the price and value of work done and materials for the same provided by the plaintiff for the defendant at their request, and in like sum of money for money lent by the plaintiff to the defendant at their request, and in the like sum of money for money received by the defendant at their request, and in like sum of money for money received by the defendant for the use of the plaintiff, and in the like sum of money for money paid by the plaintiff for the use of the defendant at their request, and in the like sum of money for interest due from the defendant to the plaintiff for the plaintiff's having forborne moneys due from the defendant to the plaintiff at the defendant's request for a long time then elapsed, and in the like sum of money for money found to be due from the defendant to the plaintiff on an account then and there stated between them, and in the like sum of money for the prevention of litigation by the plaintiff against the defendant at their request, and in the like sum of money for the forbearance of litigation by the plaintiff against the defendant at their request, and the defendant afterwards, to wit, on the day and year last aforesaid, in the county aforesaid, in consideration of the premises, respectfully promised to pay the said several last-mentioned moneys, respectively, to the plaintiff on request, yet the said defendant, not regarding their said several promises and undertakings, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plaintiff in this behalf, hath not paid the several sums of money herein mentioned before, or any part thereof, to the said plaintiff, although the said defendant was often requested so to do; but the defendant to do this hath hitherto wholly refused, and still refuses; wherefore the said plaintiff says that she is injured and hath sustained damages to the amount of five hundred dollars, and therefore brings suit," etc.

"Sir: Please to take notice that the following is a specification of the causes of demurrer to the first and second counts of the plaintiff's declaration in the above-named cause:

"(As to First Count.) "I.

"It fails to disclose a legal consideration for the contract sued on, in that

"(1) The facts alleged disclose no actionable liability on the part of the company for the death of plaintiff's decedent, and no valuable consideration for the alleged promise.

"(2) It contains no allegation that the plaintiff was, at the time of the alleged promise, or at any time afterwards within one year from the death of the decedent, the administratrix of the decedent.

"II.

"The contract alleged is, under the facts disclosed, against public policy, in that it

was intended to defraud the next of kin of the decedent, who were the cestuis que trustent of the plaintiff, and, if a legal ground of action against the defendants for the death of the decedent existed, did defraud the said next of kin.

"III.

"The contract alleged, under the facts alleged in the count, is void for fraud, in that it appears by the allegations of the count to have been an agreement to defraud the next of kin of the decedent for the benefit of the plaintiff, who occupied towards them the position of a trustee.

"IV.

"The alleged contract is ultra vires the defendant corporation.

"(As to Second Count.)

"This count is subject to the same criticism as those just made to count one, and the same causes of demurrer are hereby specified to that count."

Dated May 20, 1899.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

Joseph M. Roseberry, for plaintiff. Flavel McGee, for defendant.

GARRISON, J. (after stating the facts). If the plaintiff at any time during the period covered by the promise set out in her declaration was or became the personal representative of her husband, her undertaking not to bring suit against the defendant for his death until the time limited by law for bringing such an action had run would have been void as against public policy.

The first count contains no suggestion that she ever took out letters; it merely states that she was, by law, entitled to them. The second count states that she claimed to have, as administratrix of her husband, an action at law for his death. The fact that she was at any time his personal representative is, therefore, not established by the demurrer. Indeed, one of the causes for demurrer specified by the defendant is that neither count of the declaration contains any allegation that the plaintiff was, at the time of the alleged promise, or at any time within one year, the administratrix of her husband. This being so, I can see no reason for sustaining this demurrer. The narr. discloses a cause of action under the death act. The promise of the widow not to bring a suit in a capacity that she did not possess was a legal injury to no one. Whether there was any substantial benefit to the defendant in such a promise is immaterial. There was a possible detriment to the plaintiff, and that is consideration enough. The demurrer should be overruled.

BARTON v. WEST JERSEY TITLE &

GUARANTY CO.

(Supreme Court of New Jersey. Nov. 13, 1899.) INSURANCE OF TITLE-ACTION ON POLICYPLEADING.

1. In an action upon a covenant contained in a policy of insurance of the title of land, grounded on the eviction of the insured from the land, held, that to make out a cause of action the declaration must show either an eviction under a paramount title by due process of law, or a disturbance of title or possession under a paramount title equivalent to an eviction.

2. Whether, under the provisions of the policy in question, eviction by due process of law was essential to a right of action or not, quære.

3. An averment of a claim of title or of evic tion under an adverse title is not sufficient. (Syllabus by the Court.)

Action by James M. Barton against the West Jersey Title & Guaranty Company. murrer to the declaration sustained.

