thought all the family was rather inclined that way. If you had been a steady man that would do good, and not give your hard work to the taverns, I would try to make your laborlighter. I hope no Roman Catholic paterpence shall ever come out of my labour. I hope God will spair my life long enough to settel that. When you write, let me know the names of your family, and how old they. Let me know soming about William to Youngs and Henrys. John, I cannot come on. Man,

I can scarce walk across the floor of my room. Man, I can write no more at present. If God spairs us, I want you to come on here to see me. William Stewart." On the 22d of December John wrote again to his uncle, as follows: "Washington, D. C., Dec. 22, 1891. Dear Uacle Willie: I have just received your kind letter. It finds me pretty sick with a sore throat, caught by coming through the night so much since mother was taken sick. My wife, Kate, was taken sick on 19th, and now I have another pair of shoes to work for. It is a fine girl. No there is no good to chide mother now. There was many things that made me angry, but it is all over now as each will have to paddle their own canoe. I was right. It was that watch that father prized equaled to his children. It is in pawn for over 5 weeks. I was told this morning by my lawyer that they were defeated in the case again. It looks like God intends that right shall prevail. It seems settled that Mary will go with Ella. It will be very lovely while her money lasts. Mother's coffin had to be made in N. Y. as it was a little over the usual size. I am very sorry to know you are so sick. I truly hope it will be all right though I know it is painful suffering. My family consists of three children, Katherine Agnes, John, and the new baby, Elizabeth. Henry little one is a fine fellow. John is a stout, hearty lad; but his sister Agnes don't grow 80 well; she keep thin. Mother died at 7:30, Sunday, 20. She never come to herself. She tried very hard to say something, but it was too late. It looks out there a night like an Irish wake. All is needed, pipes and toddy. Some many Irish acquaintances made. I would like to come on, and ever you need me I would come. I think this is all, only I wish you were better. We are only tolable. Katy is as well as she can be under the circumstances. Very truly, your nephew, John Stewart."

This last letter was received at Boonton on the 23d of December, and it appears that about that time William Stewart sent for a scrivener, George Anthony, and gave him instructions for the preparation of the will in dispute. That will provides that the testator's estate shall be converted into money, and, after the payment of debts and funeral expenses, that one-half of it shall go to his nephew John Stewart, one-fourth to his nephew Henry | Stewart, and the remaining fourth to the children of his deceased nephew, William, in equal parts. The nephews John and Henry are made executors of the will. The instrument makes no reference to the nieres, Ella Jordan and Mary Stewart. Mr. Anthony, the scrivener, says that he

called William Stewart's attention to his two nieces while the instructions were being given, and that Mr. Stewart expressed an intention to give John the largest share in his estate, saying that it would enable him, when added to that which he would take from his father's estate, to start in business; and that that which he would give Henry, added to that which Henry would take from his father's estate, would also assist him; and that that which he gave to the children of his nephew William would supplement their respective shares in their grandfather's estate, so that they would each equal a full child's share. As to Mrs. Jordan, he said that she had a husband, who would look out for her, and that she would have her share in her father's estate; and as to his niece Mary Stewart, that she would take her share in her father's estate. He gave no further reason, and said nothing about entting his nieces off because of any preference they might have for the Roman Catholic Church. On the 9th of January, 1892, after the will was executed, John Stewart visited his uncle at Boonton, remaining with him until the 26th of January, four days before the uncle died. There is no evidence as to what transpired between them at this visit.

The appellant admits that he knew that his uncle was prejudiced against Roman Catholics, and that the information conveyed by his letters would prejudice him against his nieces; yet he denies that he wrote the letters with intention to create such a prejudice. The statement in the letter of December 18th, that Mrs. Jordan wanted to bring a priest to her dying mother, and that Mary assented, but that the writer of the letter (John) interfered, is untrue in fact. The sisters sent for a Protestant minister. The only basis of fact upon which the statement of the let ter can possibly rest is that, while the sisters were talking about the individual they would send for, a man who was present suggested that a priest might be had, in which suggestion Mrs. Jordan acquiesced; but the suggestion was not acted upon, and it does not appear that John was present when it was made, or knew anything about it until after a Protestant minister had been brought in. It was shown, as has been stated, that the father's watch was pawned by the mother, and not by Mrs. Jordan, and that Mrs. Jordan found the pawnticket among her mother's effects, and indignantly exhibited it to John, saying that she would redeem the watch, and, when her father's estate was settled, would demand reimbursement for the money she thus expended. The proofs further disclose that there was no semblance of an "Irish wake" at the mother's house after her death, and that whatever liquor was drunk there was had in the lower part of the house, by John and his brother and a man who had been a boarder in the house for some years. It is further shown that some 16 or 18 years before his death William Stewart warned his niece Mary that if she ever married a Roman Catholic he would cut her off from any share in his estate, and it is testified by a witness, but denied by

ments for curbing. The assessment was made December 3, 1884; the warrant to sell bears date March 3, 1892; and in the interim the legislature passed the act by virtue of which these proceedings are said to be justified, (P. L. 1891, p. 480.) When this assessment was before this court upon a previous occasion doubt was suggested as to the constitutionality of this statute, assuming that, properly interpreted, it was retroactive in effect. Waln v. Common Council of Beverly, 53 N. J. Law, 560, 22 Atl. Rep. 340.

