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25th, $30; in 1884, April 21st, $30; November | Kensington Ex parte, 2 Ves. & B. 79, deeds 10th, $40; in 1886, July 21st, $50. It ap were deposited with a firm of bankers, to repears that nothing was said at the time of main as collateral security for the balance these payments, or indeed at the time of any of any sum which the bankers might at any other payment, respecting the bond and mort time advance for the borrower's account. gage in suit. The payments made by Mrs. One of the members of the firm of bankers Kirkpatrick were entered in a passbook in retired, and advances were afterwards made the possession of Mrs. Kirkpatrick under the to the borrower. Lord Eldon held that the following heading: "Alexander Kirkpatrick. security, originally, only covered advances in account with D. P. Forst & Co." The made while the firm remained the same, and question is whether, after the lapse of time that there must be an agreement proved to since the execution of the mortgage, it can make it cover subsequent advances. In Ex be now enforced. The defendants insist that, parte Alexander, 1 Glyn. & J. 409, the same inasmuch as more than 20 years intervened rule was applied, but an agreement was between the execution of the mortgage and found to have been made, after the change the filing of this bill without recognition by of partnership, expressly pledging the same the mortgagor or by Mrs. Kirkpatrick of the securities with the new firm to secure the existence of a mortgage, the right of entry debt of the old, as well as the debt of the is barred.

new partnership. In Ex parte Marsh, 2 Rose, On the part of the complainants it is insist. 239, a new agreement was found upon the ed that there have been payments upon the construction of a letter written to the new mortgage debt which have kept the mort firm. In the present case there is not a gage alive. It is suggested by the counsel scrap of testimony to show any such agree for the complainants that the firm of D. P. ment. It does not appear that the bond and Forst & Co. was an entity, which continued mortgage was ever named between the parin existence during all the fluctuations in its ties from the date of its execution. It folmembership; that the security of the mort lows, therefore, that the mortgage of March gage covered all the merchandise sold by | 18, 1875, secured only the moneys then due, these different firms; and that all payments and advances made up to the date of the remade to them must be regarded as pay tirement of Mr. Leeds on January 31, 1879. ments upon the debt secured by the mort At that date there was due to the firm, for gage.

the balance due at the time of the execuIt is entirely settled, in respect to the con tion of the mortgage, together with advances tractual relations between a firm and another subsequently made, less payments of cash person or firm, that those relations are con by the mortgagor, a balance of $1,221.27. fined to the members of the firm with whom Now, as already remarked, in no payment, the contract was made. Upon the death or and, therefore, of course, in no payment subdischarge of a member, or upon the introduc sequent to January 31, 1879, was the bond tion of a new member, the new combination and mortgage mentioned, nor was there any constitutes a distinct entity. The new firm, request whatever that the sums paid should although pursuing the same business under be applied to any particular account. There the same name as the preceding firm, is ir was no appropriation of payment made by responsible for and unable to enforce the ob

the payors.

By the firm, these payments ligations of the contract with the dissolved were entered on the credit side of the runpartnership, unless such responsibility is as ning account as they were made. sumed, or the right to enforce is acquired, At this point the doctrine of appropriation by a new contract. A mortgage given to a of payment intervenes. As I have already firm can be enforced only by the members remarked, the balance due the firm at the or surviving members of that firm. Where time of the execution of the mortgage was securities have been deposited in bank to carried ong in the current account down secure future advances, and a change has oc to 1899. Subsequent to January 31, 1879, curred in the banking firm before the mak there appears to have been paid to the firm ing of some of the advances, prima facie the and credited to Alexander Kirkpatrick, in its securities extend only to those advances books of account, sums amounting to $4,961.which are made by the firm, whilst its mem 08, exclusive of the notes accepted by the bers continue the same as when the securi firm and materials returned to the firm. The ties were deposited. And, similarly, if a well-known rule respecting the appropriapartner pledges his separate property for fu tion of payments to running accounts is that, ture advances to be made to his firm, and he on a failure of the payor to appropriate, afterwards dies, an advance made after his the law will discharge the first debit items. death to his surviving partners will not be Since the case of Devaynes y. Noble, 1 Mer. chargeable against the property pledged. 529, the rule has been recognized that if, Lindley on Partnerships, mar, 119; Abat v. after dissolution of a firm by a change in the Penny, 19 La. Ann. 289.

