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of the principle, this will, as above stated, J. Ch.) 56 Atl. 702 (1903), Vice Chancellor create a lien or charge upon the real estate, Stevens holds that, as between the residuary and the authorities all hold that under such devisee and the legatee, the net amount shown circumstances nothing but payment to the to be in the hands of the executor from bis legatee extinguishes the lien, Quick v. Quick, administration of the personal property is 1 N. J. Eq. 4 (Vroom, Ch., 1830); Terhune all that the devisee can require as applicable v. Colton, 10 N. J. Eq. 21 (Williamson, Ch., to the legacy. In the course of his reason1834); Grode v. Van Valen, 25 N. J. Eq. 97 ing it will be found that he holds that the (Runyon, Oh., 1874). See, also, collection of intention of the testator must be held to be cases in other jurisdictions, Am Dig. vol. 49, to prefer the legatee as against the residuary col. 3254, § 2122. Even in cases where the devisee; and he points out that extraordicharge was upon the real estate, “if the per nary expenses of litigation carried on by the sonal property should prove insufficient to executor are not chargeable as against the pay,” the Irish courts have held that the legatee in relief of the land devised to the lien existed in cases where the executor em residuary devisee, because the testator could bezzled sufficient personal property to have not contemplate that any such expenses paid the legacies; although in the English should reduce the amount payable to the Court of Chancery, under similar circun legatee upon his legacy. By party of reasonstances, there is a different holding. In re ing I think it may fairly be said in the case Massey, 14 Ir. Ch. Rep. 355 (1863); McCarthy in hand that the testatrix could not contemV. McCartie, Ir. Rep. vol. 1, p. 86 (1897); plate that an embezzlement of her personal Richardson v. Morton, L. R., 13 Eq. 123 property by her executor should result in a (1871). In the case of Sims v. Sims, 10 N. loss to the legatee while there was property, J. Eq. 158, at page 161 (Williamson, Ch., whether real or personal, coming to the resid1854), there is a dictum that if the executor uary devisee. In my view, the whole mat. embezzles the money of the estate, the lega ter is settled by the holding-which I find tee loses, and the land is released. It will to be the correct one—that, under the lanbe found in analyzing that case, first, that guage of this will, the legacies were charged the Chancellor held that under the will there upon the property of the testatrix, and that in considered there was no charge upon the until they are paid they remain a charge, and real estate, so that what he had to say con therefore it is immaterial whether they fail cerning the effect of the embezzlement of of payment out of the personal property bethe executor in a case where there was a cause it was wasted, embezzled, misapprocharge was dictum; and, secondly, that the priated, or destroyed by an act of God. If authorities which he cites for that dictum we suppose a case in which ample personal are those in which land charged with the property in the shape of money was left in a payment of legacies was once resorted to and bank which failed, or was left in some form the money raised upon it and paid to the ex which was destructible, and that it was, withecutor for the legatee, and the misconduct or out negligence or fault and by an act of God, embezzlement of the executor was then at destroyed, we are then to consider whether tributable to the legatee and not to the de the testator intended that the legatee should visee whose land had once suffered the bur lose and the residuary devisee should be exden, Undoubtedly the cases hold that if empt from loss under such circumstances. I there is a charge, and the amount of the fail to see how it can be reasonable to charge is obtained from the land, that land hold that the testator had any such intenshall not again be subjected to the same tion. He names his beneficiaries and the charge. But I do not think that this in any amounts he desires them to receive, and the way militates against the principle that, if rest of his property, without artificial disthe land is subject to the charge and has tinction between the kinds, he leaves to annot borne it, it is not exempt therefrom, be other. I think the only reasonable conclusion cause the executor did have funds in his is that those to whom he has given pecuniary hands arising from the personal estate which legacies have a charge upon all the property, should have been devoted to paying the leg and that until they are paid such charge re асу. .
mains. In the case at bar there was sufficient per This decision disposes also of the contensonal property left by the testatrix, if proper tion of the defendant that there was laches. ly and honestly administered upon, to have It would be equally ineffectual in my view, paid the legacies in question.
