Volume 97 — New Jersey Law Reports

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

<p>A city governed by the Walsh act (Pamph. L. 1911, p. 462) contracted 'to buy the entire plant of a water company at a stated, price, and, while the company remained in possession pending litigation as to the validity of the contract, it became desirable to make extensions to the water mains in the streets, and other improvements. A't the request of the company, a resolution was introduced, and was adopted the same day by the city commissioners, “that if any extensions of water mains or other improvements to the plant are installed by the company at the request or approval of the commissioners, 'the costs of said extensions or improvements shall be added to the purchase price of the plant, and paid for by the city at the time of settlement, if the contract of purchase be adjudged valid, and if adjudged invalid then the expense of said extensions and improvements shall be borne by the water company.” Held, that the resolution was invalid and will be set aside for failure to comply with section 6 of the Walsh act (as amended by Pamph. L. 1912, p. 649), requiring that every ordinance or resolution appropriating money, or authorizing the making of any contract or granting any franchises, or the right to occupy or use the streets, shall remain on file with the city clerk for public inspection at least two weeks before the final passage or adoption thereof.</p>

<p>1. „ By virtue of sections 1 and 2 of article 24 of chapter 152 of laws of 1917 (Pamph. L., p. 410), the city of Millville has power to construct an electric light distributing system for public lighting, and lto employ an electrical engineer to prepare plans and specifications therefor.</p> <p>2. The city of Millville may employ an electrical engineer to prepare plans and specifications “for an electric light distributing system for public lighting,” without adopting an ordinance “for the construction of a municipal lighting plant,” since by virtue -of sections 1 and 2 of article 24 of the laws of 1917 (Pamph. L., p. 410) the governing body of the city may cause such distributing system to be constructed either by the municipality or by a contractor who engages to furnish street lighting for a stated term.</p> <p>3. The preparation of plans and specifications for an electric light distributing system for public lighting as authorized by sections 1 and 2 of article 24 of laws of 1917 (Pamph. L., p. 410) is not work or the furnishing of materials, supplies or labor which must he awarded to the lowest responsible bidder, after public advertisement, under the provisions of section. 1 of article 11 of Pamph. L. 1917, p. 347, as amended by Pamph. L. 1920, p. 572.</p> <p>4. An ordinance of a city authorizing the making of a contract with an electrical engineer for the preparation of plans and specifications for an electric light distributing system for public lighting is valid as against an objection that, at the time of the adoption • of the ordinance, there was no appropriation of funds to pay for such services, it appearing that the ordinance itself provided that the cost of such services ($2,700) should be included in the tax levy and the money temporarily raised by temporary notes under the provisions of section 13 of chapter 252 of the laws of 1916 as amended' by Pamph. L. 1921, p. 243.</p>

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

<p>1. If a request, in so far as it embodies any pertinent legal principle, has been charged, in substance, the court is not bound to repeat it in the language requested.</p> <p>2. By virtue of chapter 349 of laws of 1921 (Pamph. L., p. 951), where the plaintiff in error brings up the entire record with his writ of error as provided in the Criminal Procedure act, and assigns as error that the verdict was against the weight of evidence, if it shall appear to the appellate court from a consideration of 'the entire evidence that such verdict was against the weight Of the evidence, the court will reverse such verdict and award a new trial; but if from ■ such consideration it appears that sugh- verdict was not against the weight of the evidence, the court will not go further and consider an assignment that it does not appear from the evidence that the defendant was guilty beyond a reasonable doubt.</p>

<p>1. Where a statute authorizes a municipality to require a referendum 'vote on the question whether it shall acquire, within or without the city, a plant for the manufacture of gas, electricity and steam for supplying light, heat and power, or two, or all, and that the city may by resolution require such a referendum according to which the ballots must be prepared, the resolution must definitely state the character of the plant necessary, and clearly indicate the purpose of the referendum, so that a distinct proposition is presented on which the voter may vote yes or no.</p> <p>2. A resolution which requires a referendum whether the city shall acquire a plant to manufacture gas, electricity or steam, or both, or all, does not set out any distinct proposition to the voter as required by the statute. Whether the plant shall be within or without the city, or whether the lighting shall be by gas or electricity are, under the statute, distinct propositions, when the only answer the voter is allowed to give is by voting yes or no.</p>

