youngest child attained the age of 25, at which time the trust should cease and the property be divided, created a trust which violated the rule against perpetuities, as the trust estate did not vest in the beneficiaries until the youngest became 25 years of age, and such child might not reach such age until more than 21 years after the death of all the children living at the time of testator's death.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. 4.1

Case Certified from Circuit Court, Camden County, for Advisory Opinion.

GUMMERE, C. J. The indictment prefer-efit of the children of a daughter until the red by the grand jury of Monmouth county against the plaintiff in error charged that he "on the 1st day of May, in the year 1911, and on divers other days and times between that day and the day of the finding of the indictment, unlawfully and habitually did sell, offer, and expose for sale, and cause and knowingly permit to be sold, offered, and exposed for sale, to F. P. M., and W. C. G. and other persons, whose names are to the grand inquest as yet unknown, by less measure than one quart, certain spirituous, vinous, malt, and brewed liquors, to wit, whisky and lager beer, without a license for that purpose first had and obtained, contrary," etc. The plaintiff in error demurred to the indictment upon the ground that it was void for duplicity, in that it charged two separate and distinct offenses, namely, selling liquor and permitting liquor to be sold. The demurrer was overruled, and the defendant was then sentenced to pay a fine of $75 and costs, and to be confined in the county jail for the term of five months. The single ground upon which the judgment under review is attacked by the plaintiff in error is that the trial court erred in overruling the demurrer.

Ejectment by John Kates and another, trustees, against Mary J. Walker and another. Cause certified to the Supreme Court for advice. Decree advised.

Argued February term, 1911, before GUM-
MERE, C. J., and TRENCHARD, J.
Adam R. Sloan, for plaintiffs. William T.
Boyle and S. D. Bergen, for defendants.

GUMMERE, C. J. The property involved in the present litigation was the homestead farm of Joshua W. Bishop, deceased, who died on December 20, 1908. By the second item of his will the decedent devised this farm to his wife for the term of her natural life. By the fifth item of that instrument he gave, devised and bequeathed all of his real and personal estate not therein before disposed of to John B. Kates, Samuel Sickler, and Henry Minck in trust, and ordered and directed them to sell all of his real estate so

The seventy-fourth section of the criminal procedure act of 1898 provides that "it shall not be lawful hereafter to indict any person or persons for the offense of maintaining a common-law nuisance or keeping a disorderly house where the offense sought to be pun-devised to them to invest the proceeds of the ished consists wholly in the unlawful sale of spirituous, vinous, malt or brewed liquors; but in all such cases the indictment shall be in form for the sale of intoxicating liquors contrary to law." The purpose of this statute is beyond question. It is to substitute for the common-law form of indictment for keeping a disorderly house a statutory form, where the habitual violation of law complained of consists in sales of liquor in violation of statutory provisions. It is not necessary that these violations shall, each of them, be the personal act of the defendant. Some of them may be his own acts; some of them may be acts done by his agents or employés under his authority or by his permission. Taken together, they constitute the habitual violation struck at by the statutory provision which has been cited. The indictment in the present case was not objectionable for the reason complained of by the plaintiff in error.

The conviction under review will be affirmed.

sale thereof, and pay the interest on such investments to his wife during her life. The will then proceeds as follows: "And at her death it is my will that said trust continue, and I direct my said trustees to continue said investments for the benefit of my grandchildren, the children of my daughter Mary Jane Walker, until the youngest child shall attain the age of twenty-five years, at which time said trust shall end; and I order and direct my said trustees to divide all the moneys of my said estate, including all of said investments and whatever moneys shall accrue therefrom, and trust funds of every kind, in equal parts, and pay the same to my said grandchildren, the children of my said daughter Mary Jane Walker, share and share alike." Joshua W. Bishop outlived his wife; and shortly after his own death the daughter Mary Jane Walker and her husband moved into and took possession of the homestead farm. The present action is brought by the trustees under the will, and the question certified to us is whether, under the true construction of the trust provision recited, the plaintiffs are entitled to a judgment establishing their right to possession.

