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INDICTMENT AND INFORMATION (§ 137*)—OFFENSES AGAINST ELECTION LAWS—QUASHING INDICTMENT. The act concerning elections requires the county clerk to preserve for a period of five years, after they are deposited with him registry lists used at an election and checked to indicate persons voting thereat. The act also makes it a misdemeanor for any officer to willfully or negligently violate any duty imposed on him by the act. The defendant was indicted for withdrawing, removing, and carrying away from the possession of the county clerk certain registers which had been used and checked at an election. Held that, if the clerk violated his duty in allowing the registers to be removed out of his possession through the procurement. aiding, and assisting of the defendant, it is not so manifest that no judgment could be rendered on the indictment that the discretion to quash it ought to be exercised.

[Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 137.*]

Certiorari to review indictment for Violation of election law by Enoch L. Johnson. Heard on motion to quash indictment. Denied.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, J.J.

Edmund Wilson, Atty. Gen., for the State. French & Richards and Gilbert Collins, for defendant.

BERGEN, J. The writ allowed in this proceeding brings into this court from the court of Oyer and terminer of the county of Atlantic an indictment against the defendant, and a motion is now made to quash it. The indictment, among other things, Sets Out that at a general election held in Atlantic county in November, 1910, the clerks of the respective boards Of registry and elections, as required by law, kept a register of the Voters, and checked the names Written therein as the voters deposited their ballots, and, after the Canvass of the Votes, the registers so checked were filed with the clerk of the County of Atlantic to be there preserved by him for a period of five years. The indictment then charges that thereafter the defendant “unlawfully, Willfully, and With evil intent, and Without Warrant in the law, did carry away, remove, and withdraw said registers from and out of the possession of the Said County Clerk.” The argument for the defendant is that the taking, Carrying away, and withdrawal of the registers unlawfully and with evil intent is not made a crime by the statute, and therefore the indictment Sets out no punishable offense.

Section 67 of the act concerning elections (P. L. 1898, p. 271) requires the registry list to be deposited with the county clerk after each election, and Section 1 of a Supplement


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! to said act (P. L. 1908, p. 30) requires the county clerk to preserve such lists for five years. It seems to us that the duty imposed upon the clerk under the above legislation to preserve such registers in his office for the term of five years is a part of the election law intended to aid in insuring the purity of elections, and to assist in the discovery and prosecution of frauds, and that, if the clerk should allow Such registry lists to go out of his possession during the forbidden period in Such manner as to afford the Opportunity to alter or mutilate them, it would be a violation of the act relating to elections, because in Our Opinion Such registers are a part of the election proceedings. If the County clerk can allow the registers to be removed and carried away by any One Who may apply for them, alterations and mutilations would be comparatively easy, and the registers become of Small value as records of the manner in Which the election had been COnducted. We think it is clear that this legislation requires the county clerk to preserve these registers in the form he received them from the clerks of the board of registry and elections, and that he is not preServing Such lists Within the meaning of the act When he allows them to be Withdrawn from his possession. He is to preserve them, and this is not done When he allows a perSon, Without statutory authority, to Withdraw them from his custody and control, and thus Subject them to unlawful changes and alterations, and, if he does so, it is not so clear that he would not be guilty of a violation of the act concerning elections as to Warrant the quashing of an indictment if one were presented against him for such neglect to preserve the registers, because the preservation is a duty Which the law has imposed upon the County clerk, and under section 197 of the act to regulate elections (Revision of 1898, P. L. 1898, p. 237) “every public officer upon whom any duty is imposed by this act who willfully or negligently violates his said duty, Or Who neglectS Or Willfully Omits to perform the same, shall be deemed guilty of a misdemeanor.” If such violation of the laW by the clerk is an indictable offense, then, under section 2 of the supplement to the act regulating elections (P. L. 1905, p. 224), which reads, “Whoever at any election in this State Shall in any Way CounSel, procure, aid, advise, assist or abet any official or person in any act which is contrary to the proVisions Of this act Or to the act to Which this is a supplement, shall be guilty of a misdemeanor,” this defendant would be guilty equally with the clerk if he counseled, procured, aided, etc., that official in any act contrary to the provisions of the statute. That the indictment charges the defendant With doing the act as principal rather than as aiding and abetting the county clerk is


