i-fttiscnsi' mmmmm mmmmmm NEW JERSEY LAW REPORTS VOLUME XXXVI. VROOM VII. REPORTS OF CASES ARGUED AND DETERMINED IN THB SUPREME COURT, AND, AT LAW IN THE COURT OF ERRORS AND APPEALS STATE OF NEW JERSEY. G^ARRET D. ^W. VROOM Reporter. VOL. VII. SECOND EDITION TRENTON, N. J.: THE W. S. SHARP PRINTING COMPANY. 1883. 1.^ >^ This volume contains the opinions delivered in the Supreme Court, from November Term, 1872, to February Term, 1874 f and, also, the opinions delivered in cases at law in the Court of Errors and Appeals, from March Term, 1872, to March Term, 1874. iv NEW JERSEY REPORTS. LAW EEPORTS. COXE'S REPORTS, - - - - 1 vol PENNmOTON'S REj L^ORTS, - - 2 SOUTHARD^S v. Mayor of New York 14 N. Y. 506 82 V. Shields .- 26 Wend. 341 15i Deacon v. Shreve 2 Zab. 176 25 Del. & R. Canal Co. v. Lee 2 Zab. 243 340 xviii TABLE OF CASES CITED. Den V. Fen 5 Halst. 237 179 V. Hammell 3 Harr. 73 200 V. Humplireys 1 Harr. 28 467 V. MeAlUster 2 Halst. 46 25 V. Stretch 1 South. 182 418 V.Young 3Zab. 481 467 Derrickson v. White 3 Vroom 137 180 De Sewanberg V. Buchanan 5 C. & P. 343 268 Dickerson V. Kobinson 1 Halst. 195 17 Dimes v. Proprietors, «&c 3 H. L. C. 759 398 Doe V. Bancks 4 B. & Aid. 401 333 Doughty V. Hope 3 Denio 595 193 V. Hope 1 Comst. 79 193 Dummer v. Den Spenc. 86 543 Dutch Church v. Smock Saxt. 148 467 E. Eastman V. Amoskeag M'f'g Co 44 N. H. 143 343 Eckert V. Keuter 4 Vroom 266 134 Egbert v. Chew 2 Green 446 , 14 Elliott V. Sleeper 2 N. H. 525 441 Ehvell V. Quash 1 Str. 20 49 Emerson v. Thompson 16 Mass. 431 45 Emery v. San Francisco Gas Co 28 Cal. 345 480 P. Farley V. Cleveland 4 Cow. 432 146 V.Cleveland 9 Cow. 639 146 Farmer V. Russell 1 B. & P. 296 317 Feltmakers v. Davis 1 B. & P. 101 146 Fennerv. Evans 1 T. R. 267 362 Fish v. Hutchinson 2 Wils. 94 325 Fitch v. Snedaker 38 N. Y. 248 494 Fitzgerald V. Dressier 7 C. B. (N. S.) 374 327 Fitzgerald's Case 2 Caines' R. 318 377 Fletcher v. Auburn, Ac, E. R. Co 25 Wend. 462 342 Forney v. Benedict 5 Barr 225 45 Foulkes V. Young 2 Dutcher 132 175 Fox V. Clifton 9 Bing. 115 256 V.Harding 7 Cush. 516 270 Francis v. Neave 3 B. & B. 26 178 V. Ocean Ins. Co 6 Cow. 404 37 v. Somerville Ins. Co 1 Dutcher 78 36 Frey v. Fond du Lac 24 Wis. 204 498 Fritz V. Thomas 1 Whart. 66 45 P'urman v. Parke 1 Zab. 310 493 Furnivall v. Coombes 5 M. & G. 736 255 TABLE OF CASES CITED. xlx a. Gardner v. Baillie 1 B. & P. 32 63 V. Newburgh 3 Johns. Ch. 162 , 343 Garforth V. Bradley 8 Ve8. 670 487 Garretson v. Kane 3 Dutcher 208 308 Garwood V. Waterford 3 Dutcher 347 358 Gilbert v. N. A. Ins. Co 23 Wend. 43 37 Glentworth V, Luther 21 Barb. 145 332 Glover v. Powell 2 Stockt. 211 343 Gompertz v. Bartlett 2 E. & B. 849 266 Goodall V. Dolley 1 T. K. 712 350 Goodman v. Chase 1 B. & Aid. 297 327 Gorrissen v. Perrin 4 C. & B. 681 154 Gossler v. Eagle, &c., Co 103 Mass. 331 267 Gould V.Brown 4 Halst. 163 175 Green v. Armstrong 1 Denio 551 140,258 Greene V. Briggs 1 Curt. C. C. 311 455 Griscom v. Gilmore 1 Harr. 105 205 Hadley V. Baxendale 9 Exch. 341 270 Haines v. Campion 3 Harr. 49 194 Hale V. Lawrence 1 Zah. 714 343 V. Eansom 4 C. B. 85 154 Hall V. Conder 2 C. B. (N. S.) 22 333 Hammon V. Huntley 4 Cow. 494 45 Hamon v. Lord Jermyn 1 Ld. Raym. 189 178 Hanness v. Smith 1 Zab. 496 361 Hann v. McCormick 1 South. 109 444 Hart v. West. K. R. Co 13 Mete. 100 217 Hathorne V. Hoboken 6 Vroom 247 493 Hawkins' Appeal 8 Am. L. R. 205 346 Hawkins v. County Comm'rs 2 Allen 254 186 V. Peraberton 51 N. Y. 204 265 Henshaw V. Robbing 9 Mete. 83 266 Hess V.Cole 3 Zab. 116 200 Hetfield v. Dow 3 Dutcher 440 146 Hicks v. Beaufort 4 Bing. N. C 229, 349 Hill v. Beach 1 Beas. 36 254 V.Wells 6 Pick. 105 401 Hoboken V. Gear 3 Dutcher 265..^ 147 Holdipp V. Otway 2 Saund. 106 332 Hooker v. N. H. & N. Co 15 Conn. 313 341 Hooksett V. Amoskeag M'f 'g Co 44 N. H. 106 342 Home V. Midland Railway Co L. R., 8 C. P. 134 271 Horter V. Carpenter 2 C. B. (N. S.) 56 333 XX TABLE OF CASES CITED. Howland v. Lounds 51 N. Y. 605 494 Hunt V. Bate Dyer 272 496 Inchbald v. Western Co 17 C. B. (N. S.) 733 333 In re Josephine 39 N. Y. 19 455 Mayor, &c., of New York 11 Johns. 77 59 William and Anthony Streets... 19 Wend. 680 58 Wintermitz 18 Pitt. L. J. 61 346 Insurance Co. v. Weide 11 Wall. 438 43 Jackson T. Robbins 16 Johns. 537 466 Jackson V. Steam Propeller 8 Am. L. Reg. 470 455 Jacobs V. Kolff. 2 Hilt. 133 330 Jaques v. Hulit 1 Harr. 38 176 Jeffrey V. Woolsey 5 Halst. 123 138 Johnson V. Beardsley 15 Johns. 3 45 V. Buck 6Vroom338 158 V.Foster 12 Mete. 167 146 V. Gilbert 4 Hill 178 326 -v. McDonald 9 M. & W. 600 154 V. Vail 1 McCarter423 488 Jones Y. Just L. R., 3 Q. B. 197 267 Josling v.Kingsford 13 C. B. (N. S.) 447 266 Keenan V. Missouri Ins. Co 12 Iowa 126 38 Kelner v. Baxter L. R., 2 C. P. 174 ^ 255 Kelsey V. Hibbs 13 Ohio (N. S) 340 327 Key port, &c., Co. v. Farmers' Trans. Co 3C. E. Gr. 13,511 551 Kimball v. Hamilton Ins. Co 8 Bosw. 495 37 Kloepping V. Stellmacher 6 C. E. Gr. 328 180 Kock V. Emerling 22 How. 69 332 Kutzmeyerv. Ennis 3 Dutcher 371 327 Laidler v. Burlinson 2 M. & W. 602 452 Lampleigh v. Brathwaite Hob. 105 495 Larason v. Lambert 7 Halst. 247 46 Larimer V. McLean Co 47 111. 36 498 Layton V. Davis 1 Pen n. 405 175 Leathe V. BuUard 8 Gray 545 123 Leroy v. Blauvelt « 1 Green 341 ^ 630 TABLE OF CASES CITED. xxi Levy V. Baillie 7 Bing. 349 42 Lexington, &c., E. R. Co. v. Apple- gate 8 Dana289 82 Lloyd V. Wyckoff. 6 Halst. 218 355 Lockhart v. Lichtenthaler 46 Pa. St. 152 228 Lockwood V. L^iek 8 C. B. (N. S.) 603 332 Lonie V. Tucker 4 C. & P. 15 268 Lord Say and Seale's Case 10 Mod. 40 441 Loring v. City of Boston 7 Mete. 411 494 Losee v. Losee 2 Hill 609 131 Lovatt V. Hamilton 5 M. & W. 639 154 Lovegrove v. Fisher 2 F. & F. 128 273 Lycoming Ins. Co. v. Updegraff. 40 Pa. St. 311 35 M. McBlair V. Gibbes 17 How. 232 319 McCluskey v. Provident Inst., &c 103 Mass. 301 489 McCracken V. Hayward 6 How. 608 277 McCullocb V. Dawes 9 D. & R. 385 45 McGear v. Woodruff. , 4 Vroom 213 458,524 McLaughlin v. Mutual Ins. Co 23 "Wend. 525 37 Madick V. Marshall 16 C. B. (N. S.) 387 256 Maize V. State 4 Ind. 342 74 Malins v. Freeman 4 Bing. (N. S.) 395 333 Marshall V. Lynn 6 M. & W. 109 157 Martin V. Carron 2 Dutcher 228 192 v.SomervilleWater Power Co., 3 Wall., Jr., 206 278 V. Steele 2 Penn. 718 175 Mason v. Haile 12 Wheat. 370 277 V. Harv«y 8 Exch. 819 35 V. Sainsbury 3 Doug. 61 217 Masterton v. Mayor of Brooklyn 7 Hill 61 270 Tklayorof Baltimore V. Proprietors, &c., 7 Md. 517 60 Jersey City V. Morris Canal, 1 Beas. 553 545 Lynn Eegis v. Payne 10 Rep. 120 230 Mellorv. Spateman 1 Saund. 340 231 Merchants' Ex. N. Bank v. Ware- house Co 49 N. Y. 641 245 Meriden Brit. Co. v. Zingsen 48 N. Y. 247 327 Merrittv. Millard 4 K eyes 208 319 Methodist Church v. Hoboken 4 Vroom 13 544 Midberry v. Collins 9 Johns. 345 64 Middleton v. Qnigley 7 Halst. 352 357 Millard v. Baldwin 3 Gray 484 146 Miller v. Doolittle 2 South. 845 373 Mixer v. Coburg 11 Mete. 559 267 Moffatt V. Laurie 15 C. B. 583 332 xxii TABLE OF CASES CITED. Moore V. Campbell 10 Exch. 323 \bT V. Magrath 1 Cowp. 9 440 Muigan V. Chester Co 56 Penna. St. 466 498 Morgan v. Moore 3 Gray 319 545 Morrell v. Buckley Spenc. 669 136 M. & E. R. R. Co. V. Central R. R. Co 2 Vroom 206 187 Morse V. Gould 1 Kern. 282 277 Mumma V. Potomac Co 8 Pet. 281 277 Murphy V. Chicago 29 111. 279 82. N. Nat. Bank of Whitehall v. Lamb 50 N. Y. 95 247 Nelson v. Boynton 3 Mete. 396 326 Newark Lime, &c., Co. v. Mayor 2 McCarter 64 547 New Jersey Express Co. v. Nichols... 4 Vroom 435 269 New Orleans V. United States 10 Pet. 717 547 Nicholson V. Chapman 2 H. Bi. 254 238 Nicol V. Godts 10 Exch. 191 266 North River Meadow Co. v. Shrews- bury Church 2 Zab. 424 391 Norton V. R. & S. Ins. Co 7 Cow. 645 35 O. Old Colony, &c., R. R. Co. v. Co. of Plymouth 14 Gray 156 5& Olden V. Hallett 2 South. 466 390 Ollivant V. Bayley 5 Q. B. 288 267 Olmsteadv. Niles 7 N. H. 522 140- O'Neil V. Buffalo Ins. Co 3 Comst. 122 37 Ordinary v. Hart 5 Halst. 64 17 V. Smith's Ex'rs 3 Green 92 20^ Osborne v. Tunis „ 1 Dutcher 634 192 Osgood V. Lewis 2 H. & Gill 495 266 Owen V. Warburton 1 N. R. 32G 26 Owners, &c., v. Mayor of Albany 15 Wend. 374 59 P. Page V. Hardin 8 B. Mon. 648 119 Palmer v. Grand Junction Railway... 4 M. & W. 749 413 Parker V. Commonwealth 6 Barr 507 74 V. Overman 18 How. 142 193 Parsell v. State 1 Vroom 530 401 Parsons V. Russell 11 Mich. 113 455 Paterson v. Society, &c 4 Zab. 385 74 Bank V. Hamilton 1 Green 159 530 TABLE^ OF CASES CITED. xxiii Paterson and Newark R. K. Ck). v. Stevens 5 Vroom 532 552 Patterson v. McVay 9 Watts 482 241 Peacock v. New York Ins. Co 1 Bosw. 338 40 Pearce v. Atwood 13 Mass. 324 398 Peck V. Freeholders of Essex 1 Zab. 656 397 V. Botsford 7 Conn. 172 45 People V. Lambier 5 Denio 9 548 V. Mayor of Brooklyn 4 Comst. 420 70 V. Morris 13 Wend 325 276 V. Sands 1 Johns. 78 555 V. Whaley 6 Cow. 661 127 Perrine V. Evans • 6 Vroom 221 372 V. Farr 2 Zab. 356 192 Phillips V. City of Hudson 2 Vroom 143 141, 192 Philliskirk v. Pluckwell 2 M. & S. 393 487 Pierrepontv. Barnard 5 Barb. 364 258 Planche V. Coburn ". 8 Bing. 14 333 Pocklington v. Hatton 8 Mod. 220... 63 Potts V. N. J. Arms and Ord. Co -. 2 C. E. Green 395 278 V. Trenton Water Power Co 1 Stockt. 592 278 Powell V. Horton 2 Bing. N. C. 668 266 Power T. Barl>an 4 Ad. & E. 473 268 Pratt V.Taylor Cro. Eliz. 61 487 Price V. N. J. R. R. Co 2 Vroom 229 147, 430 Prickett v. Badger 1 C. B. (N. S.) 296 332 Priest v. Citizens' Ins. Co 3 Allen 604 37 Princeton Turnpike v. Gulick 1 Harr. 167 147 Piimpelly V. Green Bay Co 13 Wall. 166 343 Putney v. Day .'. 6 N. H. 430 140 Q- Quidortv. Pergeaux 3 C. E. Green- 47 2 488 . Bariine and J. N. Dilts. The opinion of the court was delivered by Beasley, Chief Justice. The parties have agreed, in this case, upon certain facts, and from the way in which the legal points are presented, in the written briefs of counsel, it would seem that it was the expectation that the opinion of the court should be expressed on the case thus made, without regard to the pleadings. Looking at the matter in this view, it appears to be plain that the plaintiff is entitled to judgment. It is an admitted fact in the case, that the executor has failed to settle any final NOVEMBER TERM, 1872. 17 Ordinary v. Barcalow. account in the Orphans Court. Indeed, it is expressly stated that no account has ever been settled by him. 1 do not see how it is to be doubted, that this is a breach of the bond sued on. It has been entirely settled, by a series of decisions in this court, that the failure to render an account, in due form of law, is a breach of an administrator's bond, and may be assigned as such, in an action by the Ordinary. Dickerson V. Robinson et al., 1 Halst. 195; Ordinary v. Hart, 5 Halst. 64. It is true that it is one of the special conditions of the bond of an administrator, that he will make a "just and true account of his administration " within a specified time ; but this is no ground for discrimination, because the same duty is incumbent on the executor by force of the statute, and the condition of the bond in suit is, "that he shall truly and faithfully perform his duty as such executor, and the trust in him reposed." This stipulation bound him to settle his account according to law, in the Orphans Court, and the non-performance of such stipulation was a clear breach of the bond. Although this is the result of the facts as stated, such result is entirely aside from the issue raised on the pleadings. The breach of the bond, as it stands assigned on the record is, that the executor has failed to pay the widow her annuity. To this assignment of a breach, the defendant replies by an averment of general performance, which is not a proper course of pleading, as it raises an issue only by indirection. But the fault is one of form merely, and has not been excepted to, the question may, therefore, be considered with propriety, whether a failure to pay the widow her annuity can be set up as an infringement of the condition of this bond. I have failed to see how an allegation of an omission, or neglect to pay a legacy, will show, with sufficient certainty, a forfeiture of this bond. The simple facts that an executor has moneys in his hands, and that he refuses to pay a legatee the amount of his bequest, do not constitute, prima facie, a breach of duty. The creditors are to be paid before the 18 NEW JERSEY SUPREME COURT. Ordinary v. Barcalow, legatees, and the consequence is, that to show a default on the part of the executor, with respect to the claims of the latter, it must be made to appear that all just demands against the estate have been satisfied. The executor is put in the wrong^ only by proof of a settlement with creditors, and a residue of assets which he neglects or refuses to apply, according to the directions of the will. Nor can the question whether creditors have been paid, be tried in a suit on the bond to the Ordinary ; and in this respect such suit differs from one against the executor alone. The sum of money secured by the bond, is a fund in which all the creditors are interested, and consequently a legatee cannot found his right to a portion of this common fund on proof of the satisfaction of the debts due to creditors in a suit to which they are not parties. Creditors have the primary right in the fund, and it, on this account, would be unjust, and con- trary to fundamental rules, to dispose of any portion of such fund in their absence. The consequence is, that the question whether the legal demands against the estate have been liqui- dated, and whether anything remains to be distributed under the will, must be settled in the Orphans Court, in a proceeding in which all persons having an interest may be heard. Indeed it would often be impossible to determine such an inquiry in a procedure such as the present suit. If we suppose no account to have been rendered in the Orphans Court, or no rule to limit the time within which the claims of creditors were to be presented to have been taken, it would seem quite impracticable, in a suit on the bond to the Ordinary, to ascer- tain in any satisfactory mode, whether or not any part of the money secured by that instrument should be assigned to the payment of legacies. On tiie trial at law, in which the creditors cannot participate, how can the debts due to such creditors be fairly investigated. It is manifest that in such a proceeding, a legatee would often be enabled to present a probable case, showing seemingly the satisfaction of the debts due from the estate, but it would be unjust and contrary to the spirit of the statutes relating to the subject, to permit hini NOVEMBER TERM, 1872. 19 Ordinary v. Barcalow. to appropriate any part of these moneys which are not de- signed for his exclusive use on such an ex parte hearing. WheD the suit for the legacy is not upon the bond, but is brought by the legatee against the executor solely, the creditors have no interest, and on a pleaofpZene administravit, the conditioa of the estate may properly enough be inquired into, for iu such suit, the executor being singly concerned, the burtheu would be upon him to show a proper administration of the assets. But where the bond is prosecuted, and a legatee is- seeking to take to himself part of the moneys secured by it, in derogation of the rights of creditors, the issue whetiier there is a surplus after the payment of debts, affects others besides the parties to the suit. The creditors, I think, have a right to insist that the bond, which is their security, shall not be put in suit by a party who cannot show in any legal mode that he has any interest in it, or has suffered anything by reason of its breach. The remedy of the legatee is simple, easy, and eflFectual. All he has to do is to compel the executor to an adjustment of the affairs of the estate before the proper tribunal, and after the balance has been struck, if a surplus remains, and his claim is not paid, to resort to a suit on the bond. With a proceeding so ready to his hand, I do not think he should have a license to call upon a court of law to attempt to investigate and adjudge as to the condition of an un- settled estate, with respect to assets. The inconvenience of such a course is enough to condemn it. Besides, it would be some- times nugatory, as for example, where a surplus of assets should be made to appear in the action at law, and on the subsequent settlement of the accounts in the Orphans Court, under the order of the Ordinary, in the mode hereinafter mentioned, a deficit of assets should be shown. In such event, the latter finding would prevail, and would evince the judgment in the suit at law to have proceeded on a false ground. In all cases of unsettled administrations, there must be a reckoning before the Orphans Court, before the moneys secured by the bond can be dispensed, and it seems therefore naturally to follow, that a party should not have is. 20 NEW JERSEY SUPREME COURT. Ordinary v. Barcalow. iu his power to enforce a double settlement, the one in the common law court, in order to show a non-performance of the conditions of the bond, and the other in the Orphans Court, for the purpose of a distribution of the sura recovered. For these reasons, I think that where a legatee sues, as in the present instance, he is bound to show, when he relies for a breach on a failure to pay the money due to himself, that on a settlement in the Orphans Court, a surplus of assets was exhibited. When an executor has failed to have his final account settled, that fact, as has been already observed, is suf- ficient to constitute a breach. The principle which forbids the legatee from alleging, as a breach of the present bond, the existence of assets, and the non-payment of his legacy, is similar to that which prevents one of the next of kin of an intestate from relying on similar averments with respect to his distributive share. In both cases, there are other facts necessary to constitute a breach of duty in the personal representative. In the one case, the executor is not liable to the legatee, unless it has been decreed that there is a surplus in his hands after the payment of debts ; in the other, the administrator's liability depends on the existence of a decree for distribution. That non-payment of a distributive share in the absence of a judicial order directing it, will not operate as a breach of an administrator's bond, is settled by the decision in the case of The Ordinary V. Smith's Executors, 3 Green 92. I observe, in the brief of counsel, it is insisted that a legatee cannot sue on the bond, until there has been adecree of the Orphans Court for distribution. But this is clearly untenable ; as in case of an executorship, there can be no such decree. The will itself directs how the surplus, after a settle- ment of the debts, is to be disposed of, and the Orplians Court has no capacity to construe, for this purpose, such instruments. A decree of that character might mislead the executor or other persons, but it could have no legal effect. The second question raised iu the case is, whether the NOVEMBER TERM, 1872. 21 Miller v. Diingan. damages, sustained by the legatee, can be assessed at law in the present suit. This does not seem to be an open question. By the express provision of the thirteenth section of the act which authorizes the bond to be taken of the executor, it is directed that the moneys recovered " shall be applied towards making good the damages sustained by the non-performing the con- ditions thereof, in such manner as the Ordinary shall, by his sentence or decree, direct." Nix. Dig. 652.* It thus appears, that these bonds are put upon the same footing with respect to the mode of the distribution of the moneys secured by them with bonds given by administrators. There are several cases which decide most conclusively, that in suits on bonds of the last named kind, there can be no assessment of dam- ages at law. The leading case is that of The Ordinary v. Mart, 5 Halst. 65. The course prescribed in these authorities is, when a breach has been shown, to take judgment for the penalty. The Ordinary will control this judgment, and dis- pense the money to the parties entitled to it, in the order and in the measure prescribed by law. The plaintiff is entitled to judgment, on the ground that the executor has not settled his accounts in the Orphans "Court. The pleadings can be remodeled, so as to raise up the proper issue. MILLER V. DUNGAN. 1. A judgment obtained in a proceeding, by attachment against a non- resident debtor, who does not appear to such suit, will not form a legal foundation for an action. 2. The proceeding is in rem, and has no effect except with respect to the property attached. On demurrer to pleas. Argued at June Term, 1872, before Beasley, Chief Jus- tice, and Justices Bedle, Woodhull and Scudder. *£ey.,jj. 788, I 164. 22 NEW JERSEY SUPREME COURT. Miller v. Dungan. For the plaintiff, F. F. WeatcoU. For the defendant, F. Kingman. The opinion of the court was delivered by Beasley, Chief Justice. This case comes before the court on demurrer. The declaration is founded on a judgment obtained by the plaintiff against the defendant in this court. To this the first plea is nul del record, upon which issue has been joined, and it is the second and third pleas, to which objection is taken. Each of these pleas has the same aspect, and is intended to give rise to the same question, which is, whether an action will lie on a judgment obtained on proceedings commenced by an attachment under the act for the relief of creditors against absconding and absent debtors. A preliminary point, however, is taken on the side of the plaintiff, that these pleas are not sufficiently definite in their statements, and that they do not present for consideration the question just expressed. The objection is, that although it is averred that the judgment in controversy is founded on a proceeding begun by an attachment, it is not shown that the defendant, in the course of such proceeding, did not appear, as under the statute he has the privilege of doing, in which case the judgment would be in personam, and not in rem. This exception would prevail, if well founded in fact; but I think there are statements in the first of the pleas demurred to, from which it must be inferred, conclusively, that there was no appearance in the attachment suit. The allegations thus relied on, are those which succeed the averment that the suit was under the attachment act, and which are to the effect that the auditors should make " sale and assurance of the goods and chattels, lands and tenements of the defendant, which were attached." This statement necessarily excludes the idea that the defendant appeared to the action, and makes it sufficiently certain that the judgment is in rem, and not in 'personam. I think the plea, in point of substance, is sufficient. NOVEMBER TERM, 1872. 2a Miller v. Dungan. And also, with regard to the general question involved, I think the defendant has the law in his favor. That a judg- ment in attachment, where there is no appearance, has no effect except upon the property attached, appears to me en- tirely clear. The proceeding is altogether statutory, and has no other or greater effect than such as has been, either in express terras or by reasonable intendment, given to it by the legislative will. The judgment resulting from the procedure is subject to the same rule, for it is altogether a statutory, and in no sense a common law judgment. The contention that the judgment is to have the force of one against the person, is not consistent with common justice, or with the several pro- visions of the statute in its general spirit. A law whicli should provide that all the creditors of a non-resident, upon finding property in this state, might come in and establish, in a conclusive form, their claims, no matter how large in amount, would not be likely to receive the approval of any just mind. Such is not the effect of the statute in question. Not one of its provisions has such an appearance. It is clear, and has been so held, that its operation is confined to the prop- erty on which the writ of attachment is actually levied, or which is seized or taken by the auditors under'the special pro- visions of the law. The case referred to is that of Tomlinson V. Stiles, 4 Dutchei' 201, in which it was decided that no title passed under a sale by the auditors of property which had not been levied on by the writ. This doctrine was affirmed in the same case by the Court of Errors. 5 Butcher 426. In his opinion, read in the Supreme Court, Chief Justice Green remarks, " the proceeding is in rem, and operates only upon the pi'operty attached." In this case the judgment in both courts is founded on the idea that the attachment proceeding is entirely inoperative beyond the bound to which it is made a lien by the statute. But if there was any doubt on this subject arising from the general provisions of this law, such doubt would be entirely dispelled by the contents of the forty-seventh section,* requir- *Bev., p. 52, ? 56. 24 NEW JERSEY SUPREME COURT. Hiitchiuson ads. Consumers Coal Co. ing the plaintiff iu attachment, and the other creditors, to exe- cute a refunding bond, before they are entitled to a dividend. The condition of such bond is, that the obligor "shall appear to any suit that may be brought against him by the said de- fendant, within one year next after the date of the said bond, and shall pay unto such defendant any sum of money which, by the judgment or decree of the court, shall appear to have been received by him, and not due or owing, with costs of suit." It seems to me that nothing can be clearer than the intention here manifested, that the proceeding is in no sense to be clothed with the qualities of a judgment at common law, for the very money paid by force of it may be recovered back, if it can be shown that the claim of the creditor was not just. If the judgment be not conclusive, with respect to the money actually realized under it, it does not appear to be tenable to claim that it is conclusive as to the moneys embraced in it, but not levied. In my estimation, the force of a judgment in attachment is spent by a sale of the property attached, and consequently, such judgment cannot form the basis of an action at law. This re- sult makes the second plea a good bar to this suit, and as the demurrer is to both pleas, the defendant is entitled to judgment. Cited in Schenck r. Griffin, 9 Vr. 462. CHAELES HUTCHINSON ads. THE CONSUMERS COAL CO. 1. Affidavits of jurors are admissible in their own exculpation, and to sustain the verdict; but when offered for the purpose of contradicting or destroying the verdict, they have been regarded always by this court as against the policy of the law, and on that ground have been invariably rejected. 2. Applications to set aside verdicts for the misbehavior of jurors are addressed to the sound legal discretion of the court, and cannot ordi- narily be brought to the test of any fixed and definite rule. Each application must be determined mainly upon its own peculiar facts and circumstances, and should be granted or refused with a view, not so much to the attainment of exact justice in the particular case, as to the ultimate effect of the decision upon the administration of justice in general. NOVEMBER TERM, 1872. 25 Hutchinson ads. Consumers Coal Co. Where both parties are innocent, a tainted verdict will, in general, be set aside without hesitation, on the application of either party. But this will not be done on the application of one who has attempted directly or indirectly, to influence the jury by improper means, or ■who has encouraged, of prompted, or knowingly permitted such an attempt, or who rests under any just suspicion of having done so. The lacts in this case, pointing suspiciously to a corrupt arrangement between a friend of the defendant and one of the jurors, but nothing appearing to cast suspicion on the defendant — Held, that on his ap- plication, the verdict should be set aside. On rule to show cause. Argued at June Term, 1872, before Beaslet, Chief Jus- tice, and Justices Bedle, Woodhull and Scudder. For the rule, C. 8. Titsworth and Mr. Payne, of Pa. Contra, C. Parker and T. Runyon. The opinion of the court was delivered by. Woodhull, J. So far as the depositions of the four jurors relate to what took place in the jury room after the jury had retired to consider of their verdict, and so far as they are intended to show or to explain the reasons, or the motives of the jurors, or any of them, for giving or consent- ing to the verdict, they cannot be received as evidence to support this application. It has been held by this court {Kennedy v. Kennedy, 3 Harr. 451,) that the affidavits of jurors are admissible in their own exculpation, and to sustain the verdict; but when offered for the purpose of contradicting or destroying the verdict, they have been regarded always by this court as against the policy of the law, and on that ground have been invariably rejected. Brewster v. Thompson, Coxe 32; Bandall v. Grover, lb. 151; Schench v. Stevenson, 1 Penn. 387 ; JDen v. McAllister, 2 Halst. 46 ; ClarJc v. Read, 2 South. 486 ; Deacon v. Shreve, 2 Zab. 176. And although there arft many cases to the contrary, tlie great weight of authority in this country and in England, ap- pears to support the doctrine that the testimony of jurors, to 26 NEW JERSEY SUPREME COURT. Hutchinson ads. Consumers Coal Co. impeach their own verdict, should be excluded, on grounds of public policy; because it tends to defeat their solemn act, where third persons are interested ; because its admission would open a door to tamper witii jurymen, after they had given their verdict ; because it might be the means in the hands of a dissatisfied juror to destroy a verdict at any time after he had assented to it ; and because of its tendency to unsettle verdicts in general. Willing v. Swasey, 1 Browne 123; Owen v. Warburton, 1 N. B. 326; Hilliard on New Trials, ch. 10, § 63; 1 Gr. & Wat. on N. T., 111-115, -and cases cited. Throwing out of the account such parts of the depositions read on the argument as fall within the operation of the rule just stated, we have remaining, as the basis of the present application, the single ground of the misbehavior of the juror McLaughlin during the progress of the trial, and before the jury retired to consider of their verdict. Applications of this character being always addressed to tJie sound legal discretion of the court, cannot ordinarily be brought to the test of any fixed and definite rule. Each ap- plication must be determined mainly upon its own peculiar facts and circumstances, and should be granted or refused with a view, not so much to the attainment of exact justice in the particular case, as to the ultimate effect of the decision upon the administration of justice in general. This last consideration will be found to have exerted, very generally, a controlling influsnce in determining the action of courts with reference to tainted verdicts. The facts in regard to the conduct of the juror McLaugh- lin, which are either undisputed or clearly established by the testimony, appear to be these : one day, during tiie progress of the trial, he pointed out Robert Love to the foreman of* the jury, saying, "I believe that little curly-headed fellow is worth a million of dollars." On the Saturday week before the verdict was rendered, he was heard by the foreman to inquire where he could raise ^500, saying that he must get it. The same Saturday he went with one Kernan, a relative of NOVEMBER TERM, 1872. 27 Hutchinson ads. Consumers Coal Co. McLaughlin's wife, and a stranger to both of the parties to this suit, to the lodging place of Robert Love, to whom he was there introduced by Kernan, and with whom he had shortly afterwards a private interview of some twenty minutes, during which this case, the probable result of the trial, and the influences by which that result might be affected, formed the chief topic of conversation. Before sep- arating on that occasion, McLaughlin gave Love his address, with an invitation to over to and see him the following Monday. On the day last named, they met again in the neighborhood of the court-house, and the Thursday following they were observed conversing together in very low tones, both of them appearing to be much confused when the witness, an acquaintance of McLaughlin's, asked him in a jocular way, the ]}^^^^ of coa?. The same day they were drinking to- gether at different saloons, treating each other, and having some further talk about the case — this, it must be remem- bered, was Thursday, February 22d. The day before that, February 21st, and again February 23d, McLaughlin in- formed the court that he had been corruptly approached by Love, who had endeavored to persuade him to use his influ- ence with the other jurors to procure a light verdict against the defendant. The same information, in substance, was communicated to a fellow juror in the case, either on the 21st or tlie 23d of February, McLaughlin telling him that he was going before the judge to make an affidavit. The greater part of these facts appear substantially in the statements of both McLaughlin and Love. The differences between them seem to result mainly from an attempt on the i)art of each to exculpate himself, and throw the blame over on the other. Neither is willing to acknowledge Kernan as his agent, nor will either admit that he made the first advance to the other. It can hardly be regarded, however, as of much importance for the purposes of this application, which one of these two men has incurred the greater guilt, which of them was the tempter, and which the tempted. Tlie theory of the defendant's case, as presented by his 28 NEW JERSEY SUPREME COURT. Hutchinson ads. Consumers Coal Co. counsel, and sustained by the testimony of Love, is, that the corrupt proposition originated with the juror, and was rejected without being even communicated to the defendant; that the disappointed juror, baffled in his fraudulent attempt to sell himself to the defendant, forthwith turned accuser,, representing to his fellow-jurors tliat ct)rrnpt advances had been made to him, and money actually offered, in behalf of the defendant ; and that so gross an impeachment of the integrity of the defendant, could not, and in fact did not, fail to damage his case in the estimation of the jury, the result being a much larger verdict against him than would other- wise have been rendered. McLaughlin, on the other hand, wholly repudiates this version of the transaction, representing that on Saturday, February 17th, on his way home from court, he was over- hauled by Keruan, and asked to go to New York on some business, Kernan declining to tell him what the business was ; that he accompanied Kernan accordingly to the Merchants Hotel, and shortly after arriving there, was by him introduced to Mr. Love, who invited him up stairs to a private room, inquired whether he was a juror in this case, what the pros- pect was, what influence he had with the jury, and what could be done to procure a light verdict against the defendant. Without undertaking to decide upon the credibility of these witnesses, or to determine the relative truthfulness of their conflicting statements, we do not hesitate to say, that neither McLaughlin nor Love has succeeded in giving any satisfactory explanation of his conduct in connection with this case; and that the facts admitted or proved, point most suspiciously to a corrupt projiosition made by one of them — no matter which one — and entertained or encouraged by the other. It cannot make much difference, whether the juror was offering to sell himself, or was only willing to be bought. In either case he was not fit to be a juror. It is not possible to feel any degree of confidence in the fairness of a verdict, which the vote and influence of such a juror have helped to make. A verdict, so tainted with sus- NOVEMBER TERM, 1872. 29 * Jones V. Mechanics Fire Insurance Co. picion, is seldom, if ever, allowed to stand, unless the party seeking to set it aside is, himself, in some way responsible for the taint of which he complains. Where both parties are innocent, a tainted verdict will, in general, be set aside without hesitation, on the application of either party. But the same principles of public policy, which require u» to set aside the verdict in such a case, imperatively forbid our doing it on the application of one who has attempted, directly or indirectly, to influence the jury by improper means, or who* has encouraged or prompted, or knowingly permitted such an attempt, or even rests under any just suspicion of having done so. After a very careful examination of all the facts which appear in this case — an examination all the more careful on account of the relations existing between the defendant and Mr. Love — we find no just ground for holding the defendant responsible for the conduct of Mr. Love towards the juror, McLaughlin. Rule to show cause made absolute. SAMUEL JONES v. THE MECHANICS FIRE INSURANCE COMPANY. .. To comply with the condition of a fire policy, requiring as particular an account of the loss and damage as the nature of the case will admit,, where all the books, invoices and vouchers are preserved, the insured must give, in his preliminary proofs, full and exact particulars of his- loss. i. If the insurers intend to insist upon defects in the preliminary proofs, they should notify the policy holder, that he may amend them in time, if he can. If they are silent, or object on other grounds, it is evidence of waiver, L If, after a reasonable time to examine the proofs presented and re- ceived, the insurers do not object to them, but are silent until their time for payment has expired, or is about to expire, such delay shall be evidence from which the jury may infer a waiver of the defects. Vol. VII. 2 30 NEW JERSEY SUPREME COURT. Jones V. Mechanics Fire Insurance Co. ■4. Fraud and false swearing will avoid the policy ; but mere mistakes in stating facts, which do not, in themselves, annul its conditions, and do not appear to be wilful misrepresentations, will not defeat the action. •5. The ledger and cash book of the insured may, in some cases, be re- ceived in evidence. €. Questions not directly relevant to the issue, on cross-examination, are within the discretion of the judge, to prevent an undue expansion of the case by collateral facts. 7. A witness, in the same business in anothei piace, and where the con- ditions are unlike, cannot be asked the proportion between his stock and sales, to raise a presumption of fraudulent statement by the plain- tiff. {Insurance Co. v. Weide, 11 Wall. 438, distinguished.) On motion for new trial. This action is founded on two certain policies of insurance, and the several renewals thereof, issued by the defendants to Tthe plaintiff; one dated April 16th, 1866, for $3000; the other dated January 24tli, 1867, for $1500. Both are on the ^plaintiff's stock of merchandise, consisting of groceries and diquors of all kinds, and all such articles as are usually kept an a wholesale and retail grocery and liquor store, in his store .at Morristown. The policies are in the usual form, and, in the body of teach, the company promise and agree to make good unto the insured all such loss or damage, not exceeding in amount the «um insured, as shall happen by fire to the property within ithe term of insurance; the said loss or damage to be esti- mated according to the actual cash value of the said property at the time the same shall happen ; and to be j^aid within sixty days after due notice and proof thereof made by the insured, in conformity to the conditions annexed to the policy, unless the property be replaced, or the company have given notice to lebuild or repair the damaged premises, &c. The store, with nearly all the goods of the plaintiff con- tained therein, was destroyed by fire March 2d, 1871. The policies were continued, by renewals, beyond the time of the fire ; a notice of loss, and account of the loss and damage, NOVEMBER TERM, 1872. 31 Jones V. Mechanics Fire Insurance Co. accompanied with the oath of the plaintiflP, were served on the defendants. The total loss claimed by this statement, was $46,510.74. Total insurance, in different companies, $28,000. Action was brought by the plaintiff, July 25th, 1871, for the amounts of tiie two above named policies of the defendants, and verdict rendered for the sums therein named, with interest. Upon certain rulings of the justice at the circuit, and exceptions to this charge, and because the verdict is alleged to be against the weight of evidence, and unjust, a motion for a new trial was made. The further particulars will appear in the opinion of the court. Argued at June Term, 1872, before Beasley, Chief Jus- lice, and Justices Bedle, ^yooDHULL and Scudder. For the plaintiff, /. Vanatta. For the defendants, C. Parker and B. Williamson. The opinion of the court was delivered by Scudder, J. It has been often decided that such policies of insurance are contracts of indemnity, in case of loss by fire, upon compliance with the terms and conditions therein contained. They are therefore to be construed as other con- tracts between competent parties, to fulfill their intentions as they have expressed them in writing. In this case, it is first objected that the court erred in refusing to nonsuit the plaintiff, because due notice and proof of the loss, in conformity to the conditions annexed to the policies, were not made sixty days prior to bringing the action. Such proof and notice are, by the terms of the policies, conditions precedent, and the company have sixty days to pay the loss, after notice and proof are made. By Article 9, of the policies, " Persons sustaining loss or damage by fire, shall forthwith give notice thereof in writing to the company," &c. Notice was given to the defendants 32 NEW JERSEY SUPREME COURT. Jones V. Mechanics Fire Insnrance Co. by Edwin Ross, an insurance agent, on the day after the fire^ and they have not objected to the form or the time of this notice at the trial of the cause. In tlie same article it is stipulated that, "as soon as possi- ble, they shall deliver as particular an account of the loss and damage as the nature of the case will admit, signed with their own hands ; and they shall accompany the same with their oath or affirmation, declaring the said account to be just and true." An account of the loss and damage, verified by the oath of the plaintiff, was received by the defendants, April 3d, 1871^ The time seems longer than would be necessary, but mean- while, the adjusting agent of the defendants examined the premises, had conversations with the plaintiff, and saw his books May 16th, in the office of plaintiff's attorney. These books appear to have been the day-book, ledger and cash- book. From these, an account of cash sales and credits was taken off. The blotter was not shown. The inventory made by the plaintiff in April, 1870, which is copied in his proof of loss served on the defendants April 3d, 1871, was shown to Colwel!, who represented one of the other companies, March 6th, 1871, but does not appear to have been seen by Winterton, the agent of defendants. These agents were,, however, examining the facts together. After the examina- tion of the books, May 24th, 1871, A. J. Winterton, special agent to adjust for the several insurance companies having policies on plaintiff's goods, addressed a letter to him, by which he was notified that papers purporting to be proofs of loss, and served on said companies, having reference to the fire which occurred March 2d, 1871, which were served in the month of April next succeeding, were, upon careful exam- ination, found to be insufficient and unsatisfactory, in that — 1st. The account of his purchases was without dates, and was not in detail, and did not furnish, as required, " a par- ticular account " of the loss. 2d. The account of goods sold for cash and credit, was largely below the real amount shown by his books of account. < NOVEMBER TERM, 1872. 33 Jones V. Mechanics Fire Insurance Co. It was further stated, " that by the above, the insurance com- panies waive no rights under their several policies of insur- ance, and modify no objections to your claim for loss that might arise from other matters, but first wish your proof amended and completed, as required." This letter is a distinct objection to the preliminary proof of loss, because it does not give a particular account, and the purchases given are without date, and not in detail. It does not allege that the proofs were not made in time, nor has this been insisted upon at the trial. Upon looking at the prelim- inary proofs delivered to the defendants, April 3d, 1871, we find them to consist, first, of the certificate of the nearest notary, pursuant to the condition of the policies; second, •Schedule A, an inventory of goods, April, 1870, belonging to Samuel Jones, Morristown, N. J. This is itemized into named articles, quantities, and prices carried out, and amount- ing in all to $43,241.00; third. Schedule B, goods bought by Samuel Jones from April 1st, 1870, to March, 1871. In this, the names of the parties from whom the purchases were made, and the amounts purchased of each, are given ; but there are no dates, and the articles purchased are not named. Thus: "Geo. W. Elder & Co., $1386.96," and others follow- ing in like form. In several, the articles are given, with amounts, but no names; in others, the places where purchased. The amount foots up $21,961.39. Schedule C contains the goods saved from the fire, amounting to $465.75 ; Schedule D, amount of inventory taken April, 1870, $43,241.00; goods bought since April 1st, 1870, to March, 1871, $21,961.39— total, $65,202.39. Deducting goods sold from April, 1870, to March, 1871, $22,782.37; less twenty per cent, profits, $4556.47— $18,225.90; balance, $46,976.47; goods saved from fire, $465.75 — leaving a total loss of $46,510.74. Schedule E shows the policies of insurance on the goods of plaintiff. The objections in the letter of May 24th are to Schedule B and the amount of sales given in Schedule D. The first is •alleged to be incomplete ; and the second, false. 34 NEW JERSEY SUPREME COURT. Jones V. Mechanics Fire Insurance Co. The plaintiff returned answer to this letter, served June 6th, 1871, that without admitting there was any insufficiency in the proofs of loss, but to give all information in his power,. he furnished tlie particulars, so far as he was able, of the bills of purchases mentioned in Schedule B, and also admitted that the balance of sales on Schedule D should be $21,025.46,, instead of $18,225.90. The other particulars are copies of invoices, stating also additional purchases, which were omitted in the original proof. July 20th, 1871, A. J. Winterton, special agent for the several insurance companies, by letter to the plaintiff, made a formal demand upon him for a written elimination of the inventory of April, 1870, as furnished in his several proofs of loss, showing what property therein enumerated he claimed was inventoried by the U. S. Government, and what property therein enumerated he claimed was not inventoried by the U. S. Government, at the time of the seizure made; also, a demand on him for a written statement, giving the location and quantities and quality of stock on the premises at the- time of the fire. To this formal demand, the plaintiff, by his counsel, on July 21st, 1871, answered, refusing to comply. July 25th, 1871, this action was brought to recover the amounts insured by the defendants. The seizure referred to- in the last communication was made by the U. S. Internal Revenue officers, in November, 1869, for alleged violation of the revenue laws, and was continued until March, 1870. The inventory named was that made by these officers at the time of seizure. These facts must be stated and considered in their order, to determine whether the action was prematurely brought. The defendants insist that the action could not be brought until sixty days had elapsed after June 6th, when the addi- tional particulars were given. This depends, in the first place, upon the sufficiency of the proof of loss served April 3d, 1871. It must appear to be. NOVEMBER PERM, 1872. 35 Jones V. Mechanics Fire Insurance Co. as particular an account of the loss and damage as the nature- of the case will admit. This has often been characterized as a harsh rule, but with the modification that the account shall only be as particular as the nature of the case will admit; this is hardly just. It is, however, the contract between the parties, and in the many cases to be found in the books, the courts have stead- fastly held the insured to a compliance with it. In cases where the fire has not only consumed the goods insured, but all books and vouchers from which an account could be made, the insured has not been held to do what was vain and impossible, but only to such performance as the nature of the case would admit. Norton v. M. & 8. Ins. Co.^ 7 Cow. 645; Mason v. Harvey, 8 Ex. 819; Roper v. Len~ don, 1 E. & E. 825; (102 E. C. L.) In the present case, the plaintiff's books were saved ; he had many of the invoices and vouchers for his purchases be- t state in his first proofs the items of his several purchases, so far as he had or could obtain vouchers for the same, as was done in the subsequent proofs. The sales being entered each day as cash, I think are sufficiently specified in the gross amounts, as there could be no object in giving the amount of each day's sales, if it were possible so to do. In Lycoming County Ijs. Co. v. Updegraff, 40 Penna. 311,. the gross amount of the inventory at the close of the year,, and of purchases up to the date of loss, were taken from the books, and stated together as a total sum. This was held to be insufficient. This case is different, in containing a par- 36 NEW JERSEY SUPREME COURT. Jones V. Mechanics Fire Insurance Co. ticular account of the inventory, and partial statement of the purchases carried out in separate sum,s, but still the full par- ticulars, which were important for the defendants to know, and which the plaintiff had it in his power to give, were not ren- dered. A detailed list of the articles lost, where this is practicable, is the intent of the parties, and courts should only relax the requirement where the nature of the case does not admit of guch particularity. Catlin v. Springfield Fire Ins. Co., 1 Sumner C. C. 434. The plaintiff however claims that if this be so, the defendants by their acts have waived a strict com- pliance with this condition. In many cases this subject of waiver is considered, and different conclusions have been reached by the courts. In Roumage v. Mech. Ins. Co., 1 Gh-een 110, the court held where the certificate of the nearest clergyman was defective in not setting out the amount of the loss, and the! company resolved that they would not pay the claim made by the insured, or any part thereof, believing that it was founded in an attempt to defraud the company; that this resolution, and the silence of the company in regard to the defect in the cer- tificate, was not a waiver of such defect. Other cases have held that the company will be considered as waiving the informality in the notice, if, when the notice is given, they do not object to the form of it, but refuse to pay on other distmct grounds. Schenck v. Mercer Jns. Co., 4l Zah. 447 ; Francis v. Somerville Ins. Co., 1 Dutcher 78. But tjpoii the point that the defect is not waived by receiving it without objection, there has been no other decision in this court until recently. Upon reading the opinions in that case, it will appear that the court differed, and reluctantly yielded to the great authority of Ciiief Justice Marshall, in Columbian Ins. Co. V. Lawrence, 2 Peters 25. But this case, upon rehearing, (10 Pet. 507,) was virtually overruled, and again in Tayloe V. Merchants Ins. Co., 9 How. 404, most decidedly disap- proved. NOVEMBER TERM, 1872. 37 Jones V. Mechanics Fire Insurance Co. The first two cases are commented upon by Chancellor Walworth, in ^tna Fire Ins. Co. v. Tyler, 16 Wend. 401, and the good sense of the rule, as held in the New York courts, was vindicated. This is stated in his language as follows: "Good faith on the part of the underwriters, in such a case, requires that if they mean to insist upon a mere formal defect of this kind in the preliminary proofs, they should apprise the assured that they consider the same defect- ive in that particular, or to put their refusal to pay upon that ground as well as others, so as to give him an opportunity to supply the defect before it should be too late ; or if he neg- lects so to do, then silence should be held a waiver of such defect in the preliminary proofs, so that the same shall be considered as having been duly made according to the con- ditions of the policy." These cases, as in Roumage v. Mechanics Ins. Co., relate to the fact of the preliminary proofs requiring the certificate of loss from the nearest magistrate; but other cases have extended the doctrine to the clause requiring the insured to give notice of the loss forthwith, and to render a partic- ular account within a limited time, and other preliminary proofs. McLaughlin v. Mut. Iiis. Co., 23 Wmd. 525 ; Gil- bert V. N. A. Ins. Co., 23 Wend. 43 ; Norton v. R. & S. Ins. Co., 7 Cow. 645 ; Francis v. Ocean Ins. Co., 6 Coio. 404 ; Cornell v. Le Hoy, 9 Wend. 163; Bodle v. Chenango Ins, €o., 2 Corns. 53; O'Neil v. Buffalo Bis. Co., 3 Corns. 122; Burnstead v. Dividend Ins. Co., 2 Kern. 81 ; Kimball v. Ham- ilton Ins. Co., 8 Bosw. 495 ; Underhill v. Agawam Ins. Co., 6 Cush. 440 ; Brewer v. Chelsea Ins. Co., 14 Gray 203 ; AngeWs L. & F. Ins. 244, &c. In Priest v. Citizens Ins. Co., 3 Alleji 604, the court in stating the distinction between waivers of matter of form and substance, say approvingly : " It is said that stipulations as to the preliminary proofs do not touch the substance or essence of the contract ; but relate only to the form or mode in which the liability of the company shall be ascertained and proved. Besides, such preliminary proofs must necessarily be submit- 38 NEW JERSEY SUPREME COURT. Jones V. Mechanics Fire Insurance Co. ted to tlie officers of the corporation, wlio must pass on its sufficiency, and it therefore comes within the scope of their authority to say whetlier proof of the losses is sufficient. It may be added that in ascertaining and settling losses, they frequently act upon personal investigations by themselves or their agentv=, and thus obtain knowledge that renders the preliminary proofs wholly immaterial." It was held there that there was evidence to go to the jury, showing not only an implied but an express waiver. The case of Shawmut Co. v. Peoples Ins. Co., 12 Gray 535, denies the authority of a special agent to waive these proofs, but admits that the president of the company may. But as the ruling of the court in that case may be thought to be against the principle above stated, it is worthy of notice that it cites 2 Pet. 53, as an authority upon which it is based. So it will be found that courts of other states that have held differently have followed this case. See Beatty v. Lycoming Ins. Co., 66 Penn. 9 ; Keenan v. Missouri Ins. Co., 12 Iowa 126. The conditions of insurance policies are numerous, varied and minute in details. These are doubtless essential for their protection against fraud, and for their complete security ; but they are perplexing to persons not familiar with their requirements and construction. To prevent sharp practice and unfair advantage from a superior knowledge, it seems most just, and without imposing an undue burden on the insurance companies, to hold that when the preliminary proofs are received, if there are defects, they shall so state to the insured, that he may amend them in time, if they can be amended. If they intend to deal fairly with an honest loss, why should they not so state? If they believe the claim of loss is a fraud, let them so state, and contest it on that ground. The interests involved are so great, so many per- sons hold all they possess dependent on these securities, that both insurers and insured should be held to the utmost good faith ; and such has been the manifest purpose of the courts. A recent case in our court, Basch v. Humboldt Ins. Co.y NOVEMBER TERM, 1872. 39- Jones V. Mechanics Fire Insurance Co. 6 Vroom 429, has settled this construction, so far as the- question was involved, in the determination of that case. In the present case there was silence on the part of the- iusurers up to a certain time, and then they objected to the particulars given in one of the schedules, which were imperfect. This raises a further question, whether the insurer may wait until his sixty days credit for payment is about to expire, and then object, and upon new particulars being given, claim an extension of sixty days longer, and so continue to prolong the payment, from time to time, as new defects may be discovered. If he may do it once, he may do it again and often. To prevent such abuse of this right to object, which the insurer undoubtedly has, it must be held that if, after a reasonable time to examine the preliminary proofs presented and received, the insurer does not object,, but is silent until his time for payment has expired, or is about to expire, such delay shall be construed as evidence from which the jury may infer a waiver of the defects. The objection comes too late, because the insurer obtains thereby an unfair advantage, which would be obviated by prompt action on his part. If he must object, as we have already held, he should do it promptly, otherwise he would have the advantage of his own wrong in the delay of pa)'ment. This element of delay does not appear in other cases which seem to maintain a contrary doctrine. Thus in Shawmut Co. v. Peoples Ins. Co., 12 Gray 539, it is said "the defendant's president, far from assuming to waive any of the conditions of the policy, or to accept defective proofs of loss as sufficient, took extraordinary pains to give the plaintiffs notice of the defects, and ample opportunity to cure them. Immediately he gave the notice when the first statement was received. Upon receiving additional papers, he informed him they were not full enough, and a few days later delivered the papers for correction, calling his attention especially to the want of any statement of the plaintiff''s interest. These were peculiar 40 NEW JERSEY SUPREME COURT. Jones V. Mechanics Fire Insurance Co. grounds for requiring information on this point." And so he promptly objected. This differs from the present case. In Kimball v. Hamilton Ins. Co., 8 Bostv, 495, the prelim- inary proofs were handed in, the president of the company looked over the papers, and told the insured, " these are not proofs, and referred him to his policy for information." The insured was promptly warned of the defects. In Peacock v. New York Ins. Co., 1 Bosw. 338, the court «ays : " The defendants are allowed sixty days after the pre- liminary proofs are furnished, before they can be required to ,pay. When therefore, what are in good faith presented to them as preliminary proofs, are in any respect defective, com- mon fairness requires that such defects be suggested, and that it be not held in reserve, to be used afterwards to obtain further delay of payment, or to defeat a suit brought for the payment." That, or something like it, appears in this case. The first proofs were served April 3d, 1871 ; objections were made and further particulars required. May 24th, 1871. Fifty-one days had elapsed. Additional proofs were served, June 6th, 1871. July 20th, 1871, further particulars were required. Forty-four days had elapsed. All the books and proofs in the plaintiff's possession had been submitted to the inspection of the company's adjusting agent before the suit was brought. The court rightly refused to non-suit the plaintiff, and per- mitted these facts to go to the jury as evidence of a waiver of complete preliminary proofs on the part of the plaintiff, at the first service. It was next urged that there was fraud, or attempt at fraud, by false swearing, or otherwise, which, by the condition of the policies, caused a forfeiture of all claim on the defendants. The facts relied on to sustain these reasons are — 1st. The great discrepancy between the inventory made by the government officers, when they seized the plaintiff's store in November, 1869, and that made by him in April, 1870, ■when he regained possession. 2d. The alleged statements made by the plaintiff to Win- NOVEMBER TERM, 1872. 41 Jones V. Mechanics Fine Insurance Co. terton and Colwell, soon after the fire, that his stock burned,. or his loss amounted to about $27,000 or $28,000, whereas his claim shows $46,510.74. 3d. The affidavit made by the plaintiff. May 23d, 1871,. which contained the statement that his inventory, dated April, 1870, as incUided in his proof of loss, was taken by him without assistance ; whereas it appeared in the evidence that his clerk, Duffor'd, helped count and gauge, while he made all the entries and estimates, and that it was entered in a book ; whereas, it appeared that it was first made on slips of paper» 4th. Further, that there was an error in the account given in the proofs of the amount of sales. This was taken from the books by Edward Piersou, for the plaintiff, and appears to have been his mistake. 5th. Also, that it was not shown that all the goods pur- chased after March, 1870, went to the store at Morristown, but some to other places, though the entries were on the books. 6th. And in stating that the schedules and account were full, accurate, just and true. All of which, it was alleged, were untrue, and showed fraud and false swearing within the condition of the policy, and avoided it. All the facts and evidence upon which the charges of fraud and false swearing were based, the impeachment of the witnesses by contradiction and untrue statements, and especially of the plaintiff's testimony, were fairly and fully submitted by the judge in his charge to the jury, and I find no misdirection in the charge. The corrections in the account were made before the suit was brought, and it was competent for the plaintiff to show that they were made by mistake, and restate them. As to the alleged false swearing in the affidavits and untrue state- ments of the value of the property destroyed, it is not suffi- cient to show that there were errors in the fullness and accu- racy of the sworn statement of loss, and in the affidavit of a collateral fact, as to who helped in making an appraisements These may be explained and corrected, if done in good faith.. 42 KE\y JERSEY SUPREME COURT. Jones V. Mechanics Fire Insurance Co. Fraud aed false swearing will avoid the policy, but mere mistakes in staling facts, which do not in themselves annul its conditions, and do not appear to be wilful misrepresen- tations, will not defeat the action. Campbell v. Charter Oak Ins. Co., 10 Allen 213 ; Levy v. Baillie, 7 Bing. 349 ; Brit- ton V. R. Insurance Co., 4 Fost. & Fin. 905. The jury have passed upon all the several matters which were submitted to them by the court, and although there is conflict in the testimony and doubts suggested, yet tiiere is not tiiat clear preponderance of proof against the verdict which would justify the court in disturbing it. The several exceptions to the ruling of the judge, by which it is said that illegal evidence was admitted and legal evidence ruled out, to the prejudice of the defendants, I will consider briefly. It was objected that the plaintiff's ledger and cash book were admitted in evidence. These were the original and only entries of the sales made by the plaintiff from April, 1870, to March, 1871, which were made in the course of his busi- ness, and were the originals from which the sales account was taken, which was stated and delivered as part of the proof of loss, as the correctness of that sales account was in issue, and these books had been called for and examined by the defend- ant's agents, as part of the plaintiff's preliminary proofs and were verified by the plaintiff's oath, they were admissible upon that issue. If they were shut out they would exclude all possible testimony of such sales. The question put to the plaintiff on his cross-examination by the defendant's counsel, as to what debts he owed, and how much he was worth, were not directly relevant to the issue, and were within the discretion of the judge to prevent an undue expansion of the case by collateral facts and issues. Their exclusion is not good cause for setting aside the verdict. The further ques.tion was asked of AVilliam H. Camp, a witness for the defendants, who resided in Newark, whether the amount of stock carried by his firm ($50,000) for their NOVEMBER TERM, 1872. 43 Jones V. Mechanics Fire Insurance Co. average year's sales, ($500,000) was or was not the prudent proportion of stock to sales in that business. This question was overruled, and exception taken. The testimony was offered to raise a presumption that the plain- tiff's stock, as he claimed, was not in the usual proportion to sales in that business, but much greater, and therefore fraudu- ient. This question was pressed on the authority of Insur- ance Co. V. Weide, 11 Wallace 438, where it was held that such question, of a merchant in St. Paul, was competent in a suit by another in the same business, in the same city. Admitting* this to be so, the conditions were alike upon which the presumption was to be based. It was the same kind of business in the same city; but here a merchant in Newark, a large city, Avas asked the proportions of his stock and business ; and others were to be called for the same pur- pose, in order to determine the reasonable and probable pro- portion between the stock and sales of the plaintiff trading in a small place like Morristown. There was no proper or proximate relation between the two, and the evidence was calculated to mislead the jury. A stock in a large city is turned more rapidly than in a small place, and it is more likely to accumulate in the latter, where the sales are slower, and the business continued for several years. Other differ- ences will suggest themselves, growing out of the peculiarities of men and places. Such testimony does not afford any reasonable inference as to the principal matter in dispute. Nor does it, in the language used in the case above cited, "conduce in any reasonable degree to establish the probability or improbability of the fact in controversy." See, also, 1 Qreenl. Ev., § 52, 448 ; Eosooe's N. P. Ev. 38, 88. I have thus examined all the material points raised in this case, as the importance of the issue demands, and find no reason to set aside the verdict of the jury. The motion for a new trial is refused. Cited in State Ins. Co. v. 3faackens, 9 Vr. 564 ; NortJiampton, &c.. Ins, Co, V. Stewart, 10 Vr. 486 ; Carsoii v. Jersey City Ins. Co., 14 Vr. 300. 44 XEW JERSEY SUPREME COURT. Shreve v. Joyce. BENJAMIN SHREVE v. JAPHET B. JOYCE AND JOHN B. JOYCE, SURVIVING EXECUTORS OF JOSEPH S. JOYCE, DECEASED. 1. A sole executor (and of course if one, all,) has the power, by a new promise, to remove the bar of the statute of limitations. 2. One of two or more executors can bind an estate by the new promise, and it does not thereby make the representatives personally liable. 3. A co-executor can no more be made personally liable by the new promise of another executor, than in any other matter where the validity of the act of the individual executor in binding the estate may be unquestioned. The judgment in either case Is de bonis testa- toris, and there can be no personal liability, except where the executor has made himself chargeable with a devastavit. 4. A promise to remove the bar of the statute may be proved against executors in the same way as in other cases, being always suflSciently careful to see that the deduction is properly drawn from the facta. On case certified from Burlington Circuit Court. Argued at June Term, 1872, before Beasley, Ciiief Jus- tice, and Justices Bedle, Woodhull and Scudder. For the plaintiff, F. Voorhees. For the defendants, E. Merritt. The opinion of the court was delivered by Bedle, J. The chief question for our solution is, whether a promise by one of two or more executors is sufficient to take a debt of the testator out of the statute of limitations. Very little can be gathered from the English books on this subject, as the whole matter is controlled by the act of 9 Geo. IV, c. 14, § 1, known as Lord Tenterdeu's act, which provides that the promise shall be in writing, and then, that the promise shall only affect the executor making it. Previous to that act, the law had not been sufficiently declared by the English courts to regard it as settled. In Tidlock v. Dunn, et al., Executors, Ryan & Moody 416, Lord Chief Justice NOVEMBER TERM, 1872. 45 Shreve v. Joyce. Abbott, (afterwards Lord Tenterden, and the author of the act referred to,) at nisi pr-ius in non-suiting the plaintiff, remarked, " that the promise by one only is not enough to entitle the plaintiflf to recover; there ought to be a promise by both." Afterwards, in the case of McCulloch v. Dawes et ciL, Ex'rs, ^ D. & R. 385, the same Chief Justice, sitting in King's Bench, held, under the facts of that case, that there was not sufficient evidence to raise a promise by one executor, but did not question the effect of it upon the other, had it been made. In Scholey v. Waltoyi, 12 31. & W. 509, (after the act of 9 Geo. IV^ which was an action by the payee of a note against the defendants as surviving executors, it was decided, on the question of an alleged payment by the deceased execu- tor, (the act referred to, leaving the effect of a payment undisturbed,) that what was claimed as a payment was not made in a representative character ; but Baron Parke, in referring to the case of TuUock v. Dunn, remarked, that it seemed to him that that case was founded in justice and good sense, and ought to be followed. That, however, was a mere dictum in the cause. Abinger, C B., seemed differently inclined, so far as it can be gathered from his opinion. Some little other dicta may be found, but the only direct adjudica- tion upon the subject in the English courts is the case of Tullock V. Dunn, and that has only the force of a nisi jprius^ decision. The decisions of other states differ very much. The rule in Massachusetts is, that the promise by one executor will avail against them all. Emerson v. Thompson, 16 Mass. 431. In New York, the doctrine appears to be the same, although slightly questioned. Johnson v. Beardslee, 15 Johnson 3; Hammon v. Huntly,4: Cowen 494; Cayuga Co. Bk. v. Bennett,. 5 Hill 236. In Connecticut the rule is otherwise. Peck v. Botsford, 7 Conn. 172. And so also in Pennsylvania. Fritz V. Thomas, 1 Whar. QQ ; Reynolds v. Hamilton, 7 Watts 420 ; Forney v. Benedict, 5 Barr 225; Clark v. MoGuire's Adm'x, 11 Casey 259. The discordant condition of the cases in other states will Vol. VII. 3 46 NEW JERSEY SUPREME COURT. Slireve v. Joyce. be seen by reference to the note to Whilcomh v. Whiting^ 1 Smith's Lead. Cas. 857. In New Jersey, the question is one of first imj)ressiou, and we are at liberty to declare the law as we think most in accordance with principle. The power of a single executor or administrator to remove the bar of the statute by a new promise has been seriously questioned, and in some states denied, but I think the law, as understood in this state, both by the profes- sion and as administered at the circuits, and as sustained by the weight of adjudication elsewhere, is that such j)ower exists. All the cases requiring an express promise are based on that assumption. In the case of Saltar v. Adm'r of 8alt THE STATE, THE LONG DOCK COMPANY, PROSECUTOES, V. JOHN B. HAIGHT, RECEIVER OF TAXES OF JERSEY CITY. 1. The act entitled " An act relating to taxes to be paid by the Erie Railway Company for certain property owned, leased, used, or occu- pied by it in this state," {Laws of 1870, p. 1168,) relates to the property of the Long Dock Company, used or occupied by the said railway company, and therefore embraces but one object, which is suflScienlly expressed in its title. 2. The act is to have effect, though it does not in terms refer to the act " relative to taxes in certain counties of this state." {Laws of 1869, p. 1225.) On certiorari. In matter of taxation. Argued at June Term, 1872, before Justices Dalrimple,. Depue and Van Syckel. NOVEMBER TERM, 1872. 55. State, Long Dock Co., Pros., v. Haight, Receiver For the prosecutors, L. Zabriskie. For the defendant, J. Dixon, Jr. The opinion of the court was delivered by Dalrimple, J. The object of the act of 1870 {Laws of 1870, p. 1168,) was to exempt from taxation all property- east of the westerly side of Bergen Hill,- owned, used, or occupied by the Erie Railway Company, or leased by it of the Long Dock Company, except a tax of one-half of one- per cent, upon the cost of the real estate owned, used, occu- pied, or leased by the Erie Railway Company, situate as above mentioned. The act exempts only the property of the Long Dock Company, leased, used, or occupied by the Erie Railway Company. It therefore embraces but one object, which is expressed in its title, which is " An act relating to taxes to be paid by the Erie Railway Company for certain property owned, leased, used, or occupied by it in this state." There are no words in the act expressly referring to, and repealing by name, the act of 1869, [Laios o/ 1869, p. 1225,) yet it declares, in section four, that all acts and parts of acts, either general or special, public or private, inconsistent with that act (of 1870) be repealed, and that no municipal power or arrangement whatever, shall be set up to defeat its true intent and meaning, without now deciding how far it is in the power of the legislature to bind subsequent legislatures as to what shall be the form of a repealing statute, I hold, considering the object of the act of 1869, as well as that of 1870, and the broad terms of the repealing section of the latter act, that the act of 1870 is to have effect, though it does not refer in terms to the act of 1869. It would seem that the exemption in the act of 1870 is absolute, and protects the company from taxation, except in the mode provided, whether the map and plan mentioned in the act have been filed in the secretary of state's office or not. However this may be, we think it sufficiently appears- that such plan and map have been filed. 66 NEW JERSEY SUPREME COURT. State, Morris and Essex R. R. Co., Pros., v. Jersey City. As we nnderstaud it to have been admitted on the argu- ment, that certain property on the west of the westerly side of Bergen Hill, not coming within the exemption, is embraced :n the assessment brought up, the tax, to that extent, is legal, and must be affirmed, and reversed as to the remainder. If the parties cannot agree as to the amount the company is liable to pay, under this decision, it may be referred to a commissioner to ascertain and report the fact to the court. THE STATE, THE MORRIS AND ESSEX RAILROAD COM- PANY, PROSECUTORS, v. JERSEY CITY. 1. By the decision of the Court of Appeals in the Tide Water Com- pany's case, it became the established law of this state that the power to assess the expenses of local public improvements on property pe- culiarly benefited, is limited in amount to the benefit conferred. '2. Lands acquired for a public use by a corporation under legislative authority, which are essential to the exercise of its corporate fran- chises, and are held in good faith for tiiat purpose, must be regarded for purposes of taxation as devoted to that public use. In assessing lands so circumstanced for local improvements, the increase in their present market value is not the proper basis of as.sessment; if not benefited in their present use by such improvement, the assessment should be made on a valuation depending on the probability that they may thereafter be converted to other uses. 5. In assessing depot grounds of a railroad company having an exemp- tion from taxation in its charter for benefits derived from local im- proveraenis, supposed benefits arising from the probable increase of business in consequence of increased facilities of access to its depot, cannot be made the basis of assessment. An assessment on that prin- ciple would be a tax on the business of the company in violation of the exemption in the act of incorporation. Argued at February Term, 1872, before Justices Bedle, Daleimple and Depue. NOVEMBER TERM, 1872. 57 State, Morris and Essex R. R. Co., Pros., v. Jersey City. For the prosecutor, J. Vanatta. For the defendant, J. Dixon, Jr. The opinion of the court was delivered by Depue, J, The writ in this case removes an assessmeut upon the lands of the proseeutors to defray the costs and expenses of paving and improving Prospect street. The lands on which the assessment was made were acquired by the company for depot purposes, and are either in actual use for side tracks or are being prepared by filling in for that purpose. They are the same premises which were held by this court to be exempt from taxation for general purposes under the clause in the prosecutor's charter exempting them from tax. State v. Haight, 6 Vroom 40. But in the case of The State, The Protestant Foster Home Society, Pros., v. The City of Neioarh, 6 Vroom 157, it was held that the word tax in the exempting clause of a charter similar to that in the charter of the prosecutors, refers exclusively to ordinary public taxes, and does not include assessments made to defray the costs and expenses of local public improvements. The prose- cutors are not entitled to be relieved of this assessment by force of the exemption from taxation in their act of incorporation. It is claimed that the assessment is illegal and void for the reason that the company's property is not benefited by the improvement. By the decision of the Court of Appeals in the Tide Water Company's case, it became the established law of the state that the power to assess the costs and expenses of public improvements on property peculiarly benefited, is limited in amount to the extent of the benefit conferred, and that an assessment beyond that limit is illegal and void, as a taking pro tanto of private property for public use without compensation. The Tide Water Co. v. Costar, 3 C E. Green 519. The act of 1871, which gave this court power to de- termine disputed questions of fact on certiorari, was designed to enable the court to make inquiry in such cases, with a view to ascertain whether taxation for local improvements was- 58 NEW JERSEY SUPREME COURT. State, Morris and Essex R. R. Co., Pros., v. Jersey City. exercised upon correct legal principles. {Act'i 1871, p. 124.)* Depositions have been taken by the prosecutors under the provisions of this statute toucliing the benefits. They are full and clear to the point that the company's lands considered as depot grounds, will not be benefited in the least by the im- provement of the street. No counter proof was made by the city, and it must be taken to be an established fact that if the lands are viewed solely in the light of the uses for which they were acquired by the company, and to which it is intended that they shall in the future be applied, no benefit has been realized from the improvement. Supposed benefits arising from the probable increase of business in consequence of increased facilities of access to their depot, cannot be made the basis of an assessment of this character. Old Colony and Fall River R. R. Co. v. County of Plymouth, 14 Gray 156; Boston and Maine R. R. Co. v. County of Middlesex, 1 Allen 324. An assessment on that principle would be simply a tax on the business of the company in violation of the exemption in their act of incorporation. State v. Newarhj 3 Dutcher 186-191. The counsel of the city contends that inasmuch as the lands have not been irrevocably appropriated to the special use, and as the company may legally apply them to other uses or sell them in the market at any time, their enhanced market value and not the advantages resulting to them as depot grounds, is the criterion of the benefit which shall gauge the limit of the burden which may be imposed. In the Foster Home case, Mr. Justice Woodhull states it to be a general rule, that in making such assessments, the eflPect of the proposed improvement on the market value of the property is only to be regarded, laying out of view its present use, and the purpose of the owner in relation to its future enjoyment. The authority cited in support of this decision is the opinion of the Supreme Court of New York In the matter of William and Anthony streets, 19 Wend. 680. As a general rule it is undoubtedly correct. It is insisted that the only exception to this rule is where the owner is restricted in the power of *Bev.,p.99, §9. NOVEMBER TERM, 1872. 59 State, Morris and Essex R. E. Co., Pros., v. Jersey City. alienation by force of couditions in the title deed.s. The cases usually cited in support of that construction do not go on that ground. In the matter of the Mayor, d'c, of N. F!, 11 Johns. 