for which the declarations were offered is not stated in the opinion of the court. It is impossible, therefore, to determine whether the case is an authority against the admissibility of the declarations of the testator for the purpose of proving his intention at the time they were made, with relation to the making or not making a testamentary disposi tion of his property. It is also to be observed that the decree of the Prerogative Court was affirmed, when the case came into this court, without any expression of opinion on the subject of the propriety of excluding these declarations. Gordon v. Old, 7 Dick. Ch. Rep. 317.

In Davis v. Elliott, 10 Dick. Ch. Rep. 473, Chancellor McGill, sitting in the Prerogative Court, took into consideration declarations of the testatrix showing her testatmentary intentions with relation to the caveator in determining the question whether the alleged will was a forgery. This decision, rendered five years after that promulgated by him in the Gordon case, would seem to justify the inference that the later case was not considered by him to be in conflict with the earlier one, and that the rejected declarations in the Gordon case were not offered to prove the state of mind of the testator, but for the same purpose which led to their rejection in the Rusling case, viz., as evidence of the facts declared.

From this résumé of the New Jersey cases it appears that the Prerogative Court, from its decision in Day v. Day in the year 1831 down to that in Davis v. Elliott in 1897, has consistently held to the view (with the possible exception of the Gordon case) that antecedent declarations of the testator are competent for the purpose of showing that the provisions of a contested will are contrary to or in harmony with his intentions, views and feelings as exhibited by those declarations; that the Supreme Court at one time held the same view, but subsequently repudiated it, and held that such declarations were competent only for the purpose of showing mental capacity or lack of it in the testator, and that this court has not until this time been called upon definitely to decide the question, but has obiter expressed the view that such declarations are competent for the purpose of

showing the state of mind of the testator when his state of mind at the time of making the declarations is germane to the issue being tried.

The present case now requires us to declare our conclusion upon this question, and it is this: That the true rule is that stated by Professor Wigmore in his very able treatise on the Law of Evidence, § 1735, viz., that where the issue is whether a will was executed, or whether a will was made to have a certain tenor or provision, the pre-existing testamentary design of the alleged testator is always relevant, and to evidence the existence of that design his antecedent statements are admissible when not too remote to be material.

The excluded declarations of Mr. Russell tending to show his testamentary design are those referred to in the opinion of the Supreme Court as being made the subject of the seventeenth and eighteenth assignments of error in that court and those contained in the proferred testimony of Elisha Doremus. These declarations were not rejected as too remote in point of time, but solely upon the ground that they were hearsay. Under the rule which we have declared they were not objectionable upon that ground, and should have been admitted, unless it had been made to appear that they were so remote as to be immaterial upon the issue whether the paper-writing dated thirteen days before the death of Mr. Russell was, in fact, his last will and testament, or whether it was a forgery. Their exclusion, was, we think, harmful

error.

It is proper that we should say before closing that, in the state of our decisions as they existed at the time when this ' case was tried, the trial court was not only justified in following the decision of the Supreme Court in Boylan ads. Meeker, but was under a legal obligation to do so, and that the Supreme Court itself was also required to pursue the same course unless it considered that decision to be manifestly unsound.

The exclusion of the declarations of the testator makes it necessary to reverse the judgment under review and to order 3 new trial.

Harrington's Sons Co. v. Jersey City.

78 N. J. L.

For affirmance-THE CHANCELLOR. 1.

For reversal-THE CHIEF JUSTICE, GARRISON, SWAYZE, TRENCHARD, PARKER, VOORHEES, BOGERT, VREDENBURGH, VROOM, GRAY, DILL, CONGDON, JJ. 12.

THOMAS HARRINGTON'S SONS COMPANY, PLAINTIFF IN ERROR, v. THE MAYOR AND ALDERMEN OF JERSEY CITY ET AL., DEFENDANTS IN ERROR.

Argued November 18, 1909-Decided February 28, 1910.

1. When the legislature has framed a new and general rule covering a subject-matter, all earlier and different rules touching the same matter are to be discarded in favor of such later rule.

