Contracts.

workmanship or material, ordi-
nary wear and tear excepted,
and should indemnify and save
harmless the obligee, M. W. N..
from and against all loss which
he might be put to by reason of||
the failure of the principal to
cause said repairs to be made,
then, &c. Plaintiff, M. W. N.,
received from the freeholders $8,-
330.14, who retained the balance
of $1,500 out of the retained per-
centage to make good defects in
the roadway, which had not been
repaired. There was evidence
that the repairs had not been
made and that it would cost $1.-
500 to make them. Held, that in
these circumstances the plaintiff,
M. W. N., had been "put to loss"
in the sum of $1,500; and that,
therefore. there had been a
breach of the bond, and that
plaintiff was entitled to recover.
Newton v. Globe Indemnity Co.,'
152

2. An agreement to make a lease
for one year and to give an op-
tion for two years is a contract
relating to and concerning an in-
terest in lands, and in order to
be enforceable there must be
some memorandum or note
thereof in writing and signed by
the party to be charged there-
with, or some person thereunto
by him or her lawfully author-
ized. Cooper v. Aiello, 336

3. Where by the agreement of pur-
chase of a going manufacturing
business the purchaser con-
tracted to fill all the unfilled ac-
cepted orders on the books, un-
less their cancellation or placing
at a higher price could be se-
cured. and in any event to in-
demnify the seller from all "lia-
bility" under such accepted
orders. Held, that the contract
to indemnify against liability for
non-performance, being coupled
with the contract to perform,
was a contract to pay a fixed (as
distinguished from a contingent)
liability should it arise, and that

Costs.

upon the failure of the purchaser
to fill the orders within the
proper time or to forthwith dis-
charge the liability, the seller
had an immediate right of action
for the breach of the contract to
indemnify against liability, and
upon proof of liability, and an
absence of proof of defence
thereto, could recover, although
he had as yet suffered no actual
loss; and further, that the dam-
age the seller was entitled to re-
cover was fixed by the measure
of the latter's liability in dam-
ages to the customers whose ac-
cepted orders had not been filled
because of default of said pur-
chaser. Jeffers v. Johnson, 21
N. J. L. 73, and Miller v. Fries,
66 Id. 377, distinguished. North
v. North & Son,
438

76

circumstances,

crime, quære.

an excuse for

Ib.

dict of guilty will not be reversed
because of a bad count in an in-

Curtesy.

Criminal Procedure.

5. When a defendant elects to pro-
ceed by way of review only
under section 136 of our Crimi-
nal Procedure act (Comp. Stat.,
p. 1863), he must specify the
causes in the record relied upon
for reversal with sufficient pre-|
cision to apprise the court, and

* *

that defendant, on a certain day
in a certain house
maintained by him in the city of
B., in the county of C., habitu-
ally and unlawfully sold in quan-
tities of one gallon certain
spirituous, vinous, malt and
brewed liquors (which are speci-
fied) to certain persons named,
and to divers other persons un-
known to the grand jury, with-
out having a license for that pur-
pose, is sufficient under section
74 of the Criminal Procedure
act. Comp. Stat., p. 1844. State
v. Bowen,
478

S. When a record in a criminal case
is returned to the appellate court
from the court of first instance,
with a certificate that the court
"certifies to the justices the rec-
ord and proceedings whereof
mention in the writ is made,
with all things touching the
same," that is a formal return
under a writ of error, and is not
an authentication of the record
of the proceedings of the trial
under section 136 of the Crimi-
nal Procedure act. State V.
Samaha,
482

See also TRIAL, 3, 13, 23, 24.

CURTESY.

juries of which he complains.
and the court will consider only
those so specified. State v. Mc-
Cormack,
287

living separate and apart from
her husband, purchased real es-
tate and caused it to be conveyed
by the vendor to her mother, she
executing a mortgage for a part
of the purchase price, the de-
fendant paying the balance.
When the conveyance was de-
livered the mother executed a
declaration of the trusts upon
which she held the title, which
were (a) to collect the rents.
pay interest, taxes and other
charges, and the balance to the
defendant; (b) to convey the
land to any person to whom the
defendant might, in writing, di-

Damages.

rect and pay the consideration
price, less charges, to the defend-|
ant, and, if not so directed, to
convey to such person as the de-
fendant might direct by her last
will and testament, or on failure
to thus appoint to convey to de-
fendant's daughter. With the
title so held the defendant en-
tered into a written contract
with the plaintiff to sell her the
land and tendered a deed duly
executed by the trustee which
the plaintiff refused to accept
because it was not signed by the
husband of the defendant, they
having a child living. The only
objection to the deed of the trus-

band has a contingent right by
curtesy which might be consum-
mated on the death of the de-
fendant, his wife. Held, that in
order to consummate an estate
by the curtesy in the husband at
the death of the wife, a child
having been born to them, the
wife must have a beneficial in-
terest under the trust deed at

ATTACHMENT, 1, 2.
FALSE REPRESENTATION,

1.

FORECLOSURE, 1.

HIGHWAYS, 2.

REPLEVIN, 1.

DEATH.

remove the foundation
upon which estate by the curtesy
rests or can be consummated as
to any beneficial interest the]
wife may have had under the
trust deed. Winterbaum V.
Duesel,
82

DAMAGES.

1. The right to award exemplary
damages primarily rests upon
the single ground-wrongful mo-
tive; and when the personal in-
tent to injure is shown, the pen-
alty may be inflicted. The
power to inflict punishment is
not dependent upon the form of
the action by which the injured
party seeks redress for the
wrong done him by the malicious
or wanton trespass committed.

ters of administration in this
state upon the estate of her de-
ceased husband, and brought suit
in the Camden Circuit Court
under the New Jersey Death
act against the director-general
of railroads for damages arising
from the death of her husband
while a passenger on a train of
the Pennsylvania Railroad Com-
pany, in the State of Pennsylva-
nia, for the benefit of herself, as
widow, and her children, who
were next of kin of her deceased
husband, and had a verdict, upon
which judgment was entered.
It was alleged in the complaint,
and the testimony disclosed, that
the accident resulting in the
death of decedent occurred in
the State of Pennsylvania, and,
therefore, the Death act of our
state does not apply. But as
the record discloses no objections
made to parties or pleadings, and
that issue was joined and the
case was tried upon its merits;