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CHIEF JUSTICE, and VAN SYCKEL, locus in quo. To the admission of this deed FORT, and PITNEY, JJ.
objection was made on the part of the deEli H. Chandler and Geo. A. Bourgeois,
fendants, but the trial court permitted the
bill of particulars to be amended, and also for plaintiffs. Wm. M. Clevenger and
held that, it being competent to prove by Thompson & Cole, for defendants.
parol possession in James Adams, this deed
must be regarded as an aid to that proof, VAN SYCKEL, J. This is an action of and not as a conveyance strictly in the ejectment brought to recover possession of chain of plaintiffs' title to be set out in the about 41/2 acres of land in the county of At bill of particulars. In this respect the objeclantic.
tion was properly dealt with. At the opening of the trial below, the James Adams died in 1834. Jemima, his plaintiffs disclaimed title to the southerly half widow, died in 1873. This suit was commenof said tract, and claimed title only to the ced in 1900. northerly half. The plaintiffs traced their There was some evidence to show that title back to James Adams, who derived his James Adams was living on the Buzzards title from Thomas Adams by a deed dated Roost property when he died, and that the in 1827, which was produced in evidence. locus in quo was in the same inclosure. The trial court properly construed this deed James Adams left his widow Jemima suras a conveyance of the northerly half of viving him, and she remained in possession the lot therein described. In proving title, of the house on Buzzards Roost until 1872, the plaintiffs gave in evidence, among other when she removed, and died in the followthings, family history and relationship, which | ing year. was objected to as incompetent because it Under these circumstances the court prophad not been set forth in the bill of partic erly charged the jury that the deed to James ulars of title furnished to the defendants. Adams for the locus in quo was sufficient This bill of particulars is not in the printed prima facie evidence of the plaintiffs' title case, and the court is without accurate derived from James. James Adams conknowledge of what it contains. In Graham veyed Buzzards Roost to John Adams, V. Whitely, 26 N. J. Law, 254, Chief Justice through whom defendants claim, in 1833, Green pronounced the rule to be that, if the but Jemima Adams did not join in this deed. bill of particulars merely specifies the docu Jemima Adams, therefore, after the death mentary evidence upon which the party in. of her husband James Adams, was presumtends to rely, including the will of W. B., ably in possession of both tracts in right of the party is not thereby restricted to a claim ber dower, and until dower was assigned, of of title by devise, nor prevented from estab which there was no proof. lishing by parol a title from W. B. by de It does not appear that John Adams bad scent. There was, therefore, no error in per any paper title to the locus in quo from mitting the plaintiffs to show that they are James Adams, or from any one having a the descendants and legal heirs of James paramount title to that of James, and there Adams, who, so far as appears in the case, are no facts shown to justify the presumpdied without having disposed of the locus in tion of such a conveyance. The defendants quo, either by deed or by will. The plain must therefore stand on a title by adverse tiffs' evidence shows that the title which in- | possession. During the life of Jemima, hered in James Adams passed to them as his whom John married after the death of heirs at law. But in an action of ejectment James, the possession of John was not adthe plaintiff must trace his title back to some
Jemima was entitled to retain posone who is shown to have been in posses session until her dower was assigned in the sion, or, failing in that, he must show that lands of James Adams, and therefore, up to his grantor acquired title from the original the time she removed from the premises in proprietors. If they succeeded in that, they 1872, no time had run against the title of the established a prima facie title, which put up- plaintiffs. When the sheriff, by virtue of an on the defendants the burden of showing execution against John Adams, sold his ina better title. In 'Troth v. Smith (N. J. Sup.) terest in the said lands in 1842, John had no 52 Atl. 243, the plaintiff's paper title was de paper title to the locus in quo, and no posrived from the heirs of Jeremiah Leeds, and session which could draw to it the possession it was held to be sufficient, in support of of the locus in quo. The fact that John, after their possession, to show that upon their his interest in the lands was sold by the petition commissioners were