*

PER CURIAM. [1, 2] The relator, a resi- | lie. In Newark v. Lewis, 82 N. J. Law, dent of Trenton for the past 11 years, is an 281, 81 Atl. 1072, this court declared that it enemy alien, being a native of Austro-Hun- is "by no means clear that mandamus is the gary and not a citizen of the United States. proper remedy in such a case, The allegation is that the commissioner of which, it will be observed, is not to compel a motor vehicles has refused to grant him a public officer to do something that he * license as a chauffeur or driver of an automo- has failed or refused to do, but to compel him bile upon the ground that he is an enemy to do in a different way what he has already alien, and as such during the existing state done. Certiorari would seem to be the propof war he is not entitled to claim and obtain er remedy." That case was subsequently afthe privilege he seeks. The defendant exer- firmed upon the opinion in 83 N. J. Law, 802, cises the power of granting licenses under 86 Atl. 1102. the acts of the Legislature contained in 3 C. S. p. 3430, § 11, as amended by P. L. 1915, p. 234, which authorizes him "to license at his discretion" and to refuse to grant a license "to any person who shall in the estimation of said commissioner be an improper person to be granted such a license." This is not a case where we are required to pass upon the propriety of the act of refusing a license in the given instance, as the argument of the relator would seem to indicate. It might be said that during a state of war the commissioner would be within his right, if not entirely within a proper conception of his duty in the premises, in taking notice of the fact that a state of war exists between the United

We are inclined, therefore, to deny the writ. But since the question presented is one of public importance, at the present juncture we are willing that an alternative writ of mandamus should go as the basis for a judgment record for the purpose of enabling the Court of Errors and Appeals to deal with the question during the approaching term.

(92 N. J. Law, 646) BOROUGH OF TOTOWA v. STATE BOARD OF TAXES AND ASSESSMENTS et al. (No. 24.)

States and Austro-Hungary, and that public (Court of Errors and Appeals of New Jersey. Feb. 6, 1919.) policy would therefore warrant him in refus

IES-STATUTE-CONSTRUCTION.

TITLE-SUFFICIENCY.

tutional.

ing a license to any person who by reason of 1. TAXATION 245- EXEMPTION CEMETERthe privilege and power committed to such person by what may be properly deemed a Act March 21, 1916 (P. L. p. 479) § 6, prostate privilege or concession may be thus viding that all mausoleums, vaults, crypts, or placed in a position by the possession of the structures intended to hold or contain bodies of instrumentality or mechanism placed at his the dead are to be exempt from taxation in like disposal to prejudice or injure the proper manner as such cemeteries are now exempt by conduct of the war between the militant na-law, does not apply to lands purchased by a tions. But we are not called upon under the corporation not a cemetery association. status that this case presents of entering in- 2. STATUTES 121(5)-CONSTITUTIONALITY— to a discussion of that question. For the rule of law upon an application of this naAct March 21, 1916 (P. L. p. 479) § 6, exture is that the court will not, except in a empting from taxation all mausoleums, vaults, case of palpable unreasonableness in the ex-tain bodies of the dead, a matter in no way incrypts, or structures intended to hold or conercise of the power, direct an administrative dicated in or germane to its title, is unconstiofficer to exercise the power committed to him in any particular method. W. J. & S. R. R. Co. v. Public Utility Bd., 87 N. J. Law, 178, 94 Atl. 57; Benedict v. Howell, 39 N. J. Law, 221. To warrant the issuing of the writ in any case the right of the petitioner to it must be clear, and the public duty sought to be enforced must be clear and specific. The writ is never granted in a doubtful case. High on Ex. Legal Rem. 12; State v. Newark, 35 N. J. Law, 396; Secaucus v. Kiesewetter, 83 N. J. Law, 229, 84 Atl. 622. [3] The situation presented by the present case is that the commissioner does not refuse to act, but as a fact has acted, but has acted adversely to the status claimed by the relator as his right. In such a situation mandamus, except in a case of a clear and pal pable violation of legal duty, or of a palpable and unreasonable exercise of it, will not

Appeal from Supreme Court.

Proceeding by the Borough of Totowa against the State Board of Taxes and Assessments and others. From a judgment of the Supreme Court, setting aside an order of the State Board, affirming an order of the County Board canceling a levy of assessment for taxes against the Mausoleum Builders of New Jersey, and also affirming the original Judgassessment, the defendants appeal. ment of the Supreme Court affirmed. In the Supreme Court the following per curiam was filed:

"The borough of Totowa levied an assessment for taxes to the extent of $35,000 on the property of the Mausoleum Builders of New Jersey, which the county board of taxes canceled,

and on appeal to the state board it affirmed the Proceeding by the State against the Butcancellation, notwithstanding that the Court of terworth-Judson Corporation and others for Errors and Appeals of this state had declared maintaining a nuisance, and from the judgthat this identical property was subject to tax- ment they bring error. Reversed. ation. The ground upon which the state board rests its action is a statute of 1916, p. 477, which provides (section 6) that 'all mausoleums, vaults, crypts or structures intended to hold or to contain the bodies of the dead, now erected or which may hereafter be erected and located within any duly authorized cemetery organized in accordance with the laws of the state of New Jersey, shall be exempt from taxation in like manner as such cemeteries are now exempt by law.'

