recovered by the plaintiff against him, and by virtue of the capias he was delivered to the sheriff of the county, and thereafter he entered into an insolvency bond, and filed his inventory and petitioned to be discharged as an insolvent debtor. An order was made by the court fixing a time and place for hearing. On that day the execution creditor appeared and objected to the debtor's discharge, and thereafter the court made an order dismissing the petition and remanding the debtor to prison. The defendant Costello then entered into a second bond in the same terms and conditions, and again petitioned the court for his discharge. The court fixed a time and place for the hearing. The execution creditor again appeared and objected to defendant's discharge. After this hearing an order was entered dismissing the second petition and remanding the debtor to jail. He then entered into a third bond.

The first two bonds were given under section 2 of the Insolvent Debtors Act, 2 Comp. Stat. p. 2824, and the last one purports to be given under section 13.

Section 2 of the act provides that on his application for discharge from imprisonment the defendant shall, among other things, give bond to the plaintiff at whose suit he is arrested, with sufficient security, etc., with condition that he will appear before the next court of common pleas to be holden in the county and petition the court for the benefit of the insolvent laws of the state, and that he will in all things comply with the requirements of those laws and will appear in person at every subsequent court until duly discharged as an insolvent debtor, and if refused a discharge surrender himself immediately to the sheriff or keeper of the jail of the county, there to remain until discharged by due course of law.

The bond sued on recites that Costello had made application to the Passaic pleas to be discharged pursuant to section 13 of the act, having been remanded to jail upon the court not being satisfied with the truth and honesty of his declaration and confession nor with the truth and fairness of his account and inventory exhibited in the cause, and proceeds:

The breach of condition is alleged to be that Costello did not appear at the next term of court after the giving of this bond, and did not petition the court for his discharge under the insolvent laws, and did not comply fully and honestly with all the requirements of those laws, and did not surrender himself to the sheriff or keeper of the jail of Passaic county; by reason whereof, etc.

The grounds of appeal are: (1) Because the trial judge refused to nonsuit the plaintiff. (2) Because the trial judge directed a verdict in favor of plaintiff and against defendants over the objection of defendants, whereas he should have directed a verdict in favor of defendants. (3) Because the trial judge directed a verdict in favor of plaintiff and against the defendants over the objection of defendants, whereas he should have submitted the case to the jury for its verdict. (4) Because the judgment rendered in the above cause is contrary to law. (5) Because the evidence in the trial of the cause did not warrant a judgment in favor of the plaintiff and against the defendants. (6) Because the evidence adduced on the trial of the above cause warranted a judgment in favor of the defendants and against the plaintiff. (7) Because the verdict was contrary to the weight of the evidence.

"Now, therefore, if the said Stefano Costello shall appear before the next court of common pleas to be holden at Paterson, on the fourth Tuesday of April, 1916, shall in all things remaining, fully and honestly comply with all requirements of the insolvent laws of this state, and shall appear before the court according to law, and if refused a discharge, surrender himself immediately thereafter to the_sheriff or keeper of the jail of the county of Passaic, and thereto remain until discharged by due course of law, then this obligation to be void, otherwise to remain in full force and

[1] The first ground of appeal-that the trial court should have granted a nonsuitis invalid. Turning to the case, we find no specific ground upon which the motion to nonsuit was rested. Counsel for defendants

said:

"I think the plaintiff has failed to make out his case. I cannot see where the defendants, or either of them, have failed to comply with

the conditions of the bond."

The court, after colloquy with counsel on what appear to be entirely irrelevant questions, observed that the bond was not the one that should have been given, and that, while section 13 was not mentioned, it seemed to relate to a proceeding similar to the proceeding mentioned in that section. He then denied the motion to nonsuit. That was proper.

Saying to a trial judge that the plaintiff has failed to make out a case is not pointing out to him any absence of proof, or any matter of law, disentitling the plaintiff to go to the jury. Counsel cannot require the judge to run over in his mind all the evidence adduced by the plaintiff and conjure up objections of fact or law which might disentitle the plaintiff to recover, and thus run the risk of making errors of his own motion, so to speak. It is the duty of counsel to point out the questions of law or fact, or both, upon which he relies for a nonsuit.

It is pertinent here to remark that in moving for a nonsuit counsel should state spe

(108 A.)

is rested, and then proceed to argue them. The arguments should not be taken down by the stenographer, and should not be returned with the record or printed.

[2] The second ground of appeal is that the trial judge directed the verdict for plaintiff when he should have directed it for defendants.

en.

