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his subsequent examination he saw one bad force was used by Alonzo Sellman. But this been performed. We are not concerned with would ignore the plaintiff's testimony that the weight of this testimony, which is al the difficulty originated with Robert Sellways for the jury; but it certainly tends to man, who cursed him and called him a liar show that the alleged assault might have and a thief when he came to see England been the cause of the injury, that the medical about the car he had ordered; that, as soon and surgical attention was made necessary as Alonzo Sellman appeared upon the scene, thereby, and that his capacity for manual Robert Sellman called to throw plaintiff out, labor and his efficiency as a telegraph oper which was immediately done by Alonzo B. ator might be diminished thereby. If there Sellman. If the jury believed this testimowas any evidence of any other cause to ny, Robert and Alonzo Sellman were jointly which the injury could be rationally attribut liable for the wrong done, and this prayer, ed, or if they thought all the plaintiff's testi therefore, was properly refused. mony unworthy of belief, the jury could The defendants' third prayer, as modified have so indicated by a verdict for defend and granted, covers everything properly emants; but, in the face of the testimony we braced in the second prayer, and there was have mentioned, the court could not properly no error in the rejection of the second prayer have sustained this special exception.

for this reason. Moreover, the attempt to Plaintiff and defendants each offered eight distinguish in the second prayer between prayers. Of these, the plaintiff's seventh damages which would, and those which prayer was granted as offered, the eighth would not, entitle the plaintiff to a verdict, was modified and so granted, and the third was sufficient to justify its rejection. The was modified and so granted in connection plaintiff's third prayer, as modified by the with defendants' fourth prayer. Of defend court, was granted in connection with defendants' prayers, the third and fourth were grant- | ants' fourth prayer-the court indorsing on ed, and all the others were rejected. The the plaintiff's third prayer an instruction that fourth exception was taken to these rulings it was to be read in connection with defendupon the prayers. It follows from what we ants' fourth prayer; and these prayers, we have said in reference to the special excep think, fairly and fully covered the law of the tion to the plaintiff's eighth prayer as mod case. The plaintiff's third prayer requires ified that we think it was correctly granted; the jury to find all the facts necessary to it baving been too often approved by this constitute an assault by both defendants. court, when supported by legally sufficient The authorities abundantly support the propoevidence, to require any citation of author sition that all persons actually present, aidities.

ing. abetting, or counseling an assault, are Plaintiff's seventh prayer instructed the ju- guilty, as principals. Thus in Com. v. Hurry that the burden of proof was on defend ley, 99 Mass. 133, it was held that evidence ants to show by preponderance of evidence that one of a noisy crowd near a policeman all the matters alleged in their pleas of con cried out “kill him," about the time when fession and avoidance, and it was correctly others knocked the officer down, was suffigranted. The rule has been well stated in cient to convict of an assault upon the offiBlake v. Damon, 103 Mass. 199, thus: “If plaintiff alleges acts which if proved, and Defendants' fourth prayer set forth all the not justified, will sustain his action, and the facts of justification, which, if found by the defendant seeks to justify them, the burden jury, would relieve the defendants from leis upon him to prove his justification.” And gal liability. These two prayers, taken tothis rule was well illustrated in St. John v. gether, as required by the instruction to that Eastern Ry., 1 Allen, 544, where it was said: effect, were, in substance, a direction that "Where plaintiff was a passenger on a rail notwithstanding the jury, upon the plaintiff's road, and defendant, by its agents, assaulted evidence, might find an assault by the dehim, if the assault is proved the burden of fendants, yet if, upon defendants' evidence, justifying it rests upon the defendant, as in they should find the assault justified, their ordinary cases."

