With regard to bail, Mr. Petersdorff says: "The general rule adopted by all the courts is consistent and uniform, that where the cause of action arises from a debt or money demand, or where it sounds in damages, but the damages are capable of being ascertained with certainty, by mere arithmetical computation, the defendant may be holden to bail as of course; but on the other hand, where the cause of action consists merely in a right to recover some damages, but those damages are general, indefinite and undetermined, or incapable of being reduced by calculation to a proper degree of certainty, without the intervention of a jury, the defendant cannot be holden to bail as of course." Petersdorff, Bail, 16, 10 Law Lib. "In particular, in an action of covenant, the defendant cannot be held to bail as of course, unless the covenant be for the payment of a sum certain." Jeffery v. Wooley, supra. us Thus far the decisions in New Jersey carry When we look to the decisions in other States, we find most of them to be inapplicable, because they rest upon rules inconsistent with those already established here. But the cases of Fisher v. Consequa, 2 Wash. C. C. 382; Clark's Exrs. v. Wilson. 3 Wash. C. C. 560; Wilson v. Wilson, 8 Gill, 193, and Warwick v. Chase, 23 Md. 154, seem to proceed on the lines which our own courts have laid down, and hence are useful as illustrations of the rule. In Fisher v. Consequa the defendant had bound himself to put on board ship at Canton, a cargo of teas of the very first quality, for the Amsterdam market, and, if they did not prove of such quality at the sales in Amsterdam, to make good all deficiencies. At the sales in Amsterdam the teas proved to be of inferior quality, and worth $4,500 less than teas of the first quality. The court held that attachment would lie for the deficiency. was conjectural, and hence the damages were so uncertain that they could not with propriety be averred in an affidavit but must be ascertained by a jury, and that the attachment was illegally used. In Warwick v. Chase the claim was for damages occasioned by delay in selling a cargo of flour at Rio, and by failure to invest the proceeds in a cargo of coffee for return to Richmond. The court held that as the damages depended mainly upon the price of coffee in Richmond at the time when the return cargo would have arrived, and that time was not fixed, the damages were too uncertain for attachment. It was declared: "The general rule is that unliquidated damages resulting from the violation of a contract cannot be recovered by attachment, unless the contract affords a certain measure or standard for ascertaining the amount of the damages; *** the standard should be a subject matter of the contract; *** the standard must be shown by the contract, without the aid of inferences from extrinsic facts or circumstances." In the case now before us the plaintiff insists that the damages recoverable for breach of the covenant to mine 10,000 tons a year are such as will sustain attachment within the principles of these decisions. He contends for one of the three following positions: first, that the covenant is substantially to pay $2 a ton for at least 10,000 tons per annum; second, that the defendant being put in exclusive possession of the mine, it is as if at least 10,000 tons of ore per annum had been sold and delivered to him at $2 a ton; third, that when less than 10,000 tons a year are mined, he is at any rate entitled to the stipulated price of 10,000 tons, less the value in the mine of the difference between 10,000 tons and the quantity of ore mined in each year; and that the value of ore in the mine is ascertainable with as much definiteness as that of merchandise generally; and hence, as attachment will lie for the value of general merchandise sold without a price stated, all the elements for calculating his damages are capable of being determined with sufficient certainty to warrant an attachment. In Wilson v. Wilson, the defendants sold flour to the plaintiff and guarantied that it should pass with the inspector as superfine, and that if it did not they would make such allowance as was customary at the place of inspection for His first position is manifestly not in accordthe difference between flour of the grade certi-ance with the contract; for that, by expressly fied by the inspector, and superfine flour. The flour was certified by the inspector to be of an inferior grade, and the difference in value according to the custom was 50 cents per barrel. The court held that the difference could be sued for by attachment. In both of these cases the standard for measuring the damages was fixed by the contract, the damages being the difference in value of two articles, the value of which was already determined either by the sale of the articles themselves, or by the market price of other articles of like value. Damages so ascertained, or by calculation ascertainable, could properly be sworn to by the plaintiff. In Clark's Ears. v. Wilson the plaintiff attached for damages arising out of a breach of the defendant's covenant in a charter-party to employ a vessel for a designated voyage at £670 per month. The plaintiff swore that the Voyage would have consumed twenty-four months, and rated his damages accordingly. The court held that the length of the voyage binding the defendant to pay $2 a ton for ore mined, and being silent as to what he shall pay for ore not mined, precludes us, by the plainest implication, from putting the two classes of ore on the same