The plaintiff argues that the declaration sets forth a cause of action for negligence. The declaration first avers a contract to sell the plaintiffs pure petroleum oil, and a failure to deliver pure petroleum oil. This, however, sets up a contract and a breach, and cannot be turned into a count in tort by the averment that the defendants "did not use due and proper care that the plaintiffs should be furnished and supplied with pure petroleum oil." If it could, every breach of contract could be the subject of an action of tort.

The declaration proceeds to aver a failure to warn the plaintiffs of the dangerous character of the oil furnished. Although it avers that the defendants "well knew, or by the exercise of reasonable care would have known," the dangerous character of the oil, and leaves it therefore uncertain whether the negligence relied upon is the failure to warn, or the failure to exercise reasonable care to ascertain the danger, we might perhaps treat the declaration as averring a cause of action in tort. That would not lead us to sustain the declaration, for these averments are coupled with those already referred to, which aver a breach of contract. The defendant is entitled to know whether the action is for breach of contract or for negligence, and this cannot be ascertained from this declaration. In McDermott v. Morris Canal & Banking Co., 38 N. J. Law, 53, a demurrer to a declaration was sustained because two counts were in tort, and one in contract, and this was necessarily held to be a manifest misjoinder. In the present case the two causes of action are joined in the same count. The defendant cannot safely plead to such a declaration. He cannot decide whether to plead non assumpsit or not guilty; nor could the court, upon the trial, decide what issue to submit to the jury; nor can any proper record of a judgment be made up.

The defendant is entitled to judgment upon the demurrer.

(71 N. J. L. 367) MAYOR & ALDERMEN OF JERSEY CITY V. JERSEY CITY & B. R. CO. (Supreme Court of New Jersey. Nov. 7, 1904.) LIMITATIONS-CONTRACT TO PAY ANNUAL

LICENSE.

1. The construction of its railroad by the defendant under the municipal consent that was required by statute, and that was given by the plaintiff upon condition that the defendant would pay to the plaintiff an annual license fee for each car run by the defendant on its road, constituted an obligation resting in contract to pay such fees, to the enforcement of which obligation by legal action the statute of limitations may be pleaded.

(Syllabus by the Court.)

Action by the mayor and aldermen of Jersey City against the Jersey City & Bergen Railroad Company. Demurrer to plea overruled.

Argued June term, 1904, before GUMMERE, C. J., and GARRISON and SWAYZE, JJ.

George L. Record and Gilbert Collins, for plaintiff. Sherard Depue, Frank Bergen, and Richard V. Lindabury, for defendant.

GARRISON, J. This is a demurrer to the plea of the statute of limitations. The broad ground of demurrer is that the cause of action displayed by the declaration is not founded upon contract. The action set out in the declaration is for the recovery of the annual license fees prescribed by plaintiff's common council as the condition upon which its consent to the construction of the defendant's railroad was given. This declaration, when attacked by demurrer at a prior term, was sustained by this court upon the ground that the defendant, by accepting the consent of the plaintiff upon the terms on which that consent was conditioned, came under a legal obligation to pay these license fees. Jersey City v. Jersey City & Bergen Railroad Co. (N. J. Sup.) 57 Atl. 445.

The result of the premises which are fully stated in that opinion and of the reasoning upon which the decision was based, is that the defendant, by constructing its railroad under a consent of the plaintiff that was required by statute, and that was given upon condition that the defendant would pay to the plaintiff an annual license fee for each car run by the defendant on its road, incurred a legal obligation resting in contract to pay such fees. This conclusion, which, upon the same premises, we have reached, is at once the basis of the plaintiff's right to recover the fees so agreed to be paid, and of the defendant's right, when sued upon its sald obligation, to interpose by plea the statute of limitations.

Judgment upon demurrer is given for the defendant.

The case of the same plaintiff against the Consolidated Traction Company is disposed of by this decision, and a similar judgment may be entered in that case.

(71 N. J. L. 423) CITY OF ENGLEWOOD v. BOARD OF EQUALIZATION OF TAXES OF BERGEN COUNTY et al. (Supreme Court of New Jeresy. Nov. 7, 1904.) MUNICIPAL CORPORATIONS-TAXATION-ASSESSMENT-COUNTY BOARD OF EQUALIZATION.

