N. J.) TRENTON TRUST & S. DEPOSIT CO. v. FITZGIBBON & CRISP C. & W. CO. 1043

ceding the time appointed for the sale, and, when the Legislature of 1912 passed the amendment referred to, it is presumed that the legislators had in mind that fact, and, further, I think, when they provided that the last publication should be not more than seven days prior to the sale, they meant it should be not more than one week prior to the sale for they named one week in other words, and said the publication should be prior to the sale.

time appointed for selling. In that case | appear some time during one week next preChancellor McGill, sitting as ordinary, said: "The failure to publish the notice between February 2d and February 10th, a period of ' eight days immediately preceding the time appointed for the sale, shows an inexcusable noncompliance with the statute, in that for more than a week next preceding the time appointed for the sale notice of it was not published in that paper. The purpose of the requirement that the publication should fit closely upon the sale is obviously to keep freshly in the public mind the pendency of The case of Early v. Doe, 16 How. (U. S.) the sale, and the mischief of the omission to 610, at page 616 (14 L. Ed. 1079), is relied publish within the last week may be twofold on by counsel for the receiver as an authoriin permitting the sale to be lost sight of, ty for publishing the last notice of a sale and, possibly, in impressing intending pur-under the statute on the day of sale; but, as chasers with the belief that it has been I read the opinion, it is rather an authority abandoned. However this may be, the courts hold that strict compliance with the requirements of the statute is essential to the validity of the sale."

for the objector. In that case the United States Supreme Court said: "The language of the statute regulating the notice to be given is in these words: "That public notice of [2] The sale in this case must be set aside the time and place of the sale of all real because the last publication of the notice of property for taxes due the corporation of the sale was made less than one day prior to city of Washington, shall be given hereafter, the time appointed for the sale. While the by advertisement, inserted in some newspaper policy of the law doubtless is that the pub- published in said city, once in each week, lication should fit closely upon the sale, it for at least twelve successive weeks.' Now, should, nevertheless, not fit too closely, for, the first week following the date of the adwhile an omission to publish within the last vertisement expired with the next Friday, week may permit the sale to be lost sight of, the 10th of November, and if the computation or may impress intending purchasers with is carried out, it will be found that the the belief that it has been abandoned, on the twelfth week expired on the 17th of Novemother hand, if the last advertisement, which ber. But the sale was made two days before, may be the only one seen by the intending on the 15th of November, the last insertion purchaser, who would be a bidder at the sale, of the notice being on the day of sale. So if seen by him only in the morning paper at there were eleven insertions of the notice in his breakfast table, may come too late to the newspapers in different weeks (making, permit him to arrange to be a bidder at the with the first, twelve) after the expiration sale to take place but a few hours after- of the week from the first insertion, and the wards. Such short notice would hardly af- point to be settled is whether the statute. ford any one time to inspect the property, means that 12 insertions in successive weeks examine the title, and make his financial is sufficient notice, without respect to the arrangements to become a purchaser. Each number of days in 12 weeks. We do not publication must be intended by the Legisla- doubt if the statute had been 'once in each ture to have potency, and, if it were intend- week for twelve successive weeks,' a preed that the last publication could be made vious notice of the particular day of sale on the day of sale, the act would doubtless having been given to the owner of the prophave said so in words that could not have erty, that it might very well be concluded been misunderstood. Such a radical depar- that 12 notices in different successive weeks, ture as is here contended for should not be though the last insertion of the notice for made on any doubtful construction of the sale was on the day of sale, was sufficient. statute. If my interpretation of the act be But when the legislator has used the words, correct, then all sales advertised as late as for at least twelve successive weeks,' we the calendar day preceding the sale will be cannot doubt that the words, 'at least,' as safely made; but, if I held that the last they would do in common parlance, mean a publication might be made on the day of sale, duration of the time that there is in 12 sucthen the legality of sales would be in doubt, cessive weeks, or 84 days. Every statute unless and until the Court of Errors and Ap- must be construed from the words in it, and peals upheld that view. If the publication that construction is to be preferred which may be made upon the day of sale, it may gives to all of them an operative meaning. be made, I presume, at any time before the Our construction of the statute under review sale takes place, say one hour, or a less peri- gives to every word its meaning. The other od. Before the passage of the act of March leaves out of consideration the words, 'for 19, 1912, it had become the settled policy of at least,' which means a space of time comthe state, in the matter of advertising these prehended within 12 successive weeks, or 84