At the conclusion of the whole case, counsel for plaintiff moved to overrule the defense and asked the court to direct a verdict. After argument, which properly enough is not printed, the trial judge observed, among other things, that in his view the argument for defendants proceeded upon an erroneous assumption that the proceedings were had, and bond given, under section 13, but that the bond, however, was not given under that section as appeared by the determination of the Supreme Court in Koch v. Burpo, 91 N. J. Law, 116, 102 Atl. 522. The learned trial judge was mistaken in this assumption. Counsel for plaintiff-respondent states in his brief that this bond was adjudicated to be proper by the Supreme Court in Koch v. Burpo. He also is mistakJustice Kalisch in his opinion in that case says that, after the giving of the bond (the one in suit here), the sheriff released Costello, and that the plaintiff contended that this constituted an escape, because the debtor, after having been twice refused a discharge, was not entitled to make a third application, and the learned justice winds up by the assertion that the result of the views expressed in the opinion is that the insolvent debtor was lawfully entitled to make a third application for his discharge, and that, upon the giving of a new bond and inventory by him to the sheriff, the sheriff had a lawful right to release him from custody. The form and sufficiency of none of the bonds were considered in Koch v. Burpo. The trial judge ruled that Costello had not complied with the insolvent laws. This was the uncontradicted testimony, and he directed verdict for plaintiff.

courts of law, has no power to pass upon the weight of evidence, has long since been definitively settled; and all such judgments under review are to be sustained, so far as factual questions are concerned, if there be any competent evidence to support them.

[3] Some observations upon the character of the bond sued and recovered on, and the breaches thereof, will not be out of place.

In Koch v. Burpo, supra, it was held that the number of times an insolvent debtor might apply for his discharge was unrestricted, and that, being refused his discharge for any cause, he might make any number of new applications. Therefore, when Costello was refused his second discharge, he was at liberty to make a third one; but the kind of proceeding he was authorized to take was the giving to the officer in whose custody he was a true and perfect inventory, under oath or affirmation, of all his goods, etc., lands, etc., and the giving of a bond to the plaintiff at whose suit he was arrested under section 2 of the act, with sufficient security in double the sum for which he was taken in execution, with condition that he appear before the next court of common pleas and petition for the benefit of the insolvent laws, and in all things comply with the requirements of those laws, and appear in person at every subsequent court until duly discharged, and if refused discharge surrender himself to the sheriff or keeper of the jail, there to remain until discharged by due course of law. It is provided in section 8 that at the hearing in this proceeding the debtor shall appear and exhibit a just and true inventory of his estate, and a list of all his creditors with the amount of debts to them due and owing, and that the court shall proceed to examine into the truth and justice of such application, and to consider and examine the truth and fairness of the account and inventory. This examination, under section 9, is of the debtaor himself. or himself. This proceeding was had in the first two applications of Costello, and in each instance it appeared to the court that he had not complied with the act, and it was ordered and adjudged that his petition be dismissed and his discharge refused, and he was remanded to prison. In this situation he assumed to give a bond under section 13 of the act. In this he erred. The trial judge was right in his assertion that the assumption that the proceeding and bond were under section 13 was erroneous.

The third ground of appeal is that the trial judge should have submitted the case to the jury. This is not so. The answer to this objection is the same as that directed above to the second ground of appeal, namely, that the uncontradicted testimony entitled the plaintiff to recover.

The fourth ground of appeal, that the judgment was contrary to law, is answered by the same reason.

The fifth ground of appeal, that the evidence did not warrant a judgment in favor of the plaintiff, and

The sixth ground, because the evidence warranted a judgment for defendants, is equally bad with

The situation contemplated by section 13 did not exist. If the execution creditor was not satisfied with the truth and honesty of the declaration, etc., of the debtor, etc., and offered and undertook to prove that such debtor had concealed and secreted part of

The seventh ground, that the verdict was his estate, etc., it would have been lawful contrary to the weight of the evidence. for the court to remand the debtor if such

That this court, in reviewing judgments of creditor undertook for his keep, etc., and

titled to a nonsuit at the close of the plaintiff's case for the reason just mentioned, they showed in the testimony adduced on their behalf that, although Costello perfunctorily appeared in court, he did nothing to comply with the conditions of his bond.

the debtor might have entered into bond to | Assuming that the defendants here were ensuch creditor that he would in all things remaining fully and honestly comply with the requirements of the insolvent laws, etc., and if refused a discharge surrender himself immediately to the sheriff or keeper of the jail, which bond, if forfeited, might be prosecuted, etc. The next section, 14, provides that, after such debtor shall be so remanded or shall not have been discharged on bond, he may file in the clerk's office a declaration in the form prescribed by the statute, averring that he ought to be discharged out of custody because he hath well and truly complied with the Insolvent Debtors Act, and that the creditor may file a plea traversing the declaration, to which the debtor may join issue, which shall be tried before the court and jury, and if the jury find for the debtor he shall be discharged out of custody, and if they find for the creditor he shall be continued in custody until thence delivered by due course of law. These are the things remaining to be complied with on the bond under section 13. Obviously sections 13 and 14 had no application to Costello's case.

