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of Essex county $25 each for services rendered as members of the board of election and registry for their respective election districts. The contention is that this payment is in full for all their services connected with that election, and that they are not entitled to what the appellant terms "double compensation," and that the judgment should be reversed. We find, however, that the Meeker act does not touch the question of compensation, but that a supplement to the general election law of 1898,

approved March 22, 1901, regulates that subject-matter. P. L. 1901, p. 258. After fixing the compensation of members of the boards in cities having a population exceeding 30,000, the supplement enacts that in all other cities, etc., the compensation of each member for all such services, in connection with any local or charter election, shall be for each registry day $3, and for the election day, including the counting of the votes and the delivery of the returns and the ballot box, $7, and for all such services in connection with the general election, or any special election held in and for the whole county, "such compensation shall be * twenty-five dollars in districts where the number of registered voters is more than three hundred." The city of Orange is within this class. We think that the words of this supplement clearly give to the election officers the compensation provided for their services in connection with each election. This view is strengthened by the fact that this supplement was passed after the enactment of the Meeker act. It must be observed also that the city election is still held, only the time of holding it is changed by the Meeker act to the time of holding the general election.

It is further urged that they should not be paid the compensation for services in holding the city election, because there is no additional service performed by them in connection therewith except in the counting and canvassing of the vote. But it must be remembered that the officer's right to compensation does not grow out of a contract between him and the municipality by which it is payable. The compensation belongs to him not by force of any contract, but because the law attaches it to the office. Throop on Public Officers, 443; Hoboken v. Gear, 27 N. J. Law, 265. And where a salary thus attaches to an office the right to it is not affected by a diminution of the duties of the office, the office itself remaining. Marquis v. City of Santa Ana, 103 Cal. 661, 37 Pac. 650. It is further urged that the payment by the county collector is a satisfaction for all services performed at the election, and that the act so declares. But the words here referred to plainly apply only to the sum certain fixed by the statute for services at the general election, and not to the compensation allowed in connection with the charter election.

The result we have reached is in accord

with the views expressed by this court in Bellis v. Freeholders of Atlantic County, 51 Atl. 781. The point, however, was not directly involved in that case. The judgment below is affirmed, with costs.

(69 N. J. L 189) WHITTINGHAM et al. v. HOPKINS et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

HIGHWAYS-ESTABLISHMENT.

1. A slight variation in laying out a public road, due to the erection of houses by the prosecutors upon the line described in the application for the road, will not lead to the nullification of the proceedings of the surveyors.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Martha Whittingham and another, against Richard Hopkins and others, to review proceedings in laying out a public road. Affirmed.

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

Chauncey G. Parker and S. M. Rollinson, for prosecutors. Blake & Howe, for defendants.

GARRISON, J. The return to this writ of certiorari brings up the proceedings of surveyors in laying out a public road. It is objected that the notices of application for the appointment of surveyors and of their acting were not set up as required by law, in that two of them were posted at railroad stations; the claim being that railroads are private property, and hence are not public places. This claim is sound neither in its premises nor its conclusion, if reference be had to the sense in which the word "public" is used in these proceedings. Where- notoriety is the object to be attained, the most public places are those that afford the most publicity, without regard to the title of the owner of the property. See, also, State v. Schanck, 9 N. J. Law, 107.

2. The objection that the return was not properly signed is not supported. See the case above cited.

3. The misdating of the return is shown to be a mere clerical error.

4. The prosecutor Walton C. Whittingham had actual notice, was on the ground with the surveyors, and objected to the road.

5. The variation of 90 feet in the terminal point of the road as laid is explained in the return of the surveyors to be due to the act of the prosecutor Walton C. Whittingham, acting either for himself or as agent for his mother, the other prosecutor, in building three houses on the line of the road as set forth in the application. If this had been the sole ground upon which the application for this writ had been rested, and the facts had been disclosed, it would have been within the sound discretion of the justice of the Supreme Court to whom the application was

made to have withheld his allocatur. The same discretion is now open to this court in dealing with this reason. State v. Woodward, 9 N. J. Law, 21.

The prosecutors, in point of fact, created the condition that led to the variation of which they now complain. The variation is not material, and affects no rights that were not involved in the application for the writ. The prosecutors were not misled into acquiescence, for they did not acquiesce, but objected, and their objections have been heard. We think that the change of course necessitated by their conduct cannot be successfully urged as a reason for nullifying the return of the surveyors.

