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1889, c. 731] provides that the elector ‘shall prepare his ballot by marking in the appropriate margin a CrOSS Opposite the name Of the candidate of his choice for each office to be filled. This requirement is both explicit and easy of observance. If complied with, there can be no uncertainty in regard to the elector's intention. Moreover, a cross SO

placed affordS no means Of Subsequently |

identifying the ballot, as it might if placed in a different position from that directed. The placing of any mark by a voter on a ballot, by which it may be identified as the one voted by him, is prohibited by said section 18. We are still of the opinion, as stated in Re Vote Marks, 17 R. I. 812 [21 Atl. 962], that to give Validity to a ballot the cross must be inscribed on it to the right Of a name printed Or Written. On it and OppoSite to the name.” The objection raised by the petitioner to One Of the tWO TDallots Counted for the reSpondent is that the marking in the Circle WaS SO indistinct that it was difficult to determine that it was a cross. An inspection of the ballot in question Satisfies us that it is properly marked with a cross in the circle under the eagle (the Republican emblem), and not otherWise, and was properly COunted for the respondent, Fales. [3] The last ballot to be considered is one which was counted for the respondent, but WaS marked With individual CrOSSeS to the right and to the left Of each candidate On the Republican column. It differs in form from One of those previously described and held to be properly rejected in this: That there is no cross in the circle at the head of the column, and that there appears to have been SOme attempt made to era Se Some Of the Crosses at the left of Some of the names. But we are of the opinion that the legal effect of the crosses to the left of the names in each Case is the Same, and Section 44 of said chapter 11 provides inter alia: “If any voter inadvertently spoils a ballot, he may obtain another upon returning the Spoiled One and Satisfying the Officer of the fact of the inadvertence.” We are therefore of the opinion that this ballot was improperly Counted for the respondent, Fales, and should not have been counted for either Candidate. Inasmuch as the plurality for Fales Was a plurality of but one vote, it follows that the result of the rejection of this ballot is to give to each candidate 1,213 votes, and that there Was no choice Of Said Councilman at said election. [4] Section 3 of chapter 328, Gen. Laws 1909, under which this proceeding is instituted, is as follows: “In all such proceedings the court shall enforce its judgment by appropriate process; and Whenever it shall find that no election Was made, it may order a new election in all cases where new elec

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PARKER, J. But for what appears, on a perusal of the briefs filed for plaintiff in error, to be a misapprehension on the part of Counsel of the purport and effect of the very careful and comprehensive opinion delivered in the Supreme Court, we should be content to rest our affirmance of the judgment below On that Opinion Without further comment. This apparent misapprehension related to the language of the Supreme Court as to What Constitutes true value of national bank shares, and the opinion is challenged as though it had been held that Such true Value is market Value for the time being, without regard to Other considerations. Quoting from the brief: “The Supreme Court held that the measure of true Value of bank shares was their exchangeable value in the market; i. e., market value.”

As We read the opinion, the Supreme Court WaS very far from deciding that the market value, or selling price of such shares in the market for the time being, was the absolute measure under any and all circumstances of their true value. The question presented for decision Was Whether the Valuation fixed by the State board Was COrrect. That Valuation was based purely upon what in the discussion is called “book value”; i. e., value based On tangible aSSets and liabilities. The Supreme Court held that this was erroneous, as disregarding the elements of good will, dividend-earning power, ability in management, public confidence, and other intangible features that ordinarily tend to give the stock a selling value in excess of pure book Value; and as it WaS conceded that the valuation fixed by the county board properly reflected all these elements, the judgment of the State board WaS Set aside, and the Valuation made by the County board adopted. There was nothing in the judgment, therefore, to indicate that the rule of market Value for the time being was a rigid test of true value; and the opinion itself is careful to guard against any such inference. It is pointed Out that true Value iS not alwayS to be ascertained by reference to selling price: that special circumstances may increase or depress market Value, Without affecting true Value, or Vice VerSa; and that the tax act still empowers the assessor, and makes it his duty, to use his power to ascertain by independent investigation. Other factS bearing on true value, and to make use of all these facts in determining what that true value is; but that as a general Working rule, under Ordinary and normal Conditions, true value is expressed by the exchange Value in the market. That . Such exchange value may be Sometimes considered higher

