of interest allowed to bankers, merchants and others to whom section 12 provides that it shall not apply.</p> <p>7. The act of April 12th, 1910 {Pamph. L., p. 466), as amended by chapter 394 of Pamph. L. 1912, p. 808, will not be set aside on certiorari as prohibiting the doing of a lawful business unless the municipality adopts a licensing ordinance, in view of the fact that section 2 of the act provides that the governing body of the municipality “shall and may, by ordinance, provide for the licensing.” &c., and may be compelled by mandamus to adopt such ordinance.</p> <p>8. The state has the power to tax the business of the making of loans on pledges of personal property, chattel mortgages, or assignments of salary or wages, for the purpose of raising revenue by imposing a license fee thereon. The amount of the fee is for the legislature to determine, and only a violation of some constitutional provision can justify judicial interference.</p> <p>9. Under the act of April 12th, 1910 {Pamph. L., p. 466), as amended by chapter 394 of Pamph. L. 1912, p. 808, a city of the second class has power to fix the license fee of persons engaged in the business taxed by the act for revenue purposes at the sum of $300 per annum.</p> <p>10. The distinction between the power to license as a police regulation ' and the same power as a revenue measure is of the utmost importance. If granted with a view to revenue, the amount of the tax, if not limited by the legislature, is in the discretion and judgment of the municipal authorities; if given as a police power, it must be exercised as a means of regulation only — not as a source of revenue — and is subject to review by the Supreme Court.</p>

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

<p>On certiorari.</p>

<p>Oil demurrer to information in nature of a quo warranto.</p>

<p>1. The facts of this case held to bring it within the ruling in Gerisch v. Herold, 53 Vroom 605.</p> <p>2. The parties to a written building contract may subsequently agree orally upon a different method of performing it than that laid down in the original contract, notwithstanding a clause in such contract forbidding changes without a written agreement.</p>

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

<p>1. Where a contract embodies mutual and interdependent conditions and obligations, and one party either disables himself from performing, or repudiates in advance his obligations under the contract and refuses to be longer bound thereby, communicating such repudiation to the other party, the latter party is not only excused from further performance on his part, but may, at his option, treat the contract as terminated for all purposes of performance, and maintain an action at once for the damages occasioned by such repudiation, without awaiting the time fixed by the contract for performance by the defendant.</p> <p>2. An executory contract for the assignment of a lease on a fixed date contained a stipulation on the part of the assignor that “the rent * * * is not over §00 a month and lease of same should he transferable and for a, term of not less than two years.” Vendor had an option of renewal of an assignable lease for two years, but under such option the rent was to be fixed by arbitration. Before the date fixed for closing the contract of assignment, the proposed assignee gave notice that he would not accept the assignment. Held, that the assignor was entitled to sue for damages without being required to tender or obtain a renewal of his lease on the prescribed terms.</p>

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

<p>1. A plea of plena administravit is not dilatory in character, and consequently need not be verified by an affidavit proving- the truth thereof as required by section 117 of the Practice act of 1903 (repealed 1912).</p> <p>2. A plea that defendant’s testator had been adjudicated a bankrupt after his death by virtue of proceedings instituted in his lifetime; that the plaintiff’s claim had been duly proved in the bankruptcy proceedings, and that the only assets in defendant’s hands as executor -were the proceeds of life insurance over the surrender value thereof, which had been paid or secured to the trustee in bankruptcy, sets up a good prima faeie defence under section 70a of the Bankruptcy act of 1898; and matter in avoidance of the effect of that section should be averred by way of replication.</p>

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

<p>On certiorari.</p>

<p>On certiorari.</p>

<p>1. The right of municipal officers to free transportation on the lines of street railways in municipalities in this state is limited to uniformed public officers or to police officers acting' as detectives whose duties are required to be performed without uniform, while engaged in the performance of their public duties,</p> <p>2. A regulation by the railway company that all police officers whose duties are required to be performed without uniform should, as a means of identification, produce a book or tickets freely issued by the company to all persons of this description, in order to entitle them to free transportation, is not unreasonable. Otherwise tile company could not determine whether the person claiming it was entitled to free transportation.</p>

<p>Where there is evidence in the District Court on each side o£ a question, the court, acting without a jury has the right in the absence of an objection, to decide such question.</p>

<p>That section of the statute of frauds respecting real estate brokers’ commissions to be recovered from the owner of lands, requires a writing signed by the owner, granting authority to a broker for selling, and recognizing the authority of such broker to make the sale.</p>

<p>Where under the act entitled “An act prescribing the liability of an employer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder” (Pamph. L. 1911, p. 134), sometimes called “The Workmen’s Compensation act of 1911,” a railroad employe was found after a train had gone out, lying some three or four feet from the rails, with his feet toward the track, having an injury in his head, and died shortly thereafter from a broken neck, it was held that an inference arose that his injury was caused by accident arising out of and in the course of his employment.</p>

On certiorari. The prosecutor owns a tract of land in Madison, Morris county, having a three hundred and fifty feet .front on Green Village road. It has an average depth of five hundred feet, hut is separated from Wilmer street by a tract of land one foot in width, owned by Alice L. Green. Over this strip of one foot the prosecutor has no easement or right.

<p>A resolution of the commissioners removed the prosecutor from his office of comptroller of Atlantic City for ignoring a supersedeas, staying the payment of a judgment, and for failure to comply with the provisions of the statute, and the ordinances regulating the duties of the office of comptroller. Held, that the power of removal'Vested in the commissioners by section 4, Pamph. L. 1911, p. 466, was legally exercised.</p>

<p>Where the record title to real estate is otherwise clear the vendee in a contract of sale cannot legally reject the title upon the ground of an alleged oral declaration of trust by one of the vendors, since such a declaration if made is invalid under the statute of frauds.</p>

<p>On certiorari.</p>

<p>Oil certiorari removing resolution awarding contract.</p>

<p>A common carrier held liable in an action of trover for removing goods from the owner’s premises at the direction of one who was not the owner, upon the ground that the carrier had notice before the removal that the goods were the property of the plaintiff and that consequently the removal was not made in good faith.</p>

<p>On certiorari reviewing resolution of board of freeholders.</p>

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

<p>On certiorari to small cause court.</p>

<p>Where defendant’s employe during the hours of his work found it necessary to resort to a toilet upon defendant’s premises, but so located as to make it necessary for him to cross the defendant’s railroad tracks to reach it, in doing which he was struck by an automobile at the public crossing', and thrown by it upon the tracks, where he was subsequently struck by one of defendant's trains, receiving injuries from which he died — Held, that the accident arose out of and in the course of the employment of the deceased.</p>