The action taken in the court below on these proceedings is affirmed.

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INJURY TO EMPLOYÉ-LIABILITY-NEGLIGENCE-FELLOW SERVANT.

1. A servant of Whan, while in a safe position, and free from danger, in doing his master's work, at the request of the engineer of the elevator company, which was engaged in an independent employment, over which Whan had no control, attempted to loosen the elevator, which had stuck fast, and while so doing was killed.

Held: (1) That Whan is not liable, as the accident did not happen while decedent was engaged in serving him.

(2) That the elevator company is not liable. If the engineer had authority to employ the decedent, they were fellow servants.

If he had no such authority, the decedent was a mere volunteer.

The danger was also obvious. (Syllabus by the Court.)

Error to circuit court, Hudson county. Action by Julia Longa against the Stanley Hod Elevator Company and Alexander Whan. Judgment for defendants, and plaintiff brings error. Affirmed.

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

James F. Minturn, for plaintiff in error. Wallis, Edwards & Bumsted, for defendants in error.

VAN SYCKEL, J. This is a suit by the administratrix of an employé of the defendant Whan against both Whan and the Stanley Hod Elevator Company to recover damages under the death act. The servant was killed by the falling of the hod elevator. Whan was engaged in erecting a five-story brick storehouse. Whan employed the elevator company at $10.50 per day to raise up the hods from the ground below to a platform provided by Whan on which the decedent's duty was to stand, and take the hods out of the elevator when they were brought up. The elevator company exer

cised an independent employment, and furnished its own engineer, over whom Whan exercised no control. The decedent, as the servant of Whan, was not employed to run, or to assist in running or controlling, the elevator. The engagement of the elevator company required it to deliver the hods at the level of the platform, on which the decedent was placed, which it is not denied was a secure position for doing his master's work. During the day on which the accident occurred, the elevator stuck fast at the third story, where decedent stood. The engineer of the elevator company called to Whan's servant to assist in getting the elevator free, and while he was so engaged the elevator fell, and killed him. The deceased assisted in striking the elevator with joists, then jumped on it with four or five other men, which caused it to fall suddenly. The decedent was not in that respect acting as the servant of Whan, and Whan is no more liable for the injury than if the servant, without his authority or consent, had gone across the street to another building, and been there killed by the negligence of some other contractor. Whan furnished the decedent a safe place for his work, and while he was engaged in doing his master's work he was in no peril.

The question remains whether the other defendant is liable in damages. If the engineer of the elevator company had authority to employ the decedent to assist him in loosing the elevator, then he was a fellow servant of the engineer, and the plaintiff cannot recover. If the engineer had no such authority from his employer, then the decedent was a mere volunteer, and the company is without liability.

It is also to be observed that the decedent was guilty of want of care for his own safety in placing himself in a position of obvious danger in the elevator. A nonsuit was properly directed by the trial court as to both defendants.

The judgment below should be affirmed.

(69 N. J. L. 55) MALBERTI v. UNITED ELECTRIC CO. (Supreme Court of New Jersey. Feb. 24, 1903.)

PLEADING-DEMURRER-STRIKING DECLARA

TION.

1. Mere imperfection or lack of form in pleading are not good grounds for demurrer.

2. A declaration will be stricken out, on notice under section 132 of the practice act (2 Gen. St. p. 2555), as being so defective or so framed as to prejudice, embarrass, or delay a fair trial of the action, although a demurrer would not be sustained against it.

(Syllabus by the Court.)

Action by Felice Malberti against the United Electric Company of New Jersey. Demurrer to declaration overruled. Mere imperfections or lack of form in the pleading are not good grounds for demurrer.

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

McEwan & McEwan, for plaintiff. Bedle, Edwards & Lawrence, for defendant.

FORT, J. This is a demurrer to a declaration. The declaration contains two counts. Both the counts are inartistically drawn. They can truly be styled imperfect, and lacking in form. It is probable that, if the demurrer were not a general one, but was to the second count only, it would have been sustained. But mere imperfection or lack of form in pleading are not now good grounds for demurrer. 2 Gen. St. p. 2557, § 139. It is quite difficult to grasp the pleader's method of statement, or his ground of liability on the part of the defendant company, but the court, after much reflection, is unable to say that the first count in the declaration does not allege a duty to the plaintiff, as one of the public, which the defendant has failed to perform, and which failure has resulted in injury to the plaintiff through no fault of his own. It is quite evident that this declaration would be stricken out upon notice under section 132 of the practice act (2 Gen. St. p. 2555), as being so defective or so framed as to prejudice, embarrass, or delay a fair trial of the action. This is the better practice, as was suggested in Minnuci v. Philadelphia & Reading R. R. Co. (N. J. Sup.) 53 Atl. 229.

