disposing mind and memory." Here the capacity "clearly to discern and discreetly to judge" is stated as one of the requisites; and the quotation just made was cited with approval by Chief Justice Ewing and Justice Drake in their opinion in Sloane v. Maxwell, 3 N. J. Eq., at page 569. I stop to say that the criticism made by Chief Justice Ewing in that opinion upon some former expressions of Chief Justice Kirkpatrick referred to his language in Den v. Johnson, 5 N. J. Law, 454; and Justice Rossell, in his opinion in Den v. Vancleve, in which he criticises Chief Justice Kirkpatrick's language, refers, not to the language just quoted, but to certain expressions found in his charge in that case, which is not reported, while Justice Southard, in Den v. Vancleve, adheres to the original ruling in Den v. Johnson, and also agrees with Chief Justice Kirkpatrick. The same language which I have quoted from Chief Justice Kirkpatrick was quoted with approval by Lord Chief Justice Cockburn in the celebrated case of Banks v. Goodfellow, reported in L. R. 5 Q. B. 549, at page 567. This definition of a sound and disposing mind and memory for testamentary purposes seems to me to be unassailable, and I am unable to believe that the learned judges of this state who have, on various occasions since its promulgation, expressed themselves in their own language on the point, intended to deviate from or vary it. Children under age are prohibited from making wills because they are presumed to be lacking in the very elements of capacity mentioned by Chief Justice Kirkpatrick. In their case the statute law fixes an arbitrary period for the continuance of this incapacity. The unwritten law, for the same reason, protects the heirs and next of kin of one who has, by reason of advanced age and disease, or both, reached second childhood, from testamentary dispositions made by him while in that condition. Now, the faculty of discernment and discreet judgment includes necessarily the capacity to examine, criticise, consider, compare, and weigh "all those things and all those circumstances which enter into the nature of a fair and just testament," and which ought to influence the mind of the testator in making his testamentary disposition. Unless he has this capacity for discernment and judgment, his action, however conscious of it he may be, and however it may accord with his present wishes, is the mere indulgence of a childish whim, and does not, in my opinion, rise to the dignity of a deliberate testamentary disposition made by a person of sound and disposing mind and memory. cannot think that mere consciousness of what he is doing is a sufficient test of testamentary capacity. The merest child may have that, and yet be far short of having a sound and disposing mind and memory. He may consciously and intentionally, and for reasons quite satisfactory to himself, give away his property; and yet no one would, for a moment, think of holding him responsible for his acts, even if

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there were no statutory limit to his capacity. And, if this be so, why should not the same protection be thrown around the next of kin and heirs of the child who is such by reason of having attained too many, instead of too few, years? The evidence satisfies me that Mr. Kastell was not possessed of such a sound and disposing mind and memory at the time he made this deed, and that it was no more than the indulgence of a childish whim arising out of delusions which had no reasonable foundation in fact. I will advise a decree accordingly.

STATE (MADDEN et al., Prosecutors) v. STATE.

(Supreme Court of New Jersey. Nov. 8, 1894.) CONSPIRACY-INDICTMENT-MEANS OF EXECUTION.

1. An indictment which sets out that certain persons, being members of, composing and acting as a municipal board, conspired to cheat the city of its moneys, by corruptly purchasing supplies for the city at excessive prices, and by paying salaries to persons who rendered no services, is good.

2. After this general allegation of a corrupt intent, it is not essential that the statement of the means by which the conspiracy was to be executed should also show it. (Syllabus by the Court.)

Certiorari to court of oyer and terminer. John T. Madden and others were indicted for conspiracy. A motion to quash the indictment was denied by the court of oyer and terminer, and defendants renew their motion by writ of certiorari. Motion denied.

The indictment, in substance, contains the following averments: That the prosecutors of this writ, being then and there street and water commissioners of Jersey City, and then and there constituting and composing and acting as the board of street and water commissioners of Jersey City, did conspire and bind themselves together by agreement to cheat and defraud Jersey City of its moneys, by willfully and corruptly purchasing from divers persons, for and on behalf of Jersey City, large quantities of supplies at prices greatly in excess of the true value thereof, and by paying for the same, and causing the same to be paid for, out of the moneys of Jersey City, at greatly excessive, exorbitant, and fraudulent prices, and by willfully and corruptly making, and causing to be made, fraudulent contracts with divers persons for and on behalf of Jersey City, for work, labor, services, and supplies to be done for and furnished to Jersey City, whereby Jersey City was obligated to pay, and did pay, $20,000 over and above the value of such work and supplies, and by willfully and corruptly paying, and causing to be paid, large sums for salaries to persons who had rendered no services to Jersey City, whereby Jersey City was cheated of a large sum of money. Then forlows the allegation that, in execution of the premises and in pursuance of said conspiracy,

the indicted persons did certain things, some of which will be noticed in the opinion. Argued June term, 1894, before DIXON, REED, and ABBETT, JJ.

