Volume 94 — New Jersey Law Reports

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

<p>1. The lessee of certain premises, .agreed in writing .that it would make certain changes in the building upon the premises, such construction to meet the requirements of municipal laws or ^regulations. Lessee .submitted plans and specifications for the ■proposed change to the municipal authorities, .and they were disapproved. Held, itlnait the fiaeit thiait ithie plains .amd specifications failed to meat the approval of the municipal authorities does not justify the conclusion that it was impossible to make the contemplated alterations in such a way as to comply with those requirements.</p> <p>2. A person who contracts expressly to dó a thing not unlawful in itself, is under an obligation to perform it, notwithstanding the fact that the cost of performance would be much greater than he anticipated at the time of the making of the contract.</p>

<p>1. .Where a person unlawfully takes possession of another’s property and removes it to -a ¡storage warehouse ¡and then tenders the warehouse receipt to the owner of the property, ¡such taking is an actual appropriation of the property and the tendering of the warehouse receipt does not operate to make such taking -a mere technical conversion.</p> <p>2. The liability to respond in punitive damages is ordinarily limited to the real wrong-doer; and .those who are only consequentially responsible for the wrong-doer’s act on account of their relation to him are excluded from such liability unless they participate in i the wrongful ¡act expressly or impliedly by .conduct authorizing or approving it, either before or after it was committed.</p>

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

<p>On error to tlie Salem County Court of Quarter Sessions.</p>

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

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

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

<p>Before a municipality can bake proceedings tío condemn land for public improvement, the cost of which, or a portion whereof, may be .assessed upon lands benefited thereby, it must appear that proceedings for such improvements have been begun by ordinance.</p>

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

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

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

<p>With respect to permanent courts of ¡récord, vested with common law powers, every intendment is in favor of the legality of t!heir proceedings, and only when their errors are affirmatively shown are they noticed by courts sitting in review of their proceedings.</p>

<p>1. Where plaintiffs automobile was damaged in a collision with another automobile, the fact that he first brought suit against the driver alone constitutes no reason for dismissing the action as to the defendant!, owner, whom, before trial, the plaintiff had caused to be added as a party defendant by sendee of summons and amended complaint.</p> <p>2. It was open to the trial judge, .sitting without a jury, to find that one authorized to demonstrare and sell an automobile for the defendant owner on commission, who negligently nan into and damaged the plaintiff’s car, while driving to the defendant’s place of business after having finished such demonstration, was the servant or agent of iflhe defendant, and that the defendant is liable for such injury.</p>

<p>1. Secibwms 17 and 16 (6) of Uh® Walsh 'act (Pamph. L. 1911, p. 462; 1st Supp. Comp. Stat., pp. 1112, 1113) were superseded or repealed by section 24 of article 37 of the Home Rule act (Pamph. L. 1917, p. 461), in so far as the former dealt with the subjeeiü-miatter covered by the latter, namely, the operation, suspension and referendum to the voters, of ordinances authorizing any improvement or the incurring of any indebtedness.</p> <p>2. A certificate of the city clerk that a petition “is signed by over fifteen p&r cent, of the qualified voters of the cii'y” is not “conclusive” nor effective for the purposes of section 24 of article 37 of the Home Rule .act (Pamph. L. 1917, p. 401), which provides that ordinances of a class therein, specified shall become operative ten days after the publication thereof aPter final passage, unless within said ten days a protest be filed, “signed by taxpayers representing ten per centum in amount of the assessed valuation of such municipality,” and that file, certificate of the clerk as to “the sufiicieney of any protest or protests shall be conclusive for the purposes of this .section.”</p> <p>3. A contract for an improvement is not rendered invalid by the mere fact that the resolution directing the advertisement for bids (pursuant to which the contract was awarded) was passed ¡by the city commissioners before, the expiration of ten days after the publication of the ordinance- (authorizing the improvement) after i“s final passage, and hence, while 'the ordinance was inoperative under .section 24, article 37 of the Home Rule act (Pamph. L. 1917, p. 461), it appearing that the date fixed in the advertisement for bids was after the ordinance became operative under the provisions of that act.</p>

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

On demurrer by each, defendant in quo lo-armnlo to determine which is entitled to exercise the office of mayor of the city of Orange, New Jersey.

<p>1. Where three companies jointly petitioned the board of conservation, and development for the 'approval of plans to divert water from -streams to. supply it, through a continuous pipe line for lateral distribution, to numerous municipalities, one contributing to the other under lawful contracts, 'an order .of the board approving the plans, land limiting the gross amount to be taken to . serve itlhe purposes of the three, .each having >a lawful right to take water from the -same source, is within the authority of the board.</p> <p>2. An unlimited right to take water from any -source granted by charter will not be modified by -a -supplement to that charter granting the right -of condemnation limited to- -a specific locality.</p> <p>S. The state board has the right to subject the consent of the state ■to a diversion of water for public use to -a condition that the petitioners pay an equitable share of the cost of empounding storm waiter .along the streams from which the diversion is permitted, if -that shall become necessary for the benefit of other applicants.</p>

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

<p>Under the terms of the agreement under which the plaintiff was working 'ait ithc' -time of tlhe 'accident, lie was not an employe of the defendant, nor was he a mere 'licensee. 'The position he accepted was akin to the relationship created and defined 'at common law in itihe law of bailments, to which the civil law applied the term of mandatnm, in which the relationship is created by .agreement, but is substantially gratuitous, and in this situation the defendant was under the legal obligation to exercise due care under the circumstances surrounding itlhe accident.</p>

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

<p>On rule to show cause, Union Circuit-</p>

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

<p>1. In ejectment the defendant cam never defend his possession against 'the plaintiff upon .a title in 'himself by which lie could not recover the possession if lie were out and, the plaintiff in, possession.</p> <p>2. In ejectment, where plaintiff proves title in; himself, the burden is cast -upon defendant to- pi-,ove that ¡hie has been in possession for ¡the ¡statutory period necessary po- give him ¡a right to possession ¡superior to plain-tiff’s title, and- to sustain such burden defendant must prove tlilat lie -and those under- wlioan he claims lias held -adverse possession for twenty years. If the defendant fails in such, proof i-t is immaterial whether plaintiff has been in possession ¡at any time within- twenty years, for the legal title draws to it the possession, ¡and defendant must overcome that s'iatus by •clear -and convincing -evidence.</p>

<p>1. Tlie relation of master and servant exists whenever the employer retains the right to direct the manner in. which the business shall be done, tas well as tthe result to be .aecomplisibed, or in .other words, not only what Shall be done, but how it shall be done.</p> <p>2 Petitioner was injured while repairing a. well for respondent under- a contract to repair the Well, for which he was to- be paid one dollar per hour. In the execution of the work he wa® unhampered and uncontrolled by the views of the respondent and when the work was finished, ■ ithe relationship, of the .parties to the contract was at an end. Held, that petitioner was an independent contractor and that the employment was casual.</p>

