In such

It is claimed that certain other evidence should also have been abstracted; but it does not appear what this evidence was, except that with the return in this case was sent up a certificate of the judge of the court of common pleas that at the trial Charles F. Repp gave certain testimony, apparently reported stenographically, which goes to show the lack of personal knowledge by said Charles F. Repp of the facts sworn to in the complaint. We may concede that, if this testimony was material and relevant on any issue determined by the trial court, it ought to have been returned with the conviction; but as it bore on the question of specific jurisdiction only, and that question was not raised, we cannot see how its omission operates against the legality of the conviction. This disposes of all the questions raised by the prosecutor before us.

declare that he is trustee for persons named, and join them as co-complainants. case, a demurrer is frivolous. The order of the court below will be affirmed.

(82 N. J. L. 20)

SADLER, Overseer of Poor, v. JEPPSON. (Supreme Court of New Jersey. Feb. 21, 1912.)

1. CRIMINAL LAW (§ 10812)-CERTIORARI— (Syllabus by the Court.) RETURN-CORRECTION.

The failure of a police justice in his original return to a certiorari to set forth the evidence on which his order of conviction rests may be cured by his further return in response to a rule upon him, made upon a suggestion of diminution in the record.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2725; Dec. Dig. § 10812.*]

(Additional Syllabus by Editorial Staff.)

2. CRIMINAL LAW (§ 1033*)—CERTIORARIPRESENTATION OF QUESTIONS IN LOWER COURT JURISDICTION.

The objection that the police justice lost jurisdiction in bastardy proceedings by grant

(79 N. J. E. 655)

SAMMIS et al. v. SHAW et al. (Court of Errors and Appeals of New Jersey. Feb. 9, 1912.)

MORTGAGES (§ 417*) - FORECLOSURE - PAR

TIES.

A trustee who is expressly vested with title by a deed may file a bill to foreclose, alleging that he is trustee for the persons named in the deed, and joining them as complainants. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1227-1236; Dec. Dig. § 417.*]

Appeal from Court of Chancery.

Suit by Warren E. Sammis and others against John E. Shaw and others. From an order overruling a demurrer to the bill, defendants appeal. Affirmed.

Frederick A. Pope and John C. Shaw, for appellants. Charles E. Hill, for appellees.

PER CURIAM. The bill of complaint was filed by Warren E. Sammis, trustee for Catherine Mahling and Solomon Mayer, and by Catherine Mahling and Solomon Mayer, to foreclose a mortgage given to secure a bond. It sets out that the bond and mortgage were assigned by deed in writing to Warren E. Sammis, trustee for Catherine Mahling and Solomon Mayer.

The ground of demurrer is that the bill fails to show the creation and nature of the trust. We think it was properly overruled. Where the title is vested by deed in a person named as trustee, the title vests in the

all should be presented below, in order to be available on certiorari.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2629, 2630; Dec. Dig. § 1033.*]

3. BASTARDS (§ 78*)-PROceedings-Order"Costs.'

An order in bastardy proceedings that defendant pay a certain sum for costs and expenses 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.

[Ed. Note.-For other cases, see Bastards, Cent. Dig. §§ 194-200; Dec. Dig. § 78.*

For other definitions, see Words and Phrases, vol. 2, pp. 1633-1640; vol. 8, p. 7620.] 4. ABATEMENT AND REVIVAL (§ 65*)-DEATH OF PARTY-PERSONAL OR REPRESENTATIVE САРАСІТУ.

The death of the overseer of the poor, by whom a bastardy proceeding was commenced, did not cause it to abate, since the proceeding was brought, not in a personal, but in an official, capacity.

[Ed. Note.-For other cases, see Abatement and Revival, Cent. Dig. §§ 330-333; Dec. Dig. $ 05.*]

Bastardy proceedings by one Sadler, Overseer of the Poor, against Adolph Jeppson. From a conviction and order of filiation, the defendant prosecutes certiorari.

Affirmed.

Argued June term, 1911, before GARRISON, TRENCHARD, and KALISCH, JJ. John J. Stamler, for prosecutor. C. Connolly, for defendant.

