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instead of the name, does not apply to manu- | from that of justice of the peace. In the facturers of containers, but only to those selling fruits in forbidden containers.

4. FOOD 16-PENALTY FOR SELLING FRUIT IN UNMARKED CONTAINERS; JURISDICTION. A conviction before a justice of the peace for a violation of Act April 17, 1914 (P. L. p. 517), for selling or delivering fruit in unmarked containers, was error where the judgment did not contain any finding that defendant was found guilty of selling fruit in unlawful baskets or of what he was convicted, without which the court had no jurisdiction to proceed under the statute.

statute under review, the authority to enforce the payment of the penalty prescribéd for a violation of the law is vested alone in a district court, or a police magistrate. The argument that the law cannot be enforced in some parts of the, state unless justices of the peace are given authority to act we cannot yield to, as the conferring of power to enforce a law is legislative and not judicial. The authority must be express and cannot be implied. Vineland v. Kelk, 73 N. J. Law, 285, 63 Atl. 5. But if there was jurisdiction, the conviction is erroneous for the following

reasons:

1. The record does not show that the de

Proceedings by Charles Fort against Duy H. Dilks for violation of a statute impos- fendant sold or delivered any fruit in any ing a penalty for illegal sale of fruit. From a conviction, Dilks prosecutes certiorari. Conviction set aside.

Argued June term, 1919, before TRENCHARD, BERGEN, and KALISCH, JJ.

Rex Donnelly, of Bridgeton, for prosecutor. Roscoe C. Ward, of Bridgeton, for defendant.

BERGEN, J. [1] This writ seeks to review the conviction of the prosecutor for a violation of chapter 248, P. L. 1914, p. 517. Supplement to C. S. 1911-1915, p. 1627.

[2-4] Section 2 provides that with certain exceptions, no person shall sell or deliver any fruit in a container, unless it shall have marked on it the capacity thereof, and the name and address of the manufacturer, or a symbol furnished by the superintendent of weights and measures, instead of the name. Section 3 fixes the penalty for any violation, to be collected as other penalties may be under the act to which the statute of 1914 is a supplement, which provides that the action to recover such penalties shall be brought before a police magistrate, or district court, of any municipality of this state. This suit was brought before a justice of the peace, who had no jurisdiction unless we interpret a police magistrate to mean a justice of the peace. This we think we cannot do. The powers of a justice of the peace, incident to his office, are entirely ministerial and relate to the conservation of the peace. "Their civil power is wholly statutory, and, where none is expressly conferred, they do not possess it." Schroder v. Ehlers, 31 N. J. Law, 44; Flavell v. Britton, 56 N. J. Law, 218, 27 Atl: 1012; Rhinehart v. Lance, 43 N. J. Law, 311, 39 Am. Rep. 592. That there is a distinction between a police magistrate and a justice of the peace is quite manifest. We have a statute entitled "An act relating to police justices in this state" (C. S. p. 3971, and others of like nature), which provide for the appointment of such an officer and conferring powers inconsistent with those given by statute to justices of the peace, and such an office is clearly distinguished by statute

container. All it shows is that the complaining officer found at an exchange store a large quantity of empty baskets in bundles most of them marked with defendant's name, but among them one bundle with no manufacturer's name on the basket. There was no proof that they were made by, or belonged to, defendant; the only proof being that they did not.

2. The penalty provided by the act does not apply to manufacturers of containers, but only to those selling fruit in the forbidden containers.

3. The judgment does not contain any finding that defendant was found guilty of selling fruit in unlawful baskets, or of what he was convicted, and this perhaps because he could not be convicted of selling fruit to any one, or of offering to sell, without which the court has no jurisdiction to proceed under the statute.

The conviction will be set aside, with costs.

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(108 A.) charges on an issue, arguments based on alleged refusal of requests asked cannot be considered.

4. CRIMINAL LAW 1178-ABANDONMENT OF BY FAILURE TO ARGUE IN

ASSIGNMENTS

BRIEFS.

Assignments of error, based on the rulings of the trial court in a criminal prosecution, not argued nor referred to in the briefs of the plaintiff in error, will be considered to have been abandoned.