There is no doubt but that the homestead farm was embraced in the trust provision of the will; for that provision operated upon all of the testator's estate that was not otherwise disposed of. The question for solution, therefore, is whether the trust is valid,

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

was the custom of Brown to send an employé, actually designated the express company as named Spoon to the town of Roebling, located in the same county, for the purpose of soliciting in that town orders for liquor; that it was the custom of Brown, upon receipt of these orders, to fill such as met with his approval, and to decline those which he disapproved. Those which were accepted were filled from the common stock in Brown's place of business, and marked with the name and address of the buyer. Some of the packages so marked were then delivered by Brown's own wagon and driver to the purchasers in Roebling, and others were delivered by an expressman named Shedaker, to whom they were turned over by Brown for that purpose. Sometimes the money to pay for the liquor thus ordered would accompany the order. At other times it would be paid upon the delivery to the purchaser.

[1] So far as those sales are concerned which were completed by delivery from the defendant's wagon in the town of Roebling, the case is controlled by our decision in State v. Kind, 80 N. J. Law, 176, 75 Atl. 438, affirmed 80 N. J. Law, 466, 78 Atl. 1135. In that case the defendant, holding a wholesale liquor license which authorized him to do business in Atlantic county, accepted orders from parties desiring to purchase, and who resided in Vineland in the county of Cumberland. Such intending purchasers made their payments at the time of sending in their orders. The orders were filled by delivery in Vineland from the defendant's wagon. It was held that the place of sale was controlled, not by the fact that the payments accompanied the orders, and were received at the defendant's place of business with the orders, but by the consideration that delivery in Vineland was essential to complete the transaction. The sales in the present case, therefore, which were completed by deliveries from the defendant's wagon in the town of Roebling, were in violation of law because of the fact that the defendant had no license to sell outside of the town of Burlington.

their agent, and authorized Brown to deliver to the express company at his place of business in Burlington this liquor as the agent of the buyers, then the sales certainly took place when the liquor was delivered to the express company in Burlington. If, on the other hand, from the evidence you are convinced, as is contended by the state, that the employment of this express company was a subterfuge or ruse, employed by the defendant, and it was, in fact, an employment by the defendant of the express company, and the express company was, in fact, the servant of the defendant, and as such was his agent, and as such delivered the liquor in the township of Florence, the sale did, under these circumstances, take place in the township of Florence." It is contended that the latter part of this instruction was erroneous for the reason that, because Shedaker's express was a common carrier, upon delivery to its agent title to the liquor immediately vested in the buyer, and the transaction of sale was complete, and was completed in the town of Burlington. We think this contention unsound. If the express company was the agent of the defendant the situation was, in law, exactly the same as if the delivery had been made out of his, defendant's, own wagon, and the sale was not complete, under the case of State v. Kind, until the receipt of the liquor by the buyers. It is not necessary to consider whether or not the transaction would have been complete, and the title would have passed to the vendees if they had selected the express company as their agent to receive the liquor, for the trial court charged that this would have been the result, and, if there was error in that instruction, it was favorable to the defendant, and injurious to the state.

[3] We have considered the other alleged errors and reasons for reversal discussed in the brief of the defendant. They all relate to alleged errors contained in the charge to the jury. We are not prepared to admit that there was any inaccuracy in the legal propositions laid down to the jury in the respects stated; but, conceding that the inaccuracies which are asserted did, in fact, exist, they would not justify a reversal of the judgment upon the review provided by section 136 of the criminal procedure act, for the reason that such inaccuracies, if they did exist, cannot be said to have produced manifest wrong or injury to the defendant; and, when a person convicted of crime takes advantage of the liberal review provided by that section, he relinquishes any advantage which might come to him from mistakes

[2] As to the sales which were completed, so far as the vendees were concerned, by deliveries made by the Shedaker express, the trial court charged the jury as follows: "If the defendant upon receipt of bona fide orders from persons residing in Florence township (Roebling) actually set apart and labeled goods, and then delivered these goods so set apart and labeled to a bona fide common carrier, or express company, as the agent of the buyer, there was no sale in the township of Florence, but the sale was completed in the city of Burlington. In this case the question of bona fides-that is, good faith-is to have your consideration. If, as has been contend-made at the trial, unless he can show that ed by the defense, the employment of the he has suffered manifest wrong or injury Shedaker express was a bona fide transac- by such mistakes.

tion entered into in fact, and in good faith,

The judgment under review will be af

by the people residing at Roebling, and they firmed.

(82 N. J. L. 223)

COREY CO. v. MINCH et al. (Supreme Court of New Jersey.

