LORE, C. J. When this matter was first presented and argued before the court, we were inclined to grant the motion made by Mr. Brockson. We must bear in mind that this was a judgment rendered by a justice of the peace in open court. Within his statutory jurisdiction his authority is just as complete, for all purposes of hearing such cases, determining or deciding them, and making up his record, as is the authority of this court. While we think the better practice would be for a justice to sign his record, as that would be one way of testing its completion, yet the authorities seem to be decidedly the other way; that it is not essential to the validity of a judgment rendered by a justice of the peace that he should sign it, in the absence of a statutory provision requiring his signature. We find a great many states have statutes governing the matter. Again, you will notice that our statute sets out just what is essential to constitute a valid docket entry, and it is absolutely silent upon the matter of signing it. After a full consideration of the whole question, we think the signature of the justice to the judgment is not absolutely essential, and is not a ground for the dismissal of the certiorari. We therefore decline to dismiss the certiorari.

The court thereupon heard argument upon the exceptions filed which went to the point that the record did not show that the defendant below was charged with having willfully committed a trespass. Rev. Code 1852, as amended in 1893, c. 128, § 21, p. 939. Counsel for exceptants cited Vandever v. State, 1 Marv. 209, 40 Atl. 1105.

LORE, C. J. The exception is fatal, and the judgment below is reversed on the authority of Vandever v. State, 1 Marv. 209, 40 Atl. 1105.

that he never heard anybody say anything about him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 844, 845, 1043.] 4. WITNESSES-CREDIBILITY-COMPETENCY OF IMPEACHING WITNESS AS TO REPUTATION— BASIS OF OPINION.

Where a witness testifies for the purpose of impeachment that he knows the reputation of another, that it is bad, and that he would not believe him under oath, but on cross-examination states that he based his answer upon his dealings with that person, his testimony is incompetent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 1123, 1125.]

5. SAME AMPLIFICATION BY REDIRECT EXAMINATION AFTER MOTION TO STRIKE.

Where a witness has testified as to the reputation of another for truth and veracity, but it appears on cross-examination that his testimony was based on his personal relations and private dealings with the other, after applica tion has been made to strike out his testimony, he cannot be again examined to amplify the testimony given on direct examination.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses. § 1000.j

6. LARCENY-ELEMENTS.

Theft or larceny is the felonious taking and carrying away of the personal property of another with intent to convert it to the use of the taker without the consent of the owner. [Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, § 1.] 7. CRIMINAL

LAW-EVIDENCE-PRESUMPTION

OF INNOCENCE.

Every person charged with the commission of a crime is presumed in law to be innocent until the contrary is shown to the satisfaction of the jury beyond a reasonable doubt.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 731-737.]

8. LARCENY-EVIDENCE-BURDEN OF PROOF.

The burden of the proof of every material element necessary to constitute the offense of larceny rests upon the state.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 127-129.]

9. CRIMINAL LAW-PROVINCE OF COURT AND JURY-CREDIBILITY OF WITNESSES.

The jury is the sole judge of the credibility of the witnesses in a criminal prosecution. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1719-1721.] 10. SAME-WEIGHT AND VALUE OF TESTIMONY. The jury is the sole judge of the weight and value of the testimony in a criminal prosecution.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1713.]

11. SAME-CREDIBILITY OF ACCOMPLICE.

The degree of credit which should be given to the testimony of an accomplice in a criminal prosecution is a matter exclusively within the province of the jury, but great caution in weighing such testimony is dictated by prudence and good reason.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1720.]

12. SAME- SUFFICIENCY OF EVIDENCE - UNSUPPORTED EVIDENCE OF ACCOMPLICE.

While the better rule is that a conviction should not be had upon the testimony of an accomplice unless it is corroborated either by direct or circumstantial evidence, yet a jury may convict on the testimony of an accomplice without any confirmation thereof, if they are satisfied from all the facts and circumstances of the case, beyond a reasonable doubt, that it is true,

and it would be their duty to convict in such a

case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1124-1126.] 13. SAME-CONFLICTING EVIDENCE.

In a criminal prosecution, where there is a conflict of testimony, the jury should endeavor to reconcile it, if they can; but, if they cannot, they must determine whose testimony they deem most entitled to credit and belief, taking into consideration all the facts and circumstances testified to by the several witnesses, their means of information, and opportunity of knowing the facts of which they testify and the manner in which they gave their testimony. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1263.]

