company adopted a resolution that every bridge rebuilt, and every new bridge, whether built by the company or by any other authority over the canal, should be of the height above stated. This regulation seems to us to be within the power delegated by the charter. Evidently, immovable bridges across the canal might be placed so near the surface of the water as to destroy the utility of the canal; and the legislature therefore intended to give to the corporation the right to prescribe their elevation, provided the rule adopted did not contravene the law of the land, and was not unreasonable. It is not suggested that any law is violated by the rule above mentioned, and we find nothing to indicate that its enforcement in the present instance would be unreasonable. The engineer employed by the defendant to prepare plans and specifications for the proposed bridge testifies that a proper bridge and proper approaches, giving the company the clearance specified, can easily be constructed, the only trouble being the raising of the grade of the street. The trouble in raising the grade of the street, which the engineer had in mind, and which has been urged in argument before us, is that the grade is fixed by the authorities of Jersey City, who may not consent to change it. But the defendants, empowered by law to build the bridge, are likewise empowered to construct the necessary approaches (Board of Freeholders v. Strader, 18 N. J. Law, 108), and can therefore, without the city's consent, alter the actual grade sufficiently to render access to the bridge safe and convenient. The resolution of the defendants to erect a bridge below the prescribed height is illegal, and must be set aside, with costs.

STATE v. BARR et al.

(Supreme Court of New Jersey. Nov. 8, 1897.) EMBEZZLEMENT BY EMPLOYE-INDICTMENT

1. An indictment charging the embezzlement of "certain moneys, to wit, the sum of three thousand dollars," sufficiently shows the value of the money.

2. Under section 57 of the criminal procedure act, an indictment charging the embezzlement of "certain moneys, to wit, the sum of three thousand dollars," sufficiently specifies the money embezzled.

3. In section 161 of the crimes act, the terms "employé or agent of any individual," on the one hand, and "employer," on the other, are correlative; so that, when the employés or agents of an individual embezzle his money, they embezzle the money of their employer, within the intendment of the law.

(Syllabus by the Court.)

Henry J. Barr and others were indicted for embezzlement. Motion to quash indictment. Overruled.

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

Alan H. Strong, for the motion. John S. Voorhees, opposed.

38 A.-52

DIXON, J. The first count of this indictment charges that the defendants, being the agents of Frank M. Oliver, did take and receive certain moneys, to wit, the sum of $3,000, belonging to said Oliver, with intent to defraud said Oliver thereof, and willfully, fraudulently, and unlawfully did retain and appropriate to their own use the said moneys. to wit, the said sum of $3,000, knowing the same to belong to said Oliver, with intent to defraud said Oliver. The objections urged against this count are (1) that it does not show the kind or value of the moneys referred to; (2) that it does not aver that Oliver, to whom the money belonged, was the master or employer of the defendants.

In support of the first objection, Stephens v. State, 53 N. J. Law, 245, 21 Atl. 1038, is cited. What was there said on this point was mere obiter dictum, and was intended only to call attention to the doctrine previously enunciated in State v. Stimson, 24 N. J. Law, 9. On referring to State v. Stimson it will be perceived that these rules were there recognized: (1) Where the larceny, embezzlement, or crimiral conversion of any article, whether coin or security or chattel, is charged, the article should be described with reasonable certainty. (2) The value of the article should be stated, unless it be a coin of the government, in which case, the value being established by law, the courts will take notice of the value. (3) The term "dollar" is an expression of value, as well as the name of a coin; and hence the word "dollars" is uncertain as a description, since it may be used to denote a number of cents or dimes as well as of dollars proper, but is certain as an expression of value. From this it seems to follow that the present indictment, in charging an appropriation of certain moneys, to wit, the sum of $3,000, properly alleged the value of the moneys, since the court must judicially notice that $3,000 in money, no matter of what coins, have the value of $3,000. In considering the sufficiency of the description of the articles embezzled, we are relieved by section 57 of the criminal procedure act, which declares "that, for preventing difficulties in the prosecution of offenders in any case of embezzlement *** where the offense shall relate to any money, * it shall be sufficient to allege the embezzlement or fraudulent application or disposition, to be of money, without specifying any particular coin." This enactment was not in existence when State v. Stimson was decided, and was not adverted to in Stephens v. State. Under it, the allegation in this indictment is sufficient.

