Volume 92 — New Jersey Law Reports

<p>On mandamus. Demurrer to return to alternative writ.</p>

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

<p>1. Where an employe of a railroad company, while at work upon the tracks, in endeavoring to get out of the way of a passenger train, stepped in front of a freight train upon an adjacent track and was killed, and there was evidence from which the jury was justified in finding that the signal of the approach of the passenger train was not given until it was so close to the employe that he was compelled to act without having time to consider or observe whether, in attempting to avoid the danger, he would reach a place of safety or a place of equal danger, it was a jury question whether the engineer of the passenger train was not guilty of negligence in failing to give the warning signal soon enough to enable such employe to discover whether it would be dangerous to step over on to the freight track.</p> <p>2. Under the Federal Employers’ Liability act, an employe does not assume the risk which arises out of the negligence of a fellow employe.</p> <p>3. lu order that a certificate, made by a municipal officer in a foreign country, may be admissible in evidence on the theory that it is made evidential by the provisions of a treaty with such foreign country, it must appear that such certificate is such a paper as is contemplated by the treaty and authenticated in accordance therewith.</p>

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

<p>A person who sets fire to a building of which he himself is the-occupant, although not the owner, cannot be convicte,d of burning such building under section 124 of the Crimes act, which declares that “Any person who shall wilfully or maliciously burn, or cause to be burned, any barn, stable, or other building of another, not parcel of a dwelling house * * * shall be guilty of a high misdemeanor.” The words “of another” are intended to indicate the occupancy not the ownership of the building.</p>

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

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

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

<p>On appeal from the Hudson Circuit.</p> <p>The plaintiff had entrusted certain cloths and linings to one Weiner to be made into ladies’ suits and returned to the plaintiff. The title to the material, it is said, was to remain in the plaintiff, and Weiner was to be paid for his work. The defendant, Fedorko, a constable, seized the goods by virtue of writ's of attachment against Weiner out of the Bayonne District Court. The plaintiff brought this suit in replevin against Weiner and the constable. Weiner is not shown by the record to have been summoned, to have appeared or answered. The constable answered, setting out the attachments and that he had levied upon the goods and chattels of Weiner described in the complaint, and that they were the property of Weiner and not of the plaintiff. The trial judge directed a verdict for the defendant because no demand was made for the return of the goods before this action was brought.</p>

<p>1. A charge that the plaintiff did not .assume the risk of the negligence of his fellow employes, while true as a general proposition, is subject to some qualification where the plaintiff knows that his fellow employes have been negligent, and goes on regardless of that fact.</p> <p>2. On an issue involving the question of whether a railroad was negligent in the operation of its trains in its yard, evidence as to the practice of other railroads as to warning when trains w.ere drilling in a yard is admissible as showing the care that is ordinarily used by prudent men conversant with the matter in hand.</p>

<p>1. The rule that our courts will not sit in judgment on the validity of the acts of another independent government, done within its own territory, does not, however, deprive the courts of jurisdiction, once acquired, over the case. It requires only that when it is made to appear that the foreign government has acted in a given way on the subject-matter in litigation, the details of such action or the merit of the result cannot be questioned, but must be accepted by our courts as a rule for their decision.</p> <p>2. Where the claim of the defendants in an attachment suit is a claim of right not shown by documents which the court can construe, but shown by facts and certain acts of a foreign government, the effect of which and the inference to be drawn therefrom are proper for inquiry by a jury, a motion to strike out the complaint, based upon such defence, will be denied.</p>

<p>On certiorari.</p>

On error to Passaic Oyer and Terminer. The prisoner was living in a state of separation from his wife under articles which provided that he would not sue. molest, disturb or trouble any other person whomsoever for receiving, entertaining or harboring her; that he would not without her consent, visit her or knowingly enter any house or place where she should dwell, reside or be, or send or cause to be sent any letter or message to her.

<p>On certiorari.</p>

<p>1. The mere carrying on of negotiations on Sunday will not invalidate a contract completed on a secular day. The final consummation of the contract on Sunday is necessary to bring it within the prohibition of the Sunday statutes.</p> <p>2. It is open to the trial judge, sitting without a jury, to determine that the plaintiff’s contract of employment as an architect to make plans for a house and garage was not a Sunday contract, when the evidence tended to show that, though the parties on a Sunday discussed the probable cost of various kinds of houses and the architect’s customary charges, yet the Sunday interview terminated to give the plaintiff a chance to “think it over” and the defendant an opportunity' to purchase a lot on which to build and decide upon the character of house desired, and the parties later, on a week day, agreed upen the employment to make plans, not only for a house of a designated cost, but also for a garage.</p>

<p>Under the Walsh act (Pamph. L. 1911, p. 462, ch. 221) the office of “presiding- officer of the board of commissioners” and as such “mayor” and “director of the department of public affairs” is for a fixed term of four years and not merely at the will of the board of commissioners.</p>

<p>1. The Local Option Liquor law (Pamph. L. 1918, p. 14) embraces but one object which is expressed in its title.</p> <p>2. The Local Option Liquor law (Pamph. L. 1918, p. 14), as set forth in its title, is an act to prohibit the sale or offer or exposure for sale or furnishing or otherwise dealing in intoxicating liquor as a beverage in any of the municipalities classified in the act, and the act is not invalidated because the rights of parties manufacturing liquor within those municipalities, but selling, dealing</p> <p>in or furnishing their products in wholesale quantities to persons outside tlie limits are preserved by a saving clause in the body of the act.</p> <p>8. The provisions of section 1!) of the Local Option Liquor law (Pamph. L. 1918, p. 14), saving from the operation of the act such municipalities where prohibition is already in force docs not render tlie act unconstitutional 'as a special act regulating the internal affairs of towns and counties, because, first, there are no towns where prohibition is in force except under acts relating to churches, camp meetings or state institutions and adjoining territory, and second, the saving clause is not a necessary part of the legislative scheme laid down in the act and may legitimately be disregarded if necessary to save its constitutional validity as provided for in section 31 of tlie act.</p> <p>4. The Local Option Liquor law (Pamph. L. 1918, p. 14) is not in violation of the provisions of section 1 of the fourteenth amendment to the federal constitution.</p> <p>O. A legislative enactment does not fail because in dealing with a fact reasonably capable of ascertainment, such as the number of legal votes cast at a last preceding election, the legislature has omitted to point out the precise method for ascertaining and counting those votes.</p> <p>O. The hearing upon a petition for an election under the Local Option liquor law (Pamph. L. 1918, p. 14) is a judicial, or, at least, a quasi-judicial one and the statutory procedure, provided by the act, should be strictly followed, especially as relates to tlie giving to persons interested, proper notice and an opportunity to be heard.</p> <p>7. A member of a municipal council does not have such an interest in the result of a local option election as to disqualify him from sitting in judgment on the sufficiency of a petition which he has signed.</p> <p>5. It is not necessary to the validity of election proceedings under the Local Option Liquor law that the signers of the petition for such an election should append to their signatures the name of the street or road on which they reside, the provision to that effect in the statute being'merely directory and mainly for the convenience of the governing body in ascertaining the genuineness and legitimacy of the signatures.</p>

