determine to whom the credit was actually given.

This conclusion entirely obviates the necessity of considering whether the written memorandum or promise proved by the plaintiff was a sufficient contract, under the statute of frauds, to constitute a binding .obligation on the part of the defendant to pay the debt of another. Whether the undertaking was an original or collateral one was for the jury, and this position being taken prevented a nonsuit.

No error has been discovered in the admission or rejection of evidence in case of the plaintiff.

The court has considered the assignment of error upon the admission of evidence of the loss of the written promise of the defendant for the groceries and meats furnished Mrs. McBride. The loss was distinctly proved, and the secondary evidence to establish its contents was rightfully admitted, under the general rules of evidence. The defendant admitted that some written paper had been signed by him, but denied that it was of the character which the plaintiff asserted. The evidence of the execution and existence of this writing, its loss, and the contents thereof was admissible to show the actual engagement of the defendant, aside from its admissibility to establish a written collateral promise under the statute of frauds.

But the learned trial judge in his charge submitted the case to the jury upon the question of the existence of a written promise by by the defendant, signed by him, to pay for the groceries and meat supplied Mrs. McBride at the time they were furnished. The charge states distinctly that the plaintiff founds his case on the ground that there was this written promise by the defendant, and, if that be found not to have been made by the defendant, the jury must find for the defendant. Presumably the case must have been tried before the jury upon this basis, for there appears no exception by the plaintiff to this statement in the charge. It will be perceived that the plaintiff asserted in his evidence that a promise in writing was made and signed by the defendant of this character. The defendant testified on the defense that he never made or signed any such promise. He testified that Mr. Gallagher sent Mrs. McBride to him to obtain information of whether he had been appointed guardian of the children, and that he, in response, took a piece of paper, and wrote on it as follows: "Mr. Thomas Gallagher-Dear Sir: I have been appointed guardian of these children." He swears that this is all the paper contained, and that it was the only paper received by Mr. Gallagher as coming from him. He says that he only promised to pay the bills from moneys received from the estate of the children, as their guardian, and not otherwise. It will be seen that between the plaintiff and the defendant there existed a clear conflict of

evidence upon the question whether the defendant gave a written promise to pay, and it presented a question for the jury to determine. The defendant, under this evidence, made the following request, to wit: "On the question whether the defendant did give a written memorandum or contract promising to pay, the jury must find for the defendant, unless they believe there is a preponderance of evidence that he did sign such a written memorandum or contract." This request was repeated in part in another request, and refused, and, by an examination of the whole charge, it will be seen that nowhere in it is there any reference made to the legal rule of proof that the burden is upon the plaintiff to establish the essential elements of recovery by a preponderance of proof. In this refusal to charge this request there was judicial error. The defendant was entitled, upon request, to have stated to the jury the rule of legal proof necessary to establish the case of plaintiff, and the principle that the fact or facts necessary and essential to a recovery by the plaintiff must be established in the minds of the jury by a preponderance of evidence is such an elementary one that it is concluded that in the haste of the trial the error was inadvertently committed. Whether the cause could have been submitted upon some other basis need not be considered. The case was submitted to the jury upon the basis that the engagement of the defendant, whatever it was, was one collateral in its character, and upon that basis the question for the jury to determine was whether there was such an engagement or promise in writing. On this question the burden of proof rested upon the plaintiff to establish such written contract or promise by a preponderance of evidence, and this was the legal rule of proof to be applied by the jury to the facts in order to reach a conclusion sustainable in law. If the evidence introduced and submitted to the jury left their minds in doubt upon this question, the verdict should have been for the defendant. If the evidence was evenly balanced, then the case was in the same position at the conclusion as it was in the beginning, and it must go against the party who has the burden. He who asserts a fact essential to a recovery must prove it by a preponderance of evidence, or, in other words, the preponderance of proof must be in his favor. 1 Best, Ev. p. 494, §§ 265-275, Morgan's notes; McKelv. Ev. § 31; Railroad Co. v. Binion, 98 Ala. 570-574, 14 South. 619; Thomp. Trials, § 1975; Lowe v. Massey, 62 Ill. 47; Prichard v. Hopkins, 52 Iowa, 120, 2 N. W. 1028. See cases, Stew. Dig. tit. "Evidence," p. 481. An erroneous instruction as to the burden of proof to the jury is ground for new trial. 2 Best, Ev. 8 638, Morgan's notes, and cases cited. The request should have been charged to the jury, and for this error the judgment must be reversed, and a venire de novo awarded.

