N. J.)

plaintiff, and he brings error. and venire de novo ordered.

RUSKIN V. ARMN

Argued June term, 1911, before GUMMERE, C. J., and PARKER and VOORHEES, JJ.

343 Reversed, 810. But the judge took the ground in excluding the plea when offered in evidence that its withdrawal as a part of the record removed it from the case for all purposes; and this in spite of the facts that it had been placed on the record by defendant and allowed there to remain as a substantial reiteration of the alleged libel until after the jury was sworn and until after plaintiff's counsel had in the course of preparation for the trial subpoenaed a large number of witnesses and presumably communicated to them the contents of the plea that they were to be called to contradict by their testimony.

William Greenfield, for plaintiff in error. Frank E. Bradner, for defendant in error.

PARKER, J. This is an action of libel. The plaintiff had a verdict for six cents, and sues out this writ of error. There are 27 specific assignments of error, but with one exception we find no harmful error in the case. This error, however, will require a reversal of the judgment and a venire de novo. The suit was based on a petition, signed by some 40 persons, which was addressed to the Newark excise board and protested against the granting of a liquor license to plaintiff on two grounds: First, that there were already enough saloons in the particular locality; and, secondly, that plaintiff was not of good reputation and had conducted a saloon previously in an illegal manner. This second ground was of course the part charged as libelous. The defendant did not sign the petition, but he circulated it and obtained signatures and was instrumental in presenting it to the excise board. Some 20 signers were joined with him as defendants, but as to them there was a discontinuance at the trial.

Defendant pleaded: First, the general issue; secondly, that the statements, etc., in the petition presented to the board, etc., “are true”; thirdly, that the communication was privileged. At the opening of the trial, defendant's counsel asked leave to strike out the "plea of justification," evidently meaning the second plea.. This was opposed on the ground that plaintiff had prepared to rebut it, and had been holding a number of witnesses for that purpose. The court al lowed the withdrawal of the plea on payment of costs, and added that the "question

The rule, as we understand it, is that a plea of justification, unsupported by proof, may be considered by the jury as an aggravating circumstance in assessing the damages. 25 Cyc. 416; 18 Encyc. Law (2d Ed.) 1104; Townshend, L. & S. § 400; Odgers, L. & S. § 311; 1 Chitty, Pl. (12th Am. Ed.) 509; Fodor v. Fuchs, 79 N. J. Law, 529, 532, 76 Atl. 1081.

In Moore v. Beck, 71 N. J. Law, 8, 58 Atl. 166, this court held that, when evidence was produced in support of a plea of justification, the fact that it "failed to convince the jury of the truth of the alleged slanderous words afforded no ground for holding as matter of law that the plea was filed in bad faith, or that the words were spoken with a malicious motive, and therefore justified the jury in awarding exemplary damages." But this does not reach the question under consideration, which is whether the jury were entitled to consider the reiteration of the accusation in judging of the question of malice.

There are authorities which hold that, if a plea of justification be withdrawn, it is out of the case for all purposes, and the jury are not entitled to consider it in aggravation of damages. Gilmore v. Borders, 2 How. (Miss.) 824; Shirley v. Keathey, 4 Cold. (Tenn.) 29. We find difficulty in adopting the reasoning of decisions which hold that a defendant may go on record as reiterating * whether plaintiff is entitled to a libel, and escape all responsibility by withclaim any damages against these defendants drawing it at the last moment. In Warwick for putting on the record a plea of that v. Foulks, 12 M. & W. 507, an action for false character and then not following it up, I imprisonment, there was a plea of justificaneed not decide now." Toward the end o"tion that plaintiff had committed a felony ; plaintiff's case in chief, however, the ques tion came up in this way: Plaintiff's counsel offered in evidence the second plea, and asked leave to read it to the jury. This was objected to and argument had, and the court overruled the offer and refused to let the plea be read. This was excepted to and error duly assigned; and this was the judicial action which in our view was erroneous and prejudicial to the plaintiff, and requires a reversal of the judgment.

No exception was taken to the action of the trial judge in permitting the withdrawal of the plea; and indeed it was unexceptionable. Van Pelt v. Whitlock, 5 N. J. Law,

but the plea was abandoned at the trial. The jury were instructed that the putting of such a plea on record was a persisting in the charge and was to be considered by them in assessing damages; and this instruction was upheld.

