cart clay from the clay banks to the old stage road, and by some act or acts on their part, and so intended by them, relinquish the right to use this road, then it is to revert. The mere nonuser of the way by the grantees, no matter how long continued, unless that nonuser arose from the adverse possession of the way by the owners of the Coddington land for a period of 20 years, would not extinguish the right granted. The way was there for the Halls and their assigns to use under the agreement as they saw fit,-at longer or shorter intervals. This was a grant by Coddington of an interest in his lands to the Halls, their heirs and assigns, which might continue so long as the clay bank continued to supply clay, which the owners of the banks might desire to cart over this way to the old stage road; and, it being granted to the Halls and their assigns, it could be by them granted. The grant, after reciting the purchase by the Halls from the estate of Harriott of a tract of land of 21%1⁄2 acres, gave to the Halls a right of way "from the clay banks purchased of the estate of Harriott" for the purpose of carting clay, etc., "from the said clay banks." This language indicates that the whole 21% acres were included in the expression "said clay banks," and there is nothing in the agree ment by which the right granted is limited to those clay pits which were opened and used at the time of the execution of the grant. We find no error in the ruling of the judge at the trial, and the judgment should be affirmed. VAN SANT v. ATLANTIC CITY. (Supreme Court of New Jersey. Nov. 10, 1902.) POLICEMAN-DISMISSAL-ACTION FOR SALARY. 1. A policeman in a city, who claims to have been illegally removed from his office because no cause was alleged, or complaint made, or hearing given him, cannot maintain an action for salary alleged to have accrued after such dismissal, while such dismissal remains unreversed. 2. Title to office cannot be tried collaterally in an action for salary. (Syllabus by the Court.) Action by Charles A. Van Sant against Atlantic City. Demurrer to declaration sustained. Argued June term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, FORT, and GARRETSON, JJ. Clarence A. Cole, for plaintiff. Godfrey & Godfrey, for demurrer. FORT, J. The plaintiff was a police officer of Atlantic City. He alleges that he is an honorably discharged Union soldier, and that, while acting as a policeman, he was, on the 10th day of June, 1901, "dismissed by the mayor of the city, who is the person charged with the supervision and control of the police department, without cause, without complaint, and without a hearing." He sues to recover his salary as a policeman from June 10 to December 1, 1901, at the rate of $65 per month. The plaintiff admits that he could not recover in this action but for the statute which protects him from removal except for cause, as his office was a municipal one, and could otherwise be terminated at the pleasure of the city. City of Hoboken v. Gear, 27 Ñ. J. Law, 267. Does the fact that an honorably discharged soldier can be removed only for cause, after hearing, entitle him to sue for his salary in case of discharge without such hearing? There is nothing in the statute so permitting. 3 Gen. St. p. 3702. Nor is there in the statute which prohibits the removal of a police officer in a city except for cause. 2 Gen. St. p. 1534. The effect of these statutes is to entitle persons coming within their provisions to charges and a trial. A dismissal without these is void. But the official charged with the duty of discharging is acting judicially when so doing. His action is subject to review, and may be reversed. Until reversed, it stands. Whether there was or was not a proper proceeding for dismissal cannot be inquired into collaterally. It must be reversed by a direct proceeding to set aside the illegal removal before suit for salary can be maintained, or by a mandamus to compel the city to restore him to the office. City of Hoboken v. Gear, supra, was a suit by a policeman for his salary after removal, as he alleged, without cause, as in this case; and Chief Justice Green there says: "Aside from the objection that there was no contract between the parties upon which the plaintiff can rely for a recovery, the action cannot be sustained, upon reasons of public policy. It is a new mode of trying, in a collateral way, by an action for the salary, the title to a public office. * 串串 * If the plaintiff was improperly removed, the law furnishes other and more efficient and appropriate remedies. But, whatever may be the proper form of the remedy, or whether there be any, it is clear that an action of debt upon contract against the city is not the appropriate mode of redress." If the facts set forth on the plaintiff's declaration are true, he can procure the vacation of his removal on certiorari. Bakely v. Nowrey (N. J. Sup.) 52 Atl. 289; Bowlby v. City of Dover (N. J. Sup.) 52 Atl. 289. After that, his right to salary can be determined. The demurrer is sustained, with costs. STATE v. GONNEION. (Supreme Court of New Jersey. Nov. 10, 1902.) CRIMINAL LAW-VERDICT. 