by the city clerk. No record of them is required to be put in the council proceedings. Under such circumstances lack of notice is not to be presumed. Nor, under this writ, is the corporation representing the public bound to defend public rights by proof of due notice.

The objections that no proceedings to condemn lands taken, or to compensate for injury to be inflicted by grading, are shown, are, as applied to the ordinance, simply frivolous. Compensation for lands taken or injuries done is to be made by proceedings subsequent to the ordinance. If not made, the remedy of parties aggrieved is not to set aside the ordinance, but to compel the city to take the requisite steps to make compensation.

The only remaining question is directed to a resolution of the common council in respect to opening the street. In the absence of proof that this act can do any injury to prosecutor, it ought not to be adjudicated upon. It is capable of a construction not inconsistent with the requirements of the charter.

It is proper to add, for the information of counsel, (who seemed to think that other questions were raised by this record,) that an examination of the charter indicates that the right to use the land covered by the ordinance as a public street must depend, not only on the ordinance, but upon the circumstances ‘Or the further action of the city. Unless the land has been dedicated to public use as a highway, the city must proceed to treat for and purchase the right to use it or to condemn it in the manner prescribed by the charter.

There is nothing to justify any indication of opinion as to the right to damages for an injury to be done by grading this street.

The writ must be dismissed, with costs.

CONSTITUTIONAL LAW—LEGISLATIVE POWER—LOCAL AND SPECIAL LEGISLATION —LAWS N. J. 1880, CH. 164, AND Laws N. J. 1884, CH. 35. Under Const. N. J ., prohibiting the passing of local and special laws “creating, increasing, or decreasing the percentage or allowance of public officers for the term for which they were elected or appointed, ” Laws N. J. 1880, c. 164, as amended by Laws N. J. 1884, c. 35, providing that in all counties where the county clerks are now or hereafter shall be paid by annual salary, the salary shall be in lieu of all other compensation, is unconstitutional, as local and special; Camden being the only county to which it applies.

Demurrer to narr.
Jonas S. Miller and D. J. Pancoast, for plaintiff.
Thos. B. Harned and Garrison dc French, for defendant.

VAN SYCKEL, J. The right of the plaintiff to maintain this suit rests upon the act of March 6, 1884, and the act of March 11, 1880. Laws 1884, p. 58; Laws 1880, p. 247. The classification adopted by the legislature in both these acts is based upon the act of March 17 , 1874, (page 280.)

v.6A.no.4—28

In Gibbs v. Morgan, 39 N. J. Eq. 126, and in Ernst v. Morgan, Id. 391, such classification was held to be vicious. The view taken by the chancellor was concurred in by the court of errors and appeals in reviewing the case last cited. S. C. 40 N. J. Eq. 733.

The act of 1880, to which the act of 1884 is a supplement, applies only to counties in which the compensation to the clerk is by annual salary. Camden county alone is within the operation of its provisions. The judgment of the court of last resort in Ernst v. Morgan was that the fact that in Camden county the clerk was paid by annual salary did not furnish sufficient ground for the exclusive legislation. The case under consideration cannot be distinguished. The plaintiff’s action cannot be supported.

CERTIORARI—Jusrron’s COURT—TITLE TO LANDS—JURISDICTION.

Where a Judgment has been rendered in a justice’s court in favor of plaintiff in an action of trespass quare clausum fregz't, and it is made to appear that title to lands came in question before the justice. 9. certiorari will lie to re-~ view the judgment as one rendered without jurisdiction.

On certiorari. Facts appear in the opinion.
Mr. Crandall, for prosecutor.
Mr. Stanger. for defendant.

MAGIE, J . The judgment of a justice of the peace in favor of the plaintifi" in an action of trespass quare clausum fregit has been removed here by this writ, and is attacked upon the ground that the justice had no jurisdiction to render the judgment. \Vhat occurred before the justice appears by a statement of the case agreed on by the attorneys of the respective parties. It thus appears that there was no evidence that the plaintiff was in actual possession of the locus in quo. The sole evidence of possession was the inference derived from a deed conveying the land to plaintiff, which deed. she put in evidence. At the close of the plaintiff’s case, defendant asked for the dismissal of the action for want of jurisdiction, on the ground that the title came in question. The motion was denied, and judgment rendered for plaintiff. In this course the justice was clearly wrong. The use made of the deed in evidence involved a question of title. The justice was thus ousted of jurisdiction, and had no authority to render the judgment. Messler v. Flemming, 41 N. J. Law, 108; Jefirey v. Owen, Id. 260.

