duct of his agent, or by his ratification of what has been done, or acquiescence therein for a long period of time, so that courts of equity will not hear him, to be now questioned. Indeed, this branch of the case seems to me to be so strong, in texture, both of warp and woof, that had the insurance company, when it filed its bill to foreclose, admitted the imperfect cancellation, and shown the circumstances under which its mortgage was acquired, and asked at the same time that the cancellation of the Wells mortgage might be decreed, it would have been granted; but, whether so much would have been accomplished then or not, I can think of nothing clearer than that had the defendant, who was in possession at the time of filing this bill, come into court with his cross bill, as well as his answer, showing the facts which have been above considered, and prayed that his title might be quieted, and the Wells mortgage decreed to be satisfied and canceled of record, his prayer would have been conceded.

The long period of time which the complainant allowed to elapse between the discovery of the alleged injury and the filing of this bill renders it impossible that the court can be unmindful of the doctrine of laches. Cases may arise where great delay may be shown not to militate against the rights of the complaining party, and for a court of equity to sustain claims under such circumstances may do no injustice to defendants, as when all the conditions, such as the continued existence of witnesses and the title of property, remain unchanged. In this case, David K. Howell is dead, and so is Edwin A. Van Syckle, one of the lawyers who was present and heard the testimony of witnesses in the orphans' court in Pike county, Pa. Besides the death of the witnesses, the exceeding great frailty of human memory often is so uncertain as to render it worthless, and oftentimes, if relied upon, very misleading. Of this, there perhaps was never a more striking illustration than that presented by two of the witnesses in this case. See the case of Coles v. Vanneman, 51 N. J. Eq. 323, 18 Atl. 468, and 30 Atl. 422; Van Houten v. Van Winkle, 46 N. J. Eq. 380, 20 Atl. 34; 1 Pom. Eq. Jur. §§ 418, 419.

Another very important element is often taken into the account in connection with the doctrine of laches. I refer to the loss which would be imposed were the complaining party not to be charged with unreasonable delay. Although there is no other proof than that which inferentially arises from the testimony of Edwin A. Van Syckle that the premises embraced in this mortgage had a market value equal to the amount of both mortgages at the time of its execution, the court will take judicial knowledge of the fact that in July, 1872, when these instruments were exchanged, real estate in New Jersey was selling for almost 100 per cent. more thau it did in 1876. It seems reasonable to affirm

that if this farm sold in 1876 for $4,900, and Mr. Baldwin had asserted his rights in 1872, which he now does, successfully, the loss to all concerned would have been comparatively slight, if any.

By reference to my former opinion in this case, it will be seen that a very great deal of consideration was given to the allegation, upon the one hand, that the mortgage under which Baldwin claims was not proved or acknowledged according to law, and consequently was illegally recorded, and, upon the other, to the allegation that the cancellation of said mortgage was unlawful, because wholly unauthorized, and that the manner of cancellation was of such a character as to give notice thereof to all persons. It now appears to me, after reviewing this case, as I have above, for the purpose of ascertaining the true standing of the insurance company, and the rights of those who took title under it, upon the foreclosure of the mortgage, that the labor of counsel and the court was needlessly employed, both with respect to the proof of the said mortgage and the cancellation thereof; for Mr. Burnham, the agent of the insurance company, had the most complete knowledge of the existence of this mortgage from early in the progress of negotiations for the loan. His testimony places this beyond controversy. I think he had possession of it before it was submitted for cancellation. If he had not before it was submitted for cancellation, it came to his possession, and he had charge of it, before any money was advanced upon the new mortgage. Therefore, if this controversy were at this late period to depend upon the doctrine of notice, the testimony of Mr. Burnham alone furnishes the amplest proof of actual notice. But, however striking or emphatic this may be, it in no wise diminishes the force of the testimony on the main branch of the case, as above considered, with respect to the conduct and obligation of Baldwin after he became fully apprised of the surrender of the Wells mortgage and the substitution of the George Baldwin mortgage therefor.

I see, therefore, no reason for coming to a different conclusion than when I first considered the rights of the respective parties in this cause.

WESTCOTT v. SHEPPARD et al. (Court of Errors and Appeals of New Jersey. June Term, 1893.)