On the second objection, that the count does not allege the money to have been the money of the master or employer of the defendants, the position of counsel appears to be that alleging the defendants to be the agents of Oliver is not equivalent to an allegation that Oliver was the master or employer of the defendants. We think otherwise. We understand the terms of the statute, "employé or

and "employer," on the other, to be correlative; so that, when the agents of an individual embezzle his money, they embezzle the money of their employer, within the intendment of the law.

In our judgment, the first count is good. This renders it unnecessary to decide on this motion as to the validity of the second count. But we may suggest that while it is clearly bad as a charge of conspiracy, for want of an averment of some act done "in execution of the agreement to effect the object thereof," it may perhaps be sustained as an indictment for obtaining a valuable thing by false pretenses; section 51 of the criminal procedure act helping out the defective statement of the ingredients of the offense, as they are set forth in section 171 of the crimes act. The motion to quash is denied. Let the indictment be sent to the Middlesex sessions for trial.

further the orderly progress of the original suit, or to obtain private relief in the execution of some order therein made, precedents might be cited for considering this proceeding as a part of that cause. Buck v. Buck, 60 Ill. 105; Andrew v. Andrew (Vt.) 20 Atl. 817. But when the purpose is, as in the present case, merely to punish a party for an alleged disregard of the authority of the court, the proceeding is quasi criminal, and entirely distinct from the suit out of which it sprang. Magennis v. Parkhurst, 4 N. J. Eq. 433; New Orleans v. Steamship Co., 20 Wall. 387; McDermott v. Clary, 107 Mass. 501; In re Dissosway, 91 N. Y. 235; Stafford v. Brown, 4 Paige, 360; Lester v. People (Ill. Sup.) 37 N. E. 1004; 4 Enc. Pl. & Prac. 771. For lack of evidence, therefore, the rule to show cause must be discharged. No costs are allowed.

STATE v. HUDSON COUNTY ELECTRIC

CO.

(Supreme Court of New Jersey. Nov. 8, 1897.) EVIDENCE-JUDICIAL NOTICE-FILES OF CERTIORARI SUIT.

Proceedings to punish a party for disobedience of the stay implied in a writ of certiorari do not form part of the certiorari suit, so as to authorize the court in those proceedings to take notice of the files in the certiorari suit without their being put in evidence in the contempt proceedings.

(Syllabus by the Court.)

Proceedings by the state against the Hudson County Electric Company. Heard on rule to show cause why defendant should not be punished for contempt, in disobeying a stay implied in a writ of certiorari which brought up for review an order of the mayor and council of the city of Bayonne. Rule discharged.

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

Mr. Van Buskirk, for the State. T. N. McCarter, Jr., for defendant.

DIXON, J. This matter comes before us on proofs taken under a rule requiring the Hudson County Electric Company to show cause why it should not be punished for contempt, in disobeying the stay implied in a writ of certiorari which brought up for review an ordinance of the mayor and council of the city of Bayonne. Among the proofs submitted we find neither the ordinance nor the writ, and without them it is impossible to determine whether the acts done were in violation of the stay or not. This omission probably results from an assumption by counsel prosecuting the rule that the present proceeding is part of the original suit, and that, therefore, the court would take judicial notice of the files in that suit without their being formally put in evidence here. But such an assumption is erroneous.

A resolution of a board of chosen freeholders appointing a lawyer as "attorney to the board" does not place him in "an office or position" which is within the protection of the veteran acts.

(Syllabus by the Court.)

Application by the state, on the relation of Norman L. Rowe, for a writ of mandamus compelling the board of chosen freeholders of Hudson county to restore the relator to his position as attorney to the respondent. Order discharged.

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

John A. Dennin, for relator. John Griffen, for respondent.

DIXON, J. On August 1, 1895, the board of chosen freeholders of Hudson county, by resolution, appointed Mr. Rowe (a member of the bar of this state) as "attorney to the board," without defining the term, his compensation to be at the rate of $1,800 per annum. The subsequent board having removed him, he, being an honorably discharged Union soldier, claims the protection of the veteran act of March 14, 1895 (3 Gen. St. p. 3702). But this statute applies only to offices, and positions which are analogous to offices in the permanence of the duties which pertain to them. Lewis v. Jersey City, 51 N. J. Law, 240, 17 Atl. 112; Stewart v. County Freeholders (N. J. Sup.; Nov. Term, 1897) 38 Atl. 842. There is no law creating or recognizing such an office as attorney to the board of chosen freeholders, and we think the whole force of this resolution was to employ Mr. Rowe as attorney of that particular board, so that, when the board expired by limitation of the law, his employ

ment as its attorney necessarily came to an end. His duties, not being otherwise defined, were only temporary in their nature, and therefore his post was not within the scope of the veteran acts. The rule for mandamus must be discharged.