*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

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of no importance, because all who aid or participate in the commission of a misdemeanor are principals, and one indicted as a principal may be convicted as such, Where the testimony limits his participation to aiding and abetting. State v. Wilson, 79 N. J. Law, 241, 75 Atl. 776. It does not appear to us that it is so manifest that no judgment can be rendered on this indictment that it ought to be quashed, and We prefer to follow the rule laid down in Proctor V. State, 55 N. J. Law, 472, 26 Atl. 804, that the discretion to quash an indictment on motion Will not be exercised unless upon the clearest and plainest ground, but the defendant will be left to a demurrer, motion in arrest Of judgment, or Writ of error. The motion to quash will be denied, and the indictment retained in this Court for trial. When this motion was argued, an application was also made for a Special Writ of Certiorari to bring up Some of the proceedings relating to the finding of the indictment, if the motion to quash was refused, in order that the defendant might have So much of the proceedings as related to the finding of the indictment brought into this court that he may have the Opportunity to avail himself Of all of the defenses he would be entitled to if the indictment remained in the oyer and terminer. We think that the defendant is entitled to a writ sufficiently broad to accomplish this purpose, the Scope of Which Will be fixed When the Writ is Submitted for allowance.

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3. STATUTEs (§ 64*)—EFFECT of PARTIAL INVALIDITY. Where an object of the act is fully expressed in the title, an object, unexpressed in the title, if wholly distinct and separable from the expressed object, may be excised from the body of the act. [Ed. Note.—For other cases, see Statutes, Cent. Dig. § 195; Dec. Dig. § 64.*]

4. EMINENT DOMAIN (§ 234*)—PROCEEDINGS TO TAKE PROPERTY-AWARD OF COMMISSIONERS. The award made by the commissioners, without specifically setting out what portion of the sum awarded represents the appraised value of the lands, and what portion represents the damages, sustained by the taking thereof, was in compliance with the settled law of this state. [Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§ 592–603; Dec. Dig. § 234."] Application by Benjamin F. Hutches, Jr., and others for writ of certiorari, to review an award of commissioners, under the condemnation act of 1902, to the Borough of Hohokus. Proceedings by the commissioners affirmed. Argued June term, 1911, before GARRISON, TRENCHARD, and KALISCH, J.J.

James T. Ackerman, for plaintiffs. J. W.

De Yoe, for defendant.

KALISCH, J. A petition was filed by the borough of Hohokus to condemn certain lands described in said petition for park purposes, for the use of its inhabitants, under an act entitled “An act to provide for the purchase, construction, and maintenance of public parks by the cities and other municipalities in this state.” P. L. 1902, p. 574. The fifth Section of this act was amended by an act, approved May 17, 1906 (P. L. 1906, p. 553), entitled “An act to amend an act entitled ‘An act to provide for the purchase, construction and maintenance of public parks by cities and other municipalities in this State.’” The amended Section reads: “The lands purchased under this act may be paid for out of the proceeds of said bonds, and in case of condemnation, the mode of procedure shall be that provided in an act entitled ‘An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use (Revision Of 1900), approved March twentieth, one thousand nine hundred.”

[2] The plaintiffs in certiorari impugn the constitutionality of this amendment, contending that it is in contravention of that part of paragraph 4, § 7, art. 4, of the state Constitution, which declares: “No act shall be pass-" ed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act, Or Which Shall enact that any existing law, or any part thereof, shall be applicable by inserting it in such act.” The act of 1906 does not come Within the letter or spirit of the constitutional inhibition here invoked. It simply provides for a method of procedure by which the act may

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be carried into effect. This act is strictly in harmony with previous legislation of the Same import, which has been repeatedly upheld by the courts of this state, and declared by them not to be within the constitutional interdiction invoked in this case. The explicit and unequivocal pronouncements of this court and of the Court of Errors and Appeals upon this topic do not leave this class of legislation open to any further practical controversy or discussion. Campbell v. Board of Pharmacy, 45 N. J. Law, 241; De Camp V. Hibernia R. R. Co., 47 N. J. Law, 49; Christie v. Bayonne, 48 N. J. Law, 409, 5 Atl. 805; In re Haynes, 54 N. J. Law, 24, 22 Atl. 923; Kennedy V. Belmar, 61 N. J. LaW, 23, 38 Atl. 756. [3] The plaintiffs in certiorari further contend that the act is unconstitutional, because it is in violation of paragraph 4, § 7, and article 4, of the Constitution, which declares, “Every law shall embrace but one object and that Shall be expreSSed in the title,” in that the title to the act of 1902 (P. L. 1902, p. 574) reads, “An act to provide for the purChase, COnStruction and maintenance of public parks by cities and other municipalities in this state”; whereas, in the body of the act, the right Of condemnation is added to the object stated in the title. It is obvious that the body of the act includes an object not expressed in the title. But this does not Vitiate the entire act. That part of the act providing for condemnation is wholly distinct and separable from the right to purchase, and therefore leaves the right to purchase uninfected by its presence. The provision for condemnation may be excised without impairing the validity of the act. Rader v. Township of Union, 39 N. J. Law, 509; Fagan v. Payne, 75 N. J. Law, 854, 59 Atl. 568. [1] That the validity of the condemnation proceeding cannot be upheld solely by virtue of the act of 1902 is conceded by the defendant, and has judicial support. Griffith v. Trenton, 76 N. J. LaW, 23, 69 Atl. 29. But it is insisted by Counsel for defendant that, by force of a supplement to the act entitled “An act relating to boroughs (Revision of 1897),” P. L. 1903, p. 393, which provides: “1. In all cases in which authority has been Or may hereafter be given to boroughs to acQuire lands for any public Work, improvement, or use by purchase, it Shall be lawful for such borough to condemn and take such lands in the manner and by proceedings proVided by law”—and Since, by the act of 1902, boroughs were empowered to purchase lands for public parks, etc., hence, by the act of 1903, the right to Condemn lands WaS Conferred on the defendant. This contention is well founded, and is supported by the deciSions of our courts. Phil. Safe Dep. & Ins. Co. V. Borough of Merchantville, 75 N. J. Law, 452, 68 Atl. 170. Another objection urged by the plaintiffs in

