Chapter II: Part 2

On the question of damages the Court said: "In the case in hand the performance of the contract was not prevented by the fault of the defendant, but by _vis major_. The making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder," and that, "As to the measure of the quantum meruit for the work done the contract rate should govern."

It is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $18,562.80. Since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the Court will be in favor of the plaintiff and against the defendant for that sum.

IN RE ELIZABETH AVENUE ASSESSMENT.

(Union Co. Common Pleas, Jan., 1922).

_Assessment for Repairing Street--Method Employed--Method Suggested_.

In re appeal from assessment for repairing Elizabeth Avenue from Front street to Seventh street, Elizabeth.

Mr. Alfred S. Brown, Appellant, in person.

Mr. Joseph T. Hague, for City of Elizabeth.

PIERCE, J.: This is an appeal from an assessment for repaving with granite blocks that portion of Elizabeth avenue, Elizabeth, extending from a point about 150 feet east of Front street to Seventh street. The error complained of is inequality as compared with other assessments.

Appellant is the owner of a triangular lot of land lying between Elizabeth and First avenues, at their intersection at Liberty Square; the lot is bounded northerly 350 feet on Elizabeth avenue, easterly 31 feet on Liberty Square, southerly about 350 feet on First avenue, and westerly 133 feet on abutting property; the lot is vacant except for an old house at the southwest corner fronting on First avenue.

The general method of assessment adopted by the Commissioners was as follows: From the whole cost of the improvement, $220,330.56, was deducted $23,127.29, paid by the Public Service Company for repaving its trolley tracks, leaving $197,203.27, of which one-half was assumed by the City and the other half assessed upon abutting property, being at the rate of $8.82 per linear front foot. The Commissioners adopted this linear front-foot rate as the bases of the assessment, and imposed it upon all lots one hundred feet deep; short lots were given concessions assumed by the City, viz., 12-1/2 per cent. off where the lot was 50 feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in that proportion. The Commissioners determined that as to all the lots the assessment was less than the value of the lot, and less than the benefit conferred, but gave no consideration as to the relative value of the lots as between themselves.

In assessing appellant's triangular lot the following method was adopted: The lot was divided lengthwise by an imaginary line into two equal parts, one fronting on First avenue and the other on Elizabeth avenue. The part on First avenue was not assessed. The part on Elizabeth avenue was assessed at the regular rate of $8.82 for its 350 feet frontage, a total $3,087.00, less three concessions: a concession of 12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet averaging fifty odd feet deep; a concession of 20 per cent. ($441.00) was allowed on the remaining 250 feet averaging thirty odd feet deep; and a concession of 25 per cent. ($68.35) was allowed for the 31 feet fronting on Liberty Square. Total concessions, $619.61, leaving $2,467.40 as the assessment levied. In addition to the concessions the Commissioners made no assessment against the lot for its frontage on Liberty Square.

The result reached by the Commissioners was to assess a lot 350 feet in front on Elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the other, nearly four-fifths as much as though the entire frontage had been full lots 100 feet deep. This is unreasonable and I think more than appellant's entire lot should be assessed.

I think the Commissioners erred in two respects in their method of assessment:

1. It was improper to divide appellant's lot lengthwise for the purpose of assessment. The lot was already too shallow for the greater part of its frontage for ordinary building purposes, and to divide it further was to leave two narrow strips, one fronting on Elizabeth avenue and the other on First avenue, neither of any sale value, or practical value for any purpose.

It was held by the Court of Errors and Appeals in Aldridge v. Essex Road Board (51 N. J. L. 166) that assessors may not divide a lot for the purpose of assessment so that, should a sale result to collect the tax, the property would not bring as much as if sold as part of the original parcel. The rule was followed in Coward v. North Plainfield (63 N. J. L. 61), where, as in the case at bar, an imaginary line was drawn midway between two avenues.

2. I think the Commissioners erred also in disregarding the relative benefit received by lots along the line of the improvement resulting from location and value of the property. The assessment was strictly a front-foot assessment with concessions for short lots, but disregarding the element of location and relative value.

The 4th Ward assessment roll received in evidence shows substantial variations in the value of properties on Elizabeth avenue, and inspection of the line of improvement about a mile in length shows greater traffic and better building and values toward Seventh street than opposite and below appellant's lot. The intersection of Elizabeth avenue and High street, a few feet West of Seventh street, is a business center for that part of the City, and values and traffic are materially greater in that vicinity than below Third street. It is manifest that business houses dependent upon traffic for their business are more benefited by a paving improvement than vacant lots at a distance where there is less traffic.

It is well settled in New York that the relative value of lots and the buildings upon them must be considered in determining the benefits accruing from a paving improvement (Donavan v. Oswego, 39 Misc. 291, and cases therein cited); and in State v. Rahway (39 N. J. L. 646; affirmed by the Court of Errors and Appeals in 11 Vr. 615) a greater assessment upon lots nearer a business center was approved in a grading, curbing and guttering improvement.

