wick, and the pertinent statute is the act of v. Mager, 64 N. J. Law, 94, 99, 44 Atl. 983, 1905, P. L. p. 75, 4 Comp. St. 1910, p. 5163, pl. 151, etc., providing, in substance, that in cities of a population between 15,000 and 35,000 the council may appoint three assessors to hold office for three years from January 1st next preceding the date of their appointment, and until their successors are appointed and qualify, vacancies for any cause to be filled for the unexpired term only; the city to be divided into three assessment districts, and one of said assessors to be assigned by the council to each district. There are other provisions not relevant to this case. The facts as set up in the information and plea and admitted by the demurrer are that in April, 1905, assessors were appointed under the above act for a term expiring January 1, 1908; their successors were then appointed for a term expiring January 1, 1911; that no new appointment was then made, and the old assessors continued to serve until January 8, 1912, when the council declared a vacancy to exist, and appointed relator, Mount, for a term of three years, and assigned him to the first district, that he thereupon took the required oath and entered on his duties, and continued to perform the same until January 1, 1913, when council again declared a vacancy, and appointed the respondent Howell for the "term prescribed by law," and that he on the same day took the oath and entered on the performance of his duties as assessor, and continues to perform the same. [1] Upon this state of facts we conclude that the relator is entitled to judgment of ouster. It is argued for respondent: First, that the appointment of Mount for a full term on January 8, 1912, was entirely void because a year of the term had already elapsed, and the appointment should have been for only the remaining two years. We think that, apart from other considerations, the appointment was at least good until January 1, 1914; but it is unnecessary to decide this, because the statute in express terms provides that appointees serve, not only for three years, but until their successors are appointed and qualify, and the appointments for unexpired terms are only in cases of a vacancy. But there is no vacancy where the council fails to act at the end of a three-year term, for the assessors in office hold over by the express terms of the act until their successors are appointed and qualify. It follows, therefore, that the council in 1912 lawfully appointed assessors for a full three-year term. [2] Next, it is argued that the title of the act is defective as failing to express its object in a constitutional sense. It is entitled "An act to provide for the appointment, term of office and salary of assessors in certain cities of this state, and prescribing their duties." The point made is that the phrase is relied on. The title of the act examined in that case spoke of "certain towns, boroughs and townships." It was properly held unconstitutional because it was confined to such towns, boroughs and townships as had a population of 10,000 or over according to the last census, and consequently the latter part of the opinion, holding that the title was defective, was substantially obiter. It overlooked the fact that in Owens v. Fury, 55 N. J. Law, 1, 25 Atl. 934, Matheson v. Caminade, 55 N. J. Law, 4, 25 Atl. 934, Oler v. Ridgeway, 55 N. J. Law, 10, 25 Atl. 936, and McLean v. Gibson, 55 N. J. Law, 11, 25 Atl. 935, a celebrated group of cases decided by Chief Justice Beasley, statutes with similar titles were held constitutional, ignoring the alleged insufficiency of title altogether. Since the decision in Sneath v. Mager, the Paterson Commission Case of Attorney General v. McKelvey, involving chapters 45, 46, and 62 of the Laws of 1907, with titles precisely similar in their reference to "certain cities of this state," was considered by this court (78 N. J. Law, 3, 74 Atl. 316), and by the Court of Errors and Appeals (78 N. J. Law, 621, 77 Atl. 94, 97) without any intimation by counsel or the court that there was any infirmity in the title, so that in Quigley v. Lehigh Valley R. R. Co., 80 N. J. Law, at page 491, 79 Atl., at page 461, the present Chief Justice remarked: "It is true that in the opinion [in the McKelvey Case] the question of the validity of the title of the several statutes is not referred to, but it can hardly be supposed that such an apparent defect [if it was considered to be a defect] would have escaped the scrutiny of the astute counsel who attacked the statutes, or of the judges who affirmed their constitutionality. The acts then before the court were only three out of a mass of statutes having similar titles. If the present contention should be sustained, its effect would be to annul a large portion of the legislation of this state regulating the government of our mu nicipalities, many of which [acts] have received judicial approval. This criticism, in our opinion, is not warranted." If the dictum in Sneath v. Mager is in point (and it will be noticed that the act in that case was not confined to one kind of municipalities), it must be considered as overruled by this later pronouncement of this court. [3] It is argued, further, that the grouping of cities between 15,000 and 35,000 