footing as to price. His second position is as evidently untenable; for it ignores the fact that the defendant, although in possession of the mine, has acquired and can acquire no ownership in the ore, except it be actually severed. One The liability of a purchaser for the price of goods sold rests upon his having become their owner. Hence, the attempted analogy fails at the very basis. His third position is more plausible, but is also, I think, unsound. of its postulates is that the value of the ore unmined is fixed with such reasonable certainty as to justify the plaintiff in swearing to it. But this is not to be conceded; for even the thing to be valued is itself not ascertained, since the defendant was at liberty to mine the 10,000 tons from any part of the leased vein; and, had the very ore been ascertained, its richness would be a matter for conjecture only, so long as it | lay imbedded in the rock. An article thus conditioned is not to be compared with merchandise of determinable quality and commonly sold in the market, when the question is: How shall its value be settled? bonds required will be, in the second case, as if the plaintiff had sworn to a debt of $4,160, being $2 a ton for 2,080 tons, and in the third case, as if he had sworn to a debt of $3,400, being $2 a ton for 1,700 tons. It seems to me that neither the contract nor the law prescribes any standard for measuring the damages accruing to the plaintiff on breach of this covenant, sufficiently definite for their proper ascertainment, without the intervention of a jury, and hence, that the writ of attachment cannot legally be issued for their re- 1. covery. The plaintiff further contends that his preliminary affidavit is conclusive, or at least that the defendant, by appearing and pleading without objection, is estopped from questioning the propriety of the writ. The affidavit is not conclusive as to the nature of the plaintiff's claim. Day v. Bennett, 3 Harr. 287; Shadduck v. Marsh, 1 Zab. 434; S. C. 1 Zab. 463. Nor should the defendant's appearing and pleading in the action impair his right to investigate the propriety of the plaintiff's claim to a special statutory lien upon his property. By appearing generally, the defendant acknowledges that "due steps have been taken to bring him personally into court to answer whatever demands the plaintiff may lawfully present in such an action as he has instituted; and by pleading, the defendant confines the inquiry touching his personal liability to the issues which his pleadings raise; but neither of these concessions seems to involve an obligation to leave his property charged with a lien for which there was no lawful warrant. The position of the plaintiff is not altered to his detriment in the least, by the defendant's giving bend now after pleading, instead of at the time of entering his appearance. Moreover, sections 38 and 39 of the Attachment Act contemplate this mode of procedure. Let the property attached be discharged, on the defendant's giving such bond as would have been required by the Statute, in case the plaintiff had sworn to a debt of $12,878, being the royalty of $2 a ton for 6,439 tons of ore mined and removed. Two other writs of attachment were subsequently issued, at the suit of the same plaintiff against the same defendant, for claims of similar character arising on the same lease. On like rules obtained by the defendant, it appears that (besides claims for unliquidated damages for failure to mine) the plaintiff claims under each writ $2 per ton royalty for 1,700 tons of ore mined and stored by the defendant "on the earth about 100 feet from the mouth of the shaft, being on the mine hill tract mentioned in the deed from Fowler to Curtis." On these claims the question raised is, whether ore thus mined and stored is ore mined and removed from the demised premises, within the meaning of the lease. Among the facts agreed upon under the rules, the lease is set out in full, and the deed from Fowler to Curtis appears in part. From what is thus shown we are not able to conclude that the place of storage is upon the demised premises. Hence, the royalty seems to be earned. According to the decision in the first case, the 2. 3. 4. 5. STATE, William SEMON, Prosecutor, v. Inhabitants of the CITY OF TRENTON. Where the report of the board of assessors in a proceeding to condemn lands for a street opening in Trenton shows that the assessors met at the time and place appointed, and no proof.. presented to show the fact to be otherwise, the report must be accepted as true. Such report should show what notice of the meeting of the assessors was given and what manner of publication was adopted. Everything necessary to give validity to the action of a special tribunal should appear in the report of its proceedings. The assessors could not appoint meetings after the expiration of thirty days from the time appointed for their first meeting. The requirement of the charter that the report be completed and filed within thirty days after the first meeting is mandatory, and compliance therewith is essential to the validity of the proceedings. in the opening of Sweet's Avenue, in the N certiorari to review the proceedings taken City of Trenton. Proceedings set aside. The facts are stated in the opinion. Mr. G. W. Macpherson, for prosecutor. Mr. G. D. W. Vroom, for defendant. Knapp, J., delivered the opinion of the court: Under this writ the prosecutor draws in question the validity of proceedings on the condemnation of his lands in opening