H. Wootton, for the State. R. H. Ingersoll, for defendant.

DIXON, J. The prosecutor was convicted before the recorder of Atlantic City, and fined for "pretending to use and using palmistry" in violation of section 1 of the act concerning disorderly persons (P. L. 1898, p. 942). The language of the enactment so far as now pertinent is, "all persons who shall use or pretend to use or have skill in physiognomy, palmistry or like crafty science * * shall be deemed and adjudged to be disorderly persons." This provision has been part of our statutory law since June 10, 1799 (Paterson's Laws, p. 410).

One reason urged by the prosecutor of this certiorari for quashing his conviction is that the enactment is unconstitutional, but with this concession, that if palmistry is found to be a crafty science then the objection will not hold. Undoubtedly, within the intent of this statute, palmistry is a crafty science, that is, one by which the simpleminded are apt to be deceived. So much is plainly indicated by the collocation of words "palmistry or like crafty science." It was so used by the prosecutor when, from the lines on the palm of the complaining witness, he foretold the age at which the witness would marry and the duration of his life. If ever there shall be discovered any rational evidence that palmistry is a real science, its use for honest purposes will pass beyond the range of this statute; but in the present case the use of palmistry was plainly within the prohibition. We find no reason for denying the validity of the act.

The only other objection to the conviction is that the act (section 36) authorizes a conviction only on the oath or affirmation of one or more "creditable" witnesses, while the record of conviction shows that it was based on the testimony of a "credible" witness. The use of the word "creditable" to signify "worthy of belief" is said by lexicographers to be obsolete; and antiquity cannot be invoked to justify its use here in that sense, for it was introduced by our act of 1888 (P. L. 1888, p. 249). Nevertheless, we think such is its significance in this statute, and by a "creditable witness" is meant one whose testimony is worthy of credit, credence, belief; that is, in more modern phrase, a credible witness.

The conviction should be affirmed, with costs.

(69 N. J. L. 9)

CUNNINGHAM v. STANFORD. (Supreme Court of New Jersey. Feb. 24, 1903.)

ESTATES-DEBTS-WHEN BARRED.

1. Under Orphans' Court Act, § 70 (P. L. 1898, p. 741), providing that any creditor of a decedent who shall neglect to bring in his claim within the time limited by the orphans' court shall, by its decree, be forever barred

of his action against the executor or administrator, such a creditor is barred though the executor has personal property of the estate in his possession; section 75 providing that "nothing herein contained shall prevent or bar any person from bringing any action against an executor or administrator for or in respect to the personal estate of his testator or intestate" having no application to a suit to collect a claim.

Action by Annie F. Cunningham against Helen K. Stanford, executrix. Submitted on demurrer to replication. Demurrer sustained.

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

Albert C. Wall, for plaintiff. R. Wayne Parker and Cortlandt Parker, for defendant.

GUMMERE, C. J. This action is brought to recover upon a certain promissory note indorsed by the defendant's testator. To the declaration filed in the cause the defendant pleaded, among other things, the making by the orphans' court of a decree barring all creditors, who had not presented their claims to the executrix within the time limited by the decree, from having an action against her on account of such claims, and alleging that the plaintiff was barred by that decree. To this plea the plaintiff replied that there was personal property and estate of the defendant's testator in her hands to the value of $15,000, and that the said plaintiff brings her action for and in respect to the same; and that, in accordance with the statute in such case made and provided, said plaintiff ought not, by reason of anything in said plea alleged, to be barred and prevented from maintaining her action against the said defendant.

The replication contains no answer to the plea. It apparently is intended to be based on section 75 of the orphans' court act (P. L. 1898, p. 741), which reads as follows: "Nothing herein contained shall prevent or bar any person from bringing and maintaining any action against an executor or administrator, for or in respect of the personal estate of his testator, or intestate, or for or in respect of any waste or misapplication thereof by said executor or administrator." It is not necessary, in disposing of this demurrer, to stop to explain the conditions under which the provisions of this section may be invoked against an executor or administrator. It is enough to say that they do not operate to limit in any way the effect given by section 70 of the act to a decree barring creditors. To give it the construction contended for by the plaintiff would be to make the decree to bar creditors a nullity, whenever the executor or administrator of the deceased had assets in his hands with which to pay creditors, and leave it in force only when the personal representative of the deceased was absolutely without assets.