MAYOR, ETC., OF CITY OF NEWARK v. CONKLIN 723

than true value is illustrated by the case of Stratton V. Collins, 43 N. J. Law, 562, 566, in which the stock was selling at considerably above the valuation fixed by the assessor, although the book Value Was SOmeWhat 1OWer.

It thus appears that in neither the judgment nor the Opinion is market Value made a rigid test of true Value, but it is nothing more than a convenient index and evidence of true value “under ordinary and normal conditions.” With this View We are fully in accord, as well as with the reasoning and conclusions of the opinion on the other branches of the case; and for the reasons given in that Opinion the judgment Will be affirmed.

(82 N. J. L. 532) MAYOR AND COMMON COUNCIL OF CITY OF NEWARK et al. V. CLARK. (Court of Errors and Appeals of New Jersey. Nov. 20, 1911.) Error to Supreme Court. Action by the Mayor and Common Council Of the City of Newark and others against W. Campbell Clark. Judgment for plaintiffs, and defendant brings error. Affirmed.

John R. Hardin, for plaintiff in error. Herbert Boggs, for defendantS in error.

PER CURIAM. This case was argued With the case of Mayor, etc., of Newark V. Tunis, Executrix, 81 Atl. 722, decided at the present term, is similar in its essential facts, and is controlled by the decision in the Tunis Case.

For the reasons given in the Opinion filed in that case, the judgment of the Supreme Court will be affirmed.

(82 N. J. L. 533) MAYOR AND COMMON COUNCIL OF CITY OF NEWARR et al. V. CONKLIN. (Court of Errors and Appeals of New Jersey. Nov. 20, 1911.)

Error to Supreme Court.

Action by the Mayor and Common Council of the City of Newark and others against Archibald W. Conklin. Judgment for plaintiffs, and defendant brings error. Affirmed.

John R. Hardin, for plaintiff in error. Herbert Boggs, for defendants in error.

PER CURIAM. This case was argued With the Case Of MayOr, etc., Of NeWark V. Tunis, Executrix, 81 Atl. 722, decided at the present term, is similar in its essential facts, and is controlled by the decision in the Tunis CaSe.

For the reasons given in the opinion filed in that case, the judgment of the Supreme Court Will be affirmed.

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(82 N. J. L. 400)
GILSON et al. V. APPLEBY.
(Court of Errors and Appeals of New Jersey.
Nov. 21, 1911.)

CORPORATIONS (§ 232*)—INSOLVENCY AND RE

CEIVERS—RIGI1T TO COLLECT UNPAID SUB

SCRIPTIONS.

Where a corporation issues a certificate of

stock for property purchased, for an amount known to be in excess of the value of such property, which contains a provision that the stock is fully paid and unassessable, the receiver of such corporation may maintain a proceeding against such stockholder to enforce his liability for the unpaid part of his subscription, without first procuring an annulment of the subscription contract.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 879–SS4; Dec. Dig. § 232.*]

Error to Supreme Court.

Action by Herbert C. Gilson and others against J. Charles Appleby. Plaintiffs' Writ Of attachment Was quashed by the circuit court, and on certiorari such order was affirmed by the Supreme Court (S0 N. J. Law, 542, 77 Atl. 1084), and plaintiffs bring error. Affirmed.

See, also, 78 Atl. 668.

