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dispute did not exceed $200, should be cognizable in any District Court in the cities where they might be established, although the cause of action did not arise in such city; and that said District Courts should have jurisdiction, exclusive of all other courts except the Circuit Court of the county, in all cases under the act where the party defendant resided within the corporate limits of the city wherein said court should be established.

In Fraley v. Feather and Funck v. Smith, the Supreme Court held that the grant of exclusive jurisdiction to the District Court, where the defendant resided within the corporate limits of the city where such court was established, did not disable other courts from hearing a cause whose subject matter was within their jurisdiction, but in which the defendant resided in a city where a District Court was established; that the purpose of the legislation was to confer upon residents of such cities a personal privilege of having suits against them, if of such a nature as to be cognizable before the District Court, brought in such District Court rather than elsewhere; and that this privilege might be waived by appearance without objection.

The District Court act of 1898 (Pamph. L., pp. 556, 564), in its thirtieth section, prescribes in what class of actions the District Court is to have jurisdiction; and in its thirty-first section declares that no justice of the peace or Court for the Trial of Small Causes shall have jurisdiction over any cause or proceeding cognizable before a District Court, where the defendant resides within the limits of a city where a District Court is established. The title of this act is “An act concerning district courts." Whether under a title thus limited the prohibition respecting the jurisdiction to be exercised by the small cause court can have effect, in view of the constitutional requirement that the object of an act shall be expressed in its title, may be questionable. See Evernham v. Hulit, 16 Vroom 53, 56; Hendrickson v. Fries, Id. 555, and numerous subsequent decisions to the same effect.

Plaintiff in error, however, does not rely upon the prohibition just cited from the District Court act, but upon that

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which is contained in the “Act constituting courts for the trial of small causes," as recently revised, and found in Pamph. L. 1903, p. 251. The first section of this act, which prescribes the jurisdiction of the small cause court, contains a proviso that “the said court shall not have jurisdiction over any cause or proceeding cognizable before a District Court, where any defendant resides within a municipality wherein a District Court is established.”

We may concede that this proviso, if read literally, and without regard to other provisions contained in the act and the general spirit and purpose of the legislation, may receive such a construction as is contended for by plaintiff in error. if construed, as we must construe it, in the light of these, it bears a different meaning.

The distinction is between jurisdiction over the subjectmatter of the cause and jurisdiction over the person of the defendant. The former imports the authority of the tribunal to take cognizance of and determine the questions involved in the litigation, supposing the parties have been properly brought into court. The latter imports the lawful power to exercise judicial authority over the parties. No doubt it is competent for the legislature, in establishing a statutory tribunal, to prohibit any exercise of its judicial authority in a given class of cases, whether with or without the consent of parties. Except, however, where such a prohibition exists, jurisdiction over the parties may be conferred by their .consent, and the court in question may thereupon hear and determine the controversy between them, provided its subject-matter be one that is lawfully cognizable by the court.

In the act found in Pamph. L. 1903, p. 251, it seems to us that the body of section 1 and its first proviso have to do with jurisdiction over the subject-matter, and that the second proviso has to do with jurisdiction over the person of the defendant. It is quite reasonable to suppose that the legislature intended in this enactment to preserve the situation that had resulted from the former legislation as construed in Fraley v. Feather and Funck v. Smith. And this purpose is rendered clear by what is contained in the fifth section. This section

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takes the place of section 6 of the former act constituting Courts for the Trial of Small Causes (Gen. Stat., p. 1865), which reads as follows: “That parties may agree to enter without process any action before a justice of the peace, to the decision of which he is competent, if process had been executed, and the court shall proceed thereon to final judgment and execution in the same manner as if a summons or warrant had been issued and duly served.” The present section 5 (Pamph. L. 1903, p. 252) reads as follows: “Parties may agree to enter without pi ess any action in said court, which shall be cognizable therein, and the court shall proceed thereon to final judgment and execution in the same manner as in cases where process has been duly served."