duration when it is put in connection with have lawfully been made on the day of sale time, and as all of us use it in that way, in if the statute was written as presupposed our everyday conversation, it cannot be pre- That such observation of the judge who sumed that the legislator in making this wrote the opinion in Early v. Doe has, by statute did not mean to use it in the same force of that case, no application to the one way. Twelve successive weeks is as def- under consideration, appears further on in inite a designation of time, according to our the judge's assertion that every statute must division of it, as can be made. When we say be construed by the words in it, and that that anything may be done in 12 weeks, or that construction is to be preferred which that it shall not be done for 12 weeks, after gives to all of them an operative meaning, the happening of a fact which is to precede and that the court's construction of the statit, we mean that it may be done in 12 weeks, ute there under review gave to every word or 84 days, or as the case may be; that it its meaning; that the construction contended shall not be done before. The notice for for left out of consideration the words "for sale in this instance was the fact which was at least." Now, by the application of these to precede the time for sale, and that is nei- rules I must ascribe a meaning to the words ther qualified nor in any way lessened by "days prior"-that is, days prior to the sale the words 'once a week,' which precede in-found in our statute, and it may be "one this statute those which follow them, 'for day," because "day" is the unit of time menat least twelve weeks.' The con- tioned in and contemplated by the statute, struction of the statute will be recognized to properly written in the plural, “days.” If I be in harmony with that policy of the law adopted the construction contended for on which experience has established to protect behalf of the receiver, I would have to excise the ownership of property from devestiture from the statute the words "days," because. by statutory sales, where there has not been if the last publication of notice of sale should a substantial compliance with the law by be made on the day of sale, then it would be which a public officer is empowered to sell it. some "hours," but not "days" or even a Property is liable to be sold on account of "day" prior to the sale. As already seen. an undischarged obligation of the owner of the last advertisement, as I view it, may it to the public or to his creditors. But it be on some day (not more than seven) before can only be done in either case where there the sale, but cannot be an "hour" or any has been a substantial compliance with the number of "hours" before the sale on the day prerequisites of the sale, as those are fixed of the sale. This, in my judgment, is the by law. Any assumption by the officer ap- only way in which the words "prior" and pointed to make the sale, or disregard of "days" (which latter includes "day") may be them, the law discountenances. He may not read together and given the full force and do anything of himself, and must do all as effect which the Legislature intended should he is directed by the law under which he be given to them. acts. He may not, by any misconstruction of it, anticipate the time for sale within the sale should be set aside. which the owner of the property may prevent a sale of it, by paying the demand against him, and the expenses which may have been incurred from his not having done so before.

I am constrained to the conclusion that

TILTON V. MCLAUGHLAN.

(Syllabus by the Court.)

STRUCTION.

This the law always presumes that the own-(Supreme Court of New Jersey. Oct. 14, 1912) er may do until the sale has been made. He may arrest the uplifted hammer of the auctioneer when the cry for sale is made, if 1. MORTGAGES (§ 280*)-CONTRACT-CONit be done before a bona fide bid has been made. There is a difference, it is true, in the strictness required in a tax sale and that of a sale made under judgment and execution; but in both the same rule applies as to the full notice of time which the law requires to be given for the sale."

I will now point out wherein I think Early v. Doe is not an authority for the receiver, but for the objector. In that case it was said that, if the statute had read "once in each week for twelve successive weeks," it might very well be concluded that 12 notices in different successive weeks, if the last insertion were on the day of sale, would be sufficient. Observe now that the statute was not so written and the language of the opinion is only that the publication might

An agreement by the seller of mortgaged lands to "reimburse and pay" to the purchaser thereof the "interest accruing" on the mortgages up to a specified date held enforceable though the purchaser had not in fact paid such interest.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 737, 740-750, 757-760; Dec. Dig. § 280.*]

2. DAMAGES (§ 78*)-LIQUIDATED DAMAGES.

An agreement by such seller to fill the sold lands up to grade by a certain date, time being of the essence of the contract, and to pay a stipulated sum per day as liquidated damages for delay in making such fill, upheld as an agreement for liquidated damages.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 157-163; Dec. Dig. § 78.*]

Appeal from District Court of Atlantic City.

Action by Charles P. Tilton against Wil-terest accrued and unpaid on the mortgage. liam McLaughlan. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued June term, 1912, before TRENCHARD, PARKER, and MINTURN, JJ.

