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new corporation, and hold the franchise and property subject to the same conditions as the act imposed upon the purchasers.

The plaintiff in error contends that it was not proven to be the successor of the original corporation under this act. The defect is alleged to consist in the failure of the state to prove that there existed any decrees of foreclosure either against the Montclair Rail way or against the Montclair & Grenwood Lake Railway Company. It is therefore urged that one of the conditions upon which the burdens in the old charter is imposed upon the new corporation does not appear; namely, that the railroad was sold by virtue of a decree of the court of chancery. In considering this objection it is obvious that there is no difficulty presented by the phraseology of the act requiring a decree and sale under it; for if it appear that the defendant was an owner or operator of this road at the time when the breach of duty occurred, he is liable under the act of 1882. By the terms of that act the duty of repairing bridges in crossing public highways is imposed upon any company operating or owning any railroad, or owning any completed or uncompleted right of way. I am of opinion that the defendants were proven to be owners of the Montclair road, including the Caldwell branch. The master's deed was offered in evidence, with the usual recitals of the execution, according to the statutory requirements, (Revision, 1043,) in which was the recital of the decree which was the fountain of authority for the writ. The counsel for the plaintiffs in error insists that the master's saying in his deed that there was a decree was no proof of the fact. I incline to the conclusion that these recitals are prima facie evidence of the fact of the existence of the decree of foreclosure so set out. The fourteenth paragraph of the act concerning sales of land by an officer, in pursuance of a decree, makes the recitals in a duly-acknowledged deed of such officer prima facie evidence of the truth of the recital contained therein. And I think that this provision applies to all the usual recitals in an officer's deed, and reaches not only the statements of the steps taken in the execution of a writ, but also a statement of the authority by which the writ was issued. Chancellor ZaBRISKIE, in the case of Campbell v. Dewick, 20 N. J. Eq. 186, held that the existence of an ordinance authorizing the assessment of taxes was proven prima facie by an allusion to the existence of such ordinance in the tax deed. Mr. Justice VAN SYCKEL, in his opinion in the case of Henderson v. Hays, 41 N. J. Law, 390, remarked that this act gave to all recitals, including that of the judgment and execution, the force of evidence for the party offering the deed until it was overcome by common testimony. In view of the recital of the decree in the master's deed, I think the defendant below is not in a position to say that there is no proof of the existence of a decree.

But aside from this view of the case, it seems to me that the defendant was not in a position to successfully defend upon the ground that no decree was proven. The defendant had accepted a deed, by the terms of which the ownership of the Montclair's Company's property, including the Caldwell township branch, was conveyed to the plaintiff in error. Its organization as a corporation was effected, pursuant to the terms of the act, for the very purpose of taking the title to the property so purchased. It proceeded to exercise all the powers with which the charter of the original company would invest them as purchasers, so far as the new company wished to exert those powers and privileges. While it occupies this attitude, it cannot ignore those duties to the public which are coupled with the enjoyment of the corporate privileges. So long as it holds this property, and enjoys this franchise under a colorable title and under a corporate form, which is the statutory outgrowth of that title, it must perform its duty to the public as an owner. Whether the failure to perform such duty assumes the shape of an act of misfeasance or non-feasance, it is responsible. It seems to me clear that in either of the aspects just mentioned the defendants were owners of this railroad, and by the act of 1882 were responsible for the obstruction of the road which was the result of the

absence of a bridge across the cut. Apart from the provisions of the last-mentioned act, I think the defendants were liable also under the fifty-sixth section of the railway act already set out. As already remarked, the proof in the case was sufficient to show prima facie that the defendants were purchasers under a decree of foreclosure. As such purchasers they took the old franchise cum onere. The words of the act were broad enough to cover a duty like the present imposed by the charter. The method prescribed by the charter, by conforming to which the Montclair Company could run their railway across public highways, was both a restriction and a limitation upon its general power to build a road.

As to the contention that there was evidence to show that this branch had been abandoned, which evidence should have been submitted to the jury, it is sufficient to remark that there was no evidence from which the jury could have legally found an abandonment of the road, even if it were possible, by an abandonment of this branch, to evade the obligation to remove the obstruction to public travel which the condition of their property caused. The judgment below should be affirmed.

GLUTING v. METROPOLITAN LIFE INS. Co.

(Supreme Court of New Jersey. February 27, 1888.) INSURANCE-WARRANTY-APPLICATION.

Where a policy of life insurance declares that the representations made in the application touching the subject of insurance are warranted to be true, and that the policy shall be void if they are untrue, the falsity of those representations will defeat the insurance.

(Syllabus by the Court.)

Action by Elizabeth Gluting against the Metropolitan Life Insurance Company on a life insurance policy. Tried at the Middlesex county court, before SCUDDER, J., and a jury. Verdict for plaintiff, and rule to show cause why it should not be set aside.

Argued November term, 1887, before the chief justice and Justices REED, MAGIE, and DIXON.

Mr. Adrain, for plaintiff. Mr. Beecher, for defendant.