De

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

Howard Carrow, for plaintiff. Lewis Starr, for defendant.

MAGIE, C. J. This is an action on contract in the nature of an action on covenant upon a sealed policy of insurance of the title to certain lands of the plaintiff. The declaration sets up the contract contained in the policy, but as the pleader has annexed to the declaration a copy of the policy, and referred to it so that it has become part of the record, it will be convenient to consider the contract itself, rather than the statements of the declaration in respect to it. Defendant has interposed a demurrer to the declaration, and, upon demand, has served plaintiff with various specifications of the causes on which it rests its demurrer.

It is not deemed necessary to consider any of the causes except the second, which asserts that the declaration does not set out the breach of the covenant declared upon, because the declaration in that respect is plainly insufficient. The contract annexed to the declaration is expressed, so far as the matter now under consideration is concerned, in the following terms: "This policy of insurance witnesseth that the West Jersey Title & Guaranty Company, in consideration of the sum of ten dollars to it paid by James M. Barton, of city of Philadelphia, in the state of Pennsylvania, covenants that it will indemnify, keep harmless, and insure the said James M. Barton against all loss or damage, not exceeding four thousand dollars, which the said insured shall sustain by reason of defects in or unmarketability of the title of the insured to the estate, mortgage, or interest described in Schedule A, hereto annexed, or against all liens or incumbrances charging the same at the date of this policy; * the loss and amount to be ascertained in the manner provided in the said conditions, and to be payable upon compliance by the insured

with the stipulation of such conditions, and not otherwise." By Schedule A, the interest insured is described as an estate in fee simple, and the particular tract in which such estate is insured is set out by meets and bounds, and by reference to a recorded title deed. Among the conditions of the policy is the following, viz.: No claim shall arise under this policy unless the party insured has been actually evicted under an adverse title insured against.

The first contention in support of this cause of demurrer is that, upon the contract thus set out, the declaration, if intended, as the declaration in this case clearly is, to base the action on a breach of covenant arising from the eviction of the insured from the insured premises, must assert an eviction under a paramount title, by due process of law. The notion that such an eviction was essential to establish a cause of action upon a covenant of warranty was repudiated in this court in Kellog v. Platt, 33 N. J. Law, 328. It was there held, in conformity with the previous decision in Carter v. Denman's Ex'rs, 23 N. J. Law, 260, that an action on that covenant could be maintained upon a disturbance of title or possession by a paramount title tantamount to eviction.

But it is contended, with no little force, that the covenant in this policy differs from a covenant of warranty, and that the doctrine applied to the latter is not applicable to the former. The contention is put on the express exclusion of any claim under the policy unless the insured has been actually evicted under an adverse title. It derives its force from a comparison of this clause of the paragraph with the provision of condition 7, whereby the company agrees, at its own cost, to defend the insured in any action of ejectment founded on a claim of title insured against, and requiring the insured to notify the company of the action, and to give it an opportunity to defend it. It is also thereby provided that, unless the insured notifies the company within five days after the service of the writ in the action, the insurance shall be void. If this is the correct construction of the contract contained in the policy, the declaration is obviously insufficient, as it contains no assertion of an eviction by due process of law.

But it is deemed unnecessary to express an opinion upon the contract in that respect. Assuming that the covenant in question would be broken by such an eviction as would give rise to a right of action on a covenant of warranty, viz. a disturbance of title or possession by paramount title equivalent to an eviction, the declaration is equally deficient. The deficiency occurs because there is a total failure to aver that the disturbance and eviction of plaintiff was by a paramount and superior title. The assertion of the declaration is that the West Jersey Sea Shore Railroad Company claimed a lawful right and title to a part of the land the title of which was insured by defendant, and that said company

entered and evicted the plaintiff under an adverse title. This does not describe an entry or disturbance by paramount title, and so the breach of the covenant sued upon is not disclosed by the declaration. The defendant is entitled to judgment upon this demurrer.

STATE ex rel. CASEY et al. v. CHASE et al. (Supreme Court of New Jersey. Nov. 13, 1899.) MANDAMUS WHEN GRANTED TOWNSHIP

COMMITTEE-ELECTION.

1. Mandamus to admit to membership in a public body will not be ordered if the effect will be to oust incumbents whose claim of title is not frivolous. Quo warranto is the only proper procedure to try title to office.

