nection with the clause providing for the filling of vacancies, which modified the language of the previous provision. The Constitution merely states how the clerks of counties are to be elected, and how long they shall hold office. It does not state that there shall be an election for clerks at certain general elections, which elections shall be separated by a period of five years. Nothing in the Constitution prevents the election of a clerk at any general election for members of assembly, save the fact that there will be no vacancy to which the candidate can be elected. When however, an incumbent dies, there is a vacancy; and another elected at any general election thereafter, so far as the language of the Constitution controls, is the de jure clerk. The exercise by the Governor of his constitutional power to fill this vacancy in no way impairs the right to elect at the ensuing general election, for the Constitution itself provides that the appointment shall expire when a successor is elected and qualified.

We are therefore of the opinion that there should be judgment for the relator.

(77 N. J. L. 10)

ZDANCEWICZ v. BURLINGTON COUNTY TRACTION CO.

(Supreme Court of New Jersey. Nov. 9, 1908.) 1. CONTRACTS (§ 28*)-REQUISITES-VALIDITY OF ASSENT.

One who enters into a written contract, without fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect.

[Ed. Note. For other cases, see Contracts, Dec. Dig. 28.*]

2. RELEASE ($ 34*)-REQUISITES-VALIDITY.

A release under seal of a claim for personal injuries is a bar to an action for such injuries, unless obtained by fraud or deceit.

[Ed. Note.-For other cases, see Release, Cent. Dig. § 82; Dec. Dig. § 34.*]

3. RELEASE (§ 58*)—QUESTION FOR JURY-VA

LIDITY.

Evidence held insufficient to go to the jury on the question whether a release pleaded by defendant in an action for personal injuries was obtained by fraud and deceit.

[Ed. Note.-For other cases, see Release, Cent. Dig. $ 109-114; Dec. Dig. § 58.*]

Action by Joseph Zdancewicz against the Burlington County Traction Company. Rule to show cause why a verdict directed for defendant should not be set aside. Rule discharged.

Argued June term, 1908, before GUMMERE, C. J., and TRENCHARD and MINTURN, JJ.

George M. Bacon and G. Dore Cogswell, for plaintiff. Gaskill & Gaskill, for defendant.

GUMMERE, C. J. This action was brought to recover damages for injuries received by the plaintiff while upon one of the cars of

the defendant company, and which he averred were due to carelessness in the operation of the car. The defendant pleaded the general issue, and also a release under seal executed by the plaintiff. The plaintiff replied to the plea of a release, denying that he had executed such a writing, and, further, that the release had been obtained from him by fraud and covin. At the trial of the cause, after the plaintiff had put in his case, and the defendant had proved the execution of the release by the plaintiff, and the circumstances attending it, the court suspended the putting in of the defendant's proofs on the question of its alleged negligence, until after hearing the rebutting testimony of the plaintiff on the subject of the execution of the release. When that proof was in, the court advised counsel for the defendant that it was unnecessary to submit evidence on the question of negligence, as the release constituted a complete defense to the action, and thereupon directed a verdict for the defendant. The plaintiff now insists before us that, in taking the case from the jury, the trial court erred, and that, for this reason, the rule to show cause should be made absolute.

The plaintiff admitted the signing of the release. The proof offered by the defendant on the subject of its execution consisted of the testimony of Mr. Eckhard Budd, the at torney of the company, and that of Dr. Prickett, a surgeon at the hospital to which the plaintiff had been taken after the accident, and who was in attendance upon him. Mr. Budd's testimony was: That, as a re sult of instructions received by him from one of the officers of the company, he prepared a written release of all claim which the plaintiff might have against the company, in con sideration of the payment of $100 by the latter to the former; that he took the draft of the release and $100 in cash to the hospital, and there had an interview with the plaintiff in the presence of Dr. Prickett. He thus states the interview: "The minute that I came into the room, and I sat at the foot of the bed, this man (i. e., the plaintiff) said, 'Who is that man? Dr. Prickett spoke up and told him that I was the lawyer that represented the trolley company, and then I spoke up and said that I was the lawyer that represented the trolley company, that I had been told he wanted to settle any claim he had against the company for $100, and I asked him if that was right, and he said it was. I then said I had a release which I would read, and I read this release through. When I got through, I said to him, 'Do you understand that release?' And he said-I don't remember whether he said no, or that he didn't know. I then handed the release to Dr. Prickett, and said, 'Doctor, you take that release and read it slowly to him, section by section, and ex

