to the complainant subject to these conditions. There was abundant testimony to show that the camp ground in its original, and afterwards in its more restricted, area, had remained open, uninclosed, and unobstructed, except by the auditorium building and a summer house and well which was made upon the premises, and it was free to the use of all persons for outing purposes when not being devoted to religious meetings. Religious services appear to have been discontinued on the camp ground in or about the year 1900, and on March 25, 1901, the land comprising the camp ground was conveyed to Ralph B. Gowdy, and on the same day Mr. Gowdy and his wife conveyed a one-half interest in the premises to Louis F. Bodine, and on November 4, 1903, Messrs. Gowdy and Bodine, together with their wives, conveyed the same premises to the defendant, the Island Heights Hotel & Improvement Company.

Island Heights, N. J., and obtained convey- es from year to year. The properties came ances therefor. Afterwards it purchased another tract, and the whole was laid out, and a map made of it, labeled: "Property of the Island Heights Association, on the North Bank of Toms River, in Ocean County, New Jersey, scale 100 feet to an inch. A. P. Irons, Surveyor, Toms River, New Jersey, 1878." Copies of this map were spread broadcast, and sales were made of lots with reference to that map. The operation was one of at least a semireligious character, and was projected by the denomination known as Methodists, and was intended as a Methodist camp meeting resort. The map appears not to have been filed. In 1881 another map was made by the association and labeled: "Map of Island Heights, Ocean County, New Jersey." On both these maps a portion of the land of the association was marked "Auditorium," and an auditorium building was erected there some time during the early 80's, and was removed in 1904 or 1905. On Sunday, August 13, 1878, the first "camp meeting" was held upon the grounds, and it was announced in the sermon that the place would always be devoted to camp meeting services. This announcement was frequently repeated at services and on other occasions.

The complainant is the owner of two lots on the tract in question, and derives his title mediately from the association; one lot having been conveyed by the association to Alexander C. Graw September 30, 1886, who conveyed the same to Jacob Graw October 7, 1886, who conveyed the same to the complainant May 19, 1890, and the other having been conveyed by the association to James L. Hayes July 31, 1886, who conveyed the same to the complainant September 17, 1887. Before complainant made his first purchase in 1887 he spent the summer at Island Heights and heard announcement made from the pulpit in the auditorium that the open space there (at the auditorium) was to be a camp ground. The ground remained open, and no attempt was ever made to inclose it until the summer of 1907. In 1886 a revised map was made which was filed in 1888. Its lines were in many particulars a considerable departure from those in the map of 1881, but this last map also showed the camp meeting or auditorium space, though contracted somewhat from its former dimensions. The complainant saw the revised map before making his purchases, and heard statements made by members of the association to the effect that the camp ground was to be kept open. The conveyances from the association to the complainant's predecessors in title contained covenants by the parties of the second part for themselves and their heirs and assigns that the grants were made and received subject to the rules, by-laws, and regulations which might from time to time be adopted by the association for the protection, government, and control of the camp meetings and other

The complainant, who has built a cottage upon his lands, relies upon an implied covenant that the camp ground or premises, the fee of which is now in the defendant, shall be used only for camp meeting purposes, and that it cannot be closed to him as a lot owner upon the association's tract, or his view through and across the same obstructed. The nature and character of this covenant was under consideration by Vice Chancellor Stevens in Forrester and Others (among whom was the complainant in this cause) v. Island Heights Association and Others (among whom was the defendant in this cause) 62 Atl. 775, and it was held on demurrer that whatever private interests existed in the camp ground laid out, mapped, and dedicated in the manner set forth in the complainant's bill in that cause it was unnecessary to define; for, whatever rights might be held adversely to the defendants as owners of the fee, the complainant would not be entitled to relief until the defendant threatened to interfere with those rights, a mere transfer of the fee not being an invasion of any of the complainant's rights. Such interference is now alleged, and is made the basis of the present suit.

The Vice Chancellor took occasion to remark in the Forrester Case, at page 777: "The maps upon which the camp ground is laid out have been recorded, and all the facts connected with the dedication of the camp ground and the creation of all public and private rights therein appear to be matters of public notoriety and largely matters of record." In Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16, the defendant, a religious camp meeting association, laid out and mapped its seaside property into lots, reserving a tier of blocks between Fifth and Sixth streets, and extending from the ocean westward, as a camp ground for religious services and tenting purposes,

fronting on the blocks so reserved, whereon than the named purposes. The implied cove

nant arises for the benefit of all the lots, without regard to their particular locality, in relation to the tract impliedly agreed to be specially kept as an open space."

