Volume 1 — New Jersey Law Reports

<p>This was an indictment for larceny, and on the trial, no evidence appearing against one of the prisoners, the counsel for the others moved that he might be sworn as a witness in their behalf.</p>

This was an action brought against the defendants as partners, for work and labor performed for them by testator during his lifetime, in the capacity of clerk or manager of iron works. It was tried at bar.

<p>1. In proceedings under the attachment law against garnishee, no writ of inquiry had issued to ascertain the sum due to plaintiff, and a fi. fa. subsequently issued against goods and lands of garnishee on a judgment obtained against his administrator; the fi. fa. was set aside for irregularity.</p> <p>2. The heir whose property was affected by the fi. fa. is competent to move the court to set it aside, though no party to the suit.</p>

<p>In preceding;! ander the attachment law against garnishee* no writ of inquiry had issued to ascertain the sum due to plaintiff, and a fi. fa. subsequently is» sued against goods and lands of garnishee on a judgment obtained against his administrator; the Ji.fa. was set aside for irregularity* The heir whose property was affected by the fi. fa. is competent to move the court to set it aside, though no party to the suit,</p>

In this case a habeas corpus cum causa had issued out of this court, directed toe the defendant, commanding him to bring up the body of negro Tom. The administrator accordingly, at the return of the writ, brought up the negro, and claimed to detain him as a slave of the intestate, at the period of his death.

IN this case Leake for plaintiff, moved for leave to direct the execution to the coroner, upon the allegation that the sheriff was favourable to the defendant and there were reasons to apprehend he would in consequence be remiss in the performance of his duty. He cited 4 Inst. 271. 1 Blac. Com. 349. 3 Blac. Com. 354.

<p>Trial at bar.</p> <p>The defendant challenged the array of the j ury, because arrayed by the procurement, or under the direction of the plaintiff. In order to establish the fact relied upon, Col. Taylor was produced as a witness, who swore that the plaintiff had handed the venire to him, with a request that he would deliver it to M’Pherson, the deputy sheriff of Hunterdon county, and desire him to summon the jury from the upper part of the county, and not from the neighborhood of Trenton, or words to the same effect. In consequence of this direction, he did not hand the venire personally to M’Pherson, but sent it to him, with the message from the plaintiff. The plaintiff, however, did not designate any individuals for selection by the sheriff.</p>

THIS was an action of covenant brought upon certain artieles of agreement executed by Johnson and Applegate. It appeared there were certain covenants entered into between the parties, and duly executed in April 1773, in which Johnson “ in behalf of Barbarie and Skinner agrees to sell “ to Applegate a tract of land.

<p>An allegation that sheriff is favorable to defendant, and an expectation he -would not perform his duty, not sufficient ground to direct the execution to the coroner. Vide Plowd. 74.</p>

<p>An attorney, who covenants in that capacity to convey, and sets his own hand and seal to the covenants, is competent to bring an action for the purchase money, covenanted to be paid him, in-his own name.</p>

Trial at Bar. THIS was an action of ejectment. The defendant, Bobs/ Mason, claimed title to the lands in controversy, under a deed dated 2d March 1773, which purported to have been executed by one Patrick Neale and James Gaston, to Mason. The name of Neale however, one of the parties to the instrument, appeared to be obliterated with ink.

<p>The action on the timber act for the penalty must be debt, and mast so ap pear on the record of the ja*tise.</p> <p>Note. — See Crane’s Case Post. S. P.</p>

<p>Trial at bar.</p> <p>This was an action of ejectment. The defendant, Robert Mason, claimed title to the lands in controversy, under a deed dated 2d March, 1773, which purported to have been executed by one Patrick Neale and James Gaston, to Mason. The name of Neale, however, one of the parties to the instrument, appeared to be obliterated with ink. One Gravat, a subscribing witness, swore “ he could not recollect that Neale executed the conveyance, but believed his name must have been to the instrument when he became a witness, for that he would not have witnessed it if it had not been there.” It appeared that Mason was in possession of the property in dispute at the date of the deed, and for two years preceding it, and ever since, and that no opposition had been made to his title, and no claim set up by Gaston, until four or five years after the death of Neale. The counsel for the plaintiff objected to the admission of the deed in evidence. They said there was no proof of the execution of the instrument by Neale, and without such evidence it must be wholly inoperative, (2 Root. 300 accord) — that the rasure of Neale’s name from the instrument must be imputed to defendant himself, in whose custody the deed was, unless he could fully account for the fact, which was not attempted. All rasures and interlineations of deeds laid them open to serious objections, and those in whose custody they have been must show how and when they occurred. 1 Dali. 67, accord.</p>

THIS was an action of debt on a bond dated in 1772, given to the Testator by Birdsall. The defendant pleaded payment, and gave notice of a set-off. The cause was tried at bar, and verdict for the plaintiff. The counsel for defendant, had obtained a rule to show cause why the verdict should not be set aside, and a new Trial granted.

THIS case was originally commenced in the Court of Common pleas of Gloucester County, and had there been referred to the decision of arbitrators in December term 1790. The arbitrators had met twice at«i appointed a third meeting, when the counsel for Denny apprehending an unfavourable award, produced a Habeas Corpus. This was a motion to show cause why a Procedendo should not be awarded.

<p>The action on the timber act for the penalty must be debt, and must so appear on the record of the justice.</p>

This case was originally commenced in the Court of Common Pleas of Gloucester county, and had there been referred to the decision of arbitrators, in December Term, 1790. The arbitrators had met twice and appointed a third meeting, when the counsel for Denny apprehending an unfavorable award, produced a habeas corpus. This was a motion to show cause why a procedendo should not be awarded.

<p>This was an action of debt on a bond dated in 1772, given to the testator by Birdsall. The defendant pleaded payment, and gave notice of a set-off. The cause was tried at bar, and verdict for the plaintiff.</p> <p>The counsel for defendant had obtained a rule to show cause why the verdict should not be set aside, and a new trial granted. The cause was fully and ably argued by the counsel on both sides, but the facts and arguments being all stated and considered in the opinion delivered by the court, it is not thought material to insert anything further.</p>

THIS was an action of Slander brought by Mary Smith against Isaac Minor. The declaration contained two counts.

<p>This was an action of slander, brought by Mary Smith against Isaac Minor. The declaration contained two counts. The first count, after the usual allegations of the plaintiff's good name, and of her being unmarried and sole, &c., charged that the defendant, “maliciously intending to injure the plaintiff in her good name, and to subject her to the pains and punishments of the laws and statutes of this state made against immorality and fornication, on the 1st of January, 1788, at Trenton, &c., did falsely and maliciously report and publish, &c., these words: ‘ Mary Smith,' (the said Mary meaning,) ‘is with child by Stephen Jones,’ (meaning that the said Mary had been begot with child by one Stephen Jones.”) The second count laid the words thus: “ ‘ Ezekiel Smith’s daughter,’ (the said Mary meaning,) ‘is like to have a little one/ (meaning that the said Mary was with child of a bastard /’) [17] and the declaration concluded for general damages. To this the defendant pleaded “ not guilty.” Afterwards, by consent of parties and their attorneys, the matters in difference were “ referred to the final end and determination ” of three referees in the usual form. The referees made their report to April Term, 1789, under their hands and seals, which states, that “having heard the proofs and allegations of both the parties, they do find, award, report, and determine, that the defendant, Isaac Minor, is guilty of speaking and publishing the slanderous words mentioned in the plaintiff’s declaration, in manner and form as he stands charged; and we assess the damages which the plaintiff hath sustained by reason thereof, at the sum of £100, besides costs,” &c.</p> <p>In the same term, the defendant, by his guardian and counsel, took a rule to show cause why this report should not be set aside, and filed the following reasons:</p> <p>1st. That the plaintiff was and is under the age of twenty-one years, and therefore ought to have sued by guardian or next friend.</p> <p>2d. That the defendant appeared by attorney, and not by guardian.</p> <p>3d. That the words, “ Mary Smith is with child by Stephen Jones,” in the first count, are not actionable.</p> <p>4th. That the words, “ Ezekiel Smith’s daughter is like to have a little one,” in the second count are not actionable.</p> <p>5th. That the referees were mistaken in point of law, for that the defendant spoke the words as they were told to him by another person, in friendly concern, without malice.</p> <p>6th. The general errors.</p> <p>The cause was very ably argued in April Term last, by Leake and Ogden for the rule, and Lt. Stockton and Frelinghuysen against it.</p> <p>The counsel for the defendant contended, that in order to make words actionable in themselves, without the proof of special damage, they must contain a charge, which, if true, would subject the plaintiff to a criminal prosecution. 3 Bl. Com. 123, 124; 6 Bac. Abr. 205 — 6; and that when words were not in themselves actionable, they cannot be made so by [18] an innuendo, (a) If this principle be correct, the whole of the plaintiff’s case falls to the ground ; for she is not charged with any offence for which she can be subjected to a criminal prosecution. The crime of fornication, which is the utmost that is alleged against her, is not an indictable offence, either by the common law, or by the statute that seems to be referred to in the declaration. Under the act of December 12th, 1794, (Allinson’s Laws of of. J. 4,) Section 3, fornication merely as such, is not indictable. Nor will even actual pregnancy resulting from the act make any difference. Before the parties become subject to the penalties of the act, there must be a bastard born; the whole section, if examined, requires this construction to be given it: unless the immoral act be followed by spurious issue, the criminal act is not cognizable by the law.</p> <p>The words alleged in this case to have been spoken by defendant, are, consequently, not actionable, as they do not impute to plaintiff any crime or act punishable by the municipal law; she could not be punished for being with child, nor for the fornication, and by her death or marriage before delivery, she would wholly escape all liability to the penalties of this statute. The words, therefore, attribute to her nothing more than an act of moral turpitude, namely, fornication and mere pregnancy, neither of which exposed her, at the time they were .spoken, to any human punishment. Salter v. Browne, Cro. Car. 436 ; Byron v. Elmes, 2 Salk. 693, p. 2 ; Anonymous, Ibid. 694, p. 4; Graves v. Blanchat, Ibid. 697, p. 7; 1 Morgan’s Vade Mecum 141-2 ; 6 Bac. Abr. 210. (a) These cases and authorities fully establish the doctrine here contended for, and lay down the law that for words imputing merely moral turpitude, no action will lie; and if the words be not in themselves actionable, they cannot be made so by the malice of the speaker; the finding of the arbitrators that the words were false and malicious, is of no importance, and cannot increase the responsibility of the defendant. 3 Wils. 188, per Lord C. J. De Grey.</p> <p>[19] The arbitrators here have gone upon the supposition that the action was well laid, and in this have clearly mistaken .the law. They have awarded damages to a plaintiff who had no legal cause of action, and, in doing so, have subjected their award to be set aside. 1 Bac. Abr. 139; Comeforth v. Geer, 2 Vern. 705. (b)</p> <p>For the plaintiff. — On the very principles laid down by the opposite counsel, this action is sustainable. The cases and authorities cited do not reach the full length of the defendant’s case: it is not required by them that the liability to a criminal prosecution should be immediate: it is sufficient that the plaintiff would be endangered. If the charge be of such a description as to subject the plaintiff to any jeopardy of a future prosecution, it comes within the language and meaning of the law. If a single woman be said to be with child, and like for a little one, innuendo a bastard, she must be endangered at law, and such language, if true, would certainly have a tendency to bring her to punishment. Nor is this such a case as that the court will be anxious to restrict the expressions of the law within narrower limits than they are compelled to by a sense of equity and justice. Redress for malicious defamation should be extended with the utmost liberality, aud not frittered away by unnecessary refinements.</p> <p>But the crime of fornication only is a punishable offence under the act of assembly. The act in question, as appears by its title, was intended to prevent and punish immorality. The fornioation, or illicit cohabitation, is the crime to be punished and prevented; and all the expressions to be found in the statute relative to the “reputed father,” “the maintenance of such bastard,” &c., which have been so eagerly laid hold of to favor the construction of the defendant, are to be referred to another and distinct object, equally within the view of the legislature, viz., the maintenance of such children as might spring from these unlawful connections. The construction put upon this section of the statute is indeed singular, and equally at variance with the intent of the legislature, and the [20] words and policy of the law. It indeed savors of absurdity, to suppose that the criminality of the offence of fornication should, in any degree, depend upon the event of issue; the legislature say no such thing, but have declared, in express terms, “ that any person convicted of fornioation shall pay,” &c. The having of issue is a consequence of the crime, but perfectly guiltless in itself, aud the contrary construction is a wresting of the words and meaning of the act, to the purpose of sheltering one of the most dangerous vices to society, instead of giving to them their obvious and only salutary effect.</p> <p>Certainly, however, the charging plaintiff as being with child of a bastard, exposes her to certain or probable damage, and comes clearly within the rule laid down in 3 Wils. 187. The cases cited from the English books with regard to the charge of bastardy, however analogous in appearance, do not actually apply, because their statutes only relate to the security of the parish, not at all to the criminal act, which is considered as altogether a spiritual matter, and is subjected to the cognizance of another tribunal. Our act of assembly, however, provides for both cases: it prescribes a punishment for the offenoe, and, in that respect, provides a substitute for the spiritual court, and it follows the English statutes in taking care of the township. We have no spiritual court with us, and, therefore, unless the interpretation for which we contend be given to the act, the crime of fornication will be committed here with impunity.</p>

THI-S was an action brought to recover from the executors, the wife’s proportion of the proceeds of certain lands belonging to testator, which had been sold by them under a power in the will. It appeared that the land had been sold in the year 1777 fox* a full price, and purchased in by one of the executors Coovert? through the agency of a nominal bidder.

<p>THIS was an action of debt on a bond, and on the trial defendant offered to set otf the price of a quantity of flour which the plaintiff had purchased from him.</p> <p>By the evidence it appeared» that Stewart during the war was an issuing commissary, and wrote to Johnson ixi these words “ I find flour will be wanted to sxxpply the ovens at “ Pittstown” and desires him to get some in readiness, addixxg, “ when I see Mr. Buchanan, or his deputy, I shall let “ him know I have engaged what flour you can make; I “ think it will be more for your ixiterest than selling the «* wheat.*5</p> <p>that the flour was sold by Johnson to Stewart and not to the publick. On the other side it was argued by Leake and Frelinghuysen that this was a clear case of agency for the publick: Stewart was an issuing, Buchanan a purchasing coxnmissary. The counsel for the plaintiff desired the court to charge the jury as to the legal operation of the letter that had been given ixx evidence, which was declined.</p>

THIS was an ejectment for lands lying in Somerset County, and on the trial, which was at Bar, these points were ruled by the court. The plaintiff after producing and proving a patent for 2000 acres on the Millstone, dated in 1688, offered to show to the jury a map drawn by one Stevens his surveyor. It was objected to.