MAYOR, ETC., OF CITY OF BAYONNE v. MORRIS et al.

(Supreme Court of New Jersey. Nov. 8, 1897.) MUNICIPAL CORPORATIONS-SEWER ASSESSMENTS— RIGHTS OF PROPERTY OWNERS.

1. Where a new sewer becomes necessary to furnish a proper outlet for an existing sewer, land assessed for the old sewer may be further assessed for the new one; and if, in levying such further assessment, the assessors regard both sewers as a unit, estimate the value of the benefit afforded by this unit, make due allowance for what had been charged for the old sewer in excess of the benefit derived from it, and levy only the residue, no injustice will be done.

2. Where property owners assessed for a public improvement in a city have paid the assessment, and afterwards it has been set aside, the city cannot levy upon them another assessment for the same improvement until it has refunded the money paid.

(Syllabus by the Court.)

Proceeding by the mayor and council of the city of Bayonne to assess benefits resulting from the construction of a sewer. Heard on motion to confirm report of commissioners appointed to make the assessment, which was resisted by William L. Morris and others. Assessment confirmed.

Argued June term, 1897, before LUDLOW, COLLINS, and DIXON, JJ.

T. F. Noonan, Jr., and Allen Benny, for city of Bayonne. De Witt Van Buskirk, for Conrad Miller and others. G. P. Smith, for executor of William H. Gunther.

DIXON, J. At the February term, 1896, commissioners were appointed by this court to make an assessment for benefits resulting from the construction of a sewer from Cottage street, through Fifth street and Ingram avenue, to the Kill Von Kull, in the city of Bayonne, in lieu of a former assessment which the court had set aside. The commissioners having presented their assessment to the court, the city, on due notice to all parties interested, now moves that the same be confirmed. Several years ago, a sewer known as the "Cottage and Fifth Street Sewer" was constructed, which emptied its sewage into a tidal creek opening in the Kil's. For this an assessment was levied by the city upon the property drained. After a while the discharge from the sewer created a nuisance around its outlet, and the court of chancery, on bill filed by an owner of land in the neighborhood, enjoined the city from permitting the discharge to continue. In consequence of this, it became necessary to extend the sewer, and the present sewer was accordingly built, to carry the sewage directly into the

Kills. In determining the benefits derived from this new sewer, therefore, two distinct conditions had to be borne in mind,-the property drained into the old sewer, which had been rendered almost useless by reason of the injunction of the court of chancery, and was now restored to efficiency by the new sewer; and the property not drained into the old sewer, but for which drainage was provided by the new one. The commissioners whose assessment is before us seem to have dealt with these two conditions equitably. So far as we have been able to discover the principle of their assessment, it is that, with regard to the first class of property, the old and the new sewers should be deemed a unit, the value of the benefit afforded by this unit should be estimated, and then, after making due allowance for what had been charged upon the property for the old sewer in excess of the benefit received from it, the residue should be levied in the present assessment. With regard to the second class of property, they considered simply the value of efficient sewerage now furnished, and assessed that value. We cannot suggest any fairer principle.

On behalf of one of the parties objecting to the assessment, it is claimed that, because the new sewer had to be large enough to carry off the output of the old sewer, his property has been charged much in excess of the reasonable cost of constructing a sewer which would have been adequate for his neighborhood. On examining the evidence, we think this claim is not sustained. The assessment is far below the cost of the sewer, and, of the two engineers testifying as to the probable cost of a sewer sufficient for that neighborhood only, one figures out a cost equal to the present assessment. The assessment should be confirmed. It appears that some of the property owners paid the former assessment against them before it was set aside, and that the city has not refunded the money, nor have the owners demanded it. We think such payment satisfied the claim which the city could lawfully make upon that property for this improvement, so long as the city retained the money, and that a further incumbrance should not now be sanctioned. It is therefore ordered that the present assessment against the lands so discharged shall be marked satisfied and canceled upon the record before the assessment is transmitted to the city for collection.

ASTOR v. HELLER, Sheriff. (Supreme Court of New Jersey. Nov. 8, 1897.) ACTION FOR FALSE RETURN OF SUMMONS-SUFFICIENCY OF DECLARATION.