The only question of importance raised is whether the remedy for this error is not by appeal, rather than by certiorari. That an appeal would lie is beyond doubt. Messler v. Flemming, supra; Jeffrey v. Owen, supra. But this fact does not exclude the resort to a writ of certiorari. Such a writ is expressly permitted in all cases Where the justice has no jurisdiction, and this has been construed to mean, not merely jurisdiction to en

tertain the action below, but jurisdiction to render the judgment. The remedies by appeal and by certiorart are therefore concurrent. thter v. Kwnkle, 39 N. J. Law, 259-.

For the lack of jurisdiction to render this judgment, it must be reversed. ‘

STATE (Essnx PUBLIC ROAD BOARD) 12. SKINKLE.l
(Supreme Court of New Jersey. November 5, 1886.)

1. WAYS—ROAD ASSESSMENTS—ARBITRATION—NEW JERsEY AcT OF 1882. Under the act to authorize the compromising or settling, by arbitration, of any tax or assessment laid by any public road board in New Jersey, passed in 1882, the only parties to the proceeding are the road board and the applicant under the act.

2. SAME—WHAT TAXEs CONSIDERED.

The only taxes, assessments, and impositions to be considered are those against the applicant; and the value of his lands, in proportion to the burdens laid upon them, is to be estimated, and then the arbitrators are to fix the sum the applicant is to pay in discharge of such burdens.

8. SAME—OBJECT 0F Ac'r. .

The object of said act is to relieve lands when the assessments against them are greater than the accruing benefit. The relief is limited to the party applicgnt; and, to bring himself within the act, he must show such excess of.

ur en.

On certioram'. Facts are given in opinion.
John W. Taylor, for relator.
J. Frank Fort, for defendant.

VAN SYOKEI., J. The subject-matter for review in this case is the report of arbitrators appointed on the application of Jacob Skinkle, the defendant, under the provisions of the act entitled “An act to authorize the compromising or settling by arbitration of any tax or assessment laid by any public road board in this state.” Laws 1882, p. 256.

The relator insists, in the first place, that the arbitrators should have taken into consideration not only the assessments against the defendant, who alone petitioned for the benefit of said act, but also all other assessments for the same improvements imposed by the road board on all the lands assessed therefor. Does the failure to pursue such a course render the proceedings abortive? The proceedings under the not were instituted by Skinkle for his own benefit. No other land-owner is interested in it. Every land-owner affected by like assessments may, at his option, institute proceedings, under the act, for his own exclusive benefit. The estimate and assessment of the arbitrators in each casein which the benefit of the act is invoked isconclusive only as to the petitioner under the act, and has no effect whatever upon the assessments of other parties. The judgment of arbitrators appointed in one case could not guide or control those appointed in any other case. With the diversity of opinion which would naturally be entertained by different boards of arbitrators, the review in each case of the entire assessment could have but little tendency

1Syllabus prepared by the judge.

to preserve the principle of equity and proportion which should mark the original assessment. The magnitude of the labor which would be involved in reviewing and considering each assessment in its entirety would be appalling. There is nothing in the act which indicates a purpose to establish such a scheme.

The third section of the act provides that, after the arbitrators are sworn, they shall View the land and real estate upon which the tax or taxes, assessment or assessments, is or are laid or imposed, and, after such view, shall notify all parties in interest of the time and place when they will hear the parties and their witnesses, and shall, after hearing the parties, and taking into consideration all taxes, assessments, and impositions of every nature whatsoever, and of the value of the land and real estate in proportion to the taxes and assessments against the same, proceed to fix and adjust the sum to be paid by the owner or owners so petitioning in full settlement of the tax or taxes, assessment or assessments, levied or imposed by the road board. The only parties to this proceeding are the road board and Skinkle. The taxes, assessments, and impositions to be considered are those against Skinkle, and the value of his lands and real estate, in proportion to the taxes and assessments against them, is to be estimated, and then the arbitrators are to proceed to fix the sum he is to pay in discharge of such taxes and assessments. The object of the act of 1882 is to relieve lands when the assessment against them is greater that the accruing benefit. The relief is limited to the party applying for the protection of the act; and, to bring himself within it, he must show such excess of burden.