77, an assessment for benefits in widening Nassau street, had been laid on several churches, which was resisted on the ground that churches, by the general act for the assessment an.d collection of taxes, were not liable to such assessment, and on the further ground that the amount assessed was dispropor- tionate to the benefit derived from the proposed improvement. The court denied relief on the first ground, but for the other reason remitted the report to the commissioners for correction. It was urged, in support of the assessment that although the, property was then devoted exclusively to religious purposes, it might thereafter be secularized by the congregation, and therefore migi'it be regarded as deriving a permanent advan- tage from the widening of the street. The court says : " As the church property is not, nor is it likely soon to be, either appropriated to renting or exposed to sale, but is devoted exclusively to religious purposes, the benefit resulting to it by the improvement of Nassau street, must be small in compar- ison with that of other property, and it therefore ought not to contribute in the like proportion. It may be considered, possibly, as benefited, by rendering the access to the churches more convenient, and the places more pleasant and salubrious by the freer circulation of the air. This may have some influence on the pew rents, and the ground may become per- manently more valuable. These, however, appear to be small and remote benefits to property so circumstanced, and to charge the churches equally with adjoining private property is unreasonable and extravagant." No reference was made by the court to the title of the church to the property, nor to any restrictions on the power of sale or disposition of it. In the case of The Owners, .,p. 886, 2 242. NOVEMBER TERM, 1872. 65 State V. Holmes. •exceptions. It was not presented within a reasonable time. The judgment of the court was satisfied immediately on its being pi-onounced, and has been acquiesced in for five years. It is alleged that that acquiescence has been occasioned by the negligent or fraudulent conduct of the defendant's attorney, \vho was entrusted with the preparation of the bill of excep- tions. Even though that be so, the defendant is without relief in this proceeding. The prosecutor of the pleas, by whom the indictment was tried, has gone out of office. If the judgment should on error be reversed, the witnesses on the former trial could not probably be produced, or if pro- duced, naturally would be unable to recall the circumstances attending the commission- of the alleged offence. It was not even known on tiae argument here whether all the judges before whom the trial was had were still in commission. Under these circumstances, if the bill of exceptions should be sealed, the court in error would doubtless expunge the bill of exceptions from the record as improvidently signed. We have not referred to the fact tliat no writ of error has yet been sued out. It was argued here that a writ of error might be sued out notwithstanding the lapse of time since judgment pronounced. It was insisted that the fifteenth section of the act respecting writs of error [Nix. Dig. 289,)* did not apply to writs of error in criminal cases, and that therefore there is no limitation of the time witliin which the writ may issue in a criminal case. In this construction we do not concur. The section in question was originally the ninth section of a supplement to the act to regulate the practice of the courts of law, which sui)pleraent was passed on the 28th of February, 1820. R. L. 691. As the section stood in that act, it provided that no writ of error from any court of common law should be brought or allowed on any judgment that should have been or thereafter might be entered or obtained, unless the same shall be had or done within three years after the judgment rendered ; provided, &c. In the revision of 1846, the words "from any coui't of common Jaw," were omitted, and the section as amended was trans- *iJei;., p. 373 I 2. 66 NEW JERSEY SUPREME COURT. State, ex rel. Trustees, &c., v. Township C!ominittee of Keadington. ferred from the practice act to the act entitled, "An act tO' regulate writs of error." R. $. 980. That this latter act extends to all causes, whether civil or criminal, unless other- wise specified, is made apparent by the fact that by the thirteenth section, certain specified sections of the act were declared not to extend to indictments. As the section in question now stands, its office is to limit the time of suing out writs of error in criminal as well as in civil cases. The Court of Oyer and Terminer is advised not to seal the bill of exceptions. THE STATE, THE TRUSTEES OF WHITE HOUSE SCHOOL DISTRICT, No. 71, RELATORS, v. THE TOWNSHIP COM- MITTEE OF READINGTON TOWNSHIP, IN THE COUNTY OF HUNTERDON. 1. The legislature may create special taxing districts, defining their limits in its discretion ; or designate certain occupations, trades or employments, as special subjects for taxation ; or discriminate between difierent kinds of property in the rate of taxation ; or may apportion the tax among the classes of persons or property made liable to taxa- tion, in such manner as may seem fit. But when the taxing district has been defined, and the classes of persons, or kinds of property specially set apart for taxation, have been designated, the tax must be apportioned among those who are to bear the burden upon the rule of uniformity. 2. A tax upon the persons or property of A, B and C individually whether designated by name or in any other way, which is in excess^ of an equal apportionment among the persons or property of the class of persons or kind of property subject to the taxation, is, to the extent of such excess, the taking of private property for a public use without compensation. 3. The trustees of a school district were, by a special act of the legisla- ture, authorized to complete a school-house for the district, and the- township committee of the township in which the district was, were required to issue township bonds to meet the expenses of the improve- ment, and were authorized to provide for payment of such bonds by taxation on the estates of the inhabitants of the school district bui NOVEMBER TERM, 1872. 67 State, ex rel. Trustees, &c., v. Townsliip Committee of Readington. in assessing the first amount directed to be raised for that purpose, not exceeding $2000, the assessor was required to assess tiie amount so ordered in excess of $1000 only upon certain taxable inliabitants, who had not paid the assessment made against them the preceding year, for defraying the cost of said building. The amount of the taxes assessed in the former assessment against such individuals, and for which they were delinquent, was less than two hundred dollars, Ou application for a mandamus to the town committee to compel them to issue such bonds, the court denied the application on the ground that it was doubtful whether the means of indemnification provided could be made available by the imposition of a lawful tax under the pro- visions of the act. On application for a mandamus. By an act of the legislature passed on the 14th of Febru- ary, 1872, entitled, "An act for the purpose of raising money to construct and complete a public school building in District Number Eleven, of Readington township, Hunterdon county," after reciting that, " whereas, the trustees of school district No. 11, of Hunterdon county, have purchased a lot and partly erected thereon a public school building, which land and building when finished, and furniture necessary in said build- ing, will cost about the sura of $6000 ; and whereas, an assessment of $1000 thereof was made on the taxable inhabi- tants of said school district for said purpose in the year 1871, which has been paid by said taxable inhabitants in part; but some of said inhabitants have not paid their assessment by reason of technical objections to the form of the proceedings by which the assessment was laid," it was enacted that the board of trustees of said district should be empowered to finish the erection and construction of said public school building, and to make certain improvements as appendages thereto, and to expend for that purpose a sum of money not exceeding $6000. By the same act the township committee of the township of Readington were required to execute and deliver to the trustees of the said school district, bonds in the name of the township of Readington, in the county of Hun- terdon, to meet the expense of such improvement, wiiich said bonds were to be of such denominations as the trustees of the €8 NEW JERSEY SUPREME COURT. State, ex rel. Trustees, &c., v. Township Committee of Readington. school district for the time being should direct, and were to become due and payable in installments as directed in the act. By the third section of the act, the township committee were "authorized to provide for the payment of said bonds, and the interest thereon, as the same shall become due and payable, by taxation on the estates of the inhabitants of said school district No. 11, and on all the lands liable to be taxed therein, which taxes shall be assessed, levied and collected in the same manner, at the same time, and by the same means as other township taxes are; but in assessing the first amount, not exceeding $2000, the assessor of taxes for the said town- ship, for the time being, shall assess the amount the town committee shall direct to be raised in excess of §1000 only «pou those taxable inhabitants of said school district who have not paid their aforesaid assessment, made in the year 1871." A supplement was passed on the 20th of March, 1872, correcting a clerical error in the original act, by substituting the words seventy-one for eleven, in the designation of the school district by number. Argued at November Term, 1872, before Justices Dal- EiMPLE, Depue and Van Syckel. For the relator, G. A. Allen. For the defendants, /. N. Voorhees and A. Wurts. The opinion of the court was delivered by Depue, J. Application being made by the school trustees to the township committee for the issuing of bonds to the amount of $3500, under the act above recited, the township ■committee declined to issue the same, whereupon application was made to this court for a writ of mandamus to compel the committee to issue such bonds. The amount of tax assessed in the school district for the building of a school-house in the year 1871 was $1000. Of this amount it appears by the depositions that $807 have been NOVEMBER TERM, 1872. 69 State, ex rel. Trustees, &c., v. Township Committee of Readington. collected. The residue is in litigation. The act directs that the first assessment upon the persons and property in the school district liable to taxation to provide the means of pay- ing the bonds, shall not exceed $2000, and, that in assessing the sum the township committee shall so direct to be raised, the amount in excess of $1000, shall be assessed only on those taxable inhabitants of the school district who have not paid the assessment made against them for the year 1871. Under this section the township committee are empowered to direct the assessment of the sum of $1000 upon certain individuals who are delinquents, whose delinquency in all is less than $200. It is insisted by the defendants' counsel that the mode of levying the tax contemplated by this act is not a legitimate method of taxation, and that therefore no adequate provision is made for the payment of the bonds of the township by taxation upon the school district. The power of the legislature to validate the assessment of taxes which is liable to be avoided for mere irregularities in the proceedings in making the assessment, is well settled. State V. Apgar, 2 Vroom 358 ; State v. Town of Union, 4 lb. 350. The act in question has none of the qualities of an act validating the proceedings in levying the former tax. It is the assumption by the legislature of the power to subject the delinquents to a penalty of $1000 for a delinquency of $200, in the discretion of the township committee. That this is the real import of the act is apparent. Indeed, the learned and astute counsel who argued this motion in behalf of the relators, so clearly discerned the exact import of this legisla- tion that he was driven to maintain before the court that it was within the power of the legislature to select certain individuals as subjects of taxation, and impose upon them individually such burdens as the legislature saw fit, even to the extent of the payment of the state debt, or defraying the entire expenses of the state government. The power of the legislature in the matter of taxation is said to be unlimited. Such undoubtedly is the theory of our government. But it is not every exaction made under color 70 NEW JERSEY SUPREME COURT. State, ex rel. Trustees, &c., v. Township Committee of Readington. of taxation that can be supported as the legitimate exercise of the sovereign power of taxation. It is of the very essence of taxation that it should be equal and uniform, and that where the burden is common there should be a common con- tribution to discharge it. Cooky's Const. Law 495. Not that it is essential to the validity of taxation that it should be- levied according to rules of abstract justice. The legislature may create special taxing districts, defining their limits in its discretion, or designate certain occupations, trades or employ- ments as special subjects for taxation ; or discriminate between differents kinds of property in the rate of taxation ; or may apportion the tax among tiie classes of persons or property made liable to taxation, in such manner as may seem fit. In this way inequalities in the siiare of the public burden, or even double taxation may arise without any relief except by appeal to the legislature. But when the taxing district has been defined, and the classes of persons or kind of j)roperty specially set apart for taxation have been designated, the tax must be apportioned among those who are to bear the burden upon the rule of uniformity. Cooky's Const. Law, pp. 493- 513. Taxation operates upon a community, or a class in a community, according to some rule of apportionment. When, the amount levied upon individuals is determined without regard to the amount or value exacted from any other indi- vidual or classes of individuals, the power exercised is not that of taxation but of eminent domain. The Peopk v. Mayor of Bi'ooklyn, 4 Coinstock 420. A tax upon the persons- or property of A, B and C individually, whether designated by name or in any other way, which is in excess of an equal apportionment among the persons or property of the class of persons or kind of property subject to the taxation, is, to the extent of such excess, the taking of private property for a public use without compensation. The process is one of con- fiscation and not of taxation. But it is argued that the township committee may, in ex- ecuting their duties under the act, so perform them as that no greater sum will be levied upon the delinquents, or their NOVEMBER TERM, 1872. 71 State, ex rel. Trustees, &c., v. Township Committee of Readington. property, than the amount of their unpaid tax, and that therefore a valid tax may be laid under the act. Tiie argu- ment may be sound. On that subject the court ex|)ress no opinion. For present purposes it is sufficient that the act in question gives to the township committee the power arbitrarily to impose a sum in excess of such delinquency. Nor does it appear, except by the recital in the preamble of the act, that the refusal of the delinquents to pay the farmer assessment is based on mere irregularities in the mode of assessment. For aught that is shown, the legal objections to the collection of the tax assessed against them, are of such a nature as to be beyond the power of the legislature to remove. The school district in question is one of the school districts in the township of Readington. The act does not impose upon the township the burden of erecting the school building. It contemplates that the cost shall ultimately be borne by the taxable inhabitants of the district, although the only means of reimbursement is by the taxation provided for. The court should not award a mandamus to enforce this compulsory suretyship by the township for the debts of the school district, where any well grounded doubt exists whether the means of indemnification provided are such as can be made available. It is better to subject the school district ta the inconvenience of a delay until further legislative action may be obtained, than to involve the township in a litigation to enforce the collection of a tax of doubtful constitutionality. The application is denied, and rule to show cause dis- charged. Cited in State, McClosky, pros., v. Chamberlin, 8 Vr. 388 ; State, Hoey^ pros., V. Collector, t&c, 10 Vr. 75. 72 NEW JERSEY SUPREME COURT. State, ex rel. Sandford, v. Court of Common Pleas of Morris. THE STATE, MICHAEL SANDFORD, RELATOE, v. THE COURT OF COMMON PLEAS OF THE COUNTY OF MORRIS. 1. The Chatham local option law declares the retail of ardent spirits without license to be unlawful, and provides that no license shall be granted if a majority vote of the township is for " no license." Held — that the act is constitutional. "2. That the legislature, under the power to make police regulations, may prohibit the retail of alcoholic stimulants. 3. That municipal corporations and townships may be invested with authority to regulate or prohibit the retail of intoxicating drinks. On application for mandamus. Argued at June Term, 1872, before Justices Dalrimple, Depue and Van Syckel. For the motion, H. C. Pitney. Contra, A. Mills and O. Parker. The opinion of the court was delivered by Van Syckel, J. This application is made to test the constitutionality of what is termed the Chatham local option law. The provisions of the act {Laws, 1871,^. 1470,) are sub- stantially that it should be lawful for the persons qualified to vote at the next annual town meeting, to determine by ballot wlietlier thereafter license to sell spirituous liquors should be granted; that if it should appear that a majority of votes were cast for " no license," it should not thereafter be lawful to grant any sucli license until otherwise decided by a contrary vote at some subsequent town meeting; that from and after the passage of the act, it should not be lawful for any person within said township, withoMt a licen.se for that purpose first had, to sell by less measure than one gallon, and any person so selling without license should be adjudged guilty of a mis- demeanor; and lastly, that so much and such parts of all acts and parts of acts as are inconsistent with this act, be and .are repealed. NOVEMBER TERM, 1872. 7a State, ex rel. Sandford, v. Court of Common Pleas of Morris. At the time prescribed by tke act, a majority of the legal voters of said township voted " no license." At the following May Terra of the Morris Common Pleas,, the relator, by petition, signed and v'erified as by the act "concerning inns and taverns" is required, applied for a license to keep an inn and tavern in Chatham. The court having refused to entertain said application on the ground that it had no power to grant it, this court i& asked to send its writ of mandamus to the court below, in aid of the applicant's petition. The local option law is alleged to be in conflict with that article of our state constitution which provides that the legis- lative power shall be vested in a senate and general assembly. It must be conceded that this law can have no sanction if it is a delegation of the law making power to the people of the township. If the right to declare what the law shall be in one case, may be referred to the people, the right to do so may be given in all cases, and thus the legislature may divest itself wholly of the power lodged in it by the fundamental law, until by subsequent legislation it shall be resumed. It is also obvious that it is not competent to delegate to the people the right to say whether an existing law shall be repealed or its operation suspended. To say that what is now the law shall not here- after, or shall not for a specified time be the law, is in eifect to declare the law to be otherwise than it now is, and is a clear exercise of the law making power. The will of the leg- islature must be expressed in the form of a law by their own. act. If it is left to the contingency of a popular vote to pronounce whether it shall take effect, it is not the will of the law makers, but the voice of their constituents which moulds the rule of action. If the vote is affirmative, it is law ; if in the negative, it is not law. The vote makes or defeats the law, and thus the people are permitted unlawfully to resume the right of which they have divested themselves by a written constitution, to declare by their own direct action what shall 74 NEW JERSEY SUPREME COURT. State, ex rel. Sandford, v. Court of Common Pleas of Morris. be law. The cases upon this subject, so far as tliey assert the principles above stated, have ray entire concurrence. Parker V. Commomoenlth, 6 Barr 507 ; Rice v. Foster, 4 Harringfon 479 ; 3Iaize v. State, 4 Ind. 342 ; State v. Parker, 26 Vt. 357; Santo v. State, 2 Jot^a 165; Paterson v. Society, d'c, 4 Za6. 385. The test will be whether this enactment, when it passed from the hands of the law-giver, had taken the form of a <;omplete law. It denounces as a misdemeanor the selling of liquor without license; so far it is positive and free from any contingency. It left to the popular vote to determine, not whether it should be lawful to sell without license, but whetlier the con- tingency should arise under wliich license might be granted. It was not submitted to the voters of Chatham to say whether there should be a majority vote in favor of license, before license could be granted ; the law as framed declares that there shall be such majority vote. The operation of the first and second sections of the act "concerning inns and taverns " is not suspended by the declaration of the popular will, but the act itself modifies those sections, and makes it a •condition of granting license that there shall be a majority vote. It is the law which makes the majority vote necessary, and not the voice of the people. Whether the vote is aye or no, the law at all times is the same, and requires the majority vote as a condition precedent to the granting of license. If a supplement had been passed requiring instead of twelve reputable freeholders, the signatures of a majority of the legal voters of the township to the applicant's petition, would its constitutionality be challenged ? Upon principle it makes no difference whether the recom- mendation of the majority is exj)ressed by ballot at a town meeting, or in the form of a certificate. It is competent for the legislature to prescribe the mode in which it shall be done. NOVEMBER T£RM, 1872. State, ex rel. Sandford, v. Court of Common Pleas of Morris. Under the geueral law, the applicant could not call into €xercise the power of the court until twelve freeholders petitioned in the manner therein directed. Under the special act in question an additional restriction is imposed, but it is imposed by the law itself and not by the people. If the twelve freeholders under the old law do not certify, the court is restrained from acting ; if they do certify, the court can exercise its discretion. So if the majority do not vote for license, the power of the court cannot be invoked ; if they do vote for license, it may. If the twelve freeholders shall not deem it conducive to the public good the privilege is denied, so if the majority shall regard it as inimical to the public welfare to permit the. retail trade, the sale must abide under the penalty de- nounced by the law. The only difference is that under the special act the majority express their judgment as to all applications in gross, while under the general law twelve freeholders act upon them in detail. The fact that they vote " no license " does not make the law one way, or that they vote " license" the other way. The vote of the people may be changed, but the rule that B, majority vote shall be essential remains unaltered. The legislature has pronounced what the law shall be, and it cannot be and is not abrogated, changed or altered by the {)opular expression. The leading cases of Rice v. Foster, and Parker v. Com- monwealth, are distinguishable in principle from this. In those cases, the prohibition and penalty were not de- nounced by the law itself, but by the popular vote. The selling of liquor was not pronounced to be unlawful; it was referred to the people to determine whether it should be restrained. S > in the law proposed to be passed at the last session of our legislature ; " the offence defined by the act could not be committed unless the voters of the town determined that licenses should not be granted." But if this is construed as an act authorizing the township 76 NEW JERSEY SUPREME COURT. State, ex rel. Sandford, v. Court of Common Pleas of Morris. by a majority vote to prohibit tlie retail traffic in liquors, it may still be supported. The right of the legislature to grant the power of local government to municipalities is conceded, and it is immaterial whether the enactment conferring it is regarded as a declara- tion of the supreme legislative will and strictly a law, or merely as a concession of a grant by the legislature, as the representative of the sovereignty of the people. Such legislation has become so woven into our system of government, and its exercise as an appropriate function of the law-giver has passed so long unchallenged, and has been so repeatedly recognized by the courts, that it cannot be permitted now to be called in question. Under the authority to establish police regulations, mu- nicipal corporations may be invested with power to make ordinances to promote the health or contribute to the safety of the community. Noxious trades may be restrained, the storage of highly inflammable or dangerous materials may be prohibited, dis- orderly houses may be suppressed, and sports, exhibitions and public performances regulated, restrained or prohibited. It would not be pretended that authority could be dele- gated to the corporate body to pronounce how real estate should descend, or personal property be distributed within the city limits. In almost every city charter, the right to regulate or restrain the sale of intoxicating liquors is expressly conferred, and it could be done only upon the theory that it is a police regulation, and not strictly an exercise of the law-making power. This species of property is clearly within the same rule, which permits the corporate body under legislative sanction to determine for itself whether gunpowder or uitro glycerine may be manufactured or stored within its limits. While alcoholic stimulants are recognized as property and are entitled to the protection of the law, ownership in them is subject to such restraints as are demanded by the highest NOVEMBER TERM, 1872. 77 State, ex rel. Sandford, v. Court of Common Pleas of Morris. considerations of public expediency. Such enactments are regarded as police regulations, established for the prevention of pauperism and crime, for the abatement of nuisances, and the promotion of public health and safety. They are a just restraint of an injurious use of property, which the legislature has authority to impose, and the extent to which such inter- ference may be carried must rest exclusively in legislative wisdom where it is not controlled by fundamental law. It is a settled principle, essential to the riglit of self-preser- vation in every organized community, that however absolute may be the owner's title to his property, lie holds it under the implied condition "that its use shall not work injury to the equal enjoyment and safety of others, who have an equal right to the enjoyment of their property, nor be injurious to the community." Rights of property are subject to such limitations as are demanded by the common welfare of society, and it is within the range and scope of legislative action to declare what general regulations shall be deemed expedient. If therefore the legislature shall consider the retail of ardeufe spirits injurious to citizens, or productive of idleness and vice, it may provide for its total suppression. Such inhibition is justified only as a police regulation, and its legality has beea recognized in well considered cases. It is neither in conflict with the power of congress over subjects within its exclusive jurisdiction, nor with any provi- sions of our state constitution, nor with general fundamental principles. Cooley on Cons. Limitations, p. 583, and cases there referred to; Thurlow v. Massachusetts, 5 How. 504. It is not necessary to amplify discussion on this point, or to criticise the cases in detail. The view here taken underlies the whole subject of police regulations, and cannot logically be narrowed in its application. An examination of the cases will show that some laws of this character have failed to receive the approval of the courts, because they invaded the right of the citizen to be secure Vol. VII. 5 78 NEW JERSEY SUPREME COURT. State, ex rel. Sandford, v. Court of Common Pleas of Morris. against unreasonable searches, or denied to him a fair trial before condemnation of his property. It necessarily results tliat municipal corporations may derive the power to interdict the sale of intoxicating drinks from the same source to which they owe tlieir authority to regulate it. The grant of power to prohibit the sale is no more the delegation of a right to make law than the grant of authority to regulate it. Assuming this proposition, how may such authority be exercised by the corporate body ? Obviously, the only limitation must be contained in the terms of the grant itself, in the absence of any constitutional restraint. It is wholly immaterial how the power is exercised jso long as it is in the mode appointed by the superior. In •establishing the local government, the power may, at the dis- ■cretion of the legislature, be lodged in the people to make rules for the regulation of their internal police by their direct vote in mass meeting assembled, or through designated officials by themselves duly elected. It would therefore be within 'the province of the legislature to confer upon a city the right, by a majority vote of its inhabitants, to pass ordinances for :the regulation or suppression of the retail trade in ardent ispirits. This leads to the question whether Chatham township was in a position to receive such a measure of the power of local government? The inhabitants of the several townships in this state are incorporated by a general law. They have heretofore without question exercised many powers through a direct vote of the people. They determine how the poor shall be kept, how much money shall be raised for roads, and how much, if any, for school purposes, and I know of no reason why they may not be vested with the same powers which are or could be granted to municipal corporations, including the one which has given rise to this contest. Whether these laws are wisely framed to subserve theii purpose is not to be determined by the court, but must be NOVEMBER TERM, 1872. 79 State, Montgomery et al., Pros., v. Inhabitants of Trenton. referred to that branch of our government which has the «xchisive right to enact or repeal them. Regarding the established rule, that only in clear cases of excess should the action of the legislature be arrested by- judicial interference, I am of opinion that the mandatory writ -should be denied. Cited in State v. Wheeler, 15 Vr. St.. THE STATE, MONTGOMEEY ET AL., PEOSECUTORS, v. THE INHABITANTS OF THE CITY OF TEENTON. 1. The common council of the city of Trenton have no authority under the general power to regulate streets, to grant to an individual license to lay a railroad track across the public street for his own use. 2. Streets and highways are intended for the common and equal benefit of all citizens, to which end they must be regulated. S. Certiorari will not lie in favor of the prosecutors, who have sustained no damage peculiar to themselves. On certiorari to review and set aside an ordinance, &c. Argued at June Term, 1872, before Justices Dalrimple, Depue and Van Syckel. For the plaintiffs, /. R. Emery and O. D, W. Vroom. For the defendant, E. T. Green. The opinion of the court was delivered by Van Syckel., J. The common council of the city of Trenton, on the 12th of March, 1872, passed the following ordinance, viz. : "An ordinance to authorize Benjamin Fish and George S. Green to construct a railroad track across West State street, from the canal to their land at the waste weir. 80 NEW JERSEY SUPREME COURT. State, Montgomery et al., Pros., v. Inhabitants of Trenton. " The Inhabitants of the city of Trenton do ordain : "Section 1. That the consent of the city of Trenton i& hereby granted to Benjamin Fish and George S. Green to construct and operate a railroad track for the passage of logs and other lumber across West State street, from the feeder of the Delaware and Raritan Canal to the land of Fish and Green, on the southerly side of said street, adjacent to the waste weir; provided, that the said track shall be constructed upon the present grade of West State street, and that the laying and construction of said railroad track shall be subject to the supervision and approval of the street commissioner of the city of Trenton, and tiiat said railroad shall be so operated and maintained as not to interfere with the travel on said street ; and provided further, that nothing herein contained shall permit the said Fish and Green to construct and operate said railroad without the consent first had* and obtained of the lot owners fronting on that part of said street on which the said railroad track is to be constructed and maintauied ;, and provided further, that whenever the common council may consider the said railroad incompatible with the public inter- ests, they may order the same to be removed. "Section 2. That this ordinance shall go into effect so soon as the said Fish and Green shall have, at their own cost and charges, caused the same to be published five consecutive times in two of the daily newspapers in this city. " R. C. Belville, President^ The lot of Fish and Green, with which the connection is proposed to be made, as the case shows, runs only to the westerly line and not to the middle of the street. The prosecutors, who are land owners and residents on West State street, deny the power of the common council to pass said ordinance. The grant is to construct and operate a railroad for the private uses of Fish and Green, upon and across a public street, without restriction as to the motive power to be used. NOVEMBER TERM, 1872. 81 State, Montgomery et al., Pros., v. Inhabitants of Trenton. the sole limitation being that it shall be so operated and maintained as not to interfere with travel. Under a strict interpretation of this condition the road could not be built, for the track would be an appreciable obstruction, but in order that the grant may be effective, a reasonable construction of the ordinance will be that the work must be so done and maintained that no unnecessary interference with the public use of the street ensues. The common council of the city of Trenton has no power •over streets other than that conferred by the city charter, and therefore unless authority can be found in the corporation act for granting the privilege in question, the ordinance must fall. The defendants rely upon title III, § 25, subdivision 7 of the city charter, [Laws, 1866, p. 373,) which provides " that the common council shall have power to regulate, clean and keep in repair streets, highways, &c., in said city, and to prevent and remove obstructions, &c., and to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street, avenue, highway or alley in said city, or in digging up any street, avenue, highway or alley for the purpose of laying down pipes or any other purpose whatever." The power to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the •use of any street, if held to apply to privileges given by legislative enactment, cannot affect this controversy, and if to privileges granted by the common council, it must be inter- preted to mean such privileges as may lawfully be granted. The prosecutors claim that the railway, if constructed, will be a nuisance. But no structure which has the sanction of lawful authority can be a nuisance. The result could flow only from doing an act unauthorized and illegal. If the ordinance ia question is not in excess of corporate power, it • is a legitimate exercise of such functions as may be delegated to municipal governments, and is beyond the control of judicial interference. 82 NE^y JERSEY SUPREME COURT. State, Montgomery et al., Pros., v. Inhabitants of Trenton. In Milhau V. Sharpe, 15 Bai'b. 193, the corporation of New York, without other authority than that contained in the general power to regulate streets, conferred upon tlie defendant and liis associates power to lay a railway in Broadway. This grant was sustained on the ground that it was in the nature of a public use and conducive to the public good, and did not interfere with the complete and unrestricted use of the highway. In the same case reported in 17 Barb. 435, it was declared that the right to make a grant of that nature without the power of revocation was not within the powers conferred upon the common council ; that it was not a legislative act regulating the use of the street, but a grant of the use itself to the extent specified, whereby they divested themselves of absolute control over the street, and became disabled to dis- charge the important public trust reposed in them. Thereafter instead of regulating the highway in the full and complete manner designed by their charter, they would exercise their control in subordination to the franchise they themselves had granted. They would thus manifestly, to the extent of the grant, give up the use of the public way, and surrender a portion of their municipal authority. In the later case of Davis v. The Mayor of New York, in the Court of Appeals, reported in 14 N. Y. 506, the court ruled (Denio, C. J., delivering the opinion,) that it was not competent for the corporation of New York city to authorize the laying of a railroad track in the streets, on the ground that it was not properly within the idea of regulating higii- ways, but was converting them into a means of transportation with which the existence of a street had no natural or neces- sary connection within the purview of the city charter. In most of the cases on this subject there has been a legislative grant, coupled with the municipal authority. 2Iurphy v. Chicago, 29 ///. 279; Lexington and Ohio R. R. v. Apple- gate, 8 Dana 289 ; Chapman v. Albany and Seh. R R., 10 Barb. 360; Adams v. Saratoga R. R., 11 Barb. 414; Williams v. N. Y. Central R. R., 18 Barb. 222. NOVEMBER TERM, 1872. 83 State, Montgomery et al., Pros., v. Inhabitants of Trenton. In all the cases in which the grant of power is recognized^ it is rested upon the same principle on which, in this state, we have declared that a horse railway was a legitimate use of a liighway ; that is, that it is merely a new mode of using the highway, and that it does not burden it with a new servitude inconsistent with the purposes for which it was origimilly appropriated to the public. It is true that in these cases the right of the adjacent land owners to compensation was an element which does not enter into the case certified here, but independent of that consideration, the municipal power under the warrant to regulate streets, was restricted to such uses as are public, or in the nature of public uses. Keeping in view the rule which governs these cases, it will not be necessary to consider whether, in this state, a munici- pal corporatiou may, under the power to regulate streets, grant authority, without the concurrence of express legislation, to lay and maintain a horse railway in the ])ublic streets. If it may, it can be only for the reason that such use is not incompatible with the purposes for which the highway was devoted to the public, and that it will promote the common convenience, and is therefore an appropriate regulation of the street. I do not concede the existence of this power. It has never, so far as I can ascertain, been exercised in this state, and the attempt to assert it would doubtless pro- voke the most determined resistance. Every thing which is fairly within the idea of regulating streets, with a view to their use as streets, may be done by corporation legislation. In measuring the extent of the power, the object and purpose for which it was given must always be regarded as the test. Is one of those objects or purposes subserved by permit- ting one individual to enjoy a use of the highway whicii is denied to all others? I think not. If such power is con- ceded, its exercise is limited only by the discretion of the common council, who must be the sole judges of the extent to which obstructions may be placed in the streets. If they can license one to build a railroad across the highway for his 84 NEW JERSEY SUPREME COURT. State, Montgomery et al., Pros., v. Inhabitants of Trenton. own exclusive benefit, of which the public can have no user or advantage of convenience, it is difficult to perceive why they cannot empower another to place therein a structure which will more effectually impede the public passage, and maintain it there during their pleasure. How considerable must the obstruction to the way become, before the judgment of the common council can be contro- verted, and the judicial arm interposed? A grant to every one on the street, of a like nature with that now resisted, would render the highway well nigh impassable. The right to license one necessarily implies authority to license all, and thus municipal corporations, under the general power to regulate streets, become the source from which franchises to favored individuals, in the public ways, derive their existence. Streets and highways are intended for the connnon and equal use of all citizens, to which end they must be regulated. An appropriation of them to private individual uses, from which the public derive no convenience, benefit or accommo- dation, is not a regulation, but a perversion of them from their lawful purposes, and cannot be regarded as an execution of the trust imposed in the city authorities. In Wilson v. Cunningham et aL, 3 Cat. 241, the defendants, while running their cars for their own private gain over a rail- road laid down in the streets of San Francisco, under license from the common council, collided with the plaintiff's wagon. The plaintiff sued for his damages. Although no question was raised by the pleadings, as to the right of the defendants to run their cars, the court below refused to charge the jury, **that if the defendants were running their cars with ordi- nary care, as they had a right to do, under the permission given them, they could not be held liable in that action." The Supreme Court affirmed the judgment, which was for the plaintiff below, on the ground that by the special license to a private person, for his own benefit, the street was diverted from its ordinary and legitimate use, and therefore NOVEMBER TERM, 1872. 85 State, Montgomery et al., Pros., v. Inhabitants of Trenton. the defendant, in operating his road, must be required to use extraordinary care. The power of the common council, to permit owners of stores or other buildings to erect awnings over streets, or to leave boxes on the sidewalks, under certain regulations, rests upon a different |)rinciple, and has been sanctioned by usage as the exercise of a right in the owner of the fee, not incon- sistent with the public right of passage. So custom has sanctioned the laying of gas and water pipes, as entirely accordant with the primary use of the high- way, but even this is done under legislative authority. In my opinion the ordinance certified is unauthorized and void, and any railway constructed under it would be a public nuisance. But this result does not give the prosecutors the right to invoke the aid of this court, by the writ of certiorari, to set aside the illegal proceeding. Even after the projected work was completed, they could not maintain an action for the damages they might sustain in common with other citizens; they could have a private remedy only for such injury as was peculiar to themselves. The mere fact that the common council have acted in excess of their power, affects the relators in common with other citizens, but in no way peculiar to themselves. No right of action can accrue to any one of the prosecutors, until he sustains some special injury. The rule of the English courts, that for the usur[)ation of authority by public bodies, the remedy, until the passage of their municipal corporation acts, was exclusively in the name of the attorney-general acting in behalf of the public, and that the individual had no redress until his person or property was affected by enforcement of the illegal proceeding, has been so far modi- fied by judicial decision in this state, that the tax payer may resort to certiorari for his protection against an illegal ordi- nance or resolution, without waiting until the assessment is actually imposed. State v. Jersey City, 5 Vroom 390; State V. Paterson, 5 lb. 163. 86 NEW JERSEY SUPREME COURT. State, Weehawken Tw'p, Pros., v. Roe, Clerk Hudson Co. Freeholders.- In these two eases the prosecutor would have been directly affected in his property by the enforcement of the illegal pro- ceeding. In the later case of The State, Kean, Pros., v. Bronson, 6 Vroom 468, it was held that the relator, by reason of his being a property owner and tax payer within the cor- poration, had no legal right to question the proceedings of commissioners, in putting in sewers and paving streets, unless he could be called on to contribute to the expenses of the improvement. Accepting, as I feel constrained to do, the limitation of the rule as adopted in this last case, I am of the opinion that the writ now pending must be dismissed with costs. Cited in Ferry v. Williams, 12 Vr. 332 ; Gloucester Land Co. v. Mayor, &c., 14 Vr. 544; Slaates v. Borough of Washington, 15 Vr. 605; Jersey City Gas Co. V. Dwight, 2 Stew. Eq. 242. THE STATE, THE TOWNSHIP OF WEEHAWKEN, PROSE- CUTOR, V. CHARLES J. ROE, CLERK OF THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON. 1. When the board of assessors meet under pi. 95 of the tax act, {Nix. Dig. 953,) the township to whose quota of tax an addition is proposed to be made, cannot offer evidence to rebut any alleged inequality. The assessors must determine upon their own knowledge the existence of any inequalily. 2. Before they can interfere at all with any duplicate, they must decide that the valuation contained in it is relatively less than the value of other property in the county, and then they correct it as to themselves shall seem just and proper. On certiorari. Argued at June Term, 1872, before Justices Daleimple, Depue and Van Syckel. For the plaintiffs, F. W. Scudder and J. Vanaita. For the defendant, Jacob Weart. NOVEMBER TERM, 1872. 87 State, Weehawken T'w'p, Pros., v. Koe, Clerk Hudson Co. Freeholders. The opinion of the court was delivered by Van Syckel, J. The board of assessors of the county of Hudson, at their meeting in 1871, passed a resolution that the valuation of property made by the assessor of Weehawken. township be raised two hundred per cent. The certiorari in this case is prosecuted to test the validity of this resolution. The case shows that the assessors of the several townships having met in pursuance of the statute, produced their respec- tive duplicates, verified by oath as prescribed by section 12 of the act concerning taxes, passed April 14th, 1846. {Nix. Dig. 953, ^l. 94.)* The assessor of Weehawken testifies, and his statements are not called in question by any counter testimony, that he presented his duplicate to the board, and his affidavit thereto was inspected and pronounced to be correct; that after the valuations for the several townships had been taken down by the clerks, one of the assessors moved that the valuation of the township of Weehawken be increased two hundred and fifty per cent. ; some other person moved to increase it three hundred per cent., which was carried, but afterwards recon- sidered and the increase fixed at two hundred per cent. ; that there was no discussion in the board of assessors as to the propriety or impropriety of the increase ; that the assessor of Weehawken stated his objections to such increase, but that there was no discussion in regard to the matter, no comparison of valuations made publicly in the board, and no reasoa whatever was assigned by any one for making the increase. The power under which this action is sought to be upheld is found in the act before referred to, [Nix. Dig. 953, pi. 95,)t which provides " that the board of assessors, when met as aforesaid, shall compute and ascertain the whole value of real and personal estate after deduction of debts, to be taxed according to the value thereof contained in the duplicates of the several assessors, or estimated as aforesaid, and shall fix and adjust the proportion or quota of tax to be levied and collected in each township or ward in proportion to said value; provided, that if it shall appear to the a.ssessors so met * Rev., p. 1155, ? 71. f -^ei'., p. 1155, g 72. «8 NEW JERSEY SUPREME COURT. State, Weehawken "Fw'p, Pros., v. Eoe, Clerk Hudson Co. Freeholders. as aforesaid, that the value of the property contained in any duplicate is relatively less than the value of other property in the county, they may, for the purpose of fixing and adjust- ing the said proportion or quota, and for that purpose only, add thereto such percentage as shall appear to them just and proper, hut not otherwise." The object of this section is to prevent inequality in the distribution among the several townships of the tax appor- tioned to the several counties. It is insisted on the part of the relators that the board of assessors must base their action upon competent evidence, anility, and according to his own judgment, the names, &c., and the actual value, &(\ He is to do this by diligent inquiry, by the oath or affirma- tion of the persons to be assessed, by the oath, &c., of other persons if necessary, and by personal examination of the property to be valued. These are merely the means or sources of information, to one or more of which he must necessarily resort in order to ascertain the value, &c., so as to satisfy his judgment. But having ascertained, &c., by the use of any of the enumerated means — for example, by diligent inquiry in the ordinary way, and by personal examination of the property — it can hardly be supposed that the legislature would impose upon the assessor the nugatory task of ascertaining the same thing by the use of different means, no more competent and certainly no more reliable than those resorted to in the first place. If the words "shall ascertain, &c., and by the oath, &c.," are imperative in regard to the oath of the person to be assessed, they are equally so as to some of the other means, etc., men- tioned in this section ; and if imperative as to any of these for the purpose of ascertaining the value, &c., they can not be less so for the purpose of ascertaining the names, &c. For the names of all persons to be assessed, and the actual value of their taxable property are to be ascertained by precisely the same means. The true sense of this part of the act, considering merely its language and the character of its provisions, seems to be that it is mandatory only so far as it relates to the chief duty enjoined upon the assessor, viz, : the making up by him of an independent judgment as to the actual value of the jiroperty to be assessed ; and that with respect to the enumerated NOVEMBER TERM, 1872. 9& State, Keeler et al., Pros., v. Tindall, Collector of Ewing. means or sources of information, by or from which the value is to be ascertained, the act is merely directory. A glance at the changes introduced by the act of 1866 in the methods of ascertaining values for the purposes of taxation, will serve to confirm the conclusion. A marked feature in the policy of the acts of 1851 and 1854, was the taxation of all property at its full value. [Acts^ 1851, p. 272, § 2; Ads, 1854, p. 296, § 2.) With the view of reaching this result, assessors were re-- quired to ascertain the same things as under the act of 1866 — the names, &c., and the values, &c. They were to do this by diligent inquiry, and according to the best of their ability, (1851, § 8; 1854, § 8.) But if the person to be assessed, chose to make oath that the value of his property did not exceed a certain sum, the assessor was bound to accept his judgment as final, in regard to that matter. Ads, 1851, p. 274, § 10; Ads, 1854, jo. 299, § 10. The results of this method of ascertaining the value of tax- able properly were not satisfactory. Under its operation a vast amount of the property in the state v;as notoriously taxed far below its actual value. The act of 1866 reaffirms and emphasizes the policy of the earlier acts, {Nix. Dig. 951, § 2,)* declaring that all property within this state shall be liable to taxation at the full and actual value thereof; and with the view of securing a more thorough enforcement of this policy, it withdraws the question of value from the owner, and commits it exclusively to the judgment of the assessor himself, furnishing him, at the same time, with a means of informing his judgment, not previously within his reach, viz. : the rigiit to examine, on oath, the person to be assessed, and if necessary, other persons. Such being the spirit and purpose of the act, and such the object of this provision, can we doubt that the legislature intended to allow the assessor to decide for himself whether or not he would require, from the person assessed, a sworn statement of the value of his property? The danger to be guarded against, being not a tendency to * Rev., p. 1150, ? 61. 100 NEW JERSEY SUPREME COURT. State, Keeler et al., Pros., v. Tindall, Collector of Ewing. overvalue, but almost universally to undervalue property ftr purposes of taxation, why should the assessor be compelled to examine on oath, the only persons specially interested, to esti- mate the property at less than its full value? The very fact o^ his being required to resort, in all cases, to the testimony of the owners, would be likely to induce him to defer too much to their judgment, and to rely too little upon his own ; and would tend, almost necessarily, to keep assess- ments below the actual value, and so to defeat the purpose of the act. For these reasons we cannot accept the construction of the clause " shall ascertain, dbc," contended for on the part of the prosecutors, and I think that the first objection to the assess- ments ought not to prevail. It is further objected to these assessments, that they are excessive and illegal ; and that they are based upon the amount of the yearly, rental of the properties assessed, and not upon the full and actual value thereof, as required by law. These objections involving merely questions of fact, which must be determined by the testimony taken in the cause, we think it suflBcient to say that we do not find either of them so clearly sustained by the evidence as to warrant us in disturb- ing the assessments, or either of them ; and they are, therefore^ affirmed. Cited in Slate, Bobbins, proa. v. Treasurer, remedy been ti'aced in the legal forms of any state in this Union. Such procedure has never been sustained by any American court, and the subject does not appear to have been ever discussed in any of our own courts, from the reason that until the present occasion, the attempt to evict from office by a supposed analogy to this mode of proceeding, has never been made. The use of such a procedure is condemned gravissimo judicio taciturnitatis. But again, the function to declare an office forfeited from malfeasance, is obviously judicial in its character, and this leads to the second inquiry, Arhether such a function belongs to the governor of this state? It has already appeared that the authority to adjudge as to , tli-e forfeiture of office did not belong to the British crown — the king could not seize the office without inquest of office found in his favor, aad could not recall his letters patent except upon a judgment to that effect by one of the regular courts. The question therefore is, whether the prerogative of the governor of this state, in this respect, overtops that of the British sovereign ? If it has this reach, of course the power must be derived from the constitution of the state. But the framework of the government of this state has been too carefully constructed to leave so important a matter as this in any doubt, or subject to any uncertainty. Its different departments have been nicely adjusted, and the boundaries of their action have been accurately and plainly set and established. And in no part of the instrument is the line of division between the respective branches more clearly marked than between the powers of the executive and those of the judiciary. By Article III, the constitution declares : " The powers of the government shall be divided into three distinct depart- ments — the legislative, executive and judicial; and no person or persons belonging to or constituting one of these depart- ments shall exercise any of the powers properly belonging to •either of the others, except as herein expressly provided." The Vth Article appertains specially to the executive office. 114 NEW JERSEY SUPREME COURT. Stale, ex rel. Police Com'rs of Jersey City, v. Pritchard et al. Its provisions are perfectly clear and explicit. It declares that the executive power shall be vested in the governor j that he shall take care that the laws be faithfully executed, and grant, under the great seal of the state, commissions to- all such officers as shall require to be commissioned ; that he- shall be a member of the court of pardons, and may suspend the collection of fines and forfeitures, and that " when a vacancy happens during the recess of the legislature, in any office which is to be filled by the governor and senate, or by the legislature in joint meeting, the governor shall fill such vacancy," &c. These are all the powers having the least bearing on the subject under consideration, attached by the organic law to- the office of the executive. By Article VI, the whole judicial power is placed in the courts. It is obvious, therefore, that the governor of this state is not possessed of a particle of judicial capacity. I cannot see that a single one of the powers conferred upon this high, office even borders upon such authority. It is true that he is- empowered to fill certain vacancies, and in doing such acts he must decide whether or not such vacancies exist. But such decision is in no sense a judicial act. It is a mere assump- tion of the existence of a certain state of facts on which to base executive action. Such assumptions, or determinations by a chief executive, when they relate to or affect private interests, have no binding force. If the executive should fill an office on the conviction that the incumbent was dead, it is presumed that in the mind of lawyers there would prevail no doubt that if the fact of death had not occurred, the executive action would be void. An estoppel on private right by executive decision is not likely to be pleaded by any well skilled counsel. I think there is no reasonable ground on which to base a claim for the existence of any right of judi- cature in the governor of the state. And there can be as little doubt that the act of declaring that the offices involved in this case had been forfeited, was a judicial decision. It had all the essential elements of such FEBRUARY TERM, 1873. 115 State, ex rel. Police Com'rs of Jersey City, v. Pritchard et al. an adjudication. It was a determination of the fact as well as the law, and comprised at once the functions of the jury and the judge, and it related to a right of property. The questions to be settled were, whether the officer had misbe- haved ; and that was an issue of fact. And whether such misbehavior amounted to a forfeiture of office; and that was an issue of law. The point of fact required the introduction of evidence, and for this purpose the governor had before him the record of the conviction of these defendants in a criminal court. Whether such record would be competent for the purposes for which it was used, is open as a question of pure law to considerable uncertainty, the usual and inveter- ate rule being, that a criminal record is not admissible in any suit or proceeding relating to property or the civil rights of persons. But it is enough to denote that here was presented a rule of evidence to be passed upon. In all its parts the proceeding was one of ordinary judicature. And then, too, after the ascertainment of the fact, it became necessary to apply the rule of law. The result was an announcement that the forfeiture had been incurred. And this clearly was an act of judicial discretion. Than the judgment of the judge, there is no other legal test of the effect a certain act of misconduct has upon the right to office. What malfeasances will work a forfeiture is no part of the lex scripta. There is no statute upon the subject. It is obvious that it may well be that some convictions in a criminal court may not produce such a result. The point is not met by the suggestion that in this case the crime committed was one malum in se, and made highly penal, because If the jurisdiction is vested in the executive on this occasion, it belongs to him in all cases of official misdemeanor. It is not too much to say, that of all the cases where there is room for the use of a graduated standard for judicial judgment, the class of cases which com- prises the one now considered is the most prominent. What jury or judge has ever attempted to define that category of offences which in law are operative to deprive the wrong doer of a public office? And yet such was the question upon 116 NEW JERSEY SUPREME COURT. State, ex rel. Police Com'rs of Jersey City, v. Pritchard et al. which the executive was called upon to pronounce. These acts were judicial in the most rigorous sense of the term. And there are other noticeable features of the affair. A matter of fact was to be investigated and settled, and yet the testimony of witnesses could not have been compelled, and oaths could not have been administered. The defendants, whose rights were involved, were not summoned, had no hearing, and were condemned in their absence. Citizens were deprived of valuable civil rights, which they had not the least opportunity to vindicate, and when the decree of depri- vation had been pronounced, they had not even the right of appeal. The arbitrary cliaracter of such a jurisdiction would of itself be sufficient to demonstrate that it does not exist by force of the constitution of this state. The power of adjudg- ing the question of the forfeiture of office is the capacity of a judge, and does not in any degree appertain to the executive authority. It cannot fail to have been perceived that the question dis- cussed relates merely to the matter of jurisdiction. Tiiat an officer who has made use of the opportunity which his position afforded to perpetrate a fraud upon the public should be summarily cashiered, is a proposition entitled to universal assent. But the result to which I have arrived is, that the finding of the fact of misconduct and the graduation of the punishment are judicial, and not, by virtue of our system of laws, executive functions. And I think, upon reflection, there will be few minds that will deny the propriety of the establishment of this power in a judicial depositary. Its effect is to put the rights of the citizen under the safeguard of the ordinary tribunals, and to surround tliem with the protection of those modes of proceeding, trial and supervision which are the best, and, perhaps, only guarantees against error and injustice. To have left such cognizance to the executive branch of the government would have been to make these valuable interests to be dependent on the conclu- sions of a single mind, unassisted by the usual methods for the elucidation of truth, the responsibility of decision being FEBRUARY TERM, 1873. 117 State, ex rel. Police Com'rs of Jersey City, v. Pritchard et al. unrelieved by the consciousness that if the conchision should be incorrect, the error could be corrected by some supervisory tribunal. Every proceeding to remove an officer for official misconduct or neglect is essentially and thoroughly a judicial proceeding, and has consequently, and with the utmost pro- priety, been confided to that branch of the state government. Nor in the frame of the state constitution is thei-e wanting an organ appropriate to the exercise of this jurisdiction. I think the authority in question is vested in the court for the trial of impeachments. By section first of Article VI, which affects a distribution of the judicial power, a portion of it is vested in this tribunal. Its constitution is defined by section third, the right to impeach being given to the assembly, and that of trial to the senate. The jurisdiction of this important court is not, in express terms, defined. But I think it clear that its cognizance is confined to the misconduct of state officials. In England, as is well known, the jurisdiction of parliament, in this respect, is much more extensive. It is said that in that kingdom all the king's subjects are impeachable in parliament. In practice, however, this kind of prosecution has usually been confined to that class of misdeeds which are particularly injurious by the abuse of important offices of public trust. But such an extent of jurisdiction in this court would be incompatible with the most cherished notions usually preva- lent in this country, with respect to the safeguards necessary to the protection of persons and property. And that the scope of the jurisdiction of the court of impeachments, in this state, is much more limited than this, and is restricted to persons holding office under the state, is convincingly manifest from that provision of the constitution which declares that the judgment, in such cases, "shall not extend further than to a removal from office, and to a disqualification to hold and enjoy any office of honor, profit, or trust under this state." Thus, by imperative implication, the limits of jurisdiction are restricted to the offences of this particular •class of persons. 118 NEW JERSEY SUPREME COURT. State, ex rel. Police Com'rs of Jersey City, v. Pritchard et al. The only remaining question therefore is, whether the oflRce holders now involved in this controversy belong, in tlie constitutional sense, to this class of state officers of whose misdeeds this court of impeachments takes cognizance. The pertinent provision of the constitution is in these words, viz. : "The governor, and all other civil officers under this state, shall be liable to impeachment for misdemeanor in office, during their continuance in office, and for two years there- after." The present officials are state officers, and I have failed to see how they are to be excluded from the general description of the subjects of impeachment just quoted. The generality of the language, so as to comprise the whole class of state officers, ap|)ears to have been designed. In other parts, where the intention was t'o restrict the effect of a clause to constitutional officers, the language employed is aptly limited. If this comprehensive designation of the objects of the cognizance of this court is not to be fully effectuated, but is to be confined to certain classes of officers^ where are the limits to be set? If it does not take in all state officers, which are to be embraced and which excluded? The whole matter would be quite arbitrary. If the executive can try and pronounce upon the delinquency of the present officials, the extent of his power would seem entirely indefi- nite and precarious^ and no reason is perceived why it would not cover the whole field of misbehavior by these public agents. By force of such a construction of the authority of the governor, the functions of the court of impeachments would be substantially superseded. From these considerations I have come to the conclusion that these defendants were impeachable for their alleged official misdeeds, and that it would have been competent for the court of impeachments to remove them from their i)0Sts. A vacancy in these offices would have thus been created, and, in my estimation, this cannot be effected by any other power in the state. The only adjudication which has come under my notice,, which has much relevancy to the subject under discussion, is FEBRUARY TERM, 1873. im State, ex rel. Police Com'rs of Jersey City, v. Pritchard et al. that of the Court of Appeals in Kentucky, in the case of Page v. Hardin, reported in 8 B. Monroe 6-18. The contro- versy related to the office of secretary of state. It appeared that the governor had adjudged that the secretary, " by his failure, willful neglect and refusal to reside at the seat of gov- ernment and perform the duties of secretary," had abandoned his office, and that the same had become vacant, and there- upon had appointed a successor. The decision of the court was that these proceedings were unwarranted ; that the secre- tary was not removable, either at the pleasure of the governor or on his judgment, for a misbehavior in office, and that in- such cases the jurisdiction resided in the court of impeach- ments. The opinion read in the case exhibits much thought, as well as clearness and force of argument, and in its general tendency and conclusion sustains the views already expressed. In consequence of my high respect for the opinion of his excellency the governor, and of that of his legal adviser, I approached the result to which I arrived with hesitation, and at first, with a feeling of diffidence as to the correctness of my deductions. The proposition presented for solution was novel, and the executive action was obviously based on motives of justice and consideration of utility. A pressing evil seemed to call for an immediate remedy, and the mistake was that an erroneous one was adopted. It was a mere mis- take of form, and the mistake leaned to the side of right. Full reflection, however, has removed all doubt from my mind, and in the discharge of my duty, I am bound to say that the executive act in question was not authorized by the law of this state. The defendants are entitled to judgment. CiTKD in Attorney-General v. Delaware and Bound Brook JR. R. Co., 9 Vr. 282. 120 NEW JERSEY SUPREME COURT. Mayor and Alderman of Jersey City ads. Fitzpatrick. THE MAYOR AND ALDERMEN OF JERSEY CITY Ana. ^NEAS FITZPATRICK. 1. When a city charter makes payment or a tender of payment of dam» ages assessed, a prerequisite to the acquisition of title in lands taken for a street, the acquiescence of the land owner in the entry of the city upon such lands, and a demand of such damages, is not a waiver of the prerequisite of payment so as to vest the title in the city, 2. The waiver of conditions precedent must be strictly proved; contra as to conditions subsequent. 3. If the land owner acquiesced in the taking the lands and the making of improvements thereon, though no legal title will pass, there may be relief in equity. This was an action of ejeotment. The defendants claimed title under the plaintiff, their con- tention being that they had acquired the fee in the premises by force of their charter, having taken the land for a public street. The material facts in evidence were as follows : In 1867, the corporate authorities of the city of Bergen took the requisite steps to extend Jackson avenue over the land in question. These proceedings were regular, and an assessment of the plaintiff's damages being duly made in July, 1868, the same were confirmed by the board of aldermen, and the extension was declared to be a public street. Subse- quently the board passed a resolution directing the treasurer to pay the awards in question. This resolution was after- wards reconsidered and rescinded. In 1869 a resolution was passed to pay one of the owners of land along the line of extension his award. In 1868 the construction of a public sewer was commenced through this part of Jackson avenue, which was completed in the spring of 1870. Since the summer of 1868, the premises had been used as a, public street. It was shown that the plaintiff knew of the application to FEBRUARY TERM, 1873. 121 Mayor and Aldermen of Jersey City ads. Fitzpatrick. have Jackson avenue extended, and examined the maps show- ing the award of damages to the land ownei'S, and was aware that the sewer was being built. In the year 1870 he applied to the city authorities for tlie amount awarded him, and in January, 1871, presented his petition, reciting that his lands had been taken and were now being used as a public street, and claiming payment of the damages awarded to him. Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedle, Dalrimple and Scuddee. Tor the plaintiff, Jacob Weart. For the defendants, J. Dixon. The opinion of the court was delivered by Beasley, Chief Justice. The defendants set up that they have acquired from the plaintiff a legal title to the premises in dispute. It was, at the trial, satisfactorily shown that the proceedings requisite under their charter to give the city the fee in the property for the purposes of a public street, had been taken up to the point of a payment of the damages, which had been awarded to the plaintiff. This act of payment, it is admitted, has not been performed; and the only substantial question which has been raised, is whether such act has not been dispensed with by the plaintiff himself. That the statute regulating these proceedings requires pay- ment of these damages, as a prerequisite to the vesting of the title in the city, is incontrovertibly clear. This is the pro- vision in question, viz. : " That upon completing the report aforesaid, of the commissioners of assessment, assessing the value of the lands so taken, and the damages thereby, the city treasurer shall tender and pay to the owner of said lands, if a resident of the city, the amount of such assess- ment due him ; but if such owner is not a resident of the said city, or upon inquiry he cannot be found therein, or is a 122 NEW JERSEY SUPREME COURT. Mayor and Aldermen of Jersey City ads. Filzpatrick. lunatic or idiot, or if for any other lawful cause lie is inca- pacitated to receive the same, or if such owner will not accept the same and sign a proper receipt therefor when ten- dered, then the treasurer shall make affidavit of such facts, and file the same with the city clSrk ; and the board of aldermen shall, after inquiring into the facts of the case, by resolution, direct the amount of. such assessment to be placed either in the city treasury or some bank, for the use of the person to whom it may be due; and upon filing such receipt of the owner, or the passing of such resolution by the said board of aldermen, the said lands shall be vested in the city of Bergen, and the city officers may proceed with such improve- ment, &c. In view of the plain directions of this enactment, it is not necessary to advert to the question that was slightly touched on in the argument before the court, whetiier the legislature has the power to take lands for public streets without compensation being first made to the owner. For present purposes, it is enough to perceive, in the language just quoted, a manifest intention to require compensation to be made to the land owner. By force of this law, laud for a public use cannot be taken in invitum, except by pre-payment or a tender of the statutory indemnity. Consequently, as I Jiave already remarked, the only inquiry is on the point of the alleged waiver by the"^ plaintiff of this prerequisite of payment. The circumstances relied on are, that the plaintiff permit- ted the defendants to take the premises in question for the public use, and that he made demands upon the city for the moneys awarded to him. But I have been entirely unable to perceive how either or both of these facts can have the effect of passing a legal title to the lands in controversy. It is very apparent that such facts may give the defendants a strong claim to the title in a court of equity upon 2)ayment of the consideration awarded; because, before that tribunal the transaction can be enforced in the mode in which both parties contemplated its performance, tliat is, by force of a FEBRUARY TERM, 1873. 12a Mayor and Aldermen of Jersey City ads. Fitzpatrick. decree the plaintiflF would get his money and the defendants the land. But here, before this court of law, the defendants ■claim the title without having paid, and without even now tendering the money. To such a result, I do not see the faintest trace of a consent on the side of the plaintiff. He gave no consent to the entry upon his lands by the defend- ants. By the doing of that act, they became mere tres- passers. The acquiescence of the plaintiff in this invasion cannot, at law, affect his title, because he had the right to rely on the statutory condition, that before such title could be taken from him, his damages must be paid. An infer- ence from such a circumstance, that it was the intention of the land owner to let the title of his property pass away from him before a receipt of his consideration, would be most unreasonable. Nor does the other fact, that he demanded the damages awarded, evince a purpose to yield his title before the payment of the moneys due to him. The statute declared that the payment of these moneys should be a condition precedent to the acquisition of title by the city. It is not apparent, therefore, how a demand of the performance of such conditions precedent can be a waiver of such performance. It is to be borne in mind that there is a marked distinction in the legal doctrine of waiver — when applied to conditions tliat are to create an estate, and when applied to those that are to destroy an estate. In tlie former class of cases, where the estate is to arise in the doing of a certain act, there is no rigor in requiring such act to be reasonably performed ; and the consequence is, that in order to constitute a waiver of the performance of such a condition, the intention to give up the right must be indisputable. All the cases cited stand on this ground. The strongest case in favor of the doctrine contended for by the defence, is that of Leathe v. Bullard, 8 Gray 54:5. The facts were these: Tiie grant was in con- sideration of certain sums to be paid monthly to the grantor and his wife during life, and the deed contained a condition that it was not to take effect until the grantee had executed a bond with sureties to secure the payments. This bond was 124 NEW JERSEY SUPREME COURT. Mayor and Aldermen of Jersey City ads. Fitzpatrick. never executed, but the grantee was put into possession, and for more than two years paid the monthly installments, and it was held that the estate had vested on the ground of an implied waiver of the condition. It will be at once per- ceived that the acts of the grantor in this case were of such a character as not to be consistent with fair dealing, unless upon the assumption that he had dispensed with the execu- tion of the condition precedent. The money that he had taken did not belong to him, if the estate in the land had not passed to the grantee; the unavoidable inference, therefore^ was that he had discharged the grantor from his obligation to give the bond. This case, I think, is reconcilable with the rule that a waiver of the execution of a condition precedent must, in point of intention, he clearly made ovft. With respect to conditions subsequent, a different doctrine prevails. Such conditions are not favored in law, and their rigorous exaction is regarded as a kind of summum jus. They tend to destroy estates already vested, and, consequently, the doctrine of waiver when applied to them, receives a more liberal and equitable interpretation. The cases in this line would mislead, if used with respect to conditions precedent. In the facts of the present case, I do not discover anything^ which has been done by the plaintiff, which, reasonably inter- preted, can be considered as indication of an intention to dis- pense with the payment of the money due him as a prerequisite to the vesting of the title to the premises in the city of Bergen. The consequence is, that the city has no defence to this actioo at law. Their rights are equitable, and they must seek another forum. The rule must be discharged. Cited in Jersey City v. Fitzpatrick, S Stew. Eq. 97 ; Gardner v. Jersey Gity,. 5 Stew. Eq. 586 ; Mayor, &c., of Jersey City, v. Gardner, 6 Slew. Eq. 622. FEBRUARY TERM, 1873. 125 Cutler ads. State. CUTTEE ADS. STATE. 1. The mere taking of an illegal fee by a justice of the peace or other oflBcer of this state, will not constitute a criminal act, under the twenty-eighth section of the act for the punishment of crimes, (Nix. Dig. 197,) without regard to the intent of the recipient. 2. The legal maxim, icfnorantia legis neminem excusat, if enforced, where the law is not settled, or is obscure, and where the guilty inten tion, being a necessary constituent of the particular offence, is depend- ent on a knowledge of the law, would be misapplied. 3. The defendant, on an indictment for extortion in taking fees to which he was not entitled, has the right to prove to the jury that the moneys whicli it is charged he took extorsively, were received by him under a mistake as to his legal rights. Writ of error to the Court of Oyer and Terminer of the county of Hudson. Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedle, Dalrimple and Scudder. For the plaintiff in error, O. E. Schofield and I. W. Scudder^ For the state, A. Q. Garretson. The opinion of the court was delivered by Beasley, Chief Justice. The defendant was indicted for extortion in taking fees to which he was not entitled, on a criminal complaint before him as a justice of the peace. The defence which he set up, and which was overruled, was that he had taken these moneys innocently, and under a belief that by force of the statute he had a right to exact them. This subject is regulated by the twenty-eighth section of the act for the punishment of crimes. Nix. Dig. 197.