partnership, an account is carried on as a It requires a new agreement to extend the running account with the succeeding firms, security given to the old firm for advances payments made to subsequent firms, unless by it, so as to make the security available appropriated by the party, will go to disto cover advances made by a new firm. In charge the oldest items of the account.

Bates on Partnership, par. 497; Simson v. .premises, and the defendant Welsh and his Cooke, 1 Bing. 452; Bodenham v. Purchas, family, by the permission of Williams, mov2 B. & Ald. 39; Pemberton v. Cakes, 4 Russ. ed in and occupied the same, and that the 154; Bank of Scotland v. Christie, 8 Cl. & latter continued in possession thereof until Fin, 214.

the commencement of this suit. This was in This case, then, seems to stand thus: The direct violation of one of the covenants of only payments made upon the mortgage debt the lease, and, by the express terms of that are not so made expressly by the payor, but instrument, worked a forfeiture, and entitled only by legal appropriation, which can in the plaintiff to re-enter. It was proper, any way be regarded as a recognition by the therefore, for the trial judge to direct the payor of the existence of the mortgage. If, jury to find by their verdict that the plainhowever, it could be regarded as a payment tiff was entitled to recover possession of the upon the mortgage, the application of such premises. In addition to the evidence al. payments extinguishes the mortgage debt en ready alluded to, the plaintiff offered testi. tirely. I am therefore constrained to the mony showing that the rental value of the conclusion that the complainants' bill must premises during the period of possession by be dismissed

the defendant Williams was $301. No con

tradictory evidence being offered on behalt (69 N. J. L 17)

of the defendants, the trial judge charged the

jury to assess damages in favor of the plainKLINE V. WILLIAMS et al.

tiff, and against the defendants, in the (Supreme Court of New Jersey. March 18, amount mentioned, for use and occupation. 1903.)

The question of liability for use and occu. EJECTMENT-MESNE PROFITS-PLEADING. pation was not within the issue raised by the

1. In ejectment there cannot be a recovery of pleadings. By her declaration the plaintiff damages for mesne profits; the declaration not demanded possession of the locus in quo, al. making claim therefor, as required by Gen. St.

leging that she was wrongfully deprived p. 1289, § 45, and Sup. Ct. rule 85, when it is desired to hold defendants for use and occupa

thereof by the defendants, and this was her tion, but merely demanding possession of the whole claim. If she had desired to hold the premises, alleging that plaintiff had been wrong. defendants for the use and occupation of the fully deprived thereof.

premises after the forfeiture had been inError to Circuit Court, Atlantic County. curred, the statute required that she should

Ejectment by Sarah A. Kline against John make claim therefor in her declaration. Williams and others. Judgment for plaiu- | Ejectment Act, Gen. St. p. 1289, § 45; Sutiff. Defendants bring error. Reversed. preme Court rule 85. Not having done this,

Argued November term, 1902, before GUM it was error for the trial judge to direct the MERE, C. J., and VAN SYCKEL, FORT, jury to assess damages against the defendand PITNEY, JJ.

ants for mesne profits. As this is assigned Harry Wooton and William I. Garrison,

for error, the judgment under review should for plaintiffs in error. Allen B. Endicott, for

be reversed. defendant in error.