and that parties to be affected by the adjudication have a right to be heard. Furthermore, that this judicial function must be assumed and exercised by the proper municipal body with special reference to the particular street affected, and a mode must be provided in which the adjacent lot owners may be heard. Bodine v. Trenton, 36 N. J. Law, 198; Dawes v. Hightstown, 45 N. J. Law, 127, 501; Stretch v. Hoboken, 47 N. J. Law, 268.

In the case before us the facts are that Mountain avenue, now one of the streets of the borough of Bound Brook, was laid out as a public road in 1837. The recorded return of the surveyors of highwayscalls for a three-rod road, but the road was orig

ting lands in front of which such work is done, and the same may be collected in the same manner and by the same officers as taxes are or may be collected in such cities."

What there is about cities of the third class that so distinguishes them from all other cities of the state that this peculiar right of lien and consequent sale is appropriate to them alone has not been even suggested in argument or brief. The only characteristics of this class of cities are that their population is not in excess of 12,000, and that they are not on the seashore.

The exclusive right to subject private property to sale for improvements done by the municipality irrespective of the benefit it may be to the landowner must rest upon some more salient feature than inland situation, or number of inhabitants. There is no possible relation between the classification and the proposed burden to property. The act is clearly within the constitutional prohibition. The warrant of sale is set aside, with costs.

VOORHEES v. MAYOR, ETC., OF BOROUGH OF BOUND BROOK.

(Supreme Court of New Jersey. June 9, 1893.) HIGHWAYS-DETERMINATION OF BOUNDARIES

ENCROACHMENTS.

It is the settled law of this state that the determination of the boundaries of a street requires action of a judicial nature to ascertain the precise character and extent of the encroachments, and that parties to be affected by the adjudication have a right to be heard. (Syllabus by the Court.)

Certiorari by John D. Voorhees against the mayor and council of the borough of Bound Brook to review the action of de

fendants in determining the boundaries of a highway. Judgment for prosecutor.

Argued February term, 1893, before VAN SYCKEL and GARRISON, J.J.

H. C. Suydam and J. J. Bergen, for the prosecutor. Frederick C. Marsh, for de fendant.

GARRISON, J. It is the settled law of this state that the determination of the boundaries of a street requires action of a judicial nature to ascertain the precise character and extent of the encroachment,

road only, and in this condition was included within the limits of the borough of Bound Brook, and has so remained to the present time, save in so far as individual landowners bave shifted their fences, or done other acts not resting upon municipal authority. In this condition of affairs, and with the true center line of Mountain avenue a matter of doubt and dispute, the borough, in the fall of 1891, engaged Mr. Judd, a civil engineer, to prepare for it a map showing the boundaries for the several streets of the borough, and also to lay down a scheme of grades based thereon. The year following, in order to render effective a system of improvement based upon this map and survey, the two ordinances were passed that form the subject of the present controversy. These enactments concern the establishment of the boundaries of the streets of the borough, and direct the working of the streets hy the lines thus established to a prescribed grade within 30 days, under penalty of having the work done at the owner's cost by the borough authorities. For all purposes these ordinances refer to the Judd map as conclusive upon the landowner.

The prosecutor is the owner of a lot of land with an ancient dwelling on it, so situated with respect to Mountain avenue that the line established by the Judd map not only takes several feet of his inclosed land, but also a portion of the structure erected thereon. It is admitted that the prosecutor did not participate in the making of the Judd map, and that he had no notice of the ordinance by which his lands are subjected to the lines established by it; on the contrary, he has presented under this writ considerable testimony and some argument that will be directly pertinent to the contested matters when the opportunity for contest shall be afforded him by those charged with the duty of establish. ing the lines in question. That duty, as has been said, requires special action by the borough council, as to which the prosecutor shall have notice, and a reasonable opportunity to be heard. The case is not one where recent or well-defined boundaries have been perceptibly altered or encroached upon, and hence fall under the police powers of the borough. There is here honest room for investigation. So far as the return of 1840 is concerned, the boundaries of the road thereby laid stand as if the road had not been opened at all; in other words, they are yet to be ascertained by

judicial consideration, a consideration that cannot be delegated even to a ministerial officer of the municipality, still less settled by means of a map made by an employe.