THIS was a Certiorari to Justice Wilson — On the return of the Justice it appeared, South had brought an action by summons against Hall.

<p>1. An executor is a trustee, and not allowed to purchase or speculate in property of testator for his own benefit.</p> <p>2. Tenders are stricti juris, and are never supplied by equity.</p>

<p>It is a matter for the jury to decide, whether a man contracts on hia own account or as public agent, where the intent is doubtful.</p>

<p>Certiorari to Justice Van Riper.</p> <p>BY the return of the Justice, and affidavits, it appeared the defendant below had made a payment in York Coppers. This action was brought upon the act of June 4th 1787. which enacts that if any persons after the 20th of July next, shall “ offer to pass in payment other Coppers than those permitted M by the law of June 1st, 1786, and a supplement thereto pas- “ sed November 22d, 1786, such person shall forfeit and pay “ ten times the nominal value, &c.</p>

<p>This was an ejectment for lands lying in Somerset county, and on the trial, which was at bar, these points were ruled vby the court.</p> <p>The plaintiff, after producing and proving a patent for two thousand acres on the Millstone, dated in .1688, offered to show to the jury a map drawn by one Stevens, his surveyor. It was objected to.</p>

IT appeared by the return of the Justice that this action was in part to recover the costs of a suit brought by Tyson against Riggs the testator in his life-tiine, which had abated by the death of Riggs.

<p>Where the sum in dispute does not exceed ¿612, the justice has jurisdiction, whatever may be the amount of the accounts produced.</p>

<p>Note. — See Stat. iS. Car. 3. Cap. 2, section 10. Bullocks Law of costs. 280. Sayer’s L. of C. 204, i llichardsoo’s C. P, 339= ■2 Sellon’s P?. 444, 2H B\, 286,</p>

i TilS action was brought to recover the amount of two due bills signed by defendant; on the first it appeared to have been written-— « 2d May 1788. Settled; — due ¿89-6-0.” On the second— “ 10th Sep. 1788. Settled and due specie ¿91-6-6.” “ and paper ¿’10-1*9.” stated that these were not distinct balances due, but the last bill included the first, and amounted in law to an insimid computassent-, and he prayed the court to charge the jury accordingly.

'THIS was a Habeas Corpus to bring up the body of negro Silas, — At the return of the writ it appeared that John Horsjield was possessed of two negro girls whom he held as slaves.

<p>Certiorari to Justice Ogden.</p> <p>The objection to the judgment in this case was, that the jurors cast lots for their verdict, which fact was proved by the affidavit of one of the jurors.</p>

<p>Certiorari to Justice Van Riper.</p> <p>By the return of the justice, and affidavits, it appeared the defendant below had made a payment in York coppers. This action was brought upon the act of June 4th, 1787, which enacts that “ if any person after the 20th of July next, shall offer to pass in payment other coppers than those permitted by the law of June 1st, 1786, and a supplement thereto, passed November 22d, 1786, such person shall forfeit and pay ten times the nominal value,” &c.</p>

<p>An action for false imprisonmentis not within the jurisdiction of a justice of the peace.</p>

THIS was an action of ejectment, tried at Bar. — On the trial, the following questions arose and were adjudged by the court. 1 st. Read on behalf of Lecony challenged the array, alleging that it had been made at the nomination of the plaintiff’s counsel. It appeared the Judge before whom the jury was struck, made out the list of special jurors, containing the names of 48 persons.

It appeared by the return of the justice, that this action was, in part, to recover the costs of a suit brought by Tyson against Riggs, the testator, in his lifetime, which had abated by the death of Riggs.

This action was brought to recover the amount of two due-bills signed by defendant. On the first, it appeared to have been written— “2d May, 1788. Settled; due £89-6-0.” On the second, “10th Sep., 1788. Settled, and due, specie, £91-6-6.” “ and paper, £10-1-9.”

<p>Where error is brought upon a judgment by confession, and judgment is affirmed, single costs only are recoverable.</p>

<p>THIS was a Habeas Corpus to bring up the the body of Negro Joe.</p> <p>He insisted, that this being a claim of property, no man could, under the constitution and laws of the state, be ousted of his property, or dispossessed of his rights, unless by the intervention of a jury which was solemnly guaranteed to every individual, by the constitution and laws. Const. N. Jersey, See. %%. He alleged that the court were vested with powers to order an issue, and to impannel a jury instanter for the purpose of determining it, 6</p>

<p>This was a habeas corpus to bring up the body of negro Silas. At the return of the writ, it appeared that John Horsfield was possessed of two negro girls, whom he held as slaves. By his will, dated in 1761, he devises thus: “Item, my two negro girls, Betty and Nelly, I leave to be sold by my executors, for the term of fifteen years, and at the end of that term, to be free; and the money arising thereby to be equally divided amongst my daughters.” He further ordered, that if the said girls became chargeable or misbehaved, it should be at the risk of the buyer.</p> <p>The executors, pursuant to the directions of the testator, sold the two negroes for the term specified in the will to one Covenhoven, who sold them to the present defendant. During the term Betty had a child, (Silas, the negro in question,) who was now of full age. ' Anderson claims him as his slave, contending that his mother continued in a state of slavery until the expiration of the fifteen yfears.</p>

<p>No costs awarded on reversal of a judgment on certiorari — secus on affirmance.</p>

<p>Certiorari to Justice Little.</p> <p>It appeared in this case that part of plaintiff’s demand below was founded on an allegation that Jeffers, the defendant, who was a constable, had arrested him on Sunday, on a warrant.</p>

THIS was an action of debt on a bond for ¿£732 York money payable witli interest, and dated May 22 d, 1761, Plea payment. The defence taken was, that the debt had been tendered to Lezvis one of the executors who refused to receive it; and therefore could claim no interest.

ON the trial of this cause at bar, one Ely was offered as a , witness on behalf of the plaintiff. Being interrogated on his voire dire he acknowledged he had once entered into an obi iSatlon by which he bound himself to defray half the expenses oí this action: lie stated further that he never had contributed any thing for this purpose except a french crown, which had been repaid him, and that he did not expect to gain or lose by the event of the suit.

<p>1. The judge before whom the special jury was to be struck, at the suggestion of plaintiff’s counsel, altered the list, by excluding some whose names had originally been placed on it, but who were unquestionably improper to try the cause ; held, that though such an act may be objectionable, yet as it does not impeach the fitness of the jury returned, it constitutes no valid ground to challenge the array.</p> <p>2. A deed from sheriff of Burlington was offered in evidence ; held, that the non-producion of-a ft. fa. in Gloucester, to warrant the testatum in Burlington, is not a sufficient failure of proof to incur a non-suit — the defect may be supplied at any time.</p> <p>3. The ft. fa. in Gloucester was only against goods; held, that it warranted a testatum against lands.</p> <p>4. An inspection of judgment roll and ft. fa. not necessary, in Supreme Court, unless for the purpose of recording process.</p> <p>5. It is not necessary to show there was a deficiency of personal estate to warrant a sale of real property.</p> <p>6. The testatum appeared to be tested out of term; held, that it was amendable.</p> <p>7. Fraud is sometimes a question of law, and sometimes of fact. If the sheriff and the purchaser at his sale act fraudulently in the disposal 'of property, such sale is absolutely void.</p> <p>8. If sheriff alone acts fraudulently, such misbehavior ought not to prejudice an innocent purchaser.</p>

THIS was an action of indeb. assumpsit -brought to recover £90. the price of two horses which Snyder had sold to Findley.

<p>On habeas corpus the court have no power to order a jury to determine the questions of fact that may arise: the court are the constitutional judges. _</p>

This was an action of debt on an administration bond, brought in the name of the plaintiff as governor and ordinary, which was referred to the decision of arbitrators. The cause was at issue upon the question whether defendants had truly and fully accounted.

THIS was an action of debt, to recover the penalty for trading with Gaston’s negro. The Justice gave judgment for £i-l-6. in favour of Gaston.

<p>CERTIORARI to remove the adjudication of a line fence between one Osborn and Minn¡ the tenant of Ogden.</p>

<p>Certiorari to Justice Lloyd.</p>

This was an action of debt on a bond for £732, York money, payable with interest, and dated May 22d, 1761. Plea, payment. The defence taken was, that the debt had been tendered to Lewis, one of the executors, who refused to receive it, and, therefore, could claim no interest.

ON certiorari removing the return of a road from Roads-town to Boxvens-town cross roads, it appeared that Samuel .Dallas a surveyor for Downs Township was summoned and acted, although there were three townships nearer than Downs to the place in question.

On the trial of this cause at bar, one Ely was offered as a witness on behalf of the plaintiff. Being interrogated on his voir dire, he acknowledged he had once entered into an obligation by which he bound himself to defray half the expenses [47] of this action. He stated, further, that he never had contributed anything for this purpose, except a Erench crown, which had been repaid him, and that he did not expect to gain or lose by the event of the suit.

THIS was an ejectment for lands situate in the county of Gloucester. Held: that a grant was good without actual delivery; if it be actually executed and not countermanded, it is sufficient. The law with regard to fraudulent conveyances, is not precisely as laid down by the opposite counsel.

This was an action of indebt, assumpsit, brought to recover ¿£90, the price of two horses which Snyder had sold to Findley.

This was an action of debt, to recover the penalty for trading with Gaston’s negro. The justice gave judgment for £4 Is. (id., in favor of Gaston.

<p>Certiorari to remove the adjudication of a line fence between one Osborn and Minn, the tenant of Ogden.</p>

<p>If summons is left agreeably to the directions of the party, he cannot take advantage of its not being left at the place of his usual abode.</p>

This was an ejectment for lands situate in the county of Gloucester. The cause had been tried at bar and a verdict given for the plaintiffs. Leake and Ah, Ogden had obtained a rule to show cause why a new trial should not be granted on the ground : 1st. That the verdict was against the direction of the court; 2d. That it was contrary to evidence.

<p>The rule that the surveyors on a road are to be chosen from the nearest townships is imperative, and must be observed as well in cases in as out of the county.</p>

IT appeared by the return of the justice in this case, , , . , . , that the jury which was . sworn to try the cause, by consent of parties consisted of but 6 men, who gave a verdict *or plaintiff, on which judgment wa’s entered accordingly.

THE matters in controversy between the parties in this action, had been referred by the Justice with the consent of the parties; the referees reported and the Justice gave judgment upon the award. This judgment is erroneous, because the justice had no authority to refer the matter and to enter judgment on the award.

<p>Certiorari to the sessions of Hunterdon,</p>

TWO Justices of Gloucester County had removed one Delap from Newton in Gloucester to Evesham in Burlington County. Evesham appealed, and the sessions of Gloucester confirmed the order of the two Justices. On a certiorari, this order of the sessions was quashed in this court, and a bill of costs and expenses taxed. The bill contained an allowance for the maintenance of Delap’s wife and child by Evesham, pending the controversy.

THIS was an action on a promise of marriage, which was fully proved, with strong circumstances of aggravation. that an action had been brought by the plaintiff’s father against the defendant for getting her with child, loss of service fkc. and upon its being left to arbitrators, they by consent of parties, had gone into the whole inquiry, both as to the promise of marriage and seduction, and had awarded the exemplary sum of £ 75-3-9 for which judgment was entered.

THIS was an action of debt tried at bar in April term last, and a verdict for the plaintiff, (see the case fol. ante.) 1st That the court misdirected the jury, in leaving it to them to fix the time that an assignee may hold the note; he said it was a question of law, 3, and 4 Ann. and cited the case of Steinmitz et al. v. Currie, (a) %d That Findley’s declaration was not fraudulent, as stated in the charge of the court. ad That the Insolvency of Harris was no excuse for…

THIS was an action of trespass, tor deb daughter, and getting her with child, mñsiu , . , , . . i-h fhilH par quod servitium

A Habeas Corpora was directed to defendant for Abraham, a negro, and his wife Dolly. Leake and Stockton for master. Defendant returned, that they were his slaves for life, and prayed it might be inquired of by the country. For the trial ey jury, Leake insisted, that a Habeas corpus was not a summary proceeding, and that error would lie on it, and cited the case of the ¿Queen v. Paly et al. (a) Belt v. Dolby, (b)

THIS was an action of debt on a bond, dated in 1782 for .£700. and bound themselves jointly and severally. On the 5th of August 1786.

It appeared by the return of the justice in this case, that the jury which was sworn to try the cause, by consent of parties, consisted of but six men, who gave a verdict for the plaintiff, on which judgment was entered accordingly.

The matters in controversy between the parties in this action had been reférred by the justice, with the consent of the parties. The referees reported, and the. 'justice gave judgment upon the award.

ON a motion to show cause why the award of the referees made in this cause should not be set aside. In September Term 1788, a rule of reference was made in this action, which was brought by an English merchant to recover an English debt in the usual form.

ON a Sci. Fa. The plaintiff had fded his declaration on the 12th of May 1791. Leake moved for time to plead, until the 20th October, alledging that a copy of the declaration had not been served on him, or any notice of filing it. unless Leake would accept of notice of trial now.

THIS was an action for money had and received to plaintiff’s use, tried at bar. The plaintiffs case, as stated and proved, was, that on the 27ttif uly 1780, Barnet, by general words in the common form assigned to plaintiff a sealed bill, of one Baumans for £70 payable in 1778, for which plaintiff paid him £ 3100 in continental currency, as appeared by Barnefs receipt for the money.

<p>No appeal lies to the sessions from a vagrant pass made by a justice, although it contains some expressions resembling an order of removal.</p>

Two justices of Gloucester county had removed one Delap from Newton, in Gloucester, to Evesham, in Burlington county. Evesham appealed, and the Sessions of Gloucester confirmed the order of the two justices. On a certiorari, this order of the Sessions was quashed in this court, and a bill of costs and expenses taxed. The bill contained an allowance for the maintenance of Delap’s wife and child by Evesham, pending the controversy.

<p>A judgment between other parties shall not prejudice a person not party or privy to the record. Damages in action of breach of promise of marriage should be exemplary; not to be measured by defendant’s poverty.</p>

THE summons was dated the 8th, returnable on the 21st May. The objection was, that more than 12 days inter- ° r a i vened, contrary to the express words oi tne act of Assembly,

This was an action of debt tried at bar in April Term last, and a verdict for the plaintiff. (See the case fol. 57, ante.)

This was an action of trespass, for debauching the plaintiff’s daughter, and getting her with child, per quod servithm amisit.

