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that by them, or by reason of them, the indorser intended to enter into a contract of suretyship. The certificate is a true statement of the attitude of the makers of the note towards the payees, and, as to the loss of the right to file a lien claim, the note was for a bill of goods that had already been furnished to the makers, and was owed for by them. No portion of it was due by the indorser. No consideration moved to her.

The plaintiff being a married woman, no contract of suretyship would be binding upon her unless it appeared that she obtained something of value for her own use or for the use, benefit, or advantage of her separate estate. Gen. St. p. 2017, § 26. While the judge below found as a fact that some of the items of the bill went into the indorser's building, yet she nowhere admitted this fact, and in truth disputed it, so that the finding of this fact could not be evidence to prove that because of it she agreed to become surety on the note.

The judge also certifies that on the trial the plaintiffs never had any conversations with the indorser in regard to signing the note and the certificate. There is not sufficient evidence to prove that the indorser entered into any contract of suretyship.

The plaintiffs having contended that some of the items of the bill for which the note was given went into a house of the defendant's, for which a lien could be had, and that thereby a special consideration arose to her, she should have been allowed to cross-examine the plaintiff as a party as to the entries in his book of original entry without any subpœna duces tecum for the purpose. This was denied to the defendant. In this there was also error.

The judgment below will be reversed, with costs.

(69 N. J. L. 6)

FRENCH et al. v. SCHOONMAKER. (Supreme Court of New Jersey. Feb. 24, 1903.) STATUTE OF FRAUDS-VERBAL CONTRACT FOR SALE OF DEBT.

1. A verbal contract, whereby defendant agreed to purchase for $845 a claim, held by plaintiff's testator, against a third party, on condition that testator would reduce the claim to a judgment, to be assigned by him to defendant, is within the sixth section of the statute of frauds (2 Gen. St. p. 1603), which declares that a contract for the sale of goods, wares, and merchandise for the price of $30 and upwards shall be void unless in writing.

Action by Sarah J. French, executrix, and Theodore F. French and another, executors, against William H. Schoonmaker. On demurrer to declaration. Judgment for demurrant.

This action is brought to recover damages for the breach of a contract, which is thus set out in the plaintiffs' declaration: "The

1. See Frauds, Statute of, vol. 23, Cent. Dig. $144.

54 A.-15

defendant bargained for and agreed to purchase from Phineas M. French [plaintiffs' testator], in his lifetime, a certain claim of the said Phineas M. French against the Plainfield Poultry Farm Company, amounting to the sum of $845.11, with interest thereon from the 23d day of September 1899, and to pay to the said Phineas M. French the amount of the said claim, on the consideration that he, the said Phineas M. French, would put the claim in judgment, and make an assignment of the said judgment, when obtained, to him, the said defendant; and the said Phineas M. French, at the special instance and request of the said defendant, then and there agreed to sell to the said defendant the said claim for the amount of the said claim, and to put the said claim in judgment, and to make an assignment of the said judgment, when obtained, to him, the said defendant." It is expressly alleged in the declaration that the entire agreement sued upon was by parol, and not in writing.

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

W. S. Angleman, for plaintiffs. Craig A. Marsh, for defendant.

GUMMERE, C. J. The contract sued upon is for the purchase and sale of a chose in action, a debt due from the Plainfield Poultry Farm Company to the plaintiffs' testator; and the ground upon which the demurrer is rested is that such an agreement is invalid under the sixth section of the statute of frauds (2 Gen. St. p. 1603), which declares that a contract for the sale of goods, wares, and merchandise for the price of $30 and upwards shall be void unless in writing. The question whether an agreement to assign a debt due to the assignor, whether it be a simple contract debt or a debt of record, is a contract for the sale of goods, wares, and merchandise, within the meaning of the statute, was set at rest in this state by the decision of the Court of Errors and Appeals in the case of Greenwood v. Law, 55 N. J. Law, 168, 26 Atl. 134, 19 L. R. A. 688. In that case an agreement to sell and assign a bond and mortgage was held to be such a contract, and the ground of that decision is thus stated in the opinion: "The words 'goods, wares, and merchandise,' in the sixth section of the statute, are equivalent to the term 'persona' property,' and are intended to include what ever is not embraced by the words 'lands tenements, and hereditaments' in the preced. ing section." The fact that, by the terms of the agreement this chose in action, which was a simple contract debt when the agreement was made, was to be transformed into a debt of record before being assigned, does. not change the transaction from a sale to a contract for the furnishing of work, labor, and materials by plaintiffs' testator to the defendant. The thing contracted for-the

