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that the word "year" be read, for present purposes, to mean "remainder of the calendar year." This is in effect what was held in the Garrison Case. It follows that the assessor properly reported a rate based, for Jersey City, which we take as a type, on one month's budget, and similarly as to other municipalities, according to the intervals between the end of the old fiscal year and December 31st.

it to depend on the empty certificate of the [ rate of taxation “for the said year,” a proper local assessor of a rate which he later certi- construction of the fiscal year act requires fied had been overruled by the court. The assessment brought up, so far as it relates to second-class property, must be set aside. The "average rate" portion of the tax is more troublesome, but is controlled, in our judgment, by similar reasoning. The main difficulty arises out of the recent legislation relating to municipal budgets, fiscal years, and taxation. One general aim of the whole series of acts was to make a uniform fiscal year for all municipalities, and to make it identical with the calendar year. To attain this object, the Legislature passed an amendment of the Fiscal Year Act of 1908, p. 560, which will be found in P. L. 1918, p. 901, and which was approved March 4, 1918, and went into effect immediately, the effect of which is to provide in all cases where the municipal fiscal year ended under the former law before December 31, 1918, that the period between the end of the pre-existing fiscal year (in Jersey City November 30th) and December 31st should constitute what may be called a quasi or artificial fiscal year, for which a special budget and tax rate should be made up, and on January 1, 1919, a new fiscal year should begin for every municipality. Perhaps municipalities whose fiscal year ended before March 4th were unaffected, if there are any such; but this is not material now. The argument for the state is that under the railroad tax law the "average rate" tax is imposed for a year, and for no less period; and that by the very language of sections 10 and 11 of the supplement of 1918 to that law the tax "for" 1918 and proceedings respecting the same shall be "taken, completed and availed of as now provided by law"; ergo, it is argued the rate in question is really too low, as it should be based on a year's local budget and on no less term. The argument proves too much; for the Jersey City "year" would begin on December 1, 1918, and end on November 30, 1919, thus using 11 months of 1919, while under any view of the statutes the railroad tax rate assessed in 1919 would have to be based on a local rate for the calendar year 1919 as a municipal fiscal year, and so make double taxation for the 11-month period. But we think the average rate in question was not intended to be based on a local year, except when the local year is also a calendar year. The fiscal year act (chapter 238) went into effect, as we have said, March 4, 1918; the supplement to the Railroad Act, c. 284, was approved March 5th, and was to take effect January 1, 1919; consequently, when it speaks of assessing and collecting taxes "as now provided by law," it does so in contemplation of the fiscal year act previously passed and in full force. So that when it is required, as by the "average rate act" of 1906, that the local assessors certify by October 1st to the state board the local

It is further argued that the rate first certified (for Jersey City $17.30 per $1,000) should stand, because by the railroad tax supplement of 1918 this same rate must be repeated in assessing the railroads for 1919, that it is applicable to the whole year and manifestly insufficient. But this is simply not so. It is true that the railroad tax supplement of 1918 apparently contains an odd hiatus respecting a 1919 rate. A careful reading of that supplement will show that the legislative plan was to permit the assessing machinery to work during 1918 on the old plan, and to eventuate in a tax that would be a lien, as usual, on November 1, 1918, be certified to the comptroller December 1, 1918, and payable not later than February 1, 1919, with installment privilege. That is the tax now under consideration, which the supplement calls the tax "for" 1918, although our courts appear to have declined to assign it to any specific period of time. State v. United N. J. R. R., 76 N. J. Law, 72, 68 Atl. 796, affirmed 71 Atl. 228. As to 1919, the act says in effect (section 10) that the valuations of 1918 shall be adopted for a working basis, the assessment of taxes shall be made on January 15, 1919, and shall be considered as finally reviewed and determined on that date, and proceedings for collection taken thereon during 1919 as prescribed in the supplement. The Attorney General argues that the rate for this tax must be the same as that adopted in 1918, but the supplement does not say so, and in fact says nothing about it. Suspicion that this point was overlooked is rather confirmed by chapter 3 of the Laws of 1919, which prescribed that the rate shall be based on the tax rates for 1919. These, of course, would normally not be ascertained before March 10, 1919 (P. L. 1918, pp. 867, 868, § 508, cl. 22); so chapter 3 allows the tax of 1919 to be certified to the comptroller as late as April 15th. For 1920 the ordinary machinery of the Act of 1918, p. 1078, §§ 1 to 8, applies; the preliminaries occurring during 1919 and the tax being certified to the comptroller by March 1, 1920, section 8. This makes an intelligible scheme, and it will be seen that the railroads are thereby subjected to an average rate for taxes "for" 1918, 1919, and 1920 based strictly on local rates and valuations and on identical periods of time with private taxpayers.