1. An assessor in a city having a population less than 12,000 refused to correct the tax list of his ward as the common council of the city directed under section 40 of the act for the government of such cities (P. L. 1899, p. 115), and delivered his uncorrected list to the county board of equalization of taxes as the duplicate of assessments. The council duly notified the board of the facts, but nevertheless the board fixed the city's quota of county and state taxes on the basis of the list so delivered. Held, that such list was not legally a duplicate; that under the act of March 22, 1900 (P. L. p. 134), constituting such boards, the board had power to ascertain whether the list delivered by the

assessor was the duplicate required by law, and was bound to heed the notice sent by the council, and to fix the quota of the city accordingly. (Syllabus by the Court.)

Certiorari by the city of Englewood against the board of equalization of taxes of the county of Bergen and the board of chosen freeholders of Bergen county to review an assessment. Modified.

Argued June term, 1904, before HENDRICKSON and DIXON, JJ.

R. P. Wortendyke, for prosecutor. Ernest Koester, for defendants.

In consequence of the illness of Justice HENDRICKSON, he has been prevented from taking part in the decision, and the case is decided on the opinion of DIXON, J.:

Under the act of March 22, 1900 (P. L. p. 134), for constituting county boards of equalization of taxes, it is made the duty of the assessors of the several taxing districts in the county wherein such a board exists to deliver to the board on the first Tuesday of September in each year a transcript or duplicate of their assessments, containing the ratables and persons liable to taxation in their respective districts. Thereupon the board is empowered to examine under oath the assessors and other witnesses as to the assessments so delivered, both as to the valuations as a whole and as to any particular piece of property assessed, for the purpose of equalizing assessments among the several districts; and after consideration of such matters, and a careful, particular, and thorough comparison of the respective duplicates, the board is to fix and adjust the proportion or quota of tax to be levied in each district for state and county purposes. Under the act for the government of cities containing a population less than 12,000 (P. L. 1899, p. 96) the duplicates for the several wards of such a city are to be made only after the assessors' lists of taxes (which are to be prepared on or before the third Monday of August in each year) have been examined, revised, and corrected by the common council of the city (section 40). The duplicates showing these corrected lists are the documents to be delivered to the county board. The city of Englewood is governed by this act of March 21, 1899. In August, 1903, the assessors' lists in that city were submitted to the common council, and the council directed certain changes to be made therein, and duplicates to be accordingly prepared. The assessor of the First Ward refused to make the changes directed in his list, and delivered to the county board his unchanged list as the duplicate of his ward. This list showed a total valuation exceeding by $50,804 the valuation ordered by the council. The council thereupon gave due notice of the facts to the county board, but that board concluded that it had no jurisdiction in the matter, and fixed the city's quota, In accordance with the assessor's list, at a sum ex

ceeding by $319.77 what a true duplicate would have shown.

I think the board was mistaken as to its power. The board was authorized to receive only legal duplicates, and that implies authority to ascertain whether the documents presented are such. Without this implication, the authority expressly granted by the act of 1900 seems ample for this purpose. was, therefore, the duty of the board to heed the notice given by the council and to adjust the city's quota with the valuations fixed by the council in view.

It

In the proceedings before this court it is not questioned that the corrections ordered by the council were just, and therefore the quota charged upon the city should be reduced by $319.77. No costs should be allowed.

(71 N. J. L. 426)

DOUGHTEN v. CITY OF CAMDEN. (Supreme Court of New Jersey. Nov. 7, 1904.)

MUNICIPAL CORPORATIONS-WATERWORKS

FRONTAGE TAX-LAYING PIPES.

1. The charge of 75 cents per foot of frontage which by the act of March 9, 1871 (P. L. p. 415), enabling the city of Camden to supply its citizens with water, is made a lien upon land bordering on streets through which water pipes are laid, for the purpose of meeting the expense of laying the pipes, is valid, at least with regard to the property of owners who accept the supply of water.

2. If the city lay new pipes in place of old ones, worn out, which had been laid by a water company, the city's predecessor, such laying is within the meaning of that provision of said act.

3. Owners of property in front of which water pipes were laid without objection from them will not be heard to complain of mere informalities in regard to the ordering of the work. (Syllabus by the Court.)

Certiorari by the state, on the prosecution of Isaac Doughten, against the city of Camden, to review an assessment for water pipes. Affirmed.

Argued June term, 1904, before HENDRICKSON and DIXON, JJ.

Schuyler C. Woodhull and Herbert A. Drake, for prosecutors. E. G. C. Bleakley, for defendant.

In consequence of illness, Justice HENDRICKSON has been prevented from taking part in the decision, and the case is there fore decided on the opinion of DIXON, J.:

The main question presented in this case and the cases submitted with it is whether the city of Camden, on laying pipes for supplying water in a street of the city, is entitled to a lien on the land fronting upon either side of the street for the amount of 75 cents per foot of frontage to meet the expense thereof. The act of March 9, 1871 (P. L. p. 415), "to enable the city of Camden to supply the citizens thereof and the inhabitants of the town of Pavonia in the township of Stockton with water," attempts to confer on the city the right to such a lien, and hence

the constitutionality of that provision seems to be the first point for consideration.