<p>1. A piano was sold by the plaintiff’s assignor to the defendant. It was to be paid for in installments. The contract contained these clauses: “It is further agreed that the said piano shall remain the property of said Marks (plaintiff’s assignor) until each and every of the above amounts -and interest thereon shall be paid in full.” “It is further agreed that if the said subscriber shall neglect to pay any of the above installments at maturity said Marks shall have the right to declare the remaining installments due and payable at once, and in that case may enter, &c., and take the same into his possession, in which event it is expressly agreed that all money paid under this contract shall belong to said Marks as liquidated damages,” &e. ■ The defendant paid in full for the piano but the installments were not paid at maturity so that there was a small balance for interest due to the plaintiff. The plaintiff made a demand for balance due which was refused and then brought an action in replevin for the piano. Held (1) that Marks having failed to avail himself of the forfeiture clause by permitting the defendant to retain possession of the piano after her failure to pay the installments in the manner agreed upon in the contract, and also after she had paid all the installments, but was still owing some interest thereon, thereby waived his right to possession of the piano.</p> <p>2. That the right to possession of the piano by the defendant was not terminated by a demand for balance due and defendant’s refusal to pay.</p> <p>3. In the absence of proof of prior demand for the amount of interest due, and refusal to pay, the plaintiff was not entitled to enforce a forfeiture and recover possession of the piano for defendant’s alleged breach of contract.</p> <p>4. General ownership of a chattel is not sufficient to sustain replevin, without proof that the plaintiff is entitled to immediate possession.</p>

<p>1. Where a case comes up for review on error on a strict bill of exceptions or under the one hundred and thirty-sixth section of the Criminal Procedure act, or by both methods, the court will not review the evidence as to its weight, or whether it justified the verdict, or whether it would leave a reasonable doubt as to the defendant’s guilt.</p> <p>2. The provision for review of a denial of a motion to discharge or direct a verdict of not guilty, which is addressed to the discretion of the court, brings into review only the question whether, upon the evidence as it stood when the motion was made, there was a case for the jury.</p> <p>3. A general exception taken to the judge’s charge, and error assigned on that part of it which was as follows: “But these facts, which I have alluded to, and the additional fact that they were both there, according to the state’s testimony and had an opportunity of observing what went on there is sufficient, if you believe that they were responsible for this condition of affairs, to justify a conviction, provided of course, that you believe the state’s witnesses,” are sufficient to raise the question whether there was any evidence tending to establish the guilt of the defendant.</p> <p>4. An indictment in the common law form for keeping and maintaining a bawdy house is sufficient to charge the keeping and maintaining of a disorderly house, where the disorder consists in habitual violations of law or where acts or conduct are permitted to be habitually indulged in which tend to debauch the good morals of the community. The cases of Linden Park Horse Association v. State, 26 Vroom 557; State v. De Lorenzo, 51 Id. 500, commented upon and distinguished.</p> <p>5. A conviction, under such an indictment, even where there was no jtroof that illicit sexual intercourse was permitted to be indulged in on the premises, is not assailable.</p> <p>6. The word “whoring” is sufficiently broad enough to include acts of lewdness and public indecency.</p> <p>7. Acts of open lewdness or notorious acts of public indecency are misdemeanors under our statute. Comp. Stat., p. 1762, § 51.</p> <p>8. The judge did not err in charging the jury, as follows: “When an accused is upon trial and the evidence tends to establish facts which if true, would be conclusive of the guilt charged against him, and he can disprove them by his own oath as a witness, if the facts be not true, then his silence would justify a strong inference that he could not deny the charge,” since there was proof adduced by the state that called for an explanation or denial by the defendants. State v. Twining, 44 Vroom 683, is controlling.</p> <p>9. While a witness for the prosecution was being cross-examined, by defendant’s counsel, a juror interrupted the examination of the witness by making comments upon the immateriality of the testimony being elicited from the witness, though the court ruled the examination to be proper. Held, that though the conduct of the juror was improper, nevertheless, since it appeared that the testimony commented upon by the juror was wholly immaterial, therefore the remarks made by him did not indicate that he had made up his mind as to the guilt or innocence of the defendants and for that reason were harmless.</p>

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

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

<p>On appeal from a judgment of the Supreme Court.</p>

<p>1. A municipal “position,” within the meaning of the statutory provisions dealing therewith, is a place analogous to an office in that the duties which pertain to it are permanent and certain, but different therefrom in that such duties may be non-governmental, and are not assigned to it by any public law of the state, either directly or by delegated authority.</p> <p>2. Certiorari, and not quo warranto, is the proper remedy to test the validity of an appointment' to a municipal position.</p> <p>3. An office or position which is created- by municipal ordinance or resolution, adopted pursuant to power conferred by the legislature upon the governing body of the municipality for that purpose is just as much created by law, and its term, when fixed by such ordinance or resolution, is just as much fixed Try law as if the legislature itself had acted in the premises.</p>

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

This was an action for damages for personal injuries in which a verdict for the defendant was directed at the trial.

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

<p>1. A municipal corporation that engages, under legislative authority, in the business of furnishing electric lighting to private consumers for profit is liable for the negligence of the agents employed by it to string the wires designed for such commercial purposes.</p> <p>2. A corporation having certain charter powers is liable to one injured by the negligence of an independent contractor exer- ' cising such charter powers under contract with such corporation where the injury resulted from a negligent act of such contractor in the doing of that which could lawfully be done only under such charter powers.</p> <p>3. Where this exception to the independent contractor doctrine applies such contractor becomes in law the agent of the other contracting party.</p>

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

John J. Fields, the decedent; at- one time owned three thousand nine hundred and eighty-five shares out of four thousand of the stock of the plaintiff corporation. The other fifteen shares also really belonged to him, but stood in the name of other directors of the company.

<p>1. The grand jury sworn at the opening of a Court of Oyer and Terminer was discharged by the court, and a special session of the court convened on motion of the attorney-general. Upon his statement of a prima facie case of a criminal violation of law hy the sheriff, supported by affidavits, the court ordered a venire to elisors without bearing the sheriff o.r making public the affidavits. Held, that the judge’s discretion was properly exercised.</p> <p>2. Under section 32 of the Crimes act which makes it criminal for certain public officers to be directly or indirectly concerned in any agreement or contract for prablic improvements, it is necessary that the concern be corrupt. An averment in the indictment that the concern of the defendant was direct is immaterial and may be stricken out as surplusage.</p> <p>3. Whether in an indictment for a statutory offence, it is necessary to charge and prove a criminal intent is a question of sta tutory construction.</p> <p>4. Concern as stockholder in a corporation that makes a contract for a public improvement, may suffice to render a public officer amenable to section 32 of the Crimes act.</p> <p>5. Where a public officer is concerned in a contract for a public improvement contrary to section 32 of the Crimes act, it is not necessary to constitute the offence denounced by tlie act that the contract should bind the municipality.</p>