<p>Certiorari to Justice —-----</p> <p>THE reasons assigned for reversing the judgment in this case was, that the action was case, and the judgment ran in these words, 1 give judgment for /— debt and £— costs; whereas, the judgment should have been for damages.</p>

THIS was an action of ejectment brought to recover a certain island situate in the river Delaware, about two miles above Trenton. It was tried at bar. Held: that the denial of plaintiff’s title is equivalent to an actual ouster, and makes the possession adverse.

A habeas corpora was directed to defendant for Abraham, a negro, and his wife, Dolly. Leake and Stockton for master. Defendant returned that they were his slaves for life, and prayed it might be inquired of by the country. For the trial [81] by jury, Leake insisted thataAa6eas corpus was not a summary proceeding, and that error would lie on it, and cited the case of The Queen v. Patty et al., 2 Salk. 503 ; Belt v. Dalby, 1 Dall. 167.

<p>Where no objections are made at the trial to the plaintiff’s account, the court will not reverse thejudgment on the ground of there being no evidence.</p>

This was an action of debt on a bond, dated in 1782, for £700. By a case stated, it appeared that Miller and one Terril gave the bond in question to Shotwell, and bound themselves jointly and severally.

<p>On motion to show cause why the award of the referees made in this cause should not be set aside.</p> <p>In September Term, 1788, a rule of reference was made in this action, which was brought by an English merchant to recover an English debt in the usual form. The referees, in August, 1789, made a report “for £991 11s. 2d., sterling money of Great Britain, payable in good safe sterling bills of exchange on England or Holland to that amount, or so much current money as will purchase such bills.”</p>

On a set. fa. The plaintiff had filed his declaration on the 12th of May, 1791. Leake moved for time to plead, until the 20th of October, alleging that a copy of the declaration had not been served on him, or any notice of filing it.

This was an action for money had and received to plaintiff’s use, tried at bar. The plaintiff’s case, as stated and proved, was, that on the 27th July, 1780, Barnet, by general words in the common form, assigned to plaintiff a sealed bill of one Bauman, for £70, payable in 1778, for which plaintiff paid him £3100 in continental currency, as appeared by Barnet’s receipt for tlie money.

THIS was an action of debt for tbe penalty of certain articles of agreement, in which the plaintiff covenanted with the defendant to convey to him a plantation, free and clear of all encumbrances, in consideration of _¡£700; of this sum _£680, was to be paid to one Ludlum,, in discharge of a mortgage, as was said, and the residue to the plaintiff, on or before April 1791. The deed was to be made before the Isi May 1790.

<p>Certiorari to Justice Mulford.</p> <p>The summons was dated the 8th, returnable on the 21st of May. The objection was, that more than twelve days intervened, contrary to the express words of the act of assembly.</p>

The action was brought by Stout upon a contract with McG-iffin. McG-iffi.i pleaded, before the justice, that Stout was under age when the contract was made, and requested the suit to he dismissed. Stout’s father, however, swore that he permitted his son to buy and sell, upon which the justice proceeded with the action.

<p>THE defendants being in possession of the premises, the plaintiff had obtained rules for staying of waste pending the actions,</p> <p>on the ground, that the plaintiffs had not proceeded to trial in the causes.</p>

' Certiorari to Justice-. •The reason assigned for reversing the judgment in this case was, that the action was case, and the judgment ran in these words: “ I give judgment for £ — , debt, and £ — , costs;” whereas, the judgment should have been for damages.

<p>THIS was a rule to show cause, why an exoneretnr should not be entered on the bail piece and all further proceedings against the bail stayed, upon the ground that the principal was dead.</p> <p>The answer to this was, that Davis had become fixed, by a return of Non est inventus on the Ca. sa. in May Term, 1791.</p> <p>Against this it was proved that the Ca. sa. was delivered to the Sheriff during the term, not before the first day of it.</p> <p>at least 4 days before the return, in order to affect the bail, he cited Highmore on bail. 81,82. 2 Salk. 699. also, Ballv. manucaptors of Russel, (a) and to show that rules of practice ought to be adhered to, cited Hunt v. Cox. (b)</p> <p>and return in point of form were unexceptionable; that the rule of its lying 4 days previous to its return, in the sheriffs hands, was not a rule of law, or a general principle, but a mere regulation of practice, adopted in, and confined to Westminster Hall, and never used here, our sheriffs keep no offices, it is so far as respects the bail, a formal thing to procure the return of non est inventus.</p>

THIS cause was tried at bar in November term 1790, at which time the points here again noticed, were debated on evidence, the defendant having demurred to the evidence. The demurrer was argued by Read and Stockton for the defendant, and Leake for the plaintiff,

It appeared that Moore, the plaintiff below, produced to the jury a paper account, containing charges for lying in, &c., of a child, alleged to have been begotten by Dare, to the amount of £15, which was offered in evidence to the jury, and was permitted to go to them, without any proof of the items.

<p>A took possession of an island in the river Delaware, built a small house upon it, and occasionally, during twenty years, repaired to it for the purpose of study, but some years before his death removed the house away from the island, having made no other improvement. Ten years after, B took possession, fenced and improved the property, and he, together with those claiming under him, held possession for more than twenty years. The possession of B is good against the title of A.</p>

<p>THIS was an action on the case brought to recover damages sustained in consequence of the defendants having defrauded the plaintiff of two good and true publick securities, and imnosinff on him in their stead two false and forged certificates, i- <-> <-></p> <p>On the tria!, which was at bar, the counsel for the plaintiff called upon Abraham Ogden Esq. the District attorney of the United States to prove that Freeman, being apprehended and in custody on a charge of felony, for counterfeiting the securities, on which this action was brought, made certain voluntary confessions on the subject, which were reduced to writing in the presence of one of the Judges of the Supreme Court, and Mr. Ogden.</p> <p>The counsel for the defendants took two exceptions to the testimony offered.</p> <p>1st Because the confessions alluded to, were made by Freeman under a promise of pardon, offered him by the District Attorney, and therefore ought not to be divulged.</p> <p>2d Because as die wrhole confession made, was committed to writing at the time, the writing itself was the only competent evidence of its own contents, and its place could not be supplied by evidence of a secondary character.</p> <p>The counsel for the plaintiff professed their readiness to bring forward the written and original confession, and submit its contents to the jury; — but</p>

IN tins case Stille had obtained a judgment in the year 1784 against the defendant for £ 900, and had sued out a/, fa-thereon. Under this execution the sheriff seized the lands and goods of defendant, and returned that he had levied upon property of the value of £5.

Same against Same. LEAKE moved to discontinue the writs of error in these cases, without filing the writs or proceedings.

<p>A. party is no* allowed, in any manner, to prepossess them inu of a juryman with regard to his cause» Speaking in the presence of one of the jurors of the merits of a cause tohelriedy is a sufficient in» terference by a party, to vitiate a verdict in his favour.</p> <p>If such interference appear to be criminal, the verdict will be set aside with costs; if the re-suit of inadvertence or ignorance without costs. — Affidavit of party inculpated in an attempt to bias the jury inadmissible to excuse himself*}</p>

This was an action of debt, for the penalty of certain articles of agreement, in which the plaintiff covenanted with the defendant to convey to him a plantation, free and clear of all encumbrances, in consideration of £700. Of this sum, £680 was to be paid to one Ludlum, in discharge of a mortgage, as was said, and the residue to the plaintiff, on or before April, 1791. The deed was to be made before the 1st May, 1790. The action was tried at bar.

<p>Iti Dower, when the jury do not find that the husband died seised, no damages or costs can be recovered. Whether in an action for dower when the jury assess damages, this shall be held to include the mesne profits Quere*</p> <p>Note — This cause was removed by a writ of error beiore the high court of errors and appeals, who affirmed the judgment of the supreme court.</p> <p>Note. See Delvcr v. Hunter. Bunb. 57.</p>

To this return a considerable number of exceptions were taken, but as the decision of the court was confined to one, it would be immaterial to state the others.

<p>1. Where the plaintiff has been guilty of negligence in not bringing on the trial, the court will discharge the rules to slay waste.</p> <p>2. The court ordered a deed under which plaintiff claimed, and which was alleged to be a forgery, to be left in the hands of the Chief Justice for the inspection of the defendant. Quere.</p>

This was a rule to show cause why an exoneretur should not be entered on the bail piece, and all further proceedings against the bail stayed, upon the ground that the principal was dead. The answer to this was, that Davis had become fixed, by a return of non est inventus on the oa. sa. in May Term, 1791. Against this it was proved that the ea. sa. was delivered to-the sheriff during the term, not before the first day of it.

THIS was a second trial at bar, upon a second ejectment. The case, so far as it is material to state the circumstances, was as follows. The premises in question were vested in fee in one William Hutchinson, who in the year 1763 became obligated to the king as a security in a bond given by one Brooks conditioned for his faithful performance of the office of sheriiF. Brooks in the life time of Hutchinson committed a. breach of this obligation by which the bond became forfeited.

<p>This cause was tried at bar in November Term, 1790, at which time the points here again noticed were debated on evidence, the defendant having demurred to the evidence. The demurrer was argued by Read and Stockton for the defendant, and Leake for the plaintiff.</p>

<p>This was an action ou the case, brought to recover damages sustained in consequence of the defendants having defrauded the plaintiff of two good and true public securities, and imposing on him, in their stead, two false and forged certificates.</p> <p>Plea, not guilty.</p> <p>[114] On the trial, which was at bar, the counsel for the plaintiff called upon Abraham Ogden, Esq., the district attorney of the United States, to prove that Freeman, being apprehended and in custody on a charge of felony, for counterfeiting the securities on which this action was brought, made certain voluntary confessions on the subject, which were reduced to writing, in the presence of one of the judges of the Supreme Court and Mr. Ogdon.</p> <p>The counsel for the defendants took two exceptions to the testimony offered :</p> <p>1st. Because the confessions alluded to were made by Freeman under a promise of pardon offered him by the district attorney, and, therefore, ought not to be divulged.</p> <p>2d. Because, as the whole confession made was committed to writing at the time, the writing itself was the only competent evidence of its own contents, and its place could not be supplied by evidence of a secondary character.</p> <p>The counsel for the plaintiff professed their readiness to bring forward the written and original confession, and submit its contents to the jury; but—</p>

THIS was a rule to show cause why Allen the sheriff oi Morris should not be amerced.

<p>On a ad. fa. ife revive a judgment for 9,001. and a plea of nn! tiel record) a judgment on an award for Ml. debt due mi a bond the penalty of which ■was 9001. is sufficient to sustain plaintiff’s isstie»</p>

GILES for the plaintiffs in certiorari who had been defendants below, took an exception on the record, — that it appeared the action was brought and judgment against them below in their Sirnames alone, as Seely and Marselis. He contended in support of the objection that law and usage were both violated by such a procedure. Every man is known and must be impleaded by his Christian name, or name of baptism.

<p>In this case Stille had obtained a judgment, in the year 1784, against the defendant for ¿£900, and had sued out a ji. fa. thereon.</p> <p>Under this execution the sheriff seized the lands and goods of defendant, and returned that he had levied upon property of the value of £5. The defendant, under the act of 1786, had made a transfer of land in satisfaction of the execution, which, however, the plaintiff had always refused to accept, on the ground that it had been irregularly made, and was, therefore, void. This scire facias was sued out in 1790, to revive the judgment, that another execution might be taken out.</p> <p>The defendant to this scire facias pleaded, first, payment; second, the former execution, levy, and transfer. At the trial before Mr. Justice Smith, the defendant relied upon the transfer as a bar to further execution, and as a discharge of the debt. His Honor, however, considering it altogether void, overruled it, and a verdict was found for the plaintiff.</p> <p>This was a motion to arrest the judgment, and in support of it, Stockton and Frelinghwysen took two exceptions upon the record.</p> <p>[119] 1st. That it appeared and was admitted of record, that at the time of bringing the scire facias, there had already been an execution and a seizure of all the property that belonged to the defendant, which should be deemed a sufficient discharge of the debt, at least until the sheriff had returned the amount of proceeds arising from the sale, Clerk v. Withers, 1 Salk. 322, pl. 10; Mountney v. Andrews, Cro. Eliz. 237. (a)</p> <p>They contended that the object of reviving a judgment by scire facias, is to warrant an execution; but here that end was already obtained. There has been an execution issued, the very thing which plaintiff is presumed to have in view, and it is vexatious to proceed to a new judgment and execution. The hardship of the case upon the defendant, and the harassing intentions of the plaintiff are .unequivocally manifested by the fact which appears on the record, that all the property of the defendant had been already levied upon.</p> <p>It was further contended, that ajd. fa. and levy under it amounted to a satisfaction of the original judgment. The value returned by the sheriff is known to be no criterion, for it is customary to return, as in the present case, an inconsiderable sum to prevent themselves from being responsible for a larger amount. Certainly, however, as all the property belonging to the defendant has been seized, it must be presumed to amount to a full satisfaction of the judgment, until the sheriff proceeds to sell, and has ascertained the deficiency. It appearing, then, by the record, that the plaintiff had execution at the time of suing out this scire facias, the court must adjudge upon that fact, without reference to the subsequent finding of the jury, which is not allowed to countervail the record. Hobart 56.</p> <p>There is not a single case to be met with in the books, where a scire facias has issued to revive a judgment, upon which there was at the time an execution in full existence, under which the property of the defendant was at that very period held. The writ will lie, only where there is a judgment to be revived that has suffered to sleep for a year and a day, and upon which no execution has issued ; and where [120] an execution has indeed issued, which has been spent by a sale of property, the proceeds of which have proved insufficient to discharge the amount of the judgment. In this latter case, also, the writ must be especially pro residuo, and this was the doctrine laid down in all the books and precedents upon the subject. The Statute of Westminster, (13 Ed. I., st. 1, cap. 45,) which is the foundation of this writ, allows this mode of proceeding only where an execution had not been sued out within the year; and the commentary of Lord Coke, (2 Inst. 471-2,) regards it in this light only. Reason and common sense are equally opposed to the course that has been pursued by the plaintiff, for, by the same principle, he may proceed in infinitum, if it be not permitted the defendant to plead the first execution in bar. 1 Richardson’s K. B. 207, 287; 2 Crompt. 95; Bohun 117, 263, establish the doctrine that the only object of the scire facias is to warrant an execution.</p> <p>To the objection made at the trial, that the sheriff had acted irregularly, by making a transfer, this, it is contended, is entirely unconnected with the question now before the court. It should be made the subject of a distinct application to the discretionary and general controlling powers vested in the court. It is a matter exclusively and entirely resting between the plaintiff and the sheriff, and cannot in any degree affect the validity of the first seizure. The plaintiff himself insists on the record, that this transfer was void ; and the court and jury in the trial have decided the same point; so that upon the grounds which they themselves have alleged, it ought not to be considered as affecting, one way or another, the point now before the court. Our case stands entirely independent of this transfer, and it is immaterial to us upon the present motion, whether the court should coincide in opinion with the judge at Nisi Prius, that the transfer is absolutely void, and therefore not to be regarded, or valid, and therefore a complete bar to the plaintiff’s claim.</p> <p>The second objection upon the record is, that this was a scire facias to revive the entire judgment for the whole sum, whereas, it appears on the record, that £5 was levied on the first fi. fa. The jury in their verdict have found [121] against the express admission of the parties on record ; it is a general verdict for the whole sum, which is erroneous. Vigers v. Aldrich, 4 Burr. 2482. (a)</p> <p>It is perfectly immaterial whether the error appears as there, on demurrer, or, as in this case, in arrest of judgment. Errors apparent on the record, which show a complete bar to the plaintiff’s claim, or that he has pursued a wrong remedy, may be taken advantage of at this stage of the cause. The writ here is clearly erroneous; it should have been an alias fi.fa. for the residue, or a sci. fa. for the residue, and not for the whole amount of the original judgment.</p>

BEATTT and his wife had executed articles of agreement to separate. In pursuance of their agreement Beatty, and the other defendants as his sureties, entered into a bond to Green as trustee for the wife, conditioned to perform the articles, one part of which was to pay an annuity to the wife.