[4] Now, the bond sued upon not having been a proper one, the recovery had thereon is, nevertheless, sustainable as on a voluntary bond. In Emanuel v. McNeil, 87 N. J. Law, 499, 94 Atl. 616, we held that where there was no coercion or duress and the bond sued on, not being prohibited by statute, and not being contrary to public policy, but being founded upon a good and sufficient consideration, and intended to subserve a good and lawful purpose, is, between the parties, good as a voluntary bond. The bond sued on here was not the product of coercion or duress, was not prohibited by statute in the circumstances of this case, and would have been according to the statute if the proper situation had existed, was not contrary to public policy, and is founded upon a good and sufficient consideration and intended to subserve a lawful purpose, namely, to secure the release from imprisonment of the principal obligor; and it is, therefore, between the parties, good as a voluntary bond. The defense, by the way, was not that the bond is invalid, but that its conditions were performed.

[5] It is argued for defendants-appellants that the plaintiff failed to offer evidence that the defendant did not appear before the court of common pleas as required by the bond sued on. In Sholes v. Eisner, 90 N. J. Law, 151, 100 Atl. 213, this court held that because the plaintiff did not produce affirmative proof that his judgment debtor, who petitioned for discharge under the Insolvent Debtors Act, did not appear in person at every subsequent court until discharged, the motion to nonsuit should have been granted; lack of that evidence not having been sup

Merely appearing in the common pleas court is not a compliance with the condition to appear. The debtor is required to do more; he must appear for a purpose. He is required, by himself or counsel, to crave audience of the court and announce the purpose of his presence, and must also in all things required of him comply with the insolvent laws. That was the undertaking in his bond. As a fact, as already remarked, he did nothing unless it were to appear perfunctorily in court on the given day. There was therefore a breach of every condition of the bond, and therefore the plaintiff was entitled to recover.

[6] An important question is suggested by the state of the record in the case at bar. In Koch v. Burpo, Justice Kalisch refers to section 17b of the Insolvent Debtors Act as leaving unrestricted the number of times that such a debtor may apply for his discharge. But does the right to make subsequent applications give the debtor the right to so apply on the identical state of facts adjudged against him on his last prior application?

The inventory of Costello, on his first application, contained 14 items aggregating in amount $53.20, and his list of creditors contained 10 names, with claims aggregating in amount $956.54. After hearing the first application, the court held that the petitioner had not complied with his petition and the Insolvent Debtors Act, and dismissed his petition, refused his discharge, and remanded him to prison. A few days later, Costello filed a second petition and identically the same inventory and list of creditors, and again went to hearing upon identically the same state of facts. Again he was denied a discharge. The court this time, in addition to adjudging that he had not complied with his petition and the Insolvent Debtors Act, adjudged in terms that he had not inade out a true, perfect, and complete inventory of all his assets and liabilities, and had fraudulently removed goods and chattels from this state and from the jurisdiction of the court, and that he had fraudulently concealed assets. Although the testimony taken in the common pleas court is not before us, it would seem as though the proofs on both of these applications must have been substantially the same, because the issues in both were identically the same; and this would have made the matter res judicata against the petitioning debtor on his second application, unless section 17b of the Insolvent Debtors Act means that a per

(108 A.)

4. MUNICIPAL CORPORATIONS 97-MAJORI

TY OF VOTES SUFFICIENT TO ENACT ORDINANCE
GRANTING FRANCHISE.

applications to the court of common pleas | L. p. 50) § 2, was given; nothing appearing to on identically the same facts and have each the contrary. application passed upon de novo, which may well not be so. It would seem that if an insolvent debtor on his first application is denied his discharge because he had failed to make a true, perfect, and complete inventory, or had fraudulently removed goods from the state and the jurisdiction of the court, or had fraudulently concealed assets, one or more of these, he would be obliged, on his second application, to add to the inventory anything omitted, and add to his list of creditors the names of any who had been omitted, with the sums due to them, so as to make a novel case for the court to pass upon, or else be met with a plea of res§ 4, requiring one more than a majority to pass judicata.

This question of res judicata is in no wise raised in the case sub judice, and is therefore not passed upon; but, as it is so prominently suggested in the record before us, we think it desirable to make a query concerning it, so that in future cases it may receive the attention of court and counsel when present and properly raised.

The views above expressed lead to an affirmance of the judgment under review.