14. SAME EVIDENCE SUFFICIENCY - REASONABLE DOUBT.

If, after a careful and conscientious consideration of all the evidence in a criminal case, the jury should entertain a reasonable doubt as to the guilt of the accused, such a doubt inures to his benefit.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1267, 1268.] 15. SAME TRIAL SONABLE DOUBT.

INSTRUCTIONS

REA

By a "reasonable doubt" is not meant a mere fanciful, vague, or speculative doubt, but a reasonable, substantial doubt growing out of the evidence remaining in the minds of the jury after a careful and conscientious consideration of all the evidence--such a doubt as reasonably fair-minded, conscientious men would entertain under all the facts and circumstances of the case.

WEIGHT

CHAR

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1267, 1268; vol. 15, Criminal Law, §§ 1904-1922.] 16. SAME EVIDENCE ACTER OF ACCUSED. Proof of good character of accused is to be considered by the jury as any other evidence whenever satisfactorily shown, tending to prove the innocence of the accused, and it is to be given just such weight as, under the circumstances of the case, it is entitled to, considered in connection with all the other evidence in the case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 846.]

Elijah Brewington was prosecuted for the crime of larceny. Verdict of not guilty.

Argued before LORE, C. J., and BOYCE, J. Daniel O. Hastings, Deputy Atty. Gen., for the State. J. Frank Ball and James Saulsbury, for defendant.

At the trial the state offered proof, chiefly of an accomplice, one Oliver Stewart, connecting the defendant with the larceny of about 160 bushels of wheat from the farm of Charles Megginson in New Castle Hundred, on August 10, 1907. The witness Stewart was asked by the Deputy Attorney General-after the former had testified that he and Brewington, the defendant, had driven into the country on the Saturday night following the theft for from three to four hours in order to see what they could find -what he meant by that.

Objected to by counsel for defendant as irrelevant, being too remote from the time of the larceny, which was the night before.

Deputy Attorney General Hastings: This

is to show that they were engaged generally in larceny together.

BOYCE, J. We think that is going too far. You may show that they were out together, and that they returned together, but what was in this witness' mind or knowledge as to their purpose in being together we think that is too remote. We sustain the objection.

Q. What did you and Brewington do out in the country that night?

Objected to by counsel for defendant on the same ground as before stated.

BOYCE, J. As the court is now advised, we think the question is inadmissible.

On cross-examination, the witness was asked by Mr. Ball, of counsel for defendant, whether he was arrested once for stealing some money from a preacher. Objected to by the Deputy Attorney General as immate rial.

BOYCE, J. This question may have been admitted sometimes without objection. It is not the question of arrest, but of conviction, which is admissible to affect the credibility of the witness. We sustain the objection.

Michael Connell, being sworn as a witness on behalf of the defendant, testified as follows:

By Mr. Saulsbury: Q. Where do you reside? A. At the northwest corner of Fifth and Spruce. Q. What is your business? A. Grocery business. Q. Were you ever clerk of the market in this city? A. Yes, sir; for about three years. Q. Do you know Elijah Brewington, the defendant? A. Yes, sir. Q. How long have you known him? A. About 10 years. Q. Do you know his general reputation for honesty and fair dealing in the community in which he lives? A. I always had that opinion of him. Q. Do you know it? A. No, sir; I don't know it. That is really my opinion of the man. I don't know it. Q. Do you know his general reputation, what the people generally say about it?

Form of question objected to by the Deputy Attorney General.

BOYCE, J. Put the question again in the usual form.

Q. Do you know his general reputation in the community in which he lives for honesty. and fair dealing? A. Yes, sir; so far as I know. Q. Is it good or bad? A. It is good. Cross-examination by Mr. Hastings:

X. On what do you base your answer that he has a good reputation? A. Well, I base it in this way: That I have dealings with a great many of the people in that neighborhood, and I judge by their dealings and their ways of dealing. X. Have you ever heard anybody say anything about this man one way or the other? A. Never.

Deputy Attorney General Hastings: I ask that the testimony of this witness be stricken out, as he has thoroughly disqualified himself to speak of the reputation of this defendant.

Mr. Ball: Your honors have held that that is a matter for comment to the jury, and that the testimony goes to the jury for what it is worth. If your honors feel inclined to strike it out, I have other witnesses that I can call in place of this witness, if I am allowed to do so.