<p>1. The Sinking Fund act of 1917 (Pamph. L., p. 757) was intended to deal with and remedy an existing situation by applying uniform rules to the amortization of municipal bonds, outstanding as well ás those thereafter to be issued, and under the expert supervision of an officer specially appointed for that purpose with state-wide powers.</p> <p>2. The Sinking Fund act of 1917 (Pamph. L., p. 757) does not impair the obligation of a municipality’s contract with bondholders because it makes provision for the payment of the bonds by gradually accumulating the money to pay for such bonds in a sinking fund.</p> <p>3. The determination of the question whether municipal bonds are to be classified as serial bonds or term bonds must depend upon the definition of those words as laid down in the statute itself rather than by the meaning ordinarily placed upon them in the business world.</p>

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

<p>Where the record brought up for review of a case tried in the District Court by a judge sitting without a jury simply presents a judgment based upon conclusions of the court, without any objections or exceptions entered or taken by counsel during the course of the trial or any request to find certain facts or conclusions of law, to the refusal of which objection might have been taken, the judgment will be affirmed.</p>

<p>A provision in a bill of lading, requiring the giving of notice of a claim for damages against a carrier, must be given a reasonable construction, and a substantial compliance therewith on the part of the shipper is all that is required.</p>

<p>The act concerning forcible entry and detainer does not confer the right upon a tenant to bring an action, under that act, against his landlord for failing to deliver possession of premises demised to the tenant.</p>

<p>1. The Traffic act (Pamph. L. 1915, p. 285) was not intended to provide an exclusively hard and fast rule, applicable to all hazards and in all situations, regardless of actual conditions, and thus liberate from responsibility one who by fortuitously adhering to the regulations, may be otherwise reckless and indifferent to the situation of others lawfully exercising equal rights upon the highway.</p> <p>2. The Traffic act (Pamph. L. 1913, p. 2S5) but adds an additional factor to be considered in a given situation by which negligence may be measured and determined between conflicting claimants exercising a common right.</p>

<p>At a meeting of a township committee, convened to pass upon the sufficiency of a.petition filed under the Local Option Liquor law (Pamph. L. 1918, p. 14), the township clerk being absent, the committee selected, from among the bystanders, a substitute clerk, who did not reside in the municipality. Held, that as the appointment of such substituted clerk was unlawful, the meeting itself was unlawful, and all business transacted thereat was invalid under the provisions of Comp. Stat., p. 3783, § 1, requiring the clerk to be a resident of the township.</p>

<p>On certiorari removing ordinance of town of Union.</p>

<p>On certiorari.</p>

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

<p>Where a party, without himself doing an act which would induce an ordinary, good-natured, kind and gentle dog to bite, is bitten by a' dog, the owner of the dog is liable in damages for the injury suffered, upon evidence showing that the dog, with the knowledge of the owner, had a mischievous propensity to bite, whethein anger or not, and in order to say that a dog who has bitten a person did not at the time manifest a mischievous propensity, it must necessarily appear that the biting was done in self-defence, or by invitation and under such circumstances that the ordinary well-behaved clog, of a kind and gentle disposition, would have acted in a similar manner, in a similar situation.</p>

<p>A garage keeper, who furnishes supplies for an automobile, acquires a lien on the vehicle, under the Garage Keepers’ Lien act (Pamph. L. 1915, p. 556), even though the automobile was never in his possession and such lien can be enforced against the automobile although it has been sold to an innocent purchaser for value, who had no notice of the garage keeper’s claim.</p>

<p>Ou case certified.</p>

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

<p>The application of tim =ule “falsvs in uno, falsas m omnibus,’’ can only be properly invoked viUnn the false testimony or statement is willfully or knowingly or intentmi»>ny given or made concerning a material fact in the case; and an insi««wion to a jury that if a witness has made a false statement or testlíiect £*wiy relating to a material fact in the case, the jury may reject all or any part of the testimony of that witness, without a qualification that such false testimony is willfully, knowingly or intentionally false, is erroneous.</p>

<p>1. On tlie trial of an indictment for conspiracy to cheat and defraud, testimony tending- to prove other acts of the defendants, in pursuance of an unlawful agreement, with persons other than those mentioned in the indictment, but which acts were similar in character and occurred dui'ing the same period of time, is properly admissible in evidence for the purpose of proving the fraudulent purpose and intent of the persons involved, when such testimony is followed or accompanied by proof of one or more of the overt acts charged in the indictment.</p> <p>2. A party is in no position to complain of matters which the judge omitted to charge the jury, unless the judge’s attention was directed thereto by a request and such x-equest was refused.</p> <p>3. On the trial of an indictment for conspiracy to cheat and defx-aud, it is a proper procedxxre for the state to prove the chax*acter of the unlawful means adopted by the defendants to carry into effect the conspiracy chax-ged in the indictment, even though those particular unlawful means are not set forth in tlie indictment, and in themselves constitute an indictable offence, so long as they are related to the subject-matter of the indictment.</p> <p>4. Only the general reputation of a defendant can properly be put in evidence and pax-ticulai- facts and cix-cumstances tending to establish honest dealings or conduct are inadmissible.</p> <p>5. A court cannot legally substitute its judgment for that of the jury and exclude testimony from the latter’s consideration, upon the theory that its evidential value is weak, without depriving a defendant of a constitutional right to the benefit of such testimony. and a jury of one of its most sacred functions — to weigh the testimony and make deductions therefrom.</p> <p>G. On the trial of an indictment fox; conspiracy to cheat and defraud, testimony showing that an alleged conspirator, who had turned state’s evidence and upon whose testimony the state relied fox-conviction, was addicted to the excessive use of liquor to such an extent that he would be incapacitated for weeks at a time, during which he was mentally incompetent and incoherent, and that those facts were known to the defendant, is admissible for the purpose of having- the jux-y pass upon the probability of a man allying himself with a man whose drunkenness might, at any moment, have made him indiscreet and thereby liable to disclose the fraud that was being perpetrated.</p>