Long ago it was settled by our court of last resort, as a general proposition, that the cost of a public improvement could be imposed on particularized property only to the extent to which such property was exceptionally benefited. Agens v. Newark, 37 N. J. Law, 415. But a distinction was then noticed between improvements which are primarily for the public welfare and only incidentally for the benefit of the landowner, and those of which the converse is true. While with respect to the first class the proposition just stated must be rigidly applied, with respect to the second class the rule is not imperative, and the Legislature may charge the actual cost on the private property to which the chief advantage accrues, even though the benefit be not an exact equivalent. Of this latter class are sidewalks and curbs, the gutters of unpaved streets, and the house connections of sewers, which are deemed appendages to the adjoining land. Sigler v. Fuller, 34 N. J. Law, 227; Kirkpatrick v. Commissioners, 42 N. J. Law, 510; Robins v. Commissioners, 44 N. J. Law, 116; Van Wagoner v. Paterson, 67 N. J. Law, 455, 51 Atl. 922.

This

On behalf of the city it is urged that water pipes laid in urban streets for the common use of the neighboring inhabitants have the characteristics of this second class. position seems to me well supported, at least with regard to those landowners who avail themselves of the conveniences provided. The principal object of these appliances is to furnish water for domestic and business purposes on the adjacent private property, and the value of such a provision is ordinarily greater than that which an improved sidewalk would afford to the property. On the other hand, the essentially public use of a water supply is but small in comparison with the private utility, and is less than the public use of an improved sidewalk. Hence, if sidewalks and their appurtenances are legally regarded as primarily for private benefit and only incidentally for public welfare, I see no reason why water pipes laid in the streets of our municipalities should not be viewed in the same light. Indeed, this idea of paramount private utility is emphasized in the very statute now under consideration, the title of which designates "citizens" and "inhabitants" as the beneficiaries of the legislative scheme. Consequently the principle which justifies the Legislature in charging against adjoining property the expense of constructing sidewalks will warrant a similar imposition for the laying of water pipes. There are, however, in this state two cases which may be thought to have a contrary bearing (Vreeland v. Jersey City, 43 N. J. Law, 135, Id. 638; Culver v. Jersey City, 45 N. J. Law, 256), where it was held that a fixed annual charge levied upon land bordering on streets through which water pipes were laid, but not using any water, was un59 A.-2

constitutional as a general tax because not graduated by the value of the land, and as a special assessment because not graduated by the benefit conferred. But those cases differ from that in hand, first, because the Legislature had not attempted to confer on Jersey City authority to charge against the land the expense of laying water pipes in front of it; and, second, because the city had not fixed the charge to meet such expense. Conditions corresponding to these are necessary to justify such an imposition as that now under consideration.

There is another view that may be taken, leading to the same result. As already noticed, the statute enabling the city to furnish a water supply directed that, for the expense of laying pipes through the streets, 75 cents per foot front should be paid by the owners of adjoining land, and should be a lien on the land until payment. Owners who accepted the benefits of the water supply thus provided should be deemed to have assented to the burdens accompanying it, and thus, even though this assessment could not be imposed on those not receiving the water, it might be legally levied on the property for which the owners did appropriate the supply. The testimony shows that in all of the lots now in question the city water had been taken by the owners, not only through the pipes for which this charge is made, but also through those for which these have been substituted.

Another objection urged against this charge is that this was not an original laying of pipes in these streets, and only for such an original work is the statutory authority available. The evidence shows that water pipes were first laid in these streets prior to 1870 by the Camden Waterworks Company; that under authority of an act passed March 14, 1870 (P. L. p. 539), the city purchased the plant of that company; and that, those old pipes being worn out, the new ones were laid in place thereof. I think this substitution was within the meaning of the statute. If even an original laying only was intended, this was an original laying by the city.

Another objection urged is that these pipes were laid without due authority. It appears that under an ordinance approved December 30, 1886, the control and regulation of the waterworks of the city are vested in a committee of the council, and this committee is empowered to contract for material and labor for the current use of said works in making such repairs and alterations as may be requisite to keep the works in all parts in serviceable condition; that in the year 1893 the city made a special emergency appropriation of $10,000 for the laying of water pipes; that the water committee ordered the city engineer to take up the old pipes in front of the prosecutors' lots, because those pipes had become rusty, clogged, leaky, and very fragile, and to lay new pipes in place

thereof; that this was done under the supervision of the city engineer, and the whole matter was reported to the city council and was approved by it, and the expense of the work was paid out of the emergency fund mentioned. I think the authorization thus shown was sufficient, and, even if it was informal, the quiescence of the prosecutors until the work was complete bars their complaint in this respect.

