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CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

Eli H. Chandler and Geo. A. Bourgeois, for plaintiffs. Wm. M. Clevenger and Thompson & Cole, for defendants.

VAN SYCKEL, J. This is an action of ejectment brought to recover possession of about 41⁄2 acres of land in the county of Atlantic.

At the opening of the trial below, the plaintiffs disclaimed title to the southerly half of said tract, and claimed title only to the northerly half. The plaintiffs traced their title back to James Adams, who derived his title from Thomas Adams by a deed dated in 1827, which was produced in evidence. The trial court properly construed this deed as a conveyance of the northerly half of the lot therein described. In proving title, the plaintiffs gave in evidence, among other things, family history and relationship, which was objected to as incompetent because it had not been set forth in the bill of particulars of title furnished to the defendants. This bill of particulars is not in the printed case, and the court is without accurate knowledge of what it contains. In Graham v. Whitely, 26 N. J. Law, 254, Chief Justice Green pronounced the rule to be that, if the bill of particulars merely specifies the documentary evidence upon which the party intends to rely, including the will of W. B., the party is not thereby restricted to a claim of title by devise, nor prevented from establishing by parol a title from W. B. by descent. There was, therefore, no error in permitting the plaintiffs to show that they are the descendants and legal heirs of James Adams, who, so far as appears in the case, died without having disposed of the locus in quo, either by deed or by will. The plaintiffs' evidence shows that the title which inhered in James Adams passed to them as his heirs at law. But in an action of ejectment the plaintiff must trace his title back to some one who is shown to have been in possession, or, failing in that, he must show that his grantor acquired title from the original proprietors. If they succeeded in that, they established a prima facie title, which put upon the defendants the burden of showing a better title. In 'Troth v. Smith (N. J. Sup.) 52 Atl. 243, the plaintiff's paper title was derived from the heirs of Jeremiah Leeds, and it was held to be sufficient, in support of their possession, to show that upon their petition commissioners were duly appointed by a court of competent jurisdiction to divide the said lands among the heirs, and that said commissioners, in the execution of their duty, did make the division, which was of record. To show possession in James Adams, the plaintiffs offered in evidence a deed from Jeremiah Adams to James Adams, dated in 1808, for an 18-acre tract of land known as "Buzzards Roost," adjoining the

locus in quo. To the admission of this deed objection was made on the part of the defendants, but the trial court permitted the bill of particulars to be amended, and also held that, it being competent to prove by parol possession in James Adams, this deed must be regarded as an aid to that proof, and not as a conveyance strictly in the chain of plaintiffs' title to be set out in the bill of particulars. In this respect the objection was properly dealt with.

James Adams died in 1834. Jemima, his widow, died in 1873. This suit was commenced in 1900.

There was some evidence to show that James Adams was living on the Buzzards Roost property when he died, and that the locus in quo was in the same inclosure. James Adams left his widow Jemima surviving him, and she remained in possession of the house on Buzzards Roost until 1872, when she removed, and died in the following year.

Under these circumstances the court properly charged the jury that the deed to James Adams for the locus in quo was sufficient prima facie evidence of the plaintiffs' title derived from James. James Adams conveyed Buzzards Roost to John Adams, through whom defendants claim, in 1833, but Jemima Adams did not join in this deed. Jemima Adams, therefore, after the death of her husband James Adams, was presumably in possession of both tracts in right of her dower, and until dower was assigned, of which there was no proof.

It does not appear that John Adams had any paper title to the locus in quo from James Adams, or from any one having a paramount title to that of James, and there are no facts shown to justify the presumption of such a conveyance. The defendants must therefore stand on a title by adverse possession. During the life of Jemima, whom John married after the death of James, the possession of John was not adverse. Jemima was entitled to retain possession until her dower was assigned in the lands of James Adams, and therefore, up to the time she removed from the premises in 1872, no time had run against the title of the plaintiffs. When the sheriff, by virtue of an execution against John Adams, sold his interest in the said lands in 1842, John had no paper title to the locus in quo, and no possession which could draw to it the possession of the locus in quo. The fact that John, after his interest in the lands was sold by the sheriff in 1842, remained in possession with Jemima, the widow of James, whom he had married, gave John no such possession as, if continued, would be adverse. It was, in contemplation of law, the possession of Jemima Adams in right of her dower, and not the possession of John. John had the right to live there with his wife, and the heirs of James could not, until her dower was assigned, have succeeded in evicting him. There

fore adverse possession, to support the defendants' title, could not have begun to run until after 1872. Whether, since that date, the defendants and those under whom they claim had been in such continuous, open, notorious, and hostile possession for 20 years as constituted a title by adverse possession, was a question of fact, which was submitted to the jury with proper instructions. The verdict for the plaintiffs was not so clearly against the weight of evidence as to justify this court in setting it aside.

