(107 A.)

Some time after both parties left Islesboro the coat was found in some shrubbery and returned to Mrs. Crane. This action of libel is brought against the defendant for the Charles T. Smalley, of Rockland, for plain-writing and publishing of the letters above

"Dear Mrs. Yeager: I have told Miss Elms to produce the coat and I will forget the money. She confessed she had lied to me about the board. She tells me she has only $14 left, and Mrs. Hatch better see to it that she is paid before she leaves on the 2:40 to-day, which is [5] In this sense the conduct of the defendwhen I told her to at first, but have just writ-ant may be fairly characterized as malicious. ten her that if she can't produce the coat today to wait over until to-morrow and think it over. Please get Mrs. Hatch to let me know when she does go. Marsh has missed a razor since her visit to-day.

publication by private letter. But a charge | libel. of crime based upon groundless suspicion social standing, whose accusation would carcan never be privileged.

[12, 13] Such general damages are not necessarily nominal. Substantial damages may be recovered without proof either of special damages or actual malice. Davis v. Starrett, supra. Actual malice, or malice in fact may be shown for the purpose of enhancing damages. Pullen v. Glidden, 68 Me. 564; Jelli-ers of a county to condemn land for the site of A petition by the board of chosen freeholdson v. Goodwin, 43 Me. 288, 69 Am. Dec. 62. [14] Special damages may be recovered, but only if alleged and proved. Davis v. Starrett, supra.

[15] The jury, or the court, in a case reported, may assess punitive damages, but not unless actual malice is proved. 18 Am. & Eng. Ency. 1093; 25 Cyc. 536, and cases cited. Where a county board of chosen freehold[16] In the pending case the language used ers authorized its counsel to negotiate with the is libelous per se. It is legally malicious. owner of land, desiring to secure the site for The defendant is liable for the natural, prox- a county hospital for the insane, and counsel imate, and necessary consequences of the did so, there were legal negotiations to pur

(107 A.) chase the land prior to application for the ap-|ject. pointment of commissioners to condemn it.

4. EMINENT DOMAIN

169-CONDEMNATION OF LAND FOR HOSPITAL VALID THOUGH NO FUNDS IN HAND FOR PAYMENT.

The title states the object of the act to be to authorize any county of this state to change the location of a hospital for the insane to a point within the county, or, by agreement with another county, to locate it in the latter, and to build and maintain it, ty can initiate proceedings for the condemna-single or jointly, to acquire lands, to erect tion of laud for the site of a county hospital suitable buildings, and do everything possible for the insane pursuant to Act March 28, 1912 to produce a modern hospital with power to (P. L. p. 451), though the county has no funds issue bonds to defray the expense. in hand to pay for the land.

The board of chosen freeholders of a coun

5. COUNTIES 182-BONDS MATURING IN SIX YEARS "TEMPORARY 'BONDS" PERMITTED FOR

CONSTRUCTION OF HOSPITAL.

Bonds of a maturity limited to six years, issued by a county through its board of chosen

freeholders to finance a county hospital for
the insane, are "temporary bonds," within the
meaning of Act March 28, 1912 (P. L. p. 451),
authorizing the issuance of such bonds and
their private sale.

6. COUNTIES 113(1)—ADVERTISING EXPENS-
ES IN ESTABLISHMENT OF HOSPITAL ARE
PAYABLE WITH PROCEEDS OF TEMPORARY
BONDS.

The board of chosen freeholders of a county proceeding to establish a hospital for the insane pursuant to Act March 28, 1912 (P. L. p. 451), had authority to incur expenses for advertising and other proceedings connected with the condemnation of land, and to pay the cost out of the proceeds of an issue of temporary bonds.

Actions by Benjamin J. Darling against the Board of Chosen Freeholders of the County of Hudson. On rules to show cause why writs of certiorari should not be allowed to review certain proceedings of the board. Rules discharged.

Argued before TRENCHARD, BERGEN and KALISCH, JJ.

George J. McEwan, of West Hoboken, and Harlan Besson, of Hoboken, for the rule. John J. Fallon, of Hoboken, contra.