2. Under statutory authority, the township committee of Woodbridge, in the county of Middlesex, is composed of three members, each holding for three years, one member being elected annually. Official notice to elect one member at the annual town meeting of 1899 was published. A. received 542 votes, B. 361 votes, and C., D., and E. each 2 or 3 votes. On contention of unconstitutionality of the later statutes, B., C., D., and E. claimed membership in the committee on the ground that the only valid law on the subject required a board of five members, with an annual term. Held, that the question would not be determined on mandamus to seat persons not intelligently chosen by the voters, and that the only way to raise it would be by application for mandamus to the township clerk to give notice of the election at the next annual town meeting of five members of the township committee for one

year.

(Syllabus by the Court.)

Application by the state, on the relation of William D. Casey and others, for a writ of mandamus against Leon A. Chase and others. Writ denied.

Argued June term, 1899, before DIXON and COLLINS, JJ.

E. Cutter, for relators. C. C. Hommann, for defendants.

COLLINS, J. By the general township act of 1846 (3 Gen. St. p. 3583, § 12) the qualified electors of each township were authorized to elect at the annual town meeting a township committee of five members, to hold office for one year. Subsequent legislation having introduced differences among the townships in the matter of the number of members of the township committees, a board of five members was required in all townships having less than 6,000 inhabitants, by "An act concerning townships and township officers," approved April 21, 1876 (P. L. p. 297; 3 Gen. St. p. 3594). This provision was amended in 1877 (P. L. p. 60), and again in 1878 (P. L. p. 374), so as finally to require a township committee of three persons in all townships in counties having less than 100,000 inhabitants by the last state census. An amendment to another feature of that section of the act was made later, but as to the township committee it remains unchanged. 3 Gen. St. p. 3600, pl. 122. By a supplement to the act of 1876, approved March 23, 1883 (3 Gen. St. p. 3599, pl. 114), it was enacted that, in the several townships in

which the township committee consists of three persons, the members thereof should thereafter be elected for the term of three years, provided that at the first annual town meeting the tickets voted should designate the name of one member for one year, another for two years, and the third for three years, and that at each succeeding election one member of the township committee should be elected for three years. Since this act took effect the township of Woodbridge has had but three members in its township committee. At the annual town meeting in March, 1899, official notice was given, among other things, for the election of one member of the township committee. Leon A. Chase received 542 votes, William D. Casey received 361 votes, William V. Carpenter received 3 votes, Charles F. McKenzie received 3 votes, and George Noe received 2 votes. Mr. Chase was declared elected. He qualified, and joined Clarence M. Liddle and Thomas M. Dunigan, the members holding over in the board. Messrs. Casey, Carpenter, McKenzie, and Noe, the relators, having taken the statutory oath, but not being allowed to assume office, seek a mandamus to compel Messrs. Chase, Liddle, and Dunigan to recognize them as members of the committee,-in effect, to oust Liddle and Dunigan, and seat the relators with Chase. The ground of their claim is that the act of 1876, as amended, is a local and special law, violative of the constitutional requirement of legislation regulating the internal affairs of towns and counties, and that in the township of Woodbridge the general township act of 1846 is in force. The defendants contend against this claim, and also assert that by an act approved March 22, 1860 (3 Gen. St. p. 3617), in townships voting by ballot the township committee may consist of three members. The first section of the act of 1876 requires township elections to be by ballot, with certain apparent exceptions; and Woodbridge, since 1840 (P. L. p. 87), has been specially authorized by law to so elect its officers. The claim of the defendants is manifestly not frivolous.

Questions requiring consideration are presented by both parties. Messrs. Liddle and Dunigan claim legal title to offices of which they are in possession. Mandamus to admit to membership in a public body will not be ordered if the effect will be to oust incumbents whose claim of title is not frivolous. Quo warranto affords the only proper procedure to try title to office. Henry v. City Council of Camden, 42 N. J. Law, 335; Haines v. Freeholders of Camden, 47 N. J. Law, 454, 1 Atl. 515; Simon v. City of Hoboken, 52 N. J. Law, 367, 19 Atl. 259; Roberson v. City of Bayonne, 58 N. J. Law, 325, 33 Atl. 215; Clayton v. Board, 60 N. J. Law, 364, 37 Atl. 725. In the decision relied on by the relators to justify their procedure, the members holding over did not claim title. Love v. Board, 35 N. J. Law, 269.

But, if we could, we would not, at the in

stance of the relators, inquire into the matter. The voters of Woodbridge did not choose them as their officers. They had no notice of any election, except for one vacancy, and for that they chose Mr. Chase, and rejected Mr. Casey. It is urged that the other votes were cast in order to test the questions involved in the premises. The test cannot be made in that way. Bolton v. Good, 41 N. J. Law, 296. If any citizen of Woodbridge desires to raise the questions argued, he may do so by application for mandamus to the township clerk to give notice for the election at the next annual town meeting of five members of the township committee for one year. The mandamus now prayed for will be denied.