<p>On certiorari.</p>

<p>The act entitled “An act to exempt from taxation for five yeaz-s certain .improvements to real estate” (Pamph. L. 1920, p. 1068) is special in character, creating- an arbitrary classification of l>roperty to be exempted from taxation, and does not conform to the constitutional provision that all property shall be assessed for taxation under general laws and by uniform rules, according to its true value, and is therefore an unconstitutional statute.</p>

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

<p>The statute entitled “An act relating to the salaries of the guards and keepers of jails, penitentiaries and workhouses of counties of the first class” (Pamph. L. 1920, p. 333) is unconstitutional, for the title covers both male and female guards while the body of the act limits its application to males.</p>

<p>On certiorari.</p>

<p>1. A business manager, appointed by the board of education of any municipality which has adopted the Civil Service act of the state, is not the head of a department entitling him to be placed in the unclassified or exempt class by the civil service commission of the state, and, therefore, his deputy, appointed by the board of education, is not entitled to be placed in the unclassified service because he is a deputy, or an assistant of a principal executive officer authorized by law to act generally for and in place of his principal, to which the law limits the right to exemption from a civil service examination of any deputy.</p> <p>2. Even if the business manager was the head of a department, there is no authority in law authorizing the appointment of a deputy manager to act generally for his principal, which is the only statutory reason for placing a deputy in. the unclassified service.</p>

<p>1. The requirements of the “Limited Franchise act” (Pmiph. L. 1912, p. 750) are indicative of the fact that what the legislature had in mind in the execution of that legislation, was not the ordinary vehicular use of the highway, but an extraordinary use thereof, involving a property right in the highway, tantamount in character, though not in legal effect, to an additional easement which could be properly dealt with owing to its importance only by the responsible governing body of the municipality.</p> <p>2. The “Kates act” {Pamph. L. 1916, p. 2S3), as amended {Patnph. L. 1921, p. 63S), contains in itself all the legislative requirements as to use and licensing of motor buses and “jitneys,” and presents within its scope a comprehensive and detailed legislative conception, for the regulation and use of such vehicles for public transportation; and was enacted in view of all pre-existing regulatory enactments concerning the same general purpose of controlling street transportation in municipalities.</p> <p>3. A consent of a municipality for a concession made by petition under the provisions of the “Kates act” is not invalid because the consent was not granted in pursuance of the provisions of the “Limited Franchise act.”</p>

<p>No personal liability is incurred by the owner of real property, in the absence of legislation directing otherwise, for taxes assessed upon such property.</p>

<p>On rule to change venue.</p>

<p>1. A suit to recover damages for personal injuries to the plaintiff, a non-resident of the state, which were caused by the alleged negligence of the defendant company, in the State of Pennsylvania, may be maintained in the courts of New Jersey, against a foreign railroad company authorized to do business and operate in New Jersey.</p> <p>2. Such an action is transitory and the venue may be laid in the county in which the defendant was served with process.</p>

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

<p>On appeal from the District Court of the second judicial district of the count}' of Morris.</p>

<p>1. The plaintiff, upon disembarking from a railroad train, delivered to an agent in charge of the parcel room at the station two parcels, received from the agent two checks, and paid him ten cents for each of the parcels checked. The agent, upon presentation later of one of the checks, stated that the parcel checked, a suit ease, had been by mistake delivered to another. Suit was instituted against the railroad company to recover the value of the suit case and contents. At the parcel room notices limiting the liability of the railroad company to twenty-five dollars in the event of loss were posted and a like notice in the form of a contract was printed on the back of the checks. The District Court found as a fact 'that the plaintiff did not know and had not been apprised of the contents of the notices limiting liability. Held, that no duty was imposed upon the plaintiff to read the check, and that the plaintiff, in the absence of knowledge from the rail- ' road company of the special terms upon which the bailment was accepted, could recover the value of the suit, case and contents.</p> <p>2. While the measure of damages for lost articles is their market value at "the time of loss, yet the original cost, being' an element to be considered with others in ascertaining the market value, may be received in evidence.</p>

