we have not considered, and with respect thereto express no opinion.

But for the reasons indicated, we think the resolution and all proceedings under it were invalid, and they will be set aside, with costs.

PATRICK J. WALSH, PROSECUTOR, v. THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK ET AL.

Submitted March 19, 1909-Decided June 30, 1909.

The statutory limitation upon the allowance of the writ of certiorari (Pamph. L. 1907, p. 109) cannot be enforced for the protection of an assessment made upon a landowner which the legislature could not constitutionally authorize.

On certiorari.

Before Justices REED, TRENCHARD and MINTURN.

For the prosecutor, Riker & Riker.

For the defendants, Francis Child, Jr.

The opinion of the court was delivered by

TRENCHARD, J. This writ of certiorari brings up for review an assessment for benefits conferred by the construction of sewers made upon lands of the prosecutor.

The material questions in this case are the same as those considered and decided at the present term of this court in the case of Groel r. Newark, ante p. 142, with this exception: In the present case it appears by stipulation of counsel that the alleged assessment was confirmed by the Circuit Court on January 16th, 1908, and this writ of certiorari was not allowed until December 1st, 1908.

It is insisted by the defendant that, in view of "A supplement to an act entitled 'An act relative to the writ of

certiorari (Revision of 1903),' approved April 8th, 1903" (Pamph. L. 1907, p. 109), the prosecutor is in laches in procuring his writ, and is debarred of his remedy.

The act of 1907 provides that "no writ of certiorari shall hereafter be allowed to review any assessment or assessments made upon the owner or owners of land or lands for benefits assessed * * * for the construction or cost of construction of any sewer or sewers unless application for such writ shall be made within sixty days after such assessment or assessments shall have been confirmed by a court of competent jurisdiction

*

* * * "

* * *

While the record before us does not show when the writ was applied for, yet we assume, as counsel in their briefs have assumed, that it was more than sixty days after the alleged assessment had been confirmed.

But notwithstanding this act, we think the prosecutor was not deprived of his remedy.

We have pointed out in the other case (Groel v. Newark) that the ordinance providing for the construction of the sewers on account of which the assessment in question was made, was adopted without either actual or constructive notice to the prosecutor, and that, for that reason, the ordinance and all proceedings thereunder, were void as to the prose cutor, because he was deprived of his constitutional right to be heard before his property rights were affected, and that the defeat was not remedied by the act of 1905. Pamph. L., p. 414. In that case we further pointed out that the prosecutor was not prejudiced in his rights by not attempting to set aside the ordinance until after an assessment was attempted to be made under it, because it appeared that he was led to believe that the general scheme of improvement was to be made at public expense and that no assessment would be levied against him.

By the failure of the municipal authorities to give either actual or constructive notice to the prosecutor of the intention to adopt, or the pendency of, the ordinance by virtue of which they attempted to assess his land, they failed also to acquire the right to impose the assessment of special benefits in ques

Williams v. Public Service Railway Co.

78 N. J. L.

tion. Under such circumstances it is not within the constitutional power of the legislature to sanction a special assessment. Meredith v. Perth Amboy, 34 Vroom 520.

The statutory limitation upon the allowance of the writ of certiorari cannot be enforced for the protection of an assessment which the legislature could not constitutionally authorize. Meredith v. Perth Amboy, supra; Pardee v. Perth Amboy, 28 Vroom 106; Kirkpatrick v. Commissioners, 13 Id. 510; Traphagen v. West Hoboken, 10 Id. 232; S. C. on error, 11 Id. 193; Evans v. North Bergen, 10 Id. 456.

For this reason, and for the reasons given in the case of Groel v. Newark, the assessment under review, together with the preliminary proceedings upon which it rests, so far as they affect the prosecutor, must be set aside and vacated, with costs.

ALEXANDER WILLIAMS v. PUBLIC SERVICE RAILWAY COMPANY.

Argued February 16, 1909-Decided September 24, 1909.

Matters arising after the commencement of an action and before plea may be pleaded against the further maintenance of the suit.

On motion to strike out plea.

Before Justices REED, TRENCHARD and MINTURN.

For the motion, Abner Kalisch and Samuel Kalisch, Jr.

Contra, Leonard J. Tynan.

The opinion of the court was delivered by

TRENCHARD, J. This is a motion to strike out a plea. On December 23d, 1908, Alexander Williams issued a summons out of the Supreme Court in an action in tort against

49 Vroom.

Williams v. Public Service Railway Co.

the Public Service Railway Company, which summons was returnable January 4th, 1909.

On January 21st, 1909, he filed his declaration.

On February 6th, 1909, the defendant company filed two pleas, one the general issue and the other that the plaintiff ought not to further maintain his action because of a general release under seal given to the defendant by the plaintiff after the commencement of the action, to wit, January 23d, 1909. The plaintiff now moves to strike the last-mentioned plea from the record as having been improperly filed.

As we understand the argument of counsel for the plaintiff it is that the plea is bad, because he asserts that the plaintiff was a minor at the time suit was brought.

Whatever the fact may be in that regard, there is no indication of infancy of the plaintiff on the face of the summons. Nor is there in the declaration any allegation to that effect which the defendant is bound to negative. In its commencement by way of recital it is said that the plaintiff, being a minor, sues by his next friend. But there is no substantive allegation that he is a minor either there or elsewhere in the declaration. If he was an infant at the time suit was brought, still he might well have been of full age when he subsequently executed the release. If of full age, the release, being a matter of defence arising since the commencement of the action, but before plea, may be pleaded against the further maintenance of the suit. Hendrickson v. Hutchinson, 5 Dutcher 180; Dryer v. Lewis, 57 Ala. 551; Kimball v. Wilson, 3 N. H. 101; Wisheart v. Legro, 33 Id. 177; Clark v. Fox, 9 Dana (Ky.) 193. If the plaintiff was an infant at the time of the execution of the release, that fact would not make the release void. It would only render it voidable. If the plaintiff desires to avoid the release on account of his alleged infancy, he should file a replication setting up his infancy.

The plea being good, the motion to strike it out is denied.

Worcester Loom Co. v. Heald.

78 N. J. L.

WORCESTER LOOM COMPANY, PLAINTIFF IN ERROR, v. ALFRED HEALD ET AL., DEFENDANTS IN ERROR.

Submitted December 5, 1908-Decided February 23, 1909.

1. A compromise of a disputed claim made in good faith furnishes a good consideration to support a contract, even though it should appear that such claim was in fact wholly unfounded.

2. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made. 3. The admission of evidence which bears remotely on the issue involved in a cause is within the discretion of the trial judge, and its admission is no ground for reversal on error.

On error to Camden Circuit Court.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCHARD.

For the plaintiff in error, Wilson, Carr & Stackhouse.

For the defendants in error, William Harris and Frederick A. Rex.

The opinion of the court was delivered by

TRENCHARD, J. This writ of error brings under review a judgment of the Camden Circuit Court in favor of the defendants below in an action brought to recover the balance alleged to be due for work done and for material furnished to the defendants by the plaintiff in pursuance of a written contract.

Upon the trial it appeared that the defendants were interested in perfecting and making commercially available a certain carpet loom, which was covered by letters patent of the United States. The plaintiff company was engaged in the business of manufacturing carpet looms. The defendants' Joom, while in an experimental stage, was delivered to the plaintiff for the purpose of perfecting it, and, if possible, putting it in good working order.