but, inasmuch as the point was not raised by the case under consideration, the court of appeals did not decide the question. The opinion of Chancellor Zabriskie therefore stands as the practice of this court, and is, in my view, a correct statement of the manner in which a party entitled to a definite share in the unknown profits of a business should proceed to obtain his rights. Suing at law before ascertaining whether there were profits, and to what amount, his claim would lack the elements of certainty which the law courts require. An accounting of all the transactions of the business would be necessary, and this the mode of procedure in those courts is unfitted to accomplish. In the case now before me it clearly appears that by the contract the complainant was entitled to a share in the profits of the business. Mr. Redrow, who was the employer, was bound to pay his employé his share of the profits; and, if that payment involved a statement of his business dealings, he was bound to have furnished his employé such a statement, to show whether there were any profits. That obligation was not satisfied by Mr. Redrow's remark, to the complainant, "You can come and look at the books." The defendant has not yet rendered an account which the complainant should be compelled to accept as a showing whether there have been any profits of the business.

Upon the whole case, the complainant has failed to show any partnership; and, as that constituted the gravamen of his bill, he should have no costs against the defendant up to this stage of the proceedings. The defendant, having been charged in the bill as a partner, has some excuse for not having accounted as an employer under contract to share profits by way of compensation; and I will therefore retain the cause, and give him a further day for such an accounting. If, within 30 days from the date of an order to be made and served upon him or his solicitor, he shall serve upon the complainant or his solicitor an account showing the profits of the business up to the time the complainant was discharged from his employment, or the fact that there were no profits, then the defendant, if his account is accepted or maintained, will not be subjected to costs. If he fails so to do, the matter will be sent to a master to state such an account, and costs will remain subject to the further order of the court.

There was a statement upon a little memorandum (Exhibit C1) of some items of a stock of goods on hand on May 1st, to the total amount of $159.83. The same item appears in one of the defendant's books under the head, "Mr. Redrow Commenced Business," etc. That memorandum (Exhibit C1) and the entry and the testimony all agree that the material mentioned was on hand at the time Redrow took the business, and that it had been the property of Mr. Cornell. Mr. Redrow's testimony does not say that this stock on hand was conveyed to him by the second bill of sale. It is not mentioned in

that bill of sale, and Mr. Redrow, in his testimony, states that this stock remained on hand there, and went into the business. Whether that means that that stock was sold, and that the credits of the sale thereof went on Redrow's books and became his property, I cannot say. It may have been that Mr. Cornell, who was in charge at that time, and continued to be for some time afterwards, with only an occasional visit from Mr. Redrow, sold that $159.83 worth of stock, and retained the proceeds.

Mr. Rex: Mr. Redrow did not say that all he took possession of was on that bill of sale. He said he did take possession of that, and this also.

The Vice Chancellor: I will not pass judgment upon any of these possibly disputable matters. It may be that a statement of account may be rendered, which the parties may voluntarily accept, and thus end this litigation. I will advise an order such as is above indicated.

MCGRATH v. RILEY.

(Supreme Court of New Jersey. May 5, 1900.) FRAUD-AFFIDAVIT FOR BAIL-SUFFICIENCY.

Where, in an action to recover moneys paid on a contract for sale of realty, an affidavit for an order to hold to bail averred that defendant "assured deponent that the premises were free and clear of all incumbrances, and that certain moneys were paid defendant on such assurance, and that defendant fraudulently contracted the debt,' the affidavit was insufficient, since it failed to state such facts circumstantially as would be admissible in evidence on a trial of the cause, and the statements as to the assurances by defendant, and that the debt was fraudulently contracted, were mere conclusions.

Action by John McGrath against James Riley. Motion to discharge defendant on common bail. Motion granted.

Allan Benny, for plaintiff. Clarence Linn, for defendant.