(69 N. J. L. 2281 GUMMERE, C. J. This action was

SELLER et al. v. GREEN et al. brought by the defendant in error, the plain

SAME V. WOODBURY MFG. CO. et al. tiff below, to recover possession of certain premises in the city of Atlantic City, leased (Supreme Court of New Jersey. Feb. 24, by her to the defendant Williams for a term

1903.) extending from the 13th day of June, 1901, NEW TRIAL-SEPARATE ACTIONS-SINGLE to the 23d day of September of the same

VERDICT. year. In and by the lease between the par 1. Where two separate actions by the same ties, which was in writing, the defendant plaintiffs against different defendants were tried

together, and the judge charged that the accovenanted not to assign it, nor to underlet

tions were separate, and gave separate instructhe premises leased thereby, nor to permit tions in each case, and the jury, notwithstand, any person or persons to occupy the same, ing, returned but a single verdict against all

the defendants in both cases, a new trial was or any part thereof; and it was provided in

necessary. the lease that, if default should be made in any of its covenants, then it should be void, Actions by Robert W. Seller and another and that the plaintiff should have a right, against George G. Green and others, and by without notice, to re-enter the said premises the same plaintiffs against the Woodbury and remove all persons therefrom, or to pro Lanufacturing Company and another. The ceed by action for the recovery of the pos jury returned a single verdict against all the session thereof. It appeared from the evi. defendants in both cases. On rule to show dence submitted by the plaintiff, and it was cause. Rule made absolute. not denied by the defendants, that during the Argued before GUMMERE, C. J., and term, and about August 15th, the defendant VAN SYCKEL, FORT, and PITNEY, JJ. Williams and his family moved out of the

John Meirs, for plaintiffs. A. H. Sweck'91. See Ejectment, vol. 17, Cent. Dig. $ 457.

ha mer, for defendants.

On

March 18,

PER CURIAM. These are actions of tort, office was in the building, where a complaint and were tried together at the Camden cir was made against them by Dwyer, charging cuit. The state of the case shows that the them with the larceny of the journals. defendants in one case were charged with this complaint the plaintiffs were committed an unlawful entry upon the plaintiffs' prem to the county jail by the magistrate, and ises on the 9th day of January, 1901, and the Flynn and Delurey took them to Hackendefendants in the other case were charged sack, where the county jail was located, and with a separate and independent act of tres there delivered them into the custody of the pass committed upon the same premises jailer. They were subsequently indicted for three days later. The trial judge instructed the offense charged against them in Dwyer's the jury that the actions were separate, and complaint. The trial of the indictment regave separate instructions in each case. In sulted in an acquittal. The plaintiffs thenspite of this, the jury rendered but a single each of them-iustituted a suit against the verdict, which was a finding of $3,500 dam defendant company for false arrest and maages as against all the defendants in the two Jicious prosecution. Their suits were tried cases, saving one individual, who was dis together by consent, and resulted in verdicts charged by order of the judge. It is obvious in their favor. that this mistake on the part of the jury can The responsibility of the defendant comonly be remedied by a new trial.

pany is rested upon the doctrine of responLet the rules to show cause be made ab deat superior; and the primary question presolute.

sented by these rules to show cause is wheth

er the three men, Dwyer, Flynn, and De(69 N. J. L. 19)

lurey, in causing the arrest and imprisonment

of the plaintiffs, were acting as the agents TUCKER v. ERIE RY. CO.

or servants of the defendant company. The GEIL V. SAME.

evidence shows that they were “railway po(Supreme Court of New Jersey.

licemen," appointed and commissioned as 1903.)

such, on the application of the defendant MALICIOUS PROSECUTION-ARREST BY RAIL

company, by the Governor of the state, in WAY POLICEMAN-LIABILITY OF COMPANY. pursuance of the authority conferred upon 1. Act Respecting Railroads and Canals (Gen.