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

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

<p>1. Whether, when a person who enters upon a railroad company’s right of way as a trespasser and proceeds along that right of way until he reaches a public highway over the railroad, which he intends to cross, he then ceases to be a trespasser and becomes a traveler on the highway when crossing the railroad tracks thereon, quaere.</p> <p>2. The Highway Crossing act of 1909 (Comp. Stat., p. 4238, ch. 35, § 36a) is intended for the safety and protection of travelers upon the public highway intending to cross over the railroad company’s right of way and tracks, and not for the benefit of those who have gotten upon the right of way and within the safety gates without approaching' them on the highway.</p> <p>3. The Highway Crossing act of 1909 (Comp. Stat., p. 4238, ch. 96. § 36b) so far as the safety gates feature thereof is concerned, is intended for the safety and protection of travelers upon the public highway intending to cross over the railroad company’s right of way and tracks, and not for the benefit of those who have gotten upon the right of way and within the safety gates without approaching them on the highway.</p> <p>4. The Highway Crossing act of 1910 (Comp. Stat., p. 4238, ch. 278, § 30c) does not apply in the case of an accident happening upon a railroad crossing where safety gates are installed.</p> <p>5. Where a person enters upon a railroad company's right of way as a trespasser and proceeds along that right of'way until he reaches a highway crossing and then attempts to cross the railroad tracks on the highway and is injured, he is subject to the common law duty of looking and listening, and, if guilty of contributory negligence, is not entitled to recover damages.</p> <p>O. Contributory negligence is present in a given case when the injured person by his own negligence has contributed to the injury in such a way that, but for his negligence, he would have received no injury from the negligence of the, other party.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 89 N. J. L. 407.</p>

<p>1. The authority given by a town charter to appoint subordinate officers and agents is broad enough to permit the employment of men to enforce the ordinances when the appointment of a police force is held up by litigation.</p> <p>2. The act of 1912 (Pamph. L., p. 257) authorizes the governing body of a town to appropriate annually such sums of money as shall be necessary for all the general and incidental expenses of the town, including the support and maintenance of the free public schools of the town, for the then current year. Held, that the appropriations for expenses other than appropriations for schools need not be made during the year. The expenses may be met out of moneys on hand from appropriations of former years.</p>

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

Charles J. Basch, as landlord, and Benjamin H. Kaufman, as tenant, entered into a lease of property owned by Basch, which recited that the tenant had deposited with the landlord upon delivery of the lease $5,000 as security for the performance of all its covenants and conditions.

The plaintiff on September 1st, 1916, was in the employ of truckers who had been engaged to transport a smelting furnace — a heavy piece of machinery — from the railroad station at Harrison, New Jersey, to the Electric Company’s works. The furnace had been delivered to the defendant on a gondola car of the Pennsylvania Railroad Company at Buffalo, New York, and transported by the defendant to Harrison.

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

<p>1. Section 21 of the Practice act of 1912 does not support a suit and entry of judgment therein for moneys not due at the time of beginning the action, though they he installments to accrue, and though there is already a right of action for installments in arrear.</p> <p>2. A contract to pay weekly sums in settlement of liability of an employer for the death of an employe, equal to the maximum provided in the Workmen’s Compensation act of 1911 (Pamph. L., p. 134) and supplements thereto, may be enforced by the persons claiming the payments, in the Supreme Court by a common law action.</p> <p>3. Where the judgment was properly rendered for moneys already due, but was erroneous in providing for moneys not due, it may stand as to the moneys due and need not be reversed in toto. Rules 134 and 147 are applicable.</p>

<p>1. In a proceeding before a statutory tribunal, as in bastardy cases, ■when there is a trial de novo on appeal with jury before the Court of Common Pleas or Quarter Sessions, and a verdict requiring the entry of an independent judgment by that court, its failure to enter such judgment will not work a reversal on certiorari, but the record will be remitted to it for the entry of such judgment as was required by law in accordance with the verdict.</p> <p>2. In a bastardy case under our statute, it is not necessary to a finding against the putative father, that the testimony of the mother of the bastard should be corroborated.</p> <p>3. A bastardy case under our statute is not a criminal but a civil proceeding; the burden of proof does not require proof of paternity beyond a reasonable doubt; and while the incidental element of criminality involved in the paternity of an illegitimate child entitles the putative father to present evidence of good character, which the jury should consider in connection with the other evidence in the case, the defendant is not entitled to be absolved if the character evidence, either alone or in connection with the other evidence, raises no more than a reasonable doubt that he is the father of the bastard child.</p>

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

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

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

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

<p>1. The Garage Keepers’ Lien act (Pamph. L. 1915, p. 556) providing that garage keepers and automobile repairmen shall have a lien on any automobile for which they have furnished certain services or accessories, even after the possession of such automobile has passed from their hands, does not operate to deprive a person of his property without due process of law.</p> <p>2. The Garage Keepers’ Lien act (Pamph. L. 1915, p. 556) does not impair the obligation of contracts made after the passage of the act, as such act is a part of any contract, which it might affect, made after its passage.</p> <p>3. The Garage Keepers’ Lien act (Pamph. L. 1915, p. 556) embraces but one object, which is expressed in its title.</p>

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

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

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

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 40.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 A. J. L. 4.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 109.</p>

“This action is a second suit brought by the plaintiff, Crosby, against the city of East Orange to recover damages to his real property by the abstraction of waters by percolation therefrom, notwithstanding that permanent damages have been heretofore awarded him in a suit in the Supreme Court for injury to the same property by the abstraction of waters by percolation therefrom, by the operation in the same manner of the same water plant. “The record in the action brought in…

White, deceased, compensation for board furnished her, and medical attention received by her, while an inmate in the Burlington county insane asylum from June 26th, 1914, to July 19th, 1915. The case was tried before Judge Carrow without a jury.

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 46.</p>

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

Petitioner’s decedent, Andrew Mullenbach, was employed by the prosecutor as a foreman on March 11th, 1916; while engaged in lifting a heavy steel girder he strained the muscles of his back, aggravating two hernias; as a result he had to undergo an operation; he afterwards, on June 4th, 1916, died of a post-operative pneumonia. The trial court found as a fact that the accident arose out of and in the course of his employment. This is the controverted question in the case.