The statute is an enabling one. Its purpose is to qualify as witnesses persons who were excluded by common-law rules. The object of section 5 is to modify to some extent the harsh rule which prohibited a husband or wife from being a witness in a litigation to which either was a party, or in which he or she had an interest; and the Legislature manifestly did not intend by the proviso to repudiate common-law rules, under which a husband or wife was a competent witness against the other in a criminal

Error to Court of Quarter Sessions, Mon- proceeding. This is manifest by the introducmouth County.

Bertram Marriner was convicted of atrocious assault and battery, and he brings error. Affirmed.

Argued June term, 1919, before GUMMERE, C. J., and MINTURN BLACK, JJ.

and

tory words of the proviso, viz. "That nothing herein shall render any husband or wife competent," etc. The propriety, therefore, of the trial court's ruling, admitting the wife to testify in the present case, depends upon whether she was a competent witness in a case like that now before us at common law. A reference to almost any text-book on the

general rule of the common law, based upon

Charles E. Cook, of Asbury Park, for plain-subject will disclose that, although it was a tiff in error. Charles F. Sexton, of Long Branch, for the public policy, and because of identity of inState.

GUMMERE, C. J. The defendant was indicted for, and convicted of, the crime of atrocious assault and battery committed upon the body of his wife.

terests, that neither a husband nor a wife could testify for or against the other, that rule was not without exceptions, the most noticeable of which is that, in case of personal injuries committed by the husband against the wife or the wife against the husband, the injured party is a competent witness to prove the act of violence. 1 Whart. Crim. Law (7th Ed.) § 769; Roscoe, Crim. Ev. (7th Am. Ed.) star page 125; 1 Phillips on Ev. (5th Am. Ed.) star page 94. A full collection of the cases in which this exception was recognized and enforced will be found in 30 Am. & Eng. Ency. of Law (2d Ed.) pp. 954, 955.

We conclude, therefore, that this assignment of error is without merit.

[1] The first contention made before us is that the trial court, over the objection of the defendant, erroneously permitted his wife, Anna, to testify against him as a witness for the state. The theory upon which this objection is based is that section 5 of our Evidence Act (2 Comp. St. 1910, p. 2222) prohibits any husband or wife from giving evidence against the other in any criminal proceeding, except as to the fact of marriage, and that the exception to this provision contained in section 57 of our Criminal Proce- [2] We are asked to reverse this conviction dure Act (2 Comp. Stat. p. 1838), which per-upon the further ground that the trial court mits a married woman, if she desires, to erred in its charge to the jury upon the mattestify against her husband, when she has ter of intoxication as a defense to a criminal been the complainant in instituting the pro- charge. The proofs submitted on the part of ceedings against him, does not apply, for the the defendant showed that he had been more reason that the proofs show that the proceed- or less intoxicated for a period of five or six ings were instituted by a person other than weeks preceding the assault upon his wife, the wife. and that in the opinion of an expert called We concur in the view of counsel that the by the defense "continual drunkenness for a witness was not within the exception of sec-period of five or six weeks would cause untion 57 of the Criminal Procedure Act, but we soundness of mind." In dealing with this differ within him as to the construction of phase of the defense the court charged the section 5 of our Evidence Act. That section, jury as follows: after providing that the husband or wife of any person interested as a party, or otherwise, in any suit, action, or proceeding in any court, should be competent and compellable to give evidence the same as other witnesses, contains the following proviso:

"Drunkenness may be insanity, but it is voluntary. It is no excuse for the consequences of crime. Even if you believe the faculties of this defendant were so prostrated as to, in your minds, amount almost to a condition of insanity, if it was the result of voluntary drunkenness, it is no defense for the crime here alleged, namely, that of atrocious assault and battery."

"That nothing herein shall render any husband or wife competent or compellable to give evidence * * against the other in any criminal action or proceeding, except to prove The argument is that the jury would have the fact of marriage," etc. P. L. 1900, p. 363. been justified under the evidence in finding

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. WILLS 441-INTENTION OF TESTATOR.