That a decree to bar creditors will be enforced against creditors, notwithstanding that

1. The Paterson & Passaic Gas & Electric Company was formed March 1, 1899, by the consolidation and merger of eight corporations, some of whom possessed and exercised municipal franchises within the definition laid down in State Board of Assessors v. Plainfield Water Company, 67 N. J. Law, 357, 52 Atl. 230, and since its formation the consolidated company has constantly exercised those franchises. Held, that the company is subject to taxation under section 4 of the act of March 23, 1900 (P. L. p. 502), for the taxation of franchises.

2. The tax to be levied on the corporation under that section is 2 per cent. of its gross annual receipts from all its business, not merely 2 per cent. of its receipts from the exercise of municipal franchises.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of the Paterson & Passaic Gas & Electric Company, against the State Board of Assessors and others, to review an assessment. Tax affirmed.

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

R. V. Lindabury and Hobart Tuttle, for prosecutor. Michael Dunn, for defendants.

DIXON, J. The Paterson & Passaic Gas & Electric Company was formed on March 1, 1899, by the consolidation and merging of the Paterson Gaslight Company, the People's Gaslight Company of the City of Paterson, the Passaic Gaslight Company, the Edison Electric Illuminating Company of Paterson, the Passaic & Bergen Gas Company, the Lodi Light, Heat & Power Company, the Passaic Electric Light, Heat & Power Company, and the Passaic Lighting Company. Under the corporation act of 1896, in pursuance of which the merger and consolidation took place, the several corporations became a new single corporation, with a new name, new capital stock, and new directors, and was (speaking generally) endowed with all the rights and powers, and charged with all the duties and limitations, of the constituent companies. Under the act of March 23, 1900, for the taxation of franchises (P. L. p. 502), this company, on April 23, 1901, made return to the State Board of Assessors that its gross receipts from its business in the state of New Jersey for the year ending December 31, 1900,

amounted to $572,007.40, whereupon that board assessed the tax against the company at $11,440.15, and apportioned the same to the various taxing districts in which the property of the company was located. The present writ of certiorari is prosecuted to reduce that tax.

The ground of the application for reduction is that three of the constituent companies, namely, the Paterson Gaslight Company, the People's Gaslight Company, and the Passaic Gaslight Company, never exercised any "municipal franchises" within the definition of that phrase given in State Board of Assessors v. Plainfield Water Company, 67 N. J. Law, 357, 52 Atl. 230. The prosecutor contends that as, by the terms of the act of 1900, it cannot "apply to any corporation which has not hitherto or may not hereafter exercise any municipal franchise" (section 8), therefore it cannot apply to the prosecutor, so as to impose a tax upon the receipts derived from the business formerly carried on by those companies. This contention plainly ignores the language of the statute. Construing together the first, fourth, and eighth sections of the act, it will be manifest that the corporations which are to make return to the state board are thus described: "Corporations [other than municipal corporations or corporations taxable under the act of April 10, 1884] which have acquired, or may hereafter acquire, authority or permission from the state or from any taxing district thereof, and have or may hereafter have the right to use and occupy, and occupying, the street or highways, roads, lanes or public places in the state," excluding, however, from such class of corporations, "any corporation which has not hitherto or may not hereafter exercise any municipal franchise." The prosecutor concedes that it is not taxable under the act of April 10, 1884; that it acquired from the state, through the charters of the three constituent companies last named, and from certain taxing districts of the state, through the five other constituent companies, authority and permission to use and occupy certain streets and highways in several municipalities of the state; that it is using those streets and highways; and that the franchises passing to it from those five companies, and which it is constantly exercising, were municipal franchises within the case cited-that is, franchises that could not be exercised without first obtaining the consent of the municipalities within whose limits they were to be exercised. It thus appears that the present corporation is within the general scope of sections 1 and 4 of the act, and is not within the special exception of section S; in other words, that it is a corporation required to make return to the state board. What that return is to set forth is declared by the act in unmistakable terms, "the gross receipts of its business in the state of New Jersey for the preceding year," and then "an annual franchise tax of two per centum upon

the annual gross receipts as aforesaid" is to be assessed upon the corporation in lieu of all other franchise taxes. There is here no suggestion that the tax is to be limited to such receipts as are derived from the exercise of municipal franchises.

