acted with care, and not hastily, for it decided only after a conference between its own physician, a reputable physician of Englewood called in by the plaintiff, and a specialist from the city of New York. The doctors disagreed, at least in a measure; and the board of health was called upon to decide. They may have decided erroneously, but the matter was colorably within their jurisdiction.

The only difficulty which arises is that caused by the first opinion of this court in American Print Works Company v. Lawrence. We there held that the mayor and aldermen of New York could not be exempted from civil liability where their act resulted in what this court held to be a taking of private property for public use contrary to our Constitution. In view of the subsequent opinion of the court in that case, and the eminence of the judges of the Supreme Court, whose opinion was reversed in the first case, we think that although we are bound by the actual decision of this court reported in 21 N. J. Law, 248, we ought not to extend it further than the exact point decided requires. It was limited to a case where private property was taken for public use; and it was held that destruction to prevent the spread of a conflagration was such a taking. In the present case there was no taking of private property for public use.

The acts of the defendant amounted to a mere trespass. . It is urged, however, that the same principle ought to be applied because of the fourteenth amendment to the federal Constitution, which prohibits a state from depriving a citizen of liberty without due process of law. To this we think there are two answers: In fact, the . defendant was not deprived of his liberty; and the conduct of the defendants constituted due process of law, as that term is used in cases of this character. He was not deprived of his liberty, because the option was given to him to quarantine his daughter in a room of the house, if he so chose. He elected the alternative of having the whole house quarantined, but that was his voluntary choice; and there seems to have been no show of force to prevent his going and coming as he chose. Whatever may be argued as to the imprisonment of his daughter, that is not now in question. His personal liberty does not seem to have been restrained. We were careful to say in Hebrew v. Pulis, 73 N. J. Law, 621, 64 Atl. 121, 7 L. R. A. (N. S.) 580, 118 Am. St. Rep. 716, that although constraint might be caused by threats, as well as by actual force, the words or conduct must be such as to induce a reasonable apprehension of force, and the means of coercion must be at hand. The latter element is lacking in the present case. The real injury of which the plaintiff complains is the destruction of his business by posting

scarlet fever in the house. This, if false, may have been a libel, but it was not a deprivation of liberty.

Again, in cases affecting the public health, due process of law does not always require notice and a hearing. People v. Board of Health, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522. Where the board of health is required to act upon an emergency, due process of law requires only that they should be liable to an action in case they act wrongfully; but the action to which they are liable is only such action as the law gives. In this case the common law, as we have already shown, gave no right of action if the matter upon which the board decided was colorably within its jurisdiction. The object of the fourteenth amendment was not to give parties remedies which did not exist at the common law, but to protect them against hostile action by the state depriving them of the existing remedies. U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588.

There is nothing in Hutton v. Camden, 39 N. J. Law, 122, 23 Am. Rep. 203, inconsistent with our view. The alleged nuisance in that case consisted in the fact that the defendants' lot lay below the grade of the street, so that water collected there, and the order of the board of health was to fill the lot to grade. Obviously, this presented no such emergency as required immediate action. There was opportunity for notice and a hearing. That case was a suit by the city to recover the cost of filling the lot to grade; and a distinction is to be made between the adjudication of the board of health as a defense to civil liability on their part, and as the basis of an action against the party alleged to maintain a nuisance. If the action had been by Hutton against the board of health, or their employés, for trespass in filling the lot up to grade, the case would have been similar to the present. This distinction is carefully pointed out by the Supreme Court of Massachusetts in City of Salem v. Eastern Railroad Company, 98 Mass. 431, at page 449, 96 Am. Dec. 650, where the court said: "When there appears to have been no notice to the parties to be affected, and no opportunity afforded them to be heard in defense of their rights, whatever operation the adjudication may have upon the rest, and however conclusive it may be held for the protection of those who act, or derive rights, under it, the adjudication itself can have no valid operation against parties who may be named in the proceedings. If it proceeds to declare any obligation, or impose any liability, upon such parties, they may, in any subsequent suit to enforce it, deny the validity of the judgment, and controvert the facts upon which it was based."