The first objection argued is that the title is defective because it omits any reference to the maintenance of the hospital. We think there is nothing in this objection for the title expressly states the object of the act is to authorize the building of a hospital and its maintenance, singly by one county, or jointly by both-singly by the county seeking a new site, and jointly by agreement with the other county. It is also urged that the act is void, because it has two objects-one, to provide the hospital; the other, to authorize the issue of bonds to pay for it. To provide for a public improvement, and means of payment, are not distinct objects, the one would be futile without the other, and the object is the

same.

[2] The next point is that the petition filed in the condemnation proceedings omits to show that legal resolution was passed upon which the application was based. This is not necessary, if in fact it was passed. The record shows that such resolution was adopted, and the justice of the Supreme Court who appointed the commissioners did so after public notice given of the application therefor, and found the jurisdictional facts.

[3] The next point is that there were no legal negotiations to purchase the land prior to the application for appointment of commissioners. That is not true, because the board authorized its counsel to negotiate with the owner and he did so.

[4] The next point is that the proceedings to condemn were premature, because the county had no funds in hand to pay for the land, and we are referred to Hurley v. TrenPER CURIAM. These two cases were ar-ton, 66 N. J. Law, 538, 49 Atl. 518, which was gued together. The first relates to the ap-a case of a binding contract for which no pointment of commissioners to condemn land provision had been made. But the condemnafor the site of a county hospital for the in- tion proceedings do not result in a contract, sane, and the second to proceedings for the for the city may abandon the proceedings, issue and sale of bonds to pay for the land even after the award, if the award is more and erection of the building. A rule to show than they will, or can, pay. There is nothcause why a writ of certiorari should not be ing in this statute which requires a municallowed to review the respective proceedings ipality to have the money in hand before was allowed in each case, which the appli- commencing condemnation proceedings. Our cant now moves be made absolute. We will conclusion as to the condemnation proceedfirst consider the application for writ to re-ings is that nothing has been shown to justify view the condemnation proceedings. the allowance of a writ. Therefore the rule in this cause should be discharged.

[1] It is argued that the act (P. L. 1912, c. 250), which authorizes a county to change the site of a hospital for the insane to a point within or without the county, is unconstitutional, because the title is defective, and that the act contains more than one sub

[5] As to the other application for a writ to review the bond issue proceedings, it is urged (a) that the law is unconstitutional for the same reasons above set out. This has been disposed of (b) because the board has no

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

"The jury say that they find the negligence of both parties were responsible for the injuries to both parties, and they award no damages to either side."

Thereafter the clerk of the court allowed costs to the defendants against the plaintiff, and taxed the same at $52.60.

The motion by plaintiff was to review and vacate the allowance and taxation of costs on the ground that the defendants were not entitled to costs.

William H. Wurts, of Jersey City, for the motion.

Mr. Venino, opposed.

authority to issue the bonds and sell them [ at private sale. The statute authorizes the issue of temporary bonds, and their sale at private sale; the time of the maturity of the bonds not to exceed six years. In the present case the maturity of the issue is limited to six years. The stress of the argument in favor of this rule is that these bonds are not temporary, and therefore cannot be sold at private sale. We think the proposed bonds are temporary within the meaning of the statute. It is urged that the Legislature never intended to authorize the issue of bonds for the purpose of temporarily financing so large an enterprise. But the act seems to contemplate the issuing of bonds for the construction of any improvement, and the financing of its construction, during progress, by the issue of temporary bonds payable at any time within six years, and to dispose of them at public or private sale at a price which the board may consider reasonable. [6] The next point is that the board had no authority to incur expense for advertising, and other proceedings connected with the condemnation, which the board have undertaken to provide for by authorizing the issue of bonds. We think the board had the right to incur these expenses and to pay the cost out of the proceeds of the bonds. The objection has no merit. This rule will also be (Supreme Court of Pennsylvania. April 28, discharged.

LEMKE v. POULIN et al.