debt due from the Plainfield Poultry Farm Company to plaintiffs' testator-was in existence when the contract was made. Assuming that this debt was "materials," and that the putting of it into judgment by the deceased was "work and labor" done on it by him, this work and labor was done by him upon his own property, for his own benefit, in order to make it salable. It did not transform the debt into a different entity. It merely made an alteration in its form. The thing to be assigned remained after judgment what it was before, viz., a debt due from the poultry company to the deceased. The mere alteration of the form in which the debt existed did not operate to make the contract an agreement for work, labor, and materials. Pawelski v. Hargreaves, 47 N. J. Law, 334, 336, 54 Am. Rep. 162. And the very wording of the contract shows that the parties to it understood and intended that it was for the purchase and sale of a chose in action, and not one for work and labor to be done and performed and materials to be furnished by the plaintiffs' testator for the defendant. By that contract the defendant, on his part, "bargained for and agreed to purchase from the said Phineas M. French a certain claim of the said Phineas M. French against the Plainfield Poultry Farm Company," and the said Phineas M. French, on his part, "at the special instance and request of the said defendant, agreed to sell to the said defendant the said claim."

The contract sued upon being within the prohibition of the statute, the demurrant is entitled to judgment.

(69 N. J. L. 235)

CONWAY V. VEZZETTI et al. (Supreme Court of New Jersey. Feb. 24, 1903.) NEGLIGENCE-FAILURE TO SECURE DERRICK -INJURY TO BOY.

1. A derrick, fastened by a head rope to the floor beams of the upper story of a building which defendants were constructing, stood within a fence inclosing part of the sidewalk adjoining the building. From the head of the derrick a guy rope extended downward, and was secured to a barrel filled with sand standing in the roadway near the curb. While plaintiff, a boy seven years old, was seated at or near the edge of the sidewalk, within two or three feet of the guy rope, a crowd of boys came to the premises after the workmen had left, and hung on the guy rope, swinging the derrick. Either because of their weight or because of the cutting of the head rope by rubbing against a beam, it broke, and the derrick swung over into the street, knocking down the fence, and injuring plaintiff. Held, that no negligence on defendants' part was shown.

Action by Walter Conway, an infant, who sues. etc., against Bernard Vezzetti and Charles Vezzetti. Verdict for plaintiff. On rule to show cause. Rule made absolute.

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

Young & Arrowsmith, for plaintiff. Vredenburgh, Wall & Van Winkle, for defendants.

PER CURIAM. This was an action of tort, and resulted in a verdict for the plaintiff. Defendants were building contractors, engaged in constructing a building in Jersey City. The front of the building stood on the building line of the street. A fence inclosed a part of the sidewalk about six feet wide adjoining the building; thence the sidewalk extended about nine feet to the curb. Within the fence, leading toward the building, was a derrick, which was fastened to the floor beams of an upper story by a tie rope. From the head of the derrick a guy rope extended downward and outward to the street, being secured to a barrel or barrels filled with sand that stood in the roadway near the curb. Plaintiff was a boy seven years of age, and at the time of his injury was seated with a companion upon a pile of lumber at or near the edge of the sidewalk, eating candy. He was within two or three feet of the guy rope. On October 25, 1901, about 5:15 p. m., after the defendants' workmen had left the premises, a crowd of boys, variously estimated at from 10 to 20 in number,, came there, and began hanging on the guy rope and swinging the derrick. They continued to do so until, either because of their weight or because of the cutting of the head rope by rubbing against a floor beam, the head rope parted, the derrick swung over into the street, broke down the fence, and struck the plaintiff, knocking him senseless, and fracturing his

nose.

We think there was no evidence entitling the jury to say that the defendants had been wanting in due care in respect to making the derrick secure. We have not considered the question whether the defendants owed any duty of care to the plaintiff under the circumstances, or whether, had negligence on their part appeared, it could have been deemed the proximate cause of the accident. The rule to show cause will be made absolute.

(69 N. J. L. 131) COLE v. ATLANTIC CITY et al. (Supreme Court of New Jersey.