Such was the view taken by this court in a cause between the same parties, reported in 47 N. J. Law, 93. The court there said:

“The object of the act is to give relief to the petitioner from an assessment in excess of the benefits conferred upon him. The review which he institutes by his application is for his exclusive benefit, and does not affect the prior proceedings, so far as they relate to others. The sole question is whether he is burdened in excess of his benefits. To entitle him to a review he must make a prima facie case to that effect.”

If the assessments have been fixed by the arbitrators at a sum equal to the full benefit conferred upon Skinkle’s lands, the road board cannot complain that due proportion between the various land-owners assessed has not been preserved. The consideration of proportion might case one land-owner, and burden.another, but in no event could it lead to the laying of an assessment in excess of the benefit conferred.

Does the report of the arbitrators show that they have imposed upon Skinkle’s lands a burden equal to the benefits? The language of the report is this:

“We fix the specific sum to be paid by the petitioner at the sum of $840, and we do hereby certify that we have so fixed said sum after a careful examination of said land and said public improvements for which said assessments were laid, with a view to charge said property with, and to make said assessments conform in amount to, the benefits conferred, and do hereby deter

mine that the benefits conferred upon said property by said improvements amount to the said sum of $840.”

J

This language leaves no room to doubt that the assessment fixed by the arbitrators is equal to the entire benefit conferred by the improvements. In these respects there is no error in the proceedings, nor does any error appear in the order of the judge in regard to costs.

The proceedings below should be approved.

COLLYER, Adm’x, etc., '0. PENNsYLVANIA R. Co.1
(Supreme Court of New Jersey. November 5, 1886.)

1. MAsTER ANI) SERVANT—Rrsxs or EMPLOYMENT—DUTY or MASTER.

A master is bound to take reasonable care and precaution to guard his servants against danger. If he fails to exercise reasonable skill in furnishing machinery or buildings for the use of his servants while in his service, he is responsible for the consequent damage.

2. SAME—PROPER CONsTRUCTION OF MACHINERY.

He cannot claim immunity on the ground that he has exercised due care in selecting mechanics of competent skill in the construction of such machinery and buildings, but assumes the burden of seeing that such mechanics actually exercise reasonable care and skill in the execution of their work.

8. SAME—CARELEssNEss 0F FELLOW-SERVANT. There can be no recovery by the servant against the master for injury caused by the careless hand ing of machinery by a fellow-servant.

4. SAME—WHO Is A FELLOW-SERVANT—TRESPAssER.

If the party injured was lawfully in the building where the injury was received, in the course of his employment, he was a fellow-servant with those whose negligence produced the injury. If he was there as a trespasser or by sufferance, no duty with respect to him rested on the master, except to refrain from acts Willfully injurious. He assumed all the ordinary risks incident to the character of the place, and is without remedy.

Rule to show cause.
James Fleming, for plaintiff.
Vredenburgh (it Garretson, for defendant.

VAN SYCKEL, J. This action is instituted by the administratrix of George Collyer, deceased, to recover damages for injuries inflicted upon the decedent in his life-time by the alleged negligence of the defendant. The death of the decedent was not produced by the injury. Our statute has saved the right of action to his personal representative. Collyer was in the employ of the defendant company, and was injured by the falling of a sliding door in the company’s store at the foot of Laight street, in the city of New York. The plaintiff insists that the injury resulted from the negligent and unskillful manner in which the door was constructed, and from the careless manner in which the door was handled at the time of the accident.

A master is bound to take reasonable care and precaution to guard his servants against danger. If he fails to exercise reasonable skill in furnishing machinery or buildings for the use of his servants while in his service, he is responsible for the consequent damage. He cannot claim immunity upon the ground that he has exercised due care in selecting