In my judgment, the reasons presented for annulling the assessment are insufficient, and therefore the assessment is affirmed.

(71 N. J. L. 478)

HECKLAU v. HAUSER. (Supreme Court of New Jersey. Nov. 7, 1904.)

LANDLORD AND TENANT-DEPOSIT TO SECURE LEASE-DEFAULT-RIGHTS OF TENANT.

1. Where a deposit is made by the lessee, in consideration of the making of the lease, to indemnify the lessor against a failure to perform the covenants of the lease, and, in case such failure does not occur, to pay the last three months of rent reserved under the lease at the expiration thereof, if, during the running of the lease, and before the last three months of its term, default is made in the payment of the rent reserved for any month, and the lessee is dispossessed by the lessor, the lessee may recover from the lessor the amount of the deposit in excess of the rent in default, and the water taxes then due by the lease; no other default under the lease being alleged or shown.

(Syllabus by the Court.)

Appeal from District Court of Hoboken. Action by Rebecca Hecklau against Gustave Hauser. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued June term, 1904, before REED and FORT, JJ.

Weller & Lichtenstein, for appellant. James F. Minturn, for appellee.

FORT, J. By the terms of the lease in this case, $285 was deposited by the plaintiff with the defendant upon the following condition: "In consideration of the making of the within lease by the said party of the first part to the said party of the second part the said party of the second part has deposited with the party of the first part the sum of two hundred and eighty-five dollars the receipt whereof is hereby acknowledged as guarantee and forfeit for the due performance of the conditions of the within lease which sum is to be applied first to the payment of the cost of such default, and secondly if there be no default, to the payment of the last three months of aforesaid term. Said deposit shall bear no interest. The lease was between the parties to this action, and was dated February 21, 1901, and ran for 10 years from the 15th day of March, 1901. The rent was payable monthly on the 1st day of each month. The plaintiff entered into possession of the premises under the lease. On November 1, 1903, the plaintiff defaulted in the payment of the rent for that month; and proceedings were taken by the

defendant under the landlord and tenant act, under which the plaintiff was dispossessed from the premises. This suit was then instituted to recover the amount of the deposit, under the terms of the clause in the lease above quoted.

The plaintiff obtained judgment in the court below for the amount of the deposit, less the rent for the month of November, 1903, and the water rent then due upon the premises, and to be paid by the plaintiff under the covenants in the lease. This, we think, was right. There was no allegation of any other default existing prior to the date of the dispossession of the plaintiff from the premises for which the deposit could be held.

The deposit under the lease was a conditional one: First, to make good any default under the lease. That, we suppose, means any default in the doing of any of the things agreed by the lease, and in default thereof to pay damages. And, second, if no default occurred, the said deposit was to pay the rent of the last three months of the term demised. No allegation is made of any default in the performance of any of the covenants of the lease prior to the plaintiff's dispossession, except the failure to pay the rent for the month of November, 1903. The lease terminated with the dispossession by the act of the defendant. The last three months of the term were the three months immediately preceding the dispossession. For those three months, with the exception of the month of November, the rent had been paid, thus leaving due at the expiration of the lease but a single month's rent. It was, as the New York Court of Appeals say in Chaude v. Shepard, 122 N. Y., at page 401, 25 N. E. 360, "an indemnity merely. * The plain

tiff's relation as tenant can be terminated before the end of the term only by the act or consent of the defendant, and, when he accomplished it and took possession of the premises, the damages with which the plaintiff was chargeable were those only which resulted from the breach of the covenants prior to the entry of the defendant upon the termination by the latter of the plaintiff's tenancy, as there could, in the nature of the case, be no breach of them committed by the plaintiff after the effectual termination of such relation, and re-entry by the defendant." Scott v. Montells, 109 N. Y. 1, 15 N. E. 729.

We think the district court rightly held that the plaintiff was entitled to recover the fund deposited, less the November rent and water tax due under the lease. The judgment is affirmed, with costs.

(71 N. J. L. 386)

STATE v. LAX et al. (Supreme Court of New Jersey. Nov. 7, 1904.)

LARCENY-INSTRUCTIONS-POSSESSION OF STOLEN PROPERTY-REASONABLE doubt.