William M. Clevenger, of Atlantic City, for appellant. Henry W. Lewis, of Atlantic City, for appellee.

PARKER, J. The suit was based on two written contracts between the defendant McLaughlan and the Marine Trading Company, a corporation, assigned by said company to one Schleyoff and by him to plaintiff. McLaughlan appears to have been the owner of certain submerged lands mentioned in the contracts, and, in order to promote the sale of such lands by these contracts, agreed, among other things, to fill up the lands to grade within a specified time, and, failing to do so, to pay $3 per day overtime as liquidated damages. He also agreed to "reimburse" interest on a mortgage. The suit was to recover for 112 days overtime and $75 interest, and there was a judgment for plaintiff, after trial without jury.

In this situation we deem it immaterial to a recovery whether the purchaser or its assignee had actually paid the interest. The word "reimburse" may be inaccurate, but the intent is clear. The agreement is not to reto reimburse and pay the purchaser interest imburse interest paid by the purchaser, but accruing up to the 1st day of June or the prior completion of the fill, and thus indemnify the purchaser for interest that must inevitably be paid to lift the mortgage. There was no error in the allowance of this item.

[2] The next point is that the claim of $3 per day was really a penalty and not liquidated damages. We cannot concur in this view. It is readily conceivable, if not indeed evident, that the lands sold were a more or less speculative property, cut into blocks and lots, and bought for a resale in parcels or entire; that prompt resale was essential to a profit; and that filling was essential to a resale. Hence damage considerable in amount, but difficult of estimation, would result from nonfulfillment of the contract to fill. In such case an agreement for liquidated damage is eminently proper, and that the clause in this contract as such is too plain for argument. In this aspect the case is well within the ruling of Monmouth Park Association v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 39 Am. St. Rep. 626.

This disposes of all the causes for reversal based on anything in the record of this case. The judgment will be affirmed.

The first agreement, dated January 11, 1911, was modified or superseded by a second dated February 4, 1911, which, after reciting the considerations and the character of filling to be done and the territory to be covered, provides as follows: "And the said party of the first part (McLaughlan), for himself, his heirs, his executors, administrators and assigns, agrees to and with the said party of the second part, its successors or assigns, that he will reimburse and pay to the said party of the second part, its successors or assigns, the interest accruing on the mortgages on said section nine, up to and including June (Supreme Court of New Jersey. Nov. 11, 1912.)

1, 1911, or such date prior to June 1, 1911, as he may be able to complete the filling of both sections nine and ten and all other work

referred to herein. Failing to complete said work by June 1, 1911, the said party of the first part for himself, his heirs, administrators, executors and assigns, agrees to pay to the said party of the second part, its successors and assigns the sum of three dollars a day for each and every day after said June 1, 1911, that said work remains uncompleted and until the said work on both sections is completed; and that said sum of three dollars per day shall be liquidated damages, and that time shall be of the essence of this contract." [1] The first point urged as error is that the trial court awarded the item of interest on mortgage when it appeared that plaintiff had not paid such interest. From the contract and evidence, we gather that the land was sold by McLaughlan unfilled and subject to a mortgage for a definite amount; and that by June 1st, or prior thereto, he was to fill in; and at the time of delivering the land in the complete state there should be no in

GYARFAS v. KARPF.
KARPF v. GYARFAS.

(Syllabus by the Court.) JUDGMENT (§ 721*)-RES JUDICATA.

Where, in an action of replevin, the defendant interposed as a defense that he was entitled to retain the possession of the chattel replevied by reason of a lien in his favor arising out of repairs placed upon such chattel by him, and the record of a former suit between had been sought for the value of such repairs, the same parties was offered in which recovery and judgment had passed for the defendant therein, held, that the maintenance of the defense that the defendant had such lien was derepairs, and that that identical point, having pendent upon some amount being due for such been litigated in the former suit between the parties, in a court of competent jurisdiction, the of estoppel by record, and precluded the defendresulting judgment possessed all the elements ant in replevin from setting up such defense.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1238, 1252; Dec. Dig. § 721.*]

Appeal from District Court of Newark.

Action by Stephen Gyarfas against Max Karpf, and by Max Karpf against Stephen Gyarfas. From the judgments, Stephen Gyarfas appeals. Affirmed.