duly appointed sheriff in 1842, remained in possession with by a court of competent jurisdiction to di Jemima, the widow of James, whom he had vide the said lands among the heirs, and married, gave John no such possession as, that said commissioners, in the execution of if continued, would be adverse. It was, in their duty, did make the division, which was contemplation of law, the possession of Jeof record. To show possession in James mima Adams in right of her dower, and not Adams, the plaintiffs offered in evidence a the possession of John, John had the right deed from Jeremiah Adams to James Adams, to live there with his wife, and the heirs of dated in 1808, for an 18-acre tract of land James could not, until her dower was assignknown as “Buzzards Roost," adjoining the ed, have succeeded in evicting him. There
fore adverse possession, to support the de tion to quash. From an order overruling fendants' title, could not have begun to run same, he brings certiorari. Motion to quash until after 1872. Whether, since that date, denied. the defendants and those under whom they Argued November term, 1902, before DIXclaim had been in such continuous, open, ON and HENDRICKSON, JJ. notorious, and hostile possession for 20 years
Thomas P. Fay, for plaintiff in certiorari. as constituted a title by adverse possession,
John E. Foster, for the State. was a question of fact, which was submitted to the jury with proper instructions. The verdict for the plaintiffs was not so clearly HENDRICKSON, J. The plaintiff in ceragainst the weight of evidence as to justify tiorari is the defendant below to four differthis court in setting it aside.
ent indictments, which have been removed The rule to show cause should be dischar into this court from the Monmouth quarter ged.
sessions. They charge the defendant with various embezzlements of the moneys and
property of the borough of Deal, in said (69 N. J. L. 160)
county, while serving in the office of treasSTATE V. BARTHOLOMEW.
urer or collector of the borough. The plain(Supreme Court of New Jersey. Feb. 24, tiff has demurred to the four indictments by 1903.)
a single demurrer. He has also pleaded to EMBEZZLEMENT – PUBLIC OFFICER INDICT the jurisdiction in the four cases by a single MENT-DUPLICITY-DEMURRER-MOTION TO QUASH.
plea. The demurrer and plea are for this 1. An indictment under section 167 of the
reason improperly pleaded, and will be strickcrimes act (P. L. 1898, p. 840), which charges
en out. a person holding an office of public trust with The defendant has, however, presented the embezzlement of “money, property, and se
with the reasons filed a motion to quash, curities," as stated disjunctively in the statute, is not bad for duplicity; the rule being that to
which is a statutory method of raising obstate in an indictment the successive grada jections to the indictment. P. L. 1898, p. tions of statutory offenses conjunctively, when 881, § 44. In the record these indictments they are not repugnant, is allowable. 2. It is sufficient in such indictment to charge
are respectively numbered one, two, three, the embezzlement to be of money, without
and four. I will so refer to them in the opinspecifying any particular coin or valuable se ion, curity. Value need not be stated, except where
One of the grounds of invalidity urged it is the essence of the offense. P. L. 1898, pp. 878-882.
against Nos. 1 and 2 is that they are bad for 3. Where the defendant was charged duplicity in charging three distinct offenses, treasurer of the borough of D., instead of col to wit, the embezzlement of “money, proplector of D., the latter being his official title, it
erty, and securities." In section 167 of the appearing that uuder the borough laws the collector was required to act as treasurer of the
crimes act (P. L. 1898, p. 810), upon which borough, and as such to collect, have, hold, and the indictments are presumably based, the receive all moneys raised by taxation, etc., the same words appear in the disjunctive form. indictment was held sufficient, in view of the
Where a statute makes two or three distinct provision of the criminal procedure act which forbids the reversal of a judgment on an in
acts connected with the same transaction indictment for any defect therein, except such as dictable, each one of which may be considmay have prejudiced the defendant iu main
ered as representing a pbase in the same oftaining his defense upon the merits. 4. In an indictment for a statutory, crime, it
fense, it has in many cases been ruled they is sufficient to charge it in the words of the may be coupled in one count. Wharton, Cr. statute, without other statement of facts, when Pl. & Pr. (9th Ed.) § 251. To state the sucthe offense is thereby described without ambiguity or uncertainty.