The statute provides that "all assessments ... levied for any local improvement shall in each case be as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement."

Under the circumstances existing in the case at bar, there being, as I find, a difference in benefit along the line of the improvement resulting from location and value, these elements should have been considered by the Commission and such weight given them as in the judgment of the Commissioners they should receive.

In reassessing appellant's lot I suggest a different ratio of concessions for short lots. The concessions adopted by the Commissioners are one-half the concessions allowed by the Newark, or Hoffman rule, in valuing short lots in regular assessments. As evidenced by the result reached in the assessment appealed from, the concessions are inadequate, and I see no reason why the full concessions established by the Newark rule should not be adopted.

It is not easy to formulate a rule that will do justice in all cases in assessing irregular shaped lots, but I think a fair result would be reached in the case at bar by deducting from the frontage assessment of $3,087.00 a concession of 25% ($771.00) for the frontage and probable future paving assessment on First avenue; a further concession at the rates given by the Newark Rule for that portion of the lot under 100 feet in depth (20%--$441.00), less the added value under the same rule for that portion over 100 feet in length (7%--$61.74) net $379.26; total net $1,936.74; less such further concession for less than average benefit received by appellant's lot as in the judgment of the Commissioners should be allowed by reason of inferior location, value and improvements.

As appellant's lot is not assessed for paving Liberty Square, no concession should be made for frontage on Liberty Square.

For the reasons given, the assessment appealed from should be set aside as to appellant's lot.

* * * * *

Inexcusable delay in presenting a check for payment is held to discharge an indorser from liability thereon if the check is not paid, whether he is in fact injured or not, in the West Virginia case of Nuzum v. Sheppard, 104 S. E. 587, annotated in 11 A.L.R. 1024.

STATE v. GRUICH.

(Essex Quarter Sessions, Dec. 27, 1921).

_Criminal Abortion--New Trial--Postponing Sentence Days_.

Case of The State against Anne Gruich. On application for new trial.

Mr. Frank Bradner for Petitioner.

Mr. John A. Bernhard, Assistant Prosecutor of the Pleas, for State of New Jersey.

STICKEL, Jr., J.: Anna Gruich was tried before this Court, Judge Harry V. Osborne presiding, and, on February 21, 1919, convicted of abortion. The minutes of the Court at the foot of the entry of the verdict of the jury contain the words, "Sentence postponed."

On the 23rd day of May, 1919, the said defendant was convicted by a jury on a second charge of abortion and, on June 5, 1919, sentence of both convictions was imposed by Judge Osborne, the sentences running concurrently.

The conviction on the second charge of abortion having been reversed by the Court of Errors and Appeals at a recent term of that Court and a new trial ordered, application is now made to this Court to grant a new trial on the charge of abortion of which the defendant was convicted on February 21st, 1919.

[Here two broad grounds are urged as warranting such action, the first ground involving a question of fact; that part of the opinion is not published. The second ground is that the Court, having postponed sentence thereafter to in a new term of the Court and without having noted in the minutes continuances of the day of sentence, imposed sentence upon the defendant, the contention being the Court then had no jurisdiction to impose any sentence. The opinion continues.--EDITOR].

And I am equally clear that there is no merit in her contention that the Court had no jurisdiction to sentence in the April Term upon a conviction had in the December Term.

The theory of the defendant seems to be that, because the minutes do not show that the time for sentence was fixed and then postponed from time to time until the sentence was actually imposed, therefore, no sentence day was, in fact, fixed, no continuance had, and, when the December Term expired, the power of the Court to fix a sentence day or impose a sentence ended.

The sentence file of this Court will show that the assumption of counsel is unwarranted, and that a day for sentence was fixed and regular adjournments of that sentence had from time to time until the day upon which sentence was imposed. But, even though we assume that no sentence day was fixed and no continuance in fact taken, the position of counsel in my judgment is unsound.

This case is controlled by the principles laid down in the opinion in Gehrmann v. Osborn, 79 N. J. Eq. 430; 82 Atl. Rep. 424, and by the decision in that case, and even though, as counsel for the defendant suggests, I may not be bound by the decision in that case, the reasoning, the logic and learning thereof is such that I am wholly content to be governed thereby in determining this case, and convinced that the decision in that case represents the law of this State.

There, as in this case, sentence was postponed, and, although more than two years elapsed before the defendant was actually sentenced, and, although the original postponement was the practical equivalent of an indefinite postponement of sentence, the Court upheld a sentence to State Prison. Here the sentence was imposed but a few months after conviction, and the postponement was not the equivalent of an indefinite postponement. And, like in the present case, there were no continuances of the sentence recorded in the minutes.