Appeal from prerogative court.

Proceedings by Lelia Westcott against Charles G. Hampton, Hannah W. Sheppard, and others to contest a will. From a decree of the prerogative court reversing a decree of the orphans' court setting aside the decree of the surrogate admitting the will to probate, contestants appeal. Affirmed.

Christopher A. Bergen, for appellants. Thom as B. Harned and David J. Pancoast, for respondents.

PER CURIAM. Decree affirmed, for the reasons given by the ordinary. 25 Atl. 254.

THE CHIEF JUSTICE, and DEPUE, DIXON, LIPPINCOTT, MAGIE, VAN SYCKEL, BROWN, CLEMENT, and KRUEGER. JJ., for affirmance. ABBETT, REED, BOGERT, and SMITH, JJ., for reversal.

DANDY et al. v. METHODIST SOCIETY
OF IRELAND et al.
HADDEN v. SAME.

(Court of Errors and Appeals of New Jersey. June Term, 1893.)

Appeals from court of chancery. Bill by Cornelius Hadden, executor, against George B. Dandy and others, to construe the will of James H. Dandy, deceased. From the decree of the vice chancellor, George B. Dandy and others and Cornelius Hadden, executor of James H. Dandy, appeal. Affirmed.

Benjamin A. Vail and Clarence D. Ward, for appellants. Thomas J. Kennedy, for respond

ents.

(Court of Errors and Appeals of New Jersey. Nov., 1893.)

Appeal from court of chancery.

Bill by the United Security Life Insurance & Trust Company of Pennsylvania against Isaac Smith and A. F. Smith to foreclose a mortgage, which provided, among other things, for the payment of attorney's commission for collection to be recovered in addition to the debt and costs of suit. It was alleged that complainant had paid as attorney's fees $300. The master to whom the case was referred reported that complainant was entitled to have said fee included in the decree, but the court allowed $25 only, and from this decree complainant appeals. Affirmed.

Lewis Starr, for appellant. Thomas E. French, for respondents.

PER CURIAM. Decree affirmed.

THE CHIEF JUSTICE, and DEPUE, DIXON, MAGIE, REED, VAN SYCKEL, BOGERT, BROWN, CLEMENT, KRUEGER, and SMITH, JJ., for affirmance. GARRISON, J.. for reversal.

WRIGHT et al. v. WRIGHT. (Court of Errors and Appeals of New Jersey. Nov., 1893.)

Appeal from court of chancery. Bill by William L. Wright against Jane M. Wright and others to set aside certain assignments. From a decree for complainant (26 Atl. 166), defendants appeal. Affirmed.

Grey & Grey, for appellants. John W. Wescott and S. Morris Waln, for respondent.

PER CURIAM. Decree affirmed, for reasons given in the court of chancery.

THE CHIEF JUSTICE, and ABBETT, DEPUE. REED, VAN SYCKEL, KRUEGER, and SMITH, JJ., for affirmance. DIXON and PHELPS, JJ., for reversal.

MERRITT et al. v. MERRITT. (Court of Errors and Appeals of New Jersey. Nov., 1893.)

Appeal from chancery court.

Petition by Nehemiah Merritt for the removal of Georgina and Florence Merritt, executrices of George Merritt, deceased, and for further relief. From the decree of the chancellor (21 Atl. 128), defendants appeal. Affirmed.

Thomas N. McCarter and Abraham V. Schenck. for appellants. Martin P. Grey and H. H. Hepburn, for respondent.

PER CURIAM. Decree affirmed, for the reasons given by the chancellor.

TRUSTEES OF BROAD ST. M. E.
CHURCH v. WHITE.

(Court of Errors and Appeals of New Jersey. Nov., 1893.)

Appeal from court of chancery.

Bill by A. R. Kimble, executor of Mary A. Middleton, against John E. White, the trustees of the Broad Street Methodist Episcopal Church, and others. From a decree of the chancellor (24 Atl. 400) the trustees appeal. Affirmed.

Samuel W. Beldon, for appellants. Mark R. Sooy and Howard Flanders, for respondent.

PER CURIAM. Decree unanimously affirmed, for the reasons given by the chancellor.

REA et al. v. FLUCK et al. (Court of Errors and Appeals of New Jersey. Nov., 1893.)

