punish abusive publications as contempts. We decline to weigh the pro and con Of this argument in performing our duty as an appellate tribunal. Although, by the statute, (P. L. 1884, p. 219,) we are to rehear the case of the appellant both upon the law and the facts, and to give such judgment as shall seem to be lawful and just, yet we are to do this in review of a judgment already rendered in the court below for the protection Of its own dignity, peace, and good order; and if, in such judgment, there is found, according to the law and the facts, nothing unlawful or unjust, it should be affirmed, whether in our individual opinions it was politic 0r impolitic to set the machinery Of prosecution in motion.

We consider the judgment of the oyer both legal and just, and therefore it is affirmed.

MUNICIPAL CORPORATIONS—CHARTER 0F GLOUCESTER CITY, N. J., § 8, P. L. 1868, PAGE 106—ORDINANCES—POWER TO PASS.

Section 8 of the charter of Gloucester city, N. J., (Laws 1868, p. 106) gives to the common council the power to pass ordinances for appointing watchmen, constables, and an additional police force, and prescribing their powers and duties. They have never passed such ordinance. IIeld, that the prosecutor, who was appointed a policeman by resolution, is not entitled to notice of removal and hearing, under act of March 25, 1885, respecting police departments of cities, and regulating the tenure and terms of office.

(Syllabus by the Court.)

On certiorari. Facts appear in the opinion.
H. A. Drake, for prosecutor.
James E. Hays, for defendants.

SOUDDER, J. At a meeting of the common council of Gloucester city, held March 25, 1884, a resolution was passed that the prosecutor and three others be elected policemen for the ensuing year. On March 24, 1885, a like resolution was passed. On August 13, 1885, a resolution was passed changing the police force, and another person was appointed policeman instead of the prosecutor. He had no notice or hearing on such removal. He claims, in this suit, that under the “Act respecting police departments of cities, and regulating the tenure and terms of office of ofificers and men employed in said departments,” passed March 25, 1885, he could only be removed for just cause, on notice and hearing, as provided in section 5 of that act. This is undoubtedly his right, if he is within the provisions Of this act. Fitzgerald v. New Brunswick, 47 N. J. Law, 479; S. C. 1 Atl. Rep. 496.

By section 8 of the charter of Gloucester City, (Laws 1868, p. 106,) among the powers given, it is enacted “that it shall and may be lawful for the common council of said city, or a quorum thereof, in council convened, to pass all ordinances for appointing watchmen, constables, and an additional police, and prescribing their powers and duties.” The common council never have passed an ordinance for this purpose. The resolutions, therefore, by which the prosecutor was appointed a policeman, were irregular. and not within the power granted by the charter. The power is conferred to appoint; but the manner in which that power shall be exercised is prescribed, and the consequence is that such mode must be pursued. Cross v. Mayor quorristown, 18 N. J. Eq. 305—309; -R'ldgway v. Miehellon, 42 N. J. Law, 405. Being thus appointed without authority and irregularly, he was removable at the discretion Of council, unless protected by the act Of March 25, 1885. By the terms of that act those within its protection are officers and men employed by municipal authority in the police department of any city. Where there is no municipal authority shown for their employment, and there is no police department legally constituted, the act does not apply.

There is no remedy given by this statute for the removal of the prosecutor, and the writ will be dismissed, with costs. ‘

STATE (BERRYMAN, Prosecutor) v. LITTLE.
(Supreme Court of New Jersey. November 13, 1886.)

1. DRAINs—PROCEEDINcs—NOTICE—To WHOM GIVEN.

In proceedings to drain lands under the statute, where a married woman’s land has been sold under foreclosure. and conveyed, without Change of possession, notice to the owner, and to the husband, who occupies the land with his wife, under arrangement for rcconveyance, is sufficient.

2. SAME—RIGHT To QUEsTION.

The prosecutor, having no legal title or exclusive possession of the land, is not entitled to a writ to question the legality of the proceedings to drain lands.

3. SAME—IRREGULARITIES—WAIVER—DELAYS AND ACQUIEsCENCE. Delay and acquiescence, Inducmg expen diture of moneys by others 111 works of a quasi public nature. waive irregularities.

