a body known as the "Congregation Holcha | the excise board. The written protest filed Golcher." Without reviewing the testimony, with the board does not raise the point; and, we may say that it satisfactorily appears while the attorney of prosecutor testified that such religious services are regularly that he had appeared before the board and held in this building as to constitute it a objected generally to the sufficiency of the "church edifice," within the meaning of the signers, it is plain that no particular signastatute. The question then is whether the ture was challenged, nor was any evidence premises licensed are a "new place," within offered on the question. Consequently, as the meaning of that statute. prosecutor made no attempt to put the board in possession of the facts now claimed to exist, he is not entitled to urge them here. Smith v. Elizabeth, 46 N. J. Law, 312; Conover v. Gregson, 72 N. J. Law, 103, 60 Atl. 31. The writ of certiorari will be dismissed. Conover v. Gregson, 73 N. J. Law, 596, 598, 64 Atl. 146.

It appears that the synagogue was first built about 1905, and was subsequently burned and rebuilt; that the saloon premises were first licensed and used as such about 1903, and therefore antedated the synagogue. The claim that it was a new place at the time the present license was granted must therefore rest on some abandonment or discontinuance of the former use, so that the premises lost their status as what is commonly called an "old stand."

The evidence shows that in June, 1908, one Friederich transferred to the above-named

MARTER v. REPP et al.

(Supreme Court of New Jersey. Feb. 23, 1912.)

Deutsch a license for this place that had 1. INTOXICATING LIQUORS (§ 108*)-REVOCATION OF LICENSE-COMPLAINT-VERIFICATION.

been issued in April; that in 1909 Deutsch received an inn and tavern license for the property. In 1910 a renewal was asked by Deutsch's son-in-law, William Roth, and refused. The matter lay over for a year, as required by law, and in 1911 Roth and Deutsch applied together for a saloon license, which was granted, and is now in question. Some question was raised as to who was the real owner of the business, or whether it was a partnership; but we do not regard the settlement of this point as important. The The verification to a complaint for revomaterial facts are that the place was out of cation of a liquor license under P. L. 1906, p. 201, § 3, must be based upon the personal business for only a year, and new applica- knowledge of the affiants, and where it is not tion was made at the first opportunity; that, an issue may be presented which must be although it was used for storage purposes in heard and determined by the statutory tribunal upon the question of its own jurisdiction. the interim, the saloon fixtures were not removed, and there was substantially no acting Liquors, Cent. Dig. §§ 116-118; Dec. Dig. [Ed. Note.-For other cases, see Intoxicatindicating an intention to abandon the busi

Under P. L. 1906, p. 201, § 3, which requires a complaint for the revocation of a liqaffidavit that the matters and things set forth uor license to be verified by oath, a general in the complaint are true is prima facie sufficient.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.*] 2. INTOXICATING LIQUORS (§ 108*)-REVOCATION OF LICENSE VERIFICATION-DETERMINATION OF SUFFICIENCY.

ness.

In Wright v. Board of Excise, 75 N. J. Law, 28, 66 Atl. 1061, the test that determined the status of the premises as a new place was that, although the license had been continuous as to the party, it was new as to the premises, having been transferred from another place to one never previously licensed. On the other hand, in Eckersly v. Abbott, 79 N. J. Law, 157, 74 Atl. 313, an interregnum of a year was held to be ineffective to deprive a place formerly licensed of its status as an old place, and a license granted after that interval was upheld. The present case is within the rule of Eckersly v. Abbott; and, as we have said, the question whether Roth or Deutsch was the real owner before, and which of them, if not both, is the real owner now, is inconsequential in this inquiry.

[2] As to the other point, that there were not 10 qualified signers, it suffices to say that, assuming the evidence now shows this to be the case, such evidence was not presented to

§ 108.*1

3. CERTIORARI (§ 36*)-REVOCATION OF LICENSE JURISDICTION-WAIVER.

On certiorari to review the revocation of statutory tribunal was not challenged on the a liquor license, where the jurisdiction of the ground of insufficient verification of the complaint, such question is not presented for review.

Cent. Dig. 88 51, 52; Dec. Dig. § 36.*]
[Ed. Note. For other cases, see Certiorari,
4. CERTIORARI (§ 36*)-OBJECTIONS IN ORIG-
INAL PROCEEDING REVOCATION OF LI-

CENSE.

cient.

.

