pointed a receiver of the property of Blythe. On the same day Smith presented an application to the judge of the circuit court of the county of Atlantic to quash the writ of attachment issued at the suit of the respondent against Kirk Blythe, and dismiss the same. A rule to show cause was granted. Evidence was taken upon this rule, and after consideration the judge denied the application and discharged the rule. The legality of that judicial action is challenged by this writ.

The court will not reverse the action of the circuit judge upon a question of fact when there is evidence upon which the finding of the court could be made. Stout v. Leonard, 37 N. J. Law, 492; McAdam v. Block, 63 N. J. Law, 508, 44 Atl. 208; Miller v. Servis (N. J. Sup.) 52 Atl. 374.

When it appeared from the testimony that the debtor had a residence in this state, and also a residence elsewhere, he was liable to be sued by attachment, if at the time he did not dwell in this state, and did not dwell or have his usual place of abode here. If he could not, when the writ was issued, have been personally served, and his dwelling house and usual place of abode was not in this state, then attachment would lie. Stout v. Leonard, supra; Mygatt v. Coe, 63 N. J. Law, 510, 44 Atl. 198; Evans v. Perrine, 35 N. J. Law, 221. A residence or place of abode in this state of a temporary or permanent character, at which a summons might lawfully be served, is the condition on which process of attachment cannot be issued. Baldwin v. Flagg, 43 N. J. Law, 495; Conover v. Beckett, 38 N. J. Eq. 389.

It appears that Blythe in November, 1894, went to live in Atlantic City, and that in 1901 he was living at 208 North Virginia avenue, that he had been a voter in Atlantic City for four years, but did not vote there at the election held in November, 1901. That he lived at this house with his wife and two children, aged respectively 9 months, and 3 years and 4 months.

It is admitted that Blythe, with his wife and younger child, left Atlantic City in the latter part of September or the early part of October, 1901, and went to Camden, the husband having work in Philadelphia; that they remained in Camden about two weeks, and then went to Philadelphia and boarded there, Blythe until about January, 1902, and Mrs. Blythe leaving there a few weeks before Christmas, and returning again to Atlantic City. When they went to Camden they left the older child with Mr. Blythe's parents, and a Mr. and Mrs. Hoffman-the uncle and aunt of Mrs. Blythe-went to live in their house. The house remained open, with the Blythes' furniture there, and Mr. and Mrs. Hoffman living there. The evidence shows that both Mr. and Mrs. Blythe returned to that house at different times during the period they were boarding in Philadelphia, and remained over night or 54 A.-16

longer. The frequency of the stays by Blythe and his wife in this house is disputed.

The respondent claims that the Hoffmans rented the house from Blythe for a definite period, but the only evidence of this is from various witnesses that Mrs. Blythe so stated to them. This, of course, was not legal evidence to prove the fact, and could not bind Mr. Blythe. On the other hand, the Blythes and the Hoffmans both testify that they went to the house to be company for Mrs. Blythe during her husband's absence; that Mr. Blythe continued to pay the rent monthly, as he always had done, although on one or two occasions Mrs. Hoffman carried the money for the rent to the agent, but it was furnished to her by Blythe; that Mrs. Blythe was only visiting her husband when she was away, but that her residence, and also his, continued at the house in Atlantic City, and the evidence is uncontradicted that at the time the attachment was issued Mrs. Blythe was at the house in Atlantic City. We do not think, therefore, that there was evidence to show that Blythe had obtained any other dwelling house or usual place of abode than the one in Atlantic City, and that that was his dwelling house and usual place of abode, and that summons might have been served upon him there.

The rule to show cause should be made absolute, with costs.

(69 N. J. L. 198)

STATE ex rel. O'HARA v. NATIONAL BISCUIT CO. et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

CORPORATIONS-RIGHTS OF STOCKHOLDERSEXAMINATION OF BOOKS-MANDAMUS.

1. The right to examine the stock and transfer books of corporations is, by the thirtythird section of the general corporation act of this state (P. L. 1898, p. 409), accorded to stockholders in their capacity as such; hence, in the enforcement of such right by mandamus, it must appear that the right which the relator seeks to exercise is germane to his status as a stockholder.

