609. Other cases are collected in 4 Cyc. 290. The order brought up will be reversed and the record remitted to the Court of Chancery, with directions to proceed upon the application for writ of assistance according to the usual practice of the court in such cases. The appellant is entitled to costs. (85 N. J. L. 613) STATE v. GRIFFIN. (Court of Errors and Appeals of New Jersey. March 16, 1914.) CIENCY. (Syllabus by the Court.) SUFFI fendant kept a place to which persons "might An indictment which presented that the deresort" for gambling, with intent that such persons "might resort" thither for gambling, etc., is valid under section of the crimes act (2 Comp. St. 1910, p. 1766). [Ed. Note. For other cases, see Gaming. Cent. Dig. §§ 244-248; Dec. Dig. § 89.*] (Additional Syllabus by Editorial Staff.) 2. WORDS AND PHRASES SHALL." The verb "shall" usually denotes an obligation, but is sometimes used to express a contingent future event. [Ed. Note. For other definitions, see Words and Phrases, vol. 7, pp. 6459-6469; vol. 8, p. 7799.1 Error to Supreme Court. Jarvis B. Griffin was convicted in the At son is in peaceable possession of lands claim- | Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) ing to own the same, and his title (i. e., his right to his possession) is denied or disputed, he may file a bill in chancery to settle the title to said lands, etc. Any defendant answering and claiming any estate or interest shall specify such interest, and set out the same through which such title is claimed to be derived. An issue at law may be directed, and the court shall, in conclusion, finally settle and adjudge whether the defendant has any estate, interest, or right in or incumbrance on the lands. "The final determination and decree in such suit shall fix and settle the rights of the parties in said lands and the same shall be binding and 1. GAMING (8 89*) conclusive on all parties to the suit." "Section 6. Now when it is considered that the filing of such a bill and its determination by the chancellor or by an issue of law thereon correspond, so far as the trial and proofs are concerned, to an action of ejectment to which the party out of possession is forced by the party in possession, on pain of the former's claim being adjudged a nullity, and in which he has to bear the burden of proof (Ocean View Land Co. v. Loudenslager, 78 N. J. Eq. 572, 573, 80 Atl. 471), it would seem reasonably plain that a decree pursuant to the act and based on a verdict as for the plaintiff in an ejectment, adjudging that, as between the Land Company and Brady, the company had a fee simple absolute in the lands and Brady no estate or interest there-lantic county oyer and terminer of violating in, had settled the conflicting claims of the parties, including the right of possession, about as fully as they could be settled in a court of law. It was so held in a somewhat similar case by the Supreme Court of the United States. Root v. Woolworth, 150 U. S. 401, 402, 412, 14 Sup. Ct. 136, 37 L. Ed. 1123. [2] Holding, then, as we do, that the act | confers jurisdiction on the court to award possession to a defendant, and that the pres- WALKER, Ch. The plaintiff in error ent decree is so broad in its terms as neces- was convicted in the Atlantic county oyer sarily to cover such award, we agree with and terminer on an indictment under section the Vice Chancellor that a court that has 65 of the crimes act (Comp. Stat. p. 1766). power to make a decree must of necessity The indictment contained three counts. The have power to enforce it. In Bartholomew first charged the defendant with maintaining v. Lutheran Congregation, 35 Ohio St. 567, a common-law disorderly house; and the there was a bill to quiet title and a decree second and third charged a violation of secrestoring possession to the defendant which tion 65 of the crimes act, supra. A disorderthe court said would be enforced by injunc-ly house at common law, and the crime detion. Authorities on the precise point are nounced in section 65 of the crimes act, are very scanty, and the statutory provisions entirely separate offenses (State v. Moore, 75 vary. But the propriety of the practice of enforcing, by writ of assistance or writ of possession, as it is sometimes called, a decree that expressly or by clear implication adjudicates a right of possession is indicated in such decisions in our own state as Schenck v. Conover, 2 Beas. 220, and Beatty v. De When the case of State v. Griffin was movForest, 27 N. J. Eq. 482, and elsewhere ined in the Atlantic oyer, counsel for the deGormley v. Clark, 134 U. S. 358, 10 Sup. Ct. fendant objected to the trial proceeding upon 554, 33 L. Ed. 909, Harding v. Fuller, 141 all three counts of the indictment and moved Ill. 308, 30 N. E. 1053, and the old case of to dismiss the second and third ones. the law relative to gambling, and, his conviction being affirmed by the Supreme Court in 84 N. J. Law, 429, 87 Atl. 138, he brings error. Affirmed. Bolte & Sooy, of Atlantic City, for