sition, as to whether the thirteenth section | system to which they relate; but those prooffends article 3, § 7, of the Constitution, viding special methods or changing old which provides: "The General Assembly shall ones for the collection of debts due the not pass any general or special law ** ** special class of creditors, or for the enforceproviding or changing methods for the col- ment of judgments recovered by them, are lection of debts, or the enforcing of judg-prohibited by the organic law." ments, or prescribing the effect of judicial [4] The result of the decisions above noted sales of real estate." The scope of this pro- is to make it clear that any provision of vision with respect to various sections of the act of 1901 which is clearly divergent this statute of 1901 has been so thoroughly from and is an advance upon the law as it discussed in several late opinions of this stood prior to the Constitution of 1874 is court that little remains to be said by way of to be regarded as invalid. As the effect of amplification. Thus the twenty-eighth sec- section 13 is to grant to mechanics' liens a tion, which gave to a subcontractor or ma- preference, and to give to them a priority terialman the right to issue an attachment of payment that they did not have, and to execution against the owner or other party which they were not entitled prior to the indebted to the contractor for labor or ma- present Constitution, it must be held invalid. terials furnished, was held unconstitutional As the learned auditor says: "The plain and in Vulcanite Cement Co. v. Allison, 220 Pa. | practical result of the act is that the me382, 69 Atl. 855. Section 36, which provid-chanic has in the enforcement of his liens ed for the enforcement of the judgment on the lien by a special fi. fa. under the act of April 7, 1870 (P. L. 5S), was, in Vulcanite Paving Co. v. Transit Co., 220 Pa. 603, 69 Atl. 1117, 17 L. R. A. (N. S.) 884, held to violate the Constitution. Section 38, which permitted mechanics' liens to be filed against a building, without reference to the land, and provided for the sale and removal of the building for the benefit of lienholders, was held to be within the ban, in the opinion in the case of Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486, 74 Atl. 357. Section 35, which gave the right to enter a personal judgment against a contractor who has been served with the original scire facias, or any scire facias to revive, was held to violate the same provision of the Constitution, in Sterling Bronze Co. v. Improvement Ass'n, 226 Pa. 475, 75 Atl. 668. Turning to the question now before us, it appears that, prior to the Constitution of 1874, advance-money mortgages had priority over mechanics' liens. In Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486, 493, 74 Atl. 357, 359, this court said: "The whole act of 1901 is legislation for a special class of creditors, some of the provisions of which are permissible, because the Constitution of 1874 did not intend to wipe out the higher rights and greater privileges under the statute than he had prior to the Constitution, which forbids the extension of the lien." It was urged in the argument of counsel for appellant that the section in question is substantially a re-enactment of the earlier act of 1881, and that long acquiescence in the similar provisions of the former statute should have controlling weight now in favor of the constitutionality of the section. The answer to this suggestion may be found in the late opinion of this court, in Kucker v. Oil Co., 230 Pa. 528, 79 Atl. 747, where an argument similar in that respect was made. If a statute is plainly in conflict with the organic law, mere lapse of time cannot cure the defect. We agree with the conclusion reached by the auditor, as set forth in his able report, and affirmed by the court below, that the thirteenth section of the act of June 4, 1901 (P. L. 431) violates the provisions of article 3, § 7, of the Constitution, in that it gives to mechanics' liens a higher dignity and greater priority than they possessed before the adoption of the present Constitution. Distribution of the fund realized was therefore properly made to the mortgage creditor. The assignments of error are overruled, and the decree of the court below is affirmed. (Supreme Court of New Jersey. Nov. 13, 1911.) plaintiff to produce the original note, the (Syllabus by the Court.) JUDGES ( 31*) - POWERS AFTER EXPIRATION OF TERM. The rule laid down by sections 3 and 21 of the district court act (P. L. 1898, p. 556), when read together, is that an outgoing judge of that court shall carry to final determination all causes upon the actual trial of which he had entered during his term of office, but shall not enter upon the trial of any new cause, merely because it was instituted during his term, which causes, under section 3, are not to abate, but to be tried before the incoming judge. [Ed. Note. For other cases, see Judges, Cent. Dig. §§ 153-157; Dec. Dig. § 31.