COLLINS, J. By section 22 of the act of March 5, 1884, it was declared that the act should not apply to any municipality of this state not named as a town in its act of incorporation. By a supplement passed March 9, 1885, it was sought to be enacted that the provisions of the act should be extended, and applied to all incorporated boroughs, campmeeting associations, and other municipal commissions by whatever name designated in their act of incorporation. 3 Gen. St. p. 3564, pl. 307. It was by virtue of this supplement alone that the provisions of the act could have been adopted in the borough of Decker

A fundamental question, therefore, is whether the object of the later statute was expressed in its title, as required by article 4, § 7, par. 4, of the constitution. The title limits the enactment. Hendrickson v. Fries, 45 N. J. Law, 555, 563; Dobbins v. Northampton, Tp., 50 N. J. Law, 496, 499, 14 Atl. 587; Commission v. Dobbins, 61 N. J. Law, 659, 661, 40 Atl. 599. Did the title "Incorporated Towns," as used in this supplement, extend to boroughs? We think not. The word "towns" in a statute is inexplicit in meaning, and must be interpreted by the context, or, that failing, by the necessity and occasion of the law. Banta v. Richards, 42 N. J. Law, 497. Tried by this rule, the word has been held to include boroughs. Stout v. Borough of Glen Ridge, 59 N. J. Law, 201, 35 Atl. 913. But, while this is so, it would seem clear that, when the meaning is once ascertained, it must, in the same connection, remain constant. The word cannot mean one thing in the title of an original act and another thing in the title of a supplement to that act. In this case the legislature itself, in the body of the act, interpreted the title. One purpose of the constitutional requirement of the expression in a title of the object of a statute is to insure a conspicuous declaration of the subject of legislation; a notice so that the public, or such part of it as may be interested, may receive a reasonable intimation of the matters

under legislative consideration. Union Tp. v. Rader, 39 N. J. Law, 509, 512. Surely, one interested in legislation for boroughs need not anticipate any in the guise of a supplement to a statute expressly excluding them.

There is nothing inconsistent with these views in the decisions of this court in Rahway Sav. Inst. v. Rahway, 53 N. J. Law, 48, and Smith v. Howell, 60 N. J. Law, 384, 38 Atl. 180. In the first case it was decided that a provision making dependent on consent of voters "An act to authorize the construction of works for supplying the city of Rahway and places adjacent with pure and wholesome water" might be repealed by a supplement to the act, and in the second it was decided that under a supplement to "An act authorizing the division of townships into street lighting districts," etc., a limitation of the original enactment to certain classes of townships might be destroyed. In neither case was there ambiguity in the original title that 44 A.-55

the enactment resolved. The legislature could properly, in a supplement, complete the object expressed, but at first left imperfectly attained.

We would not be justified in compelling recognition of an unconstitutional statute, but there is another reason why the relator cannot prevail. By the borough act of 1897 all boroughs are brought under uniform government. This first attempt of the legislature to perform its constitutional duty with regard to municipalities should be liberally construed. By section 69 it is enacted that "it shall be lawful for the council to provide for, cause to be constructed, or purchase, and to operate and maintain waterworks, and a plant for the supply of water for domestic and public use," and full and minute powers on the subject are in that and other sections conferred. It is argued that this grant of power extends only to a future water supply, and leaves existing systems undisturbed; but this is clearly not so. The power of operation extends to existing works. Section 97, indeed, provides that public work shall be completed under pre-existing laws, but the Deckertown waterworks were long since completed, and, by the express terms of the new statute, passed to the council's control. By the statute under which they were constructed (section 4) the legal title to the property vested in the borough, and not in the commissioners as a quasi corporation. The commissioners were but borough officers, and the utmost that could be claimed for them is the right, under section 97 of the new borough act, to serve out their terms. It should be noted that the legislature has carefully guarded all private rights in the premises. By section 96 of the new act it has validated all contracts and obligations made or incurred for any borough under any act of the legislature, whether or not it lawfully conferred power to make or incur the

(Supreme Court of New Jersey. Nov. 13, 1899.) EXECUTION-CLAIMS OF THIRD PERSONWAIVER.

If a person who serves upon a constable a claim of property, under the fifty-ninth section of the justice's court act, does not, within 10 days after the service, apply to a justice for the trial of his right according to that section, or institute against the officer an action of tort or replevin for the property, and thereupon the constable proceeds to sell the property in reliance on the implied abandonment of the claim, the claimant is estopped from holding the constable responsible in tort.

(Syllabus by the Court.)

Certiorari to court of common pleas, Middlesex county.

Action by Joseph A. Van Marter against Fielding C. Lucas. Judgment for plaintiff,

and the state, at prosecution of defendant, brings certiorari. Reversed.