The rule to show cause should be discharged.

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1. An indictment under section 167 of the crimes act (P. L. 1898, p. 840), which charges a person holding an office of public trust with the embezzlement of "money, property, and securities," as stated disjunctively in the statute, is not bad for duplicity; the rule being that to state in an indictment the successive gradations of statutory offenses conjunctively, when they are not repugnant, is allowable.

2. It is sufficient in such indictment to charge the embezzlement to be of money, without specifying any particular coin or valuable security. Value need not be stated, except where it is the essence of the offense. P. L. 1898, pp. 878-882.

3. Where the defendant was charged as treasurer of the borough of D., instead of collector of D., the latter being his official title, it appearing that under the borough laws the collector was required to act as treasurer of the borough, and as such to collect, have, hold, and receive all moneys raised by taxation, etc., the indictment was held sufficient, in view of the provision of the criminal procedure act which forbids the reversal of a judgment on an indictment for any defect therein, except such as may have prejudiced the defendant in maintaining his defense upon the merits.

4. In an indictment for a statutory crime, it is sufficient to charge it in the words of the statute. without other statement of facts, when the offense is thereby described without ambiguity or uncertainty.

5. Although the indictment may not show that the grand jury which presented it was held in the county where the venue is made. yet if it appear by the caption and the record that the grand jury was impaneled and sworn before the court sitting at the county town, and that afterwards it reported the indictment to the same court and was discharged, the indictment will be held good.

6. A single demurrer or plea to two or more separate indictments is irregular, and will be stricken out.

7. The motions to quash the indictments in this case, four in number, which were removed into this court by certiorari, were denied, and the record remitted for trial.

(Syllabus by the Court.)

Certiorari to court of quarter sessions, Monmouth county.

Frank S. Bartholomew was indicted for embezzlement, and demurred, and filed mo

2. See Embezzlement, vol. 18, Cent. Dig. § 42.

tion to quash. From an order overruling same, he brings certiorari. Motion to quash denied.

Argued November term, 1902, before DIXON and HENDRICKSON, JJ.

Thomas P. Fay, for plaintiff in certiorari. John E. Foster, for the State.

HENDRICKSON, J. The plaintiff in certiorari is the defendant below to four different indictments, which have been removed into this court from the Monmouth quarter sessions. They charge the defendant with various embezzlements of the moneys and property of the borough of Deal, in said county, while serving in the office of treasurer or collector of the borough. The plaintiff has demurred to the four indictments by a single demurrer. He has also pleaded to the jurisdiction in the four cases by a single plea. The demurrer and plea are for this reason improperly pleaded, and will be stricken out.

The defendant has, however, presented with the reasons filed a motion to quash, which is a statutory method of raising objections the indictment. P. L. 1898, p. 881, § 44. In the record these indictments are respectively numbered one, two, three, and four. I will so refer to them in the opinion.

One of the grounds of invalidity urged against Nos. 1 and 2 is that they are bad for duplicity in charging three distinct offenses, to wit, the embezzlement of "money, property, and securities." In section 167 of the crimes act (P. L. 1898, p. 840), upon which the indictments are presumably based, the same words appear in the disjunctive form. Where a statute makes two or three distinct acts connected with the same transaction indictable, each one of which may be considered as representing a phase in the same offense, it has in many cases been ruled they may be coupled in one count. Wharton, Cr. Pl. & Pr. (9th Ed.) § 251. To state the successive gradations of statutory offenses conjunctively, when they are not repugnant, is allowable. Id. § 162; State v. Price, 11 N. J. Law, 203. There is no repugnancy here. The successive statements of the three classes of property charged to have been embezzled is in the language of the statute, and the embezzlement of anything in any one of these classes constitutes the offense charged. But such a defect, if it existed, would be amendable under section 34 of the criminal procedure act (P. L. 1898, p. 878). Larison v. State, 49 N. J. Law, 256, 9 Atl. 700, 60 Am. Rep. 606.

