Volume 15 — New Jersey Law Reports

This was a certiorari directed to the Common Pleas of the County of Morris. The facts and history of the case, are fully detailed in the opinions delivered.

A writ of attachment in covenant, was issued and returned to the Court of Common Pleas of the County of Warren, at the term of December 1834, by Maxwell and Robeson against Barber, as an absconding debtor. On the return of the writ, the defendant was three times called, made default, and his default recorded.

At the last term of this court, Eaidn, for the appellant, obtained a rule to shew cause, why a mandamus, should not go to the Common Pleas of Salem, commanding that court to re-instate the appeal in this case, and proceed thereon according to law.

This was an application for a mandamus. The following is a state of the case, agreed upon by the counsel of the parties:— “ On the 22d July 1838, John Hedden, one of the Justices of the Peace in and for the county of Monmouth, issued an attachment for twenty dollars, against John Lincoln, an absconding debtor, on the application of Daniel Laird, one of the firm of David and Daniel Laird, an affidavit according to the statute in such case made and provided, having been first…

This was a certiorari directed to the Court of Common Pleas of the county of Salem. The case is fully explained in the opinion of the court, delivered by Justice Ford.

This was a certiorari removing into this court, the judgment and proceedings in a case of unlawful detainer. The opinion of the court was delivered by the Chief Justice.

This was a certiorari directed to a Justice of - the Peace, removing into this court, proceedings in a case of unlawful detainer.

<p>This was a certiorari, directed to the Common Pleas of the county of Cumberland.</p>

<p>This was a certiorari removing into this court, the judgment and proceedings in a case of unlawful detainer.</p>

An appeal to the Court of Common Pleas of the County of Cumberland, was taken from the judgment of a Justice of the Peace, rendered in favor of Barrett v. Woodruff., for twenty-eight dollars debt, and two dollars and fifty-six cents costs.

A writ of error had been issued in this case, directed to the Common Pleas of the county of Burlington. On the return of the writ, II W. Gtreen, for the defendant in error, moved to quash the writ, on three grounds :— I. Because the writ is defective. It says, “ to the great damage of John Whitaker,” without shewing in what right or character, he makes himself plaintiff in er or. II.

This action was brought, under an act of the Legislature, passed the 28th of J anuary 1820, by which the plaintiffs were incorporated, for the purpose of embanking and improving certain meadows, &c. The declaration recites the act as passed on the 20th, instead of the 28th of January, 1820 — and names James Hubbard as one of the commissioners by whom the assessment was made, (for the recovery of which, this action was brought) — whereas the name of the commissioner was…

This was a scire facias against a garnishee in attachment. The defendant put in several special pleas. Among others, that he was not garnishee, that there was no judgment in attachment, and that there was no writ of attachment. W. Hoisted for the plaintiff, moved to strike out the special pleas, and insisted that the defendant was confined to the plea named in the 20th Section of the attachment act, Rev. Laws. 360.

This was a certiorari directed to the Common Pleas of Burlington county, removing the return of a road. The opinion of the court was delivered by

Cornelius Peterson, Jonathan Higgins and Henry McColm, were in the term of April, A. D. 1826, by the Orphans’ Court of the county of Somerset, appointed in due form of law, Commissioners to make partition of the real estate of Richard Hall, in said county, among the lawful owners thereof; that the said commissioners made report to said court, that said real estate was so circumstanced, that it could not be divided without great prejudice to the owners — whereupon the court…

The defendants had obtained a rule to show cause, why the venue should not be changed from the county of Sussex to the county of Bergen. At the last term of this court, this rule was argued by Dodd and I. JT. Williamson in favor of the rule, and J. W. Miller and Vanarsdale, contra.

Upon application in behalf of John Outcalt, who, it was alleged, was unlawfully detained in custody, by the Sheriff of the county of Middlesex, as a prisoner, for debt, (which application was accompanied by a petition in writing, signed by Outcalt, stating the circumstances under which he was imprisoned, and verified by his affidavit,) a writ of habeas corpus ad subjiciendum, was allowed by the Chief Justice, returnable before himself, at chambers, directed to the Sheriff of…

This was a certiorari directed to the Orphans’ Court of the county of Burlington, removing the proceeding and decree of said court, for the distribution of the estate of Thomson N. Sims, among the applying creditors. The following state of the case was agreed upon. Thomson N. Sims died on or about the 15th October, 1880, intestate and insolvent.

This was an action on a Sheriff’s bond. The declaration is on the bond generally, as in the case of a money bond. The defendants plead, 1st — Non est factum. 2d — Payment. 3d — After craving oyer of the bond and condition, performance, in the words of the condition.