verdict must be for defendants, or, in other Upon the same principle, defendants' third words, that, if they found the facts stated in prayer, relating to the burden of proof on the third prayer, they must give a verdict plaintiff to establish the assault and the re for the plaintiff, unless they found the addi. sulting injury, was properly granted. The tional facts stated in the fourth prayer, in defendants' first prayer asked that the jury which event they must render a verdict for be instructed that there was no evidence the defendants; and it is not possible to suplegally sufficient to entitle the plaintiff to re pose that the jury could have been in any cover under the pleadings as against Robert way misled or confused by such instructions. Sellman. This is upon the theory that Alon This practice has been frequently approved, zo B. Sellman, as postmaster, ejected the as in Deford v. Dryden, 46 Md. 256, and in plaintiff, as authorized by the postal laws Garey v. Sangston, 64 Md. 38, 20 Atl. 1034. and regulations read in evidence, and that in Under these instructions the jury could dethis act of expulsion Robert Sellman did not termine from all the evidence whether the participate directly or indirectly, and he plaintiff was ejected, without undue viotherefore incurred no liability, even if undue lence, in a bona fide attempt by Alonzo Sell

cer.

man to exercise his lawful authority as post was amended by Acts 1890, p. 277, c. 255, master, or whether the defendants intended adopted by vote of the people on November from the first to commit a wrong, with the 3, 1890, so as to provide as follows: “County purpose then or subsequently formed to set commissioners shall be elected on general up Alonzo Sellman's legal authority as post ticket of each county by the qualified voters master as a cover for their joint illegal con of the several counties of the state, on the duct. Taylor v. Jones, 42 N. H. 35.

Tuesday next after the first Monday in the Defendants' fifth, sixth, and seventh

month of November, commencing in the year prayers contain no proposition of law which 1891; their number in each county, their was not enibraced in their fourth prayer, and compensation, powers and duties shall be the court cannot be required to repeat and such as are now or may be hereafter prereproduce the same legal proposition with a scribed by law; they shall be elected at such mere difference of phraseology. Such prac times, in such numbers and for such periods, tice has been condemned, as tending to con not exceeding six years, as may be prescribfusion and uncertainty, in Green Ridge R. R. ed by law.” Acts 1892, p. 637, c. 442, prov. Brinkman, 64 Md. 61, 20 Atl. 1024, 54 Am. vided for the election in November, 1893, of Rep. 755, and in Spencer v. Trafford, 42 Md. three county commissioners for Anne Arun21.

del county, to hold their offices for the terms, It follows from what we have said in re respectively, of six, four, and two years, as gard to the first and second exceptions that the governor should designate, and that at there was no error in rejecting defendants' the expiration of their respective terms of ofeighth prayer, which asserts that there was fice their successors should be elected for no legally sufficient evidence to show that the term of six years. the necessity for the operation upon plain The appellants (respondents) were in oftiff was the result of his ejection from the fice as county commissioners of Anne Arunstore by defendants.

del county under this act (their terms being Finding no error in any of the rulings, the unexpired) when Acts 1901, p. 41, c. 13, was judgment will be affirmed.

passed. This repealed the act of 1892, and provided that at the general election to be

held in November, 1901, seven county com(95 Ma, 738)

missioners should be elected for Anne ArunBROWN et al. v. BROOKE et al. del county to hold office for two years, and (Court of Appeals of Maryland. 1902.)

that, upon the qualification of the seven counOFFICERS-TERM OF OFFICE-ABRIDGMENT.

ty commissioners then elected, “the terms 1. Const. art. 7, § 1, as amended in 1890

of the present county commissioners of Anne (Acts 1890, p. 277, c. 255), providing for the

Arundel county shall cease and determine as election of county commissioners, declares that fully as it when elected they had only been "they shall be elected at such times, in such elected to serve until that time." The pernumbers, and for such periods, not exceeding six

sons elected county commissioners under this years, as may be prescribed by law.” Respondents were elected commissioners of a certain act in November, 1901 (the appellees in this county under Acts 1892, p. 637, c. 442, which appeal), applied for a writ of mandamus difixed their term of office at six years. Acts

recting the respondents to surrender to them 1901, p. 41, c. 13, provided for the election in that year of county commissioners for such

the offices in question. The respondents decounty to hold office for two years, and declar nied the constitutional power of the Legislaed that upon their qualification the term of of ture to abridge the terms of office for which fice of the commissioners then in office should "cease and determine as fully as if when elect

they had been elected under the act of 1892. ed they had only been elected to serve until that

The circuit court ordered the writ of mantime." Held constitutional by divided court. damus to be issued as prayed in the petiAppeal from Circuit Court, Anne Arundel

tion. Upon appeal the order was affirmed County; Revell, Judge.