Argued June term, 1899, before COLLINS and DIXON, JJ.

Freeman Woodbridge, for prosecutor. A. H. & Theo. Strong, for defendant.

DIXON, J. The defendant below, a constable of Middlesex county, had possession of, and was about to sell, two cows, by virtue of an execution, issued out of a court for trial of small causes, against Joseph M. Duclos. Thereupon, on March 2, 1898, the plaintiff below served upon him a written notice that he claimed the cows. On receiving this notice the constable delayed the sale for the space of 10 days, but the plaintiff not having within that time applied to a justice of the peace for the trial of his right, or taken any other step in the prosecution of his claim, the constable on March 19, 1898, sold the cows under the execution. On April 6, 1898, the plaintiff sued the constable for the alleged tort, and, at the trial of the case on appeal in the Middlesex common pleas, recovered a judgment for the value of the cows. The question now presented is whether that recovery was lawful.

The notice served by the plaintiff was in exact accordance with the fifty-ninth section of the justice's court act (2 Gen. St. p. 1864), and appears to have been intended by the plaintiff, as it was understood by the constable, to be a claim under that section. It must be deemed such. That section enacts that on such a claim the constable shall delay sale for 10 days, in order that within said term the claimant may apply to a justice of the peace to have his right tried, and that, if the claimant shall not within the 10 days so apply, "the said claim shall be considered abandoned and the constable shall proceed as if it had not been made." In view of this provision, we think the plaintiff is not at liberty to treat the act of the officer as a tort for which he can be made answerable. Under the statute, the matter stands as if the plaintiff had served his claim on the constable, with a request that he would delay 10 days, so that the claim might be legally tried, and had thereby obtained such delay, and at the end of the 10 days had notified the officer that the claim was abandoned and he might proceed with the execution of his writ. If these facts had actually occurred, the plaintiff would certainly have been estopped from holding the constable responsible for a tort; and the statute, in effect, declares that what the plaintiff did and omitted to do shall be equivalent to those facts. We do not say that every claim of property served on, a constable who is executing a writ must be considered a claim under the statute, for the terms of the claim, or some other circumstance, may negative such an inference. Nor do we now hold that the service of a claim under the statute necessarily confines the claimant to the procedure which the statute

authorizes, for, perhaps, if within the 10 days he should institute against the officer an action of tort or replevin, the main purpose of the law would be effectuated. But we do hold that if, within 10 days after service of the statutory claim, the claimant takes no action in vindication of his right, and the officer proceeds to sell in reliance on the implied abandonment of the claim, he is exonerated from responsibility in tort to the claimant. On the agreed statement of facts filed in the common pleas, and sent up to this court, the judgment for the plaintiff should be reversed, and a judgment entered for the defendant, with Smith v. Ocean Castle, 59 N. J. Law, 198, 35 Atl. 917.

FAIR et al. v. FIRST M. E. CHURCH OF BLOOMINGDALE et al.

(Court of Chancery of New Jersey. Oct. 4, 1899.)

RELIGIOUS SOCIETIES-CHANGE OF LOCATION OF CHURCH.

Certain property was conveyed to individual trustees for the benefit of the Methodist Episcopal Church in the United States of America, to be used as a place of worship, under the "discipline" and regulations of that organization. which was accepted by such organization, and a church made of it. Later, the church becoming too small and being inconveniently located, a lot was accepted, pursuant to a majority vote of the congregation, and a conveyance of the old property made to one of the plaintiffs, who gave back a mortgage on same, with the proceeds of which it was proposed to pay the expenses of the new church; all of which proceedings were within the "discipline" of the main organization. The majority was recognized by the proper dignitaries of the main organization, and placed within a conference, and later its trustees incorporated. The defendant represents the minority that voted against the change of location, and which had elected trustees, and claimed to be the original society, but were treated by the church dignitaries as seceders. It also incorporated, but after the majority association had done so. Held, that the trustees of the majority association were the legal trustees of the original society, and at the time of the conveyance held the equitable title to the original church, and were entitled to a conveyance thereof; hence their grantee is entitled to a perpetual injunction against interference with his possession by such minority association, and to a conveyance of the property.

Bill for injunction by Robert Fair and the Trustees of the Bloomingdale Methodist Episcopal Church against the First Methodist Episcopal Church of Bloomingdale and others. Granted.

George Biller, for complainants. Shaw, for defendants.