The meaning and intention of the testator must be determined, not by fixing the attention on single words in a will, but by considering the entire will and surroundings of the testator when he executed the will, and by ascribing to him, so far as his language permits, the common impulses of our nature.

that the defendant, at the time of the assault | chant, but, in addition thereto, coal on hand, upon his wife, was suffering from delirium cash and checks, cash on deposit in check actremens, and was unable to form the intent count "James Coyle Coal," and difference beto commit the crime charged against him, for tween bills receivable and payable; i. e., for the reason that he was absolutely irrespon- coal sold and delivered. sible mentally. The difficulty with the argument is that it is without any basis of fact upon which to rest it. The most that could be said was that his intoxication had produced mental unsoundness; but mental unsoundness produced by intoxication, even where it is so pronounced as to exhibit an entire prostration of the faculties of the defendant, is no defense against a criminal charge. Wilson v. State, 60 N. J. Law, p. 171, 37 Atl. 954, 38 Atl. 428. And this is the rule, not only in this state, but elsewhere. As was said by Miller, J., in the case of Flanigan v. People, 86 N. Y. 559, 40 Am. Rep. 556, the authorities all agree upon the proposition that mental alienation produced by drinking intoxicating liquors furnishes no immunity for crime.

We think the instruction complained of was entirely justified under the principle cit ed, and that the defendant can take nothing by this assignment of error.

[3] We find in the assignments of error an assertion that the trial court improperly refused to charge certain requests dealing with the matter which we have just discussed; but an examination of the case sent up with the writ fails to disclose any requests to charge submitted on behalf of the defendant, or any rulings by the trial court on such alleged requests. This being so, we cannot give consideration to the arguments of counsel based upon the alleged refusal to charge the alleged requests.

[4] Other assignments are directed at the rulings of the trial court upon matters of evidence, but as those rulings have not been made the subject of argument before us, and are not even referred to in the brief of counsel for the plaintiff in error, we consider them to have been abandoned.

The conviction will be affirmed.

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3. WORDS AND PHRASES "BUSINESS."

The word "business" is a word of extensive signification. It is an uncertain and equivocal expression.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Business.]

Appeal from Court of Chancery.

Bill by John William Coyle and others against Elizabeth C. Donaldson and others, executrices of James Coyle, deceased, to obtain a construction of the will. From a decree of the Court of Chancery (105 Atl. 605), defendants appeal. Reversed, and case remanded to Court of Chancery, to enter a decree in accordance with opinion.

James A. Gordon, of Jersey City, and John
J. Fallon, of Hoboken, for appellants.
John Francis Gough, of Jersey City, for
respondents.

BLACK, J. The bill of complaint in this case was filed in the Court of Chancery, to obtain, among other things, a construction of the meaning of two clauses in the last will of James Coyle, deceased. The only point, however, involved in this appeal, is the meaning of the words or the phrase in the fourteenth clause of the will, "the coal business now owned by me," bequeathed to the testator's grandson, James W. Coyle, Jr., and his daughter, Elizabeth C. Donaldson.

[1, 2] The learned Vice Chancellor, before whom the case in the first instance was heard, reasoning from analogy, decided the words included only the good will of the business, the leasehold interest of the land on which the coal business was conducted, and the horses, wagons, and other equipment used by the testator in carrying on the business of coal merchant. We think this construction is too narrow. These words or this phrase in the will include, in addition thereto, the following items: Coal on hand, valued at $7,054.38; cash and checks, $775,34; cash on deposit in check account "James Coyle Coal," $1,978.12; difference between bills receivable and payable, i. e., for coal sold and delivered, $5,873.73-total in dis pute, $15,681.57. Whether such was the testator's meaning and intention, to use

(108 A.)

ness, but the money in bank and cash on hand, which came from the sale of goods. So held in McGowan v. Griffin, 69 Vt. 168, 37 Atl. 298. This court held that, where a testator orders his business-"brewing business"-to be carried on after his death, the funds employed in the business before his death are answerable to the subsequent creditors. Laible v. Ferry, 32 N. J. Eq. 791, 798.