plain it to him.' So the doctor took the release up and read it to him, and as he read it he told him what that meant in English, stripped of its legal verbiage, and when he got through he says, 'Do you understand it? And he said, 'Yes.' Then he, of his own volition, made a remark, and I think I remember his exact words, because I was very careful about this, and because I wanted to have it all straight. He then said, when Dr. Prickett asked him, 'Do you understand this?' 'I want put in there they give me work.' The release had nothing in it about work. It was a straight release for so much money, and after Dr. Prickett had read the release to him, and asked him if he understood it, without any suggestion from Dr. Prickett, or from me, he said in answer to that question, immediately after the reading and explaining of the release, 'I want put in there they give me work.' Dr. Prickett then told him that the trolley company could not do that, and explained to him why, and then I told him that this trolley company might be sold some time, and that they could not have anything like that put in as a thing that would hang over them, and that if he signed this release he would get the $100, but that I would not assure him he would get work. And he then-this right arm that was cut off, if I remember right, was bandaged up, and it was kind of sticking up-and kind of looking down toward this arm he made some remark about it, that he could not work with this arm off. I don't remember the exact sentence that he used in reference to that, and I told him that I was very sorry, but that the trolley company could not guarantee him work; that, as far as I was concerned individually, I would do what I could to have the trolley company employ him, but that if he signed this paper he would get the $100, and that would be all he would ever get from the company for losing his arm. I then said to him 'Now, do you understand?' And he said, 'Yes.' And I held this $100 up, and I said, ‘if you sign this paper, you get the $100, and you can never get any more from the trolley company.' He said, 'I understand.' He then made his mark, I think, to the paper." Mr. Budd is corroborated in every particular in his statement of what was said by himself, Dr. Prickett, and the plaintiff, on the occasion of the execution of the release, by the testimony of Dr. Prickett. Nor does the plaintiff, as I read his testimony, deny that Mr. Budd and Dr. Prickett made the statements and explanations to him which they testified to. His story was that he did not understand what was said by them, that he supposed the paper was a receipt for sick benefits which he was entitled to receive from a benevolent society of which he was a member, and that he signed it under that belief. He did not even deny that he made

the replies which Mr. Budd and Dr. Prickett testified to, except so far as his statement that he did not understand what was said to him by them is such a denial.

The rule of the common law that a party who enters into a contract in writing, without any fraud or imposition being practiced upon him, is conclusively presumed to understand and assent to its terms and legal effect, is in full force in this state. Its application led the Court of Errors and Appeals, in the case of Fivey v. Pennsylvania R. R. Co., 67 N. J. Law, 627, 52 Atl. 472, 91 Am. St. Rep. 445, to hold that a release similar in form to that in the present case constituted a complete bar to an action for personal injuries, unless obtained by fraud or deceit. Fully understanding that such was the law, plaintiff's counsel replied for his client denying the execution of the release, and also averring that it was obtained through fraud and covin. The signing of the release, as has already been stated, was admitted by the plaintiff at the trial. The only question, consequently, to be considered in the determination of this rule, is whether there is anything, in the proofs submitted, upon which fraud or deceit in obtaining the release may be predicated. The only persons who have any knowledge of the facts and circumstances attending its execution are the plaintiff, Mr. Budd, and Dr. Prickett. The testimony of the three makes it manifest that no fraud or deceit was practiced by the defendant, or any one representing it. The plaintiff's belief (which, in disposing of this rule, we assume he entertained) that the paper he signed was a sick benefit receipt was not induced by anything which was said to him on the occasion of his signing. He said nothing, either to Mr. Budd or to Dr. Prickett, to indicate that he did not fully understand the contents of the paper or its purpose. The case being barren of any evidence which tends to support the averment of the plaintiff's replication that the release pleaded by the defendant was obtained by fraud and covin, the trial court was justified in directing a verdict for the defendant. Fivey v. Pennsylvania R. R. Co., supra. The rule to show cause will be discharged.

(77 N. J. L. 195)

CORKRAN et al. v. TAYLOR. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. COURTS (§ 169*)-JURISDICTION-AMOUNT— SET-OFF.

In an action in the district court to recover $204 for services performed, a notice of recoupment of damages to the amount of $710 for defective work was properly stricken, as exceeding the jurisdiction of the court.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 422; Dec. Dig. § 169.*]

2. EVIDENCE (§ 354*)-BOOK ACCOUNTS. Books of account made up in the usual course of business from written reports of work

done and materials used are competent, with or without the reports themselves, to prove a claim for the labor and materials.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1457; Dec. Dig. § 354.*]

3. EVIDENCE (§ 376*)-BOOK ACCOUNTS—Au

THENTICATION.