(Supreme Court of New Jersey. July, 1919.) COSTS 32(5)—WHERE COUNTERCLAIM FILED ON VERDICT FOR NEITHER PARTY, NO COSTS

ALLOWED.

In an action for injuries and property damages in collision between plaintiff's and defendants' automobiles, wherein defendants filed an answer and counterclaim for similar damages, alleging negligence, and the jury returned a verdict for neither party, defendants are not entitled to costs against plaintiff.

Action by Theodore R. Lemke against Mary C. Poulin and another, resulting in verdict for neither party. On motion to review and vacate the allowance and taxation of costs. Costs disallowed.

This action arose out of a collision between two automobiles owned by Lemke and Poulin. The latter's machine was operated by Helfenstein as Poulin's servant. Plaintiff sued for personal injuries and property damages. Defendants filed an answer and counterclaim for similar damages, alleging negligence on the part of plaintiff and his servant. The action was tried in the Hudson circuit in May before Speer, J., and the jury brought in the following verdict:

SWAYZE, J. I think I ought to follow the Massachusetts court in Hartford v. Cooperative Mutual Homestead Co., 130 Mass. 447, and the case cited therein. This results in disallowing the costs.

(264 Pa. 523)

NEVIN et ux. v. CATANACH et al.

1919.)

1. PARTITION 60- BILL WHERE LAND LOCATED IN Two COUNTIES AMENDED TO SHOW LARGER PART IN COUNTY OF FORUM. A bill in equity for partition of land lying in two counties, filed in county in which "the larger part of the estate in value is situated," but not so averring, as required by Act Feb. 20, 1854 (P. L. 89), might be amended to conform to the act, although before amendment is allowed defendants have filed petition for partition in orphans' court of county in which smaller part of land is located.

2. PARTITION

60-AMENDMENT OF BILL AS TO LOCATION OF LAND DID NOT CHANGE CAUSE OF ACTION.

Where bill in equity for partition in common pleas of Philadelphia county, having jurisdiction under Act July 7, 1885 (P. L. 257), did not aver that "the larger part of the estate and value" was located within that county, as required by Act Feb. 20, 1854 (P. L. 89), an amendment containing such averment did not change cause of action or prejudice defendant, as, when made, it became part of bill. 3. APPEARANCE

23- GENERAL APPEARANCE IN PARTITION ESTOPS DEFENDANT TO ENTER PLEA IN BAR.

fendants in a bill in equity for the partition An entry of a general appearance by deof land estopped them from entering a plea in bar for want of the averments as to location required by Act Feb. 20, 1854 (P. L. 89).

Appeal from Court of Common Pleas, Philadelphia County.

(107 A.)

Bill in equity for partition by David T., and defendants' refused. The latter reNevin and Jessie C. Nevin, his wife, in the quests, however, raised only the question of right of the said Jessie C. Nevin, against jurisdiction already indicated; and that is Margaret N. Catanach and others. From a the sole point pressed on this appeal. decree for partition, certain defendants ap peal. Affirmed.

Argued before MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. A. M. Holding, of Westchester, and Robert T. McCracken and Owen J. Roberts, both of Philadelphia, for appellants.

John J. Sullivan, of Philadelphia, for appellees.

MOSCHZISKER, J. Adam A. Catanach had his homestead in Chester county, where he died, and where his will was probated. May 28, 1918, plaintiffs filed a bill in the common pleas of Philadelphia, praying partition of decedent's lands, situate in both counties. The bill contained no averment that "the larger part of the estate in value" is located within the ordinary geographic jurisdictional limits of the court below, although such condition of fact is required by section 1 of the act of February 20, 1854 (P. L. 89), in order to vest "power" in that tribunal "to entertain suits and proceedings * * at law or in equity * for the partition of real estate" lying in "one or more counties."

*

A general unrestricted appearance was entered for some of the defendants on June 20, 1918, and, on August 8, 1918, for the others. August 12, 1918, defendants demurred, alleging a lack of jurisdiction in the court below, because of the absence of the beforementioned averment. August 23, 1918, plaintiffs, by leave, amended their bill, inserting the

words

[1, 2] The description of the properties contained in plaintiffs' bill plainly indicates the fact, subsequently inserted by amendment and found by the chancellor, that the larger part in value of decedent's real estate is situated in Philadelphia county, which was at no time denied by appellants.

