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notice that the offer to compromise would be renewed in such form as the chancellor might deem advisable. If the savings bank had given notice that it would insist upon immediate compliance by the council with the requirement of the mandamus, the aspect of the case would be different. In the absence of such notice, the intention to be in contempt ought not to be imputed to the defendants. The application should be refused, with costs.

STATE (JENKINS, Prosecutor) v. CREVIER.

(Supreme Court of New Jersey. February 27, 1888.)

VENUE IN CIVIL CASES-TRESPASS TO LANDS.

A suit will not lie in the district court of the county of Hudson for a trespass to lands in the county of Essex.

(Syllabus by the Court.)

On certiorari to district court of Hoboken; OGDEN, Judge.

Argued at November term, 1887, before Justices DEPUE, VAN SYCKEL, and KNAPP.

Russ & Heppenheimer, for plaintiff. Niven & Minturn, for defendant.

VAN SYCKEL, J. This is an action instituted in the district court of Hudson county, for trespass to lands lying in the county of Essex. The defendant resides in Essex, but was served with process in Hudson county, while temporarily there. The question involved is whether suit will lie in the district court of the county of Hudson, for a trespass to lands in Essex. The district court act 1878 (Supp. Rev. 256, pl. 180) provides "that every suit of a civil nature at law, where the debt, balance, or other matter in dispute does not exceed, exclusive of costs, the sum or value of two hundred dollars, shall be cognizable in any district court of this state, in the cities where they may be established, although the cause of action did not arise in said city. Said district courts shall have jurisdiction exclusive of all the courts whatsoever, except the circuit court of the county or counties wherein said district court may be established, in all cases arising under this act, where the party defendant resides within the corporate limits of the city wherein said court or courts shall be established: provided always, that this act shall not extend to any action of replevin, slander, trespass, for assault, battery, or imprisonment, nor to any action wherein the title to any lands, tenements, hereditaments, or real estate shall or may in any wise come in question." The supplement of 1882 (Supp. Rev. 261, pl. 213) provides that the jurisdiction of the district court shall be extended to every suit of a civil nature at law, in which the debt, balance, damage, or other matter in dispute does not exceed, exclusive of costs, the sum or value of three hundred dollars: provided, that it shall not be construed to extend to or embrace any suit or action where the title to lands and real estate shall come in question.

The provision that the district court shall have jurisdiction exclusive of all courts except the circuit court of the county, by implication restricts such jurisdiction to such cases as the circuit court of the county can take cognizance of. It is equivalent to saying that the district court shall, in the specified instances, have jurisdiction concurrent with the circuit court, and not in excess of that court. The controversy in this case, therefore, resolves itself into the question whether a suit could be maintained in the Hudson county circuit court for trespass to lands in Essex county. The action of trespass for breaking a close is a local action, and must not only be brought in the county where the land lies, but it must appear on the record that the trespass was committed in the county. Champion v. Doughty, 18 N. J. Law, 3; Deacon v. Shreve, 23 N. J. Law, 204; Practice Act, § 229. This action could not have been maintained in the Hudson county circuit court, and is therefore without the jurisdiction of the district court of Hudson county. Otherwise

the district court of Hudson county might entertain a suit for trespass to lands in the county of Cape May, if the defendant should chance to come within reach of its process. A jurisdiction which by careful provision has been withheld from the circuit court will not be adjudged to exist in an inferior tribunal in the absence of language clearly bestowing it. The words in the district court act of 1878, "although the cause of action did not arise in said city,” were used to bring within the cognizance of the court all causes of action arising within the county. The case of Funck v. Smith, 46 N. J. Law, 487, relied upon by the defendant, involved the question of jurisdiction over the person. Justice DIXON, in deciding that case, adverted to the distinction between jurisdiction over subject-matter and jurisdiction over persons. As to the latter, the persons who may not be compelled to submit to the jurisdiction may waive their privilege, which is personal, and will be deemed to have waived it, if they go to trial without objection. A want of jurisdiction over the subject-matter is fundamental. It appears in the record in this case, and may be taken advantage of at any time. On the trial below the district court permitted the plaintiff to amend his declaration by claiming damages for the physical condition of the plaintiff produced by the entry of the defendant upon the locus in quo. If the district court had jurisdiction of the case so far as to enable it to make the amendment, the amended declaration still left in issue the question of trespass to lands in Essex county. The district court should have granted the motion made by defendant to dismiss the suit. The judgment below should be reversed, with costs.