<p>1. A corporation formed under chapter 65 of the laws of 1905 for the purpose of providing and maintaining a fund to pension firemen, their widows, &c., in certain municipalities of this state having a paid fire department, may be abolished by an act of the legislature, and the funds under its control directed to be turned over to a board or body appointed or formed under the new statute for administration for like purposes.</p> <p>2. Upon the creation of the Pension Commission of the Police' and Fire Department of the City of Atlantic City under chapter 160 of the laws of 1920, the Atlantic City Eire Department Pension Fund created under chapter 65. of the laws of 1905 was abolished and its duty was to turn over to the commission created under the 1920 statute the funds and securities under its control. It having refused to do so, a' peremptory writ of mandamus will be awarded. , -</p>

On error 4n Katz case, and appeals in the Carell and Sinisi cases, from the Supreme Court, whose opinion is reported in 96 N. J. L. 382.

<p>1. An affidavit, which is the basis of a dispossessory proceeding in the District Court, may be made by the authorized agent of the owner of the premises.</p> <p>2. Where the Supreme Court sits as a reviewing tribunal, questions not argued there will ordinarily not be noticed in the Court of Errors and Appeals, but may be if they involve jurisdiction or public policy.</p> <p>3. Official cognizance of the names and signatures of the clerk of District Courts will be taken by the other courts of the state.</p> <p>4. A paper is filed in contemplation of law when lodged with the proper officer. The failure of a clerk to endorse a minute of the filing upon the paper lodged with him cannot operate to destroy the rights of the party so lodging it for- filing.</p>

<p>1. The degree of care required of a child old enough to be capable of negligence is such as is usually exercised by persons of similar age, judgment and experience, and in order to determine whether ■a child old enough to be capable’ of negligence has been guilty of contributory negligence, it is necessary to take into consideration the age of the child and it? experience and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation, and it is usually a question for the jury to determine whether a child has been guilty of contributory negligence.</p> <p>2. Plaintiff, a boy of six years, brought suit against the owner of a motor truck for injuries received in a collision between the truck and a sled on which he was coasting. Held, that the question of the contributory negligence of the plaintiff was one for the jury to decide.</p>

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

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

<p>Where .premises are fraudulently misrepresented by the landlord to be in good condition, when in fact they are offensive to the sense of smell, and unsanitary, the tenant has a legal right to move out; and such fraudulent conduct of the landlord is evidence of a constructive eviction in an action for rent accruing after abandonment by the tenant.</p>

<p>1. The streets of a city are common highways primarily designed for the use of the public in passing- and repassing and in such temporary occupancy as is incidental to the exercise of those rights, and no one is justified in obstructing a public street by collecting therein a large assemblage of people for the purpose of delivering an address.</p> <p>2. Anyone who attempts to use the streets of a city for the purpose of holding a public meeting, without having first obtained permission from the public authorities in charge thereof, commits a public nuisance.</p> <p>3. The constitutional guaranty of liberty of speech does not authorize a xierson to appropriate the. public property for the purpose of exercising that guaranty.</p> <p>4. In order "to xxrotect the public in the full enjoyment of the city streets, the municipal authorities are clothed with the power to prevent such enjoyment from being unnecessarily interfered with; and in a given case, the question whether a public official has used proper means to prevent an intended illegal infringement of the rights of the public or whether Ms action, under the circumstances, was without legal justification, is a question of fact to be determined by the jury and not one of law to be resolved by the court.</p>