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

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

<p>On certiorari of tax sale.</p>

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

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

<p>1. While primarily sedition against the United States is a crime against the federal government, under our system of government the federal and state governments are so closely interwoven that an attack on the former may imperil the existence of the latter, and it is competent for the state to deal with such an offence when directed against the federal government alone.</p> <p>2. “Hostility or opposition to the government of the United States, or of the State of New Jersey.” as condemned by the supplement of 1918 to the Crimes act (Pamph. L., p. 130), means such hostility or opposition as involves the subversion or destruction by force, and the right of freedom of speech cannot be properly construed to protect such an abuse of freedom.</p> <p>3. In a trial on an indictment for sedition it is not necessary that there be proof of criminal intent.</p> <p>4. A charge to a jury must be read as a whole in the light of a sensible construction, and although an erroneous proposition of law cannot be cured by a correct statement in another portion of the charge, no error is committed by a failure to have every sentence contain the necessary qualifications, if, upon the whole, the jury could not have been misled.</p>

<p>1. The fact that the person injured had a predisposition to disease, or a latent weakness, cannot avail the defendant to relieve him from liability from damages which ensue when his negligence brings the dormant disease into activity, or aggravates the latent weakness.</p> <p>2. Where the latent disease or weakness itself did not cause pain, suffering, &c., to the plaintiff, but such condition plus the fall caused such pain, the fall and not the latent condition is the proximate cause, and the plaintiff is entitled to recover the entire damage shown to have resulted from such fall, from the one whoso negligence caused it, without proving how much the plaintiff would have suffered from such latent disease if she had not received the injury.</p> <p>3. When,' upon objection to an improper remark concerning evidence by counsel in addressing the jury, counsel promptly and frankly withdraws such remark, and no request is made either that counsel be rebuked by the court or that the jury be instructed to disregard it, and the incident is thus closed, a reversal is not justified because of such remark.</p>

<p>1. A sheriff’s sale will be set aside on proper terms, even if there has been no fraud, where there is gross inadequacy of price, and the party, by reason of a mistake or misapprehension, did not attend the sale or protect his interest at the sale, and the sacrifice was caused by such mistake or misapprehension.</p> <p>2. Where an execution defendant did not attend the sale, or protect his interest at the sale, by reason of the advice of his attorney that the mortgagee’s claim of property necessitated a postponement of the sale, and property worth $500 was sold to the execution plaintiff for $5, the sale will be set aside and a resale ordered under the original writ to make the debt and costs, inclusive of the costs of the prior sale.</p> <p>3. A sale of goods may be made under an execution after the return day of the writ, provided the levy was made before the return day of the writ.</p>

<p>On certiorari.</p>

<p>Section 33 of tlie School act (Comp. Stat., p. 4733) makes provision for the apportionment of any surplus remaining in hand at the end of the school year in case a new school district is set off from an older one. Held, that in the absence of any statutory provision in that regard the district newly set off is not liable for any part of a deficit remaining at the end of said school year.</p>

<p>1. Whether an agreement to pay the statutory compensation for death under the Workmen’s Compensation act should be in writing to satisfy the' statute of frauds, in view of the provision that compensation is terminated by death of a dependent or remarriage of a widow, qucure.</p> <p>2. The procedure for recovery of compensation under said act is not applicable to cases where the suit is to enforce the terms of an agreement to pay stipulated sums, made after the accident.</p> <p>3. An agreement to pay compensation, made after the accident, is evidential of the occurrence of an accident and of the right to recover compensation therefor, but not conclusive evidence nor an -estoppel to disprove the accident, if made within a year thereafter; and in a compensation suit it is error to exclude proof in denial of the occurrence of the accident, simply because of the existence of such an agreement.</p>

<p>1. By reason of the Soldiers’ Vote act (Pamph. L. 1918, p. 437), the provisions of the Local Option act (Id., p. 14) as to giving notice of a special election by posting and publication are rendered inoperative as constructive notice to voters in the national service coming within the provisions of the Soldiers’ Vote act.</p> <p>2. The Soldiers’ Vote act (Pamph. L. 1918, p. 437) is not rendered nugatory nor does it lose its effect as a statute, because of a temporary impracticability of carrying out its provisions, due to official action of federal authorities in withholding addresses of men in service.</p> <p>3. A failure to carry out the requirements of the Soldiers’ Vote act (Pamph. L. 1918, p. 437) whereby a substantial percentage of voters lose the opportunity to vote, is more than a mere irregularity in conduct of an election, it is a practical disfranchisement of such voters.</p> <p>4. Where the Soldiers’ Vote act (Pamph. L. 1918, p. 437) required the secretary of state to mail voting papers to each voter in service at least twenty days before any general or special election, and he was unable to do so because of the failure of local authorities to notify him in time, that such special election was to be held, it cannot be said that there was a reasonable attempt to comply with the provisions of the act.</p> <p>5. The statutory review of local option elections under Pamph. L. 1918, p. 14, is not an election contest to determine which party was successful but a review of the legality of the entire election, to determine whether it was held according to law.</p> <p>6. The Soldiers’ Vote act (Pamph. L. 1918, p. 437) is not unconstitutional as providing a different method of counting the soldier vote from that provided in constitution, article 2, paragraph 1.</p>

<p>1. The Local Option act (Pamph. L. 1918, p. 14) is not unconstitutional as containing an improper delegation of legislative power, by requiring a special election to be held on petition by thirty per. cent, of the qualified voters as - distinguished from referendum at a general election on petition of over twenty and less than thirty per cent.</p> <p>2. Nor is said act unconstitutional by reason of such provision, as establishing an illusory classification of municipalities in violation of the clause relating to special laws regulating the internal affairs of towns and counties. Constitution, article 4, section 7, paragraph 11.</p>

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

<p>1. A complaint under the Disorderly Persons aet (Comp. Ktat., p. 1926) should be verified by oath or affirmation; and when it is shown that a complaint purporting- to be sworn, was not in fact sworn before the officer whose name was subscribed to the jurat, it will not support the proceeding.</p> <p>2. Under section 3 of the Disorderly Persons act (Comp. Stat., p. 1926), relating to the utterance of loud and offensive or indecent language in public places, proof that such language was uttered in an ordinary saloon, without more, is insufficient to support a conviction.</p>

<p>The plaintiff paid to the defendant $194.50 for which the latter agreed to forward for the plaintiff $194.50, or its equivalent, 1.000 rubles, to plaintiff’s wife in Russia. The agreement was manifested by a written receipt in which the defendant acknowledged that it had received from the plaintiff $194, equivalent to 1.000 rubles, for remittance to plaintiff’s wife in Russia. Delivery could not be made through the Russian postal service, due to conditions created by the war, and four months after a failure to deliver, the defendant offered to refund to the plaintiff $127.50 which it claimed was the then present value of 1,000 rubles in American money. This the plaintiff refused and brought suit to recover the $194.50 deposited with the defendant for remittance. On proof of these facts defendant moved for a nonsuit on the ground that its liability ceased when it cabled to its agent in Russia a direction to pay to plaintiff’s payee the 1.000 rubles. Held, that the contract to forward the money or its equivalent was not performed until delivery, even though the failure was not the fault of the defendant, and that plaintiff was entitled to recover at least the value of the rubles, if not the money paid as a consideration for the contract, and as something was due plaintiff, the refusal to nonsuit was not error.</p>

