it becomes unnecessary to pass on those parts of the decrees which provide for the payment of counsel fees out of the "funds to be added to the corpus of the estate." Let the record be remitted for further proceedings in accordance with this opinion. (89 N. J. Law, 597) WEIR v. ALLEN. (No. 37.) (Court of Errors and Appeals of New Jersey. Nov. 20, 1916.) (Syllabus by the Court.) 1. SET-OFF AND COUNTERCLAIM 32-RE an annual sum charged on the general estate and the income of a trust fund sufficient to produce the amount. Where, as in the present case, the testator omits to direct that a fund be set apart to produce the amount needed, the legacy is chargeable on the general estate. 3 Pom. Eq. Jur. 1134; that is on the whole estate, corpus, and income, not on income alone. This rule is to the advantage of the annuitant, since she must be paid whether there is any residue left or not, and cannot be limited to the income of the estate for the satisfaction of her annuity. So well settled is this that the only question raised in the books is whether the annuitant is limited to a satAlthough a party to a suit cannot be deprivisfaction out of the income of a fund express-ed of his statutory right to recoupment by the ly created for the payment of the annuity. Ordinarily where the annuity is given, as here, in general terms, the annuitant is not thus limited. In re Mason, 47 L. J. Ch. 660 (Jessel, M. R.). The executors and trustees have followed the rule and paid this annuity out of general assets. In any event the life tenant necessarily, contributes to the payment. In the 20 years that elapsed between the account of 1894 and the account of 1914, the corpus was reduced $8,000, and the income of The provision of section 64 of the District the life tenant was necessarily less by the Court Act (Act June 14, 1898 [P. L. 575]), auincome on that amount. The loss would in- thorizing recoupment not only of damages suscrease as time went on; with a smaller es-tained by reason of any cause of action arising out of the contract, but also of damages sustate, the principal might easily be exhausted, tained by reason of any cause connected with and the widow left without income, unless the subject of the action, was not meant to apshe had saved out of her interest in the ear-ply to a case where pre-existing causes of action had become merged in the one on which the lier days to make good the gradually wasting plaintiff sues. principal. No question is made in the authorities that the burden must be apportioned between life tenant and remaindermen; that is, between income and corpus. In the English courts four different rules have been suggested for this apportionment. Strachan, Law of Trust Accounts, 109, a recent excellent English work. The third rule is the one adopted by the trustees in the present case. It has the authority of Re Henry (1907) 1 Ch. 30; Re Bacon, 62 L. J. Ch. 445. Mr. Strachan points out that it may work injustice to the life tenant, and prefers the rule of Re Perkins (1907) 2 Ch. 596, by which there is calculated "what sum, with simple interest to the day of payment, would have met the particular installment, and charge that sum to capital, the balance to income." This rule is certainly more in harmony with the view expressed by Sir William Page Wood (afterward Lord Hatherley) in the leading case of Allhusen v. Whittell, L. R. 4 Eq. 295; 36 L. J. Ch. 929. We need not now decide between these rules. It is enough that the method adopted by the trustees, of whom the widow herself was one, did no injustice to the remaindermen. The decrees of December 9, 1914, and of April 9, 1915, must be reversed. The decree of July 17, 1913, on the account of 1911 is open to the same objection, but has not been appealed from. With the reversal of the decrees on the main question mere form of pleadings as by declaring on the 2. SET-OFF AND COUNTERCLAIM 27(1) [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. § 45; Dec. Dig. 27(1).] 3. ACCOUNT STATED 12-SURCHARGING An account stated may be surcharged and falsified for fraud or mistake. Vanderveer v. Statesir, 39 N. J. Law, 593, approved. [Ed. Note.-For other cases, see Account Stated, Cent. Dig. §§ 73-76; Dec. Dig. 12.] 4. ACCOUNT STATED 18(2)—VALIDITY. Where suit is brought on an account stated, and both parties concede that there was in fact an account stated, and the controversy is whethis not whether there were mistakes in the items, er it resulted from a compromise, the real issue but whether the compromise was one enforceable by law. The necessary elements are the reality of the claim made, the good faith of the compromise, and the extinguishment of the pre-existing claim of the promisee. [Ed. Note.