(107 A.)

That one of these periods is less than a year does no harm, and the condition is manifestly indicated by the fiscal year act.

Viewing the case in this light, there is no substantial difference between the rights of the railroads touching second-class property and touching main stem. In each case they have been assessed to an illegal amount; in one case, directly, by imposition of the illegal local rate on second-class property, in the other, indirectly, by its use as a factor in computation. The assessments and proceedings must be set aside to the end that new assessments be made, based on the lawful local rates of the several municipalities.

The same result is reached in the cases of No. 246, Lehigh Valley R. R. Co.; 247, Central R. R. Co. of N. J.; 248, Morris & Essex R. R. Co.; 249, N. J. Junction R. R. Co.; 250, N. Y. Bay R. R. Co.

(93 N. J. Law, 321) BLESSING v. BLACKBURN VARNISH CO.

(Supreme Court of New Jersey. July 10,

1919.) 219

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KALISCH, J. This case comes before me on a rule to show cause why a docketed judgment entered in the Supreme Court should not be set aside. By the state of the case NONAPPEARANCE BY DEFENDANT-PROCEED- agreed upon between the attorneys of the reINGS IN REM.

1. ATTACHMENT

JUDGMENT

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spective parties it appears, as follows: That on November 23, 1918, a writ of attachment issued out of the district court of the First judicial district of the county of Monmouth, at the instance of the plaintiff against the defendant for $450, and subsequently on December 4, 1918, the officer of that court made a

return that he had attached the goods and chattels of the defendant, to wit: E. J. Stroud, $111.20; E. H. Moore, $22.20; Mulligan & Braye, $21.60; and J. J. Travis, $25— in the aggregate $180, no part of which was collected by the officer. The defendant entered no appearance, and on December 26, 1918, judgment was entered in said proceeding for the plaintiff for $392.92 debt and $28 costs. Subsequently the plaintiff caused the judgment to be docketed in the Monmouth county common pleas court for $420.92 and costs of docketing; and afterwards caused the judgment to be docketed in the New Jersey Supreme Court.

The act of docketing a judgment in district court attachment proceeding in court of A writ of fieri facias was issued on the common pleas and Supreme Court cannot affect judgment out of the Supreme Court directed defendant's land, since land cannot be attached to the sheriff of Monmouth county on Janin district court proceeding, and act of docket-uary 17, 1919, which official made a levy uning judgment cannot enlarge scope of judgment. der the execution and collected thereunder

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DOCKETING IN SUPREME COURT.

from the persons in whose hands moneys were attached under the attachment issued

Under 3 Comp. St. 1910, pp. 2957, 2958, §§ out of the district court the following sums: 6, 11, providing that judgments docketed in Su- From Mulligan & Braye, $43.80; from H. H. preme Court shall operate as judgment obtained Moore, $22.20; from J. J. Travis, $50.27; therein, a district court judgment in attachment and from E. J. Stroud, $106.55-in the aggreproceedings against nonappearing defendant gate $221.24, which amount, less sheriff's cannot be docketed in court of common pleas fees, was paid to the plaintiff.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

A transcript from the docket of the Su-1 form a legal foundation for an action." preme Court shows that the judgment was Beasley, C. J., at page 23 of 36 N. J. Law, docketed as follows: in commenting on the nature of such a judgment, said:

Harry B. Blessing v. Blackburn Varnish Company, a Corporation of the State of Ohio.

On Contract. Monmouth Common Pleas. Debt, 392.92. Costs, 28.75. Docktg. 2.00. Judgment docketed in Monmouth common pleas from the district court of the First judicial district of the county of Monmouth.

A complete scheme is provided in the District Court Act for the collection of moneys due from a garnishee and attached under the act. 2 Comp. Stats. pp. 1978, 1979, §§ 73-76.

