ously and permanently fixed in plain view on said vehicle or rolling chair: Provided, that no two vehicles or rolling chairs of the same description shall be given the same number." The written sworn complaint in this matter, made by the defendant against the prosecutor, states that, on August 4, 1895, the prosecutor, being the owner of a one-horse omnibus, licensed as No. 141, drove it, or permitted it to be driven, for the conveyance of passengers, in the public streets of Atlantic City, without having the number conspicuously and plainly fixed in plain view on said omnibus, in violation of section 4 of the ordinance to which reference has been made. It is to be noticed that the complaint was made for the violation, solely, of the provisions of the fourth section. The complaint is wholly in this form. The evidence returned as a part of and included in the conviction shows that it was all directed to the proof that the licensed number was not fixed to the vehicle or omnibus of the prosecutor, and the conviction is for that offense under the fourth section of the ordinance. Under this conviction a penalty of $10 fine and $1.90 costs was imposed upon the prosecutor.

The

Section 4 of this ordinance provides no penalty whatever for the violation of its provisions. The entire ordinance has been certified, and it discloses that no other section enacts any penalty for the violation of the fourth section. Upon this record and these facts, it is plain that the proceedings against the prosecutor, his conviction, and the imposition of the fine and costs upon him, were without the slightest legal warrant. complaint must distinctly show what ordinance has been violated, and there can be no conviction under any other ordinance, or any other section of an ordinance, nor the imposition of any other penalty than that provided by the ordinance or section under which the complaint and proceedings are taken. An attempt was made, upon the argument, to justify this conviction by virtue of the provisions of the seventh section of the ordinance. It will be perceived, upon an examination of that section, that it provides that any person engaged in the business of the operation of cars for local passenger traffic, public hacks, or omnibuses, without having first a license from the city council, shall be subject to a fine not exceeding $200 for each offence. But the prosecutor was licensed, and the complaint was against him as a licensed owner for not affixing to his cab or omnibus the number of his license, and to this offense or neglect the seventh section has no relation whatever. The seventh section provides no penalty for not affixing his licensed number to his cab or omnibus. An ordinance of the character and class in question, in order to support a conviction, must clearly and distinctly assign to the offense provided against a penalty for its violation. It is this appropriate sanction which gives vitality and force to the ordinance, and renders the prohibited

act unlawful. alty, both the ordinance and all proceedings thereon to enforce it are entirely nugatory and useless. No penalty having been provided for the violation of the ordinance, the conviction under it is a nullity, and can have no force and effect whatever. State v. Zeigler, 32 N. J. Law, 262-268; Smith v. Treasurer of Town of Clinton, 53 N. J. Law, 329, 21 Atl. 301; State v. Cleaveland, 3 R. I. 117; 1 Dill. Mun. Corp. (4th Ed.) p. 410, §§ 308, 336, 338. It is not necessary to consider the other reasons urged against the validity of the ordinance, and the conviction under it. viction must be set aside, with costs.

Without the sanction of a pen

ROOP v. STATE.

(Supreme Court of New Jersey. 1896.)

The con

Feb. 20,

DISORDERLY HOUSE-EVIDENCE-OBJECTIONS.

1. Upon the trial of an indictment for keeping a disorderly house, the defendant was permitted to be asked on cross-examination whether he had not been indicted for keeping a disorderly house at another place. Held error.

2. A witness for the state, who had resided in the house defendant was charged with maintaining, and who testified to its disorderly character, was asked whether she was not living, at the time of examination, in a house of prostitution. The evidence was admissible for certain purposes, but not for the purposes which defendant's counsel stated to the court as the ground for its offer. Held, that the rejection of the evidence is not reviewable. (Syllabus by the Court.)

Error to court of quarter sessions, Camden county; Vroom, McDowell, and Gaunt, Judges. Harry Roop was convicted of keeping a disorderly house, and brings error. Reversed. Argued November term, 1895, before the CHIEF JUSTICE and LUDLOW and MAGIE, JJ.

John H. Fort, for plaintiff in error. H. Jenkins, for the State.