1. On the trial of an indictment containing two counts, the first charging the defendant 1. See Criminal Law, vol. 14, Cent. Dig. § 2110. with assault and battery, and the second charging him with assault with intent to kill, the jury, having retired to consider their verdict, returned into court and announced that they found the defendant "guilty of assault and battery, with intent to scare.' The trial judge refused to accept this verdict, and sent them out again, with an instruction that they "must find the defendant not guilty, or guilty, in one of the forms as charged in the indictment." Held, that there was no error in this judicial action. (Syllabus by the Court.) Error to court of quarter sessions, Essex county. John L. Gonneion was convicted of assault with intent to kill, and brings error. Affirmed. Argued June term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and GARRETSON, JJ. John Bishop, for plaintiff in error. Louis Hood, for the State. GUMMERE, C. J. The indictment in this case contained two counts; the first charging the defendant with the crime of assault and battery, and the second charging him with an assault with intent to kill. The jury, having retired to consider their verdict, returned into court and announced that they found the defendant "guilty of assault and battery, with intent to scare." The trial judge refused to accept this verdict, and sent them out again, with an instruction that they "must find the defendant not guilty, or guilty, in one of the forms as charged in the indictment." This judicial action is assigned for error. That they conof assault and but it is equally That the verdict as rendered was not proper in form is apparent. It seems to us, also, clear that it could not have been so molded by the court as to certainly express the conclusion reached by the jury. sidered the prisoner guilty battery, of course, appears; obvious that they did not intend that this should be taken as the full extent of their finding. In this situation, it was clearly within the power of the trial court to refuse to receive and record the verdict, and to send the jury out for further consideration of the case. Such is declared to be the proper practice in Bacon, Abr. tit. "Verdict" (G), where it is said: "If a jury, who, by mistake or from partiality, have given an improper verdict, go together again, at the recommendation or by the leave of the judge, before the improper verdict is recorded, and afterwards give a different verdict, the verdiet last given shall stand." In the case of Pritchard v. Hennessey, 1 Gray, 294, it is stated that "the practice of sending out a jury when they return a finding that is absurd or defective has existed for more than four hundred years." And in support of this declaration a case from the Year Books is referred to, where, in a writ of conspiracy against two, the jury found one guilty and the other not guilty, and were told by or the judge that their finding was contradictory; that, if one was not guilty, the other could not be guilty; and that they had bet ter reconsider their verdict; whereupon they were taken back, and afterwards returned and found both guilty. In Reg. v. Maloney, 9 Cox, Cr. Cas. 6, the prisoner was indicted for the willful murder of his wife. The jury brought in a verdict of guilty, and added, "but we believe it was done without premeditation." The court refused to accept that verdict, and sent the jury back, saying to them, "You must say 'Guilty' 'Not guilty.'" The jury afterwards returned into court with a verdict of guilty, but recommended the prisoner to mercy on the ground that there was no evidence of premeditation. Their second verdict was recorded. In Reg. v. Meany, 9 Cox, Cr. Cas. 231, the prisoner was indicted for obtaining certain property by false pretenses. The jury returned the following verdict: "We find the prisoner guilty of obtaining the property by false representations, but we think that he meant to pay for them." The court refused to accept this verdict, and directed the jury to retire for further consideration of the case; instructing them that they must find the prisoner guilty or not guilty, and that if, in their opinion, he had not a fraudulent intention, they must say it by a verdict of not guilty. The jury presently came back with a verdict of guilty. It was then insisted that the court should direct the verdict first found to be recorded, as being in legal effect a verdict of not guilty. Upon a refusal to so order, the case went to the court of criminal appeal, and the action of the trial court was there sustained; Pollock, C. B., declaring that "there is no doubt that a judge, both in a civil and criminal court, has a perfect right, and sometimes it is his bounden duty,' to tell the jury to reconsider their verdict." A reading of the decision in the case last cited would seem to indicate that the appellate court intended to hold that a trial court, even in a criminal case, was not bound to receive and record any verdict which was not satisfactory to it. This cannot, however, have been intended, and the decision is plainly to be limited to verdicts of the character then under consideration,-in other words, to verdicts that are either absurd or defective. This appears from the opinion of the same court in the case of Reg. v. Yeadon, 9 Cox, Cr. Cas. 91. In that case the prisoner was indicted for "an assault occasioning actual bodily harm." The jury found a verdict of "guilty of a common assault." The trial judge thereupon told the jury that they had found the defendant guilty of an offense which was not charged in the indictment, and that they must reconsider their verdict. The jury subsequently returned a verdict of "guilty of an assault occasioning bodily harm." The appellate court held that the first verdict should have been received, and set aside the conviction entered on the sec ond. Probably the most celebrated case in which the question of the right of the court to refuse