Ralph

PITNEY, V. C. (orally). The question in this cause, it seems to me, is fully stated by me in my opinion when the case was previously before the court (42 Atl. 166), namely, whether the complainant corporation, the Trustees of the Bloomingdale Methodist Episcopal Church, is the trustee of the true society or association,-the same society and association that originally worshipped in this church the title to which is here in contro

versy. If so, then the complainant corporation is entitled to its possession, and it has properly brought its suit for the benefit of its cestuis que trustent.

The trustees compose the corporation that holds the legal title for the benefit of the association. I call it the association; it is a collection of individuals who worship in a particular place, in a particular manner. Now, it is perfectly evident that the intention of Mr. Martin John Ryerson was to convey that property in Bloomingdale to trustees,-individual trustees, unincorporated persons,-for the benefit of the Methodist Episcopal Church in the United States of America, to be used as a place of worship, under the "discipline" and regulations then in force, or which might thereafter come in force, of that great organization. That organization accepted it, and made a church of it; appointed a clergyman to preach there; put it within the Newark Conference,-I believe I am right about that; and it was under the care and controlecclesiastical control of the Newark Conference until the year 1897,-all without any formal, legal incorporation. At that time it was under the pastorate, I believe, of the Reverend Mr. Kieffer, and the church edifice had become too small, and it was inconveniently located. The greater part of the congregation came from across the river, in Morris county, from the town called Butler, then growing up and getting to be a large manufacturing town. A gentleman by the name of Butler, who was one of the original proprietors of the town of Butler, proposed to give the association a lot in Butler on which to erect a church. And Mr. Kieffer, the pastor, conferred with the members of the congregation, and found that a large majority of the congregation, as he says, was in favor of moving over there; and they took the title to a tract of land in Butler, in the name of individual trustees, without any incorporation, to be used for the building of a church, and a parsonage I believe. Is that right?

Counsel: Yes, sir.

The Court: Then, in order to procure means to build their church and parsonage, they proposed to sell the old property to Mr. Fair. Now, whether they succeeded in conveying even the equitable title, it is not necessary for me here to determine. They did call a meeting, and took a vote of the congregation upon that matter; and I do not find it necessary to determine whether that meeting was held strictly in accordance with the canons of the church, and whether everybody was permitted to vote that was entitled to vote. I have no doubt, however, that it was properly called and conducted. The pastor stated that only three persons, I think, offering themselves to vote were refused. The majority of the meeting, at least two-thirds,-I think a little more than that,-was in favor of selling the church property and moving to Butler. The point of the affair, in this connection, is that it was an expression of a

desire on the part of the majority of that congregation to move over to Butler. An attempt was made to convey the old property to Mr. Fair by their trustees. I shall assume that that attempt failed. But Mr. Fair was put in possession, and executed a mortgage back to the church; and part of the resolution of that meeting, or of the trustees afterwards, was that that mortgage should be held by the church for the purpose of paying the expenses of their new work at Butler. This shows there is not the least glimpse of an intention here to divert the proceeds of the sale from the purpose named in the original donation of it to the purposes of the Methodist Episcopal Church. Those facts, as I now recollect, did not all appear distinctly in the affidavits before me on the original application for an injunction, but I had to infer that that was the intention of the church; but it now appears that it was the intention. It further appears that the discipline of the church then in force provided for such a sale and alienation of church property, so that the alienation, if effectual, was not a breach of the original trust upon which the property was conveyed, because that trust declared that the property should be held according to the discipline of the church then or thereafter in force. Mr. Fair was put in possession by the dignitaries-the governing power of the. church, before it was incorporated. Subsequently there was an incorporation, of which I shall speak directly, and he has continued there by the consent of everybody in authority in that association.

Now, it is alleged by complainant that the association went over to Butler, and located itself there, and the question is whether it did or not. Now, I think that the proof is that a large majority did go there, and the proof is that the organization that located itself in Butler was recognized by the Newark Conference the bishop and the governing poweras the true Bloomingdale Church, as the true successor of the old church. I find the proof is quite clear on that subject, and that those who stayed behind, and attempted to continue the organization, and to be the true Bloomingdale Church, were refused recognition by the church dignitaries. church dignitaries. They attempted to obtain it. They appointed committees to wait on the higher dignitaries, and obtain recognition, but they got no comfort. They got no recognition whatever. They were treated as seceders.

Now, in the absence of clear proof that the church dignitaries were wrong in that, and did not proceed according to the discipline, I think that this court is bound by the action of those dignitaries; because we must bear in mind at all times what the original trust was, and the original trust was for the Methodist Episcopal Church of the United States, subject to the discipline and government of the church for the time being.