population creates an unconstitutional class. But Attorney General v. McKelvey, supra, is only one of a number of decisions which negative this proposition, so far as relates to acts ap plying to the structure and machinery of government of cities, of which acts that under examination is clearly one. [4] Finally it is urged that it appears in fact that relator is still in office, and there is not ousted or disturbed. The answer is that if there is only a partial intrusion, quo warranto will lie; and, where two persons each claim, as in this case, to be exercising, in part at least, the duties of the same office, it is plain that one or the other is intruding. This was precisely the situation in State v. Rogers, 56 N. J. Law, 480, 28 Atl. 726, 29 Atl. 173. It is true that in form the action was by the Governor as relator against both claimants to the office of president of the Senate; but the fourth section of the quo warranto act (P. L. 1903, p. 375), enabling any citizen believing himself lawfully entitled to a municipal office to file as relator an information against any person, "usurp ing, intruding into or unlawfully holding or executing" such office, appears plainly to cover such a case as the present. Respondent says in his plea that he took the oath of office, entered upon the performance of his duties, and is still performing them. We fall to see how he can say that, and at the same time assert that the relator is in no legal sense ousted. Let judgment be entered for the relator, with costs. (85 N. J. L. 409) BATEMAN MFG. CO. v. SMITH. (Supreme Court of New Jersey. Feb. 25, 1914.) (Syllabus by the Court.) 1. MASTER AND SERVANT (§ 250, New, vol. 16 Key-No. Series) INJURY TO SERVANT WORKMEN'S COMPENSATION ACT-AWARD. Any award made under section 2 of the Workmen's Compensation Act (P. L. 1911, p. 136) must be according to the schedule in paragraph 11, and is limited thereby. 2. MASTER AND SERVANT ($ 2504, New, vol. 16 Key-No. Series)-INJURY TO SERVANTWORKMEN'S COMPENSATION ACT-AMOUNT OF AWARD. The amount to be awarded under section 2 of the Workmen's Compensation Act (P. L. 1911. p. 136), to the employé is not to vary according to his age or the character of his work or his expectation of life; the only variance between the cases of different employés is that caused by a difference in wages earned. disability, permanent in quality, so that the petitioner will never again be able to resume his occupation or any other occupation of a similar character. That the said injuries amount to more than the loss of a foot, and did not result in an injury partial in character but in a total disability, permanent in quality." The judge was ruled to certify the facts upon which he concluded that the disability was total in character and permanent in quality, and amounted to more than the loss of a foot, and also to certify the evidence to support his findings. Argued November term, 1913, before SWAYZE and BERGEN, JJ. Joseph Beck Tyler, of Camden, for plaintiff. Lewis Starr and S. Huntley Beckett, both of Camden, for defendant. SWAYZE, J. [1] The respondent's brief and the evidence returned in response to the rule show that the only basis for finding Sec limited by the terms of the schedule. The probable reason for the distinction made by the Legislature between proceedings under the two sections is that section 1 requires proof of the employer's negligence, and section 2 gives the employé, an absolute right to compensation for injury by accident arising out of and in the course of the employment. The greater certainty of recovery under Certiorari to Court of Common Pleas, Cam-section 2 was probably supposed by the Legden County. Petition under Workmen's Compensation Act by James E. Smith against the Bateman Manufacturing Company. Judgment for petitioner, and defendant brings certiorari. Reversed. islature to be an equivalent for the possibility of a larger recovery under section 1. [2] It seems to have been thought necessary or advisable to make the amount also certain, as far as possible, and for this reason an elaborate schedule was adopted. This Petition under Workmen's Compensation schedule, in order to serve its purpose, must Act. The facts were thus found by the trial be applicable alike to all ages and to all judge: "The petitioner was working in the classes of employés. There is no suggestion polishing department, setting a radiator, and, that the amount to be awarded to a man while engaged in his duties in the employ of should be larger because on account of his the said Bateman Manufacturing Company age the permanent injury to him may be in setting the said radiator, it fell on him greater, nor that it should be less because and broke both bones of his right leg and on account of his youth and probability of crushed and dislocated the ankle of said complete recovery the pecuniary injury may right leg, and also caused a shock to the be less; nor is there any suggestion that nervous system, which has enfeebled and the award should be diminished where, as is less than the 400 weeks for which pay is permitted in case of total disability. The only variance contemplated by the statute, is that caused by a difference in wages earned. The total disability is, to use the words of the act, "a disability total in character,” words