Feb. 24,

1903.)

CERTIORARI BY TAXPAYER-EMPLOYMENT BY

CITY.

1. Under the ordinances of Atlantic City, approved May 31, 1902, and July 15, 1902, the compensation of a counselor employed to assist the city solicitor in pending or prospective litigation is to be paid by the city solicitor out of his salary, and consequently a taxpayer is not entitled to question by certiorari the validity of a resolution of the council employing a counselor for that purpose.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Clarence L. Cole, against Atlantic City

and Godfrey & Godfrey to review resolution of the common council. Dismissed.

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

George A. Bourgeois, for prosecutor. D. J. Pancoast, for defendants.

DIXON, J. The prosecutor, as a resident and taxpayer in Atlantic City, seeks to set aside a resolution of the city council passed November 24, 1902, providing for the employment of the law firm of Godfrey & Godfrey to assist in certain litigation, pending or prospective, in which the city is concerned.

On examining the situation, we think the prosecutor has no such interest in the matter as would justify our interference at his instance. Under the act for the government of cities, approved April 3, 1902 (P. L. p. 284) adopted by Atlantic City May 6, 1902, one of the municipal officers is a city solicitor (section 31), and the council has power (section 14, par. 36) to prescribe by ordinance his duties and compensation. In the exercise of this power, the council, by ordinance approved May 31, 1902, ordained that the salary of the city solicitor should be $4,000 per annum, and that, if it should be necessary to secure the services of a counselor at law in the conduct of litigation wherein the city might be engaged, his services should be paid for by the city solicitor out of his salAfter the adoption of this ordinance, Mr. Wootton was appointed city solicitor. Evidently, in this condition of the municipal laws, Messrs. Godfrey & Godfrey must look to the city solicitor for their compensation, under the resolution of November 14, 1902. The city treasury is not to be burdened therefor.

ary.

In reaching this conclusion we have not overlooked the fact that by ordinance approved July 15, 1902, fixing the salaries of various city officers from July 8, 1902, the salary of the city solicitor is declared to be $4,000 per annum, and no reference is made therein to the requirement that he should pay for legal assistance. We see no inconsistency in these ordinances, and regard the substance of the earlier ordinance as being still in force.

The writ should be dismissed for want of interest in the prosecutor, but without costs.

(69 N. J. L. 122) BARNERT v. BOARD OF ALDERMEN OF CITY OF PATERSON et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

MANDAMUS-OPENING STREET-ASSESSMENT. 1. By virtue of a municipal ordinance for opening a street, the relator's land was taken, and the residue of his land was assessed for benefits, and he paid the assessment under the belief that all rights necessary for opening the entire street had been acquired by the munici

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DIXON, J. By an ordinance approved March 5, 1894, the authorities of Paterson laid out Godwin street from Graham avenue to East Eighteenth street, and directed that it.should be opened as thus established. This street crossed the railroad of the New York, Susquehanna & Western Railroad Company. In pursuance of the ordinance the board of street openings of the city reported awards for damages and assessments for benefits, with respect to all property affected except that of the railroad company. Among the property thus affected was land of the relator, and upon an adjustment of his awards and assessments he paid to the city a balance of $868, besides interest. Subsequently, under a city ordinance, the street was graded, curbed, and guttered, and the assessment therefor on the relator's land was paid by him. He then discovered that, as no award had been made to the railroad company, the street had not lawfully been opened across its property, and he soon afterwards applied to the board of aldermen to take the necessary steps to open the street across the railroad. An ordinance for this purpose, presented to the board in August, 1900, was defeated.

These facts, we think, show prima facie a clear right in the relator to have the street opened to the extent indicated by the ordinance of March 5, 1894. So much seems necessary to give him the benefit for which his land and money were taken. To enforce this right, he now asks for a writ of mandamus. The objections urged against the allowance of such a writ come from the railroad company, and are: First, that the municipal proceedings for the opening of the street are, as against the company, invalid; and, second, that the question whether new proceedings to open the street across the railroad should be taken is one addressed to the discretion of the board of aldermen, and hence the board cannot, in deciding it, be controlled by mandamus.

The first objection is evidently not conclusive, for, if true, it can be obviated by new proceedings.

