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plaintiffs, July 28, 1875. The plaintiffs moved to reject a brief statement in which the defendants, after certain averments of fact, "request the court to so reform the deed executed by the defendants on July 28, 1875, that it will in all respects fully accord with the agreement, undertaking and intention of the parties to it as above set forth, and that such judgment or decree be made by the court as will protect the rights of the defendants."

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D. Barnard, for plaintiffs. Bingham & Mitchell, for defendants. DoE, Ch. J. The deed cannot be reformed in an action at law. The defendant can move at the trial term for leave to amend his pleading by filing a bill in equity. The question of the form of action is not considered, when time spent upon it would be wasted Peasely v. Dudley, 63 N. H. 220; Joyce v. O'Neal, 64 id. 91- but the reserved case shows no reason why the question of the defendant's right to relief in equity should be tried in the action at law; and convenience ordinarily requires that such a point should be tried and decided in an appropriate action, and upon an issue that will not invite a controversy on the question whether the parties are bound by the decision. Parker v. Moore, 63 N. H. 196, 197.

Case discharged.

BINGHAM, J., did not sit; the others concurred.

NEW JERSEY COURT OF ERRORS AND APPEALS.

MERKLE V. NEW YORK, LAKE ERIE AND WESTERN R. R. Co.
SCHWINGE V. SAME.

March, 1887.

A. attempted to drive a covered wagon, which contained a lot of loose bottles which rattled with the motion of the wagon, across a railroad track, and was killed by an approaching train. Held, that he was guilty of contributory negligence and could not recover. As he could not see the train, ordinary prudence required him to stop the noise of his wagon and ascertain, by listening, whether there was danger or not.

In error to the supreme court.

Collins & Corbin, for plaintiffs in error. Cortlandt and Wayne Parker, for defendant in error.

RUNYON, Chancellor. One of these suits was brought by John Schwinge to recover damages for the destruction of his property, a wagon and contents, by a collision with a train running upon the company's railroad, and the other by the administratrix of the person who drove the wagon for Schwinge at the time of the collision, and who was killed therein, for damages for such killing. The causes with another for the damages for the killing, in the same accident, of a lad who was in the wagon at the time, and which cause went to a verdict, were all tried together. At the trial, at the close of the plaintiff's prin

cipal testimony, the plaintiffs in the cases under consideration were nonsuited upon the ground that, according to the evidence, the driver of the wagon was guilty of contributory negligence. To reverse the judgment of nonsuit in those cases the writs of error were brought. The driver of the wagon stopped to deliver goods at a store distant about fifty-six feet from the railroad track. After finishing that business he drove on the horses upon a slow walk toward and upon the railroad track, and he did not stop until the collision took place. After leaving the store he could not see the approaching train until he came within six or eight feet of the railroad track. The wagon was a closed one, with a high tail-board which could be opened and shut, and it had curtains with an opening in them on the side where the driver sat. The curtain at that place was up at the time of the accident. In the wagon were seventy-four or seventy-five boxes, in which were about eighteen hundred loose beer bottles. The boxes were in layers, one layer being upon the floor of the wagon, and the others piled upon it. As the wagon went along the bottles rattled with its motion. The noise which they made probably prevented the driver from hearing the sound of the approaching train. Inasmuch as he could not protect himself if there was danger, by the use of his eyes, it was incumbent upon him, in the exercise of ordinary prudence, to make use of his sense of hearing. He must have known that the rattling of the bottles. behind in the wagon might, and probably would, prevent him from hearing the noise of an approaching train. He could have stopped that noise by stopping the wagon, but he did not do so. Inasmuch as he could not see an approaching train at any considerable distance from the track, ordinary prudence required him to stop when he was near enough to the railroad to ascertain, at least by listening, whether there was danger or not. But he appears to have used no precaution whatever, not even stopping the noise of the wagon, which was completely under his control.

The judgment should be affirmed.

NEW JERSEY SUPREME COURT.

LARRISON V. STATE.

May 24, 1887.

