reason to believe that the family may become chargeable to such township or city. In this case complaint was made, before a justice of the peace having jurisdiction, that the defendant, as complainant "is credibly informed and verily believes, neglects and refuses to support and take care of his family, and that by reason thereof such family is likely to become a charge upon the city of Millville." On this complaint a warrant was issued, the defendant arrested, brought before the justice and entered into a recognizance to appear for a hearing, which was had April 23d, 1908, at which both parties appeared, when counsel for defendant moved that the complaint be dismissed because it did not contain the words. "deserts and willfully." This motion was overruled, after which, according to the record, the plaintiff moved to amend the complaint in the particular complained of, "and no objection being made the same was allowed and filed." The trial then proceeded, resulting in the conviction of the defendant and an order for maintenance, from which the defendant appealed to the Court of Quarter Sessions of the county of Cumberland, in which court the appellant moved to dismiss the complaint on the ground that the court had no jurisdiction because the complaint, as originally made before the justice, failed to show that the appellant "deserts and willfully neglects" to support his family, and that the amendment of the complaint made by the justice could not be made against the objection of the appellant. The Court of Quarter Sessions dismissed the proceedings upon the ground that the complaint was defective, without proceeding to hear and determine the appeal upon its merits.

A review of this determination is the object of this writ, and the principal reasons urged in its support is that the justice had jurisdiction; that the appeal cured any want of jurisdiction in the Justice Court, if it existed, and that the Court of Quarter Sessions could not act as a court of review.

There can be no doubt under the settled law of this state that in order to give the justice jurisdiction to act in a case of this character, there must be a complaint under oath, set

ting forth the jurisdictional facts, and also that one of the jurisdictional facts is that the defendant willfully refuses or neglects to support his family, and for want of this necessary and material statement in the complaint, the justice lacked jurisdiction, and should have dismissed the proceedings on the application of the defendant. The record shows that the amendment was made before the justice without objection, and thereafter the merits of the controversy tried before the justice. Whether the justice had the power to allow such an amendment it is not necessary to determine, because the record, as amended and returned to the Court of Quarter Sessions, disclosed a sufficient complaint, and it was the duty of that court to retry the cause, and not to pass upon the legality of the procedure in the court below. Barclay v. Brabston, 20 Vroom 629. If the amendment was erroneously allowed by the justice, and his jurisdiction to hear the cause improperly obtained by reason thereof, it was a legal error subject to review by certiorari. The defendant, as was said in Barclay v. Brabston, supra, had a choice of remedies, by certiorari for a legal review, or by appeal for a new trial. He chose to appeal from the judgment based upon the record as amended, and is bound to stand by his choice. The Court of Quarter Sessions had no power to review, on the appeal, the legal error, if any, of the justice.

This result renders it unnecessary to consider the other reasons urged by the prosecutor on the argument.

The judgment challenged by this writ is set aside, with costs, and a new trial ordered.

49 Vroom.

Coast Realty Co. v. Newgold.

COAST REALTY COMPANY, DEFENDANT IN CERTIORARI, v. GABRIEL A. NEWGOLD, PLAINTIFF IN CERTIORARI.

Submitted March 18, 1909-Decided June 7, 1909.

By the terms of a lease the premises were let from June 15th 1908 to April 1st, 1913; the rent reserved for the whole period was $14,250, payable in definite installments; the last payment to be made in 1908, was $650 August 10th, 1908, "same being rent in full for the first year," and the remaining payments were provided for as follows: "For the remaining four years the rent shall be paid as follows: Seven hundred dollars on the first day of January of each year," &c. Held, that the next payment after August 10th, 1908, matured January 1st, 1909.

On certiorari to Justice Court.

Before Justices GARRISON, BERGEN and VOORHEES.

For the plaintiff in certiorari, Frank Transue.

For the defendant in certiorari, Durand, Ivins & Carton.