HAMILTON V. DELAWARE, L. & W. R. Co.

(Supreme Court of New Jersey. February 27, 1888.) RAILROAD COMPANIES-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCEACTION BY ADMINISTRATOR.

The plaintiff, an administratrix, brought suit against the defendant, a railroad company, under the act relating to deaths caused by negligence, and by her own evidence showed that the deceased went on the track without looking to the right or left, a train being in sight, by which she was killed. Held, the plaintiff should have been nonsuited.1

(Syllabus by the Court.)

On motion for new trial.

Action by Margaret P. Hamilton, administratrix, against the Delaware, Lackawanna & Western Railroad Company, for the death of her intestate. Action tried in the Essex county circuit court, before DEPUE, J. Verdict for plaintiff, and defendant moves for a new trial.

Cortlandt Parker, for defendant. James W. Field, for plaintiff.

BEASLEY, C. J. This suit was brought by an administratrix, under the statute relating to deaths caused by negligence. The deceased was crossing the track of the defendant's road, and was killed by a passing train. We think, on the proofs exhibited at the trial, that there should have been a nonsuit. On the plaintiff's own case it was indisputable that the accident was in part occasioned by want of care by the deceased in crossing the road. Her own witness testified in distinct terms, and the statement was repeated, that the deceased walked upon the track without looking either up or down it. If she had looked, she would have seen the train in plain sight. It cannot be claimed that she was thrown off her guard by her attention being attracted by any object. There is nothing in the case on which to found such an inference. The testimony referred to is not either explained or contradicted. There is no legal foundation for this verdict. The rule must be made absolute.

1 As to the duty of the traveler to look and listen before attempting to cross a railroad, see Durbin v. Navigation Co., (Or.) 17 Pac. Rep. 5.

STATE ex rel. RIGHTMIRE, Receiver of Taxes, v. DUFFIELD, President City Council, et al.

(Supreme Court of New Jersey. March 2, 1888.)

1. OFFICE AND OFFICER-COMMENCEMENT OF TERM.

Where no time is fixed by law for the commencement of a term of office, it begins either at the date of the election or appointment, or from the time the person chosen may by his own act assume the duties of the office, and not at the time he actually enters upon his duties of the office.

2. SAME-RE-ELECTION-DELAY IN QUALIFYING.

A city charter provided that certain officers, including a receiver of taxes, should be elected at the city election, to hold office for the term of three years, and until others are chosen and qualified in their stead. It provided, also, that such officers should, before entering upon their duties, take an oath of office, and give bond for the performance of official duties in such sum, and with such sureties, as the city council should approve. Held, (1) that the provision for holding until a successor was qualified was not designed to extend the tenure of office of the incumbent for his advantage; that its purpose was for public interests, to prevent a vacancy that might occur through delay in his successor's qualifying. (2) A person elected to an office, or re-elected as his own successor, cannot, by his neglect to qualify, prolong the term of his predecessor, or his own prior term, and so postpone the beginning of the term for which he was so elected.

3. SAME.

The charter empowered the city council, by ordinance, to fix the salary of the receiver of taxes. It provided that no officer of the city government should have his salary increased or diminished during the term for which he was elected or appointed. The relator was elected receiver of taxes March 13, 1883. He was re-elected at the annual city election held March 9, 1886. The city council, whose duty it was to approve official bonds, was in session March 12, 1886. Held, that the relator could not, by postponing the giving of his official bonds, prolong his prior term, and postpone the commencement of his new term so as to have the benefit of an ordinance increasing the salary of the receiver of taxes, adopted March 18, 1886. (Syllabus by the Court.)

On application for mandamus by William H. Rightmire, as receiver of taxes of Camden city, against Jonathan Duffield, president, and D. Cooper Carman, clerk, of the common council of that city.