"The conclusion which I have, therefore, reached," says Vice-Chancellor Garrison, "in the Gehrmann case, is that in the State of New Jersey, if a defendant has pleaded nolle contendere, or guilty, or has been convicted upon trial, the Court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing upon the very day when the case was ripe for sentence."

It will be observed from the opinion that the duty rests upon the defendant to object to an indefinite postponement of sentence; that his failure so to do creates a presumption that he assented thereto, and that his assent or acquiescence to such postponement disenables him to complain when thereafter the Court imposes sentence, whether within or without the term in which the conviction is had or plea taken.

Here not only is there no proof of an objection, but on page 23 of the testimony it appears that the defendant at least acquiesced in the postponement from time to time of the sentence.

Moreover, just as the research of the learned Vice-Chancellor convinced him that an indefinite suspension of sentence has been the custom in our State beyond the memory of those then connected with the administration or practice of criminal law in this State, so, from my own experience as a practitioner in and Judge of this Court do I know that for years it has been the practice to sentence on a given Monday after conviction; to sentence periodically all persons convicted or who have pleaded; to enter in the minutes "Sentence postponed" in bail cases and prisoners "Remanded for sentence" in jail cases and to advise defendant for counsel, or both, in open Court of the regular sentence day; for the clerk to make up a sentence list for said day; for the Court to use such list in sentencing; for the Court to postpone to another day sentences set down upon such sentence day when it so determined, the clerk noting the postponement and placing the case on the new sentence list of the Judge, and for the clerk to take the various sentence lists and file them as a part of the records of this Court. This practice I find was followed in this case and probably accounts for the repeated attendance of the defendant at the courthouse for sentence. The defendant was convicted on February 21st and the first sentence day of Judge Osborne thereafter was February 24th, 1919. The defendant's name appears upon this list for sentence and a notation is made that the sentence was postponed to March 10th; the sentence list of March 10th shows a postponement to March 24th; that of March 24th a postponement to April 14th; that of April 14th a postponement to May 5th; that of May 5th a postponement to May 26th; that of May 26th to June 5th, and on June 5th sentence was imposed. If there is any question about this and the case is to be appealed, I would suggest that the Prosecutor submit as part of the record on this rule evidence of the practice of this Court in sentencing, together with the sentence lists of Judge Osborne covering the period in question.

The rule obtained in this case is discharged and the application of the defendant for a new trial denied.

IN RE WILL OF MARION.

(Essex Co. Orphans' Court, Jan. 12, 1922).

_Probate of Will--Signing Will "for Sake of Peace"--Burden of Undue
Influence--Facts Considered_.

In the matter of the probate of a certain paper writing purporting to be the last will and testament of Elizabeth Marion, deceased. On caveat.

Mr. Edwin B. Goodell and Mr. Philip Goodell for Proponent.

Mr. Paul M. Fischer for Caveator.

STICKEL, Jr., J: I was satisfied at the conclusion of the hearings in this matter that the paper writing purporting to be the will of the decedent had been properly executed, and I was also satisfied that she was capable of making a will; in other words, that she had testamentary capacity; but I had some doubt whether the decedent had not consented to the making of the document in question and signed the same for the sake of peace. Being thus in doubt I asked counsel to submit briefs on that point alone, and counsel for the proponent have submitted a brief. Counsel for the caveator has not submitted a brief, and, as I understand it, does not intend to submit one.

The decedent was a woman between fifty and sixty years old. She had several children, two or three sons and two daughters, as I recall it, and one of the daughters, Mrs. Appleton, resided, together with her three children, with the decedent, and had done so for sometime prior to the execution of the document in question. The decedent and her husband had lived apart for some years, and the whereabouts of the husband of Mrs. Appleton were unknown, so that both the decedent and the daughter daily went out to work.

The decedent had never made a will. She was not on unfriendly relations with her children, although there is some suggestion that she disagreed with all of them at different times. So far as the testimony shows, she had not indicated definitely to anyone at any time prior to the making of the document in question what she intended to do with her estate.

She executed the papers purporting to be her will between five and six o'clock, P. M., on the 21st day of December, 1920. She died about one A. M., the succeeding day. She received the last rites at eleven o'clock in the morning of the day she made the will. At three o'clock in the afternoon, two or three hours before she made her will, she inquired of her daughter where certain insurance papers were, and, being told that they were in possession of the daughter and that the insurance had been paid, she seemed relieved and said she did not want any trouble over her affairs. The daughter then asked her whether she had a will and received a reply in the negative. The daughter, Mrs. Appleton, followed this with an inquiry whether the decedent wanted to have things fixed up, and the decedent did not answer her. The daughter, nevertheless, thinking, as she said, that the employer and friend of her mother, Mrs. Hill, had a will, called up Mrs. Hill and, apparently, either told Mrs. Hill that the decedent wanted a lawyer to make a will, or that she had no will and was dying, for, in any event, Mrs. Hill, shortly after the telephone call, came to the decedent's house with Mr. Edwin B. Goodell, a lawyer of Montclair, to prepare a will for the decedent. The decedent was not asked whether she wanted to make a will prior to this time, and did not in anyway, so far as the testimony shows, request the attendance of Mr. Goodell or anyone else to make a will. When Mr. Goodell acquainted the decedent with the reason for his attendance, she said she did not want to make a will "tonight," or words to that effect; indicating, as Mr. Goodell put it, that she would prefer not to make a will that night.