KOLB v. MAYOR, ETC., OF TOWN OF BOONTON.

(Supreme Court of New Jersey. Nov. 21, 1899.) INTERSTATE COMMERCE-REGULATION-LI

CENSE FEES-SUMMARY CONVICTION.

1. A tax upon business carried on within a state, and without discrimination between its citizens and the citizens of other states, even if it incidentally affects interstate commerce, is in no sense a regulation of such commerce, and its imposition is not a violation of the federal constitution.

2. A municipal ordinance, passed in pursuance of a legislative enactment which authorizes the imposition of license fees upon various kinds of business carried on within the municipality, is not invalid because it selects certain of them for such imposition, and does not embrace all.

3. A summary conviction, which does not contain the evidence upon which it was had, is fatally defective.

(Syllabus by the Court.)

Frederick Kolb was convicted of peddling in violation of an ordinance of the town of Boonton, and brings certiorari. Reversed.

Argued June term, 1899, before DEPUE, GUMMERE, and LUDLOW, JJ.

B. W. Ellicott, for prosecutor. Newton S. Kitchel, for defendant.

GUMMERĖ, J. The certiorari in this case removes into this court for review the summary conviction of the prosecutor, had before a justice of the peace of the town of Boonton, for carrying on the business of a peddler within the town limits, in violation of the provisions of "An ordinance concerning licenses to hawkers, peddlers, canvassers and auctioneers," which was passed by the town council under authority of the act respecting licenses, etc., approved March 31, 1890 (P. L. p. 150). The act referred to empowers the governing body of any incorporated town to pass ordinances licensing hawkers, peddlers, auctioneers, and itinerant venders of merchandise, and to prescribe penalties for the violation of such ordinances. The first reason presented for the setting aside of this conviction is the alleged invalidity of the ordinance under which it was had. Such invalidity is said to result from the fact that the ordinance necessarily regulates interstate commerce, and

from the further fact that, after imposing a license fee upon hawkers, peddlers, canvassers, and auctioneers, it then proceeds to exempt from its provisions farmers, who bring the produce of their farms into town, and dispose of it there, and also persons selling wood or charcoal, and persons having stores or other places of business in the town. The ordinance is not invalid on the first ground stated. A tax on business carried on within a state, and without discrimination between its citizens and the citizens of other states, even if it incidentally affects interstate commerce, is in no sense a regulation of such commerce, and its imposition is not a violation of the federal constitution. Ficklen v. Shelby Co. Taxing Dist., 145 U. S. 1, 12 Sup. Ct. 810, 36 L. Ed. 601. And even if it was invalid against the citizens of other states, as a regulation of interstate commerce, it would still be good as against a resident of this state. The federal constitution does not in any way affect the right of a state to tax its own internal commerce; and if it be said that a tax such as is authorized by this ordinance, and the statute under which it was passed, by reason of its invalidity against the citizens of other states, operates as a discrimination against the citizens of this state, and is, therefore, illegal, the answer is that the state itself, of its own free will, and in the exercise of its sovereign power, is the author of such discrimination. Nor is the ordinance objectionable on the second ground suggested. A municipality which seeks to exercise the powers conferred by the act of 1890 respecting licenses is not bound to impose a license fee upon every business mentioned in the statute. It may select such of them as it deems proper subjects for license, and, so long as there is no discrimination in the imposition of the license fee, its action cannot be successfully challenged. It is observed that the ordinance imposes a license fee upon canvassers, as well as upon hawkers, peddlers, and auctioneers. The act of 1890 does not, in terms, include the former in the enumeration of business which may be licensed. But it is unnecessary to consider whether this provision is void, for ordinances, like acts of the legislature, may be good in part, though bad in other separable and independent provisions. Hershoff v. Treasurer of City of Beverly, 45 N. J. Law, 292; Morgan v. Orange, 50 N. J. Law, 391, 13 Atl. 240. But, although we consider the ordinance valid. so far as it affects the prosecutor, we think that the conviction had under it cannot be sustained. The proceeding was a summary one, had before a justice of the peace sitting as a magistrate, and not as a court for the trial of small causes. The common-law rule is that in such proceedings the conviction must contain, among other things, the evidence presented, so that the reviewing court may discover the grounds on which the adjudication of the magistrate was made. Hoeberg v. Newton, 49 N. J. Law, 618, 9 Atl. 751; Pell v. Newark, 49 N. J. Law, 598, 9 Atl. 778,

Preusser v. Cass, 54 N. J. Law, 534, 24 Atl. 480; Salter v. City of Bayonne, 59 N. J. Law, 128, 36 Atl. 667. This rule has been done away with by statute in the case of summary convictions had before police courts in cities of the first class (2 Gen. St. p. 2497, § 97), but this legislation has no application to municipalities of the class to which the town of Boonton belongs. As to such municipalities, convictions had therein must still conform to the common-law rule. In the record of conviction now before us none of the evidence presented is set out. This is a fatal defect, and the conviction must, therefore, be set aside. The prosecutor is entitled to costs.