<p>1. A decree of the Orphans Court of Philadelphia, disallowing ■plaintiff’s claim, is no bar to an action in this state when it appears from the record of such court that there was no trial of the claim upon the merits and no consideration of its validity, the court disallowing it for the single reason that the plaintiff absented himself from the trial there had and refused to prosecute his claim before that court.</p> <p>2. When a suit is brought against a devisee under our Heirs and Devisees act (Comp. Stat.. p. 2739) the defendant is being sued in a representative capacity.</p> <p>3. A party Who sues an heir or devisee under the Heirs and Devisees act (Comp. Stat., p. 2739) is 'barred from testifying- with relation to transactions with, or statements by, the intestate or testator, unless the heir or devisee first offers himself or herself as a witness and testifies to transactions with, or statements by, such intestate or testator.</p>

<p>Decedent devised a part of her homestead farm to her son. She then devised to another son, now deceased, to his children, the remainder of her homestead farm “as hereinafter described.” Then followed a description which was not complete and which could not be plotted out, due to the uncertainty of courses, described as running along Lake Hopatcong. Held, that the devise included all of the remainder of the homestead farm, as to hold otherwise would in effect decide that she died intestate as to a portion of her lands.</p>

<p>1. Plaintiff brought an action, founded on two claims, one for the price of silk delivered and the other for damage for refusal to accept delivery of other silk. One of the defences urged at the trial was an accord 'and satisfaction between the parties by reason of a check given by the defendant to the plaintiff for a sum of money, which check contained two statements, one that “endorsement of this check by payee constitutes receipt in full for the following -account,” following which was a statement of eight invoices, amounting to the sum for which the cheek was given ; and the other in another part of the check was “in full payment of all accounts claims to date.” Held, that the fact that the amount of the cheek was the same as the amount of the invoices is persuasive that the check was meant to cover only the invoices, and that leaving it to the jury to decide whether there was an accord and satisfaction was too favorable to the defendant and it cannot complain of’such action of the trial court.</p> <p>2. Quotations of the selling price of a commodity printed in a trade journal is admissible upon proof. of the reliability and use of such publication in the trade, but its admissibility is a preliminary question for the court to decide.</p> <p>3. A letter by the buyer advising seller not to ship any more of the goods under the contract, was evidence of an anticipatory breach of the contract*</p> <p>4. It is competent to prove the significance of certain initials used in the trade, but a witness cannot be asked -wli-at was said as to these initials, as that would seem to add oral terms to a written contract.</p>

<p>1. In an action brought to recover a debt or liquidated damages of the character designated in rule 80 of the Supreme Court, a frivolous or sham defence may be struck out and judgment final entered. upon motion of the plaintiff, supported by affidavit of a person cognizant of the facts, verifying the cause of action, and stating the amount claimed and his belief that there is no defence to the action, unless the defendant by affidavit or other proofs shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle Mm to defend.</p> <p>2. In a suit by a trustee of a bankrupt corporation in a state court to recover an assessment for the amount remaining unpaid upon a stock subscription in order to pay the debts of the corporation, the assessment, made by the referee in bankruptcy after hearing the stockholders, and affirmed by the United Slates District Court, is conclusive upon the' stockholders as to the fact that the assessment is necessary, as to the amount of money required to be raised by the assessment, and as to the pro rata of each share of stock upon which’the assessment is made.</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>Plaintiff, while rightfully in a building controlled by defendant, was injured by the explosion of a gas machine in the cellar of the building, which machine was operated and managed by a servant of the defendant so as to furnish light to the building. There was evidence that for some months gas had been escaping; that the gas jets frequently flared a foot or more; that the machine had emitted noises: that there had been no inspections of it for about a year, and that about a month before the accident the servant in question had been warned that it might explode if its use was continued. Held, that on the whole case the question of defendant’s negligence was for the jury, and that a direction for defendant was erroneous.</p>

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

Ou error to the Supreme Court, which affirmed a conviction in the Essex Quarter Session? of assault and battery with intent to rape.