cessive gradations of statutory 'offenses con5. Although the indictment may not show junctively, when they are not repugnant, is that the grand jury which presented it was allowable. Id. $ 162; State v. Price, 11 N. held in the county where the venue is made. J. Law, 203. There is no repugnancy here. yet if it appear by the caption and the record that the grand jury was impaneled and sworn
The successive statements of the three classbefore the court sitting at the county town, es of property charged to have been embezand that afterwards it reported the indictment zled is in the language of the statute, and to the same court and was discharged, the in
the embezzlement of anything in any one of dictment will be held good. 6. A single demurrer or plea to two or more
these classes constitutes the offense charged. separate indictments is irregular, and will be But such a defect, if it existed, would be stricken out.
amendable under section 34 of the criminal 7. The motions to quash the indictments
procedure act (P. L. 1898, p. 878). Larison this case, four in number, which were removed into this court by certiorari, were denied, and
v. State, 49 N. J. Law, 256, 9 Atl. 700, 60 Am. the record remitted for trial.
Rep. 606. (Syllabus by the Court.)
After the indictment No. 2 charges the Certiorari to court of quarter sessions,
embezzlement of "certain money, properties, Monmouth county.
and securities committed to his keeping as Frank S. Bartholomew was indicted for
treasurer of the borough of Deal aforesaid,” embezzlement, and demurred, and filed mo
it proceeds as follows: “Viz.: the sum of
three hundred and eighty-six dollars and nine 2. See Embezzlement, vol. 18, Cent. Dig. $ 42. cents, of the value and amount of $386.09,
belonging to," etc. This, it is contended, is any of the money, etc., committed to his faulty, as not stating what was embraced in keeping, with intent to defraud the state, the valuation, and as not describing the county, city, borough, etc.; and the indictthings embezzled with sufficient certainty. | ments in this respect follow the exact words We think the count plainly charges the em of the statute. In an indictment for a statbezzlement of money, specifying the amount utory crime it is sufficient to charge it in and value thereof, and also property and se the words of the statute, without a particucurities, without stating their value. It is no lar statement of the facts and circumstances, longer necessary to state value, where not when the offense is thereby described withof the essence of the offense. Cr. Proc. Act out ambiguity and uncertainty. State v. (P. L. 1898, p. 878) $ 33. It is sufficient, also, Startup, 39 N. J. Law, 423; State v. Stimto charge the embezzlement to be of money, son, 24 N. J. Law, 478; Com. v. Welsh, 7 without specifying any particular coin or Gray, 324. Embezzlement is a distinct ofvaluable security. Id. p. 882, § 47.
fense, of a character well understood, the The indictments numbered 1 and 2 also essential elements of which are not involved charge the defendant as “then and there in uncertainty, so that the indictments under holding an office of trust and profit under discussion are clearly within the rule stated. the authority of a public corporation existing Goodhue v. People, 94 Ill. 37. under the laws of this state, to wit, the of This answer will apply, also, to a further fice of treasurer of the borough of Deal,” etc., point raised, that the indictments fail to and then with the embezzling of certain mon charge conversion by defendant to his own ey, etc., "committed to his keeping as such treasurer of the borough of Deal aforesaid.” The point is raised as to indictment 3, The point is raised that there is no such of which is based on section 168 of the crimes fice of trust and profit as treasurer of the act, that it does not describe the collector as borough of Deal. The borough was incorpo“having taxes to collect,” nor show that the rated in 1898 (P. L. p. 49), subject to the gen money embezzled, etc., was received for tax. eral borough laws. The borough acts (P. L.