a street in the City of Trenton. The first objection is that in several particu lars the City failed to observe the provisions of the eighty-first section of the Act to provide for the more efficient government of the City of Trenton, Pamph. L. 1874, p. 372. If, under the terms of the charter, the City is unable to agree with the owner of lands needed for a public street for their purchase, application is to be made by the common council to the board of assessors, to value the lands and damages and assess the sum of these upon lands and real estate specially benefited by the proposed street opening. The section referred to requires that "the common council shall designate a time and place for the meeting of the said board of assessors:" of which time and place the city clerk shall give notice by advertisement in not less than two newspapers published and circulated in said city, at least ten days before the time of meeting. It is made the duty of the board of assessors to meet at the time and place appointed, to proceed to view the lands and make a just and true estimate and assessment, and report their proceedings to the common council, which report shall be in writing, and filed within thirty days after their first meeting. The first error in procedure alleged is, that the common council having appointed the 25th day of July, 1883, at the city hall, as the time and place for the assessors to meet, no notice was given by the clerk of such meeting, and no meeting was then held. The report, although dated at a much later day, shows that the assessors did meet at the time and place appointed; and no proof having been taken to show the fact to be otherwise, it must be accepted as true. The report also states that the city clerk "gave due notice by advertisement according to law" of the time and place of such meeting. What notice was given and what manner of publication was adopted does not otherwise appear. This should have appeared in the report. The tribunal here acting in the condemnation of lands for public use was special, and everything necessary to give validity to its action should appear in the report of its proceedings. State v. Jersey City, 1 Dutcher, 309. The second objection is that the board of assessors delayed action beyond the time limited in the charter for the completion of their work, and consequently failed to file their report within thirty days after their first meeting, as the charter requires. The report of the assessors bears date December 31,1883, more than five months after the time appointed for their first meeting. This delay is not accounted for. It does not appear that their proceedings were continued by adjournments, and there is no evidence that subsequent meetings were advertised, or that any notice was given of them. They might adjourn from time to time after their first meeting held pursuant to appointment and notice, within the thirty days. But after the expiration of the statutory time they could not appoint meetings or change that made by the common council. It was held in State v. Jersey City, under charter provisions like those of Trenton, that the common council must fix the time of meeting and could not delegate that duty to the city clerk. Certainly the assessors, without delegation, could not assame the authority. But it is said that the requirement of the charter that the report be completed and filed with the city clerk within a limited time is Lere direction, in which the land owner can have no interest or concern. But I think it is mandatory, and under the rule which requires rigid adhesion to provisions in legislation conferring upon subordinate bodies power to condemn hands for public use, they were bound to make their assessment, and return it within the statutory period. The land owner is interested in every step in such a procedure. He has the right to inspect the report as soon as it is promulgated, and he may assume that it will be filed, if at all, as the statute directs. He has no other means of knowing when it will be open for his inspection; and he is not required to be waiting and watching for an indefinite period. The law requires the report to be before the common council at their meeting held next after the time of filing, and that body is given four months from the time the report comes to them to decide whether they will take and pay for the lands or abandon the improvement scheme, and it is the interest of the land owner that these provisions of law shall be observed. We think the defects existing in these proceedings are sufficient to defeat them, and they should be set aside, with costs. NORTH HUDSON COUNTY RAILWAY CO. Piff. in Err., 1. 2. 6 v. John MAY. A corporation, being a collection of individuals, acting through its officers and agents, who are admitted to testify in cases where the corporation is a party, cannot be said to be under legal disability; and the opposing party in a suit can be examined as a witness. A written statement made by the conductor of a car, in the line of his duty, giving details of the accident, immediately after it happened, is not admissible in evidence; but the facts must be proved by the conductor or others who witnessed the occurrence. 