-For other cases, see Account Stated, Cent. Dig. §§ 89, 90; Dec. Dig. 18(2).] Appeal from Supreme Court. Action by Alexander Weir against Edward S. Allen, who filed a plea in recoupment. From a judgment of the Supreme Court, affirming judgment for plaintiff, defendant appeals. Affirmed. Edward S. Allen, of Bernardsville (George E. Clymer, of Newark, on the brief), for appellant. Burnett, Cornish & Sorg, of Newark, for appellee. SWAYZE, J. [1, 2] The plaintiff's state of demand consisted of the common counts in trial. This was an entire misconception of assumpsit with a bill of particulars stating cluded from attempting to deny it at the that he sought to recover the amount due on an account stated. The defendant upon demand specified as his defenses that the sum of the account stated was not correct, and that he did not owe the same; that the plaintiff did not fulfill the contract or work on which the account was stated on his part to be done and performed; that the work was not done in a good and workmanlike manner. He also sought to recoup damages. The trial judge struck out the recoupment because the damage did not arise out of the contract that was the subject of the action. In this he was right. The case we think is within the rule of Bozarth v. Dudley, 44 N. J. Law, 304, 43 Am. Rep. 372, and Winter v. Schoenfeld, 78 N. J. Law, 92, 73 Atl. 42. It is true that a party cannot be deprived of his statutory right to recoupment by the mere form of pleading, as by declaring on the common counts where the contract has been complete ly performed, instead of declaring upon the express contract; but where as in the cases cited the implied contract declared on is in fact a different contract from that out of which the damages sought to be recouped arose, the claim of recoupment is excluded by the terms of the statute itself. In the higher courts the question has become unimportant since the enactment of section 12 of the Supplement of 1912 to the Practice Act (P. L. 1912, 379). In the district courts, the right of recoupment still is governed by section 64; the provisions of section 68 making the practice of the circuit courts applicable does not extend to the case since there is express provision of law providing otherwise, viz., the provision of section 64. The language of section 64 differs from the language of section 105 of the Practice Act of 1903 (C. S. 4084), and authorizes recoupment not only of damages sustained by reason of any cause of action arising out of the contract, but also of damages sustained by reason of any cause "connected with the subject of the action." This provision, broad as it is, could not however have been meant to apply to a case where pre-existing causes of action had become merged in the one on which the plaintiff sued. That is the present case. Disregarding the technicalities of pleading, the plaintiff's case is that all existing matters in controversy were settled and the balance due was agreed upon; for that balance he sues. It is a new contract requir The judgment is affirmed, with costs. as (89 N. J. Law, 627) STATE v. REILLY. ing a new consideration to support it. The (Court of Errors and Appeals of New Jersey. recoupment was properly stricken out. Nov. 20, 1916.) (Syllabus by the Court.) CRIMINAL LAW 830-TRIAL-INSTRUCTIONS -REFUSAL. [3, 4] The defendant by his specification of defenses set up and at the trial sought to prove that there were errors in the account stated. The trial judge conceived the notion that he could not be allowed to make this proof because he had failed to deny in [Ed. Note.-For other cases, see Criminal his specifications of defenses that the account Law, Cent. Dig. 88 2012, 2017; Dec. Dig. had been stated and that he was thus pre-830.] When a party asks for an instruction to is proper to refuse it altogether. the jury which is partly good and partly bad, it Error to Supreme Court. James P. Reilly, Jr., was convicted of bigamy, and, the conviction being affirmed on error to the Supreme Court (88 N. J. Law, 104, 95 Atl. 1005), he brings error. Affirmed. William R. Wilson, of Elizabeth, for plaintiff in error. PARKER, J. We conclude that the judgment of the Supreme Court, affirming the con ample authority for this rule with regard to exceptions and provisos not contained in the enacting clause. As a corollary, the burden of proof is generally on the defendant to bring himself within the exception. 5 Cyc. 700; Plainfield v. Watson, 57 N. J. Law, 525, 31 Atl. 1040. The rule as laid down by Mr. Bishop (Stat. Crimes, § 607) is that, when the state has shown the two marriages and that the first wife was alive at the time of the second viction in the Union quarter sessions, should "the defendant may rebut this prima facie be itself affirmed, and concur in the opinion case by proof of her seven years' absence. Then, delivered for the Supreme Court by Mr. Jus-if the state contends that, nevertheless, he knew tice Bergen, except in the particular now to be specified. her to be alive within this period, it must prove his knowledge; he is not required negatively to establish his want thereof. And the jury are At the trial the defendant requested the to determine, under all the evidence, what the court to charge: real fact as to his knowledge was." "That the burden of proof that a person charged with bigamy has not been actually absent from his