LIPPINCOTT, J. Due notice of this motion appears by the acknowledgment of the attorney for the plaintiff. The order to hold to bail, made in this case, must be set aside, and the defendant admitted to common bail. The affidavit used before the commissioner states that the defendant "assured the deponent [plaintiff] that the premises were free and clear of all incumbrances," and in connec tion with this statement the affidavit further avers "that the said sums of money above set forth were paid by him to the said James Riley upon the assurance that said property was free and clear from all incumbrances." This might perhaps be a proper averment in a formal pleading, but an affidavit to hold to bail must state such facts circumstantially as would be admissible in evidence on the trial of a cause. If the agreement or assurance was verbal, then what was said between the parties, as near as may be, must be stated. The allegation in the affidavit is that an as

He

surance was given, but that is only a conclusion. It might appear if the circumstances (that is, the conversations) were given; that is, what was said from which the deponent infers or concludes an assurance that they would not constitute any such assurance. The term "assurance," as used in this affidavit, is nothing more nor less than a conclusion, and it would not be admissible for the defendant to testify in a cause in this manner. would be required to state the facts and circumstances out of which this assurance grew, or from which it could be concluded such assurance was given. The further averment in the affidavit that "the said James Riley fraudulently contracted said debt" is obviously a mere conclusion of the affiant. The agreement is not set forth upon which the action is based. The occurrences between the deponent and the defendant should be set forth in the affidavit, for it might then turn out that there existed no contract or agreement for the purchase of the land at all. The affidavit does not comply with the rule laid down in Truax v. Railroad Co., 56 N. J. Law, 278, 27 Atl. 1063. The statements made in the affidavit would not be competent proof in open court upon the trial of the question whether the debt was fraudulently contracted. The order to hold to bail may be set aside, and the defendant may be discharged upon the entry of common bail.

(60 N. E. 62)

YGLESIAS v. DEWEY et al. (Court of Chancery of New Jersey. Aug. 18, 1900.)

POWER OF ATTORNEY-CONSTRUCTION-MORTGAGEES IN POSSESSION-HEIR'S RIGHT TO PARTITION-EFFECT OF OUTSTANDING MORTGAGE-COVENANT AGAINST PARTITION-VA

LIDITY.

1. An heir, by irrevocable power of attorney, delegated to two of her co-heirs the control and management of her interest in lands belonging to the estate, authorizing them to receive the rents, and requiring them to pay to her the net income of the property to which she was entitled, less a certain sum which the deed recited they had advanced to her. The deed also expressly made a lien on her share in the estate a further advancement to her at the time of its execution, and her co-heirs then took possession thereunder. Held to make them mortga gees in possession of her share, so as to defeat her right to possession until the advancements were paid.

2. An heir cannot call for partition when coheirs are in possession of her interest under a mortgage executed by her to them.

3. An heir, who, on condition of a loan to her of a certain sum by two of her co-heirs, covenants not to call for partition within a certain period, unless all the other heirs agree thereto, is bound thereby.

Bill for partition by Sarah Yglesias against James H. Dewey and others. Complainant moves to strike out the plea. Refused.

The complainant is the owner of an equal undivided one-fifth part of certain real estate in Hoboken, consisting of certain houses

and lots. The defendant James H. Dewey is entitled to an equal undivided one-fifth part, the defendant Richard W. Dewey is entitled to two equal undivided one-fifth parts, and the defendant Mrs. Potter is entitled to an equal undivided one-fifth part. The allegation of the bill is that the defendants James and Richard have the possession of the premises as landlords, and have taken the rents, issues, and profits for several years, and have rendered no account to complainant; that they have no authority to rent and demise the premises, and are not entitled to receive the rents and issues thereof; that the complainant is entitled to onefifth of the rents and profits, and she prays that there may be a partition, and that the defendants James and Richard may account for the rents and profits. The bill also alleges that the share of complainant is subject to a mortgage given by her to the defendant Richard W. Dewey. The plea sets up a deed executed by the complainant, and duly acknowledged by her, and dated October 12, 1896, which deed is in the nature of a power of attorney, by which she constitutes the defendants Richard and James her attorneys to exercise general control over all her lands and tenements in Hudson county, to ask for, demand, collect, and reIceive the rents and arrears of rents thereon, pay taxes, insurance, assessments, repairs, and other necessary expenses, and to reimburse themselves thereout the sum of $130, previously advanced by them to her, and to pay her the balance from time to time as the same shall accrue, and at the end of five years from the 1st of November, 1896, to render a final account of their receipts and disbursements, paying her any surplus that may be in their hands, less the sum of $200 then and there advanced to her, the receipt whereof was acknowledged; and in consideration of the advance of $200 she declared the power of attorney to be irrevocable until the 1st of November, 1901, and made that sum a lien and charge upon her share in the estate, and agreed that she would not file a bill for the partition of the property aforesaid within said period of five years, unless all the other heirs agreed thereto. The plea alleges that Richard and James have received and collected the rents and profits, and paid the taxes, and taken care of the property; that they have not reimbursed themselves the sum of $130 mentioned in the deed, but have paid to complainant the net balance of her share remaining after paying taxes, assessments, insurance, repairs, etc. The deed in question is set forth verbatim, and shows that it was executed by her alone. Her husband, who is living, did not join. No question is made as to the sufficiency of the execution of this instrument by the complainant without her husband joining. The sole question raised is as to whether the plea, being taken for true, furnishes a bar to the complain. ant's bill for relief.