if the objection came from those who ac was wasted, misappropriated, or embezzled
quired title from the residuary devisee. by the executor. The legatee (the complain Grode v. Van Valen, supra. But undoubtedant) has pursued the executor, and has, it ly, on behalf of the residuary devisee himself pleads, exhausted all the remedies at its com (who is the only demurrant here), there is inand to obtain payment of its legacy, and no basis for a contention that the complainhas failed to secure such payment, and can ant is barred by laches from enforcing its not secure it because the executor is insol lien upon the residuary realty. A presumpvent and there is no personal property of the tion of payment of a legacy does not arise decedent now in existence to be applied to this until after the expiration of 20 years from legacy. In the case of Horton v. Howell (N. the time of accrual of the right to it. Cole
man's Ex'rs v. Howell (N. J. Ch.) 16 Atl. 202 trusted the government, control, and manage (Bird, v. C., 1888); Congregational Church v. ment of the police department and police Benedict, at page 140 of 59 N. J. Eq., page force of the city and the direction and con880 of 44 Atl.
trol of all police matters therein. That the I will advise a decree overruling the de defendants were charged with the duty of murrer, with costs.
using and exercising all proper, reasonable, and effective means, and all means within
their power, for preserving public peace and (75 N. J. L. 187)
insuring good order and for suppressing all STATE v. CASTLE et al.
houses of ill-fame and prostitution and gam(Supreme Court of New Jersey. June 10, 1907.) ing or betting houses therein, and for enforc: 1. GRAND JURY-TERM OF SERVICE-STATUTO
ing the laws of this state relating thereto. BY PROVISIONS.
That the board of police commissioners and Under the act of 1903 (P. L. p. 341), in the defendants as members thereof had uncounties where a new grand jury is author der their control and management the police ized, grand jurors summoned to attend at the opening of the court are to serve until the new
force, and were vested with full and adequate grand jury appear.
power and authority for the proper and effi2. SAME-ORDER TO SUMMON NEW JURORS cient enforcement of said duty. That houses FILING-NECESSITY.
of ill-fame and prostitution, and gaming or The order of the court, directing the sheriff to summon a new grand jury pursuant to
betting houses were kept at places specified the act of 1903 (P. L. p. 341), need not be filed
by street and number—all of which defendwith the clerk,
ants knew. That the defendants neglected 3. INDICTMENT-FORM OF ALLEGATION-NUM. and omitted to use and exercise, and cause ERALS.
to be used and exercised, all proper, reasonAn indictment which designates a house by its street number need not set forth that
able, and effective means and all means withnumber in words at length. It is an arbitrary in their power as members of the board of symbol and should be set forth in accordance police commissioners for the suppression and with the fact.
prevention of the keeping and ma ance [Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, 88 207,
of said houses, and neglected and omitted to 208.]
enforce the laws of the state in respect there4. MUNICIPAL CORPORATIONS - POLICE COM
to, and suffered and permitted the houses to MISSIONERS-NEGLECT OF DUTY.
be kept and maintained without interference An indictment which charges police com
and without proper, reasonable, or effective missioners holding office under the act of 1885 (Gen. St. p. 1551) with failure to inquire into
endeavor on their part, and without using all the neglect and omission of police officers under means within their power for the supprestheir control to suppress houses of ill-fame and
sion and prevention of the keeping and maingaming houses, and to discipline and punish
tenance of said houses, and for the enforcesuch of the officers as were guilty of neglect of duty, is valid.
ment of the laws in respect thereto. 5. INDICTMENT-JOINDER OF PARTIES.