BOYCE, J. The practice has been that counsel in calling a witness to prove reputation takes the risk, and each one he calls counts as one of the six. Character evidence must be based upon the general reputation of the party in whose favor it is offered in the community in which he lives. We shall have to grant this application and order the testimony to be stricken from the record.

Charles Moxley, being sworn as a witness on behalf of the defendant, testifies as follows:

By Mr. Ball: Q. Where do you live? A. No. 2 Coleman street. Q. In this city? A. Yes, sir. Q. Do you know Oliver Stewart, the man sitting in the dock? A. Yes, sir. Q. How long have you known him? A. About three years. Q. Do you know his general reputation in the community in which he lives for truth and veracity? A. No good, sir. Q. Answer the question yes or no. A. I know his reputation; yes, sir. Q. Is it good or bad? A. No good. Q. Knowing what you do of his reputation for truth and veracity, would you believe him on his oath? A. No, sir.

Cross-examination by Mr. Hastings:

X. Where do you live? A. No. 2 Coleman street. X. How long have you lived at No. 2 Coleman street? A. For four years. X. How long have you known this man Stewart? A. Three years. X. And you say his general reputation is bad for telling the truth? A. Yes, sir. X. Whom did you ever hear say that? A. I know it myself because I had dealings with him. X. Is it on that that you base your answer? A. Yes, sir.

Deputy Attorney General Hastings: I ask that the whole of this witness' testimony be stricken out.

Mr. Ball: I would like to ask the witness a few questions before the court act on that motion.

BOYCE, J. In the matter of introducing character evidence there is a well-established rule, and the examination of this witness has been conducted in conformity with that rule. It appears from the cross-examination of the witness that he based the whole of his testimony in his direct examination upon his personal relations and private dealings with the man about whom he is testifying. This is contrary to the rule. Such evidence is based upon general reputation. We think that you may not come in after the examination in chief and cross-examination of the witness, and after application has been made to strike out the evidence, and amplify the testimony given on direct examination. The motion to strike out the testimony is granted.

Among the prayers offered on behalf of defendant was the following:

"Third. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence; and, without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule

of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement. But, on the other hand, judges in their discretion will advise a jury not to convict of felony upon the testimony of an accomplice alone and without corroboration, and it is now so generally the practice to give such advice, that its omission would be regarded as an omission of duty on the part of the judge. It may be now regarded as the settled course of practice not to convict a prisoner in any case of felony upon the sole and uncorroborated testimony of an accomplice. State v. Fahey, 3 Pennewill, 594, 608, 54 Atl. 690, 692.”

BOYCE, J. (charging the jury). Oliver Stewart, Elijah Brewington, and John Brown, the latter not having been apprehended, were jointly indicted at the present term of this court. The indictment charges that they did on the 10th day of August last, in New Castle Hundred, this county, feloniously steal, take, and carry away 160 bushels of wheat of the goods and chattels of Charles Megginson. Upon his arraignment Stewart pleaded guilty, but Brewington pleaded not guilty of the offense charged, and you have been impaneled to try Brewington alone

Theft or larceny is the felonious taking and carrying away of the personal property of another with intent to convert it to the use of the taker without the consent of the owner. Every person charged with the commission of a crime is presumed in law to be innocent until the contrary is shown to the satisfaction of a jury beyond a reasonable doubt. The burden of the proof of every material element necessary to constitute the offense of larceny rests upon the state.

Stewart has admitted his guilt, but the state contends that Brewington and another participated in the theft of the wheat. Brewington denies that he had any part in the theft. And it is for you to say whether under all the evidence Brewington is or is not guilty. You are the sole judges of the credibility of the witnesses and of the weight and value of their testimony. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. Great caution in weighing such testimony is dictated by prudence and good reason. A jury may convict upon the uncorroborated testimony of an accomplice, yet the better

rule is that a conviction should not be had unless such testimony is corroborated either by direct or circumstantial evidence. A jury may convict upon the testimony of an accomplice if they are satisfied from all the facts and circumstances of the case, beyond a reasonable doubt, that it is true, without any confirmation of such testimony. And in such a case it would be their duty to do so. 1 Greenleaf on Ev. § 380; State v. Freedman, 3 Pennewill, 403, 53 Atl. 356.