To the same effect is Smith v. Compton, 67 N. J. Law, 548, 52 Atl. 386, 58 L. R. A. 480, decided by the Court of Errors and Appeals. In that case, which was a suit for breach of promise, the defendant, in response to a demand for a specification of defenses under section 116 (now 104) of the practice act (P. L. 1903, p. 567), served notice that he proposed to show, among other things,

that he had lawfully rescinded the contract [ because of discovering that plaintiff was not of good moral character. This notice was not filed before the opening of the trial, and at about that time defendant's counsel in

(82 N. J. L. 94)

CITY OF ELIZABETH v. CENTRAL R.
CO. OF NEW JERSEY.

(Supreme Court of New Jersey. Nov. 1, 1911.)
(Syllabus by the Court.)
TRIAL ( 169*)-TAKING CASE FROM JURY-

DIRECTION OF VERDICT.

In order to warrant the direction of a verdict for a defendant, it should appear that his case was clearly insuflicient to justify a the evidence offered by the plaintiff to sustain verdict in his favor, and that a verdict ren

as unsupported by the evidence or against the weight of it.

formed the plaintiff's counsel that the particular specification would not be relied on. Plaintiff's counsel was nevertheless permitted to offer it in evidence in aggravation of damages; and this was sustained by the court of review on the theory that the specification had a tendency to humiliate plain-dered for the plaintiff thereon would be set aside tiff in the estimation of her counsel and made it necessary to inform her witnesses that her character would be attacked-a precise parallel to the present case, and stronger, in that the paper in question was not a court record open to the world, but a mere notice as between the parties, so far as related to any act of defendant or his counsel.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 376-380; Dec. Dig. § 169.*]

Case Certified from Circuit Court, Union County.

Action of ejectment by the City of Elizabeth against the Central Railroad Company of New Jersey. Heard on case certified from the Union county circuit court. Rule to show cause why verdict for plaintiff should not be set aside ordered discharged. See, also, 79 N. J. Law, 542, 77 Atl. 529. Argued June term, 1911, before SWAYZE and BERGEN, JJ.

James C. Connolly and Frank Bergen, for plaintiff. Frederic J. Faulks and Richard V. Lindabury, for defendant.

We think it is clear that the placing on record of the second plea reiterating the truth of the charges contained in the petition was a fact that the plaintiff was entitled to place before the jury as evidence of malice. The fact that it was withdrawn by leave of court does not help the defendant. All that that withdrawal accomplished was to modify the record on which the case was to be tried, by depriving the defendant of any right previously existing by virtue of this plea BERGEN, J. The plaintiff brought this of putting in evidence the truth of the state-action in ejectment to recover possession of ments of the petition. The effect would have a tract of land which it claims is a part of been practically the same had defendant simply announced that he would offer no evidence in support of the second plea, and plaintiff dismissed his witnesses. In either case the fact would remain for the consideration of the jury that defendant had formally, in writing, and of record, reiterated a statement which by his withdrawal of it at the trial he conceded to be false.

It is urged for defendant that the plea was invalid in form as a plea of justification, in that it simply alleges generally the truth of the charges, without stating specific facts; and no doubt this is true. 1 Chitty, Pl. 494; Fodor v. Fuchs, 77 N. J. Law, 92, 71 Atl. 108. Fodor v. Fuchs, 77 N. J. Law, 92, 71 Atl. 108. But we fail to see that the question of the legal sufficiency or otherwise of the plea as a pleading has any relation to the libelous character of the statement it contained.

We conclude, then, that the trial court should have permitted the plea that was withdrawn to be put in evidence and read to the jury, and that injurious error resulted from its exclusion.

This disposes of the only assignment of error requiring a reversal. We find no other injurious error either in the charge or in the course of the trial that is properly brought up for review.

a public highway in the city of Elizabeth, now called Elizabeth avenue, of which the defendant now has the possession. The highway is a very ancient one, having been established by the colonial Legislature in 1765 (Allinson's Laws, p. 269), and then and nows runs across a tract of land designated as the "Old Point .Tract" to the "edge of the Sound"; i. e., Staten Island Sound. The present dispute is the location of the highwater mark of the Sound when the highway was laid out. The defendant claims to hold the land under a grant from the riparian commissioners made to it in 1874 of a tract of land lying between the original high-water line of the Sound and the exterior wharf line as established by the commissioners, and insists that this conveyance embraces the locus in quo within its boundaries, if the original high-water mark in 1685 was as far north of the present shore line as it claims, and therefore that the entire tract in dispute lies between the original "edge of the Sound" and the present shore line. It is not necessary to pass upon the legal sufliciency of defendant's grant, because the questions certified can be properly disposed of on other grounds, and therefore no opinion is expressed on that matter. The issue at the trial and the one submitted to

The judgment will be reversed to the end the jury was the location of the high-water that a venire de novo issue.