* This clause declares that no justice or other officer of this state shall receive or take any fee or reward, to execute and do his duty and office, but such as is or shall be allowed by the laws *Bev., p. 230, 2 23. Vol. vii. 8 126 NEW JERSEY SUPREME COURT. Cutter ads. State. of this state, and that "if any justice, &c., shall receive or take, by color of his office, any fee or reward whatsoever, not allowed by the laws of this state, for doing his office, aud be thereof convicted, he shall be punished," &c. On the part of the state it is argued that this statute is ex- plicit in its terms, and makes the mere taking of an illegal fee a criminal act, without regard to the intent of the recipient. Such undoubtedly is the literal force of the language, but then, on the same principle, the officer would be guilty if he took, by mistake or inadvertence, more than the sum coming to him. ^or would the statutory terms, if taken in their exact signifi- ■cation, exclude from their compass, an officer who might be laboring under an insane delusion. Manifestly therefore, the terms of this section are subject to certain practical limitations. This is the case with most statutes couched in comprehensive terms, and especially with those which modify or otherwise regulate common law offences. In such instances the old and the new law are to be construed together ; and the former will SDot be considered to be abolished except so far as the design to produce such effect appears to be clear. In morals it is an «vil mind which makes the offence, and this, as a general rule, has been at the I'oot of criminal law. The consequence is that it is not to be intended that this principle is discarded, merely on account of the generality of statutory language. It is highly reasonable to i)resume that the law makers did not in- tend to disgrace or to punish a person who should do an act under the belief that it was lawful to do it. And it is this presumption that fully justifies the statement of Mr. Bishop, *' that a statute will not generally make an act criminal, how- ever broad may be its language, unless the offender's intent concurred with his act." 1 Crim. Law, § 80. This doctrine applies with full force to the present case. If the magistrate received the fees in question without any corrupt intent, and under the conviction that they were law- fully his due, I do not think such act was a crime by force of the statute above recited. FEBRUARY TERM, 1873. 127 Cutter ads. State. But it is further argued on the part of the prosecution, •that as the fees to which the justice was entitled are fixed by- law, and as he cannot set up, as an excuse for his conduct his ignorance of the law, his guilty knowledge is undeniable. The argument goes upon the legal maxim ignoraiitia legis neminem excusat. But this rule, in its application to the law of crimes, is subject, as it is sometimes in respect to civil •rights, to certain important exceptions. Where the act done is malum in se, or where the law which has been infringed was settled and plain, the maxim, in its rigor, will be applied ; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particu- lar offence, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied. To give it any force in such instances, would be to turn it aside from its rational and original purpose, and to convert it into an instrument of injustice. The judgments of the courts have confined it to its proper sphere. Whenever a special mental condition con- stitutes a part of the ofi'ence charged, and such condition depends on the question whether or not the culprit had cer- tain knowledge with respect to matters of law, in every such case it has been declared that the subject of the existence of such knowledge is open to inquiry, as a fact to be found by tlie jury. This doctrine has often been applied to the offence of larceny. The criminal intent, which is an essential part of that crime, involves a knowledge that the property taken belongs to another ; but even when all the facts are known to the accused, and so the right to the property is a mere ques- tion of law, still he will make good his defence if he can ^how, in a satisfactory manner, that being under a misappre- hension as to his legal rights, he honestly believed the articles in question to be his own. Rex v. Hall, 3 Carr. & P. 409; Heg. V. Reed, Car. & Marsh. 306. The adjudications show many other applications of the same principle, and the facts of some of such cases were not substantially dissimilar from those embraced in the present inquiry. In the case of The People v. Whaley, 6 Cow. 661, 128 NEW JERSEY SUPREME COURT. Cutter ads. State. a justice of the peace had been indicted for taking illegal fees, and the court held that the motives of the defendant^ whether tli^y showed corruption or that he acted through a mistake of the law, were a proper question for the jury. The case in The Commonwealth v. Shed, 1 ^fass. 228, was put before the jury on the same ground. This was likewise the ground of decision in the case of The Commonwealth v. Bradford, 9 Mete. 268, the charge being for illegal voting, and it being declared that evidence that the defendant had consulted counsel as to his right of suffrage, and had acted pn the advice thus obtained, was admissible in his favor. This evidence was only important to show that the defendant in infringing the statute had done so in ignorance of the rule of law upon the subject. Many other cases, resting on the same basis, might be cited ; but the foregoing are sufficient to mark clearly the boundaries delineated by the courts to the general rule, that ignorance of law is no defence where the mandates of a statute have been disregarded or a crime has been perpetrated. That the present case falls within the exceptions to this general rule, appears to me to be plain. There can be no doubt that an opinion very generally prevailed that magis- trates had the right to exact the fees which were received by this defendant, and that they could be legally taken under similar circumstances. The prevalence of such an opinion could not, it is true, legalize the act of taking s*ch fees ; but its existence might tend to show that the defendant, when he did the act with which he stands charged, was not conscious of doing anything wrong. If a justice of the peace, being called upon to construe a statute with respect to the fees coming to himself, should, exercising due care, form an honest judgment as to his dues, and should act upon such judgment, it would seem palpably unjust, and therefore inconsistent with the ordinary grounds of judicial action, to hold such conduct criminal if it should happen that a higher tribunal should dissent from the view thus taken, and should decide that the statute was not susceptible of the interpreta- FEBRUARY TERM, 1873. 129 Olterson et al. v. Hofford et al. tion put upon it. I think tiie defendant had the right in this •case to prove to the jury that the moneys, which it is charged he took extorsively, were received by him under a mistake as to his legal rights, and that as such evidence being offered by him was overruled, the judgment on that account must be reversed. Cited in State v. Ealated, 10 Vr. 402 ; Hoisted v. State, 12 Vr. 552. OTTEESON ET AL. v. HOFFORD ET AL. When the reccrd of a will, together with the affidavit at the time of probate, is offered in evidence, it is competent for the opposing party to show statements made out of court by one of the subscribing wit- nesses who had joined in such affidavit, in order to contradict the statements of such affidavit as to the due execution of the will. Such evidence standing alone will not invalidate the instrument. On rule to show cause why a new trial should not be granted. Argued at November Term, 1872, before Beaslet, Chief Justice, and Justices Bedle, Dalrimple and Scudder. For the plaintiff, J. G. Shipman. For the defendant, P. L, Voorhees and A. Browning. The opinion of the court was delivered by Beasley, Chief Justice. This is an action of ejectment, both parties claiming title under the same ancestor; the plain- tiffin right of his wife as heir-at-law, the defendant by force of a will. After the plaintiff had proved the pedigree on which he relied, the defendant introduced a certified copy of the record of the will in question. Upon an inspection of this copy, it appears that there were three testamentary witnesses, all of whom had been sworn in making probate. One of these wit- nesses was produced at the trial by the plaintiff, and testified 130 NEW JERSEY SUPREME COURT. Otterson et al. v. Hofford et al. to the effect that the will had not been legally executed. Another of them being called by the defendant controverted the statements of the former, and made out a legal execution of the instrument. The third subscribing witness was not called on either side. In this condition of the case the plaintiff's counsel offered to show that the third witness, who had not been sworn, had made sundry statements inconsistent with the fact of the due execution of the will in his presence. This offer having been overruled by the court, constitutes one of the grounds on which a new trial is asked. To fully estimate the force of the plaintiff's position, the exact situation of the parties with respect to the evidence before the court at the time of this offer, is to be kept clearly in view. The defendant was standing before the jury, in part, on the affidavit of this absent witness. That testimony, if accepted as true, proved the point in dispute, which was, whether the will had been executed according to the statute. The defendant did not call the witness, but relied on his ex parte affidavit, as it appeared on the record made up by the surrogate in compliance with the act. The plaintiff therefore had no opportunity to cross-examine this witness, whose tes- timony was so important. If he had been called by the plaintiff himself and had confirmed his affidavit, his state- ments inconsistent with his recorded oath, could not have been shown. The plaintiff would not have been permitted to- break down his own witness. The question is, whether by the operation of the statute which directs the surrogates to record wills, " together with the proofs thereof," and whiclv declares that certified transcripts of such records shall be received in evidence, the party against whom such transcript may be offered is deprived not only of the opportunity of cross-examination, but also of the right to show statements made by the testamentary witnesses at variance with their oaths at the time of probate. To the extent of the legal principle involved in this inquiry, the decisions heretofore made by this court appear to FEBRUARY TERM, 1873. 131 Otterson et al. v. Hofford et al. be conclusive on this point. To this class belongs the judg- ment in the case of The Reformed Dutch Church v. Ten JEyck, 1 Dutcher 40. One of the objections to the proceedings in that instance was, that the written statements of a sub- scribing witness to a deed, who was dead, in disparagement of the evidence afforded by his signature, had been admitted, but such objection was not allowed to pj:evail. " Jt would seem," says the opinion of Chief Justice Green, " from the necessity of the case, and as affording the best substitute for the opportunity of cross-examination, which has been lost by the death of the witness, the evide'nce ought to be received in support of a charge of fraud or forgery. But standing alone, unsupported by other evidence, it is entitled to but little weight, and should never be suffered to defeat the title." This point passed again under consideration in the case of Boylan ads. Meeker, 4r Dutcher 294, and the same view was taken with respect to it. The principle adopted is thus expressed. It is from the opinion of Chief Justice Whelp- ley that I quote : " Chief Justice Ewing, in the course of an elaborate judgment in Patterson v. Tucker, holds that the foundation of the rule permitting proof of the handwriting of the subscribing witnesses to stand as proof of the execu- tion of the instrument in certain cases is, that the attestation of the witness is a declaration by him that the instrument was duly executed in his presence, as the attestation clause usually declares. If that be the case, I think it is quite clear whenever the attestation is offered in evidence as proof of the execution of the instrument, any evidence wliich would have been competent against the witness, had he been sworn, will be competent to overthrow tlie force of his declaration offered in evidence instead of his testimony." The case of Losee v. Losee, 2 Hill 609, stands on the same ground, it being there held that where the plaintiff relied on the proof of the hand- writing of a deceased subscribing witness, the defendant might give evidence of his bad character for the purpose of rebutting the presumption that the instrument, to which his name was attached, had been duly executed. The doctrine 132 NEW JERSEY SUPREME COURT. Olterson et al. v. Hofford et al. embodied in these decisions applies, a fortiori, to the present case. If the accident of the deatli of the subscribing witness will not take away the right of the opposing party to prove the bad character of such witness, or statements made by him inconsistent with the influences necessarily arising from his signature, much less will such incapacity arise from the failure of the party claiming under the instrument in dispute, to call such witness to the stand. The decisions which have denied the right to impeach, by the modes in question, the testimony of the subscribing witness, were so decided on the ground that the proof of the signature of the witness did not import an attestation on his part that the instrument had been duly executed in his presence. This was the reasoning in Stohart v. Dryden, 1 M. & W. 615, a case the authority of which was rejected in the determinations of this court already referred to. But even this repudiated ground of judgment is not applicable in the present instance. It was the affidavit and not mere proof of the signature of the witness, which was on this occasion before the jury, so that there is no question as to the meaning or effect of the evidence. The witness had testified, as appeared on the record, that the will had been legally executed, and the facts making out such legality had been stated by him. The defendant, instead of calling the witness, relied on this affidavit. By such a course can he deprive his adversary of all chance of showing the unreliability of such witness from his own mouth ? Such an option would be greatly inexpedient, and tend to manifest unfairness. Suppose the case of a will fraudulently obtained, the witnesses being privy to the fraud. As a copy of the record of the will can be introduced, and thus the examina- tion of the witnesses dispensed with, it seems one of the necessities of the case, in the pursuit of a just result, to admit evidence of variant statements made out of court by such witnesses, or as to their general bad character for truth. Such testimony, standing alone, would not invalidate the instrument, but, when supported by other proofs, ought to be received as a compensation for the loss of the privilege of FEBRUARY TERM, 1873. 133 Lewis V. Perkins et ux. •cross-examination, and in order to impair in some measure the effect of proof of the signature in connection with the clause of attestation. The statute, making copies of the records of wills evidence, was not designed to give to persons claiming under such instruments any undue advantage when a question was mooted as to their honest or legal execution. The intention was to make them prima facie evidence for the sake of convenience. But when such record is produced, the ordinary principles of evidence become applicable, one of which is, that the statements of the subscribing witness made out of court which do not coincide with his affidavit at the time of probate, or with the import of the attestation clause, may be introduced by way of contradiction. The evidence in question I think ought to have been admitted. The other objection to the proceedings has been examined, but appears to me so manifestly fallacious that I have not thought it necessary to discuss it. On the ground first specified, a new trial should be granted. LEWIS V. PEEKLNS AND WIFE. In a suit founded on a contract of a married woman, her capability to contract must be shown in the declaration by a statement of the neces- sary facts,* On demurrer to declaration. Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedle, Dalrimple and Scudder. For the plaintiff, J. G. Shipman. For the defendant, M. Wychoff. *See Hinkion v. Williamson, 12 Vr. 35. 134 NEW JERSEY SUPREME COURT. Boyd V. King. The opinion of the court was delivered by Beasley, Chief Justice. This suit is grounded on a contract alleged to have been made by the wife. The agree- ment thus disclosed is set forth as though a feme covert, with respect to the power to make contracts, was under no disability. The contract as stated in this pleading is, undoubtedly, invalid by the rules of the common law. All the counts in this particular are constructed on the same model. And the demurrer is, consequently, general to the whole declaration. In the case of Eckert v. Meuter et ux., 4 Vroom 266, it was decided by this court that the act which gives the right of suit at law against a married woman did uon enable the feme to enter into any contract which she had not, before the pas- sage of that law, been authorized to make, and that the effect of the statute was to make her equitable engagements suable at law. The necessary consequence of this decision is, that in displaying a cause of action against a. feme covert in a court of law, it is necessary to show the circumstances which make her contract obligatory. Her general condition is one of inca- pacity to bind herself by her agreement. The particular facts therefore which remove such disability must appear in order to make out a legal cause of action. A caution was appended to the opinion just cited, that in suits under the statute in question, the declaration must be special. In this case that caution has been disregarded, and the demurrer must be sus- tained. Cited in Wilson v. Herbert, 12 Vr. 454. BOYD V. KING. 1. The attachment act does not appoint the mode of the sheriff's return of the writ, and consequently his certificate that he has duly served the process, accompanied by an inventory and appraisement, constitutes, standing alone and unexplained, a valid service. 2. An attachment is proper whenever the claim is founded in contract and special bail, as of course, could be required at common law. FEBRUARY TERM, 1873. 135 Boyd V. King. 3. Query — Can the interest of a vendee in lands under an agreement to- purchase be attached ? 4. The sheriff's return in this case construed. The motion was to quash the writ of attachment. The following was the return of the sheriff to an attachment against the defendant as a non-resident debtor : " By virtue of the annexed writ, I have this 23d March, 1871, attached Benj'n W. King, his rights and credits, moneys and effects, goods and chattels, lauds and tenements, and the following is a just and true inventory and description of the same, to wit,, the right, title and interest of Benj'n W. King in all lands, &c. * * * Being the premises which Ruckman agreed to con- vey to Benjamin W. King by certain articles of agreement, bearing date the 12th day of May, 1868, and the rights and interests of the said Benj'n W. King in and to the above described property, &c, * * * " Valued at $100. (Signed,) "J. L. Van Blarcom, Sheriff. "A. D. Campbell, ^j^pmzser.'' Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedle, Dalrimple and Scudder. For the motion, Wm. L. Dayton, The plaintiff, pro se. The opinion of the court was delivered by Beasley, Chief Justice. The first ground assigned for quashing these proceedings is, that the return of the sheriff is insufficient. That the officer does not show in his return a compliance with the directions of the statute with respect to the mode of executing the writ, is the subject of this exception. It cer- tainly cannot be denied that this return does not manifest, in terms, that the writ has been executed in conformity with the- 136 NEW JERSEY SUPREME COURT. Boyd V. King. provisions of tlie act. The certificate of the officer to the -court is a naked statement that by virtue of the attachment he has attached the property of the defendant, and to this is annexed an inventory and appraisement, signed by himself and an appraiser. The manner of making tiie attachment does not therefore appear, and the facts exhibited in the return, are consistent with neglects on the part of the officer of several acts, which by the statute are made essential to the creation of a lien upon the property of the defendant. But the presumption of law is in favor of the regularity of the procedure, and herein lies the infirmity of this first exception taken by the counsel of the defendant. To render the return of the attachment fatally defective, when tliere has been in substance an execution of the process, it must be made to appear affirmatively that an essential act has been omitted to be done. When there is no clear exhibition of such omission it cannot be inferred. The act particularly directs how the writ is to be levied, but it does not require any special mode of return, and the consequence is that it has been repeatedly held in this court that the sheriff's certificate, couched in general terms that he has duly served the writ, accompanied by an inventory and appraisement, is, standing alone and uncontradicted, a valid service. This was the rule adopted and very plainly expressed in the case of Thompson v. East- bum, 1 Harr. 100. The sheriff in that instance did not show that in making his levy upon the property he had taken all the several steps required by the statute, but the proceeding was sustained, and the court said : " If the sheriff should return as follows : ' I have served (or executed) tiie within writ, in the manner directed by law, this day of , &c.,' and sign his name thereto, and annex an inven- tory and appraisement of the property attached, signed by himself and a freeholder, it would be sufficient." The same rule was sanctioned, and the same course of practice followed in Morrell v. Buckley, Spencer 669, and in Castner v. Styer, 3 Zah. 247. The principle is, that when the return shows in substance a legal service of the writ, there is a legal intend- FEBRUARY TERM, 1873. 137 Boyd V. King. ment in favor of the legality of the proceedings of the sheriff in all other particulars. The application of this principle- explodes the first of the exceptions taken in this case. To avoid misconstruction, it is proper to remark that the case of Tomlinson v. Stiles, reported in 4 Dutcher 202, and in 5' Dutcher 426, has no application to the point here decided, because in that case it appeared affirmatively by the return of the sheriff, that he had not executed his writ on the 'par- ticular land which he sold. In this decision, the principle above adopted is admitted to be correct. The second objection urged against the proceedings is^ that the interest or estate of the defendant in the lands levied on is not of an attachable nature. This point in the briefs of counsel is argued upon the assumption that this interesfe of the defendant in the premises in question has been shown to the court by the return of the sheriff. But this is a mistake. The writ, it is stated, is levied on certain lands; and it i& further said that such lands are those embraced in a certain article of agreement, whereby one Ruckman covenanted to convey them to the defendant. But it is not, nor could it properly be alleged in this return, that all the estate which the defendant has in this property arises by force of this article of agreement. Nor if such statement were before the court could any judicial action be founded on the ministerial offi-cer's construction of this instrument. That which the Ftheriff might consider an agreement to convey, might be regarded as an actual conveyance. But the return does not purport to be a levy only on such interest as the defendant has through the operation of this contract, but such contract is referred to only as a means of describing the property attached. For aught that appears, the defendant may have a regular deed of conveyance for these premises, and may be the owner in fee. If the naked case had been presented of the levy of an attachment on the interest of a vendee in real estate, by virtue of an agreement to convey on the payment of the purchase money, I should have had little doubt that such writ ought to be quashed. Such a right is a mere equity^ 138 NEW JERSEY SUPREME COURT. Slocum V. Seymour. and could not be handled at law. But the facts before the •court do not present this question, and it is therefore not necessary to decide it. This second objection cannot prevail. The last exception to the proceedings is, that tiie claim of the plaintiff was not of such a nature as to be enforceable by process of this kind. The claim of the plaintiff is for work and labor, and it was suggested that as the amount due was not a sum fixed by positive agreement, an attachment would not lie to enforce it, on the ground that the judgment must be for unliquidated damages. But this matter has been long since settled. The test as to what claims will support an attachment was applied ^nd adopted in the case of Jeffery v. Wooley, 5 Halst. 123, and that test was, that such process was proper whenever the cause of action was founded on a contract, and was of such a nature as to enable the plaintiff, as of course, to require special bail. It therefore follows, necessarily, that the plaintiff's case is not faulty in this last particular. The motion to quash should be overruled. Cited in Dodge v. Butler, 13 Vr. 370. HIRAM SLOCUM v. ARTHUR G. SEYMOUR. 1. A sale of standing timber, by tbe owner of the freehold, is not a sale of a chattel interest, but of an interest in lands, and is not controlled by the doctrine of warranty of title in sales of personal property. 2. In no sense can trees, the natural and permanent growth of the soil, be regarded as partaking of the character of emblements or fruclus induslriales, but are a part of the inheritance, and can only become personalty by actual severance, or by a severance in contemplation of law, as the effect of a proper instrument of writing. 3. When a contract comprehends an interest in trees standing, with a right in the vendee to sever them, the subject matter is then an inter- est in land within the statute of frauds. Error to the Circuit Court of the county of Bergen. FEBRUARY TERM, 1873. 139 Slocum V. Seymour. Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedlb, Daleimple and Scudder. For the plaintiff in error, C. H. Voorhis. For the defendant, E. A. S. Man. The opinion of the court was delivered by. Bedle, J. Slocum conveyed to Seymour by an ordinary deed of conveyance dated December 20th, 1860, all the wood and timber upon a certain tract of land, with the right, in the vendee, to cut and remove the same before July 1st, 1862. The deed described the tract by metes and bounds, and as the same premises conveyed to Slocum by Abram W. Haring and wife, by deed of even date with the deed to Seymour. The title of Slocum to a part of the tract proved defective, and this suit is brought upon an alleged implied covenant of title in the plaintiff's (Seymour's) deed. There is no express covenant of title, but there is a covenant against the acts of the grantor. The charge was based upon the assumption that the parties had treated this as a sale of personal property, aud that a warranty of title would be implied by the law. Although there is great diversity in the cases, whether a sale of standing timber by the owner of the freehold is of a chattel interest, I am satisfied that such a sale is of an interest in lands, and not controlled by the doctrine of warranty of title in sales of personal property. In no sense can trees, the natural and permanent growth of the soil, be regarded as partaking of the character of emblements, or frudus indus- triales, but are a part of the inheritance, and can only become personalty by actual severance, or by a severance in contem- plation of law as the effect of a proper instrument of writing. It may be conceded, and such is the law, as in the case of Smith V. Surman, 9 B. & C. 5Q1, that there may be a valid parol contract for the sale of timber as a chattel where it is to be cut and delivered by the vendor, although designated as being upon certain land, and where the contract contemplates 140 NEW JERSEY SUPREME COURT. Slocum V. Seymour. no property to the vendee in the trees until after they are actually cut down and reduced to chattels ; yet, where the sale is of an interest in the trees standing, without having been in legal effect severed by the force of a previous written instru- ment, and although the American cases differ upon the subject, the best considered of them, and those which I think declare the law, hold that such a sale is of an interest in lands, within the meaning of the statute of frauds. Green v. Armstrong, 1 Denio 551 ; Buck v. Pickwell, 27 Vt. 158 ; Putney v. Day, 6 N. H. 430 ; Olmsted v. Niles, 7 N. H. 522. This also is a fair result of the English cases, although to some extent conflicting. The duly adverse ruling in point in England is in Lord Raymond 182, where it is stated that Treby, C. J., reported to the other justices that on a question before him at nisi pr ins, whether the sale of timber growing ought to be in writing by the statute of frauds, or might be by parol; he was of opinion, and ruled accordingly, that it might be by parol, because it was a bare chattel. The report also states, and Powell, J., agreed to this opinion, but whether informally or in banc, it is difficult to tell from the report. This ruling is also mentioned in Puller's Nisi Prius 282, as per Treby, C. J. But the case of Scorell v. Boxall, 1 Younge & Jervis 395, is directly to the contrary, and in it Hullock, B., regards the report in Lord Raymond as a dictum merely and not as an authority. That report is undoubtedly the founda- tion of all the American eases to the same effect, but it is not considered as the settled law in England. The case of Scorell V. Boxall was this : The plaintiff had purchased, by parol, underwood standing, to be cut by him, and brought his action against the defendants for cutting and carrying it away. The Court of Exchequer held that the plaintiff's contract was a mere parol contract for the sale of growing underwood, a part of the freehold, and in direct violation of the statute of frauds — that it was the sale of an interest in land. See also the case of Teal v. Auty, 2 B. & B. 99, to the same effect as to the purchase of growing poles. As already indicated, trees may become personalty when FEBRUARY TERM, 1873. 141 JosHn V. New Jersey Car Spring Co. actually served, or when the property in claim has become distinct from the freehold by written transfer. There may also be valid parol contracts with the owner of the soil, with reference to their sale and delivery as chattels in contempla- tion of severance, where no interest in the trees standing is intended by the bargain, the same as contracts for the sale of lumber to be cut, sawed and delivered as such ; but when the contract comprehends an interest in the trees standing, with a right in the vendee to sever them, the subject matter is then an interest in land within the statute of frauds. Such was clearly the character of the contract between these parties, as the deed shows an intention to convey, and does convey, an in- terest in the wood and timber standing, when a part of the freehold, in the hands of the vendor. The deed secures to Seymour an actual property in the trees as a part of the land, and not merely a right of action under a contract of purchase of personal property. The bargain having been consummated in this case by the delivery and acceptance of a deed of conveyance, the doctrine of caveat emptor must apply in the absence of fraud, unless the purchaser has protected himself by a covenant of warranty of title in the deed. Phillips v. City of Hobohen, 2 Vroom 143; 4 Kent 471, {note). In this deed there is no such covenant, and the law will not imply one. For these reasons the action was not maintain- able, and the judgment must be reversed. JACOB D. JOSLIN v. NEW JERSEY CAR SPRING COMPANY. 1. A promise to pay "all liabilities" of a manufacturer, in consideration of a sale and transfer of all the property and assets, will include a dis^ puted claim for the salary of the foreman of the factory. 2. An action may be maintained on a written promise made by the de- fendant to a third person, for the benefit of the plaintiff, without any consideration moving from the plaintiff to the defendant. Vol. VII. 9 142 NEW JERSEY SUPRExME COURT. Joslin V. New Jersey Car Spring Co. S. Where an amendment is allowed by the court, at tlie trial, on motion to set aside the verdict, botli surprise and substantial merits shotild be shown ; and wlien justice has been done by a verdict, a new trial should not be granted. In case. On rule to show cause why verdict should not be set aside. The plaintiff was employed as the foreman of the defendants at their rubber factory in Jersey City, from January, 1866, to February 1st, 1870. At the latter date the company leased the factory to Fields & King for a term of five years. Fields & King took the property, business and assets of the company, and assumed their liabilities. The plaintiff continued in the factory as foreman in the employ of Fields & King from Feb- ruary 1st, 1870, to October 1st, 1871, at which time the lease was surrendered to the defendants. The company took Fields & King's assets and stock, and assumed all their liabilities ; also, all the liabilities o^ Fields, who had bought out King before the transfer was made. The contract between the parties consisted of the proposal by Mr. Fields to the company, September 30th, 1871, which ■was presented to the directors at a meeting in the company's office, 45 Courtlandt street. New York. The plaintiff was present at the meeting as a director. The proposal was " to cancel said lease, and carry on the business of the corporation under its proper title for the benefit of the stockholders ; the terms of the surrender of the lease to be the same terms as it was made, to wit, the company to take all material manu- factured and unmanufactured, with all merchandise and accounts, and assume all liabilities, crediting me with any excess, and debiting me with any accounts that may prove bad." This proposition of Mr. Fields was accepted by a resolution of the directors, entered in their minute book, and the lease was therein ordered to be duly cancelled from October 1st, 1871. Since that time the defendants have been in possession of the factory, and business has been carried on in their name. FEBRUARY TERM, 1873. 143 Joslin V. New Jersey Car Spring Co. The plaintiff continued as before in the factory as foreman up to January, 1872, when he was discharged by the com- pany. His salary from January, 1866, to May, 1867, was at the rate of $1200 per year. In May, 1867, it was raised to $1500 per year. The plaintiff's testimony was, that on October 1st, 1869, he had notified Mr. Fields, who was the president of the company, owned more than half the stock, and was the general agent and manager of the business during all the time the plaintiff was there, that he intended to leave. The plaintiff (Joslin) went to Trenton and made a contract with Wiiitehead Brothers to enter their employment as foreman for $2000 per year and house rent. He saw ■ Fields on his return, and told him of his engagement with Whitehead Brothers. He testifies that Fields .said to him that he was worth just as much to their concern as to any other, and tliey could afford to pay him as much as any other, requesting him to reconsider the matter and stay with them ; also, that at Fields' request he made an arrangement with Whitehead Brothers to send another man in his place, and stayed with the company until January 8th, 1872. Joseph Whitehead, one of the firm of Whitehead Brothers, corrobo- rated the plaintiff's statement, that he had been employed by them for $2000 per year and a house to live in. The house he was to occupy was in the country, two or three miles from Trenton, near their factory, and rented for $75 a year. Fields testified that he did not make with the plaintiff the arrangement of October, 1869, as he alleged, but admitted that he did tell Joslin at that time that they could do as well by him as any one else would. After this alleged new con- tract, Joslin continued to draw his pay as before, $30 per week. He claimed in the action his increa-sed salary from January 1st, 1870, stating a balance of $571.17 as due to him. He also claimed $651.84 for house rent in Jersey City, which he had paid from January 1st, 1870, to January 1st, 1872. The jury rendered their verdict for the full amount claimed, $1223.0L 144 NEW JERSEY SUPREME COURT. Joslin V. New Jersey Car Spring Co. Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedle, Dalremple and Scudder. For the rule, J. F. Randolph, Jr. Contra, J. B. Vredenburgh. The opinion of the court was delivered by Scudder, J. The facts above stated on the part of the plaintiff were found by the jury in his favor. There can hardly be a doubt upon the testimony that he gave up his engagement with Whitehead Brothers, with the understand- ing that he was to have an annual salary of $2000, from January 1st, 1870, and house rent. The defendants deny the agreement, but Fields admits that he told him they could do as well by him as any one else would, if he remained with them. The jury have rightly construed this as a promise that Fields & King would do as well for him as Whitehead Brothers had agreed. If it were otherwise, it was a deception attempted upon him. I think the verdict is sustained by the evidence. The plaintiff was entitled to his $2000 salary and a house for liis family to live in, at a reasonable rent, if the jury believed his testimony, and his claim has strong merits. The defendants object further, that the plaintiff has no- legal claim against them for the salary and house rent from February Ist, 1870, to October 1st, 1871, while he was in the employ of Fields & King, and Fields alone ; that they did not assume this, and the plaintiff has no right of action against them for services rendered to Fields & King, and Fields during that time. The defendants, when the lease and property were surren- dered to them by Fields October 1st, 1871, assumed " all liabilities of Fields & King, and Fields, receiving as a con- sideration therefor at that time, besides the surrender of the lease, all the materials manufactured and unmanufactured, with all the merchandise and accounts." The plaintiff had knowledge and gave assent at the time to this arrangement. FEBRUARY TERM, 1873. 145 Joslin V. New Jersey Car Spring Co. for he was present and acted upon it as one of the directors of the company. He assented to the transfer of this liability from Fields & King to the company, and took them as his debtors. The defendants however contend that these liabili- ties which they assumed to pay must be confined to such as were admitted, and such as appear on the books of Fields &King; and that the statement of liabilities made out at that time, or soon after, does not show this claim of Joslin as unsettled. It is a sufficient answer to say that this was not the contract. The defendants, in their accepted proposition, assumed all liabilities without any specification or limitation. This includes any and all arrearages of wages due workmen for services, and any unpaid salary to the foreman, although they might be in dispute at the time. The term used in the proposal is not debts, accounts, or any admitted and ascer- tained sum, but " all liabilities." This is broad enough to cover a disputed claim for wages or salary to the foreman of the factory. Liability is defined to be a state of being bound or obliged in law or justice. This is alike the legal and pop- ular definition of the word, and the jury have so understood and rendered it. The plaintiff assented and gave credit upon this construction, and he has the right now to insist upon it as the true interpretation of the contract. But if it be true that the defendants assumed the payment of all the liabilities of Fields & King, and if this unsettled balance claimed by the plaintiff was included in this assump- tion, it is further insisted that the plaintiff cannot maintain the action in his own name against them, as there is no privity of contract, and no consideration was passed between them. All the positions taken by counsel upon this point in the case and many of the authorities cited, are fully examined and explained in Barker v. Bucklin, 2 Denio 45. It is therein held that an action may be maintained on a promise made by the defendant to a third person for the benefit of the plaintiff, without any consideration moving from the plaintiff; and that where B being indebted to the plaintiff sold property to the defendant, who agreed to pay the price 146 NEW JERSEY SUPREME COURT. Joslin V. Xew Jersey Car Spring Co. of it to the plaintifiPon account of his demand against B, the plaintiff might maintain an action against the defendant on such promise. 1 Pars. Coat. 389-90; 2 Ain. Ld. Cas. 185, and notes ; Blunt v. Boyd, 3 Barb. 209 ; Feltmakers v. Davis, 1 B. d' P. 101, note (c). It is also stated in some of the authorities above cited, as a result of a review of the cases, that it is now well settled, as a general rule, that in cases of simple contracts, if one person makes a promise to another for the benefit of a third, tlie third may maintain an action on it though the consideration does not move from him. See also Farley v. Cleveland, 4 Cow. 432 ; S. a, 9 Cow. 639. The rule is otherwise in case of sealed contracts. Millard V. Baldivin, 3 Gray 484; Johnson v. Foster, 12 Mete. 167. The present case avoids the question which is sometimes raised, where the assumption is by parol, whether as a promise to pay the debt of another, it is not within the statute of frauds, because here the proposal and resolution of acceptance are in writing, and the consideration is fully expressed. Here also there is a new and distinct consideration for the promise of the defendants moving to them from Fields in the surren- der of the lease, and the transfer of all the property and assets of said firm and of Fields. Hetjield v. Dow, 3 Dutcher 440. One other reason for setting aside the verdict and granting a new trial remains to be considered. The declaration contained only the usual common counts and short statements of the amounts claimed, annexed as a bill of particulars. After the testimony had closed, the plaintiff's counsel moved to amend his declaration by adding account for moneys due to the plaintiff for services rendered to Fields & King and to Fields, the payment of wiiich was assumed by the defendants. The amendment was allowed by the court under our practice act. Nix. Dig. 739, § 166.* Oa this motion for a new trial, the defendants claim that they were surprised, and were deprived of their appropriate defence by this amendment. Affidavits have been takea *Eev.,p.S69, I 138. FEBRUARY TERM, 1873. 147 Joslin V. New Jersey Car Spring Co. under the rule to show cause to establish the fact by a defence to the amended count, and to show the effect of the action of the court in permitting the amendment. If all the facts that have been shown on this rule were in the case submitted to the jury, their verdict would still be right; and if the case were before us to set aside the verdict upon those facts proven, this court would not disturb it be- cause it was against the weight of evidence, or unjust. This testimony is mainly cumulative, and the plaintiff's case, from the circumstances known to the defendants and involved in the issue, could have been anticipated readily. Both surprise and substantial merits should be shown to warrant the court in setting aside the action of the court below, and where justice has been done by a verdict, a new trial should not be granted. Steelman v. Steelman, 1 Harr. 66 ; Princeton Turn- pike v. Gulick, 1 Harr. 167 ; Hilliard on New Trials 46- 48, 398 ; 2 Archh. Fr. 252. I am also satisfied that the amendment permitted was within the power of amendment, as heretofore determined in this court, and the subject matter of the amendment was within the issue upon the record before such amendment was made. Hohoken v. Gear, 3 Dutcher 265; Price v. N. J. Railroad Co., 2 Vroom 229. The attempt of these supplemental affidavits was merely to show that the assumption of liabilities was confined to such as appear on the books of the company, in opposition to the written proposal made by Fields to pay "all liabilities." The plaintiff and the defendants knew and assented to the arrangement at the time it was made, and upon all the facts shown, I think the plaintiff was entitled to a liberal, and not a narrow, construction of the term used. The rule is discharged, and the verdict sustained. Cited in Farrier v. Schroeder, 1 1 Vr. 601 ; Redstrake v. Cumberland Ins. Co., 15 Vr. 294; Pruden v. Williams, 11 C. E. Gr. 210; Crowell v. Currier, 12 C.E. Or. 152; Crowell v. Hospital of St. Barnabas, 12 C. E. Gr. 650; Price V. Trusdell, 1 Stew. 200 ; Cubberly v. Cubberly, 6 Stew. Eq. 82. 148 NEW JERSEY SUPREME COURT. Neldon v. Smith, GEORGE H. NELDON v. SAMUEL T. SMITH. A sale of coal as soon as it is delivered from the mines, upon a stipu- lation that it is not to bind, if the coal company do not deliver it according to a certain proposal, which is to sell five hundred tons or more for immediate delivery, for a fixed price, and at a certain place, is conditional and mutual. If coal is received from the mines after the time named in the con- tract, the seller is not bound to deliver it, nor is the buyer bound to receive it. The buyer has not an option to take it for the price named in the contract. The term "immediate delivery," explained to mean, among coal shippers and dealers, a delivery within the present, or in some cases, the succeeding month, and thus interpreted in this contract. Where coal was accepted by the seller, by a parol agreement with the company after the breach, and in settlement of damages claimed for the breach — Held, to be by way of accord and satisfaction, and not a delivery under the former contract. In case. On motion to set aside the verdict. At tiie trial of the above cause in the Sussex Circuit Court, in April Term, 1872, a verdict was rendered for the plaintiff upon the facts, and several points of law were reserved for the opinion of this court. The following are the material facts of the case. July 29th, 1865, a contract in writing was signed by the plaintiff and defendant in these words: " I agree to take from S. T. Smith, three boat loads of coal, deliv'd at Waterloo, for $5.65-100, to be either egg or stove, as soon as coal is deliv'd from the mine, from this date July 29, '65, said Neldon to take it in boats at Waterloo, and does not bind said Smith ujiless Del., Lack. & West. Co. deliver the coal to him as per offer of B. S. French's, per letter of July nth, 1865. "G. H. Neldon, [stamp.] "Samuel T. Smith." The former part of the agreement is in the handwriting of the plaintiff, and the latter was written by the defendant. FEBRUARY TERM, 1873. 149 Neldon v. Smith. This was entered in a memorandum book of the plaintiff. In a few minutes after this was signed by the parties, they went to the defendant's store, and there the defendant drew up a contract similar to the above in his own memorandum book, saying he would like to have a copy of the contract they had made ; and it was also signed by them. It reads thus : "Engaged July 29, 1865, to G. H. Neldon, Esq., three boat loads coal, at five dollars and sixty-five cents ($5.65) per ton, m'fst weight, delivered in boats at Waterloo, pro- vided Del., Lack. & West. R. R. Co. deliver the coal to me agreeable to price and conditions of B. S. French, agent's letter of July 11th, 1865, the coal not to be shipped out of the present stock in yard at Washington, but to come fresh from the mines. " July 29th, 1865. " Samuel T. Smith, " Geo. H. Neldon." Directly below this entry was the following, in the defend- ant's writing : " P. S. — If said coal is not delivered by Sept. 1st, (agreea- ble to Mr. French's offer to me) then I agree to rescind my engagement with Mr. Neldon, and the above is to be con- sidered void and of no effect." [stamp.] The letter of B. S. French, referred to in these two entries, is as follows : " The Delaware, Lackawanna & Western R. R. Co. — Coal Department : '' Agency at Washington, N. J., "July 11th, 1865. "S. T. Smith, Esq. — Dear Sir: 1 will make you 500 tons or more for immediate delivery, at $5.25, at Waterloo. This will give you a good wholesale commission. I think I have sold no coal at your place for less than $6. This offer holds good only to the 20th of this month. " Yours truly, " B. S. French, Agent. " per C. E. French." 150 NEW JERSEY SUPREME COURT. Neldon v. Smith. By letter of July 15th, 1865, from B. S. French, agent, to the defendant, S. T. Smith, at the request of the latter, tiie privilege of aeceptance was extended to July 30th. The defendant wrote a letter to French July 28th, 1865, accepting the offer of July 11th, 1865, and time extended, per letter of the 20th inst., to 30th inst. There was a strike in the company's mines. It began about July 25th, and continued until about September 26th, during which time the production and shipment of coal from these mines were entirely suspended. August 30th, defendant wrote to plaintiff this letter : "G. H. Neldon, Esq. — Dmr Sir:l have heard nothing from the Del., Lack. & West. R. R. Co. as to shipping me coal. Understand the miners have not resumed work yet. By conditions of our agreement, the same is rescinded and of no effect if coal is not delivered by September 1st. If they commence shipping, which I think they must soon, will see you and make another arrangement. Will give you the advantage over all others, and the refusal of my surplus. I may see you soon, when we will talk the matter over. " Yours truly, " Samuel T. Smith." September 4th, 1865, plaintiff wrote as follows: " S. T. Smith, Esq. — Dear Sir : As soon as you learn that coal arrives in Washington please let me know, as I am in want of some under my contract with you." " Yours truly, " Geo. H. Neldon." September 5th, defendant answered : " G. H. Neldon, Esq. — Dear Sir : Your favor 4th inst. received. I wrote you day or two ago of the expiration of our contract by limitation, and stated that if I got more coal than I needed I would give you refusal of it, which I still intend doing, and will make price lower to you than any other parties. There is no coal coming in Washington yet, and I can learn of no indications, as the strike continues the same. " Yours truly, " Samuel T. Smith. " P. S. — You will doubtless remember that our contract i& FEBRUARY TERM, 1873. 151 Neldon v. Smith. conditioned to be null and void if coal was not delivered pre- vious to the first inst. S. T. S." September 1st, 1865, the plaintiff went to Waterloo, saw the defendant there, and demanded the coal. Defendant replied that he had not any, that none had arrived ; that the contract was void by its terms, and refused to deliver. September 27th, the company, by circular, notified the defendant, that by reason of the strike they cancelled their contract to deliver coal to him. Afterward the defendant went to the company's office in New York, and insisted on the delivery of coal to him under the contract. The company replied that they were discharged by the rules of the trade in consequence of the strike. The defendant threatened suit for damages unless they satisfied him. The price of coal had advanced, and he was willing to take the difference between the contract price and the price for which it was then selling. Finally a settlement wan made and the company directed Mr. French to ship the coal to the defendant at the price agreed upon to satisfy his claim. A boat load of coal, 66 2-20 tons, had been shipped to defendant July 18th, 1865. This was ten days before the contract was accepted. Between October 7th and November 30th, the company shipped to defendant about 465 tons, in seven or eight dif- ferent boats at different times. The defendant agreed to accept the boat load of coal shipped July 18th, as part of the 500 tons, and thus more than that amount was delivereil, about 530 tons in all, at the rate of |5.25 per ton. The action was brought in this court June Term, 1871. Argued at November Term, 1872, before Beasley, Chief Justice, and Justices Bedle, Dalrimple and Scudder. For the plaintiff, T. N. McCarter and H. C. Pitney. For the defendant, R. Hamilton and /. Vanatla. 152 NEW JERSEY SUPREME COURT. Neldon v. Smith. ScuDDER, J. The principal question of law in this case for our determination relates to tlie true construction of the written contract between the parties in this particular : whether the terms impose a reciprocal obligation to deliver and receive the coal bargained for within a certain time, with the condition that the sale shall be void if the coal does not arrive within such time ; or whether the time may be extended at the option of the purchaser until delivery shall be made. The defendant insists that after September 1st, 1865, he was not bound to deliver any coal to the plaintiff under this contract, and that the reciprocal obligations to deliver and receive ceased at that time ; the plaintiff claims that whenever the defendant received coal from the company under his contract with them, he was entitled to demand and receive the same at his option. The two writings signed by the parties and entered in their memorandum books, are not alike in language, but they sub- stantially agree, and were made at the same time to express the terras of the contract. The former entry was made in the plaintiff's book with a pencil as they stood together and bargained on the bridge, and the latter a few minutes after when they entered the defendant's store, and there the terms were written out more distinctly and fully in his book with pen and ink. They were intended to be originals not copies, and are to be construed together to arrive at the intention of the parties. Taken together they constitute an agreement for the sale and purchase of three boat loads of coal (about 200 tons,) at five dollars and sixty-five cents (§5.65) per ton, to be delivered from the mines in boats at Waterloo, upon the condition that the Del., Lack. & Western Railroad Company deliver the coal to the defendant, Samuel T. Smith, agreeably to the terms of their contract with him. The contract with the company is based on the offer of B. S. French, agent, dated July 11th, 1865, with the time of acceptance extended to July 30th, the acceptance of which formed the agreement; FEBRUARY TERM, 1873. 153 Neldon v. Smith. and this offer is incorporated into the condition of the con- tract between the plaintiff and defendant. The condition would then be, provided the Del., Lack. & West. Railroad Co. make immediate delivery of 500 tons or more of coal to Smith at Waterloo, at ^5.25 per ton. The words "immediate delivery" in ordinary language mean to deliver forthwith ; but this expression is explained in the testimony as having a trade meaning among coal shippers and dealers, to which latter class- the plaintiff and defendant belong. It means a delivery during the current month in which the offer is made and accepted, unless the contract is made on the last day of the month, or within such limited time that it cannot be shipped, and then the whole of the following month may be given. According to this interpre- tation, the contract between the Del., Lack. & West. Railroad Co. and Samuel T. Smith having been made July 28th, 1865, an immediate delivery would be extended through the follow- ing month of August. As the company had that time to deliver to Smith, the defendant, so by the condition of his contract with Neldon he had the same time to deliver coal to him at Waterloo, and Neldon was bound to receive it if delivered within that time. If however another construction of this contract is made, and it should be held that Neldon only agreed to take the coal according to the offer of July 11th, which limited an acceptance to the 20th inst. without the extension given to the 30th, and that an immediate de- livery must be construed to be within that month, then neither party would be bound beyond that time. In either case, the sale of coal was made upon a proviso or condition that it should be delivered within a certaia time and for a certain price. If the company delivered to Smith within the time and for the price stipulated he was to deliver to Neldon under their contract, and Neldon was bound to receive the coal. If however the company failed to deliver to Smith within the time and for the price stipulated, he was free from his obligation to deliver, and Neldon was free from his 154 NEW JERSEY SUPREME COURT. Neldon v. Smith. promise to receive. The condition affects the obligation of each party, and is reciprocal. The cases relating to goods sold on condition to arrive were elaborately cited and reviewed by the connsel in thei-r argu- ments before the court. The conclusion to which we must come, after a careful examination of these cases is, that a sale to arrive is conditional, and that if the article contracted for does not arrive, either from the vessel being lost or other cause by accident, and without any fraud or fault of the vendor, the contract is at an end. The contract is executory, and does not pass the property in the goods to arrive. It is merely an agreement for the sale and delivery of the articles named, at a future period when they shall arrive. It is in the nature of a condition and not a warranty. Boyd v. Sifkin, 2 Camp. 326; Johnson v. 2IcDonald, 9 M. & W. 600; Lovatt v. Hamilton, 5 lb. 639 ; Gorrissen v. Perrin, 4 C. B. (89 E. C. L.) 681 ; Hale v. Eawson, 4 lb. (93 lb.) 85 ; Russell v. Nicoll, 3 Wend. 112; Shields v. Pettee, 2 Sandf. 262; S. C, 4 Comst 122 ; Davis v. Shields, 26 Wend. 341 ; 1 Pars. Cant. 552, and notes. The same principles of law are applicable to this case, as it is an agreement to sell upon an express condition. The difference between the cases cited and the different results arrived at in the courts, which are sometimes nice and quite close, are referable to the exact terms of the contract, which must control the usual form and the construction of such bargains. The argument of the plaintiff's counsel that this condition, if it be such, to deliver within a certain time was for the benefit of the plaintiff, and that he only could avoid having an election, is based upon other facts, and another principle of law applicable to those facts. The performance of the stipulation, where it is held a party has an option, depends on the acts of the parties themselves, and not upon the acts of others over whom they have no control. If either party therefore fail to perform, he would, by his own act, defeat the condition, and have the benefit of his own wrong. Take as FEBRUARY TERM, 1873. 155 Neldon v. Smith. an illustration the case of Campbell v. Westcott, 5 Cow. 270. In articles for the sale of land by which the vendee covenants to pay and the vendor covenants to convey on payment, and the vendee agrees that if he fails in his covenant the contract shall be void ; or there is a general proviso that if the vendee do not perform it shall be void, here the contract is voidable only at the election of the vendor. The reason is obvious. The vendee, by his own default, his refusal to pay, may defeat the contract and annul the sale. The court held in that case that on the vendee's default to pay, the vendor might consider the agreement void at his own election, or affirm it, and bring his action on the covenants. To the same eiFect are the authorities cited in tiie notes to this case. See also Rede v. Farr, 6 M. & 8. 121 ; Taylor^ s Landlord and Tenant 492. The case now under consideration differs, because the con- dition here is if the railroad company, a third party, with whom the vendor had contracted for coal, shall deliver it to him at a* certain time and for a fixed price, he will sell and deliver to the vendee. This, as has been already said, is not a warranty that he will deliver, but a condition. It is also a condition based on the act of another, and if that other party fail to deliver without the fault of the vendor, the contract falls. The terms of the condition and of the sale are not for the benefit of either party in exclusion of the other. It is not an indifferent matter to the defendant when he shall receive and deliver the coal. The price and time are both made essential by the terms of the condition, and by the facts of the case. If the goods are delivered at a different time, or at a different price than the one stipulated for, the situation of both parties is changed. The value of the article con- tracted for has probably increased or diminished, and if this be so, neither party should be able to hold the other to a performance against the plain intent of the agreement. It is only where the sale is absolute, and the title to the property passes by the agreement, or where it is construed as a warranty that this consequence follows. In Russell v. Nicoll, 3 Wend. 156 NEW JERSEY SUPREME COURT. Neldon v. Smith. 112, a contract was made in the city of New York for tlie sale of 500 bales of cotton, to be delivered, on its arrival at New York from New Orleans, at any time between the date of the contract, February 9th, and the first day of June thereafter, to be paid for in cash on delivery, the cotton to be weighed, &c. This was held to be an executory contract, and the title to the cotton did not pass. It was also said that the actual transfer of the property centracted to be sold depended upon the arrival of the cotton at New York, an event not absolutely in the control of either party, and which might never happen. The period for its delivery, on condi- tion of its arrival, was also fixed, that the parties might know how long they were to remain under the stipulations of the contract. The difference between the construction put upon the con- tract by the plaintiff and defendant, appears to be tliis : the one interprets it without the condition and the other with it^ If the sale stood upon the first sentence as entered in the plaintiff's book, and signed by both parties, thus : " I agree to take from S. T. Smith, three boat loads of coal, delivered at Waterloo, for $5.65-100, to be either egg or stove, as soon as coal is delivered from the mine from this date, July 29th, 1865," he would be clearly right, and entitled to the coal when delivered from the mine. But when the condition is added, " said Neldon is to take it in boats at Waterloo, and does not bind said Smith unless Delaware, Lackawanna and Western Railroad Company deliver the coal to him as per offer of B. S. French's, per letter of July 11th, 1865," and when that offer is of " 500 tons or more for immediate de- livery at $5.25 at Waterloo," he is not entitled to the coal unless there is an immediate delivery, as explained, at the price and place named. It is not said that if they deliver at any time under the contract, but if they make immediate delivery. The entry in defendant's book states more explicitly that the coal was to be delivered agreeable to price and conditions. There is a mistake also in saying that the coal delivered ia FEBEUARY TERM, 1873. 157 Neldon v. Smith. October and November, after the strike had ended, was de- livered under the contract between Smith and the railroad company. It is true that it is so stated by Smith in his testimony, but he also calls it a compromise. The facts show that the company gave notice to Smith by a circular, dated September 27th, 1865, that they cancelled their obligation to deliver coal under their offer of July llth, 1865 (by mistake called therein, August 20th, 1865). Smith went to their office in New York and insisted that they were bound to deliver; the company claimed that by their terms and customs and the rules of trade, in consequence of the strike, the contract was annulled. Smith threatened to sue for damages. The price had advanced, and Smith proposed to take the difference in satisfaction of damages, and finally he says : " We came to a compromise, and he (Sykes, vice-presi- dent of the company,) ordered Mr. French to ship to me the coal to satisfy me, and satisfied my claim." After the company failed to make immediate delivery of the coal. Smith's claim against them was for damages for non- delivery. If in settlement they agreed to enlarge the time for delivery and acceptance, it was a new contract ; but it was within the statute of frauds, as it was not in writing, and could not be enforced while it remained executory. Addison on Cont. 236 ; Swain v. Seamens, 9 Wo.U. 272 ; Marshall v. Lynn, 6 M. & W. 109 ; Moore v. Campbell, 10 Ex. 323. When the coal was accepted by a parol agreement made after the breach, it was by way of accord and satisfaction of the damages growing out of the breach of the former contract, and not a performance of that contract. There has therefore been no delivery under that contract. By this arrangement, the boat load {66 2-10 tons,) shipped July 18th, 1865, ten days before the contract was made between Smith and the company, was accepted as part of the quantity to be delivered, and in October and November 465 or 467 tons more were shipped and received, all for the price named in the former contract, so that both the time was enlarged for delivery and the quantity was increased more than thirty tons. Vol. VII. 10 158 NEW JERSEY SUPREME COURT. Nelilon V. Smith. When the first boat load had been shipped from the mines, October 7th, and when the whole amount had been delivered, on November 30tii, the defendant Smith was not in a position to compel the plaintiflF to accept the three boat loads he had bargained for, because he had never contracted to accept the coal which might arrive under any subsequent contract, compromise and settlement, which might grow out of the non- performance of the original contract with the company. Neither can he, when the price of the coal has risen, call upon the defend- ant to deliver, and claim damages for non-delivery, when the defendant has received the coal long after the time named in their contract. There must be mutuality in the obligation between the parties. This conclusion settles the rights and duties of the parties under the contract in controvers)'^, and renders it unnecessary to express any opinion on the rulings at the trial in the ad- mission or rejection of evidence. The postscript at the bottom of the entry in the defendant's book, which was below the date and the signatures of the iparties, was excluded at the trial, on motion of the plaintiff's counsel, because it could only be connected with the .writing above the signatures and date by parol proof. If it had been admitted, I think it would not have changed the result which has been reached. It is not therefore necessary to express any opinion upon this point, and none is given. It is not within the ruling of this court in Johnson v. Buck, 6 Vroom 338, where the papers were separate and distinct, and the attempt was to connect I hem by parol proof, and is not free from doubt. The legal position of the parties was not changed by the betters and conversations between them about September 1st, giving notices and making counter claims under the contract. l^j its own terms it had then ended. The verdict is set aside, and a new trial granted. FEBRUARY TERM, 1873. 159 State, HampsoL, Pros., v Mayor and Aldermen of Paterson. THE STATE, DAVID HAMPSON, PKOSECUTOK, v. THE MAYOR AND ALDERMEN OF THE CITY OF PATERSON. THE STATE, ABSALOM B. WOODRUFF, PROSECUTOR, v. THE SAME. 1. An ordinance to take up, &c., Fulton street, and an ordinance to grade the same having been passed, &c., but without the notice required by the ninety-ninth section of the supplement to the charter of the city of Paterson, approved March 25th, 186y — Held, that however fatal the objection as to the want of notice might have been if promptly taken and acted upon by the prosecutors, it cannot be allowed to prevail after considerable delay, under circumstances rendering it probable that they were aware of the inception and progress of the work, and especially after the improvement has been completed and paid for by the city. ^. The expense of grading, &c., under the ninety-eighth section of said supplement, is to be assessed, &c., by commissioners possessing the qualifications required by sections 104 and 110, and on the same prin- ciple of apportionment adopted by sections 102 and 104. ■3. The commissioners having reported that they had made a just and <*quitable assessment, &c., among the property owners, &c., according ♦o the advantages, or benefits, &c. ; but it being manifest from the schedule accompanying the report as well as from the testimony, that there was in fact no exercise of judgment by the commissioners, their assessment upon each owner being governed solely by the extent of his frontage — Held, that an assessment so made cannot be sustained^ ^ iy the said amended charter, all contracts, &c., are to be given to the lowest bidder ; the contract for grading, &c., in this case was awarded to H„ the lowest bidder, at fifteen cents per cubic yard ; by the contract as reduced to writing and executed by H. and the city, the grading was to be done " for the price and sum of fifteen cents per cubic yard for earth excavation, and two dollars and fifty cents per cubic yard for all rock excavation," the contract being so drawn in pursuance of an ordinance, the second section of which provides as follows : " That hereafter, when a contract is made by the city of Paterson, for grading streets or excavating earth, and no price is mentioned for rock work, there shall be paid to contractors two dollars and fifty cents for each cubic yard of rock found, provided said rock shall exceed one cubic yard in size." — Held, that this section of the ordinance being in direct conflict with a plain provision of the charter, both it and the written agreement made in pursuance of it, are utterly void. 160 NEW JERSEY SUPREME COURT. State, Hampson, Pros., v. Mayor and Aldermen of Paterson. Argued at November Term, 1872, before Justices Depue^ Van Syckel and Woodhull. For the prosecutors, John Hopper and A. B. Woodruff. For the defendant, H. A. Williams. The opinion of the court was delivered by Woodhull, J. These writs bring up for review a certain' assessment of expenses for grading Fulton street, in the city of Paterson, together with all the proceedings relating to the- said grading and assessment. It is admitted on the part of the defendants that these proceedings were had and taken under the act for the further revising and amending the act to incorporate the city of Paterson, approved March 25th, 1869, [Laws, 1869, p. 706,) and they are attempted to be justified as being in substantial compliance with the provisions of that act. The reasons assigned for setting aside this assessment,, relate 1st, To the validity of the ordinance by virtue of which the grading was done; 2d, To the qualifications of the com- missioners ; 3d, To the principles upon which the assessment was made ; and 4th, To the fairness and the amount of the assessment. A petition from property owners on Fulton street, (Mr. Woodruff, the prosecutor of the second writ above named, being one of them,) for the grading of said street from Totowa to Union avenue, was presented to the board of aldermen, and referred to the street committee July 26th, 1869. November 8th, 1869, that committee reported, recommend- ing the grading as petitioned for, and their report was adopted. November 15th, 1869, the contract to grade Fulton street was awarded to T. F. Hoxsey, at fifteen cents per cubic yard. November 22d, 1869, the contract, &c., was read, approved^ and the mayor requested to sign the same. FEBRUARY TERM, 1873. 161 State, Hampson, Pros., v. Mayor and Aldermen of Paterson. January 10th, 1870, an ordinance to take up, vacate and relay Fulton street, from Totowa avenue to Union avenue, was read, &c,, and passed unanimously. On the same day an ordinance to grade Fulton street was read and passed unani- mously. The first objection to the ordinances of January 10th, 1870, is, that they were introduced and passed without notice. The ninety-eighth section of the act of 1869, makes it lawful for the board of aldermen, whenever in their opinion the public good requires it, to lay out, vacate or alter streets by ordi- nance, and also to order any street to be graded, &c. ; but the next section imperatively forbids the introduction of any such ordinance, unless public notice shall have been given of the intended improvement, &c., and published as therein directed, briefly describing the intended improvement, and requesting all persons objecting to the same to present their objections in writing to the board of aldermen or the city clerk, on or before ten days from the date of such notice. (Laws, 1869, p. 743, § 99.) Although the return called for is of all the proceedings touching and concerning the said grading and assessment, there is nothing in the return sent up, nor in the testimony, to show that the notice required by the act, or any notice at all, was given, or attempted to be given, before the passage of these ordinances. The fact of notice being fundamental to these proceedings, and one peculiarly within the knowledge of the defendants, the burden of making it out, or at least of disclosing facts and circumstances from which it might be fairly inferred, rested upon them. If notice was in fact given, the means of proving it must have been abundant and easily accessible. Under such circumstances, the total absence of proof raises the strongest presumption that the required notice was never ^iven ; and such is the clear result of all the evidence before us in these cases. But although we cannot avoid the conclu- sion that, to this extent, the prosecutors are sustained in their 162 NEW JERSEY SUPREME COURT. State, Hampson, Pros., v. Mayor and Aldermen of Paterson. iDsistment as to the want of notice, we are satisfied that they are not now in a position to take advantage of it. There can be little doubt that they were aware, almost from the first, of the inception and progress of the proceedings now before us. One of them had joined in a petition for the grad- ing of Fulton street, as early as July, 1869. It is true that this street was subsequently vacated and relaid. But long after this, May 2d, 1870, the prosecutor referred to, Mr, Woodruff, sent to the board of aldermen a second petition re- lating to the proposed improvement. This was about a month after the completion of the work for which the assessment in question was made. The commissioners finished the assess- ment, and made their report May 21st, 1870, and the writs in these cases were not issued until July 8th, 1870. However fatal the objection now under consideration might have been if promptly taken and acted upon, it cannot be al- lowed to prevail after so much delay, and especially after the improvement has been completed and paid for by the city. It is further objected to the assessment in this case, that the commissioners by whom it was made did not possess the requisite qualifications. The second subdivision of the ninety-eighth section empow- ers the board of aldermen to order and cause any street, or sec- tion of a street, to be graded, &g., at the expense of the owners of lands and real estate on the line of said street, or section of a street, and at the expense of the property benefited thereby. To effect this, there must of course be an assessment, and the legislature no doubt intended it to be made by persons pos- sessing the qualifications presented in another part of the charter, for those who are required to perform similar duties. The 104th section requires the board of aldermen to appoint, for the purposes of any assessment for opening, altering or widening a street, three judicious, disinterested freeholders, residents of said city, commissioners, no two of whom shall be residents of the same ward. The 110th section provides, that all commissioners of FEBRUARY TERM, 1873. 163 State, Hampson, pros., v. Mayor and Aldermen of Paterson. assessment, appointed by or under this act shall, before they proceed to the duties of their appointment, subscribe and take an ©ath before some person lawfully authorized to administer oaths, faithfully, honestly and impartially to perform the duties required of them. All that appears with respect to the qualifications of the commissioners in this case is found in their report, and in the following language : " We, the undersigned assessors, ap- pointed by the board of aldermen of the city of Paterson, &c., having been first duly sworn according to law," &c. Taking the case as it stands, instead of showing that those commissioners possessed all the required qualifications, it affords no reasonable assurance that they possessed a single one of them. In such a case, the maxim, quod non apparet, non est, fairly applies. The objection to the assessment on this second ground is sustained, and is fatal. It is further objected to this assessment that it was made by the commissioners without any exercise of their judgment, and on a wrong principle. The grading was to be done " at the expense of the owners of land and real estate on the line of said street, &c., and at the expense of the property bene- fited thereby." The language of this clause is to be under- stood as implying the principle of apportionment recognized and adopted in sections 102 and 104, viz. : that the assessment shall be made upon the owners of the lands, &c., and upon the property benefited, in proportion to the benefit to each lot or parcel on the line of such street. The commissioners certify and report that they have made a just and equitable assessment of the expenses for grading Fulton street, &c., among the property owners on such street, according to the advantages or benefits derived from such improvement as nearly as may be, &c. Now, while this report seems to indicate that the commis- sioners did exercise their judgment, as they were bound to do, in order to determine the benefits, &c., and standing alone might perhaps be regarded as substantially complying with 164 NEW JERSEY SUPREME COURT. State, Hampson, pros., v. Mayor and Aldermen of Paterson. the requirements of the charter, it cannot but be manifest, from the schedule annexed to the report, and forming a part of it, and from the testimony in the case, that there was in fact no such exercise of judgment by the commissioners, their assessment upon each owner being governed solely by the extent of his frontage. They simply divided the whole expense by the whole number of lioeal feet fronting on the street to get the rate per foot, and then to ascertain the amount each owner was to pay, merely multiplied the number of feet in his frontage by the rate per foot. The testimony of Mr. Goetchius, the city surveyor, and one of the commissioners, confirms what is sufficiently appar- ent on the face of the report and schedule. In answer to the question, " on what principle were the assessments made ? " he answers : " the assessments were made according to a system followed for years in this city, assessing equally per lineal foot fronting on the street." Such an assessment does not, in any fair sense, meet the requirements of the charter, and cannot therefore be sustained. A fourth objection urged against this assessment relates to the contract under which the work was done, and to the amount of the assessment. By the 112th section of the amended charter, it is enacted " that all contracts for doing the work or furnishing the materials for the improvements provided for in the act, shall at all times be given to the lowest bidder, he or they giving ample security for doing the same according to contract. " The report of the street committee, recorimending the grading of Fulton street, &c., has been referred to. At the same time, November 8th, 18C9, this committee recommended that they should be directed to advertise for proposals for said work. This recommendation was adopted. Whether proposals were advertised for or not, does not appear. It does appear however that just one week after the adoption of this report, and almost two mouths before the ordinance for grading Fulton street was passed, the contract to grade that street was awarded to T. F. Hoxsey at fifteen cents per cubic yard. One week later, November 22d, 1869, a contract was FEBRUARY TERM, 1873. 