Moreover, the acts of 1887 (P. L. 126) and 1888, (P. L. 226,) as pointed out by Werts, J., in Re Piscataway and Bridgewater Townships, (N. J. Sup.) 24 Atl. Rep. 759, specifically apply to Bound Brook, and require notice to be given of the making of ordinances establishing the grades of streets and highways. So that whether we regard general principles or the positive law, the Ordinances in question must be set aside, in order that the boundaries of Mountain avenue may be established in accordance with the rules above indicated.

COLUMBIA BANK v. SPRING, (ROBERTS et al., Interveners.)

(Supreme Court of New Jersey. June 8, 1893.) ATTACHMENT-PROPERTY SUBJECT-INTEREST OF

PARTNER.

The interest of a partner in partnership property may be taken in attachment by his individual creditor. Where, upon a claim of property by the other partners, the evidence is that the defendant in attachment had a partnership interest in the property attached, it is error for the jury to find in general terms for the claimants.

(Syllabus by the Court.)

To an attachment by the Columbia Bank against John H. Spring, Roberts & Sweitzer intervened as owners of the attached property, and to review the judgment in their favor plaintiff in attachment brings certiorari. Reversed.

Argued February term, 1893, before VAN SYCKEL and GARRISON, JJ.

H. Carrow, for prosecutor. is, for defendant.

W. J. Lew

GARRISON, J. The proceeding removed by this certiorari is a trial of a claim of property under the attachment act. The jury found property in the claimants Roberts & Sweitzer, whereupon this writ was sued out by the attaching creditor, the Columbia Bank. The return of the sheriff, which is conclusive as to what took place at the trial, shows the following state of facts: The goods in question had been the property of John H. Spring. Spring had sold the property to Roberts & Sweitzer, who had taken Spring into partnership, and left him in charge of the partnership property. The Columbia Bank attached the goods for a debt due it from Spring, whereupon Roberts & Sweitzer claimed the property, and the sheriff's jury, called to try the title, found property in the claimants. The charge of the sheriff to the jury, and the argument before us, both proceeded upon the notion that the decisive questions were the bona fides of the sale to Roberts & Sweitzer, and the legality of their possession. But this view of the case ignores entirely a salient fact, viz. that the claimants constituted Spring a partner in the property they had purchased from him, and left it in his possession as partner. In the face of this indis

The result of such a verdict would not have been to discharge the attachment, but to limit it to the interest of Spring in the partnership property attached. Hill v. Beach, 12 N. J. Eq. 31.

As this error is one that cannot be corrected in this court, the verdict must be set aside, and the sheriff directed to summon a new jury, that the issue may be tried in accordance with the views here expressed. The costs already incurred should be borne by the plaintiff, since, in any event, some property was shown in the claimants. Revision, p. 46, §§ 29, 30.

LUMBERVILLE DELAWARE BRIDGE CO.
V. STATE BOARD OF ASSESSORS.
(Supreme Court of New Jersey. June 9, 1893.)
CONSTITUTIONAL LAW-TAXATION OF CORPORATE
STOCK-INTERSTATE COMMERCE.

1. The federal constitution will not invalidate a state tax imposed upon domestic corporations generally because it incidentally affects one that, under state authority, is engaging in interstate commerce.

2. The yearly license fee imposed upon miscellaneous corporations under the act of April 18, 1884, (Supp. Revision, p. 1016.) is levied upon the right of the company to exist in corporate form, without regard to the powers that under such form it may exercise. Such a fee may be exacted by the state from which the right is derived, without reference to the nature of the business the corporation may be authorized to carry on, and is constitutional, even as against a domestic corporation created for the purpose of engaging in commerce with an adjoining state.

3. The right of corporate existence is, in its nature, indivisible, and the fee therefor must necessarily be an entirety, no matter where the property of the company is situated, or how its capital is invested or employed.

(Syllabus by the Court.)

Certiorari by the Lumberville Delaware Bridge Company against the state board of assessors to review assessments for taxation. Judgment for defendant.

The following state of facts is agreed upon for the purpose of the argument of the above-stated cause:

"First. It is admitted that by the com. pact between New Jersey and Pennsylvania, dated May 27, 1783, (Nix. Dig. p. 864,) it is declared that the river Delaware, from the northwest corner of New Jersey to the circular boundary of the state of Delaware, in the whole length and breadth thereof, is, and shall continue to be and remain, a common highway, equally free and open for the use, benefit, and advantage of the contracting parties, and that each state shall enjoy and exercise a concurring jurisdiction within and upon the water between the shores of said river.