(Syllabus by the Court.)

On cert'iorari, in matter of drainage of lands in the county of Bergen. Opinion gives the facts.

Chas. H. Voorht's, for prosecutor.

W. M. Johnson, for defendant.

SCUDDER, J. Proceedings were taken by the defendant, Julia W. Little, under the “Act to enable the owners of swamp or meadow ground to drain the same,” etc., (Revision 652,) to cut, make, clear out, and keep open sufficient ditches or drains in and through lands adjoining or near to her lands in Midland township, Bergen county. The certificate and return made by the surveyors of highways and chosen freeholders show that a portion of the ditch or drain in controversy was allotted to the Mutual Life Insurance Company of New York, being the part of the ditch or drain which is embraced within the limits of the property of the company. These lands formerly belonged to the prosecutor, Jane W. Berryman, and were occupied by her and her husband, William H. Berryman. Prior to these proceedings for drainage, the Mutual Life Insurance Company of New York, holding a mortgage on said lands, foreclosed the same, and at the sale under execution became the purchasers and owners. There was no change of possession after the sale, and the prosecutor claims that she remained on the property under some verbal arrangement for a repurchase and reconveyance of the property.

Her first reason assigned for setting aside the return and proceedings is that she was not given notice as required by law. It appears, in the return and proofs, that legal notice was served on the Mutual Life Insurance Company of New York and William H. Berryman, who is described as being in possession of the lands of said company. The evidence taken under this writ also shows that the husband appeared in answer to such notice, and contested the proceedings before the surveyors and freeholders, and that the prosecutor had knowledge of his acts in the attempt to prevent the charge upon the lands. She was not injured in fact by want of notice, nor has she been injured in law; for notice to the husband, who was actually in possession of the property, without anything appearing of record, or by other notification, that she had any separate or exclusive interest in the land, was suflicient for the purpose of this statute, and between these parties.

The other reasons relate merely to the form of the return, and will not be considered, because the prosecutor has not shown that she is entitled to this writ. Her alleged verbal agreement with the company was, as her husband testifies, made with an agent of the company, whose authority to make such arrangement, if it were otherwise available in these proceedings at law, does not appear. As she has shown no ownership in the lands through which the ditch or drain runs, or possession, sepa— rate from her husband, therein, she has no right to the writ to contest the return in dispute. There is another sufficient reason for dismissing the writ, in the delay and acquiescence of the prosecutor and her husband. The return of the surveyors and freeholders is dated June 25, 1883, and this writ is tested March 31, 1886. Since the date of the return, Mr. Berryman, by agreement with the Mutual Life Insurance Company, has undertaken to make the ditch through their land according to the map and profile furnished to him by the surveyors employed by the surveyors and freeholders, and his wife and the company have paid part of the expenses thus incurred. The ditching under the return was begun in February, 1884, and was completed, excepting through the land of the insurance company, where it was delayed by the act of Mr. Berryman. In the latter part of December, 1884, or the first of 1885, the ditch was dug from the road, by the bridge, through the Berryman property, down to Voorhis’ line. If these facts had appeared in the application for this writ, the allowance would not have been made, because of the delay in prosecution; for where delay has permitted the expenditure of money in the furtherance of enterprises of a quasi public nature, or when, under cover of a proceeding of a public nature, individuals have been induced by the delay to expend their own money or labor, the writ will be dismissed. There must be reasonable diligence shown in the prosecution where other interests are involved in the delay, and this principle has been applied to proceedings under the drainage act. Haines v. Campion, 18 N. J. Law, 49; State v. Blake, 35 N. J. Law, 208; Bowne v. Logan, 43 N. J. Law, 421. The writ will be dismissed, with costs.

1. EVIDENCE—HANDWRITme—SIGNATURE.

The testimony of a person in regard to his own signature is not evidence of a grade superior to the testimony of a witness acquainted with the handwriting of such person.