165 State, Hauipson, Pros., v. Mayor and Aldermen of Paterson. "drawn up, executed by Mr, Hoxsey, and approved by the mayor, by the terms of which Mr. Hoxsey was to grade Fulton street, &c., "for the price and sum of fifteen cents per cubic yard for earth excavations, and two dollars and fifty cents per cubic yard for all rock excavation." This strange departure from the contract as awarded is explained by an ordinance concerning contracts, passed July 13th, 1869. The second section of this ordinance provides as follows : " That hereafter, when a contract is made by the city of Paterson for grading streets or excavating earth, and no price is mentioned for rock work, there shall be paid to contractors for all rock work the sum of two dollars and fifty cents for each cubic yard of rock found, provided said rock shall exceed one cubic yard in size." The charter, it will be remem-bered, imperatively requires all contracts, at all times, to be given to the lowest bidder. But this ordinance provides, that for a certain kind of work there shall be paid to the contractor a fixed price, without reference to any proposals or bidding, and no matter how many men might be found to do the same work for less money. The board of aldermen had no authority to pass su"eh an ordinance. The second section is in direct conflict with one of the plainest provisions of the charter, and breaks down one of its wisest safeguards against extortionate charges and bur- densome assessments. This section of the ordinance, and the written agreement made in pursuance of it, are not merely voidable, but utterly void and without effect. It appears that the whole excavation amounted to seven thousand and thirty-five cubic yards. This, at fifteen cents per cubic yard, will give the sum to which Mr. Hoxsey is entitled under his contract with the city, ard to this amount any future assessment must be limited. For the reasons above stated, the assessment in this case must be set aside with costs, and new commissioners be appointed in accordance with the charter. Cited in State, Ropes, pros., v. Essex Public Road Board, 8 Vr. 335 ; State, 'Graham, pros., v. Paterson, 8 Vr. 380 ; Slate, Youngster, pros., v. Paterson. 11 Vr. 244. 166 NEW JERSEY SUPREME COURT. State, Gregory et al., Pros., v. Mayor and Aldermen of Jersey City. THE STATE, DUDLEY S. GREGORY AND OTHERS, PROSE- CUTORS, V. THE MAYOR AND ALDERMEN OF JERSEY CITY. Where, under the sixty-ninth section of the chart-er of Jersey City, the power is given to the board of public works " to purchase sites for, and purchase or construct a city hall, school-houses, engine-houses, &c., and such other buildings as may be necessary for tiie purposes of this act," &c.~Held, 1. That the legislature did not intend by these provisions to invest the board of public works with an arbitrary or unlimited power to purchase either land or buildings. 2. Every lawful exercise of this power to purchase land, necessarily involves the determination by the board of two things : first, that some particular building is necessary ; second, the quantity of land required as a site for such building. 3. A resolution of said board to purchase a tract of about nine acres of land, " to be used as a site for the location of a city hall and other city buildings," is unauthorized, for there is no determination of the board that so large a tract is needed for the location and proper use of a eity hall, and the judgment of the board really was, that the tract was sufBcient not only for a city hall, but for other city buildings. 4. Tlie legislature did not intend to confer on the board of public works the power to purchase a site or sites for buildings not desig- nated or even known. Co'tiorari to remove resolutions, &c. This writ brings up two resolutions passed by the board of public works of Jersey City, on the 13th day of February, A. D. 1872, viz.: Resolved, That the proposition of Mahlon B. Crampton to sell to the city the plot of ground known as a portion of the estate of James Harrison, containing three hundred and ninety-six thousand seven hundred and sixty-four squai-e feet, as shown on a diagram accompanying said proposition, for the sum of §2000 for every two thousand five hundred square feet, be accepted, and that a contract be entered into for the purchase of the same, and that the city attorney be requested to prepare said contract, and have the same executed by the FEBRUARY TERM, 1873. 167 State, Gregory et al., Pros., v. Mayor and Aldermen of Jersey City. proper authorized parties; the same to be used for a site for the location of city hall and other city buildings; pay- ments to be made in bonds of the city, to run for twenty years, and bearing interest at the rate of seven per cent, per annum, said bonds to be taken at par and accrued interest up to the date of the delivery of the deed. Resolved, That the board of finance and taxation be and are hereby requested to issue the necessary bonds for the pay- ment of the purchase money for land known as a portion of the Harrison estate, for a site for new city hall, and other city buildings. Argued at November Term, 1872, before Justices Deptje, Van Syckel and Woodhull. For the prosecutors, 8. B. Ransom. For the defendants, J. Dixon. The opinion of the court was delivered by Woodhull, J. As the second of the two resolution* brought up by this writ must evidently stand or fall with the other, the only matter really in dispute is the validity of the first resolution ; and this, it is admitted, depends oa the true construction of the sixty-ninth section of the act to reorganize the local government of Jersey City. {Laws, 1871, p. 1094.) The provisions of that section, so far as they relate to the power of the board of public works to purchase land, are as follows: "That the said board shall have power to purchase sites fur, and purchase or cowstruct a city hall, school-houses, engine-houses, &c., and such other buildings as may be neces- sary for the purposes of this act," &c. Nothing can be plainer than that the legislature did not intend by these provisions to invest the board of public works with an arbitrary or unlimited power to purchase either land or buildings. Their authority to purchase or con- struct buildings is expressly limited to such as are necessary y 168 NEW JERSEY SUPREME COURT. State, Gregory et al., Pros., v. Mayor and Aldermen of Jersey City. and as to land, their authority extends no further than the purchasing of sites for the necessary buildings. These words, necessary and sites, are to be understood here in their ordinary and popular sense. A building necessary for the purposes of tlie act is one convenient and proper for such purposes, {State, N. J. R. R. & T. Co., Pros., v. Hancock, Coll., 6 Vroom 537,) a building reasonably required or needed for carrying into effect the provisions of the act. And a site, in the sense of the act, means only so much land as is reasonably required or needed for the location and convenient use of some particular necessary building. Every lawful exercise of this power to purchase land necessarily involves the determination by the board of two things : first, that some particular public building is neces- sary ; secondly, the quantity of laud required as a site for such building. If it appears that the board has failed to exercise its judgment in regard to either of these essential matters, the purchase of land attempted in this case cannot be sustained. Now, while it may be fairly inferred from the resolution itself that a new city hall is, in the judgment of the board, necessary in the sense of the act, there is nothing to justify such an inference with respect to any other public building. The city hall is the only building named in the resolution, :and is manifestly the only one to which the attention of the board has been specially directed, and about which its judg- ment had been exercised. Having decided upon the necessity of the additional building, tlie board was then authorized by the act to pur- chase for that building a site in the sense just explained — not a tract of unlimited extent, designed for the location and use of such buildings as might, in the near or distant future, become necessary, but only so much land as in the judgment •of the board was reasonably required for the purposes of that one building, the city hall, which the board had decided to be iheyi necessary. The object of the resolution in question, and its effect if FEBEUARY TERM, 1873. 169 State, Gregory et al., Pros., v. Mayor and Aldermen of Jersey City. sustained is, to complete a contract for the purchase of about nine acres of land, at a cost to the city of more than $300,000, Has the board at any time in the exercise of its official judgment, determined that so large a tract is needed for the- location and proper use of a city hall ? Manifestly not. On the contrary, it appears incontestably from the resolution itself that the judgment of the board really was, that the tract in question is sufficient, not only as a site for a city hall, but for other buildings besides. It was, in the language of the resolu- tion, " to be used for a site for the location of city hall, and other city buildings." But as has already been intimated, it must be assumed that these other buildings were not then, in the judgment of the board, necessary. The authority therefore to purchase any land at all, as sites for those buildings, was wholly wanting. The sole ground of the authority to purchase was the then existing necessity for the single building named in the resolu- tion of the board. The idea that the legislature intended to confer upon this department of the city government, influential and honorable and powerful as it undoubtedly is, and was designed to be, the power to purchase a site or sites for buildings not designated or even known, finds no substantial support either in the lan- guage or in the scheme and purposes of the act. The word sites has evidently been understood by the board in a sense far more vague and general than the legislature in- tended. One induction of this is, the use in the resolution of the singular site, in connection with more than one building, while the act has only the plural sites for buildings, each site being regarded as holding a certain fixed relation to its proper build- ing, its eitent necessarily varying with, and to be determined by the size, character and uses of that building. To permit the consummation of the purchase contem- plated in this case, would be in effect to concede to the board of public works an almost unlimited power to purchase real 170 NEW JERSEY SUPREME COURT. State, Little et al., Pros., v. Mayor and Commou Council of Newark. estate, and for that purpose to make the most exhausting demands upon the treasury and the resources of the city. For if, under the circumstances appearing in this case, the board may lawfully purchase nine acres of land as a site for a city hall and other city buildings, there is nothing, so far as I can see, to prevent it purchasing another tract, somewhere else within the city limits, of nine or of ninety acres as a site for a fichool-house or a hospital, and other city buildings. My conclusion is, that the resolutions brought up by Ehis writ were unauthorized, and must therefore be set aside. Cited in Seidler v. Chosen Freeholders, &c., 10 Vr. 632. THE STATE, JOHN M. LITTLE AND OTHERS, PEOSECUTORS, V. THE MAYOR AND COMMON COUNCIL OF NEWARK. An assessment of the costs, &c., of regrading a street nnder the act of March 21st, 1S66, to revise and amend the charter of the city of New- ark not sustained, — 1. Because it does not appear by the report and proceedings sent up that the assessment was made upon each owner in the proportion re- quired by the act. 2. Because while it appeared that two of the three commissioners ap- pointed to make the assessment possessed the requisite qualifications, this did not appear as to the third one. On certiorari to remove assessments. Argued at November Term, 1872, before Justices Depue, Van Syckel and Woodmull. For the prosecutors, T. N. McCarter. For the defendants, W. H. Francis. The opinion of the court was delivered by WoODHULL, J. The writ brings up an assessment, &c., of the costs and expenses of regrading Mount Prospect FEBRUARY TERM, 1873. 171 State, Little et al., Pros., v. Mayor and Common Council of Newark, avenue, from Bloomfield avenue to the old Bloomfield road, bearing date February 2d, 1871. The first section of the act of March 21st, 1866, to revise and amend the charter of the city of Newark {Ads, 1866, p. 671,) provides that whenever the common council of the city of Newark shall establish or change or alter a grade of any street, &c., they shall make compensation to owners of property for any actual damages caused by establishing or altering or changing such grade, the compensation, &c., to constitute a part of the whole amount of costs, damages and expenses to be assessed, and that all proceedings for making an estimate and assessment of said damages, and to provide for the payment of the costs, damages and expenses of estab- lishing, altering or changing said grade, and for the assess- ment thereof, upon the owners of all the lands and real estate intended to be benefited thereby, shall be had and taken in the manner provided by law in cases of laying out and opening, &c., any street within said city. By the act to revise and amend the charter of the city of Newark, approved March 11th, 1857, {Ads, 1857, p. 166, § 105,) in order to provide for the payment of the costs, dama- ges and expenses of laying out, &c,, any street within said city, the common council are required to ascertain the whole amount of such costs, &c., and to cause to be made a just and equitable assessment thereof upon the owners of all the lands and real estate intended to be benefited thereby, in pro- portion, as nearly as may be, to the advantage eacli shall be deemed to acquire. The first objection taken to the validity of the assessment is, that it does not appear by the report of the commissioners to have been made by them upon all the laud, &c., as re- •quired by the section just referred to. It appears by reference to the report itself, that this ob- jection is fully sustained. Instead of showing upon its face that the commissioners had done what the act demands, viz. : that they had made a just and equitable assessment, &c., upon the owners of all 172 I^EW JERSEY SUPREME COURT. State, Little et al., Pros., v. Mayor and Common Council of Newark. the lauds and real estate intended to be benefited, in propor- tion as nearly as might be, to the advantage each was deemed to have acquired, the report amounts to nothing more than that the assessment is justly and equitably made by the com- missioners, and according to the best of their skill and judg- ment. It may perhaps be gathered from this report, that the assessment in question was made upon the owners of all the lands and real estate intended to be benefited, but it nowhere appears that the owners were assessed in the proportion re- quired by the charter. The commissioners are bound in such a case, to exercise their judgment in order to determine the advantage or benefit to each particular owner, and their report must show that the assessment has been made upon each owner, as nearly as might be, in proportion to the benefit received. State v. New- ark, 1 Butcher 399; State v. Jersey City, 2 lb. 444;' State v. City of Hudson, 3 J6. 214 ; State v. Jersey City, 4 Ih. 500 ; State v. City of Hudson, 5 Ih. 105; State v. Town of Bergen, 1 Vroom 307 ; State v. Gardner et aL, 5 lb. 327. It has been suggested on the part of the city that although the objection just considered might have prevailed prior to the act of April 6th, 1871, relative to the writ of certiorari, it is otherwise since the passage of that act. The part of the act referred to is the second section, which provides that it shall be the duty of the court in any certiorari, &c., to determine disputed questions of fact as well as law, and according to the justice of the case to reverse or affirm, in part or in the whole, any tax or assessment, &c., and to inquire into the facts by deposition, &c. {Laws, 1871, pjD. 124, 125.) Without undertaking now to decide, whether the radical defect in this report might have been supplied by evidence under the provisions of the act of 1871, it is sufficient to say that nothing of the kind has been done. No testimony has been laid before us intended to show that the assessment was in fact made as the charter requires^ FEBRUARY TERM, 1873. 173 Steward v. Sears. There is no disputed question of fact in the case as it is now before us. The assessment is therefore to be dealt with pre- cisely as if the act of 1871 had not been passed. It is further objected to this assessment, that it does not appear by the report that the commissioners by whom it was made, were all disinterested freeholders of said city, residing in different wards. The charter requires the common council to appoint five disinterested freeholders of the city, residing in different wards, commissioners to make any such assessment as the one now before the court, (Laios, 1857, p. 167, § 106,) and it must appear on the face of the proceedings that the commissioners possessed the required qualifications. The State, Durant, pros. ^ V. Jersey Oity, 1 Dutcher 310. This appears as to all the commissioners originally appointed. But one of these having resigned, Mr. Sayer was appointed in his place, and he having died, Mr. Lord was appointed to fill the vacancy caused by his death. Now while it does suffi- ciently appear by the resolution appointing Mr. Lord, that he was at that time a resident of the city, and of a different ward from any of the others, it does not appear, either from the report or from any part of the proceedings before us, that he was a disinterested freeholder. This is a fatal omission. State, V. Newark, 1 Dutcher 399. Assessment set aside, with costs.. ClTEi) in State, Harris, pros., v. Jersey Oity, 9' Vr. 55 ; State, Hyerson, pros., V. Passaic, 9 Vr. 171. STEWAKD V. SEARS. The plaintiff sued in the justice's court on a promissory note. The cause was tried on the return day of the summons. No statement of demand was filed, but the defendant, in his offset, gave the plaintitl' credit for the note, and it was received in evidence without objection. The defendant having appealed to the Court of Common Pleas, and the appeal having been tried in his absence — Held, that the judgment of the pleas would not be reversed on th« Vol. VII. 11 174 NEW JERSEY SUPREME COURT. Steward v. Sears. ground tliat no demand had been filed, and that no motion having been made before the justice, or in the Court of Common Pleas for a non-suit, for that reason the objection was waived. On ceiiiorari to Mercer pleas. Argued at November Terra, 1872, before Justices "Wood- hull, Depue and Vax Syckel. For plaintiff in certiorari, F. Kingman. For defendant, E. W, Evans. The opinion of the court was delivered by Depue, J. This cause was tried iu the court for the trial t)f small causes, before a jury in the presence of the parties. After hearing witnesses, a verdict was found for the ))laiutiff, and judgment given accordingly, from which an appeal was taken by the defendant to the Court of Common Pleas. In the Court of Common Pleas, the cause was tried in the absence of the defendant, and resulted in a judgment for the plaintiff. To review these proceedings, a writ of cei-tiorari was sued out, directed to the Court of Common Pleas. The only reason which was relied on for reversal, is that ¥10 statement of demand was filed by the plaintiff. The action was brought on a promissory note. The justice, in the transcript sent up with the appeal, certified that tiie plaintiff filed a statement of demand, and the defendant his •offset on the returu day of the summons. In answer to a xule taken iu this court, the justice has certified that in fact ■no statement of demand was filed, and that the entry in his docket, and statement in his transcript, that a demand was filed, are incorrect, and were inadvertently made. The cause was tried on the return day of the summons, and the note sued on was then before the justice, and was offered in evidence without objection. The defendant, in his offset, gave the plaintiff credit for a note which is admitted to be the same note sued on. No objection was taken J^efore the justice for the want of a statement of demand. FEBRUARY TERM, 1873. 175 Steward v. Sears. nor was any application made to the Court of Common Pleas for a non-suit on that ground. It is manifest that the parties regarded the note, which was before the justice, as a statement of demand. No controversy- was made as to the amount of the note, or the liability of the defendant upon it. Both these matters were expressly ad- mitted in the set-off which was filed. The omission to file a formal statement of demand, if the objection had been made before the justice, could have been supplied on the spot. The defendant, on the trial of the cause on appeal, if he had attended, might have applied for a non- suit on that ground. If he had done so, the Court of Com- mon Pleas had power to permit an amendment, by filing a statement of demand. Nix. Dig. 475, § 105.* At either of these stages in the progress of the cause, opportunity might have been had to raise the objection. If it had been made on either occasion, the defect could readily have been remedied, and the cause proceeded with regularity to a trial on the merits. We are asked, under these circumstances, to reverse on a mere formal objection, which in no wise touches the merits of the case. It has been held that going to trial under an agreement, that the note sued on should be considered as a statement of demand, concluded the defendant from objecting afterwards on certiovari, that no demand was filed. Layton v. Davis, 1 Penn. 405 o ; [Harr. ecL, p. 309.) So also where the objection is such as that the party may have relief on the appeal, neglect to seek such relief on the trial of the appeal will conclude him from making it a ground o-f reversal on certiorari. Gould v. Brown, 4 Halst. 163. Other instances of waiver implied from acquiescence by proceeding with the trial of the cause without making objections, which, if made, would be fatal, are to be found in the cases. Cook v. Hendrickson, 1 Penn. 343 ; Martin v. Steele, 2 Ih. 718; Dallas v. Hendry, lb. 973 ; Foulkes v. Young, 1 Zah. 438 ; Coyle v. Coyle, 2 Dutcher 132. The principle may be said to be general, that objections to * Bev., p. 5b9, ^ 112. 176 NEW JERSEY SUPREME COURT. Kloepping and wife ads. Stellmacher. the form of proceedings which do not question the jurisdiction of the court, or the plaintiff's right to recover, must be made at the trial. If not taken then, they are considered to have been waived. Jacques v. Hulif, 1 Harr. 38. The cases cited were all decided before the passage of the statute permitting amendments to be made by justices of the peace, and by the Court of Common Pleas on the trial of appeals. They show the principle by which the courts were governed, independently of that statute. By that statute a convenient and ample mode of remedying formal defects in the pleadings in justice's courts is provided, which was designed to relieve parties from a miscarriage of justice on account of defects of that character. In such cases the court ought not tO' reverse on certiorari, where the defendant appears to the action, and proceeds to trial without making objection, at a time when by so doing, the defect might be remedied by amendment, especially when, as in this case, the demand of the plaintiff is expressly admitted in the set-off filed. The judgment is aflSrmed. Cited in 3fcQuarle v. Emmons, 9 Vj: 397 ; Burk v. Shreve, 10 Vr. 214 Sutts V. French, 13 Vr. 397 ; Cole & Taylor v. Oliver, 15 Vr. 212. KLOEPPING AND WIFE ads. STELLMACHER. 1. When a summons in ejectment has been issued to the sheriff, and placed in his hands, it may be served by any person, by direction of the sheriff, without any formal deputation in writing. 2. An affidavit of the time and manner of service of a summons in eject- ment is required, whether the service be made by the sheriff or a third person. 3. If it be shown by depositions, taken under a rule of court, that the service of a summons in ejectment was in conformity to the law, and that the defendant had notice of the suit and its object, a judgment by default will not be vacated, although the writ was returned with- out an affidavit of service, but an amendment will be permitted by filing an affidavit nunc pro tunc, if it appear that the defendant has no defence. FEBRUARY TERM, 1873. 177 Kloepping and wife ads. Stellmacher. A. A decree of the Court of Chancery, that a sheriff's deed should become void, and the purchaser reconvey on the payment to him of a certain sum within a specified time, is i ot such a decree as becomes a conveyance by force of the fifty -sixth section of the chancery act; and an unaccepted tender of the sum named, after the day fixed, and after ejectment brought to recovery possession under tlie deed, will not extinguish the deed as a security, and enable the defendant to defend under the decree. On application to open a judgment by default. Argued at November Term, 1872, before Justices Wcx>D- HULL, Depue and Van Syckel. • For the motion, S. B. Ransom. Contra, F. B. Ogden. Tiie opinion of the court was delivered by Depue, J. The summons in ejectment was issued on the 18th of December, 1871, returnable on the 22d of the same month, and was put in the hands of the sheriff of Hudson for service. The day for the return was altered by the sheriiF, to suit his convenience, to the 29th of December. The writ was served on the defendants on the 18th of De- cember, and is returned with an endorseiuent, " duly served on both defendants, personally, December 18th, 1871," signed by the sheriff. The writ was not served by the sheriff, but by one Hugh O. Johnson, who claims to have been specially deputized by the sheriff to serve the writ. The declaration was filed on the 25th of January, 1872, judg- ment was entered for want of a plea, and a writ of habere facias issued thereon, which was executed on the 31st of the same month, by putting the plaintiff in possession. Application is now made to set aside the judgment as irregularly entered, and for an order of restitution; and, fail- ing in such application, to open the judgment for the pur- pose of letting in a defence. The irregularities relied on are, the alteration in the return 178 NEW JERSEY SUPREME COURT. Kloepping and wife ads; Stellmac.her. day named in the writ, as originally issued, and the service of the summons by a person not legally authorized to make such service. The alteration in the summons was made without the knowledge of the plaintiff's attorney. The practice of sher- iffs in changing the return day to suit their convenience in making service, is one of long standing, and in many cases is necessary to enable the sheriff to obtain service of the writ. Such alterations do not avoid the writ for irregularity. Q-owther v. Wheat, 8 31od. 243; Sloan v. Wattles, 13 J. R. 158 ; Sullivan v. Alexander, 18 J. R. S; 1 Cow. 42, n. Wh-atever effect the want of consent by the attorney to the alteration might have, in an action brought by the plaintiff against the sheriff for failure to promptly serve the process, it will not avoid it as in favor of the defendant, if the plain- tiff's attorney adopts the writ as served. The authority of the person by whom the service was made was merely by parol. No deputation in writing was endorsed upon tiie writ. By the common law, the appoint- ment of a bailiff of a liberty with general authority to serve and return writs, was required to be in writing and under seal. Carr v. Donne, 2 Ventris 193 ; Hamon v. Lord Jer- myn, 1 Lord Raym. 189. But the sheriff might authorize his servant or bailiff to execute any particular writ, either by delivering him the writ with a verbal command, without any precept in writing, or by a warrant in writing. Keihoay 86 ; Sewell on Sheriff's 103. In practice, the usual course was for the sheriff to deliver the writ to the bailiff, with an endorsement of the name of the bailiff upon it, or to execute a special warrant to him for that purpose. The production of the writ with such an endorsement was held sufficient evidence of authority to hold the sheriff for the acts of the bailiff. Francis v. Neave, 3 B. & B. 26 ; Scott v. Marshall, 2 C. & J. 238. In this state the practice has been to endorse a deputatioQ in writing on the writ. Whether the service of a writ in ordinary cases by a special deputy under a verbal authority FEBRUARY TERM, 1873, 179 Kloepping and wife ads. Stellmacher. would be sustained, it is not necessary to decide. The pro- tection of sheriffs from the assumption of third persons to act in their names, as well as the safety of parties from the ille- gal a^ts of'persons having no official character, would require that the authority of such persons to discharge the official duties of the sheriff should be in writing. But whatever be tiie correct practice with respect to the service of ordinary process, the mode of serving process in actions of ejectment, is peculiar to that action. Before the practice act of 1855, the declaration in ejectment was the commencement of the action, and might be served by any person, even by the lessor himself. Den v. Feyi, 5 FlalsL 237. By the forty-seventh section of the act referred to, all fictions in actions of ejectment were abolished, and it was provided that thereafter the action should be commenced by summons, in the name of the person claiming the premises^ as plaintiff, and against the tenant in possession, as defend- ant. Nix. Dig. 739, § 167.* The form of the summons, as given in the schedule an- nexed to the act, contains a direction to the sheriff of the county, as in cases of writs in personal actions, which implies that the writ should go into the sheriff's hands. Nix. Dig. 746. t The only provision for the mode of service, is that contained in the section referred to, in which it is prescribed that the summons shall be served in the same manner as declarations in ejectment had theretofore been served. When the summons has been issued to the sheriff, and placed in his hands, it may be served by any person with his privity and consent, without a formal deputation in writing. Whether the service be made by the sheriff' or a third person, the sum- mons must be returned with an affidavit of the time when, and manner in which, the service was made. That such affi- davit is still necessary, is obvious from the fact that no mode ©f returning the writ is substituted for the former practice, with respect to declarations in ejectment ; and the fifty-fourth * Rev., p. 326, ^U, 23. f ^ev., p. 333. 180 NEW JERSEY SUPREME COURT. Kloepping and wife ads. Stellmacher. section, in direct terms, recognizes the necessity of an aflfidavit to the return. In tliis case no affidavit was filed ; but it appears by the depositions taken under a rule of the court, that the summons was served in precise conformity to the law ; and that the defendants had actual notice of the suit and its object. In this respect, the case differs from Den v. Fen, 5 Halsi. 237. Under the circumstances, an amendment would have been allowed if a motion had been made to set aside the writ for a defective return. DetTickson v. White, 3 Vroom 137. The amendment may still be made, although judgment has been entered, or at least the aid of the court, in opening the judgment, be denied. In disposing of this application, the court will be controlled by the consideration, whether the defendants have any legal defence to the action. The facts in the case are these. The premises were origi- nally the property of the defendants, and were sold at sherifJi's sale by virtue of an eKCcution against them. The plaintiff having obtained a deed from the sheriff, a bill was filed in the Court of Chancery by the defendants to have the deed set aside, on the ground that the sale was fraudulently obtained. By a deeree dated the 23d of September, 1871, the Chan- cellor decreed that upon payment to the plaintiff of a certain sum of money, which represented the purchase money paid to the sheriff, and expenditures for taxes, repairs, and the dis- charge of other liens upon the premises, together with taxed costs, within sixty days from the date of the decree, the sheriff's deed should be declared void, and that the plaintiff should reconvey. Kloepping and Wife v. Stellmacher, 6 C E. Gh'een 328. A tender was not made within the time speci- fied in the decree j in fact, no effort was made to make a ten- <3er until the sueceeding February, which was after this suit was commenced. The decree of the Chancellor was not such as became a con- veyance by force of the fifty-sixth section of the chancery act. J^ix. Dig. 112.* Its effect, construing it most favorably for *Beo., p. 115, I 63. FEBRUARY TERM, 1873. 181 State, National Eailway Co., Pros., v. Easton & Amboy R. E.. Co. the defendant, was to declare the sheriif's deed to be a mort- gage, and to designate a time within which redemption might be made. A tender of the money to be paid on redemption within the time limited, might possibly have operated to ex- tinguish the lien of the deed as a mortgage, and thus have opened tlie way for a defence to an action of ejectment in a court of law. But an unaccepted tender made after the pre- scribed time, cannot, in law, have such effect. Shields v. Lozear, 5 Vroom 496. The relief of the defendants (if any) must be sought in the Court of Chancery, on an application for an enlargement of the time for redemption. In such proceedings equities that have arisen since the default may be considered, and, if re- demption is there obtained, restitution may be had by the pro- cess of that court. Shields v. Lozear. The judgment is erroneous in including taxed costs. Nix. Dig. 740, § 174.* To that extent let it be set aside, and a rule be entered for the amendment of the return by filing, nunc pro tunc, the proper affidavit of service. The rule to show cause is discharged without costs. Cited in Meyer v. Bishop, 12 C. E. Or. 141. THE STATE, THE NATIONAL EAILWAY COMPANY, PEOSE- CUTOES, v. THE EASTON AND AMBOY EAILEOAD COM- PANY. 1. The charter of the E. & A. Co. distinguishes between the owner and person interested in the proceedings to condemn lands. By owner is meant the person having ^^me legal estate which the company pro- poses by the condemnation to acquire. Under the expression, " per- sons interested," are included not only the owner whose estate it is intended to acquire, but also other persons having some independent right or interest therein, or lien or encumbrance thereon. 2. The proceeding for condemnation is strictly between the company and the persons who are made parties to it. The omission of the owner of *Bev., p. 333, ^ 50. 182 NEW JERSEY SUPREME COURT. State, National Kailway Co., Pros., v. Easton & Amboy E. R. Co. any estate in tlie lands or part owner of the fee, or the holder of any encumbrance will not invalidate the proceeding as against such per- sons as are made parties. The consequence will only be that as against the omitted persons the condemnation will be nugatory. 3. The trustee of a trust in lands, not executed by the statute, is the pro- per party to proceedings to condemn the lands; the cestui que (rust need not be made a party. 4. The condemation of lands owned by one railroad company — not used for railroad purposes — by another company for use in the construc- tion of a railroad, will be unavailable to condemn the franchises of the former. All that will be acquired will be a right of way, and inci- dentally, the power to cross the track of the former where the routes of the two roads cross each other. Oil certiorari to review appointment of commissioners to condemn lands. Argued at November Term, 1872, before Justices Wood- hull, Depue and Van Syckel. For the prosecutor, R. Gilchrist, Attorney- General. Contra, T. K McCarter. The opinion of the court was delivered by Depue, J. On the 22d of July, 1872, application was made to a justice of the Supreme Court by the Easton and Amboy Railroad Company, for the appointment of commis- sioners to condemn certain lands, situate in the county of Somerset, which were required by the company for the con- struction of their railroad. The legal title to the lands wa& in one Abraham Smith, who had entered into articles of agreement on the 28th of June, 1872, to convey a farm con- taining seventy acres of land, of which the strip required by the company was a part, to one Van Doren, the conveyance to be made on the first day of the following September. Van Doren, on the 28th of June, endorsed on the articles of agreement an assignment of all his right and interest in the same to Robert Crane, of Columbia, '^Trustee" for the con- FEBRUARY TERM, 1873. 183 State, National Railway Co., Pros., v. Easton & Amboy R. R. Co. sideration expressed of one dollar. The articles of agreement and assignment were put upon record before the a[)plication was made, and are recited in the statement of title laid before the justice. The justice fixed the 5th of August as the day for making the appointment of commissioners, and directed notice of the application to be given to Smith and Crane, and on the day named proof being made that notice liad been given as directed, proceeded to appoint commissioners. Im- mediately on the making of this appointment, the National Railway Company sued out a writ of certiorari to set aside the appointment, on the ground that that company should have been made a party to the application, and should have had notice of the intended appointment. It appears from the depositions, that Van Doren and Crane were acting in the capacity of agents for the National Rail- way Company in acquiring the right of way for their projected railroad. On the same day that Van Doren made the assignment of his rights under the article of agreement to Crane, the latter executed a declaration of trust, declaring that he held the said contract and other contracts as trustee, to hold for the use and benefit of the National Railway Company, and to be trans- ferred at such time, and to such persons, and in such manner as that company should order or request. On the 23d of July, 1872, Smith conveyed the farm directly to Crane, who, on the 30th of August, by a formal deed of conveyance, conveyed to the National Railway Company a portion thereof, containing seventeen acres and thirteen one- hundredths of an acre. The survey of the route of the National Railway Company through the farm was filed on the 10th of March, 1872, nearly two months before that of the defendants was filed. The only question discussed on the argument which we deem it necessary to notice, is whether the defendants could, in the situation of the title to the premises as it was when the application was made, proceed to condemn the lands without making the National Railway Company a party, or, at least, giving to them the statutory notice, as a "person interested." 184 NEW JERSEY SUPREME COURT. State, National Railway Co., Pros., v. Easton & Amboy R. R. Co. The defendants' charter provides that if the company, or its agents, cannot agree with the owner or owners of required lands or materials for the use or purchase thereof, a particular description of the land or materials so required shall be given in writing, under the oath, &c., and also the name or names of the occupant or occupants, if any there be; and of the owner or owners, if known ; and their residence, if the same can be ascertained, to one of the justices of the Supreme Court of this state, who shall cause the company to give notice thereof to the persons interested, if known, and in this state, or if unknown, and out of this state, to make publication thereof as he shall direct. Thereupon commissioners are to be appointed to examine and appraise the said land or mate- rials in controversy, upon the specified notice to the persons interested. The charter plainly distinguishes between the owner and persons interested, throughout the entire proceedings for con- demnation as provided for in the seventh and eighth sections. By owner is meant the person having some legal estate -which the company proposes by the condemnation to acquire. Under the more comprehensive expression of persons inter- ested, are included not only the person in whom is vested the legal title which the company proposes to acquire as indicated by their application, but also other individuals having some independent right or interest therein, not amounting to an actual legal estate, such as an easement of a right of way, inchoate rights of dower, or curtesy, or encumbrances, such by judgments or mortgages, which are charges or liens on the legal estate. The object attained in making the latter class of individuals parties to the proceeding.s, is that their interests may be extinguished by payment out of the money awarded or compensated for under the provisions of the general statute, which authorizes the court into which the money may be paid, to make allowance out of the fund in satisfaction of such interest. Nix. Dig. 863, § 55.* The proceeding for condemnation is strictly between the *Bev.,p.897, §312. FEBRUARY TERM, 1873. 185 State, National Railway Co., Pros., v. Easton & Amboy R. R. Co. company and the persons who are made parties to it. The omission of the owner of any estate in the lands, or any part owner of the fee, or of the holder of any lien, or encum- brance thereon, whose estate or interest is essential to a per- fect and indefeasible title in the company, will not invalidate the proceeding as against such persons as are made parties. The consequence will be merely that as against such omitted persons, the condemnation will be nugatory. To this extent the company proceeds at their peril. If, when the petition was presented to the justice, the prosecutors were the owners of any legal estate in the prop- erty, or if they had then an interest therein which was not represented in the person" of Crane, their remedy would nofc be by writ of certiorari. Having given notice of their rights to avoid equities, they might safely rest and suffer the con- demnation to go on as proceedings, by which — not being parties — they would be in no wise affected. Ross v. E. & S. R. R. Co., 1 Green's Ch. 422. But on examining the depositions, it will be found that the proceedings, as affecting the interest of the prosecutors, considering them as owners of an equitable estate in the lands^ are in every respect regular. Smith was properly described in the petition as the owner. Neither Crane nor the National Railway Company were owners in a legal sense. By the articles of agreement. Van Doren became entitled merely to acquire title at a future day,, on the payment of the unpaid consideration money. Crane,, by the assignment, obtained nothing more. The subsequent transfers of the legal title, by conveyances made after the proceedings were commenced by presenting the application, cannot impair the regularity of proceedings which were then in conformity with the law. Crane was named in the petition as a party, and the nature of his interest is set out. He had legal notice of the in- tended appointment. The fact that he was trustee for any one, appeared on the record only as he was designated trustee in the assignment. What the nature of the trust was, and 186 NEW JERSEY SUPREME COURT. State, National Railway Co., Pros., v. Easton & Amboy R. R. Co. for whose benefit it was created, were not shown by the record. An examination of the papers made exhibits, dis- closes the fact that the rights of the prosecutors, under the arrangement between them and Crane, were merely such as exist in "equity in a cestui que trust, to compel the perform- ance by the trustee of the obligations springing from the fiduciary relation. If any interest susceptible of legal recog- nition was created by the agreement for a conveyance, such interest cannot be regarded as subsisting as a distinctive right in the property after the period when it became vested in Crane. In courts of law, the trustee for all the purposes of litigation is the representative of the cestui que trust. Dam- ages on opening a street are to be assessed to the trustee, and he may prosecute a writ of certiorari in liis own name if the assessment is not so made. State, Woodruff, j^^'os., v. Orange, 3 V7-oom 49. In proceedings of the character of those now before the court, it has been held that the trustee is the proper party, and not the cestui que trust. Davis v. Charles River Branch R. R. Co., 11 .Oush. 506; Hawkins v. County Commissioners, 2 AUen 254. * To establish a rule with respect to parties in applications of this kind, more stringent than is in force in the prosecu- tion of actions in courts of law in requiring the cestui que trust to be brought in and made a party, would cause great diffi- culty and embarrassment in condemning lands for public uses. In some cases such a rule would involve the necessity of searching through the labyrinths of the complicated trusts of wills and settlements to ascertain the individuals for whose ultimate benefit the uses declared were created. No practical inconvenience can result from holding that the trustee of a trust not executed by the statute, is the proper party. Whatever claim for compensation, consistent with established rules for admeasuring damages, might be made by the cestui que trust, if a party, may be presented by the trustee whose duty it is to protect the estate held in trust. On the argumeat much stress was placed upon the fact FEBRUARY TERM, 1873. 187 State, National Eailway Co., Pros., v. Easton & Amboy R. R. Co. that the prosecutors' route was first located. These proceed- ings will be unavailable to condemn the prosecutors' franchises The routes of the two roads through the farm are not identi- cal. They cross each other at a convenient angle. Neither company has constructed a track over the premises. By the condemnation, the defendants will acquire simply a right of way over the lands, and incidentally, the power to cross the track of the prosecutors. It would be competent for the de- fendants to acquire both thest privileges under the power of condemnation in their charter, if the title to the lands were in the prosecutors without any express grant to that effect. Mor- ris and Essex R. R. Co. v. Central R. R. Co., 2 Vroom 206. If the prosecutors have equitable rig-hts growing out of pri- ority of location, and the agreement to purchase for a specific purpose before these proceedings were commenced, neither the commissioners, nor the Circuit Court on appeal is the proper forum for the determination and adjudication of the conflicting rights of the two companies in the exercise of their respective franchises. The inquiry before these tribunals will be the value of the lands and the damages. It could be nothing more if the prosecutors had been made parties. Whether the use proposed to be made by the prosecutors of the land at the in- tersection of the two routes, and the inconvenience to wh-ich they may be subjected by the crossing of their railroad when constructed, are matters which may be considered in awarding damages, are questions that must be raised at the trial. The proceedings are affirmed with costs. Cited in Stale, M. & E. B. B. Co., pros., v. Hudson Tunnel Co., 9 Vr. 548 ; New Jersey Southern B. B. Co. v. Long Branch Comm'rs, 10 Vr. 28 ; Mcln- iyre v. Easlon and Amboy B. B. Co., 11 C. E. Gr. 425 ; Piatt v. Bright, 2 Stew. Eq. 128 ; S. C, 4 Stew. Eq. 81 ; S. C, 5 Stew. Eq. 362. 188 NEW JERSEY SUPREME COURT. State, Baxter, Pros., v. Jlayor and Aldermen of Jersey City. THE STATE, BAXTER, PROSECUTOR, v. THE MAYOR ANI> ALDERMEN OF JERSEY CITY. 1. The act of 1869, which extend* the provisions of the second section of the act of March 25th, 1864, {Nix. Dig. 86«) to deeds and declarations of sale under public or municipal authority, establishes a rule of evi- dence giving to the recitals the eflect of proof, and prescribing the kind of evidence which shall be admitted to disprove the truth thereof. The only evidence competenl for that purpose is the adjudication of the court to that efTect on certiorari to review the proceedings on which the title is based. 2. Relief on certioran being substituted for the defence the owner might previously havs made in ejectment, the writ may be sued out at any time ; but when prosecuted for such purpose, will bring up for review only such objections as would previously have been available in an action of ejectment. 3. The sale of lands for taxes or assessments is the execution of a naked power, and every requirement of the statute imposing the liability, and prescribing the procedure to enforce it, which is for the security of the owner, or for his benefit, must be strictly conformed to. 4. A legal assessment is the foundation of the authority to sell. An assessment which is illegal will not be aided by the ratification of the Common Council. 5. The charter of Jersey City of 1851, provided that the entire expense of street improvements should be assessed upon and paid by the lands benefited in proportion to the benefit received. An assessment which, by the report of the commissioners, is shown to have been made by assessing each lot with the amount of earth deposited in front of it at the price paid the contractor for the work, is not warranted by the law, and will not support a title made under a sale for the payment of the asses.?ment. On certiorari to set aside the proceedings for the sale of lands for the non-payment of assessments for street improve- ments. Argued at November Term, 1872, before Justices Wood- hull, Depue and Van Syckel. For prosecutor, /. Flemming and E. F. Hodges^ of Mass. For defendants, J. Dixon. FEBRUARY TERM, 187-3. 189 State, Baxter, Pros., v. Mayor and Aldermen of Jersey City. The opinion of the court was delivered by Depue, J. The lands in controversy were formerly the property of one S. P. Townshend. While he was owner, an assessment was laid upon them amounting to ^16,786.84, for filling in Grand street, under the provisions of the charter of Jersey City. The ordinance directing the improvement to be made was passed on the 27th of September, 1853. The assess- ment for the costs and expenses was presented to the common council on the 6th of November, 1855, and ratified and con- firmed on the 5th of January, 1856. Townshend sued out a writ of certiorari in 1 856, to remove the proceedings to this court. At the term of November, 1857, the assessment was set aside for substantial defects therein, and commissioners were appointed by the court to make another assessment. State v. Jersey City, 2 Dutcher 444. The commissioners appointed by this court made a report of their re-assessment to the common council, which waa confirmed. The premises were set up at public sale for the payment of the assessment, and, for want of other purchasers, were sold to the treasurer of the city for the term of ten thousand years ; and a declaration of sale was made thereon accordingly. The prosecutor claims title under a mortgrge made by Townshend on the 1st of January, 1852, prior to the adoption of the ordinance for making the improvement; under which^ by a foreclosure and sale, and sundry mesne conveyances, the title of the mortgagee became vested in the prosecutor. The result of the action of this court, on the certiorari which was prosecuted by Townshend, was to affirm all the proceedings except the making of the assessment. The prosecutor insists that he is not concluded by the adjudica- tion in Townshend's case, for the reason that the title under which he claims had passed out of Townshend, not only before the commencement of his suit, but also before the initiatory steps were taken by the common council for making the improvement. Among the reasons assigned now Vol. VII. 12 190 NEW JERSEY SUPREME COURT. State, Baxter, Pros., v. Mayor and Aldermen of Jersey City. for reversal are a nutnber which were held to be untenable in the former case. It will not be necessary to determine in the present case the effect of the litigation instituted by Town- shend upon the rights of his mortgagee, as defects are found in the proceedings after the conclusion of that suit, which will dispose of this case. One of the reasons assigned for reversal is, that the re-as- sessment by the commissioners appointed by this court is fatally defective in that it appears by their report that the commissioners in making that assessment, proceeded upon principles not warranted by law. It is conceded by the counsel of the city, that the assess- ment was made in violation of the city charter, and is illegal. The vexed question is, whether, at this late day, and upon tins writ, the prosecutor is entitled to relief. The report of the re-assessment was made to the common council on the 10th day of February, 1858, and confirmed on the 23d day of April, 1858. The sale was made on the 13th day of October, 1858. The writ in this case was not sued out xintil the 13th day of November, 1869. The city has not conveyed the property to a third person, mor has any effort been made to take possession under the declaration of sale. In this condition of affairs the prosecutor filed a bill in the Circuit Court of the United States for the district of New Jersey, to remove the cloud from his title. This writ of certiorari is prosecuted in aid of that suit. The act of April 2d, 1869, {Acts, 1869, p. 1238,)* which extends the provisions of the second section of the act of Marcli 25th, 1864, {Nix. Dig. 865, § 61,)t to deeds, declarations of sale and conveyances under public or municipal authority, establishes a rule of evidence giving to recitals in convey- ances under assessment sales, the effect of proof of the truth of the matters therein contained in actions in which the validity of such titles is in controversy, and prescribing the kind of evidence which shall be admitted by the court to disprove the truth thereof. The only evidence competent for that purpose, since the passage of the act, is the adjudication *Beo., p. lOiS, 2 15, t Rev., p. 1015, ? 14. FEBRUAEY TERM, 1873. 191 State, Baxter, Pros., v. Mayor and Aldermen of Jersey City. of the court to that eflFect obtained on certiorari ; that is, proof by the record in a procedure directly for the review of the proceedings on which the title is based. The statute does not purport to make valid titles which, on the face of the deeds or declarations of sale, appear to be regular. The ques- tion whether there is a legal foundation for the title is left open, notwithstanding the recitals, but the litigation of that question is transferred from the judge at the circuit, in the trial of the ejectment, to the Supreme (and apparently the Circuit) Court, in a different form of action. The fact that no steps have been taken to obtain possession under the declaration of sale would, in accordance with the .decision of this court, in The State, Evans, pros., v. Jersey City, 6 Vrooni 381, excuse the delay in suing out the writ. In the opinion in that case, it is intimated, that notwithstand- ing the language of the act of 1869, the writ will be dismissed in accordance with the practice of the court in other cases, if not taken out within a reasonable time. In view of the clear language of the act as to time, and the fact that relief on cer- tiorari is substituted for the defence the owner might previ- ously have made in ejectment, I think the better construction is, that with respect to such objections as were tenable in the ejectment, the owner is entitled to the writ of certiorari at any time, leaving the effect of a reversal to be determined in the action, if it shall appear possession has been held under the conveyance obtained by the sale for the period of time in which possession held adversely, will ripen into an indefeasi- ble title. The writ when prosecuted under such circumstances and for such purpose, will bring up for review only such defects as would previously have been available in an action of eject- ment. The subject of inquiry then is, whether the defect in the assessment is one which, prior to the act of 1869, would have been fatal in the ejectment. The sale of lands for taxes or assessments, is the execution of a naked power. Every requirement of the statute im- posing the liability and prescribing the procedure to enforce 192 NEW JERSEY SUPREME COURT. State, Baxter, Pros., v. Mayor and Aldermen of Jersey City. it, which tends to the security of the owner, or is for his bene- fit, must be strictly conforraed to. No intendment will be made in favor of the legality of the proceedings. To support the title, the burden of showing compliance with the law, is on the purchaser. Thatcher v. Powell's Lessee, 6 Wheat. 119; Ronkendorf V. Taylor, 4 Peters 349; Sharp v. Speir, 4 Hill 76; Sharpe v. Johnson, lb. 92; Sherwood v. Beade, 7 Hill 431 ; Blachwell on Tax Titles 34, 265. The principle is general in its application, in all instances in which property is divested, or authority exercised on it under special statutory powers. The State v. Van Geison, 3 Green 340 ; Perrine v. Farr, 2 Zab. 356 ; Osborne v. Tunis, 1 Butcher 634. In The City of Camden v. Mulford, 2 Butcher 49, this court held, that if the common council had jurisdiction to pass ordinances for a certain purpose, as the paving of streets,^ an ordinance of that kind passed without a petition by the specified number of land owners, was a valid ordinance until set aside by legal proceedings brought for that purpose, and its validity could not be brought in question as a matter of defence to an action under it. This decision was followed in Martin v. Can-on, 2 Butcher 228, but the latter case was subsequently reversed in the Court of Errors. Carron v. Martin, 2 Butcher 594. Some expressions in the reversing opinion seem to warrant the inference, that it was intended to deny the distinctions between objections that were remediable under the supervisory powers of the courts over municipal corporations, and defects which would be fatal when called in question collaterally. The principle established by the case is, that non-compliance by municipal corporations with the requirements of the charter with respect to the mode in which property shall be subjected to the expenses of public improvements, will make void a title acquired under its pro- ceedings. The decision in Carron v. Martin has received un qualified approval in subsequent cases. Phillips v. City of Hudson, 2 Vi-oom 143; State, Evans, pros., v. Jersey City, 6 Vroom 381, and cases cited. FEBRUARY TERM, 1873. 193 State, Baxter, Pros., v. Mayor and Aldermen of Jersey City. A legal assessment is the foundation of the authority to sell. JParker v. Overman, 18 How. 142. An assessment which is illegal will not be aided by a rati- fication of the common council. To make a valid title, there must be a legal assessment duly ratified. Doughty v. Hope, 3 Benio 595 ; S. C, 1 Comst. 79. At the time the duties of these commissioners were per- formed and their report was made, the charter of 1851 was in force. By the fifty-second section, as amended by the sup- plement of 1854, a board of four commissioners was to be ap- pointed by the common council to ascertain the expenses of the improvement, and to make the assessments for the same. It was made the duty of these commissioners to ascertain the costs and expenses of the improvement, to examine into the whole matter, and to determine and make report in writing to tlie common council, what real estate ought to be assessed, and what proportion of the expenses should be assessed to each sepa- rate parcel or lot. By the same section, the entire expenses of the improvement were required to be assessed upon and paid by the lands and real estate benefited, in proportion to the benefit received. The object of prescribing this ratio of appointment, was the security of land owners from illegal and unconstitutional exactions, and the equalization of the burden imposed. No assessment, whether by the board of commissioners, or commissioners appointed in any other way, could lawfully be made, unless in conformity to the principle of apportionment prescribed. The State v. Jersey City, 4 Zab. 662; The State v. Newark, 1 Dutcher 400; State v. Jersey aty, 2 16. 444 ; 4 lb. 500. The commissioners report that the principle on which the assessment was made, was by assessing to each lot the amount of earth deposited in front of it to the centre of the street, and also the proportionate share of the amount of earth de- posited on the intersections. They state with particularity, the method of conducting their operations, and that by ■boring, and ascertaining loss by shrinkage and blowing off, 194 NEW JERSEY SUPREME COURT. State, Baxter, Pros., v. Mayor and Aldermen of Jersey City. from information of persons living in the neighborhood, with the assistance of practical surveyors, they were relieved from all difficulties and doubts in ascertaining the quantity. The sum assessed upon each of the lots now owned by the prose- cutor, was reached by charging sixty-seven cents for each cubic yard of earth deposited in front of the lot, adding a pro- portionate amount for intersections at the same rate, that being the price paid the contractor for the work. The course pursued by the commissioners is so entire a de- parture from the explicit command of the charter, as that the assessment amounted only to an arbitrary exaction, in violation of the express provisions of the charter, and can receive no support from the only legislative power the city possessed, to compel the owners of lands to defray the cost of the improvement. The defects are not in mere matters of form, in the pro- ceedings of the commissioners. They enter into the very essence of the duties of their appointment. An assessment on the lands benefited, in proportion to the benefit received^ is a jurisdictional fact, comprising the entire scope of the authority of the commissioners. The report shows that they never entered upon the performance of the duty imposed by the charter, and that the office they assumed was to obtain indemnity to the city for expenses incurred in the improve- ment, in a manner not warranted by the law. The result appears in the fact, that property comprising forty-six city lots, was transferred to the city for the term of ten thousand years ; no purchaser being found to take it for a less term, and pay the assessment. Lapse of time will not cure the defects in these proceedings. The cases cited by the defendant's counsel are all cases in which the court, before the act of 1869, dismissed writs of certiorari as improvideutly allowed. Haines v. Campion, S Harr. 49 ; The State v. Ten Eyck, lb. 373 ; The State v. Water Commissioners, 1 Vroom 247. Tlie Court of Errors has settled, as the law of this state^ that in case of ancient deeds from mere lapse of time, a pre- FEBRUARY TERM," 1873. 195 Watson V. Acquackanonck Water Company. sumption will not arise, that public officers have performed the requirements of the statute under which the convey-ance was made. There must be some other circumstance, such as pos- session, to warrant the presumption of compliance with the statute, even where the conveyance is a deed of above thirty years' standing. Osborne v. Tunis, 1 Dulcher 634. The assessment and all proceedings thereunder are set aside. The court will entertain an application for the appointment of new commissioners, if the defendants are advised that such appointment may be now made. Cited in State, Graham, pros., v. Paterson, 8 Vr. 380 ; State, Speer, pros., V. Passaic, 9 Vr. 168 ; State, Spear, pros., v. Perth Amhoy, 9 Vr. 425 ; State, Wirumts, pros., v. Jersey City, 13 Vr. 349 ; Woodbridge v. State, 14 Vr. 262 ; Lehigh Valley B. B. Co. v. Newark, 15 Vr. 323. JOHN WATSON v. THE ACQUACKANONCK WATER COM PANY. 1. Corporations being the creatures of legislation, are precisely what their organic act makes them. For every function they claim to exercise, they must find authority in legislative grant. 2. The defendant has no power under its charter to condemn the right which the plaintiff has to the flow of Weasel brook over his close, without including and taking the bed of the stream. On certiorari. Argued at November Term, ] 872, before Justices WooD- HTJLL, Depue and Van Syckel. For plaintiff, /. Hopper and /. Wilson. For defendant, T. D. Hoxie and 8. Tuttle. The opinion of the court was delivered by Van Syckel, J. John Watson, the plaintiff, is the owner of a parcel of land lying on both sides of Weasel 196 NEW JERSEY SUPREME COURT. Wataon v. Acquackanonck Water Company. brook, in the county of Passaic, below the reservoir of the Acquackanonck Water Company, the water of said brook being used by him for the purposes of a bleachery erected on his premises. The water company proposes to erect woi*lis upon its own premises, by whicii, without taking the bed of the stream, or any part of the plaintiff's lands, it will divert from the plaintiff the waters of Weasel brook, and take and use the same in its reservoir, and commingle with and flow into Weasel brook the less pure water of the Dundee canal. In pursuit of this object the defendant has procured an order to be made by one of the judges of the Court of Common Pleas of said county, appointing commissioners to assess the damages which John Watson will sustain by" the contem- plated work. The legality of this order is the subject of contest in this case. The question is whether the defendant, under its charter, can condemn the right which the plaintiff has to the flow over his close of the uncorrupted waters of Weasel brook, without including and taking the bed of the stream? It is a familiar principle that corporations being the creatures of legislation, are precisely what their organic act makes them, and beyond that, nothing. They must act strictly within their limited sphere, and for every function they claim to exercise, they must find authority in legislative grant. 2 Cr. 127. The power, therefore, which the defendant is now seeking to use, must, if it has any existence, be found in its charter. The fifth section of the charter, {Ads, 1867, ;;. 897,) provides that its officers and employees may at all times ^nter upon all lands or waters in said county, and survey, search, excavate, and bore for water, and examine the quality thereof, and locate all and singular the reservoirs, drains, ditches, aqueducts, pipes, fountains, water-wheels, force- pumps, and buildings, and all other necessary work and ap- pendages thereto, and when said location shall have been determined on, cause a map to be made of all lands which it FEBRUARY TERM, 1873. 197 Watson V. Acquackanonck Water Company. may require for the purposes aforesaid. The sixth section then provides that if the company cannot agree with the owner of such required lands for the purchase thereof, appli- cation may be made for the appointment of commissioners, who shall view and examine the said lands, and make a just an equitable estimate of the value of the same, and assess the damages which will accrue from erecting said works, and re- port, in writing, the amount to be paid to each owner, stating the metes and bounds of the lands assessed, which report, when filed, shall be evidence of the right of said company to hold, occupy, and possess the land so described. The power is expressly given in these sections to condemn lands, and to assess the consequential damages resulting from taking lands; not to assess damages where no lands are taken. But it is insisted that from the right given in the latter part of the fifth section, "to do all other things which shall be suitable or necessary for completing the works thereby con- templated," there is an implied grant of power to do whatever is necessary to acquire what is suitable for their use. It is obvious from the connection in which these words are used, that they were not intended to carry a power of condemna- tion, but to enable the company to do any other act of a like nature with those enumerated. In the third section of the charter, power is given the com- pany to obtain and secure by purchase, the right to use, divert, and appropriate any springs, streams, or ponds of water. The omission to give express power to condemn what by the third section may be acquired by purchase, furnishes a strong implication that the right to condemn was not intended to be co-extensive with the power to purchase. That this is the true interpretation of the act, is evinced by the fact that it prescribes the mode of appointing commis- sioners for the single purpose of condemning lands, bat makes no provision for such appointment to condemn the use ■of water, nor does it direct how such commissioners, if ap- jjointed, shall proceed to execute their duties. 198 NEW JERSEY SUPREME COURT. State, Bodine et al., Pros., v. Common Council of Trenton. The company may acquire by purchase the right to divert these waters from the plaintiff, but cannot take it by con- demnation. In my opinion there is no authority to make the order certified into this court, and it should therefore be set aside with costs. THE STATE, DANIEL B. BODINE ET AL., PROS., v. THE COM- MON COUNCIL OF THE CITY OF TEENTON. 1. The return of surveyors of the highways laying out a public road, dated November 18th, 1833, marked filed in office of county clerk, December 7th, 1833, and recorded in Vol. 2 of the record of roads The date of filing is not conclusive evidence of the date of transmis- sion, and it will be presumed after the lapse of so many years, from the fact that the return actually was recorded, that the Court of Com- mon Pleas had adjudicated that it was filed in season, and that ques- tion cannot be raised in this collateral proceeding. 2. The 78th section of the road act {Nixon 836) does not apply to the city of Trenton. 3. An encroachment on a street cannot be legalized by mere lapse of time, 4. The common council cannot delegate to the street commissioner the power of ascertaining the boundaries of streets, where they are in doubt. This is in the nature of a judicial function, and must be exer- cised by the council by ordinance, with special reference to the street to be opened, and a mode provided in which parties to be affected may be heard. On certiorari to remove a resolution of the common council of the city of Trenton. Argued at November Term, 1872, before Justices WoOD- HULL, Depue and Van Syckel. For plaintiffs, Alfred Reed and James Wilson, Contra, /. S. Aitkin and A. G. Eichey. FEBRUARY TERM, 1873. 19& State, Bodine et al., Pros., v. Common Council of Trenton. The opinion of the court was delivered by Van Syckel, J. The common council of the city of Trenton, on the 14th of November, 1871, resolved "that the street commissioner be directed to have the obstructions on West Canal street, between Perry street and the junction of the feeder and canal of the Delaware and Raritan Canal Company, removed ; and that before proceeding to do so, he give the property owners on said street two weeks' notice to remove such obstructions." In pursuance of this resolution the street commissioner gave to the prosecutors notice in writing to remove within twenty days, from said street, all the buildings, sheds, fences, and other obstructions adjoining their property. This certiorari is prosecuted to test the legality of these proceedings. West Canal street, beginning at the junction of the feeder with the Delaware and Raritan canal, running along the westerly bank of the canal, across Perry, Academy, Com- merce, Merchant, and State streets, to the Assanpink creek, was laid out as a public highway, by six surveyors of the highways, by their return dated November 18th, 1833, marked "filed in office of county clerk, December 7th, 1833," and recorded in volume 2 of the record of roads. No part of this street has ever been opened and used except that portion between State and Merchant streets, and more recently it has been used for part of its width from Perry to Merchant street. The relators rest their case upon four principal reasons, which will be considered in the order in which they are stated. 1. That the return of the surveyors is void under the sixth section of the road act, because it was not filed within fifteen days after the date thereof. 2. That by the operation of the 78th section of the road act, {Nix. Dig. 836)* the said street has become vacated by non-user thereof for more than twenty years by the public. 3. That the prosecutors have acquired title by adverse pos- *Rev.,p. 1010, § 78. 200 NEW JERSEY SUPREME COURT. State, Bodine et al., Pros., v. (Jommon Council of Trenton. session for more than twenty years to that part of the land along their line, which is claimed to be within the limits »f the street. 4. That the defendants cannot, by the summary proceedings tliey have taken, determine the boundaries of a street, re- move permanent obstructions and open the same. The fifth section of the act concerning roads directs that the surveyors shall date, sign, and deliver the return to one of the applicants, who shall deliver or transmit it to the clerk, and the sixth section declares that in case of neglect or refusal of the applicant to deliver or transmit it to the clerk within fifteen days after its date, it shall be void. The mere circumstance that it was marked filed on the 7th of December, is not conclusive evidence of the date of its transmission. The Court of Common Pleas to which the re- turn was made had the right to determine the question of f\ict whether it was transmitted within due time so as to en- title it to be recorded, and it will be presumed after the lapse of so many years, from the fact that it actually was recorded, that that question was duly passed upon and adjudicated, so that it cannot be re-opened and litigated in this collateral way. When by statute power over an entire subject matter is conferred upon a court of general jurisdiction, every intend- ment will be made in favor of the correctness of the pro- ceedings, and they cannot be attacked collaterally where jurisdiction over the subject matter appears. Den v. Harti- mell, 3 Harr. 73 ; State v. Lewis, 2 Zab. 564 ; Hess v. Cole, S lb. 116 ; Stokes v. Middleton, 4 Butcher 32. The city authorities have exercised unchallenged control -over at least portions of this highway for many years, and by sundry ordinances, the first in 1849, and the last in 1851, vacated parts of it at the instance of land owners on its route who thus recognized its actual existence. That it was not opened and appropriated to the public uses to its full width through its entire line, cannot affect the result, as it was within the discretion of the corporate body FEBRUARY TERM, 1873. 201 State, Eodine et al., Pros., v. Common Council of Trenton. to determine when they would use the extreme limit of tlieir authority as against the adjacent laud owners. The act of March 24th, 1859, {Nix. Dig. 836, p/. 78,)* pro- vides " that all public roads, having been laid out by sur- veyors or otherwise, and not opened, worked, or used for more than twenty years, shall be considered, and they are hereby vacated." By the supplement to the charter of the city of Trenton^ passed February 19th, 1847, it is provided that the power ta lay out, vacate, widen, or alter public streets within said city be vested exclusively in the common council, but that the laying out of any road in said city theretofore by surveyors of the highways, shall be deemed valid so far as regards the power of the surveyors to lay the same. The city charter having conferred upon the corporation power to regulate and lay out streets, the general road law will not apply to this case. Q'oss v. Morristown, 3 C. E. Gh'een 305 ; Taintor v. Iforristown, 4 Vroom 57. General legislation will not change or repeal by implication the powers conferred on particular municipalities, such repeal must be by express words. The State v. Clarke, 1 DutoJier 54. These objections, therefore, which deny the existence of West Canal street as a lawful highway, cannot be sustained,^ nor does the claim of the relators that they have lawfully appropriated to their own use a portion of this street by holding it within their enclosure for over thirty years, rest upon any better foundation. An encroachment upon a street cannot be legalized by mere lapse of time. Ci^oss v. Morristown, 3 C. E. Green 305 ; Taintor v. Morristown, 4 Vroom 57 ; Same v. Same, 4 C. E. Green 46. The remaining reason relates to the regularity of the pro- ceedings taken by the defendants to open an existing highway over which their charter gives them exclusive control. By the amended charter of the city, passed March 15th, 1866, {Laws, 1866, p. 373,) the common council have power *22e»., p. 1010, 2 78. ■202 NEW JERSEY SUPREME COURT. State, Bodine et al., Pros., v. Coiumon Council of TrentDn to make ordinances, rules, regulations, and by-laws to ascer- tain and establish the boundaries of all streets, avenues, high- ways, lanes, and alleys in said city, and prevent and remove all encroachments upon said streets, avenues, highways, lanes, and alleys. The only ordinance passed by the common council is that of May 8th, 1866, entitled "an ordinance in relation to the street commissioner," the seventh section of which provides that the street commissioner shall have full power and au- thority to cause all streets to be opened to their proper width, and to cause encroachments to be removed if the owner fails to remove them after four weeks' notice. Where the fact of encroachment is clear, and the determi- nation of the extent to which it exists does not involve the consideration of any uncertain question, it may be removed by the street commissioner by the direction of the council under this ordinance. But the determination of the bounda- ries of a street requii'es action of a judicial nature to ascertain the precise ciiaracter and extent of the encroachment, and parties to he affected by the adjudication have a right to be ■beard. When a street has never been opened and its exact location, as in this case, is in doubt, special action must be taken by the common council under the authority to establish the boundaries of streets. This judicial power is lodged by the city charter in their legislative body and cannot be by them delegated to the street commissioner. The resolution certified here not only directs the street commissioner to remove ob- structions, but imposes upon him the duty of adjudicating where the true lines of the public way are. If he is permitted to exercise a function so important, the house of any citizen is liable to be wrongfully pulled down by error in the judgment of a tribunal before which he cannot be heard, and to which the legislature has not entrusted the determination of such weighty matters. This judicial function must be assumed and exercised by the common council by ordinance, with special reference to the particular street to be opened, and a mode must be pro- FEBRUAEY TERM, 1873. 203 Fisher v. Allen et al. vided in which the parties to be affected may be heard. When the lines of the street are thus duly ascertained and establislied the street commissioner can execute the specific order which may be made for his guidance. This view is in accordance with the rule which was adopted hy Justice Bedle in The State v. Jersey City, 5 Vroom 32. I am therefore of the opinion that the resolution in ques- tion is without authority and should be set aside. Cited in Price v. Inhabitants of Plainfield, 11 Vr. FISHEE V. ALLEN ET AL. Where in a suit on a promissory note against three defendants as joint and several makers, one of the defendants dies pending suit, the action survives against the other defendants, and cannot be continued against the survivors and the representatives of the deceased. The third section of the act respecting abatement, {Nix. Dig. 2, | 3,) applies to the case of a sole defendant. On motion to set aside rule, &c. Submitted on written briefs at November Term, 1872. For the motion, George A. Allen. Contra, J. N. Voorhees. The opinion of the court was delivered by Van Syckel, J. This is a suit on a promissory note against the defendants as joint and several makers. The defendant, Allen, died pending the suit, whereupon the plain- tiff entered a nolle prosequi as to the surviving defendants, and obtaineil a rule of this court to proceed against the administra- tors of the decedent. The administrators now move to set aside this rule. 204 NEW JERSEY SUPREME COURT. State, Charlier, Pros., v. Woodruff. By our statute, {Nix. Dig. 1, § 2,)* on the death of Allen^^ this action survived as against the other defendants. The suit could not be continued again.st the survivors, and the repre- sentatives of the deceased, becaase the one is to be charged, de bonis propriis, the other de bonis intestaioris. The third section of the act respecting abatement, applies to the case of a sole defendant. By the entry of the nolle as to the two surviving defendants, the suit was discontinued. The rule should be vacated. THE STATE, CHAKLOTTE CHARLIEE, PROS., v. NOAH WOOD- EUFF ET AL. 1. A public road described in the return as "beginning near the New Jersey Central Railway depot, at Roselle, on the northerly side of said depot, and in a line of a road known as Chestnut street," does not define the beginning with the requisite certainty. 2. Where three terms of the court have intervened between the return of a public road and an application for a certiorari, and the road in the meantime has been opened and worked, an allocatur will not be granted, and if one has been ordered, it will be dismissed when the facts are brought to the knowledge of the court. On certioraH to set aside the return of a public road. Argued at November Term, 1872, before Justices Depue, Van Syckel and Woodhull. For relator, W. J. Magie. For defendants, J. R. English, *i2et>.,p. 1, 2 2. FEBRUARY TERM, 1873. 