Where there is conflict of testimony, as in this case, you should endeavor to reconcile it, if you can. If you cannot, you must determine whose testimony you deem most entitled to credit and belief, taking into consideration all the facts and circumstances testified to by the several witnesses, their means of information and opportunity of knowing the facts of which they testified, and the manner in which they gave their testimony. If, after a careful and conscientious consideration of all the evidence in this case, you should entertain a reasonable doubt as to the guilt of the accused, such a doubt inures to his benefit. By a "reasonable doubt" is not meant a mere fanciful, vague, or speculative doubt, but a reasonable, substantial doubt growing out of the evidence remaining in your minds after a careful and conscientious consideration of all the evidence -such a doubt as reasonable, fair-minded, conscientious men would entertain under all the facts and circumstances of the case.

As to the proof of good character, we say to you that it is to be considered by the jury as any other evidence whenever satisfactorily shown, tending to prove the innocence of the accused, and it is to be given just such weight as, under the circumstances of the case, it is entitled to, considered in connection with all the other evidence in the case. If you are satisfied from the evidence in this case, beyond a reasonable doubt, that Brewington committed the offense, charged against him, or if you find that he was present on the night the wheat was stolen. aiding, procuring, abetting, or counseling Stewart in the theft, your verdict should be guilty; otherwise your verdict should be not guilty.

Verdict, not guilty.

(73 N. J. EL 197)

SITLEY & SON, Inc., v. MORRIS et al. (Court of Chancery of New Jersey. June 21, 1907.)

1. EXECUTION-LIEN-PRIORITIES.

A junior judgment creditor, who by superior diligence procures an execution and places it in the hands of the sheriff prior to such a proceeding by a senior judgment creditor, acquires a lien superior to the lien of the senior creditor. [Ed. Note.-For cases in point, see Cent. Dig. vol. 21. Execution, § 229.]

2. CREDITORS' SUIT-DECREE-EFFECT.

A junior judgment creditor, who files a bill to set aside a conveyance made by the debtor as fraudulent and to subject the land to his judg

Where the proceeds of a sale of the land of a debtor under an order directing that the proceeds shall be paid into court for distribution between judgment creditors are in court, and the parties in interest are before it, an order for distribution will be made without the giving of notice of a hearing thereon.

Suit by Sitley & Son, Incorporated, against James A. Morris and others. Heard on bill for determination of priorities of execution creditors as between complainant and S. Walter Morris. Priority awarded to complainant.

Berry & Riggins, for complainant. Wilfred B. Wolcott, for defendant Mutual Benefit Building & Loan Ass'n. Bird & Blackman, for defendants James A. Morris and others.

BERGEN, V. C. The present application concerns the distribution of the proceeds of the sale of the real estate of the defendants. The property was sold by virtue of two executions issued out of this court-one at the instance of the complainant, and the other at the suit of S. Walter Morris. The sale was permitted under an order directing that the proceeds of the sale should be paid into court for the purpose of its proper distribution, after the claimants thereto should be heard. The sale has been made, and the money is now in the hands of the court subject to distribution. There are two claimants to the fund: First, S. Walter Morris, who recovered a judgment at law and by virtue of an execution issued thereon sold the real estate in question as the property of the defendant, although the title to it had then been transferred to another, leaving no legal title in the defendants to be levied upon or sold. That sale this court held, under proceedings instituted for that purpose, was not effective, for the reason that at the time the judgment was recovered the defendants had no legal title to the property sold. Whereupon the complainant, having subsequently recovered a judgment at law, filed its bill in this court, praying that the transfer made by the defendants should be set aside as one made in fraud of creditors, and that the lands should be subjected to the payment of its judgment. That cause was contested, and resulted in a decree in favor of the complainant, making its debt a lien upon the land, in satisfaction of which it was entitled to have the property sold. From this decree an appeal was taken, which was subsequently dismissed by consent of counsel, but not until S. Walter Morris had filed in this court his bill of complaint for the purpose of subjecting the same property embraced in complainant's decree to the payment of his judgment; and during the time the complainant was by the

appeal prevented from proceeding to execution and levy Morris procured the issuing of an execution upon his decree, thereby securing a prior levy upon the land, by virtue of which he now claims he is entitled to priority in payment out of the fund in court. Whether the filing of a bill of complaint for the purpose of subjecting an equitable estate to the payment of a debt, or an actual levy upon the land, gives the party priority, is the single question here presented.

