Volume 13 — New Jersey Law Reports

This was an action of trespass on the case brought by the plaintiffs against the defendant in the Supreme Coiirt. The declaration filed contained the common counts for goods sold and delivered. The cause was tried at the Circuit Court in and for the county of Essex, at the April Term, 1829.

<p>The order to institute, and carry on a suit in the name ol the Ordinary, should not he filed in the Supreme Court, but in the Prerogative Court, whose act it purports to be, and by whose clerk or register it ought to be held and preserved.</p> <p>If leave is given to prosecute, “ upon giving bond to the Surrogate General, and his successors in office, in the penalty of four hundred dollars with such surety, or sureties as shall be approved of by the surrogate of the county of Hmiterdonj conditioned to indemnify the Surrogate General from all costs-to be incurred in) the prosecution of the said bond,” the prosecutor must deliver the bond to the Ordinary. To deliver the bond to the surrogate of the county of Hunterdon, is not a compliance with the direction of the Ordinary. It is for his indemnity. It. is to be held, and preserved by him, or in such maimer, as he may prescribe.</p>

This was a certiorari directed to the justices of the Court of General Quarter Sessions of the Peace of the County of Cumberland, to remove into this court an order, made by them, for the affiliation and maintenance of an illegitimate child.

<p>In an action brought against G. B. as surviving executor, upon the, suggestion of a devastavit, a certified copy from the minutes of the Orphans Court, of a decree, for the allowance of the account of the executors, unaccompanied by the account itself, is not sufficient evidence of a balance remaining upon the settlement of the accoimt in the hands of the executor.</p> <p>A duly certified copy of both the decree and the account should be produced by the plaintiff.</p>

<p>A’ person elected by the inhabitants of a township, as surveyor of the highways, must talce the oath,.as prescribed by the statute, Laws, 344-, see. IS). If he-neglects, or refuses to take such oath, he is not a competent and lawful officer to act in laying out a road, and a return ordered by the Court of Common Pleas, to be recorded, is liable to be set aside, if such incompetent person was one of those appointed, by that court, to view and examine the road.</p>

This was an appeal to the Court of Common Pleas in and for the county of Bergen, from a judgment rendered, upon the verdict of a jury, in a court for the trial of small causes. When the cause was called up for trial in the Court of Common Pleas, the appellee, who was the plaintiff below, moved to dismiss the appeal, for the insufficiency of the affidavit made at the time of demanding the appeal before the justice, and the court dismissed the appeal.

John Voorhees, the plaintiff below, filed a complaint of forcible entry and detainer against Philip Butts, before one of the; justices of the peace of the county of Warren. A trial was had, a verdict was given in favor of the complainant, anda judgment was rendered thereon with treble costs of suit. The defendant rémoved the proceedings into this court by certiorari.

This was an action of ejectment, tried at the Middlesex Circuit. The declaration contained but one count for several tracts of land. The demise was stated to have been made on the thirteenth day of May, 1829; under which the plaintiff entered and the ouster was averred to have taken place on the same day. It appeared in evidence on the trial, that the declaration and notice were served on the tenant in possession on an antecedent day, the twelth day of the same month.

This was an action of ejectment, tried in the Middlesex circuit, at the December term 1830, and a verdict rendered in favor of the plaintiff. On the return of the postea, the defendant obtained a rule to shew cause, why the verdict should not he set aside; and the reason relied upon, was, that no notice to quit was given to the defendant, previous to the commencement of the suit.

This, was an action of ejectment for lands in the county of Salem, and was argued at the last term of this court, on a state of the case, agreed upon by the attorneys of the parties, at the circuit, when the cause was called on for trial, as will appear by the following copy of the postea.

<p>The court will not permit a person to become a defendant in the action of ejectment, unless he shew a privity of interest, subsisting between him and the tenant in possession, when the action was commenced, and that his title was, at that time, consistent and connected with the possession of the tenant and liable to be divested or disturbed by a claim adverse to that possession.</p>

This was an action of debt brought by the plaintiffs in this •court; and the declaration filed, sets forth a judgment obtained by Samuel Gulick in his life time, on the seventeenth day of August, seventeen hundred and ninety-nine, in the Court of •'Common Pleas of the county of Northampton, in the Commonwealth of Pennsylvania. The declaration contained also, the usual money counts. The defendant pleaded, first, nul tiel re.cord.

