1889, c. 731] provides that the elector 'shall | tions are required by law to be held upon prepare his ballot by marking in the appro- failure to elect in the first instance."

priate 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 ballots 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.

It follows, accordingly, that an order for a new election must be made, and the same is hereby ordered to be holden for said office in said town on the 9th day of January, 1912, in accordance with law.

INLAID CO. v. AL. FRIEDMAN & CO. (Supreme Court of Rhode Island. Dec. 7, 1911.)

Friedman & Co. There was a default judgment
Action by the Inlaid Company against Al.
against defendants, and the superior court re-
fused to vacate the default, and defendants fil-
ed a petition for trial, under Gen. Laws 1909,
c. 297, § 1. Denied.

plaintiff. Barney & Lee, for defendants.
C. M. Van Slyck and Frederick A. Jones, for

PER CURIAM. The petition for a trial is denied.

PERRIER v. DUNN WORSTED MILLS. (Supreme Court of Rhode Island. Dec. 6, 1911.)

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge. Action by Alphonse Perrier against the Dunn Worsted Mills. Judgment for defendant, and plaintiff excepts. Case remitted to the superior court, with direction to enter judgment for the defendant upon the verdict.

See, also, 75 Atl, 1103.

Thomas P. Corcoran, Lewis A. Waterman, and Ernest P. B. Atwood. for plaintiff. Gardner, Pirce & Thornley (William W. Moss, of counsel), for defendant.

PER CURIAM. We are convinced that a verdict for the plaintiff could not have been supported upon any view of the evidence. The direction of a verdict for the defendant was proper.

[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 erase 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 im- (Court of Errors and Appeals of New Jersey.

properly 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.

Case remitted to the superior court, with direction to enter judgment for the defendant upon the verdict.

MAYOR

CITY

(82 N. J. L. 461)
AND COMMON
AND COMMON COUNCIL OF
OF NEWARK v. TUNIS et al.

Nov. 20, 1911.)

(Syllabus by the Court.)

TAXATION (§ 384*)-NATIONAL BANK SHARES "TRUE VALUE."

this case, that the true value of national bank The rule adopted by the Supreme Court in shares for taxation is, under ordinary and normal conditions, their exchangeable value in the market, is a working rule, and not an invariable test of true value under any and all circumstances.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 635; Dec. Dig. § 384.* For other definitions, see Words and Phrases, vol. 8, p. 7115.]

[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 Action by the Mayor and Common Council a new election in all cases where new elec- of the City of Newark against Carrie E.

Error to Supreme Court.

N. J.)

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

723

Tunis and others. Judgment for plaintiffs, | than true value is illustrated by the case of and defendants bring error. Affirmed.

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

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

Stratton v. Collins, 43 N. J. Law, 562, 566, ably above the valuation fixed by the assessor, in which the stock was selling at consideralthough the book value was somewhat lower.

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.

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

(82 N. J. L. 533)

MAYOR AND COMMON COUNCIL OF
CITY OF NEWARK et al. v.
CONKLIN.

Nov. 20, 1911.)

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, there- (Court of Errors and Appeals of New Jersey. fore, 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 For the reasons given in the opinion filed value in the market. That such exchange in that case, the judgment of the Supreme value may be sometimes considered higher Court will be affirmed.

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 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 cir- · cuit court there was an affirmance (80 N. J. Law, 542, 77 Atl. 1084), and this writ of error challenges 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 sat-
isfied, except in one particular, which we
now point out.
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 under-
stand it) that, in case the corporation after-
wards 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 con-
tribution for the purpose of paying the debts
of the corporation until that officer has, by
proper proceedings, procured an annulment
of the contract. In the case of Easton Na-

tional 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
We ac-
was not merely voidable, but void.
cordingly 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 nec-
essary to procure an adjudication of its null-
ity, 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 grant-
ing of the relief sought by the receiver. The
view there expressed was reached after full
consideration, and we see no reason for de-
parting from it.

The judgment under review will be affirmed.

(79 N. J. E. 170)

BALL et ux. v. BALL et al.

GUMMERE, C. J. This suit was begun by (Court of Errors and Appeals of New Jersey.

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,

Nov. 20, 1911.)
DEEDS (§ 71*)-VALIDITY-THREAT OF PROSE-

CUTION.

tor of their son under pressure of a threat to Parents, who make a conveyance to a credihave the son criminally prosecuted, made in the honest belief that the son had subjected himself to such a prosecution, although the contrary was the fact, are entitled to have the convey

nce set aside.

[Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 183–189; Dec. Dig. § 71.*]

N. J.) NEW JERSEY IMPERIAL R. CO. v. FREEHOLDERS, GLOUCESTER CO. 725

Appeal from Court of Chancery.

Bill by John B. Ball and wife against Nellie W. Ball and others. From a decree for plaintiffs, defendants appeal. Decree affirmed.

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

Pitney, Hardin & Skinner, for appellants. guilty of a criminal offense, may afterward Riker & Riker, for respondents.

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.

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 point

The decree under review will be affirmed.

(82 N. J. L. 535)
NEW JERSEY IMPERIAL ROAD CO. v.
FREEHOLDERS OF GLOUCES-
TER COUNTY.

Nov. 20, 1911.)
(Syllabus by the Court.)

APPEAL AND ERROR (§ 66*) REVIEW - RE-
FUSAL 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.

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 (Court of Errors and Appeals of New Jersey. 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

[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 Defiance 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