The court below had jurisdiction in partition (Act of July 7, 1885 [P. L. 257; 3 Purd. Dig. (13th Ed.) p. 3414, par. 28]; Doyle v. Brundred, 189 Pa. 113, 119, 41 Atl. 1107; Brown's Appeal, 84 Pa. 457, 458; Sheridan v. Sheridan et al., 136 Pa. 14, 20, 19 Atl. 1068), and the amendment neither changed the cause of action (Wilhelm's Appeal, 79 Pa. 120, 134, 136; Aultman's Appeal, 98 Pa. 505, 514; Rochester Borough v. Kennedy, 229 Pa. 251, 273, 78 Atl. 133; Joynes v. Penna. R. R., 231 Pa. 321, 327, 83 Atl. 318), nor in any substantial sense prejudiced defendants (Dick's Appeal, 106 Pa. 589, 596; Horwitz v. Wohlmuth, 66 Pa. Super. Ct. 321, 324; Shlifer v. Bergdoll, 69 Pa. Super. Ct. 86, 89); hence, when made, it became part of the bill, to all intents and purposes, as if originally inserted therein (Wilhelm's Appeal, and Dick's Appeal, supra ; B. & O. R. R. v. McLaughlin, 73 Fed. 519, 521, 19 C. C. A. 551, 43 U. S. App. 181, 187, opinion by Taft, J.; 1 Ency. Pl. & Pr. 491, 492), and the fact that, after the date of the institution of plaintiffs' proceedings, defendants went into the orphans' court of Chester county for partition of the same lands, can in no way oust or affect the jurisdiction of the common pleas of Philadelphia, which had previously attached (Sprigg v. Com. T. I. & T. Co., 206 Pa. 548, 555, 56 Atl. 33; Jones v. Lincoln S. & T. Co., 222 Pa. 325, 326, 71 Atl. 209; opin

"The larger part in value of the estate of the said Adam A. Catanach, deceased, is, and was at the time of the death of said Adam A. Cata-ion of Penrose, J., in Hanbest's Estate, 6 Pa. nach, situate in the county of Philadelphia."

Dist. R. 681; Finch v. Smith, 146 Ala. 644,
651, 652, 41 South. 819, 9 Ann. Cas. 1026).
See, also, numerous cases cited in 15 Corpus
Juris, 1134, § 583.

Subsequently defendants answered, averring, inter alia, that between the filing of the bill and the date of the amendment they had presented their petition to the orphans' court [3] Aside from defendants' attack on the of Chester county, praying partition of the pleadings, it must be admitted that, from same lands described by plaintiffs; that, every aspect, the court below had jurisdicsince the bill in the court below lacked an tion, both of the subject-matter and, by genessential jurisdictional averment at the date eral unrestricted appearance, of the several of the commencement of defendants' proceed-defendants. McCullough v. Ry. Mail Ass'n, ings, July 29, 1918, there was, at that time, 225 Pa. 118, 123, 224, 73 Atl. 1007; Swecker no valid prior action pending for the parti- v. Reynolds, 246 Pa. 197, 201, 202, 92 Atl. 76. tion of such lands, and therefore their peti- With this in mind, the correctness of the tion took precedence of plaintiffs' bill, in rulings hereinbefore made becomes apparent, effect ousting the latter's suit. The court especially if for a moment we look at the below overruled this contention, by granting present proceeding as though it were a com"judgment for plaintiffs, with leave to pro- mon-law action, commenced by summons, ceed," and, when the case came to hearing, and consider that, under such circumstances, ordered partition. Defendants have appealed.

All parties in interest agreed upon findings of fact, but each side submitted requests for couciusions of law; plaintiffs' being affirmed,

the absence from the declaration of the averment in question would not constitute a reason for quashing the writ, or ousting the suit, but, at most, is a mere matter of amendment. Neither the fact nor the law is chang