Volume 10 — New Jersey Law Reports

<p>ATTACHMENT,</p> <p>i. 'The court out of which tm attachment issues, has the power to allow time to the auditors to make their report, beyond the third term from the issuing of the attachment.</p> <p>•i!. Though the language of the rule, referring back the report of ait. ditors is,,s that the report of the auditors bo referred back to them; and that they have time until the first day of next, term t.o make th- sir report.” Yet tire limitation of time contained in the rule is in no wise of the essence of the authority of the auditors, nor does its lapso disrobe them of their character as auditors, or extinguish the power of tht; sourt over them and their report.</p> <p>3. The dies datus contained in the rule is, in legal contemplation, aothing more than a continuance and the acceptance of the report, after the time mentioned in the rule has expired; and the rendition of judgment, upon it, will bo a sufficient warrant to the clerk to enter such continuance as the regularity of the record may require.</p> <p>4. Though the auditors make report at the third term, yet if the ¡report is referred back to them, they may properly include in it the demand of a creditor not exhibited to them until after the report had been referred back.</p>

This was an action of debt on an arbitration bond. The plaintiff declared in common form for the penalty of the bond. The defendant pleaded six different pleas — to the fourth and fifth of which the plaintiff has demurred. First plea, no a^ard, after oyer of bond and condition. Second plea sets forth the awatd and.alleges non performance by plaintiff. Third plea, no notice of the making of the award.

This was an action of covenant. The facts in the case are fully slated in the opinion of Justice Ford. The case came before the court on demurrer to the declaration. A. O. Dayton for the defendants, and in support of the demurrer, said: the declaration of the plaintiff, sets forth breaches of the following covenants, said to be contained in a deed for certain land from William Holmes, the testator, to one Charles Jones, vié; j. Covenant of seisin. 2.

This was an action of covenant. The facts in the case are fully stated in the opinion of Justice Ford. The case came before the court on demurrer to the declaration. A. O. Dayton for the defendants, and in support of the demurrer, said : the declaration of the plaintiff sets forth breaches of the following covenants, said to be contained in a deed for certain land from William Holmes, the testator, to one Charles Jones, viz. 1. Covenant of seisin. 2.

Tins was an action of debt upon an administration bom.! The defendant pleaded performance generally.

<p>K l'JEC'iMCST.</p> <p>Si. devises as follows : “ I give and devise the plantation, whereon jf now live, to tny sou Aaron anti his male heirs, lawfully issuing' j and fon want ofsuch heirs, l give tho same to my son Burnt, and his male heir,;, lawfully issuing; and for want of such heirs, I give the same to my sou Joint and his male heirs, lawfully issuing; and for want of such heir»,, to return back, <§-e. On tho death of the testator, Aaron entered and died seized without issue. Band, the second devisee, then entered and became seized, but died out of possession, leaving throe sons aud three daughters, of whom Lewie Mason was the oldest. By this deviso, Lewi", under tho operation of the statute de. doms, takes an estate tail.</p> <p>The statute of New-Jersey, of 13 Juno 1799, abolishing all English statutes, did not abolish, catates tail. Per Ford Justice,</p>

This was an action of debt upon an administration bond. The defendant pleaded performance generally. The plaintiff replied, and sets out several breaches, the only one necessary to be noticed was as follows : “ and for assigning a further breach of the said condition of the said writing obligatory, according to the form of the statute in such case made and provided, the said Isaac Hr Williamson, ordinary, To this breach thus assigned the defendant demurred.

This' was an action of ejectment, brought for the recovery of lands in the county of Middlesex.

<p>IN EJECTMENT.</p> <p>M devises as follows: “ I give and devise the plantation, whereon I now live, to my son Aaron and his male heirs, lawfully issuing; and for want of such heirs, I give the same to my son Barnt, and his male heirs, lawfully issuing; and for want of such heirs, I give the same to my son John, and his male heirs, lawfully issuing; and for want of such heirs, to return back,” &c. On the death of the testator, Aaron entered and died seized without issue. Barnt, the second devisee, then entered and became seized, but died out of possession, leaving three sons and three daughters, of whom Lewis Mason was the eldest. By this devise, Lewis, under the operation of the statute de donis, takes an estate tail.</p> <p>The statute of New Jersey, of IS June, 1799, abolishing all English statutes, did not abolish estates tail. Per Ford, Justice.</p>

This cause came before the Court, upon the following state of facts: — George Chandler, the defendants’ testator, having purchased of George H. Burr, a certain plantation, in order to secure the balance of the purchase money, amounting to eight thousand three hundred and fifty dollars, executed and delivered > the said George IF Burr, several bonds, bearing date the 13th day of May 1815 : Conditioned for the payment of the said balance of $8,350, and executed a mortgage the…

This was an action of ejectment, brought for the recovery of lands in the county of Middlesex.

<p>CJSBTIOBABI.</p> <p>If a defendant, in a cause pending before a justice of the peace, and in which if he has a defence, is lead into a mistake with regard to the time to which the cause is adjourned, and the trial is had in his absence., and without his knowledge ; this court will reverse the judgment.</p>

This was a certiorari, to the Court o'f Common Pleas of Monmouth, brought by Cornelius the defendant, and appellant below to reverse a judgment, rendered against him, on an appeal from a justices court.

<p>A mandamus will be issued to a Court only to direct the Court to proceed according to law, but not to direct them how to proceed.</p>

This cause came before the court, upon the following state » .of facts: George Chandler, the defendants’ testator, having purchased of G-eorge H. Burr, a certain plantation, in order to secure tlie balance of the purchase money, amounting to eight thousand three hundred and fifty dollars, executed and delivered to the said George H. Burr, several, bonds, bearing date the 13th day of May, 1815 : Conditioned for the payment of the said balance of $8,350, and executed a…

Sims, on behalf of the defendants, applied fpr a rule, upon the plaintiffs, to stay proceedings in this cause, in this court, until the costs of a former suit, between the same parties for the same cause of action, tried in the Court of Common Pleas of the county of Salem, were paid.

The judgment in this case had been reversed, on a writ of error, after execution had been issued, and the amount of the money due on 'the judgment, had been paid by the defendant into the hands of the sheriff.

<p>The affidavit to show that a witness lives out of the state, and there-' by to obtain a commission for the examination of such witness, need not be taken on notice.</p> <p>The commission may be opened by a judge in vacation.</p> <p>An order for the issuing of the commission, of itself, stays the proceedings.</p>

<p>Attorney, , Court. Clerk</p> <p>Breviat, and copy, and counsel fee $3.68 ©0 00</p>

By the affidavits taken in this cause, under a rule of this court, it appeared, that on the 11th day of October, to which time the cause had been adjourned, on the application of Probasco, the defendant, below, the said “ defendant, called at the office of the justice, for the purpose of applying for a further adjournment thereof. That the justice, was not in his office, but that William.

<p>jet nr. (¡5.</p> <p>In an action on an administration bond, tho judgment must be rendered for tlie penalty of the bond, and a court of law cannot assess damages upon it.</p> <p>The only way the defendant can obtain relief against the payment of the penalty, is by applying to the ordinary for a stay of execution, of stay of sale, or such reasonable further timo as may enable him to settle the estate in the Orphans’ Court, in satisfaction of the bond and judgment. ' “ ’</p>

This was a certiorari, to the Court of Common Pleas of Monmouth, brought by Cornelius the defendant, and appellant below to reverse a judgment, rendered against him, on an appeal from a justice’s court.

ITornblower, on the part of Roberts the .defendant, moved for a mandamus -to be directed to the Court of Common Pleas of Essex, to eompU them either to proceed in the cause, or to discharge the defendant on common bail, and he founded his application upon the following affidavits, viz.: “ That said defendant was on the 29th of December, A. D. 1825, arrested and held to bail, without a judge’s order, for $500.