Hutton v. Camden was a case where it

the board of health that a nuisance existed final and conclusive, not only for the protection of the board against an action of trespass, but as basis of a legal liability of the landowner. In the present case, the Legislature has itself undertaken in effect to make a nuisance of what the board of health shall upon reasonable and probable cause determine to be a cause of disease. It is unnecessary to cite the numerous cases decided by the United States Supreme Court justifying such a legislative exercise of the police power. In Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, a statute declaring all places in which intoxicating liquors are manufactured, sold, bartered, or given away to be common nuisances was sustained, although the effect was to destroy the value of property. In Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780, the eight-hour law of Utah was sustained, although it interfered with the freedom of contract. In Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, the compulsory vaccination act of Massachusetts was sustained, although it interfered with a man's personal liberty. These cases are but illustrations of the extent to which the highest tribunal has gone in vindication of the principle that the individual must yield somewhat of his personal rights to society in return for the benefits of society which he enjoys. We think it not unreasonable to require him in a case like the present to depend for redress upon the sense of justice of the public rather than upon a right of action against public officers who have acted as they thought for the public weal in a matter of public duty.

The common-law rights of the plaintiff are protected by the Constitution, but the Legis- | lature has by the health act given the plaintiff a right of action against the board as such where he can show that the cause of disease did not exist, that it was not hazardous and prejudicial to the public health, and that the board acted without reasonable and probable cause to believe that it was in fact prejudicial and hazardous to the public health. Gen. St. 1895, p. 1638, § 15. Although the language of the section is in form that no suit shall be maintained against the board of health unless these facts are established, the necessary implication is that, if the facts are established, a suit may be maintained.

In giving this action, the Legislature had the right to determine what facts should be necessary to sustain it. They imposed no novel or unreasonable condition. The provision requiring that the plaintiff should show that the board of health acted without reasonable or probable cause is in line with the existing common law in cases of this character. By common law an officer was justified, in certain cases, in making an arrest, where he had reasonable and probable

tained; and, in actions for libel, a communication, fairly made by a person in the discharge of some public or private duty, whether legal or moral, is privileged, in the absence of proof of malice. The principle underlying these cases is applicable to the present case. By the act of March 24, 1903 (P. L. p. 96), it is made a crime for any person, having reason to believe that he is affected with scarlet fever, to appear in any public place, and for any person knowingly to subject another, without the latter's knowledge, to exposure to the infection of any such disease. We do not mean to say that this statute reaches the present case; but it can hardly be libelous for the board of health, in good faith, to give notice of the existence of scarlet fever, when it is a crime for one who has reason to believe that he is affected with the disease to appear in public; and it must be within the power of the Legislature to give the right of restraint, amounting to imprisonment, to public officers who have reasonable and probable cause to believe that the crime denounced by the act of 1903 has been, or is likely to be committed. It is, at any rate, enough for the present purpose that in providing for this action the Legislature has made the want of reasonable and probable cause essential to the maintenance of the action.

The question remains whether a case is made out under this statute against any of the defendants. As to the board of health, it is clear that they acted upon the advice of their own physician, supported by the report made to them of the opinion of four other local physicians. We think that they were not bound to accept the opinion of the physician called by the plaintiff, and the specialist called from New York, but were justified in relying upon the advice of their own officer.

The case as to the physician himself is somewhat different. Prior to establishing the quarantine he had, at the conference with the other physicians, expressed himself as satisfied with their diagnosis, and it may be that this evidence would be sufficient to carry the case to a jury as to Dr. Bradner, if the question were properly a jury question. At the time this statute was adopted, the words "reasonable and probable cause" were a familiar expression in the law, arising most frequently in actions for malicious prosecution; and, however anomalous the rule may be, it was well established that the question of existence of reasonable and probable cause, in an action for malicious prosecution, was a question for the court, where, as in this case, the facts are undisputed. McFadden v. Lane, 71 N. J. Law, 624, 60 Atl. 365, citing with approval Bell v. Atlantic City Railroad Company, 58 N. J. Law, 227, 33 Atl. 211; Magowan v. Rickey, 64 N. J. Law, 402, 45 Atl. 804. In our judgment the case failed to establish a want of reasonable and probable cause as against Dr. Bradner. The evi

Currie said as to the antecedent family history of the patient, would not change this result, and its exclusion was not injurious error. Dr. Bradner seems to have been a reputable physician, acting according to his best light, in a case which four of his fellow physicians, to whom the symptoms were described, pronounced to be scarlet fever. Whether it was so or not, he had reasonable and probable cause to think it so.

In an action for false imprisonment, where the arrest is justified on the ground of reasonable and probable cause, the question is for the court, where the facts are not disputed. Lister v. Perryman, L. R. 4 H. L. 521, 39 L. J. Exch. 177.

Middleton, the inspector, seems to have acted only in carrying out the order of the board whose servant he was, and comes within the words of the statute exempting officers or agents of the board from suit.

For the reasons stated, we think the trial judge was right in directing a nonsuit, and the judgment should be affirmed, with costs.