mark when the highway was laid out, and

N. J.)

CITY OF ELIZABETH v. CENTRAL R. CO. OF NEW JERSEY
ELIZA

345

that is the only phase of the case we are | ant (Elizabeth v. Central R. R. Company called upon to consider in the present pro- of New Jersey, 79 N. J. Law, 542, 77 Atl. ceeding. The jury returned a verdict for 529), and, in order to entitle it to a directed the plaintiff, and the trial court allowed verdict on that ground, it must establish that a rule to show cause why the verdict should fact so clearly as to place it beyond reasonnot be set aside upon the ground that it was able doubt. contrary to the weight of the evidence, reserving all bills of exceptions taken at the trial, which rule was later so amended as to require the plaintiff to further show cause why the judgment entered on the verdict, before the rule was allowed, should not be vacated. Subsequently the defendant applied for an order, which was allowed, permitting it to waive all bills of exceptions sealed to the refusal of the court to direct a verdict for the defendant as to the whole, or a part of the locus in quo. The trial The trial court, conceiving that difficult and doubtful questions of law were raised founded on its refusal to direct a verdict for the defendant, either as to the whole, or a portion of the locus in quo, certified to this court for its advisory opinion the following questions: "(a) Whether a new trial should be granted because of the refusal of the court to direct a verdict for the defendant for the whole of the locus in quo? (b) Whether a new trial should be granted because of the refusal of the court to direct a verdict for the defendant for so much of the locus in quo as lies to the southeast of a straight line drawn across the same from northeast to southwest distant from the northwesterly side thereof 66 feet on the northeasterly line and 92 feet on the southwesterly line."

The plaintiff, in order to support its case, produced at the trial an ancient map made in 1797 called the "De Camp map," on which was protracted, but without courses or distances, the ancient highway, showing that it ran to the Sound. It appears from this map that on the westerly side of the avenue there is a monument, placed there in 1690 or 1691, the date marked thereon appearing to be 1691. This monument is still in existence, well preserved, and the accuracy of its location is not disputed. cation is not disputed. This map, called in this case the De Camp map, is drawn to a scale, and the distance from the monument along the ancient highway to the Sound, ascertained by scaling the map, is substantially the distance at the present time between the two points, so if the map is accurately drawn, according to the scale stated on it, it would be quite persuasive that the original high-water mark is now where it was in 1765, which is south of the locus in quo. In 1797 the land belonged to John Stites, Aaron Ogden, and Jonathan Dayton, as tenants in common, and in 1802 Dayton conveyed his interest in the tract lying on the east of the avenue to Thomas Gibbons, which is described in the deed as "beginning on the northeast side of the Old Point Road six rods, north fifty two degrees, twenty minutes east, from the stone marked R. T. 1690, which is a corner of land belonging to Thomas Crowell, from said beginning, running along the northeast side of the road south thirty two degrees and forty five minutes east, thirty four chains and sixty eight links more or less to the edge of the Sound, and one chain more into the Sound," and then, following numerous courses and distances, to a large white oak tree, "being the northerly corner of the Old Point Farm." It thus appears that in a deed made in 1802, the distance from the old monument to the Sound substantially corresponds with

In order to warrant the direction of a verdict for a defendant, it should appear that the evidence offered by the plaintiff to sustain his case was clearly insufficient to justify a verdict in his favor, and that a verdict rendered for the plaintiff thereon would be set aside as unsupported by the evidence or against the weight of it. Hartman v. Alden, Ex'rs, 34 N. J. Law, 518; McCormack v. Standard Oil, 60 N. J. Law, 243, 245, 37 Atl. 617. So, if there be any evidence from which the jury could properly infer that the original high-water mark was south of the locus in quo in 1765, then contradictory testimony offered by the defendant the present distance from the monument to would raise a disputed question of fact, and not a doubtful question of law. The defendant claims that, not only did the plaintiff fail to show any title to the land in controversy, but, on the contrary, defendant's case conclusively demonstrated that, when the road was laid out, its terminal point, the edge of the Sound, was north of the locus in quo, and that all of the locus in quo was an alluvial formation, which the defendant argues is subject to the right of the state to grant, and that, if the evidence was not absolutely conclusive, it so overweighted that offered by the plaintiff as to require the setting aside of the verdict in its favor. The burden of showing the location of the original high-water mark is on the defend

the Sound, and that the same result is reached by scaling a map made five years earlier. In addition to the above there were other deeds and maps from which an inference may be drawn that the measured distance from the old monument to the highwater line has remained practically the same for over a century, so, if the proofs offered by the plaintiff have any evidential force, they tend to show that, contrary to the claim of the defendant, the entire locus in quo has always been located above the present highwater mark of the Sound, and, if this be true, the plaintiff has conclusively established its right to the land in dispute. But the defendant claims that it has met this testimony by such a preponderance of evidence