The second objection depends upon the truth of the first, and, if it be so supported, it is certainly formidable, but perhaps, un

der the peculiar circumstances of the case, not fatal. Whether it should prevail is, we think, a matter deserving to be put in such form as will permit of its decision in the court of last resort.

To that end we award an alternative mandamus.

(69 N. J. L. 89) NORTHWESTERN MUT. LIFE INS. CO. et al. v. BREAUTIGAM.

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

DECEIT-DECLARATION.

1. In an action for deceit it is proper to aver in the declaration the circumstances under which the fraudulent representations were made, and the manner in which the plaintiff was prejudiced by relying thereon, so that it may appear judicially to the court that the fraud and the damage sustained to each other the relation of cause and effect.

(Syllabus by the Court.)

Action by the Northwestern Mutual Life Insurance Company and others against Frederick C. Breautigam. Demurrer and declaration overruled.

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

Frank E. Bradner, for plaintiffs. Edward H. Murphy, for defendant.

PITNEY, J. In an action of tort, the declaration recites that one Stout and others had applied to the Chancellor of this state for a writ of injunction to restrain the plaintiffs from prosecuting an action at law to recover the amount due upon a certain promissory note made by said Stout and others and held by the plaintiffs; that said Stout and others consented that, if an injunction were granted, they would execute and deliver to the plaintiffs a bond, with good sureties, conditioned that they should pay to the plaintiffs any amount of money that might thereafter be found by the Court of Chancery to be due to the plaintiffs upon said promissory note, with the costs of the action at law and of the suit in chancery; and that the plaintiffs agreed to accept such bond, and consented to the grant of injunction, and thereupon the said Stout and others obtained from the Chancellor an order for an injunction, restraining the plaintiffs from prosecuting the said action at law upon the said promissory note, upon condition that the complainants should first execute and deliver to the plaintiffs a bond in the penal sum of $4,000, containing a condition in the form above mentioned, to be executed by two sureties whose sufficiency should be approved by one of the special masters of the Court of Chancery, and which bond should be first accepted by the plaintiffs; and the declaration avers that the defendant, in order to induce the plaintiffs to accept a bond executed by him as one of the sureties, falsely and fraudulently rep

resented to the plaintiffs that he was worth above the sum of $4,000 in real estate in the state of New Jersey after all his debts and liabilities were paid; that the plaintiffs, relying upon this representation of the defendant, assented to him as a surety upon the bond, and accepted a bond with the defendant as a surety thereon; that in truth and in fact the defendant was wholly insolvent and unable to pay his debts, and was not worth the sum of $4,000, in real estate in the state of New Jersey, above his debts and liabilities; that his debts and liabilities exceeded in amount the value of any real estate that he owned, that any real estate then owned by him was heavily incumbered by mortgages and taxes, and that there was no equity therein; and that the defendant knew that he was insolvent and unable to pay his debts, and that he was not worth in real estate in the state of New Jersey the sum of $4,000 or any other sum above his debts and liabilities. The declaration then avers that afterwards a final decree was made in the Court of Chancery in the said cause between Stout and others, complainants, and the plaintif as defendants, wherein it was decreed that there was due upon the promissory note in question the sum of $2,000, with interest, and also certain sums for costs; that the plaintiffs have been unable to collect the amount due upon that decree from the said Stout and others, and that they, the said Stout and others, are wholly insolvent; that the plaintiffs, upon notice to the defendant, have applied to the Chancellor for relief against the defendant as surety upon the bond, and that the Chancellor has granted leave to the plaintiffs to prosecute an action at law against the defendant as a surety upon the bond. The concluding averment of the declaration is that, by reason of the premises, the plaintiffs have wholly lost the amount due upon the promissory note, and have also lost the costs sustained by them as aforesaid..

To this declaration a general demurrer is interposed, on the theory that, if the declaration sets forth a cause of action, it is one that is founded upon contract only, and not upon tort. With this contention we do not agree. The declaration sufficiently shows that the plaintiffs consented to an injunction restraining their action at law, in consideration of a bond executed by the defendant and others, conditioned that the obligors should pay the amount ascertained by the Court of Chancery to be due upon the claim that was the subject-matter of their action at law; that the plaintiffs accepted this bond on the strength of the defendant's representation that he was worth above $4,000 in New Jersey real estate after all his debts and liabilities were paid; that this representation was false, and known by the defendant to be so, and that in fact the defendant was wholly insolvent. Fraudulent misrepresentations, thus made and thus relied upon, furnish ground for an action of deceit, provided it

appear that the plaintiff was damnified thereby, and not otherwise.