Argued before Justices DEPUE, KNAPP, and MAGIE.

S. H. Grey, for relator. J. Willard Morgan, for defendants.

DEPUE, J. The office of receiver of taxes was created by the charter of the city of Camden of 1871, (P. L. 1871, p. 210.) A. Clifford Jackson, the first receiver of taxes, was elected March 14, 1871. He qualified by giving bond May 4, 1871. Jackson was re-elected March 10, 1874, and gave bond, which was accepted. George M. Thrasher succeeded Jackson. He was elected March 13, 1877, sworn in March 16, 1877, and gave bond, which was accepted April 3, 1877. Thrasher was re-elected March 9, 1880, and gave bond April 8, 1880, which was accepted by the council the same day. The relator, who succeeded Thrasher, was elected March 13, 1883, sworn in March 16, 1883, gave bond, which was accepted April 12, 1883, and entered upon the duties of his office April 16, 1883. He was re-elected March 9, 1886, sworn in, and gave bond, April 6, 1886, and entered upon the duties of his office for the second term April 16, 1886, and is in office in virtue of this re-election.

The fifth section of the supplement of 1874 to the city charter provides "that the city council, at a meeting preceding the expiration of the term of office of any city, ward, or department of officer or officers, either elected or appointed, shall fix the salary of said officer or officers by ordinance, and, in case of the neglect or refusal of the said city council to fix the salary of any officer or officers, then the salary theretofore paid for similar services shall be considered the salary of said officer or officers for his or their term of service; and no officer under the city government, or employed in any department, either elected or appointed, shall have his salary, fees, or emoluments of office increased or diminished during the term for which he was elected or appointed."

P. L. 1874, p. 181. By an ordinance passed March 18, 1886, the salary of the receiver of taxes, which had been theretofore $1,800 per annum, was increased to $2,500 a year, payable monthly. This ordinance took effect immediately on its adoption. The relator claims that he is entitled to the salary prescribed by the ordinance last mentioned. The validity of his claim depends upon the effect of section five of the supplement of 1874, above quoted. Is the relator disqualified to have the increased salary fixed by the ordinance, by that part of section 5 of the act of 1874 which prohibits the increase of salary "during the term for which he was elected?" The act of 1871 provides for annual elections to be held on the second Tuesday of March in each year. Section 5 provides for the election at the annual elections of the usual city officers, such as assessors, ward clerks, chosen freeholders, commissioners of appeal, constables, overseers of the poor, etc., to hold office for the term of one year, and until others shall be chosen and legally qualified in their stead. It also provides for the election of a mayor, a receiver of taxes, a recorder, and an alderman from each ward, who shall hold their offices, respectively, for the term of three years, and until others are chosen and qualified in their stead. By section 18, every person elected or appointed to office in pursuance of the charter was required, before entering upon the duties of his office, to take and subscribe an official oath; and certain officers, including the receiver of taxes, were required, before entering upon their duties, to give bond to the city in such sum, and with such sureties, as the city council should approve. Section 12 provides that the term of office of all officers elected at the annual election, other than chosen freeholders and justices of the peace, shall commence on the Friday succeeding the day of election each year. The election of 1886, at which the relator was elected for his present term, was held March 9, 1886. The succeeding Friday was March 12th. The ordinance increasing the salary was not passed until March 18th.