STATE v. BUTTERWORTH-JUDSON COR-spite supplement added by Act March 17, 1916 PORATION et al.

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

BACKES, V. C. This is the usual bill for the specific performance of a contract for the sale of land. The title to the land is in the defendants, husband and wife. They agreed to convey it to the complainant in exchange for his land. The contract is in writing, but it is not acknowledged.

altogether. The statute (section 39, as amended) still requires an acknowledgment by a married woman in order to effectuate a conveyance of her land, and it is as much of the essence of her conveyance as it was before the separate examination was dispensed with. The principle underlying the cases is still applicable, and the decisions are controlling.

The bill will be dismissed, with costs.

(92 N. J. Law, 282)

ASHWORTH v. COURT OF COMMON
PLEAS OF SUSSEX COUNTY et al.

(Supreme Court of New Jersey. Feb. 25, 1919.)
(Syllabus by the Court.)

I have already disposed of the defenses that the contract was executed under misapprehension as to its purport, and that it was procured by fraudulent misrepresentations, adversely to the defendants. The remaining question, upon which counsel submitted briefs, is whether a married woman's contract for the sale of land, unacknowledged, is enforceable in equity under the law as it now stands. In Corby v. Drew (1897), 55 N. J. Eq. 387, 36 Atl. 827, followed by Schwarz v. Regan, 64 N. J. Eq. 139, 53 Atl. 1086, and Ten Eyck v. Saville, 64 N. J. Eq. 611, 54 Atl. 810, Vice Chancellor Stevens held that an acknowledgment, in the manner prescribed by the statute, was an essential and indispensable requisite to a conveyance of land by a married woman, and that her contract to convey could not be enforced. Later, in Goldstein v. Curtis, 63 N. J. Eq. 454, 52 Atl. 218, Vice Chancellor Pitney held that, by virtue of the statute as then revised, a married woman's contract, 2. CERTIORARI 8- REFUSAL OF INNKEEPduly acknowledged, was enforceable.

The law as it stood when these cases were decided was (section 39 of the Conveyance Act [2 Comp. St. 1910, p. 1547], substantially) that no estate of a married woman in lands shall pass by her deed without a previous acknowledgment made by her on a private examination, apart from her husband, before an officer authorized to take acknowledgments, that she signed, sealed, and delivered the same as her voluntary act and deed, freely and without any fear, threats, or compulsion of her husband. In 1916 (P. L. 1916, p. 321) the Legislature, by supplement to the Conveyance Act, enacted that conveyances of land may be executed and delivered by any married woman of the age of 21 years without a private examination apart from her husband, and without an acknowledgment made by her that she signed, sealed, and delivered the same as her voluntary act and deed freely, without any fear, threats, or compulsion of her husband. And in 1918 (P. L. 1918, p. 119) section 39 of that act was amended, to conform to the provision of the supplement, eliminating the requirement of a separate examination.

Counsel for the complainant argues that this modification removes the protection that the separate examination formerly gave to a married woman as against her husband's compulsion, and sweeps away the reason upon which Corby v. Drew and the later cases were decided. This is only partly true. The barriers were let down, but not

1. INNKEEPERS 4-LICENSE-JURISDICTION of Court oF COMMON PLEAS.

Under section 11 of the Inns and Taverns

Act (Comp. St. p. 2893), the court of common pleas, by refusal of a license application reguter, whatever may have been the ground of such larly before it, loses all jurisdiction of the mat

refusal.

ER'S LICENSE.

fusal by the court of common pleas to grant a A certiorari to review the legality of the relicense for an inn and tavern dismissed, on the ground that, even if such refusal be illegal, the application nevertheless lapsed, and could not be reinstated for further determination; such reinstatement being the avowed object of prosecutor.

Certiorari by Christopher Ashworth to review the legality of the refusal by the Court of Common Pleas of Sussex County, and others, to grant a license for an inn and Writ dismissed. tavern.

Argued February Term, 1919, before PARKER and MINTURN, JJ.

William A. Dolan, of Newton, for prosecutor.

PARKER, J. The object of the suit is to obtain a reversal of, or more accurately to set aside, the determination of the Sussex pleas refusing an inn and tavern license applied for by prosecutor. The court placed on record its sole ground of refusal, which was that at the regular election of November, 1918, just prior to the December term of court at which the application for license was made, the borough of Branchville, in which prosecutor's place was situate, had voted to prohibit the sale of liquor, pursuant to chapter 2 of the Laws of 1918. The court placed on record, as part of its determination, that the application was in due form and

ICATE-PAYMENT OF PREMIUMS.