(71 N. J. E. 66)

BRANT v. BRANT.

(Court of Chancery of New Jersey. May 11, 1906.)

1. DIVORCE (§ 90*)-AFFIDAVIT OF NONCOLLU

SION.

The affidavit of noncollusion required by section 5 of the divorce act (P. L. 1902, p. 504), must be annexed to a petition which seeks divorce from bed and board, under the provisions of section 3 (page 503) of that act.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 90.*]

2. DIVORCE (§ 79*)—Order of PUBLICATION— NOTICE.

The notice of the order of publication to be served on an absent defendant is required to state the object of the suit; and, if the notice undertakes unnecessarily to assert the grounds upon which relief is sought, it must state grounds which give jurisdiction to the court to decree relief.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 79.*]

(Syllabus by the Court.)

Bill by Estelle A. Brant against Arthur Brant. Order of reference denied.

George H. Bruce, for petitioner.

MAGIE, C. There are two questions raised upon the petition and its accompanying affidavit, and one upon the proofs of service of a notice under an order for publication.

The first question is whether the affidavit of noncollusion, required by section 5 of the divorce act (P. L. 1902, p. 504), must be annexed to a petition which seeks divorce from bed and board under the provisions of section 3 of that act. Under the heading "Causes for Divorce," the act includes section 3, and thereby enacts that divorce from bed and

board, forever or for a limited time, may be decreed for "extreme cruelty." When by section 5 the Legislature declared that the court should not exercise the jurisdiction, previously granted, in any cause for divorce unless an oath or affirmation of noncollusion is annexed to the bill or petition, the provision obviously included the case of a divorce from bed and board for extreme cruelty, for the act before provided that for extreme cruelty there might be such a divorce. It is true that complainant or petitioner is thereby required to swear or af firm that the complaint is not made by collusion for the purpose of dissolving the marriage, and a divorce from bed and board, it is well settled, does not dissolve the marriage. While the relief for the cause of extreme cruelty is a perpetual or limited separation, and no more, yet our legislation has characterized the judicial act which affords relief as a divorce. It is so designated in the divorce act, passed February 16, 1820 (Laws 1820, p. 43; Rev. Laws 1821, p. 667); in the revised act of April 15, 1846 (Rev. Laws 1847, p. 922); in the revised act of March 27, 1874 (Rev. St. 1874, p. 254)—and each of said acts requires an oath of no collusion for the purpose of dissolving the marriage. From this long course of legislation providing for divorce from bed and board for extreme cruelty, and yet requiring an affidavit of no collusion for the purpose of dissolving marriage before jurisdiction can be exercised for that cause, I conclude that the language of the required affidavit, in its application to a bill or petition for a divorce from bed and board, must have been intended, and must be construed, as referring to a dissolution of the marriage relation pro tanto, by a separation decreed for a time limited or for life. The affidavit required by section 5 must be annexed to any bill or petition which seeks divorce for extreme cruelty, and no jurisdiction will be acquired over the cause without it.

The next question is whether the affidavit attached to this petition is such as is required by section 5. Such an affidavit may probably be sufficient if it expresses the matter so required, although not expressed in the precise language of that section. The petitioner therein swears that the "petition" is not made by any collusion between her and the defendant "for the purpose of procuring a separation."

The affiant departs from the requirements of section 5 in two particulars: First, she fails to aver that her complaint is not made by collusion, and substitutes for it an averment that the petition is not made by collusion; second, she substitutes for the statutory phrase "dissolving the marriage" the words "procuring a separation." It is obvious that the legislative purpose in requir

ing an affidavit annexed to the bill or petition as a sine qua non of jurisdiction was to exact from the suitor seeking divorce, at the very outset of the cause, a solemn declaration that the relief was not sought by collusion. What is required to be sworn to is plainly set out in the act. A departure from its requirements induces suspicion. One not in conformity to the language of the act ought not to be passed, unless it contains substantial equivalents thereto. The affidavit attached to this petition induces suspicion. The act requires it to assert that the complaint is not made by collusion. The complaint in such cases is the statement of the causes on which divorce is sought. That complaint is contained in the bill or petition. An affidavit made in the language of the act plainly avers that the assertion of those causes for divorce is not collusive. When the affiant in this affidavit substituted "petition" for "complaint," did she make oath that her complaint was not made by collusion? As the petition contains the complaint and asserts the causes for which relief is sought, as well as asks relief, I have, after some hesitation, concluded that the affidavit, in this respect, is a substantial compliance with the requirement of the act. But I am inclined to think that the language of the act does not find a substantial equivalent in the averment of noncollusion for the purpose of procuring a separation. Petitioner seeks a divorce, and that kind of a divorce which produces a limited dissolution of the marriage relation. Procuring a separation does not seem to me to express that idea with sufficient accuracy. In this respect the affidavit seems to be defective.