I have no doubt that, as between the parties to this controversy, the filing of the bill establishes the lien. The bill which the complainant filed rested upon our statute, and the suit was instituted by a creditor in his own behalf, and not in behalf of any other creditor, which resulted in a self-serving decree, and entitles the complainant, as was said by Chief Justice Beasley in the Fayerweather Case, 46 N. J. Eq. 237, 19 Atl. 22, mentioned by counsel, to the benefit of the well-known rule that an advantage obtained by the prior exhibition of his bill of complaint will not be disturbed to aid creditors less diligent. The case cited by counsel for S. Walter Morris, and upon which they relied, relates entirely to judgments at law. The principle is well settled in this state that if a junior judgment creditor, by superior diligence, has an execution issued in proper form and placed in the hands of the sheriff prior to such a proceeding on behalf of another judgment creditor, his lien on the real estate of the debtor antedates that of an execution upon an earlier judgment; but that rule does not apply in a case of this character, where the complainant obtained a judgment and diligently pursued its remedy by filing a bill of complaint in this court, having for its object the attaching of the lien of its judgment upon the equitable interest of the defendants in lands as to which it was alleged, and afterwards determined to be so, that the legal title to the land was held by another as trustee of the defendants, and for the purpose of hindering and delaying creditors in the collection of their debts. The complainant having filed its bill, its lien attached from that time, and the priority thus obtained is not disturbed by any subsequent proceeding of like character, and therefore the complainant is entitled to be first paid out of the money realized from the sale of defendants' lands.

This application was made by counsel for S. Walter Morris upon notice to complainant. That application I refuse; but, as the parties are all here, it would seem to me to be unnecessary to put the complainant to a similar notice of hearing for the purpose of determining the proper distribution of this money. The money is in the hands of the court, all the parties interested are present, and I will make an order that the clerk pay to the complainant, out of the fund in hand, the amount due upon its judgment and decree, and, if

the amount be not sufficient to satisfy such claim in full, that the clerk pay to comrlainant whatever may have been deposited, to be applied to the satisfaction of complainant's debt so far as it will extend.

(73 N. J. E. 323) ASBURY PARK & S. G. RY. CO. et al. v. TOWNSHIP COMMITTEE OF NEPTUNE TP. et al.

(Court of Chancery of New Jersey. Sept. 20, 1907.)

1. STREET RAILROADS-SALE OF FRANCHISES -LIABILITY OF PURCHASER.

A traction company acquiring the road and franchises of another company at a mortgage foreclosure sale thereof is bound by the restrictions and conditions contained in an ordinance granting such other company a location for its tracks, though the company so purchasing did not expressly assume them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, § 124.]

2. SAME-ACQUISITION OF RIGHTS IN STREETS -LEGISLATIVE GRANTS.

A street railway company incorporated under P. L. 1886, p. 185, providing for the incorporation of street railway companies and their regulation, and which on application, pursuant to P. L. 1889, p. 100, providing for a petition to a township by a company incorporated under such laws for a location of its tracks, has been granted permission to lay its tracks along a certain route through the township, derives its right to be a railway company and to occupy streets with its tracks from the Legislature, and the only authority given to the township is to grant or refuse a "location" for the tracks, which, when once granted, exhausts its power, and the township cannot thereafter interfere with any rights conferred by the Legislature. 3. SAME.

Where a street railway company incorporated under P. L. 1886, p. 185, providing for the incorporation of street railway companies and the regulation of the same, made application to a township to lay its tracks along a certain route, pursuant to P. L. 1889, p. 100, and an ordinance was passed granting such location, subject to certain conditions, on acceptance of such ordinance by the company, it constituted a valid contract, and its provisions could not be impaired by either party without the consent of the other, and hence it was not competent for the township to revoke such ordinance without consent of the company and remove its tracks.

4. INJUNCTION-SUBJECTS OF PROTECTION AND RELIEF-CORPORATE FRANCHISES.

Where a street railway company incorporated under P. L. 1886, p. 185, providing for the incorporation of street railway companies and their regulation, on application pursuant to P. L. 1889, p. 100, has been granted permission to lay its tracks along a certain route on condition that it pay annually a certain per cent. of its gross receipts to the township, and under such provision has laid its tracks, the repeal of the ordinance granting such permission and consequent removal of the company's tracks, on the ground that it has failed to perform its agreement as to payment, may be enjoined on condition that the company account to the township for the compensation provided for. 5. EQUITY-PLEADING-CROSS-BILL.

A bill having been filed to enjoin a township from repealing an ordinance granting a street railway company a location for its tracks and their removal, a cross-bill was filed by the township, demanding that the company account as to compensation required by the ordinance