The tax is affirmed, with costs.

(69 N. J. L. 214)

SLAYTOR-JENNINGS CO. v. SPECIALTY PAPER BOX CO.

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

FOREIGN CORPORATIONS-RIGHT OF ACTION— SET-OFF.

1. A foreign corporation may maintain suits in this state on contracts made outside of New Jersey since the passage of the act concerning corporations (Revision of 1896), without complying with the provisions of the ninety-seventh section of that act.

2. Unliquidated damages cannot be set off in suits in the district courts.

(Syllabus by the Court.)

Appeal from Second district court of Newark.

Action by Slaytor-Jennings Company against the Specialty Paper Box Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Leon Abbett, for appellant. & Kirkpatrick, for appellee.

Gallagher

GARRETSON, J. This is an appeal by the defendant from the judgment of the Second District court of Newark under the provisions of an act of the Legislature of April 3, 1902 (P. L. p. 565). The grounds of the appeal are (1) that the plaintiff, being a foreign corporation, could not maintain the action; (2) that the defendant should have been allowed to set off a claim for unliquidated damages against the plaintiff's demand.

Order for the goods, the price of which is the subject of the suit, was given by the defendant to a selling agent or broker for the plaintiff and several other firms or corporations. The order was placed with the agent at the defendant's office in Newark, and the agent did not at that time disclose for whom he was acting. Subsequently the order was mailed by the agent to the plaintiff at its office in the city of Boston for its acceptance, and was accepted by the plaintiff. The contract was executed in Massachusetts; hence no corporate act was shown to be done in New Jersey. In Faxon Co. v. Lovett Co., 60 N. J. Law, 128, 36 Atl. 692, this court construed the ninety-seventh section of the act concerning corporations (Revision of 1896) to permit foreign corporations without complying with its provisions to maintain suits in this state on contracts made outside of the state since the passage

1. See Corporations, vol. 12, Cent. Dig. § 2544.

of the act. The contract in this case was not made under the order obtained by the agent until it was accepted in Massachusetts. D. & H. Canal Co. v. Mahlenbrock, 63 N. J. Law, 281, 43 Atl. 978, 45 L. R. A. 538; 13 A. & E. Ency. of Law (2d Ed.) 869, 870.

The second ground of appeal is that the judge of the district court overruled a set-off or counterclaim of the defendant against the plaintiff for unliquidated damages. It is a general rule that unliquidated damages cannot be set off. Edwards v. Davis, 6 N. J. Law, 394; Smock v. Warford, 4 N. J. Law, 306; Parker v. Hartt, 32 N. J. Eq. 225, 230. The language of the sixtieth section of the district court act (P. L. 1898, p. 574), "If the defendant have any account or demand against the plaintiff he shall be permitted to discount or set off the same against the account debt or demand of such plaintiff," establishes no different rule. This only means a claim having the characteristics denoted by the word "set-off," one of which is its liquidated character. The act concerning set-off (3 Gen. St. p. 3109, § 1) is expressly limited to liquidated damages.

Judgment will be entered for the plaintiff, with costs.

(69 N. J. L. 234) SCHAMBERGER v. SOMERSET CHEMICAL CO.

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

SERVANT-INJURY-NEGLIGENCE-BURDEN OF PROOF.

1. The burden is on the servant to establish negligence on the part of the master causing the injury.

Action by Mary Schamberger, adminis tratrix of Jacob Schamberger, deceased, against the Somerset Chemical Company. On rule to show cause. Rule made absolute. Argued November term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, FORT, and PITNEY, JJ.