James

GARRISON, J. This writ of certiorari brings up the conviction of the prosecutor as putative father in bastardy proceedings and the order of filiation made against him.

Whether in such latter case the act of

quære.

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 expenses 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, 65 Atl. 164, and Eckerson v. Mitchell, 74 N. J. Law, 347, 68 Atl. 81.

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

(82 N. J. L. 290)

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

(Syllabus by the Court.)

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.

The proper practice in cases where service of original process cannot be made in due season before the return day is to amend the 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.*]

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. Jóseph J. Summerill and William C. French, for appellee.

PARKER, J. This was an action of re

plevin in a district court, in which there was a jury trial, and a verdict and judgment for defendant.

The first cause for reversal argued is this: "Because trial was had by jury over the objection of the plaintiff because the jury was not demanded by the defendant within the time limited by statute; the plaintiff having offered to prove that no demand was made within the time limited by statute, which offer was refused by the court and a jury trial granted."

[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 herein before 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 section was upheld in two decisions by separate branches of this court at the same terin

Phoenix Pottery Co. v. Perkins Co., 79 N. 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

The situation presented at the trial was this: The suit was in replevin, and defendant could not be served within the state. Recourse was accordingly had by plaintiff to section 122 of the district court act (P. L. 1898, at page 603), which provides that when writs of replevin cannot be served in the manner required for a summons because of the defendant's absence, and his nonresidence in the county, the writ shall be served as the court may by an order direct. Such an order was made on July 20, 1911, after the return of the summons, for service on the defendant's accredited attorney in the county and on defendant personally without the state, and fixing August 3d as the day for trial, and service of the writ and order was made in both ways prescribed, whereupon the defendant appeared, and after adjournments the parties went to trial. The record does not show when the demand for jury was made. In the brief for appellant, plaintiff, we are informed that: "The plaintiff on September 7th, and also on September 14th, offered to prove that no de mand for jury had been made one day prior to the return day, August 3, 1911, or one day prior to the date of adjournment, September 7, 1911, and objected to trial by jury. This offer was refused and exception was taken to trial by jury." All that appears in the statement of the case, however, is this colloquy between court and counsel after the trial had begun on September 21st: "Mr. Tyler: While counsel are examining this paper, I would like to have entered upon the record as a matter of form the objection that has already been made (it was made last week, if your honor will recall) that counsel for the claimant offered to prove that no demand had been made for a jury within the time limited by statute, and that offer was refused and the claimant excepted to any jury being sworn in this case. The Court: It will be so noted on the record." Taking the statement in the brief as correct, it is fairly inferable that a demand for jury trial had been made by defendant as early as September 7th, although as we view the case, even if no such demand had been made the court committed no legal error in awarding a jury trial, for reasons to be presently stated.

before its return is plainly predicated on service of the writ in the manner required for writs of summons-1. e., five days before the return day-so as to give defendant reasonable opportunity to make his demand. It cannot be that in replevin cases after the writ expires without service, a defendant afterwards brought into court by a substituted extraterritorial service based on jurisdiction over the res may be barred of his right to a jury by reason of the return day having passed.

A more effective subversion of the right to trial by jury in replevin cases could not well be devised, when the defendant is a nonresident. And, indeed, the plaintiff does not claim this. What he does claim is that the demand should have been made at least one day prior to August 3d, the day fixed for trial in the order, and which he calls "the return day" or at least one day prior to September 7th, the day to which the trial was adjourned, and that the court erred in overruling his offer to prove that such demand had not been made at either time. But, in the view that we take of the matter, the act of 1905 became inapplicable when the plaintiff resorted to the service of an expired writ and an order of court as a means of securing jurisdiction over the defendant, because there was then no such thing as a return day of the summons to limit the time for making a demand for jury. Consequently, if any statute was applicable, it was the act of 1903, which vests in the court a discretionary power to award a jury even in the absence of a demand. The result is that no error was committed by the rejection of the proof offered.