<p>1. The rule of law concerning 'Contributory negligence by the injured person as a defence in a civil action for damages for perisomal injuries, is not applicable to a prosecution, for manslaughter as the result of negligence.</p> <p>2. In weighing the evidence, the jury may exercise their own judgment and discrimination, based upon their personal experience .as men of affairs, in applying the general rules of law to the details of a concrete proposition for the purpose of reaching a conclusion based upon the law ami the evidence.</p>

<p>In an action for trover and conversion, damages are limited to the value of the chattel converted, and interest thereon from the date of conversion.</p>

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

<p>1. Where no definite time is fixed for which premises are leased, and the rent, is paid monthly, (the tenancy is one fro-m month to month.</p> <p>2. On certiorari bringing up a summary proceeding in (the District Court under the Landlord and Tenant act, the only inquiry to be determined is whether' there was any evidence from which the jurisdictional facts set out in the affidavit might have been properly found.</p> <p>3. The right to bx-ing summary proceedings under the Landlord and Tenant act follows the transfer to the grantee of the reversion or to the assignee, no attornment of the tenant being necessary.</p>

<p>On certiorari.</p>

<p>1. In an action of libel on the question of punitive damages, evidence, which tends to- -negative the dha-rg-e -of actual malice is competent. In this case it was competent to prove1 that one of -the defendants was active in civic reform, a-s tending to negative ma-liee. The right to- recover punitive damages rests upon the wrongful intent to- injure, that of compensation, on the actual injury suffered.</p> <p>2. Under Pamph. L. 1898, p. 476; 2 Comp. SMt., p. 1815, in. every civil action for libel against the owner of a newspaper, unless the plaintiff shall prove malice in fact, he shall recover only Ms -actual damages proved. The distinction between- implied malice, d-n -an action of libel, and express malice or malice in fact, pointed out.</p> <p>3. In a joint action, where one of the tort-feasors is responsible only for compensatory damages- -and the other for compensatory and punitive damages, there can be a joint verdict, only for compensatory damages.</p>

<p>L In moving- for a nonsuit counsel should state specifically the grounds upon which the motion is rested : but the arguments thereon should not be taken down by the stenographer and should not be returned with the record or printed. The trial judge should, however, state liis reasons Cor granting- or refusing a non-suit and they should be taken dowm and returned with the record, because counsel for the defeated party is entitled to know the reasons upon which the judge’s determination is rested, so that he may the better answer them in the court above, in case of appeal, and the appellate court is entitled to be informed of the grounds of the decision which it is required to review.</p> <p>2. Respondent advertised for proposals for lump sum bids for a sewage disposal plant ooinjilete, as per plans and specifications, and also unit price bids for contingent extras, work for which unit prices were not provided to be done for actual cost, plus fifteen per cent. Appellant was the lowest bidder. He was awarded the contract. While he was in the midst of the work, and the foundation which had been called for originally was nearly completed. the borough decided it to be unsafe to bear the burden proposed to be placed on it, and passed a resolution that the contractor be authorized and required to do certain work for which no unit prices were provided, the total cost of which proved to be far in excess of $500. ■ After this work was practically completed the borough stopped all work and ordered the contractor off the job. Held, that there is nothing in chapter 342, Pamph. L. 1912, p. 593 (which provides that whenever it shall be lawful for a public body to lot contracts for doing work or furnishing materials or labor, where the sum to be expended exceeds $500, the action of such public body in entering into any such contract shall be invalid unless there shall first be public advertising for bids and award made to the lowest bidder), which forbids a call for unit prices for contingent extras, and the doing of other work for which unit prices are not provided, for cost, plus fifteen per cent. The insertion of such provisions in a contract is a protective'measure to the public in the event of modification of the work occasioned by an unforeseen emergency, or as an incident to the work provided for in the original contract; and the given municipality is always protected, because whether this is so, or whether the extra work is the result of an effort to evade the statute, are questions for the jury.</p>

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

<p>The right of a wife, while living separate and apart from her husband, to secure funds provided for her support in a separation agreement, persists even after the commission of an act of adultery by her, unless there is an express stipulation and limitation in the agreement that payment shall cease in the event that she becomes unchaste, for, without such provision, the common law obligation of a husband to support his wife continues, unless and until he procures a divorce from her. Devine v. Devine, 89 N. J. Eq. 51, overruled. '</p>

<p>1. The Federal War-Time Prohibition act, while it forbids the sale of liquors for beverage purposes during its continuance, did not suspend the New Jersey statute authorizing the issuance of licenses to sell liquors, nor did the provision of the constitution of the United States which forbids such sale after January 16th, 1920, operate to avoid a license which was issued previous to the constitutional amendment taking effect, for, as the ban of federal statutory prohibition might have been removed pending the running of the license by the termination of the war and the proclamation of the president, the licensee, in that event, could lawfully have sold liquors under his license, issued pursuant to our statute, until the amendment of the federal constitution went into effect.</p> <p>2. The grant of a license to sell liquor is judicial in its nature, and citizens and taxpayers are entitled to raise jurisdictional objections before the licensing tribunal, and when they do so they are entitled to be heard; but, when such hearing is denied and the proceedings are reviewed in a court of law, and the objections urged are found to be invalid, the proceedings underlying the grant of license will be sustained.</p>

<p>The provision of section 9 of our Practice act, providing that no solicitor or attorney shall commence an action against his client for fees or charges until he shall have delivered a copy of the taxed bill of such fees, &c., forms a part of the legislative scheme for the regulation and control of attorneys of this state, and does not apply to a suit brought by an attorney of another state against a client residing in this state to recover for legal services rendered in the foreign jurisdiction.</p>

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

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

<p>A sale in bulk made by virtue of a chattel mortgage or by the joint action of mortgagor and mortgagee is not within the prohibition of the statute of 1915. Pamph. L., p. 377.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 121.</p>

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

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

<p>1. When, under a valid contract to perform a specified work for a specified price, the plaintiff has done part and has been prevented from performing completely through the fault of the defendant, the legal measure of the plaintiff’s damages is generally, for the work done, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and, in respect to the work not done, such profits as he would have realized by doing it.</p> <p>2. Even where a contractor uses the word “rescind” and the phrase “consent to a rescission” in Ms communications with respect to a contract, the court will consider not only those words, but the context and attendant circumstances, in determining whether the party meant to effect a complete technical and legal rescission of the contract, or whether the real intention was to declare his release from further obligation to comply with the terms of the contract because of the default of the other party.</p> <p>3. The right of a contractor to recover against a municipality for work done and materials furnished under a contract between them, upon showing that he has been prevented from performing completely through the fault of the municipality, is not lost by the contractor’s inaccurate use of the words “rescind” and “consent to a rescission” in his communications with the municipality, where it appears that in the same document he demands that the municipality should make payment “of all moneys due to date for work, labor and materials furnished to you under and pursuant to the terms of the said contract at the rates mentioned in the said contract.”</p> <p>-i. An instruction is properly refused that assumes a material and controverted fact.</p>