April 1, 1902, because this court was equally Mandamus by Samuel Brooke and others

divided-there being four judges in favor of

affirmance, and four in favor of reversal against William H. Brown and others. Writ awarded, and respondents appeal. Affirmed

and consequently no opinion was filed. by divided court.

E. C. Gantt, for appellants. Jas. R. BrashConst. art. 7, § 1, formerly read as fol ears, for appellees. lows: “County commissioners shall be elected on general ticket of each county by the qualified voters of the several counties of

(69 N. J. L. 65) this state, on the Tuesday next after the

ADAMS v. WIESENTHAL et al. first Monday in the month of November,

(Supreme Court of New Jersey. Feb. 24, 1867, and on the same day in every sec

1903.) ond year thereafter. Their number in each

REPLEVIN-REDELIVERY BOND-ACTIONcounty, their compensation, powers and du

PLEA. ties shall be such as are now or may be

1. Au averment in a plea that the defendant hereafter prescribed by law." This section tendered the goods "in as good condition as

the same were at the time of signing the bond" 1. See Constitutional Law, vol. 10, Cent. Dig. $ is no answer to an alleged breach of the condi357; Oflicers, vol. 37, Cent. Dig. $ 71.

tion of the bond that the said defendant would

*

deliver the goods and chattels “in as good condi him by the defendant of a bond under the tion as the same were at the time of making

sta tute. Upon the determination of the suit the claim of property therein." 2. A plaintiff in replevin is under no duty to

in replevin in favor of the plaintiff, and an demand a return of the goods redelivered to the assessment of his damages for the taking defendant in replevin by the sheriff, after a and detention of the property, he may at judgment in the replevin suit in his favor, and

once sue upon the bond given to the sheriff, an assessment of his damages for the taking and detaining of the goods, before he can sue

which has been assigned to him. upon the bond given to the sheriff by the de Both demurrers are sustained. fendant. (Syllabus by the Court.)

(69 N. J. L. 86) Action by Israel G. Adams against Isaac Wiesenthal and Lewis Evans. Demurrer to

SENSFELDER v. STOKES et al. plea. Sustained.

(Supreme Court of New Jersey. Feb. 24, Argued November term, 1902, before the

1903.) CHIEF JUSTICE, and VAN SYCKEL, NEW TRIAL-RULE TO SHOW CAUSE-THEORY

OF LAW. FORT, and PITNEY, JJ.

1. Upon a rule to show cause, a verdict cannot Thompson & Cole, for the demurrer. G.

be supported upon a theory of the law contrary

to that upon which the case was submitted to A. Bourgeois, opposed.

the jury.

(Syllabus by the Court.) FORT, J. This was a suit upon a replevin Action by Elizabeth Sensfelder against bond given by, a defendant in replevin to Ezra Stokes and John G. MacElroy. Verthe sheriff, with a claim of property, under dict for plaintiff. Rule to show cause. Versection 9 of the replevin act (Gen. St. p. 2772, dict set aside. $ 9). The condition of the bond was, “If the Argued November term, 1902, before GUM. said S. S. S. shall deliver the said goods and MERE, C. J., and VAN SYCKEL, FORT, and chattels in as good condition as the same PITNEY, JJ. were at the time of making such claim to

Howard Carrow, for plaintiff. John W. the said I. G. A.

then this obliga- Westcott, for defendants. tion to be void,” etc. There were three pleas: (1) Non est fac