Another question arises with respect to the effort to bring the defendant into court so as to justify further proceeding. Jurisdiction to proceed against this absent defendant depends upon the service of a notice to him, and the question is whether it is such as is required by rule 58 and the statute. Service of the order of publication or of a copy of the petition cannot be of any avail to give jurisdiction to act upon the defendant. In this case the notice of the order of publication which was served on the defendant declares that the action is brought for a separation (not divorce) on the ground of cruel and inhuman treatment of the petitioner by defendant, and not for extreme cruelty, which the act declares to be cause for divorce. The notice is required to state the object of the suit (P. L. 1903, p. 122; Rules 58, 61), and that object is divorce. The form or precedent given by Colonel Dickinson indicates that the notice may specify what kind of divorce is sought. Dick. Ch. Prec. 31. If the notice undertakes, unnecessarily, to assert the grounds upon which relief is sought, it must state grounds which, by the statute, give jurisdiction to the court to decree re

(Court of Errors and Appeals of New Jersey.
Nov. 16, 1908.)
CRIMINAL LAW (§ 1110*)—APPEAL-AMEND-
MENT OF RECORD-REVIEW.

Defendant having been convicted in the quarter sessions, after trial by jury, and having reviewed the conviction in the Supreme Court on ordinary bills of exceptions and assignments of error, without availing himself of the more extensive review permitted by section 136 of the criminal procedure act (P. L. 1898, p. 915), and having thereupon sued out a writ of error from this court to review the judgment of the Supreme Court, and having applied here upon the argument for leave to amend the record or to have it remitted to the court below for amendment in such manner as to enable him to have the benefit of the review permitted by section 136, held, that the application comes too late.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1110.*]

(Syllabus by the Court.)

Error to Supreme Court.

T. W. Brown, Jr., was convicted of misdemeanor, and brings error. Affirmed.

Matthew Jefferson and John W. Wescott, for plaintiff in error. Lewis Starr and Harry S. Douglass, for the State.

PITNEY, Ch. The plaintiff in error was indicted by the grand jury of Cape May county upon eight indictments. Two of these were for assault and battery upon two of his children, and the remaining six were for violating, with respect to each of his six children, the act of March 24, 1903 (P. L. p. 92, c. 59), which declares that whoever, having the care, custody, or control of any child, shall willfully cause or permit the life of such child to be endangered or its health to be injured, or who shall willfully cause or permit such child to be placed in such situation that its life may be endangered or its health injured, etc., shall be guilty of a misdemeanor. By consent the eight indictments were tried together, with the result that the accused was found guilty upon the six indictments under the act of 1903, and acquitted upon the two indictments for assault and battery. Sentence having been imposed upon five of the convictions, and suspended upon the sixth, the five convictions were brought under review before the Supreme

Court upon a single writ of error. The propriety of this omnibus review is not now under consideration.

The case came up on ordinary bills of exceptions and assignments of error, the defendant not having seen fit to avail himself of the more extensive review permitted by section 136 of the criminal procedure act (P. L. 1898, p. 915). In the Supreme Court there was a judgment of affirmance, and that judgment is brought under review by the present writ of error. The burden of the argument here is that the verdict of the jury was contrary to the clear weight of the evidence. It is hardly necessary to say that this court cannot properly reverse upon that ground.

Upon the few questions of law that are open to discussion, we agree in the main with the views expressed in the per curiam opinion of the Supreme Court. It is to be noted, however, that the case does not require a decision of the question whether the act of 1903, properly construed, makes it a misdemeanor to willfully cause a child to be placed in such a situation that its life may be, but

is not, endangered, or its health may be, but is not, injured, for the trial judge in his instructions to the jury placed the case before them upon a construction of the act that required actual danger to the life or injury to the health of the child as an essential element of the offense charged. Some of the questions of law that were raised in argument here were not made the subjectmatter of any bill of exceptions in the trial court. Upon this circumstance being called to the attention of counsel for the plaintiff in error, they asked that the record might be amended, or that it might be remitted to the court below for amendment, in such manner as to enable plaintiff in error to have the benefit of the review permitted by sec tion 136 of the criminal procedure act. What action the Supreme Court might have taken if a similar application had been presented to it while the case was there pending is not for us to say. We think the application now comes too late.

The judgment under review should be af firmed.