an established rule that judgment will be given against the party whose pleading is first defective in substance. 1 Chit. Pl. 668. It is insisted on behalf of the defendant that the first substantial defect appears in the plaintiff's replication; and the contention is that, under the fourth section of our statute of limitations, a lunatic, after the expiration of six years, cannot maintain an action on simple contract until she has been restored to sound mind. The language of the statute is appealed to in support of this contention. It is as follows: "That if any person, or persons, who is, are, or shall be entitled to any of the actions specified in the three preceding sections of this act, is, are, or shall be, at the time of any such cause of action accruing, within the age of twenty-one years or insane, that then such person or persons shall be at liberty to bring the said action so as he, she, or they institute or take the same within such time as is before limited, after his, her or their coming to or being of full age, or of sane memory, as by other person or persons having no such impediment might have done." 2 Gen. St. p. 1975, § 11, subsec. 4. It seems to me clear that the effect of this provision is to stay the running of the statute while the disabilities mentioned therein continue to exist, and that a party suffering from any of such disabilities may maintain an action at any time during their continuance, or within six years afterwards. But conceding, for the sake of argument, that it is doubtful from the language of this statutory provision whether it permits an infant or a lunatic to maintain an action after the expiration of six years unless the disability under which he rests has been removed, the result is the same. This legislative provision has been a part of the statute law of our state since the year 1799 (Patterson's Laws, 353), and its language remains to-day as when it was first enacted, except that it then included within its protection femes covert, as well as infants and lunatics. It is almost a transcript of the proviso of the English statute of 21 Jac. I. c. 16, the only practical difference being that the latter act applies also to persons imprisoned and beyond the seas. This being so, the construction to be put upon it depends upon the construction put upon the English statute by the courts of that country prior to its adoption into our own system of laws; for it is a well-settled rule that where a statute of doubtful import has been adopted in one country from the statutes of another, after its language has been judicially construed, it will be presumed that the interpretation adopted in the country from which it was taken has been accepted, as well as the words. Gray's Lessees v. Askew, 3 Ohio, 466; Adams v. Field, 21 Vt. 256; Rutland v. Mendon, 1 Pick. 154; Langdon v. Applegate, 5 Ind. 327; Rigg v. Wilton, 13 Ill. 15. An examination of the English reports will show that at least twice before the year 1799 was this provision of the statute of 21 Jac. I. c. 16, judicially construed by the courts of that country-First, by the court of king's bench, in the twenty-first year of the reign of Charles the Second, in the case of Chandler v. Vilett, 2 Saund. 120; and, again, by the court of common pleas, in the year 1770, in the case of Strithorst v. Graeme, 3 Wils. 145. In the case first referred to, suit was brought by an infant to recover a debt. The defendant pleaded the statute of limitations, to which the plaintiff replied that at the time of the promises, and also at the time of bringing suit, he had been, and still was, an infant within the age of 21 years. To this replication the defendant demurred. In the report of the case in Saunders, it is stated that "it was said [on the argument] that the infant should have waited until his full age, because the six years were elapsed during his infancy, and therefore he could only pursue his action according to the words of the saving clause of the act, which is 'in six years after his full age'; but this was not regarded by the court." In the second case cited, the plaintiff replied to a plea of the statute that he was abroad at the time of the making of the several promises in the declaration, viz. at A., in the kingdom of S., and that he had ever since been, and still was, abroad, out of the kingdom. The replication was demurred to. In disposing of the demurrer, the court say: "If the plaintiff is a foreigner (as it seems he is), and doth not come to England in fifty years, he still hath six years after his coming to England to bring his action; and, if he never comes to England himself, he has always a right of action while he lives abroad, and so have his executors or administrators after his death. An infant may sue before he comes of age if he pleases; but, if he does not, he has six years after he comes of age to bring his