ONE of these actions was in covenant, the other in debt. In April term 1791, they had been referred to the decision of five arbitrators, whose award or the award of a majority should be final. On the 2bth of April 1791, they made awards unanimously in favour of the defendants. took a rule in each case upon the' defendants to show cause why the awards should not be set aside.

<p>A party may discontinue a writ of error before filing tbe. record, in case of mistake. _</p>

<p>1. A party is not allowed, in any manner, to prepossess the mind of a juryman with regard to his cause.</p> <p>2. Speaking in the presence of one of the jurors of the merits of a cause to be tried, is a sufficient interference by a party to vitiate a verdict in his favor.</p> <p>3. If such interference appear to be criminal, the verdict will be set aside, with costs; if the result of inadvertence or ignorance, without costs.</p> <p>4. Affidavit of party inculpated in an attempt to bias the jury, inadmissible to excuse himself.</p>

This was an action for dower, unde nihil habet, to which the defendant pleaded ne unques sei sie, &c., and at the trial at Gloucester Assizes, in 1791, the jury find— 1st. That John Fisher, the husband of demandant, was seized during coverture of such an estate, &c. 2d. That the yearly value, beyond reprises, is ¿622. 3d. A demand of dower on the 11th of June, 1788, and the jury assess the damages beyond the value and costs at 3 2d., and costs 6d. The question arising on the…

<p>1. The act of assembly directing the mode of altering roads, requiring the presence of “six of the surveyors (of the highways) of the next county, chosen for the townships nearest to the place where the alteration is to be made,” is to be construed strictly, and when one of them is incapacitated by sickness from attending, his place cannot be supplied by substituting another surveyor from another township.</p> <p>2. Though a quorum sign the return, duly qualified, yet it is void if they have acted with an unqualified person.</p>

THE plaintiff in this case had obtained a verdict at Nisi Prius in 1784, and the postea was returned to September 1784.

<p>A devise to disinherit the heir must appear to he a good devise, and the heir is entitled to hold the lands until claimed by a person to ■whom they were legally devised.</p>

This was a second trial at bar, upon a second ejectment. Tlie case, so far as it is material to state the circumstances, was as follows : The premises in question were vested in fee in one William Hutchinson, who, in the year 1763, became obligated to the king as a security in a bond given by one Brooks, conditioned for his faithful performance of the office of sheriff.

<p>THIS case was brought before the court by Certiorari to the Orphan’s Court for the county of Burlington* The ,. r i r i i t i lucts so iar as they are necessary tor the understanding the decision of the court, were as follows.</p> <p>the elder made his testament in 1773, and appointed his son Thomas Woodwardjunr. and Foilman senior his executors, and died in the course of that year. The executors proved the will, and entered upon the administration of the estate, and subsequently Woodward junr. one of the executors died in 1782, and Tollman the other in 1784.</p> <p>In 1786. Wood ancl his wife, the present plaintiffs, claiming an interest under the will, cited the executors of Woodtvard junior and Tollman to render ajust inventory and account of the estate of Thomas Woodward the original testator. A hearing was had before the Orphan’s Court on the inventory and account exhibited, when the court decreed a bond of ,£500 to have been due from Woodward junior, to his father and ordered that amount to be added to the inventory.</p> <p>They further made an oi’der upon the executors of the fix*st executors, to render a general account of the assets which, had come to the hands of their testators respectively, which statement might be either joint or several.</p> <p>In November Í786. they stated several accounts of the assets which had come to the hands of their respective testators, and these were referred to auditors to restate and report. The auditors in their report, charge as part of the assets which came to the hands of the fix'st executors-—</p> <p>1st The ,£500 decreed by the court to be added to the inventory, axxd ixot accounted for by Thomas Woodward junior, the executox*.</p> <p>%d They add to the amount of assets as set forth in the ixiventory as a chai'ge against the same Thomas Woodward junior, ,£900 which they adjudged to be due from him to his father the testator, at the time of the death of the latter, for rents; and which the said executor had omitted in his inventory.</p> <p>Exceptions wex’e filed to the report of the auditors and overruled in the Orphan’s Court, and a decree passed against the executors for those sums.</p> <p>Several points were made by the counsel for the defendants upon the argument in this court, but the four following exceptioxxs were principally relied upon against the decree of the court below.</p> <p>1st That citations would not lie against the executors of Woodwardjunior, who died in 1782; but that the px*oceedings should have been against the representatives of Tollman, who survived him, and died in 1784.</p> <p>• 2nd That the Orphan’s Court cannot hold plea of debt, or try a disputed demand between the testator and executors that in this case they had taken cognizance of a mere matter of debt on bond, and for rent in demand by the testator against his son the executor, which were disputed by the son, and not acknowledged by him to constitute assets in his hands during his life time, and also disputed by his executors before the Orphan’s Court, and alleged not to have been due.</p> <p>■id That by making his son an executor, all debts due to the testator were extinguished.</p> <p>'ith That the Orphan^ Court had no jurisdiction where none of the parties was either an orphan, or under the age of SI years.</p>

This was a rule to show cause why Allen, the sheriff of Morris, should not be amerced. It appeared that he had re» turned the fi. fa. to April Term, 1791, and instead of endorsing a particular inventory of the articles upon which he had levied, he had recited a levy upon one or two specified articles of property, and added, “ and upon all the household goods, &c., subject to prior executions, value 5s.”

2T appeared that John Thompson had sued Aaron Thompson before a justice of the peace, and obtained judgment against Mm. Aaron requested an appeal, which was refused by the justice and execution issued. Aaron prepared a bond as prescribed in cases of appeal, tendered it and had an appeal allowed. Pending the appeal in the court above, the, constable under the execution levied upon the goods of Aaron and sold them.

<p>On a demand of a debt the defendant said that he had received the money, hut that plaintiff had received and retained money belonging to him, this is a sufficient acknowledgment to take the case out of the statute of limilations.</p>

<p>On a sei.fa. to revive a judgment for £200, and a plea of nul tiel record, a judgment on an award for £24 debt due on a bond, the penalty of which Was £200, is sufficient to sustain plaintiff's issue.</p>

<p>Certiorari to Justice Peck.</p>

<p>On a rule to show cause why satisfaction should not be entered on the record, the sheriff; having been made a party, must have notice, and court will allow time after argument to give the notice.</p>

<p>It is irregular to take out execution pending a motion to show cause why execution should not issue.</p> <p>After a motion has been made to the court, the party is not permitted toabandon it by not having it entered, without notice to the other</p> <p>The 4 days allowed to file bail oh a writ of error, are to be computed from the signing of judgment.</p> <p>The statutes of Charles and James, respecting writs of error extend to New-Jersey.</p>

ON striking a jury in the vacation before the Chief Justice, it appeared that Leake, for defendant, had given notice to strike a jury before Mr. Justice Smith, at Trenton on the 20th February; Mr. Stockton for plaintiff, gave notice to strike before the Chief Justice at Burlington on the 18th of the same month. 1st Because his notice to strike it before Mr. Justice Smith being first served, attached the right of proceeding on his notice, and entitled it to the preference. 2d…

<p>After allowing judgment to go »y default, administrators cannot plead plena administravit, it is a confession of assets.</p> <p>As demurrers are taken away under ths practice act, the proper mode of proceeding in case of a bad plea is by motion to set it. aside.</p>

<p>Beatty and his wife had executed articles of agreement to separate. In pursuance of their agreement, Beatty, and the other defendants as his sureties, entered into a bond to Green, as trustee for the wife, conditioned to perform the articles, one part of which was to pay an annuity to the wife.</p> <p>This action was brought in the name of Green, on the trust bond, to recover the sum due on this annuity, and the defendants pleaded, in bar, a general release given by Green.</p>

<p>STOCKTON, for the plaintiff, had obtained a rule upon the defendant to show cause why the verdict in this case should not be set aside, on the affidavit of Jacob Albertson, one of the jurors, which stated some misconduct in the defendant previous to the trial, tending to influence said Albertson.</p> <p>He cited Rex v. Thirkell, (a) Rex v. Woodfall, (b) Vaise v. Delaval. (c)</p> <p>Per Curiam. The cases cited go to prove, what we feel no disposition to controvert, and what we have uniformly recognised, that a juror shall not be permitted to explain or contradict a verdict in which he has himself joined, or to allege any misbehaviour in the jury at the time of giving it; but this rule does not stand iri the way of his proving any fact of misbehaviour in the party, tending to pervert the purity of justice, or to influence in an improper manner the minds of the jurors. Let the affidavit be read.</p> <p>cited. Wynn v. ■'Bangor, (a) Herbert v. Shaw, (b) Snell v. Timncll (c) King v. -folliffe, (d) 5 Com. Dig. 535. title pleader s. 44. £ Ventris 173. Trials per Paisf 253,4,5, 6,7.</p> <p>1 5/. iN/J. 48. 348. 2 IFife. 306.</p>

One of (hese actions was in covenant, the other in debt. In April Term, 1791, they had been referred to the decision of five arbitrators, whose award or the award of a majority should be final. On the 25th of April, 1791, they made awards unanimously in favor of the defendants.

<p>A sheriff is bound to return a particular in-goods^has6 //a1’under a</p> <p>After having rchas seized under the sheriffcañuot deny the legality of the seizure; he is toundby the re-</p> <p>Where an irreX.A-'has'heen51 plaintíffproceeds to sue out fs executed, he1 against Ptheeed sheriff on the ’ ground of irregularity in his pro-</p> <p>A sheriff may he1?e0rutdoffter office.</p>

THIS was au action brought to recover the mesne profits of certain lands, from April 1788, till November 1791, valued at £ SO per annum. Plea not guilty. - The plaintiff offered the judgment roll inthe.ejectmcuc case by which it appeared the demise was laid April & th 1788, judgment signed November 10th 1792. The value of th© property was proved as laid in the declaration, and the possession of defendant was admitted.

<p>IN Error from the Court of Common Pleas of Essex Couu~ ty.</p> <p>This was an action of debt on a bond; the defendant pleaded payment and gave plaintiffs notice that he would prove a tender in continental bills. On the trial, he proved that between the 20th of September 1776, and the 3d of October 1779, he had made a tender in continental bills. The court charged the jury that it was not necessary to prove the bills to have been emitted prior to the 20th September 1776; to which opinion a bill of exceptions was taken, and the question before this court on the writ of error, was whether this opinion o£ the court below was correct.</p>

The plaintiff in this ease had obtained a verdict at Nisi Prins in 178-4, and the postea was returned to September, 1784. Owing to particular reasons, which it is unnecessary to detail, judgment had not been entered on the verdict, and now Wilcox, for plaintiff, took a rule on the defendant, to show cause why judgment should not be entered on the postea, as of September Term, 1784.

<p>This was a special case on an ejectment.</p> <p>The testator had devised the premises to one “ John Martin, when he returns," &c.</p> <p>The wife of Brown was the heir-at-law of the devisor, and brought this ejectment against Little, who was in possession. Little did not allege any title in himself, but defended under this devise to John Martin, in whom he contended the title rested.</p>

<p>1. The court, in a case of certiorari, cannot travel out of the record; the facts are settled, and their decision can be only on the law arising from them.</p> <p>2. The statute creating the Orphans’ Court is remedial, and is to be liberally construed.</p> <p>3: The proper course to remedy errors of fact in the proceedings of the Orphans’ Court, is by appeal to the governor; errors in law are to be corrected by certiorari to this court.</p> <p>4. By the true construction of the act creating the Orphans’ Court, its jurisdiction is not restricted to “orphans or persons under twenty-one years of age.”</p> <p>5. A citation may issue from the Orphans’ Court, as well against surviving executor as against the executor of deceased co-executor, for an account.</p> <p>6. A debt due by executor to the testator, is so far assets as to eome within the jurisdiction of the Orphans’ Court.</p> <p>7. The appointment of a debtor as executor, is not an extinguishment of the debt, as against creditors or legatees.</p> <p>8. The powers given by the statute to the Orphans’ Court are not unconstitutional.</p> <p>9. Where the judgment of an inferior court is divisible, it may be affirmed in part and reversed in part.</p>

<p>Fraud, in cku™mav 1«" onthe'i;eneraiCe 'issue, in inaction of debt, and is a good</p>

<p>la an action of aepleathatitwás sóíd bypiaint» to defendant, iegedlhe was seithe property^ whereas he had £io tiue tuerem, is bad, without an averment of ?ifsuch case^if" omitted the'plea may be amended so as to insert it. totu^was obtainneraHyl'iTa food plea.</p>

Error from the Common Pleas of Essex county. The plaintiff in error had been nou-suited in the court below, on the ground that the statute of limitations had barred his recovery of the debt in question. Jt appeared to be an action on a note, dated in 1776, by which Potter acknowledged the receipt of $40 from White, which he promised to pay on demand.