2. A statutory provision, originally enacted under the title of "An act to prevent fraudulent elections in incorporated companies and to facilitate proceedings against them," will have the limitation imposed by such title impressed upon it, notwithstanding its re-enactment in subsequent revisions of the law under the title of "An act concerning corporations," and hence, notwithstanding the generality of its language, does not extend the right of the stockholder to examine corporate books beyond that accorded to him at common law, or entitle him to the remedy by mandamus, save as a discretionary writ.

(Syllabus by the Court.)

Application by the state, on the relation of Joseph W. O'Hara, for writ of mandamus to the National Biscuit Company and James B. Vredenburgh, registered agent. Writ denied.

Rule to show cause why a mandamus should not issue to compel the defendant cor

poration and its registered agent in this state to permit the relator to examine its stock and transfer books during ordinary business hours.

The testimony established the following facts: The relator was, on October 11, 1892, the registered owner of five shares of the common stock of the defendant corporation. On that day, during ordinary business hours, he applied to James B. Vredenburgh, Esq., the registered agent of the said corporation, to be allowed to examine the stock and transfer books of the said company, stating that he (the relator) represented a claim against a certain man by virtue of legal proceedings in the state of Ohio, and that his object in seeking to examine the said books was to find out whether this man owned or had recently transferred shares of stock of the said corporation. The relator's right to examine the said books for this purpose having been denied, this rule to show cause was allowed on October 13, and filed on October 16, 1902, and on October 17, 1902, a certain amended certificate of incorporation of said company was filed in the office of the Secretary of State.

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

John S. Parker, for relator. Albert C. Wall, for defendants.

GARRISON, J. This application involves the question whether the qualified right of a stockholder to inspect the books of his corporation, as that right existed at common law, has, with respect to stock and transfer books, been transformed into an unqualified right by force of the thirty-third section of the corporation act of this state (P. L. 1898, p. 409). At common law such restrictions as were imposed upon this right, whether as to mode of procedure or matter of substance, were judicial regulations incident to the exercise of a discretionary power over a topic not covered by specific legislation. It is not perceived that the enactment of such legislation infringes upon any prerogative recognized under our judicial system. If the legislature has conferred upon all stockholders an absolute right to inspect certain corporate books for all purposes, the duty of the court is to enforce such right by its writ of mandamus. The rule of the common law with respect to the right of stockholders to obtain by mandamus an inspection of corporate books is correctly stated in the opinion delivered in this court in the case of Bruning v. Hoboken Printing & Publishing Co., 50 Atl. 906. The relator does not deny the discretionary nature of the writ at common law, or that this discretionary character still obtains in this state, save as it has been altered by the legislature. His contention is that, with respect to the examination of stock and transfer books, the legislature has conferred upon stockholders an absolute right that abrogates the judicial discretion nor

statutory provision upon which this claim is rested is the first clause of section 33 of "An act concerning corporations" (Revision of 1896, as amended by P. L. 1898, p. 409), which is in these words: "Every corporation shall keep at its principal and registered office in this state the transfer books in which the transfer of stock shall be registered, and the stock books, which shall contain the name and address of the stockholders, the number of shares held by them respectively, which shall at all times during the usual hours for business be open to the examination of every stockholder."

I do not find in this language a legislative grant broad enough to cover the plaintiff's contention, or discover in it any purpose to dispense with the judicial discretion incident to the enforcement of its provisions. The right to inspect the books that contain the names, addresses, and quantum of interest of holders of shares in a corporation is given to "stockholders"; a term that not only defines the class upon which the right is conferred, but also indicates the capacity in which the right is to be enjoyed, namely, that it must be with respect to the relator's interests as a stockholder, or be germane to his status as such. If this is the correct interpretation of this language, it affords no support for the relator's contention that it confers upon him a right superior to and in excess of that obtainable under the settled practice of the discretionary proceeding that he has invoked. If, however, instead of interpreting the language of the legislative grant, we pass to its construction, a like effect must be given to it, so far as this relator is concerned.

The provision in question first appeared as a statute on December 8, 1825, under the title of "An act to prevent fraudulent elections by incorporated companies and to facilitate proceedings against them." Harrison, p. 112. Under this title it was continued in the Revised Statutes of 1846. Rev. St. p. 139. In the Revision of 1874 it was transferred to and re-enacted as section 36 of "An act concerning corporations." Revision, p. 163. In 1896 it was again re-enacted in the Revision of that year as section 33 of "An act concerning corporations," omitting the words "for thirty days prior to any election of directors," and without further modification was continued in the amended act of 1898, P. L. 1898, p. 409.