Sims, on behalf of the defendants, applied for a rule, upon the plaintiffs, to stay proceedings in this cause, in this court, until the costs of a former suit, between the same parties for the same cause of action, tried in the Court of Common Pleas of the county of Salem, were paid. because, he said, costs of the suit in the Salem Pleas had not been presented to plaintiffs for payment, or any execution issued against them. and read an affidavit, stating that the costs had…

<p>Where money has been paid by defendant, under a judgment which is subsequently reversed, and it appears by the record, that such payment was made, the court will order restitution.</p> <p>But where it does -not appear by the record that the money has been paid, there the party must sue out a scire facias quare restitutionem non.</p>

Wall, applied for a commission, to take the examination of a witness in this cause, and offered to read an affidavit. L. Q. C. Elmer, objected to the reading of the affidavit,., because it had not been taken or notice to plaintiff’s attorney.

This was an action of trespass, on the case, for flowing water back upon the plaintiff’s mill. It was tried at the Burlington Court, before his honor justice Rossell, and a verdict found for the defendant. A rule to shew cause, why the verdict should not be set aside, was granted to the plaintiff, and upon the coming on of the argument.

Attorney. Court. Clerh Clerk reading writ and return........... 00 00 28 Breviat, and copy, and counsel fee...... 3 68 00 00 Drawing costs and copy,taxing and filing 54 00 58

<p>The facts in this case sufficiently appear in the opinion of the court, which was delivered by Justice Ford.</p>

An indictment, for embezzling the money of the President, .Oiveetors, and Company of the fílale Bank at Trenton, was found against, the defendant, hy the grand jury of the county of Mundonón, at the Quarter ííessíons of said county, in February ¿827, and was removed by certiorari into the Supreme Court.

<p>A contract which contravenes the policy of an act of congrogs and • ends to defraud the United Bt.a1.es, is void.</p> <p>if A. agree* to give B. 1000 dollars, on condition that 15. will forbear '¿o propose or offer himself to the post master general to carry the mail on v. mail route; such agreement is against public policy, and no g.ctior mu he maintained upon it.</p>

This was an action of trespass, on the case, for flowing water back upon the plaintiff’s mill. It was tried at the Burlington Court, before his honor Justice Rossell, and a verdict found for the defondant. A rule to shew cause, why the verdict should not be set aside, was granted to the plaintiff, and upon the coming on of the argument,

An indictment, for embezzling the money of the President, Directors, and Company of the State Bank at Trenton, was found against the defendant, by the grand j ury of the county of Hunterdon, at the Quarter Sessions of said county, in February 1827, and was removed by certiorari into the Supreme Court.

<p>A mortgagor will not be permitted to dispute a title derived under his movtgage, nor allege any thing in opposition tó a claim founded on it. Nor can he set up an outstanding title in another, for the purpose of defeating a recovery in an action of ejectment, upon the mortgage.</p> <p>Though the lessor of the plaintiff, as the assignee of the mortgagee, and as purchaser of the equity of redemption, unite both the legal and equitable title in himself, no such merger will be (hereby produced as to prevent him from maintaining ejectment against the mortgagor.</p> <p>If the lease, in a declaration of ejectment, is stated to have been Blade on the 7th of July 1825, to hold from “ the 6th day of July then last past’’ it shall be construed to mean the 6th day of July 1825, and not the 6th day of July 1824, which was prior to the accrual of the plaintiffs title; for where the words may he rendered either way, that construction which renders the fictitious demise useful to the actions ought, to be adopted rather than that which would destroy it.</p>

<p>A contract which contravenes the policy of an act of Congress and tends-to defraud the United States, is void.</p> <p>If A. agree to give B. 1000 dollars, on condition that B. will forbear to propose or offer himself to the postmaster-general to carry the mail on a mail route, such agreement is against public policy, and no action can be-maintained upon it.</p>

This action was brought to recover the penally of a bond, dated March 29, 1799, conditioned for the payment of £100, in ten annual instalments of ten pounds each; the first payable on the first day of June 1800.

<p>This case was submitted to the court on written arguments.</p>

<p>. A mortgagor will not be permitted to dispute a title derived under his mortgage, nor allege anything in opposition to a claim founded on it. Nor can he set Up an outstanding title in another, for the purpose of defeating a recovery in an action of ejectment, upon the mortgage.</p> <p>Though the lessor of the plaintiff, as the assignee of the mortgagee, and as purchaser of the equity of redemption, unite both tho legal and equitable title in himself, no such merger will be thereby produced as to prevent him from maintaining ejectment against the mortgagor.</p> <p>If the lease, in a declaration of ejectment, is stated to have been made on the Ttli of July, 1825, to hold from “ the Gth day of July then last past,” it shall be construed to mean the 6th day of July, 1825, and not the 6th day of July, 182-t, which was prior to the accrual of the plaintiff’s title: for where the words may be rendered either way, that construction which renders the fictitious demise useful to the action ought to lie adopted, rather than that which would destroy it.</p>

<p>EEHTIOItAKI.</p> <p>A foreign attachment can issue only for a cause of action founded on contract, and of such a nature as to enable the plaintiff, as of course, to require special bail.</p> <p>In some causes of action founded on covenant, an attachment will lie, and in others not, because in some, the defendant may, and in others he may not he held to bail as of course.</p> <p>When an attachment, founded on covenant, issues out of the Court of Common Pleas, and is afterwards removed by certiorari into tha Supremo Court, the jurisdiction of the Common Pleas, must be shewn, and will not be presumed; and unless the affidavit shews that the causa of action was such as to enable the plaintiff to require special bail, without a judges order, the proceedings in attachment will be quashed.</p>

<p>If A. as minister of a certain church, is entitled to the possession of the parsonage land, and while in possession, sows the land with grain, then sells the growing crop to B.'and voluntarily ceases to be minister of that church, leaves the parsonage land, and removes to another congregation before the crop is harvested, B. has not such a title to the crop, as to enable him to maintain trover against a person who takes it away. A disclaimer, by the consistory of the church of all title to the crop in question, is not evidence to support the title of B.</p> <p>He who has an estate, in lands, the duration of which is uncertain in point of lime, and he who has such an estate as may perhaps continue until the grain be ripe, shall, if he sows the land, be permitted to enter upon it at harvest, and reap the crop, although in the mean time his estate may have ended either by the act of God, or of the law. But if the estate is between seed time and harvest, determined by the act of the tenant, the growing crop passes with the land, to him who thereupon becomes the immediate owner of the latter.</p> <p>To maintain trover, the plaintiff must prove property in the article for which the action is brought.</p>

<p>EJECTMENT.</p> <p>A lease made by the guardian of an infant under the age of fourteen years, for a term of years extending beyond the arrival of the infan); at that age is voidable, and may be avoided by another guardian chosen by the infant after he attains the age of fourteen.</p>

This action was brought to recover the penalty of a bond, dated March 29, 1799, conditioned for the payment of £100, in ten annual installments of ten pounds each; the first payable on the first day of June, 1800.