plaintiff in error. Charles S. Moore, Prosecutor of the Pleas, of Atlantic City, and Edmund Wilson, Atty. Gen., for the State. N. J. Law [46 Vroom] 619, 621, 68 Atl. 165), but may be joined in the same indictment (75 N. J. Law, 622, 68 Atl. 165). And, although separate offenses, each contains at least one element which is present in the other, namely, gambling. [1] The only ground of the motion to dis-opinion of the Supreme Court that this objecmiss which need be noticed here is the one tion was not made to the trial court, and conthat objected that the two counts were bad sequently was not properly before that (Subecause they set forth that the defendant preme) Court for consideration. In this rekept a house with intent that persons "might"|gard the Supreme Court was mistaken, as resort thither for gambling, which did not shown above. bring it within the case of State v. Ackerman, 62 N. J. Law (33 Vroom) 456, 41 Atl. €97; and argument was made in the Supreme Court, and is renewed in this court, that the word "should" ought to have been used in the indictment to warrant a conviction, it being contended that the defendant was required to do something more than merely keep a place open for the accommodation of those who desired to gamble, that the statute means that the defendant must make some attempt actively to have people enter his place for the illegal purpose named, and that the mere fact that persons "might" resort there, if they so desired, was not sufficient. This proposition was evidently inspired in the mind of counsel by the language used by Mr. Justice Dixon, speaking for the Supreme Court in the Ackerman Case, 62 N. J. Law, at page 458, 41 Atl. at page 697, where he said: "We think this indictment does not properly charge a violation of the act of 1894. Applying to that act the strict interpretation which statutes defining crimes should receive, its words, if any persons shall keep a place to which persons may resort for betting,' do not import the keeping of a place to which it is possible for persons to resort for betting, nor the keeping of a place to which persons do in fact resort for betting. Their fair import is the keeping of a place with the intent that persons shall resort thither for betting. This intent of the keeper is essential to guilt. But, in the common-law offense of keeping a disorderly house, the intent of the keeper is not essential." The act of 1894 (Gen. Stat. p. 1102), of which Mr. Justice Dixon spoke, was, in all respects, like section 65 of the present crimes act; the latter being a consolidation and revision of sections 1, 2, and 3 of the act of 1894. Counsel for defendant has entirely misconceived the meaning of the language used by Mr. Justice Dixon in State v. Ackerman. He was differentiating between an indictment for keeping a disorderly house at common law, in which intent is immaterial and need not be averred, and the crime denounced in the act of 1894 (now section 65 of the crimes act), where intent is material and should be averred. In the Ackerman Case the trouble was that the defendant was convicted on an indictment which charged the keeping of a disorderly house at common law, but was sentenced as for an offense under the act of April 26, 1894, the offense proved being the keeping of a place for gambling, and gambling is an offense both at common law and under the statute mentioned. The conviction was set aside upon the ground, among others, that it could not be sustained under the act of 1894, because that act required that the offense should be committed with intent, which was not charged in the indictment. The very thing which Mr. Justice Dixon pointed out in the Ackerman Case as being essential to an indictment under the crimes act is averred in the indictment in the case at bar. It was with the question of intent that the Supreme Court dealt in that case, and not with any form of the irregular auxiliary verbs "may," "might," "shall," or "should." [2] The verb "shall" usually denotes obligation. But it is not perceived how the keeper of a place to which persons might resort for the commission of unlawful acts has ability to place any of the public under obligation to visit his house. There is another sense in which the verb "shall" is sometimes used, and that is to express a contingent future event. It was in this sense, beyond doubt. that it was employed in the collocation of words used by Mr. Justice Dixon. That is to say, it was used to express the idea that persons would be likely to resort to the place because of the invitation, express or implied, on the part of its keeper that they should so resort. After argument upon the motion made to strike out the second and third counts, counsel for the state elected to try the defendant under the second count of the indictment only, although it appeared that that election would not necessarily have had to be made until the close of the state's case. The trial While the indictment under consideration judge thereupon held that the second