This is unnecessary. The statute refer1897, p. 285; P. L. 1900, p. 400) provide for red to does not require it. The words of the the office of collector, and clothe him with statute are to the effect that the collector the like powers and duties that belong to the who shall embezzle, etc., any money received collectors of the several townships, and in or collected by him for the borough, etc., addition thereto it is provided that he shall shall be guilty, etc. act as treasurer of said borough, and shall Another point is that two offenses are char. collect, have, hold, and receive all moneys ged in the use of the words "embezzle and raised by taxation, etc. We think the aver retain in his hands.” This is merely charment that plaintiff was holding an office of ging in the conjunctive the words that appear trust, profit, etc., to wit, the office of treas disjunctively in the statute. This is not duurer of the borough of Deal, in view of the plicity, as we have already shown. statutory language here recited, made it un A point is also made that some of these in. mistakably clear to the defendant that he dictments represent a mere duplication of the was in fact charged as holding the office of same charge. They set out, however, the collector of the borough; and, this being so, embezzlement of differing amounts on differthe indictment in question should not be ent dates; and we must assume, looking at quashed in view of that provision of the the indictments alone, that each charges a criminal procedure act which forbids the re distinct offense. versal of judgment on any indictment for Other points are raised as to indictments 3 any imperfection or defect therein, except and 4; but they are either met by what has such as may have prejudiced the defendant been already said, or are so clearly without in maintaining his defense upon the merits. substance as to render discussion unnecesSection 136. This view finds support in State sary. V. Munch, 22 Minn, 67. In that case an in The point was made against all the indict. dictment charging that the defendant, being ments that they are defective in not showing then and there a person employed in the pub- that the grand jury was held in the county lic service of the state as treasurer of the of Monmouth. The indictments begin: said state, and intrusted as such treasurer, "Monmouth county, to wit, the grand inquest etc., while it contained no direct and explicit of the state of New Jersey, in and for the averment that he was state treasurer, was body of the county of Monmouth.” This is considered sufficient, as it was impossible in accordance with the established form, and, not to understand from the indictment that when read in connection with the caption and such was the fact.
record of the proceedings, shows the opposite Another point raised in the reasons is that of the proposition suggested. The caption indictments 1 and 2 do not show from what shows that the grand jury was impaneled source or for what purpose the officer re and sworn at Freehold, in said county of ceived the money or how the borough became Monmouth, before the court of oyer and terentitled to it. The answer to this is that the miner of that county, and that it presented statute has defined the crime in question to these bills later to the same court and was be complete when such officer shall embezzle discharged. This justifies the conclusion that
the grand jury was held and its indictments ment intended by that rule. We think it is found within the county of Monmouth. Com. not. The 'meaning plainly expressed in evv. Fisher, 7 Gray, 492; Smith v. State, 28 ery clause of this rule, except that now unTenn. 9.
der consideration, is that the employé inThe motion to quash is denied. The record jured, and the representatives of an employé will be remitted to the Monmouth quarter killed, shall not receive both compensation sessions for trial.
for the injury or death, and benefits from the relief department; and to effectuate this
purpose it is declared that a claim for com(69 N. J. L. 119)
pensation shall suspend a claim for benefits, O'REILLY V. PENNSYLVANIA R. CO. and the satisfaction of either claim shall (Supreme Court of New Jersey. Feb. 24,
discharge the other. Among these clauses is
that now to be construed, namely, '"Any com1903.)
promise of such claim or suit (for compensaRAILROADS-RELIEF DEPARTMENTRELEASE.
tion), or judgment in such suit, shall preclude 1. Rule 58 of the defendant's relief depart any claim upon the relief fund." Here the ment reads as follows: "Should a member or judgment intended is coupled with a comprohis legal representative make claim or bring mise of the claim or suit, and a compromise suit against the company, or against any other corporation which may be at the time asso
implies, not a total defeat of the claim, but ciated therewith in administration of the relief an adjustment which gives the claimant at departments, in accordance with the terms set least part of his claim-an adjustment in forth in regulation No. 6, for damages on account of injury or death of such member, pay
which the parties agree upon the sum to be ment of benefits from the relief fund on ac
paid. Bearing in mind the general purpose count of the same shall not be made until such of the regulation and this collocation of comclaim shall be withdrawn or suit discontinued.