The Legislature, by Act March 27, 1917 (P. L. p. 319), as amended by Act March 1, 1918 (P. L. p. 478), did away with the differentiation of the number of votes required in commission to the granting of franchise from the number of governed cities to pass an ordinance relating votes required to enact ordinances relating to other matters, and established a uniform rule by placing the passage of all ordinances by a majority vote in all municipalities; impliedly repealing Act April 25, 1911 (P. L. p. 469) § 6, as amended by Act April 2, 1912 (P. L. p. 649) an ordinance granting a franchise.

5. MUNICIPAL CORPORATIONS 106(1)-STAT

UTE REGULATING ENACTMENT OF ORDINANCE
REPEALED BY IMPLICATION.

serted a nonrepealing clause in a statute in
Where it appears that the Legislature in-
relation to procedure for the passage of an ordi-
nance, and in a later amending statute provid-
ing for procedure left out the nonrepealing
clause, it by necessary implication repealed such
procedure clause of the former statute.

6. MUNICIPAL CORPORATIONS

97-VOTE

NECESSARY FOR PASSAGE OF ORDINANCE. Where the Legislature by general statute covers the entire subject of municipal powers and procedure thereunder, and fails to make any provision for the number of votes which shall be necessary for the passage of an ordinance or the transaction of any other lawful business, it will be held to have intended to

(Supreme Court of New Jersey. Oct. 21, 1919.) adopt the common-law rule that a majority vote

1. MUNICIPAL CORPORATIONS

of the members of a municipal body constituting 680, 681(3)—a quorum shall be sufficient to pass ordinances and to transact other business.

OMNIBUS COMPANY ENTITLED TO FRANCHISE. An omnibus company belongs to that class of persons who are entitled to receive a franchise for the use of the public streets under Act March 27, 1906 (P. L. p. 50), especially in view of Act March 17, 1916 (P. L. p. 283), an act concerning jitneys.

2. NEWSPAPERS

1(1)-DESIGNATION OF PAPER FOR PUBLICATION OF NOTICE OF HEARING

ON APPLICATION FOR FRANCHISE.

Act March 27, 1906 (P. L. p. 50) § 2, does not require the board of commissioners of a municipality, in which there is a newspaper published and circulated, to designate one or more newspapers in the county for the publication of notice of a hearing on a petition for a franchise.

CORPORATIONS

3. MUNICIPAL
683(1)
SHOWING OF JURISDICTION ON GRANTING OF

FRANCHISE.

Where the preamble to an ordinance granting an application for a franchise by an omnibus company sets out a compliance by the board

of commissioners with the statutes and also an adjudication by the board on all facts required to be adjudged by it to give it jurisdiction to enact the ordinance, it is a sufficient showing that notice required by Act March 27, 1906 (P.

Proceeding by the Public Service Railway Company against the General Omnibus Company of New Jersey and the City of Newark, to set aside an ordinance. Ordinance affirmed.

Argued June term, 1919, before TRENCHARD, BERGEN, and KALISCH, JJ.

Frank Bergen, of Newark, for prosecutor. Riker & Riker, of Newark, for defendant General Omnibus Co.

Jerome T. Congleton, of Newark, for defendant City of Newark.

KALISCH, J. The prosecutor seeks to set aside an ordinance entitled "An ordinance granting permission and consent to General Omnibus Company of New Jersey, a corporation, to operate auto busses and to use the surface of the streets hereinafter named for that purpose."

The ordinance grants consent and permission to the omnibus company to operate auto busses, and the use of the surface of the streets, avenues, etc., in the city of Newark

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for the operation of the busses upon the routes [tice was not made in one or more newspapers designated in the ordinance. published and circulated in said municipality Subdivision A of section 2 of the ordinance designated by said board or body, no such provides that the consent is granted subject to the terms and conditions imposed by chapter 136 of the Laws of New Jersey, Session of 1916, which act is entitled "An act concerning auto busses, commonly called jitneys, and their operation in cities," said act being commonly designated "Kates Act," P. L. 1916, p. 283.

newspapers having been designated by the commissioners. Although they did designate five of the most public places in the city for setting up notice, they did not adjudge that publication and posting had been made."

This objection appears to be wholly without any substance.

Section 2 of the act of 1906, page 50, in express terms provides:

"Notice shall be given, by publication in one or more newspapers published and circulated in said municipality, or if there be no newspaper published in said municipality, then in one or which said municipality is located, to be desigmore newspapers published in the county in nated by said board or body," etc.

In plain terms the prosecutor's contention is that the act of 1906 does not contemplate [2] It is apparent from this language that an omnibus company as belonging to that the statute does not require the board of class of persons who are entitled to receive commissioners of a municipality in which a franchise for the use of the public streets. The defendant omnibus company made its application to the municipality for a franchise to operate its busses on and over certain public streets of the city of Newark, under the statute of 1906.