3. If the conductor be sworn he may use the written statement to refresh his memory. (Decided July 19, 1886.) on action for personal injuries caused by RROR to review a judgment for plaintiff negligence. Affirmed. The facts are stated in the opinion. Messrs. J. C. Besson and J. B. Vredenburgh, for plaintiff in error. Mr. M. T. Newbold, for defendant in error. Parker, J., delivered the opinion of the court: John May brought suit against the North Hudson County Railway Company, for damages resulting from personal injuries received by him, caused by the alleged negligence of said Company. The trial resulted in a verdict for the plaintiff and judgment was entered thereon. The first error assigned is, that the court admitted the plaintiff below to be sworn and give It is contended that the evidence in the cause. plaintiff in error, a Corporation aggregate, being only an artificial person, incapable of speaking and giving testimony, the opposing party cannot be permitted to testify, because of the provision of the statute which provides that no party shall be sworn where the opposite party is prohibited by any legal disability from being sworn as a witness. It is true that a corporation is an artificial being, invisible and intangible; but it is a collection of individuals united in one body, acting and speaking through its officers and agents. *Head notes by PARKER, J. 391 Since the law which enacts that interest in the event shall not disqualify a witness, the officers and agents as well as stockholders, are admitted to testify. So long as they are admitted as witnesses, the corporation cannot be said to be under legal disability. The court was right in admitting May as a witness. The next error assigned is the refusal of the court to nonsuit. When the plaintiff in the suit rested, it appeared from the testimony that he was at the time of the accident riding on a horse car of the Company, and was thrown off in consequence of the sudden starting of the car by the driver. It also appeared that the car inside was full of passengers; that the platform on which May was riding was crowded and also that the rear platform was full. It also appeared that he stood on the front platform holding on, when the violence of the sudden jerk caused by the driver whipping his horses threw him off the car. It further appeared that May was riding as a passenger on defendant's car in the only place he could find. The driver had received him as a passenger and was bound to exercise care towards him, so as to carry him safely. When the case was rested on the part of May, it had been proved that the Company was negligent in starting the car suddenly with force and speed sufficient to throw him off the platform, and there was no evidence that May had contributed to the accident. The court did right in refusing to nonsuit. After the motion to nonsuit was refused, the Company proceeded to call witnesses, and introduced evidence to contradict the testimony under oath. He might perhaps have used the written statement made through his dictation in his presence, to refresh his memory; but the paper itself was not legal evidence. It was not made under oath and if it turned out that the statement was not true, an indictment for per jury would not lie. The remaining assignments of error are to the charge of the court. One complaint is that the judge did not charge the jury that if May was guilty of negligence, the verdict should be for the Company. The court did so charge in substance. In his charge the judge said: "In stating the rule that injury resulting from negligence of one in the performance of duty is actionable and must be paid for in damages, an important phase of this rule must be emphasized; and that is, that whenever the plaintiff has himself, in any essential degree, by his own negligence, contributed to the injury there can be no recovery." And again: "If the plaintiff was in the act of boarding a passing car, it failing to stop on his signal, and by that means he became entangled and suffered injury, my instruction to you is, that was an act of contributory negligence in him such as would defeat his recovery." No language could be more emphatic. In every respect complained of the charge was legally correct, very carefully worded, and stated the case fairly, leaving to the jury to decide upon the conflicting evidence. The judgment should be affirmed. which had been given as to the negligence of STATE, Sedgwick R. DEVAULT, Prosecu the Company, and also to prove negligence on the part of May. Witnesses swore that May was not on the car when the accident occurred but at the time was trying to get on the car, while it was in motion; also that the driver did not whip the horses to start the car. The case was submitted to the jury upon the evidence produced on both sides, which was contradictory. The motion to nonsuit was not renewed, nor was the court asked to instruct the jury to find for the Company. Under the circumstances, the refusal to nonsuit, if wrong, cannot now be taken advantage of. The case was tried on its merits and the jury gave credence to the testimony offered on the part of May. Upon writ of error the court will not set aside the judgment, even if it be thought that the verdict was against the weight of evidence. There must be some error in the instructions to the jury by the court, or in refusing to charge, or in the admission or rejection of evidence at the trial, to justify reversal. The next error assigned is that the court refused to receive in evidence a statement made by the conductor of the car, reduced to writing by the President of the Company, the morning after the accident. When the paper was offered in evidence the court asked counsel in what view of the case he thought the evidence competent; to which question, answer was made that the offer of