Lewis A. Allen and Michael Dunn, for plaintiff. Colie & Duffield, for defendant.

PER CURIAM. The plaintiff's intestate was killed while repairing a belt. The plaintiff alleges that by reason of a defect in a pulley the clothes of the decedent were caught, and he was drawn into the machinery and killed. There was but little evidence to show how the accident happened. The burden is on the plaintiff to establish negligence of the defendant which led to the injury. The deceased was engaged in an employment in which there was obvious danger, requiring much care on his part to avoid injury. We think there is a want of evidence to show negligence on the part of the defendant, and that from the few facts that appear in the testimony it is more rea1. See Master and Servant, vol. 34, Cent. Dig.

§ 895.

sonable to conclude that the deceased failed to take proper care for his own safety. The rule to show cause should be made absolute.

(69 N. J. L. 194)

BAILEY ▼. PENNSYLVANIA R. CO.

NAYLOR v. SAME.

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

ACTION ON CONTRACT-DEFENSES-ATTACH

MENT.

1. It is no defense to an action upon contract that the debt sued for has been attached in the hands of the defendant in a foreign jurisdiction by a creditor of the plaintiff. Quære, whether, in such case, the suit should not be stayed, or the execution be controlled?

(Syllabus by the Court.)

Appeal from Trenton district court.

Actions by Andrew M. Bailey and by Joseph Naylor against the Pennsylvania Railroad Company. Judgments for each plaintiff, and defendant appeals. Affirmed.

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

Charles E. Gummere, for appellant. Harry C. Valentine, for appellees.

GARRISON, J. These appeals present a single question, namely, whether it is any defense to an action upon contract that the debt sued for has been attached by a creditor of the plaintiff in the hands of the defendant. The two cases differ only in that the attachment in the case of Bailey had gone to judgment, while in the case of Naylor judgment had not been rendered. In neither case had the sum garnished been paid over by the defendant. The attachments were instituted in the state of West Virginia, and levied upon wages earned in New Jersey by residents of the latter state. Neither these circumstances nor the validity of the attachment proceedings are of any consequence upon the question that is presented by these appeals, in view of the fact that the matter set up by the defendant does not meet the charge against it. It could not be pleaded in bar, for it neither denies the contract nor shows performance. It could not be pleaded in abatement, because it does not tend to end the suit, but at most only to retard its progress. Even where the earlier and the later suit are between the same parties, and of the same date, they must be of the same jurisdiction, in order to invoke successfully the rule here contended for by the defendant. The pendency of such prior suit in a foreign jurisdiction may furnish ground for staying the suit here, but not for its abatement. Kerr v. Willetts, 48 N. J. Law, 78, 2 Atl. 782.

Whether the pendency of an attachment sult of different plaintiffs should lead to the same practice is a question that is not now presented. All that is presented upon these appeals is the legal propriety of the action

of the district court in overruling the said defense and giving judgment for the plaintiffs. This action we affirm, and order that like judgments be entered pursuant to the statute under which these appeals are taken. P. L. 1902, p. 565.

It may be that upon a proper application execution should be stayed, but upon this point no opinion is expressed.

(69 N. J. L. 190)

DRAKE v. CITY OF ELIZABETH et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

CITY COUNCIL-JUDICIAL DUTIES-DISQUALI

FICATION.

1. A determination by city council in a specific case, based upon the finding of that body in a matter in which a discretionary judgment was reposed in it, is so far judicial in character as to be voidable if any one of the quasi judges who participated was at the time disqualified by private interests at variance with the impartial performance of his public duty.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of J. Madison Drake, Jr., against the city of Elizabeth and the Times Publishing Company, to review a resolution of the city council. Resolution set aside.

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

J. F. Brown, for prosecutor. C. Addison Swift, for city of Elizabeth. James C. Connolly, for Times Pub. Co.

GARRISON, J. This certiorari brings up a resolution of the city council of the city of Elizabeth by which a contract for city printing was awarded to the Times Publishing Company. The resolution in question was made pursuant to an advertisement for bids, of which the following is a copy:

"Proposals for Printing.