<p>On error to the Supreme Court, whose opinion is reported in 55 Vroom 22.</p>

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

<p>1. A master is bound to take reasonable care to have the machine, upon which he directs his servant to work, reasonably safe for the work.</p> <p>2. Where a servant received an injury from a latent or concealed defect in a machine upon which he had been put to work, evidence to establish the master’s liability must justify the inference that the master either knew, or, by the exercise of the care required of him, might have known of the defect.</p> <p>3. A judgment entered upon a nonsuit directed by the trial judge will be affirmed on review if correct on any legal ground, though the reason advanced by the court below is not well founded.</p> <p>4. The rule that the servant assumes all risks ordinarily incident to the employment in which he engages does not apply to defects and dangers which he has no knowledge of, and could not discover by the use of ordinary care, and of which the master has or ought to have knowledge.</p> <p>5. When a servant is put to work on a machine he has a right to assume, in the absence of knowledge to the contrary, that his master has performed his duty by exercising reasonable care to have the machine reasonably safe for the work.</p> <p>6. A servant who had been working upon a machine only a day and a half before he was hurt, cannot be said as a matter of law to have assumed the risk of a defect in the machine unknown to him, and in a part thereof which he had not examined, when it appeared that inspection and repair was no part of his duty, and that nothing had been brought to his attention which should have led him in the exercise of due care to examine the defective part.</p> <p>7. The case of Coyle v. Griffing Iron Co., 34 Vroom 609, distinguished.</p> <p>8. Where, on an issue of assumption of risk by a servant who has sustained injuries, the facts are controverted, or such that different inferences may be drawn therefrom, the question of assumption of risk should be submitted to the jury under proper instructions from the court.</p> <p>9. Where a servant is injured by reason of a defect in a clutch which allowed the plunger of a power press upon which he had been put to work to fall prematurely, it is competent for him, in a suit against liis master to recover for such injury, to show that the plunger of the same press had on other occasions, shortly prior to the plaintiff’s accident, descended without being released by the operator, and that the fact had been brought to the attention of the master.</p>

<p>On appeal from a judgment of the Supreme Court.</p>

<p>On appeal in action at law.</p>

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

<p>The organization of a new corporation being contemplated to take over the property and business of an insolvent corporation, one B, the capitalist furnishing the funds, agreed in writing with D, the president, and his wife, principal stockholders of the old company, that debits found on its books against D should be canceled and discharged by, the new company so far as said company should be enabled to cancel and discharge the same. Subsequently the assets of the old company were transferred to the new company in hulk and without reservation of the D account. Hold, that as the new company presumably paid full value for such assets, and received no benefit of the agreement between B and D, it was in no way bound by such agreement.</p>

<p>1. Absence of essential averments in a complaint on promissory note under the Practice act, 1912 — Held, cured by the incorporation of such averments in the reply, no motion to strike out the complaint having been theretofore made.</p> <p>2. Under Practice act, 1912, an answer corresponding to a plea in abatement is improper, as matters formerly cognizable under such plea must he settled by motion.</p> <p>3. The proof of the consideration of a negotiable note is prima facie unnecessary as consideration is presumed, but is not incompetent.</p> <p>4. Semble, that the authority for officers of a Methodist church to borrow money on the credit of the church and execute obligations binding said church therefor, must be conferred by the congregation and not by the church trustees.</p>

<p>1. In ejectment, plaintiff makes sufficient prima facie proof of title to support the action by tracing his paper title back to a grantor under whom the defendant also solely claims.</p> <p>2. The filing in a public record office by a landowner of a sales map or plat showing the land divided into blocks and lots with intersecting streets, and the sale and conveyance by such owner of lots by reference to said map, constitute a dedication to public use of the streets so delineated, so far as the title of such owner to the lands plotted thereon extends.</p> <p>3. Where on such a map, a railroad is delineated as crossing a street or streets shown thereon, the portions of such streets included within the lines of the railroad are not reserved from dedication as highways, but the natural inference is that a crossing of the railroad by the street is intended.</p> <p>4. Where the owner of the lands delineated on said map was a corporation, proof that such map remained on file for many years without disclaimer by the corporation, and that it made various deeds bj' reference thereto, indicates, at least prima facie, that the filing- and use of the map as a sales map was authorized by the corporation.</p> <p>5. The supplement of 1906 to the Road act {Paraph. L., p. 97; Oomp. Stat., p. 4467) is not effective to work a vacation of a road or street for twenty years’ non-user so long as any part of such street has been used by the public within the statutory period.</p>

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

1. It is no valid ground for a change of venue or for the adjournment of a trial for murder, that a statement had appeared in a newspaper to the effect that the prosecutor of the pleas had said the previous day in open court that he had no confidence in the jury returned to try another homicide case, and alleged to be the same “jury” (meaning the special panel) from which the trial jury was to be selected. On error to the Essex Oyer and Terminer.

<p>1. Tlie statute concerning the publication of municipal advertisements (Gomp. Stat., p. 3767, § 24) declares “that it shall be lawful” for the common council or governing body, with the consent of the mayor of any city of the second class, to designate by resolution the official newspapers “in which shall be solely published” all municipal advertisements. Held, that a resolution directing the payment of a .bill to a newspaper not designated as an official newspaper in the manner required by the statute, did not constitute such newspaper one of the official newspapers in which shall be solely published “all official notices,” and that payment for advertisements published in newspapers not official under the statute, cannot be made out of public funds.</p> <p>2. As this statute affects the public interests the words “shall be lawful” are mandatory, requiring the designation to he made in the manner provided therein, and the power of the common council and mayor to use public funds to pay for such municipal advertisements as are described in the statute is limited to newspapers designated as official newspapers in the statutory manner.</p>

<p>If the facts agreed to indisputably show that a contract was made in a foreign state, and that condition is dispositive of the case, an admission by the litigants that it was made in this state is an admission of the legal consequences of an agreed state of facts, which is not binding on a court because it submits for determination an abstract question which does not arise on the existing facts.</p>

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

<p>1. On the trial of an accessory to a murder, the record of the conviction of his principal is competent prima facie evidence tending to prove that the murder which the defendant is charged with counseling and procuring was in fact committed by his principal. It is not conclusive, but is some evidence of the guilt of the principal which it is competent for the state to offer.</p> <p>2. Where the defendant is on trial for procuring, counseling and abetting a wife to murder her husband, proof of continued illicit relations between the wife and the accessory is competent upon the question of the defendant’s motive in urging the wife to kill her husband.</p> <p>3. As it is required that the counsel of an accessory to commit a • crime be communicated to the one who is to act as principal, proof that such instructions were given by the accessory to his principal, through the agency of a third person, selected by him for that purpose, is competent upon the question whether the criminal advice was communicated to the principal, although it was, and was intended by the defendant to be, orally communicated. Snell communication is as efficient as if sent in writing, the only substantial difference in the methods being facility of proof.</p> <p>4. It is sufficient if the criminal advice or counsel, given by an accessory with intent that it be followed, be communicated to the principal by word, act or deed.</p>

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

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

<p>Assuming that section 20 of the Warehouseman’s act (Pamph. L. 1907, p. 341) requires, to produce liability, a description of its contents sought to be recovered on the outside of the box containing it, where other articles a-re also involved, a nonsuit should not be ordered.</p>

<p>The plaintiff having failed to prosecute his suit upon a lien claim, within the statutory period, the trial court rendered judgment against the contractor for the amount due, but gave judgment for the defendant owner upon proof of the plaintiff’s failure to prosecute. Held, that the fact that the statute (Comp. Stat., p. 3304) upon proof of failure to prosecute, provided that the land should thereby be released from the effect of the lien claim, did not operate to render invalid a judgment in personam in favor of the owner.</p>

<p>Whether a contract in writing, which provided for the delivery of newspapers for a certain period, at a certain price, which incidentally gave to the subscriber the right to vote for the most popular baby in an annual baby parade, was in fact a bona fide contract of subscription for the newspaper or was void as a gaming contract, presented a question of fact. Held, therefore, that a nonsuit under such circumstances was properly refused.</p>

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

<p>Where performance is pleaded by a plaintiff in an action upon a contract containing conditions precedent to which there is a plea of general denial, the plaintiff may show a waiver of performance, by the party entitled to insist upon performance, proof of such waiver being tantamount to performance.</p>

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

On error to the Essex Circuit Court. Suit was brought for a balance of the contract price and for a bonus for early completion at $100 per day (with interest upon both) under a building contract.