In Byard v. Holmes, 34 N. J. Law, 296, it was held that in an action of this character the plaintiff must show with reasonable certainty in his declaration, not only what the fraud was by which he has been injured, but also its connection with the alleged damage, so that it may appear judicially to the court that the fraud and the damage sustained to each other the relation of cause and effect. or at least that the one might have resulted directly from the other.

In the present declaration the proceeding at law and in chancery that led up to the giving of the bond, and the subsequent proceedings that fixed the liability thereon, and the fact of the insolvency of the obligors, are set forth for the purpose of showing the causative relation borne by the defendant's fraudulent representations to the damage that the plaintiffs have sustained.

The plaintiffs are entitled to judgment on the demurrer.

(69 N. J. L. 63)

STATE v. WHITEHEAD et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

CRIMINAL LAW-INSTRUCTIONS.

1. In the trial of a criminal case, it is error for the trial judge to say to the jury that they may consider the fact that the public, in a certain locality, think the defendants guilty, as corroborative of the particular facts proven in the cause.

(Syllabus by the Court.)

Error to court of quarter sessions, Middlesex county.

Vernon Whitehead and Georgianna Van Doren were convicted of crime, and bring error. Reversed.

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

George S. Silzer, for plaintiff in error. John S. Voorhees, for the State.

FORT, J. The defendants in this case were convicted of adultery at the Middlesex quarter sessions.

There are several assignments of error relating to the admission of testimony and to the charge of the court. But one of these exceptions need be considered, as it is sufficient to require a reversal.

The defendants' counsel requested the court to charge the jury as follows: "I ask your honor to direct the jury that they must only consider the case upon the evidence and in the language in which your honor charged a jury recently in another case; that it must not be upon suspicion and guesswork." On this request, the judge charged the jury as follows: "There is no question about that. The jury understand that we are here to try the case upon the evidence.

It won't do, because of a general relation of intimacy between these parties, to say that therefore upon one or more of these special occasions they have been guilty of adultery. If you have a general impression in your mind that they were guilty, or if you have an idea that the public in Washington think that they are guilty, because they are too intimate, that must not have anything to do with your verdict, excepting so far as it goes to corroborate the particular proven facts and circumstances clustering about this particular occasion which has been selected by the prosecutor for the time upon which he relies for the conviction." The last clause of this response to the request of the defendants' counsel to charge is clearly er roneous. We know of no condition that can arise in the progress of a trial when it is proper for the court to state to the jury that they may consider facts not proven in the case in reaching a verdict upon the question of the guilt of the defendant upon trial. If the judge had charged the request as asked, by simply saying, "I charge that," there would have been no error, and that was all that was required or called for by the request. It is impossible to believe that this statement by the court did not give the jury the impression that they had a right to consider the fact that the people about Washington had an impression that the defendants were guilty of the offense charged, and that under certain conditions they might consider that fact as evidential against the defendants in reaching their conclusion. We know of no authority for such a statement, and judgment is reversed, and a new trial granted.

(69 N. J. L. 27) REED et al. v. HACKNEY et al. (Supreme Court of New Jersey. Feb. 24, 1903.) ADVERSE POSSESSION-DOWER INTEREST.

1. When a widow after the death of her husband remains in possession of lands of which he died seised, or to which she has not released her right of dower, it is in law presumed to be her possession, in right of her dower, until dower is assigned.

2. If the husband in his lifetime has conveyed the land by a deed, in which his wife did not join, and she, after the first husband's death, marries the grantee, who lives with her upon the premises, the possession is the possession of the wife until her dower is assigned, and not the possession of the husband.

3. Such possession by the grantee cannot be set up, by those claiming under him, as a possession which will draw to it the possession of an adjoining tract, left in the possession of the widow of the first husband (and over which her right of dower extends), in order to support a title to such adjoining tract by adverse possession.

(Syllabus by the Court.)

Action by Leonard Reed and others against John W. Hackney and others. Verdict for plaintiff. Rule to show cause discharged. Argued November term, 1902, before the

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