The defendant contends that, even if the facts warrant the conclusion that an implied. covenant to keep the camp ground open and to be used only for purposes of recreation and religious exercises exists, nevertheless the complainant cannot have the advantage of it because his lots lie partly within the territory which was designated as a boulevard on the original map. In 1886 a considerable departure was made in the original plan of lots, and what is called a dividend sale of lots remaining in the association was made to stockholders. As already remarked, a map was made in 1886, but not filed until 1888. This map showed lots platted on the boulevard. This is the map which the complainant saw, and is the map with reference to which his predecessors in title, who were stockholders, bought at the dividend sale. If the original owner changed the scheme of avenues upon the premises in question, and sold lots upon a portion of the premises formerly laid out and dedicated as an avenue, still reserving the camp ground as such, and sold to purchasers lots upon the abandoned avenue, with an implied covenant that the camp ground should remain open and devoted to no other than its original purpose, I fail to see how that fact would give the association or its subsequent grantee, mediate or immediate, the right to violate that implied covenant as against the owner or owners of such lots. Defendant's counsel has cited no authority for his contention in this regard. He relies upon De Gray v. Monmouth Beach Clubhouse, 50 N. J. 329, 351, 24 Atl. 388; Roberts v. Scull, 58 N. J. Eq. 405, 43 Atl. 583; Ocean City v. Headley, 62 N. J. Eq. 338, 50 Atl. 78. These are cases in which it is held that one who himself violates a covenant is without standing to enforce that covenant. They have no application to the case at bar. If the complainant in this case were violating the covenant for keeping the camp ground open, he probably would have no standing to object to the defendant's closing it, but he is doing nothing of the kind. In my judgment the defendant may not be heard to say that because it sold to the complainant land upon an avenue which had been laid

he erected a summer residence. It was observed by Mr. Justice Dixon, speaking for the Court of Errors and Appeals, at page 608 of 41 N. J. Eq., page 493 of 7 Atl., and page 16 of 56 Am. Rep.: "Whenever the owner of a tract of land lays it out into blocks and lots upon a map, and on that map designates certain portions of the land to be used as streets, parks, squares, or in other modes of a general nature calculated to give additional value to the lots delineated thereon, and then conveys those lots by reference to the map, he becomes bound to the grantees not to use the portions so devoted to the common advantage otherwise than in the manner indicated." And again at page 609 of 41 N. J. Eq., page 493 of 7 Atl., and page 16 of 56 Am. Rep.: "The inquiry now presented therefore must be, not whether the association has dedicated the blocks between Fifth and Sixth streets to public use, but whether it has entered into an implied covenant with the complainant not to use those blocks in the mode now proposed, and has granted to him, as appurtenant to his lots, the benefits to be derived from such restriction. The circumstances lead us to answer this inquiry in the affirmative." Bridgewater v. Ocean City R. R. Co., 62 N. J. Eq. 276, 49 Atl. 801, is a case like the one under consideration. In the Bridgewater Case the complainant was the owner of two lots by purchase through an intermediate grantee of the Ocean City Association. There was a dwelling house on the lots in which he resided with his family. The bill was filed against the railroad company, a subsequent grantee of the association of a strip of land which was part of a certain tract which by an implied covenant with the complainant and other purchasers of lots had been devoted to use as a camp ground and park. The defendant was erecting a passenger station thereon in violation of the covenant to the injury of the complainant by destroying the attractiveness of the camp meeting ground, and making it less desirable as a place of recreation and religious instruction, interfering with the circulation of air and with the view of the park and camp ground. Said Vice Chancellor Van Fleet, at page 289 of 62 N. J. Eq., and page 805 of 49 Atl.: "The space between Fifth and Sixth streets was to be kept open for use as a camp ground and park for religious services, affording a place where large congrega-out and dedicated to the public, and because tions could be assembled in the open air, and protected in tents or temporary structures, with abundant access of light, air, and view. Lots, whether near to or remote from the camp ground, were purchased in the expectation that this space should be devoted to the declared use. All purchasers thus acquired a right to have that space used as they had been assured it would be used for no other

the complainant purchased it, the defendant has a right to close against the complainant the camp ground which was forever dedicated as an open space for purposes of recreation and religious exercises.

Upon the whole case, I am of opinion that the complainant is entitled to the relief he seeks, and it will be decreed accordingly, with costs.

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

on."

18. LIBEL AND SLANDER (§ 120*)-ACTION- about Mr. Smith buying dead cattle, and cutDAMAGES-EXEMPLARY DAMAGES-MALICE. ting them up, and selling them from his wagIf slanderous words were uttered wantonly, maliciously, and with intent to injure plaintiff, he could recover punitive damages, in addition to actual damages proved.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dec. Dig. 8 120.*]

Action by Harry H. Smith against John Clarence Singles. Verdict for plaintiff. Argued before LORE, C. J., and PENNEWILL, J.