E. T. Paxton, for complainant. William C. Heppenheimer, for defendants.

PITNEY, V. C. (after stating the facts). In my judgment, the effect of the power of attorney and the possession taken and held under it was to make the defendants mortgagees in possession of the complainant's share of the premises, and to defeat any present right of possession on her part until the repayment of the sums of $130 and $200 mentioned in the deed. The complainant, then, is neither in possession, nor is she entitled, in equity, to the immediate possession of the premises. The same result arises from the mortgage given by complainant to her brother Richard, set forth in the bill. She cannot claim possession as against it. For these reasons, according to all the authorities, the latest expression of which is Smith v. Gaines, 39 N. J. Eq. 545, she is not entitled to call for a partition. In the cases which hold that an outstanding mortgage given by a complainant in partition was no bar to the action the complainant was in possession. Kline v. McGuckin, 24 N. J. Eq. 412. But, independent of the fact that the defendants are in possession of complainant's share as her mortgagees, I think that her covenant not to bring partition is a good and binding one. Under the circumstances it was quite reasonable, and it was the condition upon which the defendants advanced the loan to her. It was part and parcel of the contract. The authorities upon this topic are collected in Freeman, Co-Ten. (2d Ed.) § 442. I think the facts set up in the plea furnish a complete defense to the complainant's bill, and the motion to strike out is refused.

(60 N. J. E. 280)

OBERON LAND CO. v. DUNN et al. (Court of Chancery of New Jersey. Aug. 16, 1900.)

BILL TO QUIET TITLE-SETTLEMENT-COSTS. 1. Gen. St. p. 3487, § 6, declares that on a bill to quiet title the court shall fix and settle the rights of the parties in the lands in dispute. Held, that where, on a bill to quiet title, a feigned issue was awarded to try the question of the legal title to the lands, and after judgment in favor of defendants both plaintiff and defendants conveyed all their interest in the lands in dispute to a stranger to the suit, the bill should be dismissed, since neither party had any rights in the lands to be bound by any decree.

2. Where, on a bill to quiet title, a feigned issue was awarded to try the legal title to the lands in dispute, and, after judgment for defendants, plaintiff and defendants settled the litigation by conveying their interest in the lands in dispute to a third party, each party should pay his own costs.

Bill by the Oberon Land Company against Mary Dunn and others to quiet title. Bill dismissed.

This cause on bill to quiet title, etc., was heard before this court on the preliminary point whether the complainant had such peaceable possession of the premises in ques