<p>On motion for a judgment of non pros.</p>

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

<p>A trial of a policeman for delinquency, in which, of the six councilmen who heard the case, one preferred the charges and three of the remaining members were called as witnesses aginst him, one of whom heard only a portion of the testimony, is not a “fair trial” under the express language of chapter 152 of the laws of 1917.</p>

<p>Where, in a workmen’s compensation case, there was proof only of the death and of the dangerous environment of the deceased, which furnished presumptive or circumstantial testimony of the manner of death, by a logical process of rational induction, based upon human experience, from which the reasonable inference of the existence of the satutory requirement Avas deducible, i. e., that death arose out of and in the course of the employment, a conclusion, by the trial court, based upon such rational inference tantamount to legal proof of the facts, will not be disturbed.</p>

<p>A court will not, except in a case of palpable unreasonableness in the exercise of a power, direct an administrative officer to exercise the power committed to him in any particular manner. To warrant the issuing of a writ of mandamus the right of the petitioner to it must be clear and the public duty sought to be enforced must be clear and specific.</p>

<p>Land, owned by a charitable organization, the improvements whereof have been totally destroyed by fire, leaving the land unoccupied and unused, is not land “actually used for charitable purpose” so as to exempt such property from taxation. Use is the dominant factor upon which exemptions of this character are based, and to bring the use within the legislative contemplation it must be based upon a use of the entity, and cannot be applied to a severance of a freehold, by which the building or the land may be severally and independently exempted.</p>

<p>First and fourth class railroad properties are liable to the tax of one mill on the dollar imposed by chapter 16 of the laws of 1917, commonly known as the Road Tax act.</p>

<p>1. The failure to give the notice required by chapter 2 of the laws of 1918. of a hearing on the petition for an election to determine whether intoxicating liquor shall be permitted to be sold as a beverage in a municipality deprives the council of jurisdiction to submit the question at the election.</p> <p>2. The validity of an election, on the question of the sale of intoxicating liquor, submitted at the general election, cannot be affected because the provisions of chapter 150 of the laws of 191S, relating to the method of obtaining the soldiers’ votes, were not complied with, on the theory that the soldieis to whom ballots might have been sent would have voted on the question submitted, and against prohibiting the sale of intoxicating liquors.</p>

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

<p>Under paragraj)h 28, Revised Tax act (Pamph. L. 1903, p. 394; Comp. Stat., p. 6107), it shall be the duty of the collector of taxes to enter on the duplicate, a proper assessment against any proj>erty omitted by the assessor, giving the owner immediate notice of such entry and the time and place of the next meeting of the commissioners of appeal. In this case, it is a question of fact under the evidence, whether the property entered on the duplicate by the collector, was or was not omitted property. The question on the part of the assessors is not one of an intention to assess, but of fact, whether the property was actually assessed.</p>

<p>1. A gas company, which has installed a gas meter in the cellar of a householder cannot forcibly remove the same, against the protest of the householder, without proof of the contract under which the gas meter was installed, giving the company the right to enter the premises and remove the gas meter.</p> <p>2. A gas meter being in the defendant’s possession, the presumption is that it is rightfully so, until something is shown which justifies the forcible removal of the gas meter. The possession may be defended.</p> <p>3. Tf the possession of a gas meter from a household, where it has been installed by the gas company, cannot be regained peaceably, resort should be had to a legal remedy; possession cannot legally be regained by force. The remedy lies in the courts.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 355.</p>

<p>On error to the Supreme Court, whose opinion is reported in 91 N. J. L. 103.</p>

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

<p>A tax upon the transfer of property that has been made the subject of an irrevocable deed of gift intended to take effect in possession, so far as the beneficiary is concerned, at the death of the settlor, is valid although imposed under authority of a statute not in existence at the time of the. execution of the deed of gift, when the right, title and interest of the beneficiary in the subject-matter of the gift does not vest in him or her until the death of the settlor, and the enactment of the statute antedates that event.</p>

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

<p>1. An adjudication by the Supreme Court on certiorari in a tax case that the judgment of the county board of taxation was not unreasonably or illegally reached and was supportable upon the facts and the figures adduced before it, is not a compliance with the mandate of the Tax act of 1903 (section 38) or of the Certiorari act (section 11 as amended in 1907), by which the court is required to reduce the valuation if too great, and to determine questions of fact.</p> <p>2. Evidence taken for the first time in the Supreme Court under a rule to take depositions obtained by the prosecutor of a certiorari in a tax case, cannot sustain a finding by the county board of taxation that antedates the evidence.</p> <p>3. Evidence of mere opinion as to value of the property assessed given by a member of a county board of taxation who has no special knowledge of the value of the property, must be rejected.</p> <p>4. Where the prosecutor of a certiorari in a tax case has the right and full opportunity to present evidence in the Supreme Court, his constitutional right to a hearing is preserved unless the hearing is a mere form.</p> <p>5. Where the Supreme Court on a certiorari in a tax case fails to consider testimony taken for the first time in that court and treats the case as if the evidence had been before the county board of taxation and was available to sustain the findings of the board, the hearing is mere form and not due process of law.</p>

<p>1. In construing a contract for the sale of machinery, unsigned specifications, not contained in the contract nor in terms made a part thereof by the contract itself, but referred to therein and annexed thereto, must be construed therewith. But where the specifications are referred to for a specific purpose only, they become a part of the contract for such purpose only, and should be treated as irrelevant for all other purposes.</p> <p>2. The word “specifications'’ as used in a contract for machinery ordinarily means a specific and detailed description of the thing to be furnished or of the work to be done, and does not include the reservation of title to the machinery.</p> <p>8. Where a contract for the sale of machinery upon terms therein stated, provides that one of the machines shall be “of the size and dimensions as set forth in the attached specifications,” which specifications were unsigned and not in terms made a part of the contract, the mere fact that the specifications conclude with a statement that title to the property does not pass until the whole of the purchase-money is paid, does not operate to retain title in the vendor after delivery.</p>