The demurrer in this case is overruled, with costs, but without prejudice to the right of the defendant to move to strike out the declaration.

(69 N. J. L. 124)

CURTIS v. STOUT.

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

JUDGMENTS-DOCKETING.

1. The act of April 4, 1892, concerning the docketing of judgments rendered in the courts for the trial of small causes (2 Gen. St. p. 1898), authorizes the docketing of such judgments without an affidavit of belief that the debtor is not possessed of goods and chattels to satisfy the amount due.

(Syllabus by the Court.)

Certiorari to court of common pleas, Monmouth county.

Action by Henry A. Curtis against Wesley B. Stout. Judgment for plaintiff, and defendant brings certiorari. Affirmed.

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

Parker & Pearce, for plaintiff. Wesley B. Stout, pro se.

DIXON, J. This writ brings up a docketed judgment entered in the office of the clerk of the Monmouth pleas on September 25, 1899, and the execution thereon issued. The docketing is attacked because there was not filed an affidavit of belief that the debtor

was not possessed of goods and chattels sufficient to satisfy the amount due, as required by section 72 of the justice's court act (Gen. St. p. 1879). The question for decision is whether this requirement was dispensed with by the later act of April 4, 1892 (2 Gen. St. p. 1898). This question was noticed, but not decided, in Barr v. Fleming, 61 N. J. Law, 431, 39 Atl. 915, Id., 62 N. J. Law, 449, 45 Atl. 1090, and in Brink v. Blazer, 62 N. J. Law, 175, 40 Atl. 623. In Grimshaw v. Carroll, 62 N. J. Law, 730, 42 Atl. 733, a question closely related was presented to the Court of Errors, and that court decided that in docketing judgments of the district court the affidavit referred to was still essential, the fourth and fifth sections of the district court act of March 27, 1882 (1 Gen. St. p. 1260), not having abrogated that provision of the seventy-seventh section of the district court act of March 9, 1877 (1 Gen. St. p. 1228). In reaching this conclusion, however, the Court of Errors laid chief stress upon the declaration in the act of March 27, 1882, respecting the precise force and effect of its provisions, by which it clearly expressed a purpose to substitute those provisions for only two of the preliminaries required by the prio? law, but left the third preliminary, the affidavit as to the debtor's property, unrepealed. The act of April 4, 1892, does not contain so narrow a definition of its scope, but, on the contrary, by its opening declaration as to what only shall be necessary in docketing justices' courts' judgments, evinces an intent to make compliance with its provisions sufficient in all cases to which its terms are applicable. Under this view of the force of that law, the affidavit referred to is not required. This renders it unnecessary to consider whether the supplement of March 22, 1901 (P. L. p. 365), validated previous docketings which were then void.

The docketed judgment, and also the execution, are affirmed, with costs.

(69 N. J. L. 129) LOEWENTHAL v. WAGNER. (Supreme Court of New Jersey. Feb. 24, 1903.)

BAIL-DISCHARGE.

1. Under the peculiar circumstances of this case, the bail to the sheriff should be discharged, and money deposited with the sheriff as additional security should be returned to the bail, without formal surrender of the defendant. (Syllabus by the Court.)

Action by Annie Loewenthal against Emil Wagner. Rule for discharge of bail made absolute.

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

James F. Minturn, for defendant. Weller & Lichtenstein, for plaintiff.

DIXON, J. Since the decision in this cause appearing in 52 Atl. 298, the sheriff has been permitted to amend his return on the capias,

so that it now reads: "I took the body of the defendant named in this writ and released him on bail. The name of the bail is Joseph Stein. As additional security to the bail bond, I required said Stein to deposit with me the sum of one thousand dollars."

On the petition of the bail, Joseph Stein, a rule has been allowed requiring the plaintiff and the sheriff to show cause why the bail should not be allowed to surrender the defendant, or should not be discharged, and have the deposit of $1,000 returned to him, without physical surrender of the defendant.