At that time there were in the room with the decedent, who was in bed, very sick, a Mrs. Fischer, Mrs. Wickham, who was holding her up or propping her up in bed, Mrs. Appleton, the daughter, Mrs. Hill and Mr. Goodell. In an adjoining room was a son of the decedent with his child or children.

Someone of the persons in the room--the testimony does not agree as to who it was, and it may be that it was more than one--urged and encouraged the decedent to make a will after her remark that she did not want to make one that night. Mr. Goodell says he did not, although he felt that the decedent wanted to make a will, and that if she did not make it that night she would never make it, because he thought she would die before morning. In any event, a short time after she said that she did not want to make a will that night, Mr. Goodell inquired of her what she wanted to do with her property, and someone in the room, he thinks it was Mrs. Wickham--but Mrs. Wickham says it was not, although all seem to agree that it was not Mrs. Appleton--suggested that she wanted to leave her house, the one in which she was then living with her daughter and grandchildren, to the three grandchildren. The decedent assented to this. But Mr. Goodell took the precaution to ask her directly whether she wanted her house to go that way and reminded her it would tie up the sale of the property, because the children were minors. The decedent, in replying to this, said that was what she wanted to do; she wanted it so that it could not be "spent." Mrs. Hill and Mr. Goodell agree as to this testimony, and Mrs. Wickham, the only other person in the room, who was interrogated on this point, said that she had no recollection one way or the other. Then Mr. Goodell inquired of the decedent what she wanted to do with the residue of her estate, and again someone volunteered that she wanted it to go equally among her children. Whereupon Mr. Goodell, having interrogated the decedent, she replied that she wanted the residue to go in that way.

Mr. Goodell's recollection is that the decedent nominated the executor, herself, although he said it is possible that someone else in the room suggested it and that the decedent assented thereto.

Thereupon, the will having been read, paragraph by paragraph, the decedent and the witnesses duly executed it.

The burden of proving undue influence, of course, rests upon the person or persons charging undue influence, and, as was said in the case of Schuchhart v. Schuchhart, in the fourth syllabi, 62 Eq. 710, 49 Atl. 485: "When undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported." See also In re Richter's Will, 89 N. J. Eq. 162.

The inference which the contestants would have the Court draw from the facts is that the decedent intended to die intestate, so that her property would go to her children equally, and that her objection to making a will that night indicated her desire to die intestate, for she knew that her end was near and believed that if the making of the will were put off until the next day she would be dead and dead intestate.

This is an inference which may be drawn from the facts, but an equally justifiable inference is that the decedent had the all-too-common disinclination to draw a will; that she sought to shirk the responsibility of deciding what disposition to make of her property, to avoid making and executing a will; that when brought face to face with her responsibility she yielded to the advice and suggestions of her friends, and, although originally preferring not to make the will, determined to discharge her responsibility and make the will. In no other way can the statement of the decedent that she wanted to tie up the house, so the children could not spend it, be reconciled. That remark indicated that the decedent had aroused herself to the task of making her will, had overcome her disinclination, determined to perform the duty of making a will and had considered the question of the disposition of her property.

It is true that others made the suggestion as to what the decedent wanted to do with the property, and I am inclined to think that everyone in the room knew from talking with the decedent that she wanted to leave her property as she actually did leave it, although there is no direct testimony on this point, but the remark about preventing the children from spending the property was the product of the decedent's own mind; she initiated the remark, and thereby revealed her state of mind, both as to the matter of making a will at all and as to how she wanted her property to go. And it is not strange that she wanted the property to go in this way, for she knew it was her grandchildren's home (and we all know the wonderful love that grandparents have for grandchildren); she knew that they could not depend upon a father for support and upbringing and that their mother was the breadearner. Her own children were grown up, married, most of them, and so far as the record shows not to need of assistance. That the devise of the house to the grandchildren is a natural, normal one, is emphasized by her disposition of the residue of her estate, for, having taken care of her grandchildren, assured them of a home during their minority at least, she proceeded to give to her children everything else that she had; and I am inclined to think she believed that the residue of the estate would be much larger than it actually is; that the return she would get from the estate of Timothy Arnold would be larger than it actually was.