Levin Irving Handy, for plaintiff. J. Har

vey Whiteman, for defendant.

Plaintiff's declaration contained one count, which alleged that, shortly after a certain trial between the plaintiff and the defendant, before John W. Phillips, a justice of the peace in the town of Newport, the defendant, Singles, stated that the plaintiff, Smith, in his testimony at said trial, swore to a "damned lie." The plaintiff asked for punitive damages. The pleas were the general

issue and the truth of the words uttered.

At the trial, the witness George Butler was asked by Mr. Handy, counsel for plaintiff, what Mr. Singles, the defendant, said at Currinder's Hotel, in the town of Christiana, on another occasion than the one laid in the narr. about the testimony of Mr. Smith, the plaintiff, given at the said trial before the justice of the peace in Newport. This was objected to by Mr. Whiteman, counsel for defendant, as immaterial. Mr. Handy contended that the testimony was relevant, as showing express malice on the part of the

The above testimony was objected to by Mr. Whiteman, counsel for defendant, as irrelevant, not being a slanderous statement. The objection was overruled; but it afterwards appearing from the testimony of the same witness that he could not say when the said statement was made, whether within four months or a year after the said trial before the justice of the peace, on motion, the testimony of the witness concerning said statement was stricken out by the court, as

being too remote from the time of the slander alleged in the narr.

The plaintiff, Smith, being called as a witness in his own behalf, was questioned on cross-examination by Mr. Whiteman, as follows: "Q. You say you have lived in that community 45 years? A. Yes, sir. Q. And you have built up a good reputation in that community during that time? (Objected to by Mr. Handy, counsel for plaintiff, as irrelevant and not in cross-examination.)”

PENNEWILL, J. You asked this witness, Mr. Handy, whether he had been annoyed by these reports, and he said that he had heard of them time and again, going to show some damage or injury to his reputation and busi

"A. Yes, sir. Q. Is it not just as good as ever? (Objected to by Mr. Handy, as calling for the opinion of the witness, and not a fact.)"

PENNEWILL, J. We hardly think that question is admissible.

defendant when he made the statement as laid in the narr., no contention being made, however, that the plaintiff could recover damages for any subsequent slander; that "Q. In what way have you suffered any under the single averment of the narr. he damage or any loss of any kind by virtue of could introduce, for the purpose of showing this? A. In several ways. Q. In what express malice, as above, testimony of sim-way? A. People come to me and ask me ilar charges, or a repetition of the same about it. It is not a very nice thing. Q. charge, on other occasions and at other pla- Do they believe it? (Objected to by Mr. ces. 2 Greenleaf on Evidence, § 418; 1 Wig- Handy, as calling for the opinion of the witmore on Evidence, § 413; Kinney v. Hosea, ness.)" 3 Har. 399, 400, note; State v. Jeandell and Vincent, 5 Har. 475, 478, 479; Donahoe v. Star Publishing Co., 4 Pennewill, 166, 55 Atl. 337; Conant v. Leslie, 85 Me. 257, 27 Atl. 147.

Whiteman, for defendant replied. PENNEWILL, J. We think, under the decisions in our own state, that such evidence cannot be excluded; that the plea of the truth does not exclude evidence of express malice, the plea of not guilty being also pleaded. We overrule the objection.

Another witness, called on behalf of the plaintiff, testified, in reply to a question by Mr. Handy, that at or about the time of the said lawsuit between Mr. Singles and Mr. Smith he heard Mr. Singles, in the store of Mr. Moore, at Christiana, "pass a remark

PENNEWILL, J. If he knows, he may

answer.

"A. They cannot help but believe it. Q. Do you know what people think of you as a result of Mr. Singles having said this about you? A. Yes, sir. Q. What do they think of you? (Objected to by Mr. Handy, as calling for the opinion of the witness. Objec tion overruled.) A. He said that a cow died, and that I cut it up and sold it. Q. We are not talking about that. I ask you, by virtue of his saying that you swore to a damned lie, do you know what people think of you, with respect to that remark? A. Some of them think it is so. Q. Who believes it? What person out there, that you have found, believes it of you? (Objected to by Mr.

Handy, on the same ground as before stated, atory words he uttered in respect to the and as not in cross-examination.)" plaintiff were true. If the defendant has not

PENNEWILL, J. This is strictly in cross-satisfied you that the defamatory words he examination.

[Ed. Note.-For other cases, It is Cent. Dig. § 42; Dec. Dig. § 33.*] 3. DAMAGES (§ 216*)-PERSONAL INJURIES— EVIDENCE-INSTRUCTIONS.