<p>Cetfforari to Justice Wade.</p> <p>It appeared that John Thompson had sued Aaron Thompson, before a justice of the peace, and obtained judgment against him. Aaron requested an appeal, which was refused by the justice, and execution issued. Aaron prepare 1 a bond, as prescribed in oases of appeal, tendered it, and had an appeal allowed. Pending the appeal in the court above, the constable, under the execution, levied upon the goods of Aaron, and sold them. The Sessions reversed the judgment, and Aaron then commenced the present action against John, for “ debt and damage ” for the wrongful sale under the first judgment. The suit was instituted before Justice Wade, who gave judgment for the plaintiff, and estimated his damages at the real value of the goods, being a larger sum than they actually produced at the sale under the execution.</p>

In this case judgment was entered on the postea against Wood, in April, 1792. A writ of error was immediately presented and allowed. The bail was excepted to, and a motion made in the same term that Wood should show cause why execution should not issue against him. [This motion was made by Mr. Leake, but never entered.] Judgment on the roll was not signed until January 21st, 1793, and on the 23d of the same month Stille took out execution.

WHEN this cause was reached, the Chief Justice expressed his doubts as to the propriety of his sitting on the trial, alleS*n§ that he was an inhabitant of the County of Burlington whose interests were involved in the suit.

<p>On striking a jury in the vacation before the Chief Justice, it appeared that Leake, for defendant, had given notice to strike a jury before Mr. Justice Smith, at Trenton, on the 20th February. Mr. Stockton, for plaintiff, gave notice to strike before the Chief Justice, at Burlington, on the 18th of the same month.</p>

<p>1. After allowing judgment to go by default, administrators cannot plead pleno adminiitramt; it is a confession of assets.</p> <p>2. As demurrers are taken away under the practice act, the proper mode of proceeding in case of a bad plea is by motion to set it aside.</p>

<p>A. tenant in tail dies leaving one son and two daughters by hia second wife, and four daughters by his first; the con enters, and dies seised without isane, held that all the sisters both of the half and the whole blood take as co-heirs.</p>

THIS was an action of debt on a judgment obtained in this Court, suggesting a devastavit. The plaintiff had obtained a judgment for £74-10. debt, and j^B-17-11. costs, and on the execution so much was levied as to reduce the debt below £50.

<p>1. A juror may be admitted to prove improper attempts by a party to influence the minds of the jury.</p> <p>2. If persons claiming under the same title with a party, in his presence, and without any interference by him, endeavor to prejudice a juror in favor of his title, a verdict for him will he set aside.</p>

<p>In this case, Frelinghuysen, for the plaintiff, had obtained a rule upon Allen, the sheriff of Morris, to show cause why he should not be amerced in the amount of debt and costs for which a judgment had been obtained against one Hoel. The ground of the application was the neglect of duty by the sheriff in not returning a particular inventory of the property levied upon, but after specifying a few articles, saying, “and on all his household goods, value, 6d.”</p>

THIS case came before the court by a writ of Error, on a bill of exceptions taken to the opinion of the court of Common Pleas of Essex County, It appeared that Franklin and Camp were both merchants; the former residing in New-York the latter in Newark, and in that capacity had dealings together. The day book being produced proved mutual dealings between them, and the balance in favour of the plaintiff in August 1774. for ^59-4-3.

IN this case there was a demurrer to the evidence offered by the plaintiff to prove his title at the Monmouth Circuit in July 1792.

<p>1. It is no objection to reading an agreement in evidence, that it is conditional ; this objection applies to the operation of the evidence when admitted.</p> <p>2. An accord must be pleaded, and cannot be given in evidence upon the general issue.</p> <p>3. An agreement that, under certain conditions, one shall have the land, confers no title until such conditions are performed.</p>

<p>~A n attachment is dissolved by the entering of bail to the action» Whether an attachment can issue for unliquidated damages* Queve?</p>

<p>A party cannot set up a title in another person contrary to a recital in his own deed.</p>

<p>It is not neeessary to enter regular continuances óf a cause before a justice, if every thing be done fairly and with notice.</p> <p>Service of notice of trial may be proved by the plaintiff.</p>

<p>After exe.' cation issues tlfe court will, open a judgment and let in a real defence.</p> <p>Regular judgments by default set aside in all cases, on affidavit of defence; if trial not lost.</p>

In error from the Court of Common Pleas of Essex county. This was an action of debt on a bond. The defendant pleaded payment, and gave plaintiffs notice that he would prove a tender in continental bills. On the trial he proved. that between the 20th'of September, 1776, and the 3d of October, 1779, he had made a tender in continental bills.

IN debt on bond: — Leake moved to change the venue and the following circumstances appeared to the court. The plaintiff Meldrum had entered up a judgment in August 1794. iu the Inferior Court of Common pleas of Hunter-don, against Boss who died before execution executed.

This was error from the Court of Common Pleas of Somerset county. The circumstances attending it are so fully stated in the opinion of the Chief Justice as to preclude the necessity of detailing them here.

THIS was an action of debt brought to recover a legacy from the executors: the executors pleaded want of assets, and by consent it was referred to auditors to state the assets, who reported them to amount to above £ñOQ. There should be a rule to show canse: the orphans court have settled the accounts, and stated a much less sum, and their settlement is conclusive on the: auditors.

<p>When a cause & Teu^fíorpu?, the plaintiff in order may rafe defeS.’ baH in^o'days or sitting the unci fit same’iimetakes* rule t0 plesd"</p>

<p>The will of the testator, making special appropriations of the several parts of his property, is a law to the executors, from which they ought not to swerve, unless authorised by some proper tribunal.</p> <p>Any deviation from such authority is illegal and at their own risk.</p>

This was an action of debt on a bond dated March 1st, 1787, in the penalty of £230, conditioned to pay £115 on a certain day, with interest. The defendant pleaded : 1st. Non est factum. 2d. A declaration of Mason that he was seized in fee of certain lands in Virginia, which he sold to the defendant, when in fact he had no title in them, and that the bond in question was given for these lands. 3d. Per frauden generally.

JOHN BRAThy his will dated January 27th 4764 ordered his executors to sell a certain tract of land, calling it the land he intended to give to his daughter Susannah, and directed them to divide the money received from such sale, among the children of his daughter Susannah.

<p>CERTIORARI to the Sessions of Middlesex County, to remove a judgment confirming an order for the removal of Patience Longworthy a pauper, from Amboy to Woodbridge.</p> <p>The case was, that the pauper more than 60 years since, when she was quite young came into the township of Wood-bridge, as one of the family of Richard Carman who removed to that place from Long Island-. — she lived several years in the family of Carman, and it did not appear that she had subsequently acquired a settlement in any other place.</p>

THIS was a case stated for the opinion of the court; — the circumstances of it are detailed in the opinion of the court delivered by—

<p>Certiorari to Justice Breese,</p> <p>THE court having inspected the return, it appeared that the action had been brought by Drummond against Harvey as executor in his own wrong of Silas Wooley deceased, to recover back a sum of money which the plaintiff had paid to Wooley for a trespass in cutting timber on land supposed to have belonged to Wooley, Drummond to maintain his action, alleged that it had since been discovered that the land heloiw;;d to another person; and contended that the money having been paid under a mistake ought, to be refunded.</p>

The reason assigned for quashing the inquisition was, that the Sheriff being about to summon one Parke, as a juror on the inquiry, Coxe the prosecutor, told the sheriff he was an improper person to be returned on the jury, as he had been summoned, or brought as a witness for Johnson, upon which the sheriff did not put him on the pannel.

<p>The inhabitants of a township are good witnesses in a cause in which the township is interested.</p>

IN ejectment for lands in Gloucester county, on a triql at bar.

<p>When this cause was reached, the Chief Justice expressed his doubts as to the propriety of his sitting on the trial, alleging that he was an inhabitant of the county of Burlington, whose interests were involved in the suit. The other two judges declared their opinion that the interest was too remote and indefinite to constitute an objection, and his Honor the Chief Justice accordingly presided.</p> <p>On the trial one Thomas Gardiner, an inhabitant of Burlington, was offered as a witness to prove that Fennimore acted as collector during the period for which he had been chosen ; he was objected to by Leake, for the defendant, who cited 1 Morg. Ess. 279; Hesketh v. Braddock, 3 Burr. 1847, 1856.</p> <p>The court overruled the objection, declaring the interest too remote ánd uncertain to be allowed to operate as an objection to the evidence of every one who would be likely to possess the necessary information upon an essential part of the case, (a)</p> <p>The plaintiff then offered to prove that on the 27th March, 1782, the defendant received upwards of £17,000 in certificates of Joseph Lambe, colleclor of Hanover, which he had acknowledged to have received, and said had been stolen from him; that Lambe on a suit against him, had been credited with that sum on the testimony of Fennimore, who then denied that he had not given a receipt for the amount.</p>

<p>A tenant in tail dies, leaving one son and two daughters by his second wife, and four daughters by his first; the son enters, and dies seized without issue. Held — that all the sisters, both of the half and the whole blood, take as co-heirs.</p>

This was an action of debt on a judgment obtained in this court, suggesting a devastavit. The plaintiff had obtained a judgment for ¿674 10s. debt, and ¿65 17s. lid. costs, and on the execution so much was levied as to reduce the debt below ¿650. Afterwards, this suit was commenced on the judgment, and at the circuit in June, 1793, defendant confessed judgment for ¿645 6s. 2d., and now the question was, whether the plaintiff was entitled to costs.

ON a rule to show cause why the return of Crips, late sheriff of Salem, on the Venditioni Exponas issued and returned in the above cause should not be set aside and vacated, — and why the proceedings had on the 1st of May 1786 (under the act of the legislature passed the 2Sd of March, 1786, entitled an aet to direct tbe mode of proceedings on writs oí fi. fa, and for transferring of lands and chattels ior the payment of deists,) fio*- the satisfying the fi. fa. in this case,…

<p>IN ERROR from the Common Pleas of Middlesex. In , , , , , , n debt on bond, and plea oi payment.</p> <p>On the trial of this cause in the court below, the plaintiff pj'oduced a letter from one of the defendants acknowledging the debt, and called on Joseph Decamp to prove the hand writing. The counsel for the defendant objected to the introduction of his testimony, alleging that as he was bail for one of the defendants, he was an incompetent witness. The court supported the objection and overruled the testimony,</p> <p>cited Impey C, B. 183. Hawkins v. Perkins (a) Fotheringham v. Greenwood (b) 2 Hawk. 610. b. 2. c. 46. sec. 24. (c)</p>

This case came before the court by a writ of error, on a bill of exceptions taken to the opinion of the Court of Common Pleas of Essex county. It appeared that Franklin and Camp were both merchants, the former residing in New York, the latter in Newark, and, in that capacity, had dealings together.

<p>Certiorari to Justice Lloyd.</p> <p>KINSEY C. J. We have inspected the return of the Certiorari in this case, and the reasous that have been filed for reversing the judgment.</p>

THE papers submitted to the court in this case were the Justice’s return, the reasons filed, and a state of the case endorsed on the return.

In this case there was a demurrer to the evidence offered by the plaintiff to prove his title at the Monmouth Circuit, in July, 1792. The ease was this : April 1st, 1771. Daniel Littleton Ketcham, in consideration of ¿£100, conveys the premises in question to Micajah Ketcham. July 10th, 1778. Micajah Ketcham and wife, in consideration of £80, convey the same lands to Abraham Gifford, in fee. July 23d, 1784.

<p>Certiorari to Justice Harris,</p>

<p>A settlement df accounts by parties is not so conclusive between them, as to preclude all inquiry into previous accounts, Still where the accounts presented at the settlement, have bee*ti acquiesced in -without any objection, for a great length of time, a judge is authorised to direct the jury not to go into at* investigation of the prior accounts.</p>

This was a case of attachment. The writ had originally issued from the Common Pleas of Morris county, in an action of covenant, and the proceedings were removed to this court by certiorari. The first and second default were recorded, and auditors had been appointed. It appeared that Simms, while an inhabitant of Morris county, had taken a lease in July, 1774, from Hannah Dickerson, the plaintiff, and had himself covenanted, among other things, to clear some meadow.

<p>A parent’s authority to dispose of the service of his child ceases when the child arrives at the age of 21.</p>

It appeared from the return that they had been instituted by Inskeep against Bispham in trespass for fishing in his fish-cry:' — The defendant had pleaded liberum tenementum, notwithstanding which the justice had proceeded in the causes, and had given judgment for the plaintiff. took two exceptions to the judgment. 1st Because the Justice had no jurisdiction. 2c/ Because the plaintiff stated his demands in trespass, when it appeared that he had leased the premises, and the…

<p>1. It is not necessary to enter regular continuances of a cause before a justice, if everything be done fairly and with notice.</p> <p>2. Service of notice of trial may be proved by the plaintiff.</p>

THE plaintiff in this action had been nonsuited on the grounds detailed in p. 7. of this volume; and the nonsuit having- been set aside by the court, the cause came on again for •irial. ’it appeared by articles of agreement under seal dated April 1773. that Johnson in behalf of Barbarie and Skinner had agreed “ to sell to Applegate a tract of land; in consideration of which, Applegate obliges himself, his heirs 8cc. to pay to A Johnson for the use of the parties of the first…

<p>This was an ejectment brought in May Term, 1792, with notice to appear September Term ensuing. In November, 1792, judgment by default was entered against the casual ejector, and a habere facias possessionem issued, returnable to May, 1793. On the 10th of April, 1793, Leake wrote to Read, plaintiff’s attorney, informing him he was concerned for Kaighn, under whom Evaul was tenant; and on the 17th April, to the sheriff, directing him not to execute the writ till after May Term, which letter was received two weeks before the writ was executed and possession delivered. In May Term, 1793, a rule was entered to show cause why the judgment against the casual ejector should not be set aside, giving plaintiff liberty to go to trial at September Circuit. After stating the foregoing facts in support of the motion, Leake read an affidavit of Kaighn, the landlord, stating that he employed Mr. Leake to defend the ejectment, in August, 1792 ; that [202] Evaul had been his tenant for twelve years; that he had been in possession ever since 1770, under a title, and has, he thinks, a just defence. A letter was also produced from Lee, lessor of the plaintiff, to Kaighn, dated August, 1792,-mentioning the service of the declaration on Evaul, and that if Kaighn had any deed or survey, and would come forward and show' it, he would put him to no further trouble.</p> <p>He cited a number of authorities to show that ejectments were moulded to the purposes of obtaining justice, (Aslin v. Parkin, 2 Burr. 665, 7; Fairclaim, ex dem. Fowler, v. Sham-title, 3 Burr. 1290, 2,) and that courts exei’cise their discretionary powers to effectuate the ends of justice. Fox v. Glass, 2 Str. 823; Salk. 117.</p> <p>2d. The judgment and execution were irregular. On a judgment by default against casual ejector, tenant cannot be dispossessed without leave of the court. 2 Sellon 100.</p>

THIS was an action brought by Journey against Hunt which was tried at Essex Nisi Prius in September 1793, before . omith and Qhetwood, Justices, The plaintiff’s declaration contained 5 counts: — 1st On a special agreement which stated all the circumstances of his , , . . „ case; that an agreement was macie m 1790 by which plaintiff undertook to pay defendant £'200, when defendant should procure and deliver him a good deed or patent for 8000 acres of land, lying on the middle…

In debt on bond. Leake moved to change the venue, and the following circumstances appeared to the court. The plaintiff, Meldrum, had entered up a judgment in August, 1791, in the Inferior Court of Common Pleas of Hunterdon, against Boss, who died before execution executed.