the language of this court, as written by | v. Chaffee, 84 Mass. (2 Allen) 395, 79 Am. Mr. Justice Dixon, in the case of Torrey v. Dec. 796. The word "business," in a contract, Torrey, 70 N. J. Law, 673, 59 Atl. 450, must not only includes the good will of the busfbe determined, not by fixing the attention on single words, but by considering the entire will and the surroundings of the testator when he executed the will, and by ascribing to him, so far as his language permits, the common impulses of our nature. If we put ourselves in the position of the testator at the time of the execution of the will, and consider the circumstances he had in view in making the will, it seems quite clear that the coal business was to pass, as it was then owned by the testator, as a whole, with all that pertained to it, as a going concern or business. Neither one of these two legatees had any means whatever, except what they received under the provisions of the will, and no one, perhaps, knew better than the testator himself that such a business could not be carried on successfully without some capital. To assume that the testator intended or desired to separate the stock from the business, in which it was more valuable, than it possibly could be in the possession of the executrices, is both unnatural and unreasonable.

The respondent, who is a son and one of the heirs at law, is entitled to one-third of the residuary. The sum bequeathed to him by the testator under the terms of the will was given "at such times and in such amounts as the executors may determine to be proper." If these items now in dispute go into the residuary, the son would receive a substantial amount, unhampered by any condition; whereas, all that he receives under the will is carefully guarded by the testator. Such a result, it is reasonable to presume, would not have been intended by the testator. Then, too, the grandson and legatee, John W. Coyle, Jr., had been employed by the testator in the coal business since leaving school in 1909, to the satisfaction and with the confidence of the grandfather and testator. To separate the coal business into separate parts would impair its value, at least to some extent. Such a result, it is not reasonable to presume, was either desired or intended by the testator, when he used the words "the coal business now owned by me"

in his will.

The decree of the Court of Chancery is reversed, and the case is remanded to that court, to enter a decree in accordance with this opinion.

(93 N. J. Law, 263)

MacLAUGHLIN v. LEHIGH VALLEY R. CO. (Supreme Court of New Jersey. Nov. 7, 1919.) 1. MALICIOUS PROSECUTION 34, 35(1) NOLLE PROSEQUI SUFFICIENT SHOWING OF FAVORABLE TERMINATION.

To maintain an action for malicious prosecution, a party must show that the prosecution has ended in his favor, which does not require showing of acquittal; entry of nolle prosequi or rejection of complaint by the grand jury being sufficient.

2. MALICIOUS PROSECUTION 71(2)—QUES

TION OF PROBABLE CAUSE ONE OF LAW FOR
COURT.

In malicious prosecution, if the question of
the existence or nonexistence of probable cause
depended upon uncontroverted facts, it was one
of law to be determined by the court, and not
to be submitted to the jury.
3. MALICIOUS

PROSECUTION

18(1)-EVI

DENCE SHOWING PROBABLE CAUSE.

Defendant railroad, in view of the observations of members of its detective force, held as matter of law on the uncontroverted testimony for instituting to have had probable cause against plaintiff prosecution for breaking into and stealing from a freight car.

4. MALICIOUS PROSECUTION 3-OF PROSE

CUTION NOT INSTITUTED BY DEFENDANT.

Where two of defendant railroad's detectives

reported a freight car robbery to police headquarters, describing the occurrence, and the officer in charge, acting as a representative of the city police, caused the arrest of plaintiff and his confinement in prison, while the subsequent complaint against plaintiff was made by a member of the city police force, prosecution was not instituted against him by defendant railroad to render it liable as for a malicious prosecution.

[3] The definition of the word "business," or the construction given to it by the courts, in other cases, is of little aid in ascertaining the intention of the testator in this case. The word is an uncertain and equivocal expression. In re Weber's Estate, 261 Pa. 561, 569, 104 Atl. 735; Widdall v. Garsed, 125 Pa. 358, 361, 17 Atl. 418. It is a word of extensive signification under any legal or general definition of the term, White v. Rio Grande Western Ry. Co., 25 Utah, 346, 349, 71 Pac. Action by John MacLaughlin against the 593; a word of large signification, Goddard Lehigh Valley Railroad Company. From

Appeal from Court of Common Pleas, Hadson County.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

judgment for plaintiff, defendant appeals. [ment is that the entry of a nolle prosequi Judgment reversed.

