STATE v. HENDRICK. (Supreme Court of New Jersey. April 2, 1917.) Appeal from Court of Special Sessions, Atlantic County. Charles Hendrick was convicted of fraudulent conversion of goods as consignee, and he appeals. Cause remanded to the Special Sessions for proper sentence. Writ of error dismissed 103 Atl. 179. Charles Hendrick, pro se. Charles S. Moore, of Atlantic City, Prosecutor of the Pleas, and William Elmer Brown, Jr., of Atlantic City, Asst. Prosecutor of the Pleas, for the State. course. been a preliminary hearing of the matter be- swer was: "I did, sir." Then followed this It is next contended that it was error to ad mit in evidence a paper slip offered on behalf of the state, which read as follows: PER CURIAM. The return to the writ of error as printed in the state of the case con-heimer?" (the justice of the peace). The antains no copy of the allegation upon which the defendant was tried. Both parties, however, admit that the charge laid in it was a violation of section 184 of the Crimes Act. (2 Comp. St. 1910, p. 1799). That section provides that "any consignee, factor, bailee, agent or servant, entrusted with the care or sale of any personal property, or entrusted with the collection or care of any moneys, who shall fraudulently take or convert the same, or the proceeds of the sale of the same, or any part thereof, to his own use * shall be guilty of a misdemeanor." The trial in the special sessions resulted in the conviction of the defendant, and he now appeals. The case made by the state was that the defendant went to the store of one Meyer Marx, on the Boardvalk, in Atlantic City, and, after trying on two pairs of shoes, ordered one of the pairs to be sent to his office. Pursuant to this instruction, a boy in the employ of Marx carried these shoes to the defendant's office; and, upon his arrival there, the latter sent the boy back to the store to bring the other pair of shoes, which he had tried on, and three pairs of hose. These articles the boy brought back in due The contention on the part of the state was that when the defendant originally ordered one pair of these shoes to be sent to his office, and also when he sent the boy back for the other pair of shoes and the three pairs of hose, he had no intention of paying for any of the articles, and that, on the contrary, his purpose was, in case they should be delivered to him, to fraudulently convert them to his own use, and that he carried this purpose into execution. The state called witnesses in support of its contention. The defendant submitted no evidence to controvert that produced on the part of the state. His claim in the trial court, and before us, was and is that the goods were delivered to him by the employé of Marx on approval, that the title thereto passed to him by the delivery, and that, consequently, there could not have been a wrongful appropriation of them. The trouble with the contention of the defendant is that the character of the delivery, whether on approval or not, was entirely immaterial, if his preconceived purpose was not to pay for them, but, on the contrary, to fraudulently convert them to his own use if they should once be put in his possession. Whether such flagitious intent existed or not was a fact to be determined by the trial court. That fact was found against the defendant, and there was ample evidence to support the finding. The contention of the defendant, therefore, that the conviction against him must be reversed, because the title of the property passed to him by delivery, cannot prevail. It appears that, before the trial, there had "September 11, 1915. "Dr. Hendrick, 395 Boardwalk. "Marx's Footwear Shop, 1511 Boardwalk. 1 pair pat. cloth top... 1 pair gla. kid.... "C. O. D." .$ 7 50 7.00 1 00 $15 50 On the back of the paper, at the suggestion of the defendant, the messenger boy wrote the following: "Rec'd from Marx's Footwear Shop 2 pair shoes, 3 pair hose, on approval"-and this was signed by the defendant. The argument in support of the inadmissibility of this paper is that only what was written upon the back thereof was evidential, and that this writing showed that the goods were delivered on approval and not C. O. D. Assuming for the moment that the character of the delivery was material, we think the document was competent for the purpose of showing that the messenger boy had no authority to represent Mr. Marx in changing the character of the delivery. The paper showed that his authority was to deliver C. O. D., and the boy's agency was expressly limited by the writing. In changing the character of the delivery at the defendant's suggestion, the boy overstepped the limits of his agency, and his act did not bind Marx. But the paper, we think, even if it was legally objectionable as a piece of evidence, had no rele (106 A.) vancy with relation to the matter in issue, and its admission could not have harmed the defendant. As we have already pointed out, the question involved was whether or not the defendant, in ordering these goods, had no intention to pay for them, but purposed, in the event of their being delivered to him, to fraudulently convert them to his own use. And if this was the scheme of the defendant it is quite immaterial, as we have already indicated, what the character of the delivery to him was. It is further contended that the trial court erred in refusing to permit the defendant to show that, about a year prior to the transaction under consideration, Marx had sold him a pair of shoes, which, as he represented, were made to the defendant's order, but