It is undoubtedly true that, except for the presence of the lawyer, which was brought about by Mrs. Hill and Mrs. Appleton, and except for the advice and encouragement to make a will and at once by those in the room to the decedent, she would have died without a will. But, instead of the presence of the lawyer and the said advice and encouragement dominating the deceased and destroying her free agency, it seems only to have served to arouse in her the necessity for making a will, if she would protect her grandchildren, to re-awaken and revive her apparently dormant and pre-existing desire to provide a home for her grandchildren, to do this and to give her the opportunity to carry out such desire or intention, which opportunity she seized and made the best of, for how else can her response to Mr. Goodell, that she wanted to tie up the house so that it could not be "spent," "That is what I want to do," be accounted for? Certainly acts which produce such a result cannot be said to be acts of undue influence. Stewart v. Jordon, 50 N. J. Eq. 733-741. And it is well settled that it is not the exercise of undue influence to advise, encourage, or urge the making of a will. In re Barber's Will, 49 Atl. 826; In the matter of Seagrist, 1 N. Y. App. Div. 615; 37 N. Y. Supp. 496; Aff. 153 N. Y. 682; 43 N. E. 1107.

Mr. Goodell, who drew the will, is a reputable and careful lawyer, and I feel sure that he would not have prepared this will or permitted the decedent to execute it except he felt it represented her real wishes. Nor do I think he would have permitted her to have executed this document if he for one moment conceived that she was making it for the sake of peace or to be rid of her visitors. That fact must also be considered in determining the question in hand.

It seems to me, therefore, that the more probable inference to be drawn from the facts in this case is one which requires the upholding of the document as the will of the decedent and that the contestants have not sustained the burden of proving undue influence.

The paper writing purporting to be the will of Elizabeth Marion is consequently admitted to probate.

WOMEN JURORS.

Does the right of suffrage entitle women to serve as jurors? This question has been answered in the affirmative in Michigan, where it was held, in People v. Barltz, 180 N. W. 423, 12 A.L.R. 520, that a constitutional declaration that every inhabitant of the State, being a citizen, shall be an elector and entitled to vote, makes women electors within the meaning of a statute requiring jurors to be drawn from the electors, and they are therefore entitled to perform jury duty.

This decision seems to stand alone. A contrary conclusion was reached in Re Grilli, 110 Misc. 45, 179 N. Y. Supp. 795, affirmed on opinion below in 192 App. Div. 885, 181 N. Y. Supp. 938, which involved the right of an enfranchised woman to compel the board of assessors and the commissioner of jurors to complete the county jury lists by including therein the qualified women voters of the county. The Court said: "The only claim made by the petitioner in connection with her application is that jury service is incidental to and a part of suffrage, and since, by the recent amendment of the State Constitution, women are qualified to vote, they must be made jurors. The fallacy of this contention is found in an examination of the history of the jury system since the adoption of the first Constitution in the State of New York. While citizenship has always been a qualification of jury service, every voter has not been included within the jury lists. The various laws with reference to jurors show that men who were entitled to vote have been excluded from jury service."

In Illinois, the fact that women are legal voters for the election of statutory officers, and certain other purposes, is held not to make them eligible for jury service in criminal cases, in People v. Krause, 196 Ill. App. 140, and People v. Goehringer, 196 Ill. App. 475.

In Virginia, according to 6 Va. L. Reg. N. S. 780, Judge Gardner, in instructing jury commissioners, distinguished between the right to vote and the duty to render jury service, by stating that the former is a constitutional right conferred, while the latter is a legislative duty imposed. He concluded that women cannot lawfully serve as jurors under the Virginia statute, which limits that duty to "male citizens over twenty-one years of age," until the legislature so modifies the statute as to make it applicable to "all male and female citizens twenty-one years old."

The Court, in the Wyoming case of McKinney v. State, 3 Wyo. 719, 30 Pac. 293, 16 L.R.A. 710, seems to have been of the opinion that a constitutional provision that "the rights of citizens of the state of Wyoming to vote and to hold office shall not be abridged or denied on account of sex," and that "both male and female citizens of this State shall equally enjoy all civil, political, and religious rights and privileges," did not require that women voters be allowed to serve as jurors.

The Supreme Judicial Court of Massachusetts, in Re Opinion of Justices, 130 N. E. 685, answered questions submitted by the House of Representatives by holding that, under the Constitution of the United States and the Constitution and laws of Massachusetts, women are not liable to jury duty. The State statute subjects to jury service persons "qualified to vote for representatives to the General Court." These words, while broad enough to include women, are held not to do so, when interpreted in connection with the history of the times and the entire system of which the statute forms a part. It was determined, however, that the General Court had constitutional power to enact legislation making women liable to jury duty.--_Case and Comment_.

MISCELLANY

NEW CHANCERY RULE.

The Chancery Rules have been supplemented by the addition of a new rule numbered 165a, promulgated January 6, 1922, as follows:

165a. All pleadings, proofs and other papers presented to, and all orders and decrees signed by the Chancellor or a Vice-Chancellor or Advisory Master at the State House in Trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the Chancellor or Vice-Chancellor or Advisory Master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the Chancellor or Vice-Chancellor or Advisory Master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed.