GUMMERE, J. This writ is sued out for the purpose of reviewing certain proceedings in rem instituted before a judge of the court of common pleas of the county of Cumberland, under the provisions of the act of March 20, 1857, entitled "An act for the collection of demands against ships, steamboats, and other vessels" (2 Gen. St. p. 1961), by the Cox & Sons Company, against the steamer White Flyer, to enforce the lien given by that act for work done and materials furnished in repairing the boiler of said vessel while she was lying at her dock in Millville, that being her home port. The principal reason assigned for setting aside these proceedings is that the statute under which they are taken, so far as it provides for the enforcement of a lien for repairs to a vessel at her home port by proceedings in rem before a state tribunal, is void, for the reason that it conflicts with article 3, § 2, of the constitution of the United States, which declares that "the judicial power shall extend to all cases of admiralty and maritine jurisdiction"; and also with section 563, par. 8, Rev. St. U. S., which provides that the district courts of the United States shall have jurisdiction "of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, * * and that such jurisdiction shall be exclusive," etc. In support of the validity of the proceedings, it is urged that the contract upon which they are founded is not maritime in its nature, and consequently is not within the domain of admiralty jurisdiction; and, further, that, even if it be a maritime contract, nevertheless the proceedings are valid for the reason that, although congress is empowered, by the constitutional provision cited, to regulate the matter of repairs to vessels while lying in their home ports, and the rights of material men making the same, still they have not as yet done so, either by section 563, par. 8, Rev. St. U. S., or by any other legislation; that, until congress does act, the sev

eral states of the Union have the right to regulate these matters; and that, therefore, state statutes creating liens for such repairs, and providing proceedings in rem for their enforcement, are valid. Randall v. Roche, 30 N. J. Law, 220, decided by this court in 1862. is relied upon to support, and does support, the defendants' contention. In that case it was held that a contract for furnishing necessaries to a vessel was not maritime in its character, and that the lien given by the statute to secure payment for such necessaries was not a maritime lien, within the jurisdiction of the United States courts of admiralty, and that it was therefore enforceable in the courts of this state. The authority of this decision was, however, much shaken, if not entirely destroyed, by the subsequent decision of the court of errors and appeals, and afterwards of the supreme court of the United States, in the case of Edwards v. Elliott, 36 N. J. Law, 454; Id., 21 Wall. 532. But the whole question was finally put at rest by the decision of the United States supreme court in 1875, in the case of The Lottawanna, 21 Wall. 558. In that case, Mr. Justice Bradley, delivering the opinion of the court, after stating that it is entirely settled that material men furnishing repairs and supplies to a vessel in her home port do not acquire thereby any lien upon the vessel by the general maritime law as received in the United States, and that no lien therefor had been created by any act of congress, proceeds as follows: "It seems to be settled in our jurisprudence that, so long as congress does not interpose to regulate the subject, the rights of material men furnishing necessaries to a vessel in her home port may be regulated in each state by state legislation. State laws, it is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction, for it is a maritime contract, and they cannot alter the limits of that jurisdiction; nor can they confer it upon the state courts so as to enable them to proceed in rem for the enforcement of liens created by such state laws, for it is exclusively conferred upon the district courts of the United States. They can only authorize the enforcement thereof by commonlaw remedies, or such remedies as are equivalent thereto. But the district courts of the United States, having jurisdiction of the contract as a maritime one, may enforce liens given for its security, even when created by state laws." The same doctrine was reaffirmed in the later case of Norton v. Switzer, 93 U. S. 355. In view of these decisions of the United States supreme court, it is quite apparent that our act for the collection of demands against ships, steamboats, and other vessels, although unobjectionable in some of its provisions, is invalid to the extent that it attempts to provide for the enforcement of the lien given by it for making repairs to a vessel in its home port, by proceedings in rem instituted in a state tribunal, and that such

proceedings, when so instituted, are void. The proceedings under review will therefore be set aside, with costs.

STATE (NEW JERSEY ZINC CO., Prosecutor) v. HANCOCK, State Comptroller, et al. (Supreme Court of New Jersey. Sept. 6, 1899.)

TAXATION-EXEMPTIONS.

Where an absolute exemption from taxation is granted by the legislature to members of a certain class, the failure of a member of such class to communicate to the taxing officers the existence of the facts which entitle him to the immunity granted does not afford a valid ground for refusing to set aside a tax assessed against him.

(Syllabus by the Court.)

Certiorari by the state, at the prosecution of the New Jersey Zinc Company, against William S. Hancock, state comptroller, and others, to review a tax assessment. Tax set aside.