<p>1. Where the drawer of a check delivers it, for a consideration which turns out to be fraudulent, to an imposter under- the belief that he is the person whose name he has assumed and to whose order the check is made payable, a bono, fide holder for a valuable consideration paid to the imposter upon his endorsement of the payee’s name, is entitled to recover from the drawer, it appearing that the person to whom the check was delivered was the very person whom the drawer intended should endorse it and receive the money, and that the drawer made no inquiry before issuing the check concerning the identity or credit of the named payee who was unknown to the drawer.</p> <p>2. One who takes a check, complete and regular upon its face, on the same day it was drawn, before it was overdue, without notice of its dishonor, in good faith and for value, and who at the time it. was negotiated had no notice of any infirmity in the check or defect in the title of the person negotiating- it, is a holder in due course.</p> <p>3. Plaintiff company, a holder in due course of a check for $1,500, paid or gave in exchange therefor $1,000 in cash, or its admitted equivalent, and also a negotiable certificate of credit for $500 on the purchase price of an automobile, before receiving notice of any infirmity in the check. Held, that the liability thus incurred by the plaintiff in issuing the negotiable certificate of credit in full execution of its contract of exchange, is pro tanto n good and sufficient consideration for. and payment for, the check; and where the certificate of credit is outstanding and unrevoked and the plaintiff’s liability thereon still continues, it is not bound to prove that it has actually paid the amount for which the certificate of credit was issued, in order to recover the full amount of the check from the drawer thereof.</p> <p>4. A holder of a check in due. course, who has paid the full amount agreed to be paid therefor before receiving notice of any infirmity in it or defect in the title of the person negotiating it, may enforce payment of the instrument for the full amount thereof against all parties liable thereon.</p>

<p>1. Under section 27 of the Practice act of 1912 an error in the instruction of the court to the jury will not lead to a reversal unless, after examination of the whole case, it shall appear that such error injuriously affected the substantial rights of the appellant.</p> <p>2. The plaintiff’s intestate, while crossing a public highway on foot, came into collision with a moving trolley car and sustained injuries causing his death. The court charged: “It was his duty to observe up and down the street and to determine if he could by the reasonable exercise of his powers of observation, after looking and listening, whether or not there was approaching a trolley car so close that he could or could not go upon the tracks in safety and whether or not he exercised reasonable care.” Held, not erroneous.</p> <p>3. The rule enunciated in the opinion for affirmance in Earle v. Consolidated Traction Co., 64 N. J. L. 573, viz.: “The first to reach the crossing- has the right to pass over first, but if it appears that the motorman does not intend to respect his right of priority, and that the driver (or pedestrian) cannot, in the exercise of reasonable prudence exercise his right, he is guilty of contributory negligence if he fails to wait or turn aside if he can do so by the use of due care, and thus protect himself from injury,” followed and appawed.</p>

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

<p>On appeal from the Supreme Court, whose opinion is re ported in 92 N. J. L. 309.</p>

<p>On error to the Supreme Court, whose opinion is reported in 92 N. J. L. 261.</p>

<p>AVherc a vendor contracts to deliver goods and allows the buyer credit for a term agreed upon, and by the same writing reserves the right to withdraw the credit and demand cash payment or security before tne shipment of the goods if the financial responsibility of the buyer becomes unsatisfactory to the seller, the question of tlu 'adsfaction of the seller with the buyer’s financial responsibility is to be settled by the seller before he parts with his goods, but there must be a real want of satisfaction with the buyer’s financial responsibility, and the refusal to ship without payment or security must be based on that reason alone.</p>

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

<p>A written contract was made between an owner and contractor for the erection of a building. The contract contained a covenant that if the contractor defaulted the owner could enter and take all' materials on the ground and use them in the completion of the building. The contractor sublet a part of the work to another who shipped the material lie expected to use to his own order, to be delivered on the premises, and it was delivered. Before the subcontractor used the material the original contractor defaulted and the owner took possession of the materials of the subcontractor and used them to complete the original contract. The only evidence of transfer of title to the contractor was the delivery of the material on the ground in the manner above set, out. and the fact that the subcontractor had charged on his books of account the amount of the entire contract price to the contractor. Held, that these facts did not permit an inference that the subcontractor liad passed the title of his material to the contractor, so as to subject them to the terms of the principal contract, and, therefore, no jury question was presented on the question of title and its submission to the jury was error.</p>

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

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

<p>3. Where an employe of defendant was engaged in his employment of painting a pole used by defendant in its electric railroad operation, in interstate commerce, between Manhattan transfer and the city of New York, and was injured by the negligent act of a co-employe, the case falls within the provisions of the Federal Employers’ Liability act, which eliminates the negligence of a fellow-employe as a defence to an action under the act.</p> <p>2. The federal act does not include a classification of “casuals” included in the exception to liability contained in the state act.</p> <p>3. Rule 310 of the Supreme Court, which provides that the trial court “may” submit certain specific written inquiries of fact to the jury, is not intended to deprive the court of its discretion as to procedure in such matters and is not mandatory.</p> <p>4. The questions of obvious risk, and the resulting constructive negligence of the defendant, by reason of the negligence of the fellow-servant under the testimony, held to be jury questions.</p>

<p>1. IVhen the facts in a suit for malicious prosecution are not in dispute, the question whether there was reasonable or probable cause and the defendant actuated by a malicious motive in making the charge is a court question.</p> <p>2. The plaintiff, in an action for malicious prosecution, must show that the prosecution was instituted without reasonable or probable cause and that the defendant was actuated by a malicious motive in making the charge.</p> <p>3. The uttering of seditious words is an offence at common law and indictable in this state.</p>

<p>1. In enacting the Attorneys’ Lien, act (Pamph. 0. 1914, p. 410) the legislature was the sole arbitrator of what the state policy in such matters shall be, and its decision in this respect, as expressed by the statute, is not open to be impugned on the ground that such an act is against public policy.</p> <p>2. By force of the Attorneys’ Lien act (Pamph. h. 1914, p. 410) the plaintiff’s attorney, after action is commenced, becomes a party in interest in the litigation and this interest cannot be successfully ignored by the litigants. Any payment made by a defendant to a plaintiff in a pending pause of action without the consent of the latter’s attorney, is made at the defendant’s peril.</p> <p>9. An attorney, who acquires a lien on his client’s cause of action by virtue of the Attorneys’ Lien act is not obliged to exhaust his remedies to recover his fees from his client before proceeding against the defendant in the suit.</p>

