N. J.)

Pa. St. 628, 11 Atl. 514; Ross v. Walker, 139 Pa. St. 42, 21 Atl. 157, 159; Prescott v. Engine Co., 176 Pa. St. 459, 35 Atl. 224)." The judgment is affirmed.

MEMORANDUM DECISIONS.

SIMMONS et al., Board of Directors of Street and Sewer Department of City of Wilmington, v. CONNELL, Market Clerk. SAME v. PYLE, City Auditor (two cases). (Superior Court of Delaware. Newcastle. Sept. 27, 1900.) Action by William Simmons, Ayers Webster, and James D. Carter, constituting the board of directors of the street and sewer department of the City of Wilmington, against Michael Connell, as clerk of the market of the city of Wilmington. This was a case stated, the point at issue being whether the board of directors of the street and sewer department were entitled to have, receive, and dispose of the fees and charges collected from farmers, traders, dealers, and hucksters using the street markets in said city, or whether such fees and charges ought to be paid over to the mayor and council of Wilmington for the general fund and uses of said city. There was also a second suit, brought by the same plaintiffs against Isaac C. Pyle, city auditor for the city of Wilmington, which was a case stated, in which the same issue was raised concerning the taxes on electric light poles in the said city of Wilmington. A third suit was brought by the same plaintiffs against the said auditor of the city of Wilmington, being also a case stated, in which the same issue was raised in regard to the rents collected from lessees of wharves along the river front at the ends of streets owned by the said city of Wilmington. The issues of law involved in all of the above-stated cases, although applied to a different subjectmatter in each suit, were so nearly identical that for convenience they were discussed together. After a very full presentation and discussion of the various statutes and ordinances bearing on the questions involved in the cases, the court, believing there were good reasons why a de termination of the matter in issue should be had without delay, rendered its decision at the close of the argument without delivering any opinion. Judgment was rendered in favor of the defendant in each case. Anthony Higgins and Herbert H. Ward, for plaintiffs. Robert G. Harman, for defendant.

INHABITANTS OF WINTERPORT V. WINTERPORT WATER CO. (Supreme Judicial Court of Maine. May 28, 1900.) Report from supreme judicial court, Waldo county. Action by the inhabitants of Winterport against the Winterport Water Company. Case reported, and defendant defaulted. This case was an action of debt to recover a tax assessed for the year 1897 against the water company, amounting to $258. It was agreed that any evidence offered by the parties in the first case (47 Atl. 142) and legally admissible in this case may be regarded and considered by the court as evidence in such case, and any evidence offered by parties herein and legally admissible in the first case may be regarded and considered by the court as evidence in the latter case. Plea, general issue. N. & H. B. Cleaves, S. C. Perry, and Ellery Bowden, for plaintiff. Chas. A. Bailey and R. F. & J. R. Dunton, for defend

ant.

PER CURIAM. Defendant defaulted.

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MCGILL v. MAINE & N. H. GRANITE CO. (Supreme Court of New Hampshire. Carroll. July 27, 1900.) Action by Lydia A. Mc Gill against the Maine & New Hampshire Granite Company. Petition for a new trial on the ground of accident, mistake, or misfortune. Subject to exception, the petition was dismissed, because its allegations were not sustained. Josiah H. Hobbs and Fred B. Osgood, for plaintiff. John B. Nash and Walter D. H. Hill, for defendant.

PER CURIAM. Exception overruled.

PARSONS, J., did not sit. The others con

curred.

CITY NATIONAL BANK OF SALEM v. VAN METER. (Court of Errors and Appeals of New Jersey. Nov. 19, 1900.) Appeal from court of chancery. Bill by the City National Bank of Salem against Caroline W. Van Meter. from a decree in favor of plaintiff (45 Atl. 280), the defendant appeals. Affirmed. Norman Grey, for appellant. William F. Hilliard, for respondent.

PER CURIAM. The decree below is affirmed, on the grounds stated in the opinion of Vice Chancellor REED, who advised it.

COAST CO. v. BOROUGH OF SPRING LAKE. (Court of Errors and Appeals of New Jersey. Nov. 7, 1897.) On appeal from a decree advised by Vice Chancellor Reed, whose opinion is reported in Coast Co. v. Borough of Spring Lake, 56 N. J. Eq. 615, 36 Atl. 21. Edwin Robert Walker and James Buchanan, for appellant. Hawkins & Durand and Richard V. Lindabury, for respondent.