The effect to be given to this course of legislation is definitively settled by the decision rendered in the Court of Errors and Appeals in the case of Hendrickson v. Fries, 45 N. J. Law, 555. The statutory provision under review in that case was: "Every warrant of attorney for confessing judgment which shall be included in the body of any bond, bill or other instrument for the payment of money shall be void and of no effect; and such bond, bill or other instrument shall have the same

force, and no other, as if the said warrant of attorney had not been incorporated therein." Revision, p. 81, § 1.

The contention of the plaintiff in error in that case was that this statute, standing in unqualified terms as part of a general act, laid down a general rule with respect to its subject-matter. In disposing of this contention adversely, Mr. Justice Depue, delivering the opinion of the court, said:

"The statutory provision in question was passed in 1799 as section 13 of an act entitled 'An act to regulate the practice of courts of law.' Rev. Laws, p. 415. It was continued in the practice act in the Revision of 1846. Rev. St. p. 931. In the Revision of 1874 it was transferred to and re-enacted as section 1 of 'An act directing the mode of entering judgments on bonds with warrants of attorney to confess judgments.' Revision, p. 81. Under the provision of our Constitution, the title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law. It can have no effect with respect to any object that is not expressed in the title. Applying this canon of construction, I think it is clear that this statute must be construed to be a mere regulation of the practice in our own courts."

Inasmuch as the limitation to the "practice in our own courts" is derived entirely from the title under which this statute was originally passed, and is not referable to the title under which it was re-enacted, the doctrine of the decided case is that, where a statute is originally passed under a title that limits its provisions, the re-enactment of such provisions in subsequent revisions of the laws under a title that has no such limiting effect will not remove the limitation imposed by the original title.

In fine, the rule established by Hendrickson v. Fries is that a legislative enactment, limited in its operation by force of the title under which it was originally passed, will continue to be impressed with such limitation, notwithstanding its re-enactment in subsequent revisions of the law under a title that imports no such limitation. Applying this canon of construction, which is binding upon this court, to the section of the revised corporation act under review, we must hold that the limitation imposed upon it by the title under which it was originally passed followed it through its subsequent transferences and re-enactments, so that, under the title of "An act concerning corporations," it is still to be construed as if it stood under the title of "An act to prevent frauds in the elections of incorporated companies and to facilitate proceedings against them." Thus construed, it does not extend the rights of stockholders beyond those customarily accorded to them at common law, and affords no ground for the claim that the discretionary nature of the proceeding now invoked has been abrogated or in any wise disturbed.

The result is that, whether we resort to interpretation or to construction, the relator has not shown himself to be entitled to the writ for which he asks.

If the relator so desires, the finding of facts prefaced to this opinion may be treated as the defendant's return to an alternative writ of mandamus to which the relator has demurred, in which case error would be assignable upon a judgment overruling such demurrer. For this purpose an application to the court is necessary. Hoos v. O'Donnell, 60 N. J. Law, 35, 37 Atl. 72, 447.

(69 N. J. L. 92)

FELT . STEIGLER. (Supreme Court of New Jersey. Feb. 24, 1903.)

ACTION FOR MONEY LOANED-INSTRUCTIONS. 1. An action being brought to recover the sum of $1,500, payable in 15 monthly installments of $100 each, and there being evidence from which the jury might find that the 15 months had not expired prior to the commencement of the suit, and that, as to $100, it was not due when the suit was brought:

Held erroneous to charge the jury that the matter was of such small consequence that they might disregard it, even if they believed that the 15 months had not expired, and that, as to $100, it was not due when the suit was brought. (Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Henry Felt against Charles Steigler. Judgment for plaintiff, and defendant brings error. Reversed.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Johnson & German and Robert H. McCarter, for plaintiff in error. Francis Child, for defendant in error.

PITNEY, J. This action was brought by a building contractor to recover a balance claimed to be due upon a written contract, and also certain moneys claimed for extra work. Plaintiff had a verdict and judgment below.