The second count charges the defendants Police commissioners may be jointly indict with the duty of directing and controlling ed for neglect of their public duty as such.
the members of the police force under their (Ed. Note.-For cases in point, see Cent. Dig.
command and direction and of inquiring into vol. 27, Indictment and Information, 88 327332.]
the manner of performance of duty by each 6. SavE-MULTIFARIOUSNESS.
and every member of the police force and of An indictment of police commissioners hold-punishing violations or neglects of duty by ing office under the act of 1885 (Gen. St. p. members of the force. It charges knowledge 1551) for failure to inquire into the neglect
of the existence of the houses of ill-fame and and omission of police officers under their con. trol to suppress houses of ill-fame, and gaming gaming houses on the part of the defendants, houses, and to discipline and punish such of the and the officers and members of the police officers as were guilty of neglect of duty, is not force, neglect to suppress the houses and to multifarious because it specifies many such houses.
enforce the laws, and that they suffered and (Syllabus by the Court.)
permitted the places to be kept and maintain
ed without interference on the part of the Motion by Frederick Castle and others to
police force; that the defendants neglected to quash an indictment. Motion denied.
inquire into the keeping and maintenance of Argued February term, 1907, before GAR
the houses, and the neglect and omission of RISON, SWAYZE, and TRENCHARD, JJ.
the police force to suppress and prevent the Henry Young, for the State. Francis Child keeping and maintenance thereof. and Louis Hood, for defendants.
The first reason urged in support of the de
fendants' motion to quash is that the grand SWAYZE, J. The defendants move to jury by which it was found was not a legal quash an indictment found at the Essex oyer grand jury. This objection is founded on and terminer and removed to this court by the act of 1903 (P. L. p. 341). The act, after certiorari.
providing that the sheriff shall cause to come The indictment contains two counts. The before the court of oyer and terminer at the first charges: That the three defendants were time and place of holding the court 24 men members of the board of police commissioners to serve as grand jurors, enacts that in counof the city of Newark. To that board was in ties with a population exceeding 250,000 the
sheriffs shall cause to come before the court of the house instead of being in Arabic nusix weeks thereafter 24 men to serve as merals were written out in words. Strict grand jurors in the place and stead of the accuracy would require that in pronouncing grand jurors summoned to attend at the open the number of a house we should say, to take ing of the court, and when the grand jurors a concrete illustration, two-one and not twenSo summoned shall appear for service the ty-one. Such a method is not uncommon in court shall discharge those summoned to at dealing with numbers that are in fact artend at the opening of the court. The court bitrary symbols. The pleader seems to have is, however, authorized by order to direct the shown care and accuracy in setting these sheriff to refrain from summoning the new symbols forth in accordance with the fact grand jury, in which case the general (evident and not attempting to translate them into ly meaning grand) jurors summoned to at words. tend at the opening of court shall continue The other objections go to the substance of to serve until the end of the term unless soon the indictment. The first is that the board er discharged.
of police commissioners was a mere adminThe caption of the Indictment is not before istrative body, not vested with criminal jur. us, but in the printed book there appears isdiction, not authorized to issue criminal what seems to be an extract from the min
process, or to sanction or authorize the raidates, not certified in any way, which sets ing of houses of ill-fame or gambling houses. forth the names of the grand jurors who ap This objection overlooks the gravamen of peared at the opening of the September term, the charge. The gist of the first count is 1906. Whether the indictment was found by the willfully suffering and permitting the this grand jury or not is not shown by the specified houses to be kept and maintained return to the certiorari nor is it to be in without interference on the defendant's part, ferred from anything in the printed case. and without proper, reasonable, or effective
If the fact be as stated in counsel's brief, endeavor, and without using all means in we think it is not a valid objection. The their power for the suppression and prevenevident intent of the act is that the grand tion thereof. The gist of the second count jury summoned for the opening of the term is the failure to inquire into the neglect and sball serve until a new grand jury appears. omission on the part of the police officers to It is not suggested that a new grand jury suppress the public nuisances set forth in the actually appeared. The statute expressly au indictment, and to discipline and punish such thorizes the court by order to direct the sher of the officers as were guilty of neglect of ifr to refrain from summoning new grand duty. jurors, and we must assume that such order If either count is good, the motion to quash was made unless it appears to the contrary. must fall, State v. Norton, 23 N. J. Law, 33, The clerk returns that no such order is on 48; State v. Startup, 39 N. J. Law, 423, 429. file, but the statute does not require it to be Without deciding whether it is the duty of fled, nor even to be in writing. We see no the police commissioners to use and exercise reason why a mere verbal order to the sheriff all proper, reasonable, and effective means, will not suffice, and, if the use of the words and all means within their power for sup"by order direct" imply something more, the pressing houses of ill-fame, and enforcing the written order may well be given to the sher laws of the state relating thereto, as set forth it and not filed with the clerk.