Charles Thompson and C. L. Corbin, for the motion. C. H. Winfield, opposed.

REED, J. (after stating the facts). The first line of attack upon the above indictment is that it fails to show that the combination set out was corrupt. It is premised that the indictment does not merely set out a conspiracy to cheat generally, but that it charges a conspiracy to cheat by the use of certain specified devices, and in certain ways specially named. From this premise it is said that the scope of the conspiracy is not only limited by this particularization of the method by which it was to be executed, but that the character of the devices set out must exhibit a corrupt mind in the conspirators. This contention cannot be successful. It is true, as a matter of course, that the combination, to be criminal, must appear on the face of the indictment to have been willful and corrupt. But I am unable to conceive how corruption can be imputed more specifically than it is in the indictment now under review. The imputation is that the parties charged, willfully and corruptly, conspired to cheat the city by paying out the city's moneys to persons for work never performed. The corrupt intent is imputed in the charge of the existence of a corrupt confederation, and in the statement that its purpose was to cheat the city. Indeed, after the employment of this language, any statement of the methods by which the cheat was to be executed was unnecessary. State v. Young, 37 N. J. Law, 184. In Wood v. State, 47 N. J. Law, 461, 1 Atl. 509, a case very much relied on as a decision which struck at the validity of the present indictment, it was admitted that this generality of charging a conspiracy was sufficient. In that case there was no charge of the existence of a corrupt confederation whatever; nor was there a charge that the object of the confederation was to cheat the county of Camden. In such an absence of any general charge of a corrupt combination to cheat, it was essential that the facts contained in the statement of the agreement and its character, as exhibited by the scheme by which it was to be carried into execution, should show a corrupt purpose. It was because of the failure of the indictment in that case to do this that it was quashed. It is perceived that the indictment in that case differed from the one in this case, in that important particular that we here have a general charge of a corrupt confederation, the purpose of which was to cheat the public. Now, if it appeared in that part of the present indictment which discloses the means by which the cheat was to be accomplished that there could be no possible intent to cheat involved in the conspiracy, it would present a feature which is now ab

sent from the case; for it is not claimed that the statement in this bill of the means by which the concerted action is to be carried out in any way refutes the general charges contained in the indictment. It is only claimed that the statement of the means agreed on for the execution of the cheat should itself show, and does not show, a criminal or corrupt mental condition in the confederates. But it seems obvious that, so long as the statement is not inconsistent with the gencral charge of corrupt intention to cheat, that general charge remains unaffected. I see no substance in this position.

The next ground taken is that the indictment charges an impossible conspiracy. The line of argument by which this point is elaborated is this: The indictment, it is said, sets forth that the defendants, being officers, and composing and acting as the board of street and water commissioners, did conspire to cheat and defraud Jersey City. Therefore, it is argued, they, according to the theory of the indictment, must have conspired as a board, and so their agreement must have been an official act. An official act, it is further insisted, can be performed only by a vote of the members of the official body convened as a board. Therefore, the conspiracy charged must have sprung out of, and must be evidenced alone by, the fact that these defendants, as members of this board, voted to accomplish a common purpose. This line of reasoning, however, is grounded upon what I regard as an entirely mistaken view of the meaning of the language used in the indictment. It may be admitted, as a matter of course, that the mere act of voting for the execution of a criminal or corrupt purpose by several members of an official body at the same time will not amount to a conspiracy, in the absence of an existing concerted understanding that the votes shall be so cast. But the existence of a mutual understanding, at the time the votes are cast, that they shall be so cast, no matter how brief the period of its existence before the voting, or in what manner such mutual understanding was arrived at, would amount to a conspiracy. The voting might furnish some evidence of the existence of a previous understanding, but in itself would at best be but an overt act, which might be of service as a fact essential to complete the statutory crime of conspiracy. The gist of the offense would be the preexisting understanding and agreement. Now, the indictment charges that these persons, being members of this board, and composing and acting as such board, conspired to cheat by certain methods. But the indictment does not charge that the corrupt agreement was an official act. It only charges that these persons, when they agreed, were officials. Nor is the agreement charged confined to these members of the board. The charge is that they, together with other evil-disposed persons, conspired. If these defendants composed the board, then these other persons