Argued February term, 1899, before DEPUE, VAN SYCKEL, and GUMMERE, JJ. R. V. Lindabury, for prosecutor. S. H. Grey, Atty. Gen., for defendants.

GUMMERE, J. The prosecutors are a corporation incorporated under the laws of this state. Their business is the mining of zinc ores, and the manufacturing of those ores into different commercial products. Over four-fifths of their capital stock is invested in the business of mining and manufacturing, which is carried on in this state. They seek, by this certiorari, to have set aside, as improperly assessed against them, a license fee or franchise tax, levied upon them in the year 1898 by the state board of assessors, under the provisions of "An act to provide for the imposition of state taxes upon certain corporations and for the collection thereof" (3 Gen. St. p. 3335). Section 4 of that act, after first imposing fixed annual license fees or franchise taxes upon certain specified corporations, proceeds to impose upon "all other corporations incorporated under the laws of this state an annual license fee or franchise tax of one tenth of one per cent. on their capital stock issued and outstanding," and commands such corporations to make an annual return to the state board of assessors of such information as may be required by said board to carry out the provisions of the act. By a proviso to this section, however, it is declared that "this act shall not apply to manufacturing or mining corporations at least fifty per cent. of whose capital stock, issued and outstanding, is invested in mining or manufacturing carried on within this state." It is undisputed that the prosecutors are within the exemption of this proviso. They failed, however, to comply with the direction of the statute to return to the state board of assessors such information as was required by them to carry out the provisions of the act, and it is claimed by the state that, as the assess

ment of the tax against them was due to their failure to make such return, they should not now be relieved from its imposition. The argument is that, whether or not the prosecutors were within the terms of the proviso was a matter exclusively within their own knowledge; that it was the duty of the board, under the act, in the absence of information as to how the prosecutors' capital stock was invested, to impose the tax; and that, as the tax was properly imposed by the board, it should not now be set aside by this court, because the prosecutors have seen fit to communicate. to it facts which it failed to lay before the board. The fallacy of this contention lies in its failure to give full force and effect to the words of the proviso, "this act shall not apply to," etc. The exemption of the prosecutors is absolute. It is not conditional upon their submitting to the state board facts showing that they are within the terms of the proviso; and whether they submit such facts to the board, or whether they do not, the assessment of a license fee or franchise tax against them is equally unwarranted by the statute, and must be set aside. But, as the assessment of the tax, and the proceedings subsequently taken by the prosecutors in order to be relieved from its payment, have all resulted from the failure of the prosecutors to make the return to the state board required by the statute, the tax will be set aside, without costs..

STATE (CITY OF ELIZABETH, Prosecutor) v. NEW JERSEY JOCKEY CLUB et al. (Supreme Court of New Jersey. Sept. 6, 1899.) TAXATION-DETERMINATION OF STATE

BOARD-REVIEW.

The determination of the state board of taxation on the appeal of a taxpayer from an assessment of taxes against his property can only be set aside for error of law. In determining whether such error exists, this court will consider only those facts which were before the board as the foundation of its decision, and this consideration will be limited to ascertaining whether there was legal evidence before that body upon which its finding may be supported. (Syllabus by the Court.)'

Certiorari by the state, on the prosecution of the city of Elizabeth, against the New Jersey Jockey Club and others, to set aside a determination reducing the assessed valuation of the property of defendant. Affirmed.

Argued February term, 1899, before DEPUE, VAN SYCKEL, and GUMMERE, JJ. James C. Connolly, for prosecutor. Frank Bergen, for defendants.

GUMMERE, J. The prosecutor seeks to have set aside and annulled a determination of the state board of taxation reducing the assessed yaluation of the property of the New Jersey Jockey Club from $50,000 to $15,000. The action complained of was taken by the board on the application of the jockey club, and after hearing testimony offered on behalf

both of the city and the club as to the true value of the property assessed.