to accept an inaccurate verdict has been presented was that of Rex v. Dean of St. Asaph, 3 Term R. 428, note. In that case Dr. Shipley was proceeded against on an information charging him with publishing a seditious libel. The jury found the defendant "guilty of publishing only." Buller, J., before whom the cause was tried, refused to receive the verdict; telling the jury that the presence of the word "only" in it negatived the innuendoes. Mr. Erskine, who appeared for the defense, protested against the action of the court, and insisted that the verdict be recorded. The jury, however, withdrew, and afterward returned with a verdict of "guilty of publishing; but, whether a libel or not, we do not find," which was recorded. This action of Mr. Justice Buller was made the ground of an application to the court of king's bench for a new trial, but the application was denied. A very full report of this part of the case will be found in Lord Campbell's life of Lord Erskine. Camp. Lives Ld. Ch. p. 62. 6 1. A court of common pleas has power, subject to review by this court on certiorari, to vacate the docketing of any judgment therein. 2. The act of March 22, 1901 (P. L. p. 365), so far as it attempts to validate defective docketing of judgments in the courts of common pleas, is ineffectual as against the vested rights of others than the judgment debtor. (Syllabus by the Court.) Certiorari to court of common pleas, Middlesex county. Certiorari by the state, on the prosecution of Charles McLaughlin, against Richard F. Cross and others, to review an order canceling the judgment. Reversed. On September 2, 1898, there was filed with the clerk of the court of common pleas of the county of Middlesex a statement dated June 25, 1898, signed by Levi Walling, a justice of the peace of that county, under his hand and seal, to the effect that on March 29, 1897, Charles McLaughlin, plaintiff, had obtained, in a court for the trial of small causes, held by said justice, a judgment against Josephine Berk, defendant, for the sum of $132.75 in an action of contract; that an execution had been issued therein; "and that said judg ment is wholly unpaid and unsatisfied on May 5, 1898, and returned unsatisfied"; and also an affidavit of Charles McLaughlin, subscribed and taken before such justice on June 21, 1838 setting forth that the judgment was bona fide, and that the whole amount thereof was still due. Thereupon said clerk docketed the judgment in court of common pleas. On September 24, 1900, Jesephine Berk, in consideration of $1 and an agreement réferred to, conveyed certain land in said county to Richard F. Cross, Catherine E. Cross, Walter Backofen, and Pauline Backofen, in fee, by deed, afterwards recorded in said clerk's office on September 25, 1900, in Book 318 of Deeds, page 507, etc. On February 3, 1902, said court of common pleas, on application of said grantees, and on notice to McLaughlin, adjudged that such docketing was invalid, and ordered that the same should be set aside and vacated. The pending writ of certiorari removes to this court for review the order of the common pleas. Argued June term, 1902, before GARRISON and COLLINS, JJ. Freeman Woodbridge, for plaintiff. Theodore Strong, for defendant. COLLINS, J. (after stating the facts). The plaintiff in certiorari challenges the power of a court of common pleas to vacate a judgment docketed therein. It is true that the docket entry has not the force of a common-law judgment, and that lack of conformity to the authorizing statute will render the docketing void; but it does not follow that the court cannot clear its records of the void entry. The clerk can lawfully docket only when the papers tendered are regular. His authority is limited. If he exceeds it. remedy must lie with the court whose minister he is. The prerogative writ of this court will, indeed, afford relief; but it is not necessary to resort to such a dilatory and expensive proceeding when the court itself is ready to act. The docketing statutes provide that the judgment, when docketed, shall operate as a judgment originally obtained in the common pleas. Execution issues from that court and revival by scire facias may be had there. Gen. St. p. 1879, §§ 73-75. (P.. L. 1898, p. 619, §§ 172-174). It cannot be that a court is compellable to give effect to a void judgment, or is unable to effectuate an adjudication of avoidance. I apprehend that, if the clerk of a court of common pleas has doubt of the regularity of papers tendered for docketing, he may submit the matter to the court. I see no reason why, if he fails to do so, the court may not, on due notice, expunge an invalid entry from its docket. Courts of general jurisdiction have control of all their records, subject, of course, to review in the case of those of inferior jurisdiction. Void judgments may be vacated at any time. 17 Am. & Eng. Enc. Law, 823; Jones v. McKelway, 17 N. J. Law, 345. There was, therefore, we think, power to va cate the docketing. Its invalidity is conceded. There was, if no other, the same defect as that held false in Grimshaw v. Carroll, 62 N. J. Law, 730, 42 Atl. 733, under legislation substantially identical with that now involved, namely, there was no affidavit of belief that the debtor was not possessed of goods and chattels sufficient to satisfy the amount due. Such an affidavit was legally required at the time of this docketing. Id. There remains for consideration the effect of the act of March 22, 1901 (P. L. p. 355), which declares all judgments previously docketed from courts