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

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

<p>The defendant issued to plaintiff its policy insuring the title -of a large tract of land, the title to a small portion of which was defective because plaintiff's grantor had no title; the plaintiff called upon the defendant to perfect the title which resulted in negotiations culminating in an agreement manifested by a letter from defendant to plaintiff that if plaintiff would acquire the outstanding title at a cost not to exceed §5,000, defendant would pay him the amount of the cost as damages. The plaintiff acquired the land paying §5,000, and defendant refused to refund upon the ground that the policy only bound it to pay when it requested the party guaranteed to acquire an outstanding estate, and also that plaintiff could only recover such proportion of the insurance as the value of the outstanding estate bore to the whole. Held, that the letter which authorized the plaintiff to acquire, at his election, the outstanding estate, and if he did defendant would pay him the cost and damages not exceeding §5,000, was a sufficient request under the policy, and that the promise to pay the cost and damages not exceeding §5,000, fixed the measure of damages between the jjarties, if acted on. The defendant could settle its liability by acquiring the property, and this it did through the requested act of plaintiff, who relied on the promise of defendant to reimburse him to the extent of his disbursement.</p>

<p>1. Testimony that an endorsement upon a check, which later turned out to be fraudulent, was conditioned by the request or understanding that the hank with whom the check was deposited should communicate with the bank upon which it was drawn as to its genuineness is not admissible to qualify or vary the absolute or general endorsement.</p> <p>2. The words “Attorney’s Account,” after a general endorsement on a check, is not notice to the bank in which it is deposited that the endorsement was special in its nature; the added words were simply a direction to the bank to credit the check to that account.</p>

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

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

<p>Defendant and decedent, in her lifetime, executed an instrument reciting that they had purchased a safe, and “upon the death of either one the safe and personal contents becomes the property of the other, cash, bank-book and bonds, etc.” Held, to be a contract which attempts to dispose of property after death, after the manner of a will, without being executed in conformity with the statute of wills.</p>

<p>1. In an action of ejectment, the plaintiff must show a right of possession in himself or by someone from whom his title comes. A deed to the plaintiff from a person not appearing to have had title or possession is insufficient.</p> <p>2. In an action of ejectment, the plaintiff must depend upon the strength and validity of his own title; he cannot rely upon the weakness of that of his adversary.</p> <p>3. There is an inference of fact that identity of name indicates an identity of person. It creates a prima facie presumption of the identity of the person.</p> <p>4. Since the record as a whole imports verity, every part of it is admissible to prove that which it legitimately, sets forth in controversies with third persons.</p>

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

<p>1. Under a contract which provided: "It is understood and agreed between the parties that if the defendants refuse to take title to the premises when a good, merchantable title is offered to them,” &c., the burden of proof is upon the plaintiff to show a tender of a deed conveying such a title. In the absence of such proof by the plaintiff, a nonsuit is not error. Bernstein v. Kolin, 114 Ail. Bep. 543, distinguished.</p>