the paper was as a statement made immediately after the accident by a person in performance of his duty. The court did right in refusing to admit the paper in evidence. The conductor was a witness and could have given his version of what was said and done All the facts necessary to support the pro- | proper grounds. It requires, in order to the ceeding must be expressly alleged and not left to be gathered by inference or intendment. Paley, Summary Conviction, 186; O'Shaughnessy v. McLorinan, 14 Vroom, 413; Keeler v. Milledge, 4 Zab. 144; Handlin ads. State, 1 Harr. (N. J.)97; Buck v. Dungenbacker, 8 Vroom, 359. Jurisdiction must appear in the style and title of magistrate, the date and locality of the fact alleged, and more especially in the description of the offense, in the essential parts of which no omission or defect can be supplied by implication. Paley, Summary Conviction, 193. Under the laws of New York regulating the removal of a member of the fire department by the commissioners it was held that the written charge required must be such written specification of the offense charged as should enable the accused to prepare for trial. People v. N. Y. Fire Comrs. 77 N. Y. 153. And under the charter of New York allowing the mayor to remove heads of departments for cause it was held that the proceeding was judicial and that there must be a definite statement of the charge. Re Nichols, 6 Abb. N. C. 474. If the act is criminal and single in its nature so that a conviction or acquittal in the courts of law will necessarily determine the guilt or innocence of the party there must be a conviction, but otherwise there may be a removal without or independent of a conviction. 1 Dill. Mun. Corp. par. 189, note 3. With reference to the charge of gaming it has been held that the charter authorized the council "to dismiss the marshal for malpractice in office, or neglect of duty;" that the council could not remove this officer for the crime of gambling, as this was neither malpractice in office, nor official neglect, within the meaning of the charter. 1 Dill. Mun. Corp. par. 184. The record of proceedings of a city council upon removing an officer for misconduct should state the specific acts complained of sufficiently to show that the council had jurisdiction; no removal of any officer or employee in such departments, that a cause of complaint should be alleged against him in writing, signed by the person making the charge; that the cause so alleged should be incapacity or misconduct with reference to his official position, nonresidence, or disobedience of some just regulation established for the department; that he should have a fair and public trial upon the charge, after due notice, and with every reasonable opportunity to make defense, before the appropriate municipal authority, and that he should be adjudged guilty of the charge. The province of this court is simply to see that these rights have been secured. Neither the statute nor the dictates of sound policy warrant our going further. The technical rules that have been judicially adopted with regard to inferior criminal prosecutions are not to be applied to these investigations; for while it is proper that proceedings to deprive persons of common rights for alleged crimes should be confined by somewhat strict limits the removal of incompetent or ill behaved officials, from their exceptional positions of authority and responsibility, should be easy and prompt; and no forms should be requisite which are not in themselves substantial safeguards of justice. Murdock v. Phillip's Academy, 12 Pick. 243; People v. Fire Comrs. 77 N. Y. 153. In our opinion the prosecutor was charged, in the mode provided by the statute, with conduct unfit for a policeman, forbidden by the rules of the department, and justifying his dismissal; was duly tried upon the charge before the proper municipal authority, and was found guilty upon evidence which, whether weak or strong, formed a rational basis for the judgment against him. His removal was therefore legal and must be affirmed, with costs. STATE, Wm. CLOSSON, Prosecutor, v. intendments are indulged in favor of the juris- BOARD OF LICENSE and Excise of the diction or regularity of the proceedings in such order of removal. State v. Lupton, 64 Mo. 415. Messrs. J.Willard Morgan and Thomas B. Harned, for defendant. Dixon, J., delivered the opinion of the court: This certiorari brings up the action of the Mayor of Camden removing the prosecutor from the office of policeman in that City. Prior to the passage of the "Act respecting police departments of cities, and regulating the tenure and terms of office of officers and men employed in said departments," approved March 25, 1885, the prosecutor held his office at the pleasure of the mayor; and hence the only subject of inquiry is whether his removal has been effected in accordance with that Act. City OF TRENTON. ERTIORARI to review proceedings of the Trenton City Board of License and Excise in granting a license. Reversed. Argued before Depue, Dixon and Reed, JJ. The design of the statute is plain. It is not to prescribe any mere form of procedure or to 1880, p. 191), the common council of Trenton interpose any obstacle in the way of rendering had the exclusive right to grant licenses within police departments respectable and efficient. It the City. (See Charter, Pamph. Laws, 1874, p. is, on the contrary, to fix substantial safeguards 343, 25, IV, p. 349, § 30.) The Act of 1880 contravenes article IV, *Head notes by REED, J. |