This was a certiorari directed to the Common Pleas of the county of Hunterdon, to remove into this court, the return of a road, made by surveyors of the highways. The reasons relied upon by the plaintiff in certiorari, are stated in the opinion of the court, delivered by the Chief Justice.'

This was an action of debt on an administration bond. The following state of the case was agreed upon, by the attorneys of the parties. CASE ON THE PART OF THE PLAINTIFF. The writ in this case was duly returned to February Term 1834. The declaration and plea regularly filed.

Three suits in ejectment, one against Enoch Hendrickson and Daniel Hendrickson, one against Aaron Emley, and another against Edward Allen, were instituted in this court by the plaintiff. In the term of September 1830, Samuel R. Hamilton, Esquire, appeared for all of the defendants, and obtained a rule to consolidate the actions. Each of the actions was brought for the whole of the premises in controversy.

This was an action of ejectment, tried at the Warren Circuit before the Chief Justice, and a verdict, by agreement of parties, rendered for the plaintiff, subject to the opinion of the Court upon a state of the case.

This was a writ of error directed to the Common Plea» of Sussex. The argument was heard and the opinion of the court delivered, at a special term of this court, held at Newark, in the county of Essex, in the month of June 1885.

<p>In an action brought by partners, it is competent for the defendant to claim a credit for merchandize furnished one of the firm, under an agreement, that the price was to be credited to him, on the books of the firm.</p>

This was a certiorari, directed to the Court of Common Pleas of the county of Warren, removing a judgment therein rendered upon an appeal from the Court for the trial of small causes.

This was a writ of error directed to the Court of Common Pleas, of the county of Monmouth. The questions argued before this court, appear in the opinion of the court, which was delivered by the Chief Justice.

This was a writ of error directed to the Court of Common Pleas of the county of Middlesex. The argument before this court, was made on the following state of the case. “ This was an action of trespass quare clausum fregit, tried in the said court. The declaration contained two counts — 1st? for breaking the close and felling and destroying the trees and herbage, &c., of the plaintiff, and taking and carrying away the same — 2d, de bonis asportatis.

. This was an action of debt commenced in this Court, in the term of November, 1884. The opinions delivered at this term of the court, disclose the nature of the pleadings and the .question raised by the demurrer. The demurrer was argued at a special term of this court, held at Camden, in the county of Gloucester, in June 1835.

This was an action brought upon a promissory note, by the indorsee against the indorser. The plaintiff having filed his declaration, the defendant filed thereto, a general demurrer. The question raised is stated in the opinion of the court, delivered by Justice Ryerson.

This is an action upon a bond, given by Lambert Rickey, late Cashier of the State Bank at Trenton, for the faithful discharge of his duties as such officer. The defendant is one of his sécurities iii the bond. The cause came on to be tried upon the pleas of non est factum, and performance before a special jury at the bar of this court, at the term of November 1835.

This was a certiorari directed to the Court of Common Pleas of the county of Burlington, to remove a judgment rendered by that court, on an appeal from the court for the trial of small causes.

<p>The plaintiff demanded of the defendant, compensation for one year’s work, from or about the 1st of January in one year, to the 1st of March, in the next, without stating the kind of work. Held sufficient in a Justice’s court, where technicality is always dispensed with.</p> <p>If an appellant has paid and satisfied the judgment appealed from, he will not he allowed to arrest the trial of the appeal, if once commenced ; his proper course is to discontinue or withdraw his appeal, or suffer it to he dismissed.</p>

The declaration in this case, was in assumpsit, upon two promissory notes made by the defendants, payable to the order of the plaintiff, and dated in the year 1819. The defendant, Henry .Southmayd, the other defendant being returned by the sheriff “ not found,” pleaded actio non accrevit infra sex annos.

<p>' The plaintiff declared on a promissory note for three hundred and twenty-five dollars, dated the 19th February 1825, made by James Hunt, payable to the defendant, or order, at the State Bank in Trenton, sixty days after date, without defalcation or discount; endorsed by the defendant, to the plaintiff. The declaration was in due form, and the cause came on to be tried on the general issue. The signatures of the drawer and endorser, and due demand of payment, and notice of non payment being admitted, the note and endorsement, were read in evidence; and the plaintiff rested. Thereupon the counsel for the defendant, objected that the note offered and read in evidence to the jury, was .variant from the copy furnished by the plaintiff’s attorney, to the attorney for the defendant; and the note produced and read in evidence, was for the sum of three hundred and twent}-five dollars — whereas the copy was of a note for three hundred and seventy-five dollars. In all other respects, they were admitted to be the same. In support of this objection, S. R. Hamilton, Esq., attorney for the defendant, testified, that he made a demand of the plaintiffs attorney, of a copy of the note on which the declaration was founded — that afterwards, the writing shown by the witness, and purporting to be such copy, was delivered to him, at the office of the plaintiffs attorney, by his clerk — upon these facts, the Judge overruled the note, and the plaintiff was non-suited.</p>

This was an action of ejectment tried at the Warren Circuit Court, in December 1883.