PER CURIAM. Decree affirmed, for the reasons given in the court of chancery.

The CHIEF JUSTICE, and DEPUE, VAN SYCKEL, GUMMERE, LUDLOW, NIXON, HENDRICKSON, and ADAMS, JJ., for affirmance. DIXON, GARRISON, LIPPINCOTT, and BOGERT, JJ., for reversal.

DENNIS v. NORTH JERSEY ST. RY. CO. (Court of Errors and Appeals of New Jersey. Nov. 20, 1900.) Error to supreme court. Action by Charles P. Dennis against the North Jersey Street-Railway Company. From a judgment of the supreme court (45 Atl. 807), affirming a judgment in favor of plaintiff, defendant brings error. Affirmed. Coult & Howell, for plaintiff in error. McCarter, Williamson & McCarter, for defendant in error.

PER CURIAM. The judgment in this case is affirmed, for the reasons given by the supreme court in the opinion of Mr. Justice LIPPINCOTT.

ILLINGWORTH v. DE MOTT et al. (Court of Errors and Appeals of New Jersey. Nov. 20, 1900.) Appeal from court of chancery. Bill for an accounting by John Illingworth against William S. De Mott and others. From a decree dismissing the bill (45 Atl. 272), complainant appeals. Affirmed. Frank E. Bradner, for appellant. James E. Howell, for respondents.

PER CURIAM. The decree dismissing the bill of the complainant is affirmed, upon the grounds stated in the opinion of Vice Chancellor EMERY, who advised it. Whether the complainant, upon the facts proved, is entitled to any relief in equity, is not decided. The cause was tried upon the theory that defendants, as agents of complainant, had made secret profits out of a purchase complainant was induced to make. Such was the issue presented by the pleadings, and it was properly disposed of by the vice chancellor.

N. J.)

the circuit court is advised to dismiss the petition, on the ground that it does not state a case within the statute.

SCHUHARDT v. DELAWARE, L. & W. R. CO. (Supreme Court of New Jersey. November Term, 1900.) Argued before DEPUE, C. J., and DIXON, J. Alex C. Young, for plaintiff. Flavel McGee, for defendant.

PER CURIAM. If a demurrant notices the argument, and fails to bring it on, the adverse party is entitled to costs as for a motion noticed, but not made; but the adverse party is not entitled to take judgment on the demurrer, or have it stricken out, for he could himself have given the notice and brought on the argument.

STATE (COLLINS, Prosecutor) v. KURFESS. STATE (MALATESTA, Prosecutor) v. RUFFEE. (Supreme Court of New Jersey. Nov. 9, 1900.) Certiorari by the state, on the prosecution of Charles J. Collins, against Christian A. Kurfess, and on the prosecution of Mark Malatesta, against Anthony M. Ruffee, Jr.. to review a conviction for violation of an ordinance. Cases consolidated. Conviction set aside. Argued November term, 1900, before VAN SYCKEL and FORT, JJ. Samuel E. Perry, for prosecutors. Godfrey & Godfrey, for defendant.

FORT, J. These cases involve the same question, and were heard together. They also involve the same question decided at this term in Cope v. Mayor, etc., 47 Atl. 440, in which a memorandum was filed by the court. That case determines these, and the convictions brought up by these writs are both vacated for the same reasons. Rules may be entered accordingly.

STATE (STETLER, Prosecutor) v. MAYOR, ETC., OF BOROUGH OF EAST RUTHERFORD. (Supreme Court of New Jersey. Nov. 12, 1900.) Certiorari by the state, on the prosecution of Elizabeth Stetler, against the mayor and common council of the borough of East Rutherford, to review an assessment. Dismissed. Argued November term, 1900, before VAN SYCKEL, J. Addison Ely, for prosecutrix. Shafer & Conkling, for defendant.

VAN SYCKEL, J. This writ brings up for review an assessment for flagging Park avenue. The assessment was made against George F. Stetler as owner of the property, and he is not a party to this suit. Notice was served upon him that, if he did not lay the flagging in front of his premises within 35 days, the mayor and council would cause the work to be done. He failed to do the work, and after the expiration of the 35 days the flagging was laid by the public authorities early in 1898. He saw the work being done, and has not taken any proceedings to arrest it. Mrs. Stetler, the prosecutrix, also saw the work being done, and did not sue out this writ until September 12, 1899. She is clearly guilty of laches, and, besides, it does not appear in the case that she has any interest in the land upon which the assessment was laid. The writ is dismissed, with costs.