him by the act respecting railroads and St. p. 2671) § 22, empowers the Governor, on

cauals (Gen. St. p. 2671). By the provision application of a railroad corporation, to commission such persons as the company may des

of section 22 of that act, the Governor, upon ignate to act as policemen for it. Section 23 the application of any railroad corporation gives persons so appointed the powers, in the made to him to commission such persons'as counties through which the railroad may run, of policemen and constables, Section 25 re

the corporation may designate, to act as poquires the compensation of such policemen to be licemen for such corporation, “may appoint paid by the company. Section 27 provides that, such persons, or so many of them as he may when the company no longer requires their serv

deem proper, to be such policemen, and shall ices, it shall file notice with the Secretary of State, whereupon the power of such policeman

issue to such person or persons so appointed shall cease. Held, that the railroad company a commission to act as such policemen, a was not liable for a false arrest and malicious

copy of which commission shall be filed in prosecution made and instituted by its policemen on their own responsibility.

the office of the Secretary of State." The

twenty-third section of the act declares "that Actions by Patrick Tucker and Jacob Geil

every person so appointed shall, in the counagainst the Erie Railway Company. On rules

ties through which such railroad may run, to show cause. Rules absolute.

possess all the powers of policemen and of Argued November term, 1902, before GUM

constables, in criminal cases, of the several MERE, C. J., and VAN SYCKEL, FORT,

cities, wards of cities, and townships in such and PITNEY, JJ.

counties.” By the twenty-fifth section of John J. Fallon, for plaintiffs. Corbin & the act the compensation of such policeman Corbin, for defendant.

is required to be paid by the company upon

whose application they are appointed; and, GUMMERE, C. J. Tucker and Geil, the by the twenty-seventh section, whenever the plaintiffs in these cases, were arrested while company shall no longer require the services at the "oil switch" of the Erie Railroad Com of such policemen iť shall file a notice to pany, in the village of Garfield, on the even that effect in the office of the Secretary of ing of the 8th day of November last, by one State, and thereupon the power of such poDwyer, without a warrant, upon a cbarge of licemen shall cease and determine. It is stealing the brass journals from some freight plain, from a reading of the provisions of this cars which were standing on the company's statute, that although these men were aptracks at that point. They were first taken pointed on the application of the defendant by Dwyer to the office of the Standard Oil company, received their compensation from Company, which was near at hand. While it, and were subject to be divested of their they were there, two other men (Flynn and powers by its act, they were nevertheless Delurey) came to the office; and, shortly aft state officers, charged with the performance er their arrival, Dwyer, with their assistance, of public duties. They were, in law, police took the plaintiffs before a magistrate whose officers, constables, authorized to arrest per

sons guilty of criminal offenses or breaches Action by Peter W. Wiltbank against the of the peace, not only in cases where the Automatic Machine Company. There was a property of the company was involved, but verdict for plaintiff, and defendant takes out in every case where the crime was commit a rule to show cause. Rule discharged. ted or the peace broken within the bound Argued November term, 1902, before GUMaries of any of the counties through which MERE, C. J., and VAN SYCKEL, FORT, the company's railroad ran.

For the proper and PITNEY, JJ. discharge of their official duties, as well as

John W. Wescott, for plaintiff. Clarence for the proper exercise of their official pow

T. Atkinson, for defendant. ers, they were responsible, not to the defendant company, but to the state. Healey v. Lothrop, 171 Mass. 263; 50 N. E. 540; Tol

PER CURIAM. This action was brought chester Beach Imp. Co. v. Steinmaier, 72

by the plaintiff to recover compensation for Md. 313, 20 Atl. 188, 8 L. R. A. 846. In or

services rendered by him as manager of the

defendant company. der, therefore, to render the defendant com

The jury rendered a

verdict in his favor for $450. It appeared in pany legally responsible for the unwarranted arrest made by them, and the subsequent

evidence in the cause that the plaintiff was criminal prosecution maliciously instituted

one of the incorporators of the defendant by Dwyer, it was necessary to show that

company, and that at or about the time of their action was instigated by the company,

the organization of the company he and his or by some of its officers or employés; that

fellow incorporators entered into a written what they did was done by them as agents

contract, by the provisions of which the parof the company, and not solely of their own

ties thereto agreed that in consideration of volition, as peace officers. Jardine v. Cor

their respective services to each other and nell, 50 N. J. Law, 483, 14 Atl. 590.