The material circumstances are: That in July, 1901, within 30 days after the defendant was returned in custody, the plaintiff filed her declaration, to which no plea has been filed; that when the sheriff made return that the defendant was in custody the, defendant had been actually released on the security set out in the return as now amended; that in September, 1901, the defendant was again arrested on a capias issued at the suit of the same plaintiff for a different cause of action, and was detained in custody under that writ until February 27, 1902, when he was sent to the state prison for a term of three years upon a conviction for attempting to break jail, and is still in pris

on.

These circumstances show that the plaintiff lost nothing by the failure of the defendant and the bail below to put in and perfect special bail. Her declaration having been regularly filed according to the return then appearing upon the capias (Practice Act, § 103), she could have entered judgment against the defendant at the expiration of 60 days after the return. Before the time came for entering such judgment the defendant was in the actual custody of the sheriff at her own suit, and a ca. sa. upon such a judgment, lodged with the sheriff, would have afforded her all the redress to which she was legally entitled. The consequences of her failure to exercise her rights in the suit cannot be charged on the defendant or his bail, and the fact that the defendant cannot now be taken in execution is due to no fault of the bail.

We think the case warrants the exercise of the equitable power of the court for the relief of bail, and that a formal surrender through habeas corpus should not be required.

The rule for the discharge of the bail and the return of the deposit should be made absolute, but without costs.

(95 Md. 419)

GITTINGS v. MAYOR, ETC., OF CITY OF

BALTIMORE.

of the purpose of the appeal tax court of Baltimore City to change or alter an assessment had been given, as required by Laws 1900, p. 603, c. 347, but the taxpayer alleges, on appeal, that he can show such want of notice, the cause will, under Code Pub. Gen. Laws, art. 5, § 36, be remanded for proceedings.

On motion for reargument. Former decree of affirmance rescinded, and cause remanded without affirmance or reversal, under Code Pub. Gen. Laws, art. 5, § 36.

For former opinion, see 52 Atl. 937.

PEARCE, J. A motion has been filed in this cause for reargument, or, failing in this, that the decree passed herein may be modified, and that, in lieu of the affirmance of the decree passed by the court below, the cause may be remanded, under section 36, art. 5, of the Code of Public General Laws, to the end that the appellant may have leave to amend his bill of complaint by averring therein that the appeal tax court of Baltimore City did not give him any notice of its purpose to change or alter his assessment upon "Ashburton" for the year 1901, under the provisions of section 164a of the charter of Baltimore City. Laws 1900, p. 603, c. 347. We have carefully considered this motion and the brief filed in support thereof, and we remain of the opinion that the bill cannot properly be regarded as denying that the required notice of the purpose of the appeal tax court to increase this assessment was given to the appellant, and in the present state of the record we should be compelled to adhere to the decree of affirmance heretofore passed. We stated in the opinion heretofore filed in this case that, if the failure to give such notice had been alleged in the bill, the demurrer must have been overruled, and the injunction granted. It is now alleged in the brief filed in support of the motion for modification of the decree that no such notice was in fact given, and that proof thereof can be made. If this be true, we think it equitable that an opportunity should be afforded to establish the fact; since, under an amended bill averring this fact, and sustained by proper proof, the appellant would be entitled to relief. Paine v. France, 26 Md. 46; Johnson and Wife v. Robertson, 31 Md. 491.

We shall, therefore, as authorized by section 36 of article 5 of the Code of Public ! General Laws, rescind the decree of affirmance heretofore passed, and shall, without affirming or reversing the decree of the court below, order the cause to be remanded, to the end that the bill may be amended as indicated, and that such further proceedings may be had, and such testimony be taken, as shall be necessary for determining the cause upon its merits in accordance with this

(Court of Appeals of Maryland. Oct. 31, 1902.) opinion. As this course is due to appellant's

APPEAL-REMAND FOR FURTHER PROCEED

INGS.

1. Where a bill for relief against an alteration in an assessment does not allege that no notice

failure to make the averment, now to be allowed by amendment, it is only proper he should bear the costs up to this stage of the

cause.

Decree of affirmance heretofore passed rescinded, and cause remanded, under section 36 of article 5 of Code, without affirming or reversing the decree of circuit court No. 2 of Baltimore City, for further proceedings in conformity with this opinion; appellant to pay the costs above and below.

(96 Md. 560)

TOMPKINS et al. v. SPERRY, JONES & CO. et al.