2. SAME—PARTICULAR CAsE.

The defendant in a criminal case produced written complaints, and, being a witness, testified that such complaints were signed by the prosecutor in his presence. The court refused to receive the same thus proved, and required the prosecutor in such complaints to be called to prove his own signature. Such prosecutor was produced, and was a witness hostile to the defense. Held, such judicial action was error, and entitled the defendant to a reversal of the judgment.

8. EXCEPTIONS—BILL AMENDABLE.
A bill of exceptions is amendable.

(Syllabus by the Court.)

On error to quarter sessions of Middlesex. The indictment charged a justice of the peace with having obtained money of one Margaret McCarten by falsely pretending that “three several complaints in writing, under oath, had been filed before him, charging her with having sold to sundry persOns intoxicating drinks, she having no license,--such complaints being the commencement of prosecutions to recover certain penalties denounced by the city ordinances,—and that the said justice obtained from the said Margaret the penalty and costs in one of such prosecutions. The indictment then negatived the filing and existence of such complaints.

A. V. Sehenck, for plaintiff in error.

J. Kearney Rice, for defendant.

BEASLEY, C. J. The state alleged that the defendant, being a justice of the peace, had obtained money from the person named in the indictment by falsely pretending that there were three complaints against such person filed with him by virtue of a municipal ordinance that denounced penalties against persons selling intoxicating liquors without license. It was charged that by this fraudulent fiction the defendant had been paid, by the party that pretended to be incriminated, one of such penalties. The indictment then averred that no such complaint had ever been made before the defendant.

At the trial, in the course of his defense, the defendant produced his docket, and likewise three papers that purported to be such complaints as were referred to in the indictment; and, being examined on his own behalf as a witness, stated that these documents were signed and sworn to by the person whose name was subscribed to them as prosecutor. The complaints thus proved were offered in evidence, and were rejected by the court on the ground that the best evidence of their authenticity had not been produced; such evidence, in the judicial estimation, being that of the prosecutor who had made such complaints and had put his name to them. This view was plainly erroneous. The testimony of the man who signed the documents with respect to the genuineness of his signature was not of a' higher grade of evidence than the testimony of a man who had seen him make such signature, or who was acquainted with his writing and deposed as to his opinion. The rule adopted by the court would require, in proving a promissory note or other unattested writing, the production of the maker of the instrument, to the exclusion of all other evidence as primary proof. The rejection of these papers, under the conditions stated, was erroneous. '

It is true that the papers in question were subsequently admitted in evidence, but such introduction was allowed only after the defendant had been obliged, by the ruling of the court, to call the person who had subscribed the complaints,yand who was a Witness hostile to the defense, and who, by his testimony, had cast suspicion upon the papers referred to. The substance of his testimony was to the effect that he could not tell whether the signatures were his or not; that he had never knowingly made such complaints, as he was friendly with the person against whom they purported to have been made. It is manifest that such testimony, impairing, as it did, the essential fact of his defense, was highly prejudicial to the defendant on the merits of the case. That the court announced that the defendant might treat this witness as a hostile witness did not repair the wrong. He might not have been prepared to show that the witness had made statements out of court inconsistent with his testimony, or that his reputation for veracity was bad, even if such circumstances existed. '

The judgment must be reversed.

The question of the amendability of the bill of exceptions is not necessarily involved in the present decision. The bill was amended at the instance of the state, and the case has been decided in favor of the defendant on the basis presented in the amended bill. In the absence of such amendation, the facts would have made a case somewhat stronger for the defense. Our decision being adverse to the state, taking the matter in this stronger aspect in favor of the prosecution, it is not necessary for the court to consider it in its weaker aspect. Nevertheless, as the matter is of importance in practice, and it has been examined by the court, it has been thought proper to express our view upon the subject.

In this case the bill of exceptions, as originally signed and scaled by the court of quarter sessions, stated that the three complaints already mentioned were rejected when offered by the defense, but it failed to state, as was proper, that they were afterwards admitted and were placed before the jury. The state, giving notice to the defendant of the motion, applied to the court of quarter sessions to amend the bill so as to make it embrace the matter inadvertently omitted. The amendment was made, and the legality of that act was challenged by the counsel of the defendant in his argument before this court. But the denial of the right to