tion as gave it standing to file its bill under the statute. Land Co. v. Dunn, 56 N. J. Eq. 750, 40 Atl. 121. The complainant was decreed to be in peaceable possession, claiming to own, etc., and thereupon, on the application of defendants, a feigned issue was awarded to try the question of the legal title to the lands. Issue was joined, and at the trial in supreme court circuit in Atlantic county a verdict was found in favor of Mary Dunn and others, defendants, as appears by the postea and proceedings in the law court, now here on file. The defendants' counsel now applies for a hearing in this cause on the issues raised by the bill and answer thereto. The counsel for the complainant gives notice of a motion to dismiss the bill upon the ground that both complainant and defendants have conveyed away to a stranger all their interest and estate in the premises described in the bill of complaint, and that none of the parties to the suit have any further interest in its prosecution or defense. The two motions were heard together. Affidavits were filed, and deeds were produced establishing the fact that both the complainant and defendants had, for valuable considerations paid, conveyed all their interest in the premises in dispute to Arvine H. Phillips, who is not a party to this suit. There is no denial that this disposition has, by all the parties, been made of the subject-matter of this controversy. The defendants insist that notwithstanding the cause shall proceed to hearing and decree.

D. J. Pancoast, for complainant. G. A. Bourgeois, for defendants Mary Dunn and others.

GREY, V. C. (after stating the facts). In the admitted present condition of this controversy each party has by deed parted with all interest in the subject-matter of the suit. Their grantee is a stranger, who cannot be bound by any decree made therein. By the statute the decree "shall fix and settle the rights of the parties in the said lands," etc. Gen. Stat. p. 3487, § 6. But the undisputed proof is that neither party has any rights in any of the said lands to be bound by any decree. The suggestion for further proceedings on this bill to quiet a title, which, so far as the parties to the suit are concerned, is already quieted by their own acts, is an invi tation to the court to hear argument upon a purely hypothetical question, and to make a decree which will be wholly inoperative. That is not the purpose for which courts hear causes. The parties have themselves, in a binding way, settled the whole controversy. No question of costs, even, remains to be decided. It is well established that, where the parties settle their differences out of court, without reference to the costs, each party shall pay his own costs. Bruce v. Gale, 13 N. J. Eq. 211, and cases there cited. The bill of complaint and proceedings thereon should be dismissed, without costs allowed to either party against the other.

LITTLE v. MCVEY.

(Supreme Court of New Jersey. July 10, 1900.) JUDGMENTS-LIMITATION OF ACTIONS-JUDGMENTS OF OTHER STATE.

Const. U. S. art. 4, § 1, declares that full faith and credit shall be given in each state to the records and judicial proceedings of every other state. Gen. St. p. 1974, § 8, provides that no action on a contract without specialty shall be brought after six years from the accrual of such cause of action. Held, that where an action was brought on judgments rendered in the state of New York more than six years prior to the action, there being no statute of limitations relative to the judgments of sister states, the action was not barred, since, under Const. U. S. art. 4, § 1, a judgment of a sister state cannot be regarded as a contract debt.

Action by Jacob V. Little against John McVey. Motion to strike plea of statute of limitations. Motion granted.

Charles J. Roe, for the motion. William K. McClure, opposed.

FORT, J. This is an action upon two judgments recovered in 1888 in the supreme court of the state of New York. Several pleas were filed to the declaration on the judgments, but the only one called in question on this motion is the last, which states "that the several alleged causes of action in the declaration mentioned did not, nor did any or either of them, accrue to the plaintiff at any time within six years next before the commencement of this suit." This sets up as a defense to the action on the judgments sued on our statute of limitations applicable to debts founded on simple contracts. That suits upon judgments of a sister state are governed by the lex fori, and not by the lex loci contractus, in so far as proceedings touching the remedy to recover on such judgments are concerned, is without question. Scudder v. Bank, 91 U. S. 406, 23 L. Ed. 245; Amy v. Dubuque, 98 U. S. 470, 25 L. Ed. 228. This whole subject is discussed in the case of McElmoyle v. Cohen, 13 Pet. 312, 10 L. Ed. 177, and the cases above cited follow it. There the court construes the provision of the constitution of the United States which relates to the faith and credit to be given by one state to the judgments of the courts of another state, and says: "What is the nature of a plea of the statute of limitations? Is it a plea that settles the right of a party on a contract or judgment, or one that bars the remedy? Whatever diversity of opinion there may be among jurists upon this point, we think it well settled to be a plea to the remedy. Consequently the lex fori must prevail." In this state there is no statute of limitations which specifically provides for the length of time within which suit must be brought upon a judgment of a sister state, and unless the eighth section of our statute of limitations can be pleaded to a suit upon such a judgment, and is applicable to such suits, this plea is bad. Gen. St. p. 1974, § 8. There are a number of states which have