PITNEY, J. This is an action of tort to tum. (2) Actio non, because before suit the

recover damages for alleged fraudulent misdefendants tendered to the plaintiff the goods

representations made by the defendants to and chattels mentioned in the bond, "in as

the plaintiff. The plaintiff having obtained good condition as the same were at the time

a verdict, a rule was granted requiring her of siguing said bond." The plea concludes

to show cause why the verdict should not with a verification, and prays judgment it

be set aside and a new trial granted, on the the plaintiff ought to have or maintain his

ground, among others, that the verdict is action, etc. (3) Actio non, because the said

contrary to the weight of the evidence. plaintiff did not demand a return of the said

The gist of the plaintiff's case is that she goods and chattels mentioned, from S. S. S.,

was the owner of a hotel property of conbefore instituting the suit. This plea con

siderable value, and that the defendants includes to the country. The demurrers are to the second and third and $11,000, par value, of the stock of the

duced her to exchange it for $1,100 in cash pleas. Each of these pleas has a defective

Iuvestors Company (a corporation owned and conclusion. The second plea should have

controlled by the defendants), by falsely and concluded to the country, and the third plea

fraudulently representing to her that the with a verification. But both pleas are oth

company owned certain lands of large value, erwise deficient. The second, because the

had cash assets, and had been paying substatement that the plaintiff tendered the

stantial dividends; that these representations goods "in as good condition as the same were

were false, and known by the defendants to at the time of signing the bond” is no an

be so; and that the stock received by her swer to the alleged breach of a condition

in exchange for the hotel property was enthat "the said S. S. S. would deliver the

tirely worthless. The plaintiff did not claim said goods and chattels in as good condition

to have rescinded the transaction. On the as the same were at the time of making the

contrary, the action was based on an affirmclaim of property therein.” Where a dec

ance of the exchange of properties as valid laration on a bond with condition sets out

and binding; the plaintiff claiming damages conditions, and specially assigns breaches,

simply for the deceit. It was on that basis the plea, to be good, must traverse the breach

that the trial judge undertook to submit the es as laid, and conclude to the country.

case to the jury. At the same time it apDime Savings Inst. v. American Surety Co. peared in evidence that some time after the (N. J. Sup.) 53 Atl. 217. The third plea is plaintiff conveyed her hotel to defendants, bad because the facts alleged in it, if true,

and received from them the stock in exare no defense. The plaintiff in replevin is

change, some negotiations took place be under no duty to demand a return of the

tween her and the Investors Company, or its goods redelivered to the defendant in repievin by the sheriff upon the delivery to [ 1. See New Trial, vol. 37, Cent. Dig. $ 20.

representatives, looking towards a surrender With this contention of the plaintiff it would to that company of her shares of stock in ex not be difficult for us to agree. But that con. change for some of the lands owned by that sideration cannot move us to sustain the prescompany. The great weight of the evidence ent verdict. For it is well settled that a showed that this exchange had been carried in verdict cannot be supported upon a theory of to effect; the plaintiff having transferred her the law contrary to that upon which the stock to the company, and having received, case was submitted to the jury. Hays v. through an agent, deeds of conveyance made Pennsylvania R. Co., 42 N. J. Law, 446; by the company to her. This transaction Marts v. Cumberland Ins. Co., 44 N. J. Law, was closed before the commencement of the 478; Halsey v. Lebigh Valley R. Co., 45 N. suit.