*] admission of secondary evidence of its contents is not a ground for reversal; and the same is true as to the finding of the trial court, sitting without a jury, that the defendant had fraudulently obtained and converted the note. There were no errors in rulings upon evidence. The adjournments granted to the plaintiff in his attempts to trace the note and the denial of an adjournment to the defendant were exercises of a discretion that was not abused. The most serious specification is that which challenges the qualification of the trial judge to proceed to the final deterAppeal from District Court of Passaic. mination of the cause, in view of the fact Action by John T. Van Riper against Sam- that his term of office expired during the uel Dubron. From a judgment for plain- period occupied by the taking of testimony. tiff, defendant appeals. Affirmed. Section 3 of the district court act (P. L. Argued June term, 1911, before GARRI-1898, p. 556) provides that "when any judge SON, TRENCHARD, and KALISCH, JJ. Andrew Foulds, Jr., for appellant. Whitehead & Appleton, for appellee. GARRISON, J. This was an action for the conversion of a negotiable promissory note. The theory of the action and the facts on which it was based were that the defendant obtained a promissory note, made by the plaintiff to the defendant's order, for the payment of $187.50 in six months; that said note was given as a commission in a real estate transaction, and was obtained by the defendant by the false representation that he was not getting a commission from the other party; that such other commission was in fact received by defendant, and that when plaintiff discovered the falseness of the defendant's representation he demanded the return of the note he had given him, which was refused, on the ground that the note had been transferred to a third party, whose name the defendant refused to divulge. On the trial, the defendant, as plaintiff's witness, testified that he had transferred the note to David Kantor, who, when called as a witness, said that he had transferred the note to Abraham Heller, who testified that he had transferred it to one Mamled, of Passaic street, Passaic, but could give no more complete name or address. Plaintiff testified that in conversations with both Kantor and Heller they had refused to divulge the name of the person to whom the note was transferred, or even to say whether or not it was transferred. The note being traced to defendant's hands, and its present holder not being found, the court admitted secondary proof of its contents, and gave judgment for the plaintiff for its face; the defendant offering no defense. No question was raised in the district court as to the form of the action, and none is raised by any specification in this court. * * * thereof shall cease holding his office every suit and proceeding pending in said court shall be continued and proceeded with by and before the succeeding judge thereof;" and section 21 of the same act provides that "any judge of any district court whose term of office may hereafter expire shall proceed to the final determination of any cause or proceeding then undetermined before him * ** in the same manner as if his term of office had not expired." It is impossible to give to the twenty-first section the explicit force given it by this legislative language, without giving to the third section as restricted a meaning as its language will permit. The duty to harmonize, if possible, the two sections calls upon us to do this. We think, therefore, that section 3 should be restricted to suits and proceedings instituted in the district court, upon the determination, i. e., the trial, of which the court had not actually entered. The two sections would then, if read together, lay down the reasonable rule that the outgoing judge should carry to a final determination all causes upon the trial of which he had actually entered, but not enter upon the trial of any new cause, merely because it had been instituted during his term, which cause, under section 3, would not abate, but be brought on for trial before the incoming judge. The only other construction that would at all harmonize these sections is that all that section 21 permitted to the outgoing judge was to declare a conclusion reached by him in a case, the trial of which had been concluded during his term of office. This is a tenable construction; but it fails to remedy the lost motion, so to speak, involved in requiring the parties to retry before the new judge a case that had been entered upon and all but completed before the outgoing *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-28 judge. The question is not free from diffi-ampton Cement Company. At the trial the culty; but the construction that commends defendant made a motion to nonsuit, upon itself to us is that which permits the judge, the ground that the plaintiff had used the before whom an action is in course of actual initial "H," instead of his Christian name. trial when his term of office ceases, to con- We are of the opinion that the motion was tinue such cause to its final determination. properly denied. Finding that none of the grounds specified should lead to a reversal, the judgment of the Passaic district court is affirmed. (82 N. J. L. 61) SCHAFFER v. LEVENSON WRECKING [2] By the common law since the time of the Norman Conquest, a legal name has consisted of one Christian, or given name, and of one surname, patronymic, or family name. The surname, or family name of a person, is that which is derived from the common name of his parents, or is borne by him in common with other members of his (Supreme Court of New Jersey. Nov. 13, 1911.) family. The Christian name is that which (Syllabus by the Court.) 