<p>1. The federal statute, providing for the safe transportation in interstate commerce of explosives and other dangerous articles, and the regulations formulated by the interstate commerce commission thereunder, do not attempt to fix the entire measure or degree of care to be exercised by a common carrier in the care and custody of high explosives and were not intended to absolve transportation companies from care commensurate with the risk of danger involved.</p> <p>2. Where, in a tort action, the damages consisted of property destroyed which had a market value and therefore were not uncertain—there being a fixed standard by which such damages were readily ascertainable—the market value of the property at the time of its destruction, interest is properly allowable.</p>

<p>It is no defence to an action upon a covenant, contained in a chattel mortgage, to pay a certain promissory note, to secure which the mortgage was given, that suit on the promissory note is barred by the statute of limitations.</p>

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

<p>1. A notice given in pursuance of Paraph. L. 1917, p. 319, f 9, as amended by Pamph. L. 1918, p. 484, H 9, known as the Municipal Corporation act, which states that “notice is hereby given that an ordinance has been introduced for the improvement of the road from West Pond to Kinsey Corner by grading and paving the same in the manner described in the said ordinance, as amended,” is insufficient. It does not “briefly describe the proposed improvement” as required by the statute.</p> <p>2. Precision in describing the improvement may not be necessary under such a notice, but the substance of what the improvement is, is essential to be stated.</p>

<p>Where the charter party of a schooner on a voyage from Buenos Ayres to New York provides that the vessel should be paid freight on the cargo, at so much per ton, delivered at New York harbor—the schooner was destroyed by fire before it had unloaded or delivered its cargo—it was not error for the trial judge to admit evidence at the trial to show how much freight money was due, which the consignee refused to pay, by reason of the non-delivery of the cargo caused by the fire. The defendant is responsible -for the natural and probable consequences of the fire. This was a jury question.</p>

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

<p>1. The Practice act {Pamph. L. 1912, p. 377) by its terms shall be liberally construed. Under paragraphs 4 and 6 it is not error for the trial judge to order twelve separate cases against the same defendant consolidated, for the purpose of trial and tried before the same jury, where the damages in each case grew out of the same fire and explosion, the “Black Tom Explosion.”</p> <p>2. Tlie words in that statute, “the same transaction or series of transactions,” are not limited or confined to actions arising out of contracts; a contract is a transaction, but a transaction is not necessarily a contract, within the meaning of that statute, when liberally construed.</p>

<p>A written agreement expressing terms and conditions of employment provides, that no man not a member of the union and holding a working card or permit from the local union shall be employed at any time by the contractor, except work covered and . controlled by another local union; and that labor shall not be furnished to anyone not a regular contractor, unless the prevailing rate of labor charged by a union is paid for the same; and that any firm, corporation or individual engaged in such contracting trade refusing to sign the agreement will be considered unfair by the local union. Such agreements were not within the purview of the statute (Pamph. L. 1913, p. 25, oh. 13), known as one of the anti-trust laws. Brennan v. United Hatters, 73 N. J. L. 729, distinguished.</p>

<p>1. Prior to the act of congress of October 6th, 1917 (40 Stat. at L., p. 395, chap. 97; Comp. Stat., p. 991), the New Jersey workmen’s compensation laws did not apply to injuries or death suffered by employes engaged in and arising out of maritime employment. Citing Southern Pacific Co. v. Jensen, 244 U. S. 205, and Clyde Steamship Co. v. Walker, Id. 255.</p> <p>2. The act of congress of October 6th, 1917 (supra), making state . workmen’s compensation laws applicable to maritime and interstate commerce accidents, is not retroactive. Citing Coon v. Kennedy, 91 N. J. L. 598, and Peters v. Veasey, United States Supreme Court Report, January, 1920.</p> <p>3. An erroneous belief that the New Jersey workmen’s compensation laws applied to an employe’s injury or death suffered in a maritime accident, the facts of which accident were fully known. . was a mistake of law, and not of fact, and does not invalidate a resulting voluntary contract of compromise and settlement of a claim arising out of such injury or death.</p> <p>4. The New Jersey Workmen’s Compensation Aid Bureau has no authority to compel parties to enter into a compensation agreement. It may invite them to do so. and if they do not, may certify the case and its facts to the Court of Common Pleas with the same effect as if a petition for compensation had been filed with said court as provided for by law. A compensation agreement entered into upon such an invitation accompanied by a statement that such a certification to court would be the result of a failure to comply with the invitation, is not entered into under compulsion.</p>

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

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

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

Before the deliveries were completed, the plaintiff notified defendant that it would raise the price to $7.50 per thousand. The defendant objected, but as the brick was of peculiar character not procurable in the market, he accepted subsequent deliveries until the contract was fully performed, and then paid'in full at the higher price under protest.

<p>On appeal from the Supreme Court, in which the following per curiam was filed:</p> <p>“This is an action under the Death act. The plaintiff’s decedent, Alexander Rohan, was engaged in hauling ashes from the defendant company’s plant in Washington street,- in Jersey City. This plant is adjacent to a body of water known as the gap, and Washington street runs down to the water’s edge. At the time of the accident the defendant was engaged in unloading drums of sugar from a freight car standing on a track which ran through the street at this point. It had been engaged in this work for two days prior to the accident. The unloading was done by means of a heavy rope which was fastened to the car, then twisted around the drum and carried to another drum on the far side of the street. When this was done the drum was rolled out of the car on the skids, and then down the skids to the street. The plaintiff’s, decedent while driving along Washington street ran info this rope and was so injured that he died.</p> <p>“The only questions argued before us are whether the court should have ordered a nonsuit; and whether there should have been a verdict directed.</p> <p>“The contention is, that the court erred in refusing to non-suit or direct a verdict, first, because there was no evidence of negligence on the part of the defendant company, and second, because of the contributory negligence of the decedent.</p> <p>“We think both of these questions were for the jury. Prima facie the defendant had no legal right to occupy the whole of the roadway of the street for something like three days and thus interfere with the public user thereof. But, assuming that such right existed, so far as. the decedent was concerned, the company was bound to exercise it in such a, way as not to jeapardize’people traveling on the street; and this, duty they owed to the decedent. It is. at least doubtful under the evidence whether they gave him warning or took any other steps for his protection. Clearly, therefore, we think the question of the negligence of the defendant was one to be determined by the jury.</p> <p>“Whether the decedent was negligent or not depended upon whether he used reasonable care for his own safety. He had been at work at this place for some time hauling ashes, and there was evidence to show_that whenever he came to the place where the rope was stretched across the street the employes of the defendant company lowered it in order to enable him to pass by in .safety. This being so, it was for the jury to say whether he had a right to assume that when his truck drew near to the obstacle the same course of conduct would be followed; and whether, in so assuming, he acted as a reasonably prudent man would have done under the same conditions.</p> <p>“We conclude, therefore, that both the motion to nonsuit and the motion to direct a verdict were properly refused and that the judgment under review should be affirmed.”</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 360.</p>