<p>IN CKBTIOKARI.</p> <p>In an action brought by the payee of an order or bill of exchange against the drawer, the state of demand must substantially aver that notice, in due season, was given to the drawer, of the nonacceptance or nonpayment of the bill or order.</p> <p>If a promise is conditional, before a recovery can be had upon it, the. performance of the condition must be shewn. Per C. J. Ewing,</p>

<p>IN DEBT.</p> <p>A bond in the following words: “We A. B., O. D. and E. E. are held and firmly bound unto G. II. in the sum of seven hundred dollars, to be paid to the said G. II. or to their or either of their heirs, executors, administrators, or assigns, which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, severally by these presents,” is a several bond, and not joint and several.</p>

<p>certiorari.</p> <p>The Statute of November 1820, Rev. Laws 'Í96, which giveB the Court of Common Pleas power to grant relief, on appeal, both in matters of law as well as matters of fact; means such relief as accords ■with the nature of another trial, not such as belongs peculiarly to a writ of error. The jurisdiction of the Supreme Court on certiorari, was not by that statute transferred to the Court of Common Pleas, nor are the same grounds of reversal to be applied or prevail in the one court as in the other.</p> <p>The Court of Common Pleas, cannot on appeal reverse the judgment of the justice, because it is not entered according to legal form.</p>

<p>CERTIORARI.</p> <p>A foreign attachment can issue only for a cause of action founded on contract, and of such a nature as io enable the plaintiff, as of course, to require special bail.</p> <p>In some causes of action founded on covenant, an attachment will lie, and in others not, because in some, the defendant may, and m others he may not be held to bail as of course.</p> <p>When an attachment, founded on covenant, issues out of the Court of Common Pleas, and is afterwards removed by certiorari into the Supreme Court, the jurisdiction of the Common Pleas, must bo shewn, and will not be presumed; and unless the affidavit shews that the cause of action was such as to enable the plaintiff to require special bail, without a judge’s order, the proceedings in attachment will he quashed.</p>

<p>SERTIOBAKí»</p> <p>This court will not reverse the judgment of a justice on account of an omission to charge the jury opon a specific proposition, stated by counsel, unless it be made clearly to appear, that the proposition was warranted by the evidence, and necessarily involved in the verdict to he rendered.</p> <p>Where judgment is rendered for treble costs, it is not necessary to state, first, tbo amount of the single costs, and then the trebled sum» ft is sufficient to state it thus “ $49 being treble the costs and charges of the" plaintiff.</p>

<p>The transcript when once sealed and certified by the clerk, need not. in ordinary cases' be altered in date or re-sealed, though the trial does not take place at the first circuit after the transcript is made out and certified; but the same certificate will answer for the trial of the cause at any future term.</p>

<p>If A. as minister of a certain cliurcb, is entitled to the possession of the parsonage land, and while in possession, sows the land with grain, then sells the growing crop to B. and voluntarily ceases to he minister of that church, leaves the parsonage land, and removes to another congregation before the crop is harvested, B. lias not such a title to the crop, as to enable him to maintain trover against a person who lakes it away. A disclaimer, by tlie consistory of the church of all title to the crop in question, is not evidence to support the title of B.</p> <p>He who has an estate, in lands, the duration of which is uncertain in point of time, and he who lias such an estate as may perhaps continue until the grain bo ripe, shall, if he sows the land, be permitted to enter upon it at harvest, and reap the crop, although in the mean time Ins estate may have ended either hv the act of God, or of the law. But if the estate is between seed time and harvest, determined by the act of the tenant, tlie growing crop passes with the land, to him who thereupon becomes the immediate owner of the latter.</p> <p>To maintain trover, the plaintiff must prove property in the article for which the action is brought.</p>

<p>CERTIORARI.</p> <p>If two partners agree to divide an account against a joint debtor equally between them, and the debtor consents to it, and promises to one of ttie partners his moiety of the debt, the partner to whom the promise was made may maintain an account for his half of the account,</p> <p>On the trial of the appeal, before Warren Common Picas, the court nonsuited the plaintiff, because the state of demand did not set out a Segal cause of action.</p>

<p>EJECTMENT.</p> <p>A defendant in an action of ejectment, cannot set up an oustanding mortgage in the hands of a stranger to defeat the title of the mortgagor or his heirs.</p> <p>The assignment of a mortgage ought to be by writing under seal.</p> <p>The payment of the money due on the bond which accompanies a mortgage, gives to the person paying the bond, no title to the mortga.' ged premises.</p>

<p>EJECTMENT.</p> <p>A lease made by tlio guardian of an infant under the age of fourteen years, for a term of years extending beyond tlie arrival of the infant at that age is voidable, and may be avoided by another guardian chosen by the infant after lie attains the age of fourteen.</p>

In May term, 1827, a rule of this court was taken on be» half of Butler and entered in the minutes directing a writ ,..f attachment for the non performance of an award, to issue against M'Dermot, retm aabio to September term; at that ten» tho writ of attachment was quashed for irregularity. No application was afterwards made to the court, but a new writ was issued, tested as of February term 1828, returnable to May term 1828. No prosecutors name was endorsed on the writ.

<p>Rverson on behalf of Andruss, the appellant, moved for a peremptory mandamus to be directed to the Court of Common Pleas of Warren county, to compel them to reinstate an appeal. He founded his application upon a statement of facts agreed upon by the parties, in the following words. “It is agreed between the parties that the appeal was dismissed by the Court of Cbmtnon Pleas, upon the ground that the appeal bond was executed by Hampton Andruss, a minor, who appeared,before the justice, and defended the suit by Joseph Andruss his guardian, appointed by the court. It is admitted that the said bond was also executed by Wilson Hunt, a responsible freeholder of the county of War-mi, as surety, If is further agreed between the parties to this appeal, that application may be ¡nade to tlio next term of the Supremo Court, without further notice, for a mandamus. And if the said Supreme Court shall ho of opinion that the Court of Common Pleas erred in their decision, that a peremptory man.™ damns issue to restore the said appeal.”</p>

On a certiorari to justices and overseers removing an order of filiation and maintenance — tho justices in answer to a rule on thorn, for that purpose, certified si that they met and agreed on the sum of sixty-two and a half cents to be paid by the father, and thirty-seven and a half cents by tho mother, in case she should not take care of the child herself, and made a rough draft of the order, but could not-say whether they signed it or not; one of the justices took it home…

<p>¿1 verbal confession of guilt, made by a person acensad of a crime, ;i induced by a delusive hope of impunity excited in bis mind, will not 'be received in evidence j and a written examination of the accused made by a justice within a few hours after tho verbal confession, will also be inadmissible upon tho presumption that the same inducement which op-orated upon his mind at the time be made the verbal confession, might ¡Stave continued to operate, at the time of the written examination.</p> <p>When once a confession under influence is obt ained, a presumption arises that a subsequent confession of the same nature flows from the like influence, and such presumption ought to be overcome before the cor;« fession ca.n be given in evidence.</p> <p>Although an original confession may have been obtained by improper means, subsequent confessions of tho same, or of like facts, may be admitted, if the court believe, from the length of time intervening, from proper warning, or from other circumstances, that, the delusive hopes or fears, under tho influence of which the original confession was obtained,, were entirely dispelled.</p> <p>A prisoner may be convicted on his own confession, when proved by legal testimony, although it is uncorroborated by any other evidence,, provided the corpus delicti be proved.</p> <p>Corroborating circumstances, used in reference to a confession, are such as serve to strengthen it, to render it more probable, such in short, as may serve to impress a jury with a belief of its truth.</p> <p>A boy of tho age of twelve years and five months, may be convicted on his own confessions, of the crime of murder, and executed. The capacity to commit a crime necessarily supposes the capacity to confess it-</p>

<p>IN CERTIORARI.</p> <p>In an action, brought by the payee of an order or bill of exchange against the drawer, the state of demand must substantially aver that notice, in due season, was given to the drawer, of the non-acceptance or non-payment of the bill or order.</p> <p>If a promise is conditional, before a recovery can be had upon it, the performance of the condition must be shewn. Per O. J. Ewing.</p>