The plaintiff, concededly, did not pursue the practice there prescribed. He caused the judgment to be first docketed in the common pleas court and then in the Supreme Court. The judgment here is docketed as if it were an ordinary common-law judgment, whereas it is not. Miller v. Dungan, 36 N. J. Law, 21; Davis v. Megroz, 55 N. J. Law, 427, 26 Atl. 1009; Baldwin v. Woodbridge & Turner Co., 59 N. J. Law, 317, 36 Atl. 683; Goldmark v. Magnolia Metal Co., 65 N. J. Law, 341, 47 Atl. 720.

[1] Without an appearance by the defendant, as here, the attachment proceedings are strictly in rem, and the judgment is available only against the property attached. Davis v. Megroz, supra, 55 N. J. Law, 429, 26 Atl.

1009.

"The proceeding is altogether statutory, and has no other or greater effect than such as has been, either in express terms or by reasonable intendment, given to it by the legislative will. The judgment resulting from the procedure is subject to the same rule, for it is altogether statutory, and in no sense a common-law judgment. The contention that the judgment is to have the force of one against the person is not consistent with common justice, or with the several provisions of the statute in its general spirit."

For the plaintiff it is argued that section 168 of the District Court Act (2 Comp. Stats. pp. 2003, 2005) provides that any final judgment of the district court, if not less than $10 including costs, may be docketed in the court of common pleas; that the language “any final judgment" is broad enough to include a judgment in an attachment proceeding, even without an appearance by the defendant; and, further because section 172 of the act expressly declares that

"Such judgment shall from time of such dock-. eting in the court of common pleas operate as a judgment obtained in a suit originally comand execution menced in said court, may issue thereon out of such court of common pleas, which shall be of the same effect as to the property of the judgment debtor, either personal or real, as if issued on a judgment originally obtained in such court of common pleas, upon a suit commenced therein."

In Messerer v. Vannerman, 63 N. J. Law at page 536, 42 Atl. at page 807, Dixon, J., speaking for the Supreme Court, says:

"The main design of the Legislature in ena

ments rendered in the justice's and district courts has always been supposed to be that the This is the only design which cannot be as well debtor's real estate might be sold for his debts. effectuated by execution out of the lower courts as by execution out of the common pleas."

[2] In view of the fact that an attachment proceeding is in rem, and that a judgment obtained therein, where there has been no appearance by the defendant, can only operate against the property attached, what use ful purpose then can the docketing of such judgment accomplish? None has been suggested. To me it is evident that the docket-bling parties to docket in the common pleas judging of the judgment in attachment in the court of common pleas can only tend to create an additional and unwarrantable expense in collecting the proceeds of the prop erty attached. Such an effect was certainly not within the legislative design. Moreover, the legislative declaration that execution may issue on such docketed judgment out of the common pleas court, which shall be of the same effect as to the property of the judgment debtor, either personal or real, as if issued on a judgment obtained in such court of common pleas upon a suit commenced therein seems to me to characterize the nature of the judgment to be docketed to be such as will permit an execution against all the property of the judgment debtor's property, either real or personal, whereas on a judgment in attachment, where there is no appearance by the defendant, the execution is strictly limited to the property attached. In Miller v. Dungan, supra, it was held that "a judgment obtained in a proceeding, by attachment against a nonresident debtor,

[3] It is necessary to bear in mind that a judgment in attachment binds only the property attached, where there is no appearance by the defendant. The judgment can only operate effectually against the attached property. The act of docketing the judgment cannot enlarge its scope. It cannot be made a lien on any land of the defendant, since the land was not and could not be lawfully attached in a district court proceeding. No good reason has been suggested for the docketing of such a judgment, and it may be safely said that none exists. Sections 168 and 172 must therefore be held not to include a judgment in an attachment proceeding where there has been no appearance by the defendant, for the reason of the peculiarity and nature of the judgment, as has been

(107 A.)

Whisky is an intoxicating liquor.