2. In awarding contracts for the removal of garbage the provisions of the one hundred and fifty-ninth section of the charter of Jersey City (Pamph. L. 1871. p. 1160) are superseded by the provisions of the General Garbage act of 1902. Pamph. L., p. 200.

On error to the Supreme Court.

The writ of certiorari in this case brought into the Supreme Court for review the action of the board of street and water commissioners and the mayor of Jersey City in awarding a contract to Henry Byrne for the removal of garbage for the fiscal year beginning December 1st, 1908. The chief ground of attack upon this municipal action was its noncompliance with the provisions of the Garbage act of March 27th, 1902 (Pamph. L., p. 200), which requires that contracts awarded under that act be given to "the lowest responsible bidder who shall give satisfactory bonds for the faithful performance of the work."

The prior acts of 1891 (p. 249), 1897 (p. 248), and the charter of Jersey City (Pamph. L. 1871, p. 1160) conferred

49 Vroom.

Harrington's Sons Co. v. Jersey City.

power to enter into such contracts, the limitation imposed by section 159 of the charter of Jersey City being that the contract should be awarded "to that responsible bidder who offers the terms most advantageous to the city." The case was heard before Mr. Justice Swayze, sitting for the Supreme Court, who filed the following opinion:

SWAYZE, J. The contract in question in this case for removing ashes and garbage was a contract for one year only. It is not necessary, therefore, for the defendants to appeal to the act of 1896 as amended in 1902. I am satisfied that that act is applicable only to the case of contracts for more than one year. There is no inconsistency between the act of 1902 and the act of 1897 (Pamph. L., p. 248), which expressly authorizes the board of street and water commissioners to remove, by contract or otherwise, ashes, offal, garbage and other refuse matter. This act is a supplement to the act of 1891, and is therefore to be read as if it were originally a part of that act, so far as concerns contracts subsequently made. Farrell v. State, 25 Vroom 421.

I think, therefore, that the board of street and water commissioners had power to make contracts for the removal of ashes and garbage regardless of whether or not the power was conferred by the act of 1891 as originally passed. Their manner of exercising this power must be regulated by the provisions of the Jersey City charter. By section 159 (Pamph. L. 1871, p. 1160) the contract must be awarded to that responsible bidder who offers the terms most advantageous to the city. If the provisions had been that the contract should be awarded to the lowest responsible bidder, it would have been necessary, before deciding adversely to the prosecutors on that question, to give them a hearing. Faist v. Hoboken, 43 Vroom 361.

I think that the conference between the representative of the prosecutors and some of the city officials was not such a hearing as is required, and if I thought the case were governed by the rule of Faist v. Hoboken, I should feel con

Harrington's Sons Co. v. Jersey City.

78 N. J. L.

strained to set aside the contract. I think, however, that this case presents a different situation. It is a simple matter to determine the single question of fact whether the lowest bidder is responsible; it is a very different matter to determine what terms are the most advantageous to the city, as required by the Jersey City charter, for this may depend upon a weighing of the relative importance of the difference. in the money cost and the difference in favor of the character, experience and ability to perform the contract of the higher bidder. This was the situation presented here. As I stated at the oral argument, I am satisfied that the city officials acted honestly in the exercise of their discretion, and that there has been no abuse of power by them.

The case is governed by the same rule which was applied in McGovern v. Board of Public Works, 28 Vroom 580, although the language of the charter in that case was somewhat different.

The proceedings brought up by the writ of certiorari in this case should be affirmed, with costs.

For the plaintiff in error, Harry B. Brockhurst and Adolf L. Engelke.

For the defendants in error, James J. Murphy and William D. Edwards.

The opinion of the court was delivered by

GARRISON, J. We think that the court below reached an erroneous conclusion when it determined that the municipal action before it, was to be tested by the provisions of the Jersey City charter of 1871 and not by those of the General Garbage act of 1902. The initial error was in the interpretation of the general act of 1902 that denied its application to a contract for one year. The language of that act is as follows: "It shall and may be lawful for the common couneil, board of aldermen or other governing body having charge of the streets of any city of this state, to enter into and make