Wilson

MAGIE, J. The record returned with this writ discloses the conviction of plaintiff in error upon an indictment charging him with the offense of keeping a disorderly house. The bill of exceptions shows that, upon the trial of the indictment, plaintiff in error, having testified in chief in his own behalf, was asked by prosecutor, on cross-examination, this question: "Were you and Knopper indicted for keeping a disorderly house at Gloucester?" His counsel objected to the question, but it was admitted by the court, and an exception allowed and sealed. The witness had previously been asked if he had been convicted of keeping a disorderly house in another state, and had answered in the affirmative. This question and answer were admissible, by force of the provisions of section 1 of the "Evidence Act" (Revision, p. 378), and the answer could be used to affect the credit of the witness. But evidence of the commission of such a crime could not be admitted as tending

to establish accused's commission of the crime charged in the indictment on trial. State v. Raymond, 53 N. J. Law, 260, 21 Atl. 328; Clark v. State, 47 N. J. Law, 556, 4 Atl. 327. The question admitted against objection was plainly improper. It called for a response as to a mere charge of crime, in respect to which there was a presumption of innocence, while proof of the actual commission of such a crime was inadmissible.

Prosecutor contends that the error in admitting the question objected to could not have prejudiced the accused in maintaining his defense on the merits, and that the error ought not to avail him in reversing the judgment. But the case before us is too meager to justify us in holding that it did not work to the prejudice of the accused with the jury, as it clearly tended to do.

The only difficulty I have is with respect to this error having been properly assigned. The assignment directed to this point avers that the court erred in "compelling the defendant to answer the question" above recited. The admission of the question by the court, however, cast on the witness the duty of answering, unless he was privileged to decline to answer. The bill of exceptions shows no claim of privilege, but that the witness answered in the affirmative. In this view, I think the exception is covered by the assignment.

The bill of exceptions further discloses that one Marie Eddy, a witness for the state, who testified to the disorderly character of the house in question, in which she had been living, was asked on cross-examination whether she was not then living in a house of prostitution. This question was objected to by the prosecutor, and excluded by the court, and an exception allowed and sealed. This question was quite proper to be asked of this witness. There is no privilege of a witness excusing answers to questions as to situation, employment, and associates when of his own choice. If the answers tend to disgrace, the position is, of his own selection. 1 Greenl. Ev. § 456. There was, moreover, in this case, another ground for the admission of such an inquiry. In response to previous questions, the witness had admitted that she had been a "ruined girl for about eighteen months," but averred that she had reformed. Whether she was at the time of the examination living in a house of ill fame was proper to be inquired about. But the attention of the court below was not directed to either of these grounds for admitting the question. The object stated in support of the offer was to lay a foundation for the introduction of testimony that the witness was of notoriously bad character, and unworthy of belief, and had made the complaint for revenge and blackmail. The ruling of the court was made upon that statement, and was clearly correct, for the question asked did not in any respect tend to lay a foundation for the counter testimony referred to. Evidence of bad reputation and of

false and corrupt complaints needed no foundation. Nothing is better settled than that a court of reviews will not examine points not taken in the court below; and, if evidence is properly rejected as incompetent for the purpose for which it is offered, the ruling will not be erroneous, although it was admissible for other purposes. Railroad Co. v. Dailey, 37 N. J. Law, 526; Packard v. Railway Co., 54 N. J. Law, 553, 25 Atl. 506. For this reason, the exception is unavailable to the plaintiff in error. But, for the error pointed out by the other exception, there must be a reversal of the judgment.

HOFFMAN v. LOWELL. (Supreme Court of New Jersey. Feb. 20, 1896.)

RULE TO PLEAD-PROOF OF SERVICE.

Where a rule to plead has been obtain ed without the notice required by section 216 of the practice act (Revision, p. 881), the burder of proving the service of the rule is upon the party seeking to avail himself of the fact of its service.

(Syllabus by the Court.)

Action by Jason S. Hoffman against Samuel J. Lowell. Rule to show cause why judgment for plaintiff should not be set aside. Judgment set aside.

Argued November term, 1895, before LIPPINCOTT and GARRISON, JJ.

Charles Meyer, Jr., for the rule. J. N. Atkinson, opposed.

GARRISON, J. November 9, 1893, the plaintiff to an action in contract against joint defendants suggested upon the record the death of one of the defendants, and obtained from the court leave to amend his declaration accordingly. He also obtained a rule against the surviving defendant to plead to the amended declaration within 30 days after the service of a copy of the said rule upon his attorney.