in the first count, but without intimating any An objection urged against the form of the doubt as to the validity of that count, it is indictment is that the street numbers of the sufficient for the decision of this motion to bouses of ill-fame and gaming houses are examine the second count. designated in the Indictment by Arabic num The statute, creating the board of police erals and not written out in words at length. commissioners, intrusts them with the gore We recognize the general rule contended for ernment, control, and management of the and have no desire to relax its force; but it police department, and the direction and conis not applicable to this case. The street trol of police matters. They are given full numbers of houses in our cities do not indi power and right to suspend and to expel or cate the numerical order of the houses, but discharge any person employed or appointed are mere arbitrary symbols which have in in or under the department, provided good deed a convenient relation to numerical or cause is shown after an investigation by the der, but nothing more. A house numbered board. 2 is probably in our American cities never Whatever may be the powers of the police next to a house numbered 1, and the house as to the suppression of houses of ill-fame, next to number 1 may be numbered 5 or 7 we think that if the police force of a city willor la or 112. In many cities, as in Phila fully permits such houses to be kept without delphia, the house number may be a com interference, as this indictment charges, it posite indicating the number of the block and is at least the duty of the police commissionthe position of the house in the block. What ers, charged by statute as they are with the the rule is in Newark we are not advised. discipline of the force, to investigate the It is, however, safe to say that it would at conduct of the police under their control, tract attention by its novelty if the number and that, if the police commissioners with
the knowledge which the indictment charges
(75 N. J. L. 28) they had, willfully neglect to inquire into the WRIGHT et al. v. BOARD OF EXCISE OF conduct of the police force in permitting
CITY OF ELIZABETH. such a public nuisance, thej are themselves (Supreme Court of New Jersey. June 10, 1907.) guilty of neglect of a dui: imposed upon
INTOXICATING LIQUORS--ISSUE OF LICENSE them by law, and are indictable therefor. New PLACE.
The words "any new place," as used in the The next objection is that the defendants
act of March 8, 1905, regulating the sale of are jointly indicted when the neglect of
liquors (P. L. p. 42), means a place for which each is necessarily a separate offense. This a license has not previously been granted upon is not the fact. The neglect charged is of a direct application. The mere transferrence the public duty of the defendants as police
of a license to a place leaves it still a "new
place" for the purposes of this act. commissioners. That duty is a joint duty,
(Syllabus by the Court.) which cannot be exercised by any one of them alone, and the neglect is likewise joint. Certiorari by George W. Wright and othEach defendant must indeed concur in the ers against the board of excise of the city of neglect, but the result is a joint result. An Elizabeth to review the granting of a license early precedent of a joint indictment for by such board. License set aside. nonfeasance is given in 2 Chitty, Criminal Argued February term, 1907, before GARLaw, *587.