DIXON, J. This was an action upon a policy of life insurance, providing for the payment of $500 on the death of Jacob Gluting. The policy declared that the company became bound, in consideration of the representations and agreements in the application for the policy; that the application was a part of the contract; and that, if the representations in the application were not true, the policy should be void. In the application Jacob Gluting, the applicant, declared and warranted that the representations and answers made therein were strictly and wholly true; that they should form the basis, and become part of the contract of insurance, (if one were issued,) and that any untrue answers should render the policy null and void. The application was made and bears date December 14, 1883, and contains the applicant's answers to questions, to the effect that he had never been sick of any disease, had not then and never had had consumption, disease of the lungs, or spitting of blood. The policy was issued and dated December 24, 1883. The legal effect of the foregoing stipulations was to render the statements in the application, with regard to the subject of insurance, warranties, and to annul the contract of insurance if any of those statements was shown to be untrue. Insurance Co. v. Day, 39 N. J. Law, 89; Carson v. Insurance Co., 43 N. J. Law, 300; Insurance Co. v. McTague, 49 N. J. Law, 587, 9 Atl. Rep. 766.

On the trial of the cause Dr. Williamson testified that he was a physician; that he had attended Jacob Gluting professionally in the years 1880 and 1881, during a period of several weeks, and had then prescribed for him, and that

Gluting was at that time ill with pleurisy, which lasted quite a good while. Dr. Donohue also testified that he was a physician; that he had attended Gluting professionally, beginning April 3, 1882, and ending August 9, 1883, and had on several occasions during that interval prescribed various medicines for him; that Gluting was at first ill with pleurisy, accompanied by a serious effusion in the right chest, and that later he told the witness that he was raising blood, and the witness prescribed for him a remedy to check bleeding from the lungs. It further appeared upon the trial that the plaintiff, widow of Jacob Gluting, had procured from Dr. Donohue a certificate that Jacob Gluting died of phthisis pulmonalis on February 27, 1886, and had served this upon the company as part of the proofs of death, in accordance with the terms of the policy. There was no testimony tending to contradict the facts indicated by the foregoing evidence. This condition of the proofs leaves no rational doubt of the falsity of the statements made in the application and warranted to be true. Hence the jury should have been directed to render a verdict for the defendant. The verdict for the plaintiff must be set aside.

STATE (BENEDICTINE SISTERS OF ELIZABETH, Prosecutors) v. CITY OF ELIZABETH et al.

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

1. CERTIORARI-TO REVIEW TAX ASSESSMENTS.

A certiorari will not be granted to review an assessment made by commissioners under the Martin act for alleged irregularities in the proceedings of the commissioners, or for undue or excessive assessment, or for alleged mistake in the manner of making the assessment.

2. SAME-EXEMPTION.

The writ allowed in this case on the ground that the relator is exempted by statute from any assessment; the relator will not be permitted to raise any other question. (Syllabus by the Court.)

On certiorari.

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

Alward & Parrot, for plaintiffs. Frank Bergen, for defendant.

VAN SYCKEL, J. This is an application for a writ of certiorari to review an assessment made against the relators upon their lands in the city of Elizabeth, by the commissioners appointed under the Martin act. The ground upon which the writ is asked for is that the said lands assessed are entitled to be wholly exempt from assessment by force of an act of the legislature of this state. The report of the commissioners was filed, duly advertised, and an opportunity given to all parties interested to be heard before the circuit court of Union county, and thereafter confirmed. The third section of the Martin act provides that the report of assessment when so confirmed shall be final and conclusive upon the said city, and upon all persons owning or having any interest in or lien upon the said lands, and against all persons whomsoever. The tenth section provides that no writ of certiorari shall be allowed to contest or set aside any tax or assessment fixed by said commissioners, unless the party applies for the writ within six months after the confirmation of the report, and gives bond as in said section provided. It was therefore contemplated by the draughtsman of this act that, in some instances, there should be a review by certiorari, but no beneficial effect can be given to the provision of the third section, that the report, when confirmed, shall be final and conclusive, if all alleged irregularities or imperfections in the proceedings of the commissioners can be reviewed in this court. The object of the Martin act was to produce a result that would be a finality, and end litigation, so far as it justly might do so. It is obvious, therefore, that the cases in which an ap

plication for a review can be favorably entertained must be very few in number. No relief can be had in this way against alleged irregularities in the proceedings of the commissioners, or against undue or excessive assessments, or against alleged mistakes in the manner of making the assessments. But we think that in a case like the one now submitted, where the averment is that the law exempts the relators absolutely from the imposition of any burden, an opportunity should be given them to establish their immunity. A writ of certiorari will be allowed in this case upon presentation of a bond in accordance with the requirement of the act. The only question the relators will be permitted to raise is that of exemption from liability to assessment.

STATE (BERRY, Prosecutor) v. DALY, Mayor of Rahway.
(Supreme Court of New Jersey. February 27, 1888.)

MUNICIPAL CORPORATIONS-DUTY OF MAYOR TO SIGN WARRANTS.

The mayor is under no legal duty to sign a warrant for the payment of a bill against the city, which is passed by the common council without being sworn to as required by the city charter.