1. NAMES (§ 6*)-PLEADING-MISNOMER. In an action on a book account, where it appeared that the plaintiff's proper name was H. Allen Schaffer, and that he sued in that name, a motion to nonsuit, upon the ground that he had not sued in his true name, was properly denied. [Ed. Note.-For other cases, see Names, Cent. Dig. 5; Dec. Dig. § 6.*] (Additional Syllabus by Editorial Staff.) 2. NAMES (§ 2*)-REQUISITES-"CHRISTIAN NAME" "SURNAME." By the common law since the Norman Conquest, a legal name has consisted of one "Christian name," or that which is given one after his birth or at baptism, or is afterwards assumed by him in addition to his family name, and of one "surname," or family name, which is that derived from the common name of his parents, or borne by him in common with other members of his family. [Ed. Note.-For other cases, see Names, Cent. Dig. 1; Dec. Dig. § 2.* For other definitions, see Words and Phrases, vol. 2, p. 1149; vol. 5, pp. 4657-4660; vol. 8, p. 6816.] 3. PARTIES (§ 66*)-DESIGNATION-NAMES. As a general rule, actions must be commenced and prosecuted in the proper Christian and surname of the parties, and initials cannot be used for the Christian names of parties, except in cases of parties described by initial letters in bills of exchange, promissory notes, or other written instruments, as authorized by Practice Act (P. L. 1903, p. 541) par. 27. [Ed. Note. For other cases, see Parties, Cent. Dig. §§ 108, 110; Dec. Dig. § 66.*] Appeal from District Court of Hoboken. Action by H. Allen Schaffer, trustee in bankruptcy of the Northampton Cement Company, against the Levenson Wrecking Company. From a judgment for plaintiff, defendant appeals. Affirmed. Argued June term, 1911, before GARRISON, TRENCHARD, and KALISCH, JJ. William B. Stites, for appellant. William H. Parry, for appellee. is given one after his birth, or at baptism, or is afterward assumed by him in addition to his family name. 29 Cyc. 264. [3] In this state, as a general rule, actions must be commenced and prosecuted in the proper Christian and surname of the parties. Seely v. Schenck, 2 N. J. Law, 75. Initials cannot be used for the Christian names of parties to actions, except in cases of parties described by initial letters in bills of exchange, promissory notes, or other written instruments, under paragraph 27 of the practice act. Elberson v. Richards, 42 N. J. Law, 69; Dittmar Powder Co. v. Leon, 42 N. J. Law, 540. But this is not a case where no Christian name is mentioned, nor where the Christian name is designated simply by its initial letter. The uncontradicted testimony was that the plaintiff's proper name was H. Allen Schaffer. His given name having been used to describe him, the motion to nonsuit was, of course, properly denied. U. S. v. Winter, 13 Blatchf. 276, Fed. Cas. No. 16,743. The judgment of the court below will be affirmed. (82 N. J. L. 127) NEVIN v. PUBLIC SERVICE CORP. OF (Supreme Court of New Jersey. Nov. 13, (Syllabus by the Court.) TRESPASS (§ 19*) - TREES -TITLE AGAINST STRANGER. to land, offers her deed for premises, extending Where a plaintiff, to prove her legal title by force of the description contained therein to the center of a highway, and, by her own testimony, shows that she is in the actual possession of the premises, subject to the public easement in that part comprised within the street limits, her title to and proprietorship of trees standing in said street, within the curb line and in front of her premises, is thus sufficiently shown to enable her to maintain an action against a stran TRENCHARD, J. [1] This is the defend-ger for wrongfully destroying the trees. ant's appeal in an action on a book account, brought in the district court of the city of Hoboken, in which the plaintiff had judg [Ed. Note. For other cases, see Trespass, Cent. Dig. §§ 18-31; Dec. Dig. § 19.*1 Error to Circuit Court, Camden County. The action was brought by H. Allen Action by Mary G. Nevin against the PubSchaffer, trustee in bankruptcy of the North-lic Service Corporation of New Jersey. Judg N. J.) NEVIN v. PUBLIC SERVICE CORP. 435 ment for plaintiff, and defendant brings er-1 469. The plaintiff, to prove her legal title ror. Affirmed. Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ. Lewis Starr, for plaintiff in error. liam Early, for defendant in error. to the land, produced her deed for the premises, extending by force of the description contained therein to the center of the highway, and by her own testimony showed that Wil- she was in the actual possession of the premises, subject to the public easement in that part comprised within the street limits; she thus proved her title to and proprietorship of the trees standing in the highway in front of her premises sufficiently to enable her to maintain an action against the defendant for their wrongful destruction. VOORHEES, J. Review of the judgment Review of the judgment entered for the plaintiff is sought by this writ of error. An action in the form of trespass on the case was brought against the defendant, a gas light company, to recover damages for the destruction of five shade trees, planted immediately inside the curb line of a public street in the city of Camden, in front of the plaintiff's property, alleged to have been destroyed by illuminating gas escaping from the defendant's mains, existing under the surface of the street. The first count of the declaration charged that the defendant did not construct its gas main so that the joints were tight, and the second count averred negligence, in that the defendant, by failing properly to inspect its pipes, negligently allowed the gas to escape. The charge of faulty construction was not pressed at the trial. It was admitted that the destruction of the trees was in consequence of escaping gas. At the conclusion of the case, a motion to direct a verdict for the defendant was made. The first ground in support of the motion was that the plaintiff had failed to show the ownership of the trees, or title to the lands wherein they were standing. The plaintiff's deed for the property was in evidence, and it was admitted that by it the boundary ran to and was coincident with the center of the highway, and it was shown that the plaintiff was in the actual possession of the property described therein, other than that part of it constituting the highway. The possession of the owner of the legal title will be presumed to be coextensive with the description contained in his deed. Den v. Hunt, 20 N. J. Law, 487; Foulke v. Bond, 41 N. J. Law, 527; although subject to the public easement in the street, it follows that the proprietorship of the trees was in the plaintiff. Winter v. Peterson, 24 N. J. Law, 524, 61 Am. Dec. 678; Weller v. McCormick. 52 N. J. Law, 473, 19 Atl. 1101, 8 L. R. A. 798. There is no substance to the argument that title in the plaintiff has not been shown, because there was no proof of possession by her grantor, and that the plaintiff's testimony of her own possession was insufficient. In support Troth v. Smith, 68 N. J. Law, 36, 52 Atl. 243, is cited. It is not pertinent. That was an action of ejectment, and, the defendant being in possession, his title by possession had to be overcome. Here the plaintiff's possession is prima facie evidence of her title. Rollins v. Atlantic City R. R. Co., 70 N. J. Law, 664, 58 Atl. 344. See, also, Lehigh & Hudson R. R. v. Antalics, 80 Atl. A second reason urged for the direction is that the defendant's negligence had not been shown. A sewer had recently been constructed which was likely to cause a depression in the gas main, perhaps resulting in a leak. There had been an odor of gas in front of the plaintiff's premises for some six weeks before any repairs had been made, and there was also some evidence of a lack of inspection, and a delay to repair, after actual notice had been served upon the company that there was a leak. Vegetation in and about the trees had died-ocular proof that there might be an escape of gas. It is clear, therefore, that a jury question was thus presented, and that, in view of the facts thus adduced, a direction to find for the defendant would have been improper. Error is assigned upon the admission of testimony with reference to the destruction of grass, trees, and other vegetation in close proximity. This was clearly admissible as a circumstance calculated to put the defendant upon its guard against an imperfect main, and to give cause for a particular inspection to ascertain if escaping gas was causing the death of the vegetation. There is therefore no error in its admission. * * Another ground for reversal is put forth in an exception taken to the charge made upon the plaintiff's request. It was in this language: "If you find that the company had notice of a leak, * and did not repair the leak promptly, and the plaintiff's trees were damaged thereby, you may find for the plaintiff." The objection made is that there is no limitation put upon the word "promptly," and that the jury should have been instructed that reasonable promptness only was required. The court had already instructed the jury that, if the company repaired leaks within a reasonable time, it would not be liable, and had also, at the defendant's request, instructed the jury that the defendant was to be allowed a reasonable time after notice to make repairs. Moreover, several of the requests submitted by the defendant, which were