Feb. 26,

1912.)

tendered for delivery in the spring of 1911 were not the goods bought and did not comply with the warranty, whereupon the defendants rescinded the contract. This recital is enough to show that the point raised is the right of the defendants to rescind a SALES (§ 354*)-ACTION FOR PRICE-ANSWER contract for the delivery of goods in install-DEFECTIVE DELIVERY.

(Syllabus by the Court.)

Under section 45 of the sale of goods actments, where some of the installments fail (4 Comp. St. 1910, p. 4657), the question to comply with the contract. The case is whether a breach of a contract to deliver governed by the sale of goods act of 1907. goods by installments, by reason of defective C. S. 4645. Section 45 provides that, where delivery of one or more installments, is so material as to justify the injured party in refus- there is a contract to sell goods, to be deing to proceed further is a question of fact, livered by stated installments which are to and a plea setting up the breach must aver its be separately paid for, and the seller makes materiality. defective deliveries in respect of one more installments, it depends upon the terms of the contract and the circumstances of the Action by the Corey Companý against Wal-case whether the breach of contract is so ter L. Minch and others. Demurrers to pleas sustained.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 354.*]

Argued November term, 1911, before the CHIEF JUSTICE and SWAYZE and VOORHEES, JJ.

or

material as to justify the injured party in refusing to proceed further, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken. The question

Berry & Riggins, for plaintiff. Walter H. turns upon the materiality of the breach Bacon, for defendants.

SWAYZE, J. The declaration in this case is in such bad form that we cannot believe it was drawn by counsel. Instead of setting forth a cause of action according to the legal effect, it sets forth in narrative form, with great prolixity, the transactions between the plaintiff and the defendant upon which the suit is brought. From this narrative, the court has been obliged to extract the essential averments-a labor that should have been performed by counsel. Stripped of the unnecessary verbiage, the declaration avers that the defendants bought, and the plaintiff sold 5,000 bags of potatoes, to be shipped and paid for in car load lots on the defendant's order; that certain car loads 'were shipped in the fall of 1910, accepted, and paid for; that other car loads were shipped in the spring of 1911 and rejected by the defendants because of a failure to comply with a warranty; that the defendants thereupon rescinded the contract and notified the plaintiffs that they would refuse to accept any further deliveries, whereupon the plaintiffs sold the balance of the potatoes at a loss.

under the circumstances of the case, and this is a question of fact. Williston on Sales, § 467, p. 810. The pleas fail to aver that the breach of contract was material, although they aver facts from which that inference might be drawn. This is not suf ficient as against the demurrer. The plaintiff is therefore entitled to judgment upon these pleas. The defendants may, if they desire, apply for leave to amend.

(82 N. J. L. 227)

STATE V. CARROLL (Supreme Court of New Jersey. Feb. 26, 1912.)

(Syllabus by the Court.) 1. CRIMINAL LAW (§§ 763, 764*)-TRIAL-SUFFICIENCY OF EVIDENCE-NUMBER OF WITNESSES.

It is not error for the court upon trial of an indictment to refuse to charge that, if the number of witnesses for the defense exceed the number of witnesses for the state, the evidence for the defense preponderates.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. $$ 763, 764.*]

(Additional Syllabus by Editorial Staff.) 2. ELECTIONS (§ 329*)-OFFENSES AGAINST ELECTION LAWS PROSECUTION - ADMISSIBILITY OF EVIDENCE.

The fourth plea avers that the potatoes were intended to be resold by the defendant for seed, as was known to the plaintiff; In a prosecution for procuring a person to that they were warranted, setting forth the vote, knowing him to be not qualified, where the defendant produced a man who was identiparticular warranty; that the potatoes ten-fied by some of his witnesses as the person dered for delivery in the spring of 1911 were not in accordance with the warranty, setting forth the particulars in which they failed to comply, whereupon the defendant rescinded the contract and refused to receive the goods. The fifth plea avers that the defendants bought specific goods with a warranty as to quality, which is set forth; that the goods

who voted under the name given by the alleged disqualified voter, and who was identified un⚫ der that name as having lived at a specified address for a time variously fixed by the witnesses from a year to four years, it was proper for the state to prove that the man who had registered was not the man produced by defendant, and to have a witness describe the man who registered, whose description differed from that of the voter, and to show that the

Error to Court of Quarter Sessions, Cam- the man who registered was not the man den County.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 82 A.-20