Appeal from prerogative court.

To the petition of Henry A. Fluck and Jacob A. Wert, executors, for probate of the will of George A. Rea, Runkle Rea and others instituted a contest. From a decree of the prerogative court (27 Atl. 636) reversing a decree denying a petition, Rea and others appeal. Affirmed.

J. Newton Voorhees, for appellants. Richard S. Kuhl, for respondents.

PER CURIAM. Decree unanimously affirmed, for the reason given by the ordinary.

SECURITY INS. CO. OF NEW HAVEN v.
HAAS et al.
(Supreme Court of New Jersey. Nov. 8, 1894.)
FOREIGN CORPORATION-AGENT-SERVICE OF SUM-
MONS.

In an action against a foreign corporation, service of summons upon a person whose only connection with the defendant company was a contingent one, that had ceased before the action was commenced, is not service on an agent of the company, within the meaning of section 8 of the act concerning corporations. (Syllabus by the Court.)

Action by Theodore Haas and others against the Security Insurance Company of New Haven, Conn., on a fire insurance policy, in which there was a judgment by default in favor of plaintiffs. Heard on rule to show cause why such judgment should not be vacated, and the service of summons set aside. Judgment vacated, and service set aside.

Argued June term, 1894, before MAGIE and GARRISON, JJ.

Mr. Atkinson, for plaintiff. Mr. Day, for defendant.

GARRISON, J. Judgment by default in an action on a policy of insurance having been

tion, now seeks to have the judgment vacated, and the service of the summons set aside, upon the ground that Charles Selvage, on whom the service was made by the sheriff, was not an officer, director, agent, clerk, or engineer of the corporation, as required by section 88 of the act concerning corporations. Revision, p. 193.

The testimony taken under the rule to show cause discloses that Selvage was agent for the Niagara Fire Insurance Company, and as such had undertaken for that company to adjust a loss to the plaintiff's property. While endeavoring to effect this settlement for the Niagara Company, Selvage received word from the defendant that whatever settlement was made for the Niagara would be accepted by the defendant, and that he might draw on it for the amount. No such settlement, however, was reached; and on December 21, 1893, Selvage notified the defendant that the plaintiffs would take nothing but a total loss, and that the Niag ara Company had been sued. On January 8, 1894, an action was commenced against the defendant, and the summons was served on Selvage as its agent.

From this brief statement of uncontroverted facts, it is clear that, on January 8th, Selvage was not the agent of defendant corporation for the purpose of receiving a summons, or for any purpose. His only connection with it had been the contingent one, that if he reached a settlement for the Niagara Company the defendant would through him pay to the plaintiff a like sum of money. When the compromise with the Niagara fell through, and the defendant company was notified of this result, which was on December 21, 1893, all semblance of agency between. Selvage and the defendant was at an end. He no longer had any relation to its business, nor was he under any duty with respect to its affairs. The case bears no likeness to Norton v. Bridge Co., 51 N. J. Law, 442, 17 Atl. 1079, nor is the reasoning of that and similar cases applicable.

The judgment will be vacated, and the service of the summons set aside.

STATE ex rel. O'BRIEN v. BOARD OF COUNCILMEN OF CITY OF BAYONNE et al. (Supreme Court of New Jersey. Nov. 8, 1894.). ELECTION-MAJORITY- WHEN SHOWN BY RE

TURNS.

The certified returns of an election showed that O. received for the office of councilman. 260 votes, that Allan Benny received 259 votes, and that Benny received one vote, which was not counted. Held that such returns showed the election of O.

Petition by the state of New Jersey, on relation of William J. O'Brien, for a writ of mandamus to compel the board of councilmen of the city of Bayonne, and others, to.

Argued June term, 1894, before MAGIE and GARRISON, JJ.

Thos. F. Noonan, for relator. Jas. Benny, for respondents.

PER CURIAM. The state of the case agreed upon includes the election returns as certified by the judges of election. By this certificate it appears that the relator received for the office of councilman 260 votes, and that no other person received so many. The fact that the respondent Allan Benny received within one vote of as many as the relator, exclusive of a single vote for Benny, which was not counted, is without significance upon the prima facie right to the seat. The office is vacant. The certificate shows the election of the relator. mandamus, that is enough. The relator is entitled to a peremptory writ.