wife for five years, and that she was known to him to be living within that time, is on the state, and not on the defendant." As already stated, we are not required to pass on the question whether the burden is on the state to prove the defendant's knowledge that the first wife was living within the The Supreme Court held that the request statutory period. It is sufficient to say that was sufficiently complied with by charging the request was vitiated by the inclusion of the burden of proving that the first wife was the erroneous proposition that the burden was alive, "in connection with what the court said on the state to prove that defendant had not on the same subject immediately following," been continually absent from his wife for which, as the Supreme Court held, "put upon five years. Where a party asks for an inthe state the burden of proving affirmatively struction which is partly good and partly bad, and beyond a reasonable doubt that the de- it is proper to refuse it altogether. Gardner fendant had not been continually absent from v. State, 55 N. J. Law, 17, 26 Atl. 30; Consolhis wife for five years and that she was idated Traction Co. v. Chenowith, 58 N. J. known to him to be living within that time." Law, 416, 34 Atl. 817, affirmed 61 N. J. Law, Our examination of the charge leads us 554, 35 Atl. 1067; Dederick v. Central R. R. to the view that the request was not sufficient-Co., 74 N. J. Law, 424, 35 Atl. 833. There was ly complied with. The matter "immediately therefore no error in failing to charge in following" is undoubtedly the portion of the the language of the request. charge where the judge said that defendant Let the judgment be affirmed. would be innocent of bigamy, if he did not know that his wife was alive, and if it appears that he had not heard from her during a period of five years prior to his second mar- (Court of Errors and Appeals of New Jersey. riage. This is a very different thing from saying that the state must prove that he did know. We think that this part of the opinion is not justified by the record. (89 N. J. Law, 575) VLADAR v. KLOPMAN. Nov. 20, 1916.) 1. MALICIOUS PROSECUTION 16-ELEMENTS OF OFFENSE-WANT OF PROBABLE CAUSEMALICE. The fundamental grounds on which an action for malicious prosecution rests are that the prosecution was instituted without reasonable or probable cause and that defendant was actuated by a malicious motive in making the charge. Prosecution, Cent. Dig. §§ 19-22, 59; Dec. Dig. [Ed. Note.-For other cases, see Malicious 16.] 2. MALICIOUS PROSECUTION 64(2)—WANT OF PROBABLE CAUSE-MALICE-INFERENCE FROM PROOF OF INNOCENCE. But this does not lead to a reversal, for we consider that defendant was not entitled to the request in the form in which it was made, because it called for the imposition of the burden on the state of showing, both that defendant had not been continually absent from his wife for five years, and that she was known to him to be living within that time. If defendant was entitled to the second branch of this request, as to which we express no opinion, still he was not entitled to the first. Our statute (section 52 of the Crimes Act; Comp. St. 1910, p. 1762, § 52) is substantially similar to the English act (see Bish. Stat. Crimes, § 581), and dissimilar to the New York act, which puts the exception in the enacting clause. Fleming v. People, 27 N. 3. MALICIOUS PROSECUTION 71(2) — PROBY. 330. The Supreme Court properly held ABLE CAUSE-QUESTION for Jury. that under our act the indictment need notant had probable cause for instituting the proseWhere the question whether or not defendnegative the exception. There is, of course, cution against plaintiff depends in part at least In an action for malicious prosecution, proof, submitted by plaintiff, that the charge of larceny made against her was false, was sufficient to justify an inference of want of probable cause and of malice. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. § 152; Dec. Dig. 64(2).] upon facts the existence of which are disputed, ment, if valid, must rest solely upon the whether or not probable cause has been shown charge of malicious prosecution. is for the jury. [Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 161, 162; Dec. Dig. m71(2).] 4. MALICIOUS PROSECUTION 71(2)-PROBABLE CAUSE QUESTION OF LAW. [1] The fundamental grounds upon which an action for malicious prosecution rests are that it was instituted against the plaintiff without reasonable or probable cause, and that the defendant was actuated by a mali Where the facts are not controverted, the question of probable cause is one of law for decious motive in making the charge. Unless termination by the court, and its submission to the evidence in the case established the exthe jury is improper. istence of both of these grounds, the plaintiff's suit must fail. [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 161, 162; Dec. Dig. ~71(2).] 5. MALICIOUS PROSECUTION ABLE CAUSE. 