<p>1.. An affidavit to hold to bail which has no caption with the name ' of the cause, but merely ah endorsement on the back thereof of the names of the parties, is not “entitled in the cause.”</p> <p>2. An endorsement of the names of the parties on the back of an affidavit to hold to bail is no part of the affidavit, but merely a note of convenience indicating where the paper is to be filed in the. clerk’s office.</p> <p>3. An order holding the defendant to bail in an action upon contract, which shows upon its face that it was made upon proof by affidavit, to the satisfaction of the judge or commissioner, of the particular facts found therein, and necessary to authorize the order, is sufficient without therein reciting the evidence by which'such facts were established.</p> <p>■ 4: ■ On an appeal every intendment is in favor of the correctness of the judgment below, 'and doubt will not lead .to a reversal.</p> <p>E5. The mere fact that the complaint was not annexed to the capias ad respondendum will not lead to a reversal of the plaintiffs judgment, when it appears that they were both served the same day, that the defendant answered and filed a counter-claim, and upon an examination of the whole case it does- not appear that such error of pleading or practice injuriously affected the substantial rights of the defendant.</p> <p>G. The mere fact that the capias ad respondendum contained no, clause admonishing the defendant to file his answer within twenty days, will not lead to a reversal of the plaintiffs judgment, where the complaint served with the writ contained such clause and the defendant in fact answered within the time limited, and it does not appear that such error injuriously affected his substantial rights.</p>

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

<p>Sections 67 et seq. of the Orphans’ Court act (Comp. Stat., p. 3833) relating to the presentation of money claims against the estates of deceased persons and. the limitation of time for such presentation, apply to claims and demands founded on tort as well as to those founded upon contract.</p>

<p>1. Leave to withdraw a juror is a favor, not a right, and rests within the sound discretion of the trial court.</p> <p>2. The defence of alien enemy, in order to be considered in an action at law, should be made a part of the record and stated with accuracy by an appropriate pleading, or motion under our present practice. It is not favored by intendment.</p> <p>3. Plaintiff, a citizen of Germany residing in this state and earning his living here, sued for damages sustained by reason of a collision between his motorcycle and an automobile van. At the trial it appeared that he was born in Germany, had never been naturalized in this country, and was living and working in this state as aforesaid. Held, that it was improper to nonsuit him on the ground that he was an alien enemy, first, because the defence had not been pleaded or otherwise entered upon the record; secondly, because the alien enemy rule is not applicable to a citizen of an enemy country peaceably residing and doing business here with the implied license and permission of our government; there being nothing to show that he was within any of the classes denounced by the Trading with the Enemy act or any presidential proclamation.</p>

<p>On appeal from the Supreme Court, whose opinion, reversing a judgment of the District Court of Elizabeth, is reported in 91 N. J. L. 464.</p>

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

<p>1. Plaintiff was emidoyed as a fireman on one of defendant's locomotive engines; lie was found in the engine cab in a standing position, about to collapse, with an abrasion on his head; was taken to a hospital and shortly became permanently insane. There was no proof of what caused the injury. A suit was brought on his behalf, and on the trial proof was made, in addition to the foregoing, that another engine passed that on which plaintiff was employed, which carried an iron poker extending four inches at one end, into the clearance space between the two engines, which was two feet eight inches, and that there were no other projections within the clearance space which could have come in contact with plaintiff. With these cireumstances proven a motion by defendant for a favorable direction was refused. On appeal the plaintiff urged that the jury might presume that the poker had so changed its location as to come into position to strike plaintiff, because unless plaintiff was struck by the poker there would have been no accident. Held, that there being no proof that the poker had changed its position, or of the fact that plaintiff came in contact with it, the jury could not presume that a change in position of the poker had occurred, and upon that presumption, presume plaintiff came in contact with it.</p> <p>2. To recover for injuries resulting from a negligent act of a party, based upon circumstantial evidence, it must show, not a possibility only but a probability that the injury resulted from defendant’s negligence.</p> <p>3. To be allowable, the presumption of a fact must be the immediate inference to be drawn from facts proven.</p>

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

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

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

<p>The parlies contracted, in -writing, for the manufacture and delivery of a quantity of glass moulds, to be delivered as called for. The defendant finally wrote to plaintiff to the effect, that it had no facilities for the work, and requesting plaintiff to find '“some other source of supply.” This the plaintiif did at an increased cost of $7,000. The court directed a verdict for the amount claimed, after requesting counsel to indicate whether there was any jury question in the case, and receiving no reply! In this situation, the only question preseneted in the case, was the issue of impossibility of performance, presented by the pleadings, and under the circumstances impossibility of performance presented no valid defence.</p>

<p>AVhere one of two parties to an agreement to exchange real estate has sold his property to a third party, the other party, while relieved from making a tender of a deed of his property, is not relieved from the duty of establishing that he was able and ready to perform his part of the undertaking, in order to recover damages for a breach of the contract.</p>

<p>1. Individuals or companies who maintain agencies which are dangerous to human life, are under a duty to exercise a very high degree of care for the safety of those who may be thereby exposed to danger. High degree of care denotes a degree of care commensurate with the risk of danger; and whether, in a given case, a defendant has exercised that degree of care commensurate with the risk of danger arising from the accumulation of a vast quantity of high explosives upon its premises, in cars which stood in close proximity to each other, was clearly a jury question.</p> <p>2. Where certain rules and regulations prescribed by acts of congress. and by the interstate commerce commission, covering the carrying and transportation of explosives are set forth by defendant’s answer to the complaint, and also, in part, by answers to interrogatories, propounded to it, such rules and regulations are evidence in the cause, without formal proof thereof.</p>

<p>1. Where a defendant is charged, in separate indictments, with robbery and murder, the murder being the result of the criminal act of the accused, done in the perpetration of the robbery, and he pleaded guilty to the indictment for robbery, the subsequent prosecution on the indictment for murder is barred.</p> <p>2. By the term “same offence” is not only meant the same offence as an entity and designated as such by legal name, but also any integral part of the offence which may subject an offender to indictment and punishment.</p> <p>3. When the integral part of the principal offence is not a distinct affair, but grows out of the same transaction, an acquittal or conviction of an offender for the lesser offence will bar a prosecution for the greater.</p> <p>4. A plea of autrefois convict, after it has been overruled, is not evidential against the accused, on his trial, either as an admission or confession.</p>

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

<p>1. When the plaintiff’s attorney attempts to impeach the veracity of defendant’s witness, for his failure to testify about an alleged conversation, when first on the stand, it is then within the discretion of the trial judge to permit the defendant’s attorney, by testimony, to mate an explanation of such failure to testify.</p> <p>2. A trial judge, although requested, is not required to charge abstract legal principles not applicable to the facts appearing in evidence, even though they embody accurate legal statements.</p> <p>3. A steam railroad, company must exercise the utmost care, to allow a reasonable time and opportunity, after stopping its train at a station, to permit intending passengers, using reasonable diligence and care, to board its cars in safety, before putting the train in motion.</p> <p>4. In this case, it was not error for the trial judge to charge the jury, that if they found that “Mr. Ploeser jumped aboard a moving train, then there can be no recovery.”</p>