as to justify the disregarding of the finding | he assumed had been correctly located by of the jury for the plaintiff, and the setting another surveyor, and, when he was asked aside of the verdict, upon the ground that whether he knew that it was correctly loit is against the weight of the evidence. cated, answered, "Well, the surveys made The accuracy of the De Camp map is as at various times shows there must have sailed, and, it is claimed, its evidential value been some accuracy to it because they do is destroyed, by the testimony of Mr. Quien, not vary." It does not appear that he who made a survey of the tract in the year measured to the point called for in the orig1870, which he claims demonstrates that De inal field notes, but to what he assumed to Camp had located the white oak tree about be the original line of the Old Point tract 70 feet south of its proper place. He did as established by other surveys. Then, again. not find the oak tree, for that had disap- in the fifth course he did not follow either peared many years ago, nor anything to the bearings contained in the field notes of indicate its location, at the point fixed by 1790, nor the course called for therein as him, except a depression in the ground about modified by making the proper allowance 70 feet north of the place where the De for the period that had elapsed between Camp map locates it, and, if he be correct, 1790 and 1870. It cannot be said as a matthen the distance along the highway between ter of, law that the accuracy of such surthe Sound and the old monument would be vey has been so clearly demonstrated as to 65 feet less than the De Camp map and remove that question from the consideration the deed of 1802 calls for, and this would of the jury, or to entitle it to so much bring the original high-water mark through weight as to justify the conclusion that a the locus in quo at a point about 70 feet finding in favor of the old records is against north of the present shore line. If this the weight of the evidence. error is not clearly demonstrated, then the It is also urged that the deed of 1802 inaccuracy of the map is not conclusively has no force because it was prepared from shown. As the De Camp map substantially the De Camp map, and that the distance follows the field notes made for the com- called for by the deed along Elizabeth avemissioners of whom De Camp was one, ap-nue, where no figures appear on the map, pointed in 1790 to partition the land adja- was undoubtedly obtained by scaling the cent to the highway, it is assumed by the map, but that inference has no fact to supdefendant that the map was made from port it. If we enter the realm of probabilsuch field notes, but the map and notes do ities, it is more likely that the distance was not exactly correspond, and as the map is measured, and that the deed accurately deindorsed, "surveyed Novem. 1797," at the re- scribes the length of the line. It is quite quest of the owners, and the partition was contrary to common experience to prepare reported in 1790, no conclusive presumption a deed from the scaling of a map, rather arises that the defendant's assumption is than from actual measurements which can correct. The field notes of the 1790 survey conveniently be made. Mr. Harrison was and which the Supreme Court justice who appointed the commissioners directed should be recorded in the office of the clerk of the county of Essex contains the description of a large tract of land across which the highway ran to the Sound, which begins at the stone monument and runs from thence westerly and easterly four courses to the Elizabeth Town creek, and then, returning to the beginning point, runs easterly two courses, and then "(3) north forty eight degrees west eleven chains and thirty six links to James preponderance of evidence as to support a Rickett's land; thence (4) north fifty six degrees and thirty minutes east forty seven chains and ninety links *** to a white oak tree, a reputed old corner."

called as an expert, but much of his testimony is rested upon the correctness of the conclusions reached by Mr. Quien, and the testimony with reference to the coast survey is far from convincing. The case is one of fact, the jury heard the evidence offered by both parties, and have drawn the inference which they declared by their verdict, which we think is justified by the evidence, and in our opinion the defendant has not overcome the plaintiff's case by any such

finding that the plaintiff failed in making out its case, or that the defendant so established the location of the original highwater mark at either of the places claimed by it as to require us to say that the verdict is contrary to the weight of the evidence.

The errors which Mr. Quien claims to have discovered are that the fourth course above set out measures about a chain less than that called for by the notes and map, and he finds As in our opinion the verdict of the jury, such a variance in the bearings of the fifth that the whole of the locus in quo is the course that its proper termination at the property of the plaintiff, is supported by oak tree is about 70 feet north of that called testimony, and such testimony has not been for in the ancient documents. That the sur- met by any such preponderating evidence as vey made by Mr. Quien is not indisputably to justify us in concluding that the jury correct, or even entitled to much considera- had not sufficient evidence upon which to tion as evidence, is exhibited by his testi- rest their verdict, it becomes unnecessary to mony, which is that when measuring the consider the second question certified, name