205 State, Charlier, Pros., v. Woodruff. The opinion of the court was delivered by Van Syckel, J. This writ is prosecuted to S3t aside the return of a public road in the township of Union, in the county of Union. The reasons relied upon are — 1. That the beginning of the road is not described with suf- ficient certainty. 2. That the damages are not properly assessed. The road is described as "beginning near the New Jersey Central Railroad depot, at Roselle, on the northerly side of said depot, and in a line of a road known as Chestnut street.'* This does not define the beginning with requisite certainty. Griscom v. Gilmore, 1 Harr. 105 ; State v. Green, 3 Harr. 179. In Biddle v. Dancer, Spencer 634, and in State v. Van Bushirh, 1 Zab. 87, there was a stake set up to designate the beginning point. The damages are assessed in one case to the " heirs of Jacob Kemp," and in another case to " Peter Donald & Co." This assessment is defective, and this error may be set up by the relator, even though the parties to whom the assessment is improperly made do not complain. State v. Oliver, 4 Zah. 129; State v. Fischtr, 2 Dutcher 129; State v. Blauvelt, 4 Vroom 36. These objections however cannot avail the prosecutrix, be- cause she allowed the road to be opened (except over her own land) and sixteen months to intervene after it was laid out, before she applied for the allowance of this certiorari. Where three terms of this court have intervened between the return and an application for a certiorari, and the road in the meantime has been opened and worked, an allocatur will not be granted, and if one has been ordered, it will be dis- missed when the facts are brought to the knowledge of the court. State v. Ten Eych, 3 Harr. 373. This writ should be dismissed with costs. Cited in Washington v. Fisher, 14 Vr. 377 ; Bowne. v. Logan, 14 Vr. 421 ; Kearsley v. Gibbs, 15 Vr. 169 ; Rinehart v. Cowell, 15 Vr. 360. Vol. VII. 13 CASES DETERMINED IN THE SUPREME COURT OF JUDICATURE OP THE > STATE OF NEW JERSEY, AT JUNE TERM, 1873. THE PKOPKIETOKS OF THE MORRIS AQUEDUCT ads. SAM- UEL JONES. 1. "When the words of a statute, directing the mode or time of doing an act, are clear, the provision cannot be deemed merely directory, unless the literal interpretation will lead to a result so absurd or highly in- convenient as to demonstrate that such could not have been the legisla- tive intent. 2. A statute giving an appeal from the award of commissioners to tiie first or second term of the Circuit Court after such award, required a notice of such appeal to be given " two weeks prior to such term " — hdd, that this provision must be strictly complied with. 3. Hdd further, that such notice was not regulated by the supplement to practice act, passed 14th March, 1873. The defendant was incorporated in 1799 for the purpose of supplying the inhabitants of Morristown with water. By a supplement passed on the 17th of February, 1862, power was conferred to extend its works, and provision was therein made, in case the requisite lands and materials could not be obtained by agreement, to have the damages assessed by com- 206 JUNE TERM, 1873. 207 Proprietors of Morris Aqueduct ads. Jones. raissioners in the usual form. Section fifth contains the •clause following, viz. : " That if either party feel aggrieved by said assessment and award, such party may appeal to the next or second term of the Court of Common Pleas of said •county by petition, and notice thereof served upon the oppo- site party two weeks prior to such term, or published a like •space in a newspaper published at Morristown, which petition and notice so served and published shall vest in said court full power to hear and determine said appeal, &c." By the further supplement passed April 3d, 1872, the appeal just oaentioned is directed to be made to the Circuit Court of the ■county instead of to the Court of Common Pleas. In the present case an assessment was made in August, 1872, and Mr. Jones, the petitioner, appealed therefrom to the Circuit Court of the county of Morris, at the second term thereafter, which began on the 21st day of January, 1872. On that day a motion being made in court to entertain said appeal and award a venire for a jury, such motion was opposed by the counsel of the proprietors of the Morris aque- duct, on the ground that the notice of appeal required by the supplement, already referred to, had not been given. It ap- pearing that the notice in question had been served on the 13th of January, 1873, the court made no adjudication, and on the 28tli of the same month, the motion was renewed. On that occasion it was shown that on the 21st of January, 1873, a second notice had been given, signifying that this TOotion of the 28th would be made. The question thus presented being deemed by the court one of difficulty, was certified for the advisory opinion of this court. Argued at February Term, 1873, before Beasley, Chief Justice, and Justices Depue and Van Syckel. For the motion, /. Vanatta. Contra, H. C. Pitney. 208 NEW JERSEY SUPREME COURT. Proprietors of Morris Aqueduct ads. Jones. The opinion of the court was delivered by Beasley, Chief Justice. Whether the notice of appeal from the award of the commissioners appointed to assess the value of the land of the petitioner and his damages, is suffi- cient, is the point in dispute. The statute in question declares that the party aggrieved by such award may appeal to the "next or second term of the court," and that notice thereof shall be served " upon the opposite party two weeks prior to such term." The appeal in this case was made to the first day of the second term, a notice thereof of one week having been given ; but such course being perceived to be erroneous, the matter was laid over for a week, another notice being given conformably to this adjournment. The case therefore, is presented of an appeal to a special day in term, and a notice thereof running back two weeks prior to that time. But I think it is very clear that this is not a compli- ance with the statute authorizing this proceeding. This act directs that the appeal shall be to the first or second term of the court occurring after the award, and under the foi'ce of this provision, no reason appears why the petition might not be presented on any day during such terra. But the notice of such appeal, with respect to time, is fixed with entire cer- tainty and precision. The statutory provision is, that it must be served on the opposite party " two weeks prior to such term," that is, the term to which the appeal is addressed. It is impossible to draw in question the meaning of this lan- guage. The notice in the case before the court was two weeks prior to the date of the application, but as it was not two weeks prior to the term at which such application was made, it is indisputably clear that the statute in this particular lias not been complied with. Upon the argument before the court, an effort was made, on two grounds, to avoid the effect of this clear statutory expression. The first position taken was, that the legislative direction, with respect to the time for whicli notice of the appeal is to be given, is not mandatory, but merely direc- tory. There have been a number of decisions which have, under special circumstances, held that neither the exact time JUNE TERM, 1873. 209 Proprietors of Morris Aqueduct ads. Jones. ■nor the exact mode prescribed by statutes for the doing of acts directed to be done, is necessarily essential to the validity of the transaction. Upon looking into the cases referred to, and on an examination of others standing in the same line, I find they all rest upon the common principle that the legisla- tive will is to be ascertained not from the meaning of the text of the statute alone, but from such words interpreted in view of the general object of the particular act. The adjudications are the results, not of acts of interpretation, which is the mere finding of the true sense of the special form of words upcd, but of acts of construction, which Dr. Lieber, in his Her- meneutics, has [)roperly defined as " the drawing of conclusions respecting subjects that lie beyond the direct expression of the text — conclusions which are in the spirit, though not within the letter of the text." Lieber on Political Hermeneuiics, ch. 1. In the class of cases now under consideration, the abso- lute meaning of the terms employed have been for the most part clear ; but in their application to the subject matter, or in view of the paramount object of the lawmaker, they have ■been deprived of some of their usual force and restricted, in their operation. Such results have obtained because it has appeared to the courts, looking at the statutory language and its effect, that it was manifest that it could not have been the design of those who enacted the law, to give the words the very power which they inherently possess. When an act is authorized or directed to be done by a written law, and the time and modes of doing such act are declared, it must, of necessity, oftentimes, be a question, in each particular in- stance, whether the time or mode so declared was so material in the eyes of the lawmaker, that he has made either an in- dispensable part of the affair. This idea is expressed by Lord Mansfield in the case of Hex v. Loxdale, 1 Burr. 447, in which he says : " There is a known distinction between •circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely direc- tory." What has been made a matter of the essence of the •thing, can be ascertained only by judicial construction. In 210 NEW JERSEY SUPREME COURT. Proprietors of Morris Aque is in question in this suit, was found, the owner being un- known, by one John Gildersleeve, on his improved land, between the 1st day of November and the 1st day of April. He duly reported him as an estray. The entries required by law were made, and the horse afterwards sold as an estray,. JUNE TERM, 1873. 241 Hall V. Gildersleeve. according to the statute, and purchased by the defendant in error. He escaped from the defendant, and strayed to the premises of plaintiff in error, and was by him taken posses- sion of. The defendant brought an action of replevin, and recovered. The legal definition of an estray in this state, is, neat cattle, horses or sheep found upon improved lands, between the 1st day of November and the 1st day of April, whose owner is unknown. Nix. Dig., p. 12, § 8; IX Peters- dorf's Ahr. 131 ; 1 Bouvier's Law Die. 527; 1 Bla. 297; 2 Kent 359; Walter v. Gluts, 29 loioa 437. In my opinion, the horse when found was, according to this definition, clearly an estray. Nor do I think the case is altered by the fact that he was stolen from the plaintiff before found. This precise point was made in the case of Patterson v. MoVay, ^ Watts 482, in which the court says: "The proceeding against a stray is in rem, and not against the title of any particular owner. Its object is not to inflict a penalty for letting the animal go at large, but to compensate the injury done by it, and secure the residue of the value to the owner of it. What matters it, then, that the animal was taken out of his possession without his default, when default is not the foundation of the proceeding? It is, in some respects, a charitable one, for had not the animal been secured and taken care of, it might have perished, or wandered away beyond the reach of recovery. The costs and charges must be paid, in any event, for the officers are not to be affected by considerations of theft; and how can these be raised except by a sale, or how can there be a sale if purchasers cannot bid securely." Nor do I think it can properly be held that the person who removed the horse from the church lot, where he found him tied and apparently abandoned, to the stable of John Gildersleeve, was in any sense the owner. The case does not show that he ever claimed any interest in the horse as finder, or otherwise, or that he ever, for a moment, assumed, or claimed the right to assume control of him. It is quite evident that he did not take or remove the tiorse, claiming title to him as finder. On the contrary, it is 242 NEW JERSEY SUPREME COURT. Hall V. Gildersleeve. quite clear that the liorse was takem and removed from mo- tives of humanity, that he migiit be fed and cared for, not by the finder, but by the owner of the stable into which he was put. One reason of an eslray is said to be, that the cattle called animalia vagrantia may not perish. Viner^s Ahr., Vol. X, p. 487. Moreover, it has been held, that " if a man takes beasts as estray, and keeps them for three quarters of a year, and after they estray from him and another gets them, the first lord who keeps them for three quarters cannot retake them, because he has no property in them till he has kept them the year and day, and proclamation passed ; quod nota bene, for the possession of the second lord is good against him who has no property." lb. 489. I do not see why the same principle should not apply to this case, if we hold that the person who removed the horse and left him on the prem- ises mentioned, once had title to him as finder. That title could not last beyond the time when the possession was vol- untarily abandoned, or surrendered to another. It may be further observed, that it does not appear by the case, that John Gildersleeve knew when or by whom the horse was brought upon his premises. The finder, on kis own motion, removed the horse to Gildersleeve's premises, without, so far as appears, his knowledge, consent, or direction. I think it may properly be asked what, under these circumstances, was to be done with the animal, if he was not to be treated as an estray? How was he to be disposed of? I think if the question were doubtful, it ought, for the security of the owner, to be resolved in favor of .the proceedings under the statute concerning estrays, because thereby public record is required to be made that the animal has been taken as an estray, and after a certain time, if not reclaimed by the owner, it must be sold at public auction, and from the pro- ceeds of sale, the legal costs and expenses are to be first paid, and the surplus paid over to the owner. The other view, it seems to me, is contrary to the policy of the statute, and would oftentimes enable dishonest and irresponsible persons to conceal and convert to their own use stray cattle, under JUNE TERM, 1873. 243 Bramhall v. Atlantic National Bank. circumstances which would deprive the real owner of all adequate remedy. I have not been able to see, in the case sent up, any evi- dence of bad faith or dishonesty on the part of the defendant in error, or of the persons who took and disposed of the horse as an estray. In my opinion the judgment below should be affirmed, with costs. Judgment of the Circuit Court reversed. BRAMHALL v. ATLANTIC NATIONAL BANK. 1. Under the New York statute {Laws, 1850, ch. 172, p. 334,) and deci- sions thereon, a corporation, its endorsers, guarantors or sureties can- not avoid its contract on the ground of usury, whether by defence or affirmative action. 2. The object of that statute is to protect the special contracts of a cor- poration for a higher rate than seven per cent., and on all contracts not providing for a higher rate, interest is collected against a corpora- tion at seven per cent, under the general act. {Sd Vol. Rev. Stat., N, Y., p. 72.) 3. The act of 1850 in that state, does not disturb the general rate of seven per cent., but in effect repeals all penalties against a higher rate as to corporations, rnd leaves parties at liberty to make a special contract with a corporation without limitation. 4. Under the act of congress {Acts, 1864, p. 108, ^ 30,) national banks may take any rate fixed by the laws of the state or territory where created, and in case no rate is fixed, the bank may charge any rate not exceeding seven per cent. Had the rate in New York been ten per cent., the bank could have taken it, and so when the rate is seven per cent, the bank takes it, not because that is the rate by act of con- gress, but because it is so by the New York statute. 6. The penal clause in the 30th section of said act of congress, viz. : "And the knowingly taking, receiving, reserving or charging a rate of interest greater than aforesaid, shall be held and adjudged a for- feiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon, &c.," is not limited to cases where the bank is authorized to charge seven per cent, under the act of congress, but applies, also, where a rate is fixed by the state law, and no penalty provided by that law for exceeding it. 244 NEW JERSEY SUPREME COURT. Bramhall v. Atlantic National Bank. 6. On a loan to a corporation exceeding llie New York rate, a national bank in that state would be linble to forfeit the interest or amount agreed to be paid thereon if knowmgiy taken, received, reserved or charged by the bank. 7. The case of the Xational Bank of Whitehall v. Lamb et al., decided December, 1872, is only an adjudication in effect, that where a penalty is provided by a state law, a national bank is liable to it for usury. 8. The oflicers of the bank supposed tliat they were buying the note of the endorsers and not of the corporation maker, and for that reason the bank was not held liable to a forfeiture for knowingly ciiarging usuri- ous interest ; but inasmuch as the note was not obtained by the defend- ants for value, and they were in fact accommodation endorsers or sureties for the corporation, the recovery by the bank can only be for the amount paid, with legal interest. On rule to show cause why the verdict should not be set aside, &c. Argued at February Term, 1872, before Eeasley, Chief Justice, and Justices Bedle, Dalrimple and Depue. For the defendant, A. T. McGill, Jr., and R. Gilchrist, Attorney- Gen eral . For the plaintiffs, /. Flemming and 3lr. Capwell, of New York. The opinion of the court was delivered by Bedle, J. This suit is founded upon two promissory notes, for ^2954.74, each ; one made by the defendant and endorsed by George F. Steinbrenner, the other made by Stein- brenner and endorsed by the defendant. Both notes are held by the plaintiffs. Tiiese notes were given for a note made by the New York and Silver Peak Mining Company, for $5714.29, and payable to the order of Bramhall and Stein- brenner, six months after the date thereof, with interest at the rate of seven per cent, which note was endorsed by Bram- hall and Steinbrenner to the Atlantic National Bank, the bank paying therefor §5000, and which note, when due, was protested for non-payment. The defence at the trial was that this negotiation by the bank was virtually a loan to the mining company, and that it was usurious. JUNE TERM, 1873. ' 245 Bramhall v. Atlantic National Bank. The mimng company was a corporation organized under the laws of the State of New York, and all of the notes were drawn and made payable in that state. The ordinary rate of interest in New York is seven per cent., and the penalty for taking a greater rate is a forfeiture of the claim. Rev. Stat., N. Y., Vol. Ill, p. 72. Such was the law, without any excep- tion, until in 1850 the legislature passed an act that "bo cor- poration shall hereafter interpose the defence of usury in any action." Laws, 1850, ch. 172, p. 3^4. This provision under the New York decisions prevents a corporation, its endorsers, guarantors, or sureties from avoiding its contract on the gfound of usury, whether technically by defence or affirma- .tive action. Rosa v. Butterfield, 33 N. Y. 665 ; Butterworth V. O'Brien, 23 lb. 275 ; Belmont Bank v. Hoge, 35 lb. 69; Southern L. I. & T. Co. v. Packer, 17 lb. 51 ; Curtis v. Lea- vitt, 15 lb. 9; MercNts Ex. N. B'k v. Warehouse Co., 49 Jb. 641. If the case therefore rested entirely upon the New York law, the defence of usury could clearly not be maintained. But it is urged by the defendant that inasmuch as there is no statute in New York limiting the rate of interest that a cor- poration may contract to pay, that the act of congress in regard to national banks becomes applicable, limiting the interest to seven per cent., and forfeiting the entire interest or whatever is agreed to be paid, if more than seven per cent, is knowingly taken, reserved, or charged. Acts, 1864,^. 108, § 30. In some of the New York cases referred to there are ex- pressions to the effect that the usury laws, so far as applicable to corporations, are repealed by the act of 1850, but in the case of the Merchants Ex. N. Bank v. Warehouse Co., 49 N. Y. 641, Folger, J., says : " But the force of the rea.soning in them as a whole, and the bearing of the facts tlierein, are to •the result that the purpose of the act was to prevent the avoidance by a corporation of its own contract, for the reason 'that it was made in contravention of the laws against usury." The contracts intended to be protected were undoubtedly 246 NEW JERSEY SUPREME COURT. Bramhall w Atlantic National Bank. special and it cannot be held, and has not been in New York, that the general rate of seven per cent, has been abrogated, so far as the right to take it against a corporation is concerned, in the absence of any agreement as to the interest. It is clear that under the New York statute seven per cent, could be collected against a corporation on all contracts not provi- ding for the interest. {3d Vol. Rev. Stat. N. Y., p. 72.) In that respect the act of 1850 does not disturb the general rate of seven per cent., but in effect repeals all penalties against a higher rate and thereby leaves parties at liberty to make a special contract with a corporation without limita- tion. It does not, however, follow from that, that the rate fixed by act of congress is to control the contract in question although the per cent, is the same. The act of congress pro- vides in substance that every association may take, receive,, reserve, and charge on any loan or note, &c., interest at the rate allowed by the laws of the state or territory where the bank is located, and no more except, &c., and ** when no rate is fixed by the laws of the state or territory, the bank may take, receive, reserve, or charge a rat-e not exceeding seven per centum, &c." The plain purpose of this provision is to allow the bank to charge any rate fixed by the laws of the state or territory where located, and in case no rate was fixed to provide that tie interest should not exceed seven per cent. In New York, as already stated, there is a general rate,, and applying to corporatioi/s alike with others, except only •where special contracts otherwise are made with corporations. This must undoubtedly be the meaning of the legislation of that state and of their adjudications. Under this view the rate fixed by the state law would control the loans of the bank without any power to make contracts exceeding it with corporations. Had the rate in New York been ten jier cent., I have no doubt that, under the act of congress, the bank could have taken it. And so when the rate is seven per cent.^ the same as that mentioned in the act of congress, the bank could take it, not by virtue of such act, but by the statute of New York. JUNE TEEM, 1873. 247 Bramhall v. Atlantic National Bank. But in the case before us, the amount reserved by the bank exceeded seven per cent., and the question arises, if the payment by the bank is to be regarded as a loan to the mining company, whether there is any forfeiture by reason thereof. It was held by the Court of Appeals of New York, in 1872, in the case of The National Bank of White- hall V. Lamb et al., 50 N. Y. 95, that a national bank was subject to the penalties, for usury, of the state laws, and not of the act of congress in states having usury laws ; aud one of the grounds of the reasoning of tiie court is, that the following clause in the thirtieth section of the act of congress, iu the paragraph succeeding that already recited, *'and the knowingly taking, receiving, reserving, or charging a rate of interest greater than aforesaid, shall be held and adjudged a foi'feiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon, &c.," refers only to the clause immediately preceding, and limits that penalty to cases where t*he bank is authorized to charge seven per cent, by the act of congress, and which is only in states or territories having no usury laws, or in other words, that the language, " a rate of interest greater than aforesaid," refers only to the words in the preceding clause, " a rate not exceeding seven per centum^* and the consequent argument being, that iu New York, where a rate was fixed, the penalty of the act of congress was not intended to apply, but that the bank was left subject to the penalties of the usury laws of the state. In this same case, in 57 Barbour 429, and which was appealed as stated, the Supreme Court held that the penal clause referred to applied to national banks in New York, and that they were not subject to the penalties of the state law. That was a case between a national bank and individuals. Whether the court, had the defendant been a corporation, would have car- ried out the same line of argument, and left a national bank not liable to any penalty, because none was provided by the state law, and because the penalty of the act of congress did not apply, it is difficult to tell. At any rate, that construe- 248 NEW JERSEY SUPREME COURT. Bramhall v. Atlantic National Bank. tion of a law of congress is not necessarily binding upon ns, even in a New York transaction ; and, apart from that, the 11, it was held that a right to take water from a well is an interest in land, and in Scorell v. Boxall, 1 Younge & Jervis 396, that a sale of growing underwood to be cut by the purchaser, gives an interest in land. It is settled in New York, after considerable discussion of the point, that the natural produce of the earth is real estate, and fructus iridus- triahs are chattels which may be sold by verbal contract, or on execution, as personal property. Green v. Armstrong, 1 Deniobbl', Warren v. Leland, 2 Barbour 614; Piei'repont V. Barnard, 5 BdLrbour 364. There are cases, undoubtedly, where part of the land may, in contemplation of law be severed from the remainder, and become personal property. It appeared, on the trial of this case, that the defendant) had paid for all of the sand taken. He contested the plain- tiff's right to recover by virtue of the contract for that part of the sand not taken, and which it was alleged and proved the plaintiff had, by deed made subsequent to the contract,, sold and conveyed, as part of his soil and freehold, to third parties. It is immaterial, that the defendant took and re- moved the sand, pay for which is now claimed by the plain- tiff, inasmuch as at that time the ownership of the property was in neither the plaintiff nor defendant, but in the plain- tiff's grantees, to wliom the defendant was accountable, and to whom he did account for all the sand taken after the deed to them was made by the plaintiff. The plaintiff is obliged to reW on his contract alone, and that not having JUNE TERM, 1873. 259 Lehigh Valley R. R Co. v. Stewart. been signed by the defendant, he is not liable thereon, and the rule to show cause must be made absolute. THE LEHIGH VALLEY EAILEOAD COMPANY v. COENE- LIUS STEWAET AND JOSEPH C. STEWART. Construction of contract, — Held, that by a proper construction of the contract between the parties, the defendants are only entitled to claim a drawback on the tolls paid for goods carried on the thirty-two boats mentioned in the agreement, which constitute the "freight line'* therein mentioned. Submitted on written briefs at February Term, 1873. For the plaintiffs, T. N. McCarter. For the defendants, J. Vanatta. The opinion of the court was delivered by Dalrimple, J. The question raised by the demurrer to the plaintiffs' second replication to the defendants' second plea is as to the proper construction and meaning of a certain con- tract in writing entered into between the Morris Canal and Banking Company and the defendants. The action is brought for certain tolls alleged to be due from the defendants to the plaintiffs. The defendants plead that they have paid all tolls for which the plaintiffs can make claim, except a certain sum, as to which they say that they are entitled to retain as offset a sum of equal amount by way of drawback under the said contract, which is set out in the plea, and the substance of which, so far as necessary to be now stated, is that the Morris Canal and Banking Company leased thirty-two boats to the defendants, for the term of five years, at a certain stipulated price, to be paid in ten equal semi- 260 NEW JERSEY SUPKEME> COURT. Lehigh Valley K. R. Co. v. Stewart. annual instalments, with interest. Upon the payment of the last instalment bills of sale for the boats were to be executed by the company to the defendants. The defendants were to furnisli the said boats with the necessary riggkig and hands, and to employ them in a freight line upon and over the Mor- ris canal exclusively, and to keep the number of boats in the said freight line during the said term of five years, equal to the nu-mber of boats leased, and to pay full rates of toll, according to the printed rates for the time being, as estab- lished and published, upon all articles transported over the Morris canal, in the said boats employed by the said freight line. The company agreed to allow the defendants a draw- back of'one-half of such tolls, upon all articles (with certain €xcei)tions) " as shall be transported by the said defendants in the said boats of said freight line upon the said canal," and further, that no drawback from the established rates of toll should be allowed to any other parties competing with the said freight line of the defendants, for the same business, during the said term of five years, unless the defendants should, by negligence, carelessness, or otherwise, fail to secure and maintain the business which it was contemplated and intended should be transacted arnd carried on by the said freight line; that whenever the lease should be terminated, the company should take from the defendants the boats em- ployed in the said freight Jine, at their proper value as coal boats, and that if the defendants should fulfill said agreement on their part, the said company would, from time to time, give lawful bills of sale for such of said boats as might become unfit for use in the said freight line. To the plaintiffs' claim for tolls the defendants set up, in •their second plea, the right to a drawback on all tolls for freight carried in the boats mentioned in the said contract, as well as in all others used by them in the same business. This defence is sought to be maintained on the ground that the meaning of the words "freight line" embraces not only the thirty-two boats mentioned in the contract, but all others used by the defendants in connection therewith, in the same JUNE TERM, 1873. 261 Lehigh Valley K. E. Co. v. Stewart. Hue of transportation. The intention of the parties must be gathered from the whole agreement read together, and I think it is, that the defendants are to keep up a line of thirty- two boats, neither more nor less, and that the drawback applies only to the freight carried in that number of boats. I have come to this conclusion for the following, among other reasons : First. The defendants agree to keep the number of boats in the said freight liue, during the said term of five years, equal to the number of boats granted and leased, which num- ber is thirty-two. Second. The company agrees to take from the defendants at the termination of the lease, the boats employed in the said •freight line, at their proper value as coal boats, which I think very clearly shows that the parties understood they were deal- ing in reference to the precise number of boats specified in the contract, and none others. Third. It is not reasonable to suppose that the company in- tended to give the defendants the advantage of the drawback, as to an indefinite number of boats, when the only language used to denote such intention is freight transported, " in the boats of the said freight line." The boats here referred to are the same thirty-two before mentioned. Fourth. The stipulation of the defendants to pay full rates of toll " upon all articles which may be transported upon and over the Morris canal in the said boats, employed in the said freight line," shows not only that the boats to which the parties had reference were the same thirty-two boats before mentioned, but that the freight line was restricted to the like number. . This construction of tlie contract disposes of the case. The plea being bad, the plaintiff, for that reason, is entitled to judgment on the demurrer. Judgment reversed, 9 Vr. 506. 262 NEW JERSEY SUPREME COURT. Wolcott, Johnson & Co. v. Mount. WOLCOTT, JOHNSON & CO. v. LEWIS D. MOUNT. 1. A statement in a contract of sale, descriptive of the thing sold, if in- tended to be part of the contract, is a condition, on the failure of which the purchaser may repudiate, or, if a rescission lias become impossible, it may be treated as a warranty, for the breach of which damages may be recovered. 2. It is a question of fact, to be determined from all the circumstances of the case, whether a representation, descriptive of the articles sold by a name by which it is known in the market, is an expression of judgment or opinion only, or was intended as a warranty. 3. Loss of profits may be recovered as damages for the non-performance of a contract, if the loss results directly from the breach of the con- tract itself, or is such as might reasonably be supposed to have been in the contemplation of both parties at the time of the making of the contract, as the result of non-performance ; provided that the profits to be compensated for are such as are capable of being ascertained by the rules of evidence, to a reasonable degree of certainty. 4. The measure of damages in actions on contract considered. 5. M., a market gardener, applied to W. & Co., merchants, who kept agri- cultural seeds for sale, for " early strap-leafed red-top turnip seed" W. showed him the seed which he said was that kind, and sold it to him as such. M. informed \V., at the time of the purchase, that he wanted that kind of seed to raise a crop for the early market. M. sowed the seed, and it turned out to have been another kind of turnip seed, of an inferior quality. The representation was made in good faith, W. & Co. having purchased the seed as early strap-leafed, red-top turnip seed. In an action for breach of warranty — Held on certiorari, 1. That the question whether tho statements were merely an expression of opinion or a warranty, was one of fact in the court below, and the evidence tending to show that a warranty was made, the finding could not be reviewed. 2. That the measure of damage was the difference between the market value of the crop raisod and the same crop from tlie seed ordered. On certiorari to the Monmouth Pleas, on the trial of an appeal from the ji'dgment of a justice of the peace. The cause vras argued in this court on the following state- ment of the cise : JUNE TERM, 1873. 263 Wolcott, Johnson & Co. v. Mount. On the trial of the appeal, Mount, the appellee and plain- tiff before the justice, proved that Wolcott, Johnson & Co. were merchants, keeping a store of general merchandise, in the county of Monmouth, and that, among other articles^ they advertised and kept agricultural seeds for sale, and sold seeds. Mount went to their store and asked one of the part- ners, Bloomfield Wolcott, for early strap-leaf red-top turnip seed, and Wolcott showed him, and sold to him, seed which Wolcott told him was early strap-leaf red-top turnip seed,, and sold it to Mount (two pounds) as such, and Mount paid him cents for the same. Mount sowed the same on acres of his ground, which he had prepared . with care and great expense for the purpose. Mount had been in the habit, year after year, to sow early strap-leaf red- top turnip seed, to produce turnips for the early New York market, such kind and description of turnips yielding a large profit, and he, at time of purchase, stated that he wished this description and kind of seed for that purpose. The seed sold to Mount by Wolcott was sown upon the ground prepared for same by Mount, and the turnips pro- duced therefrom were not early strap-leaf red-top turnips, but turnips of a different kind and description, to wit^ Russia, late, and not salable in market, and only fit for cattle, and he lost his entire crop. The plaintiff proved that the seed sold him by Wolcott was not early strap-leaf red- top turnip seed, but seed of a different kind and description, to wit, Russia turnip seed, and that it produced no profit to him, and that early strap-leaf red-top turnip seed on same ground in other years had produced large profits to Mount, and on adjoining ground, prepared in same way, the same year, had produced great profits to the owner, and that Mount was damaged thereby. It is agreed that Wolcott did not know that the seed he sold Mount was not early strap-leaf red-top turnip seed, and .that he did not sell the seed to him fraudently, the said Wolcott having purchased the seed for early strap-leaf red- top turnip seed. It is also agreed that this kind of turnip seed 264 NEW JERSEY SUPREME COURT. Wolcott, Johnson <& Ck), v. Mount. •cannot be known anjl distinguished, by the examination througli sight or touch, from Russia or other kinds, but only by the kind of turnips it produces after sowing, can it be known. The Court of Common Pleas gave judgment for the plain- tiff below for $99.12 damages. Argued at February Term, 1873, before Justices Bedle, Dalrimple and Depue. For the plaintiff in certiorari, H, G. Clayton. For the defendant, B. Gummere. The opinion of the court was delivered by Depue, J. The action in this case was brought on a con- tract of warranty and resulted in a judgment against the de- fendants in the action for damages. Two exceptions to the proceediags are presented by the brief snbmitted. The first touches the right of the plaintiflF to recover at all. The second the measure of damages. In the absence of fraud or a warranty of the quality of an article, the maxim, caveat gmp^or, applies. As a general rule, no warranty of the goodness of an article will be implied on a contract of sale. It has been held by the courts of New York, that no war- ranty whatever would arise from a description of the article sold. Seixas v. Woods, 2 Caines 48 ; Snell v. Moses, 1 Johns. 96; Sweet v. Colgate, 20 Johns. 196. In these cases the de- fect was not in the quality, but the article delivered was not of the species described in the contract of sale. In the well known case of Chandelor v. Lopus, Cro. Jac. 4, it was decided that a bare affirmation that a stone sold was a bezoar stone, when it was not, was no cause of action. The cases cited fairly present the negative of the proposi- tion on which the plaintiff's right of action depends. Chan- delor V. Lopus was decided on the distinction between actions on the case in tort for a misrepresentation, in which a scienter JUXE TERM, 1873. 265 Wolcott, Jo'hnson & Co. v. Mount. must be averred and proved and actions upon the contract of warranty. 1 Smith's Lead. Cas. 283. Chancellor Kent, who' delivered the opinion in Seixas v. Woods, in his Commenta- ries, expresses a doubt whether the maxim, caveat emptor, wa& correctly applied in that case, inasmuch as there was a de- scription in writing of the article sold, from which a war- ranty might have been inferred. 2 Kent 479. And in a recent case before the Commission of Appeals of New York, Earl, C, declared that Seixas v. Woods had been much ques- tioned and could no longer be regarded as authority on the precise point. Hawkins v. Pembe^ion, 51 N. Y. 204. In the later English cases some criticism has been made upon the application of the term warranty to representations in contracts of sale, descriptive of articles which are known in the market by such description, per Lord Abinger in Chanter v. Hopkins, 4 II. & W. 404 ; per Erie, C. J., in Bannerm,an v. White, 10. C. B. {N. S.) 844. But in a number of instan- ces it has been held that statements descriptive of the subject matter, if intended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party may repudiate in toto, by a refusal to accept or a return of the article, if that be practicable, or if part of the consideration has been received, and rescission therefor has become impossible, such representations change their character as conditions and become warranties, for the breach of which an action will lie to recover damages. The rule of law is thus stated by Williams, J., in Behn v. Bur- ness, as established on principle and sustained by authority, 3 B. & S. 755. In Bridge v. Wain, 1 Starkie 504, no special warranty was proved, but the goods were described as scarlet cuttings, an article kaown in the market as peculiar to the China trade. In an action for breach of warranty, Lord EUenborough held that if the goods were sold by the name of scarlet cut- tings, and were so described in the invoice, an undertaking that they were such must be inferred. In Allan v. Lake, IS Q. B. 560, the defendant sold to the plaintiff a crop of 266 NEW JERSEY SUPREME COURT. Wi»lcott, Johnson & Co. v. Mount. turnips, described in the sold note asSkirving's Sweedes, The seed having been sown, it tu-rned out that the greater part was not of that kind, but of an inferior kind. It was held that the statement that the seeds were Skirving's Sweedes, was a description of a known article of trade and a warranty. In Jodlng v. Kingsjord, 13 C. B. {N. S.) 447, the purchaser •recovered damages upon a contract for the sale of oxalic acid, where the jury found that the article delivered did not, in a commercial sense, come properly within the description of oxalic acid, though the vendor was not the manufacturer, and the vendee had an opportunity of inspection, (the defect not being discoverable by inspection,) and no fraud was suggested. In Wieler v. Schillizzi, 17 C. B. 619, the sale was of "Cal- cutta linseed." The goods had been delivered, and the action was in form on the warranty implied from the description. The jury having found that the article delivered had lost its distinctive character as Calcutta linseed, by reason of the admixture of a foreign substance, the plaintiff recovered his damages upon the warranty. The doctrine that on the sale of a chattel as being of a par- ticular kind or description, a contract is implied that the article sold is of that kind or description, is also sustained by the following English cases : Powell v. Horton, 2 Bing. N. S. 6QS ; Barr v. Gibson, 3 M. & W. 390 ; Chanter v. Hoj^kins, 4 M. & W. 399 ; Nichol v. Godts, 10 Exch. 191 ; Gompertz v. Bartlett, 2 E. & B. 849 ; Azemar v. aisella, Law Rep., 2 C. P. 431, 677; and has been approved by some decisions in the <:ourts of this country. Henshaw v. Robins, 9 3Ietc. 83 ; Bor- rekins v. Bevan, 3 Raiole 23 ; Osgood v. Lewis, 2 Harr. & Gill 495; Hawkins v. Pemberton, 51 N. Y. 198. The right to repudiate the purchase for the non-conformity •of the article delivered, to the description under which it was sold, is universally conceded. That right is founded on the engagement of the vendor, by such description, that the arti- cle delivered shall correspond with the description. The obligation rests upon the contract. Substantially, the de- JUNE TERM, 1873. 267 Wolcott, Johnson & Co. v. Mount. scription is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy, by rescission, than he would have on a simple warranty ; but when his situation has been changed, and the remedy, by repudiation, has become impossible, no reason supported by principle can be adduced, why he should not have upon his contract such redress as is practicable under the circumstances. In that situation of affairs, the only available means of redress is by an action for damages. Whether the action shall be techni- cally considered an action on a warranty, or an action for the non-performance of a contract, is entirely immaterial. The contract which arises from the description of an arti- cle on a sale by a dealer not being the manufacturer, is not in all respects co-extensive witli that which is sometimes implied, where the vendor is the manufacturer, and the goods are ordered by a particular description, or for a specified pur- pose, without opportunity for inspection, in which case, a warranty, under some circumstances, is implied that the goods shall be merchantable, or reasonably tit for the purpose for which they were ordered. In general, the only contract whicii arises on the sale of an article by a description, by its tnown designation in the market, is that it is of the kind specified. If the article corresponds with that description, no warranty is implied that it shall answer the particular purpose in view of which the purchase was made. Chanter v. Hopkins, 4 M. & W. 414 ; OUivant v. Bayley, 5 Q. B. 2S8 ; Windsor v. Lombard, 18 Pick. 55 ; Mixer v. Coburn, 11 Mete. 559; Gossler v. Eagle, &e., Co., 103 Mass. 331. The cases on this subject, so productive of judicial discussion, are classified by Justice Mellor, in Jones v. Just, Laio Rep., 3 Q. B. 197. Nor can any distinction be maintained between statements of this character in written and in oral contracts. The arguments founded on an apprehension that where the contract is oral, loose expressions of judgment or opinion pending the negotiations, might be regarded as embodied in the contract, contrary to the intentions of parties, is without 268 NEW JERSEY SUPREME COURT. Wolcott, Johnson & Co. v. Mount. reasonable foundation. It is always a question of construc- tion or of fact, whether sucli statements were the expression of a mere matter of opinion, or were intended to be a substan- tive part of the contract, when conchided. If the contract is in writing, the question is one of construction for the court. Behn v. Burmvis, S B. & S. 751. If it be concluded by parol, it will be for the determination of the jury, from the nature of the sale, and the circumstances of each particular case, whether the language used was an expression of opinion, merely, leaving the buyer to exercise his own judgment, or whether it was intended and understood to be an undertaking which was a contract on the part of the seller. Lomi v. Tucker, 4 0. & P. 15 ; De Sewhanherg v. Buchanan, 5 C. & P. 343 ; Power v. Barham, 4 A. & E. 473. In the case last cited, the vendor sold by a bill of parcels, " four pictures, views in Venice — Canaletto ; " it was held that it was for the jury to say, under all the circumstances, what was the eifect of the words, and whether they implied a warranty of genuineness, or conveyed only a description or an expression of opinion, and that the bill of parcels was properly laid be- fore the jury with the rest of the evidence. The purchaser may contract for a specific article, as well as for a particular quality, and if the seller makes such a contract, he is bound by it. The state of the case pre- sented shows that the plaintiff inquired for seed of a desig- nated kind, and informed the defendants that he wanted it to raise a crop for the New York market. The defendants showed him the seed, and told him it was the kind he in- quired for, and sold it to him as such. The inspection and ex- amination of the seed were of no service to the plaintiiF. The facts and circumstances attending the transaction were before the court below, and from the evidence, it decided that the proof was sufficient to establish a contract of warranty. The evidence tended to support that conclusion, and this court cannot, on certiorari, review the finding of the court below, on a question of fact, where there is evidence from which the conclusion arrived at may be lawfully inferred. JUNE TERM, 1873. 269 Wolcott, Johnson & Co. v. Mount. The second reason for reversal is, that the court was ia error in the damages awarded. The judgment was for con- sequential damages. The contention of the defendants' counsel was, that the damages recoverable should have been limited to the price paid for the seed, and that all damages beyond a restitution of the consideration, were too speculative and remote to come within the rules for measuring damages. As the market price of the seed which the plaintiff got, and had the benefit of in a crop, though of an inferior quality, was probably the same as the market price of the seed ordered, the defendants^ rule of damages would leave the plaintiff remediless. The earlier cases, both in English and American courts^ generally concurred in excluding, as well in actions in tort as in actions on contracts, from the damages recoverable, profits which might have been realized if the injury had not beeu done, or the contract had been performed. Sedg. on Dam. 69. This abridgment of the power of courts to award compen- sation adequate to the injury suffered, has been removed in actions of tort. The wrong doer must answer in damages for those results injurious to other parties, which are pre- sumed to have been within his contemplation when the wrong was done. Binninger v. Or-ater, 4 Vroom 513. Thus, in aa action to recover damages for personal injuries caused by the negligence of the defendant, the plaintiff was held to be entitled to recover as damages the loss he sustained in -his profession as an architect, by reason of his being incapacitated from pursuing his business. New Jersey. Express Co. v. Nichols, 4 Vroom 435. A similar relaxation of this restrictive rule has been made at least to a qualified extent, in action on contracts, and loss of profits resulting naturally from the breach of the contract, has been allowed to enter into the damages recoverable where the profits that might have been realized from the perform- ance of the contract, are capable of being estimated with a Vol. VII. 17 270 NE\y JERSEY SUPREME COURT. Wolcott, Johnson & Co. v. Mount. reasonable degree of certainty. In an action on a warranty of goods adapted to the China marjict, and purchased with a view to that trade, the purchaser was aUowed damages with reference to their value in China, as representing the benefit he would have received from the contract, if the defendant had performed it. Bridge v. Wain, 1 Starkie 504. On an executory contract put an end to by the refusal of the one party to complete it, for such breach the other party may recover such profits as would have accrued to him as the direct and immediate result of the jjerformance of the con- •triict. Fox V. Harding, 7 Cash. 516; Mastertonw. Mayor of Brooldyn, 7 Hill 01. In an action against the charterer of a vessel for not loading a cargo, the freight she would have earned under the charter party, less expenses and the freight actually received for services during tiie period over which the charter extended, was held to be the proper measure of damages. Smith v. McGuire, 3 H. & N. 554. In the cases of the class from which these citations have been made, and they are quite numerous, the damages arising irom loss of profits were such as resulted directly from non- performance, and in the ordinary course of business, would be expected as a necessary consequence of the breach of the ■contract. In the two cases cited of Fox v.. Harding, and Masterton v. Mayor of Brooklyn, it was said that the profits that might have been realized from independent and collateral engagements, entered into on the faith of the principal con- tract, were too remote to be taken into consideration. This latter qualification would exclude compensation for the loss of the profits of a resale by the vendee of the goods pur- chased, made upon the faith of his expectation, that his con- tract with his vendor would be performed. In the much canvassed case of Hadley v. Baxendale, 9 Exch. 341, Alderson, B., in pronouncing the judgment of the court, enunciated certain principles on which damages should be awarded for breaches of contracts which assimilated dam- ages in actions on contract to actions in tort. The rule there a.dopted as resting on the foundation of correct legal princi- JUNE TERM, 1873. 271 Wolcott, Johnson & Co. v. Mount. pies was, that the damages recoverable for a breach of con- tract, were either such as might be considered as arising naturally, i. e., according to the usual course of things, from the breach of the contract itself; or such as might reasonably be supposed to have been in the contemplation of both par- ties at the time they made the contract, as the probable results of the breach of it ; and that when the contract is made under special circumstances, if those special circumstances are com- municated, the amount of injury which would ordinarily follow from a breach of the contract, under such circumstan- ces, may be recovered as damages that would reasonably be expected to result from such breach. The latter branch of this rule was considered by Blackburn, J., and Martin, B., as analogous to an agreement to bear the loss resulting from the exceptional state of things, made part of the principal contract, by the fact that such special circumstances were communicated, with reference to which the parties may be said to have contracted. Home v. The Midland Railway Company, Law Rep., 8 C. P. 134-140. Under the opera- tion of this rule, damages arising from the loss of a profitable sale, or the deprivation for a contemplated use, have been allowed when special circumstances of such sale or proposed use were communicated contemporaneously with the making of the contract; and have been denied when such communi- cation was not made so specially, as that the other party was made aware of the consequences that would follow from his non-performance. Borries v. Hutchinson, 18 C. B. {N. S) 445 ; Co)-y v. Thames Ironworks Co , Laiv Rep., 3 Q. B.181 ; Home V. The Midland Railway Co., L. R , 8 C. P. 134 ; Benjamin on Sales 665-671. It must not be supposed that under the principle of Had- ley V. Baxendale mere speculative profits, such as might be conjectured to have be^n the probable results of an adventure which was defeated by the breach of the contract sued on, the gains from which are entirely conjectural, with respect to which no means exist of ascertaining, even approximately, the probable results, can, under any circumstances, be brought 272 NEW JERSEY SUPREME COURT. Wolcott, Johnson & Co. v. Mount. within the range of damages recoverable. The cardinal' principle in relation to the damages to be compensated for on the breach of a contract, that the plaintiff must establish the quantum of his loss, by evidence from which the jury will be able to estimate the extent of his injury, will exclude all such elements of injury as are incapable of being ascertained by the usual rules of evidence to a reasonable degree of cer- tainty. For instance, profits expected to be made from a whaling voyage, the gains from which depend in a great measure upon chance, are too purely conjectural to be capable of entering into compensation for the non- performance of a contract, by reason of which the adventure was defeated. For a similar reason, the loss of the value of a crop for which the seed had not been sown, the yield from which, if planted, would depend upon the contingencies of weather and season, would be excluded as incapable of estimation, with that degree of certainty which the law exacts in the proof of damages. But if the vessel is under charter, or engaged in a trade, the earnings of which can be ascertained by reference to the usual schedule of freights in the market, or if a crop has been sowed on the ground prepared for cultivation, and the plaintiff's complaint is, that because of the inferior quality of the seed a crop of less value is produced, by these circumstances the means would be furnished to enable the jury to make a proper esti- mation of the injury resulting from the loss of profits of this character. In this case the defendants had express notice of the in- tended use of the seed. Indeed, the fact of the sale of seeds by a dealer keeping them for sale for gardening purposes, to a purchaser engaged in that business, would of itself imply knowledge of the use which was intended, sufficient to amount to notice. The ground was prepared and sowed, and a crop produced. The uncertainty of the quantity of the crop, dependent upon the condition of weather and season, was removed by the yield of the ground under the precise circum- stances to which the seed ordered would have been exposed^ JUNE TERM, 1873. 273 Kader v. Southeastenly Road District of Township of Union. The difference between the market value of the crop raised, and the same crop from the seed ordered, would be the cor- rect criterion of the extent of the loss. Compensation on that basis may be recovered in damages for the injury sustained as the natural consequence of the breach of the contract. Ran- dall V. Eaper, E., B. & E. 84 ; Lovegrove v. Fisher ^ 1 F. & F. 128. From the state of the case, it must be presumed that the court below adopted this rule as the measure of damages, and the judgment should be affirmed. Judgment affirmed, 9 Yr. 496. Cited in McAndrews. v. Tippet, 10 Vr. 105 ; Appleby v. State, 16 Vr. 161. GEORGE W. RADER v. THE SOUTHEASTERLY ROAD DIS- TRICT OF THE TOWNSHIP OF UNION, IN THE COUNTY OF UNION. 1. The power of the legislature over corporations created for purposes of local government, is supreme. The legislature may alter or repeal the charter at any time, in its discretion. The only limitation on the operation of such repeal is as to creditors, that it shall not operate to impair the obligation of existing contracts, or deprive them of any remedy for enforcing such contracts that existed when they were made. 2. Any legislation, the effect of which is to deprive a party of the power to resort to the person or asy property which, as the law was when the contract was made, might have been taken or applied in satisfac- tion of his demand, is within the prohibition of paragraph 3, section 7, Article IV, of the Constitution of New Jersey, which prohibits the legislature from passing any law " depriving a party of any remedy for enforcing a contract which existed when the contract was made." But the legislature may make laws incidentally affecting the pursuit of remedies for enforcing existing contracts, such as regulating the admission of evidence, the course of practice, and similar acts, alter- ing in mere matters of form the means of realizing the benefits of a contract, leaving the substance of the remedy unaffected. 3. The right to recover costs is no part of the remedy which inheres in the contract. That right is purely incidental, and depends on the Btate of the law when the suit is determined. Until judgment pro- nounced, the right to costs does not become vested. The legislature 274 NEW JERSEY SUPREME COURT. Eader v. Southeasterly Road District of Township of Union. may, after contract made and even pending suit on it, constitutionally- pass laws which change the costs recoverable, or deprive the party of costs. 4. In 1871 a portion of the township of Union was created a separate corporation, for the purpose of laying out, opening, and improving streets. The work was to be executed under tlie supervision of com- missioners, wlio were authorized to borrow money and issue bonds of the corporation, and to cause assessments to be made on lands bene- fited, to defray the expenses. In 1872 the act of incorporation was repealed. By the repealing act it was provided, that the repeal should not affect or impair any legal contract of the commissioners, or any indebtedness contracted for improvements, and the township com- mittee of the township of U. was authorized to compromise or com- plete such contracts, and to issue township bonds to provide funds therefor, and to make and collect assessments to pay expenses, in the same manner as the commissioners had been empowered — Held, that the repealing act was constitutional, as affecting a creditor who had furnished supplies to the commissioners before the repeal, although an action for the same was pending when the repealer became a law. On demurrer to plea. The defendants were created a corporation for the purpose of laying out, opening, and improving streets, roads, highways, and public parks, within prescribed limits, by an act of the legislature, entitled an act in relation to streets in Union township, in Union county, passed on the 29th of March, 1871. Acts, 1871, p. 1034. The execution of the work was to be under the supervision of five commissioners, called commissioners of public roads, who were authorized to borrow money and issue bonds of the corporation, to defray the ex- penses of the improvement, and to cause assessments to pay the same, to be made on lands benefited. The plaintiff fur- nished certain supplies for the construction of sewers, and on the 14th of February, 1872, brought this action for tiie same. Pending the suit, the legislature, by an act passed on the 1st of April, 1872, repealed the act incorporating the defendants, but provided that the repeal should not in any way affect or impair any legal contract which the commissioners named in the first act had made, and which remained unexecuted in. JUNE TERM, 1873. 275 Eader v. Southeasterly Road District of Township of Union. whole or in part, or any indebtedness contracted for improve- ments under the original act, and the township committee of the township of Union were empowered to compromise and settle with the contractors, or to carry out and complete such legal contracts by the commissioners under the original act, and were authorized to issue bonds of the township to provide funds for that purpose, and to make and collect assessments necessary for the payment of the expenses of completing and carrying out the contracts of the commissioners, in the same manner as the commissioners were entitled to under the original act. Acts, 1872, p. 973. The defendants pleaded the repealing act, and averred that thereby '' the township committee of the township of Union, in the county of Union, are required to pay all just debts con- tracted by the said commissioners of the said district for improvements, under the said act first above mentioned, whereby, and by force whereof, the debts contracted by the said commissioners of said district for said improvements, of which the said plaintiff's debt is one as aforesaid, are charge- able to, and payable solely by the said township committee of the township of Union, and no action can be had or main- tained against this defendant corporation therefor." Argued at February Term, 1873, before Beasley, Chief Justice, and Justices Bedle, Dalrimple and Depue. For the plaintiff, R. S. Green. For the defendants, /. M. English and B. Williamson. The opinion of the court was delivered by Depue, J. To this plea of the defendants, a demurrer was filed. The question discussed on the argument was, whether the act of 1872 affects the claim of the plaintiff, and deprives him of his suit. The contract was made with the commissioners, and the 276 NEW JERSEY SUPREME COURT. Raler v. Southeasterly Road District of Township of Union. goods for which the suit was brought were delivered, and the action commenced before the passage of the act of 1872. It is insisted that the repealing act is, with respect to con- tracts made before it was passed, unconstitutional, in that it impairs the obligation of a contract, and deprives the plaintiff of a remedy for enforcing his contract, which existed when the contract was made. Const. N. J., Art. I V, Sec. 7, ^ 3. The power of the legislature over corporations created for purposes of local government, is supreme. From a grant of this character, uo contract arises with the corporators which exempts it from legislative control. The legislature may alter, modify, or repeal the charter at any time, in its discretion. The only limitation on the operation of such repeal is as to creditors, that it shall not operate to impair the obligation of existing contracts, or deprive them of any remedy for enforcing such contracts which existed when they were made. The People v. Morris, 13 Wend. 325; The State v. Brannin, 3 Zab. 484 ; City of Paterson v. The Society, &c., 4 Zab. 386 ; Von Hoffman v. The City of Quincy, 4 Wall. 535 ; Butz v. City of Muscatine, 8 Wall. 575 ; Dillon on Municipal Corp., §§36,114. In construing that clause of the constitution of the United States, which prohibits the states from enacting any law im- pairing the obligation of contracts, the courts made a distinc- tion between the obligation of a contract and the remedy upon it. Whilst the former was under the protection of the constitutional prohibition, it was considered that the reme- dies for enforcing existing contracts were under the control of the state legislatures, and might be modified and changed in their nature and extent, provided a substantive remedy be left. 2 Story on Const, § 1385 ; Cooky on Const. Lim. 287. It was accordingly held, that laws abolishing imprisonment for debt, or exempting a portion of a debtor's property from execution, or depriving the creditor of an extraordinary remedy, such as by distress, or abolishing priority of rent over, executions, might constitutionally be passed and made appli- JUNE TERM, 1873. 277 Rader v. Southeasterly Eoad District of Township of Union. cable to prior contracts, as such statutes pertained exclusively to the remedy. Sturges v. Crowning shield, 4 Wheat. 1 22 ; Ilason V. Haile, 1 2 Wheat. 370 ; Stocking v. Hunt, 3 Denio 274 ; Morse v. Goold, 1 Kernan 282 ; Van Rensselaer v. Snyder, 3 lb. 300. So, also, it was held, that although the repeal of an act of incorporation dissolved the corporation, and made it incapa- ble of being sued in a court of law, yet, inasmuch as on such <1issolution, its property and effects became trust funds for the payment of debts which creditors might follow in equity, such repeal was not unconstitutional, unless the repealing statute appropriated the property to other uses, and thus de- prived creditors of the power to follow its assets in equity. Mumma v. Potomac Co., 8 Pet. 281 ; Curran v. Arkansas, 15 How. 524; Bacon v. Robertson, 18 lb. 480. Indeed, as was said by Mr. Justice Swain, in Von Hoff- man V. City of Quincy, " No attempt has been made to fix, definitely, the line between alterations of the remedy which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights ; every case must be determined upon its own circumstances." The decisions on this subject, while they uniformly recognize the existence of this distinction, are not harmonious in the appli- cation of it. In many instances, embarrassment, if not injustice to creditors, in the collection of debts, arose from laws, modifying and taking away remedies which existed when the contrast was entered into, which also gave rise to much litigation to determine whether particular laws enacted for that purpose were within legislative powers. This vexed question was before the Supreme Court of the United States, in Bronson v. Kinzie, 1 How. 311, and 3Ic- Crackin v. Hayward, 2 lb. 608. Chief Justice Taney, in pronouncing judgment in the former case, declared that whatever belonged merely to the remedy, might be altered according to the will of the state, in relation to past contracts, as well as future, provided the alteration did not impair the •obligation of the contract ; and that, although the new remedy might be less convenient than the old one, and in 278 NEW JERSEY SUPREME COURT. Eader v. Southeasterly Road District of Township of Union. some degree render the recovery of debts more tardy and dif- ficidi, it would not follow therefrom that the law was uncon- stitutional. Among the illustrations of the power of legisla- tures over the remedy on existing contracts used by the Chief Justice, was the exemption of certain {)roperty of the debtor from process of execution. Bronson v. Kinzie was decided in January, 1843, and Mc- Crackin v. Hay ward in January, 1844. In June, 1844, the convention which framed our present constitution, assembled. In the third paragraph of Sec. 7, Art. IV., of that iftstru- iiient, it was declared that, "the legislature shall not pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made." The latter clause of this paragraph was not in the section originally reported, but was added by amendment, advocated by Messrs. Ryerson.Vroom and Green, and adopted oy the decisive vote of 36 to 9. Afterwards, a motion was made to strike it out, which, after discussion, was lost without a division. This provision is peculiar to the constitution of this state and is regarded as having an important effect in restriction of the power of the legislature over remedies. Sedg. on Stat, and Const. Law 617, ?«. 656. The only instances in which the construction of this clause has received judicial consideration, are in the cases of Martin v. The Somerville Water Power Co., 3 Wall., Jr., C. C. R. 206 ; and Potts v. New Jersey Arms and Ordnance Co., 2 C. E. Green 395. The case of Potts v. The Trenton Water Power Co., 1 Stockt. 592, was decided on an act passed before the adoption of the pres- ent constitution. In Martin v. The Somerville Water Power Co., the facts were these : The defendants, an incorporated com|)any, in 1848 issued negotiable bonds for ^50,000, secured by a mortgage on their real estate, property, and franchises. One of the conditions of the bonds was, that if default should be made of the payment of the $50,000, or any part thereof it should be lawful for any holder to enter upon the premises JUNE TERM, 1873. 279 Eader v. Southeasterly Koad District of Township of Union, and to sell and dispose of them, and of all benefit and equity of redemption ; and to make good and sufficient deeds, &c. The company having become insolvent, receivers were ap- pointed in chancery, and in 1856, two acts of the legislature were passed, which empowered the receiver-s to sell the real estate, franchises, and works of the company, free and clear of all mortgages, judgments, and other liens, and from the proceeds to deduct a reasonable allowance for commissions and services theretofore rendered by them as receivers, and all expenses incurred in effecting a sale, and the costs and ex- penses of the chancery suit, wherein they had been appointed receivers, and to pay from the residue all just and lawful debts in their order of priority. The mortgaged premises having been sold by the receivers, and the bonds being unpaid, suffi- cient money not being realized from the sale to pay them in full, a bill was filed in the Circuit Court of the United States to foreclose the mortgage, and to restrain the receivers from proceeding further under the acts of the legislature. The argument was upon the constitutionality of the acts of the legislature authorizing the sale, and Mr. Justice Grier held them to be invalid, for the reason that they impaired the obli- gation of the contract, in that precedence was given to costs and expenses not confined to the costs of sale, and also for the reason that the mortgagees were, in violation of the clause above quoted, deprived of a remedy which they had by their contract, to be used at their option and discretion, as to the time and mode of sale, and the remedy they had by law, of entry on the premises and receipt of the rents and profits. In Potts V. N. J. Arms and. Ordnance Co., the question before the court was the constitutionality of a supplement to the act to prevent fraud in incorporated companies, {Ads, ] 866, p. 296,)* as affecting mortgages and encumbrances exist- ing before its passage. The supplement authorized receivers of insolvent corporations to sell the property of such corpo- rations which was encumbered by mortgages aud other liens, which were disputed, clear of such encumbrances, paying the *Bev.,p. 192, g 84. *280 NEW JERSEY SUPREME COURT. Eader v. Southeasterly Road District of Township of Union. money into court, there to remain, subject to the same liens and equities as the property was before. The application was by the receivers for an order to sell, and was heard by Car- penter, Master, who decided that the act was constitutional. It will be perceived that in Martin v. The Somerville Co., the mortgagees had two remedies, the one by contract, and the other by law. They were, by the acts of the legislature, •deprived of both, and the substituted remedy was subordi- nate to other demands which were not entitled to precedence until made so by the legislature. Enough money was not realized from the sale to pay the mortgages. The rights of the mortgagees were materially and substantially prejudiced by the substitution of the proceeding provided for effecting the sale in the place of the remedies which existed when their contracts were made. In the case cited from 2 C. E. Green, it was not suggested that the mortgagees were in danger of losing any part of their debts, or that enough would not be realized from the sale t© discharge their claims in full. The learned master evidently regarded the proceed- ings as expediting the collection of such debts, and affording the encumbrancers, by a remedial statute, a speedier and more direct mode of obtaining satisfaction of their demands. He very properly, under such circumstances, considered the loss of the option when they should seek their remedy, and in what form of proceeding, as too unsubstantial a loss to amount to a deprivation of a remedy within the meaning of the con- stitutional provision. It is clear that any legislation, the effect of which is to de- prive the party of the power to resort to the person or any property, which, as the law stood when the contract was made, might have been taken or applied in satisfaction of his demand, is within the constitutional prohibition. The evil at which this peculiar provision was mainly directed, was the construction put upon the provision of the constitution of the United States relative to the obligations of contracts, admit- ting the power of the states to pass laws abolishing imprison- JUNE TERM, 1873. 281 Rader v. Southeasterly Road District of Township of Union. ment for debt, and exempting property from execution, and make such laws applicable to existing contracts, whereby the value of contracts in the ability to enforce performance was in many instances seriously impaired. It is equally clear that the legislature may make laws which incidentally affect the pursuit of remedies for enforcing existing contracts ; as, for instance, such as regulate the ad- mission of evidence, the course of practice in the courts, the mode of conducting sales under judgments and executions^ and altering the forms of action, or prescribing periods for the limitation of actions within a reasonable time. In this class may be included acts changing a corporate name, or increasing corporate limits, and similar acts, altering or modi- fying in mere matters of form, the means of realizing the benefits of a contract, leaving the substance of the remedy unaffected. In this case the corporation dissolved was not such as was the owner of any property. Its franchises consisted of its powers to lay out, open and improve streets, roads, highways, and public parks, within the designated boundaries, and to assess the cost thereof on the. lands of individual proprietors within those limits; and it was given capacity of suing and being sued, and of having and using a common seal, solely for the purpose of executing such powers. No tax could be laid by its authority except for that purpose. A repealing act which dissolved the corporation, and extinguished the capacity to make assessments to discharge the debts con- tracted in execution of the work, would be an act impairing the obligation of contracts, inasmuch as creditors would thereby be deprived of all remedy. Curran v. Arkansas, 15 How. 304 ; Von Hoffman v. City of Quincy, 4 Wall. 535. But the repealing act carefully avoids this result. It, in express terms, provides that the repeal of the former act shall not in any way affect or impair any legal contracts of' the board of commissioners, or any indebtedness contracted by them. The township committee is authorized to compro- mise and settle with the contractors, and if a settlement can- 282 NEW JERSEY SUPREME COURT. Kiider v. Southeasterly Eoad District of Township of Union. not be effected, to carry out and complete the contracts made by the commissioners, and to pay all just debts contracted by the commissioners for improvements under the original act with the same power and authority on the part of the town- ship committee, and their successors, to make assessments for the payment of the expenses of carrying out and completing such contracts, and to collect the same, as were conferred by the original act. In addition thereto, the township commit- tee is authorized to borrow money, and issue bonds of the township, to enable them to compromise or carry out the un- executed contracts of the commissioners, and pay the indebt- edness contracted by them. If this latter provision be found to be nugatory, for the reason that it imposes upon the town- ship a debt not of its own contracting, nevertheless the con- clusive answer to the plaintiff's argument is, that the repeal- ing act saves the obligation of prior contracts, and retains the n-ieans by whic4i the moneys were originally to be raised to discharge liabilities incurred by the commissioners. If the plaintiff should recover a judgment in this case, he could collect nothing by execution. His only available remedy would be by mandamus to compel the making and levying of assessments in the manner prescribed by the act. That remedy is preserved by the repealing act. The only oliange made is in substituting the township committee for the commissioners to perform the public duties. The plain- tiff is not deprived of any remedy on his contract, which existed when it was made. It has only been varied in imma- terial respects. Nor is this conclusion changed by the circumstance that this action was pending when the repealing act was passed, and is abated by such repeal. The plaintiff, it is true, loses his costs.- But the right to recover costs is no part of the remedy which inheres in the contract. That right is purely incidental, and depends upon the state of the law when the suit is determined. Any other construction would be highly unreasonable. If the right to costs in prosecuting a suit on the contract is made by constitutional enactment inherent in JUNE TERM, 1873. 283 State, Marshall et al., Pros., v. Street Commissioner of Trenton. the contract as part of the remedy, it would follow that modi- fications in matter of costs, either as to the right to recover them, or the amount that should be recoverable, would be impracti- cable. If it is competent for the legislature, between the making of a contract and the institution of a suit, to pass acts reducing the costs that shall be recoverable, or denying costs altogether, a similar change in the law, pending the action, must be equally within legislative powers. The right to costs does not become vested until judgment is pronounced. Tlie plea demurred to is so informal that we had some hesita- tion in regarding it as necessarily presenting for decision the constitutional questions considered. But the counsel for the demurrant has, in his brief, treated the pleading as unexcep- tionable in every other respect. Treating it as a plea in abate- ment of the action, for the reason that tlie legal existence of the defendants ceased with the repeal of the act which gave them being as a corporation, judgment on the demurrer is given for the defendants. Cited in Slate, Bartlett, pros., v. Trenton, 9 Vr. 64; Baldwin v. Newark, 9 Vr. 158; Seaine v. Belleville, 10 Vr. 526; Magie v. Township of Union, 11 Vr. 453 ; Wilson v. Herbert, 12 Vr. 454 ; Gabler v. Elizabeth, 13 Vr. 79 ; Baldwin v. Flagg, 14 Vr. 495 ; New Brunswick v. Williamson, 15 Vr. 165 ; Rader v. Township of Union, 15 Vr. 259 ; Middleton v. West Line B. B. Co., 10 a E. Gr. 306; Bandolph v. Middlelon, 11 C. E. Or. 543; Isewark Sav'gs Inst. V. Forman, 6 Stew. Eq. 436. STATE, MARSHALL ET AL., PROSECUTORS, v. CYRUS CAD- WALADER, STREET COMMISSIONER OF THE CITY OF TRENTON. 1. A tannery is not per se a nuisance, and cannot be abated by the street commissioner or board of health until they are adjudged to be so em- ployed as to be inimical to public health or safety, or until their owners contravene some ordinance prescribing the mode in which-they shall be used, and thereby make them nuisances. 2. The functions of the board of health are of an executive and advisory, and not of a legislative or judiciat character. A resolution passed by said board declaring plaintiff's tannery to be a nuisance, is void. 284 NE^y JERSEY SUPREME COURT. State, Marshall et al., Pros., v. Street Commissioner of Trenton. 3. The proceedings to enforce the penalty are defective, in that the pro- cess does not state what ordinance the defendants had violated, and the time when, and the manner in which the same had been violated. On certiorari. The board of health of the city of Trenton on the 26th of August, 1872, passed the following resolution : " Resolved, That the skiu dressing establishment of Mr. J. Marshall & Son be declared a nuisance, in the opinion of the board, and that such steps be taken by the president as may be necessary to have it abated." Whereupon the relators were notified and directed within five days to remove, correct and abate said nuisance, which consisted in vattiug, dyeing and dressing of skins of animals on their premises within the city limits. Having failed to regard this notice, the prosecutors were proceeded against by the street commissioner, by warrant before Police Justice Street, and the penalty of $10 recovered against them by his judgment, for violating the eleventh section of the ordinance respecting the street commissioner, passed May 8th, 1866. Argued at February Term, 1873, before Justices Wood- hull, Yan Syckel and Scudder. For the plaintiifs, James Wilson. For the defendant, James 8. Aitkin. The opinion of the court was delivered by Van Syckel, J. The certiorari in this case brings up for review the resolution of the board of health, and the judgment and proceedings before Police Justice Street. The tribunal established by law to determine the question of nuisance or no nuisance, is the legislative body of the city government. It is their prerogative to adopt such sanitary measures as will preserve the public health, and to remove every nuisance which may endanger it, and their determina- tion will be conclusive, so long as they do not violate the con- stitution or transcend the power conferred upon them. I JUNE TERM, 1873. 