This was a motion to set aside a scire facias on a judgment. Judgment was obtained August 14th, 1741. May, 1791, a scire facias issued, returnable in this term, againeS the grantees in fee, not naming them. The judgment was thirty-four years antecedent to the grant, and fifty years before the first scire facias. It was contended by Leake, for the motion, that the proceedings were irregular and ought to be quashed.

This was an action of debt, brought to recover a legacy from the executors ; the executors pleaded want of assets, and by consent it was referred to auditors to state the assets, who reported them to amount to above £300.

<p>When a cause is removed by habeas corpus, the plaintiff in order to prevent delay, may rule defendant to putin bail in twenty days, or sitting the court, and at the same time take a rule to plead.</p>

THIS was an action of dower: one of the pleas stated that the former husband and the wife, now the demandant, by deed dated the 20th of May 1784, conveyed the premises in fee to Halstead and Townley. To this plea the plaintiff demurred.

THIS was an action brought to recover of Fennimore certain monies which had been received by him as county collector, anc^ on a at bar, the following points were ruled by the cOUl't. The plaintiffs offered in evidence. 1st A receipt of three bonds from one Davis in the hand-writing of Fennimore as collector. 2d That he had received the bonds in payment of execution at his suit, as collector against one Garwood. ; : That defendant had admitted this item against him on a…

This was an action of debt, brought to recover the plaintiff’s proportion of the residuary estate of the testator, his father. The circumstances of the case are fully stated in the opinion of the Chief Justice.

THIS was a Certiorari to remove the proceedings- of the B r ° Election, had for fixing on the place where the Court-1’Omsk f°r the county of Middlesex should be erected.

John Bray, by his will, dated January 27th, 1764, ordered his executors to sell a certain tract of land, calling it the land he intended to give his daughter Susannah, and directed them to divide the money received from such sale among the children of his daughter Susanuah.

The case was, that the pauper, more than sixty years since, when she was quite young, came into the township of Wood-bridge, as one of the family of Richard Carman, who removed to that place from Long Island. She lived several years in the family of Carman, and it did not appear that she had subsequently acquired a settlement in any other place.

This was a case stated for the opinion of the court; the circumstances of it are detailed in the opinion of the court, delivered by

<p>Certiorari to Justice Breese.</p> <p>The court having inspected the return, it appeared that the action had been brought by Drummond against Harvey, as executor, in his own wrong, of Silas Wooley, deceased, to recover back a sum of money which the plaintiff had paid to Wooley for a trespass in cutting timber on land supposed to have belonged to Wooley. Drummond, to maintain his action, alleged that it had since been discovered that the land belonged to another person, and contended that the money, having been paid under a mistake, ought to be refunded.</p>

<p>Certiorari to Justice Combs.</p> <p>The reasons assigned for reversing the judgment in this case were—</p> <p>1st. That Elizabeth Nixon, the plaintiff below, was married before and at the time of commencing the action, to one Robert Nixon; and it was argued, that as this would have been a fatal objection to the judgment had it been against the defendant, the benefit of the exeepfcioti should be reciprocal.</p> <p>2d. That the sum found against her by the jury had been allowed on a former settlement.</p>

The reason assigned for quashing the inquisition was, that the sheriff being about to summon one Parke as a juror on the inquiry, Coxe, the prosecutor, told the sheriff he was an improper person to be returned on the jury, as he had been summoned or brought as a witness for Johnson, upon which the sheriff did not put him on the panel.

In ejectment for lands in Gloucester county, on a trial at bar. Iu this ease it was resolved, that if a juryman, challenged on account of his interest in the case, is examined on his voir dire, and does not disclose any interest, the party challenging is not precluded, as in the case of a witness, from establishing the fact of interest by other testimony.

THIS was a rule to show cause why a verdict which had been obtained at the Hunterdon Nisi Prius should not be set aside, and a judgment of nonsuit entered.

THESE were two cases that came before the court on the return of a Certiorari to Justice Dickenson, before whom the plaintiff below had obtained judgment by default, for the amount of his demand. . , , , Y hv objection taken was that the bills given m evidence were; sealed bills, and therefore the actions were improperly brought in the name of the assignee.

CERTIORA.RI removing an inquisition of forcible entry and detainer. ls£ That no notice was given by Vantine .(the prosecutor) to Covenhoven of the taking of the inquisition. As to this it appeared that there were two intruders Anderson and Covenhoven. A notice was served by Vantine on Anderson!s wife, and a copy left; and the Justice served a similar notice on Covenlioven. The notices were directed to both defendants, both appeared and made defence.

In error from the Common Pleas of Middlesex. In debt on bond and plea of payment. On the trial of this cause in the court below, the plaintiff produced a letter from one of the defendants, acknowledging the debt, and called on Joseph Decamp to prove the handwriting. The counsel for the defendant objected to the introduction of his testimony, alleging that, as he was bail for one of the defendants, he was an incompetent witness.

On a rule to show cause why the return of Crips, late sheriff of Salem, on the venditioni exponas issued and returned in the above cause should not be set aside and vacated, and why the proceedings had on the 1st of May, 1786, (under the act of the legislature, passed the 23d of March, 1786, entitled [225] an act to direct the mode of proceedings on writs of fi. fa., and for transferring of lands and chattels for the payment of debts,) for the satisfying the fi. fa. in this…

THIS was an action of debt. moved to amend tbe declaration by striking out Bridgetown and inserting Salem, his object, being to change the venue. Stroud v. Tilley (a) Rivet v, Cholmondeley. (b) Contended that the plaintiff’s right was gone, and the venue could not be changed after issue joined.,, 1 Crompt, 113,&.

THIS was an action of indebitatus assumpsit, which was tried at Essex Nisi Prius in September 1793.

A Certiorari had been issued to the Common Pleas of the County oí Gloucester to remove an order or said court affirming the return of a road laid out by surveyors.

<p>1. The court will not, on affidavits, enter into tlie examination of facts settled by a jury.</p> <p>2. Tlie objection that a paper offered in testimony bears no date, goes rather to its effect than its competency.</p> <p>3. Proof that a witness is subject to convulsive fits, is not evidence from which the court can infer that his mind was not sufficiently sure to qualify him to be a witness.</p>

<p>The jury are the proper judges of the credibility and effect of testimony, and when the question has been fairly before them, the court will not interfere with their verdict.</p>

IN this case it appeared that about twenty years previous, near the commencement of the revolution, Read obtained judgment in the Supreme Court against Stevens, in an action, of debt, for a large sum of money, and issued a f.fa. directed to Barns, the then sheriff of the county of Hunterdon; who, by virtue of the writ, levied upon a plantation belonging to Stevens, and returned the seizure upon the ji.fa.

The papers submitted to the court in this ease were the justice’s return, the reasons filed, and a state of the case endorsed on the return.

<p>Certiorari to Justice Griffith.</p>

^ ejectment for lands in Bergen county, On the case stated, it appeared, that the lessor of the plain» tiff claimed under the deed of the Commissioners of forfeit- ed estates, all the right and title of Weirt Banta to the premises in question. joined the armies of the King of Great Britain after the 4th of October 1776 and before the 10th January 1777: that he died about the 25th of December 1776, being then about 19 years of age.

There were several actions between these parties, all of which had been removed by certioraris. It appeared, from the return, that they had been instituted by Inskeep against Bispham, in trespass for fishing in his fishery. The defendant had pleaded liberum tenementum, notwithstanding which, the justice had proceeded in the causes, and had given judgment for the plaintiff.

The plaintiff in this action had been nonsuited on the grounds, detailed in p. 7 of this volume; and the nonsuit having been set aside by the court, the cause came on again for trial.

IN ejectment for lands in Somerset. The following agreement, containing a case stated for the opinion of the court, was entered into between the parties. 1' s> is agreed that a verdict be taken in this action for the 44 . ;rff at the court of Nisi Prius, to be hidden at Bridge- “ ».i/' for the county of Somerset, on the &c. — subject to 44 the opinion of the court on the following case, viz. 44 On the first day oí February one thousand seven hundred 84 and sixty Daniel…

This was an action brought by Journey against Hunt, which was tried at Essex Nisi Prius, in September, 1793, before Smith and Chetwood, justices.

THIS was an action on the case against defendant as sheriff. for the escape of one Freeman.

This was an action brought to recover of Fennimore certain moneys which had been received by him as county collector, and on a trial at bar the following points were ruled by the court: The plaintiffs offered in evidence: 1st. A receipt of three bonds from one Davis, in the handwriting of Fennimore, as [243] collector. 2d. That he had received the bonds iu payment of an execution at Jus suit, as collector against one Gar-wood. 3d. That defendant had admitted this item…

This was an action of dower. One of the pleas stated that the former husband and the wife, now the demandant, by deed dated the 20th of May, 1784, conveyed the premises in fee to Halstead and Townley. To this plea the plaintiff demurred.

This was a certiorari to remove the proceedings of the election had for fixing on the place where the court house for the county of Middlesex should be erected.

<p>A notice of trial and countermand is such a proceeding within the year as supersedes the necessity for a term’s notice of trial.</p>

ÍN ejectment, tried at bar, before a special jury from the jrt r ryj , County oí Gloucester. In November term last this cause was brought to the bar by plaintiff, and the trial put off by alEdavit. The defendant then obtained a proviso rule and the trial came on this term Apon the defendant’s notice. The day after the end of No-member term the plaintiff gave notice that on the first day of this term he should move the court to change the venue from ° the county ox Gloucester.

<p>a book of accounts is not admissible evideuce to charge ^adeiWeryof goods to a third preceded by forTucídeliyery;</p>

CERTIORARI removing the order of the Sessions of Burlington County.

ON Habeas Corpus to bring up tbe body of negro Grace, A Habeas Corpus bad issued in tbe vacation returnable before the Chief Justice at bis chambers, immediately, to bring up tbe body of tbe said negro, on an affirmation that there was a probability that she would be taken out of the state, as Mount and his family were on the eve of a removal.

IN May Term 1794, the Court had awarded a new trial in this cause on the application of the plaintiffs, on the ground that the jury in stating the items of account against the defendant which consisted of different columns of Continental, Slate, and Specie money, had carried an item of ^ 300 Specie into the Continental column which made a difference of nearly the whole sum of /A 00, in favour of the defendant.

This was a rule to show cause why a verdict, which had been obtained at the Hunterdon Nisi Prius, should not be set aside and a judgment of nonsuit entered.

IN September term 1793 this court had reversed a jud5>mem given in this cause by the Common Pleas of Essex County, from which it had been removed by writ of error on a bill of exceptions. The ground on which the judgment was reversed was that there was a deficiency on the part of the defendant in proving a tender, (a) or that this court direct a venire defiovc to issue. He cited Parker v. Harris 1 Salk. 262. pi. 2 Vin» er’s Abr. Title “ Error,” pi. 3. Note & pi. 8.

These were two cases that came before the court on the return of a certiorari to Justice Dickenson, before whom the plaintiff below had obtained judgment by default for the amount of his demand. The objection taken was, that the bills given in evidence were sealed bills, and therefore the actions were improperly brought in the name of the assignee.

<p>Certiorari removing an inquisition of forcible entry and detainer.</p>

ON a motion for a new trial. and now on a motion for a ». /-£{ on the ground of a misdirection in the charge of th., his Honour reported “ That this was an action of ass* jmpsit brought by Mott against Pettit for £500, money had a id received; to which the defendant pleaded 1st non assumpsit. 2d Non assumpsit infra sex annos.

On habeas corpus to bring up the bodies of Henry, Dinah, and Susan, negroes, detained as slaves by the defendant, who claim their freedom. It appeared that the negroes had been the property of Robert Patterson, who appeared to have had an intention of setting them free, and in casual conversation with third persons, and sometimes in the presence of the negroes themselves, had declared this intention.

On certiorari to remove an inquisition of forcible entry and detainer. The exception was, that it appeared to be taken “ on the oaths or affirmations” of A, B, C, &c., without setting forth that they are quakers or conscientiously scrupulous of taking an oath. A case of The State v. Cook, in Middlesex, was cited, in which this error had been held fatal.

This was an action of indebitatus assumpsit, which was tried at Esses Nisi Prius in September, 1793.

A certiorari had been issued to the Common Pleas of the county of Gloucester, to remove an order of said court affirming the return of a road laid out by surveyors.

In this ease it appeared that about twenty years previous, near the commencement of the Revolution, Read obtained judgment in the Supreme Court against Stevens, in an action of debt, for a large sum of money, and issued a fi. fa., directed to Barns, the then sheriff of the county of Hunterdon, who, by virtue of the writ, levied upon a plantation belonging to Stevens, and returned the seizure upon the fi.fa. Barns soon after joined the British troops on Long Island and died.

In ejectment for lands in Bergen county. On the case stated, it appeared that the lessor of the plaintiff claimed, under the deed of the commissioners of forfeited estates, all the right and title of Weirt Banta to the premises in question.

In ejectment for lands in Somerset. The following agreement, containing a case stated for the opinion of the court, was entered into between the parties: [273] “ It is agreed that a verdict be taken in this action for the plaintiff, at the court of Nisi Prius, to be holden at Bridgewater, for the county of Somerset, on the, &c., subject to the opinion of the court on the following case, viz.: “ On the first day of February, one thousand seven hundred and sixty, Daniel…

THIS was an action of debt brought by Dunham against Drake on certain bonds and promissory notes dated in 1773, 1776, and 1783. To the declaration which was in the cus- . _ ,r, -ill.- .

this case a Certiorari had been directed to the Clerk of the County of Hunterdon, commanding him to certify the * * w return of the election of the Sheriff of that County, held in October 1794.

This was an action on the case against defendant as sheriff, for the escape of one Freeman.