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

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

“The facts found by the District Court judge are, that the plaintiff agreed to purchase the business of the defendant, which included a license for the sale of liquors, the consideration being $1,000, upon which $550 was paid in cash and the balance in promissory notes; that a bill of sale was made by the defendant to the plaintiff and also a power of attorney permitting the plaintiff to carry on the business in defendant’s name and to run and manage the saloon as fully as…

“The defendant obtained a rule to show cause, reserving exceptions taken at the trial, with the result that the verdict was reduced to $1,000 and judgment entered for that amount, from which judgment the defendant appeals to this court. “The plaintiff’s complaint contained two counts for slander. “The first count charges the alleged slanderous words spoken to be as follows: ‘I know of Bingham’s having given a check in payment of automobile tires when he did not have an…

Pamph. L. 1909, p. 168. “The defendant relied upon the fact that he had made his report to the county board of health, which act he insists is a compliance with the requirements of the law. Hudson county is exceptional in the fact that it possesses a county board of health and vital statistics. “The legal status of that board has been settled by the Court of Errors and Appeals in State v. Hudson County Board of Health, 85 N. J. L. 13.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 355.</p>

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

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 20.</p>

<p>• On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 87.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 373.</p>

<p>Proceedings on prerogative writs are civil eases, and, therefore, appellate proceedings on judgment in those cases are to be prosecuted by appeals and not writs of error.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 454.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 66.</p>

The pleadings and judgment erroneously describe plaintiff’s entire property as conveyed to him by deed, as well that part of which he is in possession at the beginning of the suit, as that part of which defendant had, as he claimed, deprived him, and which is all that he should have sued for.

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 38.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 137.</p>

On appeals by the borough of Middlesex from judgments rendered in the Supreme Court, in the which the following per curiam was filed: Writs of certiorari were allowed in each of the above-stated canse? to review an order made by the state board of taxes and assessment relating to the taxes assessed for the years 1915 and 1916 against the city of Plainfield and the boroughs of North Plainfield and Dunellen.

<p>On appeal from the Supreme Court, whose opinion is reported in 90 N. J. L. 421.</p>

On error to the Supreme Court, in which the following per curiam was filed: “The plaintiff in error was convicted before the Atlantic; Quarter Sessions on an indictment charging that he “unlawfully did buy and purchase from one Edward Bowers, a minor under the age of sixteen years, two metal hinges, which said personal property may have been stolen.’ ““The crime intended to be charged in the indictment was a violation of the supplement to the Crimes act passed in 1903 (Pamph.

<p>On error to the Supreme Court, whose opinion is reported in 91 N. J. L. 368.</p>

This case came up on certiorari to the Supreme Court to review the judgment, order and proceedings of the Morris County Court of Common Pleas upon a petition praying for commutation of an award of compensation granted to petitioner under the Workmen’s Compensation act. Petitioner’s injury resulted from the accidental swallowing of pins on March 21st, 1915, while in the employ of respondent.

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

<p>In a suit against the master, it is proper, on cross-examination of a servant, to show that the servant made other statements, contradictory of his testimony on the witness-stand. Such contradictory testimony is admissible only to discredit the testimony of that witness, and not for the purpose of binding the master by an unauthorized statement. Protection from the latter effect is to be had by a request that the trial judge limit the effect of such testimony to its strictly legitimate use.</p>

<p>A person acting as agent for another cannot use the power conferred by his position to make an advantage for himself out of the business entrusted to liim. If, in acting for a vendee, he misleads liis principal as to the amount actually paid to the vendor, and, by concealment or other artifice, obtains from him a sum greater than the purchase price, the principal is entitled to require the agent to refund the excess to him.</p>

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

<p>The relation of master and servant continues during the carriage of the servant to and from his work, when done by the master or with his consent, where, from the character of the service such transportation is beneficial both to the master and the servant.</p>

<p>An employe of defendant, in loading a truck in the course of his employment, lifted the tailboard to permit the plaintiff, a traveler on the sidewalk, to pass; the jury might have found that it then fell without fault of the plaintiff and injured her. Held, that the question of defendant’s liability was for the jury.</p>

<p>Where, on the trial of an indictment which charges both a misdemeanor and a high misdemeanor, the jury found a verdict of “guilty of the misdemeanor aforesaid” the failure of the jury to find a verdict on the counts for high misdemeanor is not cured by the fact that the punishment imposed was justified under either count.</p>

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

<p>1. If a landlord of an apartment house assumes the duty of providing and maintaining a light upon the common stairway, it continues thereafter to be his duty to exercise reasonable care to maintain a light there until notice of its discontinuance has been given, and failure to perform such duty is negligence, and a tenant who is injured because of such negligence, and whilst himself in the exercise of due care, is entitled to recover.</p> <p>2. A tenant of an apartment house, injured by reason of the landlord’s failure to keep burning a light at the foot of a common stairway as he had assumed the duty of doing, cannot be said as a matter of law to be guilty of contributory negligence in using the stairway when the light was out, when it was open to the jury to find that she was familiar with the stairway, that she was half way down before she noticed or could have noticed, the absence of the light, and that there was no one present to make a light for her.</p> <p>3. In an action by a tenant to recover for injuries sustained because of the landlord’s failure to perform a duty assumed by him of maintaining a light upon a common stairway of Ms apartment house, the fact, if it be a fact, that the light was burning fifteen minutes before the accident, does not justify a direction of a verdict for the defendant, when the evidence permitted of the inference that thereafter, and before the accident, the light had been turned out by the landlord’s agent whose duty it was to keep it lighted.</p> <p>4. Where the plaintiff, at the time of the accident in question, held one of the apartments in a house under a written lease, and his landlord, some time before the accident, but without notice to the plaintiff, and without his express consent, leased the entire premises, and “assigned” the plaintiff’s lease, to the janitor of the building, it cannot be said as a matter of law that the plaintiff recognized the janitor as his landlord, merely because thereafter the plaintiff made his checks for rent payable to the janitor instead of to the defendant as theretofore, when the other evidence tended to show that defendant continued to exercise control over the premises, and that the plaintiff might properly have assumed from appearances that the janitor to whom the rent was paid continued to be, as he had been, the agent of the defendant landlord.</p>

<p>The action of the Supreme Court in quashing an indictment removed into that court by certiorari is discretionary, and not subject to review by writ of error.</p>