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

On error to the Supreme Court, in which the following opinion was filed: “This was an indictment for keeping a disorderly house for which the defendant was tried and convicted at the Essex Sessions. “The first point is that There was no habitual violation of the law.’ There is no merit in this point because the state proved, if' their witnesses were to be believed, two different days and occasions when illegal practices were carried on. “The next point is that ‘mere…

<p>On error to the Supreme Court, whose opinion is reported in 93 N. J. L. 287.</p>

<p>On error to the Supreme Court, whose opinion is reported in 93 N. J. L. 47.</p>

<p>On error to the Supreme Court, whose opinion is reported in 93 A. J. L. 16.</p>

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

<p>The judges being equally divided on the question whether the judgment should be reversed, the judgment is affirmed solely because of such division, which renders any opinion by the court impossible.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 18.</p>

<p>On error to the Supreme Court, whose opinion is reported in 93 N. J. L. 22.</p>

Justice Trenehard: “The plaintiff in the District Court below [the prosecutor here] sued out a writ of replevin and took possession of an automobile.

<p>On appeal from the Supreme Court, in winch the following per curiam was filed:</p> <p>“The suit is Cor damages for alleged breach by defendant of an agreement to sell certain manure to plaintiff; and also (second count in the state of demand) for the conversion by defendant of certain other manure, the property of plaintiff. The trial court sitting without a jury awarded damages to plaintiff on each count.</p> <p>“As to the first count, the facts- are concedecUy that defendant orally agreed to sell the manure mentioned in that count .for $50, and that plaintiff was to hand his check the same day to one Splain, or mail the check the next day to defendant at Belcoville. If appeared that plaintiff did mail the cheek on the day specified, addressing it to defendant, Camp 25, Belcoville, which, so far as appears, is the correct address. The letter was legistered. Defendant testified that he did not inquire at the post office for the letter, and received no notice ,of its arrival. Defendant sold the manure to another party the day after plaintiff mailed the letter.</p> <p>“It is claimed that plaintiff cannot recover on this count because he did not carry out his part of the agreement. But .tire court was fully justified in finding that he did. He mailed the check, at the time specifited, to the -address stipulated (adding Camp 25, which appears immaterial). It is proper to find that if the defendant did not get the check it "was; his fault in not asking for his mail. The check and letter enclosing it were returned by the post office to plaintiff about nineteen days later, and it is now claimed that he should have tendered payment to defendant, as a condition precedent to suit. But as defendant had sold the manure this would have lieen futile, and, hence, under the well-settled rule, was not required. The finding for plaintiff on the first count was justified ; the amount of dámages is not before us for review.</p> <p>“As to the second count, it is said there is no evidence that defendant sold manure belonging to plaintiff. This is erroneous. Defendant admitted selling manure ‘out of the Mc-Nichol pile/ and plaintiff and MeNichol-both testified as to plaintiff’s ownership-, either general or special, of that manure. Either will support trover. The amount of damages is likewise not before us.</p> <p>“The judgment is affirmed, with costs.”</p>

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

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

<p>1. Only those questions which are within the issue raised by the pleadings should be submitted to the jury, and a failure to observe this rule is legal error.</p> <p>2. The gravamen of the complaint was the negligence of the defendant company in starting a trolley car, on which the plaintiff was a passenger, while she was in the act of alighting therefrom. In the trial some proof was admitted tending to show that the accident happened by reason of the fact that plaintiff stepped off the car before it had come to a standstill, being- induced to-do so by the conductor. The court charged the jury, in effect, that the defendant was liable if the conductor led the plaintiff to believe the car had stopped and thereby induced plaintiff to step off the car. Held, that the instruction dealt with an issue not raised by the pleadings, and was error.</p>

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

<p>On defendant’s rule to shotv cause. On plaintiff’s rule to sIioav canse.</p>

<p>1. It is not an abuse of the discretion of the court to refuse a motion for adjournment on the ground that an associate counsel, who had only recently been retained, had not had the opportunity to familiarize himself with his case.</p> <p>2. A motion to quash an indictment is addressed to the discretion of the court, and a ruling on such a motion is not reviewable on strict bill of exceptions or under the one hundred and thirty-sixth section of the Criminal Procedure act.</p> <p>3. Where an indictment charged the defendants with maintaining a disorderly house in the city of Newark, in the county of E'ssex, an amendment thereto inserting a more specific description of the location of the house alleged to have been disorderly does not charge an offence not presented by the grand jury.</p> <p>4. The presumption that where a married woman commits an offence in the presence of her husband she is presumed to have acted under his coercion is not conclusive, but is subject to be rebutted by proof that such coercion did not exist, and where there is evidence showing freedom of action on the part of the wife, the question whether such presumption is rebutted is one for the jury.</p>

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

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

The plaintiff seeks to recover rent under the terms of a written lea'se running from March 1st, 1917, to March 1st, 1920. The lease contained the usual covenant that the lessee would not relet or underlet the whole or any part of the premises, nor assign the lease, without the written consent of the lessor, and the usual option to the lessor to re-enter and relet the premises if they became vacant or deserted during the term.

<p>1. The proceedings authorized by the Juvenile Court act (Supp. Comp. Stat., p. 464) are not proceedings by way of punishment but by way of reformation, education and parental care, and are intended to save young persons from the ordinary punishment for crime, from the consequences of criminal conduct or of conduct which would justify immediate punishment or immediate restraint.</p> <p>2. Since tlie proceedings -under the Juvenile Court act do not relate to offences or a conviction in the ordinary sense of the word, the act is not in contravention of the provisions of the state constitution relative to indictment by a grand jury and trial by a traverse jury for criminal offences.</p>

Action to recover under a policy of insurance issued by the New Jersey Indemnity Company, attorney in fact. Whether the defendant is a partnership, an incorporated association or a corporation does not appear except as averred in the state of demand. The words a corporation” appear in the title of the cause but not in the policy. The policy is signed “New Jersey Indemnity Company, attorney in fact.