285 State, Marshall, Pros., v. Street Commissioner of Trenton. is their clear right to restrain any occupation which proves detrimental to public health. Police regulations controlling the use of private property, so that it will not become pernicious to the public at large, are not void, although they may, in a measure, affect private interests without providing compensation. The law presumes that the individual is compensated by sharing in the advan- tages accruing from the general enforcement of such beneficial measures. The scope of control over this subject is defined by subdi- vision 24 of section 25, of the city charter, {Ads, 1866, p. 375,) in these words — "The common council shall have power to make, modify, amend or repeal ordinances, rules and regulations, to abate or remove nuisances of every kind; and to require the owner or occupant of any grocery, cellar, tallow chandler's shop, butcher's stall, soap factory or tannery, or other offensive or unwholesome house or place, to cleanse, remove or abate the same." They cannot abate every grocery, butcher's stall or tannery ^ such places are secure against interference or restraint, until they are adjudged to be so employed as to be inimical to pub- lic health or safety, or until their owners contravene some ordinance prescribing the mode in which they shall be usedy and thereby make them nuisances. The business of the plaintiffs is not, per se, a nuisance, and it therefore requires action of a judicial nature to determine whether an occupa- tion lawful in itself, is so conducted as to become liable to abatement. The power to pass upon this question is lodged in the com- mon council, and cannot be delegated to the street commis- sioner. The legislature has not entrusted him with unlimited authority to abate every butcher's stall, grocery, or tannery which, in his individual judgment, may be deemed a nuisance. Nor can a like power be exercised by the board of health, in the absence of any city ordinance defining what circumstances of abuse shall render these occupations obnoxious. The only Vol. VII. 18 286 NEW JERSEY SUPREME COURT. State, Marshall, Pros., v. Street Commissioner of Trenton. provision in the charter, with regard to the establishment of this body, is contained in section 25, subdivision 22, which ■empowers the common council to establish a board of health and define its powers and duties. This clause contains no warrant to the common council to delegate to, or confer upon this board the powers and duties which they themselves are directed to exercise, otherwise there would be two legislative bodies within the city, with concurrent jurisdiction over this branch of its municipal affairs. This, certainly, was not contemplated by the law- maker, and if permitted, might result in conflict between them. The functions of the board of health are of an executive and advisory, and not of a legislative or judicial character. While in this respect they discharge a most important duty, it might be wise to clothe them with more ample authority. The character of those who ordinarily constitute such bodies, fits them eminently to be guardians of the public health. The question in this case however, is one of power and not of public policy. Where the injury complained of is a nuisance -per se, and is denounced by a general ordinance, such as the deposit of garbage, filth, refuse, or other offensive matter deleterious to health, it may be removed by the street commissioner, and the offender subjected to the penalty in such case provided. The board of health is vested with full power to enter upon all property for inspection, and to direct and control the street commissioner in the execution of his office. In Van Wormer v. Mayor of Albany, 15 Wend. 263, a reso- lution of the board of health, declaring certain grounds to be a nuisance, was sustained, but it will be observed in that case, that they were vested by statute with very full power to sup- press nuisances. In the case certified here, there is no ordinance of the city defining what circumstances of abuse will bring an occupation or business like that of the relators, otherwise legitimate, into ihe range of nuisances. JUNE TERM, 1873. 287 State, Marshall, Pros., v. Street Commissioner of Trenton. In this case, the common council should have proceeded specially against the parties to be aifected, and before their rights were impaired by an adverse adjudication, they were entitled to be heard in their defence. State v. Jersey City, 5 Vroom 39 ; State, Bodine et al., pros., v. Common Council of Trenton, ante p. 198. The resolution of the board of health, in general terms, denounces the skin dressing establishment of the prosecutors as a nuisance, and directs it to be abated. It does not bring the alleged offenders within the reach of any corporation ordi- nance, by enjoining them to remove any offensive matter noxious to public health, and, per se, a nuisance. But if tlie prosecutors had violated a valid existing ordi- nance of the city, the mode in which the prosecution, to recover the penalty, has been pursued, is defective both in form and substance. By the forty-fifth section of the charter, suit for the penalty may be instituted before a police justice, but before process issues, an affidavit must be filed, stating that the party pro- ■ceeded against has violated an ordinance of the city, where- upon process, either in the nature of a warrant or summons issues, which must specify what ordinance the defendant has violated, and the time when and the manner in which the same has been violated. The statutory requisites have not been <3umplied with. In my opinion, therefore, the judgment and proceedings ■below should be set aside, with costs. Cited in Dawes v. Hightstown, 16 Vr. 127. 288 NEW JERSEY SUPREME COURT. State, Alden, Pros., v. Mayor, &c., of Newark. THE STATE, REBECCA R. ALDEN, PROS., v. THE MAYOR, &c., OF NEWARK. 1 The assessor, in describing real estate under the act concerning taxes, {Nix. Dig. 952, pi. 92,) may use abbreviations so long as they are intelligible, and leave no uncertainty as to the property upon which the imposition is intended to be laid. 2. The publication of notices to tax payers, required by tax laws, is an indispensable preliminary to the legality of a tax sale, and it must be made in strict accordance with statutory requirement. Oq certiorari. Argued at February Term, 1873, before Justices Wood- hull, Van Syckel and Scddder. For the plaintiff, C{ Parker. For the defendants, Thos. N. McCarter. The opinion of the court was delivered by Van Syckel, J. The validity of a declaration of sale of certain lands of Joseph L Alden, for uwpaid taxes, in the city of Newark, for the year 1859, and of the proceedings touching the same, is controverted in this case. The subject matter of the litigation is certified into this court by virtue of the act of April 2d, 1869. {Pamph. Laws, p. 1238.)* The question whether there is a legal foundation for the tax title, is to be determined by this court on certiorari, and not as formerly, in an action of ejectment. The stringent rule which applies to titles devised under tax sales, is clearly stated by Justice Depue, in The State, Baxter^ prosecutor, v. Jersey City, ante p. 188. " The sale of lands for taxes or assessments, is the execu- tion of a naked power. Every requirement of the statute * Bev., p. 1045, § 15. JUNE TERM, 1873. 289 State, Alden, Pros., v. Mayor, &c., of Newark. imposing the liability and prescribing the procedure to enforce it, which tends to the security of the owner, or is for his bene- fit, must be strictly conformed to. No intendment will be made in favor of the legality of the proceedings. To support the title, the burden of showing compliance with the law is on the purchaser." The first alleged defect upon which the plaintiff relies is, that in the assessment the property assessed is not described with sufficient certainty. The act concerning taxes, {Nix. Big. 952, pi. 92,)* requires a designation of the real estate assessed by such short descrip- tion as will be sufficient to ascertain the location and extent thereof." The description in this case is, " Joseph L. Alden, No. 16 Front street, real estate, H., L. and stable." All that the statute requires, is a description which will identify the real estate. Abbreviations may be used as long as they are intelligible, and leave no uncertainty as to the property upon which the imposition is intended to be placed. In this case, the real estate consisted of H,, L. and stable, No. 16 Front street, evidently meaning house, lot and stable. There can certainly be no difficulty in locating this lot, and it would burden the assessor with unnecessary labor to require a more extended description. Tiie second reason assigned for reversal is, that the notice of unpaid taxes was not published as required by law. The eighty-fourth section of the charter of Newark directs that the city treasurer, after completing the transcript of unpaid taxes, shall cause a notice to be published in two daily news- papers in said city, stating that said transcript of unpaid taxes has been made, and that unless said taxes shall be paid at his office within twenty days aftei the first publication of said notice, he will proceed to collect the same by public sale, ac- <;ording to law. The cases hold that these publications are indispensable preliminaries to the legality of a tax sale, and if so, they *Ilev.,p. 1154, § 69. 290 NEW JERSEY SUPREME COURT. State, Alden, Pros , v. Mayor, &c , of Newark. must, necessarily, be made in strict accordance with statutory requirement. Thatcher v. PoiveH^Q Wheat. 119 ; Ronkendorff V. Taylor^s Lessees, 4 Peters 349 ; Sharp v. Speir, 4 Hill 76. The notice given in this case was, that unless the tax was paid within twenty days from the date of the notice, the land would be sold to pay the same. The notice was dated August 10th, 1860, but was not pub- lished until August 11th, and consequently, but nineteen days were given the tax payer, after the first publication, in which to pay the tax. If the treasurer could reduce the time to nine- teen (lays, there is no reason why he might not have made it ten, or any less number. It was the right of Alden to have twenty days' notice, and in this respect the course of procedure prescribed by the statute has not been complied with. The object of the notice is to apprise the owner of a pro- ceeding which, if not arrested by the payment of the tax, will divest him of his title. The manner in which notice shall be given is regulated by positive law, and there can be no depart- ure from it. The power of sale will attach only when every^ prerequisite has been complied with. Its basis is the regularity of all anterior proceedings. In my opinion, therefore, the sale cannot be supported, and judgment should be entered accordingly. Cited in State, Parker, pros., v. Elizabeth, 10 Vr. 688 ; State, AUm, pros.^. V. Woodbridge, 13 Vr. 401. JUNE TERM. 1873. 291 State, Hoboken Land and Improv't Co., Pros., v. Mayor, &c., of Hoboken, THE STATE, THE HOBOKEN LAND AND IMPROVEMENT COMPANY, PROSECUTORS, v. THE MAYOR. &c., OF HO- BOKEN. 1. The writ haying been allowed after the work was completed, it is therefore dismissed, so far as it brings up the ordinance complained of. 2. It need not appear affirmatively that commissioners of assessment, who are permanent officers of the city, are freeholders resident in th& city, as required by section fifty-two of the cliarter. 3. It must appear by the commissioners' report that they examined intO' the whole matter, and that they imposed the burdens in proportion to the benefits received. 4. Burdens in excess of the benefits cannot be imposed exclusively upon the land owners, subject to assessment. If the lands within the circle of benefits are not benefited as much as- the improvement costs, the ex- cess must be borne by general taxation. On certiorari. This certiorari brings up an ordinance passed hy the com- mon council of Hoboken, April 15th, 1869, to improve Eighth street, from the westerly line of Willow street to the foot of the hill, and the final assessment under it. Argued at February Term, 1873, before Justice Van Syckel. For the plaintiffs, J. Dixon, L. Ahhett and C. Parker. For the defendants, J. C. Besson. The opinion of the court was delivered by Van Syckel, J. The work under this ordinance was completed in December, 1871, and the writ was not allowed until January, 1872. The prosecutors having permitted the work to be completed before they applied to this court for relief, the writ of certiorari must be dismissed, so far as it brings up for review the ordinance complained of. Wilkin- 292 NE\y JERSEY SUPREME COURT. State, Hoboken Land and Improv't Co., Pros., v. Mayor, &c., of Hoboken. son et al. v. City of Trenton, decided in Court of Errors March Term, 1873. Tlie final assessment was confirmed January 9th, 1872, and if that is set aside, the charter of Hoboken imposes upon the Supreme Court the duty of ajipointing commissioners to make a new assessment. 1. The first objection taken to the validity of the assess- ment is that it does not appear that the commissioners who made it are freeholders resident in the said city, as required by section fifty-two of the charter. By a supplement to the charter, passed April 6th, 1871, (section seventeen), the mayor and common council were au- thorized to appoint a board of commissioners, whose duty it was to make all assessments during their term of office. This assessment was made by a board so appointed, who were permanent officers of the city, and not by commissioners appointed for a particular case. It is not necessary to set forth the qualifications of officers of the corporation. State v. Jersey City, 4 Dutcher 504. 2. The fifty-second section of the charier provides that the commissioners shall examine into the whole matter, and shall determine and report in writing to the council what real estate ought to be assessed for such improvement, and what proportion of such expenses shall be assessed to each separate parcel or lot of land, and that the assessment shall be made upon and paid by the lands and real estate benefited by the improvement, in proportion to the benefit received. This report is defective in two particulars: 1st. It does not state that the commissioners examined into the whole matter. 2d. They say that they have assessed the cost of 4he work "according to the provisions of the charter upon the property benefited by the same," but they do not certify nor show that they imposed the burden in proportion to the bene- fits received. 3. It appears by the testimony of each one of the commis- sioners, that they assessed all the real estate in the zone of the JUNE TERM, 1873. 293 •State, Hoboken Land and Improv't Co., Pros., v. Mayor, &c., of Hoboken. assessment, to a greater extent than it was benefited by the improvement. The charter directs that the assessment shall be laid upon the real estate benefited in proportion to the benefit received. The work in this case having cost more than the benefit to be derived from it will be worth to the land owners who can be assessed, the question is presented, whether the cost in excess of the benefits can be imposed upon such land owners. The legislature, in conferring this power to assess upon the city government, did not contemplate a case of this kind. The presumption was, that no undertaking would be entered upon -which would not be remunerative in its results, and which would not confer benefits, at least co-extensive with its cost. In this case, it appearing beyond controversy that there is an excess of expenses over benefits, private property is taken pro tanto for public use, without compensation. That which is received by the land owner is not equal to what is taken from him. This excess of cost cannot, in the legitimate exercise of the power of taxation, be thrown exclusively upon the persons subject to assessment in this case. If there are no other lauds to which the benefits reach, it is a burden which the public ought to bear, and it should be levied by general taxation. The legislative act confers upon the corporation no power to impose a burden on the property owner, in excess of the benefits accruing to him, and if it did, it would be unconsti- tutional and void. This doctrine is so securely founded in reason and sound policy, and so firmly established in The Tide Water Co. v. Coster, 3 C. E. Green 527, that it cannot be shaken. In the later case of The State v. Fuller, 5 Vroom 227, the Supreme Court sustained an assessment which was laid accord- ing to the number of lineal feet, but in that case no exce-ss of cost over benefits was shown to exist, and the court presumed that there was none in fact. If there is any conflict between these cases, I should feel bound by the case in the court of last resort. 294 NEW JERSEY SUPREME COURT. State, Heboken Land and Improv't Co., Pros., v. Mayor, &c., of Hoboken. This point is so ably presented and discussed in that case, that it is unnecessary to say more than that the conclusion- reached by the Chief Justice should be strictly adhered to. The argument that this case is exceptional because some of the relators petitioned to iiave the improvement made, and are therefore bound to pay whatever it may have cost, is not well founded. They petitioned to have the work executed in conformity to the city charter, and they cannot be subjected to any exaction more onerous than the charter authorizes. The relators had no control over the cost of the undertaking, that was exclusively within the control of the city authorities, and it was their duty to count the cost before they granted the prayer of tlie petition, and entered into the engagement. 4. A further objection taken to this assessment is, that there is included in it the expense of earth filling on the adjacent lot.s, outside of the street lines. The answer made by the defendants is, that the filling out- side of the street was caused by the bulging necessarily inci- dent to filling up the street to grade, and that no dirt was thrown outside of the limits of the highway. So lar as this is true, it is a good answer to the objection, b.ut any fiUin^utuiecessarily, and not unavoidably made upon the adjacent lots, in the proper prosecution of the enterprise, is unauthorized and gratuitous, and cannot be charged upon the land owners. The surveyor's estimate of the expense of the entire work, before it was entered upon, was $40,589.74, while the actual cost, as certified by him, was $123,193.21. This remarkable discrepancy certainly does no credit to his skill as an engineer, and may be looked into by the new commissioners to be appointed, w'hose duty it will be, under the act, to examine into the whole matter. In my opinion, the entire assessment should be set aside, and a new assessment ordered. Cited in State, Harris, pros., v. Jersey City, 9 Vr. 85 ; State, Orant, pros., V. Clark, 9 Vr. 102 ; State, Spear, pros., v. Perth Amboy, 9 Vr. 425 ; Green V. Jersey City, 13 Vr. 118 ; Bowne v. Logan, 14 Vr. 421 ; Rinehart y. Coweli, 15 Vr. 360. JUNE TERM, 1873. 295 ■ Swayze v. N. J. Midland Railway Co. SWAYZE V. NEW JERSEY MIDLAND RAILWAY COMPANY. 1. The proviso in the 3d section of the act incorporating the New Jersey Midland Railway Company, requiring the road to be laid out in Sus- sex county, under the charter of the New Jersey, Hudson and Dela- ware Railroad Company, is not fulfilled, either in terms or effect, by the report of an assessment made under the charter of the New Jersey Western Railroad Company, which states that the commissioners have taken into consideration the benefits to the owner from such, railroad. The benefits should not be estimated. 2. The affidavits and report show that the owner of the land had notice of the meeting of commissioners. On certiorari to review appointment and report of commis- sioners, &c. Argued at February Term, 1873, before Justices Wood- mull, Van Syckel and Scuddeb. For the plaintiff, R. Hamilton. For the defendants, M. M. Knapp, The opinion of the court was delivered by ScuDDER, J. The appointment and report of commission- ers to value the land and damages of the prosecutor, in pro- ceedings under the defendants' charter to construct their road bed through Hardyston township, in the county of Sussex^^ are brought before us for review by certiorari. The jK-incipal reason stated for a reversal is that the pro- ceedings have been taken under the charter of the New Jersey Western Railroad Company, whereas by the charter of the New Jersey Midland Railway Company, (§ 3,) their road must be laid out and constructed through the county of Sus- sex, under the chartered rights, powers and privileges of the New Jersey, Hudson and Delatoare Railroad Cov'ipany. The New Jersey Midland Railway Company is formed by the consolidation of the " New Jersey, Hudson and Delaware Railroad Company," " The New Jersey Western Railroad Company," and " Sussex Valley Railroad Company," author- 296 NEW JERSEY SUPREME COURT. Swaj'ze V. X. J. Midland Eailway Co. ized by an act approved March 17th, 1870, (Laws 811) and -confirmed by statute of March 31st, 1871, {Laws 1093). The 3d section of the charter contains the proviso " that the said consolidated or New Jersey Midland Railway Com- pany shall be laid out and constructed through the county of Sussex, under the chartered rights, powers and privileges of the said New Jersey, Hudson and Delaware Railroad Company." It is claimed that this proviso will avoid all proceedings taken to condemn land under any other charter than that named therein. On the other hand, it is said that by the general terms of the act authorizing the consolidation of these three several companies, and their merger into one company, all the rights, powers and privileges possessed by each sepa- rately, were incorporated into the new company, and ceased to have any_existeuce outside of the present organization. It is clearly a sufficient answer to this latter -suggestion, that the proviso must be construed with the other parts of the act, so as to give it the effect intended by the legislature. While, therefore, the general purpose of the act may well be con- strued to be a complete union of these separate companies, it was plainly within the power of the legislature to insert a proviso, in the nature of an exception, that certain acts should be done under the special provisions of one charter, rather than under the general terms of the charter for consolidation. If this intention is manifest, as I think it is, then it settles the construction ; and all proceedings within the proviso must be according to its terms. In this case, the New Jersey Midland Railway Company are about to lay out and construct their road through the lands of the prosecutor, in the county of 'Sus- sex. It must, therefore, be done under the chartered rights, powers and privileges of the New Jersey, Hudson and Dela- ware Railroad Company. These rights, powers and privileges include the condemnation of laud for the purpose of a road bed and embankments, and the proceedings for condemnation must be according to the charter of the designated company. The petition of the New Jersey Midland Railway Com- j)any, for the appointment of commissioners, sets forth, among JUNE TERM, 1873. 297 Swayze v. N. J. Midland Railway Co. other things, that a survey of the route through the described lands of Vaucleve M. Swayze, the prosecutor, has been duly filed in the office of the secretary of state, under and by vir- tue of the provisions of the charter or act of incorporation of the New Jersey Western Railroad Company, approved March 2d, 1867, and of the supplements thereto, and -particularly of the supplement thereto, approved March \Qth, 1870; and the petition prays for the appointment of commissioners to ex- amine and appraise the land, and assess the damages accord- ing to the provisions of said charter and supplements. The appointment dated July 22d, 1872, recites the facts stated in the petition, and appoints three commissioners to examine and appraise the required land, and assess the damages, and' whatever they, as such commissioners are required by law to assess upon twenty days' notice, &c. The commissioners made their report, dated September 19th, 1872, with an appraisement of the value of the land and materials required and taken, and for the damages of the said Vancleve M. Swayze ; " having made such appraisement and assessment, at the same time taking into consideration all the benefits derived from or in consequence of the value of the said railroad to the said owner" This last clause of the report of commissioners explains the difference between the charter of the New Jersey, Hudson and Delaware Railroad Company, and of the New Jersey Western Railroad Company, in relation to the assessment of damages to lands. By the charter of the former, passed March 8th 1832, {Laws 133) the commissioners are required to make a just and equitable estimate or appraisement of the value of the lands or materials, and assessment of the damages sustained by the owner or owners thereof, by reason of the taking. By the charter of the latter, approved March 21st, 1867,. {Laws 386) the same form of words is used for the valuation of lands and assessment of damages ; but by the supplement to the charter, approved March 16th, 1870, {Laws 580) to which special reference is made in the petition of the defend- ants in this case, it is enacted, that in the extension of their ^98 NEW JERSEY SUPREME COURT. Swayze v. N. J. Midland Railway Co. railroad to a point on the Hudson river at or near Hoboken, or \yeehawken, all necessary lands and materials to be taken and used by the said " The New Jersey Western Railroad Company," may be taken in the same manner and by the same proceedings as are specifically set forth in the charter of the Hackeusack and New York Railroad Company, except- ing certain lands, &c. Tnrning to the charter of the Hackensack and New York Railroad Company, approved March 14th, 1856, {Laws 340), we find that, iw making the valuation of land and assessment of damag-es, the commissioners are to take into considera- tion " all the benefits to be derived from, or in consequence of, the said railroad, as the case may be, to the said owner or owners," &G. In comparing the charters of these two companies, and supplements, it will be found this is the only important difference between them in laying out and constructing their respective roads; and it is this difference that is doubtless the point aimed at in the proviso contained in the third section of the charter of, the New Jersey Midland Railway Company. It was there intended that in constructing the road through Sussex county, under the act of consolidation, in the assess- ments of damages to lands taken, the benefits to be derived b.y the owners from the railroad should not be considered. The petition and appointment in this case show that the proceedings have been under the charter of the New Jersey Western Railroad Company, and the commissioners state, in their report, that they have considered all the benefits derived from, or in consequence of, the value of the said railroad to the said owner. This is adopting, in terms, a wrong principle of assess- ment, variant from that prescribed in the charter of the Mid- land company when laying their road throughthe county of ^Sussex. But it is Baid that it is erroneous only in the terms used, and not in effect; that in the assessment of damages to the owner of the land, the estimate of the special benefits to JUNE TERM, 1873. 299 Swayze v. N. J. Midland Railway Co. him as such owner, by the construction of the railroad, must enter as one of the elements of the calculation. It is true tlrat, in the general definitions which have been given to the term damages in the proceedings for condemnation of lands by municipalities and railroad companies, questions have arisen, and differences of opinion are expressed as to whether this term includes an offset of benefits to remaining property, which are common to the owners of the lauds taken, and others in the same locality, or those which are special and peculiar to such owner; the former being generally disap- proved, and the latter being sometimes allowed, but it will be found that such construction is usually limited or extended by express legislative or constitutional provisions in the several states where the question has arisen. Cooley on Const. Lhn. *565, et seq. ; Dillon on Mun. Cor'p. 486, et seq. ; 1 Reinoney from the treasury of the state, and for its speedy and iproper distribution amongst those who are entitled to its ibenefits. To secure these results, two classes of officers are employed. Tirst, the treasurer of the state, and the several county and township collectors, each of whom is for a time entrusted with the actual custody of the fund in question, or of some portion -of it; and secondly, the state superintendent, the comptroller, the county superintendents and the district clerks, who are to apportion and direct the payment of it. The power which the several officers of the first class are permitted to exercise over the school money in their hands, is, in degree and kind, substantially the same. So that if a county collector may lawfully determine for himself, whether or not he will pay a county superintendent's order, the state treasurer may, at his discretion, decline to honor the comptroller's warrant, and a township collector Sisson V. Donnelly. William Burdon of the third part. This deed recites that the said Peters, by deed dated the 12th March, 1841, had mort- gaged the premises in question to the said Burdon, and that said mortgage, " by a clerical omission," did not contain words of inheritance, but by its terms conveyed only a life estate to said Burdon; that subsequently said Peters had conveyed said premises to said Harrison, subject to said mortgage ; that it was intended that said mortgagee should take a fee in said property, and that said Harrison was willing that said mort- gage should be considered as vesting a fee in said Burdon. The instrument then proceeds to convey the property in the words following: "Now therefore, in consideration of the premises, and in the further consideration of the sum of one dollar, to us, the said parties of the first and second parts, in hand paid by the said party of the third part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, ratified, and confirmed, and by these presents do grant, bargain, sell, ratify, and confirm unto the said party of the second part, his heirs and assigns forever, all and singular the above mentioned and described premises in the said indenture of mortgage mentioned, subject to the covenants and provisos therein mentioned and contained." The mistake which exists in this deed is clearly apparent upon its face. No person can read it and fail to perceive what it is. It arises from the use of the description, " the party of the second part," instead of the description, " the party of the third part," as the grantee. That this was a mere slip, no one can doubt. Nor is there any more uncertainty as to the fact that the grantee was intended to be the party of the third part, i. e., Burdon, the mortgagee. As the deed now reads, Harrison is both grantor and grantee, and the instrument in the clearest terms recites that its sole purpose was to pledge the property in fee to Burdon, under his mortgage. The intention of the parties is therefore clear on the face of the conveyance, the only question being whether or not the deed can be read so as to effectuate such intention. The rule of construction, which is universal and is appli- 440 COURT OF ERRORS AND APPEALS. Sisson V. Donnelly. cable to conveyances as well as to all other kinds of deeds is, in the language of Sheppard's Touchstone, that it " be favor- able and as near the minds and apparent intents of the parties as it possibly may be, and the law will permit." Shep. Touch., ch. 5, p. 85. This has ever since and in a great multitude of cases, been recognized as the leading canon in giving effect to €very variety of written instruments. In Cholmondeley v. Clinton, 2 Jac. & W. 1, Sir T. Plumer, Master of the Rolls, states the rule almost in the same terms. He says : " That the primary object of inquiry is the intention of the parties, and that where that is on the face of the instrument, clearly and satisfactorily ascertained, and found not to be contrary to anv rule of law, the court is bound, if the words will admit of a construction conformable to the intention, to adopt that con- struction, however contrary it may be to technical meaning and inference." There is a long line of decisions which are illustrative of the doctrine that the words which are used will be controlled by an intention clearly expressed in the instru- ment to be expounded. Among these the following occupy a ])rominent place: Walsh v. Trevanion, 15 Ad. & El. {N. S.) 733 ; 3Ioore v. Magrath, 1 Cowp. 9 ; Thorpe v. Thorpe, 1 Ld. Rayni. 235. It will be observed that by the limitations of the rule itself, the intention is to be enforced whenever "the law will permit." I take that to mean that the intention will prevail whenever such intention is unmistakably manifested, hav- ing regard to all parts of the instrument, unless the law requires the use of technical terms to effectuate such inten- tion, or unless such intent is contrary to legal rules. The first of these classes of cases is aptly exemplified by the im- perfect form of the deed to which I first called attention. It created but a life estate, and it was insisted that the intention was to create a fee; but such intention could not have been carried into effect, no matter how plainly apparent, because the law requires the use of certain terms of art in the crea- tion of a fee simple. So, as an illustration of the second branch of the exception, " if one gives land to another and JUNE TERM, 1872. 441 Sisson V. Donnelh his heirs for twenty years, in that case the executor, and nob the heir, shall have that land after the death of him to whom it is given.'' Shep. Touch. 86. But, unless in these instances,, where artificial terms are requisite, or an attempt is made to do something inconsistent with established {)rinciples, I am not aware of any exception to the rule that the intention of the party must prevail. There appears to be nothing technical in^ legal regulations respecting the description of the parties to^ written instruments. Unless a misdescription in this particu- lar renders a deed uncertain as to its meaning, such defect is of no consequence. A plain misnomer can do no hurt, the only question being whether it is clear who is intended. The authorities strongly favor this common sense result. It has been decided that a mistake in the christian name is imma- terial, if the deed explains who is intended. " A deed," says Fei-kins, § 36, " to Robert, Bishop of E., will be good, though his real name is Roland." So where a deed purported to be tliat of a married woman, her name only appearing as grantor^ but it was signed by her and her husband, it was held to be good as a grant of husband as well as the wife. Elliott v.. Sleeper, 2 N. Hamp. 525. And in the often quoted case of Lord Say and Seal, 10 3Iod. 40, an omission by an evident mistake of the name of the grantor in a deed of bargain and sale, was supplied by intendment, "and the court was of opin- ion that this deed ])assed the freehold, because such was the intention of it." I think it is not reasonably to be denied, that if the name of a party which has been altogether omitted in the operative part of a deed, can be inserted, when read by the court, on the ground that the meaning of the instrument to that effect is clear, from the same consideration, the errone- ous designation of the grantee may be rectified. In my opin- ion, the deed under consideration is to be read as though the grantee was described according to what the parties plainly meant, as the party of the third part. Under this construc- tion, no title to the premises in dispute ever came to the de- fendants by the operation of this tripartite deed. This result renders it unnecessarv to discuss the further 442 COURT OF ERRORS AND APPEIT^S. .State, Brittin et al., v. Blake et al. ■question as to what would have been the effect of this latter deed if the court had been constrained to enforce it according to its letter. I will merely remark, that it has not seemed to me that such a construction would have, in any degree, fur- thered the defence. In such event, the grantee, Harrison, would have taken the fee in trust, defeasible on the payment of the money secured by the mortgage. A solid defence could not have been rested on this foundation. The above views are decisive of the case as it now stands before this court. It is not necessary to pursue other topics which were embraced in the argument of the respective coun- sel. The facts set up by way of defence at the circuit are of equitable cognizance, and they are of no avail in a court of law. I am of opinion that the judgment in the court below should be reversed. For reversal — The Chief Justice, Dalrimple, Depue, ScuDDER, Van Syckel, Woodhull, Dodd. 7. For affirmance — Clement, Ogden. 2. Cited in Warner v. Sisson, 2 Stew. Eq. 141. THE STATE, WILLIAM BRITTIN AND OTHERS, PLAINTIFFS IN ERROR, V. JOSEPH BLAKE AND OTHERS, DEFEND- ANTS IN ERROR. 1. An assessment made by the defendants as managers under an act approved April 1st, 1868, enabling the owners of certain swamps and marsh lands to drain the same, having been aflSrmed on certiorari by the Supreme Court as to all the prosecutors excepting B., who had leave to apply to the court to have the assessment against him cor- rected, the assessment to stand in case he failed to apply within a limited time, and judgment afterwards entered against B. and the others for costs — Held, that there was no error in this, the neces- sary inference from the record being either that B. had failed to apply within the time, or, that having applied, no correction was found necessary. JUNE TERM, 1872. 443 State, Brittin et al., v. Blake et al. The spirit of the maxim, " Victus victori in expends condemnandua est," has for many years prevailed in our courts. There was no error in holding the act which authorized the assess- ment to be valid, although it provided for no appeal from the deci- sions of the managers. The constitutional restriction on taking private property without compensation, is confined to a single branch of the legislative author- ity, the right of eminent domain, and has no application to an assess- ment made under the police powers of the legislature. The validity of the assessment was not affected by the subsequent repeal of the act which authorized it. In error to Supreme Court. For former proceedings in this case, see 6 Vroom 208 For the plaintiffs in error, A. W. Cutler. For the defendants in error, H. C. Pitney. The opinion of the court was delivered by WoODHULL, J. This writ of error brings under review a judgment of the Supreme Court, affirming an assessment made by the defendants as managers, under an act approved April 21st, 1868, enabling the owners of swamps and marshy lands lying on the Upper Passaic and its tributaries, in the counties of Morris and Somerset, to drain the same. The first error assigned relates to that part of the judg- ment of the Supreme Court, which required the plaintiffs in certiorari, who are the plaintiffs in this court, to pay costs to the defendants. By the common law, costs were not allowed by that name to either party. They were, however, always considered and included in the quantum of damages in actions where dam ages were given. The statute of Gloucester, 6 Ed. I, ch. 1 was the first to give them, eo nomine, to the demandant in a real action, as the statute, 3 Hen. VII, ch. 10, was the first to allow them on a writ of error. But excepting in one j^articu- lar case under the statute of Marlbridge, 52 Hen. Ill, ch. 6, 444 COURT OF ERRORS AND APPEALS. State, Brittin et al., v. Blake et al. no costs were allowed the defendant in any shape, till the statute 23 Hen. VIII, ch. 15, and several later ones, gave him,, if he prevailed, the same costs as the plaintiff would have had in case he had recovered. The statutes of Gloucester and other kindred acts have very generally received from the courts at Westminster Hall, a liberal construction; so that the maxim " Vidus vidori in expensis eondemnandus est" be- came at length, as well established in the English as it was in the civil law. There can be no doubt that the spirit of this maxim has for many years prevailed in our own courts. 3 Bla. Com. 399; Hullock on Costs, cA. 1, § 1 ; c/i. 11, § 1 (124.) In the case of Alter et al. v. Shuris, 2 Harr. 188, the cer- tiorari, as in the present case, was prosecuted under the com- mon law jurisdiction of the Supreme Court ; its object being to set aside a discharge by the Court of Common Pleas, of an insolvent debtor. The question was whether costs should be allowed to the defendant in certiorari on affirmance of his discharge. This question Chief Justice Hornblower answers in the affirmative, citing in support of his conclusion the prin- ciples and practice of the English courts as well as the decis- ions of our own. " These decisions," he remarks, " are sufficient to warrant us in giving costs in this case. Courts of common law have long exercised an equitable power in matter of costs. There is no statute giving costs on granting new trials, putting off causes, failing in applications made to the legal and discretionary powers of the court; and yet, costs in such cases are constantly ordered to be paid. These writs of certiorari are in the nature of writs of error, and costs upon them are clearly within the spirit and equity of the statutes giving costs in error." Mr. Justice Southard, in Hann v. McCormick, 1 South. 109, declares it to be a general principle that the prevailing party in suits, in all courts of law, is entitled to costs. It is clear then, both upon the principles of the common law and from the practice and decisions of our courts, that the Supreme JUNE TERM, 1872. 445 State, Brittin et al., v. Blake et al. Court did not err awarding costs to the defendants in this case, if they were in fact the prevailing party. That the court below regarded them as such, is manifest, and it seems equally clear that upon any fair interpretation of the result of the proceedings of the prosecutors, they must be regarded as the vanquished party, and completely within the range of the maxim, " Vidus victori in expensis condem- nandus est." It is true, the Supreme Court in affirming the assessment with costs, except William Brittin, whose assess- ment they direct to be corrected. This would, of course, sug- gest a doubt whether, under such circumstances, there could properly be any judgment entered against Brittin for costs. But upon examining the record it will appear that Brittin merely had leave to apply for the correction within a limited time, and that in default of such application the assessment should stand in all things affirmed as to him and the land as- sessed in his name. Whether or not such application within, the time limited was, in fact, made by Brittin, or in his behalf, does not appear. The judgment for costs being- entered against all the prosecutors, including Brittin, the necessary inference is, that he either failed to apply in accordance with the order of tlie court, or that, having applied, no correction was found necessary. In eitiier case the judgment, as to costs, must be held to be good against Brittin, as well as against the other {)jrosecutors. The second and third assignments of error call in question the constitutionality of the act under which the assessment was made. It is insisted on the part of the plaintiffs in error, that this act is unconstitutional, in the first place, because it gives no appeal to the parties assessed. The second section of the act makes it the duty of the managers to estimate, according to their best judgment, the cost of removing the obstructions in the river and its tribu- taries, and of widening, deepening, and straightening the channels thereof, if in their opinion required, and having made such estimate, to assess upon the owners of the land the amount of it, together with the necessary expenses, ac- YoL. VII. 28 446 COURT OF ERRORS AND APPEALS. State, Brittin et al., v. Blake et al. cording to their judgment of the benefit which will accrue to each of said owners, by the draining of their lands. The ob- jection now under consideration is, not that the act invests the managers with unlawful powers, but that having confided to their discretion and judgment the important matters just stated, it makes their decision upon them final. It is not easy to understand how this can be supposed to affect tlie validity of the act. The constitution being entirely silent on the subject, whether an appeal should be given or withheld, it was a matter resting exclusively in the legislative discretion, even if that discretion has been unwisely exercised in this case, which is by no means admitted. The error is quite beyond the reach of judicial cor- rection. One consideration which may very probably have influenced the legislature to withhold an appeal from the de- cision of the managers, was the fact that they were to be chosen by the owners themselves. But however this may have been, it is certain that our legislatures have always, without question or complaint, exercised the right in similar cases, to grant or withhold an appeal at their pleasure. This was done in t«he act of 1783, relating to the drainage of meadow ground, and in the act of 1788, to enable the owners of the tide swamps and marshes to improve the same. Wils. Laws 382 ; Fat. Latcs 84. The act last cited provided for the appointment, by the Court of Common Pleas, of three or more commissioners to survey the swamps or marsh, and lay out the necessary works. It provided also for the election by the land owners, of mana- gers to estimate the expenses of the necessary works, and to assess them ratably upon the land owners; and also for the election of three or more indifferent men to value the swamps or marsh. From the proceedings of the commissioners, the act gives an appeal, but gives none from the decision of those who were to value the land, nor from the proceedings of the managers who were to make the assessments. Instances of a similar exercise of the legislative discretion, might be multiplied almost indefinitely. They may be found not only in the numerous acts for the improvement of swamps JUNE TERM, 1872. 447 State, Brittin et al., v, Blake et al. and meadows, but in many others, such as the small cause act, which expressly denies an appeal in certain cases — in our road laws, and in the charters of municipal and other corporations. There was no error therefore, in holding the act to be valid, although it gives no appeal to the parties assessed. The next objection to the validity of the act is, that it vio- lates t!ie constitutional provision, which forbids the taking of private property for public use without just compensation. If the assessments and other means and instruments author- ized by this act in furtlierance of the intended improvement, are to be referred, as they usually and I think properly are, to the general police powers of the legislature, it seems clear, that the objection now under consideration can have no weight in the decision of this case. For it is well settled that the restriction on taking private property without compensation, is confined to a single branch of the legislative authority — the right of eminent domain — and has no application either to the taxing power or to the police powers of the legislature. Sedg. Con. Law. 499-502, and cases. Another answer to this objection at least equally conclusive is, that acts of the same character as the one now drawn in question, not differing from it materially either in principle or structure, authorizing similar improvements to be effected by the use of almost precisely the same kind of means, have stood upon our statute books for more than a century, ac- quiesced in by the people, unchallenged by the bar, and tacitly if not expressly sanctioned by our courts. I concur in the views expressed by Mr. Justice Van Syckel in delivering the opinion of the Supreme Court in this case. " This branch of legislative power," he remarks, " which regulates the con- struction of ditches and sewers and the drainage of meadows and marshy lands, has been exercised so long, and is so fully recognized, that it is now too late to call it in question. It is clearly affirmed in the Tide Water Company v. Coster, and cannot be opened to discussion." To show how fully the reference to the case of the Tide Water Company v. Coster is sustained, I cite the very explicit language of the present 448 COURT OF ERRORS AND APPEALS. State, Brittin et al., v. Blake et al. Chief Justice in delivering the opinion of the court in that case. He says : " But the regulations established by the legis- lative power, whereby the owners of meadow lands are com- pelled to submit to an equal burthen of the expense incurred in their improvement, are rules of police of the same character as provisions concerning party walls and partition fences. Ta these cases therefore, the principle upon which the decision of the present case rests, is not to be extended." 3 C. E. Oreen 531. The only question remaining to be considered is that raised by the fourth assignment of error, namely, as to the effect of the repeal of the act under which the assessment was made. It is insisted by the plaintiffs in error that in consequence of this repeal, the assessment is no longer enforceable, and should have been declared void by the Supreme Court. The repeal- ing act was passed March 16th, 1870, {Laics, 1870, p. 602,) excepting and reserving, however, all property, rights, privi- leges, matters and things, liabilities, agreements or responsi- bilitias legally acquired, incurred, assumed, performed or made under or by virtue of the act so repealed. Upon this part of the case, I adopt the conclusion and the language of the opinion delivered in this case in the Supreme Court, and already referred to, namely, that " the saving clause in the enactment shields the assessment made before the repeal from its operation. The assessment was perfected, and the liens had attached, and the remedy to collect it must also inhere as an incident essential to the enjoyment of the right saved." There was no error in holding the assessment valid, not- withstanding the repeal of the act which authorized it. The judgment of the Supreme Court is affirmed. For affirmance — The Chancellor, Chief Justice, Dal SIMPLE, Depue, Woodhull, Clement, Dodd, Ogden^ Wales. 9. For reversal — None. Cited in WiUiams v. Allen, 5 Stew. Eq. 485. JUNE TERM, 1872. 449 Edwards et al. v. Elliott. NELSON EDWAEDS ET AL. v. GEORGE W. ELLIOTT. 1. In an executory contract to build a vessel to be paid for in instal- ments, as the work progresses, the title remains in the builder until the work is completed and delivered. 2. Where by the terms of the contract, when an instalment was paid, the vessel, so far as then constructed, was to become the property of the purchaser — Held, that the burden is on him to show the time of pay- ment, and that his title vested before the lien attached. 3. The act for the collection of demands against ships, steamboats, and other vessels, {Nix. Dig. 576,) does not conflict with the constitution of New Jersey, by violating the right of trial by jury. In error to the Supreme Court. For former proceedings in this case, see 6 Vroom 265. An article of agreement was made November 3d, 1866, between Henry C. Jeroleman of the first part, and Nelson Edwards and others of the second part, for buildiug a schooner of specified dimensions, materials, and finish, for the consider- ation of $54 per ton ; the builder to furnish all labor and materials and deliver the vessel in May, 1867. The pay- ments were to be made as follows : $2500 when the keel was laid; $3000 when the frame was all up; $3500 when ceiled, deck beams in, kneed off and decks laid; $3500 when outside planks were on and squared off; $3500 when the poop deck was on ; $2000 when ready for launching, and the balance when delivered according to contract. And it was agreed tljat as the said several instalm-ents were paid, and upon the payment of each instalment, the schooner, so far as then con- structed, and the materials therein inserted, should be and become the property of said Edwards and others. The schooner was built at East Newark, Hudson county, N. J., in the winter and spring of 1872. Charles Elliott, and David Ripley and others, defendants in error, furnished •timber for the vessel, and June 19th, 1867, caused the same 450 COURT OF ERRORS AND APPEALS. Edwards et al. v. Elliott. to be seized by the sheriff, under " an act for the collection of demands against ships, steamboats and other vessels, approved March 20th, 1857, and supplement." Nix. Dig. 576-81. At the time of the seizure, the schooner was unfinished upon the stocks, and had not been launched, nor named, en- rolled or licensed. July 2d, 1867, the defendants below, Edwards, Woolsey, and Collins, gave bond to Elliott, Ripley and others, lien claimants, for §4894.32, under section 12 of the above act,^ and the vessel was discharged from seizure. Elliott's Bill was §201.70, for chestnut timber furnished in November, 1866. Ripley's bill was $2245.46, for oak, pine,^ &c., furnished between January 15th and May 10th, 1867. An action was brought in the Supreme Court on the bond. The defendants demurred. The demurrer was overruled. The defendants afterwards filed special pleas. A special ver- dict was rendered, and judgment thereon entered in the Supreme Court. A writ of error on said judgment was issued, and returned to this court. Eor plaintiffs in error, D. McMahon, of New York. For defendant in error, A. Q. Keashey. The opinion of the court was delivered by ScUDDER, J. Upon the special verdict rendered in thi& cause, the Supreme Court has adjudged, as appears by the record returned, that the act entitled, "An act for the collec- tion of demands against ships, steamboats, and other vessels," approved March 30th, 1857, is valid and constitutional, and that Nathaniel Ellis and Henry Jeroleman, the builders of said vessel, were the owners thereof, and competent to charge it with liens, and that the respective claims of the plaintiffs were subsisting liens under the laws of the State of New Jersey, on the said vessel at the time of exhibiting the same, and that the accounts claimed by the plaintiffs were due JUNE TERM, 1872. 451 Edwards et al. v. Elliott. in this suit. Errors are assigned upon the several points of the judgment. I will consider first the construction of the statute in its application to the facts in this case as they appear on the record, assuming its validity; and next the validity or consti- tutionality of the act, so far as it affects this action. The suit is upon the bond given by the defendants to the plaintiffs below, to discharge the vessel from the seizure of the sheriff. This bond is compulsory, in invitum put upon them by the statute before they can take their property from the custody of the law. They should not therefore be shut out from any defence which they have to the merits, and which they have pleaded and presented to the court with proper diligence, and without waiver. The condition of the bond is, that the obligors shall pay the amount of all such claims and demands as shall have been exhibited to said commissioner, which shall be established to be subsisting liens upon said vessel, pursuant to the provisions of said act, at the time of exhibiting the same respectively. There can be no subsisting lien, if the provisions of the act have not been met, or if the act itself is a nullity. These par- ticulars must be established by the plaintiffs, when challenged and denied in proper legal form by the defendants, and this defence is open to them by the very terms of the condition of the bond. 1. Are these claims subsisting liens under the statute, assum- ing its validity? It is insisted in opposition, that the two several debts in the declaration mentioned were not contracted by any master, owner, agent, or consignee of said schooner. The timber was bought for the vessel by Jeroleman, who was the contractor and builder. It is said he was only the builder, not the master, owner, agent or consignee. The vessel, when seized by the sheriff, was on the stocks, in the possession of Jeroleman, to be built and finished under his contract with Edwards and others, above stated. The work was all done, and the materials furnished by him. It 452 COURT OF ERRORS AND APPEALS. Edwards et al. v. Elliott. was not eompleted, not delivered, and the title remained in the Builder, unless there is some special condition in the con- tract which alters the general principle of law. See the cases cited in the opinion delivered in the Supreme Court, especially West Jersey R. R. Co. v. Ti'enton Car Works, 3 Vroom 517, decided in this court June Term, 1866, holding, that in the case of an executory contract for the sale of an article not in existence, but to be manufactured, even when the contract price is paid in advance, no title passes until the thing is com- pletely finisiied, and is either delivered to the orderer or is apj)ropriated to his benefit, or set apart for him, or is accepted by him. It is claimed that there has been a delivery, appropriation and acceptance under the terms of the contract. The only part of the contract that can have this effect is the express provision, that from time to time, as the several instalments were paid by the parties for whom the vessel was built, and upon the payment of each instalment, the said schooner, so far as then constructed, and the materials therein inserted, shall be and become the property of the said parties of the second part. This is an agreement, that on payment of the first instal- ment, and of each succeeding instalment, the general prop- erty, in so mucii of the vessel as is then constructed, shall vest in the purchasers. It is not necessary, therefore, to do more than again refer to the authorities cited in the opinion of the Supreme Court, upon the effect of a stipulation in an executory contract to pay certain instalments as the work progresses. A summary and review of all the important cases ujjon this point will be found in the brief of counsel, and in the opinion of Justice Denio, in Andrews v. Durant, 1 Kern. 35. This last case denies the authority of Woods V. Russell, 5 Barn. & Aid. 942, and Clarke v. Spence, 4 Ad. at the timber that Ss growing on the different lots of woodland that belongs to Tuy estate should be carefully preserved for the benefit of my •estate, to be aad remain as is herein directed, so long as she remains my widow. Fourth. If my wife, Lucy Akins, should marry, I order ^nd direct that she is not to have, after her marriage, no moneys belonging to my estate at that time, but is still to have all my lands and meadows as is directed in the first be- quest to her in my will. Fifth. 1 also give and bequeath to my beloved wife, Lucy Akins, one-third of all my estate that may remain at the time of her death, for to dispose of as she may see proper ; and the other two-thirds to be divided as I hereinafter order and ■direct. Sixth. I give and bequeath to my nephew, Benjamin Lem- ming, my sister Rebecca's son, the same amount of moneys .that may come to any one of the heirs of my brother, Ben- NOVEMBER TERM, 1872. 463 Downey v. Borden. jamin Akins, deceased ; and I give to my sister, Mary Jefferry, five dollars; to my nephew, William Parker, five dollars; to ray nephew, John Parker, five dollars ; and the balance of the two-thirds of my estate to be divided in four equal parts or shares, that is to say : the heirs of my brother, Benjamin Akins, deceased, one-fourth part; my sister, Hannah Shate- lear, one-fourth part; my sister, Lydia Ellen, one-fourth part ; ray sister, Sarah Badby, one-fourth part. Plaintiifs also proved that the defendant, Henry Downey, was in possession of the preraises in question, the sarae having been rented to hira by the agent of the heirs of William Akins, deceased. The defendant proved that William Akins died leaving sisters and children of a deceased brother and sisters, named ^nd referred to in his said will, as his heirs. The court gave judgment that the plaintiffs were jointly entitled to the one undivided third part of the premises in question. The opinion of the Supreme Court is reported in 6 Vroom 74. For the plaintiff in error, W. H. Vredenburgh and C. Parker, 1. The question as to every will is, what was the intention of the testator, as derived from his language and the circum- stances surrounding hira? And the stringency of interpreta- tion differs with the inexpertness of testators and draughtsmen. 2 Bed/, on Wills 420, §§ 30, 432, 433 ; Park v. Park, 9 Paige 107; Jackson v. Housel, 17 Johns. 281; De Kay v. Irving, 5 Denio 646 ; Prentiss v. Doughty, 3 Bradf. Sur. R. 287 ; Malcolm v. Malcolm, 3 Cush. 472. 2. Heirs are not to be disinherited unless the intent to do so is very clearly expressed. 2 Jarman 762, Rule V; 1 Roper 671 ; Leigh v. Savidge, 1 McCarler 134. 3. The wife, by this will, was to take a life estate in all the property, with liberty to use up what she needed. 464 COURT OF ERRORS AND APPEALS. Downey v. Borden. The last words of the third section, " to be and remain as- herein directed so long as she remains my widow/' qualify the whole estate. Tiie digression after the bequests made, are parenthetic. Besides, the directions that the hay, straw and manure shall not be sold from off tlie farm, but be used for its benefit, and that the timber shall be preserved for the good of the estate, show that the testator meant not to devise away his farm longer than for his wife's life. And so does his devise of two- thirds among his heirs. 4. Testator did not mean to vest any part of his estate absolutely in his wife during her life. The fifth clause is said to pass this absolute estate. But it does not concern one-third of the whole estate, but only of what may remain at the time of the wife's death. No article was hers during her life. Nor was the farm hers to convey- or to have set off. She could cut no timber, nor sell any hay^ straw or manure off from it. Surely, this indicates that tes- tator meant to give her no greater estate than that before. How could an estate, in what should remain at her death^ vest during her life? Neither that one-third, or the other two-thirds were determinable till her death. Nor did one vest more than the other. The phraseology passes all three-thirds to her, one-third for her disposal, two-thirds for division among the heii's, accord- ing to her husband's will. No estate then passing by the will to her except the life estate, the case comes directly under the law cited in the opinion of the court below. The wife made no will, and therefore no " disposal " of the one-third. The life estate ceased at her death, and the heirs take. It is an express life estate. The two sections give the land^ whether she remains a widow or not. The testator meant this. Full force is given to this part of the will, by holding that it gave the wife the power of dis- posing of what was left at her death. The testator said^ " Let her dispose of the one-third ; I dispose of the two- NOVEMBER TERM, 1872. 465 Downey v. Borden. ^ thirds." His thought was, " I give her all for life. What at her death ? Why, I give her one-third to dispose of then, and I will away two-thirds, she being trustee of it, now, to take eiFect then." Certainly, the opposite construc- tion is not dear. And if not, the heirs should hold. Later authorities, both in England and this country, lean strongly towards giving force to the intent of the testator, however rudely expressed, in preference to adherence to ancient technical rules. For the defendant in error, A. O. McLean and F. Kingman, The opinioH of the court was delivered by Depue, J. The plaintiffs are the heirs-at-law of Lucy Akins, deceased. The defendants make title under the heirs- at-law of the testator, William Akins, deceased. It is too ob- vious to admit of debate, that Lucy Aikins, under the third clause in the will, would have taken only an estate for life in the whole of the lands whereof her husband died seized. The only real subject matter of controversy, relates to her estate in the one-third part thereof, by force of the fifth clause in the will, which is in the following words, viz. : " Fifth — I also give and bequeath to my beloved wife, Lucy Akins, one-third of all my estate that may remain at the time of her death for to dispose of as she may see proper, and the other two-thirds to be divided as I hereinafter order and direct." By the succeeding clause, " the balance of the two-thirds " of his estate was devised to the three sisters of the testator, and the heirs of a deceased brother. The contention of the defend- ant is, that upon the construction of the entire will, Lucy Akins took a life estate only in the lands of the testator, with a power of appointment over the one-third part thereof, and that not having exercised the power, that portion of the tes- tator's estate descended to the defendants as his heirs-at-law, .as lands whereof he died intestate. It will be observed that the estate for life which the widow 466 COURT OF ERRORS AND APPEALS. Downey v. Borden. became entitled to under the will, in all the lands of the tes- tator which he did not direct to be sold, is not created by ex- press words. It arises from an implication deduced from the fact that her interest therein, is given in general terms with- out defining or limiting any specific estate. It will also be observed, that the constructio^i contended for, will leave the testator intestate as to the one-third part thereof in question, after the termination of the widow's life estate. The Supreme Court, in the judgment under review, sus- tained the claim of an estate in fee in Lucy Akins in the one- third part of the premises, on the rule of construction, that a devise of an estate generally with a power to dispose of the same without qualification or limitation, imports such domin- ion over the property as that an estate in fee is created. The distinction is between a devise expressly for life with a power of disposition annexed, and a devise in general terms with such a power annexed. In the former case, an estate for life only passes, in the latter a fee. As a rule of construction, the principle is entirely settled, that where lands are devised in the first instance in language indeterminate as to the quantity of the estate from which an estate for life would result by impli- cation, and words adapted to the creation of a power of dis- posal without restriction as to the mode of execution are added, the construction will be, that an estate in fee is given; but where the quantity of the estate of the taker is expressly de- fined to be for life, the superadded words will be construed ta be the mere gift of a power of disposition. The leading English authorities sustaining this distinction, are cited by the Chief Justice in his opinion in the court below. The general rule is, that when a will devises to a man with a i)0wer to give a fee, he is construed to have a fee, subject to the qualification that he has not an express estate divided from the power. 2 Preston on Estates 82. " We may lay it down as an incontrovertible rule," says Chancellor Kent in Jachson v, Robbins, 16 Johns. 537, 538, " that where an estate is given to a person generally or indefinitely with a power of disposition, it carries a fee, and the only exception to the NOVEMBER TERM, 1872. 467 Downey v. Borden. rule is, where the testator gives an estate for life only by cer- tain and express words, and annexes to it a power of disposal,, in that particular and special case, the devisee for life will not take an estate in fee." The cases are collected and commented on in 1 Sugden 07i Powers 120, et seg. ; 8 Vin. Ahr. 234, tit^ Devises W a ; Q Bac. Abr., tit. Legacies and Devises (C); 2 Preston on Estates HI ; 1 Roper on Legacies 642, et seq. ; 4 Kent 319, 535; 2 Washburn on Real Prop. 373. This rule of construction has been repeatedly approved by the courts of this state. It was made the ground of decisioa by Chancellor Vroom in The Dutch Church v. Smock, Saxton 148, and by Chancellor Green in Annin v. Van Doren^s- Adm'rs, 1 McCarter 135; and was recognized by Chief Jus- tice Hornblower in Den v. Humphreys, 1 Harr. 28 ; by- Justices Nevius and Carpenter in Armstrong v. Kent, 1 Zah, 519, 522; and by Chief Justice Green in Den v. Young, 3- Zab. 481, as an established rule of -construction. In the- ©utch Church v. Smock, the bequest was to the wife, of " the sum of six hundred dollars, to be at her disposal during life;'^ and it was held that she took an absolute interest in the legacy, and not merely a life estate with a power of disposi- tion during life. In Annin v. Van Doren's Adm'rs, a testa- tor gave to his daughters the residue of the proceeds of his real estate, including all his rights and credits after payment of his debts, and directed that his executors should take charge of a certain farm belonging to his estate and lease it during the life of his son, and on his death, should sell the same, and the proceeds of such sale he directed to be divided among his daughters and the children of his sou, equally, ta them and their heirs. By a subsequent clause, he provided that in case either of his daughters died leaving no lawful issue, the share of such daughter, i^ not paid over by his executors, and if paid over, such part thereof as remained unexpended, should go to his surviving children and their heirs, equally. One of the daughters having received her share of the funds from the father's executors, died without issue, leaving a part of her share unexpended, in the hand 468 COURT OF ERRORS AND APPEALS. Downey v. Borden. of her agent. On a bill filed to determine the true construc- tion of the bequest to the daughters, it was held that the unlimited power of expenditure given to the daughters during life, was tantamount to a gift of so much as remained undis- posed of, and implied absolute ownership; and that, there- fore, the gift was absolute in the first taker, and the limita- tion over was void. The opinion of Mr. Justice Randolph, in this court, in Kent V. Armstrong, 2 Halst. Ch. E. 637, has iiot been over- looked. The devise there was to E. R., " to be by her pos- sessed, enjoyed, and occupied, to her, her heirs and assigns^ forever," with a proviso tliat if she "should die without heirs, and intestate, then over." The learned judge throws out an intimation that superadded words, conferring a power of disposition, will be construed to give a mere power, not only where the estate for life is given by express words, but also where t\ve life estate arises by necessary implication or from a construction of the will. None of the cases cited support that position ; on the contrary, they, with entire unanimity, recognize- and sustain the distinction between the gift of an estate for life by express words, and a gift in gen- eral terms, omitting the words of inheritance, by which an estate for life is created by implication or construction. It did not, probably, occur to the learned judge, at the moment, tliat his modification of the rule of construction, the existence of which he admits, would, in a great measure, if not en- tirely, subvert the rule as applied to devises of lands. Be that as it may, the judgment of this court, in the case referred to, was not based on that ground, but upon the other ground that the word "intestate" did not import an unqualified power of disposition, but was restrictive in the sense that the disposition contemplated by the testator could only be made by a testamentary disposition, and that, therefore, the gift was of a mere power. It was contended on the argument, that the words, " that may remain at the time of her death, to dispose of as she may see proper," import a power of disposition over the NOVEMBER TERM, 1872. 469 Downey v. Borden. lands by will only, which would bring this case within the de- cision of the court in Armstrong v. Kent. I do not so con- strue this language. The gift to the widow, in the third clause of the will, included personal property which would be worn out or expended in the use, as well as real estate. The words, " that may remain at her death," naturally refer to such per- sonal estate, and, as we liave seen, imply such a power of dis- position over it as to give the absolute property in personalty. The Dutch Church v. Smock, Annin v. Van Doren's Adrn'rs, cited above. In this connection, the counsel referred to that part of the will which forbids the removal of hay or straw from the farm, and expresses the wish that the timber should be preserved for the benefit of the estate, as indicating the testator's intention that the farm should be kept entire during the widow's life. Hence, it was argued that her power of disposition over the one-third was limited to a disposition by will. Conceding that these special provisions manifest an intent on the part of the testator, that the widow should occupy and improve the entire farm during her lifetime, they cannot be permitted to qualify or abridge the generality of the language in which the right of disposition is expressed, especially when that construction will leave the testator intestate as to this part of his property after the death of the widow, whereas it is apparent, from the wholb will, that a complete testamentary disposition of all his property was intended. If any doubt were entertained of the correctness of the con- struction adopted by the Supreme Court, it would be removed by the statute, which, in substance, prescribes, as a rule of construction, that every devise of lands, in general terms, when no further devise thereof is made after the death of the devisee, shall be taken to be a devise in fee simple, unless the will con- tains some expression, from which it shall appear that such devise was intended to give only an estate for life. Nix. Dig. 1035, § 39.* There is no devise over of the ultimate fee in the one-third, after the termination of the life estate of the * Bev., p. lOSd, 2 13. 470 COURT OF ERRO^ AND APPEALS. Downey v. Borden. widow in the entire estate, although the other two-thirds are ex[)ressly limited over to other persons after her death. Under ti)ese circumstances, a devise in fee of the one-third would be created, by the preceding words of gift, by force of the statute referred to. Den v. Snitcher, 2 Green 54. This effect must must be given to the preceding words of devise, unless the generality of the gift is qualified by other expressions in the will, from which it shall app«ar, afiSrmatively, that the inten- tion was to give an estate for life only. No such intention can be gathered from the face of this will. On the contrary, the language used by the testator in making this devise, is such as, by established rules, is taken to create a fee. The judgment of the Supreme Court should be affirmed. Judgment of the Supreme Court unanimously affirmed. CASES AT LAW DETERMINED IN THE COURT OF ERRORS AND APPEALS STATE OF NEW JERSEIV, AT MARCH TERM, 1873. STATE, MOREIS CANAL AND BANKING COMPANY, PROSE- CUTORS, PLAINTIFFS IN ERROR, v. JOHN B. HAIGHT, COLLECTOR OF JERSEY CITY, 1. It does not follow that if the state should lease a portion of the public domain, the lands so leased would be exempt from taxation. 2. Whether lands of the state conveyed by statute for a term of years, or for any other term, are taxable or not, depends not on the qualities of the estate so granted, but on the legislative intention expressed in such act. 3. The conveyance made by the state in this case construed. In error to the Supreme Court. For former proceedings in this case, see 6 Vroom 178. The State of New Jersey, by statute, approved March 14th, 1867, granted to the Morris Canal and Banking Company, all the right, title and interest of the state in and to certain lands under water, defined by boundaries. 471 472 COURT OF ERRORS AND APPEALS. State, Morris Canal and Banking Co., Pros., v. Haight, Collector. The second proviso iu the first section is as follows : And provided further, that the said company shall, within ninety ove cited show that the only way a wife can acquire any property in her earnings is "63/ a distinct gift" from her husband. The present case shows that no such gift was ever made; the testimo-ny of the wife, on cross-examination, being that she kept the fact of the existence of her earnings a secret from her husband. It is obvious he could not give away that of which he did not know. The only testimony which could be distorted into making any of their transactions wear the similitude of a gift, is where the wife testifies, " my husband told me I would have to take my naoney to save the house." But this was not a gift to the wife of her earnings. It was a request that she should take them, and use them for his benefit, by covering up property from his creditors, the legal title of which was in him. If this transaction could be supported, then a husband who has lands worth $10,000, on which there is a mortgage of $1000, can protect them from creditors to whom he is indebted many times their value, by requesting his wife to take her earnings and procure an as- signment of the mortgage to her. And even if the earnings of the wife had become her prop- erty by gift, she could not mix them with property of her husband, and hold it as against his creditors. Quidort's Adm'rs v. Pergeaux, 3 C. E. Green 472. And further, as seen above, he could not, when in debt, give her earnings to her if he would. Cramer v. Reford, 2 a E. Green 367. The wife could not keep the mortgage alive, and defeat her husband's creditors, by taking his funds, to wit, her earnings, and procuring an assignment of it to her. Such a transaction would simply be a payment, and the mortgage would become extinguished; the ruling of the judge to this effect falls en- tirely within the case of Shepherd's Ex'x v. MeClain, 3 C. E. Green 128. 484 COURT OF ERRORS AND APPEALS. Peterson and Wife v. Mulford. The only case cited by the defendant's counsel, at the trial, seeming to conflict with those stated above, is Stall v. Fulton, 1 Vroovi 430. Nothing was said in that cause necessary to its decision, which affects the one now under discussion. The creditors of the husband, in that case, attempted to maintain ejectment for lands, the legal title of which was in the wife, and never had been in the husband. The court say expressly, that this single aspect of the cause was sufficient for its decision. And although the court looked farther, and considered the question as to whether the husband or wife owns her earnings, what- ever was said upon this unnecessary matter was dictum, and not decision. But even the dicta in that case do not protect the defend- ants below. The court there say " the earnings of the wife belong to her, and not to her husband, until he does some act with intent to reduce them into possession." In this case, the husband did such an act by directing the wife "to take her money to save the house" — his house. This was an act of appropriation on his part. It is, however, submitted, that as what is said in Stall v. Fulton upon the subject of earnings, conflicts with the gen- eral line of New Jersey decisions above cited, it must, eveu if pertinent, yield to the weight of authority. That what is there said is not considered law, may be assumed from the fact, that in the proposed revision of the married woman's act, under the care of two of the justices of this court, the fol- lowing clause occurs : " 4. And be it enacted, That the wages and earnings of any married woman acquired by her after the passing of this ad, and all investments of such wages and earnings, shall be her sole and separate property, as though she were a single woman." No such provision is found in the law as it now exists, and the fact that its enactment is suggested, shows, that in tiie judgment of the revisers, such enactment is necessary in MARCH TERM, 1873. 