<p>CERTIORARI,</p> <p>The Statute of November 1820, Reo. Laws 796, which gives the Court of Common Pleas power to grant relief, on appeal, both in matters of law as well as matters of fact; means sucli relief as accords with the nature of another trial, not such as belongs peculiarly to a writ of error. The jurisdiction of the Supremo Court on certiorari, was not by that statute transferred to the Court, of Common Pleas, nor are the same grounds of reversal to be applied or prevail in the one court as in the other.</p> <p>The Court of Common Pleas, cannot on appeal reverse the judgment of the justice, because it is not entered according to legal form.</p>

<p>CERTIORARI.</p> <p>This court will not reverse the judgment of a justice on account of an omission to charge the jury upon a specific proposition, stated by counsel, unless it be made clearly to appear, that the proposition was warranted by the evidence, and necessarily involved in the verdict to bo rendered.</p> <p>Where judgment is rendered for treble costs, it is not necessary to state, first, the amount of the single costs, and then the trebled sum. It is sufficient to state it thus : “ $49 being treble the costs and charges of the" plaintiff.</p>

<p>The transcript wbon once sealed and certified by the clerk, need not in ordinary casos bo altered in date or ro-sealed, though tho trial does not take place at the first circuit after the transcript is made out and certified; but the same certificate will answer for the trial of the cause at any future term.</p>

moved to reverse the judgment of the Common Pleas, and contended that the state of demand set forth a sufficient cause of action.

<p>EJECTMENT.</p> <p>A defendant in an action of ej ectment, cannot set up an outstanding mortgage in the hands of a stranger to defeat the title of the mortgagor or his heirs.</p> <p>The assignment of a mortgage ought to be by writing under seal.</p> <p>The payment of the money due on the bond which accompanies a mortgage, gives to the person paying the bonj, no title to the mortgaged premises.</p>

In May term, 1827, a rule of this court was taken on behalf of Butler and entered in the minutes directing a writ of 'attachment for the non-performance of an award, to issue against M’Dermot, returnable to September term; at that term the writ of attachment was quashed for irregularity. No application was afterwards made to the court, but a new writ was issued, tested as of February term, 1828, returnable to May term, 1828. No prosecutor’s name was endorsed on the writ.

<p>jRyerson on behalf of Andruss, the appellant, moved for a peremptory mandamus to be directed to the Court of Common Pleas of Warren county, to compel them to reinstate an appeal. He founded his application upon a statement of facts agreed upon by the parties, in the following words: “ It is agreed between the parties that the appeal was dismissed by the Court of Common Pleas, upon the ground that the appeal bond was executed by Hampton Andruss, a minor, who appeared before the justice, and defended the suit by Joseph Andruss, his guardian, appointed by the court. It is admitted that the said bond was also executed by Wilson Hunt, a responsible freeholder of the county of Warren, as surety. It is further agreed between the parties to this appeal, that application may be made to the next term of the Supreme Court,, without further notice, for a mandamus. And if the said Supreme Court shall be of opinion that the Court of Common Pleas erred in their decision, that a peremptory mandamus issue to restore the said appeal.”</p>

A judgment by default having been obtained in this court, in May term last, on a sheriff’s bond, against the late sheriff of Sussex, and his sureties—

<p>An order of filiation is a judicial act, and must be executed by the justices jointly and not separately. Therefore an order of filiation though agreed upon when the justices were together, yet if it was signed by them separately, and in the absence of each other, will be quashed.</p>

A. L. Eakin, In behalf of the defendants produced an affidavit showing that all the lessors of the plaintiff, except Josiah Sparks and wife, are residents of the states of Pennsylvania and Delaware, and that Sparks was insolvent, and had been discharged under the insolvent laws in 1820 ; and thereupon moved that the proceedings in the cause be stayed, until security be given for the payment of costs.

<p>This case came on to be tried at the Hunterdon Oyer and Terminer, holden at Flemington, on Friday, the 9th day of May, 1828.</p>

<p>A purchaser of lands at sheriffs' sala, has r.ot, previous to tho making and delivery to him of the sheriff’s deed, for said lands, such an interest therein as can bo levied upon and sold by virtue of a fieri facias de bonis el terris.</p> <p>A sheriff's deed takes fuli effect only from the time of delivery, ana does not relate back to the time of salo, so as to sustain au intermediate sale and conveyance by the sheriff, of the lands therein mentioned.</p> <p>A levy may he made on lands acquired after the date of the judgment, or conveyed to other persons before the date of the execution. Per Drake justice.</p>

<p>If a person is arrested in this state, upon a contract made in the state of New-York, where both plaintiff and defendant resided at the time the contract was made, he will not be liberated on common bail, notwithstanding he may have taken the benefit of the insolvent law of the state of New-York, subsequently to the making of the contract.</p> <p>The method in which a demand is to be enforced, is to be determined not by the law of the state, where the demand ^originally accrued, hut by the law of this state.</p> <p>The case of Rowland v. Stephenson, 1 Halst. 149, overruled.</p>

<p>IN JWKCTMEK*.</p> <p>j. An inquisition of lunacy, is not conclusive against any person not a party to it.</p> <p>2. When an inquisition is admitted in evidence, the party against whom it is used, may introduce proof that the alleged lunatic was of sound mind, at any period of lime covered by the inquisition.</p> <p>3. Tho party against whom the inquisition is received, may impugn the finding, by contrary evidence, without, first pursuing tho procedure technically called a traverse of the inquisition.</p>

<p>Though a writ of error has been brought, and one of the errors assigned for the reversal of the judgment, is the excess of the judgment over the sum demanded in the declaration, this court will allow the party in whose favor the judgment is, to amend the record, by entering a remittitur of the surplus, and a judgment for the amount mentioned iri the declaration.</p>

A judgment by default having been obtained in this court, in May term last, on a sheriff’s bond, against the late sheriff of Sussex, and his sureties— W. Halsted now moved for leave to assess, as damages under that judgment, the amount of several amercements obtained against the late sheriff in the Court of Common Pleas of the county of Sussex, and in the Supreme Court; and offered to road a copy of a notice of this motion, which had been duly served upon the late sheriff…

<p>This court will not order the plaintiffs to give security for costs upon the ground that but one of the plaintiffs resides in this stale, and that he had several years before the commencement of the suit taken tlio benefit of the insolvent law.</p>

This was an application for a mandamus to be directed to the Court of Common Pleas of Somerset, to compel them to restore an appeal, and came before the court upon a case stated by the attorneys of the parties.

<p>A purchaser of lands at Sheriff's sale, has not, previous to the making and delivery to him of the Sheriff’s deed, for said lands, such an interest therein as can be levied upon and sold by virtue of a fieri facias de bonis et terris.</p> <p>A Sheriff’s deed takes full effect only from the time of delivery, and does not relate back to the time of sale, so as to sustain an intermediate sale and conveyance by the Sheriff, of the lands therein mentioned.</p> <p>A levy may be made on lands acquired after the date of the judgment, of conveyed to other persons before the date of the execution. Per Drake justice.</p>

This was a certiorari to one of the justices of the peace of the county of Salem, to reverse a judgment, rendered by him in the court for the trial of small causes.

<p>The plaintiffs in this case resided in Philadelphia, the defendants in Hunterdon county, and the venue was laid in Gloucester county.</p>

This was a certiorari to the Court of Common Pleas of the county of Salem, to reverse a judgment rendered on an appeal. The state of demand filed with the justice was as follows: “ The plaintiff comes into court on the return day of the summons and demands of the defendant the suni of fifty cents for wintering pasturing and washing a sheep, - - $0 50 .f okh Stull.