RISON, SWAYZE, and TRENCHARD, JJ. No doubt seems to have been felt by Lord
Edward Q. Keasbey, for prosecutor. James Mansfield that in a proper case a joint in C. Connolly, for defendant. dictment might be found against two justices for improperly refusing to grant a license to GARRISON, J. This certiorari brings up an inn. Railroad v. Young & Pitts, 1 Burr. a license to keep an inn and tavern at 201 556. In People v. Meakim et al., 133 N. Y. Spring street, Elizabeth, granted by the 214, 30 N. E. 828, the Court of Appeals of board of excise of that city. The validity of New York sustained a joint indictment the license is contested upon the ground that against three excise commissioners for neg 201 Spring street is within 200 feet of a lecting for an unreasonable time to decide a church edifice. The writ is prosecuted offici. complaint of the sale of liquor on election ally on behalf of this church. day. In a very recent case in this state, di When this question was brought before us rectors of a street railway company were on a previous occasion by private prosecujointly indicted for involuntary manslaughter. tors, the testimony adduced by them failed The duties of the defendants were diverse. to satisfy us as to the applicability of chapSome were concerned only with the operation ter 21, p. 42, of the Laws of 1905, for reaof the road, and some with the scheme or sys sons that are stated in the opinion filed in tem under which the operation was to take that case. George v. Board of Excise of Elizplace. Had the objection now urged to this abeth (Sup.) 63 Atl. 870. indictment bee und, it would have dis In the present case the testimony entirely posed of the indictment in that case. The establishes the claim of the church reprepoint was not even raised, and the case came sented by the prosecutors to be regarded as on for trial upon the merits before three of a church within the meaning of the statute the justices of this court, who delivered sep- just cited. The only question that has seriarate charges to the jury. Neither alluded ously arrested our attention is whether in to any difficulty in the way of holding the de view of the fact that 201 Spring street was fendants jointly liable for negligence. State a licensed inn and tavern at the time to v. Young (N. J. Sup.) 56 Atl. 471. We think present license was applied for and granted there is no substance in the present objection. it can be said to be "a new place” in the
As to the objections that the indictment is sense in which that term is employed in the ambiguous, indefinite, and vague, and bad for statute. Our conclusion, however, is that it multifariousness, it is enough to say that there is a new place within the contemplation of is a single definite charge of neglect of duty in that act. The license that was passed upon failing to investigate the conduct of the po in the prior case was one that had been lice force under the control of the defendants. | granted for a different locality, and was The averments as to the existence of numer merely transferred to 201 Spring street. ous houses of ill-fame amount only to speci Hence the application upon which the present fications of numerous instances of neglect, license was granted was the first application but the crime is single. It may well be that for a license for this place, and was the first there would be no criminal neglect, if there opportunity afforded the public and the preswas but one house of ill-fame in the city. ent prosecutor to test the question raised by It may be necessary to prove the existence this writ. In view of the obvious purpose of of many in order to establish the neglect. A the statute, these considerations rather than similar view has been taken in a recent case the mere existence of a licensed house should in New York. People v. Herlihy, 73 N. Y. determine the meaning to be given to the Supp, 236, 66 App. Div. 534, affirmed in the words of the act. opinion 170 N. Y. 584, 63 N. E. 1120.
The license brought up by this writ is set The motion to quash is denied.
(72 N. J. E. 537)
thereof, the acknowledgments were fatally de LONGLEY V. SPERRY et al.
(Ed. Note.-For cases in point, see Cent. Diz. (Court of Chancery of New Jersey. May 15, vol. 1, Acknowledgment, $ 192.] 1907.)
6. CHATTEL MORTGAGES-ASSIGNMENTS-REC1. CHATTEL MOBTGAGES-PBIOB INCUMBRANCE ORD. -NOTICE.
The record of chattel mortgage assignments Plaintiff and B. purchased a livery stable not properly acknowledged, and, therefore, not in common, executing a chattel mortgage to the entitled to record, did not operate as construc seller to secure their several notes for a part af tive notice to a subsequent mortgagee. the price, each being an indorser for the other.
[Ed. Note. For cases in point, see Cent. Dig. Plaintiff paid his note, but while the other was outstanding B. applied to S. for a loan, stating
vol. 9, Chattel Mortgages, 88 246-252.] to his attorney that he (B.) individually owned 7. SUBROGATION-PERSONS AGAINST WHOM IT the property, “the interest of another having MAY BE ENFORCED-PAYMENT-FURTHER SEbeen paid off," without mentioning the name of CURITY. such other, except for a chattel mortgage to the The rule that a chattel mortgage may be original vendor to secure $500, which was paid kept alive notwithstanding payment in order with the money borrowed. S. in an affidavit tes to secure another creditor of the mortgagor as tified that he believed B. individually owned the against subsequent incumbrancers or purchasers chattels; "he having been informed by B. that is inapplicable where the attempt to keep the the claims formerly held by plaintiff had been mortgage alive has been made by only one of paid off.” Held sufficient to charge S, with no the mortgagors having only a third interest in tice of plaintiff's interest in the property.
the mortgaged chattels for the purpose of de 2. SAME-ASSIGNMENT OF MORTGAGE-NOTICE. frauding his co-owner.