After the indictment No. 2 charges the embezzlement of "certain money, properties, and securities committed to his keeping as treasurer of the borough of Deal aforesaid," it proceeds as follows: "Viz.: the sum of three hundred and eighty-six dollars and nine cents, of the value and amount of $386.09,

belonging to," etc. This, it is contended, is faulty, as not stating what was embraced in the valuation, and as not describing the things embezzled with sufficient certainty. We think the count plainly charges the embezzlement of money, specifying the amount and value thereof, and also property and securities, without stating their value. It is no longer necessary to state value, where not of the essence of the offense. Cr. Proc. Act (P. L. 1898, p. 878) § 33. It is sufficient, also, to charge the embezzlement to be of money, without specifying any particular coin or valuable security. Id. p. 882, § 47.

The indictments numbered 1 and 2 also charge the defendant as "then and there holding an office of trust and profit under the authority of a public corporation existing under the laws of this state, to wit, the office of treasurer of the borough of Deal," etc., and then with the embezzling of certain money, etc., "committed to his keeping as such treasurer of the borough of Deal aforesaid." The point is raised that there is no such office of trust and profit as treasurer of the borough of Deal. The borough was incorporated in 1898 (P. L. p. 49), subject to the general borough laws. The borough acts (P. L. 1897, p. 285; P. L. 1900, p. 400) provide for the office of collector, and clothe him with the like powers and duties that belong to the collectors of the several townships, and in addition thereto it is provided that he shall act as treasurer of said borough, and shall collect, have, hold, and receive all moneys raised by taxation, etc. We think the averment that plaintiff was holding an office of trust, profit, etc., to wit, the office of treasurer of the borough of Deal, in view of the statutory language here recited, made it unmistakably clear to the defendant that he was in fact charged as holding the office of collector of the borough; and, this being so, the indictment in question should not be quashed in view of that provision of the criminal procedure act which forbids the reversal of judgment on any indictment for any imperfection or defect therein, except such as may have prejudiced the defendant in maintaining his defense upon the merits. Section 136. This view finds support in State v. Munch, 22 Minn. 67. In that case an indictment charging that the defendant, being then and there a person employed in the public service of the state as treasurer of the said state, and intrusted as such treasurer, etc., while it contained no direct and explicit averment that he was state treasurer, was considered sufficient, as it was impossible not to understand from the indictment that such was the fact.

Another point raised in the reasons is that indictments 1 and 2 do not show from what source or for what purpose the officer received the money or how the borough became entitled to it. The answer to this is that the statute has defined the crime in question to be complete when such officer shall embezzle

any of the money, etc., committed to his keeping, with intent to defraud the state, county, city, borough, etc.; and the indictments in this respect follow the exact words of the statute. In an indictment for a statutory crime it is sufficient to charge it in the words of the statute, without a particular statement of the facts and circumstances, when the offense is thereby described without ambiguity and uncertainty. State v. Startup, 39 N. J. Law, 423; State v. Stimson, 24 N. J. Law, 478; Com. v. Welsh, 7 Gray, 324. Embezzlement is a distinct offense, of a character well understood, the essential elements of which are not involved in uncertainty, so that the indictments under discussion are clearly within the rule stated. Goodhue v. People, 94 Ill. 37.

This answer will apply, also, to a further point raised, that the indictments fail to charge conversion by defendant to his own

use.

The point is raised as to indictment 3, which is based on section 168 of the crimes act, that it does not describe the collector as "having taxes to collect," nor show that the money embezzled, etc., was received for taxThis is unnecessary. The statute referred to does not require it. The words of the statute are to the effect that the collector who shall embezzle, etc., any money received or collected by him for the borough, etc., shall be guilty, etc.

es.

Another point is that two offenses are charged in the use of the words "embezzle and retain in his hands." This is merely charging in the conjunctive the words that appear disjunctively in the statute. This is not duplicity, as we have already shown.

A point is also made that some of these indictments represent a mere duplication of the same charge. They set out, however, the embezzlement of differing amounts on different dates; and we must assume, looking at the indictments alone, that each charges a distinct offense.

Other points are raised as to indictments 3 and 4; but they are either met by what has been already said, or are so clearly without substance as to render discussion unnecessary.

The point was made against all the indictments that they are defective in not showing that the grand jury was held in the county of Monmouth. The indictments begin: "Monmouth county, to wit, the grand inquest of the state of New Jersey, in and for the body of the county of Monmouth." This is in accordance with the established form, and, when read in connection with the caption and record of the proceedings, shows the opposite of the proposition suggested. The caption shows that the grand jury was impaneled and sworn at Freehold, in said county of Monmouth, before the court of oyer and terminer of that county, and that it presented these bills later to the same court and was discharged. This justifies the conclusion that

the grand jury was held and its indictments found within the county of Monmouth. Com. v. Fisher, 7 Gray, 492; Smith v. State, 28 Tenn. 9.