for the trial of small causes to be valid and effectual in law, and to have the force and effect, from the time of their docketing, of judgments obtained in suits originally commenced in the court of common pleas, notwithstanding the omission of such an affidavit; with provisos saving previous decisions and pending cases. Whatever may be the effect of this supplement on the parties to a judgment, it is plain it can have none on the grantees of the judgment debtor under a deed given before its enactment. Their vested rights are preserved by the general "act relative to statutes" of March 27, 1874 (3 Gen. St. p. 3194). Barnaby v. Bradley & Currier Co., 60 N. J. Law, 158, 37 Atl. 764. It is urged that it does not appear that the defendants in certiorari were bona fide purchasers for value, without notice of the judgment. I do not understand that such a status is essential. The deed recited does show a purchase for value. The purchasers had a right to rely on the invalidity of the docketing of the judgment, and therefore ignore it. Their standing to make the application in order to relieve their property from the cloud of the judgment has not been questioned, and was, we think, unquestionable. This court, in a very early case, set aside a judgment of its own, when shown to be avoidable, on the motion of a grantee of the judgment debtor. Reed v. Bainbridge, 4 N. J. Law, 351. This principle of decision was afterwards doubted when sought to be applied in favor of creditors of the judgment debtor, but later was upheld (Clapp v. Ely, 27 N. J. Law, 555, 569), and has recently been recognized as warranting an application by execution creditors to set aside an attachment improvidently issued against the debtor (Papeterie Co. v. Kinsey, 54 N. J. Law, 29, 23 Atl. 275). The practice is quite general to afford relief against void judgments to any person interested. 17 Am. & Eng. Enc. Law, 839. No notice of the application to vacate the docketing was given to the judgment debtor, but the plaintiff cannot complain of that omission, and there seems no reason to relegate the applicants to a new proceeding. The order of the common pleas to set aside absolutely the docketing was unauthorized in the absence of the judgment debtor. It is possibly of advantage to her that it stand. The order therefore will be reversed, and the record will be remitted, with directions to make an order setting aside and vacating the docketing of the judgment in question so far forth only as respects the land owned by the applicants. No costs will be allowed in this court. HOAGLAND v. SAUL. (Court of Chancery of New Jersey. Nov. 22, 1902.) BUILDING ASSOCIATIONS-LIQUIDATION -RE- DIVIDENDS MASTER'S 1. On foreclosure of a mortgage given to a building and loan association to secure a bond conditioned that the mortgagor shall pay the principal of the loan in six months, with interest, "together with all dues and premiums due from him at the expiration of each month," the mortgagor is not entitled to have the sums paid by him for dues credited on the mortgage debt. 2. On foreclosure of a mortgage given to a building and loan association, the stock held by the mortgagor, and assigned as collateral to the mortgage, should be sold, and the proceeds credited on the mortgage debt, before recourse to the mortgaged premises. 3. Where the scheme of a building and loan association contemplates that each member shall pay monthly dues on his stock until the value is raised to par, and that then the stock shall be applied to the payment of the loans of the borrowing members, and the stock of the nonborrowers be redeemed, and the bonds given by the borrowers are conditioned to pay the principal and interest of their loans, and also to pay the monthly dues and premiums on their stock, on the failure of such association, and foreclosure by its receiver of a mortgage given by a borrowing member, the scheme having failed, the dues and premiums payable by the terms of the bond should not be made a part of the mortgage debt. 4. As by such liquidation the association is unable to perform its part of the contract under which the mortgagor agreed to pay a premium, the payments made on that account were without consideration, and should be credited on the mortgage debt. 5. Where the bond and mortgage given by a borrowing member to a building and loan association oblige him to pay the principal and interest of the loan in full, on the liquidation of such association and foreclosure of such mortgage by its receiver the member is not entitled to have the dividends which may be finally payable on his stock computed, and applied in reduction of the mortgage debt. 6. An exception to a master's report, which merely challenges the report as erroneous, is too general. Action by James R. Hoagland, receiver of the Merchants' & Mechanics' Saving Fund & Building Association, to foreclose a mortgage. On exceptions to master's report. Sustained in part. Walter H. Bacon, for exceptant. James R. Hoagland, pro se. GREY, V. C. The bill of complaint in this cause is filed by the receiver of the Mer 1. See Building and Loan Associations, vol. 2. Cent. Dig. §§ 61, 62. chants' & Mechanics' Saving Fund & Building Association to foreciose a bond and mortgage dated August 17, 1894, made by George C. Saul to that association to secure the payment of $1,200, with interest in six months after date, together with dues and premiums. The condition of the bond acknowledging the debt is as follows: "The condition of this obligation is that, if the said George C. Saul, or his