In an action for labor and materials, it was error to permit items from plaintiffs' ledger to be read before it had been properly proved and marked in evidence.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1628-1647; Dec. Dig. § 376.*] 4. APPEAL AND ERROR (§ 1052*)—HARMLESS ERROR-PREJUDICIAL EFFECT.

Error in reading in evidence items from plaintiffs' ledger, before it was properly proved, was harmless, where the ledger was afterwards proved and the items properly admitted in evi. dence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4174; Dec. Dig. § 1052.*] 5. TRIAL (§ 413*)-CORRECTION OF ERROR-EXCLUSION OF EVIDENCE.

In an action for labor and materials, where the court refused to allow the cross-examination of a witness as to plaintiffs' system of bookkeeping on the introductory part of the examination, but stated he might be examined later, and afterwards permitted a full examination, when the desired evidence was fully brought out, there was no error in refusing to allow the questions on the first part of the examination.

[Ed. Note. For other cases, see Trial, Cent. Dig. 978; Dec. Dig. § 413.*]

6. WITNESSES (§ 267*)-EXAMINATION-DISCRETION OF TRIAL COURT-SCOPE OF CROSSEXAMINATION.

In an action for services in repairing defendant's automobile, the exclusion of a question as to the proper method of fitting the bearings, addressed to a witness called to prove plaintiffs' account books, and to testify generally to the manner of doing the work under his supervision, but not as an expert, was not an improper exercise of the trial court's discretion in limiting the scope of the cross-examination, though it might have been allowed.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 923-930; Dec. Dig. § 267.*] 7. EVIDENCE (§ 242*)-ADMISSIONS BY AGENT -AUTHORITY TO MAKE.

In an action for services in repairing an automobile, a question to defendant as a witness as to what one of plaintiffs' employés had told him as to the compression of the machine was properly excluded; the nature of the employment of such employé not showing that he was employed to make statements for plaintiffs, so that his statements would not bind them.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 893-907; Dec. Dig. § 242.*] 8. TRIAL (§ 296*) INSTRUCTIONS ERROR CURED BY SUBSEQUENT INSTRUCTIONS.

In an action for repairs to defendant's automobile, defendant claiming that the work was defective in part, an instruction calling attention to the evidence that a general overhauling had been given the machine, and that defendant conceded some work to have been done in addition to the defective work, and expressing the opinion that some value had been received by defendant for the repairs, though it might have been objectionable by itself, was cured by a subsequent instruction that whether any work was performed for defendant which should be paid for was for the jury.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-718; Dec. Dig. § 296.*]

Appeal from District Court of Atlantic City.

Action by Henry W. Corkran and William Meloney, trading as Corkran & Maloney, against Samuel C. Taylor. From a judgment for plaintiffs, defendant appealed. Affirmed.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Bourgeois & Sooy, for appellant. Eli H. Chandler, for appellees.

PARKER, J. The appellant; defendant below, employed the plaintiffs to give his automobile a general overhauling, and disputed their bill on the ground of defective work. Plaintiffs having sued in the district court to recover the amount of their bill, $204, defendant filed a small set-off, which was allowed at the trial, and also a notice of recoupment of damages for alleged defective work, amounting to $710.49, which was properly struck out as exceeding the jurisdiction of the court. Kienzle v. Gardner, 73 N. J. Law, 258, 63 Atl. 10. There was a verdict and judgment for plaintiffs, and defendant appeals.

Some 13 reasons are assigned for reversal, all of which, except the last, relate to questions of evidence. Several of these, which bear on the use of the plaintiffs' books of account as evidence, may be considered together. It appeared that besides the usual day book and ledger, which were offered in evidence, plaintiffs used a system of time slips on which the workmen made entries of work done, and of time consumed and materials used in doing it. The defendant objected to the books without the slips, and after some colloquy the court admitted the books and the slips also; defendant objecting to them all. The fifth and sixth reasons raise this point, which is fully disposed of in Corkran v. Rutter (N. J. Sup.) 69 Atl. 954, decided since the trial of this case, and in which the system used by these very plaintiffs was considered, and it was held that the books were admissible with or without the time slips. That the books with the slips were admissible had been previously settled in Diament v. Colloty, 66 N. J. Law, 295, 49 Atl. 445, 808.

It is next objected that the court permitted items from the plaintiffs' ledger to be read to the jury, when said ledger had not been properly proved and had not been marked in evidence. This was undoubtedly a technical error; but as the ledger was afterwards proved and, as we have just held, properly admitted in evidence, and the items therein might then have been read to the jury, no harmful error was committed by anticipating the proper time to read them.