statutes of limitation as to suits upon such judgments, and where such statutes exist the supreme court of the United States has sustained them, and held that it was within the power of one state to provide that a suit upon a judgment of a sister state must be brought within a certain period of years. The statute of Georgia was, as construed in McElmoyle v. Cohen, above cited, as follows: "That actions of debt on judgments obtained in courts, other than the courts of this state, must be brought in five years after the judg. ment is obtained." And the court upheld that statute, as within the legislative authority of a state, and not interdicted by the faith and credit clause of the federal constitution. To the same effect is Bank v. Dalton, 9 How. 522, 13 L. Ed. 242, and Bacon v. Howard, 20 How. 22, 15 L. Ed. 811. In our own state it has been held that in a suit upon a foreign judgment (that is, a judgment recovered in the dominion of Canada, where the constitutional provision which relates to the faith and credit to be given to the judgments of a sister state does not apply) a plea of our statute of limitations is good, because such foreign judgment possesses no higher character than a simple-contract debt, and hence is barred by the same period of limitations as contract debts. Bank v. Ramsey, 55 N. J. Law, 383, 26 Atl. 837. The judgment of a sister state is not a foreign judgment. It will have the same faith and credit here as in the state where it may have been rendered, and will be deemed conclusive evidence of the debt merged in it. The judgment of a sister state excludes all controversy in this state as to the merits of the debt and contract upon which the judgment is founded. A judgment of a sister state cannot be treated here as a simple-contract debt, but must be considered as a debt of record and a verity. Such a judgment is not the mere prima facie evidence of a debt. It must be deemed conclusive evidence of the debt.

One of the leading cases in this country on this question is Andrews v. Montgomery, 19 Johns. 162. In this state our supreme court, as long ago as 1832, in passing upon a plea of the statute of limitations interposed to a suit upon a judgment obtained in the court of common pleas of the county of Northampton, in the state of Pennsylvania, said, by Ewing, C. J.: "Our statute for the limitation of actions upon contracts cannot be brought to bear upon the present demand. Nor have we any statute which in express terms prescribes a period within which actions upon the judgments of other states must be commenced. We have a statute comprehending judgments, but it is confined in terms to judgments of this state." Gulick v. Loder, 13 N. J. Law, 68. The statute construed by the court in this last case, and which was pleaded by the second plea demurred to, was that which limits the right to bring an action to twenty years. The effect of the decision in Gulick v. Loder is that there is no statute of

limitations at all in this state which can be pleaded in bar of a suit upon a judgment of a sister state. The court says in Gulick v. Loder, however, that in such suits it is possible, under a plea of payment, to give evidence that the judgment of the sister state has existed for more than 20 years, and that a presumption arises, from such length of time alone, of payment, but not by virtue of the statute; the principle evidently being that, upon proof that no demand or attempt to enforce the judgment of a sister state has been made within 20 years, that in itself is evidence that the judgment has been paid, and casts the burden upon the plaintiff to establish the contrary before a recovery can be had. In the absence of a statute of limitations applicable to suits upon judgments of a sister state, the courts of this state are required to give to such judgments the same faith and credit, and rights of action thereon, to the same extent as are given to our own judgments. And the language of our statute with reference to our own judgments is, "A judgment in any court of record in this state may be revived by scire facias or an action of debt may be brought thereon within twenty years next after the date of such judgment, and not after."

The plea in this case, in my judgment, is without substance in law, and raises purely and solely a legal question, in view of the admission in the declaration that the judgments sued on were recovered more than six years before the action was instituted, and the motion to strike out should be granted. An order will be made accordingly.

(65 N. J. L. 557)

BULLOCK v. STATE. (Court of Errors and Appeals of New Jersey. Sept. 6, 1900.)