In ejectment, tried at bar, before a special jury from the county of Gloucester. In November Term last, this cause was brought to the bar by plaintiff, and the trial put off by affidavit. The defendant then obtained a proviso rule, and the trial came on this term, upon the defendant’s notice.

A Habeas Corpus had in this case been directed to Heddon the gaoler of Essex county, commanding him to bring up the body of negro Cork with the cause of his detention. From the return it appeared that Cork was committed to gaol in October 1793 by the sheriff of Essex county, on the supposition of his being a run away slave; and that he had been kept under some kind of restraint from that period, without any commitment by a justice.

Sur Habeas Corpus to bring up the body of negro Phillis* The case on the evidence of James Liiin Esq. appeared to be as follows— That in 1776 Sarah Linn the mother of witness purchased the negro from the executors of her husband.

In the vacation between November and April Terms, a certiorari issued in this case, directed to the Sessions of Hunterdon, to remove an indictment which had been found there against Hunt, for an assault and battery. The certiorari was taken out by the attorney general.

<p>In error from the Common Pleas of Essex county.</p>

<p>Certiorari removing the order of the Sessions of Burlington county.</p>

THE defendants had been indicted at the last Monmouth Assizes for a malicious maim, on the Coventry Act, assault, battery, and wounding upon one William Wilds, on which they had been committed to gaol. In the vacation between April and May terms, an application was made to the Chief Justice at his chambers for a Habeas Corpus with a view to obtain a discharge upon bail. His honour allowed the writ, but made it returnable to this term.

On habeas corpus to bring up the body of negro Grace. A habeas corpus had issued in the vacation, returnable before the Chief Justice at his Chambers, immediately to bring up the body of the said negro, on an affirmation that there was a probability that she would be taken out of the state, as Mount and his family were on the eve of a removal.

In May Term, 1794, the court had awarded a new trial in this cause, on the application of the plaintiffs, on the ground that the jury, in stating the items'of account against the defendant, which consisted of different columns of continental, state, and specie money, had carried an item of £300 specie into the continental column, which made a difference of nearly the whole' sum of £300, in favor of the defendant.

The plaintiff in error was the plaintiff below,, and had brought an action on the case against Hopper, for negligently suffering bis horses, which were in a sleigh, to run against a horse belonging to plaintiff, by which its leg was broken.

IN ejectment forland in Gloucester County. This case was tried at the June aésizes in 1794, when a special verdict was found by the jury, the important circumstances of which are; John Hinchman (the first) was seized in fee of the premises *n question; and by his will, dated October ±5th, 1715, devised the property in controversy to his son John Hindi-1 * . , J r J , . , man (the second) m these words. “ Imprimis: — I give and bequeath unto my eldest son John Hinchman. three…

In September Term, 1793, this court had reversed a judgment given in this cause by the Common Pleas of Essex county, from which it had been removed by. writ of error on a bill of exceptions. The ground on which the judgment was reversed was that there was a deficiency on the part of the defendant in proving a tender. See this cause in September Term, 1793, ante 174.

On a motion for a new trial. This cause had been tried at the last Hunterdon Assizes, before the Chief Justice, and now, on a motion for á new trial, on the ground of a misdirection in the charge of the court, his Honor reported “ That this was an action of assumpsit, brought by Mott against, Pettit, for ¿£500, money had aud received ; to which the defendant pleaded — 1st. Non assumpsit. 2d. Non assumpsit infra sex annos.

This was an action of debt, brought by Dunham against Drake, on certain bonds and promissory notes dated in 1773, 1776, and 1783.

Trial at Bar. THIS was an action of covenant. The declaration stated that, on the 1 Mh of August 1779, it was covenanted by certain articles of agreement between tlie testator and the plaintiff, that the testator for and in consideration of the said articles being received by the plaintiff in full satisfaction of all claims* demands, and accounts against the testator, and his releasing the same, would make to the said plaintiff who was his son, a good deed for a certain…

In this case a certiorari had been directed to the clerk of the county of Hunterdon, commanding him to certify the return of the election of the sheriff of that county, held in October, 1794. The clerk, in obedience to the writ, returned the account of the votes taken, from which it appeared that Jacob Anderson, the defendant, had the greatest number of votes, and that S. Stockton, the then clerk, had certified that Anderson was duly elected sheriff of the county.

A habeas corpus had in this case been directed to Heddon, the gaoler of Essex county, commanding him to bring up the body of negro Cork, with the cause of his detention. Prom the return it appeared that Cork was compaitted to gaol in October, 1793, by the sheriff of Essex county, on the supposition of his being a runaway slave; and that he had been kept under some kind of restraint from that period, without any commitment by a justice.

On Certiorari» IT' appeared by the return this was an action brought against Townley the present plaintiff for goods sold and delivered on a book account.. One Egbert was produced to prove the book. It appeared by his testimony the goods were not delivered by the plaintiffs below to Townley himself, but the witness had taken them up in his name.

In ejectment; — trial at Bar. UPON the trial of the cause the following points were ruled by the Court, Kinsey C. j. being absent having an interest in the ease. 1 st The title of the plaintiff depended on a survey alleged to have been made for one Royden in the year-, and lost fey fire.

Sur habeas corpus to bring up the body of negro Phillis. M’Donald claimed the negro as his slave — Armstrong disclaimed, &c. The case, on the evidence of James Linn, Esq., appeared to be as follows : That, in 1776, Sarah Linn, the mother of witness', purchased the negro from the executors of her husband. After this, Mrs. Linn. frequently told witness that Phillis should serve no one but herself, and that after her death, the negro should be free.

The defendants had been indicted at the last Monmouth Assizes for a malicious maim, on the Coventry act — assault, battery and wounding upon one William Wilds — on which they had been committed to gaol. In the vacation between April and May Terms, an application was made to the Chief Justice, at his chambers, for a habeas corpus, with a view to obtain a discharge upon bail. His Honor allowed the writ, but made it returnable to this term.

THIS was a motion to set aside the report of referees on the ground ihat they had refused an application by the defendant /or an adjournment. Mr. Thompson one of the reierees swore that on the morning oi the day on which the report was signed, the defendant made a written application for an adjournment that he might have time to procure from Philadelphia a receipt which he alleged to he material in his defence.

IN Ejectment for lands in Cumberland County. A special verdict had been found in this case at the Cumberland Nisi Prius from which it appeared: — * That the question arose upon the will of Lancet Secquil the elder, dated May 3d 1759, in which he devises to his son Jonathan Secquil a certain tract of land “ to have and to hold to him his heirs and assigns forever:” — to his son Lancet Secquil certain other lands “ to have and to hold to him histheirs and assigns forever:” —…

THIS was a motion to set aside the award of arbitrators. who stated he came “ into the room and found Atkinson alone “ with one of the referees, and his books and papers opened “ before the referee: that he complained to the referee of it “ who answered &c.” This was the only evidence adduced to prove the corruption or unfairness alleged.

ON Certiorari to remove a judgment given by the Sessions of Salem County, reversing an order of two Justices for the removal of Elizabeth Sunderland and Prudence her bastard child from Upper Allo-ways Creek Township to Elsinghorough.

The plaintiff in error was the plaintiff below, and had brought an action on the case against Hopper, for negligently suffering his horses, which were in a sleigh, to run against a horse belonging to plaintiff, by which its leg was broken.

In ejectment for land in Gloucester county. This case was tried at the June Assizes, in 1794, when a special verdict was found by the jury, the important circumstances of which are — • John Hinchman, (the first,) was seized in fee of the premises in question ; and by his will, dated October 15th, 1713, devised the property in controversy to his son, John Hinchman, (the second,) itt these words: “ Imprimis.

Aa. Ogden and Frelinghuysen, moved on the prosecution of Mr. Vandyke one of the citizens of New Brunsreick that a Certiorari be issued to the Mayor &c. of New Brunswick, to return a certain by-law of the corporation in order to try its validity. 1 st Because if amotion is necessary, as the counsel making it appear from the course they have adopted to suppose, notice should have been given to the corporation. %d The court ought not to award a Certiorari on the mere prayer of…

ON attachment for non-payment of the costs taxed upon the common rule in a non-pros, in an action of ejectment against Kaign and Evaul.

ON Certiorari to the Orphan## Court of Gloucester County to remove proceedings and a decree of that court appointing appellee guardian.

THIS was an action of debt, in which judgment had been entered by default in the preceding term, and now&emdash; moved to open the judgment and receive a plea upon a suggestion that there was a real defence, and cited Fox v. Glass, (a)

©m Ca« Yionx&t to Justice Totem of Gloucester County. OIE Justice returned that the action was brought for the lecovery of three years rent claimed by Eld ridge as due him from Jessupx — as the jury were going- out of the bar, the plaintiff brought the justice a paper containing the charge of the three years rent and requested him to hand it to the jury, alleging that Jessup had agreed that it should go to them, and the Justice in consequence delivered it.

THIS was a Habeas Corpus commanding the defendant to bring up the body of Margaret Reap whom he detained and claimed as a slave. On the return of the writ, Williamson for defendant moved to quash the writ on the ground that it had been issued improvidd without airy affidavit being filed or cause being shown.

Trial at bar. This was an action of covenant. The declaration staled that on the 14th of August, 1779, it was convenanted by certain articles of agreement between the testator and the plaintiff, that the testator, for and in consideration of the said articles being received by the plaintiff in full satisfaction of all claims, demands, and accounts against the testator, and his releasing the same, would make to the said plaintiff, who was his son, a good deed for a certain…

THIS was an action of indebitatus assumpsit, brought in, the Common Pleas of Essex County by the defendant in error against Baldwin.

THIS was a motion for a new trial. The defendant had been indicted at the Oyer and Terminer in Morris County for manslaughter in killing one James Cooper, and being arraigned on the indictment he pleaded not guilty. The defence attempted to be set up on the trial was that the homicide was excusable, and his counsel earnestly contended he was guilty of nothing more. The J ury however found a verdict of guilty.

On certiorari. It appeared by the return this was an action brought against Townley, the present plaintiff, for goods sold and delivered on a book account. One Egbert was produced to prove the book. It appeared by his testimony the goods were not delivered by the plaintiffs below to Townley himself, but the witness had taken them up in his name.

In debt on a note. On a trial at bar upon a plea of usury, the following points were resolved by the court: 1st. That the court might recommend to the jury to find a special verdict against the consent of either or even both of the parties.

<p>1. Where lessee makes a verbal promise that he will not plough more than a stipulated quantity of land, damages may be recovered by lessor for a breach of this contract.</p> <p>2. Such damages may be recovered before a justice of the peace.</p>

THIS was an action of debt on a bond dated May 20 1765, for the sum of ¿(’2000 conditioned for the payment of £1000, executed by Stevens to the testator of the plaintiff. The defendant pleaded 1st. That he did not owe the money to the testator in his life time. 2d, Payment to the exec 'citor.

In ejectment. Trial at bar. Upon the trial of the cause, the following points were ruled by the court, Kinsey, C. J,, being absent, having an interest in the case: 1st, The title of tbe plaintiff depended on a survey alleged to have been made for one Royden, in the year-, and lost by fire. A witness was called to prove that, at a certain time, the records of Gloucester county were destroyed by fire.

THIS was an action of debt on a bond of submission to aft award, tried before Kinsey C. J. and Chetwood J. at the Hunterdon Nisi Prtus in October 1793, When the plaintiff had gone through his testimony and rested his cause, a motion for a nonsuit was made by the defendant, the grounds for which are stated in the opinion of the Court.

THIS was an action of dower to which the tenant pleaded— 1st Me unques accouple is?c. %d Me unques Seisie. On the evidence it appeared the tenant claimed title under Joseph English the brother of Isaac English the demandant's husband. Thomas English the father of Isaac and Joseph was seised of the premises in question, and had conveyed, them to Joseph, who entered upon the lands, and continued in possession until the date of his conveyance to Wright about ten years since.

THE prisoner Wilson was indicted at a court of Oyer and 'Terminer, held before Kinsey C. y. at Woodbury in the comity of Gloucester, for Burglary. The indictment charged him with having feloniously and burglariously broken into and entered the dwelling-house of one Daniel Cooper during the night, and of having feloniously stolen several articles of clothing and pieces of money the property of the said Daniel Cooper.

This was a motion to set aside the report of referees, on the ground that they had refused an application by the defendant for an adjournment. Mr. Thompson, one of the referees, swore that on the morning of the day on which the report was signed, the defendant made a written application for an adjournment, that he might have time to procure from Philadelphia a receipt which he alleged to be material in his defence.

In ejectment for lands in Cumberland county. A special verdict had been found in this case at the Cumberland Nisi Prius, from which it appeared that the question arose upon the will of Lancet Secquil, the elder, dated May 3d, 1759, in which he devises to his son, Jonathan Secquil, a certain tract of land, “ to have and to hold to him, his heirs and assigns, forever;” to his son Lancet Secquil, certain other lands, “ to have and to hold to him, his heirs and assigns,…

<p>The fact of corruption or unfairness on the part of arbitrators, as constituting a ground for vacating their award, should be clearly proved; the uncorroborated assertion of the party against whom their report is made, is insufficient. _</p>

On certiorari to remove a judgment given by the Sessions of Salem county, reversing an order of two justices for the removal of Elizabeth Sunderland, and Prudence, her bastard child, from Upper Alloways Creek township to Elsingborough.

THIS was an action of debt which came on for trial before Kinsey C. J. and Smith J. when the following questions arose before the Court and were resolved— ist Notice of taking depositions before a Judge for the purpose of perpetuating testimony under the act of August oOth 1/84, had been served upon Mr. Woodruff attorney for the defendant.

THIS was an action of debt on a bond, to which the defendants pleaded 1st Non est factum. %d That it had been given by defendant’s intestate in consideration of a cohabitation in adultery with Lydia Price the piaintiffVintcstaté. the plaintiffs produced a witness to prove the execution and delivery of the bond.

THIS was an action indebitatus assumpsit brought by Wood io recover from the executors of Matthexv Gill deceased, the sum of _£lOQO for the boarding, lodging and clothing of Mary the daughter of the testator, which the declaration stated bad been provided at his special instance and request.

<p>Certiorari to remove an inquisition of forcible entry and detainer, taken before Justice Hugg.</p>

<p>1. It is not necessary that previous notice should be given to the corpo0 ration that an application is to be made for a certiorari to'remove a by-law.</p> <p>2. If the court are informed that it is intended to try the validity of a 'by-law of a corporation, it'is not necessary to lay before them any other ground of application for a certiorari to remove it.</p>

On attachment, for non-payment of the costs taxed upo., the common rule in a non-pros., in an action of ejectment against Kaign and Evaul. To the last interrogatory, viz., “ whether he had paid the costs taxed,” the defendant answered, “ they were not paid, because an action was brought against him for these costs by the defendants in the ejectment, in which he had given special bail, and the same action is now depending, as he is informed.