The defendant having been sued by process, returnable to the present term, Williamson on his behalf, presented to the court a petition, stating, that he is, and was at the commencement of the suit, a citizen of the state of New-York, and pray for the removal of the cause into the Circuit Court of the United States. He produced, also, a bond as prescribed by the act of Congress.

This case came before the court on a writ of error to the Court of Common Pleas of the county of Cumberland. The declaration contained a count for money paid, laid out and expended by Sheppard, to and for the use of Williams. The plea was the general issue. The verdict and judgment were rendered in favor of Sheppard.

Silas Condit and James Yanderpool declared against William Neighbor “ for that, whereas heretofore, to wit: — on the thirteenth day of April, in the year of onr Lord seventeen hundred and forty-seven, at Roxbury, in the county aforesaid, hy a certain deed, then and there made, by and between one John Budd and Sarah his wife, and one Jacob Bodine, the counterpart of which said deed, sealed with the seal of the said Jacob Bodine, the said Silas and James now brincf into court,…

<p>Thife court -will not grant a -writ of mandamus to the Court of Common Pleas, to dismiss an appeal, alleged to be improperly entered and sustained. The redress of the party aggrieved, is to be sought by certiorari, not by mandamus.</p>

By an act of the legislature passed in March 1828, commissioners were appointed to ascertain and determine the boundary line between the county of Gloucester, and the counties of Salem and Cumberland, and were directed to make a report or certificate of their survey to the Secretary of the State, to be recorded, and filed in his office.

<p>A Consul General of His Holiness the Pope and recognized as such hy the President of the United States, cannot be sued in an action of debt in the court for the trial of small causes.</p> <p>By act of Congress, the District Court of the United States has jurisdiction, exclusively of the courts of the several states, of all suits against consuls.</p>

This was an action of assumpsit brought by the plaintiff against the defendants on a policy of insurance, and was tried before the Chief Justice at the April term, 1831, of the Essex Circuit. The plaintiff was nonsuited. On the return of the postea, the plaintiff obtained a rule to shew cause why the non-suit should not be set aside. The rule was argued at the last term by Wood and Wm.

A writ of attachment was issued out of the Court of Common Pleas of the county of Bergen, upon an affidavit made by the cashier of the City Bank of New York against Edward Merrit and Gilbert Merrit, and executed on the real estate of Gilbert Merrit. At the term to which the writ was returned, and before any other proceeding was had, a rule was obtained to shew cause why the writ should not he set aside and quashed as having been unduly and improvidently issued.

This was an action of ejectment tried at the November term, 1830, of the Cumberland circuit, before Justice Ford. Several objections to evidence were raised at the trial, which are fully noticed in the opinion of the court. After the counsel on both sides had summed up, Justice Ford charged the jury in substance as follows : It is not disputed that Jonathan Socwell owned the premises in question in fee simple.

This was an action brought in the court for the trial of small. causes by Caleb H. Ely, and James Ely, to recover the amount of certain articles of mourning apparel procured at their store, on the day the testatrix died, but after her death, by two females who lived in her family. It appeared in evidence on the trial, that the articles were actually used at the funeral and were suitable to the condition in life of the testatrix.

On the return of the postea in this case, LJakin for the defendant moved for a rule to shew cause why a new trial should not be granted. The Chief Justice, before whom the cause was tried, reported that the lessors of the plaintiff claimed as devisees of Lydia Ayres, deceased.

<p>A party cannot tax costs against his adversary for copies or exemplifications produced in evidence on trial.</p> <p>Mileage for travel within the state only, is to be taxed by one party against the other.</p>

This was an application to amorce the defendant, late sheriff of the county of Sussex. The facts and circumstances of the case are fully detailed in the opinion of the court delivered by the Chief Justice.

<p>A justice, in the court for the trial of small causes, is not authorized to dismiss a suit, after he has heard the merits of the cause. He should render a judgment for one of the parties.</p>

The plaintiff entered up judgment against the defendant on a bond by virtue of a warrant of attorney, and issued execution thereon, with directions to the sheriff to levy 5141 dollars IT cents.

‘This was a certiorari removing from the court of Common Pleas of the county of Essex, the record of a road. Several reasons were filed and argued for setting aside the return, which, are reviewed by the Chief Justice, who delivered the opinion of the court.

This was an action of ejectment for lands in the county of Sussex, and tried, before the Chief Justice, at the May circuit, 1831. Ihe lessor of the plaintiff claimed title to the premises m question, under the will of Peter Wintermute, deceased, which was proved and read in evidence without dispute. He also proved, that the testator died seized and in possession of the premises.