<p>SH EJEOTMEST.</p> <p>A judgment by default, in njeetment, against the casual ejoctoi for want of an appearance, will not be sot aside because the declaration in ejectment was served by the lessor of the piaintiJE</p> <p>An affidavit of the service of a declaration in ejectment which states that the copy was served 55 upon A. B. said to he one of the directora of the within named company," is insufficient.</p> <p>The notice subjoined to the declaration must bo read, or its contents explained to the person to whom it is delivered, or such person must bo informed of the intent and meaning of the service, and that it has been so done should be stated in the affidavit.</p> <p>If the service of the declaration in ejectment is not in the regular and ardinary manner, a judgment by default, for want of an appearance, should not be entered, until the court on a, rule to shew causo has sane-• -¿ioued the mode of service.</p>

These wore anpara te actions, on two JWeral promissory notes (brought by ihe plaintiffs, as endorsees, against the defendant es endorser. The notes wore dated on different days, for different sums, and payable at different limes to ¡her delendaut, who endorsed them to the plaintiffs. The writs were returnable to ihe same term, though issued and served at different limes 3 and the first writ was issued before the second note became duo.

<p>CERTIORARI.</p> <p>If the proceedings in-a matter of road are removed into the Supreme' Court, and an objection is there taken, that the surveyors did not take the oath prescribed by law ; unless it appears in some way either upon the face of the affidavit or otherwise, that the person before, whom the oath was taken, was a juft ice of the peace, the proceedings will be set aside.</p> <p>In order to prove the oaths of office of the surveyors, it is not necessary to produce the original oaths which are filed with the clerk of the township; it is sufficient to produce copies proved to be true copies.</p>

<p>Eli FRBOR,</p> <p>If the charter of a corporation, provides that all shares of its capitals Stocli shall bo transfei ruble on the books of the company, in such manner as the by-laws shall ordain, no legal transfer can be made until it pro- . vides hooks, and ordains by-laws for the transfer of its stock ; and un'ill then no legal demand on a person to transfer shares can be made.</p> <p>Proof of placing m the post office, a letter containing a notice of trial, directed to the defendants.’ attorney, residing in a post-town, in due sea.son to be received,, tho legal period prior to the day of trial, will, if ¿nado in tho presence of the defendants’ attorney, and until repelled, ¡raise a x*resuinpticn, and «land for proof of the service of notice.</p> <p>But this presumption may be repolled by tho affidavit of t,ho attorney Co whom the notice was directed, «tatiííg that it was not received.</p> <p>Tho refusal of a court to continuo a causo after it is at issue, is not a ¿natter upon which error can bo assigned.</p> <p>In making return''* to a writ of error, tho schedule should contain ¿¡imply a transcript of the record from tho book of judgments.</p>

<p>If a person is arrested in tliis Slate, upon a contract made in the State of New York, whore both plaintiff and defendant resided at tins time tbe con- ' tract was made, lie will not be liberated on common bail, notwithstanding lie may have taken the benefit, of the insolvent law of the State of New York, subsequently to the making of the contract.</p> <p>The method in which a demand is to be enforced, is to he determined not by the law of the State, where the demand originally accrued, but by the law of this State.</p> <p>The case of Rowland v. Stephenson, 1 Ilalst. 149, overruled.</p>

This was an action of trespass tried before his Honour the Chief Justice, • at the Cumberland circuit, and a verdict for the plaintiff. A rule to shew cause why the verdict should not be set aside, was obtained and argued by

<p>Upon a certiorari to the Common I* loas, to remove the proceedings on an appeal from the judgment of a justice; this court may inspect the transcript of the justice for the purpose of ascertaining a fact which occurred in the proceedings before him.</p> <p>A statement, on the transcript of the justice, that tho counsol of the defendant “ relied on tho statute of limitations, as a bar to the demand of the plaintiffs, and that no ovider.ee of a promise or acknowledgment had been proved to have been made by tho plaintiffs within six years” is,, insufficient to shew that ire* evidence of a promise or acknowledgment, was proved, or to prove error in the court below, an refusing the defend > int the benefit oí tho vístate of limitations*</p>

<p>The court have power in a proper case to set aside or strike out a plea.</p> <p>That the attorney of the plaintiff has no authority to prosecute the suit, is not the proper subject matter of a plea. The proper mode for the defendant to take advantage of such a fact is, by motion to the court, to stay proceedings.</p>

<p>IN EJECTMENT.</p> <p>1. An' inquisition of lunacy, is not conclusive against any person not a. party to it.</p> <p>2. When an inquisition is admitted in evidence, the party against -whom it is used, may introduce proof that the alleged lunatic was of sound mind, at any period of time covered by the inquisition.</p> <p>3. The party against whom the inquisition is received, may impugn the finding, by contrary evidence, without first pursuing the procedure technically called a traverse of the inquisition.</p>

Tins was ata ejectment tried before bis Honour the Chief Justice at the Middlesex circuit in December 1826, and came before this court upon a case stated, by his Honour the Chief Justice, and agreed to by the counsel of the parties, in the following words, viz. “ Middlesex circuit, December 1826.” Scudder read the transcript and oponed the case on the part of the plaintiffs, the declaration is of November term 1826, for 100 acres, &c. in the township of Woodbridgc, on the…

<p>Though, a writ of error has been brought, and one of-the errors assigned for the reversal of the judgment, is the excess of the judgment over the sum demanded in the declaration, this court will allow the party in whose favor the judgment is, to amend the record, by entering a remittitur of the surplus, and a judgment for the amount mentioned in the declaration.</p>

This ejectment was brought to the term of May 1828, upon a demise by G. Lorrillard, the 30th August, 1826, of a cotton mjíÜ! and two acres of land, in the township of Aequaeltanonk and county of Essex. The defendant pleaded not guilty. The plaintiff produced a boncl3 together with a mortgage, purporting to have been given by the defendant to the Paterson Bank by its corporate name, and P. Dickerson subscribing witness.

This was an application for a- mandamus to be directed to the Court of Common Pleas of Somerset, to compel them to restore an appeal, and came before the court upon a case stated by the attorneys of the qiarties. L. Kirkpatrick. The only question, agreeably to the case agreed on, is whether it be necessary to set out in the preamble to the condition of an appeal bond the amount for which judgment was rendered before the justice.

This was a certiorari to one of the justices of the peace of the county of Salem, to reverse a judgment, rendered by him in the court for the trial of small causes.

<p>If the summons issuing out of this court, calls upon the defendants to answer the plaintiff in a plea of trespass, and also to a bill to be exhibited against the defendants to the damage of the plaintiff ¿8000, and the declaration is in assumpsit, the defendant may crave oyer of the writ and plead in abatement, the variance between the summons and the declaration, and such plea will be good.</p>

The plaintiffs in this case resided in Philadelphia, the defendants in Hunterdon county, and the venue was laid in Gloucester county. moved to change the venue from Gloucester to Hunterdon county, and cited Dauehy et al. v. Taylor, 4 Hals. 96, and liev.

This was a certiorari to the Court of Common Pleas.of the county of Salem, to reverse a judgment rendered on an appeal. Held: that if the party be fully apprised of the demand which is to be set up against him, it is enough, and unanimously affirmed the judgment.