action. While any of the disabilities mentioned in the statute of limitations continue, the party may, but is not obliged to, commence his action. The statute does not run while any of those disabilities continue." In view of the rule of statutory construction to which I have referred, we must accept these cases as settling the meaning to be given to that part of the fourth section of our statute of limitations which has been appealed to by the defendant. The attack upon the plaintiff's replication cannot be successfully maintained. It is also insisted upon behalf of the defendant that the plaintiff's surrejoinder is demurrable, but, before considering that pleading, it is necessary to scrutinize the defendant's rejoinder, as that follows next in order after the replication. And, upon doing so, we find it fatally defective, in that the facts set forth in it constitute no answer to the plaintiff's replication. The situation developed by the pleadings is this: The defendant, as an aswer to the plaintiff's claim, says that the supposed causes of action men tioned in the declaration did not accrue to the plaintiff within six years next before the commencement of the suit. To this the plaintiff replies that she ought not to be barred by the lapse of time, because, at the time her cause of action accrued, she was, and ever since has been, insane. It will be perceived that the only issue raised by this pleading was whether the plaintiff's insanity was a legal justification for her neglect to commence her action within six years. The defendant, in her rejoinder, instead of setting up facts to show that the lapse of six years after her cause of action accrued ought to bar the plaintiff notwithstanding her insanity, sets up that prior to the commencement of the suit the plaintiff had been judicially declared a lunatic; that one James Scott had been appointed her committee; that the causes of action mentioned in the replication (and they are the same as those mentioned in the declaration) accrued to him as such committee; and that they none of them accrued to the plaintiff. These facts are a denial of the existence of the causes of action set out in the plaintiff's declaration. They can be taken advantage of under the plea of general issue, but afford no ground for holding that the lunacy of the plaintiff, when set up as a bar to a plea of the statute of limitations, is not a good answer thereto. The rejoinder departs from the issue tendered by the plea of "actio non accrevit infra sex annos," and must therefore be declared bad upon this demurrer. The plaintiff is entitled to judgment on the demurrer. STATE (HAND, Prosecutor) v. HOWELL. (Supreme Court of New Jersey. Nov. 8, 1897.) CONVERSION BY SHERIFF-SUFFICIENCY OF EVIDENCE-CLAIM BY THIRD PERSON-NOTICE -ADMISSIONS-UNANSWERED LETTER. 1. To hold an officer liable to a landlord, under section 4, 2 Gen. St. p. 1915, for sale on the demised premises, or removal therefrom, of the tenant's chattels taken in execution, without paying rent then due, proof that he had notice that rent was due is necessary, but such notice need not be in writing. 2. Failure to reply to a letter not sent in course of correspondence is not to be taken as an admission of the truth of its contents. Letters are not, in this respect, on the plane of oral declarations received in silence. Such an unanswered letter is not competent evidence against one to whom it is sent, except to prove notice or demand. (Syllabus by the Court.) Certiorari to court of common pleas, Mercer county; Woodruff, Judge. Certiorari by the state, on the prosecution of Robert E. Hand, against William G. Howell, to review a judgment against the prosecutor rendered on appeal from a district court. Reversed, and venire de novo awarded. Hand was sheriff of the county of Cape May, and as such, at the suit of Hubbard & Co., took in execution the goods and chattels of one Elliott, a tenant of Howell, and on May | 24, 1894, on the demised premises, sold the same. On June 8, 1894, he paid to the plaintiff in execution the proceeds of such sale. Howell sues for eight months' rent due at the time of the sale. At the trial, Howell testified that on May 23, 1894, he posted, prepaid. at Morrisville, Pa., a letter, directed to the sheriff of Cape May county, Cape May Court House, N. J., containing notice of his claim for rent; that on the envelope was printed his business card, and a request for a return of the letter if not delivered within five days; and that the letter had never been returned. He further testified that on the same day he sent to the same address a telegram of like purport. Hand testified that he had never received either the letter or the telegram. Elliott testified that on the day of the sale the sheriff asked him if there was rent due, and that he replied that there was. Hand testified that Elliott told him that no