This was an action of ejectment for lands in the county of. Hunterdon, and tried, before the Chief Justice, at the circiiit court for that county,.at the May term, 1829. The plaintiff was nonsuited; and on the return of the postea, a rule to shew cause was granted. All the material facts are fully stated in the opinion of the court delivered by Justice Drake.

This was a certiorari to the Court of Quarter Sessions of the county of Morris. The facts in the cause are sufficiently detailed in the opinion of the court delivered by Justice Ford.

This suit was commenced in the court for the trial of small causes, and removed into the Court of Common Pleas by appeal. The judgment and proceedings of the Court of Common Pleas were removed into this court by certiorari.

This cause having been regularly notice d for argument and! entered on the calendar, was in its tram moved by Wall. The Attorney-G-eneral objected, to the argument proceeding, as he had not been furnished with a state of the case.

<p>This Court will set aside an execution, which has been issued after the death of the plaintiff.</p> <p>If a defendant in error dies after errors assigned, his Executors may proceed until the judgment is affirmed, as if he were living, and then the judgment must he revived by scire facias.</p>

The executors of Backer, the defendants below, had appealed to the Common Pleas of Hunterdon, from a judgment obtained against them by the executors of Yan Fleit, the plaintiffs below, before justice Bockafellar.

<p>The corporation of the City of Trenton in passing the ordinance, requiring the owner' of every lot, fronting on a certain section of Greene Street, to fix curb stones and make a brick way in front of his lot, &c. did not exceed their authority.- Such an ordinance is constitutional and legal.</p> <p>A By-Law to be set aside ought to be demonstrably shewn to be unreasonable, and contrary to some great public principle.</p>

In the first case a judgment was obtained by the plaintiffs against the defendants in this court on the eighth day of May, the present term, and on the same day a ca. sa. was issued, and directed to the sheriff of the county of Essex, returnable to the eleventh of May, 1832.

<p>The manner of administering the oath, or affirmation, in a court of record, proceeding according to the common law, is presumed to he correct and legal, unless it appears to he otherwise on the face of the record. In criminal cases no such presumption is allowed.</p> <p>This court on writ of error, will talcfe no notice of an alleged irregularity of the court below, unless established by the record.</p> <p>This court for the purposes of justice will consider that, which may be lawfully done under a rule of court, as already done.</p> <p>This court on a writ of error will not consider an exception, unless it was alleged in the court below, and was entered on the record below, or in the bill of exceptions, which is made part of the record. The bill of exceptions does not draw the whole matter into examination, but only the point, On which the exception is taken.</p> <p>This court will not reverse a judgment of the Court of Common Pleas, for refusing to non suit a plaintiff, where he gave some evidence of his claim. In such a case the court below did right in submitting the cause to the jury.</p>

An order of removal was made by two justices of the peace of tbe county of Hunterdon, removing Lydia Hull, and her five children from the township of Bethlehem, tp the township of Kingwood in that county. The overseer of the poor of King-wood appealed from this order to the Quarter Sessions of the peace of that county.

This was an action of trespass brought in the court of Common Pleas of the county of Monmouth. The question in dispute was a matter of title, and a great variety of testimony was offered, and received during the trial, which it is unnecessary to detail.

This Avas an action brought upon a promissory note in the court for the trial of small causes, and removed afterwards to the Court of Common Pleas of the county of Salem, by appeal.

Catherine Merserole had obtained a judgment against John Merserole in the court for the trial of small causes, which was removed by the defendant to the Court of Common Pleas of the county of Middlesex. On moving the trial, the court of Common Pleas dismissed the appeal “ on account of deficiency in the appeal bond, the county not being mentioned in the bond.” These proceedings were moved into this court by certiorari.

Israel Wright presented to the judges of the Court of Common Pleas of the county of Bergen, a petition for the benefit of the several and respective acts of the legislature of this state, made for… Held: was examined under oath, in open court, touching the truth and fairness of the account, and inventory exhibited. Peter P. Brown, one of the creditors,, declaring himself not satisfied, the court remanded the petitioner to prison.

The plaintiff had obtained a judgment against the defendants', in the court for the trial of small causes, and Hamilton, on the part of the defendants had obtained a rule to shew cause, why a certiorari should not issue, and also leave to take affidavits in support of the rule. The facts disclosed by the affidavits, sufficiently appear in the opinion of the court delivered by Justice, Drake.