<p>A plea in abatement to a declaration in assumpsit, that another action had been previously commenced by the defendant against the plaintiff, in which the matters mentioned in the declaration might be set off, is good.</p> <p>What the parties in pleading have agreed, and admitted, must stand in that action, and as between them for truth.</p>

This was an action of ejectment, tried at the Essex Circuit, before his Honour the Chief Justice, and a verdict found fotthe plaintiff. A rule for a new trial was obtained, and argued by

<p>IN EJECTMENT.</p> <p>A judgment by default, in ejectment, against the casual ejector for want of an appearance, will not be set aside because the declaration in ejectment was served by the lessor of the plaintiff.</p> <p>An affidavit of the service of a declaration in ejectment which states that the copy was served “upon A. B. said to be one of thd directors of the within named company,” is insufficient.</p> <p>The notice subjoined to the declaration must be read, or its contents explained to the person to whom it is delivered, or such person must be informed of the intent and meaning of the service, and that it has been so done should be stated in the affidavit.</p> <p>If the service of the declaration in ejectment is not in the regular and ordinary manner, a judgment by default, for want of an appearance, should not be entered, until the court on a rule to shew cause has sanctioned the mode of service.</p>

The Court will not consolidate two actions brought against the same person, by the same plaintiffs, upon promissory notes drawn at different dates and payable at different times, where it does not appear that the defence is the same in each. These were separate actions, on two several promissory notes brought by the plaintiffs, as endorsees, against the defendant as endorser.

<p>The propriety of an appeal should appear on the face of the appeal papers sent to the court of Common Pleas, and if it does not, that court may dismiss the appeal.</p> <p>- "If it appears by the transcript, that the justice took time to advise, and it does not appear that the defendant attended at the time the judgment was rendered, the court of Common Pleas may dismiss the appeal.</p>

This was a certiorari to the Court of Common Pleas of the county of Middlesex, to remove the proceedings in a matter of road, which had been ordered by that court to be recorded. On the return of the certiorari a rule to take affidavits was applied for on behalf of the prosecutor of the certiorari, and obtained.

<p>certiorari.</p> <p>If judgment is rendered for a sum exceeding the amount mentioned in the state of demand, the judgment will be reversed.</p>

<p>If there is an interlineation in a material part of an appeal bond, which is not noted at the foot thereof, the bond will be defective, and the appeal may be dismissed.</p>

This was a certiorari to the Court of Common Pleas of the county of Warren, to bring up the judgment and proceedings on an appeal from a justice of- the peace.

<p>IN ERROR.</p> <p>If the charter of a corporation provides that all shares of its capital stock shall be transferable on the books of the company, in such manner as the by-laws shall ordain, no legal transfer can be made until it provides books, and ordains by-laws for the transfer of its stock; and until then no legal demand on a person to transfer shares can be made.</p> <p>Proof of placing m the post office, a letter containing a notice of trial, directed to the defendants’ attorney, residing in a post town, in due season to be received, the legal period prior to the day of trial, will, if made in the presence of the defendants’ attorney, and until repelled, raise a presumption, and stand for proof of the service of notice.</p> <p>But this presumption may bo repelled by the affidavit of the attorney to whom the notice was directed, stating that it was not received.</p> <p>The refusal of a court to continuo a cause after it is at issue, is not a matter upon which error can he assigned.</p> <p>In making return* to a writ of error, the schedule should contain simply a transcript of the record from the hook of judgments.</p>

This was a writ of mandamus directed to the township committees of the townships of Chester and Evesham in the county of Burlington, reciting, “That whereas J.H. and others, (naming them) surveyors of the highways of the county of Burlington, on the second day of March A. D. 1825, laid out a certain road of three rods wide in the said townships of Chester and Eves-ham ; nevertheless that the said township committees had refused and neglected to assign and appoint, in…

<p>This indictment had been quashed by the Court of Quarter Sessions of the county of Somerset, for insufficiency, and was thereupon removed by the prosecutor for the state, into this Court by certiorari. The indictment was in the following words'?</p> <p>M Somerset County, ss. The grand inquest" for the state of New-Jersey, and for the body of the county of Somerset upoti their oath present: That James Webster late of the township of Bridgwater, in the said county of Somerset,, on the tweutyfifth day of December, in the year of our Lord one thousand eight hundred and twenty-seven, at the township of Bridgwater aforesaid in said county, and within the jurisdiction of this court, with force and arms, &zc. did sell, and knowingly cause and permit to be sold for his own account and benefit, to one Abraham Van Duyn, one half pint of ardent spirits, commonly called whiskey, the same being of less-measure than one quart; he the said James Webster, not having first obtained a license for that, purpose, from the Court of General Quarter Sessions of the Peace of said county of Somerset, in the manner directed by the act concerning Inns and Taverns, nor from the corporate authority of any city or borough, in which he resided, contrary to the form of the statute in such case made and provided, and against the peace of this state, the government, and dignity of the. samé.”</p>

This was an action of trespass tried before his Honor the Chief Justice, at the Cumberland circuit, and a verdict for the plaintiff. A rule to shew cause why the verdict should not be set aside, was obtained and argued by

<p>This case came before the court on a writ of error, directed to the Court of Common Pleas of the county of Hunterdon | on the trial of the cause before the Court of Common Pleas, bills of exception were taken to the opinion of that court, and She questions arising thereon, were argued at the last term by</p>

<p>BEKWORUU.</p> <p>In actions by informers on penal statutes, the justice is make a special note of the day, month, and year, of its And this note should bo made at the time or on the day sneneement of the suit; and if the justice omits to mal until the return of the summons, the judgment will be ret j required to 3 institution, of the corn-re the entry ■erseil</p>

<p>• CERTIORARI.</p> <p>To authorize a justice to enter an action cs by agreement of the parties without process,” under the 18th section of the act for the trial of small cansos,, (i?si>. Laws 63d,) the plaintiff and defendant should appear before the justice to manifest their consent, or some person on behalf of the plaintiff, having- competent authority, and such authority should bo verified before the justice.</p> <p>The defendant can,, with no propriety, become the representative of the plaintiff, more especially to communicate to the justice the agreement of the parlies for the entry of an action.</p> <p>A judgment rendered on the confession of the defendant in an action entered by consent of the parties, without, process, and without the appearance of the plaintiff, or any person legally authorized to represent him before the justice, will be reversed on tho application of the personal representatives of the defendant.</p>

<p>Upon a certiorari to the Common Pleas, to remove tlie proceedings on an appeal from tlie judgment of a justice ; tins court may inspect tlie transcript of tlie justice for the purpose of ascertaining a fact winch occurred in the proceedings before him.</p> <p>A statement on the transcript of the justice, that the counsel of the defendant “relied on the statute of limitations, as a bar to the demand of the plaintiffs, and that no evidence oAa promise or acknowledgment had been proved to have been made by the plaintiffs within six years” is insufficient to shew that no evidenco of a promise or acknowledgment was proved, or to prove error in the court below, in refusing the defendant the benefit of the statute of limitations.</p>

<p>A declaration on a contract for the sale of lands at auction, one of the conditions of which was “ that the purchaser should pay the purchase money, and the yendors deliver a deed for the premises within six days from the day of sale,” should contain an averment of a tender of the purchase money, by the plaintiff; an averment merely that the plaintiff ■was ready and willing to perform all things on his part to be performed, and to pay the purchase money and complete lhe contract is not sufficient. And the same averment is necessary where the contract was that the purchaser should pay tile purchase money “ on the 15th of September 1827, on having a good and sufficient title made to him for the land."</p>

<p>Tho Court have power in a proper case to set aside or strike out a plea.</p> <p>That the attorney of the plaintiff has no authority to prosecute the suit, is not tho proper subject mail or of a plea. The proper mode for the defendant to take advantage of such a fact is, by motion to the court, to stay proceedings.</p>

This was an ejectment tried before his Honor the Chief Justice at the Middlesex Circuit in December, 1826, and came before this court upon a case stated, by his Honor the Chief Justice, and agreed to by the counsel of the parties, in the following words, viz: “ Middlesex Circuit, December, 1826.” Scudder read the transcript and opened the case on the part of the plaintiffs, the declaration is of November term, 1826, for 100 acres, &c., in the township of Woodbridge, on the…