Certiorari by Ezra B. Marter against Albert T. Repp and others to review a conviction and an order revoking a liquor license. Conviction affirmed.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

A. H. Swackhamer and Francis B. Davis, for prosecutor. John Boyd Avis and Charles E. Sheppard, for respondents.

as to which no question was raised, recites | Atl. 752; the writ of error in that case bethe proceedings with particularity, including ing dismissed for lack of anything in the admissions of counsel as to certain facts, and the substance of the testimony of certain nature of a final judgment to be reviewed. witnesses, so as to make it appear that the It was directly involved, however, in the findings of the court that the complaint was recent case in this court of Allgair v. Blew, substantiated were fully warranted, is suffi- 81 Atl. 563, in which it was held that the [Ed. Note.-For other cases, see Intoxicating verification in question "must be based upon Liquors, Dec. Dig. § 108.*] the personal knowledge of the affiants, which, if challenged at the outset by an offer to prove by legal evidence that they did not possess such knowledge, presented an issue to be heard and determined by the statutory tribunal upon the question of its own jurisdiction; and the overruling of such an offer, by which such lack of personal knowledge was provisionally established, rendered nugatory a subsequent order for the revocation of a license as an order made by a body upon whom jurisdiction had not been conferred in the manner prescribed by the statute." If this point had been properly presented to the court of common pleas in the present case, it would consequently have been the duty of that court to receive evidence thereon and pass upon it as a question essential to its specific jurisdiction of the particular case. But we find nothing in the state of the case to show that the point was even suggested, and consequently, as the jurisdiction of the statutory tribunal was not challenged at the hearing, the question is not now before us for determination. Smith v. Elizabeth, 46 N. J. Law, 312; Conover v. Gregson, 72 N. J. Law, 103, 60 Atl. 31; Id., 73 N. J. Law, 596, 64 Atl. 146.

PARKER, J. After the decision by Mr. Justice Garrison in a case of the same name (Marter v. Repp, 80 N. J. Law, 530, 77 Atl. 1030), and while a writ of error from the judgment then entered was pending in the Court of Errors and Appeals (See Marter v. Repp, 81 Atl. 1134), there was a new complaint of violation of the Bishops Law, and the proceedings thereon for the revocation of the same license. The court of common pleas made an order revoking the license on account of the sale of liquor to minors. This order is dated February 18, 1911, and has been brought up by the present writ of certiorari. It is attacked on several grounds. [1] The first ground goes to the sufficiency of the complaint. The statute (P. L. 1906, p. [4] The next point may be disposed of on 202, § 3) requires it to be made by "two per- similar grounds. It is that the complaint sons resident in the township or municipality does not specify the statute alleged to have wherein the license is used and exercised, been violated. Assuming that the rule reverified by the oath of such complainant." lating to actions for statutory penalties apThe point now made is that the complain-plies, and that the act claimed to have been ant should have personal knowledge of the violated ought to have been designated in facts required to be sworn to in verifying the complaint, it is a sufficient answer to the complaint, and that it appears they did say that this point was not taken at or benot have such knowledge in this case. It fore the trial. Hayes v. Storms, 64 N. J. has been held in this court that a general Law, 514, 45 Atl. 809. affidavit that the matters and things set forth in the petition are true is prima facie sufficient. Davis v. Repp, 79 N. J. Law, 394, 75 Atl. 169.

[2, 3] The present complaint was made by Albert T. Repp and Charles F. Repp, and on the hearing before the court of common pleas Charles F. Repp admitted, on cross-examination, that he had no personal knowledge of the sales complained of in the petition. Nothing appears as to the personal knowledge of Albert. This being the situation, it is now urged that any presumption of personal knowledge arising from the formal affidavit of verification, which was similar to that in Davis v. Repp, is overcome by the admission of Charles of his lack of personal knowledge, and that therefore the conviction should be set aside. The point was involved but not decided in Allgair v. Hickman, 81

[5] Next, the prosecutor invokes the wellknown rule that in penal actions, where the proceedings are summary, the substance of the evidence must be set out in the conviction, to enable the court to judge of its sufficiency. Sawicki v. Keron, 79 N. J. Law, 382, 75 Atl. 477; Marter v. Repp, ubi supra, 80 N. J. Law, 530, 77 Atl. 1030; Esping v. Society, 79 N. J. Law, 357, 75 Atl. 547, and cases cited; Preusser v. Cass, 54 N. J. Law, 532, 24 Atl. 480. The order of revocation in the present case is very full in its recitals and statements, no doubt in view of the decisions in Sawicki v. Keron and Marter v. Repp. It states the proceedings with particularity, including the admissions of counsel as to certain facts; that D. Earl Hughes was called as a witness and gave certain testimony, stating the substance thereof; that Alvin H. Andrews was called as a witness, and the sub

The objection that the police justice lost The proceedings and conviction will be af- ing adjournments for more than six weeks in jurisdiction in bastardy proceedings by grantfirmed.