rent was due, and, further, that he had no knowledge or information when he paid over the proceeds of sale that any rent was due. Howell had judgment on verdict, which Hand now attacks as erroneous, for various reasons. The following only need be considered: (1)) The court charged the jury that Howell was entitled to a verdict if Hand, before paying over the proceeds of execution, received notice in any way that the rent was due. (2) The court refused to charge, as requested in behalf of Hand, as follows: "The mailing of a letter, directed and properly superscribed with the defendant's proper address, raises only a presumption that it was received; and the defendant's positive denial that any such letter was received rebuts the presumption, and disproves, therefore, its receipt." (3) The court admitted in evidence proof of the contents of a letter from Howell to Hand, written and received December 22, 1894, as follows: "When may I expect a settlement of my claim in the Elliott matter, in which notice was served on you in May last?" to which letter Hand sent no response. Argued June term, 1897, before DIXON, LUDLOW, and COLLINS, JJ. Barton & Dawes, for prosecutor. Carroll Robbins, for defendant. Lia COLLINS, J. (after stating the facts). bility of the sheriff in this case must rest on the "act concerning landlords and tenants" (2 Gen. St. p. 1915). Section 4 of that act is the descendant of the statute of 8 Anne, c. 14, which forbade the removal from leased premises of the tenant's goods taken in execution, unless rent to the time of the levy-but not exceeding for one year-should be first paid. Our act carries the claim for rent down to the time of removal, and extends to other process. If a sheriff or other officer ignores this statute, he is liable for such rent; but, in order to hold him, it is necessary that he shall have notice that rent is due. The English courts hold that such notice may be given after removal, so long as the goods or the proceeds of sale remain in the officer's hands. Arnitt v. Garnett, 3 Barn. & Ald. 440; Watson, Sheriffs, 193. But in this state it was held that the notice must be before removal. Ayres v. Johnson, 7 N. J. Law, 119; Peacock v. Hammitt, 15 N. J. Law, 165. In Ryerson v. Quackenbush, 26 N. J. Law, 236, it was decided that the distress act was to be considered as in pari materia with the other statute; and this court construed a sale by the officer upon the demised premises to be a removal, within the terms of the law. The charge of the court in this case, therefore, on the subject of notice, was not correct; but it did the prosecutor no harm, as the only notice of which competent proof was offered was before or at the sale. The point of objection to the charge was not that it permitted notice up to time of payment, but because it was not limited to a notice in writing. Section 5 of the act does require notice in writing, but that section, enacted after Ayres v. Johnson, supra, and doubtless because of that decision, is only applicable to cases where there has been an actual removal by the officer, from the demised premises, of a tenant's goods, before sale, and before notice of rent due. The notice, under section 5, must be given within 10 days after such removal. Under the statute of Anne, and section 4 of our act, formal notice is not necessary. In one case the court of king's bench held that notice might be inferred from the sheriff's conduct. Andrews v. Dixon, 3 Barn. & Ald. 645. Credible information sufficient to put the officer on inquiry seems to be all that is requisite. Tayl. Landl. & T. $598. I would not reverse on the first ground of objection. stroyed the presumption, and left the plaintiffs without any proof of service. It only raises a presumption of service, which is neutralized and destroyed by another, to the contrary, of equal weight; and such other is found in the affidavit of the defendant's attorney. The plaintiff, in transmitting his notice by mail, takes on himself the entire risk of delay or miscarriage, and cannot require the defendant to bear the slightest portion of it. 'Qui sentit commodum sentire debet et onus."" Of course, if there is such a presumption as is assumed, it is one of fact for the jury; and both the presumption and the evidence to repel it stand, as does all evidence, subject to credibility and other incidents. We do not decide that it was error to refuse the request as framed, but, as there must be a new trial in this case, we think it wise to call attention to the foregoing deliverance in this court. It has not been criticised in any later decision. The third ground of objection is well taken. The letter of December 22, 1894, could have had no relevancy in the case, except to work an implied admission of notice in May of the claim for rent. It was not legal evidence. Oral declarations made to one sought to be charged thereby