On April 19th judgment by default was entered, no plea having been filed. The allegation of the defendant is that the above mentioned rule was never served upon him or his attorney, and that they had no knowledge of its existence until after judgment had been entered against him. The testimony of the defendant and his attorney substantiates this allegation, and is not opposed by any proof taken under the rule.

The application for the rule to plead was a motion that, under the practice act, should have been made upon two days' notice to the defendant. Revision, p. 881, § 216; Insurance Co. v. Hodges, 24 N. J. Law, 673.

Notice not having been given, the burden is on the plaintiff to prove the service of the rule. Of this he offers no proof. If we look at the affidavit of service upon which the judgment was obtained, it disclosed a lack of accuracy that disentitles it to any conclusive

MANDAMUS-TITLE TO OFFICE-APPOINTMENT.

1. Mandamus is not a proper remedy by which a person appointed to a precinct board of registry, under section 3 of the election law of 1895 (P. L. 1895, p. 660), may lawfully call in question the title of an incumbent of the office, or oust a de facto officer therefrom.

2. Mandamus is the proper remedy by which a person nominated by the chairman of the county committee for appointment as member of a precinct board of registry may compel the board of election to appoint him to the office.

(Syllabus by the Court.)

Application for mandamus by Sterling H. Fort and eight others against John R. Howell and others, board of elections of Burlington county. Mandamus granted.

Argued November term, 1895, before LIPPINCOTT and GARRISON, JJ.

S. A. Atkinson and Mark R. Sooy, for relators. Joseph H. Gaskill and Eckard P. Budd, for defendants.

GARRISON, J. This is an application for a mandamus to be directed to the four persons who constitute the board of election for the county of Burlington, commanding them to appoint each of the nine relators to the board of registry of a specified precinct. The statutory authority upon which the relators based their right is the statute of 1895, section 3 (P. L. 1895, p. 660). The general scheme provided by this act is that in each county there shall be a board of election, to consist of four persons, two from each of the main political parties, to be selected by the chairman of its state committee, which board shall appoint, for each election precinct in the county, four persons, two from each of the main political parties, to be selected by the chairman of its county committee, which board shall be a board of registry, with certain duties specified by the statute.

It is to this precinct board that the relators demand appointment by the county board as of legal right. Two of the relators, Fort and Loveland, were not appointed by the board at all, while the other seven relators were appointed, and afterwards their places were filled by others. As to these

seven relators, the remedy by mandamus appears to be wholly inappropriate. Their appointment was unquestionably legal, and, unless they were lawfully deposed, the action of the county board, by which others were given their places, was illegal, and did not fill the offices de jure. The fact is admitted that some action was taken in the premises which has not been reversed or even directly challenged, and that, under the color of such action, the persons thereby designated to fill the offices in question entered without notice of any informality or infirmity of title, and have unmolestedly performed their duties as incumbents thereof. It also appears that the seven would-be relators have never tendered themselves at their respective polling precincts, or made any demands based upon their supposed right of entry. Under these circumstances, what can come of a mandamus to the election board to appoint these relators? They were appointed, and whatever rights thereby accrued to them they possess, unless they have been lawfully stripped of them. The case does not fall within the proviso of section 3.

The board has no power to adjudge, at the instance of these relators, that the incumbents, de facto officers of its own appointment, are usurpers; and if it had the right to give such a judgment, it has no power of ouster or of enforcing its orders. The title to the office is involved, and nothing short of the judgment of the supreme court that the incumbents' title is bad will put them out, or put the relators in.

The fact that the action by which the relators were removed from office was under an authority delegated by the board to its chairman and secretary, and hence may turn out to have been a misconception of the law, is still consistent with honesty of purpose, and imparts to the incumbents' title a color of right that will bar the allowance of a mandamus. Rex v. Bankes, 3 Burrows, 1452; Leeds v. Atlantic City, 52 N. J. Law, 332, 19 Atl. 780, and cases there cited.

As to these seven relators, our opinion is that the rule to show cause must be dismissed.

Fort and Loveland stand in a different position. They were regularly selected by their county chairman, and nominated to the county board, who simply refused to appoint them.

That the selection of the members of the precinct boards is primarily with the county chairman, and not with the board of election, is too clear for discussion. Even in the event of a failure on the part of the chairman to fill out his list, no power of appointment vests in the board until notice and opportunity has been afforded the chairman to make a selection, and then the legislative fiat is that "the county board shall appoint said nominees." In the case in hand, however, there was no deficiency in the chairman's list. The relators were nominated.

and their appointment refused, upon grounds that seemed sufficient to the board itself.