HOMICIDE-MURDER OF CONSTABLE-INDICTMENTS-SUFFICIENCY-TRIAL-VACATION OF OFFICE-RIGHT ΤΟ DETERMINE-VERDICTRIGHT TO CONVICT OF MANSLAUGHTER-ORDER FOR STRUCK JURY - CROSS-EXAMINATION OF ACCUSED-EVIDENCE OF DISTINCT OFFENSE-VOLUNTARY CONFESSION-ADMISSION OF IMPROPER TESTIMONY-REMOVAL OF EFFECT-PROOF OF BAD CHARACTERCOLORED DEFENDANT-RIGHT TO COLORED MAN ON JURY PANEL.

1. A count in an indictment following the language of Revision, p. 275 (P. L. 1898, p. 879, 836), charging that the accused, "willfully, feloniously, deliberately, and of his malice aforethought, did kill and murder, contrary to the form of the statute,' etc., is sufficient to charge the crime of murder in the first degree.

2. It is also sufficient for the killing of an officer in the execution of his office, without alleging that deceased was an officer.

3. Section 18 of the act concerning juries (Revision, p. 527) enacts that, among others, the court of oyer and terminer may, on motion in behalf of the state, or of any prosecutor or defendant in any indictment, order a struck jury, and section 19 provides that a rule therefor shall remain in force until the cause is tried, and no jury shall be summoned unless the rule be first vacated by the court. Held to vest in the court discretion to order such a jury, and to vacate the order when made; and hence a prisoner by the discharge of such a

rule was not deprived of any vested right which could legally be considered either a "manifest wrong or injury," within Acts 1898, p. 915, § 136.

4. The fact that no colored man is returned on the panel returned on the trial of a colored defendant does not deprive him of the rights guarantied to him by section 1 of the fourteenth amendment to the federal constitution, unless such return was made designedly.

5. Where an accused, on his arrest, was told by one of the police officers having him in custody, or by the son of one of them in their presence, that he had better tell all about it, and that it would be easier for him, and confessed shortly thereafter on meeting another officer, who came to arrest him, and who, without knowing what had before occurred, and before his confession, warned him, according to his own admission in evidence, corroborated by that of the officer, that he need not say a word unless he wanted to, it is sufficient to justify a finding that his confession was voluntary, and admitting the same against him.

6. Defendant was arrested for killing a constable in the execution of his office, which by P. L. 1898, p. 824, § 106, is declared to be murder. The constable was elected in the spring of 1897 for a term of three years; and by Gen. St. p. 849, §§ 14, 16, he was required to renew his official bond annually, and for failure and refusal to do so it was declared that his office should become vacant, and the vacancy be filled as required by law. He took his office and gave bond in March. 1897, and omitted to renew it in March, 1898, but in March, 1899, he filed a renewal bond in compliance with the statute. His continuance was recognized by all public authorities, and his official authority was shown by such evidence as is uniformly regarded as sufficient proof of official position. Held, that the court could not inquire on the trial whether his office had become vacant, and pronounce a judgment of forfeiture.

7. Where one kills an officer in the execution of his office or duty, unless the act is excused or justified, so as to entitle him to an acquittal, under no view of the evidence could the killing be merely manslaughter, and he must be convicted of murder, since by P. L. 1898, p. 824, § 106, such a killing is made murder.

8. In the prosecution of one accused of murder, he was asked if he ever had any trouble with any one, and answered that he never did. On cross-examination, he was asked if he did not have a dispute with a certain witness, and draw a razor on him and attack him with a pitchfork. Held, that this evidence was incompetent, but that, if at all competent on cross-examination, it was irrelevant and immaterial, and the state was bound by defendant's answer, and could not contradict it.

9. Where testimony tending to impress on the minds of the jury a conviction of the natural propensity of the accused to resort to extreme violence on slight provocation is improperly admitted, to remove its effect it must be formally and emphatically expunged from the record before the testimony is closed and the summing up of counsel is commenced.

10. If a prisoner testifies to his good character, evidence in reply tending to show his bad character must be confined to his general reputation, and evidence of a particular act or specific facts is inadmissible, either as original evidence or by way of rebuttal.

Error to court of oyer and terminer. William Bullock was convicted of murder, and he brings error. Reversed.

George C. Beekman and William J. Leonard, for plaintiff in error. John E. Foster, for the State.