1. A charge of the court: "Possession of stolen property soon after the theft is prima

facie evidence of the guilt of the person in whose possession it is found, and throws on the defendant the burden of explaining that possession; and if it is made, and is reasonable,, and rebuts the presumption of guilt arising therefrom, then the burden is on the state to prove that it is false"-is erroneous.

2. Possession of stolen property soon after the theft is a circumstance for the jury to consider and weigh in connection with the other evidence.

3. In criminal cases the burden is on the state to prove the guilt of the defendant beyond a reasonable doubt, and that burden never shifts.

4. If a reasonable doubt of guilt is raised even by inconclusive evidence of the innocent possession of stolen goods, the defendant is entitled to the benefit of it.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Bergen County.

William Lax and Samuel Stern were convicted of grand larceny, and bring error. Reversed.

Argued June term, 1904, before GUMMERE, C. J., and GARRISON, GARRETSON, and SWAYZE, JJ.

Louis Hood, for plaintiffs in error. Ernest Koester, for the State.

GARRETSON, J. The plaintiffs in error were convicted of grand larceny, and have sued out this writ of error to reverse that conviction. An examination of the assignments of error affords no ground for reversal except that contained in the exception to that part of the charge of the judge which is as follows: "If the state shows you that the property stolen was found in the possession of the defendants, they have a right to explain how they came into possession of the property; and if they do, and the explanation is a reasonable one, and you are satisfied with it, the burden shifts to the state to show that the explanation is false." "Possession of stolen property soon after the theft is prima facie evidence of the guilt of the person in whose possession it is found, and throws on the defendant the burden of explaining that possession, and, if it is made, and is reasonable, and rebuts the presumption of guilt arising therefrom, then the burden is on the state to prove that it is false." Under the title "The Presumption from the Possession of the Stolen Goods," 2 Bishop's New Criminal Procedure, c. 40, par. 740, states the rule as follows: "When the fact of the theft has been shown and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joined with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence." In all cases the state must establish the guilt of the defendant beyond a reasonable doubt. The burden of proof is always upon the state, and that burden never shifts. The defendant may raise a reasonable doubt in the minds of the jury by evi

2. See Larceny, vol. 32, Cent. Dig. §§ 170, 171.

dence to prove facts showing that he did not commit the crime. While such evidence may not establish the innocence, it may raise in the minds of the jury a reasonable doubt of the guilt, of the defendant. The charge to the jury, in effect, was that, if the defendants were proved to be in possession of the stolen property soon after the theft, they must find a verdict of guilty, unless the defendants prove the innocent possession of the goods; thus taking away from the jury the question whether the evidence the defendants produced as to the possession raised in the minds of the jury a reasonable doubt as to the guilt of the defendants. The defendants were entitled to have the jury consider whether the explanation of the possession of the stolen goods created a reasonable doubt as to their guilt. This is the rule where evidence of alibi is introduced. State v. MacQueen, 69 N. J. Law, 531, 55 Atl. 1006; Sherlock v. State, 60 N. J. Law, 31, 37 Atl. 435. Also where a defendant introduces evidence tending to establish good character in order to show the improbability of his guilt. Baker v. State, 53 N. J. Law, 45, 20 Atl. 858. Also as to drunkenness, when introduced to affect the degree of homicide. Warner v. State, 56 N. J. Law, 686, 29 Atl. 505, 44 Am. St. Rep. 415. The charge of the court in the particulars mentioned

was erroneous.

The judgment will be reversed, and a venire de novo be awarded.

GOETZ v. WALTERS. (Supreme Court of New Jersey. Nov. 7, 1904.) INFANTS-ALLOWANCE FOR BOARD-EXCESSIVENESS.

1. An allowance against a decedent's estate of $5 per week for board and clothes furnished decedent's daughter while between the ages of 10 and 14 by her half-brother, who earned but $1.50 a day and did not know that decedent would ever be able to pay, is excessive, and should be reduced to $3 per week.

Action by Mary Louise Goetz against John Walters, as administrator of Edward Stevens, deceased. On defendant's rule to show Rule conditionally discharged. Argued February term, 1904, before GUMMERE, C. J., and DIXON, GARRISON, and SWAYZE, JJ.

cause.

Vreeland, King, Wilson & Lindabury, for plaintiff. B. W. Ellicott, for defendant.

PER CURIAM. The only question in this case is the amount of the verdict. In other respects we think a verdict for the plaintiff was justifiable. The jury allowed the full amount claimed by the plaintiff-$5 a week for the board and clothes of a child from the age of 10 to the age of 14 years, in the family of a laboring man in Wharton, Morris county, earning $1.50 a day. The child was his half-sister, and this claim against her father's estate was assigned to her, and