Warren Haight, the plaintiff in attachment, on the 26th of October last, made oath before a Justice of the Peace of this State, that John 0. Bergh and Lewis Bergh, executors of the last will and testament of Lewis Bergh, late of New York city, deceased, were not to his knowledge or belief, resident at the time in this State, and that they owed to him (deponent) and Catharine, his wife, as executors as aforesaid, the sum of three thousand four hundred and sixty-seven dollars.

This was an action of ejectment, and a verdict rendered in favor of the plaintiff. On the return of the postea, a rule to show cause why the verdict should not be set aside, and a new trial had, was granted.

<p>When a party is sued in a court for the trial of small causes, he is not at liberty to bring a cross action, for a demand, which is the subject matter of a set off; if not claimed as such, the right to recover it, is barred by the statute. Rev. Laws, 632, Section 14-15.</p> <p>Where the error in the Justice’s court, is of a nature such as not to prevent a fair and proper trial on the merits, in the Common Pleas on appeal, such new trial ought to be had ; but if the error ought to have arrested, or to have put an end to the action before the Justice, such should be its operation in the court above. The law will regard the fraction of a day, when attention to such fraction, is necessary to the due administration of justice.</p> <p>It is competent to prove by a person not sworn before the Justice, what two deceased witnesses said on the first trial ? Quere ?</p>

This was an action of ejectment, in which a verdict had been rendered in favour of the plaintiff. A rule to show cause had been granted, which was once before argued, as reported in 6 Hal. R. 262; and now a second argument of the rule was had.

This was an action on the case in trover, brought by Bastedo, the defendant in error, against Vandyke, to recover damages for the conversion of a pair of mules and a yoke of oxen, sold by Vandyke. The defence set up by the defendant was that he sold the property in question, as the property of John Thompson, by virtue of sundry executions in his hands as Constable of Middlesex, against Thompson.

• This cause was tried before the Chief Justice at the Middlesex Circuit, in June 1835, and a verdict rendered for the demandant, upon the return of the postea, a rule to show cause was granted why the verdict should not be set aside. The pleadings are mentioned in the opinion of the Chief Justice.

This was a certiorari removing into this court, the judgment an ’ proceedings in a case of forcible entry and detainer. The opinion of the court delivered by the Chief Justice, contains a statement of the case.

This -was an action on the case for words, tried before the Court of Common Pleas of the county of Warren, and a verdict and judgment in favor of the plaintiff. A writ of error was brought by the defendant, and the exceptions taken on the-trial, and urged before this court, for a reversal, are fully disclosed in the opinion of the court, delivered by the Chief Justice.

<p>The state of demand alleges, that the plaintiff bought of the defef.iS.s*'. and that the defendant then and there sold and delivered to him, a pair of ox«m, at a certain price per hundred weight, to be taken away, killed and weighed by the plaintiff, and paid for when weighed — and then the plaintiff avers, that afterwards en, &c. he went for and demanded the oxen, but the defendant refused to let the plaintiff have or take them away, whereby plaintiff lost great gains, which would have accrued on a sale thereof, &c. to his damage, &c. held to be insufficient.</p> <p>A contract for the sale ef goods for upwards of thirty dollars, and no delivery or earnest money paid, nor any note or memorandum thereof made in writing, is within the statute of frauds. Rev. Laws, 148, Section 15. The distinction as to executed and executory contracts, as respects the statute of frauds, has been overruled.</p> <p>The defendant is entitled to be heard, on a motion for a non-suit, though he may have said, “ I rest too.”</p>

This case was tried at a Circuit Court held at Newark, in April 1885, before Justice Ryersojst. Under the direction of the Judge, and by consent of the respective parties, a verdict was rendered in favor of the plaintiffs, for the amount of the note with interest, subject to the opinion of the court at bar, upon a statement of facts, which is fully disclosed in the opinion of the court, delivered by the Chief Justice.