promise and judgment, we think the judgAny compromise of such claim or suit, or judg. ment in such suit, shall preclude any claim
ment intended is one by which the claimant upon the relief fund for benefits ou account of recovers some compensation for the loss alsuch injury or death, and the acceptance of leged, and not one which turns on the mere benefits from the relief fund by a member or
form of pleading. his beneficiary or beneficiaries on account of injury or death shall operate as a release and
The judgment of the district court, to the satisfaction of claims against the company and contrary should be reversed, and the record any and all the corporations associated there remitted to that court for a new trial. with in the administration of the relief departments for damages received from such injury or death" Heid, that the judgment intended by that rule
(69 N. J. L, 50) is a judgment awarding the plaintiff some dam
DAVEY V. ERIE R. CO. ages. (Syllabus by the Court.)
(Supreme Court of New Jersey. Feb. 24,
1903.) Certiorari to Trenton district court. Action by Bridget O'Reilly against the
DECLARATION-DEMURRER. Penns;lvania Railroad Company. Judgment
1. Where a declaration in an action of tort
for negligence is demurred to, even though it for defendant, and plaintiff brings certiorari.
be inartistically drafted, still, it it allege with Reversed.
sufficient certainty facts that show a legal Argued November term, 1902, before HEN duty, and the neglect thereof on the part of the DRICKSON and DIXON, JJ.
defendant, and a resulting injury to the plain
tiff, without fault on his part, it is not demurJames L. Kelly and Clarence S. Biddle, for rable. plaintiff. Charles E. Gummere and Alan H.
2. A ground of demurrer suggested in the
brief, but not assigned among the causes of Strong, for defendant.
demurrer served, will not be cousidered.
(Syllabus by the Court.) DIXON, J. Thomas O'Reilly was killed on January 18, 1899, while in the perform
Action by Jane Davey against the Erie ance of his duties as an employé of the de
Railroad Company. Demurrer and declarafendant company. At that time he was a
tion overruled. member of the relief department of the com
Argued November term, 1902, before the pany. Afterwards, his administratrix, the
CHIEF JUSTICE, and VAN SYCKEL, plaintiff here, brought an action against the
FORT, and PITNEY, JJ. company to recover damages under our death Joseph M. Roseberry, for plaintiff. George act, but on demurrer to her declaration final M. Shipman, for defendant. judgment was rendered for the defendant. Afterwards she brought the present suit to FORT, J. This is a demurrer to a declarecover $250 claimed to be due as benefits ration. The declaration contains two counts. under the rules of the relief department, and The counts are inartistically drawn, and the defendant insists that the judgment above each is confused by unnecessary amplificamentioned bars her claim by force of rule tion, but neither count is sufficiently faulty 58, which is recited at the head of this opin to sustain a general demurrer. ion.
The first count is based upon the alleged The question for decision is whether a careless management of a locomotive engine judgment on demurrer is the kind of judg- ! by the servants of the defendant, such negli
gence resulting in hot ashes, burning coals, tal, under legislative sanction (P. L. 1864, p. etc., falling upon the combustible material 583), and were operated as such until 1871, upon the right of way of the defendant com when they were bought by the defendant, pany, and setting fire to such combustible ma the board of chosen freeholders of the county terials thereon, and then spreading to the of Cumberland. A statute passed in that standing timber, etc., on the plaintiff's land. year (P. L. 1871, p. 303) authorized this ac
The second count is founded upon the alle quisition by the freeholders. One of the obgation of vegligence in the defendant in the jects set forth in the title of this act was way it kept its roadbed and its adjacent land "to convert the road of the said bridge comon the right of way; the averment being that pany which is appurtenant to the said bridge the defendant failed “to keep its said strip, into a public highway," and one of the parcel, or tract of land
free from provisions of the statute was "that upon combustible materials, so that fire should not the execution and delivery of said conveybe occasioned by reason of hot ashes, burn ance, the said road of said company, now ing coals,
falling and settling appurtenant to said bridge, shall be deemed thereon from out of said locomotive engines, to be, and shall become, and shall be workand to take reasonable care to guard against ed and managed as a public highway, the the escape of fire which might be occasioned same as if said road had been laid out and thereby."