<p>1. Proceeding's brought for a violation of the Medical Examiners’ act of 1894 {Comp. Btat., p. 3329), as amended in 1915 {Bupp. Comp. Btat., p. 948), are civil suits.</p> <p>2. Section 149 of the District Court act {Comp. Btat., p. 1999), relating to the right of either party to demand a Jury trial, is applicable to a proceeding brought in that court for a violation of the Medical Examiners’ act.</p>

On October loth, 1917, Joseph Bosenfelt, the then owner of the property 257 East Perry street, Newark, leased the store and seven rooms to the plaintiffs for the purpose of a restaurant for five years, from November 1st, 1917. The lease was on one of the ordinary blank forms containing a covenant by the tenant to pay the water tax. This covenant was crossed out. The lease was recorded October 17th, 1917.

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

<p>1. It is a general rule that drivers of automobiles and other vehicles when using streets and highways are bound to exercise reasonable oare towards other travelers—in other words, they must use that degree of care which an ordinarily prudent person would exercise under the same circumstances—and this rule is applicable to such travelers when approaching one another or meeting at street or highway intersections, and each is bound to exercise reasonable care not to collide with the other.</p> <p>2. It was open to a jury to find that both drivers were negligent when each drove towards the junction point of two city streets at a speed of fifteen miles an hour and neither of them slackened speed nor changed direction until the instant of collision, although each had full view of the other for seventy-five feet from the point of collision.</p> <p>3. It is the duty of the driver of an automobile to use reasonable care to avoid injury to others, and it is a breach of that duty to fail to stop the machine or slacken its speed when that is the only way in which injury to others can be avoided.</p> <p>4. The provision of the Traffic act (PampTi. L. 1935, ¡9. 285, ohap. 156) that “every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right,” is 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 adheres to the regulation, and is otherwise reckless and indifferent to the situation of others; and so the fact that the driver of the jitney bus in which the plaintiff was riding failed to accord to the defendant the right of way as directed by the Traffic act, is not in itself a sufficient reason for the direction of a verdict for the defendant, when such fact is but one factor in tlie situation which, considered as a whole, presents a jury question as to the defendant’s negligence under all the circumstances.</p>

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

<p>1. .Where a loss of consortium between husband and wife is caused by willful conduct of a third party, there is a legal injury for which damages are recoverable, irrespective of the prior existence of actual affection between the spouses.</p> <p>2. If husband and wife be living separate, there is always a possibility of their coming together which the law encourages, and an actionable wrong is committed by unlawful interference preventing reunition.</p>

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

<p>1. In an action for malicious conspiracy and malicious conduct causing the discharge of plaintiff from his employment, general allegations of conspiracy, persuasions, threat, &c., are good pleading.</p> <p>2. The existence of a right, under the regulations, of the national government affecting the operation of railroads by the director .general, of ai>peal and ultimate restoration to the place from which plaintiff has been discharged, is no bar to asserting a common law right of action for damages against those alleged to have maliciously procured such discharge.</p>

<p>1. It is a practical rule of public policy in this state that a party to a suit, while necessarily going to, staying at, or returning from the court, is equally privileged from the service of a summons or of a capias in a civil proceeding.</p> <p>2. This rule is applicable to a defendant under indictment and at large on bail, who has not been brought into the state by extradition from another state as a fugitive from justice.</p> <p>3. Rutledge v. Krauss, 73 N. J. L. 397, distinguished; Netograph Co. v. Scrugham, 197 N. Y. 377, disapproved.</p>

<p>1. A notary’s record of protests of commercial paper, kept by him • pursuant to the statute (Comp. Stat., p. 3760, § 12, pi. 207), is not competent evidence in his lifetime.</p> <p>2. Notice of dishonor of a bill or note, addressed to an endorser by name and mailed, but without being addressed to any place, is of no validity.</p>

<p>On facts stipulated pursuant to section 22 of the Practice act of 1912.</p>

<p>1. Where an improvement made by a city was completed and its cost ascertained before the adoption of the act entitled “An act concerning municipalities” (Pamph. L. 1917, p. 319), commonly called the Home Rule act, it was not unlawful to assess for benefits under that act, and the exceptions in the repealing act (Pamph. L. 1917, p. 699) do not forbid such an assessment.</p> <p>.2. The Home Rule act provides that where a landowner, assessed for benefits resulting from a public improvement, is dissatisfied because the assessment is not just or fair, may appeal to the Court of Common Pleas, which is authorized to hear and determine the appeal, and to correct the assessment. In such case he should appeal to that court for relief before applying for a writ of certiorari to review the assessment for the same reason.</p>

<p>On motion to strike out portions of defendant’s answer.</p>

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

<p>1. Where a writ of certiorari, directing the Quarter Sessions to return into this court the proceedings in a criminal case, is allowed after a verdict of guilty, but before final judgment thereon, and no reason appearing why the Quarter Sessions cannot proceed to judgment, the only use of the writ being as a substitute for a writ of error, this court may in its discretion treat it as prematurely sealed, and ought to do so when the only questions raised or argued are cognizable under a writ of error, to which defendant is entitled.</p> <p>2. A writ of certiorari, when used as a substitute for a writ of error, is governed by the- same principles as the latter, one being that a final judgment is requisite.</p> <p>3. While this court has the power to bring before it by certiorari an indictment, and all proceedings relating thereto before final judgment, it ought not to be exercised when the only judicial function required of this court is the entry of a judgment on the verdict, when no reason appears why that cannot be done by the trial court, and where such appears to be the case this court should, in its discretion, dismiss the writ and remand the proceedings to the trial court to pronounce the final judgment.</p>

<p>1. The word “excessive,” used in relation to damages, has a relative meaning. What may be deemed excessive in one environment and social order may be inadequate compensation in another.</p> <p>2. The discretion reposed in a court to set aside a verdict is a legal discretion based upon well-settled legal principles, designed primarily to avoid excesses ánd favoritism, evolved from passion, partiality or prejudice, and so palpably evinced as to invoke the restraining hand of the courts in 1he interest of the proper administration of justicie.</p>

<p>1. Tlie question of whether a landlord retained control of a balcony and rail, for the general use of the tenants, and whether he used due care under the facts to keep it reasonably safe were jury questions, where the testimony was of a controverted character.</p> <p>2. It is only where there are no facts in dispute for a jury to consider, or where the testimony evinces the palpable negligence of the plaintiff in view of the knowledge and consciousness of the inherent danger of the act in contemplation that the trial court is warranted in dealing with such a situation as a court question.</p> <p>3. Where a landlord assumes the performance of a work which he is under no legal obligation to perform, and fails to perform it properly, that fact is evidence for the jury to consider as to the extent oí Ms control whore damage results by reason of the disrepair or defective repair of tlie instrumentality in question.</p>