The points urged by the prosecutor for the [ 3. JURY TRIAL. reversal of these orders are as follows:

Whether in such latter case the act of

quære.

[2] 1. That the police justice lost jurisdic-1905 would apply to demands for jury trial, tion to make the orders by granting adjournments for a longer period than six weeks in all.

Assuming that section 7 of the bastardy act (P. L. 1898, p. 961) means what the prosecutor contends that it does, the irregularity was an error that affected the specific jurisdiction of the police justice (see Attorney General v. Sooy Oyster Co., 78 N. J. Law, 394, 75 Atl. 211); and hence the point should have been taken in the proceedings below. It was not, although the prosecutor was present during the trial. As it is, for all that appears, the adjournments were granted to the prosecutor.

[3] 2. The order that the prosecutor pay "the sum of ten dollars for costs and ex

penses of the confinement" is justified by the statute, in which "costs" means, not the costs

of the action, but the cost of sustenance during confinement.

[4] 3. The death of the overseer of the poor, by whom the action was commenced, did not cause it to abate; it was brought, not in a personal, but in an official, capacity. [1] 4. Assuming that the orders originally returned were defective, in that they did not set forth the evidence on which the conviction rested, the defect was cured by the further return made by the police justice in response to a rule upon him, obtained in accordance with the practice sanctioned by this court in Rahway v. Hunt, 74 N. J. Law, 116, €5 Atl. 164, and Eckerson v. Mitchell, 74 N. J. Law, 347, 68 Atl. 81.

The proceedings of the police justice are affirmed, with costs.

WALNUT v. NEWTON.

(Supreme Court of New Jersey. Feb. 17, 1912.)

(Syllabus by the Court.)

Appeal from District Court of Camden. Action by T. Henry Walnut against Mahlon W. Newton. Judgment for plaintiff in the district court, and defendant appeals. Affirmed.

Argued November term, 1911, before GARRISON, PARKER, and BERGEN, JJ.

Joseph Beck Tyler, for appellant. Joseph J. Summerill and William C. French, for appellee.

[1] The situation is a little unusual and substantially raises the question whether the supplement of 1905 to the district court act (P. L. p. 494, § 4, C. S. 1991, pl. 117d) is to be applied, or the previous legislation in that regard, which is section 149 of the district court act of 1898 as amended by chapter 235 of the laws of 1903 (P. L. p. 505, C. S. 1999). Under the act of 1903 a demand of a jury must be made, and notice thereof given to the clerk, and the venire fees paid at least two days, exclusive of Sundays and holidays, before the time fixed for the trial, or "such demand shall be deemed to have been waived; but the judge may in his discretion grant a venire at the expense of the plaintiff to be taxed in the costs of suit notwithstanding the failure of a demand as hereinbefore specified." By section 4 of the act of 1905, ubi supra, in all proceedings had by virtue of the district court act, "the court shall, unless a jury be demanded by either party at least one day before the return day of the summons, try the issue and give judgment thereon in like manner as in case of the verdict of a jury." It will be observed that no discretion is vested in the court by this later act, but the trial must be without jury unless demand is made at least one day before the return of the summons. The constitutionality of this secThe proper practice in cases where serv- tion was upheld in two decisions by sepaice of original process cannot be made in due rate branches of this court at the same term season before the return day is to amend the-Phoenix Pottery Co. v. Perkins Co., 79 N. writ by extending the return day, and make service thereof based on such new return day. [Ed. Note. For other cases, see Process, Cent. Dig. § 38; Dec. Dig. § 46.*]

1. JURY (8 25*)-DEMAND FOR JURY-DISTRICT COURTS.

Section 4 of the supplement of 1905 to the district court act (C. S. 1910, p. 1991, pl. 117d), requiring demand for jury trial to be made at least one day before the return date of the summons, is inapplicable in replevin cases where the defendant is not served before the return day, and appears pursuant to extraterritorial service of the unamended writ and an order of court fixing a day for trial.

[Ed. Note. For other cases, see Jury, Cent. Dig. § 154-173; Dec. Dig. § 25.*]

2. PROCESS (§ 46*)-DISTRICT COURTS-PRACTICE SERVICE OF PROCESS.

J. Law, 78, 74 Atl. 258; Haythorn v. Van Keuren & Son, 79 N. J. Law, 101, 74 Atl. 502 -in which latter case the statute was held