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"some other source of supply." 12. Whether the provision
This the plaintiff did at an in-
creased cost of $7,000. The
court directed a verdict for the
amount claimed, after requesting
counsel to indicate whether
there was any jury question in
the case, and receiving no reply.
In this situation, the only ques-
tion presented in the case, was
the issue of impossibility of per-
formance, presented by the plead-
ings, and under the circum-
stances impossibility of perform-|
ance presented no valid defence.
Transparent Rub. Works V.
Internat. Glass Co.,

461

496

con

tained in clause V of the "uniform" building contract for an audit by the architect of the "expense incurred" in finishing after abandonment by the builder, was or was not a condition precedent in the case sub judice not decided;" it being held that even if it was, a completion contract having been entered into and the suit being for the expense SO incurred and the answer not specifying any condition precedent the performance of which was to be contested, the general allegation of the complaint that all conditions precedent had been performed was conclusive, and the completion contract should have been admitted in evidence to establish the "expense incurred" in finishing.

Ib.

10. Where one of two parties to an agreement to exchange real estate has sold his property to a third party, the other party. while relieved from making a tender of a deed of his property. is not relieved from the duty of establishing that he was able 13. Under the facts and circumand ready to perform his part of the undertaking. in order to recover damages for a breach of the contract. Caporale v. Rubine, 463

11. Whether a provision in a contract is a condition precedent or a condition subsequent depends upon the intention of the parties disclosed by all the provisions of the contract as applied to its

as

stances, and the letters which passed between the parties, the question presented was to whether the contract of hiring of the plaintiff, contemplated a contract at will or by the week or for a year. Held, to be a contract for a yearly hiring, and properly construed as such by the trial court. Lyons v. Pease Piano Co. 592

See also LEGACIES, 1, 2.

Conveyances.

CONVEYANCES.

Crimes.

COSTS.

1. The assumption, by the grantee 1. Comp. Stat., p. 2296, ¶ 43, pro

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2. When by agreement a party contracts to convey certain land to another, and the other agrees to convey certain land to the former and to pay the difference' in value by the giving of a mortgage to the former upon the land, to be conveyed to the second party, the agreement is one for a sale, not an exchange; and the deeds to be executed and delivered by and between the parties are not those of an exchange, but of bargain and sale, by which an estate in fee may be granted. Haber v. Goldberg, 367

3. When land is conveyed to a railroad company "to have and to hold the same for the

purposes of the said railroad for and during the continuance of the said railroad, to their only, use, benefit and behoof forever," the company takes a base or qualified fee therein, its estate. however, being determined only if and when its railroad shall have ceased to exist. Camden, &c., Land Co. v. W. J. & S. R. R. Co., 385

4. So long as the estate of the grantee. in a deed conveying a base or qualified fee, remains in him, no right of entry exists in favor of the grantor.

Ib.

viding for double costs, does not apply to a case commenced in the Supreme Court, in which the plaintiff had a verdict and on plaintiff's appeal to the Court of Errors and Appeals, the judgment was affirmed. The rule under which costs are recovered is stated in the case of Lehigh Valley R. R. Co. v. McFarland, 44 N. J. L. 674. Fidelity & Deposit Co. v. Brock's Garage, 239

2. If a non-resident plaintiff neglects to file security for costs within a reasonable time after due demand therefor, and does not take any steps in the cause to speed its prosecution, the court may in its discretion order a judgment of nonsuit. The plaintiff cannot, by refusing to file security for costs, hold the defendant subject to the further prosecution of the suit for an indefinite period, and the consequent possibility of the loss of evidence necessary to his defence. Sheehan v. LaBelle Co., 315

CRIMES.

1. A person who sets fire to a building of which he himself is the occupant, although not the owner, cannot be convicted of burning such building under section 124 of the Crimes act. which declares that "Any person who shall wilfully or maliciously burn, or cause to be burned, any barn, stable, or other building of another. not parcel of a dwelling house * * * shall be guilty of a high misdemeanor." The words "of another" are intended to indicate

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mission, tamper with the meter 2. A party is in no position to

of any water company, with in-
tent to defraud, shall be guilty
of a misdemeanor, is complete
when the work of tampering has
been finished, and the offence is
outlawed two years thereafter.
State v. Rudner,

complain of matters which the
judge omitted to charge the jury,
unless the judge's attention was
directed thereto by a request and
such request was refused.

Ib.

20 3. On the trial of an indictment for
conspiracy to cheat and defraud,
it is a proper procedure for the
state to prove the character of
the unlawful means adopted by
the defendants to
carry into
effect the conspiracy charged in
the indictment, even though
those particular unlawful means
are not set forth in the indict-
ment, and in themselves consti-
tute an indictable offence. SO
long as they are related to the
subject-matter of the indictment.