The docketing of a judgment in the com- | to determine whether the signatures thereon mon pleas court is a necessary preparatory were those of the consignees, is qualified to tesstep to be taken before such judgment can tify that in his opinion the signatures on orders be properly docketed in the Supreme Court. for liquor were all written by the same person. This right is accorded by section 6 of the act 4. INTOXICATING LIQUORS 134 OFFENSES relating to judgments, 3 Comp. Stats. p. 2957, -WHISKY. which provides that any final judgment of a circuit court or common pleas may be docketed in the Supreme Court, and by section 11, p. 2958, which further declares "that such judgment shall, from the time of such docketing in the Supreme Court, operate as a judgment obtained in the Supreme Court."

[4] Thus, it is to be observed that, according to the record before me, a judgment obtained in the district court, in an attachment proceeding, where there was no appearance by the defendant, has been transformed by going through the statutory evolutionary process of docketing, from a judgment operative only against the property taken under the writ of attachment into a judgment enforceable against any and all of the real and personal property of the defendant found within the territorial limits of this state, without affording the defendant an opportunity to have his day in court in regard to such other property affected by the judgment. [5] Although the validity of the docketed judgment, as such, in the court of common pleas was necessarily considered by me in disposing of this case, I am satisfied that I am without authority, on this motion, to make any order regarding it. The proper practice to pursue is to apply to the court of common pleas wherein the judgment was docketed to have it vacated. McLaughlin v. Cross, 68 N. J. Law, 599, 53 Atl. 703.

The motion to vacate the judgment docketed in this court must prevail. The judgment is set aside, with costs.

(79 N. H. 201)

STATE V. KILLEEN. (No. 1556.) (Supreme Court of New Hampshire. Cheshire.

April 1, 1919.)

1. CRIMINAL LAW 481-EXPERTS-QUALIFICATIONS-DETERMINATION.

Whether a witness is qualified to testify as an expert raises a question of law regarding the qualifications an expert must possess, and a question of fact as to whether the witness possesses such qualifications.

2. CRIMINAL LAW 478(1) -EXPERTS QUALIFICATIONS.

In determining whether a witness is qualified to testify as an expert, the test is whether his knowledge is such that his opinion may aid the jury.

3. CRIMINAL LAW

478(2)-COMPETENCY or

HANDWRITING EXPERT. A witness who had examined a large number of delivery orders each day for ten years,

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Intoxicating Liquor.]

Transferred from Superior Court, Cheshire County; Kivel, Judge.

One Killeen was convicted of keeping intoxicating liquors for sale. Transferred on exceptions. Exceptions overruled.

Roy M. Pickard, of Keene, for the State. John J. Landers and Joseph Madden, both of Keene, for defendant.

YOUNG, J. [1] The defendant's exceptions to the court's finding that a witness was qualified to testify as an expert raises the question of (1) the qualifications an expert must possess, and (2) whether the witness possessed these qualifications.

The first of these is a question of law. Boardman v. Woodman, 47 N. H. 120, 140; Dole v. Johnson, 50 N. H. 452; Jones v. Tucker, 41 N. H. 546. The second is a question of fact. Keefe v. Railroad, 75 N. H. 116, 121, 71 Atl. 379.

[2] No test to determine the qualifications a witness must possess in order to be permitted to testify as an expert, which will reconcile anything like all the cases in which that question has been considered, can be found either in the nature of things or in the decided cases (3 Wig. Ev. §§ 1917-1923); but an examination of the cases decided since 1860 will show a gradual turning on the part of the court toward the view that the test is to inquire whether the witness' knowledge of the matter in relation to which his

opinion is asked is such, or so great, that it will probably aid the trier in its search for the truth. Jones. v. Tucker, 41 N. H. 546; State v. Knapp, 45 N. H. 148, 154; Boardman v. Woodman, 47 N. H. 120, 140; Taylor v. Railway, 48 N. H. 304, 310, 2 Am. Rep. 229; State v. Pike, 49 N. H. 399, 408, 6 Am. Rep. 533; Dole v. Johnson, 50 N. H. 452, 453; State v. Archer, 54 N. H. 465, 468; Hardy v. Merrill, 56 N. H. 227, 241, 22 Am. Rep. 441; Carpenter v. Hatch, 64 N. H. 573, 576, 15 Atl. 219; Folson v. Railroad, 68 N. H. 454, 461, 38 Atl. 209; Little v. Head & Dowst Co., 69 N. H. 494, 43 Atl. 619; Chapman v. Tifany, 70 N. H. 249, 47 Atl. 603; Pattee v. Whitcomb, 72 N. H. 249, 261, 56 Atl. 459; Flint v. Union Water Power Co., 73 N. H. 483, 485, 62 Atl. 788; Keefe v. Railroad, 75 N. H. 116, 121, 71 Atl. 379; Davis v. Railroad, 75 N. H. 467, 469, 76 Atl. 170.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