Another reason assigned is that the court refused to allow defendant's attorney to cross-examine witness Meloney as to plain

tiffs' system of bookkeeping. The court did so refuse, on the introductory part of the examination, but expressly stated to counsel that he might do so later, and actually did permit full cross-examination afterwards. The point which defendant apparently desired to draw out was the use of a system of time slips, which appeared clearly, and which has already been considered. We think no error was committed, under the circumstances.

Three other reasons are based on the refusal of the court to allow witness Meloney to be asked whether he considered the use of emery a good method of fitting on brass bearings, and whether, if emery had been used, it would have been possible to clean it out afterwards except by scraping. Meloney had not been called as an expert. He was called to prove the shop books of the plaintiffs, of which he had charge, and also testified generally as to the doing of the work under his supervision. In this aspect, the court might in its discretion have allowed the questions; but we think they were fully within the discretion of the judge in limiting the scope of cross-examination, and that no complaint can be made because that discretion was exercised to their exclusion.

The court also overruled a question asked of defendant when sworn as a witness, by his attorney, as to what statement was made to him by a Mr. Thompson as to the compression of the machine. This question was properly overruled. Thompson was an employé of the plaintiffs, who had worked on the machine; but it was not made to appear that he was employed to make statements in their behalf, or that his employment was of such a character as to give rise to that inference. Hence his statements would not be binding on them. Huebner v. Erie R. R., 69 N. J. Law, 327, 55 Atl. 273; Hill v. Adams Express Co., 74 N. J. Law, 338, 68 Atl. 94.

Three other reasons based on rulings as to evidence are not pressed, and so will not be considered. The twelfth reason challenges the allowance by the court of a hypothetical question to the witness Smith, who was called as an expert mechanic. The ground of challenge is that the hypothesis embodied in the question was broader than the evidence warranted. We have examined the evidence and have come to the conclusion that it fairly warranted the framing of the question in form as put.

The last reason relates to an instruction by the judge to the jury, in effect, that some verdict for the plaintiffs must be returned. The court charged, and we think properly, that, as the recoupment had been struck out as exceeding its jurisdiction, all counterclaim by the defendant for damages by reason of defective work must be relegated to such new suit as defendant might bring in another court, and therefore should not be con

sidered by the jury in abatement of whatever might be due plaintiffs for work properly performed on the machine and by which defendant benefited; and calling attention to the evidence that a general overhauling had been given to the machine by plaintiffs, and that defendant conceded certain work to have been done outside of the alleged defective work for which the counterclaim was made, expressed the opinion that some value had been received by the defendant for the repairs put on the machine by the plaintiffs. Taken by itself, this instruction might be objectionable, though we are inclined to think the evidence supported it; but in any case the court elsewhere left it distinctly to the jury to say "whether any service was performed by the plaintiffs for the defendant on his machine which was worthy of pay." Taken in connection with this instruction, the remark objected to appears to be mere comment and not prejudicial to the defendant. Finding no error on the whole case, the judgment will be affirmed.

In re LEHIGH VALLEY R. CO. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. TAXATION (§ 47*)-RAILROADS-LOCAL TAX

ATION.

A local tax on railroad property used for railroad purposes must be canceled in a proceeding under the statute to determine whether the local assessment or the assessment of the State Board of Assessors is correct.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. § 108; Dec. Dig. § 47.*]

2. MUNICIPAL CORPORATIONS (§ 966*)-LOCAL TAXATION PROPERTY SUBJECT-RAILROAD PROPERTY.

A pier of a railroad was used as a warehouse for freight discharged from cars, preparatory to being shipped by lighters and barges. Flour was about the only commodity put on the pier, and the flour delivered there was chiefly consigned to a single firm, who used the pier for the purpose of blending the flour consigned to them. They had no lease on the pier, but were charged for demurrage as other consignees, and were allowed to have the machinery of the pier without any charge therefor. Held, that the pier was used for other than railroad purposes, and was subject to local taxation.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 2065; Dec. Dig. § 966.*]

In the matter of the Lehigh Valley Railroad Company to review tax assessments on its property. Local taxes affirmed in part, and reversed in part.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Collins & Corbin, for Lehigh Valley R. Co. James J. Murphy, for Jersey City.

PER CURIAM. This case is a case of double taxation for 1904-05, on railroad property in Jersey City. It has been taxed both by the State Board of Assessors and

the city assessors, and this proceeding is taken under the statute, before three justices, to determine which assessment is correct. For the year 1904, Pier E alone is inFor 1905, Warehouse on Pier G volved. and Pier I are also involved. But as to the two latter no contention was made by the city on the argument, and it appears to concede that this property was used for railroad purposes. The local tax thereon for

1905 should be canceled.

