HOWELL, V. C.
Bill by Sarah A. Ward against the Board of Chosen Freeholders of the County of Essex. Decree for complainant.
Edward Oakes, of Newark, for complainant. B. F. Jones, of Newark, for defendant.
HOWELL, V. C. The assessment in question in this suit must be declared void upon the authority of the case of Alby v. Essex Public Road Board, 51 N. J. Law, 439, 17 Atl. 951, and Essex Public Road Board v. Alby, 52 N. J. Law, 414, 21 Atl. 953, upon the ground that there is no legislative authority for making it, and therefore the whole thing is ultra vires. An attempt was made to sustain it upon the ground that the complainant had delayed making an attack upon it for more than 20 years and that therefore she had lost her right to do so by limitation. This argument leaves out of view the fact that the assessment so called was from the beginning a mere nullity, and no lapse of time can give life and vitality to something which was a nullity at the beginning. As was said by Chief Justice Gummere in Chosen Freeholders of Hudson v. Jersey City, etc., Street Ry. Co., 85 N. J. Law, 179, 88 Atl. 1061:
"An unfounded claim can never be given vitality by the mere silence of the person against whom it is made."
The complainant is therefore entitled to a decree in accordance with the prayer of the bill.