<p>On, petition, &c.</p>

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

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

<p>1. Section 3 of the act of 1915 (Pamph. L., p. 387), which provides that all persons summarily arrested for violating the provisions of an act for the prevention of cruelty to animals (Pamph. L. 1880, p. 218), shall be tried before any magistrate within the county nearest to where the offence or offences were committed, does not confer exclusive jurisdiction o'n the justice residing or having an office nearest the place where the offence was committed.</p> <p>2. Jurisdiction in eases of violation of the act for the prevention of cruelty to animals (Pamph. L. 1880, p. 218) is conferred by Pamph. L. 1915, p. 387, on all justices of the peace of the county, except in places where there is a District Court.</p>

<p>Where it appears, when the plaintiff rests his case, that the act of the servant was a willful one and was not expressly or impliedly within the line of the servant’s duty or employment, there should be a nonsuit. In this ease it is held, there is not sufficient evidence to justify a finding by a jury that the men who committed the assaults upon the plaintiff were servants of the defendant, or, if servants of the defendant, their acts were willful ones, not within the line of the servant’s duty or employment, for which the defendant is responsible. Eor the facts of the case see the body of the opinion.</p>

<p>The city of Newark is not liable for materials furnished and labor • performed on orders issued by the chairman of the public building committee of the common council of the city, the orders not having been authorized by the city, nor by the committee of which he was chairman; the common council not having ratified the chairman’s action, nor having paid any like oi-ders. New Jersey Car Spring, &c., Co. v. Mayor, &c., of Jersey City, 64 N. J. L. 544, and Jersey City Supply Co. v. Mayor, &c., Jersey City, 71 Id. 631, followed and applied; Frank v. Board of Education of Jersey City, 90 Id. 273, distinguished.</p>

<p>On appeal from the Hudson County Court of Common Pleas.</p>

<p>1. An assignment of error upon the opinion of the court below is not allowable.</p> <p>2. The opinion of an expert witness may be adduced by a hypothetical question which assumes the facts in accordance with the theory of the party propounding it, and which the evidence tends to prove.</p> <p>3. The trial court repeatedly charged the jury that the plaintiff could not recover unless the defendant was negligent; and then, in response to a request, instructed the jury that if they found the plaintiff was not negligent he could recover, without, at the same time, instructing them that the defendant also would have to be negligent to warrant such recovery; whether this amounts to an expression in a charge which is to be interpreted by the' context and the whole charge and is therefore not erroneous, or is an erroneous instruction not cured by a correct one unless the illegal one is withdrawn, quwre.</p>

<p>1. The charge 'on reasonable doubt approved by the Supreme Court in State v. Contarino, 91 N. J. L. 103, and questioned in this court in S. C., 92 Id. 381, is disapproved.</p> <p>2. Not. having been requested to define reasonable doubt or to instruct the jury on the subject at all, the charge of the trial court, in these words: “If they [defendants] are guilty, it must be beyond a reasonable doubt,” w'ould have been''faultless had the • judge not immediately proceeded to qualify that assertion by saying, “which means nothing more or less than that you, as the men sworn to conscientiously determine this case are satisfied in your minds that the defendants did conduct a disorderly house; if you are not so.satisfied, you should acquit; if you are so satisfied, you should convict;” ‘and this qualification, being erroneous, vitiated the charge on the question of reasonable doubt.</p> <p>3. The following is approved as a definition: Reasonable doubt is not a mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that’ they cannot say they feel an abiding conviction to a moral certainty of- the truth of the. charge.</p>

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

<p>1. Decedent was a conductor upon a freight train which was carrying articles of interstate commerce. When the train reached the freight yard his control over it ceased, but his work in connection with it was not terminated until he delivered certain train records to the yardmaster. He was killed while riding on another engine in going to the yardmaster’s office. Held, that his duty with relation to the subject-matter of the transportation was not ended until he had turned over his records to the yardmaster; and the mere fact that he had left the train in the performance of that duty did not change the character of his employment.</p> <p>2. The negligence of a fellow-servant does not constitute a defence to an action brought under the Ifederal Employers’ Liability act.</p> <p>3. A person who rides on the step of a locomotive engine assumes such risks as are incident to the ordinary operation thereof, but does not assume the risk of danger arising from causes ab ecetra.</p> <p>4. The rules and regulations of a railroad company formulated for the government or control of their employes are only operative upon such of the employes as have received notice -thereof," or those who are chargeable with knowledge of their existence.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 94 A. J. L. 90.</p>

<p>1. Tbe owner of land who has voluntarily parted with the possession thereof, and has vested in a third person not only the right of possession, but the possession itself, either for a fixed or indefinite period of time which has not yet expired, cannot maintain an action of trespass guare olansmn,freyit against the trespasser ; but where the present right of possession is vested in Mm tlie fact that he is wrongfully kept out of possession by the trespasser himself constitutes no bar to the maintenance of the action.</p> <p>2. An action of trespass quare clausum fregit is not, barred by the statute of limitations where the primary tortious act was committed over six years prior to the beginning of action but the trespass has been continued during the six-year period.</p>

<p>1. The only way in which a municipality can acquire the right to appropriate and use the public waters of the state is by a grant directly from the state itself, or by the duly authorized purchase or condemnation of such right from a third person, either corporate or individual, to whom it has already been granted by the state.</p> <p>2. Each party’s pleading is to be construed most strongly against himself, and most favorably to his adversary, and, so, any ambiguity or omission therein must be at the peril of that partjr in whose allegations it occurs.</p>

<p>Under the proofs submitted on the part of the plaintiff, and the presumptions arising thereon, the question whether she was exercising reasonable prudence and caution in crossing a highway in front of the approaching automobile of the defendant was one of fact to be determined by the jury and not one of law to be resolved by the court.</p>

<p>On appeal from the Supreme Court affirming the Vice-Ordinary. The facts are stated in the opinion of the VieeOrdinary.</p>

<p>The rescission of a contract for the sale of land is a sufficient consideration for the giving of a check for a return of the deposit paid on account of the purchase price.</p>

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

The plaintiff agreed in writing with the defendant to install in connection with their boilers an oil seal combustion control apparatus. Fifty per cent, of the price was parable after the completion and successful operation of the apparatus and the balance within sixty days thereafter. They guaranteed that the apparatus would effect a saving of not less than seven per cent, in cost of fuel.