which necessarily refer to the character of the disability considered in itself, and not to the effects produced, which have no fixed character but vary with the peculiarities of each individual. Were it otherwise, we should have to determine what kind of a man was meant by the Legislature to receive the standard statutory compensation, whether a young and vigorous man or an old and decrepit man, or some one between the two extremes; and we should then have to vary the award in each individual case, and perhaps never find the typical normal standard. If it is, as we think cannot be doubted, the character of the injury, not the peculiar and varying character of the individual injured, that the statute means, we must look to subdivision "c" of paragraph 11, § 2. The character of a total disability is there fixed as the loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof. Whether this statutory definition of a total disability is exhaustive or not, is clear that the loss of one leg is not, in view of the statute, of the same character as the loss of both. If there could be any doubt on this subject, it would be removed by the fact that the statute carefully provides for the loss of one leg as a partial disability. The trial judge erred in awarding compensation for 400 weeks; it should have been for 175 weeks only. The judgment must In an employé's action for injuries, an instruction to take into consideration any earnings which plaintiff actually lost by reason of his injury in determining the amount of his recovery sufficiently submitted to the jury the extent of the injury from the blow complained of, though there was evidence of the presence in plaintiff's leg of varicose veins, which might have increased the effect of the injury. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 548-555; Dec. Dig. § 216.*] Action by Jacob Pushcart against the New York Shipbuilding Company, for personal injuries. On rule to show cause why new trial should not be granted after verdict for plaintiff. Rule discharged. See, also, 81 N. J. Law, 261, 81 Atl. 113. Argued November term, 1913, before SWAYZE and BERGEN, JJ. Gaskill & Gaskill, of Camden, in support of the rule. Wescott & Wescott, of Camden, contra. BERGEN, J. The plaintiff brought this action to recover from the defendant for injuries which he suffered while in the employment of the defendant because of the negligence of the defendant in not furnishing a proper tool to a fellow workman. The result of the trial was a verdict in favor of the plaintiff for $3,500, and, upon application by the defendant, a rule to show cause why a new trial should not be granted was allowed, in support of which numerous reasons are assigned, not all of which were [2] The first matter urged is that the de(Supreme Court of New Jersey. Feb. 25, 1914.) fendant was entitled to a motion for a nonsuit, which the trial court denied, upon the be reversed, but without costs. (85 N. J. L. 525) PUSHCART v. NEW YORK SHIPBUILD- pressed at the argument. ING. CO. (Syllabus by the Court.) 1. TRIAL (§ 315*)—“QUOTIENT VERDICT"-ES-round that the plaintiff was guilty of con SENTIALS. In order to bring a money verdict within the meaning of a quotient verdict, it must appear that there was an agreement by the jurors that their finding should be determined by the quotient resulting from the division of the summ of the estimates of each juror divided by the number of jurors. It is not enough that the quotient be arrived at in the manner indicated. but in addition to this there must be proof of an agreement by the jurors that the verdict be determined in such manner. The tributory negligence in that he did not use the care to observe the condition of the tool that was required of him by law. plaintiff's case showed that he was engaged as a helper to another employé of the defendant, who was a skilled mechanic, and that the injury resulted from a defective hammer used by his fellow workman, and the contention of the defendant here is that the plaintiff was charged with the duty of ob serving the condition of the tool used by the other workman. No authority is cited in the brief to sustain this proposition, but, assuming this to be so, the plaintiff testified that he did not see the hammer which his partner was using. What he does say is that Where, under the evidence in an employe's the partner "got his hammer right over there action for injuries from defendant's negligence in his closet; he got a closet over there; I in not furnishing a proper tool to a fellow work- don't know what that hammer is." From [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 740-742: Dec. Dig. § 315.* For other definitions, see Words and Phrases, vol. 7, p. 5896.] (Additional Syllabus by Editorial Staff.) 2. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT-NONSUIT. this it appears that the fellow servant had paper by one of the jurors, and he divided procured the hammer from a closet where the sum by 12, which produced something he kept it; and we fail to see how the plain- over $3,500, but all of the ten jurors testitiff could be charged with the duty of ex- fied that there was no agreement to be bound amining a tool used by a fellow servant, and by any such process, and most of them say which the master had supplied him with, they never saw the paper. It was the act who, if he had made the ordinary inspection, of one of the jurors on his own initiative, and would have seen the defect. Whether the the verdict was arrived at independently of plaintiff had the opportunity to examine this any such calculation. Under such circumhammer is a question of fact, and there was stances, there is no proof that the verdict was evidence on this question which should be a quotient verdict within the meaning, in submitted to the jury, and therefore the re-law, of such a term. fusal to nonsuit for this reason was not error. We have examined the other questions argued on this branch of the case and find no merit in them. [3] It is next argued that the condition of the plaintiff's leg (that is, the presence of varicose veins) naturally increased the effect of the injury, but this was a question of fact, and we cannot say from the evidence that the severe injury which resulted from the blow was in any way accelerated by the physical condition of the plaintiff's leg. Up to that time he was able to use his legs and perform any ordinary service, such as that in which he was engaged, and now, according to the testimony, an inference may be drawn that he will never again be able to engage in any work which requires the use of his legs. And the court submitted to the jury the question to what extent the earning capacity of the plaintiff had been impaired by the injury which he suffered from the blow inflicted by the hammer, saying: "For any time, any earnings that he actually lost by reason of this injury, if he is entitled to recover, you should take that into consideration in determining the amount." We think that the extent of the injury resulting from the blow was properly submitted by the trial court to the jury. [1] The next and perhaps most important point is that the jury were guilty of misconduct in rendering what is defined to be a quotient verdict. A quotient verdict is one where the jury take the sum of each estimate submitted by the jurors and divide it by the number of jurors, and, if this clearly appeared, it would be our duty to set aside this verdict, but, in order to hold that the finding of a jury is a quotient verdict, it must also appear that there was a positive prior agreement to abide by the result of this process, and even if there may have been such an agreement, if the jury subsequently refused to abide by it, and find a verdict greater or less than the quotient, it would not be error. It appeared by the testimony of ten of the jurors, taken on this rule to show cause, and that of the two remaining jurors one was dead and the other had no recollection, that the verdict was not arrived at by any such agreement. All that appears is that each juror stated the amount which he thought the plaintiff was entitled to by way of damages, and that these amounts were put down on a The result is that the rule to show cause should be discharged, with costs. (85 N. J. L. 574) WHITEHEAD v. MOCH et al. (Supreme Court of New Jersey. March 11, 1914.) INSOLVENCY (§ 136*)-INSOLVENCY PROCEEDINGS- COMPLIANCE WITH BOND SURRENDER OF DEBTOR TIME "IMMEDIATELY THEREAFTER." When the court refused to discharge the debtor in insolvency proceedings, it was 6 o'clock p. m., and the sheriff was not then in the courtroom. Immediately after his discharge was refused, the debtor asked the deputy sheriff in attendance what he should then do, and was told that he was in the custody of the sheriff, and was taken by the deputy to a room in the courthouse and kept there for an hour. He was then taken to the sheriff's office, which the undersheriff, and thence back to the courtwas closed, and from there to the residence of house, and thence to jail, where a new bond was given by the debtor, after which he was released, but on the way back to the courthouse the deputy and debtor stopped at a restaurant to get something to eat. Held, that the debtor did not breach his bond by failing. upon being refused his discharge, to surrender iff or jailer, as required by the bond, since the himself "immediately thereafter" to the sherquoted phrase, while requiring the debtor to take immediate steps after the refusal to discharge him to comply with the bond by surrenreasonable time to look for the sheriff, if he dering himself to the sheriff, gave the debtor a was not at the courthouse when he was discharged, before going to jail. [Ed. Note.-For other cases, see Insolvency, Cent. Dig. § 209; Dec. Dig. § 136.