may in some cases be considered as admitted by silence, but the rule is otherwise as to letters. The recipient is not called on to reply, or be considered as admitting what is written. The following decisions are in point, and we have been referred to no case holding otherwise: Fairlie v. Denton, 3 Car. & P. 103; Richards v. Frankum, 9 Car. & P. 221; Draper v. Crofts, 15 Mees. & W. 166; Gaskill v. Skene, 14 Q. B. 664; Bank v. Coumbe, 47 Mich. 358, 365, 11 N. W. 196; Bank v. Delafield, 126 N. Y. 410, 27 N. E. 797, and earlier New York cases therein cited; Hill v. Pratt, 29 Vt. 119. An unanswered letter, not received in the course of a correspondence, is not evidence at all against the recipient, except to prove notice or demand. It was argued in this case that the letter of December 22, 1894, might stand on this footing; it being claimed that when it was offered the date of paying over the proceeds of execution had not been proved. This we think immaterial, and we do not so read the state of the case. It is expressly stated as one ground of objection to the letter that it was written after the money had been paid. The judgment of the common pleas is reversed, that a venire de novo may be awarded. Costs will abide the event. The second is more serious. In McCourry v. Suydam, 10 N. J. Law, 245, error was assigned for ordering on a trial in a court of common pleas against the defendant's objection and exception. The court reversed the judgment on other grounds, holding that the ordering on of a trial was not subject to review; but it was thought important that an opinion on the subject should be expressed. It appeared that when the case was moved in the pleas there was read an affidavit of the posting in due season, by plaintiff's attorney to defendant's attorney, of a letter containing notice of trial. There was then read an affidavit of defendant's attorney that he had not received the letter, or any notice of trial in the cause. The court ordered the trial to come on, and in this court it was said by Ewing, C. J.: "In making this order the court erred. The plaintiffs were not entitled to bring on the trial. Proof of placing in the post office a letter containing a notice of trial, directed to the defendant's attorney residing in a post et al. town, in due season to be received the legal (Supreme Court of New Jersey. Nov. 8, 1897.) period prior to the day of trial, would, if SUPPORT OF GRANDCHILDREN-"POOR PERSON"made in the presence of the defendant's atORDER FOR RELIEF AND MAINTENANCE. torney, and until repelled, raise a presumption, 1. An infant who has a vested remainder in a and stand for proof, of the service of notice. large estate, to be enjoyed at the death of one in possession, is not a "poor person," within secThe affidavit of the defendant's attorney that tion 30, p. 2510, 2 Gen. St., charging upon cerhe had not received the notice entirely detain relatives, if of sufficient ability, the relief STATE (MEEKER, Prosecutrix) v. MEEKER and maintenance of poor persons not able to work. 2. An order for relief and maintenance under said statute must declare and adjudge the existence of the prescribed conditions, must direct the manner of relief and maintenance (not payment of a fixed sum), and must not embrace several poor persons in a joint provision. (Syllabus by the Court.) Certiorari to court of general quarter sessions, Essex county. Certiorari by the state, on the prosecution of A. P. Meeker, against Irene H. Meeker, guardian of Henry L. Meeker and others, to review an order directing the prosecutrix to pay to said guardian $10 per week for the equal relief and maintenance of three infant wards of said guardian, grandchildren of said prosecutor. Order set aside. Argued June term, 1897, before DIXON, LUDLOW, and COLLINS, JJ. The wife was appointed executrix, with power of sale. The ultimate disposition of the estate was thus directed: "Fifth. At the death of my said wife, I give, devise, and bequeath all the rest and residue of my estate to my children then living, to be equally divided between them, the child or children of any deceased child to take the parent's share, if any of my said children shall be then dead, leaving children." The testator, at the time of publishing this will, had four children. One of them, William S. Meeker, Jr., the father of said infants, died in 1890. The testator died in 1892. Another child has since died, leaving issue. Testator's living children have, under the will, only a contingent remainder, but the estate of the grandchildren is a vested remainder. Price v. Sisson, 13 N. J. Eq. 168, affirmed 17 N. J. Eq. 475. So far as the estate is in person George F. Tuttle, for prosecutrix. Joseph alty, the interest of the infants may be asA. Beecher, for defendants. COLLINS, J. The writ in this case brings up an order of the court of general quarter sessions of the peace of