The motion to quash is denied. The record will be remitted to the Monmouth quarter sessions for trial.

(69 N. J. L. 119)

O'REILLY v. PENNSYLVANIA R. CO. (Supreme Court of New Jersey. Feb. 24, 1903.)

RAILROADS-RELIEF DEPARTMENT

1. Rule 58 of the defendant's relief department reads as follows: "Should a member or his legal representative make claim or bring suit against the company, or against any other corporation which may be at the time associated therewith in administration of the relief departments, in accordance with the terms set forth in regulation No. 6, for damages on account of injury or death of such member, payment of benefits from the relief fund on account of the same shall not be made until such claim shall be withdrawn or suit discontinued. Any compromise of such claim or suit, or judgment in such suit, shall preclude any claim upon the relief fund for benefits ou account of such injury or death, and the acceptance of benefits from the relief fund by a member or his beneficiary or beneficiaries on account of injury or death shall operate as a release and satisfaction of claims against the company and any and all the corporations associated therewith in the administration of the relief departments for damages received from such injury or death."

RELEASE.

Held, that the judgment intended by that rule is a judgment awarding the plaintiff some damages.

(Syllabus by the Court.)

Certiorari to Trenton district court.

Action by Bridget O'Reilly against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings certiorari. Reversed.

Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

James L. Kelly and Clarence S. Biddle, for plaintiff. Charles E. Gummere and Alan H. Strong, for defendant.

DIXON, J. Thomas O'Reilly was killed on January 18, 1899, while in the performance of his duties as an employé of the defendant company. At that time he was a member of the relief department of the company. Afterwards, his administratrix, the plaintiff here, brought an action against the company to recover damages under our death act, but on demurrer to her declaration final judgment was rendered for the defendant. Afterwards she brought the present suit to recover $250 claimed to be due as benefits under the rules of the relief department, and the defendant insists that the judgment above mentioned bars her claim by force of rule 58, which is recited at the head of this opinion.

The question for decision is whether a judgment on demurrer is the kind of judg-!

ment intended by that rule. We think it is not. The meaning plainly expressed in every clause of this rule, except that now under consideration, is that the employé injured, and the representatives of an employé killed, shall not receive both compensation for the injury or death, and benefits from the relief department; and to effectuate this purpose it is declared that a claim for compensation shall suspend a claim for benefits, and the satisfaction of either claim shall discharge the other. Among these clauses is that now to be construed, namely, "Any compromise of such claim or suit (for compensation), or judgment in such suit, shall preclude any claim upon the relief fund." Here the judgment intended is coupled with a compromise of the claim or suit, and a compromise implies, not a total defeat of the claim, but an adjustment which gives the claimant at least part of his claim-an adjustment in which the parties agree upon the sum to be paid. Bearing in mind the general purpose of the regulation and this collocation of compromise and judgment, we think the judgment intended is one by which the claimant recovers some compensation for the loss alleged, and not one which turns on the mere form of pleading.

The judgment of the district court, to the contrary should be reversed, and the record remitted to that court for a new trial.

(69 N. J. L. 50) DAVEY V. ERIE R. CO.

(Supreme Court of New Jersey. Feb. 24,

1903.) DECLARATION-DEMURRER.

1. Where a declaration in an action of tort for negligence is demurred to, even though it be inartistically drafted, still, if it allege with sufficient certainty facts that show a legal duty, and the neglect thereof on the part of the defendant, and a resulting injury to the plaintiff, without fault on his part, it is not demurrable.

2. A ground of demurrer suggested in the brief, but not assigned among the causes of demurrer served, will not be considered.

(Syllabus by the Court.)

Action by Jane Davey against the Erie Railroad Company. Demurrer and declaration overruled.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

Joseph M. Roseberry, for plaintiff. George M. Shipman, for defendant.

FORT, J. This is a demurrer to a declaration. The declaration contains two counts. The counts are inartistically drawn, and each is confused by unnecessary amplification, but neither count is sufficiently faulty to sustain a general demurrer.

The first count is based upon the alleged careless management of a locomotive engine by the servants of the defendant, such negli

gence resulting in hot ashes, burning coals, etc., falling upon the combustible material upon the right of way of the defendant company, and setting fire to such combustible materials thereon, and then spreading to the standing timber, etc., on the plaintiff's land.