The question whether the board may refuse to ratify the selection of the county chairman has been drawn into the controversy, but it is not, in reality, here for decision, for the reason that, if such a power exists, it is a part of a procedure that was not adopted or pretended to be followed in the present instance. The statute provides that all nominees shall answer in writing, to the satisfaction of the board, all reasonable questions submitted to them by the board, as to the efficiency, eligibility, and character; and the argument is that, as the result of such an examination, the board may adjudge the facts against the eligibility of the nominee. Certain it is, however, that if the board possess such power at all, it may exercise it only in the appointed manner, and that, unless it does so, it cannot escape the duty of appointing the nominees of the chairman of the county committees. Now, in the case in hand, no questions were submitted to the nominees, and no answers required of them as to their character or fitness; in fine, no proceeding was taken that did or could in the slightest degree relieve the board of the performance of a clear statutory duty. As matters stood, there was but one legal course, viz. to appoint the chairman's nominees. Nothing that the board did altered that duty. It still remains as their legal duty. Upon this application they will be required to perform it. Let the writ of mandamus issue in the cases of Fort and Loveland, in accordance with the rule heretofore allowed.

WILSON v. MORGAN et al. (Supreme Court of New Jersey. Feb. 20, 1896.)

NEW TRIAL-INADEQUATE DAMAGES.

A new trial will be granted, in an action of tort, if the verdict be for an unreasonably small amount of damages, they being of definite ascertainment.

(Syllabus by the Court.)

Action by Samuel X. Wilson against William Morgan and others. Judgment for plaintiff. On rule to show cause why new trial should not be granted. Rule made absolute. Argued February term, 1896, before BEASLEY, C. J., and MAGIE, GARRISON, and DIXON, JJ.

Atkin & Holt, for plaintiff. Vroom & Walker, for defendants.

BEASLEY, C. J. This suit was for the caving in of the earth of a street in Trenton, whereby it fell on the land of the plaintiff, and thereby destoyed and injured certain machinery in his mill. The charge was that the accident occurred by reason of the defendants, as contractors with the city, piling up, in the construction of a sewer, large quantities of

earth along the line of the plaintiff's land, whereby the wall supporting the earth of the street gave way, the plaintiff's lot being lower than the street. The jury gave the plaintiff a verdict for about one-third of the damage proved by him, and he now moves to set aside such finding on the ground of inadequacy. Upon the plainest legal rules, this verdict cannot be supported. It is incontestable, in view of the proofs in the case, that the plaintiff has not been compensated for the damages occasioned by the giving way of the wall in question. The case seems to have been imperfectly tried, but, assuming that the plaintiff had a right to recover at all,-and which is the assumption that must be made for present purposes,-he has not recovered one-half of what he is entitled to. The proof shows, most incontestably, that the moneys expended in the reparation of the injured machinery amounted to much more than the sum embraced in the verdict. The items of such an expenditure, when they have been proved, leave to the jury the single function of summation. They can neither add nor subtract anything. The legal rule with respect to damages in actions of tort is far too broadly stated in the brief of the counsel of the defendants. It is true that in a certain class of such cases the court will not interfere, except when error is flagrant, with the estimate of damages made by a jury. But there are instances where the loss is indeterminate, and the only standard of measurement is human judgment, as in actions of defamation, or the infliction of bodily pain. And even in such cases it is everyday practice for the courts to vacate verdicts that are grossly excessive. But that this rule thus invoked has no pertinence on the present occasion is most conspicuous, for the mistake in the case in hand is both definite and indisputable, and the record shows that the jury erred in simple additions. The rule is made absolute.

GENERAL STATUTES-REPEAL OF CHARTER Powers. "An act providing for the licensing of dogs" (P. L. 1893, p. 328) supersedes any power of exacting license fees for dogs that the city of Elizabeth possessed under its charter. (Syllabus by the Court.)

Certiorari to court of common pleas, Union county; McCormack, Hyer, and Crane, Judges. Action by the state, at the prosecution of the treasurer of the city of Elizabeth, against James Durning. Judgment affirmed.

Argued November term, 1895, before LIPPINCOTT and GARRISON, JJ.