the county of Essex, directing Anna P. Meeker to pay to the guardian of her three infant grandchildren, or to the overseer of the poor of the city of Newark, $10 per week for the equal relief and maintenance of said grandchildren. The infants are the children of a deceased son of the prosecutrix, who is a widow with a large income. The only foundation for the order is section 30 of the "Act for the settlement and relief of the poor" (2 Gen. St. p. 2510), which charges upon the grandmother, among various relatives (when of sufficient ability), of every poor person not able to work the relief and maintenance of such poor person, in such manner as the court of quarter sessions shall direct. There are several techThere are several technical objections to this order. There is no adjudication that the infants are unable to work. The petition admits and the proofs show that one of them does work, at three dollars weekly wages. The order does not provide for relief and maintenance, but directs payment arbitrarily to the guardian or the overseer of the poor. This is not authorized by the statute. Ackerman v. Ackerman, 55 N. J. Law, 422, 27 Atl. 807. The order is joint as to all the infants. It should be several for each, by the plain words of the law. It may be doubtful, however, if the causes assigned for reversal cover these defects. On the merits, the prosecutrix must prevail. The infants are not poor persons. They have a vested remainder in an undivided fourth part of the residuary estate of their grandfather, William S. Meeker, deceased, which estate is admittedly worth upwards of $400,000. The grandfather's will was published in 1880. By its fourth clause the residuary estate was given to the testator's wife, the said Anna P. Meeker, for life, for the support of herself and his children. signed by their guardian with the assent of a court of competent jurisdiction. So far as it is in realty, there is statutory authority to make it available. The orphans' court, where necessary for maintenance or education of infants, may order a sale of land of or to which they are seised or entitled (2 Gen. St. p. 1712); and Chancellor Zabriskie seems to have entertained no doubt of his power under the general act for sale of infants' lands (2 Gen. St. p. 1712) to order sale of an estate in remainder, even in a case where he thought the estate might be defeated by death of the infants before the life tenant. In re Heaton, 21 N. J. Eq. 221. True, in that case he refused to order a sale because of probable sacrifice owing to the supposed cloud on the title and the uncertainty of the duration of the life estate. There is, of course, that uncertainty here, the life tenant being only 65 years of age; and there is the further complication of an outstanding power of sale. Still, where it is a question of such a sacrifice, or an alternative of leaving the infants deprived of the necessities of life, it is plain that the judicial determination must be in favor of some disposition of their interest in a part of the lands, at least. The order of the sessions will be set aside, but without costs. STATE (MITTAG, Prosecutor) v. MAYOR, ETC., OF BOROUGH OF PARK RIDGE. (Supreme Court of New Jersey. Nov. 8, 1897.) MUNICIPAL CORPORATIONS-RESOLUTIONS-APPROVAL BY MAYOR ELECTION TO AUTHORIZE BONDS-VALIDITY-STATUTES-REPEAL. 1. The supplement of 1888 (1 Gen. St. p. 196) to the general borough act of 1878 (1 Gen. St. p. 179) authorized the submission to the legal voters of any borough formed under that act of a resolution authorizing an issue of bonds, but enacted that the mayor and council should first determine that it was expedient to issue such bonds, and, in case of calling a special election for the vote, should cause the borough clerk to give 20 days' notice thereof. Held: (1) That a resolution of the council that it was expedient to issue the bonds tended to pecuniarily obligate | polls open from 6 a. m. to 7 p. m., at Foresthe borough, and therefore, under section 4 of its organic law, was required to be presented to the mayor for approval or veto; (2) that an election held less than 20 days after such a resolution became operative was nugatory, although 20 days' notice thereof was given by the borough clerk. 2. Said supplement was superseded by the "act concerning boroughs," of March 28, 1892 (1 Gen. St. p. 275), so far as applicable to the issue of bonds for street improvements. 