STATE (STETLER, Prosecutor) v. MAYOR. ETC., OF BOROUGH OF EAST RUTHERFORD. (Supreme Court of New Jersey. Nov. 12, 1900.) Certiorari by the state, on the prosecution of Elizabeth Stetler, against the mayor and common council of the borough of East Rutherford, to review an assessment. Dismissed. Argued November term, 1900, before VAN SYCKEL, J. Addison Ely, for prosecu trix. Shafer & Conkling, for defendant.

VAN SYCKEL, J. This certiorari removes an assessment for curbing and guttering Main

1133

street under section 41 of the borough act (1 Gen. St. p. 186). The work was done in 1896, and in February, 1897, the assessment was made against George F. Stetler. Notice was served upon George F. Stetler that, if he did not curb and gutter within 30 days, the mayor and council would cause the work to be done. Stetler neglected to do the work, and after the expiration of the 30 days he saw that the work was being done by the borough authorities. He took no proceedings to arrest the work, and has received the benefit of it. This writ was not sued out until September 12, 1899. George F. Stetler is not a party to this suit. Elizabeth Stetler, his wife, is the sole prosecutor. When she became owner of the premises assessed does not appear. She says she cannot tell, but that it was prior to 1898. She also says she saw the work while it was being done. She cannot set up want of notice to her, as it does not appear that she owned the property and was entitled to any notice when the proceedings were taken; but, aside from that, the writ must be dismissed for laches in suing it out.

STATE (OEDER, Prosecutor) V. WEEHAWKEN TP. (Supreme Court of New Jersey. Nov. 12, 1900.) Certiorari by the state, on the prosecution of Charles C. Oeder, to review an ordinance of the township of Weehawken. Ordinance affirmed. Argued June term, 1900, before DIXON, GARRISON, and COLLINS, JJ. Charles C. Black, for prosecutor. Henry M. Nutzhorn. for defendant.

GARRISON, J. This certiorari brings up an ordinance passed by the township committee of the township of Weehawken upon April 2, 1900, establishing a police department and providing for its regulation, control, and management, and repealing all prior ordinances of a like tenor. The case of Pohan v. Weehawken Tp., 47 Atl. 446, with which this case was argued, should be consulted for a full understanding of the relation of the two. Indeed, the "reasons" filed in the present case are to all appearance the same as those relied upon successfully in that case, only they do not fit the case of an ordinance as they do that of a resolution. Neither from these reasons, however, nor from any that have been advanced, has a shade of doubt been cast upon the right of the township committee to pass this ordinance. It is therefore affirmed, with costs.

STIEP et al. v. SEGUINE et al. (Supreme Court of New Jersey. June 5, 1900.) Action by Lena Stiep and others against Ezra K. Seguine and others. Demurrer to the declaration, and plaintiffs take a rule to amend the same. The declaration averred a conveyance of certain land by the defendant to the plaintiff for a valuable consideration, and alleged: "And for that, whereas, the said defendants, on the day and year last aforesaid, and before the delivery of the deed aforesaid, in order to induce the plaintiff Lena Stiep to purchase the said property as mentioned in said deed, and to deliver over to them the consideration money as therein mentioned, falsely and fraudulently represented the said plaintiff Lena Stiep that all the interest money due and to grow due under the mortgage to the Equitable Life Assurance Society of the United States as aforesaid had been paid by them up to January 20, 1898, and produced to said plaintiff Lena Stiep what purported to be a receipt for the last installment of interest on said mortgage due on said lastnamed date; whereas, in truth and in fact said plaintif, aver that said interest had not been paid, and that said mortgage was at that time in process of foreclosure in the court of chancery of New Jersey for nonpayment of said interest, and that these facts were known to said defendants at the time of said sale, and that said plaintiffs were not informed of the same

vt.)

as defendants. The will was that of Emily O'Neil, deceased, and the questions involved fraud and undue influence. Judgment for plaintiff. Defendants appeal. Affirmed by divided court. W. B. Rodgers and T. H. Davis, for appellants. J. E. O'Donnell and Geo. H. Stengel, for appellee.

PER CURIAM. The judges who heard this case being equally divided in opinion, the judg ment is affirmed.