485 Petersou and Wife v. Mulford. •order to bring about that condition of the law which it pro- poses. The opinion of the court was delivered by The Chancellor. The bill of exceptions in this case, returned with the writ of error, shows that on the trial of the ejectment at the Cumberland Circuit, there was evidence that Peterson, the husband, was seized of tlie premises in dispute, and with his wife mortgaged them to one Batemao, in 1857, to secure $273. That Peterson being engaged in oystering in Chesapeake bay, Mrs. Peterson remained at home on the premises and took care of, and to a great extent supported the family. She earned money by her own labor, in picking ■berries, in washing, taking two children to board, and by sell- ing milk, butter, eggs, &c. In 1866 Bateman wrote to her requiring payment of the mortgage. She told her husband that she had saved $200 out of her earnings, which she kept in a secret place, and of which he, until then, had no knowl- edge ; he told her she would have to take her money to save the house. He weut with her to Bateman's, where she paid the money to Bateman and took an assignment of the mort- gage in her own name, giving him her note for the $73, which she afterwards paid out of her own earnings. Peterson owed Mulford at that time, a debt for which he recovered a judg- ment of $190, under which the premises were sold by the sheriff to Mulford. He owed another debt to Mulford of about the same amount. The only question in the cause was, whether the mortgage was a valid subsisting claim in the hands of Mrs. Peterson? Tlie judge charged the jury that the right of a husband during coverture to the service of his wife, and to the proceeds of her skill and industry is absolute, and that if the jury be- lieved that the assignment was purchased with the proceeds of the wife's labor while her husband was involved in the debt which had been proved, wi'th intent to defraud the plaintiff thereof, the payment of Mrs. Bateman of tlie sum which was the consideration of the assignment to her, operated as a satis- 486 COURT OF ERRORS AND APPEALS. Peterson and Wife v. Mulford. faction of the mortgage, and no title to the mortgage passed to her by the assignment. Under such circumstances, the transfer and assignment would be void as against the hus- band's creditors. And even if the husband could, as against his creditors, have made a gift of the avails of her services to his wife, there was no sufficient evidence that he made such gift. This charge was excepted to, and the only question here is, whether it was correct. The first question raised is as to the absolute right of the husband to the proceeds of his wife's labor, and his power to allow his wife to retain them, or to give them to her as against his creditors. There can be no question but that a husband is entitled to the services of his wife if he claims them, and also to the proceeds of her labor, unless he permits her to labor for her own account, or after she has earned or received the proceeds, gives them to her, or allows her to appropriate them to her own use. This is clear by the common law, and is recognized in all the cases in this state where the question is considered. But the doubt is raised upon the question whether, if a husband permits his wife to labor for her owa benefit, or permits her to keep her earnings when received and appropriate them ta her own use, or invest them in her own name, this gives her a title which is good against the husband or his creditors. At common law, money due the wife for her services, is a chose in action, which the husband can reduce into possession. If due for service rendered without express agreement, it can only be recovered by the husband, and the wife cannot be joined in the suit. But if due on an agreement or contract with her, it is a chose in action in her, and which, like all other choses in action, whether by deed or parol arising during coverture, can be reduced into possession by him, but if not reduced at his death will survive to her, and at her death go to him as her administrator. On this, as on a note or bond given to her for money received by her by bequest, he could sue in their joint names or in his own name. Clancy MARCH TERM, 1873. 487 Peterson and Wife v. Mulford. on Rights of Married Women 4, 5, 6 ; Brashford v. Bucking- ham, Cro. Jac. 11) Pratt d ux. v. Taylor, Cro. Eliz. 61 ^ Philliskirk v. Pluchwell, 2 Maule & Selwyn 393 ; 2 Kent's Cora. 119 ; Garforih v. Bradley, 8 Fes. 670 ; Richards v. Richards, 2 5. & Ad. 447; ^?tcZ;% v. Collier, 1 ;Sa/^. 114 ill of interpleader to determine which of several claimants was entitled to a reward offered for the recovery of j)roperty •which had been stolen, Vice-Cliancellor McCoun adopted 4is the criterion for determining who was entitled to the re- ward, the inquiry, " who is the person that has acquired a iknowledge of tiie facts necessary to the detection or discovery of the things stolen or lost, and has imparted such knowledge ■with the intent and for the purpose of bringing about a re- -covery or restoration of the property, taking upon himself the risk and consequences of a failure, and acting with a view to the reward, if his suspicions and disclosures are well founded and successful." Upon this criterion the Vice- Ohancellor rejected the claim of a servant who first commu- nicated to her mistress circumstances of suspicion which she had observed, upon which the mistress acted, and which led to the recovery of the property. The reasons assigned for such rejection were, that the conduct of the servant showed that she was not acting with a view to the reward, but was indifferent to any result that might follow from the informa- tion she gave, and was not influenced by any hope or expecta- tion of the reward, in case her suspicions were well founded. Jn short, the rule laid down and enforced by the Vice-Chan- MARCH TERM, 18:3. 495 Mayor, &c., of Hoboken v. Bailey. «ellor was, that in order to entitle a person to a reward, the acts done by way of performance must be done with a view to the acceptance and performance of the contract tendered by the offer, in the expectation of earning the reward if the effort is crowned with success. The right of action in such cases being founded in contract, for which no precedent consideration was paid, and in which no promisee is named, it would follow as a necessary result, that in order to complete the contract and give it mutuality, an assent in some way to the terms of the offer must be given. Fitch V. Snedaker, 38 N. Y. 248; Rowland v. Lounds, 51 N. Y. 605. It is also equally clear that where the service in itself is not beneficial to the promisor, it can be made avail- able as the consideration of a contract, only where the person performing it was induced to do so by a request, express or implied, on the part of the promisor. A previous request will be implied where the plaintiff voluntarily or by compul- sion, does that whereunto the defendant was legally compell- able, or the defendant has adopted and enjoyed a benefit from the consideration. But in other cases the service will be purely gratuitous, for which no action lies, unless it was done upon an express request. The law was so declared in the leading case of Lavipleigh v. Braithwait, Hobart 105. That was an action to recover a reward for procuring the King's pardon. The defence was the absence of sufficient considera- tion. It was agreed that a mere voluntary courtesy will not have a consideration to uphold an assumpsit; " but," said the court, " if that courtesy were moved by a suit or request of the party that gives the assumpsit, it will bind ; for the promise, though it follows, yet it is not naked, but couples itself with the suit before and the merits of the party procured by that suit, which is the difference." And it appearing that the defendant had requested the plaintiff's endeavor, and that he had made his endeavor according to the request, the plaintiff had judgment. To the same effect in Hunt v. Bate. The servaut of A was arrested ; B bails him, and afterwards A promises for this friendship to save him harmless. This is 496 COURT OF ERRORS AND APPEALS. Mayor, &c., of Hoboken v. Bailey. no good consideration for the promise ; secun had A requested^ and the bailing been after the promise. Dyei' 272 a. Other eases illustrative of the necessity of a previous request, and of the instances in which the request will be implied, and when it must be express, so as to have induced tiie performance in order to furnish a legal consideration, will be found in the English and American notes to Lavipleigh v. Braithivait, 1 Smith's Lead. CaB. 222, [67*.] I will refer only to one case decided by the Supreme Court of Massachusetts, which is quite apposite to the case now in hand. The action had been brought on a promise in w'riting to pay the masters, clerks, messengers, and assignees fees in certain proceedings in in- solvency, if not otherwise paid. No promisee was named in it. The plaintiff became the assignee, and performed the duties of the office, and having received no compensation for the want of any estate of the insolvent, sued upon the agreement. The agreement was signed and delivered to a third person before the appointment of the plaintiff as assignee, and the plaintiff had performed the stipulated service; but it appear- ing that the plaintiff had not seen or heard of the paper until after he had accepted the office and performed all its duties, it was held that he could not recover. The court held that i-f the paper had been shown to the plaintiff, and he had accepted it, and had become assignee, and performed the services upon the faith of the defendant's promise, there might have been a contract ; but it not appearing that he accepted th-e paper or performed any service upon the strength of it or in reliance upoii it, he did nothing to create a good consideration, and xnake a contract upou the terms of the agreement, and that he could not recover, although the condition of the promissor had been literally performed. Ball v. Newton^ 7 Cash. 599. I am unable to exclude this case from the operation of the principles above stated with respect to the necessity of an acceptance in order to form a contract, and also of a request antecedent to the enlistment, to give a consideration. To effect either of these ends, knowledge of the promised bounty ,^ at the time of the enlistment is essential. There cannot be MARCH TERM, 1873. 497 Mayor, &c., of Hoboken, v. Bailey. any assent or agreement to an offer of which the party has no knowledge. Fitch v. Snedaker, 38 N. Y. 248 ; Howland v. Lounds, 51 N. Y. 605. The proposal of a reward which was not within the knowledge of the person who happens, or from other considerations is induced to perform the act which is designated as the condition on which the reward is payable, cannot by any rule of law or process of reasoning, be construed to be a precedent request, or to have operated as an induce- ment to do an act which is done in entire ignorance of the offer. The case usually cited for the position that performance of the condition on which a reward is promised will entitle a party to recover, though he acted without knowledge of the offer, is Williams v. Carwardine, A B. & Ad. 621. The jury found that plaintiff made the disclosure not for the sake of the reward, but from a motive of revenge. The court held that she was entitled to recover, and that the motive which influenced her to give the information was immaterial. As the case in banc is reported, it does not appear that the plain- tiff acted without knowledge of the offer of a reward. In the report of the trial at nisi prius, it is manifest from the circum- stances in evidence, and the argument of counsel, that the plaintiff's knowledge of the handbill offering the reward was not disputed. 5 C. & P. 566. If the correct theory of the action be the enforcement of a contract arising from an offer, and assent thereto, as shown by the fact that the stipulated service is performed with the knowledge that a reward was promised for doing it, as I think it is, the contract having been legally concluded, in giving effect to such contract, if it was performed, the motive which induced the party to make the contract or perform it must always be immaterial. The point under discussion is not without adjudication in the courts of sister states, whose decisions, if not authority, are entitled to great respect. The Supreme Court of Pennsylvania has decided that the obligation to pay bounties being founded upon a contract relation, no one could compel payment of a bounty offered, 498 COURT OF ERRORS AND APPEALS. Mayor, &c., of Hoboken, v. Bailey. unless he volunteered upon the faith of an offer of bounties by the public authorities. Morgan v, Chester County, 56 Penn. 466 ; Brecknock Sch. D. v. Frankhouser, 58 Penn. 380. Else- where it has been decided that there was no ground for such an action except that of contract, and that the liability of the town or city rests upon the ground that the corporation having offered a bounty, and the party having accepted tlie offer and volunteered on the faith of it, there was a contract between them. Frey v. Fond du Lac, 24 Wis. 204 ; State v. Brawny 20 Wis. 287 ; Larimer v. McLean Co., 47 111. 36. The principles announced in these cases, in my judgment, are sound, and they are fully recognized in that class of cases in which a reward is held not to be recoverable on the basis of services rendered before the reward was offered. If in such cases the promise is not enforceable because the consideration was exeouted without being induced by the promise, it must be equally nugatory as in favor of a person who performed the service in ignoraHce of the promise, although precedent. A person performs what at the time was required by him as a voluntary courtesy, why should he be denied a recovery on a promise made after the service was performed, and have it awarded to him, if the promise was antecedent in point of time, but was unknown to him, and did not prompt, or in the least influence him to do the act relied on ? In neither case is the act the performance of a contract. With respect to the proof there is generally but little diffi- culty. Where the action is for a reward for the apprehension of a criminal, or the restoration of lost property, it rarely happens but that something is done in performance of the condition, after the party has knowledge of the offer. So, also, in case of the claim for a bounty for an enlistment to the credit of a particular locality where no other bounty is offered, the notoriety of the offer, and the fact that no other supposable reason can be assigned for the credit, will afford a presumption of knowledge of the offer, and of the intention of the volunteer to entitle himself to the bounty by complying with the condition of the offer which the testimony of the volunteer may make conclusive. MARCH TERM, 1873. 499 State, Wilkinson et al., v. Inhabitants of Trenton. No practical injustice can result from enforcing remedies in such cases on the basis of ordinary contracts. It is not necessary that tiie volunteer should have received notice of the terms proposed, or should have given notice of acceptance. It is enough that he had knowledge at his enlistment and credit of the offer, and acted with reference to it, and fulfilled the requirements of the offer. Larimer v. McLean Co., 47 III. 36. In every case it is a question of fact whether the contract was concluded by an acceptance, and is supported by an ade- quate consideration. It was peculiarly so in the case now before the court. The facts proved did not clearly establish either of these propositions, but, on the contrary, the circum- stances strongly indicated that the plaintiff volunteered in ignorance of the bounty now sued for ; and was induced to do so solely by the bounty offered by the county. The charge that the plaintiff was, as a matter of law, entitled to a verdict, was erroneous, and the judgment should be reversed. For reversal — The Chancellor, Chief Justice, Depue ScuDDER, Van Syckel, Clement, Dodd, Green, La- THROP, Wales. 10. For affirmance — Dalrimple. 1. Cited in Union Locomotive and Express Co. v. Erie Railway Co., 8 Vr. 23. STATE, FREDERICK R. WILKINSON ET AL., PLAINTIFFS IN ERROR, V. THE INHABITANTS OF THE CITY OF TREN- TON, DEFENDANTS IN ERROR. 1. Where public bodies are entrusted, by statute, with powers of a gen- eral nature, it must appear from an inspection of all their proceed- ings, when properly before the court, that they have kept strictly within their limited sphere. 2. It is the duty of the relator to bring up all the proceedings, but a return that all proceedings are sent up, imposes on the defendant the burden of supplying any omission. 3. A construction will be adopted to sustain rather than to defeat the proceedings, where it can fairly be done. 600 COURT OF ERRORS AND APPEALS. State, Wilkinson et al., v. Inhabitants of Trenton. Parties to he affected by such proceedings entitled to notice, whethei the statute directs notice to be given or not. To set aside an assessment for inequality, it ninst be sliown that com- missioners have adopted an erroneous i)rinciple. If, up to the point of imposing the assessment for benefits, all the pro- ceedings, have been strictly correct, a party cannot complain that a larger assessment has not been laid upon him. If the land owner permits large sums of money to be expended by the city after the assessment is made, before he applies for a certiorari, the writ should not be allowed where no re-assessment is provided for ; and if allowed, it should be dismissed by the Supreme Court when the facts become known. In error to the Supreme Court. For former proceedings in this case, see 6 Vroom 485. For the plaintiffs in error, F. Kingman and I. W. Scudder. For the defendants in error, J. S. Aitkin and James Wilson. The opinion of the court was delivered by Van Syckel, J. The proceedings of the common coun- cil of the city of Trenton, in laying out a street between War- ren and Quarry streets, and the assessments therefor, were removed by certiorari into the Supreme Court, where the as- sessments were afiSrmed. That judgment of affirmance is brought up on this writ of error. The prosecutors of the certiorari were assessed for benefits, resulting to their lands by the opening of the street. The reasons assigned for reversal of the judgment below will be considered, so far as they are deemed material, in the order in which they were discussed. 1. The first objection taken to the validity of the proceed- ings is, that the common council did not treat with the owners, for the land taken for opening the street, as required by sec- tion 76 of the city charter. It is an inflexible rule, founded in the highest considerations of public policy, and absolutely essential to the protection of individual rights, that when power to take private property for public use is delegated by the legislature to municipal or other corporations, that power must be strictly pursued. MARCH TERM, 1873. 501 State, Wilkinson et al.,'v. Inhabitants of Trenton. This principle has been repeatedly recognized and asserted in our courts. State v. Jersey City, 1 Butcher 309 ; State v. Jersey City, 2 16. 444; State v. Hudson City, 3 76. 214; State V. Jersey City, 4 Zab. 662 ; Carron v. Martin, 2 Dutcher 594; State V. Orange, 3 Vi^oom 49; A^to^e v. Bergen, 3 76. 491. It is equally well settled, that persons who exercise a special power, whose acts are authenticated only by the cer- tificate signed in each particular case, must show on the face of their certificate, that they have strictly pursued the au- thority vested in them. The rule, when applied to public bodies entrusted by statute with powers of a general nature, where their acts are verified by an entry in their minutes, kept by the proper offi- cer, is equally stringent, that it must appear from an inspec- tion of all the proceedings when properly before the court, that they have kept strictly within their limited sphere. State V. Freeholders of Hudson, 3 Zab. 206 ; S. C. in error 4 76. 719. In the latter case, it is the duty of the relator to bring up all the proceedings which he seeks to review. If he relies upon the failure to do anything which should appear by the written proceedings to have been done, and the defendants in their return to a writ, commanding them to certify and send •up "all and singular their resolutions, records and proceed- ings, touching the matter in question," say, that they have made such full return, as required by the exigency of the writ the presumption, as against them, will be, that their return is full, and the burden will lie on the defendants to supply, by further return or evidence, the omission. But if the prose- cutor rests bis case upon any matter aliunde the written pro- ceedings, he must verify the facts by testimony, to be taken under a rule granted for that purpose. State v. Newark, 1 Butcher 399. This rule will be illustrated in the further consideration of this case. Section 76 of the city charter provides, that whenever the •common council shall determine by ordinance to lay out any street, they are authorized to treat with the owners of any 502 COURT OF ERRORS AND APPEALS. State, AVilkinson et al., v. Inhabitants of Trenton. lands necessary for that purpose, and purchase the lands for such price as they may deem reasonable, and the following section provides tliat when the said common council cannot agree with the owner or owners of such required lands, or other real estate for the same, or when, by reason of the legal incapacity or absence of such owner or owners, no such agree- ment can be made, it shall be lawful for the mayor of said city, and he is required, upon application in writing of the common council, to appoint commissioners to estimate and assess the damages the owners will sustain by taking his lands. There are four classes of land owuers included in these provisions. Those with whom an agreement can be made, those with whom an agreement cannot be made, those who are absent, and those who have no capacity to contract. It is clear that the right to appoint commissioners for all cases does not arise, where the council cannot agree with a single landholder, either by reason of his absence, incapacity, or unwillingness to negotiate, before any attempt is made to treat with those who are under no disability, because the section last referred to, by requiring that the commissioners shall assess upon the lands benefited their estimate of damages, together with the sums agreed upon between the council and any land owner, contemplates an assessment by commissioners as to some and an agreement by council with others. If by reason of the incapacity of a single owner they may appoint commissioners to assess for all, then when such incapacity exists they not only may, but must appoint commissioners for all, and cannot agree with any, for the act is imperative and does not leave it to the discretion of the council whether they will treat or not. This would be an unreasonable and narrow construction of the charter. Its fair interpretation is, that with such owners as are com- petent to treat an effort must be made to agree, and then a commission appointed for all cases where an agreement is not made. It must therefore appear as a jurisdictional fact to author MARCH TERM, 1873. 503 State, Wilkinson et al., v. Inhabitants of Trenton. ize the appointment by the mayor, that council did treat with the land owners. It will be observed that no mode is pre- scribed in which that treaty shall be conducted, and in this case it will be sufficient, if it appears upon the face of the proceedings that they treated and failed to agree. If the statute had directed that the treaty must be had through a committee of three impartial citizens, then it must further appear that the designated mode has been pursued. The validity of the appointment before us must be tested by this rule. On the 3d day of August, 1869, the street committee, com- posed of three members of the common council, reported aa follows : "To the common council — The street committee, who were authorized by council to treat with the owners of the land and real estate required for the laying out and opening a street, commencing on the easterly side of Willow street op- posite to the present easterly terminus of Quarry street, and running thence to the westerly side of Warren street, for the same, report, that they cannot agree with the owners thereof^ by reason of the legal incapacity of some of said owners of the same, for the purpose aforesaid. " Lewis H. Yanhokn, "Wm. M. Lenox, " Chas. B. Cogill, "Street Committee." And thereupon follows the resolution of the council re- quiring the mayor to appoint commissioners, in which it is recited that the street committee have been unable to agree with the land owners. The report of the street committee states that they could not agree with the land owners by reason of the legal inca- pacity of some of them. A construction will be adopted to sustain rather than to defeat the proceedings, and this may fairly be held to mean^ 604 COURT OF ERRORS AND APPEALS. State, "Wilkinson et al., v. Inhabitants of Trenton. that none of the land owners could agree upon terms, because some were under legal disability, and inasmuch as commission- ers must be appointed in some cases, they preferred to have their own rights determined in that way. It thus appears affirmatively on the face of the proceedings that no agreement could be made with the land owners. If, in fact, there was no attempt to negotiate, and that had been established by the examination of tiie committee, or by other evidence in the cause, this objection, if taken at a proper time, would have been fatal. Until evidence is submitted to the contrary, the presumption will be, that what the corporate body has said, in the substantial language of the charter, has been done, has been lawfully done. 2. It is insisted that the notice of the meeting of the com- missioners to make the assessment was insufficient, and that no opportunity was given the plaintiffs of being heard. It is a fundamental 23rinciple that no person is to be affected by proceedings of a judicial nature, without an opportunity to be heard. Whether the charter in this case makes notice necessary or not, natural justice and well settled legal jirinci- ple concur in requiring that notice must be given. State v. Newark, 1 Butcher -111 ; S. C, 4 Zab. 666. The seventy-seventh section of the charter directs the com- missioners to estimate and assess the damages the owneBs of the land taken will sustain by laying out the street; and in estimating the damages, the commissioners must have due regard as well to the value of the land taken as to the injury or licncfit of the land owner by such laying out, and after estimating such damages, the commissioners shall assess the amount thereof upon such lots as will, in tiieir opinion, be benefited by the improvement; both of which assessments shall be embraced in the report directed to be made by section seventy-eight. The notice given by the mayor, it is urged, applies only to the assessment of damages, and not to the assessment of benefits; but that is not so. The notice is, that the commis- sioners appointed to make an estimate and assessment of damages to land owners, and to assess the benefits of the work MARCH TERM, 1873. 505^ State, Wilkinson et al., v. Inhabitants of Trenton. upon lots benefited, will meet at a time and place specified,, to take the oath of office, and that on the 1st day of Septem- ber then next, they would meet at the city surveyor's office^ and after viewing the land, make a just and true estimate and assessment, as required by law. This was sufficient notice that the commissioners would make the entire estimate and assessment, which, by law, they were required to make, as well the estimate of damages as the assessment of benefits. The objection that there was not a more specific notice ta the parties subsequently assessed for benefits, cannot prevail,, because it was impossible to specify who would be assessed, until the commissioners met and determined that question, after hearing all who might choose to come before them. It was impossible, from the nature of the case, to give other than a general notice, so that the commissioners would h& free to lay the imposition according to their judgment. 3. The complaint that the assessment is grossly unequal, unfair and unjust, cannot avail the plaintiffs here, unless they show that the commissioners proceeded upon an erroneous principle. Coster v. New Jersey R. R., 4 Zab. 730. There is an apparent inequality in the assessment of lots lying contiguous to each other, but whether it is real, this court cannot say. No evidence has been taken to show the principle adopted by the commissioners, and we must there- fore presume that they acted rightly. 4. The last alleged error which I will consider is, that it does not appear upon the face of the report, that the whole costs of the improvement were assessed by the commissioners. The owner of the lands benefited stands upon his legal rights, and says to the city, " you cannot touch my property or impose a burden upon me, unless you comply with the strictest requirements of your charter. It makes no differ- ence whether the omitted act injures me or not, your power to act depends upon your doing it, and until it is done you cannot tax me." The law wisely throws this protection around individual rights, and the rule cannot safely be re- laxed. But when all the requirements of the law have been 506 COURT OF ERRORS AND APPEALS. State, Wilkinson et al., v. Inhabitants of Trenton. complied with, wheu the authority of the city to impose the burden thereby becomes perfect and complete, and they have the right to lay an assessment of $500 on the plaintiff, it is not within the reason of the rule that he should be allowed to complain and set aside the proceedings, because he is re- quired to pay only $400. Neither in the points herein considered, nor in others dis- cussed by counsel, all of which are well answered by the opinion of the court below, do I find any such infirmity as will vitiate the jjroceedings. But if irregularities did exist, the certiorari should have been dismissed for gross laches on the part of the prosecutors in suing it out. They have permitted the street to be opened, and over $25,000 to be expended upon it after the assess- ment was made against them, and after being thus assured of the benefit which their property will derive from the improve- ment, they seek to escape their proportion of the cost of it. Under such circumstances, where, as in this case, no re-as- sessment is provided for, a certiorari should not be allowed, and if allowed, it should, when, the facts become known, be dismissed by the Supreme Court. Such is the established rule of that court, and it should not be disturbed. State v. Hudson City, 5 Dutcher 116; State v. Everett, 3 Zab. 378; State V. Water Commissioners, 1 Vroom 249 ; State, Hampson, V. Paterson, ante p. 159. In my opinion, the judgment of the Supreme Court should be affirmed, with costs. For affirmance — The Chancellor, Chief Justice, De- PUE, Van Syckel, Clement, Dodd, Green, Wales. 8. For reversal — None. Cited in State, Graham, pros., v. Paterson, 8 Vr. 380 ; Stale, Grant, pros., V. Clark, 9 Vr. 102; State, Cronin, pros., v. Jersey City, 9 Vr. 410; State, ■Spear, pros., v. Perth Amboy, 9 Vr. 425 ; State, M. & E. R. R. Co., pros., v. Hudson Tunnel Co., 9 Vr. 548 ; State, Woodruff, pros., v. Elizabeth, 10 Vr. 55 ; Paret v. Bayonne, 10 Vr. 559 ; State, Freeholders, &c., pros., v. Road Commissioners, 12 Vr. 83 ; Slate, Boice, pros., v. Plainfield, 12 Vr. 138 ; Woodbridge v. State, 14 Vr. 262; Bomne v. Logan, 14 Vr. 421; Rinehart v Cowell, 15 Vr. 360. MARCH TERM, 1873. 507 Haney and Scattergood v. Compton. BENJAMIN HANEY AND CHAELES SCATTERGOOD, PLAIN- TIFFS IN ERROR, v. GILBERT COMPTON, DEFENDANT IN ERROR. 1. The seventh section of the act, "for the preservation of clams and oysters," {Nix. Big. 131,)* which prohibits the raking or gathering of oysters in any of the waters of this state by any person, vrho is not at the time and has not been for six months then next preceding, an actual inhabitant and resident of this state, makes no distinction be- tween natural and planted oysters. 2. A statute which simply prohibits non-residents on board a vessel from subverting the soil of the state and carrying away her property and that of lier grantees, leaving such vessel free to pass and repass, and go whithersoever those in charge of her desire, is not a regulation of com- merce with foreign nations or among the states. 3. Such a statute is for the protection of property, and is a*, most an in- ternal police regulation entirely within the competency of the state to adopt. 4. A statute of this state prohibiting citizens of another state from coming upon the lands under water belonging to the state, and subverting the soil and interfering with the property there found, is not a violation of that clause of the constitution of the United States wiiicli ordains that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. 5. When the proceeding is in rem against property in a foreign jurisdic- tion, found in the possession of the owner or his agent, and in use for an unlawful purpose wliich carries a forfeiture of the same, tlie seizure thereof without judicial process first issued, preparatory to regular trial and condemnation, is not a deprivation of property withoat due process of law. In error to the Cumberland Circuit. The suit below was in replevin. The plaintiffs, in their declaration, charge the defendant with taking their schooner, the Rhoda L. Loper, in the waters of Maurice River Cove, in the township of Maurice River, in the county of Cumberland, in this state, with her sails, anchors and appurtenances. * Eev., p. 134. 5U8 COURT OF ERRORS AXD APPEALS. Ilaney and Scattergood v. Compton. To this declaration the defendant filed avowries, in which he admits the taking, and justifies it under the seventh sectioa- of the act respecting clams and oysters, {Nix. Dig. 130,) by averring that, on the day of the taking, one John Barret, who was not then, and had not been for six months next preced- ing, an actual inhabitant and resident of this state, was on board of said schooner, and in the use and employment of her ibr that purpose, raking and gathering oysters, in the said place in which, &c., on his own account and benefit, and on the account and benefit of his employers ; and that the defend- ant, for this reason, seized said schooner, and gave immediate information to two justices of the peace, &c., as required by the act, and for such cause had the schooner in his possession at the time of the replevying of her by the plaintiffs, and there- fore prayed her return. To these avowries of the defendant, the plaintiffs filed two pleas in bar, in which they do not traverse any fact alleged in the avowries, but aver that the said oysters which the said John Barret was raking and gathering were oysters which had been planted where there was no natural growth of oyster?:, by one John Haley, and by him sold to one Charles Ogden, by whom they had been sold to the plaintiffs, at whose request the said John Barret was gathering them ; and that the schooner, when seized, had a coasting license from the government of the United States. To these pleas of the plaintiffs, the defendant filed a de- murrer, and after argument, judgment was given for the defendant. Tlie following reasons were assigned for the judgment by Van Syckel, Judge. " This suit is brought to recover possession of the schooner Rhoda L. Loper, seized by the defendant for an alleged violation of the seventh section of the oyster law, in Maurice River Cove, in the county of Cumberland, on the 7th day of June, 1869. " The defendant avows the taking, because he says that one John Barret was on board of said schooner, and in the use MARCH TERM, 1873. 509 Haney and Scattergood v. Compton. and employment of her for that purpose, raking and gather- ing oysters on his own account and benefit, and on the account and benefit of his employer; and that the said John Barret was not, on said day, and had not been for six months next preceding said day, an actual inhabitant and resident of the State of New Jersey. The plaintiffs pleaded to this avowry^ admitting the facts stated, and setting up, in avoidance, that at the time of such taking, the said vessel was engaged in raking oysters planted by a citizen of New Jersey, who, before that time, had sold them to the plaintiffs, and that such oysters were planted where there was no natural growth of oysters. " Upon demurrer interposed by the defendant to this plea, two questions were started : " First. Whether the seventh section of the oyster law in- terdicts the taking of planted oysters. " Second. If so, whether the section is constitutional. " Further consideration has confirmed my views expressed in a former opinion, upon the first point, which will now be repeated. The oyster act, as originally passed March 27th,, 1719 {Nevill 86j, prohibited, by its first section, any person whatsoever, from taking oysters between May 10th and Sep- tember 1st, and by its second section, forbid any person not residing in this province, from taking oysters and putting them on board a vessel not wholly owned by a resident. At the time this act was passed, the business of planting oystera was unknown, but came into use prior to the revision of the laws in 1820, at which date, the proviso in section one, 'that nothing in that section shall apply to planted oysters,' first appears. That the first section, revised in 1820, without the proviso, would have applied to both natural and planted oysters, cannot be questioned, if the language is given its usual significance, and that it was so understood at that day, is evinced by the fact that it was deemed necessary to add that proviso to the first section, to save planted oysters from its operation. The seventli section of the present act was sub- stantially enacted at the same time with section one, and run parallel with it, and before the revision in 1820, the two sec- VoL. VII. 32 610 COURT OF ERRORS AND APPEALS. Haney and Scattergood v. Compton. tions were co-extensive, and applied to the same class of oysters. " The fact, therefore, that in the revision in 1820, section one was adopted with the proviso, saving planted oysters, and section seven without such proviso, shows indubitably, that it was intended that the latter section should apply to all oysters, whether natural or planted; otherwise, the proviso incor- porated in section first was entirely unnecessary, and that section would, without the added words, apply only to natural oysters. There is no rule of statutory construction M'hieh will permit language so comprehensive to be so restricted in its application. The seventh section must be held to exclude non-residents from taking planted oysters in our waters. Is this act so interpreted, in conflict with any provision of the federal constitution ? The inhibition relied upon is found in the following citations: ^' 1. The second section of article fourth : 'Tiie citizens of «ach state shall be entitled to all privileges and immunities of ■citizens in the several states.' 2, The third clause of section ■eighth, article first : * That congress shall have power to regu- late commerce with foreign nations, and among the several states, and with the Indian tribes.' Both these provisions -were elaborately discussed by Judge Bushrod Washington, in Corjield v. Coryell, 4 Wash. C. C. Rep. 371, in which he held that it was competent for state legislation to prohibit tlie tak- ing of natural oysters by non-residents, from beds within its territorial limits. There is no grant of power to the general government, which impairs the right of the states to regulate the use of their public property, provided the free enjoyment of the highways for the purposes of commercial intercourse or inter-state trade is not interfered with. " The grant of power to congress to regulate commerce on the navigable waters of the state, contains no cession of the jus 'privatum which the state has in the soil covered by its waters. The section in question does not restrain the free use of our waters for the purposes of trade and intercourse, and is therefore not a regulation of commerce: nor is this sec- MARCH TERM, 1873 511 Haney and Scattergood v. Compton, tion obnoxious to the charge, that it attempts to restrict the carrying of articles of trade to a class of vessels. All persons and all vessels may legitimately engage in the business of carrying oysters after they have been gathered and become an article of merchandise. There is no encroachment in this legislation, upon the exclusive jurisdiction of the national leg- islature over the subject of commerce. But the plaintiffs rely- chiefly upon that clause of the constitution which declares that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.' "Judge Washington limits this expression to those {)rivi- leges and immunities which are in their nature fundamental, and belong of right to the citizens of all free governments, such as protection by the government, the enjoyment of life and liberty, the right to buy, bold and dispose of property, to pass through and reside in the state, and to be exempt from impositions higher than those paid by other citizens of tlie state. This view is accepted by Chancellor Kent, in Vol. 2 of his Commentaries, page 71. Among these funda- mental rights cannot be included the right to participate in the enjoyment of the private property of the state. The soil of Maurice river cove, and the oysters upon it, were the ■property of the State of New Jersey, and even one of her own citizens could not plant upon or take oysters from it without her consent. No citizen of the United States has a right to engage in the employment of taking the private property of the state, or of an individual, without the con- sent of the state or the individual owner. The full owner- ship of this species of property empowers the state to declare who shall take it, upon what terms it shall be taken, and by what means it shall be removed. A citizen of Pennsylvania ■cannot claim a right to acquire the property of New Jersey in a manner different from that in which New Jersey agrees to dispose of it, nor can he successfully assert a right to be employed on a vessel to take private property without the consent of the owner, or to take it contrary to the condition upon which the vendor of his employer holds it. His un- 512 COURT OF ERRORS AND APPEALS. Haney and Scattergood v. Compton. questionable riglit to employment upon all vessels at the option of the employer, for all lawful purposes, cannot be the foundation of a claim to be employed for an unlawful purpose. " The law-making power has given to all the residents of this state the right to go upon her private property in a speci- fied manner and take oysters; this privilege might, lawfully, have been even made, circumscribed by limiting it to a por- tion of such inhabitants, to the exclusion of others. The persons from whom the plaintiffs purchased the planted oysters, although residents in this state, were interdicted by the statute from taking them with a vessel having on board a non-resident, and therefore the plaintiffs, who are non-resi- dents, are now claiming rights superior to those enjoyed by the inhabitants of the state. " The state having title to the soil of the cove, might claim absolute property in all oysters planted upon it, regarding the return of such oysters to their natural element by a mere trespasser, as an abandonment by the former owner. Her own residents are, by favor, permitted to plant and take them, and to acquire a property in them, subject to certain pre- scribed conditions, which the law maker has deemed essential to prevent spoliation of the beds. The condition imposed is, that they shall be taken from the beds by New Jersey crews, and this limitation will apply to the same, and no greater extent, when a resident of Pennsylvania acquires, by pur- chase or otherwise, the right of property which a resident of New Jersey may have in oysters lying in the beds of our waters. The latter cannot pass to the former a title better than he himself has. " The conclusion is, that the validity of the state law is un- shaken, and there must be judgment for the defendant, with costs." A writ of error was brought to remove the judgment and proceedings to this court. MARCH TERM, 1873. 513 Haney and Scattergood v. Compton. For plaintiffs in error, Mitchell and' P. L. Voorhees. 1. The seventh, ninth and tenth sections of the act enti- tled " An act for the preservation of clams and oysters," a])proved April 14th, 1846, under which the defendant seeks to justify, apply only to oysters growing on natural banks or beds, and not to oysters planted and growing where natural oysters do not grow. 2. The act under which the defendant seeks to justify is contrary to sections 6, 7, and 8 of article I of the constitution of New Jersey, and to section 8 of Article I, section 2 of Article IV of the constitution of the United States, and to sections 4, 5, and 14 of the amendments of the constitution of the United States, and is unconstitutional and void. For defendant in error, F. F. Westcott and F. T. Freling- huysen. The determination of this controversy involves the consid- eration of the terms of the seventh section of the "Act for the preservation of clams and oysters." Nix. Dig. 131. The defendant having pleaded the act as his defence, the plaintiffs, at the argument below, endeavored to avoid it upon two grounds : (1.) Upon the ground that it was repugnant to the consti- tution of the United States. (2.) Upon the ground that, if constitutional, it was not in- tended to inhibit the gathering of planted oysters, but only those of natural growth. I. As to the question of the constitutionality of our act. ' The plaintiffs claim that the act is repugnant to the federal constitution in two particulars : (a.) To the third clause of section 8, article 1 : " Congress shall have power to regulate commerce with foreign nations, and among the several states, and with th'e Indian tribes." It was, of course, with a view of claiming the protection of this clause, that the plaintiffs pleaded that their vessel, at 514 COURT OF ERRORS AND APPEALS. Haney and Scattergood v. Compton. the time of her seizure, had a coasting license from tlie United States government. This precise defence, in an analogous case of a seizure of a vessel for an infraction of a similar oyster law of the State of Maryland, was pronounced untenable by the Supreme Court of the United States in the case of Smith v. The State of Mary- land, 18 How. 71. And also in the case of a seizure under our own act, in the vei'y same Maurice river cove, by the Circuit Court of the United States for the district of Pennsylvania and New Jer- sey. Corjield v. Coryell, 4 Wash. C. C. Rep. 371. There is nothing in our law to prevent navigation ; nothing which hinders the plaintiffs from passing and repassing whither they will, on the surface of the sea ; it simply pro- hibits them from unlawfully subverting the soil of the state, many fathoms below. A non-resident has no right to tear up the soil of New Jersey by dredges, without her consent. That the soil of Maurice river cove is New Jersey soil, is admitted, as we have seen, by the pleadings, and has been so declared by all the decisions of our courts, from the earliest cases to the latest. Arnold v. Mundy, 1 Halst. 1 ; Gough v. Bell, 3 Zah. 624 ; Stevens v. Paterson and Newark B. R., 5 C. E. Green 126. And also by the Circuit Court of the U S. for this circuit. Corjield v. Coryell, 4 Wash. C. C. Rep, 371. And also by the Supreme Court of the United States. 3Iartin v. Waddell, 16 Peters 367. (6.) The other clause of the Federal Constitution, to which it was claimed that our act is repugnant, is the 2d section of Article IV. " The citizens of each state shall be entitled to all the privi- leges and immunities of citizens in the several states." It will be observed that this section of the Federal Consti- tution is only applicable to cases in which t-lie parties, plain- tiff and defendant, are residents of different states. The plaintiffs in this case can derive no benefit from this or any other provision of that constitution which aims to secure equal rights to the citizens of the several states, because it does not MARCH TERM, 1873. 515 Haney and Scattergood v. Compton. appear from the pleadings but that they are residents of New Jersey. By the settled principles of pleading, an.y ambiguity in the plaintiffs' pleading will be taken against them. And the court will not travel outside the record to imply any beneficial matter which they might have pleaded. Precisely this prin- ciple was declared in Downham et al. v. Alexandria, 10 Wall, 173. The question properly raised by the pleadings is this : Can a resident of New Jersey lawfully employ a person who is not at the time an actual inhabitant and resident of this state, and who has not been such actual inhabitant and resident for six months next preceding thereto, to rake and gather oysters in the waters of Maurice river cove, in Cum- berland county ? The act above cited expressly declares that it shall not be lawful for such a person to do such an act, " on his own account and benefit, or on account and benefit of his em- ployer." There is no ambiguity in this language, and a strong argu- ment for the right of our legislature to use it is to be found in the consideration that almost all, if not all, the states that own soil adapted to the growth of oysters, have passed laws for their protection similar to our own, and that no one of these laws, so far as known to the counsel of the defendant, has ever been declared unconstitutional, but, on the contrary, have been declared constitutional by a tribunal of no less authority than the Supreme Court of the United States. Laws of Marykmd, 1831, ch. 249. The second section of this act is almost identical with the seventh section of our own, and enacts " that it shall not be lawful for any person or persons, who has or have not resided in this state at least twelve months immediately previously thereto, to catch or take any oyster in the said waters, under the penaty of ^100, to be recovered from each person so offeniling." 516 COURT OF ERRORS AND APPEALS. Haney and Scattergood v. Compton. And the fourth section provides for the forfeiture of the vessel, in case the penahy be not paid. This law, and a supplement passed in 1833, chapter 254, came up for review before the Supreme Court of the United States, in the case of Smith v. State of Maryland, 18 How. 71, and there held to be coiistitutional, although the counsel of the plaintiffs in error had urged their unconstitutionality for the precise reasons urged below by the counsel of the plaintiffs in error in this cause, against the constitutionality of our own law. The laws of Virginia contain prohibitions of a similar character. " If any person other than a citizen of this state shall take oysters or terrapins, or plant oysters in the waters thereof, he shall forfeit $500" Matthews' Digest of the Laws of Virginia (ed. 0/1857,) Vol. II, p. 245. Our own law, like that of Maryland and Virginia, has been for a long time upon the statute book, substantially since 1719, and during this century and a half,, though often assailed in the courts, it has never been done successfully, but, as will hereafter be seen, has been fortified by a series of judicial determinations. The right of tlie legislature to pass it, results directly from the ownership, by the state, of the lauds under her waters, (see cases above cited,) and from this ownership a right enures to the legislature either to alien them, by grant, to individuals in fee, [Gough v. Bell, 1 Zab. 156 ; State v. Common Council of Jersey City, 1 Butcher 525, or to lease them for a term of years, which is a right that it exercised as anciently as 1824, by passing an act making it lawful for certain persons to use a portion of them as a plant- ing ground for' oysters, at an annual rent. See act entitled '' An act to encourage and regulate the planting of oysters in the township of Perth Amboy." Laws of New Jersey, 1824, p. 28. "The state, as representing the people, has the right to regulate the common rights and privileges of fishing." Moul- MARCH TERM, 1873. 617 Haney and Scattergood v. Compton. ion V. Libbey, 37 Maine 472, 494; Fuller v. Spear, 16/5. 417 ; Kean v. Rice, 12 Serg. & B. 203. And the state not only has the right to make such regula- tions and to define the terms upon which her soil may be used for that [)urpose, but in so doing she is not hampered by any of those restrictions of public policy which may limit the grants of individuals. The state, as parens patrice, is the sole judge of her policy. And in the exercise of her judgment, with a view (1) to save her beds from spoliation, and (2) to preserve for the benefit of her own children the sole use of her soil, not natural beds of the oyster, but adapted to the planting of them, the state imposed the condition upon the use of her lands for the growing of oysters, that when they were lifted thence it siiould be done by Jersey hands. From this conclusion it necessarily follows that even if the plaintiffs were citizens of another state, they could not be pro- tected by the section of the federal constitution cited at the head of this sub-title. That section does not give citizens of other states rights superior to those of our own citizens. Tins is the principle involved in the case, which is the latest on this subject, of Ward -v. State of Maryland, 12 Wal- lace 418. The writ of error in that cause, brought up for examination a statute of Maryland which compelled resident traders to pay a specified tax on sales of personal property, and compelled non-resident traders to pay a much higher tax on sales of the same kind. Held to be contrary to that section of the federal constitu- tion now under discussion. The court says : " This clause secures and protects the right of a citizen of one state to pass into any other state of the Union for the pur- pose of engaging in lawful commerce, trade, or business, without molestation ; to acquire personal property, to take and hold real estate, and to be exempt from any higher ta-xes or excises than are imposed by the state on its own citizens." The principle enunciated in Ward v. Maryland is in har- mony with the previous declarations of the same court. 518 COURT OF ERRORS AXD APPEALS. Haney and Scattergood v. Compton. Paul V. Virginia, S Wallace 168; Doionnam v. Alexandria,. 10 Ih. 173; Ducat v. Chicago, lb. 410; Conner v. Elliot, 18 How. 591. It will be found that in all cases in which state laws have been held to be unconstitutional, as trenching upon the privi- leges and immunities of the citizens of the several states, that the state legislature has attempted to define the way in which individuals may use their property — to define the way in which property may be used in which the state has no inter- est; and not, as in the present case, to define the way in which its own — the state's own — property may be used. In concluding this branch of the argument, it will only be necessary to cite the cases confirming, impregnably, the con- stitutionality of our law. Corfield v. Coryell, 4 Wash. C. C. Rep. 371 ; Keene v. Rice, 12 Sergeant & Raicle 203. John Guyant v. Gilbert Compton and Daniel T. Hoioell. In 1871, our legislature passed an act supplemental to the act of 1846, and designated to enforce it, by which the defend- ants above named, (of whom Gilbert Compton is the same Gilbert Compton who defends this suit,) were appointed pub- lic officers, and charged with the duty of executing it. To restrain them from so doing, a bill in equity was filed in the United States Circuit Court for this district, in which the complainant, a citizen of Pennsylvania, was represented, with other counsel, by the present Attorney- General of that com- monwealth. A rule to show cause why a preliminary injunc- tion should not issue against the defendants was granted by Mr. Justice Strong, of the United States Supreme Court^ and the argument on this motion was had before him and Judge Nixon, in the city of Philadelphia, in the summer of 1871. The ground on which the injunction was sought, was the unconstitutionality of our laws, and their infringement upon the rights of the citizens of Pennsylvania. The injunc- tion was refused, and the complainant has never taken any further step in the cause. The constitutionality of our act having been thus affirmed by the state courts both of Pennsylvania and New Jersey, by MARCH TERM, 1873. 51» Haney and Scattergood v. Compton. the United States Court of this district, and also, substan- tially, by the United States Court of New York — by all the courts having jurisdiction of the disputed territory — it is thought that the case of the defendant stands on authority, as well as reason, that cannot be questioned. It is furtiier to be stated, that when the troubles with the citizens of Pennsylvania began, after the enactment of the law of 1871, the mayor of the city of Philadelphia and the Attorney-General of Pennsylvania addressed letters to the governor of this state, pointing out the supposed unconstitu- tionality of our law of 1846. The governor took the advice of our present Attorney-General, who gave a careful opinion in writing, that the law was constitutional. II. The other objection urged against our law, by counsel in the court below, was, that its seventh section was only intended to interdict the taking'of natural, and not of planted oysters. It is difiBcult to see how such an apprehension of the meaning of the language of the section can be reasonably entertained. The word used is "oysters;" the thing forbidden to be taken is " oysters;" a word which includes in its meaning all oysters, being a generic term including the two species, natu- ral and planted ; these " oysters " are forbidden to be taken " in any of the rivers, bays, or waters of this state.'' Now, it was matter of familiar knowledge to the legislature that there were many of the "rivers, bays, and waters" of this state in wiiich there were no natural oysters at all, but only planted ones, and that in many other of the waters of this state there were both kinds of oysters; but the words used are all comprehensive, embracing both kinds of waters, having neither any excepting clause saving those waters in which only planted oysters were to be found, nor any excepting clause saving planted oysters. The effect of this reasoning cannot be avoided by averring that the legislature used the generic term unadvisedly. The 520 COURT OF ERRORS ANT) APPEALS. Haney and Scattergood v. Compton. act is full of proof that they used the word which they meant, and meant what the word they used would naturally imply. It is a familiar principle, iu the construction of statutes, that other portions of the same act will aid in the interpreta- tion of any particular section. That the legislature, when they passed this act, were aware of the distinction between natural and planted oysters, is apparent in its very first section. In the enacting clause of this section, it is declared that no person shall rake, between certain dates, " on any oyster- bed," or gather "any oysters;" general words are used like those employed iu the seventh section. It then occurs to the legislature tiuit the words they have used will prohibit per- sons who have planted oysters from taking them for their own use, which they do not intend, and so they annex a pro- viso saving planted "oysters. The legislature here shows that they knew the distinction between natural and planted oysters, and knew how to use apt words to distinguish them. If, then, when they used the same general term, '' oysters," in the enacting clause of the seventh section, they intended to -confine its application to natural oysters, why did they not here, as iu the first section, introduce a limiting proviso? A reference to other sections of the act will compel this obvious construction. The fourth section contains matter that is very suggestive. It prohibits the sale of "oysters" between May and Sep- tember. The word used is the same as that used in the seventh section. The fourth section is intended to protect the public health by prohibiting the sale of oysters at that season of the year when they are unwholesome food; and in so far as this section of tlje act is concerned, it is clear that it would be broken by the sale of planted oysters, they being just as unwholesome as natural oysters. The twenty-second section is conclusive. This makes the taking of " oystei's" by a non-resident, indictable. It is supplemental to the seventh section, which MARCH TERM, 1873. 521 Haney and Scattergood v. Compton. is the subject matter of the controversy before the court, by- adding an additional penalty to its infraction. The same words, " oysters, clams and shell-fish" are used In both sections. In the twenty-second section, the word "oysters" clearly embraces planted oysters, for, otherwise, the absurd conse- quences would ensue that it would be indictable to take natural oysters, in which no citizens has invested any labor or money, and not indictable to take planted oysters, in which any citizen may have invested his whole fortune. The opinion of the court was delivered by Dalrtmple, J. This action of replevin was brought for the taking of a schooner, and the furniture and apparel thereof be- longing to the plaintiffs. The defendant admits the taking, and justifies the same on the ground, that at the time when the ves- sel was seized she was in the county of Cumberland, in thi& state, and had on board a person not an actual inhabitant and resident of this state, who was then and there engaged raking and gathering oysters on his own account, and on account and for the benefit of his employers. The avowries contain the further allegation, that immediately upon the seizure the defendant gave information thereof to two justices of the peace of said county, who appointed a day and place for the hearing and determination of the matter. The allegation of the avowries bring the defendant's defence in terms within the act entitled " An act for the preservation of clams and oysters." Nix. Dig., p. 131, §§ 7, 9.* The plaintiffs plead to these avowries, that the vessel when seized was in charge of a certain person who was engaged in gathering oysters in Maurice river cove, within the waters of the State of New Jersey, which oysters were planted and placed there by a citizen and resident of the State of New Jersey, who sold them to a purchaser under whom the plaintiffs claimed the right to take them. The defendant demurs to these pleas, and insists that the act applies as well to planted as natural oysters. This ground of demurrer is well taken. The sev- enth section of the act which authorizes the seizure makes no . _ ■ k *Itev., p. 136, U 7, 9. 522 COURT OF ERRORS AND APPEALS. Haney and Scattergood v. Compton. distinction betweeu natural and planted oysters. It pro- JiibitSj in general terras, the raking or gathering of oysters in any of the waters of this state, by any person who is not, at the time, and has not been for six months then next preceding, an actual inhabitant and resident of this state. By the first section of the act, a distinction is made between natural and planted oysters. By that section, it very clearly appears that the legislature intended the general term oysters to include the planted as well as the natural oysters, and we have no right to restrict the seventh section within limits more confined, than it is quite clear the law maker intended The plaintiffs, however, insist that admitting the true con- struction of the act is as I have stated, it is unconstitutional and void, because it is a regulation of commerce. It was doubtless with a view of raising this question, that it was averred in the pleas that the vessel at the time of her seizure had a coasting license from the government of the United States. But it cannot with any propriety be said that a statute which simply prohibits non-residents on board a vessel from subverting the soil of the state and carrying away her property, or that of her grantees, leaving such vessel free to pass and repass, and go whithersoever those in charge of her desire, is a regulation of commerce with foreign nations, or among the states. It is a law for the protection of property — at most an internal police regulation entirely within the com- petency of the state to adojit, and it is not perceived that it can by possibility interfere with commerce in the sense in which that word is used in the federal constitution. It is insisted in the next place that the statute is a viola- tion of that clause of the constitution of the United States which ordains that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. That this objection to the act is unfounded, will be apparent, I think, when we consider what is the right of which it is said the plaintiffs are deprived. It is of coming upon the lands under water belonging to the state and sub- verting the soil and interfering with the property there found. The lands are those of the state and she may retain them in MARCH TERM, 1873. 523 Haney and Scattergood v. Compton. her own actual possession, or grant or lease or otherwise part with the possession of them on such terms as she believes sound policy dictates. She hath enacted that a certain class only of her own citizens may gather oysters in the public domain, a*nd restricted the privilege to them. I do not see that the rights thus granted were in any proper sense privi- leges and immunities of the citizens of this state, or the class of them to which the state gives the right. To so hold would require the state to grant to the citizens of all the other states the right to use the property of the state on the same terms and conditions she is willing to accord such right to her own -citizens. In other words, the doctrine sought to be main- tained is, that when the state grants to a class of her own citizens the right to use the lands of the state, she must let in the citizens of all the other states on the same terms, and that she cannot constitutionally restrict the'right to the people of this state. In my opinion, such a doctrine cannot be main- tained on principle or authority. Before leaving this branch of the case it may be well to observe that the act makes no discrimination, except as to the rights conferred between citi- zens of this state and of another. Both alike are prohibited from taking oysters by tiie use of any vessel on which is em- ployed a person not a citizen of this state. It is next objected that the act is unconstitutional, because it deprives the plaintiifs of their property without due process of law. The construction is, that inasmuch as the vessel may be seized without process first issued, and without notice to the owner of the seizure, he may be deprived of his property without opportunity to make defence. It must be recollected that the proceeding is in rem against the vessel to declare her forfeited because of a violation of our laws. The act provides that after the seizure, information shall immediately be given to two justices of the peace of the county where such seizure shall have been made, who shall meet at such time and place as they shall appoint, and hear and determine the matter. It is thus shown that the vessel is in the first place to be seized while unlawfully employed within our jurisdiction, and in the next place before condemnation, there is to be a hearing 521 COURT OF ERRORS AND APPEALS. Haney and Scattergood v. Compton. ami determination before a competent tribunal. The proceed- ing is to be upon due inquiry. Provision is made for hearing the parties, and judgment is to be given only after such hear- ing. There is to be a regular trial after due ai^pointment of time and place for the same. Any arbitrary, unjust, illegal or oppressive proceeding of the justices, if any such should happen, may be corrected by the Supreme Court by virtue of that general superintending power whioh it has over all in- ferior jurisdictions. It appears to me that it would be going too far to hold that such proceeding is void, because no express provision is made for notice to the defendant of the seizure. Tiie seizure of the vessel while in the hands of the owner or his employees is practicably as effective notice that the pro- ceeding has been initiated as could, under the circumstances, be given. The record in this case shows that when the vessel was seized she was in the possession of an employee or agent of the plaintiffs. Without now attempting to define the pre- cise meaning of those much discussed phrases, "due process of law," and " law of the land," it is sufficient to say that when the proceeding is in-rem against property in a foreign jurisdiction, found in the possession of the owner or his agent, and in use for an unlawful purpose, which causes a forfeiture of the same, the seizure thereof without judicial process first issued, preparatory to regular trial and condemnation, is not a deprivation of property without due process of law. It is only necessary to say that the plaintiffs' objections that the act is repugnant to the constitution of this state, in that it provides for a criminal prosecution and search and seizure of property without warrant and trial by jury, are not deemed tenable. The proceeding is not a criminal prosecution, nor is it an invasion of the security guaranteed by the constitution of this state, to the people in their homes, persons, papers and effects against unreasonable searches and seizures, nor is the act open to the objection that it violates the right of trial by jury. The case is analogous to that of McGear et al, v. Woodruff, 4 Vroom 213, and must be con- trolled by the principles in respect to the right of trial by MAECH TERM, 1873. 525 Haney and Scattergood v. Compton. jury, adjudicated in that case. In considering the main questions in this case, I have not referred to the adjudged cases which bear upon the points discussed, nor was it neces- sary. The elaborate brief of the counsel of defendant refers to all the principal authorities, while the subject is exhaust- ively examined in the opinion of the court below, so far as the points there raised are concerned, and in the case of Bevans V. Compton et al., in the Circuit Court of the U. S. for this district. Judge Nixon, in a clear and well considered opinion, a copy of which was furnished to the court on the argument of this case, taking substantially the same view of the main questions involved as is above indicated. The result is, that no error having been shown in the record or proceedings below, the judgment must be affirmed, with costs. For affirmance — The Chancelloe, Chief Justice, Bedle, Daleimple, Depue, Scuddee, Woodhull, Clem- ent, DODD. 9. For reversal — None. Cited in Day v. Compton, 8 Vr. 514 ; WeUer v. Snover, 13 Vr. 341^ Vol. vn. 33 CASES AT LAW DETERMINED IN THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY, AT JUNE TERM, 1873. HENRY B. KEMBLE ET AL., ADMINISTRATORS, &c., OP CHARLES KEMBLE, DECEASED, PLAINTIFFS IN ERROR, rv. PHEBE HARRIS, DEFENDANT IN ERROR. 1. The words, " writ of execution," in the twenty-second section of the act concerning slieriffs, apply to writs of fieri facias as well as to writs of capias ad satisfaciendum. 2. Where adverse claim is set up to property levied on by a sheriff, and the plaintiff's attorney and the sheriff are in correspondence as to the action to be taken in the premises, the latter asking and the former promising instructions, the sheriff is not liable to amercement for not proceeding to sale until he shall have disobeyed or disregarded posi- tive, reasonable and lawful directions to that end. 3. A levy made after the return day of a writ of fieri facias, is a nullity. In error to the Supreme Court. On the 15th day of February, 1870, a writ of fieri facias, returnable on the fourth Tuesday of that month, was issued out of the Supreme Court at the suit of Phebe Harris, against Alexander Kirkpatrick, directed to the sheriff of Burlington. It was delivered to the sheriff on the 22d day of the same 526 JUNE TERM, 1873. 527 Kemble et al. v. Harris. month, the day on which it was returnable. On the 24th he made a levy under it on certain personal property in the pos- session of the defendant, and on the 28th, apprised the plain- tiff's attorney of the levy, at the same time informing him that the defendant's wife, alleging that the goods were not the property of her husband, had protested against it, and that the defendant, in whose absence from home the levy had been made, had, on his return, also denied all ownership of the goods. The sheriff suggesting that proceedings under the levy, with a view to sale, would probably result in a claim of property and a trial of title, asked for instructions. On the 2d of March following, the attorney, in reply, ■directed the sheriff to levy on everything the defendant had ; to make a careful and exact appraisement ; to permit the de- fendant to make the selection he was entitled to by law; obtain from his wife a statement of her claim of property, and send to the attorney a copy of the appraisement and statement of selection, the attorney promising, that on receipt thereof, he would give the sheriff further instructions. On the 24th of May following, the sheriff having been urged by the attorney to proceed, apologized for his delay, excusing himself for hav- ing made no appraisement, on the ground that he had become satisfied that the goods levied on were not the defendant's property; and expressing his conviction that nothing could be made on the execution, declared his readiness to make the ap- praisement, if insisted on under the circumstances, and re- quested immediate instructions on the subject. On the 26th of May the attorney wrote to the sheriff re- questing that a copy of the execution and of its endorsements, as well his own as those of the sheriff, and a copy of the in- ventory be sent to him at once, but neither gave any further instructions nor promised any. To this the sheriff replied, on the 28th day of May, stating his inability to comply with the request it conveyed, because he had returned the writ. No further correspondence took place between the parties on the subject, except that on the 528 COURT OF ERRORS AND APPEALS. Kemble et al. v. Harris. 7th of June following, the attorney wrote to the sheriff sug- gesting a suspicion of" bad faith, and expressing an intention to proceed to amerce him. Motion was made for aij amerce- ment in the Supreme Court at the term of February, 1872, and an amercement ordered. See Harris v. Kirkpatrick, 6 Vroom 392. For the plaintiffs in error, James Wilson, For the defendant in error, F. F. Westcott. The opinion of the court was delivered by The Chancellor. On the argument in this court It was urged that the notice of amercement was insufficient, because it stated the grounds of the application to be that the sheriff had " neglected and refused to execute the writ of execution,, and that he had neglected to file a just and true inventory of the goods and chattels, lands and tenements levied on and taken in execution" under the writ, which was sl fieH facias, while judgment of amercement was asked solely on the ground that the sheriff had not proceeded to sale of the property levied on. It was insisted that the words " writ of execution," in the twenty-second section of the act concerning sheriffs, {Nix. Dig. 891,)* under which the proceedings for amercement were taken, have reference to a writ of capias ad satisfaciendum, and not to a writ o^ fieri facias, and that if that section authorizes an amercement for neglecting or refusing to execute o. fieri facias ^ this case is not within it, because a writ o^ fieri facias is exe- cuted by levy and return. In 8cott v. Dow, 2 Green 350, it was held that the word "execute," used in connection M'ith these words in the section referred to, is to be taken in the sense o^ fulfil or complete, and that if a sheriff, having levied under a fieri facias, unlawfully neglects or refuses to proceed to a sale, he fails to fulfil or complete, and therefore to exe- cute, the writ. Stryker v. Merseles, 4 Zah. 544. In Waterman v. Merrill, 4 Vroom 379, the court say on this subject, construing the word with reference to a fieri *Bev.,p.n02,^22. JUNE TERM, 1873. 529 Kemble et al. v. Harris. facias : " To execute the writ in the sense of the act is to do all that the writ commands to be done." These decisions are according to the plain signification of the term as it stands in the statute, and it is evident that the words " writ of execu- tion " were intended to embrace writs of fieri facias, as well as writs of capias ad satisfaciendum. In the case before us, the sheriff levied on the goods in the possession of tiie defendant, but proceeded no farther towards a sale. While it appears that adverse claim was made, it does not clearly appear that it was in writing. If it was, no notice was given under it by the claimant to the plaintiff. The rights and responsibilities of the plaintiff and the sheriff, therefore, remain as at common law. A few days after making the levy the sheriff apprised the plaintiffs' attorney that the defendant disclaimed ownevship of the property ; that claim was made upon the property by the •defendant's wife, and that in all probability proceedings with a view to sale would eventuate in a formal claim to all the goods and a trial of title. In reply to his request for instructions then made, the attorney directed him to make a minute levy, a careful and exact appraisement, to allow the defendant his selection under the statute, to get from the defendant's wife a statement of her claim, and to send him a copy of the appraisement, selection and statement. He promised at the same time further instruc- tions after these directions should have been complied with. So matters stood until the 24th of May, when the sheriff wrote to the attorney excusing himself for not having made the appraisement, and again declaring his willingness to proceed if required, renewed his request for instructions. To this the attorney replied by asking for copies, but neither giving nor promising any further instructions. The plaintiff insists that the sheriff, after receipt of this last com- munication, returned the writ without further effort to make the money. Conceding this, there is no ground for amerce- 530 COURT OF ERRORS AND APPEALS. Kemble et al. v. Harris. ment. The sheriff had a right to return the writ when he did ; the return day was long passed. The attorney had not directed the sheriff to proceed to sale. From the correspondence, the latter had reason to conclude that he was to be guided and governed by the directions he should receive from the former, and that that was to be the limit of his responsibility. Under the circumstances, he could not have expected to be held liable for not proceeding to a sale until he had disobeyed reasonable orders to that end. Where, as in the case before us, an adverse claim is set up to goods levied on, and the sheriff and plaintiff's attorney are in correspondence as to the action to be taken in the premises, the former asking and the latter promising instructions, the sheriff is not liable to amercement until he shall have dis- obeyed positive, reasonable, lawful directions. The case, in this aspect, falls within the principle of Fata-- son Bank v. Hamilton, X Green 159 ; Leroy v. Blauvelt, 1 Gt-een 341 ; Scott v. Doiv, 2 Green 350 ; Stryker v. Merseles, 4 Zab. 544; and Waterman v. Merrill, 4 Vroom 379. In Scott V. Dow, the court say : " A plaintiff ought not first to disarm a sheriff, and then hold him liable for not executing a writ." In the present case, however, no reasonable lawful orders were possible, owing to the character of the levy. The writ was returnable on the very day on which it was delivered to the sheriff. The levy was made two days afterv.ards. It was therefore a nutlity, and the sheriff was liable to be treated as a trespasser for making it. He could not lawfully have sold under it. He cannot be amerced for not proceeding to sale under a void levy. Nor is he, under the circumstances, estopped from setting up this defence. He communicated to the plaintiff's attorney the fact that the writ had come to his hands on its return day, and that he had levied under it, stating the date of the levy. Both must have known that the levy was a nullity^ JUNE TERM, 1873. 531 Pennsylvania E. R. Co. v. Matthews. and then subsequent correspondence must be viewed in th« light of that fact. The judgment of the Supreme Court must be reversed. For reversal — The Chancellor, Chief Justice, De- PUE, Van Syckel, Woodhull, Dodd, Lathrop, Lilly, Wales. 9. For affirmance — None. THE PENNSYLVANIA EAILROAD COMPANY, PLAINTIFFS IN EREOE, V. CHAELES B. MATTHEWS, DEFENDANT IN EEEOE. 1. A non-suit is proper when from the plaintiff's own showing, it dearly appears that he contributed by his own carelessness to the happening of the accident from which he received damages. 2. As a general rule, a railroad company is not bound to keep a flagman at the points where its road intersects public highways. 