SUPPLEMENTARY PROCEEDINGS.

Attention has been called to the Bar of Bergen county by Mr. Justice Parker to a laxity of practice in relation to supplementary proceedings in cases of judgment and execution, and, as the matter should interest the Bar of the State generally we give, herewith, what has been spread before the Bergen attorneys:

"1. Originally an attorney or agent could not make the affidavit. Westfall v. Dunning, 50 N. J. L. 459. This was changed by statute. P. L. 1890, p. 185. But it should appear as one of the direct statements in the affidavit that the attorney is the attorney, i. e., "J. S., being duly sworn, says that he is the attorney herein for A. B. the plaintiff," and not merely, "J. S., attorney for the plaintiff, being duly sworn," which is a mere appositive and not a definite statement.

"2. Such affidavits frequently say: "that he has read the foregoing petition, and that the statements thereof so far as they relate to his own acts are true, and so far as they relate to the acts of others he believes them to be true." This, it would seem, is not a compliance with Section 24 of the Executions Act. Such an affidavit in Chancery was considered in Barr v. Voorhees, 55 Eq. 561, and held sufficient for an order for discovery, but not for an injunctive order. But it is to be noted that this was under Section 90 of the Chancery Act of 1875 (Rev. 121; G. S. 1895, p. 389) which reads "that he believes the contents thereof are true," whereas, Section 24 of the Executions Act requires the creditor or his agent to verify the petition, in which he shall state the amount due on the execution, the return by the officer, _and his belief_ that the creditor has assets, etc. The belief is, therefore, restricted to the debtor's assets and does not apply to the recovery of the judgment or the issue or return of execution. As to these facts, the late Chief Justice Depue said he doubted the sufficiency (at law) of such an allegation. 10 N. J. L. J. 223-4; Frankel v. Miner, 10 N. J. L. J. 341.

"There is no difficulty about an attorney deposing from personal knowledge that a judgment was entered, and execution issued and returned, as these things are matters of record; and as Chief Justice Beasley said in Westfall v. Dunning, 50 N. J. L. 461 already cited: "It is obvious that such a statement could be safely made by anyone who was possessed of the loosest information," etc. He was there speaking of verifying the belief of the _creditor_; under the present act the belief of the attorney may do as well, but the criticism seems applicable to the other allegations also.

"The printed forms in Jeffery and on some of the law blanks are open to criticism in the above respects, and debtors should not be hauled before Commissioners for examination unless the statute is complied with."

ACCIDENT TO MRS. EMERY.

Mrs. John R. Emery, widow of the late Vice-Chancellor Emery, while traveling with friends in Algiers, met with an automobile accident about Feb. 12th. The automobile turned over on the edge of a mine shaft, and it is stated she sustained a fracture of both arms. She went abroad Oct. 8th.

DEATH OF NEWARK'S MAYOR.

Mayor Alexander Archibald, of Newark, died on Feb. 11th, after an operation for a pressure on the brain nerves. He is said to have been the first Mayor of Newark to die while in office. He was born in Edinburgh, Scotland, December 13, 1869; was three years of age when his parents came to America. He was a silverware manufacturer in Newark. He was elected to the Council of Newark in 1910; became City Clerk in 1914, and in 1917 was elected City Commissioner and became Mayor. He was a Democrat and was talked of as a candidate for Governor. His funeral was large and observed generally throughout the city.

HUMOR OF THE LAW.

A Memphis lawyer entered his condemned client's cell: "Well," he said, "good news at last!"

"A reprieve?" exclaimed the prisoner eagerly.

"No, but your uncle has died leaving you $5,000 and you can go to your fate with the satisfying feeling that the noble efforts of your lawyer in your behalf will not go unrewarded."

GOVERNOR'S APPOINTMENTS.

Adam O. Robbins, of Flemington, Common Pleas Judge of Hunterdon county in place of George K. Large.

Henry E. Newman, of Lakewood, Common Pleas Judge of Ocean county in place of William H. Jeffrey.

Marshall Miller, of Bloomsbury, Prosecutor of the Pleas for Hunterdon county in place of Harry J. Able.

Wilfred H. Jayne, Jr., Prosecutor of the Pleas for Ocean county in place of Richard C. Plumer.

Mahlon Margerum, member of the State Board of Taxes and Assessment.

J. Harry Foley, Secretary to Governor Edwards, State Superintendent of Weights and Measures.

Joseph A. Delaney, of Paterson, Common Pleas Judge in place of William W. Watson.

Joseph F. Autenreith, of Jersey City, in place of President John J. Treacy, resigned, on Public Utilities Commission.

Austin H. Swackhamer, of Woodbury, Judge of Gloucester Common Pleas, in place of Francis B. Davis.