(Court of Appeals of Maryland. Feb. 11, 1903.) CORPORATIONS-SUBSCRIPTIONS-PAYMENT IN PROPERTY PROMOTERS CHARACTER OF ACTS LIABILITIES - ACCOUNTING IN FIDUCIARY CAPACITY.

1. Where, pending the organization of a corporation to consolidate several breweries, the promoter entered into an agreement with one brewer for the purchase of his brewery on behalf of the corporation, and the contract was not to be binding unless certain enumerated brewers and individuals become part of the consolidated company, and because of the failure of such brewers and individuals to join the consolidation the agreement was never carried into effect, the fact that thereafter such promoter purchased the brewery individually, under no agreement that it was to be assigned to the corporation, or any statement that it was made for its account or on its behalf, does not create a fiduciary relation between the corporation and such promoter, so as to render such promoter liable for a breach of faith in connection with such purchase.

2. Where promoters of a consolidated corporation purchased the properties to be consolidated in their own names, with a view to capitalizing their combined value by turning them into the company for payment of their stock and bonds, and there was nothing in the contracts of purchase showing that such purchases were made in a fiduciary capacity, there was nothing in the facts to render such promoters liable to the consolidated corporation in such fiduciary capacity.

3. Where, at the time defendants were promoting a corporation to consolidate several breweries in a certain city, they purchased such breweries, and thereafter turned them over to the corporation in payment for its stock and bonds, they were not liable to subsequent stockholders of the consolidated corporation in a fiduciary capacity, when in fact, at the time, they owned or controlled all of the stock then issued by such consolidated corporation; and that some of the shares did not stand in their names, but in the names of their employés or agents, was immaterial as affecting the real ownership of the property.

4. Where promoters of a corporation, organized for the purpose of consolidating the breweries of a city, owned all of its stock prior to the consummation of the purchase of the breweries, their act in subscribing for the remainder of the stock, authorized to be issued by an amendment to the corporation's articles, and paying for such subscription by a transfer to the company of the brewing properties previously purchased by them, was not invalid.

5. Where all the stockholders of a corporation were present or represented at a meeting, any defect in the prior notice of the meeting was waived.

6. Defendants organized a corporation for the purpose of consolidating all the breweries in the city of Baltimore, on a basis of $20 capital stock for each barrel of output. Prior to the execution of the contract with the owners of the breweries, defendants owned all the stock

5. See Corporations, vol. 12, Cent. Dig. § 742.

in the corporation, and thereafter purchased several of the breweries, which they turned over to the corporation, in consideration of the corporation's issuance to them of stock and bonds largely in excess of the amount authorized by the basis originally contemplated. Held, that defendants, in purchasing such brewery plants and selling them to the corporation, were not acting in a fiduciary capacity; and hence a receiver of the corporation was not entitled to maintain a bill to compel them to account for such stock and bonds.

Appeal from Circuit Court No. 2 of Baltimore City; J. Upshur Dennis, Judge.

Bill by John A. Tompkins and others, as receivers of the Maryland Brewing Company, against Sperry, Jones & Co. and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

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SCHMUCKER, J. This is an appeal from a decree of circuit court No 2 of Baltimore City, sustaining the appellees' demurrer to, and dismissing a bill filed by, the appellants, as receivers of the Maryland Brewing Company of Baltimore City, hereinafter called the "Company." The purpose of the suit is to procure an account of certain bonds and the proceeds thereof, which the bill alleges the appellees Sperry & Jones, while occupying a fiduciary relation to the company and being in control of its corporate organization, caused to be overissued by it to themselves, and which they and their coappellees, who acted with full knowledge of the facts, sold and disposed of for their own use and advantage. The allegations of the bill in large part relate to the stock of the company, which is charged to have been overissued at the same time and in the same manner as the bonds, but there is no prayer in the bill for an account of the stock or its proceeds, although there is a prayer for general relief.

The bill of complaint alleges that the company was incorporated under the general laws of this state by articles of incorporation filed on February 7, 1898, and amended on December 22, 1898, with a capital of 32,250 shares of preferred and 32,250 shares of common stock, and that it subsequently authorized an issue of $7,500,000 of bonds; that the incorporators and directors named in the certificate of incorporation, and also the stockholders who participated in the organization of the company, consisted of the appellees Sperry & Jones, and persons who were under their control, and were in fact their agents, and were not independent subscribers, and by that means the said two appellees remained in absolute control of the company from its organization down to and including February 28, 1899; that, pending the or

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