which, in fact, were taken out of stock, and were worth considerably less than a "made to order" pair would have been. It is difficult to understand on what theory the defendant considered this testimony relevant. If he had been defrauded in the transaction, as he claims to have been, he would hardly have been justified in breaking into the store of Marx and robbing the till of sufficient to compensate him for the loss which he had sustained, and it seems to us equally plain that he could not recompense himself by fraudulently obtaining possession of property belonging to Marx and appropriating it to his own use. It is lastly contended that the sentence pronounced by the court was without legal justification. It was as follows: "The court doth order and adjudge that Charles Hendrick be committed to the care and custody of the probation officer for a period of three years, and that he report weekly and pay said probation officer the sum of one dollar a week during that period, and, as a further condition, that said Charles Hendrick make restitution in the sum of $15.50 to Meyer Marx, the complaining witness. That restitution be made one week from to-day, or you will be brought into court and a jail sentence will be imposed." We think this sentence was one beyond the power of the court to impose. The threat that, unless restitution should be made within a week from the day of pronouncing sentence, the defendant would be brought into court and a jail sentence imposed upon him, does not trouble us, for it is no part of the sentence, and unless and until the threat was carried out it did not affect the defendant. The trouble with the sentence is with the command to make restitution to the complaining witness. The criminal courts of the state are not to be used as collection agencies for debts due or for damages sustained. The method to be pursued by Mr. Marx for the recovery of his claim against the defendant is by an action in one of our civil tribunals. As the condition cited is an integral part of the sentence, it cannot be expunged therefrom as surplusage. The result, therefore, is that the conviction must be set aside. But this will not necessitate a retrial of the case. Section 144 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1867) provides that "whenever a final judgment in any criminal case shall be reversed upon a writ of error, on account of error in the sentence, the court in which such reversal was had may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the conviction was had." We incline to think that more exact justice will be done in the present case by sending it back to the trial court, in order that sentence may be there pronounced, than if we attempted to fix the penalty ourselves. The case will therefore be remanded for that purpose to the special sessions of Atlantic county. END OF CASES IN VOL. 106 THIS IS A KEY-NUMBER INDEX It Supplements the Decennial Digests, the Key-Number Series and ABANDONMENT. See Divorce, 209; Husband and Wife, 2, 19, 290; Trial, 296. ABATEMENT AND REVIVAL. See Taxation, 453. ACCOUNT. See Bankruptcy, 20; Constitutional Law, I shall limit the amount to be recovered for injuries to property, does not confer a right of recovery where none otherwise exists.-Jackman v. Rosenbaum Co., 106 A. 238. No cause of action arises from the doing of a legal act or the exercise of a legal right if done or exercised in a lawful and proper manner; the resulting damage being damnum absque injuria, though a liability may arise from the doing of a lawful act or the exercise of a legal right in a negligent or improper manner.-Id. IV. COMMENCEMENT, PROSECU- 56; Limitation of Actions, 54; Mechanics' Liens, 33; Partnership, 345;50(6) (R.I.) In action for damage to an auReceivers, 202; Schools and School Dis-tomobile in a collision with another automobile, tricts. 15; Trespass, 57; Trusts, 21, 298, 387. where plaintiff was in doubt as to person from whom he was entitled to recover, whether owner of other automobile or person in charge thereof, and cause of action was single, namely, the alleged negligence of the driver, plaintiff correctly set out in his declaration a joint cause of action against the owner and driver of the automobile.-McGinn v. J. F. Comstock & Son Co., 106 A. 222. II. PROCEEDINGS AND RELIEF. 12 (Del.Ch.) Where an inventor, having discovered a new formula for making powder, disclosed it to his employer, relying on promises of compensation if it proved valuable, and the employer without his knowledge used it and made large profits, and also obtained for a nominal consideration an assignment from him of applications for patents, and thereafter tendered him compensation which he deemed 4 (Vt.) Allegations, in trespass on the case, insufficient, he has an adequate remedy at law that acts were done carelessly and negligently, for breach of contract, and therefore cannot do not necessarily imply that they were not maintain a suit in equity for an accounting.- done intentionally.-Ex parte Cote, 106 A. 519. O'Neil v. E. I. Du Pont de Nemours & Co., 106 A. 50. ADJOINING LANDOWNERS. ACTION ON THE CASE. ADMINISTRATION. 15 (Vt.) In matters of account, not barred by limitations, courts of equity refuse to inter- See Boundaries; Party Walls. fere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the origi- See Executors and Administrators. nal transactions have become obscure by time, and the evidence may be lost.-Powers v. Trustees of Caledonia County Grammar School, 106 A. 836. 