On error to the Essex County Oyer and Terminer. Loponio was indicted and convicted of murder in the first degree for shooting and killing a police officer, McGovern, at about ten p. si., on the streets of Newark. No one witnessed the shooting, and, apart from the letter next hereinafter mentioned, the evidence produced at the trial of Loponio was entirely circumstantial and quite short of convincing.

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

<p>On appeal from the Supreme Court, whose opinion is reported in 55 Vroom 35.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 55 Vroom 43.</p>

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

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

<p>On appeal from the Supreme Court, Morris Circuit.</p>

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

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

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

<p>On error to the Supreme Court, whose opinion is reported in 54 Vroom 428.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 54 Vroom 290.'</p>

<p>1. Where in the enacting clause of a statute, creating a class of school districts, certain specified districts are excepted from its operation, a party whose right of action rests upon the exercise of a power of appointment to office conferred only upon those school districts which are within the class, must, in his pleading, shorv that the district in which the power was exercised is not among those embraced in the exception.</p> <p>2. Where in a quo warranto proceeding by a private relator, it appears that neither he nor the defendant has a legal title to the office which is the subject of the controversy (the defendant having been appointed thereto under the authority of a statute which has been subsequently jndically declared to be unconstitutional), a judgment of ouster will not be ordered against the defendant unless it appears that the public interests will be better served by having the office vacant than by having the duties thereof performed by the incumbent.</p>

<p>1. The provision of section 2 of an act for the mutualization of stock life insurance companies (Pamph. L. 1913, p. 152), conferring upon the Chancellor as a legislativo agent authority to appoint appraisers to appraise the capital stock of such a corjjoration, is a valid exercise of legislative discretion.</p> <p>2. The case of In re Prudential Insurance (Jo. of America,, 88 Atl. Pep. 970, followed.</p>

On certiorari. Yicliolas P. TVedin, slier iff of tlie county of Hudson, was charged before a magistrate with negligent escape and, having waived indictment and trial hv jury, was placed upon trial before a Court of Special Sessions upon a written accusation by the prosecutor of the pleas that the said sheriff did unlawfully and negligently suffer arid permit certain prisoners, in his custody in the common jail to escape therefrom.

<p>A party to an agreement may by his conduct be estopped from insisting upon a construction of his contract that will enable him to work a fraud upon the other party.</p>

<p>On certiiomñ to Hudson Pleas.</p>

On certiorari to Camden Pleas. Petition under Workmen’s Compensation act.

<p>1. A certiorari to review proceedings whereby land was sold for taxes, which is or may be prosecuted in aid of an ejectment to try the title to the land, may be sued out at any time within three years.</p> <p>•2. The provisions of the charter.of Egg Harbor City for the sale ' of land for taxes are repealed by the General Tax act of 1903, which repeals all inconsistent special legislation.</p> <p>3. The decided cases as to statutory provisions for repeal of prior legislation have made no distinction between special and local laws.</p>

<p>1. Defendant agreed to sell and plaintiff to buy not less than two thousand tons and not more than three thousand tons of mixed acid during the calendar year; the seller was to furnish the mixture in such proportion as the buyer might direct, subject to certain limitations; shipments were to be made in approximately equal monthly installments upon orders from the buyer; the seller early made default- in the quantities delivered and acknowledged its inability to deliver the quantity required; it did, however, deliver all that was ordered, which was less than two thousand tons; in an action for damages by the buyer— Heltir—</p> <p>(1) That there was no completed contract at the start for the excess over two thousand tons, since the minds of the parties had not met either as to quantity or quality, but there was a continuing offer to deliver the additional one thousand tons; that the circumstances justified an inference of a tacit agreement for the whole three thousand tons, but that it was error not to leave the question to the jury.</p> <p>(2) That whether the defendant was liable for failure to deliver up to two thousand tons or three thousand tons, in the absence of specific orders, depended on whether the contract was still subsisting or whether it had been legally terminated so that it only remained for the defendant to make compensation for the breach, and that under the facts .of this case, if the jury found that the contract was for three thousand tons, this question also was for the jury.</p> <p>2. The rule of Blackburn v. Reilly, 18 Vroom 290, has been changed by section 45 of the Sale of Goods act. Comp. Stat., p. 4657.</p>

<p>1. Upon certiorari to review an order of the public utility commissioners, we are not limited by section 38 of the act (PampJt,. L. 1911, p. 3SS) in our right to set aside the order to cases where it clearly appears that there was no evidence before the board to support reasonably the order; that limitation is applicable to the procedure by petition only.</p> <p>2. The voluntary practice of common carriers under less onerous conditions of furnishing water to passengers on all trains, does not of itself justify an order requiring the carriers to furnish water under more onerous conditions on those trains only whose scheduled run within the state is half an hour.</p> <p>3. The Public Utility act does not justify merely arbitrary orders and anyone injuriously affected by such an order may justly' complain even though the order is less onerous for him than it might properly' have been.</p> <p>4. The duty of the common carriers to supply passengers with water depends upon the practicability of the passengers obtaining water in case of need within a reasonable time, not on the time spent in traveling nor on the distance or zone traversed but on the frequency of stations, the season of the year,' and the character of the travel on different trains.</p> <p>5. The evidence in this case does not justify a hard and fast order to supply water on all trains with a scheduled run of half an hour.</p>

On certiorari to Morris Pleas. Petition under Workmen’s Compensation act. ■ The petitioner, after ten days’ service in the defendant’s bleachery, was affected with a rash, pronounced bjr the medical testimony to be a condition of eczema. One physician testified that this could be caused by acids. The trial judge thereupon found that the petitioner’s condition was caused by contact with the dampened goods. He then held that the condition was due to accident.

<p>As between a mortgagee of chattels and a dona fide purchaser for value of the mortgagor, the question whether a description of the mortgaged property as “fourteen cows” is sufficient, depends on the situation at the time the chattel mortgage was given. If the mortgagor then owned only fourteen cows, title would pass under the mortgage. If he owned more, title would not pass as against a dona, fide purchaser for value. Hurff v. Hires, 11 Vroom 581, distinguished.</p>

On certiorari to Essex Pleas. The following statement of facts is taken from prosecutor’s brief: “Klotz was one of a gang of men employed by the respondent to wheel stone and cement to a concrete mixer at work on Elizabeth avenue on the repavement of that street. He went to his work at seven o’clock in the morning, but when he arrived there, it was found that owing to the pipes of the concrete mixer having been frozen, no work could be done until this had been repaired.

On certiorari to Essex Pleas. Petition under the Workmen’s Compensation act. The facts were thus found by the trial judge: “William E. Albertson was employed by Leverett Yewcomb as a chauffeur on or about the 2d day of September, a. d. 1912, at a weekly wage claimed by the petitioner as $12 per week, and by the. respondent as $10 per week, besides expenses incurred in the course of the employment during out of town services.