(Syllabus by the Court.)

Application by Garret Berry for mandamus against John J. Daly, mayor of Rahway.

Argued November term, 1888, before Justices DEPUE, VAN SYCKEL, and KNAPP.

Garret Berry, for plaintiff. B. A. Vail, for defendant.

VAN SYCKEL, J. The relator holds a claim against the city of Rahway, which has been audited and approved by the common council of the city. A warrant was drawn by the city clerk requiring the city treasurer to pay the bill, and this warrant was presented to the mayor of the city for his signature, in accordance with the requirement of the city charter. The mayor refused to approve the bill, and thereupon this application for mandamus was made. An act passed April 4, 1871, (Revision 1371, pl. 70,) provides that it shall not be lawful for the common council of any city in this state to pay any claim out of the moneys of said city, unless the person claiming such moneys shall present a detailed bill of items verified by his affidavit that the same is correct. The case shows that the bill was properly itemized and sworn to before the city treasurer, but when it was passed by the common council, and when the mayor refused to sign it, the city treasurer had not signed the jurat. The jurat was afterwards signed, but the claim was not again presented to the common council. The action of the common council in passing was therefore irregular, and under the authority of Langstaff v. Daly, 49 N. J. Law, 403,8 Atl. Rep. 526, imposed no duty on the mayor to sign the warrant. A mandamus must therefore be refused.

STATE (WILLS et al., Prosecutors) v. LIPPINCOTT, Collector.

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

TAXATION-SECURED FUNDS-PRESENT VALUE.

A person to whom a sum of money secured by mortgage is payable at the death of one therein named, is subject to be assessed for it according to its present value, to be computed by the rules of the court of chancery.

(Syllabus by the Court.)

On certiorari to E. O. Lippincott, collector of Pemberton.

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

Chas. E. Merritt, for plaintiff. James P. Grigg, for defendant.

VAN SYCKEL, J. The question in this case is how a bond secured by mortgage upon lands payable at the death of a person therein named shall be assessed for taxation. This question was before this court in the case of Wyckoff v. Jones, 39 N. J. Law, 650, and more recently in Crispin v. Van Syckel, 49 N. J. Law, 366, 8 Atl. Rep. 121. The rule adopted is that the mortgagee shall be assessed only for the true value of his interest, to be ascertained by the table of mortality, upon expectancy of life of the person at whose death the principal is payable. This is the rule which must govern this case. computation will be made according to the rules of the court of chancery, and the assessment will stand against the relator for the amount so found, and as to the surplus it is set aside.

BARTLETT v. KEIM et al.

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

The

1. RECEIVER-OF RAILROAD-ACTION FOR INJURIES-DEFENSE-LIMITATION OF AC

TIONS.

A receiver of a railroad has the right to set up, as a defense against a suit for injuries sustained from negligence in running the trains by such receiver, the statute that requires suits for such negligence to be brought against railroads within two years.

2. SAME RUNNING ROAD-RECEIVER AGENT FOR COMPANY.

In running the roads a receiver represents or is the agent of the company. (Syllabus by the Court.)

On demurrer. Action by Henrietta Bartlett against George de B. Keim and Stephen A. Caldwell, as receivers of the Reading Railroad Company. The declaration stated that on the 17th of November, 1884, and for a long time before, the defendants, as such receivers, were in possession and had the management and control of a certain railroad, etc., which was engaged in carrying passengers, etc., from, etc., for hire and reward to them, the said defendants, as such receivers, etc. Then followed an averment that plaintiff purchased a ticket at a station, and, in going from that place to the train, the platform gave way, being out of order and in an unsafe condition, whereby the plaintiff was hurt, etc. The second plea alleged as a defense that the cause of action did not accrue within two years next before commencement of the suit. To this plea there was a demurrer.

Bedle, Muirheid & Magie, for demurrant.

B. Williamson, for defendant.

BEASLEY, C. J., (after stating the facts as above.) The first section of the act approved 25th March, 1881, is in these words, viz.: "That all actions hereafter accruing for injuries to persons caused by the wrongful act, neglect, or default of any railroad corporation owning or operating any railroad within this state, shall be commenced and sued within two years next after the cause of such actions shall have accrued, and not after." The defendant, in its second plea, has interposed this statutory provision as a bar to the action, and the plaintiff, by her demurrer, has raised the question whether it can have that efficacy. The counsel of the plaintiff, in vindication of the issue thus raised, contended that the statute above recited has no applicability to a suit brought against a receiver; the argument being that the provision, by its terms, has relevancy only to wrongful acts done by railroad companies, and that in this case the tort complained of was the tort of the receiver, and not that of the corporation. But, unless we are to mistake the shadow for the thing itself, this position is not tenable. This suit, in effect, is an effort to charge a suable wrong upon this railroad company. A judgement in this action would constitute an equitable claim upon the property of the corporation, and would not subject the receiver to any personal responsibility. It is the person whose property will be applied to the payment of the judgment who is the real defendant. These suits against receivers are anomalous in their nature; they

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