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were not members, and the agreement charged could not have been an official act of the board. But, aside from this, it is clear that the statement of the official character of the defendants was only to give color to the whole transaction. It was to exhibit the significance of the agreement by setting out the ability of these persons to execute the agreement by the means charged. This ability springs out of the official character with which they were invested. The charge is that these persons, while being such officers, entered into a corrupt confederation to cheat the city, by the illegal exercise of a power which they possessed as a board to purchase supplies for, and make contracts for, work to be done for the city. I perceive no defect in the indictment in this respect.

The counsel for the defendants present another objection to the indictment, which objection is also based upon the statement of the official character of the persons indicted. This objection is that the indictment charges a conspiracy to commit a crime which could only be perpetrated by the joint action of the defendants; that the means by which the cheat was to be accomplished involved the official conduct of the defendants, acting as a board, and so required the combined vote of the defendants to effectuate the design. This conspiracy charged is compared with an agreement between two persons to commit bigamy or adultery, for a conspiracy to commit which, it is claimed, the parties cannot be indicted, because the offense itself, which by the agreement is to be committed, involves the concerted action of all the parties. It is not deemed useful to examine the legal proposition involved in the last sentence. Its limitations are the subject of remark by Mr. Bishop in his work of Criminal Law (volume 2, § 184, and note). The legal proposition is not applicable to the facts here presented. It is first to be observed that the agreement is not to do an act requiring the vote of each defendant in favor of the cheat. Only a majority of votes were essential. An agreement, entered into between all, that certain members, in numbers sufficient to constitute a majority, should vote to carry out the project, would be consistent with the charges in the bill. But, entirely aside from this consideration, it is clear that the legal rule invoked is inapplicable; for, assuming that the execution of the agreement involved an indictable malfeasance in office, yet each of the defendants who participated in the act was punishable severally. Indeed, I do not perceive that this conspiracy stands upon any different footing from any other combination to execute a criminal or illegal act, by the power derived from an aggregation of individual acts.

It is finally insisted that the statement of the overt acts is insufficient. The defect pointed at is that it is not shown that the acts set out were done in execution of the conspiracy, and to effect the object thereof.

The rule regulating this part of criminal pleading is that while some overt act must be shown (Wood v. State, 47 N. J. Law, 180), yet the statute does not exact that a full execution of the conspiracy shall be shown (State v. Hickling, 41 N. J. Law, 208); nor must it be understood that the acts set out constitute all the means which were used to accomplish the object of the conspiracy (State v. Young, 37 N. J. Law, 184). Now, the indictment charges that the defendants, in execution of the premises,-i. e. the conspiracy set out, and in pursuance of the conspiracy, having awarded a contract for work accord. ing to one set of specifications, made a contract for the execution of work according to a different set of specifications, which omitted part of the work included in the award. This was only one of several acts set out, but is sufficient to fill the statutory requirement. It exhibits a step taken in the execution of the conspiracy, and whether it shows a completely accomplished cheat or not is immaterial.

The motion to quash is refused.

STATE (MCLAUGHLIN, Prosecutor) v. MAY-
OR, ETC., OF CITY OF NEWARK et al.
(Supreme Court of New Jersey. Nov. 8, 1894.)
CONSTITUTIONAL LAW-LOCAL AND SPECIAL ACTS
-TITLE-AMENDMENT OF / CT.

1. "An act providing for the formation and establishment of wards in cities of the first class in this state," passed May 16, 1894, is a general law.