[2] We do not wish to be understood as approving the practice that was pursued in this case to get the defendant into court. It would seem that in case service cannot be made, as required by law, at least five days before the return day, the proper practice would be that pursued in the superior courts of common law, to amend the summons by enlarging the return day as is constantly done by both attorneys and sheriffs for the purpose of securing service on the defendant or of delaying service for his accommodation. Kloepping ads. Stellmacher, 36 N. J. Law, 176, 178; McCracken v. Richardson, 46 N. J. Law, 50, 52, in which it is stated that the return day may be extended even after the original return day has passed. The practice of the circuit courts is

Act, § 68. Whether such a course would render the statute of 1905 applicable in cases of demand for jury trial is a question not now presented for consideration.

The next point argued is that the court erred in refusing to direct a verdict for the plaintiff, and this leads to an examination

the goods in right of a distress warrant, issued by him as landlord of certain premises in Camden on which the goods were situated, executed on said goods, and a sale to him thereunder. No question is raised as to the regularity of the distress proceedings. The claim of plaintiff is that the goods did not at the time of executing the distress warrant belong to the tenant. That tenant

as named in the lease was a corporation of this state called the Diffin Machine Company; and plaintiff claimed the goods as assignee for benefit of creditors of a firm called Diffin & Smith Company, composed of Frank G. Diffin and William A. Smith. The meritorious question was therefore whether plaintiff had shown as a court question that the goods at the time of the distress were the property of himself as assignee of Diffin & Smith Company, or whether the ownership was a question for the jury. If there was a substantial conflict of evidence, a verdict could not be directed. Without going into the details of the evidence, we are of opinion that the evidence was such as to justify a jury in finding that the title of the goods had passed from Diffin & Smith Company to the Diffin Machine Company prior to the assignment to Walnut, and that the goods were in the possession and control of that company for some months prior to the distress. Hence a direction was properly

| legal existence of the street at the crossing or of the public easement, that a court of equity road's obstructions and the construction of a in a suit to compel the removal of the railcrossing might have determined the question of adverse possession did not authorize it to proceed to a determination of the entire controversy prior to the establishment of the legal existence of the street or easement at law.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 85; Dec. Dig. § 37.*] 3. INJUNCTION (§ 119*)-RIGHT TO EQUITA

BLE RELIEF-ANSWER-JURISDICTION.

Where, in a suit to compel a removal of obstructions from an alleged street and to construct a railroad crossing, defendant, by anrelief, and claimed the benefit of a demurrer, swer, denied complainant's right to equitable it did not thereby deny the court's jurisdiction to grant relief before the establishment of a disputed title at law, so that the bill would not be dismissed, but would be permitted to stand until the establishment of complainant's title at law.

[Ed. Note.-For other cases, see Injunction, Dec. Dig. § 119.*]

Suits by the Board of Trustees of the Village of Ridgefield Park and by the West View Boat Club against the West Shore Railroad Company and others. On bills, answer, replication, and proofs. Continued until the establishment of complainant's right at law.

William J. Morrison and J. Edward Ashmead, for complainants. Vredenburgh, Wall & Carey, for defendants.

EMERY, V. C. These two suits (which were tried together) are brought against the New York Central & Hudson River Railroad Company as lessee and the West Shore Railroad Company as owner for the purpose of removing the obstructions to a public street claimed to cross lands now occupied or in possession of the West Shore Railroad by its main tracks, a siding, and other struc

tures.

[1] The complainants in one suit, the board of trustees of the village of Ridgefield Park, seek further to compel the railroad companies to construct a good and sufficient crossing over, under, or across this public street, under the twenty-sixth section of the railroad act; the right to bring the suit in equity under this section being further claimed under section 29 of the act of April 14, 1903. They also claim the right to relief on the ground of the jurisdiction of the court over conflicting easements in highways. The complainant in the other suit is a private owner of land bounding on the alleged public street, and claiming under its deeds the easement of passage through the street over the railroad crossing. Complainants in both suits base their claims upon an alleged dedication of a street across these lands occupied by the crossing before the construction of the railroad and before defendant acquired title. The right to a crossing over the en