3. But this obligation may become due by reason of such company con- structing its road so as to make the crossing or use of such highways unnecessarily dangerous. On error to the Supreme Court. This case was tried before Justice Depue and a jury at the January Term, 1873, of the Essex Circuit. The horses and wagon of the plaintiff were run over by the train of cars of the defendant, and the suit was brought for damages thus occasioned. A verdict having been rendered for the plaintiff, and judgment entered thereon, a writ or error was brought to this court. For the plaintiffs in error, I. W. Scudder. For the defendant in error, R. W. Parker and C. Parher, 532 COURT OF ERRORS AND APPEALS. Pennsylvania R. R. Co. v. Matthews. The opinion of the court was delivered by Beasley, Chief Justice. A railroad track is a place of danger, and any one who incautiously places himself upon it, and sustains damage in consequence of such carelessness, is entirely remediless. The law requires of all persons approach- ing sucli a point of peril, the exercise of a reasonable caution, and if this duty is neglected, and an accident thereby occurs, it says to those who are thus in default, that they must bear the ill which is the product, in whole or in part, of their own folly. Tliis rule is founded deep in a wise public policy, for this species of rashness jeopards not only the individual guilty of it, but the peril is extended to all persons who at the point of time may chance to be in the cars moving over the track. The legal provision operates, at once, as a punishment of the guilty and a protection to the innocent. Tiiis doctrine is established by a series of decisions in this state, and is familiar law both in the English and American courts. It is one of the unavoidable results of this doctrine that if in an action involving this issue, it appears from the plain- tiff's own case that he has in part contributed, by his want of ordinary caution, to the production of the damage of which he complains, he will be subjected to a non-suit. And this is the ground upon which the first objection to the present judg- ment has been rested. But I do not think the facts in proof sustain this contention. It is not necessary to treat those facts in detail. It is suffi- cient for all useful purposes to say, that the evidence on this subject is open to fair debate, and leaves the mind in a state of some doubt on this question, whether the driver of the horses which were destroyed, exercised or not that degree of care which his legal duty exacted. This being the case, the judge would not have been justified in taking this question from the jury. Such a course is proper only when the absence of caution is apparent, and is in reason, indisputable. This exception cannot be sustained. The only other objection which was pressed upon the argu- JUNE TERM, 1873. 533 Pennsylvania R. R. Co. v. Matthews. Tnent, was the one relating to the alleged duty of the defendant to keep a flagman at the point where the collision occurred. The place in question was one of evident danger. The public road crossed the railroad track a short distance from a deep cut which entirely shut out from view the engine and cars. Just before its intersection with the road the track took a sharp curve. A person standing at the point of inter- section could not see along the track into the cut. There M'ei'e two small buildings belonging to the defendants between the mouth of the cut and the road, so placed as, in some measure, to intercept the sight of a person who had approached dose to the place of intersection. It appeared in the testi- mony that the train of the defendants, on the occasion in question, was moving with considerable speed. It was further shown that a flagman was usually kept at that place, but was casually absent at the time of the accident. These being the conditions of the case, the judge charged, with respect to the present question, as follows, viz. : " The defendants owed a duty to the traveling public, which may be summed up in this one sentence. They were bound to use all such precautions as are reasonably necessary to give to persons crossing their track on the highway, warning of the approach of tlieir trains, in order to enable persons cross- ing over the track by the highway, to avoid collision. In that proposition is embraced all the law of the case. That the company were bound to give reasonable warning, either by signals or by a flagman, to persons traveling the highway, to enable them to avoid collision by the company's trains. There is no general rule of law by which a railroad com- pany is bound to place a flagman at a particular crossing, and it is only where, by the configuration of the country, that is, the situation of the adjoining land with respect to the railroad, or where the travel is so constant and frequent over their railroad that the use of ordinary signals would fail to give reasonable notice to the public having occasion to cross the track, that the company is bound to place a flagman at the crossing." 534 (X)URT OF ERRORS AND APPEALS. Pennsylvania K. R. Co. v. Matthews. The question is, not whether this enunciation of legal prin- ciples is, in the abstract, correct in all its propositions, but whether it is so with respect to the precise legal principle in- volved in the case then in the course of trial. In this narrow aspect, the rule la'id doM'c was this, that if that particular place was so peculiarly dangerous, that prudent persons could not use the public road in safety, unless the company em- ployed a flagman or other extraordinary means to signal the approach of their trains, that then, in such event, it was in- cumbent on them to employ such extraordinary means. And this proposition seems to me to be, in its application to the case then trying, in all respects correct. It is, in fact, nothing more than saying that a railroad company cannot, by the mode in which they choose to construct their road and its appendant buildings, render a public road impassable. I quite agree to- the remark made by one of the English judges, that the ques- tion whether flagmen are to be required to be kept at every cross-road, is not to be left to the caprice of juries. The statute which confers upon a railroad the right to make a track and work it, by necessary implication, subjects the public to the ordinary risks attendant on the exercise of the privileges thus granted. Under usual circumstances, in the open country, they can run as many trains, and at as great a rate of speed, as are consistent with the safety of their pas- sengers. They are not called on to keep flagmen, under ordi- dinary circumstances, at cross-roads, nor to give any other notice of the approach of their trains than those signals that are prescribed by statute. If greater safeguards are requisite for the safety of the community, and those public agents are to be put under greater restrictions in the exercise of their franchises, such contrivances must proceed from the legislative, and not from the judicial power. But while I thus say that these additional burthens cannot be imposed by the courts upon these companies, I also say, at the same time, and with quite as much emphasis, that the companies may, by their own conduct, impose such burthen* on themselves. If one of them chooses to build its track JUNE TERM, 1873. 535- Pennsylv-ania K. R. Co. v. Matthews. in such a mode as to unnecessarily make the use of a public road which it crosses, greatly dangerous, I think such com- pany, by its own action, must be held to have assumed the obligation of compeasating the public for the increased danger, by the use of additional safeguards. The reasonable and indispensable implication is, that the railway is to be con- structed so as not unnecessarily to interfere with the safe use of the public roads ; and if a railroad, for its own convenience, curves its track as it leaves a deep cut, within a few feet of a highway, and also sees fit to put up buildings close along such track, and by these means, or either of them, heighten- ing the danger in the use of such highway, it seems to me very clear, that such company must be held to have taken upon itself the duty of averting such danger, by the employ- ment of every reasonable precaution within its power. On such occasions as this, or whenever the situatioa is embraced within the principle stated, the presence of a flagman, or 5ome equivalent safeguard can be demanded of the company. The rule is, as I understand it, that when the company has ;reated extra danger, it is bound to use extra precautions, [f, the track is put in a position where the trains, when .'lose to their transit over a public street or road, cannot be seen, this is an extra danger which calls for more than the ordinary cautionary signals. I can see no difficulty in apply- ing this rule; it will, obviously, be very much under the control of the court. The principle thus expressed is the one wdiich, I think, now prevails in the English courts. It was enforced, though witiiout any reference to the theoretical grounds on which the judgment was rendered, in the case of BUbee v. London & Brighton R R. Co., 18 C. B. {N. S.).5S4. But this decision was considered, and the principle involved in it admirably explained in the recent and important case of Cliff v. Mid- land Raihoay Co., L. R., 5 Q. B. 258. In this latter autiiority all general liability in railway companies to pro- vide gate-keepers or flagmen is entirely repudiated ; but, at the same time, their responsibility for not providing against 536 COURT OF ERRORS AND APPEALS. Pennsylvania R. R. Co. v. Matthews. unusual risks, of tlieir own creation, is just as decidedly- maintained. With respect to the case of Beisiegel v. The New York Central, 40 N. Y. 9, which was much relied on, upon the argument, by the couasel of the defendant, I have to remark, that on a careful examination, I do not find that it is at all hostile to the doctrine already declared by me. The decision in that case is to the effect that it cannot be left to a jury to find, from the mere fact that a street is in a populous town and is much used, whether it is incumbent on a railway com- pany, whose track intersects such street, to station a flagman at such point. This would clearly be to leave the whole mat- ter to a jury, without anything to control or guide their judgments. Such a course of proceedings would not be justi- fied by the rule, as above defined by me. The charge of the judge in the present case had no such scope as this; the situ- ation of danger, which it was alleged, was extraordinary, had admittedly been occasioned by the defendant, and it was in view of such a state of things that the instruction was given to the jury that if, under such circumstances, they thought a reasonable protection had not been afforded to " the travel- ing public," by the usual signals, the company were respon- sible for the failure to use other precautions. In the reported case the danger to be provided against was the ordinary dan- ger consequent on the use of the road under ordinary circum- stances; in the case at the circuit the use had been under ex- traordinary circumstances; hence the difference of the rule applicable to each of the cases. That the New York decision did not reach beyond the limit thus defined is manifest from the more recent case, before the same court, of Richardson v. New York Central R. Co., reported in 45 N Y. 846. The facts giving rise to this latter judgment were very similar to those with which we are now dealing. The report states that the track approached the highway through an excavation deep enough to cut off all view of approaching trains, and extending to a point within a few rods of the crossing. The defendant had erected a watch-house, so situated as partially to obstruct the view of the track. The court sustained a JUNE TERM, 1873. 537 Columbia Delaware Bridge Co. v. Geisse. recovery on the ground that, under such circumstances, the defendant was obliged by law to give notice of the coming of its trains in some other manner than by the ordinary signals, that were required by the statute. The reason of the judg- ment being the extraordinarily dangerous position of the railroad with respect to the public highway. And the opinion read in the case declares that the same principle was substantially held in the decision already quoted, of Beisiegel V. New York Central. The judgment should be affirmed. For affirmance — The Chancelloe, Chief Justice, Be- DLE, Dalrimple, Scudder, Woodhull. Clement. Dodd, Green, Lathrop, Lilly. 11 For reversal — None Cited in Del., Lack. & W. R. E. Co. v. ^'o^ey, 9 Vr. 525 ; Bonnell v. Dd., Lack. & W. E. B. Co., 10 Vr. 189 ; Del., Lack. & W. B. B. Co. v. East Orange, 12 Vr. 127; Penna. B. B. Co. v. Bighter, 13 Vr. 180; Klein v. Jewett, 11 C. E. Gr. 474. THE COLUMBIA DELAWARE BRIDGE COMPANY, PLAIN- TIFFS IN ERROR, V. CHRISTIANNA GEISSE ET AL., DE- FENDANTS IN ERROR. Three freeholders appointed under an act passed March 7th, 1839, to ap- praise the damages sustained by the defendants, the owners of a ferry, by the erection of the plaintiffs' bridge, were sworn to appraise the damages sustained by the erection and use of the bridge — Held, that the affidavit was good, and not at variance with the true sense of the act — Held, further, that the freeholders were not restricted by the act to such information as they could obtain from their own view and examination of the property to be appraised, but were left free to determine for themselves, not only what information they would need, but how and from what source they would obtain it — the rules which govern the admissibility and effect of evidence in courts having no- application to such proceedings. Error to the Supreme Court. 538 COURT OF ERRORS AND APPEALS. Columbia Delaware Bridge Co. v. Geisse. For the facts in this case and the proceedings and opinion of the Supreme Court, see 6 Vroom 474. To reverse the judgment founded on this opinion this writ of error was brought. For plaintiffs in error, /. G. Shipman. For defendants, J. Vanatta. The opinion of the court was delivered by WooDHULL, J. This writ of error brings up a judgment of the Supreme Court, dismissing a writ of certiorari by which the plaintiffs in error sought to set aside the proceed- ings of three freeholders, appointed under an act passed March 7th, 1839, to appraise the damages which the defend- ants had sustained by the erection of the plaintiffs' bridge. It is insisted on the part of the plaintiffs in error, that the court below erred in two particulars; first, in holding the aji- praisers' oath to be legal and sufficient; secondly, in holding that, to aid them in making their appraisement, they might lawfully receive from the defendants and examine certain toll 'books and ferry leases. 1. The chief objection urged here against the oath ap- peared to be this : that while the act authorized merely an appraisement of the damages sustained by the erection of the bridge, the oath required an a})praisement of the damages sustained by the erection and use of the bridge. It is urged that the language of the affidavit is a departure from that of the act, and involves a misconstruction of it. But there is nothing in this objection. The affidavit is not at variance with the true sense of the act as settled by this court in a case between these same parties, decided at the June Term, 1871. It was sworn to shortly after, and was probably drawn with reference to that decision. At all events, it does, in fact, conform, in all material respects, to the construction of the act in question, sanctioned by the court in that case. Col. Del. Bridge Co. v. Geisse et al., 6 Vroom 558. JUNE TERM, 1873. 539 Columbia Delaware Bridge Co. v. Geisse. 2. The only remaining question is, whether the freeholders "vvere at liberty to refer, for any purpose, to the leases and toll-books laid before them by the defendants. It was argued on the part of the plaintiff's, that in ascer- taining the damages, the freeholders were restricted to such information as they could obtain from their own view and examination of the property to be appraised. But this propo- sition is neither supported by the language, nor consistent with the purposes of the act. It is true that where lands, or other corporeal things are required to be taken for the purposes of this act, the freehold- ers are to view and examine them. But there is nothing in the act to indicate that the legislature, even with respect to such property, intended that the freeholders should proceed solely upon such view and examination. And in the absence of such restrictive words or other clear induction to the contrary, the only reasonable conclusion, as it seems to me, is that the freeholders were left by this act, and were intended to be left entirely free to determine for themselves, not only what in- formation they would need, but to obtain it from any source and in any way which would be open to a private citizen seeking similar information for the purposes of his own busi- ness. The artificial rules which govern the admissibility and effect of evidence in courts of justice have no application to proceedings of this character. The freeholders might lawfully, as they did, without ob- jection from either side, hear the oral statements and argu- ments of the parties, or those who represented them. They had a perfect right to receive and examine, as they did, the leases and ferry toll-books. And there was not, in my judg- ment, any legal impediment to prevent their receiving the same statements and documents, verified by affidavit, or by the testimony of witnesses sworn in their presence. In this direction, at least, if not fully to this effect, are the decisions in the Supreme Court, and in this court, in the case of Coster v. N. J. R Co., 3 Zab. 227 ; 4 Zab. 730. The result is, that as applied to cases where the sole duty of 540 COURT OF ERRORS A^'D APPEALS. Hobuken Land and ImprovemeiU Cu. v. Mayor, &,c., of Hoboken. tlie appraisers is to ascertaiu the value of land or other tangible property, the views urged by the counsel of the plain- tiffs in error are not sustained by the language of the act, nor by the decisions of our courts; and, a fortiori, that they can- not be maintained, where, as in this case, tl>e chief subject of the appraisement is a franchise, which cannot in the nature of tilings, be viewed and examined in the sen.se of the act, and the value of which the appraisers must therefore of neces- sity ascertain in some other way. The judgment of the Supreme Court is right, and must be afiSrmed, with costs. For affirmance — The Chancellor, Chief Justice, Be- DLE, SCUDDER, WOODHULL, ClEMEXT, GkEEN, LiLLY. 8. For reversal — None. Cited in Columbia Del. Bridge Co. v. Geisse, 9 Vr. 39. THE HOBOKEN LAND AND IMPROVEMENT COMPANY v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF HOBOKEN. 1. Ejectment will lie at the suit of an incorporated city, for lands dedi- cated to a public use for a street. 2. Acceptance of a dedicated street by a formal act or public user, is not essential to cut off the owner from the power of retraction, and sub- ject the dedicated lands to the public use, when in the judgment of the local authorities the wants or convenience of the public require it for that purpose. 3. A street delineated on a dedicating map as extending to a public navi- gable river, will be continued to the new water front obtained by fill- ing in by the owner, under legislative permission. 4. An ordinance of the municipal government adopting a part of a public street for pi-esent use, is not an abandonment of the rest of it. 5. The local corporate authorities liave no power in the absence of legis lative authority, to release the public right in a dedicated street. 6. Lapse of time, however long the public right in a street is suspended, though coupled with an user by the owner, which would otherwise be adverse, will not make title by prescription against the public. JUNE TERM, 1873. 541 Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken. 7. The legislature alone has the power to release the dedicated lands and discharge the public servitude. 8. An act of the legislature incorporating a land and improvement com- pany, and authorizing it to fill up, occupy, possess, and enjoy all land covered with water, fronting and adjoining lands that might be owned by the corporation, and to construct thereon wharves, piers, slips, and other structures for commercial and shipping purposes, will not extin- guish the public right of access to the navigable waters by a' street on land purchased by the company, which, by the dedication, terminated at the high-water line, as it was when the dedication was made ; but the connection of the street with the navigable waters will be con- tinued over lands reclaimed by filling in under such legislative per- mission. 9. The owner of lands on tide water, by a map filed in 1805, dedicated streets and squares to a public use. In 1833, the defendants were incorporated as a land and improvement company. In 1839, they acquired title in fee to the tfact through which the dedicated streets were laid. By the charter, the company was authorized to fill up, occupy, possess, and enjoy all land covered with water, fronting and adjoining lands that might be owned by the corporation, and con- struct thereon wharves, &c., with proviso that it should not be law- ful to fill in or construct any v?harf, &c., immediately in front of lands of any other person, owning to the water, without consent in writing. In the map of dedication. Fourth street was delineated as terminating at the water, and it was found by the jury that the dedi- cation was to high water, as- it was when the map was made. The company filled in a considerable distance beyond that line. In 1857, the city passed an ordinance that Fourth street should extend between certain limits short of the original line of high water. The defend- ants continued in possession of the rest of the street until this action was brought in 1870. In ejectment by the city for that part of the- dedicated street — Held, that the street was, by operation of law, ex- tended to the new water front obtained by filling in, and that the public right of access to the water had not been abandoned or lost by lapse of time, or re)>iased. On error to the Supreme Court, This was an action of ejectment. The case came on to trial at the Hudson Circuit, at the Term of October, 1871, before Justice Bedle and a jury. Several exceptions were taken during the trial of the cause, and the judgment of the Supreme Court was removed into this court by writ of error. VoT.. VII. 34 542 COURT OF ERRORS AND APPEALS. Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken. The facts of the case fully appear in the opinion of the court. For the plaintiffs in error, F. B. Ogden, I. W. Scudder and B. Williamson. For the defendants, J. C. Besson and T. N. McCarter. The opinion of the court was delivered by Depue, J. The action in this case is in ejectment at the suit of the city, to recover a strip of land within the lines of Fourth street, in the city of Hoboken, between River street and the line of low water in the Hudson river, as it was when the suit was commenced. A part of the land in dispute was land above the ancient high-water line, but the greater por- tion was such as had been reclaimed by the defendants from .the tide waters of the river. The tract of land on which the city has been built, was formerly the pro[)erty of Col. John Stevens, and contained, originally, 564 acres. In 1804, Col. Stevens caused to be auade " a plan of the new city of Hoboken, in the county of Bergen," known as Loss' maj), which was filed in the clerk's office of the county of Bergen, in April, 1805. Tiie testi- mony leaves no room for a doubt that a dedication was effected of the streets and squares delineated on this map. Among the streets so delineated wf»s Fourth street, which was laid ■westerly from and at a right angle with the river. The jury found, as a question of fact, that Fourth street, as laid on Loss' map, extended to ordinary high water, as it was at the time the map was made. The defendants were incorporated by an act passed on the 21st of February, 1838. By the fourth section of the incor- porating act, they were empowered to purchase, fill up, occupy, possess, and enjoy all land covered with water fronting and adjoining the lands that might be owned by them, and to con- struct thereon wharves, harbors, piers, and slips, and all other structures requisite or proper for commercial and shipping JUNE TERM, 1873. 543 Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken. purposes : provided, that it should not be lawful for the com- pany to fill up any such land covered with water, nor to con- struct any dock, pier or M'harf immediately in front of the lands of any other person owning down to the water, without the consent of such person first had in writing. Acts 1838, p. 95. In May, 1839, the defendants, by a deed of conveyance, executed by Edwin A. Stevens and others, became the owners in fee of the entire tract, excepting such parts as had pre- viously been conveyed by Col. Stevens in his lifetime, and by Edwin A. Stevens whilst he was the owner. Subsequent to this conveyance, the company under the powers in their charter, filled in, in front of and adjacent to the lines of the street, a considerable distance beyond the line of high water, as it existed when the Loss map was made. The jury, under the charge of the court, awarded to the plaintiffs the strip of land within the lines of Fourth street from River street, and extended over the land acquired by reclamation between the old high water line and the new line of high water, obtained by the filling in. A number of exceptions were taken at the circuit to the charge of the court, and the refusal to charge as requested. The exceptions are in substance comprised in the points here- inafter considered. It was contended by the defendants' counsel that the plain- tiffs had not such right or title to the premises as would enable them to maintain ejectment. The action of ejectment is a possessory action. All that is involved in it is the right of possession, and the party, whether plaintiff or defendant, in whom is vested the right of posses- sion, is entitled to succeed in the action, without regard to where the ulticiate fee may be. On this principle in Du7n~ mer v, J)en, Spencer 86, it was held that a municipal corpora- tina might bring ejectment to recover a square situate within the corporate limits, which had been dedicated to that public use. In a later case, the plaintiffs in this action recovered in ejectment a public square in the city of Hoboken, which had 544 COURT OF ERRORS AND APPEALS. Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken. been dedicated by the same instrument of dedication which is in controversy in this cause. Methodist Church v. City of Hoboken, 4 Vroom 13. In the first of these cases tlie action was held to be appropriate on the ground that by force of an act of incorporation which gave to the municipal authorities the usual powers over streets, squares and public places, the rights of the public in common property became vested in the corporation. In the latter case, the broad doctrine was adopted that the right to maintain appropriate actions for the vindication of the public right in lands dedicated to a public use was lodged in the local public authorities. In neither of these eases had an ordinance appropriating the lands to the proposed public use, preceded the commencement of the action. Where the public easement is such that possession, exclu- sive of any interference by the owner of the fee, is essential for its improvement, regulation and enjoyment, the only ap- propriate action to obtain the possession is ejectment. To deny this form of relief and remit the public to a remedy by indictment for a nuisance, would result in subjecting public rights in property to the varying moods of grand juries. By the charter of the city, its municipal authorities are- charged with duties in relation to opening streets and paving and putting them in condition for public use, and amending and repairing, which require a possession as exclusive as in cases of public squares. Whatever be the rule with respect to ordinary country highways, or as between the owner of the fee and a mere trespasser, it is entirely consistent with the principles on which the action of ejectment is founded that ejectment should lie at the suit of a municipal corporation to recover lands over which a street in law exists. The Supreme Court of the United States has decided that a municipal corporation may defend ejectment at the suit of the owner of the fee, by setting up the right of possession in a street nr common, under the rights acquired by the public in the dedication to a public use. Barclay v. Howell's Les- sees, 6 Peters 498; Cincinnati v. White, 10 lb. 631. The JUNE TERM, 1873. 545 Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken. rule is otherwise in case the servitude is a mere private ease- ment. Morgan V. Moore, 3 Gray 319. If the right of pos- session under a public easement may be made a defence in ejectment, no reason can be advanced why it should not be also available to support an action to recover the possession. No difficulties or embarrassments in the way of the prose- cution of the suit will arise from that section of the practice act which gives to a judgment in ejectment a conclusive effect upon the right of possession. Nix. Dig. 744, § 77. ' The operation of that section is only upon the right of possession which existed at the termination of the suit, and it will not conclude the defeated party as to a right of possession subse- quently accruing. Upon any other hypothesis, ejectment by a tenant for years, or any estate less than a fee against the reversioner, would become disused by force of this section, as the plaintiff, at the trial, could not show a right of posses- sion co-extensive in duration with the ultimate fee. As between the parties to this suit, if the public use shall in th€ future be extinguished by competent authority, a right of possession will thereupon arise in the defendants from their title in fee, which will enable them to recover possession without regard to the effect of the judgment in the present action. The other exceptions relate to the merits of the controversy. It was argued that the dedication had not been consumma- ted when the suit was brought, by reason of the absence of an acceptance or user by the public of that part of the street which is in controversy. That question has been set at rest in the courts of this state. Acceptance by a formal adoption by the public authorities or by public user is neces- sary to impose on the public the duty to amend or repair, but is not essential to the consummation of the dedication so as to cut off the owner from the power of retraction or sub- ject the dedicated lands to the public use, whenever, in the estimation of the local authorities, the wants or convenience of the public require it for that purpose. Dummer v. Den; Methodist Church v. Hoboken ; Mayor of Jersey City v. Mor- 546 COURT OF ERRORS AND APPEALS. Hoboken Land and Improvement Co. v. Ma-yor, &c., of Hoboken. 7'is Canal, 1 Beas. 553. But if recognition and adoption by public authority be essential to that end, the case furnishes conclusive proof of such public action. A city containing a pojmlation of several thousands has grown up on the terri- tory included in the scheme of dedication, of which this street is part. In addition thereto. Loss' map and the streets thereon delineated, including the street in controversy, by name, have received repeated recognition by legislative action. Acts, 1838, j3. 94; 1855, p. 465; 1858, p. 233; preamble, lS58,p. 369. The main contention of the defendants' counsel on the argument was with respect to the effect of the dedication, which was proved and found by the jury, as regards the right of the public to have the street extended over the lands re- claimed beyond the original high water mark. The title to the soil between the high water line, as shown on Loss' map, and the present high water line, was origi- nally in the state. It became the property of the defendants' by reclamation under the powers contained in their charter. The contention was that it was not competent for Col. Stevens to impress upon lands, the property of the state, a servitude such as the plaintiffs are seeking to have them appropriated to, and that when the defendants acquired title under legisla- tive permission, they were entitled to hold such lands unim- paired by the servitude imposed on the upland. The first branch of this proposition is conceded. But whether it will be available to his grantees to defeat the present claim of the dty, will depend upon considerations incident to the nature and effect of the original dedication. The street as dedicated extended to the high water mark, as it then was. There is no street shown on the map, or in fact, along the river in whicli Fourth street might terminate. River street, which is the first street crossing Fourth street parallel with the river, is laid down on the map at a distance of about seventy-five feet from the high water line, as it appears on the Loss map. The location of Fourth street, with its terminus at the water,, demonstrates conclusively that its purpose was to provide a JUNE TERM, 1873. 547 Hoboken Land and Improvement Co. v. Major, &c., of Hoboken. means of access for the public to the navigable waters, aiul such was the scope and purpose of the dedication. Although the doctrine of dedication is founded on principles which are peculiar, yet it will be seen on an analysis and comparison of the cases, that it differs from a grant only in the mode and the means by which a dedication is effected. Dedication is distinguishable from a grant in that no special grantee need be in existence to accept the gift, and contrary to the rules of the common law, an interest in lands may thereby be created without the intervention of the ordinary common law assurances. The intention of the donor may be gathered from his acts and declarations, resting only in parol. But when that intention is once ascertained, the character and scope of the dedication are as unalterably fixed as if the gift had been consummated by a formal instrument of grant. The same legal incidents and consequences attach, and the donor is equally concluded from any act which will impair the effect of the gift. It was in this view of the nature and effect of a dedication, that the Supreme Court of the United States applied to the public right, acquired by dedication, the rule of construction of private grants, that a grant of land bounded on a stream which has gradsially changed its course by allu- vial formations, holds to the new^ boundary, including the accumulated soil. New Orleans v. The United States, 10 Peters 717. On the same principle, this court held that a dedicated street terminating at the waters of a navigable river, is con- tinued to the new water front obtained by filling in, in front of the shore, by the owner of the land over which a street was dedicated. Jersey City v, Morris Canal, 1 Beas. 548. The criticism by counsel on the case just cited was, that the opinion of Mr. Justice Whelpley, on this point, not being necessary for the decision of the cause, was mere obiter dictum. It was not so understood by Chancellor Green, in Newark Lime and Cement Co. v. The Mayor of Newark, 2 McCarter 64, in which it was distinctly held that the survey of a highway to a navigable river carried the highway to the river, wherever it is found, and that if the shore is extended by 648 COURT OF ERRORS AND APPEALS. Hoboken Laud and Improvement Co. v. Mayor, &c., of Hoboken. alluvial deposit, or by filling in by the pro{)rietor, the public easement is, by operation of law, extended from its former terminus over the new made land to the water. In both these cases. The People v. Lambier, 5 Denio 9, a case in many respects similar to that now before tiie court, was cited with approbation. In Barclay v. Howell's Lessees, the dedicated street lay along the banks of the Monongahela, which was a navigable river. In the plan of dedication, the northerly line of the street only was marked; and on the south of that line a space was left open to the river. The width of the street was undefined, and nothing appeared on the plan to limit its width short of the river. In a controversy between the right of the city and the owner of the fee in relation to a strip of land along the river, the claim of the city was sus- tained. In the opinion of the court, Mr. Justice McLean declared that it was of no importance, whether the dedication was to high or low water mark ; that with boundary of the street on a public river, the public right in the street was limited only by the public right in the navigable waters, and that to contend that between the boundary Of the street and the public right in the river, "a private and hostile right could exist, would not only be unreasonable, but against law." In my judgment, these cases declare the law correctly on this subject. Tiie essence of the gift is the means of access to the public waters of the river, the adv.antage of which in- dued I lie growth of a city, by reason of its adjacency and connection with the important navigable waters of the Hud- son, which gave a peculiar commercial value to the lots put in the market by the dedication, which can only be preserved by maintaining unbroken the connection of the streets with the navigable river. Any obstructions of that access would not only derogate from the effect of the gift, but would also be a public nuisance. The remaining exceptions are based on the assumption that tlie ea,31 AGREEMENT. See Contract. AMENDMENT. 1. A judge at a circuit, on a Supreme Court issue, may allow an amend- ment, changing the action from covenant to assumpsit. United States Watch Co. V. Learned, 429 2. Such act is discretionary, and is not the subject of a writ of error. lb. See New Trial. AMERCEMENT. 1. The mere fact of the non-return of an execution is not suflBcient to justify an amercement, yet, if an inventory should be filed, there being goods upon which it might operate with effect, the fact that there is none filed, is ground for amercement. Todd & Rafferty v. Iloagland et al., 352 2. Where adverse claim is set up to' property levied on by a sheriff^ audi the plaintiff's attorney and the! sheriff are in correspondence as to the action to be taken in the prem-j ises, the latter asking and the for-i mer promising instruittions, the' sheriff' is not liable to amerce-i ment for not proceeding to sale until he shall have displayed or disregarded positive, reasonable, and lawful directions to that end. Kemhl^s Adm'rs v. Harris, 526 ASSESSMENT FOR BENEFITS. expense of street improvementa should be assessed upon and paid by the lands benefited, in propor- tion to the benefit received. An assessment which, by the report of the commissioners, is shown to have been made by assessing each lot with the amount of earth de- posited in front of it, at the price paid the contractor for the work, is not warranted by the law, and will not support a title made under a sale for the payment of the assessment. State, Baxter, pros., v. Mayor and Aldermen of Jersey City, 188 . The writ having been allowed after the work was completed, it is there- fore dismissed, so far as it brings up the ordinance complained of. State, Hoboken Land and Improve- ment Co. v. Mayor, &c., of Hobo- ken, 291 . It need not appear, affirmatively, that commissioners of assessment, who are permanent officers of the city, are freeholders, resident in the city, as required by section tiftj-two of the charter. lb. . It must appear by the commission- ers' report, that they examined into the whole matter, and that they imposed the burdens in pro- portion to the benefits received. lb. , Burdens in excess of the benefits cannot be imposed exclusively upon the land-owners, subject to assessment. If the lands within the circle of benefits are not bene- fited as much as the improvement costs, the excess must be borne by general taxation. lb. . Where public bodies are entrusted, by statute, with powers of a gen- eral nature, it must appear, from an inspection of all their proceed- ings, when properly before the court, that they have kept strictly within their limited sphere. Slate, Wilkinson el al., v. Inhabitants of Trenton, 499 1. The charter of Jersey City, of 7. It is the duty of the relator to 1851, provided that the entire I bring up all the proceedings, but INDEX 567 a return that all proceedings are sent up, imposes on the defendant the burden of supplying any omis- Bion. lb. 8. A construction will be adopted to sustain rather than to defeat the proceedings, where it can fairly be done. Ih, 9. Parties to be afTected by such proceedings entitled to notice, whether the statute directs notice to be given or not. lb. 10. To set aside an assessment for inequality, it must be shown that commissioners have adopted an erroneous principle. lb. 11. If, up to the point of imposing the assessment for benefits, all the proceedings have been stx-ictly cor- rect, a party cannot complain that a larger assessment has not been laid upon him. lb. 12. If the land owner permits large sums of money to be expended by the city after the assessment is made, before he applies for a certi- orari, the writ should not be allow- ed where no re-assessment is pro- vided for ; and if allowed, it should be dismissed by the Supreme Court when the facts become known. lb. 13. The action of commissioners in making assessments of damages and benefits for improvements, is judicial, and a commissioner inter- ested in the assessment, otherwise than as a general tax payer, is dis- qualified from acting, on the fun-! damental maxim, that no man can be a judge in his own cause. State, Winans, pros., v. Orane, Collector,' 394j 14. The effect of his interest is not confined alone to the commis-' sioners interested, for the action of i the whole body of commissioners is voidable, if the party interested took part in it, and even if there was a majority of the commis-| sioners left competent to act with- out his vote. Jb, 15."The fact that all p«wer being lodged in the commissioners to lav out roads in the township, and that none could be laid if it hap- pened_ that a majority of them were interested, unless they were permitted to act, will not. create such a legal necessity as to have interested commissioners sit in judgment on their own cases. lb. See Public Improvement, 1, 2, 3. ASSESSMENT OF TAXES. See Taxation. Taxes. ATTACHMENT. 1. A judgment obtained in a pro- ceeding, by attachment against a non-resident debtor, who does not appear to siic'h suit, will not form a legal foundation for an action. Miller v. Dangnn, 21 2. The proceeding is in rem, and has no effect except with respect to the property attached. lb. 3. The attachment act does not ap- point the mode of tiie sheriff's return of the writ, and conse- quently his certificate that he has duly served the process, accom- panied by an inventory and ap- praisement, constitutes, standing alone and unexplained, a valid service. Boyd v. King, 134 4. An attachment is proper whenever the claim is founded in contract and special bail, as of course, could be required at common law, lb. 5. Query — Can the interest of a ven- dee in lands under an agreement to purchase be attached ? lb. 568 INDEX. €. The sheriff's retnrn in this case construed. lb. 7. The proceedings under the attach- ment act being special and statu- tory, the proper remedy for review is by certiorari. Curtis v. Steever, 304 8. Where tlie return to the writ of attachment shows that shares of stock, standing in the name of a third person, and in the name of the debtor's wife, have been taken, the attachment will not be set aside on motion, as to these shares, where it is alleged there was a fraudulent transfer by the debtor to hinder, delay and defraud credi- tors. Ih. 9. The first process in personal ac- tions in any of the courts of law of this state, is a summons er capias.^ The writ of attacluuent is an ex-j ceptional and extraordinary reme-l dy given by the statute. Leonard, V. Stout, 370 10. The practical test, in case of for- eign attachment, is whether a legal service of a summons can be made on the debtor, at his dwell- ing-house or usual place of abode, in this state. If it can, the extra- ordinary writ of attachment can- not be used. lb. 11. To constitute a residence in the state, within the attachment act, it must be the debtors home where he then is, or to which, if he be absent, he has the intention of re- turning, and where, in his absence, he is represented by some member of his family, or some one who can answer for him and communi- cate with him. lb. 12. In this case the debtor had two places of a-bode — one in New York and one in New Jersey. The deci- sive points here are, that he votes in this state, and refused to vote in New York ; has often expressed his intention to reside here; that when the attachment issued, per- sons regarded by him as members of his family were living at his home in Morris county ; that this house wa.s kept open, and often visited by him and his wife while they were living in New York, through the winter, lb. BANKRUPT AND BANK- RUPTCY. See Insolvent Laws. BASTARDY. 1. Where, in a matter of bastardy, the finding of the jury was " guilty," and the justices made the record of it in these words : " That the defendant, S. G., was guilty, and the putative father of the said bastard child" — iJdd, that the verdict of guilty could mean noth- ing else than that the defendant was guilty of the accusation; or, in other w^ords, the father of the cliild, and that the justices were justified in making the entry in form, according to the necessary meaning of the finding. Ga.'ikill v. Overseer of Poor of Dovme, 356 2. Where the order of bastardy de- termines that the child is charge- able to the township, this court will not, in the absence of evidence of payment, or agreement to pay, on the part of the township, for the support of the mother and child, conclude that the child was not chargeable to the township, contrary to what appears on the face of the order. lb. BILL OF EXCEPTIONS. Regularly a bill of exceptions should be drawn up and sealed during the trial. The practice has been for the judge, on the exception being taken and a minute thereof made, to grant time for the pre- paration of a formal bill of excep- tions, and if the bill be presented within a reasonable time, to aflSx his seal to it: when this is done it INDEX. 569 relates back as if the bill was seal ed at the trial. State v. Holmes, 62 BOAKD OF ASSESSORS. 1. When the board of assessors meet under pi. 95 of the tax act, (Nix. Dig. 953,) the township to wliose quota of tax an addition is pro- posed to be made, cannot offer evidence to rebut any alleged in- equality. The assessors must de termine upon their own knowledge the existence of any inequality. Slate, Weehawken Township, pros., V. Roe, Clerk, &c., 86 2. Before they can interfere at all with any duplicate, they must de- cide that the valuation contained in it is relatively less than the value of other property in the county, and then they correct it as to themselves shall seem iust and proper I b. BROKER. 1 . A broker procured a customer for another broker, with the under- standing that the latter should charge for the procuring a loan of , money at a rate prohibited by the statute, and that such commissions should be divided ; held, that a suit would not lie in behalf of the for- mer broker for his share of such commissions against the latter broker to whom they had been paid by the customer. Gregory ads. Wilsan, 315 2. To entitle a broker to commissions for services in negotiating a sale, the services must be rendered under an employment by his prin- cipal. Services rendered as a mere volunteer, without any em- ployment, express or implied, will give no right to commissions. Hinds V. Henry, 328 3. The general rule is, that the righ' of a broker to commissions is com- plete when he has procured a pur- chaser able and willing to conclude a bargain on the terms on which the broker was authorized to sell. lb. 4. This rule rests on the general usages of the business, and is liable to be modified or superseded by a special usage in relation to the particular transaction, or by spe- cial agreement between the parties. lb. 5. A broker may, by special agree- ment with his principal, so con- tract as to make his compensation dependent on a contingency which his efforts cannot control, even though it relates to the acts of his principal. lb. CAMDEN AND AMBOY R. R. & T. COMPANY. 1. Under the charter of the Camden and Amboy Railroad and Trans- portation Company, the exemption from taxation extends to all prop- erty " suitable and proper for car- rying into execution the powers granted to the corporate body." State, Camden aud Amboy R. R. & T. Co., pros., V. Woodruff, 94 2. The judgment of the court must be passed upon the question of necessity in each given case under the facts adduced to sliow the pui-- poses to which the lands are, or are to be, devoted. lb. 3. Lands used by the prosecutors for the necessary purposes of the rail- road company are exempt, although the title is in the Delaware aud Raritan Canal Company, for, by the act of February 15th, 1831, which consolidates these compa- nies, there is an absolute commu- nity of interest between them, and so far as taxation is concerned, it matters not to which company the estate may have been conveyed. lb. CASES AFFIRMED. 1. Bray v. Taylor. From Supreme Court. 3 Vrormi 182. 415 570 INDEX 2 State, Shreve, pros., v. Crossley, Collector of Trenton. From Su- preme Court. June Term, 1867. 4251 3. United States Watch Company v. Learned. From Supreme Court. 429, 4. State, Brittiu et al., pros., v. Blake et al. From Supreme Court. 6 Vroom 208. 443 5. Edwards et al. v. Supreme Court, Elliott. From' 6 Vroom 265. 449 6. Geraghty et al. v. Hackley. From Supreme Court. 5 Vroom 332. 459 7. Downey v. Borden. From Su-| preme Court. 6 Vroom 74. 460: 8. State, Morris Canal and Banking! Co., pros., V. Haight, Collector.! From Supreme Court. 6 Vroom 178. 471 9. State, Wilkinson et al., pros., v. Inhabitants of City of Trenton. From Supreme Court. 6 Vroom 435. 499; 10. Haney and Scattergood v. Comp-j ton. From Cumberland Circuitj Court. 507: 11. Pennsylvania E. R. Co. v, Mat-[ tiiews. From Supreme Court. 6311 i 12. Columbia Delaware Bridge Co, V. Geisse. From Supreme Court. 6 Vroom 474, 537 13. Hoboken Land and Improvement Co. V. Mayor, &c., of Hoboken. From Supreme Court. 540 14. Montclair R. R, Co. v. Benson et al. From Essex Circuit Court, 557, CASES REVERSED, 1. State, Rogers, pros., v. Troth et al. From Supreme Court, 5 Vroom 377. 422 Sisson V, Donnelly. From Su- preme ("ourt, 432 . State, Protestant Foster Home So- ciety, pros., V. Mayor, &c., of New- ark. From Supreme Court. 6 Vroom 157. 478 . Peterson and Wife v. Mulford. From Cumberland Circuit Court. 481 . Mayor, &c., of Hoboken, v. Bailey. From Supreme Court. 490 . Kemble's Administrators v. Har- ris, From Supreme Court. 6 Vroom 392, 526 .Morris and Essex R. R. Co, \, Slate. From Supreme Court. 553 CERTIORARI 1. Certiorari will not lie in favor of prosecutors, who have sustained no damage peculiar to themselves. Slate, Monltjomery, pros., v. Inhab- itants of Trenton, 79 2. Where three terms of the court have intervened between the re- turn of a public road and an ap- plication for a certiorari, and the road in the meantime has been opened and worked, an allocatur will not be granted, and if one has been ordered,* it will be dismissed when tlie facts are brought to the knowledge of the court. State, Charlier, pros., v. Woodruff, 204 3. The proceedings under the at- tachment act being special and statutory, the proper remedy for review is by certiorari. Curtis v, Steever, 304 4. If the land owner permits large sums of money to be expended by the city after the assessment is made before he applies for a certi- orari, the writ should not be al- lowed where no re-assessment is provided for ; and if allowed, it sliould be dismissed by the Su- preme Court when the facta be- come known. State, Wilkinson el INDEX 57L a/., pros., V. Inhabitants of Trenton, 500 CHARTER OF CITY OF HOBO- KEN. 1. Where the report of assessment commissioners for street improve-i ments was taken fi'om the file of the city council and returned to the commissioners for amend- ments upon objections made by property owners, council cannot recall and contirm it against the protest of the commissioners with- out amendment, and without no- tice. State, Board et ai, pros., v. City of Hoboken, 378 2. The contractor under proposals must be held to his bid — not al- lowed to underbid others and after- wards receive more. The excess will be an illegal charge against! the land owners. lb.\ 3. Where the assessment is set aside,' new commissioners will be ap-j pointed by the court, under the charter. lb.\ CHARTER OF JERSEY CITY.j See Construction of Statutes, 1, 2, 3, 4. , CHARTER OF CITY OF NEW- ARK. An assessment of the costs, &c., of regrading a street under the act of March 21st, 1866, to revise and amend the charter of the city of Newark not sustained, — 1. Because it does not appear by the report and proceedings sent up that the assessment was made upon each owner in the proportion required by the act. State, Little, pros., V. Mayor, &c., of Newark, 170 2. Because while it appeared that two of the three commissioners appointed to make the assessment possessed the requisite qualitica- tions, this did not appear as to the third one. /ft. CHARTER OF CITY OF PET- ERSON. 1. An ordinance to take up, &c., Ful- ton street, and an ordinance to grade the same having been pars- ed, &c., but without the notice re- quired by the ninety-nintli section lif the supplement to the charter of the city of Paterson, approved March 25th, 1869 — Seld, that however fatal the ol)jection as to the want of notice might have been if promptly taken and acted upon by the prosecutors, it cannot be allowed to prevail after con- siderable delay, under circum- stances rendering it probable that they were aware of the inception and progress of the work, and especially after the improvement has been completed and paid for by the city. State, Hampson, pros , V. Mayor and Aldermen of Paterson, 15'.i 2. The expense of grading, &c., under the ninety-eighth section of said supplement, is to be assessed, &c., by commissioners possessing the qualifications required by sections 104 and 110, and on the same prin- ciple of apportionment adopted by sections 102 and 104. lb. 3. The commissioners having report- ed that they had made a just and equitable assessment, &c., among the property owners, &c., accord- ing to tiie advantages, or benefits, &c. ; but it being manifest from the schedule accompanying the re- port as well as from the testimony, that there was in fact no exercise of judgment by the commissioners, their assessment upon each owner being governed solely by the ex- tent of his frontage — Held, that an assessment so maile cannot be sus- tained, lb. 4. By the said amended charter, all contracts, &c., are to be given to 572 INDEX. the lowest bidder ; the contract for grading, &c., in this case was awarded to H. the lowest bidder, at fifteen cents per cubic yard ; by the contract as reduced to writing and executed by H. and the city,| the grading was to be done "for the price and sum of fifteen cents per cubic yard for earth excava- tion, and two dollars and fifty cents per cubic yard for all rock excava- tion," the contract being so drawn in pursuance of an ordinance, the second section of whicli provides as follows: "That hereafter, when a contract is made by the city of j Paterson for grading streets or ex-; cavating earth, and no price is mentioned for rock work, there! shall be paid to contractors twoj dollars and fifty cents for eachl cubic yard of rock found, provided said rock shall exceed one cubic yard in size." — Held, that this sec- tion of the ordinance being in direct conflict with a plain provi- sion of the charter, both it and the written agreement made in pur- suance of it, are utterly void. lb. CHAR lER OF CITY OF TREN- TON. 1. The common council of the city of Trenton have no authority un der the general power to regulate streets, to grant to an individual license to lay a railroad track across the public street for his own use. State, Montgomery, pros., v. Inhabitants of Trenton, 79 2. Streets and highways are intended for the common and equal benefit of all citizens, to which end they must be regulated. lb. 3. The common council cannot dele- gate to the street commissioner the power of ascertaining the bound- aries of streets, where they are in doubt. This is in the nature of a judicial function, and must be ex- ercised by the council by ordi- nance, with special reference to the street to be opened, and a mode provided in which parties to be aflected may be heard. Stale, Bo- dine, pros., V. Common Council of Trenton, 198 CITY OF TRENTON. The 78th section of the road act [Nixon 836) does not apply to the city of Trenton. Stale, Bodine, pros., V. Common Council of Trenton, 198 COMMISSIONS. See Broker, 2, 3, 4, 5. COMMISSIONERS OF APPEAL. The commissioners of appeal in cases of taxation, have a right to recon- sider their opinion until such opinion has been oflBcially pro- mulgated by them. State, Shreve, pros., V. Crossley, Collector of Tren- ton, 425 COMMON CARRIBK, See Contract, 13, CONDEMNATION OF LANDS. l.The charter of the E. & A. Co., distinguishes between the owner and person interested in the pro- ceedings to condemn lands. By owner is meant the person having some legal estate which the com- pany proposes by the condemna- tion to acquire. Under the ex- pression, "persons interested," are included not only the owner whose estate it is intended to acquire, but also other persons having some independent right or interest therein, or lien or encumbrance thereon. Slate, National Railway Co., pros., V. Easton and. Amboy B. B.Co., 181 2. The proceeding for condemnation INDEX. 573 is strictly between the company and the persons who are made parties to it. The omission of the owner of any estate in the lands or part owner of the fee, or the holder of any encumbrance will not in- validate the proceeding as against such persons as are made parties The consequence will only be that as against the omitted persons the condemnation will be nugatory lb 3. The trustee of a trust in lands not executed by the statute, is the proper party to proceedings to condemn the lands ; the cestui que trust need not be made a party. lb. 4. The condemnation of lands owned by one railroad company —not used for railroad purposes — by another company for use in the construc- tion of a railroad, will be unavail- able to condemn the franchises of the former. All that will be ac- quired will be a right of way, and incidentally, the power to cross the track of the former where the routes of the two roads cross each other. lb. CONDITIONS PKECEDENT. 1. A general averment of the per- formance, on the part of the plain- tiff, of the terms of a contract, re- quiring him to perform conditions precedent, is sufhcient, by virtue of the twenty-fifth section of the supplement to the practice act. VreeUind v. Beekman, 13 2. The waiver of conditions prece- dent must he strictly proved ; con- tra as to conditions subsequent. Mayor and Aldermen of Jersey Oily ads. Fitzpatrick, 120 CONSTITUTION AND CONSTI- TUTIONAL LAW. 1. The Chatham local option law de Glares the retail of ardent spirits without license to be unlawful, and provides that no license shall! Vol. VII. 36 be granted if a majority vote of the township is for " no license." Held, that the act is constitutional. State, ex rel. Sandford, v. Court of Common Pleas of Morris, 72 . The right to remove a slate officer for misbehavior in office, does not appertain to the executive office. Such act is judicial, and belongs to the court of impeachments. State, ex rel. Police Commissioners of Jersey City, v. Uritchard et al., 101 . Certain police commissioners of Jersey City, appointed by statute, having been convicted upon indict- ment of conspiracy to cheat the city, and tlie governor having de- clared their offices to be thereby vacated, and having appointed their successors — Held, that such executive action was illegal and void. lb. . The power of the legislature over corporations created for purposes of lociil government, is supreme. The legislature may alter or re- peal the charter at any time, iu its discretion. The only limita- tion on the operation of such, repeal is^ as to creditors, that it shall not operate to impair the obligation of existing contracts, or deprive them oi any remedy for enforcing such contracts that ex- isted when they were made. Rader V. Southeasterly Road District of Union, 27a . Any legislation, the effect of which, is to deprive a party of the power to resort to the person or any pro- perty which, as the law was when the contract was made, might have been taken or applied in satisfac- tion of his demand, is within the prohibition of paragraph 3, section 7, Article IV, of the Constitution of New Jersey, which prohibits the legislature from passing any law "depriving a party of any remedy for enforcing a contract which existed when the contract was made." But the legislature may make laws incidentally affect- ing the pursuit of remedies for enforcing existing contracts, such as regulating the admission of evi- 574 INDEX. dence, the course of practice, and similar acts, altering in mere mat- iters of form the means of rt^alizing tlie l)enetiis of a contract, leaving 'the substance of the remedy un- affected, lb. '6. The right to recover costs is no part of the remedy which inheres in the contract. That light is purely incidental, and depends on the state of the law when the suit is determined. Until judgment pronounced, the right to costs does not become vested. The legisla- ture may, after contract made and even pending suit on it, constitu- tionally pass laws which change ithe costs recoverable, or deprive the party of costs. 1 b. 7. In 1871 a portion of the township of Union was created a separate ' .corporation, for the purpose of flaying out, opening, and improving streets. The work was to be ex- ecuted under the supervision of -commissioners, who were author- ized to borrow money and issue • bonds of the corporation, and to cause assessments to be made on .lands benefited, to defray the ex- .p enses. In 1872 the act of incor- cporation was repealed. By the ^a■epealing act it was provided, that the repeal should not affect or im- ;pair any legal contract of the com- imissioners, or any indebtedness >contr;icted for improvements, and the township committee of the township of U. was autliorized to ■compromise or complete such con- rtracts, and to issue township bonds to provitie funds therefor, and to make and collect assessments to pay expenses, in the same manner as the commissioners had been empowered — Held, that the repeal- ing act was constitutional, as affect- ing a creditor who had furnished supplies to the commissioners be- fore the repeal, although an action for the same was pending when the repealer became a law. lb. S. The act for the collection of de- mands against ships, steamboats, and other vessels, [Nix. Dig. 576,) does not conflict with the constitu- .tion of New Jersey, by violating the right of trial by jury. Ed- wards et ul. V. Elliott, 449 9. A statute which simply prohibits non-residents on board a vessel from subverting the soil of the state and carrying away her pro- perty and that of her grantees, leaving such vessel free to pass and repass, and go whithersoever those in charge of lier desire, is not a regulation of commerce with foieign nations or among the states. llaneif and Scattergood v. Chmplon, 507 10. Such a statute is for the protec- tion of property, and is at most an internal police regulation entirely within the competency of the state to adopt. lb. 11. A statute of this sta,te prohibiting citizens of another state from com- ing upon the lands under water belonging to the state, and subvert- ing the soil and interfering with the property there found, is not a violation of that clause of* the constitution of the United States which ordains that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. lb. 12. When the proceeding is in rem against property in a foreign juris- diction, found in the possession of the owner or his agent, and in use for an unlawfid purpose which carries a forfeiture of the .same, the seizure thereof without judicial process first issued, preparatory to regular trial and condemnation, is not a deprivation of property without due process of law. lb. CONSTRUCTION STATUTES. OF 1. Where, under the sixty-ninth sec tion of the charter of Jersey City the power is given to the board of public works " to purchase sitej for, and purchase or construct t city hall, school-houses, engine- house.s, &c., and such other build- ings as may be necessary for the purposes of this act, &c." — Held, INDEX. 575 1. That, the legislature did not in tend by these provisions to invest the board of public works with an arbitrary or unlimited power to purchase either land or buildings. /Stale, Gregory et al... pros., v. Mayor and Aldermen of Jersey City, 166 "2. Every lawful exercise of this power to purchase laud, necessarily involves the determination by the board of two things: first, that some particular building is neces sary ; second, the quantity of land required as a site for such build- ing, lb 3. A resolution of said board to purchase a tract of about nine acres of land, "to be used as a site fur the location of a city hall and other city buildings," is unauthor- ized, for there is no determination of the board that so large a tract is needed for the location and proper use of a city hall, and the juilgment of the board really was, that the tract was sufficient not only for a city hall, but for other city buildings. lb. 4. The legislature did not intend to ■confer on the board of public works the power to purchase a site or sites for buildings not desig- nated or even known. lb 2. The effect of a repealing clause upon a previous statute, which confers a special jurisdiction, is to end all proceedings under it which are not closed, unless there be an exception in the repealing statute. State, Copeland, pros., v. Village of Passaic, 382 3. Where commissioners »re ap- pointed to asse-'S damages for opening streets, &c., and a new act is passed substituting a new method of procedure, giving an appeal to other commissioners to be appointed by a justice of the Supreme Court and repealing the former act without exception, an appointment of commissioners for review under the substituted law, will be irregular. lb. 4. Such irregularity may be cured as well by a subsequent statute as by a saving clause in the repealing act. lb. 5. When the subsequent act remedies all defective assessments, where they were properly made in proportion to the benefits received, if it ap- pears that the party assessed had no notice, was not present, or had no opportunity of being heard be- fore the commissioners, it will not be assumed, in the absence of proof, that such person was prop- erly ;issessed in proportion to the benefits received, although the commissioners do so report. lb. 6. Under this charter, the entire as- sessment may be set aside, and new commissioners appointed to re-assess the damages. Jb. 7. Where by the act of March 26th, 1872, constituting a board of com- missioners of highways of the township of Cranford, to consist of five persons, freeholders and residents in the township, for the purpose of laying out, &c., public roads, it was provided by section 3, that the said commissioners should be elected by the legal voters in the township, at the next annual town meeting after the passage of the act, and in the same manner in which the other officers of the said township are elected ; four of them were to be elected from the four road dis- tricts of the township, and one elected at large, from any road district, as president of the board, and every two years there was to be an election at the annual town meeting, and if a vacancy occur- red by death or a commissioner becoming a non-resident, the town- ship committee was authorized to fill it; and at the first election Cox and Crane each received the same number of vot-es for commis- sioner at large, and thereupon the town committee unanimously elec- ted Cox as president of the board. Held, that the election of Cox was legal, it having been in the man- ner as other township oflicers, and the action was warranted by the relation of the act of 1872, to the act of 1860, (iVix. Big. 992,) in regard to the manner of election. State, Williams, pros., v. Crane, Collector, &c., 394 576 INDEX. ONTEACT. 1. A promise to pay "all liibilities" of a manufacturer, in considera- tion of a sale and trtnsUVr of all the property and assets, will in elude a disputed claim for ti>e salary of the foreman of the fac- tory. Joslin V. New Jersey Car Spring Co., 141 2. An action may be maintained on a written promise made by the de- fendant to a third person, for the benefit of the plaintiif, without any consideration moving from the plaintiff to the defendant. lb. 3. A sale of coal as soon as it is de- livered from the mines, upon a stipulation that it is not to bind, if the coal company do not deliver it according to a certain proposal, which is to sell five hundred tons or more for immediate delivery, for a fixed price, and at a certain place, is conditional and mutual Neldon v. Smith, 148 4. If coal is received from the mines after the time named in the con tract, tJie seller is not bound to de- liver it, nor is the buyer bound to receive it. The buyer has not an option to take it for the price named in the contract. Jb. 5. The term "immediate delivery," explained to mean, among coal shippers and dealers, a delivery within the present, or in some cases, the succeeding month, and thus interpreted in this contract. lb. 6. Where coal was accepted by the seller, by a parol agreement with the company after the breach, and in settlement of damages claimed for the breach — Held, to be by way of accord and satisfaction, and not a delivery under the former con- tract, lb. 7. The plaintiff made an agreement with the defendant to let him take the sand out of a pit fifty feet wide, the entire length, for the sum of $650, and gave him one year's time to take it out ; the agreement was signed by the plaintifi', and not by the defendant. Held, that the agreement was for the sale of an interest in land, and not hav- ing been signed by the defendant, is as to him, by fr>rceof the statute of frauds, void. O'Donnel ads. Bre- hen, 257 8. A statement in a contract of sale, descriptive of the thing sold, if intended to be part of the con- tract, is a condition, on the failure of which the purchaser may repu- diate, or, if a rescission iias become impossible, it may be treated as a warranty, for the breach of which damages may be recovered. Wol- cott, Johnson & Co. v. Mount, 262 9. It is a question of fact, to be deter- mined from all the circumstances of the case, whether a representa- tion, descriptive of the article sold by a name by which it is known in the market, is an expression of judgment or opinion only, or wa* intended as a warranty. lb. 10. Loss of profits may be recovered as damages for the non-perform- ance of a contract, if the loss re- sults directly from the breach of the contract itself, or is such as might be reasonably supposed to have-been in the contemplation of both parties at the time of the making of the contract, as the result of non-performance; pro- vided that the profits to be com- pensated for are such as are capa- ble of being ascertained by the rules of evidence, to a reasonable degree of certainly. lb. 11. The measure of damages in ac- tions on contract considered. lb. 12. M., a market gardener, applied to W. & Co., merchants, who kept agricultural seeds for sale, for " early strap-leafed red-top tur- nip seed." W. showed him the seed wliich he said was that kind, and sold it to him as such. M. informed W., at the time of the purchase, that he wanted that kind of seed to raise a crop fur the early market. M. sowed the seed, and it turned out to have been another INDEX. 577 kind of turnip seed, of an inferior quality. The representation was made in good faitli, W. & Co. hav- ing purchased the seed as early «trap-leafed red-top turnip seed. In an action for breach of war- ranty — Held on certiorari — 1. That the question wliether the statements were merely an expres- sion of opinion or a warranty, was one of fact in the court below, and the evidence tending to show that a warranty was made, the finding could not be reviewed. I 2. That the measure of damage was the difference between the market value of the crop raised' and the same crop from the seed ordered. 1 b. 13. An agreement by a railroad com- pany to carry goods for certain persons, at a cheaper rate than they will carry under the same conditions for others, is void as cre- ating an illegal preference. Mes- senger et al. V. Pennsylvania R. £,. Co., 407 14. The foundation of the right of action to recover a bounty offered for volunteers, is the contract con- cluded by the offer on the one side, and its acceptance by the other, supported by the considera- tion which results from the per- formance of the stipulated service, on the faith of the promise con- tained in the offer. Mayor, (fee, of Hoboken. v. Bailey, 490 15. To make a contract there must be mutual assent, or an offer by one party and consent by the other. There cannot be consent lu an offer so as to make a contract, when a party has no knowledge of the offen-. lb. See Executory Contract. CONTEIBUTORY NEGLI- GENCE. A non-suit is proper when from the plaintiff's own showing, it clearly appears that he contributed by his own carelessness to the happening of the accident from which lie received damages. Pennsylvania B. B. Co. V. Matthews, 631 CORPORATION. 1. Corporations being the creatures of legislation, are precisely what their organic act makes them. For every function they claim to ex- ercise, they must find authority in legislative grant. Watson v. Ac- quackanonck Water Company, 195 2. A corporation, being the plaintiff in the suit, need not prove its cor- porate existence under a plea of the general issue, or other plea to the merits. Star Brick Company V. Bidsdale, 229 3. A fire insurance company cannot be established in Jersey City in- stead of Trenton, under a charter for such company to be located in Trenton. It is a perversion of, and a fraud upon, the act, and gives no corporate color to the company for the protection of those who were engaged in, or lent themselves knowingly to the scheme. Such an organization in Jersey City is entirely outside of the act, and has no existence as a corporation, real or de facto. Booth ads. Won- derly, 250 COSTS. The spirit of the maxim, " Victu.3 victori in expensis condemnandus est," has for many years prevailed in our courts. Stale, Brittin et al., V. Blake et al., 443 See Constitution and Constitu- tionaIj Law, 6. COUNTY COLLECTOR. 1. A county collector is not required or permitted, by the "act to estab- lish a system of public instruc- tion," (Nix. Dig. 878, g 75,) to ex- ercise any discretion as to how much of the state appropriation the several township collectors in the county are entitled to receive from him. That question as b©- 678 INDEX. tween these officers, is settled con clusively by the order of the coun ty siiperinteiulent of" public scliools. State, Herder, Collector of Amwelt, V. Collector of Hunterdon, 363 2. The notion that a county collector can, in any case, lawfully reduce the amount by setting up some counter claim, whether in his own behalf or in belialf of his county, and whether against the township collector, personally, or against his township, is neither justified by the language nor consistent with the policy of our school laws. lb- CRIMINAL EVIDENCE. 1. The defendant, on an indictment for extortion in taking fees to which he was not entitled, has the right to prove to the jury that the moneys which it was charged he took extorsively, were received by him under a mistake as to his legal rights. Cutter ads. State, 125 2. On the trial of an indictment forj an attempt to ravish, a complaint' made soon after the assault, by the| woman assaulted, is admissible in evidence. State v. Ivins, 233 3. The particulars of the transaction, as detailed by the prosecutrix, are not legal evidence on such trial. lb. CRIMINAL PRACTICE AND PLEADING. Regularly a bill of exceptions should be drawn up and sealed during the trial. The practice has been for the judge on the excep- tions being taken and a minute thereof made, to grant time for the preparation of a formal bill of exceptions, and if the bill be pre- sented within a reasonable time, to affix his seal to it; when this is done, it relates back as if the bill was sealed at the trial. State v. Holmes, 62" See Indictment. CRIMES AND CRIMINAL IN- TENT. 1. The mere taking of an illegal fee- by a justice of the peace or other officer of this state, will not con- stitute a criminal act, under tiie- twenty-eighth section of the act for the punishment of crimes, [Nix. Dig. 197,) without regard to the intent of the recipient. Cutter ads. Stale, 125- 2. The legal maxim, ignorantia legia neminem ezcusat, if enforced, where- the law is not settled, or is obscure, and where the guilty intention, being a necessary constituent of the particular offence, is depend- ent on a knowledge of the law, would be misapplied. lb. DAMAGES. 1. In an action to recover damages- from flowage by back water, a re- quest to charge that a dam which had been in existence for forty years, was a legal structure, was properly refused, where there was some question whether its mainte- nance had been peaceably acqui- esced in. The court should have been asked to leave to the jury the question whether the dam had been maintained for the prescrip- tive period, under such circum- stances as to give a right by pre- scription. Trenton Water Power Co. V. Raff, 335- 2. Immunity from liability to actions from injuries resulting to indi- viduals from acts done under leg- islative autliority, extends only to such injuries as arise incidentally from acts done under a valid act of the legislature, by persons act- ing with due skill and cautioH' within the scope of their author- INDEX. syg* ity, in the execution of a public trust for the public benefit. Ih. 3. An action will lie to recover dam ages for an injury to property in the execution of work under legis lative authority, if the injury be direct, or the work done for the benefit of an individual or corpo- ration with private capital, and for private emolument, even though the public be incidentally bene- fited by it. lb. 4. An act of the legislature, author- izing one to erect a dam in a river which is a public highway, may be a justification so far as public interests are concerned, but will be no justification for a private injury, caused by the overflow of lands of an individual proprietor. lb. See Kailroac, 2. DECLAEATION OF SALE. 1. The act of 1869, which extends the provisions of the second section of the act of March 25th, 1865, [Nix. Dig. 865,) to deeds and declara- tions of sale under public or muni- cipal authority, establishes a rule of evidence giving to the recitals the efiect of proof, and prescribing the kind of evidence which shall be admitted to disprove the truth thereof. The only evidence com- petent for that purpose is the adju- dication of the court to that effect on certiorari to review the proceed- ings on wliich tlie title is based. State, Baxter, pros., v. Mayor and Aldermen of Jersey City, 188 2. Relief on certiorari being substi- tuteil for tlie defence the owner might previously have made in ejeetuient, the wiit may be sued out at any time; but when prose- cuted for such puriiose, will bring up for review only such objections as would previously have been I available in an action of ejectment.! lb. DECREE IN EQUITY. A decree of the Court of Chancery, that a sheriff"'s deed should become void, and the purchaser reconvey on the payment to hiiu of a certain sum within a specified time, is not such a decree as becomes a con- veyance by force of the fifty-sixth, section of the chancery act ; and an unaccepted tender of tlie sum named, after the day fixed, and after ejectment brought to recover possession under the deed, will not extinguish the deed as a security^ and enable the defendant to de- fend under the decree. Kloepping' and wife v. Stellmacher, 111 DEDICATION. 1. Ejectment will lie at the suit of an incorporated city, for lands dedi- cated to a public use for a street. Hoboken Land and Improvement Company v. Mayor, &c., of Hobo- ken, 540' 2. Acceptance of a dedicated street by a formal act or public user, is not essential to cut ofi^ the owner from the power of retraction, and subject the dedicated lands to the- public use, wlien in the judgment of the local authorities the wants or convenieuce of the public re- quire it for that purpose. /6. 3. A street delineated on a dedicating map as extending to a public navi- gable river, will be continued to the new water front obtained by- filling in by the owner, under legislative permission. lb.. 4. An ordinawce of the municipal government adopting a part of a public street for present use, is not an abandonment of the rest of it. lb, 5. The local corporate authorities- have no power in the absence of legislative authority, to release the public right in a dedicated street. lb. 6. Lapse of lime, however long the 580 INDEX. public right in a street is suspend- ed, though coupled with an user by tlie owner, which would other- wise be adverse, will not make title by prescription against the public. Ib.\ 7. The legislature alone has the power to release the dedicated! lands and discharge the public servitude. lb. 8. An act of the legislature incor- porating a land and improvement company, and authorizing it to fill up, occu(>y, possess, and enjoy all land covered with water, fronting and adjoining lands that might bei owned iiy the corporation, and to construct thereon wharves, piers.l slips, and other structures for com-i mercial and shipping purposes, •will not extinguish the public right of access to the navigable- waters by a street on land purchased by the company, which, by the dedi- cation, terminated at the high water line, as it was when the