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

<p>On certiorari to Hudson Picas.</p>

<p>1. A petitioner under the Workmen’s Compensation act testified that the employer told him to “corúe Monday morning. I -will give you some -work to shave the 'skinsthat the price was to be so much a dozen and if petitioner did better work, sixteen cents. Held, that from this evidence the trial judge might properly find that the intent was to give petitioner employment at piece work in the defendant’s regular business without limit as to time; such employment was not casual.</p> <p>2. A petitioner under the Workmen’s Compensation act had at the time of the injury worked only part of one day for the employer; he was to be paid by the piece, and had earned $1.60 up to eleven o’clock a. m. Held, that it might properly be found that he was earning at the rate of $4 per day.</p>

On certiorari to the Essex Pleas. Under the Workmen’s Compensation act of 1911 the petitioner -was employed for an indefinite period at $5 per day to work on a contract for the erection of a structural steel building. He had been working a week when the injury happened. “Scott, with two others, were pulling on a hand chain connected with a block for the purpose of operating a mechanism which caused a lifting chain to pass through the block and lift a steel girder.

On certiorari to Hudson Picas. The facts arc thus stated in the findings of the trial judge: “On the 13th day of April, 1912, Dunnewald was employed by Hemv Steers, Incorporated, the defendant, in the reconstruction of a drawbridge over the Hackensack river. The work was peculiarly hazardous.

On certiorari to Mercer Pleas. Petition under Workmen’s Compensation act. Petitioner quit work at her machine shortly before noon, and was preparing to go home. She was combing particles of wool out of her hair, as was the custom of the girl employes. Eor this purpose she went to a passageway where a piece of looking glass had been placed against a post, thirty-two feet from her machine..

<p>1. The question being- whether the defendant was liable to pay for goods ordered by and delivered to B., and the defence was that the defendant had sold out the business to B., his clerk, and had so notified the plaintiff prior to the time when the goods were ordered, it is error requiring- reversal for the trial judge to exclude evidence that such notice had been so given to the plaintiff.</p> <p>2. On appeal from the District Court, where the trial judge, in the state of the case as settled and signed by him pursuant to Pamph. L. 1902, p. 566, § 2 (Comp. Stat., p. 2016), states that he excluded proffered documentary evidence, such statement will be controlling although what purports to be a copy of such document is printed with the state of the case marked as an exhibit.</p>

<p>1. Where the holder of a note has been willfully misled as to the genuineness of an endorsement thereon by one who purports to be the endorser, and sustains damage or is prejudiced thereby, the alleged endorser will be estopped from denying the validity of the signature.</p> <p>2. A judge is not required to adopt the form, or the words, or the collocation of phrases in which a request to charge is framed, and having stated the legal rule called for, he may, in his discretion, further elaborate it by applying to it any phases of the testimony.</p> <p>3. Where the defence set up is forgery, the evidence of financial dealings of the parties is admissible as tending to show the probability or improbability of the defendant having endorsed the note.</p>

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

<p>Where a building has been used for years for retailing liquors under license granted annually, and the license is transferred elsewhere when the building is torn down to make way for a new building on its site, a part of which is designed for the resumption of such business and not used meanwhile for any other purpose, and upon the completion of the new building the license is transferred to it, and is later renewed, the new building is not a “new place” within the meaning of section 11 of the act of 1889, as amended in Pamph. L. 1906, p. 203 (3 Comp. Htat., p. 2908, If 84), and neither the transfer nor the license will be set aside on that theory.</p>

<p>1. The writ of mandamus will not issue except where the act to be done is purely ministerial, and the legal obligation to perform it is clear.</p> <p>2. The writ of mandamus will not issue to compel the board of public utility commissioners to approve a lease made by one railroad company to another, which, while adhering to the form of a lease, involves the powers to sell and mortgage the property of the lessor and to issue its capital stock and bonds from time to time in the future, but in nowise recognizes the necessity of obtaining the approval of the board with respect to the exercise of such powers.</p> <p>3. It is within the power of the legislature by the Public Utility act (Pamph. L. 1911, p. 374) to attach to the exercise of privileges and powers granted by the legislature the condition that, in the exercise of such powers and privileges, the determination of the board of public utility commissioners that the limitations and restrictions to which such privileges and powers are subject have not been exceeded, shall first be had; and it is. within the power, and is also the duty of such board to require that the instrument by which such privileges and powers are proposed to be exercised shall be so framed as to put it beyond reasonable doubt that such limitations and restrictions have not been exceeded.</p>

<p>1. An action is “commenced and sued” within the meaning of the statute of limitations (Comp. Stat., p. 3162, § 1), as soon as the summons is signed and sealed in good faith, for the purpose of immediate service, and that purpose is not afterwards abandoned.</p> <p>2. Any witness acquainted with the handwriting of a person, by having actually seen such person write, may testify as to whether or not, in his opinion, a writing produced in evidence was written by such person.</p> <p>3. Where, in an action upon a promissory note, purporting to have been made by the defendant to the plaintiff’s intestate, and found among the intestate’s papers, and the defendant himself testified that he did not sign the note and that it was a forgery, and that issue was determined against him, the judgment for the plaintiff will not be reversed upon the theory that there was no proof that there was anything due upon the note.</p>

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

<p>1. The act of 1911, page 233, for the improvement by municipal authority of harbors and water fronts in cities fronting on navigable or tidal waters, authorizes the acquisition of wharf property by such cities under the right of eminent domain for the purposes specified in the act.</p> <p>2. The word “land” in its generic leg'al sense embraces wharves.</p> <p>3. Ownership of land by a common carrier does not render such land immune from the exercise of the right of eminent domain.</p> <p>4. The “board of harbor commissioners” authorized by Pamph. L. 1911, p. 233, is a municipal agency and not a corporation, and a written recommendation in the name of such board, signed by all its members, is sufficient under section 7 of the act as a foundation for the acquisition of real estate by the city for the purposes of the act.</p> <p>5. The “appropriation of the estimated cost, or part thereof” of the acquisition of several parcels of real estate, need not be specifically apportioned to specified parcels of those included in the recommendations of the board.</p> <p>6. The making of a recommendation by the board for the acquisition of land implies that that body considered such land “suitable or convenient for use or improvement in any manner authorized by the act.”</p> <p>7. A resolution by the finance body of the city that “it is the sense of this body that” certain land “should be acquired” fulfills the requirement of the act of 1911, page 233, that said body “shall by resolution determine that the same should be acquired.”</p> <p>8. The right to take advantage of the act of 1911, page 233, is not dependent upon previous ownership by the municipality of any land or water front available for the purposes of the act.</p> <p>9. Whether property sought to be acquired, if of the character described in the act, is in fact “suitable” for the purposes of the act, is a question committed by the legislature to the board for its decision.</p>

<p>On rule to show cause why verdict directed for plaintiff should not be set aside.</p>

<p>1. Under the statute of 1905, page 75, providing that assessors shall hold office for three years and until their successors are appointed and qualify, and that in case of a vacancy the appointment shall be for the unexpired term only, if the appointing body fail to act at the end of a three years’ term the incumbent continues to serve by the terms of the act, and no vacancy is created.</p> <p>2. An act indicating by its title that it is to apply to “certain cities of this state” is not thereby rendered unconstitutional.</p> <p>3. An act limited in its operation to cities having a population between fifteen thousand and thirty-five thousand is not unconstitutional if its provisions relate to the structure and machinery of government.</p> <p>4. Quo warranto will lie in case of partial intrusion into and partial ouster of the relator from a public office.</p>