In an action to recover upon a life benefit certificate, the fact that premiums were in arrears at the time of payment is of no importance, where there is nothing in the certificate which makes it void for nonpayment of dues.

that no objection had been made to the li-12. INSURANCE 750-LIFE BENEFIT CERTIFcense; but that it was considered that as a result of the election the statute deprived it of power in the premises, although a certiorari to review the proceedings prior to and at such election and connected therewith had been allowed (we suppose at the instance of prosecutor, though this is not specifically stated), and a stay had been granted therein pursuant to section 8 of the act.

Appeal from Supreme Court.

Action on a benefit certificate by Mary [1, 2] It is now argued, and with force, Howard against the Essex Mutual Benefit that the effect of the certiorari and stay reAssociation. From a judgment of the Sulating to the election suspended the opera-preme Court, affirming a judgment for plaintion of the statute ad interim, so that the tiff, defendant appeals. Judgment affirmed. court could act on the application as though In the Supreme Court the following per there had been no election; and that, if the curiam was filed: effect of the act is otherwise, it is unconstitu

cate. The only question is whether the premi[1, 2] "This is a suit on a life benefit certifium was paid a day before or a day after the death of the assured. This is a question of fact, and we cannot revew the finding of the trial judge, since there was evidence that it was paid the day before. The fact that premiums were in arrears at the time of payment is of no importance, as there is nothing in the certificate which makes it void for nonpayment

of dues.

"Let the judgment be affirmed, with costs." Edward R. McGlynn, of Newark, for appellant.

Arthur B. Seymour, of Orange, for appellee.

tional as impairing the prerogative powers
of this court. We are not concerned, as it
seems to us, with these questions, because a
determination of them, so far as the applica-
tion at December term was concerned, would
be purely academic. It seems to be assumed
by prosecutor that, if we should direct the
determination of the pleas to be set aside,
he could then obtain an adjudication on the
merits of his application, which is what he
avowedly desires; but this is not the case.
Under section 11 of the Inns and Taverns
Act (Comp. St. 2893), the determination of
the pleas must be on the first day of the
term, or on some other day thereof, publicly
fixed on by said court on the opening day.
It has been held that this extends to later
days to which the matter has been regularly
continued by the court. Hinchman v. Stoepel,
54 N. J. Law, 486, 24 Atl. 401. But when the
court has once definitely acted, by granting
or refusing a license, its jurisdiction over the
application is gone, and the matter cannot
thereafter be reopened. Id.; Dilkes v. Pan-
coast, 53 N. J. Law, 553, 22 Atl. 122; White
v. Atlantic City, 62 N. J. Law, 644, 42 Atl.
170. Consequently, even if the pleas erred
in the ruling that that court had no power to
grant the license, as to which we express no
opinion, the refusal of the license put an end
to that application, and it would be futile to
pronounce a decision which would have no
effect to reinstate it if favorable to prose
cutor.
For this reason, the writ in this cause will be held liable for false imprisonment.
be dismissed.

PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

(92 N. J. Law, 630)

HOWARD v. ESSEX MUT. BENEFIT
ASS'N. (No. 97.)

(Court of Errors and Appeals of New Jersey.
Feb. 6, 1919.)

FINDINGS-CONFLICTING EVIDENCE.

(92 N. J. Law, 267) (No. 32.)

SHAEFER v. SMITH.
(Supreme Court of New Jersey. Feb. 25, 1919.)
FALSE IMPRISONMENT 15(1)-LIABILITY OF
MAGISTRATE-BINDING OVER TO KEEP THE
PEACE-FAILURE TO REQUIRE SWORN COM-

PLAINT.

A magistrate who, upon a mere oral oath to the facts, but without a sworn and signed complaint, issues a warrant and causes the arrest of and binds over a citizen to keep the peace, may

Action by Emily Shaefer against Richard E. Smith, Jr., for false imprisonment. On defendant's rule to show cause. Rule made absolute.

Argued November term, 1918, before the CHIEF JUSTICE and SWAYZE and TRENCHARD, JJ.

Henry H. Fryling, of Newark, for plain

tiff.

Where the evidence was conflicting, the findings of the trial judge are conclusive.

Addison Ely, of Rutherford, for defend

ant.

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

This is an action for false | enforce payment thereof according to its origi

imprisonment. The defendant is recorder of nal tenor.

North Arlington and issued a warrant under 3. NEW TRIAL 66-VERDICT CONTRARY TO which the plaintiff was arrested and bound LAW-SETTING ASIDE ON RULE TO SHOW CAUSE.

A verdict which is contrary to the law of plained verbally on behalf of his wife. The the case as declared in the charge of the court justice wrote down, apparently in the war-will be set aside on a rule to show cause. rant, what Stetz told him and asked him if he would swear that was the truth; to which Stetz replied, "Yes, I do." Thereupon without Stetz signing the statement, or the magistrate drawing or signing any jurat, the defendant handed the warrant to the officer to serve.

SMITH, KLINE & FRENCH CO. v. FREE- holder in due course. Of course, if such as

1. BILLS AND NOTES 338-"HOLDER IN altered from $55 to $550 by the agent of the DUE COURSE."