<p>In an aetion against the surviving heirs of an obligor upon a bond of their ancestor, the heirs of a deceased heir having lands by descent^ should be joined in the action, and if they are not, the non-joinder may ¡bo pleaded in abatement.</p>

<p>This was a certiorari to the Court of Common Pleas of the County of Salem, to bring up an order of amercement which had been made against the sheriff. The following is the state of the case agreed upon by the attorneys of the parties: “ A summons was issued out of the Inferior Court of Common Pleas of the county of Salem, returnable to March term 1827, at the suit of Mason S. CTibbon against Jonathan Belton, upon a promissory note. Which suit was continued in the name of the original parties, although the said Mason S. Gibbon, after she commencement of the said suit, to wit, on the 16th day of February, A. D. 1827, assigned all his interest to the said note to James Brooks; and the said James Brooks, on the 15th day of June 1827, assigned all his interest in the said note to Daniel Ju. Miller and John Cooper, merchants of the city of Philadelphia. The suit was prosecuted for the use of the said Miller and Cooper; and at September term 1827, judgment was entered in favour of the plaintiff for the sum of $305.62 1-2. Execution was issued, and the money was collected and received by the said Edward Smith, sheriff as aforesaid. Notice of amercement having been duly given by the attorney on record of the plaintiff, the Court of Common Pleas of the county of Salem, in the term of June 1828, rendered judgment of amercement against the said Edward Smith, sheriff as aforesaid.</p> <p>The said Mason S. Gibbon, being insolvent, applied to the Court of Common Pleas, at March term 1827, and such proceedings were thereupon had, that the said Gibbon was on the 16th day of June 1827, discharged according to the prayer of his petition, and the said Edward Smith was on the same day appointed his assignee according to the requirements of the act of the Legislature on that subject. ,</p> <p>Upon the motion to amerce, the sheriff it was proved or admitted that he had received the money upon the execution as aforesaid, and that he had paid the costs to the attorney of the plaintiff.</p> <p>The counsel for the said sheriff offered in evidence the re» cord of the proceedings in insolvency in the case of the said Mason S. Gibbon, together with the assignment aforesaid as an insolvent debtor, dated 16th June 1827, as aforesaid, and also offered in evidence a certain book of said Edward Smith, as assignee of said Gibbons, an insolvent debtor, as aforesaid, to prove that he had charged himself as such assignee with the amount of moneys collected on the aforesaid execution by him as sheriff as aforesaid, of the said Jonathan Belton. To the above evidence the counsel for the party interested under the said judgment objected, and the Court of Common Pleas sustained the objection, overruled the above evidence, and rendered judgment of amercement as aforesaid.</p> <p>It was not proved, upon the notice of amercement, that th& said Edward Smith had notice of the assignment of the said note to Brooks, and by him to Miller and Cooper.</p> <p>If upon the whole,case, the Supreme Court shall be of opinion that the amercement was legally ordered, then it is agreed that the judgment of amercement shall be affirmed with costs. But if the court shall be of opinion that the judgment of amercement was illegally rendered, then the same shall be vacated and set aside.</p>

This ejectment was brought to the term of May, 1828, upon a demise by G. Lorrillard, the 30th August, 1826, of a cotton mill and two acres of land, in the township of Acquackanonk and county of Essex. The defendant pleaded not guilty. The plaintiff produced a bond, together with a mortgage, purporting to have been given by the defendant to the Paterson Bank by its corporate name, and P. Dickerson subscribing witness.

<p>The misaiomor of a corporation in a grant or obligation, does not destroy or defeat the grant or obligation, nor prevent a recovery upon it in the true name, provided the corporation designed and intended by the parties to the instrument, be shewn by proper and apt averments and proof</p>

<p>If the summons issuing out of this court, calls upon the defendants to answer the plaintiff in a plea of trespass, and also to a bill to be exhibited against the defendants to the damage of the plaintiff §8000, and the declaration is in’ assumpsit, the defendant may crave oyer of the writ and plead in abatement, the variance between the summons and the declaration, and such plea will be good.</p>

<p>A plea in abatement to a declaration in assumpsit, tliat another action had heen previously commenced by the defendant against the plaintiff, in which the matters in the declaration might be set off, is good.</p> <p>What the parties in pleading have agreed, and admitted, must stand in that action, and as between them for truth.</p>

<p>In an action of dower the defendant may plead in abatement that the husband of the demandant was an alien.</p> <p>The plea of alienage ought to contain a direct averment that the person is an alien, and that he was born out of the allegiance of the state, and within the allegiance of a foreign state.</p> <p>Alienism will not be inferred simply from the /acts that a person was on the 3d of July 1776, a subject of Great-Britain ; and in the year 1777 withdrew from this state and took refuge with the British army, and died in England, and never took upon himself the oath of allegiance to this state or the United States, but elected to continue a subject of the king of Great-Britain.</p> <p>A demurrer admits all such facts as are sufficiently pleaded, but is no admission of such as are not sufficiently pleaded.</p>

<p>Notice mast be given, of an application to discharge a defendant on 3?mmoR bail.</p>

<p>Tills was an action of ejectment, tried at the Essex Circuit, before his Honor the Chief Jiistiee, and a verdict found for the plaintiff. A rule for a new trial was obtained, and argued by</p>

Wk. Halsted, on behalf of W. Pennington, attorney for Van Houten, moved for leave to withdraw the relicta which had been signed at the last Circuit in Essex, for the purpose of pleading the discharge of Van Houten, under the insolvent act, previous to the commencement of the suit; and read an affidavit of the defendant, stating, that subsequent to the contracting of the debt, for which the action was brought, and previous to the commencement of the suit, he took the benefit…

<p>An appeal will not lie, to the Prerogative Court, from a decree of the Orphans’ Court, revoking letters of guardianship. The proper method of reviewing such a decree is by writ of certiorari.</p>

An attachment had been issued by a justice of the peace iu favour of Richard Cook against William punís, an absconding debtor, to which the constable made return that lie had attached ” tho elibets, rights, and credits of William Curtis, to the amount of forty-five dollars,” and the justice rendered a judgment in favour of Cook against Ctirtjro for $42.74 debt, and $1.76 costs.

This was an application for a mandamus, to be directed -to the Court of Common Pleas of Somerset, to command them to restore an appeal; and came before this court upon the following state of the ease, agreed upon by parties, viz : This cause came on for hearing, before the judges of the Court of Common Pleas, in and for the county of Somerset.

<p>A judgment entered by confession, upon a bond with warrant of attorney, under the act of 24th February 1820, (Rev. Laws 685) will not he set aside, upon the application of a subsequent judgment creditor, though the copy of the bond and warrant of attorney upon which the judgment was entered, was made upon tw.o half sheets of paper, and not upon a whole sheet.</p> <p>Nor will it be set aside, because the copy of the bond and warrant of attorney,at the end of which the judgment is entered,contains erasures and obliterations.</p> <p>Nor because the affidavit of the plaintiff (required by the act) states that a payment was made by him of a less sum to take up a" note of the defendant for a larger sum, without stating in what manner the residue of the note was paid.</p> <p>Nor because the affidavit stated “ that the debt for which the judgment was confessed was justly due and owing to the plaintiff,” without setting forth from, or by whom it was owing.</p> <p>Nor because the affidavit states that the money, for which the bond was given, was lent to the defendant seven before the date of the bond.</p> <p>Nor because the affidavit is in general terms and does not affix any sums or dates to the various items stated in it as composing the consideration of the bond.</p> <p>Nor because the day of the month is omitted in the jurat of the affidavit.</p> <p>Nor because the officer before whom the affidavit was taken, annexed to his name the letters J. P. only and not the style of his office, in words at length.</p> <p>Nor because the affidavit was entitled against two persons as partners, and the entered them</p> <p>Nor because, the affidavit did not state in terms, that the notes which formed a part of the consideration for which the bond was given were paid, “ but only that they were satisfied to the holder, and taken up by the plaintiff.”</p> <p>Nor because the affidavit was made on the 6th of November, and the bond did not become due until the 7th of the same month. The words “ due and owing” made use of in the statute, mean a simple indebtedness, without reference to the time of payment.</p> <p>Where fraud or want of consideration is alleged against a judgment entered by confession on bond with warrant of attorney, the court may order a feigned issue.</p>