1. The sheriff returned a summons duly served personally on the defendant. The declaration in the first count alleges such return, that thereupon the plaintiff entered judgment in the suit, and that the return of the sheriff was a false return. The second count is like the first, except that it is alleged that the sheriff, although he returned the summons served, failed and neglect

quite as much emphasis, that the companies may, by their own conduct, impose such burthens on themselves. If one of them chooses to build its track in such a mode as to unnecessarily make the use of a public road which it crosses greatly dangerous, I think such company by its own action must be held to have assumed the obligation of compensating the public for the increased danger by the use of additional safeguards. The reasonable and indispensable implication is that the railway is to be constructed so as not unnecessarily to interfere with the safe use of the public ways; and if a railroad, for its own convenience, curves its tracks as it leaves a deep cut, within a few feet of a highway, and also sees fit to put up buildings close along such track, and by these means, or either of them, heightening the danger in the use of such highway, it seems to me very clear that such company must be held to have taken upon itself the duty of averting such danger by the employment of every reasonable precaution within its power. On such occasions as this, or whenever the situation is embraced within the principle stated, the presence of a flagman, or some equivalent safeguard, can be demanded of the company. The rule is, as I understand it, that when the company has created extra danger it is bound to use extra precautions." In Railroad Co. v. Randel, 47 N. J. Law, 145, the court of errors and appeals unanimously reaffirmed the rule "that, where a railroad company has created extra dangers, it is bound to use extra precautions." This subject was again submitted for review to the court of errors and appeals in the case of Railroad Co. v. Leaman, reported in 54 N. J. Law, 202, 23 Atl. 691. Mr. Justice Reed, in delivering the opinion of the court, said: "Questions touching the duty of extra statutory care have arisen in cases where a crossing has been accused of possessing unusual features of danger. In such cases it has been held that the company is under a duty to maintain flagmen or gates at the crossing. But this duty only arises when this peculiarly dangerous feature is in consequence of the acts of the company itself in constructing its road or building." In support of this declaration he quotes the language used by the court in the previous case of Railroad Co. v. Matthews. In the recent case of Hackett v. Railroad Co., 58 N. J. Law, 4, 32 Atl. 265, the supreme court held the rule to be entirely settled by the cases before referred to. We express no opinion as to whether this rule of law should be modified in any respect, or as to whether it has been stated more broadly than the facts of the cases cited required. We are bound by previous adjudications, from which there can be a departure only through a review in the court of errors and appeals, or by legislative action. In this court the rule must be strictly adhered to and applied in reviewing the case in hand. In charging the jury on the trial below upon the request made by the defendant company as hereinbe

fore set forth, the court used the following language: "That is true, gentlemen, with this qualification: or unless the railroad had selected as a point of crossing the highway which in itself was highly dangerous. In other words, if a railroad company, in exercising its right under the charter of the state to select a place to cross the highway which was manifestly without any dangerous, or specially dangerous, conditions or circumstances attending it, the company would not be called upon to exercise the same amount of care as they would be if they had selected a place where it was manifestly more dangerous. The degree of care and prudence would be regulated by the particular locality which the railroad company had selected to cross the road. I think the jury will understand what I mean by that, -that different localities require a different amount of care and prudence. A crossing in a thickly-settled city would certainly require more care, and its approaches, than one in the country, where there wasn't so much travel. That, as matter of law, the company which constructed the railroad had the right to locate railroad tracks, and to select the methods of constructing and fix the grade, and make passage for the highway over and across the railroad at that grade, and the defendant had the right to occupy and use that railroad crossing so located and constructed for railroad purposes. The legislature gave that power to the company, and they had a right to exercise it." The defendant company had a right to have this request charged in the language, substantially, in which it was made, without having any qualification ingrafted upon it. The charge of the court was calculated to mislead the jury, to break the force of the rule, and to some extent to deprive the defendant of the benefit of it. No other error is found in the trial below, but in this respect there was error, for which the judgment should be reversed.

STATE (LIPPINCOTT, Prosecutor) v. FEL

TON. (Supreme Court of New Jersey. Nov. 9, 1897.) ELECTIONS-RECOUNT-CERTIFICATE.

1. In a recount of ballots under section 13 of the act of March 25, 1895 (2 Gen. St. p. 1367, par. 369), the board of election should count as many ballots as there are names of apparent voters on the poll book, even though the certificate of the whole number of votes received has not been made by the election officers, as required by section 42 of the election act.

2. In case of a partial recount under the above section, the justice ordering the same should at the conclusion thereof make a certificate showing the whole number of votes for each person for the office in dispute, as exhibited by the original certificate of the canvassers corrected by the recount, so that his certificate may take the place of the original certificate as prima facie title to the office in dispute.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Freedo C. Lippincott, against George C.