the company, and in consideration of $1 No such evidence was offered. On the con

paid by each to the other of them, so much trary, the case made by the plaintiffs, and

of the company's stock as was left after established as true by the verdict of the

paying with it for certain patent rights and jury, under the charge of the court, was that

property acquired by the company should be their arrest was made by Dwyer on his own

divided among them. The ground upon responsibility, without consultation with or

which a new trial is asked by the defendant instruction from any one, and without the

is that by the terms of this agreement the existence of any facts to justify him in his

plaintiff was not entitled to recover comaction; that this was equally true of the ac

pensation for his services as manager of the tion of Dwyer, Flynn, and Delurey in tak company, except by the allotment of his ing the plaintiffs before the magistrate; and

share of the company's stock to him. The that the subsequent prosecution was mali

services referred to in the written contract ciously instituted by Dwyer, and was at

were those rendered by the parties prior to tempted to be supported by evidence manu

and at the time of the incorporation of the factured by bim, with the assistance company, and such services as should aftFlynn, for the purpose of making it appear

erwards be rendered by them as directors. that the plaintiffs were guilty of the charge This did not include services to be afterwhich Dwyer had made against them. So

ward rendered by any of the parties to the far as the case shows, the indictment subse agreement as employés of the company. quently found against the plaintiff's was not

The rule to show cause should be disprocured by the defendant company, nor by charged. any one acting in its behalf, and was prosecuted by the state without any suggestion

(69 N. J. L. 14) by or assistance from it.

DE ROCHE v. MYERS. The rules to show cause should be made

(Supreme Court of New Jersey. Feb. 27, absolute.

1903.) DOWER-FAILURE TO ASSIGN-WIDOW'S

QUARANTINE. (69 N. J. L. 236) WILTBANK V. AUTOMATIC AMUSEMENT

1. The daughter of testator sued his widow

to recover certain premises on the ground that MACH. CO.

the will, which left nothing to the daughter, (Supreme Court of New Jersey. Feb. 25,

was invalid. It appeared that the premises

were the mansion house of the testator, and 1903.)

that he had resided there with his wife up to CORPORATIONS-AGREEMENT BETWEEN COR the time of his death, and that no dower had PORATORS-COMPENSATION FOR SERVICES. been assigned. Held, that a verdict for plaintiff 1. An agreement between the corporators of

was erroneous, since, if the will was valid, a company that in consideration of their respec

plaintiff had no rights in the premises, and, if tive services to each other and to the company,

invalid, defendant was entitled to the mansion and of a payment of $1 by each to the other of

house by virtue of her right of quarantine, untliem, the remainder of the company's stock,

der the express provisions of Gen. St. p. 1276, after paying with it for property and patent

§ 2. rights acquired by the company, should be divided among them, did not preclude a recovery

Action by Mary A. De Roche against Salfor services rendered by one of the parties as

lie R. G. Myers. Verdict for plaintiff. Rule manager of the company.

to show cause made absolute.

of

Argued at November term, 1902, before 2. Where a conviction before a justice of the GUMMERE, C. J., and VAN SYCKEL, peace was not summary, it is not necessary that FORT, and PITNEY, JJ.

the return to certiorari should set forth the tes

timony. John W. Wescott, for plaintiff. William

Action by the New Jersey Society for the T. Boyle and R. O. Moon, for defendant.