18(2)-PROB The principal ground of appeal in the present case is that the uncontroverted proofs demonstrate that the defendant had reasonable and probable cause for charging the alleged larceny against the plaintiff, and that, therefore, the trial court should Where defendant's house had been injured by an explosion, and her servant, who had been in her employment for a year and a half without giving any cause to suspect her honesty, procured plaintiff to aid in cleaning up the have directed a verdict in the defendant's débris, and a visitor at the house saw plaintiff favor when, at the close of the testimony, a in a suspicious attitude before defendant's bu-motion for such direction was made. reau, while later certain articles of jewelry were discovered to have disappeared, and still later defendant heard that plaintiff had stated that a lady had given plaintiff jewelry of such nature, defendant had probable cause for instituting a prosecution for larceny against plaintiff. [Ed. Note. For other cases, see Malicious Prosecution, Cent. Dig. §§ 29, 36, 37; Dec. Dig. 18(2).] 6. TRIAL 143-CONFLICT BETWEEN FACTS AND PRESUMPTION-QUESTION FOR JURY. Ordinarily, where a fact is proved which raises a presumption of liability on defendant's part, and other facts are put in evidence tending to overthrow the presumption, a question is presented for the jury's determinatíon, rather than the court's. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 342, 343; Dec. Dig. 143.] Appeal from Circuit Court, Hudson County. Action by Marie S. Vladar against Lillian Klopman. From a judgment for plaintiff, defendant appeals. Reversed. [2] There was proof submitted by the plaintiff which showed that the charge of larceny made against her was false. When she rested her case, therefore, this proof was sufficient to justify an inference of want of probable cause and of malice. Navarino v. Dudrap, 66 N. J. Law, 620, 50 Atl. 353; Weisner v. Hansen, 81 N. J. Law, 601, 80 Atl. 455. To rebut the inference thus raised the de fendant proved the following facts: On the morning of the 1st of July some chemicals which her son, Willie, a boy about 12 years old, was compounding for the purpose of use in celebrating the Fourth of July, exploded with such force as to break the windows in and dislodge the plaster from several of the rooms in the house. In order to have the débris cleared away as rapidly as possible, she directed her servant, Emma Gross, to try and get some woman to come thereupon went to the house of the plaintiff, there the next day and do this work. Emma Weller & Lichtenstein, of Hoboken, for appellant. J. Emil Walscheid, of Town of Un-with whom she had become acquainted beion, for appellee. GUMMERE, C. J. The defendant, on July 10, 1914, made a complaint before a justice of the peace, charging the plaintiff with stealing a gold and coral necklace, a gold and coral bracelet, and a silver mesh bag. A hearing on the charge was had before the magistrate, and resulted in the plaintiff's discharge from custody. The plaintiff thereupon instituted an action for malicious prosecution against the defendant, adding thereto a count for slander. The trial of the action resulted in a verdict in the plaintiff's favor. From the judgment entered on that verdict, the defendant now appeals. cause of the fact that her (Emma's) sister Lena was boarding there, and secured her services. The plaintiff was engaged in the work of cleaning the house for two days, and on the second day, about noon, a cousin of the defendant, a Mrs. Gerson, happened to go upstairs to the defendant's bedroom, and there observed the plaintiff standing in front of a bureau drawer, which was open. She seemed greatly excited at Mrs. Gerson's appearance, and said to her, "Go out, lady; you must not come in here; you can't do any work here." Mrs. Gerson thereupon went downstairs, and told the defendant what she had observed, and advised her to lock up her So far as the plaintiff's claim for damages belongings. The defendant had left in this is based upon the charge of slander, it may room during the morning the three articles be disposed of by saying that no attempt was which she charged the plaintiff with having made at the trial to prove the speaking by stolen. About 2 o'clock in the afternoon she the defendant of the slanderous words set went to the room for the purpose of getting out in the complaint, or of any other words the front door key out of the silver mesh of similar purport. This being so, the judg-bag, and found the bag missing. She then looked for the bracelet and the necklace, | controverted; they therefore presented a and they, too, had disappeared. The only question of law for the determination of the persons who had been in the house during trial court, viz. whether they exhibited probthe day were the defendant, her cousin, Mrs. | able cause for the defendant's action. We Gerson, the plaintiff, and the servant, Emma are clear that they did. The fact that the Gross. The latter had been in the defend- stolen articles were in the defendant's room ant's employ for a year and a half, and nev- on the