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certiorari against the validity of the proceedings is that the act of 1900 (P. L. p. 79), Which proVideS for COndemnation of lands, does not provide for an appeal from the award of the commissioners, and is therefore in Violation of that clause of the federal ConStitution which declares that “no state shall deprive any person of life, liberty or property without due process of law.” This objection is Wholly without Substance. The act of 1900 was amended by an act of 1909 (P. L. 1909, p. 225), whereby the express right of appeal is conferred upon any petitioner or owner of any land or property taken for public use from the report of the commissioners to the Circuit Court. [4] The final objection is aimed against the award of the commissioners, because they have not set out specifically what portion of the Sum awarded represents the appraised value of the lands, and what portion repreSents the damages Sustained by the taking thereof. This has been held not to be eSSential. The award of the commissioners was in compliance with the settled law of this State. Penn R. R. CO. V. National Dock Co., 57 N. J. Law, 86, 30 Atl. 183; Bright V. Platt, 32 N. J. Eq. 362; Zimmerman v. Hudson & Nav. R. Co., 76 N. J. Law, 251, 71 Atl. 127. The proceedings are affirmed, with costs.

(82 N. J. L. 288) PEER. V. BLOXHAM et al. (Supreme Court of New Jersey. Nov. 20, 1911.)

1. AFFIDAVITS (§ 18*)—EVIDENCE TO SUPPORT MOTIONS. Affidavits on which a rule to show cause Was founded cannot be used, after the rule is made, to support a motion not of course, or be read on hearing of a rule to show cause depending on extrinsic facts; proof by depositions taken on notice to interested parties being necessary after the granting of the rule to show cause. Practice Act (P. L. 1903, p. 537), §§ 196, 197, provided that upon four days notice, both parties may take affidavits or permitting the opposing party to give separate notice for taking depositions and providing for the examination and cross-examination of the witnesses and the taking of stenographic testimony. [Ed. Note:—For other cases, see Affidavits, Cent. Dig. §§ 69–78; Dec. Dig. § 18.*] 2. AFFIDAVITS (§ 18*)—USE As EVIDENCE—Ex PARTE AFFIDAVITS. * The practice of taking ex parte affidavits to be used on argument of a motion is peculiar to the Chancery Court. [Ed. Note:—For other cases, see Affidavits, Cent. Dig. §§ 69–78; Dec. Dig. § 18.*] 3. MOTIONS (§ 26*)—AFFIDAVITs—FILING. he affidavits on which a rule to show cause is made must be filed as a basis for the rule upon entering it. [Ed. Note.—For other cases, see Motions, Cent. Dig. § 26; Dec. Dig. § 26.*]

Action by Augustus L. Peer against Frank E. Bloxham and OtherS. On rule to ShOW

Cause why the proceeds of execution sale should not be paid to plaintiff in part satisfaction of his judgment. Motion to make rule absolute denied, and rule extended as Stated. Argued NOWember term, 1911, before GARRISON, PARKER, and BERGEN, J.J.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Joshua R. Salmon, for the rule.