count should have been grammatically, and doubtwas valid, and defendant's counsel prayed an less otherwise properly, phrased, by an averexception, which was allowed and sealed.ment that the defendant kept a place to This distinctly raised the question whether which persons "should resort," nevertheless the charge in the second count of the indict- it was grammatically and otherwise properment (upon which the state stood), and which ly (that is, legally) phrased by charging that averred that the defendant kept a place to the defendant kept a place to which persons which persons "might" resort for gambling, "might resort." The statute denounces as a etc., was bad; defendant's counsel's conten-crime the keeping of a place to which pertion being that the only valid averment would sons may resort," etc., and when an indictbe that the defendant kept a place to which ment charges the commission of a crime un a better formula than "should resort," in [ is but an agency of the state, created for a which to aver a commission of the offense. In State v. Flynn, 76 N. J. Law (47 Vroom) 473, 72 Atl. 296, the indictment, drawn under this same statute, charged one C. W. with keeping "a place to which persons might resort for gambling in a certain form," etc. No point was made that the verb "might"| should not have been used, but that the verb "should" ought to have been employed. It is significant that the prosecutor of Middlesex, in drawing an indictment under section 65 of the crimes act, used the verb phrase "might resort," as did also the prosecutor of Atlantic. And it is safe to say that all other prosecutors have done so. It is an entirely correct and legal formula. In all other respects we are content with the opinion of the Supreme Court; and, for the reasons there and here given, the judgment under review should be affirmed. (76 N. J. L. 307) TRUSTEES OF FREE PUBLIC LIBRARY specified work, to which are delegated specific powers to enable it to perform the delegated work. We find it unnecessary, in view of the completeness of the recital of the facts, and the legislation bearing upon this question, contained in the opinion of Mr. Justice Voorhees in this case in the Supreme Court (83 N. J. Law, 196, 83 Atl. 980), to rehearse the facts and legislation in detail. We are not called upon, in affirming this judgment, to accede entirely to the reasoning contained in the Supreme Court opinion. When the case sub judice was before that court, the case of Sullivan v. McOsker was under consideration by this court; and the question there presented was whether the warden of the Hudson county jail, who, with other subordinate officials, had always been selected by the incoming sheriff as substantially his personal attachees, but whose salaries had been paid by the county, was protected from removal by the provisions of the civil service act; and this court held, in effect, that the character or method of selection did not supply the test as to the (Court of Errors and Appeals of New Jersey. application of the provisions of the act; the March 19, 1914.) essential inquiry being whether the incumbent was in the paid service of the county. Sullivan v. McOsker, 84 N. J. Law, 380, 86 Atl. 497. While not entirely analogous in its facts, this case calls for the application of the principle which was dispositive of that case, and, upon the theory of stare decisis, we are compelled to so determine it. In the case at bar we may concede the independent corporate character of the Free Public Library, for which the appellants contend, but the essential fact remains that its employés are in the paid service of the mu of the civil service act, and the conclusion logically follows, in view of our former adjudication, that the appellants' employés are subject to the provisions of the civil service act. Certiorari by the Trustees of the Free Pub-nicipality, which has accepted the provisions lic Library of Newark against the Civil Service Commission of New Jersey to set aside the commission's action in classifying the employés of the Free Public Library of Newark. From an order affirming the commission's action (83 N. J. Law, 196, 83 Atl. 980), the trustees appeal. Affirmed. Pitney, Hardin & Skinner, of Newark, for appellants. Edmund Wilson, Atty. Gen., for appellees. MINTURN, J. The only question presented upon this appeal is whether the Civil Service Commission was warranted in classifying the appointees of the Free Public Library of the city of Newark, within the provisions of the civil service act (P. L. 1908, p. 235); the contention of the appellants being that they hold neither offices nor positions in the paid service of the state, or of the city of Newark; while the insistence of the Civil Service Commission is that the Free Public Library of the city of Newark The judgment of the Supreme Court will therefore be affirmed. (82 N. J. Eq. 614) 1. SALES (§ 461*)—CONDITIONAL SALES-STAT- of a writing made by the parties to evidence the While the statute does not expressly require a contract for a conditional sale to be in writing, a writing is impliedly required by the requirements for acknowledging, proving, and recording, but such writing is satisfied by a written memorandum sufficient to satisfy the statute of frauds, and need not be a formal writ ten contract. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1348; Dec. Dig. § 460.*] the vendee signed the order, and hence the 3. EVIDENCE (§ 588*)-WEIGHT-IMPROBABIL- tary, since that depended upon the state of ITY. Where the subscribing witness to a conditional sale contract, whose name was signed under the acceptance by the seller instead of in the proper place as a witness to the buyer's signature, testified without contradiction that he signed the papers at the time the order was given, that he then witnessed the signature of the buyer, and that the signature of the seller was not on the paper at that time, and his affidavit was in substantial conformity with the statutory requirements, his testimony cannot be rejected on the guess that, if he had signed when he said he did, he would have signed at the proper place. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] 4. SALES (8 462*)-CONDITIONAL SALES-REQUISITES ACKNOWLEDGMENT. Such subscribing witness may infer from the facts that the contract was signed by the buyer as her voluntary act and deed, without requiring formal acknowledgment from her of that fact. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1350; Dec. Dig. § 462.*] Parker, J., dissenting. Appeal from Court of Chancery. Suit by Mary E. McAusland, as executrix, against Ely J. Rieser, the Liquid Carbonic Company, and others. Decree for the complainant, and the Liquid Carbonic Company appeals. Reversed, and remitted for further proceedings. her mind, and was not a matter of observation by the witness. [1, 2] 1. If the word "contract" is to be taken in its technical legal sense of a consummated agreement enforceable by the law, there was of course no contract until the ap pellant had accepted the order. We think this construction overnice, impracticable, and not one to carry out the intent of the Legislature. Prior to the statute, contracts, by virtue of which the possession of goods passed to the vendee while the title remained in the vendor, were valid, although the possession of the goods tended to give the vendee a factitious credit. To protect others, the statute requires such contracts to be acknowledged or proved and recorded. The statute does not require, in so many words, that the contract of conditional sale shall be in writing, but this must be implied, since it would be impossible to acknowledge or prove a mere oral contract, and it would be unusual, if not impossible, to record such a contract as our statute directs. A writing seems therefore to be required by implication, but we ought not to carry the requirement of a writing further than the necessary implication of the statute demands. It does not demand a formal written contract executed by both parties, and we think nothing more is implied than such a written memWilliam B. Stites, of Hoboken, for appel-orandum as was required by the statute of lant Liquid Carbonic Co. John Warren, of frauds, where the goods sold were of the Jersey City (John Milton, of Jersey City, on price of $30, and is now required by the the brief), for respondent. Sales Act (4 Comp. St. 1910, p. 4645), where the value is $500. In a very large proportion, SWAYZE, J. The appellant claims under perhaps most, of the contracts of sale in a contract of conditional sale. The validity everyday business, there is no writing at all. of its claim is contested, because, as is said, When there is a writing, it is often, perhaps the execution of the contract was not ac- usually, no more than the written memoranknowledged or proved as required by the dum signed by the party to be charged, and statute. A written order for the goods, sub- not by both parties. Even in large transacJect to appellant's approval, was signed by tions, where "bought and sold notes" are the vendee, witnessed by the appellant's used, neither note is signed by or on behalf salesman, accepted a few days later by the of both parties. We have no doubt that, in appellant. The salesman, as subscribing wit-ordinary commercial parlance, such memoness, proved the signature of the vendee, and the accepted order was duly recorded. Three objections are made to the validity of the contract as against the complainant: (1) It is said that there was no contract at the time randa would be spoken of as contracts. The Legislature naturally used the word in the ordinary popular sense, and did not have in mind the nice legal analysis of the elements of a binding contract. Our construction is in accord with the dictionary definition. | contract and the actual and continued change Webster's New International defines contract of possession which must follow is marked. as "a writing made by the parties to evidence the terms and conditions of a contract." We