ance

Trial.

with the provisions of
Pamph. L. 1902, p. 195, and
Pamph. L. 1907, p. 22, is held
for the benefit of the municipali-
ties who had joined in the con-
tract for such sewer, and is the
property of the municipalities;
and, hence, exempt from taxa-
tion under the Tax act of 1903.
Passaic Valley Sewerage Com-
missioners v. Jersey City, 427

Trial.

rests upon the person excepting
to such act to overcome that pre-
sumption, by showing affirma-
tively that there was an abuse
of discretion on the part of the
trial court. State v. Tietjen,
22

3. A defendant cannot submit to
be tried without objection before
a jury whose impartiality is not
challenged, take the chance of
being acquitted, and afterwards
be heard to complain of the
method by which it was selected,
in case the verdict goes against
him.
Ib.

5. Land used by the Passaic valley
sewerage commissioners for the
construction of an intercepting
sewer for the purpose of reliev-
ing the Passaic river from pollu-|
tion, does not fairly come within
the designation of "lands used 4. A verdict which is contrary to
for the purpose and for the pro-
tection of the public water sup-
ply," as used in Pamph. L. 1910,
p. 199.
Ib.

the law of the case as declared
in the charge of the court will
be set aside on a rule to show
cause. Smith, Kline & French
Co. v. Freeman,

45

6. In order to include property of a
body politic for the purpose of 5. The action of the trial judge

taxation the intent of the legis-
lature to do so must be clearly
expressed.

See also CERTIORARI.

MANDAMUS.
RAILROADS.

TRIAL.

Ib.

upon a motion to quash an in-
dictment is discretionary and
will not be reviewed on strict
writ of error. State v. Mata-
razza,

47

6. Even if a portion of a charge,
considered alone, is objection-
able, it will not lead to a re-
versal when it is clear that, in
the circumstances of the case.
the charge, considered as a
whole, was correct and not mis-
leading and could not have
prejudiced the defendants. State
v. Unger,
50

1. A jury has a right to use their
own experience in the considera-
tion of the credit to be given to
the testimony of a witness; they
may consider the demeanor of
the witness, his manner of testi-
fying. his appearance. mental 7. It is not error for the trial judge

capacity, power of observation,
closeness of attention, the proba-
bility of his statements, and
their inconsistencies and con-

to ignore or refuse a request for
an instruction upon a matter im-
material to the issue.

Ib.

tradictions. and other matters 8. The direction of a mistrial in a
which would constitute a proper
test under the circumstances of
the case. State v. Runyon, 16

2. The presumption is that an act
of judicial discretion was done
in the proper performance of
judicial duty, and the burden

criminal case rests in the sound
discretion of the trial judge and
is to be exercised only in very
extraordinary and striking cir-
cumstances, in order to prevent
the failure of justice. Since it
rests in discretion a strict bill of
exceptions will not lie to its re-

as might affect their impartiality 15. While it is error for the prose

or disqualify them from the proper exercise of their functions.

Ib.

11. Where the real question in controversy has been fully and fairly tried, though not precisely pleaded, and the complaining' party has not been surprised or

cutor of the pleas, in his summing up to the jury, to declare his individual opinion or belief that the defendant is guilty, in such a manner that the jury may understand such opinion or belief to be based upon something which the prosecutor knows outside the evidence, yet, when the prosecutor, upon objection thereto, promptly and frankly withdraws such remark and asks that it be disregarded, and the incident is thus closed without any request being made to the court in respect thereof, a reversal is not justified because of such remark.

Ib.

injured, the reviewing court has 16. Where the evidence in a crimi

the power to amend the plead-"] ings in order to support the judgment, and will in such case,:| in the interest of justice, exercise the power.

Ib.

nal case shows that the defendant committed the assault and battery upon a woman because of her refusal to respond to his improper demands for money, a statement by the prosecutor of the pleas in his summing up to the jury that the defendant was a "crook," will not lead to a reversal. Ib.

12. The rejection of evidence admissible for a purpose other than that for which it is offered will not justify a reversal when the evidence, if received, could reasonably have but slight effect. 17. When the question appears by

Ib.

13. In a criminal case the court, charged as requested that the confession of either co-defendant was not evidential against the other; and went on to say that' according to his recollection of the defendants' testimony it was"

the evidence to be disputed, the question of the person with whom a contract was made should be left to the jury. When there is real doubt upon the point, such doubt must be solved by the jury as a fact. Queen v. Jennings,

353

identical with the confessions. 18. The verdict of a jury may rest

Held, no error, the jury having" previously been cautioned not to.

upon inferences, such as jurors are permitted to draw. It will

not be set aside, although in the||25. In moving for a nonsuit coun-

sel should state specifically the
grounds upon which the motion
is rested; but the arguments
thereon should not be taken
down by the stenographer, and
should not be returned with the
record or printed. Koch v. Cos-
tello,
367

19. To justify the setting aside of
a verdict as against the weight|
of evidence, it must be so clear
as to give rise to an inference,
that the verdict was the result
of mistake, passion or prejudice. 26. Where the remarks of counsel

Ib.

20. The affidavit or testimony of a
juror will not be received for the|
purpose of impugning or destroy-
ing a verdict in which he has
joined, or proving the ground of
the verdict. This on the grounds]
of public policy. But miscon-
duct on the part of the jury or
the court officers in charge of
the jury may be shown by proper
testimony.
Ib.

21. A verdict cannot be supported
upon a theory of the law con-
trary to that upon which the
case was submitted to the jury.

Ib.

22. The rule is established that
counsel cannot take the chance

for plaintiff in addressing the
jury are improper, the correct
practice is to ask the trial court
to admonish counsel against
making such remarks, or request
the trial court to charge the jury
to disregard them. A refusal of
the court to interpose, where
otherwise the right of the party
would be prejudiced and an ex-
ception to the trial judge's re-
fusal lays the basis for a valid
assignment of error, requiring a
reversal of the judgment, where
there is legal error. Blackman
v. West Jersey, &c., Railroad
Co., 68 N. J. L. 1, and See v.
Public Service Railway Co., 82
Id. 144, approved and followed
on this point. Smith v. Bruns-
wick Laundry Co.,
436

of testimony making in his favor. 27. A refusal by the trial court to

withdraw a juror or grant a non-
suit for improper remarks by
counsel is discretionary on the
part of the trial judge and can-
not be reviewed on appeal. Ib.

See also BROKERS, 2.

ERROR. 2.
EVIDENCE, 5.

HOMICIDE, 4. 5.

PRACTICE, 12.

VERDICT.

See TRIAL, 4.

WILLS.

Ib.

See ATTORNEY AND CLIENT.

Compensation act with relation 5. Where an accident is the result

6. A risk is incidental to the employment when it belongs to or is connected with what an employe has to do in fulfilling his contract of service. It may be either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment.

12. A baggage agent whose duty 'See also MASTER AND SERVANT, 1.