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

<p>1. In the trial of a challenge to a juror, the court's findings of fact are conclusive and not reviewable.</p> <p>2. A defendant is not harmed by the court’s refusal to disallow a challenge for cause when the juror is subsequently peremptorily challenged by the defendant and at the conclusion of the selection of the jury the defendant has not exhausted liis peremptory challenges.</p> <p>3. In a challenge to the array it is incumbent upon the challenger to prove in what respect the drawing and summoning of the special panel is illegal. In the absence of proof it will be presumed that the panel was legally drawn and summoned.</p> <p>4. In a trial for murder it is not erroneous to admit in evidence articles found on the person of the accused when arrested and in the room of a house occupied by him when the articles are identified as having belonged to the person murdered.</p> <p>5. Where the admissibility of a confession is challenged, the primary question for the determination of the trial court is whether the defendant in confessing acted voluntarily or under the influence of hope or fear. The admission of the confession by the trial court as voluntary is not subject to legal exception and not reviewable upon a writ of error that rests alone upon such an exception if there is legal evidence to support the finding, IVhei-e the entire record of the proceedings is brought up for review the appellate court will review the question of the admission of the confession and consider and determine whether in its admission the defendant suffered manifest wrong or injury-</p> <p>6. Lay witnesses may give their opinion of a person’s sanity, or insanity, provided such opinions are based on facts within the knowledge of the witness and stated.</p> <p>7. A question asked of a lay witness which seeks to obtain his opinion as to a person’s sanity or insanity, is properly overruled by the trial court where the witness is unable to state facts upon which to base bis opinion.</p> <p>8. A statement in tlie nature of a confession made by a defendant on trial for murder to a major in the Salvation Army is not a privileged communication and is admissible in evidence. Sueli a statement is also admissible if made to a spiritual adviser.</p> <p>9. The question of the qualification of an expert witness is one for the determination of the trial court, whose finding is not reviewable if there is legal evidence to support it.</p> <p>10. If there be testimony supporting the charge laid in the indictment the question of the defendant's guilt or innocence is for the determination of the jury and not of the court, and it is proper to deny a motion to direct a verdict for the defendant.</p> <p>11. Under chapter 349 of the laws of 1921, the court of review will weigh the evidence in the same manner as upon a rule to show cause where the reason assigned is that tlie verdict is against the weight of the evidence. The competency of the evidence will not be considered. It will be weighed in its totality as presented to the jury.</p>

<p>1. Where a crossing was constructed over a private right of way and track of a railway company without the consent or permission of the company, and used without invitation, the users thereof are trespassers and the company is under no duty to warn such users of the- approach of a car being operated over its right of way.</p> <p>2. Willful or wanton injury can only be established by showing that one, with knowledge of existing conditions, and conscious from such knowledge that injury will likely or probably result from his conduct, and with reckless indifference to the consequences, consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result.</p> <p>3. A railway company which by its motorman propels a car rapidly over its private right of way and without warning approaches a crossing constructed over said right of way without its consent or permission, and used without its invitation, is not guilty of willful or wanton injury if said car strikes and damages a truck using said crossing, although the company has knowledge that said crossing is being used and the view of a car approaching said crossing is somewhat obscured by shrubbery.</p>

<p>A vendee of real estate to be conveyed clear of encumbrance has no right to repudiate his contract because the vendor has not paid off encumbrances before the time fixed for settlement. All that such vendee is entitled to is to have the encumbrances removed at the time of settlement, and the fact that such' encumbrances are to be satisfied at the settlement out of the purchase-money to be then paid by him instead of out of other funds, is a matter in which he has no legal concern.</p>

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

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

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 303.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 103.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 75.</p>

<p>A libel mai' be actionable per se without charging a crime, for whenever words clearl.v sound to the disreputation of the plaintiff, there need be no further proof of damage.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 31.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 9G N. J. L. 37.</p>

<p>In workmen’s compensation eases the Supreme Court cannot review the facts as found by the Common Pleas when there is any evidence to support the lower court’s findings.</p>

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

<p>1. Assigning trial errors in this court does not invoke its jurisdiction on error to the Supreme Court, when that court sits as a reviewing tribunal, and in the absence of an assignment challenging the validity of the Supreme Court’s judgment, a writ of error to that, from this, court will be dismissed.</p> <p>2. It is error to permit the prosecution to rebut testimony given on cross-examination by a witness for the defence, relating to a collateral matter.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 95 N. J. L. 388.</p>

<p>1. In actions under the Federal Employers’ Liability act the doctrine of assumption of risk has no application in cases where the negligence of a fellow-servant, which the injured party could not have foreseen or expected, is the direct and immediate cause of the injury.</p> <p>2. It cannot be said, as a matter of law, that an employe of a railroad company, engaged in the work of bridge repairing while the tracks are in use, is required to be constantly on the lookout for danger from approaching trains, where, to his knowledge, the duty of giving of warning thereof rests upon the foreman.</p> <p>3. Under the third section of the Federal Employers’ Liability act • contributory negligence is not a bar to the right of recovery, but is merely to be taken into consideration in determining the amount of the compensation te be awarded.</p>