The principal ground upon which the action of the state board is attacked is that its right to review the action of the city assessors exists only after the taxpayer has exhausted such remedies against an illegal or excessive assessment as are afforded by the city charter, viz. by appealing to the local board of assessment and reviews. In view of the wording of section 8 of the act creating the state board of taxation, and prescribing its duties, the soundness of this ground of attack may well be doubted. By that section it is made the duty of the board to meet at certain designated times "for the purpose of hearing the complaint of any taxpayer respecting the taxes assessed against him in respect to his property * and any taxpayer feeling himself aggrieved by the assessment of taxes against him in respect to his property, or the action of any board of tax review, may file a petition of appeal to the state board of taxation setting forth therein his cause of complaint, and asking the relief which he desires; and the state board of taxation shall proceed summarily to hear and dispose of such complaint." 3 Gen. St. p. 3346. As the statute authorizes the taxpayer to appeal to the state board not only when he feels aggrieved by the action of a board of tax review, but also when he feels aggrieved by an assessment on his property, it would seem that he may seek relief from an excessive assessment by applying either to the local board of tax reviews, or directly to the state board of taxation, as he may elect. It is not necessary, however, to decide this question at the present time, for the case shows that prior to applying to the state board for relief the jockey club made a written application to the board of assessment and revision of taxes of the city of Elizabeth for a reduction of the valuation put upon their property (which was a race track, with the accompanying stables, grand stands, and betting pavilion), on the ground that the adoption by the people of New Jersey of what is known as the "Anti-Gambling Amendment" to the state constitution had very largely depreciated the value of their property. That such was the effect of the adoption of this amendment upon the various race tracks located within this state is a matter of public notoriety. The local board of reviews, however, took no action upon the defendant's application, but permitted the original assessment to stand, the valuation remaining as it was before the amendment was adopted. It was because of the action, or rather the nonaction, of the local board of tax reviews upon its appeal, that the jockey club petitioned to the state board of taxation for relief. The power of that board to entertain the appeal, under the circumstances existing, is too clear for argu

ment.

The only other ground upon which the action of the state board is challenged is that

the proofs taken by the parties upon the return of the writ show that the reduction in valuation made by it was much greater than the facts warranted. The eighteenth section of the certiorari act (1 Gen. St. p. 370) imposes upon this court the duty of determining disputed questions of fact in all certiorari cases brought to review any tax or assessment, and authorizes the parties to take such testimony as they may deem necessary to properly present the questions involved to the court, and it is apparently in pursuance of this statutory provision that the proofs referred to have been taken. But this legislation has been superseded, so far as the decisions of the state board of taxation in cases like the present are concerned; for by the terms of the eighth section of the act creating that body, and already cited, such decisions are made "final and conclusive." By this latter legislation this court is relieved of the duty of settling disputed questions of fact, in reviewing such decisions, and the right of the parties to take testimony for the purpose of properly presenting such questions to the court is taken away. All that we can consider in such cases is whether there is any error of law in the decision brought up by the writ, and in determining that question the only facts which are pertinent are those which were before the state board, and upon which its decision is based. And even those facts will be considered only so far as may be necessary to determine whether there was legal evidence before the board upon which its finding may be supported. If there was such evidence, then the determination of the board cannot be disturbed, even though the evidence would not have led us to the same conclusion. Wilson v. City of Hudson, 32 N. J. Law, 365; South Brunswick v. Cranbury, 52 N. J. Law, 298, 19 Atl. 787. The facts which were submitted to the state board, and which are the basis of its decision, have not been brought before this court, and in their absence we cannot say that they do not afford a legal support to that decision. The determination of the state board of taxation reducing the valuation of the property of the defendants will be affirmed, with costs against the prosecutors.

STATE (MCADAM, Prosecutor) v. BLOCK. (Supreme Court of New Jersey. Sept. 11, 1899.) CERTIORARI-REVIEW.

On certiorari to review a decision of the circuit court refusing to quash a writ of attachment, the proper practice is to confine the review to errors of law, and not to determine disputed questions of fact.

(Syllabus by the Court.)

Certiorari to circuit court, Hudson county. Certiorari by the state, on the prosecution of William McAdam, against David Block, to review a decision refusing to quash a writ of attachment. Rule affirmed.

GUMMERE, J. This certiorari was allowed for the purpose of reviewing the action of the Hudson circuit court denying an application to quash a writ of attachment. The application was made on the return of the writ, and was based upon the ground that the plaintiff's affidavit of the nonresidence of the defendant was untrue in fact, and that the defendant was a resident of this state. A rule to show cause was thereupon allowed, and testimony taken on both sides. On the hearing the application to quash was refused, and the rule to show cause discharged.