The defendant contended, among other things, that the suit was prematurely brought, and that the plaintiff was not entitled to recover the full amount claimed. The contract provided that the consideration for the construction of the building in question should be $3,000, $1,500 to be paid in monthly payments of $100 per month during a period of 15 months. The plaintiff claimed that the work was completed on or before July 28, 1900, but there was evidence to be submitted to the jury, and which the trial judge did submit to them, from which they might find that the final work was not done until some time in August. The suit was commenced October 30, 1901. Therefore, if the jury should find that the last work was done in August, it would follow that the final installment of $100 had not fallen due

at the time of the commencement of the suit. In this state of the proofs, the trial judge in his charge to the jury, after referring to the evidence pro and con upon the question whether the building was completed in July, or not until some time in August, proceeded to charge the jury as follows: "The matter is of such small consequence that I instruct you that you may disregard it in the present suit, even if you believe that the 15 months had not expired, and that, as to $100, it was not due when the suit was brought. At any rate, 15 months has now expired, and I think that no harm will be done by looking at the case in that way." To this portion of the charge an exception was taken and duly sealed.

'It was, we think, erroneous for the trial judge to charge the jury that they might include the final $100 in their verdict, although it was not due when the suit was brought. The action was commenced by summons, and no claim that matured after the suit was commenced could properly be included in the verdict. The rule laid down in Devlan v. Wells, 65 N. J. Law, 213, 47 Atl. 467, is only applicable where suit is commenced by attachment.

The judgment should be reversed, and a venire de novo awarded.

(69 N. J. L. 121)

ARIMEX CONSOL. COPPER CO. v. STATE BOARD OF ASSESSORS et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

CORPORATIONS-RETURN FOR TAXATIONCONCLUSIVENESS-REDUCTION OF TAX.

1. The return made by a corporation to the State Board of Assessors, for taxation under the corporation tax act (3 Gen. St. p. 3335), is not conclusive against the corporation.

2. If by mistake the return states the corporate stock issued and outstanding to be more than it really is, the corporation may show the truth and have the tax reduced, even though it has paid the excessive tax.

3. In view of the act of June 10, 1895 (P. L. p. 788), the court cannot order the state officers to restore the excessive tax.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of the Arimex Consolidated Copper Company, against the State Board of Assessors and J. Willard Morgan, Comptroller, to review an assessment for taxes. Tax reduced. Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

William P. McMichael, Jr., for prosecutor. The Attorney General, for defendants.

DIXON, J. In the year 1900 the State Board of Assessors assessed the franchise tax of the prosecutor, under the corporation tax act of April 18, 1884 (3 Gen. St. p. 3335), at $4,000, being the proper percentage on $5,000,000 of stock which an agent of the company reported as issued and outstanding.

The company paid the tax. Afterwards the officers of the company learned at what figure the agent had reported the outstanding capital, and, as in truth the outstanding capital was only $2,500,000, a writ of certiorari was obtained to reduce the tax to $2,500, the legal sum.

While the corporation tax act requires each corporation to furnish to the Board an annual return of such information as the Board may desire to carry out the law, it does not make that return the legal basis of the tax. The legal basis of the tax is the capital stock issued and outstanding. People's Investment Co. v. Assessors, 66 N. J. Law, 175, 48 Atl. 579. The return therefore should not be deemed conclusive when the tax is brought into court by a direct proceeding to test its legality. Hence we must conclude that $1,500 of the tax is illegal.

But the Attorney General contends that, as the company paid the tax voluntarily, it is not entitled to have the assessment reduced to the legal amount. In view of the rigorous and speedy means authorized by the statute for enforcing the tax, it may be doubted whether the payment can be deemed voluntary; but if it be, still it resulted from a mistake of fact by the agent making the return, a mistake which the company might indeed have discovered by an arithmetical calculation before payment, but which it did not discover until months after payment. Such a payment would not bar a suit for reclamation against another payee than the sovereign, and it does not lessen the moral obligation of the sovereign to see that justice is done. The tax should be reduced to $2,500.

The prosecutor urges that we should make an order for the restoration of the surplus paid. In Singer Sewing Machine Company v. Assessors, 54 N. J. Law, 90, 22 Atl. 1085, we held that under the statute then in force we had legislative authority for doing so, but that authority was withdrawn by the act of June 10, 1895 (P. L. p. 788).

Let judgment be entered reducing the tax to $2,500. No costs are allowed.