The second count is founded upon the allegation of negligence in the defendant in the way it kept its roadbed and its adjacent land on the right of way; the averment being that the defendant failed "to keep its said strip, parcel, or tract of land * * * free from combustible materials, so that fire should not be occasioned by reason of hot ashes, burning coals, * * falling and settling thereon from out of said locomotive engines, and to take reasonable care to guard against the escape of fire which might be occasioned thereby."

These counts each sufficiently charge a duty and the neglect thereof upon the part of the defendant company. Salmon v. D. L. & W. R. R. Co., 38 N. J. Law, 5, 20 Am. Rep. 356.

It is insisted upon the brief of the demurrant that the declaration does not describe or locate the lands of the plaintiff with sufficient certainty. This may be true, but, as no such ground for demurrer is found in the causes of demurrer in the record, it is not, decided.

The demurrers are overruled, with costs.

(69 N. J. L. 195)

BACON et al. v. BOARD OF CHOSEN FREEHOLDERS OF CUMBER

LAND COUNTY.

(Supreme Court of New Jersey. Feb. 24, 1903.) MANDAMUS TO CHOSEN FREEHOLDERS—REPAIR OF ROADWAY.

1. Where the legal obligation of a board of chosen freeholders to put a roadway in fit condition for public travel is not clearly shown, its enforcement by mandamus will be denied.

(Syllabus by the Court.)

Application by the people, on the relation of Alonzo T. Bacon and others, for writ of mandamus to the board of chosen freeholders of the county of Cumberland. Rule to show cause discharged.

Argued November term, 1902, before GARRISON and GARRETSON, JJ.

Walter H. Bacon, for relators. Samuel Iredell, Samuel H. Richards, and Thomas E. French, for respondents.

GARRISON, J. The relators, as taxpayers, ask for a writ of mandamus to compel the board of chosen freeholders of the county of Cumberland to put a roadway in fit condition for public travel.

The relators may maintain this action. Ferry v. Williams, 41 N. J. Law, 332, 32 Am. Rep. 219.

The facts are that the bridge and roadway in question were built by private capi

tal, under legislative sanction (P. L. 1864, p. 583), and were operated as such until 1871, when they were bought by the defendant, the board of chosen freeholders of the county of Cumberland. A statute passed in that year (P. L. 1871, p. 303) authorized this acquisition by the freeholders. One of the objects set forth in the title of this act was "to convert the road of the said bridge company which is appurtenant to the said bridge into a public highway," and one of the provisions of the statute was "that upon the execution and delivery of said conveyance, the said road of said company, now appurtenant to said bridge, shall be deemed to be, and shall become, and shall be worked and managed as a public highway, the same as if said road had been laid out and established, according to the provisions of the general road act; and that upon the execution and delivery of said conveyance, the existence of the said the Maurice River Bridge Company as a corporate body, shall become extinguished."

A new bridge was built by the county in 1888, and this structure is not claimed to be either deficient or out of repair. The controversy is over the duty of the board of chosen freeholders to put the road in question in a condition fit for public travel.

It is evident from the testimony taken under this rule that what is required of the freeholders is not merely to repair the roadway, or to maintain it in the condition in which it was when it became a public highway, but to reconstruct it upon a higher grade. The imposition of this duty upon the freeholders, and its enforcement by mandamus, implies that the following propositions are established: (1) That the roadway is in legal contemplation an appurtenant to the bridge, rather than a public road; (2) that by force of the act of 1871 the road did not become a public highway, as distinguished from an appurtenant to the bridge; (3) that the purchase of the bridge and road by the county imposed upon it the duty of reconstructing the road notwithstanding the legislative declaration of the future status of the road; (4) that the duty of the freeholders, if it exists, is not merely to maintain or repair, but to reconstruct; (5) that this is the legal duty of the freeholders regardless of its discretion in the premises.

Of these propositions not one can be said to be free from doubt unless the act of 1871 so clearly defines the future status of the road as to leave no doubt that it was intended to sever it from the bridge, and establish it as a public highway, as if laid out under the general road act (3 Gen. St. p. 2803). Inasmuch, however, as the township in which the road lies is not a party to this proceeding, no opinion that involves its liability is intended to be expressed, especially as the present matter must be disposed of upon a general rule that is insepara ble from the prerogative writ that is invoked,

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