An indictment under a statute which makes it a criminal offense to "send or convey" an insulting, lascivious, indecent, disgusting, offensive or annoying letter or communication to any female, which charges that the accused did "send and convey" is technically defective, the words "send" and "convey" importing a different mode of transmission. But this defect may be cured by amendment, and, therefore, to be available, the objection must be taken by demurrer or motion to quash, before the jury is sworn.

The description in an indictment of the offensive writing - which was sent by mail inclosed in an envelope- as a "letter and communication," is not erroneous -there being no incongruity or inconsistency in describing it as a letter and communication, for it was both.

A communication is sent within the meaning of the statute when it is put in the course of transmission by the accused with intent that it should reach the person to whom it is charged in the indictment to have been sent, provided that in fact it reaches such person.

The indictment charged that the communication was sent to Henrietta C. Mrs. C. was a married woman, residing with her husband. The communication was inclosed in a sealed envelope, directed to her husband at his post-office address, and sent by mail. In the same envelope was a letter to the husband, requesting him to hand the inclosed to his wife. Mrs. C.'s son got the letter from the postoffice, and took it home and handed it to her. She opened it and read it. Held, that an instruction that if the accused intended the communication for Mrs. C., having taken the means for her to get it, it was a sending to her by the accused, no matter what means he employed for it to reach her, or from what source she received it, was substantially correct.

The statute makes the offense indictable only when the communication is sent to a female against her consent. If there be any evidence, direct or circumstantial, tending to show that there was no consent, the question is one for the jury.

Where the authorship of the communication is in dispute, a conversation between the accused and third persons, in the course of which things occurred and expressions were used which tended to connect the accused with the contents of the communication, is competent evidence to connect him with the authorship of the communication. But a charge made against the accused in the same conversation, having no relation to the subject-matter of the communication, such as a charge that the accused had been guilty of indecent and criminal conduct with another female, is incompetent.

On writ of error to Hunterdon court of quarter sessions.

The plaintiff in error was convicted upon an indictment for willfully and wantonly sending and conveying to one Henrietta Conover, a female, an insulting, indecent, disgusting, offensive and annoying letter and communication, against her will and consent.

The indictment was found under a statute approved March 29, 1878, entitled "An act to suppress the sending of indecent communications." P. L. 1878, p. 211. The statute is in these words: "That any person who shall willfully and wantonly send or convey to any female, against her will and consent, any insulting, indecent, lascivious, disgusting, offensive or annoying letter or communication, without lawful purpose in sending or conveying the same, shall be deemed to have committed a public nuisance, and be liable to be punished as for a misdemeanor at common law."

Argued before the chief justice and Justices DEPUE, VANSYCKEL and SCUDDER.

R. S. Kuhl and A. A. Clark, for plaintiff in error. E. P. Conkling and J. N. Voorhees, contra.

DEPUE, J. The communication for sending which the accused was indicted is set out in the indictment. It is insulting, indecent, disgusting, offensive and annoying, and was sent without lawful purpose in sending the same.

Error is assigned upon the form of the indictment. This objection was made in the court below by motion in arrest of judgment.

The language of the statute is "send or convey." The indictment in this respect was technically defective. The words "send" and "convey" import a different mode of transmission. The principle adjudged in State v. Price, 6 Halst. 203-215, does not apply. In that case an indictment under a statute making it an indictable offense to "burn or cause to be burned," any building, which charged that the defendant did "burn and caused to be burned," etc., was held to be good, for the reason that the expressions "burned" and "caused to be burned" were neither incongruous nor inconsistent.

But this defect in the indictment might have been cured by amendment. Rev. 275, § 43; id. 277, § 53. An objection of this character, to be available, must be taken by demurrer or motion to quash before the jury is sworn. Rev. 277, § 53. It is not taken in this instance

until after verdict rendered. Under these circumstances the court would not reverse on this ground, especially as the defect was such as could not have prejudiced the defendant in maintaining his defense upon the merits. Rev. 284, § 89; State v. Robinson, 6 Vroom, 71; State v. Conners, 16 id. 211; State v. Gedicke, 14 id. 87.