The opinion of the court was delivered by

BERGEN, J. The parties to this controversy entered into a written agreement, bearing date April 13th, 1908, by the terms of which the Coast Realty Company, as owner, let to Gabriel A. Newgold, as tenant, a hotel property located in North Asbury Park in this state. The landlord instituted Proceedings to dispossess his tenant for non-payment of rent, which resulted in a judgment for the landlord, and thereupon a warrant for possession was issued, duly executed, and the landlord is now in possession. The tenant challenges the correctness of these proceedings, the record of which has been brought into this court by a writ of certiorari.

The only question requiring consideration is whether an installment of rent matured January 1st, 1909; if it did, as the court below determined, then the judgment should stand.

Coast Realty Co. v. Newgold.

78 N. J. L.

That part of the lease pertinent to the question presented runs as follows: "Term: The period covered by this lease is from June 15th, 1908, to April 1st, 1913. Rent: The total amount of rent for said premises, as hereby mutually agreed apon, is fourteen thousand two hundred and fifty ($14,250) dollars, payable as follows, by said tenant, at the office of Ferguson & Son, Asbury Park, N. J.:

"The first payment made upon the signing of this lease, the receipt of which is hereby acknowledged, is one thousand ($1,000) dollars, and the further sum of six hundred ($600) dollars, July 10th, 1908, and the further sum of six hundred ($600) dollars, August 1st, 1908, and the balance of six hundred and fifty ($650) dollars, August 10th, 1908. Same being rent in full for the first year.

"For the remaining four years the rent shall be paid as follows: Seven hundred ($700) dollars on the first day of January of each year; seven hundred ($700) dollars on the first day of May of each year; seven hundred ($700) dollars on the tenth day of July of each year, and seven hundred and fifty($750) dollars on the fifth day of August of each year."

According to the contract the term granted is from June 15th, 1908, to April 1st, 1913; the rent to be paid for the whole term, $14,250, and the payments for each year of the term are to be concluded in the month of August. For the first year the payments were made as stipulated, and the present dispute is whether the first installment of the remaining four years became payable January 1st, 1909. The tenant makes two claims-first, that when he paid the last installment of rent due August 10th, 1908, the rent was paid to April 1st, 1909, and that therefore the first installment of rent for the remaining four years was not payable until May 1st, 1909, and second, that the expression "same being rent in full for the first year," referring to the payment in August, 1908, concludes the landlord from demanding rent until after the expiration of one year from the date when the lease went into effect, which would be June 15th, 1909, and therefore the next installment, after August, 1908, would not mature until July 10th, 1909, whereas the landlord contends that the pay

49 Troom.

Coast Realty Co. v. Newgold.

ments for the remaining years began January 1st, 1909. will be observed that the payment of the whole rent reserved of $14,250 is so apportioned that the amount of $2,850 is paid by August 5th, of each year, and the intention that it should be is indicated by the clause in the lease, which declares that when $650 was paid in August, 1908, it was in full for the first year, and according to the theory of the landlord the payments for the next year, if the first installment matured January 1st, would be concluded on the 5th day of August, and so for each succeeding year, the last payment being in August, 1912.

The tenant cannot stand on his first proposition, because April 1st, 1909, was not the expiration of one year from June 15th, 1998, and the words "the same being rent in full for the first year" must apply either to the year 1908, or to a year ending June 15th, 1909.

As to the second point we are of opinion that the lease provides for the payment of all the rent on or before August 5th, 1912, which would not be accomplished if payments for the remaining four years did not commence on January 1st, 1909, and this would not be open to argument except for the statement in the lease, after providing for payments to be made in 1908, "same being rent in full for the first year," but this has reference to the effect of payments made, and does not relate to the time agreed upon for future payments. Certain payments were to be made in 1908, and when made were in satisfaction of a part of the term, and other payments were promised for the rest of the term, beginning, if we regard the order in which they are named, on the 1st day of January next following. Even if we concede that the payments in 1908 were for a term extending beyond January 1st, 1909, there is no reason why the parties might not contract to pay in advance of the beginning of the following year; they did contract that after the payment in August, 1908, a payment should be made on the 1st day of January in each year until, by necessary implication, the whole debt was extinguished. The term granted does not cover five years, for it goes into effect June 15th, 1908, and expires April 1st, 1913, which