<p>To constitute a legal service of a rule of court, the copy served must be certified under the signature of the clerk of the court.</p>

<p>An assignment does not necessarily imply or require writing ; and when alleged of any subject, it should always be construed in connection with the law of transfer, applicable to that particular subject matter.</p> <p>A note payable to bearer is negociable by delivery, and this creates a property in the assignee or bearer.</p>

This was an action of debt brought in the court for the trial of small causes, by William Little against Stephen Perrine. On the return of the summons, the plaintiff appeared in person, and the defendant by attorney. The cause was adjourned, and on the adjourn day, the parties appeared as before, and a jury was impanelled and sworn. The cause Avas tried, and a verdict rendered in favor of the plaintiff.

A certiorari was issued from this court, directed to the Court of Common Pleas of the county of Monmouth, removing the proceedings had on a writ of attachment. The facts and circumstances of the case are fully disclosed in the opinion of the court, delivered by Justice Ford.

This was an action of assumpsit, tried at the Circuit Court for the county of Monmouth. The plaintiff declared for services rendered the defendants, as their agent in building a steamboat, for procuring wood for her, for commissions, and for rent of his wharf, &c. After the testimony was closed, the defendant’s counsel, moved the court to overrule all the evidence for services rendered by the plaintiff, while he was a director of the bank, and for commissions.

<p>The party, who, upon the ground of the breach of an agreement, would entitle himself to the special interference of this court, by way of mandamus, ought to make out a clear and indisputable case in point of fact.</p>

<p>This was an action of trover and conversion, brought in the court for the trial of small causes, and judgment rendered in favor of the plaintiff in the absence of the defendant. The proceedings below were removed into this court by certiorari, and several reasons filed for the reversal of the judgment. The one noticed by the court, in their opinion, was the sixth and is in these words. “ Because the parties agreed, that the day for trial should be settled, and fixed by their counsel, after their return from Trenton, and in violation of such agreement, the plaintiff below without notice to the defendant, proceeded to trial and judgment in his absence.” A statement of facts agreed upon by the counsel of the parties and read on the argument cf the cause fully sustained the matters contained in this reason.</p>

At the September term, 1829, a rule Avas obtained by Jeffers, the attorney for the defendant, that the plaintiffs shew cause on the first day of the next term, why the verdict should not be set aside and a new trial granted.

<p>The rights of an assignee will he protected.</p> <p>If a defendant neglect to offset his demand against the plaintiff, he is barred from any suit for the recovery of the money due thereon.</p>

A petition was presented by James Enders to three of the judges of the Court of Common Pleas of the county of Essex, on the fourteenth day of May 1827, praying the appointment of commissioners to mate partition of certain premises therein named, or tó make sale thereof, according to the provisions of the statute, in such case made and provided. Commissioners were appointed who reported that the premises could not be divided, without prejudice to the owners.

This was a certiorari directed to Andrew Howell, esq. one of one justices of the peace of the county of Somerset, to bring up a pass warrant. The facts as disclosed by the return of the justice, appear in the opinion of this court delivered by justice Ford.

James Quigg, was brought before John L. Harris and Christian Larzalere, two of the justices of the peace of the county of Burlington, on a state warrant issued by the said Christian Larzalere, on the affirmation of George P. Mitchell, charging him with stealing and carrying away a privy house and burning the same; to which charge he pleaded not guilty.

This was an action of trespass brought by the plaintiff against the defendants to the number of tAvelve. Bowne, one of the defendants died soon after the commencement of the suit, and his death Avas suggested on the minutes of this court, but not on the circuit record. Daniels, another of the defendants did not plead, but no judgment by default was entered against him. The names of both appear on the circuit record. The remaining defendants pleaded separately not guilty.

This action was commenced in the court fop the trial of small causes, and the proceedings removed into this court by certiorari. It appears from the case agreed upon, that after the cause; had been adjourned from time to time, but before the trial the defendant tendered to the justice a plea of title, accompanied with the usual bond, which he refused to accept, because it was not presented at the proper time.