morning of the second day of plainer had done anything to cause her honesty tiff's employment there, and had all disapto be questioned. The defendant suspected peared before 2 o'clock in the afternoon; the the plaintiff of having taken these articles, fact that there were only four persons in but, as she had no satisfactory proof against the house during that time, including the deher, merely told her that she would not re- fendant herself; that one of them was her quire her services any longer. About a week cousin, Mrs. Gerson, and that another was after the articles had been discovered to be her servant, who had been in her employ for missing, Emma Gross brought her sister a year and a half, and whose honesty apLena to the defendant's house, and Lena then parently was not open to suspicion-coupled informed her that Mrs. Vladar, the plaintiff, with the fact that the plaintiff was an ena few days before, had told her that a lady tire stranger to her, and had admitted to had given her a bracelet and a necklace; Lena Gross that she had in her possession that the bracelet had red stones in it, and articles of jewelry similar in description to the necklace had a red stone in it; and that those which had disappeared from her house, some day she would show these articles to would, we think, have led any reasonable her. The missing bracelet was composed of person to the belief that the latter was regold and coral; the necklace had a coral sponsible for the disappearance of the stolen pendant. The day after this information articles. This being so, it was the duty of was received, Mrs. Klopman, the defendant, the trial court to have directed a verdict in went to the justice of the peace and made the favor of the defendant. complaint which is the basis of the present action. None of this testimony was attempted to be controverted, nor was the credibility of the witnesses who gave it sought to be impugned. The question, therefore, to be determined upon the motion to direct a verdict, was whether these facts exhibited probable cause for believing the plaintiff to have been guilty of the theft of these articles. The trial court refused the motion, upon the ground that the existence or nonexistence of probable cause was a matter to be determined by the jury, rather than by the court. In this holding we think there was error. [6] It has been suggested that the rule first adverted to in this opinion, namely, that proof of the falsity of the charge justifies an inference of malice and of absence of probable cause for making the complaint, and that which permits a court, as a matter of law, to determine upon the undisputed facts in a case that probable cause exists, are out of harmony with each other, and that, therefore, one or the other must be unsound. We think not. The first rule merely creates a presumption which the defendant must overthrow in order to defeat the plaintiff's action. The second rule permits the absolute destruction of the presumption by [3, 4] Where the question whether or not uncontroverted proof of facts which demonthe defendant had probable cause for insti- strate that the defendant had probable cause tuting the prosecution against the plaintiff | for making the charge laid against the plaindepends, in part, at least, upon facts the tiff. It is true that, ordinarily, where a fact existence of which are in dispute, it is the is proved which raises a presumption of lifunction of the jury to settle those facts, ability on the part of the defendant, and and, upon doing so, to determine on the other facts are put in evidence which tend whole case whether or not probable cause to overthrow that presumption, a question is has been shown; such determination being presented for the determination of the jury, based upon proper instructions submitted by rather than of the court. But actions for the trial court. Weisner v. Hansen, supra; malicious prosecution have always been difSunderbrand v. Shills, 82 N. J. Law, 700, 82 ferentiated by the courts, so far as this speAtl. 914. But, where the facts are not con- cial feature of litigation is concerned. The troverted, the question of probable cause is rule which makes the existence or nonexistone of law to be determined by the court,ence of probable cause, when the facts are and its submission to the jury is improper. not in dispute, a matter to be determined by Magowan v. Rickey, 64 N. J. Law, 402, 45 Atl. 804; McFadden v. Lane, 71 N. J. Law, 624, 60 Atl. 365; Hartdorn v. Webb Manufacturing Co., 75 Atl. 893; Lane v. Penna. R. R. Co., 78 N. J. Law, 672, 76 Atl. 1016; Sunderbrand v. Shills, supra. the court, is probably the outgrowth of a public policy, the purpose of which was to encourage criminal prosecutions at the instance of private citizens, by making them certain that they might safely intervene to put in motion the machinery of the crim[5] As we have already stated, the facts inal law against apparent violators of its which were the inducing cause of the defend- provisions, without being liable to be mulct |