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

<p>1. An indictment for a statutory crime should ordinarily follow the language of the statute, but is sufficient if the offence be charged in language substantially identical or stronger in meaning.</p> <p>2. An indictment charging the setting fire to a building with intent to defraud an insurer is sufficient under a statute denouncing the setting of such fire with intent to prejudice an insurer.</p> <p>3. Evidence examined, and held sufficient to justify the submission of defendant’s guilt to the jury.</p>

<p>On error to the Court of General Quarter Sessions of the county of Essex.</p>

<p>1. That part of the act for the incorporation of towns which provides that no writ of certiorari shall be allowed to set aside certain public improvements after thirty days have elapsed from the date of the confirmation of any assessment therefor by the council of such town, is not repealed or modified by the supplement to the act relating' to the writ of certiorari adopted in 1907 (Pamph. L., p. 109), which enacts that such writ shall not be allowed to review any assessment for a street improvement, unless application therefor be made within sixty days after such assessment shall have been confirmed by a court of competent jurisdiction.</p> <p>2. The common council created'by the Town act is not “a court of competent jurisdiction” within the meaning of the foregoing supplement to the act relating to the writ of certiorari.</p>

<p>On certiorari.</p>

<p>Application for tlie allowance of a writ of mandamus.</p>

<p>Section 4 of the act concerning the sale of goods and to make uniform the law relating thereto, which forbids the enforcement of a contract for the sale of goods of the value of $500 or upwards unless the buyer shall accept and -receive part or give something in earnest to bind the contract, or unless there be a writing-signed by the party to he charged, having been adopted subsequent to and being inconsistent with section G of the statute relating to frauds and perjuries, supersedes that section of the statute, and allows the enforcement of a contract for sale of goods and chattels to the value of $500 without the presence of the limiting conditions contained in either of the sections referred to.</p>

<p>On certiorari.</p>

<p>The act providing for tile retirement and pensioning of teachers, principals and superintendents employed in public school work (Pamph. L. 1912, p. 89) requires that the applicant for retirement shall have been engaged in public school work thirty-five years, and employed by the board of education, department or other body by whom he shall be retired for at least twenty years. The applicant had taught in the public schools of one township for thirty-five years, but in different school districts, employed by the boards of trustees of each respectively, as then authorized by law, from 1877 until 1894 when, by statute 1894 (Pamph. L., p. 506), the several school districts in each township in the state were consolidated, and a single district created embracing the entire township, to be governed by a single board of education. After the consolidation the applicant continued to teach in the same township, employed by the board of education until 1912, when he applied to the board of education for retirement and pension. The application was refused upon the ground that as the board of education did not come into existence until 1894 he had not been in the employ of that board for twenty years. EelcL, that the legislative intent was to pension teachers who had served for twenty years in the territory to be charged witli payment of the pension under employment by the body empowered to employ teachers, and that it was not intended to destroy the continuity of employment and service by the consolidation of several districts under a single governing body.'</p>

<p>In order to bring a money verdict within the meaning of a quotient verdict, it must appear that there was an agreement by the jurors that their finding should be determined by the quotient resulting from the division of the sum of the estimates of each juror divided by the number of jurors. It is not enough that the quotient be arrived at in the manner indicated, but in addition to this there must be proof of an agreement by the jurors that the verdict be determined in such manner.</p>

<p>The act of March 27th, 1902 (1 Comp. Stat., p. 762), concerning the collection, removal and disposal of garbage in any city, and providing for the payment of the cost thereof is not, either expressly or by implication, repealed by the act of April 10th, 1902 (Pamph. L., p. 703), relating to the appropriation of moneys for the expenses of various boards and commissioners in cities of the first class.</p>

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

<p>An assessment made by commissioners of assessment under the provisions of the Borough act set aside because the report of the commissioners failed to show that they assessed damages as well as benefits, and because in other respects the assessment was made without regard to an equitable or methodical distribution thereof for benefits received.</p>

<p>The assessment, by the state board of assessors upon the Long Dock property in Jersey City, for taxes for the year 1911, is not invalid, since there is no satisfactory proof in the case that the assessment was made by illegal methods, or upon erroneous principles, or for improper amounts, or is unsupported by evidence, the weight and effect of which the board was constituted by law to determine.</p>

<p>Appeal from the Third District Court of Bergen county.</p>

<p>Section 10 of the act concerning distress gives an action on the case for treble damages and costs to the person aggrieved by a pound breach or rescous. Held, that where goods are impounded as at common law, or are otherwise secured by the distrainor, as required by the statute, and a pound breach takes place, the provisions of the statute apply, and the plaintiff, upon proof of the statutory requirements,, is entitled in the absence of any proof of substantial damage to recover at least nominal damages.</p>

<p>1. The Tax act (4 Gomp. Stat., § 370) delegates to the county board of taxation no power to fix tax rates in a township.</p> <p>2. Exclusive of the power to hear and determine appeals, the power of the county board over local assessments is, after investigation, to revise, correct and equalize the assessed value of property in their respective taxing districts.</p>

<p>On appeal from Essex Circuit.</p>

<p>1. The settled practice in this state is to follow a general assignment of error by a specification of the errors in the record and proceedings, since the adverse counsel is entitled to know what the exception is, and the court is not required to search for errors not definitely pointed out.</p> <p>2. Under section 44 of the Criminal Procedure act (2 Comp. Stat., p. 1834), the legal sufficiency of an indictment cannot be questioned unless the objection was made before the jury was sworn.</p> <p>3. Under an indictment for selling coal by short weight with intent to defraud, testimony introduced by the state tending to show that defendant, shortly before the time he made the sale, made other short weight sales by the same scales to other persons, was competent only to negative that the sale made to the prosecuting witness was the result of accident or mistake.</p> <p>4. Defendant’s driver having testified on cross-examination, without objection being made by his counsel, that he did not on the day following the sale of coal to the prosecuting witness, and while on his way to deliver a load of coal, ask certain third persons why they did not want to see his ticket, and did not test him then when he had a full load on, the state, on rebuttal, called such certain third persons who testified, against objection made by defendant’s counsel, that the driver asked them if they did not want to see his ticket and why they did not test him then when he had a full load on. Held, that the cross-examination was improper and wholly collateral to the issue, and the state thereby made the driver its own witness and was bound by his answers, and that the testimony of such certain third persons was incompetent as evidence that the defendant knew that the coal sold the day before was short in weight, was hearsay and inadmissible and constituted harmful error.</p>