J. Merritt Lane, for plaintiffs in error. Hartshorne, Insley & Leake, for defendant in error.

GUMMERE, C. J. This suit was begun by a Writ of attachment sued out of the circuit Court of Hudson county. That court quashed the Writ, upon the ground that the alleged debt SWOrn to in the affidavit on which the Writ issued was in the nature of a claim for unliquidated damageS; it being a liability imposed by the corporation act upon the defendant as a stockholder of the J. C. Appleby Sand & Clay Company to respond to the

plaintiffs, as receivers of that corporation, , Dig. §§ 183–189; Dec. Dig. $ 71

for the unpaid amount of his stock subscriptions, for the purpose of paying debts of the Corporation. Upon certiorari Sued out to review the validity of this order of the circuit Court there Was an affirmance (S0 N. J. LaW, 542, 77 Atl. 1084), and this Writ of error Challeluges the SoundneSS Of the ConcluSion reached by the Supreme Court.

We concur in that conclusion, and for the reaSOnS Set Out in the opinion delivered by that Court, With Which We are entirely Satisfied, except in one particular, which we noW- point out. The Opinion, after reciting that Where a corporation issues a certificate of Stock for property purchased, and such certificate contains a provision that the stock iS fully paid and unassessable, it constitutes a contract between the corporation and the shareholder, then intimates (as we understand it) that, in case the corporation afterWards becomes insolvent, Such Shareholder, even though the stock issued to him was known by both parties to be in excess of the Value of the property purchased, Cannot be called upon by the receiver to make COntribution for the purpose of paying the debts of the Corporation until that officer has, by proper proceedingS, procured an annullment of the contract. In the case of Easton National Bank V. American Brick & Tile Co., 70 N. J. Eq. 722, 728, 64 Atl. 1095, this court pointed out that such a contract contravened the prohibition of the corporation act, and Was not merely voidable, but Void. We accordingly held that such a contract could not be laid hold of by either party as a ground of action or a ground of defense, that no bill Or Other Original proceeding WaS neCessary to procure an adjudication of its nullity, and that, in a proceeding by a receiver to enforce the liability of StockholderS for the unpaid portion of their subscriptions, the court was at liberty, upon ascertaining the facts that rendered the contract void, to treat it as affording no obstacle to the granting of the relief sought by the receiver. The view there expressed was reached after full consideration, and We See no reason for departing from it.

The judgment under review will be affirmed.

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GUMMERE, C. J. The bill in this case was filed to set aside two deeds of conveyance made by the complainants to Sidney S. Ward, the defendants' decedent, upon the ground that they were executed under duress exercised upon the grantors by Mr. Ward; the duress complained of consisting of threats of the immediate arrest and imprisonment of their Son, Arthur D. Ball, for Obtaining money from Mr. Ward under false representations.

We concur in the conclusion reached by the learned Vice Chancellor that the COmplainants established by a fair preponderance of proof the validity of their claim that these conveyances were made as a result of the threat to have their Son arrested, and for the purpose of preventing that threat from being carried into effect. The analysis of the testimony made by the Vice Chancellor, and set out in his opinion, is complete and accurate, and leaves nothing to be added by us. The Vice Chancellor further concluded from the proofs submitted that the money advanced by Ward to the son of the complainants was not, in fact, obtained under false pretenses, although Mr. Ward probably believed that this was the case when he made the accusation to the complainants. We concur in this conclusion of the Vice Chancellor, and for the reaSOnS Which he States in his opinion.

Having reached these conclusions upon the facts, the Vice Chancellor in his opinion then takes up the consideration of the question whether a conveyance made by parents to a creditor of their son, under the pressure of a threat to have the Son criminally prosecuted, is valid, when it appears that the creditor honestly believed that the son had subjected himself to such a prosecution, although the Contrary Was the fact. He reaches the conclusion that the grantors of a conveyance made under Such ConditionS are entitled to have it Set aside. We concur with him in this view. In discussing this latter question, however, the learned Vice Chancellor goes outside of the lines of the question, and the conclusion declared by him Is broader than the decision of the case required. He thus states it: “In my judgment, the equitable rule to be applied in this case is that it is against equity and good conscience for the creditor to extort from the parent payment or security for the debt of the son, for which the parent is not

NEW JERSEY IMPERIAL R. CO. v. FREEHOLDERS, GLOUCESTER CO.