*1 Action by Margaret Whitehead against Emil Moch and others, on an insolvent bond. On defendants' rule to show cause. Rule made absolute. Argued November term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ. Charles E. S.. Simpson, of Jersey City, for the rule. Alexander Simpson, of Jersey City, contra. KALISCH, J. The plaintiff's action, against Emil Moch and his sureties, the defendants, was founded on an alleged breach of an insolvent bond given by Moch, an insolvent debtor, to the plaintiff in insolvency proceedings. The breach alleged was that the insolvent debtor, upon being refused his discharge by the court, failed "to surrender himself immediately thereafter to the sher-case under consideration well illustrates the iff or keeper of the jail of said county," as doctrine. When the debtor was refused a required by the terms of the bond. A verdict was directed for the plaintiff. The record before us shows that the hearing in the insolvency proceedings was not terminated until after 6 o'clock in the evening. The court then announced that the debtor would be refused a discharge. The sheriff's office was closed, and the sheriff gone. Immediately after his discharge was refused, the debtor turned to one John Maxwell, a court officer, and known as a deputy sheriff, who was in attendance at the time, and said, "What will I do now?" whereupon he replied, "You are in custody of the sheriff." Maxwell then took the debtor into custody, put him in a room in the courthouse, where he was kept for an hour, and then proceeded with him to the sheriff's office, which was found still closed, and thereupon he took the debtor to the residence of the undersheriff, and, after having some conversation with the undersheriff, took the debtor back to the courthouse, and thence to jail, where a new bond was given by the debtor, and he was then released. It also appears that, on the return from the undersheriff's dwelling to the courthouse, Maxwell, with the debtor, stopped at a restaurant to get something to eat. It is not denied that the debtor was in custody of Maxwell from the time he was discharged until he was delivered to the jail. discharge, it was 6 o'clock in the evening. The sheriff was not in the courtroom to receive the debtor. A constable, detailed by the sheriff, was there in attendance upon the court. He was also ostensibly there upon the sheriff's business. Immediately after the court refused to discharge the debtor, the debtor immediately took steps to surrender himself to the sheriff. He applied to the constable, who told him that he was now in custody of the sheriff, and, after confining him for an hour or so in a room, he took him to the sheriff's office, but it was closed. He then took the debtor to the residence of the undersheriff, and it is evident that by the direction of the undersheriff the debtor was taken back to the courthouse, and thence to jail, by the contsable, as deputy sheriff. It can make no difference whether Maxwell had the authority, in the first instance, to receive the debtor for the sheriff or not. since it appears that the debtor, in taking the necessary steps to make a surrender, the sheriff being absent from the courtroom, was entitled to go to the sheriff's office to make his surrender there, and, finding the office closed, was entitled to seek out the undersheriff for the purpose in view. Because he did this in company with Maxwell does not detract from the fact that he had taken immediate steps to surrender himself to the sheriff. It was not for any fault ascribable to the debtor that his surrender at the jail was not accomplished until three or four hours after he was refused a discharge. The rule to show cause will be made absolute. The plaintiff contends that this was not a surrender in compliance with the condition of the bond, in that the surrender was not personally to the sheriff or keeper of the jail of Hudson county, immediately after the debtor was refused a discharge; that the surrender of the debtor to the county jail three or four hours after the debtor's discharge was refused was not an immediate surrender, as required by the statute, and as (Supreme Court of New Jersey. Feb. 25, 1914.) construed in Sozio v. Giuliano, 74 N. J. Law, 731, 67 Atl. 601, and later in Braden v. Rosenstone, 83 N. J. Law, 251, 83 Atl. 906. The facts of the latter case are not analogous to those under consideration. But the principle enunciated therein is applicable. The surrender contemplated by the statute is an immediate one after the refusal to discharge. A construction of the term "immediately thereafter" to mean "directly," "at once," does not impose any hardship upon debtors, nor is the debtor called upon to perform the impossible. Its plain meaning is that the debtor is required to take immediate steps, after the announcement of the refusal to discharge is made, to comply with the condition of the bond, by surrendering himself to the sheriff or the keeper of the county jail. If, at the time he is refused a discharge, the sheriff (85 N. J. L. (42) PIAT v. BALDAUF. (Syllabus by the Court.) TAXATION (§ 709*)-REDEMPTION-INTEREST. Act 1912, c. 368, prescribed that for the purpose of redeeming lands sold for nonpayment of taxes, the owner, mortgagee, etc., shall, in addition to the purchase money, pay to the collector of the municipality, "twelve per centum interest thereon." Held, that the obligation thus imposed is to pay interest at the rate of 12 per centum per annum, and not 12 per centum of the purchase price. [Ed. Note. For other cases, see Taxation. Cent. Dig. §§ 1430-1435; Dec. Dig. § 709.*] Appeal from Third District Court of Bergen County. Action by Arssene Piat against Ida Baldauf. From judgment for plaintiff, defendant appeals. Affirmed. Argued November term, 1913, before GAR RISON, TRENCHARD, and MINTURN, JJ. Harry B. Brockhurst, of Jersey City, for appellant. D. Eugene Blankenhorn, of Jersey City, for appellee. is not there to receive him, he is entitled to a reasonable time to look for him, before he adopts the alternative and goes to jail. The |