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

<p>1. An owner or occupier of premises who by invitation, express or implied, induces a person to come upon the premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation.</p> <p>2. Where a new boiler house was being erected under a general contract, and the plaintiff, whose employer had a subcontract to do the painting work, was injured by falling into an unguarded pit in the floor, the fact that the general contract had not been fully completed did not relieve the owner from the obligation to use ordinary care to render the premises reasonably, safe for the purpose for which the owner invited the plaintiff to enter, it appearing that the owner, with the acquiescence and consent of the general contractor, had entered into possession and control of the boiler house before the accident and continued to occupy the same and operate and use the boilers and pumps, of which the pit was an essential part, in connection with its general business ; and this is so even though the general contract provided that the building was not to be turned over to the owner until completed and that the general contractor during that period would be responsible to the owner for any damages.</p> <p>3. Where the existence of contributory negligence upon the part of the plaintiff depends upon the conclusion to be reached from a variety of circumstances considered in their relation to and their reaction upon each other, the jury and not the court is normally the11 tribunal to draw such, conclusion.</p>

<p>1. A motion to direct an acquittal in a criminal prosecution at the close of the state’s case is reviewable on error under section 136 of the Criminal Procedure act. Oomp. Stat., p. 1863.</p> <p>2. Where an indictment for keeping a disorderly house charges that - the defendant permitted illegal practices and conduct to be habitually carried on in a place of public resort, it is competent to prove specific acts and conduct of frequenters of the place.</p> <p>3. Knowledge by the proprietor of a house of illegal practices . ' carried on therein is necessary to convict’ him of, keeping a disorderly house, and mere negligence, while evidential of the fact of knowledge, is not its legal equivalent; but his knowledge may be inferred as a matter of fact from evidence showing a course . of practice, or frequent acts, of which, in the natural order of things, he would have been cognizant, and to which his assent would be as a matter of fact naturally implied.</p> <p>4. Where the examination in chief elicits part of a conversation, the other side is entitled to cross-examine to find out whether that was all of the conversation, and, in general, to have other relevant parts thereof.</p> <p>5. Where no motion is made to strike out irrelevant testimony given by a witness on his direct examination, opposing counsel have the right to cross-examine him on it.</p> <p>6. Where the response to a question, which the cross-examining counsel has a right to ask, is irrelevant, and no motion is made to strike it out, it will not lead to a reversal, because there is no 'judicial action for review on error.</p>

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

<p>Plaintiff’s complaint was struck out on motion with leave to file and serve a new complaint within twenty days. Instead of doing this, plaintiff began a new action by issue and service of summons and served complaint therein. The statutory period of limitation had then expired. Held, that plaintiff was properly nonsuited in the second suit by reason of the statute of limitation pleaded therein by defendant.</p>

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

<p>1. To justify the admission of a photograph in evidence, it is only necessary that in addition to being relevant it be testified to by a witness having personal visual knowledge of the object depicted as being a correct rejwesentation of such object.</p> <p>2. A photograph of the body of a man alleged to have been murdered is not “too remote” because made at or after an autopsy to determine the cause of death, so long as it purports to show aspects of the body that are relevant to the case.</p> <p>3. A court is justified in excluding manslaughter from the consideration of the jury in a homicide case when the undisputed evidence shows that defendant, believing deceased to be armed, armed himself with a deadly weapon in the form of a length of lead pipe and followed up and accosted deceased, when the latter was alone and peacefully going to his home, defendant knowing or believing that a combat was likely to result; and struck deceased on the head with the pipe, causing fatal injury, as, deceased was reaching for his own weapon.</p>

<p>A declaration of trust of real estate for the benefit of L, a married woman, to receive rents and profits, pay expenses and render her the overplus for her own use; and further, to sell and convey the premises to such person or for such use and Qn such consideration as she in writing, without her husband' joining, shall direct, and to pay her the proceeds of sale, less proper charges, and failing such conveyance during her life then to convey to such person as she should by will appoint, and failing such appointment, then to convey to her daughter M.—Held, to create an equitable life estate unaffected by the statute of 1912 (Pamph. L., p. 522) and free from any claim of curtesy initiate on the part of the husband.</p>

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

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

<p>The defendant was indicted for receiving money from the earnings of a prostitute contrary to the prohibition of the statute. Evidence was admitted showing the institution of such relations more. than, five years before the indictment was found, which continued to a time within the statutory limitation of two years, embracing the date on which the alleged crime was charged to have been committed. This evidence was objected to, not because it was offered to prove an extraneous crime, but upon the ground that it related to the acts of the defendant more than five years prior to the finding of the indictment. Held, that the evidence was, under such circumstances, competent as corroborative, of other evidence in proof of the offence charged.</p>

<p>On appeal from tlie Supreme Court, whose opinion is reported in 93 X. J. L. 50</p>

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

<p>The collection of the promissory note sued upon was barred by the statute of limitations. The chattel mortgage given as collateral therewith was thereafter foreclosed, and the amount realized was applied by the creditor on the note, without the mortgagor’s consent. Held, that the statute having barred the collection of the note, the maker’s right of protection, from liability thereon became thereby vested and that the obligation could not be revived without his consent.</p>

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

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

<p>Where there was no attempt to prove that an agent had authority to change the terms of an original contract or that the agent had been held out by his principal as having authority to do so, or that the principal had any knowledge of an alteration in the original contract until an attempt was made to deliver the goods made in accordance with such alleged change, a judgment based upon a finding that there had been a ratification was erroneous.</p>

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

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

<p>On appeal from tlie Bergen County Circuit Court.</p>

<p>1. The duty of a carrier to exercise due care for the safety of its passengers continues only while the relation of passenger and carrier. exists.</p> <p>2. A carrier is not liable for an injury to a passenger from an accident, which is not the reasonable, natural and probable result of the situation, and which could not have been foreseen by the carrier in the exercise of that high degree of care which the law demands. Or when there is no causal connection between the act of the carrier and the injury to the passenger.</p> <p>3. A passenger on a trolley ear had been carried by his station, but let off at another station by the conductor, and given a ticket to enable him to ride back to his station, the conductor telling the passenger to take another car back; instead of so doing, the passenger started to walk back on the private right of way of the railroad company; he stumbled and fell sustaining the injuries sued for—Held, the railroad company is not liable for the injuries thus sustained. There is no causal connection between the injuries sustained and the act of the defendant company in not letting the passenger oif at the right station—Held, further, whether the cause of the accident is too remote to allow compensation by waj' of damages is a question of law to be decided by the court.</p>

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

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

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

<p>■ On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 332.</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 93 A'. J. L. 305.</p>

<p>On appeal from tlie Supreme Court, whose opinion is reported in 94 N. ,T. L. 46. '</p>

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

“The consideration for the contract was the agreement of the plaintiff to continue in the defendant’s employ when he was tinder no obligation to do so. Mr. Pritchard told him to go when lie first suggested leaving, and there seems to hare been no contract to keep him, except the new one then made on which plaintiff now relies. “Let judgment bo entered for the plaintiff.”

<p>On error to the Supreme Court, whose opinion is reported in 93 N. J. L. 268.</p>

<p>On error to the Supreme Court, whose opinion is reported in 94 H. J. L. 19.</p>