see no reason why such written evidence may not be made before the actual conclusion of the bargain, and contain the terms to which both must accede before the bargain is consummated. Our construction is also in accord with reason. If the contract must be actually complete and legally enforceable before it can be acknowledged by one party, it must be complete also before it can be acknowledged by the other, and, in so nice a legal analysis, it can make no difference whether the time that intervenes between the acknowledgment and the final assent .of the minds of both parties is one year or one minute. If there can be no acknowledgment until after the minds of the parties have met, they must either execute when they are met together or an officer must go with a completed contract to one party or the other to secure the acknowledgment. We think it cannot have been the legislative intent to trammel the execution of ordinary mercantile contracts by formalities suitable rather to the most formal acts of conveyance. Indeed, the reasoning on behalf of the complainant would make the acknowledgment of an ordinary deed of land difficult. A deed, if we are to take the strict legal definition, is a writing sealed and delivered. It becomes a deed only by delivery. Under our registry laws, no grantee would be safe in accepting a deed until it was acknowledged or proved, .and yet, to be acknowledged or proved, it must already have been delivered, if the complainant's line of reasoning is correct. We venture to say that so nice and technical a construction would invalidate a large proportion of our conveyances. If we may trust our own knowledge of the usual practice, a deed is acknowledged as such before its delivery, oftentimes long in advance of delivery, and in the absence of the grantee, who in many cases never in fact meets the grantor. The statute as to contracts for conditional sales requires the execution of the contract to be acknowledged or proved in the manner prescribed for the acknowledgment and proof of deeds. The Legislature must be presumed to have had in mind the practice as to deeds, and can hardly have meant to be more technical as to the acknowledgment or proof of contracts. If we look further at the statute, the difficulty in the complainant's nicety of construction becomes still more apparent. The act applies only to cases where the contract for conditional sale is accompanied by an actual delivery. The distinction between the actual delivery which must accompany the If we are to be nice, precise, and technical in our construction, we must say that the delivery and the contract must go together and be in effect simultaneous; i. e., the sale must be executed, not an executory contract. If so, the statute is inapplicable to the present case. We think it applicable because the facts of the case bring it within the reason and spirit of the act, just as we think the proof of execution complied therewith. It is a satisfaction to know that our result accords with that of the Supreme Court of Errors of Connecticut. National Cash Register Co. v. Lesko, 77 Conn. 276, 58 Atl. 967. It would be a vain parade of learning to cite other authorities which bear more or less remotely on the question. [3] 2. The question whether the proof was or was not by a subscribing witness is purely a question of fact. He testified that he put his signature on the paper at the time the contract was made, on the 8th of September (the date of the order), and not on the 19th (the date of acceptance); that the name of the vendor was not on the paper at the time; that he only witnessed the signature of the vendee; that the line from the word witness down toward his name was put there at the time his signature was put there. His affidavit is in substantial compliance with the statute. His testimony is not contradicted. We are not at liberty to reject it as false, because we may guess that his signature, if put there at the time, would have been in a different position on the paper. [4] 3. Whether the vendee signed and delivered the contract as her voluntary act and deed is also a question of fact. We see no reason why the subscribing witness may not infer the voluntary character of the act from the facts as well as from a formal acknowledgment. To require the precise words of a formal acknowledgment, where the statute does not require acknowledgment but proof, savors of archaic law, where form was everything. With our more modern notions, the substance of the thing is of more importance, and, in this as in other cases, actions speak louder than words. Section 22 of the Conveyances Act (2 Comp. St. 1910, p. 1542) does not require an acknowledgment, where the proof is by the subscribing witness; in this respect, the language differs from the language used earlier in the section in dealing with acknowledgments. The result is that the decree appealed from is reversed, and the record remitted for further proceedings in accordance with this opinion. PARKER, J., dissents. |