J. C. Connolly, for prosecutor. P. H. Gilhooly, for defendant.

GARRISON, J. This certiorari brings up the judgment of the court of common pleas of Union county reversing that of the police justice, and dismissing the complaint of the prosecutor. The complaint was for failure to comply with an ordinance of the city of Elizabeth with respect to the registration of dogs, passed May 2, 1892.

"An act providing for the licensing of dogs" (P. L. 1893, p. 328) supersedes any power of exacting license fees for dogs that the city of Elizabeth possesses under its charter. Such was the decision of this court in the case of Mulcahy v. Mayor, etc., of City of Newark (N. J. Sup.) 31 Atl. 226. The ordinance under which conviction was had in the present case was in its essential features repugnant to the repealing statute.

The judgment of the pleas is affirmed, with costs.

been proceeded with in the usual way,--that is, that it should have been put on the trial list, and noticed for trial on the first day of a term. Upon consideration, we think this position not well taken. The statute marks this class of cases, founded on appeals from the awards of commissioners, exceptional, so far as the methods of bringing them to trial are concerned. It is required to be tried by a struck jury, and the plain legislative purpose is that the issue shall be disposed of expeditiously, and it but effectuates such design to infer that the methods devised with that view inhere in the proceeding to the end. We think, therefore, that the judge was possessed of the power exercised by him, and that the case has been legally brought to trial. With regard to the other exceptions, which are tediously numerous, we think it sufficient to say that we have found none of them of sufficient force to illegalize the transaction. Let the judgment be affirmed.

1. When a condemnation case has been appealed, and there has been a trial and judgment thereon, which has been reversed on error, and the case remitted, it is lawful for the justice holding the circuit to strike a jury, and set the case for trial on a day fixed by him.

2. In such cases the cause need not be put on the trial list, and noticed for trial in the ordinary way.

(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice Lippincott.

Action by the Pennsylvania Railroad Company against the National Docks Company. From the judgment, plaintiff brings error. Affirmed.

Argued November term, 1895, before BEASLEY, C. J., and MAGIE and LUDLOW, JJ. Vredenburgh & Lindabury, for plaintiff in error. Dickinson, Thompson & McMaster and Gilbert Collins, for defendant in error.

BEASLEY, C. J. This was a condemnation proceeding by virtue of Act 1893, p. 161. That statute provides for an issue to be formed on an appeal to the circuit, and empowers the justice of the supreme court to strike a jury, and fix a day for the trial of the cause. This course was taken in this case, and a trial took place; and the judg ment that was rendered on the verdict having, on error, been set aside, a venire de novo was awarded. In this situation the justice of the supreme court having cognizance of the controversy, on application, struck a jury, and set down the cause for trial on a particular day designated by him. This disposition is now, as it was at the time, excepted to; the contention being that the cause, when returned from the superior court, should have v.34A.no.9--48

COLLINS et al. v. KELLER. (Supreme Court of New Jersey. Feb. 20, 1896.)

PLEAS JURISDICTION-WAIVER-TITLE TO LAND. 1. The pleas has no jurisdiction over a suit commenced in the circuit unless a rule be made by the justice of the supreme court, and entered according to the statute.

2. Parties cannot, by waiver, cure the want of jurisdiction over the cause.

3. The pleas cannot try a question of title to lands. (Syllabus by the Court.)

Error to court of common pleas, Union county; McCormack, Hyer, and Crane, Judges.

Action by Lewis Keller against John Collins and others. From the judgment, defendants bring error. Reversed.

Argued February term, 1896, before BEASLEY, C. J., and MAGIE, GARRISON, and DIXON, JJ.

Frank Bradner, for plaintiffs in error. Frederick C. Marsh, for defendant in error.

BEASLEY, C. J. There are two errors exhibited by the record in this case, either of which necessarily invalidates the judgment.

In the first place, the sult was commenced in the Union circuit, and the record before us shows that the trial took place in the Union pleas. The record does not state how it was transmitted from the one court to the other. This can be effected only by an order of the justice of the supreme court who is presiding in the circuit, and such order is essential to the jurisdiction of the inferior court.

It is suggested that, as the parties tried their case without objection before the pleas, they now must be deemed to have waived their right to object to the jurisdictional power of the court. But it is evident that the question is not one relating to the pretermission of a personal right over which the litigants