19 (Pa.) On an appeal under Act June 24, 1895 (P. L. 243), from a preliminary decree in an equity suit directing defendant to account, the appellate court will not consider the extent or details of the account, or whether anything was in fact due plaintiff; the sole question being that of liability to account.Davidson v. Davidson, 106 A. 64. ACKNOWLEDGMENT. See Homestead, ~57. ACTION. See Dismissal and Nonsuit. ADULTERATION. See Food, 14; Statutes, 1101⁄2. ADULTERY. See Appeal and Error, 1056: Divorce, 303; Husband and Wife, 279. ADVERSE POSSESSION. See Eminent Domain, 84; Municipal Corporations, 648; Trusts, 138; Vendor and Purchaser, 130. I. NATURE AND REQUISITES. (A) Acquisition of Rights by Prescription in General. 8(2) (Pa.) The long existence of encroach I. GROUNDS AND CONDITIONS PRE- ments upon a public highway is no defense to CEDENT. (Pa.) Pennsylvania Const. art. 3, § 21, providing that no act of the General Assembly 106 A.-57 a proceeding to compel their removal, as the statute of limitation does not run against the public.-City of Pittsburgh v. Pittsburgh & L. E. R. Co., 106 A. 724. (897) (E) Duration and Continuity of Posses sion. AMICUS CURIÆ. 40 (Pa.) Where plaintiff claims title by ad- See Highways, 107. verse possession, he must show a continued or unbroken possession for the full 21 years, and proof of an adverse holding during 1 year is wholly insufficient.-James v. Bream, 106 A. See Husband and Wife, 151; Statutes, 722. (G) Payment of Taxes. 88 (Pa.) Assessment and payment of taxes do not prove title, but are circumstances tending to support a claim of possession.-James v. Bream, 106 A. 722; City of Pittsburgh v. Pittsburgh & L. E. R. Co., 106 A. 724. 93 (Me.) Plaintiff in trover for the conversion of timber from his land, and his predecessors in title, claiming under recorded deeds, having paid all taxes for more than 20 years, are protected by Rev. St. c. 110, § 18, against defendant's claim to the land set up under deeds from the heirs of the father of the first grantor in plaintiff's chain of title, acquired by defendant after suit brought.-Sproul v. Cummings, 106 A. 342. II. OPERATION AND EFFECT. (B) Title or Right Acquired. 104 (Me.) In absence of record of a previous deed from a father to his son, the first grantor in the chain of title of plaintiff suing for conversion of timber cut from the land, more than 35 years' uninterrupted possession of the property by plaintiff and his grantors created presumption that formal instruments of title once existed, even if they could not be found. Sproul v. Cummings, 106 A. 342. In such case, defendant had the burden to rebut the presumption of the existence of such deeds.-Id. III. PLEADING, EVIDENCE, TRIAL, 114(1) (Pa.) Evidence in ejectment against holder of record title based upon plaintiff's adverse possession held insufficient to sustain a judgment and verdict for plaintiff.-James V. Bream, 106 A. 722. AFFIDAVITS. 121. ANIMALS. ANNUITIES. See Wills, 686, 821, 823. APPEAL AND ERROR. See Certiorari; Constitutional Law, 56; 133. For review of rulings in particular actions or proceedings, see also the various specific topics. I. NATURE AND FORM OF REMEDY. 2 (Pa.) The decision of the county court of Allegheny county, "opening, vacating, or striking off" a judgment, is reviewable, under Act May 20, 1891 (P. L. 101), notwithstanding act antedates the acts creating the Superior Court and the county court of Allegheny county.-Carr v. Etna Accident & Liability Co., 106 A. 107. 6 (Me.) Rulings of supreme court of probate denying appealing will contestant's claim of right of opening and closing, and admitting testimony offered by proponent to make formal proof of will, were not findings of fact, and if erroneous and prejudicial, exceptions, as aunot discretionary, but rulings of law, so that, thorized by Rev. St. c. 82, § 55, afforded conpriate, remedy, having been an opinion and testant a proper, and perhaps the only approdirection in a civil proceeding of the court held by one justice.-Appeal of Rawley, 106 A. 120. 9 (Conn.) Failure of trial court to direct verdict is not assignable error, the party aggrieved by such failure having his remedy by motion for new trial on the ground that the verdict is against the evidence.-Kiely v. Ragali, 106 A. 502. 14(2) (Pa.) Where the Supreme Court reverses a judgment n. o. v., a subsequent appeal See Appeal and Error, 1058; Bills and will be allowed the losing party if he desires Notes, 485; Contracts, 346; Execu- to have reviewed exceptions taken by him at tors and Administrators, 111; Husband the trial.-Jaras v. Wright, 106 A. 798. 125; Judg311; Towns, and Wife, 295; Injunction, ment, 652; Partnership, 61. III. DECISIONS REVIEWABLE. (A) Courts and Other Tribunals Subject to Review. 32 (Me.) In view of Rev. St. c. 67, § 31, creating supreme court of probate, no appeal from such court will lie to the law court; the jurisdiction in proceedings of the supreme court of probate being clearly defined by statute, and no provision being made, by statute, for such appeal.-Cotting v. Tilton's Estate, 106 A. 113. (D) Finality of Determination. 66 (Vt.) Leave granted to defendants to appeal in chancery proceedings cannot enlarge the right of appeal conferred by G. L. 1561.-Pease v. Edgerton, 106 A, 438. 78(83) (Md.) An order overruling a demurrer to an entire petition was a final decree from which a party had a right of appeal.-Pressler v. Pressler, 106 A. 686. bills are clearly interlocutory orders from which 87(5) (Me.) The right of opening and closing is a legal right, not a mere matter of judicial discretion, and, unless clearly shown to |