The only question now involved therefore is whether Pier E is used for railroad purposes, so that it is taxable by the State Board of Assessors, or whether it is not used for railroad purposes and is taxable by the city of Jersey City. The evidence shows that it is used as a warehouse pier for the handling of freight, which is discharged from cars, preparatory to being transhipped by lighters and barges to different points in New York Harbor. Flour is about the only commodity put on Pier E, and the flour delivered there is consigned to a single firm of consignees, who use the pier for the purpose of blending the flour that comes consigned to them. The consignees have no lease of the pier, but are charged for demurrage just as other consignees, and they are allowed to have machinery upon the pier without any charge therefor. Some flour for other parties also goes on this pier, but it is a small percentage. The original packages are sometimes emptied on the pier, no doubt, for the purpose of blending.

We think that these

facts indicate that the pier is used for other than railroad purposes, and that it is therefore subject to local taxation, and the case is governed by In re Erie Railroad Company, 65 N. J. Law, 608, 48 Atl. 601.

It was therefore assessable by Jersey City, and the assessment should be affirmed.

(76 N. J. L. 251)

ZIMMERMAN v. HUDSON & M. R. CO. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. EMINENT DOMAIN (§ 234*)-RAILROADSASSESSMENT OF DAMAGES-REPORT-CERTIORARI-GROUNDS.

Sec

Revised Railroad Act 1903 (P. L. p. 645) § 13, provides that proceedings to condemn shall be had pursuant to P. L. 1900, p. 79. tions 5 and 6 whereof provide for the appointment of commissioners to examine the property and to make an equitable appraisement of its value, and an assessment of the amount to be paid for such land or other property, etc. Held, that the commissioners are simply to ascertain what sum is an equivalent for the whole right to be acquired, and the whole injury to be inflicted, leaving to other tribunals the distribution of the fund among the claimants of particular estates and interests, and hence certiorari by a lessee will not lie to review the action of commissioners on the ground that they reported the damages in a lump sum, instead of making separate awards to the lessee for his leasehold interest and to the owner of the fee.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 596, 597; Dec. Dig. § 234.*]

2. EMINENT DOMAIN (8 264*)-PROCEEDINGS TO TAKE PROPERTY AND ASSESS COMPENSATION-REVIEW ON CERTIORARI.

Whether a tenant of lands sought to be acquired by a railroad corporation, organized under the act concerning railroads, is entitled to appeal from an award of commissioners in condemnation proceedings; whether mandamus will lie to a circuit court to compel it to frame an issue on appeal from the award; and, if it will, then whether such a writ ought to be allowed to an applicant for certiorari to review the action of commissioners on the ground that they failed to make a separate award to applicant for his leasehold interest-are questions which ought not to be determined on a preliminary application for certiorari, but on formal hearing and full argument.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. & 689; Dec. Dig. § 264.*]

Condemnation proceedings by the Hudson & Manhattan Railroad Company against Sam. uel Zimmerman. Application by defendant for certiorari to review the action of the commissioners, and for rule to show cause why mandamus should not issue to compel the framing of an issue. Certiorari denied, and rule to show cause allowed.

Argued February term, 1908, before GUMMERE, O. J., and BERGEN and MINTURN, JJ.

J. Merritt Lane, for the rule. Collins & Corbin, opposed.

GUMMERE, C. J. Zimmerman, the appli cant in this matter, seeks a certiorari to review the action of commissioners appointed in a condemnation proceeding, instituted by the Hudson & Manhattan Railroad Company, to acquire a tract of land owned by one Hill and in the possession of the applicant under a lease which does not expire until 1910. The ground of the application is that the commissioners erred in reporting the value of the property taken, and the damages sustained by the taking, in a lump sum, instead of making a separate award of the moneys to be paid to the applicant for his leasehold interest, and of the amount to be paid to Hill, the owner of the fee.

The revised railroad act of 1903 (P. L. p. 645), under which the company exercised the right of eminent domain, provides in the thirteenth section that the proceedings to condemn shall be had pursuant to "an act to regulate the ascertainment and payment of compensation for property condemned or taken for public use." P. L. 1900, p. 79. The fifth and sixth sections of that act provide that commissioners shall be appointed "to examine and appraise the said lands or property and to assess the damages," and that they shall "proceed to view and examine the land, or other property, and make a just and equitable appraisement of the value of the same, and an assessment of the amount to be paid by the petitioner for such land, or other property, and damage aforesaid." This enactment is almost an exact transcript