"Second. It is admitted that the Lumberville Delaware Bridge Company was

incorporated by the concurrent legislation | of said states, viz.:

"By an act of the legislature of the state of Pennsylvania entitled 'An act to incorporate the Lumberville Delaware Bridge Company,' approved April 7, 1835, (P. L. Pa. 1834-35, p. 114,) and by an act of the legislature of the state of New Jersey entitled 'An act to incorporate the Lumber. ville Delaware Bridge Company,' passed February 12, 1836, (P. L. N. J. 1836, p. 79.) "Third. It is admitted that the incorporators duly organized, built, erected, and constructed a bridge across the river Delaware, from shore to shore, between said states, at or near Lumberville, in the county of Bucks, and state of Pennsylvania, and erected its tollgates on the westerly bank of said river, and have always demanded and collected all tolls thereat.

"Fourth. It is admitted that the presi. dent and treasurer of said company are residents of the state of Pennsylvania, and the secretary thereof is a resident of New Jersey, and that all meetings of said company are held at the office of said company established at Lumberville, Penn.

"Fifth. It is admitted that the prosecutors pay annually to the authorities of New Jersey taxes on one-half of said bridge, including the abutments and piers to the center of the river upon the New Jersey side, as part of the structure, with out reference to the extent of travel upon it, or the profits derived therefrom, and that the prosecutors pay annually to the authorities of the state of Pennsylvania one-half of the taxes assessed under and by virtue of the acts of the legislature of said state, passed June 7, 1879, and June 1, 1889.

"Sixth. It is admitted that the prosecutors have paid to the state of New Jersey, under protest, all taxes assessed against it under and by virtue of the act entitled 'An act to provide for the imposition of state taxes upon certain corporations, and for the collection thereof, ap. proved April 18, 1884,' and the several supplements thereto.

'Seventh. It is admitted that the state of Pennsylvania has never concurred in the passage of the last-mentioned act.

"Eighth. It is agreed that either party may refer to all laws, agreements, documents, or papers made or passed by either state in reference thereto.

"Wm. S. Gummere, Attorney for Prosecutors.

"John P. Stockton, Attorney General. The following are the reasons relied up

on:

"First. Because the said tax or impost is tax upon interstate commerce, and in violation of the constitution of the United States.

"Second. Because the said Lumberville Delaware Bridge Company is not incorporated under the laws of the state of New Jersey, within the meaning of the terms of the act entitled 'An act to provide for the imposition of state taxes upon certain corporations, and for the collection thereof,' approved April 18, 1884, and the several supplements thereto, passed by the legislature of the state of New Jersey.

"Third. Because, upon the principles of

public law, it is clear that the power of erecting a bridge, and taking tolls thereon, over a navigable river which forms the coterminous boundary between two states, can only be conferred by the concurrent legislation of both states; and such charters are subject to alteration, amendment, or repeal by like concurrent legislation only.

"Fourth. Because the legislature of the state of New Jersey cannot impose a tax by way of a license fee upon a foreign corporation, or its franchises, carrying on its business, or any part thereof, without the jurisdiction of the state of New Jersey. was

"Fifth. Because the assessment made upon an erroneous principle; that is to say, it was measured by the amount of its capital stock issued by the laws of the state of Pennsylvania, as well as the amount thereof issued by virtue of the laws of the state of New Jersey, whereas it should have been measured by one-half of the total amount of its capital stock issued and outstanding.

"Sixth. Because the act of April 18, 1884, and the supplements, do not authorize the imposition of any tax, by way of license fee or otherwise, upon foreign corporations. It only applies to domestic corporations.

66

Seventh. Because the said corporation is a foreign corporation, and demands and receives all tolls at its gates erected and maintained within the jurisdiction of the state of Pennsylvania.

"Eighth. Because the title of the act of April 18, 1884, and supplements, does not embrace foreign corporations, and if it did the same would be void for duplicity.

"Ninth. Because the said assessments are, in divers and other respects, uncertain, erroneous, and illegal, and ought to be set aside and reversed. Argued February term, 1893, before VAN SYCKEL and GARRISON, JJ.

GARRISON, J., (after stating the facts.) The Lumberville Delaware Bridge Company, a corporation created in 1836 by the legislature of this state, resists the payment of the license fee imposed under the fourth section of “An act to provide for the imposition of state taxes upon certain corporations, and for the collection thereof," (P. L. 1884, p. 232.)

The pertinent provision of this section is in these words: "All other corporations incorporated under the laws of this state, and not hereinbefore provided for, shall pay a yearly license fee or tax of one-tenth of one per cent on the amount of the capital stock of such corporations."

The first ground of opposition is that the imposition of this tax upon the prosecutor is a burden upon, and hence a regulation of, commerce between the states, in violation of the exclusive jurisdiction of the federal congress.

It is not questioned that the power to regulate commerce between the states has been, by the constitution of the United States, committed exclusively to congress; and it is furthermore estab