2. The division of the wards into election precincts, being conducive to the object expressed in the title, is properly embraced in the

will be briefly considered in the order in which they were presented. First, it is said the act is special, and therefore unconstitutional, because it is confined to cities of the first class, i. e. those having a population exceeding 100,000, while its provisions would be appropriate to all cities. The act empowers the mayor of any city of the first class to appoint five commissioners whose duty it shall be to divide the city into wards, and the wards into election precincts, and it declares how the commissioners shall proceed in the execution of this duty. It thus appears that the statute deals only with the structure of the municipal government, the formation of the machinery by which the affairs of the city are to be regulated. That, for such legislation, the municipalities of the state may be distributed into classes constituted on the basis of their population, seems to be settled beyond dispute in this court. Mortland v. Christian, 52 N. J. Law, 521, 20 Atl. 673; In re Haynes, 54 N. J. Law, 6, 22 Atl. 923; Matheson v. Caminade, 55 N. J. Law, 4, 25 Atl. 933; State v. Common Council of City of Newark (N. J. Sup.) 30 Atl. 186. Secondly, it is urged that the act is likewise special because it provides for only a single occasion, a single division of a city into wards. I do not perceive how this fact can render the act special. Laws have frequently been passed delegating to municipal and other corporations powers which, when once exercised, were spent or for a time put in abeyance, but such laws have never, on that account, been deemed violations of the constitutional provisions against special legislation. If the power be conferred upon every member of a constitutional class, in terms which are equally applicable to every member, the law delegating the power is general, whatever the nature of the power may be. In re Cleveland, 52 N. J. Law, 188, 19 Atl. 17. We consider the act general.

The next reason for reversal is that the law embraces an object which is not expressed in its title, viz. the division of the new wards into election precincts. The end sought by the formation and establishment of wards in a city is the securing of local representation in the municipal government for the various sections of the city. To this end the division of the wards into election precincts is directly conducive. It is the means by which the object expressed in the title-the establishment of wards-is to be attained. It therefore is properly embraced within that title. Onderdonk v. City of Plainfield, 42 N. J. Law, 480; Payne v. Mahon, 44 N. J. Law, 213; State v. Atlantic City, 56 N. J. Law, 232, 28 Atl. 427.

The last objection to be considered is that the act either had been repealed, or had not gone into effect, when the commissioners were appointed,-June 25, 1894. The argument to make out the repeal of the act is thus presented: (a) On April 26, 1894 (P. L. 1894, p. 145), "An act concerning wards and dis

trict lines in the cities of this state" was passed, the second section of which is "that all acts and parts of acts inconsistent with this act be and the same are hereby repealed, and this act shall take effect May 8, 1894." (b) On May 17, 1894, an amendment to this act was passed (P. L. 1894, p. 417), which provided that the second section should be amended so as to read as follows: "That all acts and parts of acts inconsistent with this act be and the same are hereby repealed." (c) The act of May 16, 1894, is inconsistent with the act of April 26, 1894, and therefore was repealed by the later amendment of May 17, 1894. For the support of this argument two propositions are essential: First, that the acts of April 26 and May 16 are inconsistent; second, that the amendment of May 17 evinces a purpose to repeal whatever laws were, at that date, inconsistent with the act of April 26. Without stopping to consider the first proposition, we think the second is not true. Under our constitution, an amended section must be recited at length in the amending act, and, in compliance with this requirement, the legislature gave to the act of May 17 the form in which it appears. The evident design, however, was not to reenact any portion of the act of April 26, not to enlarge its scope, but rather to abrogate part of it,-the part which declared that it should take effect on May 8, 1894. The legal result was that the act of April 26, which had been in force from May 8 to May 17, became on the last-named day suspended, and so remained until July 4, when it resumed its original efficacy. But its repealing power was never extended beyond those statutes which on April 26 were inconsistent with it. By observing the constitutional form of amending a section of a statute, the legislature does not express an intention then to enact the whole section as amended, but only an intention then to enact the change which is indicated. Any other rule of construction would surely introduce unexpected results and work great inconvenience. We think that, if there be any inconsistency between the acts of April 26 and May 16, the latter act must prevail. The contention that the act of May 16 did not go into effect until July 4 is based upon the claim that as the act provided that it should take effect on May 14, which was impossible, being two days before its passage, therefore the case falls within the general statute (Revision, p. 1122, § 13) which declares that public acts shall go into effect on July 4 next after their passage, "unless otherwise specially provided for in such act." This general statute creates, of course, no limitation upon the constitutional power of the legislature. merely prescribes a rule of interpretation to be applied by the courts in order to ascertain the intention of the lawmaker. That intention, when ascertained, if expressed in a constitutional mode, becomes the law, whether it has been expressed in the form pointed

It