established, according to the provisions of These counts each sufficiently charge a the general road act; and that upon the duty and the neglect thereof upon the part execution and delivery of said conveyance, of the defendant company. Salmon v. D. L. the existence of the said the Maurice River & W. R. R. Co., 38 N. J. Law, 5, 20 Am. Rep. Bridge Company as a corporate body, shall 356.
become extinguished.” It is insisted upon the brief of the demur A new bridge was built by the county in rant that the declaration does not describe 1888, and this structure is not claimed to be or locate the lands of the plaintiff with suffi- either deficient or out of repair. The concient certainty. This may be true, but, as troversy is over the duty of the board of no such ground for demurrer is found in the chosen freeholders to put the road in quescauses, of demurrer in the record, it is not, tion in a condition fit for public travel. decided.
It is evident from the testimony taken unThe demurrers are overruled, with costs. der this rule that what is required of the
freeholders is not merely to repair the road.
way, or to maintain it in the condition in (69 N. J. L. 195)
which it was when it became a public highBACON et al. V. BOARD OF CHOSEN way, but to reconstruct it upon a higher FREEHOLDERS OF CUMBER
grade. The imposition of this duty upon the LAND COUNTY.
freeholders, and its enforcement by manda(Supreme Court of New Jersey. Feb. 24, mus, implies that the following propositions 1903.)
are established: (1) That the roadway is in MANDAMUS TO CHOSEN FREEHOLDERS-RE
legal contemplation an appurtenant to the PAIR OF ROADWAY.
bridge, rather than a public road; (2) that 1. Where the legal obligation of a board of by force of the act of 1871 the road did not chosen freeholders to put a roadway in fit con become a public highway, as distinguished dition for public travel is not clearly shown, its enforcement by mandamus will be denied.
from an appurtenant to the bridge; (3) that (Syllabus by the Court.)
the purchase of the bridge and road by the
county imposed upon it the duty of recon. Application by the people, on the relation
structing the road notwithstanding the legisof Alonzo T. Bacon and others, for writ of
lative declaration of the future status of the mandamus to the board of chosen freeholders
road; (4) that the duty of the freeholders, of the county of Cumberland. Rule to show
if it exists, is not merely to maintain or cause discharged.
repair, but to reconstruct; (5) that this is Argued November term, 1902, before GAR
the legal duty of the freeholders regardless RISON and GARRETSON, JJ.
of its discretion in the premises. Walter H. Bacon, for relators. Samuel Of these propositions not one can be said Iredell, Samuel H. Richards, and Thomas E. to be free from doubt unless the act of 1871 French, for respondents.
so clearly defines the future status of the
road as to leave no doubt that it was inGARRISON, J. The relators, as taxpayers, tended to sever it from the bridge, and es. ask for a writ of mandamus to compel the tablish it as a public highway, as if laid board of chosen freeholders of the county out under the general road act (3 Gen. St. of Cumberland to put a roadway in fit con p. 2803). Inasmuch, however, as the towndition for public travel.
ship in which the road lies is not a party The relators may maintain this action. to this proceeding, no opinion that involves Ferry V. Williams, 41 N. J. Law, 332, 32 its liability is intended to be expressed, esAm. Rep. 219.
pecially as the present matter must be disThe facts are that the bridge and road posed of upon a general rule that is insepara. way in question were built by private capi ble from the prerogative writ that is invoked,