<p>It was the practice of a servant in driving an auto from his master’s residence to a garage some distance away, to stop at his home for supper when he had been driving for his master until late in the day, and after supper to take the auto to the garage and wash it. This practice was known to the master and, as he testified, accepted by him as a matter of course. As the servant was, late in the day, driving the auto from the master’s residence to the garage, he deviated from the most direct course in order to go to his home for supper, and before reaching his home ran into and killed the plaintiff’s intestate. The court was requested by defendant to instruct the jury that neither permission, express or implied, allowing the driver to stop at his home for supper, on his way to the garage, or acquiescence in the practice, constituted the driver the servant of defendant while driving home, and if the accident happened while driving home for supper, the defendant was entitled to a verdict even though he permitted it to be done, or acquiesced in the practice. Held, that the request was properly denied.</p>

<p>On certiorari. On appeal from the Supreme Court, whose opinions are reported in 92 N. J. L. 44, and Id. 61.</p>

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

<p>There being testimony in the case from which the jury might infer that the deceased was occupying a motor car by invitation, or as a passenger,, and the trial court having submitted that question to them with an instruction that if the deceased occupied that status, the contributory negligence of the driver of the car could not affect the right of his intestate to recover, and the jury having found for the plaintiff, the legal inference results that they must have primarily found in accordance with the trial court’s instructions, that the deceased occupied the status of a passenger.</p>

<p>Where, in a suit brought under the Federal Employers’ Liability act, it is clear from the evidence that if the plaintiff had remained at the place to which he was assigned to work, and where he was told to remain, and had not attempted to go through an obscure passage in the dark, not connected with his work, he would not have met with the mishap, a direction of a verdict for defendant was proper.</p>

<p>The doctrine of res ipsa loquitur, as tending to establish prfona facie negligence is only applied where there is an essential element present, that is proof of the existence of the cause or thing which was alleged to have been the negligent act which produced the injury, or proof of such facts from which the existence of such cause or thing constituting the alleged negligent act is the only reasonable inference that can be properly drawn, and that such negligent cause or thing producing the injury is in the possession of and under the control or management of the person charged with negligence or of his servant.</p>

<p>The operation of the Pure Food act of 1907 (Pamph. L., p. 485) as amended (Pamph. L. 1911, p. 61) precludes the exercise, by the boards of health in cities of the first class, of any power derived from Pamph. L. 1904, p. 344, to deal with the purity and standard of milk, and in cities where such ordinances existed, the effect of the statute of 1907 was to render them inefficacious.</p>

<p>1. Under the Factory act (Pamph. L. 1904, p. 152) an action, for injuries to a child under fourteen years of age, employed in violation of the statute, based upon the common law liability of the employer, may be maintained, where the breach of such statute is the efficient cause of the injury, of which the plaintiff complains. This is so, where the statute itself gives no civil remedy or private right of action. The breach of such .a statute may be prima facie evidence of negligence. Evers v. Davis, 86 N. J. L. 196; Hetzel v. Wasson Piston Ring Co., 89 Id. 201, followed.</p> <p>2. One who employs a child under fourteen years of age, in violation of the Factory act (Pamph. L. 1904, p. 152) does so at his peril; unless at the time of the employment of the child, he complies with the third section of the act. The proofs of age required under that section shall be conclusive evidence of the age of the child.</p> <p>3. Whether it is practicable or not, to guard or cover machinery and still operate it, is a jury question, where the facts are in controversy.</p> <p>4. The doctrine of estoppel in pais, as applied to infants is not applicable to the facts of this case, viz., the employment of a child under fourteen years of age in violation of the Factory act, Pamph. L. 1904, p. 152. The case of La Rose v. Nichols, 91 N. J. L. 355, distinguished.</p>

<p>The Court of Errors and Appeals has no jurisdiction or power to review or determine the weight of evidence, on which a verdict of a jury is found.</p>

<p>On appeal from an order of the Chief Justice.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 421.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 424.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 133.</p>

<p>On appeal from tlie Supreme Court, whose opinion is reported in 91 N. J. L. 97.</p>

The attack is on an assessment of taxes against property of the prosecutor for a period which happens to be the month of December, 1918. This is due to the statutory change in the fiscal year of municipalities, first enacted in 1908 (Pamph. L., p. 560) as to some, but not all municipalities, and extended to first and second class cities in the current year (Pamph. L. 1918, p. 901).

The only question is whether the premium was paid a day before or a day after the death of the assured. This is a question of fact and we cannot review the finding of the trial judge, since there was evidence that it was paid the day before. The fact that premiums were in arrears at the time of payment is of no importance, as there is nothing in the certificate which makes it void for non-payment of dues.

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 94.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 404.</p>

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

Oil appeal from the Supreme Court, in which the following per curiam was filed: • “This is a workmen’s compensation case heard in the Hudson County Court of Common Pleas, resulting in a determination in favor of Elizabeth Kroog, widow of Henry Kroog. Henry Kroog was a salesman and driver of one of the defendant’s wagons.

They were ordered by Hill, but the plaintiff in this suit claims that he acted as the agent of the defendant, and that the latter is liable for the price of the goods. “The trial judge, sitting without a jury, found for the defendant, and we think such judgment cannot be disturbed. “The question is, Had Hill the authority tó pledge the credit of the defendant lodge? “It is admitted that if such power is not conferred by the written agreement between Hill and the defendant,…

<p>On appeal from the Supreme Court,, whose opinion is reported in 92 N. J. L. 120.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 1.</p>

<p>On error to the Supreme Court, whose opinion is reported in 92 N. J. L. 53.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 91 N. J. L. 433.</p>

On error to the Supreme Court, in which court the following memorandum was filed by Chief Justice Gummere: The only question to be determined in this case is whether the crime of which the defendant was convicted had been outlawed prior to the finding of the indictment. For the reasons set forth in the opinion which was delivered by ns at the present term, in the case of State v. Morris Ruduer (ante p. 20) we consider that it was.

On error to the Supreme Court, in which the following par curiam was filed: “The defendant lyas convicted of obtaining money under false pretences from one Blatchley, the charge in the indictment being that he induced Blatchley to purchase stock in a corporation, called Tfinwood Haines, Limited/ upon the representation that said corporation was solvent and purchased , for cash at wholesale, was in a sound financial condition, and that its shares were a safe and sound…

<p>On error to the Supreme Court, whose opinion is reported m 92 N. J. L. 20.</p>

The ground upon which the state board rests its action is a statute of 1916, page 477, which provides, section 6, that All mausoleums, vaults, crypts or structures intended to hold or to contain the bodies of the dead, now erected or which may hereafter be erected and located within any duly authorized cemetery organized in accordance with the laws of the State of New Jersey, shall be exempt from taxation in like manner as such cemeteries are now exempt by law/ “The state…

<p>On .appeal from the Supreme Court, whose opinion is reported in 92 N. J. L. 332.</p>