Now, can I recognize, even though I thought- Suppose I thought, as I do not, that the Newark Conference made a mistake;

the carelessness, negligence, unskillfulness, and default of said defendant and their said servants, against the locomotive engine of the said Charles L. Baker, whereby the said locomotive engine of the said Charles L. Baker was then and there overturned, and said Charles L. Baker thereby then and there killed. By reason of the premises a right of action did then and there accrue to the personal representative of the said Charles L. Baker for the exclusive benefit of his widow and next of kin against the said defendant, and plaintiff avers that after the death of the said Charles L. Baker the plaintiff, as his widow, was then and there entitled by law to letters of administration on his estate, and to bring said action against said defendant company within one year from the death of said Charles L. Baker, and as such widow was entitled to the amount, or a part of it, recovered in such action. And thereupon the said defendant heretofore, to wit, on the 1st day of May in the year last aforesaid, at the township of Mansfield, in the county aforesaid, in consideration that the said plaintiff would not bring, as administratrix of said Charles L. Baker, suit against the said defendant for the death of the said Charles L. Baker for the benefit of his widow and next of kin, within the time limited by law, undertook and faithfully promised the said plaintiff that he, the said defendant, would pay to her thenceforth during her natural life and widowhood the sum of fifty dollars a month, payable each month during said time. And the said plaintiff avers that she, confiding in the said promise and undertaking of the said defendant, did accordingly forbear to bring suit within one year-the time limited by law-from the death of the said Charles L. Baker, as his administrator, for the benefit of plaintiff, his widow, and next of kin, against the said defendant; and plaintiff avers that she was a widow of the said Charles L. Baker from the time of making said contract with defendant to the bringing of this suit; and plaintiff avers that the defendant fulfilled and kept their said undertaking and promise to plaintiff until the month of September, 1898, since which time the defendant has failed to perform their said undertaking and promise to plaintiff as aforesaid, to wit, at the township of Mansfield aforesaid. And whereas, also before the making of the promise and undertaking of the said defendant hereinafter next mentioned, to wit, on the 13th day of March, A. D. 1898, to wit, in the township of Mansfield, in the county of Warren, aforesaid, one Charles L. Baker, then the husband of the plaintiff, was in the employ and service of the said defendant as an engineer in conducting and operating a locomotive engine of the said defendant on the said defendant's railroad, and the said Charles L. Baker afterwards, to wit, on the day and year aforesaid, at the township of Mansfield aforesaid, was ordered out with said locomotive engine by the said defendant to open the tracks of said railroad where it

was covered with snowdrifts, and while thus engaged, and then and there acting under the command and according to the directions of the said defendant, other locomotive engines, propelled by fire and steam, under the management and control of divers other servants of the said defendant, were then and there with great force and violence, by and through the negligence, carelessness, unskillfulness, and default of the said defendant and their servants, driven against said locomotive engine under the management and control of the said Charles L. Baker, whereby the said locomotive engine operated by the said Charles L. Baker was overturned, and the said Charles L. Baker instantly killed; by means whereof, being then and there the widow of the said Charles L. Baker, she claimed to have, as administratrix of the said Charles L. Baker, an action at law to be brought within one year from his said death against the said defendant for the death of the said Charles L. Baker, for the benefit of plaintiff, his widow, and the next of kin of the said Charles L. Baker. And thereupon the said defendant afterwards, to wit, on the 1st day of May in the year last aforesaid, at the township of Mansfield aforesaid, in consideration that the said plaintiff would not bring, as administratrix of said Charles L. Baker, suit against the said defendant for the death of the said Charles L. Baker as aforesaid, within the said one year from the day of his death, undertook and faithfully promised the said plaintiff that he, the said defendant, would pay to her henceforth, to wit, from the day of the death of the said Charles L. Baker during her natural life and widowhood, the sum of fifty dollars a month, payable each and every month during said time, which proposition the said plaintiff did then and there accept. And the said plaintiff avers that she, confiding in the said promise and undertaking of the said defendant, did accordingly forbear to bring suit as administratrix of said Charles L. Baker as aforesaid, for the benefit of herself as his widow and his next of kin, within one year from the day of his death as aforesaid; and plaintiff avers that she has been since the death of the said Charles L. Baker, and is now, his widow, and that the said defendant did perform and keep their said promise and undertaking with the said plaintiff until the month of September, A. D. 1898, since which time the said defendant has not performed, fulfilled, and kept their said promise and undertaking as aforesaid, to wit, at the township of Mansfield aforesaid.

"And whereas, also, the said defendant, heretofore, to wit, on the 8th day of March, 1899, in the county of Warren aforesaid, was indebted to the plaintiff in five hundred dollars for the price and value of goods sold and delivered by the plaintiff to the defendant at their request, and in the like sum of money for the price and value of goods bargained and sold by the plaintiff to the defendant at their request, and in like sum of money for