BOOK RECEIVED.

THE NATURE OF THE JUDICIAL PROCESS.
By Benjamin N. Cardozo,
New Haven: Yale University
Press, 1821.

This book is especially welcome just now, after reading Judge Cardozo's article in the December number of the "Harvard Law Review," entitled "A Ministry of Justice," which shows that his study of the nature of the judicial process has led him to seek for practical means to correct the errors that have crept into the law in the application of legal principles. This article in the "Harvard Law Review" is in itself the result of his study during his long experience on the Bench of the problem he deals with in these lectures on the nature of the judicial process. The book consists of four lectures delivered in the William L. Storrs' lecture series in the Law School of Yale University, 1921. The titles of the lectures suggest the scope of his inquiry. They include: The Method of Philosophy; The Methods of History, Tradition and Sociology; the Judge as a Legislator; Adherence to Precedent; The Subconscious Element in the Judicial Process.

"Any Judge," he says, "one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth." In telling of the study of precedents in arriving at the rule of law to be applied to the decision of cases, he takes up, first, in the introduction, the method of philosophy and inquiries, in what proportions different sources of information shall be allowed to contribute to the result. If a precedent is applicable, when shall he refuse to follow it, and if no precedent is applicable, how does he reach the rule that will make a precedent for the future? "If," he says, "I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare; by my own or the common standards of justice or morals?" And again, he says: "The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that the precedents are ultimate sources of the law, supplying the sole equipment for the legal armory, the sole tools, to borrow Maitland's phrase, 'in the legal smithy.' Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn."

In the lecture on the methods of History, Tradition and Sociology, he shows how the method of Philosophy comes in competition with other tendencies which find their outlets in other methods. The tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history. "Very often," he says, quoting Justice Holmes, "the effect of history is to make the path of logic clear. History, in illuminating the past, illuminates the present, illuminates the future."

The law of real property supplies the readiest example of a field where there can be no progress without history, and where "a page of history," to quote Holmes again, "is worth a volume of logic."

He refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the Law Merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong.

The law of real estate is taken merely as an example. Maitland, Holmes, Pollock and Pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. The historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries.

From History and Philosophy and custom he passes to the power of Social Justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. It is by the way of history and tradition that he comes to the method of Sociology. It is by the common law method of applying old principles to new conditions that Courts have been able to preserve the continuity of the law in changing conditions.

Among the leading cases cited is the Bakeries case, Lochner v. New York, 198 U. S. 45, wherein Judge Cardozo suggested that in this decision the dissenting opinion of Justice Holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. Justice Holmes made the remark, "The Fourteenth Amendment does not enact Herbert Spencer's Social Status," and Judge Cardozo cites later cases in the Supreme Court to the effect that "A constitution is not intended to embody a particular economic theory, whether of paternalism ... or of _laissez faire_." It was by careful research of the effect of long hours of work for women that the change of opinion was brought about.

There is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. He quotes President Roosevelt's message to Congress, December 8, 1908, in which he says: "The chief lawmakers in our country may be, and often are, the Judges, because they are the final seal of authority.... The decisions of the Courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the Twentieth century, we shall owe most to those Judges who hold a Twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions." This aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that Judges ought to be in sympathy with the spirit of their times. Yet this does carry us very far upon our road to the truth. The spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. No effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties.

The relation of the law to the economic and social progress is of great importance at this time, and it is well for us to have the help of this thoughtful and suggestive discussion by an experienced and conscientious Judge.

E. Q. K.

OBITUARIES.

MR. THOMAS W. RANDALL.

Mr. Thomas William Randall, long prominent as a lawyer in Paterson, died at his residence at Upper Preakness, a few miles from that city, on Feb. 9, 1922, after a long illness. Up until a few days of his death he expected to live at least through the coming Summer, but the final end came with little warning.

Mr. Randall was born at Slough, in Buckinghamshire, England, about twenty miles from London, near the historic Windsor Castle and famous Stoke Pogis church, on June 24, 1853, and is a descendant of some of the most substantial and oldest families in that locality. He arrived in the United States, with his parents, on June 8, 1866, sailing from London, and resided first in Franklin township, Bergen county, and later at Hawthorne, in Passaic county, until he entered upon the study of his profession. He first studied law in the office of Judge Hopper, in Paterson, and afterwards with Messrs. Pennington & DeWitt, of Newark, and also attended the Columbia Law School in New York. He was admitted to the New Jersey Bar at the June Term of the Supreme Court in 1877, and, after spending some time abroad, came to Paterson and entered upon the practice of law, in which he was actively engaged ever after until his last illness. He became a counselor at the February Term, 1889.