Argued June term, 1912, before SWAYZE, VOORHEES, and KALISCH, JJ.

any single fact or element necessary to constitute the crime, it is the duty of the jury to give the defendant the benefit of such doubt, and acquit him." It is difficult to understand the basis for the allegation that this request was not charged, for, by refer

ant, while the car was still in motion, start- | the jury entertain any reasonable doubt on ed to get off, which Miller tried to prevent by putting his arm over the entrance to the car steps, when the defendant, according to the state's case, pushed him off, and, his head striking the pavement, he was killed at the same time defendant fell from the car on the deceased. The defendant denied us-ence to the charge as shown in the record, ing the abusive language charged, and said that when he got off he saw an opening between Miller's arms, and thought he could get through, and, when he ducked to go under, some one grabbed his collar, and, when he got up from the street, he did not know Miller had fallen.

we find that the court said: "I have been asked to charge on the subject of reasonable doubt, and I will charge one or two of the requests." And following this the court read the first, second, and third requests, and then proceeded to instruct the jury, on other matters. The court certainly in instructing the jury that he would charge one or two of the requests, and then proceeding to read them, cannot be said to have refused.

The first point argued assails the ruling of the trial court in admitting proof of what the defendant said and did while on the car, and before Miller embarked. The defendant cites no cases in support of his theory The thirteenth specification objects to what that this evidence was not competent. If the court said to the jury with reference to the contention of the defendant was correct, the evidence regarding the state of mind of and this evidence was rejected, all that the defendant; the instruction complained of would appear was that the defendant had being, "And it is for you to say whether the pushed Miller from the car while he was conduct of the defendant was such as to trying to save defendant from injury, a show that he was in an ugly state of mind most unusual act by one, who was an orderly or in a state of mind to lead him to some law abiding person, and would tend to en-disorderly act." If the evidence was properhance the credibility of the defendant, while, ly admitted, and we have so held, this comon the other hand, if the immediate con- ment was not objectionable. duct of the defendant was as disorderly as described, it would tend to explain his act in pushing Miller from the car, as the culmination of his disorderly and offensive conduct towards those on the car and the continuance of a vicious state of mind. As was Isaid said by Mr. Justice Garrison speaking for the Court of Errors and Appeals in State v. Deliso, 75 N. J. Law, 808, 69 Atl. 218: "The question there is not the establishment of the defendant's guilt in respect to such isolated transaction, but the state of mind therein evinced by him, if it be shown to have been carried forward and exhibited in a criminal act so nearly related in time, place, and circumstances that the mental state involved is practically continuous." The case under consideration falls within the rule thus laid down. A disposition to be ugly and quarrelsome with the conductor, without apparent reason, exhibits a state of mind pertinent to the inquiry whether he was as docile towards the inspector as he affirms he was. A discretion as to conditions under which this class of testimony is admissible must be accorded to the trial judge, and we are of the opinion that it was (Court of Chancery of New Jersey. Oct. 10, not abused in this case to the manifest wrong and injury of the defendant.

The next specification argued is the twelfth, and is based upon the alleged refusal of the court to charge as follows: "That the law presumes the defendant to be innocent, and, in order to convict him of the crime of which he stands charged, every fact necessary to constitute such crime must be proved beyond a reasonable doubt, and, if

Objection is also made to the refusal of the court to charge a request which contained this paragraph, "but it is necessary before they can convict the defendant, they must be convinced of his guilt by the evidence, that there can be no probability of his innocence, and no reasonable doubt of his guilt. And if there is probability of his innocence this is just ground for reasonable doubt, and requires acquittal." We are of opinion that this request was properly refused. It is not a question of probability of innocence, but of reasonable doubt of guilt that is required to exist. The presumption or probability of innocence always exists until it is overthrown beyond reasonable doubt.

We have examined all of the other specifications, and find nothing in them which requires further discussion.

The judgment below will be affirmed.

WEST JERSEY & S. R. CO. v. MAYOR AND
COMMON COUNCIL OF WOODBURY
et al.

1912.)

1. RAILROADS ($ 96*) CONSTRUCTION BRIDGE CROSSINGS-DUTY TO MAINTAIN. Laws 1853 (P. L. p. 39), incorporating pany, provided that it should be the duty of the West Jersey and Seashore Railroad Comthe company to construct and keep in repair good and sufficient bridges or passages over or along the railroad where any public road should intersect and cross the same, so that the passage of carriages, horses, and cattle along the same should not be obstructed, and likewise when such