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responsible, by threats of criminal prosecution of the son, even if imprisonment be lawful.” The question whether a conveyance made by a parent to prevent the imprisonment of a child who has, in fact, been guilty of a criminal offense, may afterward be set aside at the option of the parent, is one upon which judicial views are not in harmony. It is not presented under the facts found by the Vice Chancellor, and concurred in by us, and any expression of view upon the question by this court Would, consequently, be obiter. For this reason We neither assent to, nor dissent from, what was said by the learned Vice Chancellor upon this points The decree under review will be affirmed.

(82 N. J. L. 535) NEW JERSEY IMPERIAL ROAD CO. V. FIREEIHOLDEIS OF GLOUCESTER COUNTY. (Court of Errors and Appeals of New Jersey. Nov. 20, 1911.)

(Syllabus by the Court.) APPEAL AND ERRoR ($ 66*) – REVIEw — REFUSAL OF CHANGE OF VENUE. Alleged error in refusing application for a change of venue (assuming the change asked for was a matter of right) held not reviewable by writ of error prior to final judgment. [Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 66.*] Error to Supreme Court. Action by the New Jersey Imperial Road Company against the Freeholders of Gloucester County. Judgment for plaintiff (80 N. J. Law, 640, 77 Atl. 1022), and defendant brings error. Dismissed.

John Boyd Avis and David O. Watkins, for plaintiff in error. Carrow & Kraft, for defendant in error.

PER CURIAM. The plaintiff in error seeks to bring under review an Order made by the Supreme Court refusing defendant's application for a change of venue. It is Contended that the action is local in its nature, and that the change of Venue asked for by the defendant was a matter of right. We are not called upon to pass upon this question, because it is manifest from the state of the case that the action has not been brought to trial and that no final judgment has been rendered therein. In Deflance Fruit Co. V. FOX, 76 N. J. LaW, 482, 70 Atl. 460, the cause had proceeded to final judgment. Our review by writ of error is confined to final judgmentS. 2 Gen. St. p. 1391, § 1; Chambers v. Philadelphia Pickling Co., 79 Atl. 273; State v. Kelsey, 82 Atl. 13, decided by this court during the present term.

The Writ of error Should be dismissed.

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

(82 N. J. L. 421) DAYTON v. BOETTNER et al.

(Court of Errors and Appeals of New Jersey. Nov. 20, 1911.)

(Syllabus by the Court.)

1. CouRTS (§ 488*)—CoNFLICTING JURISDICTION —STRIKING OUT PLEADINGs. The power to strike out a pleading in an action in the Supreme Court is lodged solely in that court or in a justice thereof, and is not possessed by a circuit court judge to whom the cause has been referred for trial pursuant to chapter 118 of P. L. 1906, p. 209. [Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1316–1323; Dec. Dig. § 488.*]

2. ACTION (§ 41*)—JOINDER OF CAUSES-FORMS OF ACTION. L. * Under rule 16 of the Supreme Court counts in debt and in assumpsit may be joined in the same suit. [Ed. Note.—For other cases, see Action, Cent. Dig. §§ 328–359; Dec. Dig. § 41.*] 3. APPEAL AND ERROR (§ 103*) – DECISIONS REVIEWABLE-REFUSAL TO STRIKE PLEADINGS. A refusal to strike out a pleading cannot be made a part of the record so as to be reviewable on a writ of error. It is only when the motion to strike out has prevailed that section 110 of the practice act (P.L. 1903, p. 569) permits error to be assigned thereon. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 699–710; Dec. Dig. § 103.*] 4. EVIDENCE ($ 373*) – DoCUMENTARY EVIDENCE-AUTHENTICATION. Where there is no subscribing witness to a bond in suit, the testimony of a witness at the trial that he saw the defendant sign it justifies its admission in evidence. [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1581–1586; Dec. Dig. § 373.”]