Argued January term, 1919, before GUMMERE, C. J., and MINTURN and BLACK, JJ. George S. Hobart and Edward A. Markley, both of Jersey City, for appellant.

John Warren, of Jersey City, for respond

ent.

was not a termination of the prosecution. It is, of course, entirely settled that, to entitle a party to maintain an action of this character, he must show that the prosecution of which he complains has ended, and that its determination has been in his favor. But

this rule applies only to the particular proceeding complained of; it does not bar the party unless he can further show that he is no longer liable to be prosecuted for the same offense charged in that proceeding. In oth

GUMMERE, C. J. This appeal brings up for review a judgment in favor of the plain-er words, it does not require him to prove tiff in an action for malicious prosecution. The trial court refused to nonsuit, or direct a verdict in favor of the defendant, and these refusals are made the grounds of appeal. The question to be determined, therefore, is whether the plaintiff was entitled to go to the jury.

an acquittal of that charge. And so, recognizing the limitation of the rule, it was declared by this court in the case of Potter v. Casterline, 41 N. J. Law, 22, 26, that the entry of a nolle prosequi, or the rejection of a complaint by the grand jury, put an end to the particular prosecution, within the meaning of the rule appealed to. To the same effect is Apgar v. Woolston, 43 N. J. Law, 57, 65.

The undisputed facts in the case were as follows: On the night of December 19, 1916, certain parties broke into a freight car of the defendant company standing on a siding [2, 3] It is further contended that the case in Jersey City, and stole therefrom several should have been taken from the jury berolls of leather. Two members of the defend- cause, upon the uncontroverted facts in the ant company's detective police, Timms and case, the defendant company had probable Bernstock, were on duty at the point where cause for the institution of the proceedings the robbery occurred, and saw the breaking against the plaintiff, and that, this being so, into and looting of the car. They telephoned no liability rested upon it to answer in damnotice of the occurrence to police headquar- ages to him for his arrest and subsequent ters, and then undertook themselves to arrest prosecution. If it be true that the question the robbers; but after a running fight, in of the existence or nonexistence of probable which a number of shots were exchanged, the cause depends upon facts not controverted, robbers escaped. Subsequent to the occur- that question was one of law to be deterrence, the two detectives had an interview mined by the court, and not one to be subwith one of the police captains of Jersey City, mitted to the jury. Vladar v. Klopman, 89 and the latter, from a description given by N. J. Law, 575, 99 Atl. 330. We are to dethe detectives of the parties who looted the termine, therefore, whether the defendant car, concluded that the plaintiff was one of had a reasonable justification for causing the the members of the party, and ordered his arrest and prosecution of the plaintiff on the arrest. The arrest was made by a member uncontroverted testimony in the case. We of the Jersey City police force, and when the plaintiff was brought to headquarters he was identified, both by Timms and Bernstock, as one of the party of thieves. Plaintiff was thereupon taken to the city prison, but afterward released on bail until December 23d, when a hearing was had on the charge against him, and he was held to await the action of the grand jury. That body indicted him as one of the participants in the robbery. He pleaded not guilty. The case was set down for trial, and adjourned from time to time, and finally a nolle pros. was entered on the indictment by the prosecutor of the pleas because of his inability to produce either Timms or Bernstock as witnesses; both of them having removed from the state. The present suit was then instituted.

think it had. It was undisputed that its car had been broken into by thieves, and the contents stolen therefrom; that this felonious act had been observed by two members of its detective force; that they had reported the occurrence to the chief of police of Jersey City, and had given him as best they could a description of the parties; that from that description he concluded the plaintiff was one of the robbers, and caused his arrest; and that when he was produced at headquarters he was identified by both of these detectives, Timms and Bernstock. The defendant had no reason to doubt the honesty of any of the parties concerned in the arrest, either its own employés, or the members of the city police force, and it therefore had a right to assume their good faith. Not only [1] The first ground upon which it is con- do the facts recited show a probable cause tended the case should have been taken from for the prosecution of the plaintiff, but they the jury is that there was no evidence that would have justified his conviction of the the alleged malicious prosecution had termi- charge laid against him if, on the trial of the nated favorably to the plaintiff, and the argu-indictment, they had remained uncontrovert

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