J. Law, 26. The trial judge ordered an amendment of Because the verdict of the jury is contrary the pleadings, by directing that the defend to the great weight of the evidence upon an ants file a special plea setting up that before issue that the trial judge instructed them the bringing of this suit the plaintiff had must be controlling, the verdict will be set parted with all right, title, and interest in aside, and a new trial granted. her shares of stock, and ordered that the trial proceed upon that issue. And in his charge to the jury the judge instructed them

(69 N. J. L 54) that, before considering the proofs upon the LANGSTAFF V. METROPOLITAN LIFE question of fraudulent misrepresentations

INS. CO. made by the defendants to the plaintiff, the

(Supreme Court of New Jersey. Feb. 24, jury must “consider another question which

1903.) has become one of the issues in this case,

LIFE INSURANCE-CONSTRUCTION OF POLICY. and with respect to which during the trial

1. A policy upon the life of L., insuring the the court has said that the pleadings are to payment of a sum of money to A. iu case of the be considered as amended, because the ac death of L., declared upon its face that "no oblition has been tried fully on both sides; and

gation is assumed by the company until the first

premium has been paid, nor prior to this date, that is whether the plaintiff had not parted

nor unless upon this date the insured is alive with her $11,000 worth of stock voluntarily and in sound health.” Held, that such a policy before she brought this suit. It is needless

did not become binding by a tender or payment to say that, if she was not the owner of this

of the premium while L. was ill, and before

the delivery of the policy to L. stock-if she had no interest at all in it-at

(Syllabus by the Court.) the time that she brought this suit, she cannot have any damages with respect to what

Action by Lydia Langstaff against the had happened before she parted with her

Metropolitan Life Insurance Company. Verstock, because she can only be a plaintiff in

dict for defendant. Rule to show cause disthis suit on the theory that she is or was

charged. the owner of the stock at the time she

Argued November term, 1902, before the brought the suit." And after referring to

CHIEF JUSTICE, and VAN SYCKEL, the evidence upon the question of the trans

FORT, and PITNEY, JJ. fer of the stock from the plaintiff to the In Voorhees & Booraem, for plaintiff. Wilvestors Company, the judge proceeded to la rd P. Voorhees, for defendant. charge the jury that, “if you believe that this transfer took place as these men testify that FORT, J. The decision of this case is conit did, then your verdict must be for the de trolled by the case of McClave v. Mutual Re. fendants, for the simple reason that the plain serve Fund Life Association, 55 N. J. Law, tiff has no interest in the stock that she then 187, 26 Atl. 78. It is impossible upon principarted with. If she parted with it, in fine, ple to distinguish that case from this. The she has no longer any interest in this suit." application for the policy sued upon in this

Plaintiff's counsel did, not assent to this case contained this clause: "I further agree instruction, but, on the contrary, noted an * that the contract of insurance, if one exception thereto. The ground of this pro be issued, * * shall not be binding upon test, doubtless, was that, inasniuch as the the company unless upon its date and delivplaintiff was not seeking to rescind the ex ery the insured be alive, and in sound change made between her and the defend health.” The policy issued reads as follows: ants, she was not obliged to hold herself in "No obligation is assumed by the company readiness to restore to them that which she until the first premium has been paid, nor had received from them in the exchange; prior to this date, nor unless upon this date that, as she had affirmed the exchange, she the insured is alive, and in sound health." was entitled to deal with the stock as her Conceding the payment of the premium to a own for all purposes, and, if she had subse clerk in the office of the agent of the comquently transferred it to the Investors Com pany at New Brunswick to be proven that pany for a consideration, she was only doing it was good as against the company, still it what she had a right to do with her own is an unquestioned fact in the case that at property, and did not thereby disable herself that time the insured was not in sound from recovering damages from the defend health. The agent of the defendant com. ants for their fraudulent representations. pany, who knew of the illness of the insured

none.

when he received the policy from the com property of said Frederick. Clara Kulin pany, was justified in refusing to deliver the claimed that the goods were her property, and policy on the tender to him of the premium; not the property of her husband. Clara and the subsequent leaving of the amount of claimed to have acquired title to the goods the premium with a clerk of the agent at his from her husband, who was engaged in the office, without his knowledge or consent, butcher business. After the alleged sale to while the insured was still ill, did not alter her, the business was continued in the same the situation. The clerk notified the person way as before the sale, and the judgment so leaving the money that she had no author under which the goods were sold was recovity to give a receipt therefor, and she gave ered for articles sold to the husband for the