Mr. Randall took no active part in politics, and never held a political office; he had no liking for mere partisanship. His practice was large in the Orphans' Court and in Chancery proceedings, as he settled many estates. He was a Special Master of the Court of Chancery and as such many matters of reference were heard by him, and always with promptness and efficiency. He was also a Supreme Court Commissioner. He was counsel for many of the old Passaic families and for various corporations. In the great Paterson fire he lost every thing in his office except what was in his safe. He was an extensive reader of good books and had an excellent memory, a refined taste and the best of habits. He had none of the common vices of the day.

For many years Mr. Randall was a member of the Second Presbyterian Church. He served there on the Board of Trustees and was also a member of the Session. Mr. Randall served the Second Church in a legal capacity without cost to the congregation and was always glad to give legal advice to the poor in need of it. He also served for many years on the Board of Trustees of the New Jersey Presbytery and was known by every clergyman in that Presbyterian body. He was seldom absent at a stated meeting.

Mr. Randall was also the recognized friend of the Young Men's Christian Association and his services in legal transactions were also at the disposal of the Board of Managers. He was counsel for the Young Women's Christian Association and served as a member of the Investment Committee, with other prominent men of the city.

When in 1886 the people of the People's Park District appealed to the late Dr. Charles D. Shaw and the elders of the Second Presbyterian Church for the establishment of a Sunday School in that district of the city, Mr. Randall was one of the most interested members of the Session in the movement to that end. Through the aid extended on behalf of the plan the Sunday School was opened a few weeks after the request was considered, and Mr. Randall became the superintendent. He frequently referred to that service as one of the happy experiences of his life. Later the school movement grew into the establishment of the Madison Avenue Presbyterian Church, now one of the most thriving congregations in the city, under the pastorate of the Rev. Franklin J. Miller. Mr. Randall frequently visited the People's Park church and school to note the progress of the work he had a prominent part in starting. He was also interested in the St. Augustine Presbyterian Church, and in establishing headquarters for the colored men on Governor street.

Mr. Randall was a Christian citizen and was concerned in the welfare of Paterson. He was a member of the Passaic County Bar Association, a director of the Paterson Building and Loan Association, and was identified with the old Board of Trade. When the centennial celebration of Paterson was held in 1892 he was one of the hundred prominent men of the city selected to plan for that big event.

For several years before his death Mr. Randall was a member of the Church of the Redeemer.

Mr. Randall was specially fond of his native England, and made various journeys to that county. The Editor of this Journal has special cause to know of his interest in travel and fine qualities as a traveler, having been in his company abroad in 1898, 1903, 1907 and 1910, in some of which occasions he extended his trip to France, Switzerland, Italy, Germany and Holland; also to Ireland and Scotland. In 1910 he saw the Passion Play. He was also a frequent visitor to Lake Mohonk. From its beginning he was a patron and valued friend of this Journal, frequently sending to it copies of legal articles from English newspapers and occasionally contributing to its pages. The article we shall publish in our next issue, entitled "A Letter to Portia," was received from him only a few days before his death, as were some notes concerning the death of his friend, Mr. Robert Hopper, also of the Paterson Bar.

In 1879 Mr. Randall married Miss Jennie S. Perry, a well known and highly esteemed teacher in the Paterson Public Schools, and at one time principal of School Number Two. Mrs. Randall died in 1912. There survives one son, Edmund Brown Randall, who is now the Judge of the Paterson District Court. A brother of Thomas W., Mr. Richard Randall, also a member of the Paterson Bar, died Oct. 16, 1913.

COL. E. LIVINGSTON PRICE.

Colonel Edward Livingston Price, for 56 years past a member of the Essex County Bar, died at his home, 112 Bruen street, Newark, on February 4, from a heart attack, after an illness of about one year.

Colonel Price was born in New York City Dec. 20, 1844, being a brother to former Governor Rodman M. Price, and a son of Francis and Maria Louisa (Hart) Price of New York City. He received his education at Dr. Cattell's Edgehill School, Princeton; Dr. Woodhull's School, Freehold, and Dr. John F. Pingry's School, then in Newark and now in Elizabeth. He would have gone to college had it not been for the outbreak of the Civil War. He entered the Union Army in April, 1861, when he was sixteen, as Second Lieutenant of Company E, 74th Regiment, New York Volunteers, having been unable to get a commission in New Jersey. Shortly afterward he was promoted to First Lieutenant. In this capacity he served from July, 1861, to April, 1862, when Major General Hooker placed him on his personal staff as Ordinance officer of the Third Army Corps, "Hooker's Division." As Ordinance officer he served at the siege of Yorktown, Va., and during the whole of the peninsular campaign. In August, 1862, he became Major of his old Regiment, the 74th New York, which he commanded through Pope's campaign in Virginia, in the battles of Bristow Station, Second Manassas and Chantilly. His promotion to the Colonelcy of the 145th New York Volunteers took place on February 18, 1863. He served with this Regiment until January, 1864, taking part in the battles of Chancellorsville and Gettysburg.