(66 N. J. L. 686)

STATE v. GREENWALD. (Court of Errors and Appeals of New Jersey. Nov. 21, 1901.)

CRIMINAL LAW-WRIT OF ERROR-NECESSITY FOR FINAL JUDGMENT.

1. Where, on error from the court of errors and appeals to the supreme court, the record shows that a motion to quash an indictment removed into the supreme court on certiorari to the sessions was denied, but does not show that the indictment was remitted to the sessions, the court will presume that the matter is still pending in the supreme court.

2. A writ of error from the court of errors and appeals will not lie to review an order of the supreme court denying a motion to quash an indictment removed into that court on certiorari to the sessions before final judgment.

Error to supreme court.

Peter Greenwald was indicted for crime. and, on refusal to quash the indictment, brings error. Dismissed.

J. J. Crandall, for plaintiff in error. Frank L. Loyd, for the State.

PER CURIAM. The record before us in this case discloses a certiorari out of the supreme court, directed to the Camden county quarter sessions, and returned with a judgment against plaintiff in error, and a motion to quash the indictment, made in the supreme court. The action of the supreme court upon the motion is thus indicated in the printed case: "Judgment in favor of the validity of the indictment." Assuming that this properly states the action of the supreme court upon the motion, it is obvious that, since it does not appear that the indictment was remitted to the sessions, it must be presumed to be pending in the supreme court.

No final judgment being disclosed, there is nothing for us to review, and the writ must be dismissed. Parks v. State, 62 N. J. Law, 664, 43 Atl. 52.

(66 N. J. L. 685)

STATE v. GREENWALD. (Court of Errors and Appeals of New Jersey. Nov. 21, 1901.)

CRIMINAL LAW-WRIT OF ERROR-NECESSITY FOR FINAL JUDGMENT.

A writ of error from the court of errors and appeals will not lie to review an order of the supreme court denying a motion to quash an indictment removed thereto on certiorari to the sessions before final judgment and remitting the record to the sessions for trial.

Error to supreme court.

Peter Greenwald was indicted for crime, and, on refusal to quash the indictment, brings error. Dismissed.

J. J. Crandall, for plaintiff in error. Frank T. Loyd, for the State.

PER CURIAM. The record returned with this writ shows that upon a certiorari out of the supreme court, directed to the Camden county quarter sessions, an indict

ment pending therein against plaintiff in error was returned, and a motion to quash the indictment was made in the supreme court, which court denied the motion, and remitted the record to the Camden sessions for trial.

The case discloses no final judgment, and upon the authority of Parks v. State, 62 N. J. Law, 664, 43 Atl. 52, the writ must be dismissed.

(67 N. J. L. 135)

STATE (ALLEN, Prosecutor) v. HILES. (Supreme Court of New Jersey. Nov. 11, 1901.)

OVERSEER OF HIGHWAY.

A person appointed by a township committee to superintend the making and repairing of roads under a supplement to the road act (3 Gen. St. p. 2835) is not the overseer of the highway, authorized by section 50 of "An act concerning roads" (Id. p. 2817) to bring the action to recover the penalty provided by that section for narrowing, encroaching upon, stopping, or obstructing a highway.

(Syllabus by the Court.)

Certiorari to court of common pleas, Salem county.

Certiorari by the state, on the prosecution of David Allen, against Albert B. Hiles, to review a judgment. Affirmed.

Argued June term, 1901, before VAN SYCKEL, FORT, and GARRETSON, JJ.

William T. Hilliard, for prosecutor. Jonathan W. Acton, for defendant.

GARRETSON, J. This is a certiorari to review a judgment of the court of common pleas of Salem county. The prosecutor of this writ brought suit as overseer of a highway before a court for the trial of small causes to recover a penalty of $10 from the defendant for encroaching upon and obstructing such highway, and recovered a judgment for that penalty. Upon appeal, the judgment was reversed by the Salem common pleas. The judge before whom the appeal was tried certifies that on the trial he found that the road was at the time of the alleged obstruction a public highway; that the defendant had obstructed it in the manner complained of; and that the plaintiff was duly appointed by the township committee to superintend the making and repairing of roads in the district in which the road in question is situate, under the provisions of the act entitled "A further supplement to an act concerning roads" (Revision, approved March 27, 1874), which further supplement was approved March 12, 1891. This suit was brought under the provisions of section 50 of "An act concerning roads" (Revision, approved March 27, 1874; 3 Gen. St. p. 2817), which section is as follows: "That if any person shall narrow, encroach upon, stop or obstruct any highway, he shall, for every such offence, forfeit and pay ten dollars to be recovered by action of debt with costs, by the overseer of such highway, in

Appeal from court of chancery.