PARKER, J. The meritorious question involved in this application relates to the respective priorities of execution CreditorS as against a fund of money in court, realized by sale ynder one or more of the executions. But as a matter Of practice We cannot examine into or decide this question for the reason that no evidence appears to have been taken under the rule to ShOW CauSe from Which the rights of the respective execution creditors to the fund or their priorities can be determined. The plaintiff claiming the prior right to the fund, relies entirely on the affidavit upon which the rule to show cause was allowed, and no depositions have been taken thereunder in Support of the rule, although express provision was made therefor.

[1] The present application is typical of numbers of similar ones that are Constantly presented, and the frequency of such applications justifies a reiteration of the wellestablished rule that affidavitS On Which a rule to show cause is founded lose their efficacy as proof as soon as such rule to ShoW CauSe is made, and that, after this, ex parte affidavits, whether made before Or after the granting of the rule, are not competent to prove the facts necessary to Support a motion not of course, or to be read on the hearing of a rule to show cause, depending on facts extrinsic to the record. Such facts can be brought before the court only by depositions taken on notice. Baldwin v. Flagg, 43 N. J. Law, 495, citing Galbraith V. Cooper, 24 N. J. LaW, 219; State V. Gardner, 34 N. J. Law, 327, 329.

[2] The practice of taking affidavits ex parte, to be used on the argument of a motion, is peculiar to the Court of Chancery. Baldwin V. Flagg, Supra. A later case is Klein v. Adams Express Co., 61 N. J. Law, 530, 40 Atl. 445. [3] The affidavits on Which a rule to ShoW CauSe is made must be filed as a basis for that rule upon entering the Same. Galbraith V. Cooper, Supra. Upon the granting of the rule and in Support of it, the moving party must repeat his proof in the form of depositions taken on notice to all parties interested. Four days' notice is required; and on Such notice both sides may take depositions, or the opposing party may give a separate notice. Practice Act of 1903 (P. L., p. 537) $$ 196, 197. The witnesses are to be examined and crossexamined in regular course, and the testimony may nOW be taken Stenographically in cases to which the practice act is applicable. Id, § 197,

Nothing of this kind was done in the present case, plaintiff relying on his original moving affidavit for his proof. The motion to make the rule absolute will be denied, but the rule may be extended until December 15th next, to the end that plaintiff may support it by depositions, and such documentary evidence as is required pursuant to the practice above indicated.

(71 N. J. E. 587) ALBERT V. HAEBERLY et al. (Court of Chancery of New Jersey. May 28, 1906.)

(Syllabus by the Court.) 1. GIFTS (§ 47*)—INTER VIvo's—VALIDITYBURDEN OF PROOF. - Where an absolute gift, without reservation of power to revoke, is made by a dependent member of the family to the dominant member, without any valuable consideration proceeding to the donor, the burden of proof is laid upon the donee to show that the donor had the benefit of competent and independent advice ex£ing the effect of the challenged transac1011. Ed., Note-For other cases, see Gifts, Cent. Dig. $85; Dec. Dig. § 47.*] 2. GIFTS (§ 49*)—INTER VIVOS—VALIDITYSUFFICIENCY OF EVIDENCE. Where the lawyer who drew the transfer of property from the dependent member of the family, and conducted the business incident to its execution, had for years previously been employed as counsel for the dominant member (who was the donee), had received his instructions for preparing the transfer in the presence . of the husband of the donee, and in the matter of the transfer is not shown to have acted independently for the protection and advantage of the donor, the burden of proof cast upon the donee is not successfully carried. [Ed: Note:–For other cases, see Gifts, Cent. Dig. § 95; Dec. Dig. § 49.*] 3. FORMER DECISION CONTROLLING. This case held to be controlled by the decision of the Court of Errors and Appeals in the case of Albert, y. Haeberly, 68 N. J. Eq. 664, 61 Atl. 380, 111 Am. St. Rep. 652.

Bill in equity by Amelia Albert against Emily B. R. Haeberly and others. Final hearing on bill, answer, and proofs. Decree for COmplainant. Affirmed (74 N. J. Eq. 451, 70 Atl. 1100).

Bourgeois & Sooy, for complainant. William I. Garrison, for defendants.

GREY, V. C. (orally). I do not care to hear from complainant's counsel, because I alm convinced that this case ought to be settled in the Way I am about to determine it.