On

TAYLOR v. BOARD OF COUNCILMEN OF CITY OF BAYONNE.

(Supreme Court of New Jersey. Nov. 8, 1894.) MANDAMUS-UNREASONABLE DELAY-WHAT CON

STITUTES.

1. The court will refuse a mandamus when there has been unreasonable delay in applying for it.

2. September 1, 1891, relator was dismissed from the police force of the city of Bayonne without legal trial. Held, that a delay of over two years in applying for a mandamus to compel the board of councilmen to try him was unreasonable, there being no special circumstance to excuse or justify such delay.

(Syllabus by the Court.)

Petition by Edmon Taylor for a writ of mandamus to compel the board of councilmen of the city of Bayonne to proceed to try relator on a certain charge affecting his conduct as a policeman of such city. Heard on rule to show cause. Writ denied.

Argued June term, 1894, before MAGIE and GARRISON, JJ.

W. W. Anderson, for relator. James Benny, for defendant.

GARRISON, J. The relator applies for a mandamus to be directed to the board of councilmen of the city of Bayonne, commanding that municipal body to proceed to try him upon a certain charge affecting his conduct as a policeman, preferred against him August 22, 1891. The precise form of the charge then made was that the relator, a police officer, was off his post and intoxicated while on duty. A copy of these charges was served upon the relator, and, at a time fixed therein, he appeared before the mayor of the city of Bayonne, and entered the following unique plea: "Guilty of being off post, and asleep on beer keg, as charged." A trial was proceeded with, and, upon the evidence then received, the mayor found the

cated while on duty. He thereupon suspended him from the police force, and recommended the board of councilmen that he be discharged from its service. This communication was received and confirmed by the board, without, according to the relator, a trial before that body. This was on September 1, 1891. He now, more than three years later, asks for this writ to compel the board to put him on trial. Inasmuch as it is conceded that the relator had a right to a trial by the board before his dismissal, the only question is whether by his laches he has not lost it. Further facts in the history of the case are that the relator applied to this court at the November term, 1893, two years after his discharge, for a writ of mandamus to compel the city to reinstate him as a member of the police force, which was denied. State v. Mayor, etc., of City of Bayonne, 28 Atl. 380. Afterwards, to wit, on the 20th of March, 1894, the relator presented a petition to the board, asking for a trial upon the said charges against him. A resolution was then passed by the board, granting said petition; but failing to receive the approval of the mayor, who, under the city charter, has a veto power, this resolution never became operative. The present application to this court was then made.

Taking all of these circumstances into consideration, this, in my judgment, is a proper case for the enforcement of the rule that the court will refuse a mandamus where there has been unreasonable delay in applying for it. Shortt, Mand. 250; Clarke v. Earle, 42 N. J. Law, 94. In determining what will constitute such unreasonable delay, regard should be had to circumstances which justify the delay, to the nature of the case, and the relief demanded, and to the question whether the rights of the defendant or of other persons have been prejudiced by such delay. People v. Common Council, 78 N. Y. 56; High, Mand. 306. Applying the rule thus stated, the present case will be found to be barren of any justification for delay, even assuming that this application had been made at the time the former writ was applied for, in 1893; while, on the other hand, the nature of the action. and the character of the relief sought are such that it could and should have been proceeded with promptly, if at all. That the rights of the city must suffer both in respect to the production of testimony and to the disarrangement of its public service from such a delay is also self-evident. All of this is apart from the fact that relator confessedly merited his suspension by the mayor, and so pleaded,-a circumstance that cannot, it is true, be used to excuse the board for not trying him, but can and does influence this court when asked, after a lapse of three years, to place him in statu quo with respect to his right to a trial before the board. The writ will be denied.

1. Under the landlord and tenant act, an affidavit stating that the original lessor "sold and conveyed the said house and lot to deponent, together with the appurtenances and the rents, issues, and profits thereof, by deed of conveyance bearing date the day and year last aforesaid, and recorded Feby. 8, 1894, in the clerk's office. of Burlington county, at Mt. Holly, in Book 308 of Deeds, folio 533," is not void as being a mere conclusion of law. It sufficiently avers that the claimant is the "assign" of the lessor.