This was an indictment on the Coventry act', with a second count charging an assault and battery.

On certiorari to the Orphans’ Court of Gloucester county, to remove proceedings and a decree of that court appointing appellee guardian. The matter came before the court upon a ease certified by the Orphans’ Court, and returned with the certiorari, by which it appeared that Tomlinson died in the year 1792, intestate, leaving four children. His widow, the wife of Eldridge, the appellant, administered.

On certiorari. It appeared, upon affidavits, that Chambers, the captain of militia, had proceeded erroneously in his mode of conducting the classing and assessments.

<p>The Court cannot decide that one of the parties is an infant, it must he determined by the jury; and until thej jury have found him to be an infant, he is a party interested and cannot be admitted as a witness.</p> <p>A witness to prove the infancy of one of the defendants, swore that the defendant was born within a few days of her own son, and to prove his ago she produced a copy of an entry in a family bible, which she swore was a true copy — such evidence isinadmissible, the bible Itself should be produced.</p>

<p>1. The court requires an affidavit that there is a real defence before it will open a regular judgment by default.</p> <p>2. Nor will they then do it if plaintiff has lost a term.</p>

THIS was an action on the case brought to recover damages sustained by the plaintiff in Consequence of obstructions raised in a water course.

<p>On certiorari to Justice Tatem, of Gloucester county.</p> <p>The justice returned that the action was brought for the recovery of three years’ rent, claimed by Eldridge as due him from Jessup; as the jury were going out of the bar, the plaintiff brought the justice a paper containing the charge of the three years’ rent, and requested him to hand it to the jury, alleging that Jessup had agreed that it should go to them, and the justice, in consequence, delivered it. Some of the affidavits stated that the justice had delivered the paper to the jury after they had commenced their deliberations, and Eldridge had confessed that Jessup had not expressed his consent.</p>

This was a habeas corpus, commanding the defendant to bring up the body of Margaret Reap, whom he detained and claimed as a slave. On the return of the writ, Williamson, for defendant, moved .to quash the writ, on the ground that id had been issued improvidé, without any affidavit being filed or cause being shown.

<p>THIS was an action of ejectment which came on for tx-ial at the Burlington Nisi Brius in August 1795, before Kinsey C. J. and Smith J.</p> <p>At the trial the following points wex-e ruled by the Court—</p> <p>ls£ The demise was laid in the declaration to have been made on the 2d of August 1794. The plaintiff offered evidence of mesne profits prior to that period, but-—</p>

This was an action of indebtitatus assumpsit, brought in the Common Picas of Essex county, by the defendant in error, against Baldwin.

<p>This was a motion for a new trial. The defendant had been indicted at the Oyer and Terminer, in Morris county, for manslaughter, in killing one James Cooper, and being arraigned on the indictment, he pleaded not guilty.</p> <p>The defence attempted to be set up on the trial was that the homicide was excusable, and his counsel earnestly contended he was guilty of nothing more.</p> <p>The jury, however, found a verdict of guilty.</p> <p>Some doubts arising whether the judge who tried the cause had not misconceived the law, the judgment was respited upon the application of defendant’s counsel, in order to take the opinion of the whole court upon a case stated, containing all the circumstances that had occurred, and the following case was made.</p> <p>It appeared that there had been some misunderstanding between the deceased and the prisoner respecting a turkey, which was at the place where the deceased lived. On the [425] 23d of November, 1789, the prisoner came to the house of the deceased for the turkey, which he demanded ; the deceased being then absent from home, at the house of one Jansen, a blacksmith. The wife of the deceased desired the prisoner would call again, when her husband should be at home, which he declined doing. She then told him that her husband had left word that if the prisoner took any fowl, he should take one particular one, which the prisoner, after looking at it, said that lie would not have, but would go and sec the deceased upon the subject; upon which she told him to take which he pleased. The prisoner then went out, caught a turkey, brought it into the house, and said that he had some business at the blacksmith’s, where he should see the deceased and settle with him for the fowl. The'wife then requested he would not go there, expressed her apprehensions lest he might get into a quarrel with her husband, and wished him to go home with the turkey, which he promised he would do.</p> <p>The prisoner took the turkey and carried it to his own house, which was about a mile and a half distant from that of the deceased. After remaining at home some time, during which he was assisting his brother in some work, he took a shovel, which required mending, at the desire of his brother, to the blacksmith’s shop, which was about half-way between where the prisoner lived and the house of the deceased. He found the deceased at the shop, standing near the door. After some words had passed upon the subject of the prisoner’s taking the turkey, the deceased appeared 'angry, gave the prisoner some harsh language, calling him a thief. The prisoner then went into the shop, the deceased following immediately after him, jostling the prisoner with his elbow, and using extremely abusive language, the prisoner at this time making no resistance. When they had got into the shop, and after some further words bad passed relative to their taking the law of each other, the deceased said if it was not for the law be would whip the prisoner, and the latter replied he need not be afraid of that, and be was ready for him. Thereupon the deceased made up to the prisoner, struck him, and seized him by the hair, when the prisoner caught him by the thigh or round the body, and ran him up into a corner of the [426] shop, when the blacksmith interfered, parted them, gave to each his hat, and expostulated with them.</p> <p>After they were separated the deceased and the prisoner were standing several 'feet apart, when the quarrel was renewed, the deceased first using aggravating language, to which the prisoner replied in a similar strain, when the former stepped up and struck the latter, who returned the blow and struck the deceased in the face. The prisoner, upon receiving the .blows from the deceased, fell against the vise, when he took up a club and struck the latter a blow, which knocked him down and occasioned his death.</p> <p>It also appeared from the testimony, both of the blacksmith and his son, that when the prisoner gave the fatal blow, he could not, in their opinion, have retreated further; that near the place where he took up the club with which he struck the deceased there were also the handle of a dung-fork, some blacksmith’s hammers, and some old scythes, any of which the prisoner might have taken in his hand as easily as the club with which he gave the mortal stroke.</p> <p>It appeared that the fracture in the skull of the deceased was upwards of five inches in length, and about an inch and a half in breadth, and the bones were much broken.</p> <p>Two of the witnesses also swore that the prisoner, in conversation with them afterwards, on the day the affray occurred, declared to them he could manage the deceased almost as he pleased. To another of the witnesses he said the deceased was no more in his hands than a child; and to another, that when the deceased struck him in the second affray, he looked toward the door in order lo go out, but as he could handle the deceased as he pleased, he thought it would appear cowardly, and he would not do it.</p> <p>The defence set up by the prisoner’s counsel was that of excusable homicide. After citing several authorities to show what was the legal signification of this phrase, they examined one or two witnesses to show that the prisoner was on friendly terms with the deceased, and to rebut an idea which had been rather intimated than proved, that there was a previously subsisting quarrel between them.</p> <p>[427] The judge, in his charge to the jury, having observed that, as the act of homicide was fully proved, and, indeed, admitted on behalf of the prisoner, told them the subject of their inquiry was whether the prisoner at the bar was guilty, as he stood charged in the indictment, or not; that homicide was, in some cases, justifiable, and in others was excusable; but ho remarked, that whoever would shelter himself under the plea of self defence, more particularly in the case of a mutual conflict, must make it appear that, before the mortal stroke was given, he had declined any further combat ; that he had retreated as far as it was possible to do with safety, and that he killed his adversary through mere necessity, in order to avoid his own destruction.</p> <p>He informed them, further, that it was the peculiar province of the jury, after hearing the evidence given, to determine in their own minds whether, upon the evidence so given, the prisoner, before striking the mortal blow, had retreated as far as he could with safety, and whether he had killed his adversary through mere necessity, and for the preservation of his own life. If they should be satisfied that he had not failed in either of these circumstances, they would acquit the prisoner; if otherwise, it was their obvious duty to find him guilty, as charged in the indictment.</p> <p>The jury, after being out some time, sent a note to the judge, requesting permission to come into court, which, being granted, they accordingly came, and, by their foreman, desired again to hear the testimony of the blacksmith and his son, who were called, and repeated their testimony, much to the same purport as before, but said that the prisoner, upon being struck in the second affray, fell up against, or retreated to the side of the shop. The jury then requested the judge again to state to them the law relating 'to excusable homicide.</p> <p>The judge repeated, in substance, what he had before stated, with this further remark — that although it might be contended, from some of the authorities which had been cited, that after a person assaulted had retreated as far as it was in his power, to avoid a battery or some bodily harm, it would be excusable in him to protect himself from further injury by killing his adversary, yet he thought this was not a principle [428] warranted by the law, but that the observations which he had before made, and the limitations he had pointed out, coincided with the ideas of Sir Michael Foster, and were grounded in reason, for, were it otherwise, the life of the citizen would be unnecessarily endangered, and would be taken away at too easy a rate.</p> <p>During the trial, the counsel for the state offered testimony to prove the conversations of the prisoner relative to- the affray. This was objected to, on behalf of the prisoner, upon the ground that his written confession had been already read in evidence. The court, however, overruled the objection, and admitted the evidence.</p> <p>The counsel for the prisoner offered evidence to prove the characters of the deceased and of the prisoner. This was objected to, and the objection allowed.</p> <p>The motion for a new trial was argued by Aa. Ogden and H. Stockton, for the prisoner, and Woodruff, attorney general, for the state.</p>

<p>1. Where testator directs his executors to sell lands, and they renounce, and administration is granted cum testamento annexo, the administrators are not authorized to sell.</p> <p>2. A party is estopped from gainsaying a title which is recognized by a deed under which he himself claims.</p>

<p>This was an action of debt on a bond dated May 20th, 1765, for the sum of ¿£2,000, conditioned for the payment of ¿£1,000, executed by Stevens to the testator of the plaintiff.</p> <p>The defendant pleaded — -1st. That he did not owe the money to the testator in his lifetime. 2d, Payment to the executor.</p> <p>The execution of the bond being proved, and the bond produced, there appeared to be no endorsement of any receipt for interest, and the defendant relied upon the presumption of law arising from this circumstance that the debt had been paid.</p> <p>In order to repel this presumption, and to account for the circumstance, the plaintiff called one Isaac Snowden, who swore that he had been acquainted with Stevens for thirty years; that he had failed before the revolutionary war, and had removed from Philadelphia, where he had lived. He swore also that in the year 1786, the defendant came to him with two gentlemen, and told the witness he liad been to make a tender of the money to John and James Mease, the executors; he then gave the money to witness, who gave him a receipt for £1,311 and some shillings.</p> <p>The plaintiff further produced a law, dated in 1772, exempting the person of Stevens from arrest and imprisonment.</p>

This was an action of debt on a bond of submission to an award, tried before Kinsey, C. J., and Chetwood, J., at the Hunterdon Nisi Prius, in October, 1793. When the plaintiff had gone through his testimony and rested his cause, a motion for a non-suit was made by the defendant, the grounds for which are stated in the opinion of the court.

<p>In an action of dower the tenant is estopped from questioning the seizin of the husband trader whom he himself has purchased and taken a deed.</p>

The prisoner, Wilson, was indicted at a court of Oyer and Terminer, held before Kinsey, C. J., at Woodbury, in the county of Gloucester, for burglary. The indictment charged him with having feloniously and burglariously broken into and entered the dwelling-house of one Daniel Cooper, during the night, and of having feloniously stolen several articles of clothing and pieces of money, the property of the said Daniel Cooper.

<p>1. Notice of taking evidence, for the purpose of perpetuating it, must be served upon the parly, and service on the attorney is had.</p> <p>2. After one has agreed to pay another for the services of his apprentice, and these services have been performed, he cannot object that the assignment was by parol, or question the title of the other party.</p>

On striking the jury in this cause, before Kinsey, C. J., under a rule of court, Leake, for the defendant, objected to striking the jury, on the ground that the notice to strike it was uncertain and irregular, it being entitled merely with the surnames of the parties, and not mentioning their Christian names.

<p>This was an action of debt on a bond, to which the defendants pleaded- — 1st. Won est factum. 2d. That it had been given by defendant’s intestate in consideration of a cohabitation in adultery with Lydia Price, the plaintiff’s intestate.</p> <p>On the trial before Kinsey, C. J., and Smith, J., the plaintiffs produced a witness to prove the execution and delivery of the bond. On his cross-examination, he said that after the execution, but before the delivery of the instrument, there was a writing added at the foot of the bond, relative to one of the obligees, by consent of the parties, which appeared to have been cut off.</p> <p>The "plaintiffs offered a witness to prove the contents of this writing which had been torn off, and to satisfy the jury that it was altogether immaterial. This was objected to, on [448] the ground that if a party destroys a writing, he shall not be permitted to have recourse to a secondary species of evidence, which is never admitted except in cases of accident or involuntary necessity.</p>

This was an action indebitatus assumpsit brought by Wood to recover from the executors of Matthew Gill, deceased, the sum of £1000 for the boarding, lodging and clothing of Mary the daughter of the testator, which the declaration stated had been provided at his special instance and request.

<p>1. On issue joined on a plea of ne unques seisie, the demandant need not prove the marriage nor the death of the husband; these facts are admitted by the plea.</p> <p>2. It is only necessary to prove a seizin of the husband during coverture ; the title under which he held is not in issue.</p> <p>3. The wife is not barred of her dower by joining with her husband in a conveyance of the estate, unless she acknowledged the deed pursuant to the act of assembly.</p> <p>4. Where the husband does not die seized, the demandant cannot recover either- damages or costs.</p>

This was an indictment on the Coventry act, with a second count, charging an assault and battery.

<p>This was an action of debt on a bond, to which the defendants pleaded — 1st. Non est factum. 2d. Infancy of Thomas Grover, one of the obligors. 3d. Perfraudem,,</p> <p>On the trial these points occurred: 1st. The defendants having offered their evidence to prove the infancy of Thomas Grover at the execution of the bond, moved the court to admit this defendant to prove the fraud of the plaintiff in obtaining the bond, by putting off upon the obligors, knowingly and fraudulently, counterfeit instead of genuine continental money.</p>

This was an action on the case, brought to recover damages sustained by the plaintiff in consequence of obstructions raised in a water course.

<p>1. In an action of ejectment mesne profits can be recovered only since tbe time of the demise laid in the declaration.</p> <p>2. The jnry in assessing mesne profits may include as part of the damages all the necessary and reasonable expenses of the plaintiff.</p> <p>3. Mesne profits recoverable in action of ejectment.</p>