3. In a prosecution for obtaining
money, &c., by false pretence,
under section 186 of the Crimes
act (Comp. Stat., p. 1800), it
is not essential that the person!
upon whom the cheat was
practiced be the actual owner of
the money or goods; it is suffi-
cient if he had lawful possession
of the same. State v. Samaha,
125

Ib.

4. It is no effectual shield to an
accused that the false pretence'
occurred in a contract of sale 4. Only the general reputation of

which could not lawfully be en-
forced, because made on a Sun-
day.
Ib.

CRIMINAL LAW.

a defendant can properly be put
in evidence and particular facts
and circumstances tending to
establish honest dealings or con-
duct are inadmissible.
Ib.

1. On the trial of an indictment for 5. A court cannot legally substi-
conspiracy to cheat and defraud,||
testimony tending to prove other
acts of the defendants, in pur-
suance of an unlawful agree-
ment, with persons other than,
those mentioned in the indict-
ment, but which acts were sim-
ilar in character and occurred
during the same period of time,
is properly admissible in evi-
dence for the purpose of prov-

tute its judgment for that of the
jury and exclude testimony from
the latter's consideration. upon
the theory that its evidential
value is weak, without depriving
a defendant of a constitutional
right to the benefit of such tes-
timony, and a jury of one of its
most sacred functions-to weigh
the testimony and make deduc-
tions therefrom.
Ib.

Criminal Law.

Criminal Law.

ment for murder is not an absolute right of the accused under the statute of 1917 (Pamph. L., p. 801) and a refusal by the court to accept such a plea, when tendered, is not an error subject to review. Such a plea is not efficient until accepted, and its acceptance rests in the discretion of the court. was v. Martin,

State 436

6. On the trial of an indictment||9. A plea of non vult to an indictfor conspiracy to cheat and defraud, testimony showing that an alleged conspirator, who had turned state's evidence and upon whose testimony the state relied for conviction, was addicted to the excessive use of liquor to such an extent that he would be incapacitated for weeks at a time, during which he mentally incompetent and incoherent, and that those facts were known to the defendant, is admissible for the purpose of having the jury pass upon the probability of a man allying himself with a man whose drunkenness might, at any moment, have made him indiscreet and thereby liable to disclose the fraud that was being perpetrated. Ib.

7. An indictment of a licensing body for misfeasance in office. in corruptly acquitting P. of Sunday sale of liquor in violation of section 10 of the act of 1889, page 82, as amended by Pamph. L. 1906, p. 201 (the "Bishops' act") fails to charge a crime without averments (a) that P. was in fact guilty of such offence; (b) that defendants were satisfied by the evidence of his guilt; (c) that they voted to acquit with some specific intent incompatible with|| the due administration of justice. State v. Close.

303

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10. A recommendation by the jury that the punishment of one convicted of murder of the first degree shall be imprisonment for life, is no part of the verdict of conviction, for the recommendation is only allowed after the jury has agreed upon its verdict of murder of the first degree. The facts upon which the conviction rests have no necessary connection with the recommendation, and an instruction to the jury that they may consider the testimony, to which their attention is specifically called, tending to show the character of the crime and also its effect upon society if a recommendation be made, in determining the question of recommendation, is not a permissible comment on evidence, for the recommendation is discretionary and requires no consideration of the facts upon which the conviction is based. No facts being necessary to justify the exercise of the discretion, there are none to comment on in that matter, and a charge concerning the facts. which tends to influence the jury on the question of recommendation cannot be excused upon the ground that it is a mere comment on the testimony.

Ib.

Criminal Law.

Damages.

11. The defendant in a homicide 15. When the integral part of the

case requested the court to charge that if the jury found) him guilty of murder in the first degree, they might at the same time recommend imprisonment for life. This was refused except as charged. The court had charged, in substance, as requested, but followed it by an instruction which might tend to influence the jury against a recommendation, and minimize the effect of the request. Held, that the request was proper, and was not complied with by the instructions given. Ib.

12. The right given by the statute to a jury to recommend imprisonment for life upon a conviction of murder of the first degree, is subject to no restrictions" and need not rest upon any testimony, being within the unlimited discretion of the jury, and any instructions by the

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HUSBAND AND WIFE.

553

court which tend to influence See also CONSPIRACY, 1, 2, 3, 4, 5. that discretion in any way, is beyond the power of the court and is erroneous.

Ib.

13. Where a defendant is charged,

in separate indictments, with

DAMAGES.

robbery and murder, the murder 1. Damages chargeable to a wrong

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doer must be shown to be the natural and proximate effects of his delinquency. The term "natural" imports that they are such as might reasonably have been foreseen, such as occur in an ordinary state of things; the term "proximate" indicates that there must be no other culpable and efficient agency intervening between the defendant's dereliction and the loss. Justesen v. Penna. R. R. Co., 257

14. By the term "same offence" is not only meant the same offence as an entity and designated as such by legal name, but also any integral part of the offence which may subject an offender 2. Although physical sickness may to indictment and punishment.

Ib.

result from mental worry produced by the wrongful act of

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