That such judicial action is reviewable before final judgment by proceedings in certiorari is decided in this state by a long line of cases. The question how far this court will go in reviewing the facts upon which the court below acted appears, however, to be in a somewhat unsettled condition. In Bank v. Merrit, 13 N. J. Law, 131; Walker v. Anderson, 18 N. J. Law, 217; Stout v. Leonard, 36 N. J. Law, 370, same case on error, 37 N. J. Law, 492; Baldwin v. Flagg, 43 N. J. Law, 495; and Anspach v. Borough of Spring Lake, 58 N. J. Law, 136, 32 Atl. 77,-the testimony taken in support of the application to quash and that taken in opposition thereto was returned to this court with the writ of certiorari, and was considered and weighed by this court, and the facts deducible therefrom determined. In the case of Bisbee v. Bowden, 55 N. J. Law, 69, 25 Atl. 855, the court to which the certiorari was directed certified to this court the facts found by it on the hearing of the motion to quash. In Stafford v. Mills, 57 N. J. Law, 570, 31 Atl. 1023, the court below certified to this court that "it was not clear as to all the facts found by it" on the hearing of the motion to quash, and this court thereupon directed the taking of affidavits "of the facts upon which the determination of the lower court was made." eighteenth section of the certiorari act (1 Gen. St. p. 370), which authorizes this court to determine disputed questions of fact, only relates to the extraordinary proceedings of special statutory tribunals, outside of regular suits at law. South Brunswick v. Cranbury, 52 N. J. 'Law, 298, 19 Atl. 787. It has no application to cases like the present. A writ of certiorari, when sued out to review the lecision of an inferior tribunal, is in the nature of a writ of error, and therefore the ordinary rule, in cases not within the statute referred to, is that the review will be conined to errors of law; that this court will not consider the weight to be given to testinony, nor the conclusions of fact to be drawn 'rom it; and that, where there was legal evidence before the court below, upon which ts finding of fact may be supported, we will 44 A.-14

The

Independence

not reverse its determination. v. Pompton, 9 N. J. Law, 209; Farley v. McIntire, 13 N. J. Law, 190; Van Pelt's Ex'rs v. Veghte, 14 N. J. Law, 207; Scott v. Beatty, 23 N. J. Law, 256; Wood v. Fithian, 24 N. J. Law, 34; Brown v. Ramsay, 29 N. J. Law, 118; Wilson v. City of Hudson, 32 N. J. Law, 367; Beach v. Mullin, 34 N. J. Law, 343; Wolcott v. Mount, 36 N. J. Law, 262; Jeffrey v. Owen, 41 N. J. Law, 260; Lush v. Foster, 44 N. J. Law, 378; Wahrman v. Horan, 46 N. J. Law, 465; South Brunswick v. Cranbury, 52 N. J. Law, 298, 19 Atl. 787; Roehers v. Remhoff, 55 N. J. Law, 476, 26 Atl. 800; Moniter Lodge No. 219 v. Golby, 58 N. J. Law, 119, 32 Atl. 689; Shangnuole v. Ohl, 58 N. J. Law, 557, 34 Atl. 755. The reasons underlying this doctrine are as cogent in a case like that now before us, as they are in the various cases to which this court has heretofore applied it, and the practice followed in Bisbee v. Bowden and Stafford v. Mills is the correct one. But, as the practice has been heretofore unsettled, and as the parties have followed the course adopted in Bank v. Merrit and the other cases herein cited with it, we have examined the testimony returned with the certiorari, and have reached the conclusion that the domicile of the prosecutor was in the city of New York, and that he had no residence or place of abode within this state at which a summons might lawfully be served. The decision of the circuit court was therefore justified by the proofs. The rule under review should be affirmed, with costs.

STATE (TOMLIN, Prosecutor) v. CITY OF CAPE MAY et al.

(Supreme Court of New Jersey. Aug. 11, 1899.) MUNICIPAL CORPORATIONS-REGULATING USE OF STREET BY HUCKSTERS-ORDINANCESFIXING PENALTY-NECESSITY OF PENALTY. 1. The council of the city of Cape May has the right by ordinance to regulate the use of the streets thereof by hucksters and other vendors, and to restrict the same in the use thereof to certain streets, and certain portions thereof, for the preservation of the peace and health of the city, and the proper use by the public of the streets. This power is conferred by sections 19 and 20 of the city charter (P. L. 1875, p. 206). 2. Where the statute authorizes the common council of a city to enact ordinances, and to provide penalties for the violation thereof, by a fine not exceeding a certain sum, or imprisonment not exceeding a certain period, the specific fine and the specific imprisonment must be fixed by the council in such ordinance; and this power or discretion cannot be delegated to the magistrate or court before whom proceedings are taken to punish summarily the offender for a violation of such ordinance.

3. An ordinance without an appropriate and legal penalty is nugatory. It is the legal sanction of a penalty for its violation which gives to an ordinance vitality.

(Syllabus by the Court.)

Certiorari by the state, on the prosecution of Enos Tomlin, against the city of Cape May and others, to review a certain ordinance of said city. Ordinance set aside.