Plaintiff and B. having purchased a livery 8. SADE. business, mortgaged the property to
Where an assignee of a mortgage permitted their several notes given for part of the price, the note which it was given to secure to come on which each was indorser for the other. into the hands of the mortgagor with evidence Plaintiff paid his note, and thereafter B., have on its face that it had been paid and did not ing wrongfully obtained possession of the mort. secure possession of the mortgage itself, which gage, borrowed more money from S., giving a the mortgagor thereafter used to induce the bechattel mortgage on the property with which he lief on the part of his partner and subsequent paid his note to a bank which had discounted mortgagee that the note had been paid, such asit, and also executing an assignment of the signee was not entitled to claim that the mort. vendor's original mortgage to S. B. then ap gage should be kept alive to secure money which plied to plaintiff, offering to purchase his in he loaned to take up the note secured by the terest, producing to him the original chattel mortgage. mortgage with the seals torn off, and the note stamped "paid" by the bank, whereupon plain
9. PARTNERSHIP-ASSETS-CHATTEL MORTGAtiff sold his interest to B., taking a chattel mort
GE8-EXECUTION BY ONE PARTNER-EFFECT. gage for a part of the price without knowledge of
Where one of the members of a firm enthe assignment. Held, that the assignment of
gaged in operating a livery stable mortgaged the mortgage without the transfer of the unpaid
the entire assets of the firm to raise money note secured thereby conferred no rights on the
wbich he converted to his own use, such mort. assignee as against plaintiff.
gage was only effective to create a lien on the
mortgaging partner's interest in the firm after 3. SAME.
an accounting. The fact that the note and mortgage were presented by B. to plaintiff, the one with the
10. CHATTEL MORTGAGES-RECORD-NOTICE. seal torn off, and the other marked “Paid" two
Where a chattel mortgage was properly ex. months before its maturity, was insufficient to
ecuted, acknowledged, and recorded, it operated put plaintiff on inquiry, or excite suspicion that
as notice to a subsequent mortgagee under the the note and mortgage had been stolen.
express provisions of P. L. 1898, p. 690, $ 53. 4. SAUE-CANCELLATION OF RECORD.
Bill by William J. Longley against William P. L 1902, p. 489, $ 8. providing that chat. M. Sperry and another. Decree for complaintel mortgages duly recorded shall be valid
ant. against creditors of mortgagors and against subsequent purchasers, and mortgagees from the B. C. Austin, for complainant W. D. time of recording until the mortgages are canceled of record, was ineffective to validate, as
Wolfskiel, for defendant Sperry. against a subsequent mortgagee in good faith, a prior mortgage which had been in fact paid PITNEY, Advisory Master. The contest but which was not canceled of record.
in this cause is over a sum of money in the [Ed. Note.-For cases in point, see Cent. Dig. hands of the court, which is the proceeds of vol. 9, Chattel Mortgages, 88 508, 509.)
the sale, by consent of the parties and the 5. ACKNOWLEDGMENT - CHATTEL MORTGAGES order of the court, of certain chattels consti-FORM. P. L. 1902, p. 488, § 6, relating to chattel
tuting a livery stable plant known as "the mortgages, provides that no chattel mortgage
Golf Stables," situate at Cranford, N. J. The shall be recorded until its execution shall be question involved is which of two innocent first acknowledged or proved and certified in the manner required by the act respecting con
parties-Longley and Sperry-shall suffer by veyances which (P. L. 1898, p. 678, $ 22) pro
the manifest fraud of a third party. vides that the officer having first made known Botb parties claim' under chattel rort. the contents of the instrument to the party gages, and the question is one of priority, making the acknowledgment and being satisfied that such party is the grantor, etc., shall
depending upon the effect of certain facts and make a certificate on, under, or annexed to the circumstances in the cause. The facts are deed or instrument. Held that, where the cer as follows: In the last days of July, 1905, tificate of acknowledgment to certain chattel
one James 2. Smith was the owner in posses mortgage assignments did not state that the contents of the assignments had been made
sion of the chattels in question, and all par known to the party acknowledging the execution
ties claim through him. On the 20th day of Ju