LAWRENCE COUNTY et al. v. PITTSBURG & L. E. R. CO. (No. 60.) PITTSBURG & L. E. R. CO. V. LAWRENCE COUNTY et al. (No. 61.) (Supreme Court of Pennsylvania. Jan. 7, 1901.) Appeal from court of common pleas, Lawrence county. Two suits,-one, by the county of Lawrence and others against the Pittsburg & Lake Erie Railroad Company; the other, by the Pittsburg & Lake Erie Railroad Company against the county of Lawrence and others. From decrees adverse to the railroad company, it appeals. Reversed. D. B. Kurtz and L. T. Kurtz, for appellant. Wylie McCaslin, County Sol., and J. Norman Martin, for appellee.

MITCHELL, J. These cases are ruled by the decision in Pittsburg & L. E. R. Co. v. Lawrence Co.. 47 Atl. 955. In No. 60 the decree is reversed, and bill directed to be dismissed, with costs. In No. 61 the decree is reversed, and injunction directed to be awarded against further proceeding in the construction of the bridge in controversy in such manner as to interfere with the property or operations of the complainant. Costs to be paid by the appellees.

SNYDER v. BROWN. (Supreme Court of Pennsylvania. Oct. 31, 1900.) Appeal from court of common pleas, Beaver county.

PER CURIAM. And now, to wit, October 31, 1900, appeal dismissed.

SWEARINGEN v. SEWICKLEY DAIRY CO. APPEALS OF SHAW et al. (Supreme Court of Pennsylvania. Jan. 7, 1901.) Appeals from court of common pleas, Allegheny county. Suit by T. Brent Swearingen, assignee of Fleming Bros., against the Sewickley Dairy Company and others to enforce unpaid stock subscriptions of the individual defendants for stock of the dairy company. Decree for plaintiff. Defendants John I. Shaw, S. A. Duncan, and Lewis Irwin separately appeal. Reversed. J. A. Langfitt and L. M. Plumer, for appellants. W. K. Jennings and T. M. Henry, for appellees.

MITCHELL, J. For reasons given in Swearingen v. Dairy Co. (opinion filed herewith) 47

1135

Atl. 941, the decree is reversed, and the bill directed to be dismissed, with costs.

STATE v. ALLISON et al. (Supreme Court of Vermont. Caledonia. April 2, 1900.) Appeal from chancery court, Caledonia county; Thompson, Chancellor. Bill by the state of Vermont against F. A. Allison and others. From a decree for the state, defendants appeal. Reversed. All of the defendants answered, and incorporated a demurrer into their respective answers. Before any orders were made in the case, the defendants moved for a trial by jury upon the issues of fact. The cause was heard on said demurrers and on the motion for a trial by jury at the June term, 1899, before Thompson, Ch., who denied said motion, overruled the demurrers, and adjudged the bill of complaint sufficient. Thereupon the defendants moved to have the benefit of their demurrers reserved to them till final hearing, and to have their answers brought forward for hearing. This motion was denied, and the bill taken as confessed as to all of the defendants. It was further adjudged and decreed that the common nuisance, set forth in the complaint, had been kept and maintained as charged in the bill, and that the defendants, and each of their servants, agents, lessees, tenants, and assigns, be perpetually enjoined from keeping and maintaining such nuisance, and from suffering it to be maintained, and that the defendants pay costs. The defendants appealed. The bill of complaint was filed May 25, 1899, and charged that certain rooms in a building in St. Johnsbury, owned by the defendant bank and trust company, were kept and maintained as a liquor nuisance by its occupants, the defendants F. A. Allison and Campbell Davie. The bill of complaint in this case did not allege a conviction at law of the Occupants, or of either of them, prior to the bringing of the bill. It contained no allegation of knowledge on the part of the Citizens' Bank & Trust Company. Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ. Bates, May & Simonds and Harland B. Howe, for the appellants. Leighton P. Slack, State's Atty., and Alexander Dunnett, for the State.

MUNSON, J. It is not claimed but that a temporary injunction may issue against a tenant prior to conviction, and it has been held in State v. Massey (herein reported) 47 Atl. 834, that an injunction cannot issue against an owner not charged with knowledge. The case is therefore disposed of upon the opinion in the case named. Decree reversed pro forma as to defendants F. A. Allison and Campbell Davie; reversed and demurrer sustained as to defendant Citizens' Savings Bank & Trust Company, and the information as to it adjudged insufficient; and cause remanded.