I am inclined to think that section 12 applies to all city officers, whether elected for one year or three years; especially where the officer is required to give a bond, to be approved by the city council, the approval of which would naturally devolve on the city government as it exists after the new election. This question happens to be of no importance, for the ordinance increasing the relator's salary was of a later date than either the city election, or the Friday succeeding thereto. The relator has no standing entitling him to the increase of salary, unless he can successfully maintain that the language, “during the term for which he was elected," in the fifth section of the act of 1874, has reference to the time when the relator or his predecessor qualified, by giving the official bond, and entered upon the duties of office. In this construction of the statute we do not concur. If the relator's present term did not begin on Friday succeeding the election, it is subject to that rule of law that, where no time is fixed by law for the commencement of an official term, it begins to run, either from the date of the election or appointment, or from the time the person chosen is authorized by his own act to assume the duties of his office, and not from the time when he actually enters upon his office. This I understand to be the principle adopted by this court and the court of errors in Haight v. Love, 39 N. J. Law, 14, 476. In that case the official whose term of office was under consideration was appointed collector May 21, 1872, under the city charter, for the term of one year. On the 24th of March, 1873, by a supplement to the charter, the board of finance and taxation was authorized to appoint a collector to hold for a term of three years, with a provision that the term of the collector then in office should expire as soon as the collector designated by that act was appointed and qualified. The collector so appointed was required to take an official oath, and give bond for the faithful performance of his official duties. The collector in office when the act of 1873 was passed, was appointed collector, under that act, April 10, 1873. He took the oath of office April 14th, and gave bond May 15th. He was reappointed

April 6, 1876. The board as it was constituted on the 6th of April continued until April 12, 1876, at which date such a change in the members constituting the board occurred that on the 13th of April another person was appointed to the office. If the incumbent's first term expired April 10, 1876, three years from the date of his appointment, the board as then constituted had the power to reappoint. If, on the other hand, his first term expired May 15, 1876, three years from the date of giving his preceding official bond, the power of appointment then devolved on the new board, which had made selection of the contestant. The reappointment of April 6, 1876, was sustained by the supreme court, on the ground that, immediately on the prior appointment, the appointee might, by his own act, by giving bond, and taking the official oath, have legally assumed the duties of the office; and by the court of errors, on the ground that, under the circumstances, his prior official term began at the date of his appointment. Either aspect of this subject is fatal to the relator's case. The city council, which is the body to approve the relator's bond, was in session March 12th. On that day this body, instead of being called upon to approve the relator's bond, adopted a resolution for an increase of salary, which resolution was embodied in the ordinance of March 18th. The relator, by withholding his bond until April 6th, could not prolong his prior term, and give validity to the ordinance in its application to the new term for which he had been elected. In the case cited, Mr. Justice DIXON, in the supreme court, and Mr. Justice VAN SYCKEL, in the court of errors, commented in strong language adversely to the policy of permitting an appointee to extend the legal tenure of his predecessor, or his own prior term by his neglect to qualify. Nor is the principle above stated, impaired or modified by the fact that the statute which created the office provided that the incumbent should hold until his successor qualified. Such a provision was not designed to extend the tenure of office of the incumbent beyond the specified term for his benefit. Its purpose was to conserve the public interests, that there might be no vacancy in office through the delay of the successor to qualify. An incumbent holding the office under such circumstances is in by sufferance of the person who, being chosen to the office, has failed to assume its duties, and the term so protracted is to the detriment of the latter, in abridging his own term of office. As against the public, officers cannot found a valid title or right to hold over upon their own neglect of duty, although the charter provides that they should continue in office until their successors should qualify. 1 Dill. Mun. Corp. § 160; People v. Bartlett, 6 Wend. 422. Especially does this principle apply where the officer is chosen at a popular election to be held at a certain day, and the duty to compel the officer to qualify devolves upon another body. Stilsing v. Davis, 45 N. J. Law, 390, does not apply to this case. The question there was with respect to the power of appointment. The charter of Jersey City vested in the senate and general assembly, in joint meeting, the power to appoint police justices of the city, who should hold office for the precise term of three years. It also made provision for the contingency of a vacancy in the office by authorizing the governor to fill the vacancy until the joint meeting should appoint. By a subsequent statute it was enacted that any city officer appointed for a precise and determined period should continue to hold his office, and exercise its duties, until his successor had been appointed and qualified. Stilsing was duly appointed police justice by the legislature in joint meeting, and at the expiration of his term of three years the legislature failed to appoint a successor. This court held that, inasmuch as the statute provided that the officer, though appointed for a fixed and determined period, should continue to hold his office until the legislature exercised its power of appointing a successor, there was no vacancy in office, and, there being no vacancy to be filled, the governor had no power to appoint. In the case in hand there was no prolongation of the relator's preceding term by the inaction of the appointing power. The qualified voters.

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