2. An assignee of a landlord's reversionary interest may file an affidavit to dispossess a tenant under the landlord and tenant act.

3. Where a judgment in a civil suit has been rendered by an inferior court of competent jurisdiction, this court will, as against such judgment, intend nothing that is not part of the record.

4. Notes of testimony sent up by a justice of the peace with his return to a writ of certiorari, but not in compliance with any rule allowed in the cause, form no part of the record.

(Syllabus by the Court.)

Summary proceeding in justice's court by Isaac F. Richman against Atwood Lloyd to recover possession of a house and lot under the landlord and tenant act. There was a judgment for claimant, and defendant prosecutes a writ of certiorari. Affirmed.

Argued June term, 1894, before MAGIE and GARRISON, JJ.

Gilbert & Atkinson, for prosecutor. Samuel K. Robbins, for defendant.

GARRISON, J. This writ of certiorari brings up the judgment rendered by a justice of the peace, awarding the possession of a house and lot of land to the claimant in a summary proceeding taken against a tenant under the landlord and tenant act. The claimant was not the original landlord, but claims as an "assign" of the lessor. The affidavit that, under these proceedings, gives jurisacon to the justice of the peace, may be made by the assignee of the lessor in his own right. The statute expressly authorizes

Revision, p. 573, § 12; Watson v. Idler, 54 N. J. Law, 467, 24 Atl. 554.

The first question, therefore, is whether, in the present case, the affidavit is made by the "assign" of the lessor, within the meaning of the statute. The language of the affidavit is that the lessor "sold and conveyed the said house and lot to deponent, together with the appurtenances and the rents, issues, and profits thereof, by deed of conveyance bearing date the day and year last aforesaid, and duly recorded Feby. 8, 1894, in the clerk's office of Burlington county, at Mt. Holly, in Book 308 of Deeds, folio 533." We are asked to reject the plain sense of these averments

upon the ground that they are in form conclusions of law. Such a course would, in my opinion, be to require of unskilled suitors in these inferior courts a finesse in the use of language as much at variance with the nature of the proceedings as it would be with the character and purposes of these tribunals. No rational cause can be assigned for the rejection of words and terms universally used and correctly understood in common speech, merely because they happen to be also correct in a technical sense. Where an affiant substitutes his conclusion of law for undisclosed facts, his affidavit is rightly rejected; as, for instance, where he states that a certain possession is "as tenant" or by virtue of a "letting." Fowler v. Roe, 25 N. J. Law, 549; Shepherd v. Sliker, 31 N. J. Law, 434; Wooley v. Lane, 51 N. J. Law, 504, 18 Atl. 353. Where, however, a form of words is the common expression for a familiar fact or transaction, as in case of a "sale," an affidavit in such words should not be rejected merely because they have a like meaning in law. If a man has, in point of fact, sold me a piece of ground, and has given me what is commonly known as a "deed of conveyance" covering it and its rents, issues, and profits, and I have caused his deed to be recorded in the proper public office on a certain page of a certain book, I know of no way in which the transaction can be better stated than by the employment of the lanIn guage used in the affidavit before us. the case of Watson v. Idler, 54 N. J. Law, 467, 24 Atl. 554, an almost identical statement of a similar transaction was brought to the attention of this court, and met with its distinct approval. In that case it was also held that such an averment in the jurisdictional affidavit would, unless a demand for the production of proofs was made by the defendant, be sufficient to establish before the justice the relation of landlord and tenant between the parties, without regard to the mode of proof that might legally obtain if a trial were had.

Assuming, therefore, that the justice of the peace in the case before us became vested with jurisdiction to hear and determine the issue between the parties, the remaining question is, does the record brought up by the prosecutor's writ show that the judgment against him was the product of legal error? Inasmuch as the defendant appeared, and a trial was had, it must, I think, be inferred that the prosecutor required proof of the facts set out in the affidavit. The case thus to be covered by the proofs was that the relation of landlord and tenant existed between the claimant and the defendant; that some rent was due from the latter to the former at the time the notice was given; that due notice was given; and that no distress for rent could be had. How these several points were proved, or attempted to be, to the satisfaction of the justice, is not shown by the return before us. By