3. "A general act relating to boroughs" (Revision 1897; P. L. 285) supersedes all pre-existing borough laws, as to future bond issues; and therefore corporate action, taken after it was in effect, looking towards a bond issue not justified by that law, is illegal. (Syllabus by the Court.) Certiorari by the state, on the prosecution of Frank O. Mittag, against the mayor and council of the borough of Park Ridge, to review proceedings of defendants for an issue of bonds for the purpose of macadamizing streets. Proceedings annulled. Argued June term, 1897, before DIXON, LUDLOW, and COLLINS, JJ. David Harvey, Jr., for prosecutor. Frank P. McDermott, for defendant. COLLINS, J. The prosecutor, a taxpayer of the borough of Park Ridge, attacks the validity of proceedings taken under the supplement of March 23, 1888 (1 Gen. St. p. 197, pl. 114), to the act for the formation of borough governments, approved April 5, 1878 (1 Gen. St. p. 179). Said supplement permits the issue of borough bonds for divers purposes, including the macadamizing of streets, roads, and avenues. It provides that on presentation of a petition of one-fourth of the legal voters of the borough, requesting an issue of bonds, and specifying their amount and object, the mayor and council shall fix a time (not less than 20 days thereafter) and a place for its consideration, and shall cause the clerk to give notice thereof. If the mayor and council shall then determine that it is expedient to issue such bonds, they shall cause to be submitted to the legal voters of the borough, at the annual election, or at a special election, a resolution of authority therefor, and, if the vote is to be taken at a special election, shall cause the clerk to give at least 20 days' notice of such election. Park Ridge is a borough formed under said act of 1878. Petition for such a bond issue was on April 5, 1897, presented to its council, which body, by resolution, fixed April 26, 1897, for consideration thereof, and directed the necessary notice. The mayor approved the resolution April 9, 1897, before which date, however, the clerk had published notice of the meeting. On April 26, 1897, the council adopted the following resolutions: "Resolved, that it be and is expedient to issue said bonds as prayed for in said petition; and be it further resolved, that the following resolution be submitted to the legal voters at a special election to be held in said borough on Tuesday, May 18th, 1897, ter's Hall, Park Ridge; that is to say: 'Resolved, that the bonds of the mayor and council of the borough of Park Ridge, to the amount of ten thousand dollars, for macadamizing the streets, roads, and avenues in said borough, be issued, payable in not less than ten years, or more than thirty years, as may be most advantageous to procure the lowest rates of interest.'" The mayor ap On proved these resolutions April 30, 1897. April 27, 1897, the borough clerk published notice of the special election, which was held, and at it a majority of votes was cast in favor of the issuing of the bonds. By section 4 of the organic law of the borough (1 Gen. St. p. 186, pl. 38), it is provided "that every ordinance passed by the council and every resolution of such council appropriating, or tending in any way to pecuniarily obligate the borough ** * shall, before the same or either of them take effect and within five days after the passage thereof (Sundays excepted) be presented to the mayor; if he approves it he shall sign it, if not he shall return the same within seven days (Sundays excepted) after its receipt by him, to the borough clerk, with his objections thereto in writing, and the council shall, at their next regular meeting, cause the objections to be entered at length on their minutes, and proceed to reconsider the same, and if two-thirds of all the members of the council shall vote to pass the same it shall take effect; if such ordinance or resolution shall not be so returned by the mayor within seven days (Sundays excepted) after he receives it, then it shall take effect the same as if he shall have signed it: provided, that if any resolution or bill shall contain more than one distinct section, clause or item the mayor may approve one or more thereof and veto the rest." If either of the resolutions above recited tended in any way to pecuniarily obligate the borough, its presentation to the mayor for approval or veto was essential, and until the conditions of the statute were fulfilled it remained inoperative. Booth v. City of Bayonne, 56 N. J. Law, 268, 28 Atl. 381. Our conclusion is that the determination made by the first resolution of April 26, 1897, did tend to pecuniarily obligate the borough. It was the first step towards obligation, and a sine qua non for the issue of the bonds. As above stated, the mayor's approval was on April 30, 1897, and therefore the notice of the special election published before that day was abortive; and, as there was less than 20 days' time between such approval and the date of the election, no legal notice thereof could be given. The requirement of notice of a special election is mandatory. Morgan v. Gloucester City, 44 N. J. Law, 137. The election, therefore, of May 18, 1897, was nugatory. Probably the resolution of April 5, 1897, being a mere designation of a meeting required by law to be held, did not need |