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

<p>'1. Where in a suit for damages for malicious prosecution a question whether or not the defendant had probable cause for instituting the prosecution against the plaintiff, depends, in part at least, upon facts, the existence of which is in dispute, if is the function of the jury to settle those facts, and, upon doing so, to determine on the whole case whether or not pi’obable cause has been shown, such determination being based upon proper instruction from the court.</p> <p>2. In an action for malicious prosecution, defendant maintained that he had instituted criminal proceedings against the plaintiff on the advice of his counsel. Held, that counsel’s advice would protect him only if none of the material statements were false to defendant's knowledge.</p> <p>3. Where an affiant falsely and maliciously states the facts untruly, and procures a warrant to be issued, he becomes responsible for the prosecution and arrest, because if he had not made the false affidavit and asked for the issuing of a warrant, the officers could not and Would not have decided that criminal process should issue.</p> <p>"4. In an action for malicious prosecution, the dismissal or abandonment of the prosecution is some evidence of want of probable cause or malice.</p>

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

<p>1. The act of April 15th, 1919 {Pamph. L., p. 345), authorizing a refund to persons holding a license to sell intoxicating liquors when such sales shall be generally prohibited, does not apply to the period from June 30th, 1919, the date of the Wartime Prohibition act became effective, to January 16th, 1920, the date the eighteenth amendment 1o the United States constitution became effective, as the licenses during that period were not void but merely suspended.</p> <p>2. The federal law is paramount to the state law, but is not exclusive of it.</p> <p>3. The eighteenth amendment to the constitution and the Volstead act do not supersede state prohibitory statutes.</p> <p>4. One holding a license to sell intoxicating liquor who did not surrender it, cannot recover a refund for the unexpired portion covered by the Federal Prohibition law under a municipal ordinance authorizing such recovery, as the act of April 15th, 1919 {Pamph. L., p. 345), requiring surrender of the license to entitle the holder to a refund was passed before the license was issued, and a municipal ordinance cannot override a statute.</p>

<p>A liability in tert may arise out of a contract, but when the only complaint is of a failure to perform a contract, the right of action is a right of the promisee under the contract unless it clearly appears that the parties intended that a third party should have a right of action on the contract.</p>

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

<p>1. The supplement to the Crimes act, approved March 6th, 1917 (Parnph. L., p. 7S)* denouncing the bringing into this state of personal property stolen or received as stolen in another state, is not unconstitutional,</p> <p>2. In the trial oí an indictment under such supplement, the case involving the receiving of stolen goods in the sister state, evidence of other similar acts is admissible on the question of intent.</p> <p>3. In reviewing the conviction for a criminal offence, this court will not consider under section 136 of the Criminal Procedure act alleged errors at the trial when there is no certificate of the trial court of the entire proceedings at the trial.</p> <p>4. Exceptions in a criminal case, to be available in error, should be authenticated by the signature and seal of the trial court.</p>

<p>Where a beneficial association authorizes one of its subordinate branches to collect dues, to be forwarded to it, the branch becomes the agent of the association for that purpose, and if it, by its uniform course of dealing with members of the association liable to pay it dues, leads the members to believe that neglect to make prompt payments, according to the strict terms of their Contract, will not result in a forfeiture of .it, and the branch, by resolution agreeing to and in pursuance thereof, does advance, ou't of its own funds, to the association the dues of a member in arrears for. one month, which he repays the branch according to the customary course of collections, no forfeiture arises.</p>