Upon the whole, we deem it clear that the proviso quoted from section 1 merely confers a personal privilege, which may be either asserted or waived by the defendant entitled to it. That it was waived in the present case is equally clear. The defendant, if he was entitled to the privilege, must be deemed to have agreed with the plaintiff to enter the action without process. Smith v. Colloty, 40 Vroom 365, 375, and cases cited.

By the ninth section of the act of 1903, the territorial jurisdiction of the justice of the peace is made co-extensive with the limits of the county in and for which he is elected and commissioned; and the section proceeds to say: "His writs, precepts and process issued out of said court shall run in and through such county, and he may, in causes pending before him, award writs of subpæna for witnesses into other counties of this state.” In view of this, and of what we have already said as to the construction of the proviso quoted from section 1, it may be questionable whether that proviso ought to be treated as operating at all (even to the extent of conferring a personal privilege) with respect to defendants who reside in a city having a District Court, where such city is not within the bounds of the county in which the justice's court is situate. This question does not require decision in the present case, and we therefore intimate no opinion concerning it.

The judgment under review should be affirmed.

49 Vroom.

Jones v. Pennsylvania R. R. Co.


For reversal-None.



Argued November 19, 1909-Decided February 28, 1910.

1. The duty imposed by law upon a railroad company to exercise

care about warning travelers at a crossing, cannot be evaded by

delegating its performance to others. 2. After the trial of an action of tort brought against two defend

ants, the jury, having retired to consider of their verdict, returned into court and delivered the verdict to the deputy clerk (the judge being absent). Being asked if they had agreed, they responded in the affirmative, and that the foreman would speak for them; the foreman then declared that the jury found the defendants guilty, and assessed the damages $3.000 against one defendant, and $3,000 against the other defendant (naming them); the deputy clerk thereupon said to the jury: "Gentlemen, hearken to your verdict as the court has ordered it recorded ; you find the defendants (naming them) guilty, and assess the damages of the plaintiff at the sum of $6.000," and to this the jury all agreed.-Held, the assent of the jury to the statement of their verdict as formulated by the deputy clerk sufficiently showed that their assessment of damages was $6,000, and not $3,000, and warranted the entry of judgment against both defendants for the larger sum.

On error to Camden Circuit Court.

For the plaintiff in error, Gaskill & Gaskill.

For the defendant in error, Wescott & Wescott.

Jones v. Pennsylvania R. R. Co.

78 N. J. L.

The opinion of the court was delivered by

PITNEY, CHANCELLOR. The plaintiff, while riding as a passenger upon a street railway car in the city of Camden operated by the Public Service Corporation, was injured in a collision that occurred between that car and a railroad train operated by the Pennsylvania Railroad Company. To recover her damages she sued both companies jointly. The action resulted in a judgment in favor of the plaintiff and against both defendants. The Pennsylvania Railroad Company alone prosecutes this writ of error.

The only questions raised are—first, whether the trial court erred in refusing motions for nonsuit and for direction of a verdict in favor of the plaintiff in error, and second, whether the court erred in refusing a motion subsequently made for arrest of judgment and award of a venire de novo, this motion being based upon an alleged irregularity in the taking and recording of the verdict.

The first question turns upon whether there was any evidence of negligence on the part of the plaintiff in error. The bills of exception disclose that at the place in question the tracks of the Pennsylvania Railroad Company cross the street at grade, and that at the time of the collision this company was engaged in construction work preparatory to the elevation of its tracks. The grade crossing was still in use, and was guarded by gates so far as the principal tracks were concerned. But there was a temporary construction track that ran along outside of the gates and on that side from which the street car approached. On each side of the crossing the retaining wall of the proposed railroad embankment had been constructed to a sufficient height, and near enough to the street railway tracks, to seriously interfere with the view of approaching railway trains by the motormen operating the street cars.

The negligence attributed to the plaintiff in error consisted in this, that a train was backed down along the construction track to and over the crossing without giving proper warning to travelers upon the street (including the motorman of the street railway car, in which plaintiff was riding), and

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