602

determine [ 4. PARTNERSHIP 249-DEATH OF PARTNER -TRUST RELATIONSHIP.

test, therefore, to [3] The whether the court erred when it permitted the witness to testify that in his opinion the signatures on the orders for the different cases of liquor were all written by the same person, is to inquire whether there is any evidence from which it can be found that his knowledge of handwriting was such that his opinion might aid the jury in determining that issue. Davis v. Railroad, 75 N. H. 467, 469, 76 Atl. 170. The evidence relevant to the witness' experience is that it had been his work for ten years or more to examine a large number of delivery orders each day, to determine whether the signatures on them were those of the persons to whom the goods were consigned.

It is obvious that it may be found from this evidence that his opinion as to who

Surviving partner is a trustee and the personal representative of deceased partner a cestui que trust, with reference to the partnership property.

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Exceptions from Superior Court, Hillsborough County; Marble, Judge. Bill by Mary L. Cotton and another Bill dismissed, against I. Frank Stevens.

signed the orders in question might aid the and plaintiffs except. Exceptions sustained, jury in determining the question. Ev. § 1923.

3 Wig.

[4] It is enough to say of the defendant's second exception that whisky is an intoxicating liquor, and that instead of there being no evidence that the cases marked "potable liquor" contained whisky when they were delivered to the defendant, that is the only conclusion of which the evidence is fairly capable.

Defendant's exceptions overruled.

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1. PARTNERSHIP 249-DEATH of PartnER -DUTY OF SURVIVING PARTNER-DISTRUST BY WIDOW.

Deceased partner's widow's lack of confidence in surviving partner did not relieve surviving partner of performance of his duties as trustee, or leave them in the position of independent parties having no special fiduciary rights and obligations.

2. PARTNERSHIP 249 DEATH OF PARTNER-DUTY OF SURVIVING PARTNERr.

Surviving partner as trustee is required to act in entire good faith and honesty, and to make a full and fair disclosure of the value of the firm property.

3. PARTNERSHIP 258(8)-DEATH OF PARTNER-SALE OF INTEREST-FRAUD-EVIDENCE.

In action by widow and daughter of deceased partner against surviving partner to set aside sale of deceased partner's interest to surviving partner evidence of the undervaluation of the property and of surviving partner's failure to disclose true facts held admissible on issue of fraud in fact, and upon issue of constructive fraud arising from the trust relationship of the parties.

and new trial granted.

Bill in equity to rescind a certain contract of sale and for an accounting. Mary L. Cotton is the sister of the defendant and the widow of John E. Cotton, who died June 18, 1912, and who had been a partner of the defendant in the manufacture and sale of reThe other plaintiff, frigerators in Nashua. Lillian R. Fletcher, is the adopted daughter of Mary and the residuary legatee under Mr. Cotton's will. After Mr. Cotton's death the business was conducted by the defendant as surviving partner until March, 1913, when he purchased the interest of his late partner of Mrs. Cotton, who was the executrix of her husband's will. Mr. Cotton left a letter of instructions to his widow, advising her to employ George B. French as counsel to assist her in settling his estate, warning her against the interference of the defendant, whose loyalty he appeared to doubt. · Immediately after Mr. Cotton's death the defendant as surviving partner had an inventory taken of the partnership property, and filed the same in the probate court July 29, 1912. On June 21st Mrs. Cotton employed Mr. French as counsel for the estate. She

testified that she wished to draw from the firm assets $20,000, but that the defendant declined to comply with her request because, as he said, the business was running down, and there were no profits. In a letter to her he said the business would be embarrassed by a withdrawal of funds, but it is found he did not believe this to be true.

On December 2d the defendant made an offer of $135,897.53 for the Cotton interest, which was declined by the plaintiffs, who made a counter offer of $233,781.73 by letter of December 18th, to which the defendant made no reply. February 7th the plaintiffs submitted a final offer to sell the interest of the estate to the defendant for $185,000, with interest from January 1st. This offer

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