<p>1. The defendant was suspected of being guilty of the crime of murder, and made certain statements to police officers relating to his whereabouts and conduct about the time of the murder, protesting his innocence. An investigation made by the officers showed that some of his explanations were untrue, and one or more of them told the defendant it would be better if he told the truth. He did not follow that advice but insisted that his statements were true, and when he was shown that he was not telling the truth said he wished to make a confession to the prosecutor •of the pleas, but before doing so he was very plainly told by that officer that his statements must be voluntary and not based on any hope of assistance from him, and thereupon he made a confession. The trial court adjudged that the confession was voluntary, and allowed it to be offered in evidence. Held, that the court was justified in finding that the confession was voluntary and its admission in evidence not error.</p> <p>2. While the defendant was confined in the county jail he attempted to induce a person, visiting another prisoner, to bring him a saw and other implements useful in afEecting an escape. Held, that the admission of this evidence was competent on the question of conscious guilt, its weight being for the jury to determine.</p> <p>3. A witness confined in the jail with the defendant wrote a letter for him which he hoped to send to his wife. The witness was allowed to use the letter for the purpose of refreshing his recollection as to its contents, to which objection was made. Held, that it was not error to permit the witness to read the letter for the purpose of refreshing his recollection, subject to being cross-examined as to the extent of Ms recollection of the matters contained in the writing.</p> <p>4. The defendant also objected t«> the testimony concerning the letter because he claimed it to be a confidential communication from husband to wife, kind, therefore, privileged. Held, that the communication to the witness was not privileged under a statute providing: “Nor shall any husband or wife be compellable to disclose any confidential communications made by one to the other during marriage,” and that to establish a privilege, based on the marital relation, the communication must be confidential and made by one to the other during marriage, and that to commit the communication to a third person to be transmitted to the wife, whether orally or in writing, destroys the element' of confidence, which in law is the basis of the privilege, nor was it a communication made by a husband to his wife, which is protected by the statute.</p> <p>5. The defendant was permitted to testify on his own behalf to facts tending to show his state of mind at the shooting in great detail, and when his counsel undertook by further questions to have him testify to practically the same thing, objection was made and the court overruled all questions which had a tendency .to allow the witness to repeat what he had already testified to. Held, that this was not error.</p> <p>6. The defence set up by the defendant was self-defence, and to sustain it evidence was offered to prove that the defendant had consulted several lawyers about the conduct of the deceased with his wife. Held, that this was properly overruled because irrelevant, defendant not claiming that he had killed deceased because of any state of mind created by the conduct of his wife, but because when he expostulated with the deceased concerning it, he had reason to believe that the deceased was about to diO' him a serious bodily injury, and that he shot deceased in self-defence. His conversations with the lawyers about the conduct of his wife and the deceased had no relation to the conduct of the deceased at the time he was shot, nor as a justification of the defendant’s conduct.</p> <p>7. The trial court refused to allow the defendant to testify that he believed deceased was armed. No objection was made to this ruling, but if there had been, the evidence would not have been competent, for his belief must be based upon some fact, and all the acts of the deceased defendant testified to' was that deceased put his hand near his pocket as though to draw a revolver, and whether that justified the inference by defendant that deceased was armed was a jury question. To make his belief competent there must be some evidence tending to show that his belief was a reasonable one.</p> <p>8. The defendant cannot justly complain of the charge of the court to ’the jury to the extent of refreshing their recollection as to the facts, if correctly stated. Every comment on evidence by the court has that effect, and comment on evidence is not error where the jury is instructed to rely on their own recollection, as was done by the trial 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.</p>

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

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

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

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

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

<p>On appeal 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.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 308.</p>

<p>Where the existence of a mortgage encumbrance upon real estate as an objection to the acceptance of the title by a purchaser is an issue at the trial, and the party whose interests are adversely affected by such mortgage at the trial, voluntarily concedes its existence in his own testimony, it becomes unnecessary for the party relying on the mortgage as an objection to the title to make more formal proof of the fact of its existence as a subsisting encumbrance.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 431.</p>

<p>On appeal from the Supreme Court, whose opinion is reported in 96 N. J. L. 356.</p>

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