In the matter of the alleged lunacy of James L. Davenport. From a decree deny. ing an application by the alleged lunatic to set aside the inquisition, or for leave to traverse it, and confirming the same, the alleged lunatic appeals. Reversed.

William L. McCue and George T. Werts, for James L. Davenport, appellant. Richard Fitzherbert and Willard W. Cutler, for respondents.

ADAMS, J. A commission in the nature of a writ de lunatico inquirendo issued out of the court of chancery to inquire of the lunacy of James L. Davenport. The commission was executed, and an inquisition was returned finding that said James L. Davenport, at the time of taking the inquisition, was a lunatic. Thereupon counsel for the alleged lunatic obtained an order to show cause why the inquisition of lunacy should not be set aside, or why said Davenport should not have leave to traverse the inquisition, or have an issue to try the fact of his alleged lunacy. Upon the return of the rule to show cause the counsel for the alleged lunatic submitted to the chancellor several propositions.

In the first place, counsel for Mr. Davenport asked that the inquisition be set aside on the ground of alleged irregularities or omissions appearing in or disclosed by the affidavits taken on the rule to show cause. The chancellor refused to disturb the inquisition on this ground. On the hearing of the appeal this point was abandoned.

In the second place, counsel for Mr. Davenport insisted that the finding of the jury that Mr. Davenport was of unsound mind is opposed to the weight of the evidence. The chancellor refused to set the inquisition aside on this ground, saying: "There was evidence, which, if credited, justified the finding. There was much contradictory evidence. The jury also had the advantage of a personal examination of the alleged lunatic. What took place on that examination has not been disclosed on this rule. But the fact that the jury had examined him, and thereafter rendered a verdict upon that evidence, is deemed to preclude the setting aside of the inquisition upon that ground." There is no doubt that an inquisition, like a verdict in an action at law, may be set aside when it is without substantial support in the evidence. Ridgeway v. Darwin, 8 Ves. 65; In re Lawrence, 28 N. J. Eq. 331. This power is to be employed only in clear cases. The chancellor rightly decided that this proceeding did not call for its exercise.

In the third place, counsel asked that Mr. Davenport be allowed to traverse the inquisition, or that an issue as to his lunacy be awarded. In dealing with this application the chancellor made the following ac

curate statement of the law and practice: "Such an application is addressed to the discretion of the court, and should be granted, if, upon the whole evidence, a reasonable doubt as to the correctness of the evidence is disclosed. Vanauken's Case, 10 N. J. Eq. 187; James' Case, 36 N. J. Eq. 547; De Hart v. Condit, 51 N. J. Eq. 611, 28 Atl. 603, 40 Am. St. Rep. 545. The evidence has been examined with care, and the result reached is that a reasonable doubt does exist as to the finding of the jury. This will justify and require the granting of leave to traverse, if it appear satisfactorily to the court that the person found by the inquisition to be of unsound mind intelligently asks and actually desires such leave. The practice of this court in such cases is to direct the petitioner to be brought before the chancellor for a personal examination, if that is practicable. In this case the distant residence and the age and infirmities of the petitioner will, no doubt, render impossible his personal appearance before the chancellor. Under these circumstances the practice is to have him examined by some discreet master of the court, who will report upon his ability to understand and desire a further test. Vanauken's Case, 10 N. J. Eq. 187; Lindsley's Case, 46 N. J. Eq. 358, 19 Atl. 726." The next step would naturally have been for the chancellor to appoint a discreet master, and direct him to examine Mr. Davenport. This is the course indicated by the Vanauken Case, 10 N. J. Eq. 186. Chancellor Williamson's opinion ends with these words: "I shall direct the petitioner to be brought before the court, in order that a private examination may be had for the purpose of ascertaining whether he understands the object of the petition, and desires a traverse. If the distance of the petitioner's residence from the court makes this inconvenient, I shall direct the examination to be made by some discreet master of the court." So, in the Lindsley Case, 46 N. J. Eq. 358, 19 Atl. 726, Chancellor McGill said: "I concluded that I should not encourage further litigation, unless, upon a private examination of Mrs. Lindsley, I should find that she understandingly desired to traverse the inquisition. Upon inquiry, I found that she was unable to attend upon me, and I therefore appointed Mr. Washington B. Williams, a discreet and impartial master of this court, to repair to the house of Paul Fairce, and there conduct the examination of Mrs. Lindsley in my stead. He has reported to me that, in his judgment, she is not competent to exercise an act of volition." In the case now under consideration the chancellor did not make an order for the examination of the alleged lunatic. His opinion concludes with this sentence: "If counsel will apply and arrange for an examination by a master, one will be designated." No such application was made. The counsel for the respondents did not