One of the conditions of the policy business at the butcher shop. forbids payments of premiums at other pla. The trial court properly submitted to the ces than at the home office, unless a receipt jury the question whether the alleged sale to signed by the president or secretary and the plaintiff was an attempt to protect the countersigned by the person receiving the property of the husband from seizure by his premium be given to the person so paying it. creditors, with instructions that, if it was This policy was received in New Brunswick the property of the wife, she was entitled to on November 30th, and at that time and the recover the value of the goods. The jury time when the premium thereon was tender found a verdict in favor of the defendant. ed the agent, the insured was ill with typhoid The plaintiff testified that she owned the fever, from which he died on December 5th premises upon which the trespass was comfollowing.

mitted. This testimony was erroneously overThe rule to show cause will be discharged. ruled, but she was afterwards permitted to

prove and offer in evidence her deed.

On the cross-examination of the plaintiff, (69 N. J. L. 33)

the trial court permitted certain questions to KULIN v. HELLER.

be asked, to which her counsel objected; but (Supreme Court of New Jersey. Feb. 25,

she replied that she did not know, and there1903.)

fore she suffered no injury thereby.

The plaintiff testified that William Heller TRESPASS-DIRECTING VERDICT-SALE TO WIFE.

broke open the front door of her premises 1. In a suit brought by plaintiff to recover and came in. This was overruled, but, as damages for breaking and entering her shop and she afterwards testified that she did not carrying away her goods and chattels: The plaintiff requested the trial court to direct

know William Heller, it was evidently heara verdict for plaintiff, which was refused. say, and therefore not competent.

Held no error, because it was a question for The plaintiff requested the trial court to the jury as to the goods and chattels, and there

direct a verdict for the plaintiff, and assigns fore the request was too broad. The request should have been to direct a verdict only as to

error for refusal to do so. The plaintiff was damages to the real estate.

not entitled to this direction, for two rea2. It was error to charge the jury that, to sons: (1) It was not proven that a trespass title from husband to wife, the bill of sale to S. must have been delivered to him in person,

pass upon the plaintiff's lands was commitand by him delivered to the wife.

ted by Heller, or by any one acting for him (Syllabus by the Court.)

and under his authority (2) The request was

general-to direct a verdict. As to the perError to Circuit Court, Essex County.

sonal estate, it was a question for the jury, Action by Clara Kulin against Margaret

and therefore the request was too broad. It Heller, executrix of William Heller, deceas

should have been a request to direct a vered. Verdict for defendant. Plaintiff brings

dict for the plaintiff for the alleged trespass error. Reversed.

on the real estate. Argued November term, 1902, before the

The counsel of defendant asked the trial CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

court to charge that “if the bill of sale from

Kulin to Suderly was not delivered to SuderWm. S. Stuhr, for plaintiff. McDermott & ly, as Mr. Stuhr says it was not, then Mrs. Fisk, for defendant.

Kulin certainly acquired no title, because Su

derly did not have either actual or constructVAN SYCKEL, J. This suit was brought ive possession of the business.” In reply to by Clara Kulin against William Heller for this request the court charged as follows: breaking and entering her place of business "Tbe Court: I will charge you that, so far on the 28th of June, 1897, and carrying away as the bills of sale are concerned, the husher goods and chattels. Pending the suit band cannot transfer directly to his wife. William Heller died, and his wife was substi It must be done through a third party, and tuted, as his executrix, as defendant in the the third person then transfer it to the wife. case. At the time of the alleged trespass, You have heard the testimony on that pointWilliam Heller was sheriff of the county of that while the paper title appears to pass Hudson, and, by virtue of an execution from Mr. Kulin to Mr. Suderly, and then to against Frederick Kulin, entered upon the Mrs. Kulin, it appears by the testimony that premises specified in the declaration, and Mr. Suderly never had possession of the proplevied upon said goods and sold them as the | erty, either actual or constructive, and never

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