<p>CERTIORARI.</p> <p>If judgment is rendered for a sum exceeding the amount mentioned in the state of demand, the judgment will be reversed.</p>

Vroom moved for a peremptory mandamus, to be directed to the Court of Common Pleas of the county of Somerset, to compel them to restore an appeal which had been dismissed on account of an alleged insufficiency of the appeal bond; and he read a state of the case agreed upon by the attorneys of the parties, by which it appeared that several objections to the bond were taken in the Court of Common Pleas.

This was a certiorari to the Court of Common Pleas of the county of Warren, to bring up the judgment and proceedings on an appeal from a justice of the peace.

This was a writ of mandamus directed to the township committees of the townships of Chester and Evesham, in the county of Burlington, reciting, “That whereas J. TI. and others, (naming them) surveyors of the highways of the county of Burlington, on the second day of March, A. D. 1825, laid out a certain road of three rods wide in the said townships of Chester and Evesham; nevertheless that the said township committees had refused and neglected to assign and appoint, in…

An indictment was presénted by the grand juey of the county of Hunterdon, to the Court of Oyer and Terminer and General Goal Delivery of said county, against William Zule, for polygamy, and was removed by certiorari into this court.

<p>An indictment for selling liquor by small measure, which only alleges that the defendant did not obtain a license according to the act concerning inns and taverns, is insufficient and will be quashed.</p>

<p>White moved to reverse the judgment for a cause not stated in the reasons filed.</p>

This was a certiorari to the Court of Common Pleas, of the county of Hunterdon, to remove the proceedings of that court in the matter of the application of Cornelius Booram, an insolvent debtor, for the benefit of the insolvent laws.

This case came before the court on a writ of error, directed to the Court of Common Pleas of the county of Hunt ¡rdori; on the trial of the causo before the Court of Common Picas, bills of exception were taken to the opinion of that court, and the questions arising thereon were argued at the last term by The facts in the case are sufficiently disclosed in the opinion of the court, which was delivered by

<p>certiorari.</p> <p>In actions by informers on penal statutes, the justice is required to make a special note of the day, month, and year, of its institution. And this note should be made at the time or on the day of the commencement of the suit; and if the justice omits to make the entry until the return of the summons-the judgment will be reversed.</p>

<p>CERTIORARI.</p> <p>To authorize a justice to enter an action “by agreement of the parties without process,” under the 18th section of the act for the trial of small causes, (Ileo, Jm-xos 631,) the plaintiff and defendant should appear before the justice to manifest their consent, or some person on behalf of the plaintiff, having competent authority, and such authority should be verified before the justice.</p> <p>The defendant can, with no propriety, become the representative of the plaintiff, more especially to communicate to the justice the agreement of the parties for the entry of an action.</p> <p>A judgment rendered on the confession of the defendant in an action, entered by consent of the parties, without process, and without the appearance of the plaintiff, or any person legally authorized to represent hint before the justice, will be reversed on the application of the personal representatives of the defendant.</p>

<p>A declaration on a contract lor the sale of lands at auction, one of tlio conditions of which was “ that the purchaser should pay the purchase money, and the vendors deliver a deed for the premises within six days from the day of sale,” should contain an averment of a tender of the purchase money, by the plaintiff; an averment merely that the plaintiff was ready and willing to perform all things on his part to be performed, and to pay the purchase money and complete the contract is not sufficient. And the same averment is necessary where the contract was that the purchaser should pay the purchase money “ on the 15th of September 1827, on having a good and sufficient title made to him for the land.”</p>

Wall argued in support of the plea in abatement, and cited 2 Saund. 7, note 4; 2 Chitty Plea. 209. cited, Bac. abr. tit. Heir and Ancestor, G. H.; 2 Tidd’s prac. 354, 152; Rev. Laws 432; Jac. Law dict. tit. Heir 32; 6 John. Rep. 59.

This was a certiorari to the Court of Common Pleas of the county of Salem, to bring up an order of amercement which had been made, against the sheriff. The following is the state of the case agreed upon by the attorneys of the parties : “A summons was issued out of the Inferior Court of Common Pleas of the county of Salem, returnable to March term, 1827, at the suit of Mason S. Gibbon against Jonathan Belton, upon a promissory note.

cited and relied on the following cases: 1 Penn. 115; 2 Strange 788; 2 Lord Raym. 1515 ; Cowp. 26; Rev. Laws 724, sect. 3. cited and commented on the following cases: 2 Bac. abr. 8 Corp. C. 3; 5 Ibid 431, pleas and pleadings; Dyer 279; Leon 322; Moor 897; Cro. Jac. .261, 558; Lutw. 294; 4 Bac. abr. 753, Misnomer; Roll. Abr. 146; 2 Bac. abr. 5, n. a ; 11 Co. 21; Salk. 7, pl. 17; Com. Sep. 408. Com. Dig. Estoppel B. 271; Cro. Eliz. 352, 700; 2 Bl.

This was an action of dower brought by Sarab Coxe, widow of Daniel Coxe, deceased, for her dower in certain premises owned by the defendant.

<p>If a defendant neglects to plead Ills discharge, under the insolvent act, in an action for a debt contracted previous to his discharge, and suffers the regular time for pleading the same to elapse under a mistaken idea of the law, the court will not permit him afterwards to withdraw a rehcta given by him at the Circuit in order to plead his discharge.</p>

<p>An appeal will not lie, to the Prerogative Court, from a decree of the Orphans’ Court-, revoking letters of guardianship. The proper method of reviewing such a decree is by writ of certiorari.</p>

<p>IN ATTACHMENT.</p> <p>A scire facias, against a garnishee in attachment, is defective, if it does not state with precision and certainty, the nature of the property attached The words “rights and credits” do not sufficiently specify the nature of the property; and an inventory returned with a writ of attachment would be defective, if it did not state with more certainty and precision, what was the nature of the property attached.</p>

Harrison and Armstrong, on behalf of Worley and Welsh, subsequent judgment creditors, applied to set aside several judgments which had been entered by confession on bonds and warrants of attorney against Scudder and Coryell. Hamilton and Saxton, opposed the application.

<p>If the caption of an indictment do not shew distinctly the names and style of office of the judges composing the court to which it is presented, the indictment will be quashed.</p>

White moved to reverse the judgment for a cause not stated in the reasons filed. Sloan, for defendant, objected that the reason urged for the reversal was not one of those filed, and that as there was no general reason filed, under which it could be fairly comprehended, to admit the plaintiff now to assign it, as a cause for reversal, would be a surprise upon the defendant.

<p>CERTIORARI.</p> <p>An insolvent debtor who has been remanded to prison upon the undertaking of a creditor to prove that he had not fairly delivered up liis property to the use of his creditors, and who had joined issue with his creditor upon the fairness of his surrender, according to the form of the pleadings prescribed by the insolvent act, (liev. Laws 219) cannot have a judgment entered in his favor by default of the creditor to appear against him, but must go on and prove his case to the jury and obtain their verdict.</p>