<p>1. Where a list of jurors to be struck under section 76, Criminal Procedure act (Oomp. Stat., p. 1S45), and which was served upon the defendant, contained mistakes in the addresses of two of them and in the spelling of the name of one of the two, the error was harmless to defendant, who did not object at the time the jury was struck, and was subsequently, at the trial, allowed to challenge the jurors for cause on that ground.</p> <p>2. The fact that such a list contained the name of a deceased person is not prejudicial to accused, his rights being protected where he has a trial before an impartial jury. State v. Brown, 36 Vroom 666, is controlling.</p> <p>3. Where, in a prosecution for keeping and maintaining a disorderly house, the judge instructed the jury that if the acts complained of did not occur, or if the defendant did not control the place nor have the power to control it, permit the acts complained of, they should acquit the defendant, a digression from the issue, by the court, to animadvert on the negligent conduct of landlords in letting houses to questionable tenants, and on the laxity of public officials for failing to suppress disorderly houses, was not in violation of any legal rule. •</p>

<p>1. A review on tlie facts in a criminal case, whether on strict bills of exceptions or under section 136 of the Criminal Procedure act (2 Comp. Stat., p. 1863), is strictly limited to the inquiry whether there was any evidence to support a conviction under the indictment.</p> <p>2. A sewage disposal company, chartered by the state to perform a public service, and whose duties are performed under the direction of the state board of health, and whose plant was constructed under plans approved by the state sewage commission, is, nevertheless, not relieved from criminal responsibility for maintaining a nuisance by the faulty construction or operation of its plant.</p> <p>3. In a criminal prosecution for maintaining a nuisance by faulty construction and negligent operation of its plant, testimony offered by the sewage company, tending to show what the plant cost, and that it was unprofitable and run at a loss, was properly rejected as being irrelevant.</p> <p>4. Under an indictment for maintaining a nuisance, caused by the negligent construction and operation of the defendant’s sewage disposal plant, testimony that sewage could be treated near dwellings without offence, and that the noxious odors emanating from the defendant’s plant could be eliminated by proper construction and operation, was admissible.</p> <p>5. Where the court was requested to charge, in a prosecution for maintaining a nuisance caused by the faulty construction and negligent operation of a sewage disposal plant, that if the odors complained of came from the open sewer foot of Taylor avenue or from the marsh or any other source (there being some testimony to that effect), the defendant must be acquitted, and the court charged that if the jury found the plant defective and that it was badly operated and by reason of these causes (faulty construction and bad management) the citizens were injured in the enjoyment of pure air'in the locality where they live, they could convict the defendant unless there was a reasonable doubt in their minds concerning its guilt. Held, that this instruction sufficiently covered defendant’s request and was an explicit direction to the jury that it was only for the causes, created by the defendant, proved beyond a reasonable doubt, for which it could be held liable.</p>

<p>1. The condition of an insolvent bond requiring that the insolvent debtor, if refused a discharge, shall surrender himself immediately thereafter to the sheriff or keeper of the jail of the county, is fully complied with where the debtor takes immediate steps to surrender himself to the sheriff or some person authorized by law for that purpose.</p> <p>2. If, at the time he is refused a discharge, the sheriff is not there to receive him, the debtor is entitled to a reasonable time to look for him before he adopts the alternative by going to jail.</p>

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

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

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

<p>Where, on error, there is evidence to support the judgment of a trial court the findings o£ fact will not be reviewed beyond ascertaining that there was evidence to support them; and, likewise, the findings of a trial court upon a mixed question of law and fact will not be reviewed.</p>

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

<p>An indictment which presented that the defendant kept a place to which persons “might resort” for gambling, with intent that such persons “might resort” thither for gambling, &c., is valid under section 65 of the Grimes act. Comp, gtat., p. 1766.</p>

<p>On information in the nature of quo warranto. On error to the Supreme Court.</p>

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

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

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

<p>1. A complaint discloses a cause of action which avers in effect that the defendant was the owner of a tenement-house; that he reserved to himself the control and lighting of the hallways thereof; that he was bound to provide necessary and sufficient lights in such hallways, and to keep a proper light burning in the public hallways, near the stairs, upon the entrance floor, and upon the second floor, every night from sunset each day until ten o’clock each evening; that he negligently maintained such hallways in a darkened and unlightened condition and wholly failed to provide any such lights, and that the plaintiff, while lawfully using such hallways, and while passing down said stairs at the first floor, by reason of the absence of such lights, and without any negligence on her part, fell and was injured.</p> <p>2. Section 126 of the Tenement-House act (Pamph. L. 1904, p. 126; 4 Comp. Stat. 1910, p. 5341) properly construed, requires the owner of a tenement-house oyer two stories high to keep burning a proper light in the public hallways, near the stairs, upon every floor, between sunset and ten o’clock each evening.</p> <p>3. The abolition of “bills of exceptions” by section 25 of the Practice act, 1912, does away with the requirement that exceptions be signed and sealed by the trial judge, but does not abrogate the general rule that no ruling relating to the reception or rejection of evidence will be reviewed unless -the record discloses that an objection to such ruling was duly made or such ruling otherwise challenged at the time of the ruling.</p> <p>4. Where the evidence tends to show the defendant’s breach of the duty imposed by section 126 of the Tenement-House act (Pamph. L. 1904, p. 126; 4 Comp. Stat. 1910, p. 5341) to keep burning a proper light in the public hallways of his tenement-house from sunset until' ten o’clock each evening, and that such breach of duty was the proximate cause of plaintiff’s injury, sustained while using the stairs to visit a tenant, the question of the defendant’s negligence is for the jury.</p> <p>5. One using the stairs of a tenement-house for the purpose of visiting a tenant upon the third floor, and injured by reason of the owner’s failure to keep burning proper lights in the public hallways, as. required by section 126 of the Tenement-House act (Pamph. Xj. 1904, p. 126; 4 Comp. Stat. 1910, p. 5341) cannot be said as a matter of law to be guilty of contributory negligence or to have assumed the risk in descending the unlighted stairs when it appeared that she was accompanied and preceded in the descent by another who was familiar with the stairs, and where it was open to the jury to find that she proceeded carefully.</p> <p>6. An instruction to the jury in a civil case will not be reviewed unless the record discloses that an objection to such instruction was duly made or such instruction otherwise challenged at the trial.</p> <p>7. So long as the law is stated correctly and intelligently, the ultimate test of the soundness of instructions to the jury is, not what the ingenuity of counsel can, at leisure, work out the instructions to mean, but how and in what sense, under the evidence before them and the circumstances of the trial, would ordinary men and jurors understand the instructions as a whole.</p> <p>8. No judgment will be reversed on the ground of misdirection, or the improper admission or exclusion of evidence, unless, after examination of the whole case, it shall appear that the error injuriously affected the substantial rights of a party.</p>

<p>The evidence tended to show that the plaintiff, a boy eight years and four months old, was walking at seven o’clock in the evening of December 6th, 1912, on a public crosswalk at a street intersection in a thickly-populated neighborhood in West New York; that he stood on the crosswalk, allowing a southbound street caito pass; that when the car had passed about five or six feet, . without looking for the approaching car, he proceeded across the southbound track and upon reaching the first rail of the northbound track, the car of the defendant, coming at a “good speed,” without giving any bell or warning of its approach, struck the plaintiff and knocked him five or six feet; that the car proceeded about two hundred feet before the motorman stopped it. Held, that the questions of the negligence of the defendant and the contributory negligence of the plaintiff were for the jury.</p>