5. APPEAL AND ERROR (§ 1058*)—REVIEw— HARMLESS ERROR—ExCLUSION OF EVIDENCE. An objection that a question of cross-examination was overruled will not be considered where substantially the same question was afterwards put to the same witness and answered.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4200-4206; Dec. Dig. § 1058.*] 6. TRIAL (§ 139*)—TAKING QUESTION FROM JURY—NONSUIT. Where the evidence will support a verdict £ plaintiff, a motion to nonsuit must be enled.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 338–341; Dec. Dig. § 139.*]

Error to Supreme Court.

Action by John M. Dayton against Frank A. Boettner and Others. Judgment for plaintiff, and defendants bring error. Affirmed.

Harry W. Osborne, for plaintiffs in error. Rene P. Von Minden and Isaac P. Runyon, for defendant in error.

TRENCHARD, J. On July 17, 1902, Frank A. Boettner and Henry Pomerehne executed a bond to John M. Dayton for $1,880 payable in One year from the date thereof. Certain payments were made on account, and in 1910 Dayton brought this suit in the Supreme Court to recoVer the remainder due. The

declaration Contained a Special Count on the bond in debt and the common counts in asSumpsit. The defendants pleaded payment to the Special Count, and nona SSumpsit to the common counts. Upon trial at the Middlesex circuit, before the circuit court judge to Whom the cause had been referred for trial by the justice of the Supreme Court holding the circuit, the plaintiff recovered a verdict, and the judgment entered thereon is here for reView. The first assignment of error challenges the refusal of the trial judge to strike out the COmmon COuntS. [1] We are of Opinion that Such refusal was proper. The power to strike out a pleading in an action in the Supreme Court is lodged Solely in that Court Or in a justice thereof, and is not possessed by a circuit Court judge to Whom the cause had been referred for trial pursuant to Chapter 118 of P. L. 1906, p. 209. See section 110 of the practice act (P.L. 1903, p. 569); Hubbard v. Montross Metal Shingle Co., 79 N. J. Law, 208, 74 Atl. 254; McConnell V. Alpha Portland Cement Co., 74 N. J. Law, 730, 67 Atl. 346. [2] Moreover, the contention of the defendantS that COuntS in aSSumpsit Could not be lawfully joined with one in debt was not well founded. Under rule 16 of the Supreme. Court, Counts in debt and in assumpsit may be joined in the Same suit. [3] But there is a reason of a fundamental character why the assignment of error under Consideration Cannot avail the defendants, and it is this: a refusal to strike out a pleading Cannot be made a part Of the record SO aS to be reWieWable On a Writ Of error. It is . Only When the motion to Strike out has preVailed that Section 110 of the practice act (P. L. 1903, p. 569) permits error to be aSSigned thereon. Cooper V. Wanderweer, 47 N. J. Law, 178. [4] The Second assignment of error, namely, that the trial judge erroneously admitted' in evidence the bond on which the plaintiff founded his suit, is without merit. There. Was no Subscribing Witness to the bond, and . a WitneSS at the trial testified that he "Sawthe defendants Sign it. Since that proof jus-tified the admission of the bond in evidence, it is unnecessary to determine whether it. was admissible under the pleadings without Such proof. [5] The third assignment alleges that thetrial judge erroneously overruled a question propounded to the plaintiff on cross-examination. But this Will not be considered for thereaSOn that Substantially the same question was afterwards put to the same witness and answered. Redhing v. Central R. Co., 68 N.J. LaW, 641, 54 Atl. 431; Chesebrough V. Tirrill, 61 N. J. Law, 629, 41 Atl. 215; O'Brien, v. Traynor, 69 N. J. Law, 239, 55 Atl. 307. [6] The fourth assignment of error ques-tions the propriety Of the refusal Of the trial.

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