STATE ex rel. VON DE PLACE et al. V. WELLER.

(Supreme Court of New Jersey. Nov. 13, 1899.) TIME COMPUTATION-ACTS OF COURT.

In the computation of the time within which the requirement of a statute is to be complied. with, where the last day falls upon a Sunday or a legal holiday, and the act is to be done by the court, and not by the party, it may be done upon the earliest succeeding day on which the court can perform the duty imposed upon it.

(Syllabus by the Court.)

Application by the state, on the relation of Emily Von de Place and others, for a writ of mandamus against John I. Weller. Granted.

Argued June term, 1899, before DEPUE, GUMMERE, and LUDLOW, JJ.

William D. Daly, for relators. John I. Weller, pro. se.

GUMMERE, J. Judgment was given in the Hoboken district court against the relators and in favor of the defendant, Weller, on February 28th last. An appeal bond was presented to that court, for its approval and acceptance, on the 6th day of March then next, which the court refused to receive, upon the ground that it had not been tendered within the time required by the statute, namely, five days after the rendition of the judgment. The last of the five days fell upon Sunday, and the tender of the bond was made on Monday following. It is contended on behalf of the relators that, under the circumstances, the bond was presented in time, and they ask for a mandamus to compel the district court to approve and file it.

At common law, if an act be stipulated to be, or is required to be, done on Sunday or on a legal holiday, the party has the next following day in which to perform it. 3 Chit. Gen. Prac. p. 104. It seems, however, that where the act to be performed is one which is required by statute, in the orderly course of judicial procedure, the common-law rule has not always been followed, either in England or in this country, as may be seen by a reference to the cases on the subject collated in the footnotes to the article on the computation of time in 26 Am. & Eng. Enc. Law, p. 10 et seq.

It is obvious that the question whether a dies non juridicus is to be included or excluded in the computation of time, when it happens to be the last day within which an act is to be performed, is equally one of construction, whether the time be limited by agreement of parties or provision of law. Although this question has not been considered by this court where the period of performance has been fixed by statutory provision, it has been passed upon where the time is appointed by the act of the parties. In Stryker v. Vanderbilt, 27 N. J. Law, 68, the parties had contracted that a certain deed should be delivered by the one, and the consideration money therefor paid by the other, on May 1, 1853. That day happened to fall upon Sunday. Chief Justice Green, delivering the opinion of the court, declared that a compliance with the contract on Monday constituted a legal performance. The rule of construction adopted in this case was plainly the one best calculated to subserve the interests of the parties to the contract, and therefore was most likely to effectuate their intention. We think a similar rule should be adopted in construing statutory provisions requiring acts to be done by parties in the course of judicial proceedings. It will best protect the interests of litigants, and must for this reason be presumed to carry into effect the legislative intent. This view is supported by the decision of the chancellor in Feuchtwanger v. McCool, 29 N. J. Eq. 151, in which it was held that the provision of section 25 of the chancery act, which requires the filing of an answer within 60 days after the return of subpoena, was substantially complied with by the filing of the pleading on the day after the expiration of the time limited, when the last day of that period fell on a legal holiday. But the question now presented for decision is hardly so broad as that which has been discussed. The step to be taken in the case before us was one which required action by the court, viz. the approval and acceptance of an appeal bond. The granting or refusal of the mandamus applied for must therefore depend upon whether, in the computation of a period fixed by statute, where the last day falls on a Sunday, and the act is to be done by the court, and not by a party, it may be done on the next practicable day. We are of opinion that, by the true construction of such statutory provisions, where the last day for the action of the court falls upon a day on which it is not possible for the court to act, the intendment of the law is that the party shall have until the earliest succeeding day upon which the court can perform the duty imposed upon it. A similar view to that which we have expressed was taken in the case of Hughes v. Griffiths, 13 C. B. (N. S.) 324, in construing a like statutory provision. In the cited case it is suggested that a distinction between a thing which is to be done by the court, and a mere act of the party, is maintainable. Whether such distinction rests upon any solid foundation seems