charged, contained the words "prompt", and "promptly," with reference to the defendant's action in making reparation. Under these circumstances, the defendant, thus uniting with the plaintiff in requesting the court to employ this word, without modification, perhaps became equally responsible for its use. Taking the whole charge, it is not perceived that the jury could have been misled by the use of the word "promptly." The other assignments of error have been examined, and appear to be without merit. The judgment under review will be affirmed. (82 N. J. L. 113) DELAWARE, L. & W. R. CO. v. JOSEPH ENGLISH CO. (Supreme Court of New Jersey. Nov. 13, 1911.) (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 526*) — RECORD out. It seems that a demurrer lies at common law to an assignment of error; but in the case sub judice, it is unnecessary to determine whether this procedure has been recognized in New Jersey, for it may be treated as a motion to strike out the assignment as frivolous. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 748.*] Heard on demurrer Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ. entitled "An act to regulate commerce," and the acts amendatory thereof, remove the matters of demurrage charges from and out of the scope and realm of custom and private agreements." To the assignment of error thus made, the defendant has demurred: First. Because the report is no part of the record, and error cannot be assigned on any statements therein. Second. That the rulings of the court in giving judgment upon the said report of the referee are not open to exception on error. Third. That no error can be assigned upon the rulings of the referee in making allowances of credit as being manifest upon the face, and by the terms of the said report of said referee. Fourth. That the judgment cannot be reviewed on the writ of error, and no error can be assigned. Fifth. That they are frivolous. [1] The principal question thus brought under review is what constitutes a record, and whether the report of the referee is part of that record. In Clifford v. Hudson Oyer, 61 N. J. Law, 493, 39 Atl. 909, Justice Garrison says: "The record of a court contains only those things that are essential to the validity of the proceeding, such as the nature of the issue, the presence of a judge, and, in respect to the jury, that it was of Action by the Delaware, Lackawanna & the proper number of proper men, properly Western Railroad Company against the Jo- qualified and returned by the proper officer seph English Company. From the judgment, a venire at common law. From this point plaintiff brings error. down to the return of the verdict, the recto assignment of error. ord is silent. The occurrences of this interror ordered stricken. val appertain to the conduct of the trial by the court, and of these the record does not speak; they are made to appear by methods provided for that purpose at common law and by statute. Hence all objections to the array that have not been pleaded, all inquiry into the way in which it was selected, all exceptions to the panel, all challenges to individual jurors, all questions touching the service of the list, as well as all other similar matters, form no part of the record, and would be no part of it, even if inserted by the clerk from his minutes of the trial. The history of the trial in these respects could, at common law, be certified only by a bill of exceptions, sealed by the trial court, which is still the rule, save as the mode of certification has been modified by the Legislature. This rule of practice is illustrated in the case of Peak v. State, 50 N. J. Law, 179 [12 Atl. 701], and in Moschell v. State, 53 N. J. Law, 498 [22 Atl. 50], where a criminal cause was tried by a struck jury." Frederic B. Scott, for plaintiff in error. Michael Dunn, for defendant in error. VOORHEES, J. While this action was pending in the Passaic circuit court and after issue joined, the attorney of the plaintiff in error applied for a reference, and the cause was accordingly referred. The referee made his report, which was duly confirmed, and judgment ordered to be entered thereon in favor of the plaintiff for the sum of $398.25. After the entry of judgment, the plaintiff issued his writ of error, and has assigned error in common form upon the record, alleging that "it is manifest that the judgment is based upon the report by the referee, which report, on its face and by its terms, wherein an allowance is made to the said defendant below of a credit for all the days charged in the plaintiff's declaration, except as otherwise stated in said report, because of a custom understood and accepted by the plaintiff below, is in contravention of the federal statute (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), In Hoboken v. Laverty, 60 N. J. Law, 86. 37 Atl. 437, there were two assignments of error, both of which were special, and pointed to supposed errors of law committed by the referee. It was stated there that, before the adoption of rule 84, the court would |