"City Hall, Elizabeth, N. J.
"May 24, 1902.

"The city council at its last meeting directed the committee on printing to advertise for bids from the various newspapers in this city for the printing of the minutes, official notices, ordinances, advertising, and other proceedings relating to municipal affairs for the term of one year, the same to be awarded to the lowest bidder, which newspaper shall be designated the official newspaper of the city of Elizabeth. Sealed proposals for the above must be presented at the next meeting of the city council, to be held on June 2, 1902, at 8:30 o'clock p. m. "Daniel P. McGovern, "B. J. Higgins,

"Committee on Printing." By the resolution under review the proposed contract was awarded to the defend

1. See Municipal Corporations, vol. 36, Cent. Dig 657.

ant publishing company. A determination of this nature, confined to a specific case, and based upon the finding of a body in which a discretionary judgment is reposed, is so far judicial in character as to be voidable if any one of such quasi judges who participated was at the time disqualified by reason of private interests at variance with the impartial performance of his public duty. Traction Co. v. Board of Public Works, 56 N. J. Law, 431, 29 Atl. 163.

In the case cited the vote of the disqualified member was not necessary to the result; but Mr. Justice Reed, in his opinion, said: "The fact that there were a sufficient number of votes apart from his vote to pass the ordinance is no answer to the objection taken upon the point. The infection of the concurrence of the interested person spreads so that the action of the whole body is voidable."

This salutary doctrine, re-enforced by the charter of the city of Elizabeth, which makes it unlawful for any member of city council to be directly or indirectly interested in any contract with the city, renders it unnecessary to inquire in the present case whether the number of councilmen disqualified by holding stock in the Times Publishing Company was one or more, or whether the required vote was three-fourths or a bare majority, or whether councilmen who had transferred their stock to their wives were thereby exculpated from having any indirect interest in the private corporation with which, in competition with others, they were called upon to act. It is established that at least one councilman who had not transferred his stock participated in the transaction throughout. That "infection," to adopt the language of the opinion above cited, is a sufficient ground for voiding the action of the entire body. The resolution awarding the contract in question is set aside with costs.

any person to conduct a store where goods are sold at auction, unless a certain license fee had been paid, and further provided that the license fee should be due and payable on the 1st day of June in each year. On August 21, 1902, proceedings were instituted against the present prosecutor for conducting such a store without having paid the license fee, and thereupon he was convicted. By the very terms of the ordinance a license fee does not become due and payable until June 1, 1903, and therefore this conviction must be set aside, with costs.

1. The passage of the act to consolidate the local or charter elections with the general election in the cities of this state, known as the "Meeker Act" (P. L. 1901, p. 41), does not op erate to alter or abolish the compensation allowed by statute to the election officers for duties connected with the local or charter elections.

2. The compensation of a public officer belongs to him not by force of any contract, but because the law attaches it to the office, and it is not affected by a diminution of the duties of the office, the office itself remaining. (Syllabus by the Court.)

Appeal from district court, Orange county. Action by Frank E. Bennett against the city of Orange. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Thomas A. Davis, for appellant. William A. Lord, for appellee.

HENDRICKSON, J. The plaintiff was an election officer of the city of Orange, and he brought suit in the Orange district court, in his own behalf and as assignee of the claims of other election officers in that city, to recover the compensation claimed to be due them for services rendered at the election for city and county officers on November 5, 1901. The claim of each of the officers referred to was for services at such election, as follows: One day's registry, $3; election day, $7; aggregating in all the sum of $240– for which judgment was given, besides costs. From this judgment the city has appealed to the court. It is agreed upon both sides that the only question at issue is whether since the consolidation of the municipal or charter elections in cities with the general or state election, under the act approved Feb. 28, 1901, known as the "Meeker Act" (P. L. 1901, p. 41), the officers can collect fees for services rendered in this dual capacity for both elections. These officers had already received from the county collector

2. See Officers, vol. 37, Cent. Dig. § 138.