Prevention of Cruelty to Animals against

Ewald Mickeloit. Heard on certiora ri on peGUMMERE, C. J. The plaintiff was a tition of the defendant. Affirmed. daughter, and the defendant was the wife, Argued November term, 1902, before GARof Charles Myers, deceased, who at the time | RISON and GARRETSON, JJ. of his death was seised of the lands involved

John W. Crandall, for prosecutor. W. H. in this suit. The real object of the action is

Darnell, for defendant. to test the validity of the will of the decedent. The plaintiff was cut off by that

PER CURIAM. This writ brings up a will, and on the trial undertook to show, first, judgment of a court for the trial of small that it had not been executed in compliance

causes in an action for a penalty. Two with the provisions of our statute; and, sec

points are made: First, that the justice of ond, that it was the product of undue infiu

the peace resided in Atlantic City, , where ence. The jury, after hearing the testimony

there existed a district court; second, that on these points, rendered a verdict for the

the return does not set forth the testimony. plaintiff. The issue submitted to the jury

As to the first point, there is no proof that was whether or not the plaintiff was entitled

the justice resided in Atlantic City; as to the to the possession of the premises, which, at

second, the return is sufficient, this not bethe time of the bringing of the suit, were oc

ing a summary conviction. cupied by the defendant. Their finding that

The judgment is affirmed. she was cannot be supported upon any legal ground. The case was tried upon the theory that the right of the plaintiff depended upon whether or not the will of her father

KNOTT V. KNOTT. was a nullity. This was a manifest misconception of the legal situation. It appear

(Court of Chancery of New Jersey. March 11, ed by the undisputed evidence in the case

1903.) that the locus in quo was the mansion house DIVORCE-RECORD IN OTHER SUIT-DISCLO

SURE OF PETITIONER'S ADULof the testator; that he resided there, with

TERY-EFFECT. his wife, up to the time of his death; that

1. Where it appears that a petitioner for diafter his death she continued to reside there vorce on the ground of desertion and adultery up to the time of the institution of this suit; has himself been guilty of adultery and bigamy, and that no dower had been assigned to her.

as disclosed by his answer and affidavit filed in

another suit before the chancellor, the case will When those facts appeared, the right of be referred to a master to inquire into petition. the defendant to remain undisturbed, by the er's right to a decree; the statute providing plaintiff, in her occupancy of the premises,

that, if it shall appear to the court that both

parties have been guilty of adultery, no divorce was demonstrated. As I have already stat

shall be granted. ed, this was the mansion house of the de-ceased at the time of his death. If his will

Suit by John J. Knott against Margaret was valid, the plaintiff had no right, title, or

Knott. On petition for divorce after a masinterest whatever in the premises, if his

ter's report. Reference again ordered. will was void, and the decedent died intes Robert I. Hopper, for petitioner. tate, the defendant, by virtue of her widow's right of quarantine, was entitled to the oc

STEVENSON, V. C. This is an ex parte cupancy of the mansion house so long as

divorce suit. The master reports in favor her dower remained unassigned. Gen. St.

of a decree of absolute divorce in favor of p. 1276, $ 2.

the petitioner on the ground of desertion. The rule to show cause should be made ab

The proofs amply support the finding of the solute,

master. The marriage took place in 1893. In 1894 the defendant eloped with a paramour, with whom she subsequently lived.

The difficulty about, the case arises from NEW JERSEY SOC. FOR PREVENTION OF CRUELTY TO ANIMALS v.

facts which were not proved before the masMICKELOIT.

ter, and of the existence of which he had no

notice. These facts were proved before this (Supreme Court of New Jersey. Feb. 25, court in a suit between one Lena Knott and 1903.)

the said John J. Knott (reported 51 Atl. 15). CERTIORARI-RETURN-JUSTICE OF THE This suit was commenced by a petition filed PEACE-RESIDENCE.

by Lena Knott on December 16, 1901, setting 1. On certiorari to review a judgment of a up that she was married to the said John J. justice of the peace imposing a penalty, an objection that he resided in a city where there ex

Knott in the city of Philadelphia on Novemisted a district court is not sustained when

ber 11, 1899, and that at the time of such there is no proof thereof.

marriage John J. Knott was married to an.

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