[3] I have listened with interest to the defendants' counsel to hear any suggestion why this cause is not substantially controlled by the decision of the Court of Errors and Appeals in the case of Albert v. Haeberly, reported in 68 N. J. Eq. 664, 61 Atl. 380, 111 Am. St. Rep. 652. The circumstances in this case differ very slightly from those which were before that court in that judgment

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The present matter is the challenge by the complainant of the Validity of a release in writing, made by her on October 16, 1902, to Mr. Charles Wells, an attorney at law of the state of Pennsylvania, of What Was called a trust fund in his hands, With a direction to deliver the corpus of that fund to the defendant Mrs. Haeberly. The circumstances under Which this paper Was made are as follows: William RobinSon Was the father of Lena and Amelia Robinson by a Wife who died. He then married the defendant (now Mrs. Haeberly), who bore him one child, named Edna. William Robinson died intestate, leaving at his death his three children—Amelia Robinson, the complainant in this Suit, Lena Robinson, her Sister of the Whole blood, and Edna Robinson, her sister of the half blood, an infant about two years old. Edna Robinson died about two years after the death of her father. There was litigation in the state of Pennsylvania between the representatives of the estate of William Robinson and his brothers, Charles and Augustus, touching the settlement of a brewery property, which had been held in partnership betWeen them, Which resulted in the final establishment Of the right of William to one-third. The property consisted of both real and personal estate, and Was Of Such a Character that there was some uncertainty as to What part was realty and What personalty. Under the laW Of Pennsylvania, as it has been proVen here, the real estate part of William Robinson's estate descended on his death intestate to his children, one of whom Was his daughter Edna. Edna's portion, upon her death, an infant, and, Of course, intestate, under the law Of the State of Pennsylvania, as to the real estate, passed to her mother for life, and to her half-sisters Lena and Amelia in fee. The controversy in this case arises touching the transfer, or claimed transfer, On October 16, 1902, by Lena and Amelia, to their stepmother, the defendant Mrs. Haeberly, of their reversion in the fund arising from the Sale of the real estate to the extent of Edna’s share, the fee in which came to them on Edna's death. There has been, as has been Stated, a COnSiderable amount of flat Contradiction in the testimony in this case. This is true, however, only of minor matters, for as to the essentials which I deem to be controlling the decision of the cause there is no dispute whatever. In matters of family contention it is not at all unusual to have members of the family of creditable appearance give testimony against each other which is directly Contradictory. This is to a certain extent true in this case, but, touching the important phases settled by the Court of ErrorS and Appeals, the evidence presented by both sides is in harmony. In the Court of Errors and Appeals case above cited the contention was between the complainant, Mrs. Amelia Robinson Albert,

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and her stepmother, Mrs. Haeberly, Who is the principal defendant in this Suit. The complainant sought to set aside a conveyance Of her Share Of her father's real eState, Which Mrs. Haeberly, While Amelia Was a member of her family, in December, 1902, had induced her to make herself (Mrs. Haeberly), without any independent, uninfluenced advice on the subject, by a deed of gift Which contained no power of revocation. The Court of Errors and Appeals held that the circumstances proven ShoWed that Amelia, though of age, was one of the family of which Mrs. Haeberly was the head and dominant member; that Amelia lived in an atmosphere of trust and confidence in Mrs. Haeberly; that it was an inequitable adVantage taken of Amelia to accept from her an irrevocable conveyance of her lands, given Without competent and independent adVice, and without Valuable consideration passing to her. On these grounds the Court of Errors and Appeals declared Amelia's conveyance of her lands made in December, 1902, to Mrs. Haeberly, to be Void. In the case at bar Amelia seeks to set aside the transfer of her interest in the principal Of her sister Edna's share of the lands, Which Amelia made to Mrs. Haeberly on October 16, 1902. Amelia had come of age in August, 1902. As above stated, it is affirmatively proven by both sides that on October 16, 1902, she Was a member of Mrs. Haebelly’s household. At that time Amelia was living, as she had for more than ten years, in entire harmony With her Stepmother, accepting and Obeying orders from Mrs. Haeberly as the head of the family. All the evidence tends to prove that Mr.S. Haeberly WaS a positive WOman, who understood and appreciated the fact that wealth was a means of power. She had conducted the la WSuit against her first husband’s brothers, Charles and Augustus Robinson, for several years, and had finally won it. While her Stepdaughters were under age she received $1,000 a year from the guardian of each of them for their mainte11ance and education. Amelia Says she was for years kept in ignorance Of the fact that she had an independent fortune. In the settlement of William Robinson's estate, his Widow (Who had now become Mrs. Haeberly) secured for herself, as against her stepdaughters, every element of value to which her Status as Widow entitled her. Her perSonal appearance and bearing when she was

giving her testimony accord with all the

evidence Which indicates that in the family She Was easily “monarch of all she surveyed.” A claim that she specially considered her StepdaughterS Was based. On her aSSent to the COrrection Of a Clerical mistake in the settlement of the estate, which was only discovered after it had passed unnoticed through several courts. This correction was a matter of the simplest honesty, about equivalent to

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