representatives, shall pay to the said Merchants' and Mechanics' Saving Fund and Building Association, their treasurer, attorney, successors, or assigns, the sum of twelve hundred dollars, being six loans in said association, in six months after date hereof, with lawful interest thereon, together with all dues and premiums due from him at the expiration of each month after date, then this obligation to be void." The defendant answers the bill, admits the capacity of the complainant to sue, admits also the execution and delivery of the bond and mortgage, denies that he was a stockholder in the corporation, except as the holding of stock was incident to his becoming a borrower of money. He admits that he is indebted to the association or to its receiver, but to what amount he does not know, and avers that he has paid large amount of moneys on account of his indebtedness; that he has receipts for the payments aggregating $229, and he believes that he has paid upwards of $500 on account of his debt. He insists that he is entitled to credit on the mortgage debt for the whole amount paid by hin, and asks that an account might be stated on a reference, and that he might be charged only with the mortgage debt and interest thereon, and that he may be credited for all moneys paid by him to the association since the making of the mortgage. He avers that the complainant has a large number of bonds and mortgages of like character in his hands, securing debts which have been almost entirely discharged by the monthly payments made on account thereof; that many of the mortgagors are, like the defendant, unable to pay in full the principal of their loans, unless allowance be made to them of the dues paid by them as credits on their respective debts; that many of the mortgages were taken on real estate at higher prices than at present, and foreclosure now would not only deprive the defendant or the mortgagors of their properties, for which they have already partly paid, but would result in loss to all shareholders by reason of the great expense of foreclosure and loss on securities by reason of the depreciation of values. The matters in dispute being questions of computations and application of payments, an order of reference was, by consent of counsel, made to a master to hear testimony and state an account. The master heard the parties interested, and made his report under date of February 5, 1902. The defendant, Saul, then excepted to the master's report by nine separate exceptions, which I will state and dispose of as they appear on the file. 53 A.-45 The first, second, and third exceptions challenge the report because the master did not credit on the mortgage debt all of the moneys paid into the association, thus allowing the association to appropriate some of those payments as dues on stock. The substance of these exceptions is the claim that the association was bound under its scheme and the condition of the mortgagor's bond, to credit as payment on account of the mortgage debt all the payments which the mortgagor made, and none of them on account of the dues payable on the stock. Neither the scheme of the association nor the condition of the bond required the association to credit as payments on the mortgage debt moneys paid to it as dues on stock. The exceptions do not charge that the master has mistakenly credited moneys which were in fact paid on the mortgage debt as dues on the stock, but assert the right of the mortgagor to have payments which have already been rightfully appropriated to the payment of dues credited in part payment of the mortgage debt. This contention cannot be maintained. The first, second, and third exceptions are overruled. The fourth and eighth exceptions deal with the same point, and are substantially claims that the master has failed to credit the defendant on his mortgage debt with the value of the stock in the association, the shares of which were assigned as collateral to the mortgage debt. In the case of Association v. Patterson, 27 N. J. Eq. 225,-a building association, foreclosing a mortgage the condition of which was quite similar to that presently under consideration,-the court declared that the association should be required to sell the mortgagor's stock which it held as collateral security, and to apply the proceeds of the sale to the payment of the amount due on the mortgage, before having recourse to the mortgaged premises. In that case the above declaration was made on final hearing, and, as the master's report is for the purpose of definitely ascertaining the amount due on the mortgage, so that a final decree can be made, it would appear that the mortgagor had a right to require that the value of his stock should be ascertained by sale, and credited on the mortgage, before the master's report has finally ascertained the amount for which the mortgaged premises should be sold. The fourth exception may be taken to be an assertion of this right of the mortgagor. It jus tified the delaying of a final decree until the mortgagee or its representative shall, in the manner indicated, have ascertained the value of the stock pledged as collateral, and credited it against the mortgage debt. The fourth and eighth exceptions are therefore sustained. The fifth exception challenges the manner which the master has pursued in calculating and ascertaining the amount due on the mortgage. The ascertainment of the amount due on a bond and mortgage is controlled in each case by the condition of the bond secured to be paid by the mortgage and the transac |