make it, for he was satisfied with the inquisition. The counsel for Mr. Davenport did not make it, because he did not think it his duty. On the 10th of October, 1900, the decree appealed from was made. In its reciting part it declared that leave had been given to apply to the court for the appointment of a master to examine the alleged lunatic for the purpose of reporting upon his ability to understand and desire such leave to traverse, and that no such application had been made, and that notice had been given to the solicitor of Mr. Davenport of a motion to confirm the inquisition, and that counsel for Mr. Davenport had declined to apply for the appointment of a master in accordance with the leave granted by the court. In its decretal part it disallowed the application to set aside the inquisition, denied leave to traverse, and confirmed the proceedings and inquisition. It is evident from the foregoing statement that what the appeal brings up, on this branch of the case, is a point of procedure. The question is whether the initiative, as to the proposed inquiry, rested with the chancellor or with counsel for the alleged lunatic. That the chancellor had power to take the initiative is plain. That he should do so seems the natural course. The examination by a discreet master is merely a substitute for personal examination by the chancellor. In elther case the matter is between the court and the alleged lunatic. Both Chancellor Williamson, in the Vanauken Case, and Chancellor McGill, in the Lindsley Case, call it a "private" examination. It appears from the language of Chancellor Walworth in Christie's Case, 5 Paige, 242, that, in his opinion, the examination, whether conducted by the chancellor or by a master, is to be private. What standing has counsel on such an examination? And, if counsel can take no part in the inquiry, why should it rest with counsel to initiate it? It squares with the nature and purpose of the investigation that the chancellor should himself originate, direct, and control it. The cases, both in this state and in England, indicate that such has been and is the practice. In re Bridge, Craig & P. 338; In re Cumming, 1 De Gex, M. & G. 537; In re Hanks, 3 Johns. Ch. 567. This need not involve a retrial by the chancellor of the merits of the controversy, for it may well be, as remarked in an English case, that a lunatic may have an intelligent wish for a traverse. On this view of what is correct procedure, the refusal of counsel for the alleged lunatic to apply for the appointment of a master was not a waiver of any right. His client's right, under the chancellor's opinion, is a conditional one,-the right to traverse the inquisition if he intelligently wishes to do so. That right is still his, and the question as to his intelligent wish is yet undetermined. A decree expressive of these conclusions would take this form: After the proper re

(Syllabus by the Court.)

Error to court of common pleas, Monmouth county.

Action by Henry Steinbach against Nancy I. Pettingill. Judgment of nonsuit affirmed, and plaintiff brings error. Affirmed.

The action was begun in the court of common pleas to recover the sum of $300 and interest from August 24, 1896, for money paid George D. Pettingill in his lifetime upon the purchase price of real estate at Asbury Park, N. J., under an agreement entered into August 24, 1896, of which the following is a copy:

"Asbury Park, Aug. 24, 1896. Received from Henry Steinbach three hundred dollars, account of purchase of house and lot, corner of Grand, Cookman, and Summerfield avenues. Whole purchase price fourteen thousand dollars. Deed to be made at any time between this time and September 15, 1896. Possession given September 15, 1896. Interest 5 per cent., commencing January 1, 1897. First payment, two thousand dollars, when deed is made; balance to run five years, with the privilege of paying two thousand dollars or more at the option of the party of the second part. [Signed] George D. Pettingill."

At the close of the testimony the trial court nonsuited the plaintiff upon grounds stated in the following opinion:

"Heisley, J. The defendant moved to nonsuit. The testator of the defendant, by writing signed by him, authorized a real estate agent to sell certain property described as having a frontage on Grand avenue of one hundred feet, agreeing to pay the agent's commission if the agent effected a sale at the price of $14,000. This writing contained a diagram showing the property and the various streets upon which it abutted. The chief purposes of this writing evidently was to secure to the agent the payment of his commission pursuant to the statute, which requires the obligation to pay to be in writing. This writing would, perhaps, have

made the testator liable to convey a lot of land having a frontage of one hundred feet on Grand avenue, or to pay damages upon his failure, if the agent had closed the sale of the property with a person relying solely on the writing, and not on the general boundaries of the property. The plaintiff disregarded the agent, and dealt directly with the testator, went to the latter's house,-being the premises in question,-and tried to buy the property at a less figure than $14,000, ultimately paying $300 on account of the purchase, and took a receipt in writing, signed by the testator, agreeing to convey. He made payment to the owner, and not to the agent, and took a receipt from the owner, and not from the agent. The plaintiff had long been familiar with the premises in question. The boundaries of the property were well defined by fences, abutted on three streets, and it seems that it was impossible for the plaintiff not to be able at a glance to tell just what property he was buying. He asked no questions of the testator as to dimensions. The receipt, signed by the testator, described generally all the land within those boundaries as a 'house and lot, corner of Grand, Cookman, and Summerfield avenues,' and the plaintiff, in all probability, expected no more. It recited no dimensions, and the plaintiff was content to accept the receipt in that form, and made payment on account of the proposed purchase. The receipt constitutes a complete contract of sale, and, I think, is the only contract between the parties, and that the agent's authorization to sell cannot be considered.

"Visible and notorious boundaries of property govern the quantity of land to be sold, rather than a statement of courses and distances. As a matter of law, I believe plaintiff can require, under the circumstances, a conveyance of no more land than that described in the receipt. He testifies that shortly after the signing of the receipt he found that the testator did not own as much land as was described in the agent's authorization, and demanded the refunding of the $300 to him by the testator. He thereby practically notified the testator that he would not complete the purchase according to the receipt, and this excused the nontender of the deed by the testator.

"I do not think the plaintiff has shown a legal right to recover the $300, and the motion to nonsuit is granted."

Argued June term, 1901, before DEPUE, C. J., and DIXON, GARRISON, and COLLINS, JJ.

David Harvey, Jr., for plaintiff in error. S. A. Patterson, for defendant in error.

GARRISON, J. (after stating the facts). The state of the testimony is correctly summarized in the statement of the trial court delivered upon the direction of the nonsuit.

The conclusion reached by him is confirmed by this court. No other result seems

possible. There was neither fraud nor misrepresentation to aid the plaintiff's case. If mutual mistake existed, it was not proved; and, if proved, it was not remediable in this action. Upon the other hand, the written contract obtained by plaintiff directly from the defendant's testator is at once insusceptible of any alteration in this suit that will sustain his claim, and is incapable of any interpretation in any form of action that will permit it.

The judgment of the pleas is affirmed, with costs.

(67 N. J. L. 71) CAMPBELL v. PERTH AMBOY MUT. LOAN, HOMESTEAD & BUILDING ASS'N.

(Supreme Court of New Jersey. Nov. 11, 1901.)

BUILDING ASSOCIATIONS-RIGHTS OF SHAREHOLDER-RELIEF IN EQUITY.

1. Under "An act to encourage the establishment of mutual loan, homestead and building associations" (Revision, approved April 9, 1875; 1 Gen. St. p. 331) and its supplements, it is the actual amounting of the fund in which a shareholder has an interest to the sum per share specified in the articles of association that will entitle him to receive such sum. It is not competent for an association, by constitution or otherwise, to provide that such right shall accrue upon the ascertainment by the directors of the value of a share in that fund.

2. Recovery of the value of matured shares in an association organized under said act cannot be had at law. The remedy of a shareholder, if the directors will not recognize his demand for distribution of the fund in which he is interested, is in the court of chancery. (Syllabus by the Court.)

Action by Edward S. Campbell, receiver, against the Perth Amboy Mutual Loan, Homestead & Building Association. Demurror to declaration sustained.

Argued June term, 1901, before DEPUE, C. J., and DIXON, GARRISON, and COLLINS, JJ.

Sherrerd Depue, for plaintiff. Alan H. Strong, for defendant.

COLLINS, J. This demurrer is interposed to the first four counts of the declaration, and in different aspects challenges the asserted right of the plaintiff to recover at law from an association organized under "An act to encourage the establishment of mutual loan, homestead and building associations" (Revision, approved April 9, 1875; 1 Gen. St. p. 331) and its supplements the value of matured shares therein held by the plaintiff. It is conceded that normally there would be no such right, but the plaintiff insists that the averments of his declaration present an exceptional case. It is averred that "in and by the constitution of the said defendant it was, among other things, provided that, when the board of directors of the said defendant should have ascertained that the actual value of any share amounted to two hundred dollars, the owner of such