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The statute uses the words "letter or communication." The indictment describes it as a letter and communication." This was also made a ground of the motion in arrest of judgment. The writing was inclosed in an envelope and transmitted by mail. It might properly be called either a letter or communication, and there is nothing incongruous or inconsistent in describing it as a letter and communication, for it was both. The objection is not tenable, and if it were it comes too late. Exception was taken to the refusal of the court to charge that there was no evidence that the defendant did send or convey to Henrietta Conover the alleged writing or communication.

To make the sending of such a communication indictable it must by the statute be sent to a female. The indictment charges that it was sent to Mrs. Conover. Proof that it was sent to her in a legal sense is necessary to sustain the conviction. The evidence tended to show that the communication was in the defendant's handwriting.

It is prefaced by these words: "Solilloquy of Dame Conover, Princess Consort of the Conover Hell, in Conover Dale, near Copper Hill, Hunterdon co., N. J." The communication contained indubitable evidence that the writer intended that it should be seen and read by Mrs. Conover. Every line of the writing evinces a fixed purpose to traduce, defame and insult her. The purpose of the writer could

be fulfilled only by his offensive epithets being brought to the knowledge of the object of his malignity.

Mrs. Conover resided with her husband, at Copper Hill, near Ringoes. The communication was inclosed in a sealed envelope, directed to the husband, David Conover, Copper Hill post-office. The envelope had on it the post-office stamp, "Lambertville, January 30, 1885." Jonathan Conover, a son living at home, got the letter from the post-office at Copper Hill. David Conover, the husband, was sick at home at that time. The son brought the letter home and handed it to his mother. She opened it and read it to the members of the household. Inclosed in the same envelope was another communication addressed "To his Conovership, the Prince of the Conover Hell, near Copper Hill, Hunterdon co., N. J., greeting," and intended for the husband. It had affixed to it a postscript: "P. S.- Please hand the enclosed paper to your Consort Dame Conover, the Honored Princess of your establishment."

The writing on which the indictment was founded was intended for Mrs. Conover. It was sent to her husband with a request that it should be handed to her. It was received and read by her. Was the communication "sent to" her within the meaning of the statute?

In Rex v. Wagstaff, Russell & Ryan, 398, the indictment was on the statute 27 George II, chapter 15, for sending a threatening letter to Richard Dennis. The letter was directed to Richard Dennis, and was dropped by the prisoner in the yard of the residence of Dennis. It was picked up by the wife of the prosecutor, who first read the letter herself and then read it to her husband. The judge instructed the jury that if the prisoner carried the letter and dropped it, "meaning that it should be conveyed to Dennis, and that he should be made acquainted with its contents," the letter was sent within the meaning of the statute. The conviction was sustained. The judges thought a letter dropped near the prosecutor, with intent that it might reach him, was a sending to him. In Lloyd's case, which was an indictment for sending a letter. to one Salway demanding money, the prisoner dropped the letter in the vestry room which Salway frequented every Sunday, from whence the sexton had picked it up and delivered it to him. Mr. Justice YATES, before whom the case was tried, reported to the court that "it seemed to him to be very immaterial whether the letter was sent directly to the prosecutor or put into a more oblique course of conveyance, by which it might finally come to his hands." The court in banc expressed no opinion on this point, the judgment being arrested on another ground. 2 East P. C. 1123. In Rex v. Paddle, Russell & Ryan, 484, the indictment charged the prisoner with sending a letter to William Kirby threatening to burn the house of one Rodwell, and the stacks of hay, corn and grain of one Brook. Kirby received the letter by post, and it was communicated very soon after to Rodwell and Brook. It was objected that it was indispensably necessary that the indictment should charge the sending of a threatening letter to the party threatened, whereas it was stated in the indictment and appeared upon the evidence that the letter was sent to a stranger, who might have destroyed the letter without the party threatened knowing any thing about it.

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