<p>Where the conduct of a party has been entirely fair, and the proceedings of the court: below all regular, this court will never reverse the judgment in order to let the defendant have a trial on the merits.</p>

<p>In actions for unlawful detainers, and forcible entries and detainers, the justice is required to make an accurate record of the proceedings had before him touching the complaint, and among other things to enter upon his docket, the reasons that influenced his mind for admitting evidence objected to and rejecting evidence offered on the trial.</p> <p>The doctrine of intendment and presumption, that what ought to be done, has been done, as applicable to tribunals and officers of general and common law jurisdiction, cannot and ought not to be extended to persons and tribunals, exercising a special, limited or mere statutory authority.</p>

<p>If an insolvent debtor intentionally, or fraudulently, omits to give notice to any one- or more of his creditors, residing in this state, he has not in all things complied with the requirements of the act. Proof of such notice is preliminary, and indispensable and lies at the foundation of the proceeding.</p> <p>The creditor is not bound to confine his evidence exclusively to the enquiry, whether the debtor was really insolvent, and whether he had fairly surrendered all his property to the use of his creditors, but he may enquire, whether the debtor has in every other particular conformed to the requirements and provisions of the-act. .</p> <p>An insolvent debtor is not called upon to make his assignment, until his title to a discharge, so far as respects his own acts, is settled.</p>

This was an application for a mandamus to be directed to the Court of Common Pleas of the county of Hunterdon, to reinstate an appeal. The following is the state of the case agreed upon by the attornies of the parties, and which was submitted to this court with the appeal papers.

The grand jury of the county of Somerset at the April term, .1831, of the Oyer and Terminer, presented the following indictment. Somerset Oyer and Terminer, April Term, A. I). 1831. Somerset County, to wit.

This was an application for a mandamus to the Court of Common Pleas, of the County of Monmouth, to reinstate an appeal, which had been dismissed on account of the insufficiency of 1 he affidavit, filed by the appellants with the justice, at the time of demanding the appeal.

This was an action of replevin brought in this court by-Joseph B. Varnum, against Joseph W. Camp. The cause was-tried at the Essex circuit, before the late Chief Justice, and a verdict taken for the plaintiff, subject to the opinion of the court at bar, upon the questions of law arising from the evidence given at the trial. The cause was submitted to the court upon the-written arguments of the counsel of the parties.

This was a certiorari directed to justice Bogers to remove a judgment, rendered by him in the court for the trial of small causes.

<p>This court will set aside a judgment oí amercement against a sheriff, which has “been improvidently entered.</p>

<p>When property lias been converted into cash by an insolvent, and absorbed in the general mass of his estate, so that it cannot be followed or distinguished, a cestui que, trust stands on the same footing with other creditors.</p>

<p>There is nothing in the act, for the better regulation of fishing, in the Hackensack river, in the county of Bergen, to limit the right of setting nets to the eastern shore of the river.</p>

• Samuel C. Johnston obtained a judgment against Joseph L. Bowlsby, in the court for the trial of small causes, which was removed to the Court of Common Pleas, of the county of Hunterdon by appeal. When the appeal was called on for trial, the plaintiff below moved to dismiss the appeal, for want of jurisdiction in the Court of Common pleas, it not appearing, as was' alleged by the record, or in any other way, to be a judgment rendered in the presence of the defendant.

<p>Should the president and directors of an incorporated company neglect to notify an. election to be held within thirty (fays after the day designated in the charter, as-required by the act of the 8th December, 1825, such neglect will not he a forfeiture of their charter, but the stockholders may compel the directors to do their duty by mandamus, or otherwise, immediately. The act of 1825 was not intended to impair the charter right of holding an election at any time, but to hasten and quicken the directors in using it, and by putting it in the power of the stockholders to compel them to do it, if they should neglect for thirty days.</p> <p>The directors of a bank may order instalments to be paid on the shares of stock, for the purpose of “ defraying incidental expenses,” in the recovery of the funds of the institution, mid, if the stockholders neglect, or refuse to pay such instalments, the directors may legally forfeit the shares, and the right of voting upon such shares no longer exists.</p> <p>Stock belonging to the company cannot be voted upon, in choosing directors for that company, by any body.</p> <p>Though in the election of directors, illegal votes may have been admitted, and legal, votes rejected, yet if a majority of legal votes still appears for those who are returned, the election shall he established. "</p>

At the Morris General Quarter Sessions of the peace, of July term, 1880, two indictments were found against Samuel Cooper. By the first he was indicted as principal, and Catherine Cooper, and John VanGiesen as accessaries, for arson, committed by burning the dwelling-house of Ralph Smith, in Hanover, in said county of Morris, on the 5th April, 1830.