<p>On appeal from a judgment of the Camden County Circuit Court.</p>

<p>A construction company contracted with Atlantic City to build a sewer, and agreed with the city, at its own expense, to take care of and support the railroad tracks and signal system in the streets under which the sewer was to be constructed. The construction company, in order to carry out promptly its contract with the city, made an agreement with the railroad company whereby the latter should without delay do such work of caring for and supporting such tracks and signal system at the expense of the construction company, and the city agreed to indemnify the railroad company against loss or damage by reason of the construction of the sewer. The railroad company did the work promptly. Held, that the railroad company could recover from the construction company for the value of such work against an objection that the contract was without consideration.</p>

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

<p>The provisions of the Fence act (Comp. Stat., p. 2299), requiring adjoining owners to make and maintain their respective proportions of partition fences, impose on an owner who is in default no liability for accidental injury to animals of the adjoining owner which stray upon his land by reason of the defect in the. fence which he failed to repair.</p>

<p>1. A municipal ordinance providing for an issue of bonds is not invalidated by the mere fact that it omits to recite the statute or statutes relied on as authorizing such bond issue.</p> <p>2. Where a municipality is authorized by statute to construct a system for the distribution of electricity for public lighting, its contract for such construction is not vitiated because the system is adapted for the subsequent addition of private lighting in case the same should afterwards be authorized.</p> <p>3. Oeriiorari will not lie to review such a contract on the ground that it involves an expenditure which may require an increase in the tax rate beyond that authorized by the tax acts.</p> <p>4. An ordinance authorizing a contract for the construction of public work will not be set aside because money to pay fór the work is not in hand, so long as the contract has not been actually let.</p> <p>5. Where the bonds authorized to be issued to pay for a public work have not been actually issued and it appears that the form of such bonds as fixed by resolution recites alleged statutory authority that will not support them and omits statutory authority that will support them, such resolution should be set aside on oeriiorari to the end that such bonds when issued be in proper form.</p>

<p>Where a written contract for the sale of land is executed by delivery and acceptance of a conveyance passing the title, a previous oral promise to pay the consideration, whether the conveyance be to the promisor or to his nominee, is not within the statute of frauds, for the consideration of the promise is executed, and the law implies a debt recoverable in assumpsit when there has been a previous request by the defendant to convey to him or his nominee coupled with circumstances showing that both parties expected that the plaintiff would be recompensed for complying with such request, and the action is not limited to cases where money alone has been expended, but extends to those where money, securities and land have been parted with on a previous express request. Such promise is taken out of the statute of frauds by an executed and accepted conveyance, for it is an . assumpsit to pay for land and not a contract for the sale of land.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 55 Vroom 104.</p>

<p>Where the negotiations for a lease of real estate result in a written contract, a previous oral agreement, not expressed in the writing, relating to repairs to be made to the building let, and also that trade fixtures subsequently to be put in by the tenant should become the property of the landlord on the termination of the lease, is not such a collateral agreement relating to a subject distinct from that to which the written contract applies as to justify the admission of proof thereof, to vary the written contract which the parties have entered into. Agreements to repair the demised premises, and the condition in which they are to be left at the termination of a lease, in contracts of letting, are collateral to the demise of the land and not to a subject distinct therefrom.</p>

<p>Ou error to Hie Middlesex Circuit Court.</p>

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

<p>1. An agreement that, if defendant would execute a single note, with interest payable semi-annually, covering his several notes to plaintiff, plaintiff would carry the note for defendant so long as the interest was paid, and so long as he held a one-third interest in a proposed option on certain property, not having been complied with by defendant by executing the new note, was merely executory, and did not constitute an accord and satisfaction of the existing indebtedness.</p> <p>2. A defence of accord and satisfaction will not avail in an action at law where it has been only partly executed.</p> <p>3. Novation means that, there being a contract in existence, some new contract is substituted therefor either between the same or different parties, the consideration mutually being the discharge of the old contract. Every novation embraces, necessarily, an accord and satisfaction, the principal distinguishing feature between them being that a novation implies the extinguishment of an existing debt by the parties thereto and its transition into a new existence between the same or different parties, whereas, an accord and satisfaction relates solely to the extinguishment of the debt or obligation.</p> <p>4. Plaintiff offered, in case defendant would substitute a single note, with interest payable semi-annually, for his several existing notes to plaintiff, plaintiff would carry the note so long as interest was paid and defendant continued to own an interest in certain property. Defendant on several occasions told plaintiff he was ready to deliver him a single note for the others, but never made a tender thereof, and the agreement was never executed. Held, that, in the absence of such tender, the agreement did not constitute a novation so as to bar plaintiff’s right to sue on the old debt.</p>

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

<p>1. Where it appeared, in an action for injuries sustained by a plaintiff, as a result of falling into a hole in the defendant company’s wharf, while returning, in the nighttime, from the river end of the wharf where he had gone in expectation of receiving a shipment of goods to him, by one of the defendant’s vessels, and whither he had been accustomed to go, both by day and night, for the purpose of receiving goods shipped to him on defendant’s boats — Held, sufficient to warrant a finding that there was an implied invitation to the plaintiff by the defendant on that particular occasion to go to the river end of the wharf, where he was injured.</p> <p>2. The fact that requests to charge were presented to the court, which the court failed or refused to charge, will not make such failure or refusal the basis of an appeal, unless it further appears that the party presenting the requests, made, at the time, objection to the failure or refusal of the court to charge each specific request.</p> <p>3. Where the court charges a request in other terms than those embodied in the request, the party desiring to take advantage of this must object to the request as charged and to the refusal to charge as requested.</p> <p>4. The new Practice act does not relieve a party from pointing out at the trial to the judge the portions of the charge to which he objects as heretofore, nor from making objection to a refusal to charge a request, if it is intended to make them the basis of an appeal.</p> <p>5. The only change made by the new Practice act in that regard is that bills of exceptions are no longer necessary.</p> <p>6. A plaintiff’s right to recover for personal injuries due to the negligence of another is entitled to damages for any disability he has sustained, including loss of earning capacity, irrespective of whether any definite income is proved or not.</p>

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

<p>Where a railroad company, in order to facilitate the wheeling of baggage trucks across its tracks, has constructed a saucer-like depression about midway of its passenger platform, immediately opposite its ticket office and at the point where it regularly brings the steps of its passenger trains to a stop in order that its passengers may get on or off, and the evidence indicates that such construction appears, to one alighting from a train, level like any other part of the level platform, the question of whether or not it constituted a violation of the railroad’s duty to provide a reasonably safe place for its passengers to alight, was properly left to the jury in a’case where a passenger suffered a sprained ankle as a result of stepping upon the inclined or slanting side of the depression while alighting from a train upon what she thought was a level part of the platform.</p>

<p>On error tg the Supreme Court, whose opinion is reported in 55 Vroom 6.</p>

<p>On appeal from the Supreme Court, Atlantic Circuit.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 54 Vroom 346.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 55 Vroom 437.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 55 Vroom 545.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 55 Vroom 603.</p>

One of the resolutions, intended to enable the city to take the necessary steps to install an electric light distributing plant, was passed under the authority contained in the act of 1911 (Pamph L., p. 690), which act after the granting of the writ in this case was declared invalid by this court. In re Jaegle, 54 Vroom 313. We are not called upon therefore to deal with that phase of the case.