Thomas Letson brought an action of assumpsit, in the Court, of Common Pleas, of the county of Middlesex, against Eobert Dingee, upon two promissory notes. The plaintiff having proved the execution of the notes, rested.

This was a certiorari directed to the Common Pleas of the county of Monmouth, on a matter of appeal from a Justice’s court. The plaintiff in the court below, the defendant in this court, sued the now plaintiff, and recovered in a plea of trespass on the case. The declaration before the Justice contains two counts — the first of which need not be noticed, as it was not supported by the proofs.

An action of trover was instituted in the Common Pleas of Capo May, by John Broderick against Henry Imdlam, Jr. On the trial, to support the issue on his part, the plaintiff offered to read and give in evidence, “ a certain commission issued out of the said court, in the said cause, for the examination of witnesses, on the application of the plaintiff, interrogatories thereto annexed, and the depositions and return made thereto by the said commissioner therein named.” The…

This was an action of ejectment for lands in the county of Warren, and was argued on a state of the case agreed on, by the counsel of the parties. The subject of dispute, was the construction of the will of Joseph McMurtrie, grandfather of the lessor of the plaintiff. The particular point of discussion, and so much of the will as is necessary to an understanding of the matter, will be developed by the opinion of the court.

This cause was tried before the Judges of the Inferior Court of Common Pleas in and for the county of Somerset, and verdict and judgment rendered in favor of the plaintiff.

This was an action on the case, commenced in this court for carrying away the servant of the plaintiff.

This was an action brought to recover damages arising from the breach of covenant of warranty of title to land. At the Salem Circuit the parties agreed as to the amount of the plaintiffs’ damages, with certain exceptions, and agreed to submit to the Judges of the Supreme Court at bar, the question, whether the plaintiffs are entitled to receive counsel fees and interest; or anything more than the consideration money, with interest and taxed costs ?

This was an action of assumpsit, brought against tha defendant as acceptor of a draft drawn on him, by one William T. Williams, payable, to the Windham County Bank, which was the real plaintiff.

This was a certiorari directed to the Commissioners of Appeal in eases of taxation, in the township of Downe, in the county of Cumberland. The following is a copy of the return to the certiorari.

This was an action of assumpsit on a promissory note dated in the city of New York, and payable at the State Bank in Elizabethtown, New Jersey. The Chief Justice, on the trial at the Circuit, directed .the jury to allow interest, at the rate of seven per cent., being the legal interest of the State of New York, where the plaintiff lived, and the contract was made.

This was an action of ejectment for lands in the county of Salem, and was argued on a state of the case ag'reed upon at the Circuit, and returned, as a postea in the cause.

This was an action of covenant brought in this court. The plaintiffs filed the following declaration. “New Jersey Supreme Court, of the term of November in the year of our Lord, one thousand eight hundred and thirty-five. Cumberland, to wit.

<p>In a declaration, in trover, for the conversion oí promissory notes and hills of exchange, it is unnecessary to state their dates or time oí payment, for the plaintiff is supposed not to have them in possession.</p> <p>Where the second count in a declaration in trover and conversion, for notes, describes them, as “ eleven other promissory notes, having the like drawers, indorsers, descriptions and value as the said promissory notes in the first count mentioned,” held, bad on special demurrer.</p> <p>Reference to a prior count, is justifiable, to avoid prolixity.</p>

This was a certiorari directed to the Court of Common Pleas of the bounty of Salem. Several reasons for reversal, were filed, which are noticed in the opinion of the court, delivered by Justice Ryerson.

This was a certiorari directed to the Court of Common Pleas, removing into this court, the proceedings in a matter of road.

This was a certiorari directed to the Court of Common Pleas of the county of Middlesex, to remove a judgment of that court, rendered on the trial of an appeal from a Justice’s Court. The facts of the case will be found stated in the opinion of this court, delivered by Justice Ryerson.

<p>This court will not make a rule on executors, to enforce the payment of costs in an action of ejectment brought by their testator. The court will leave the liability of the executors for such costs, to be settled in an action to be brought against them by the defendants in ejectment. The consent of parties can give the court no authority to render an extra judicial judgment in the premises.</p>

This was an action of ejectment tried before the Chief Justice, at the April term, 1834, of the Essex Circuit. The jury rendered a verdict for the defendant. On the return of the postea, the plaintiff obtained a rule to show cause, why the verdict should not be set aside, and a new trial had.

This was an action of ejectment for lands in the county of Sussex. The following state of the case was agreed upon at the Circuit. This cause was tried before his honor the Chief Justice, at the Sussex Circuit in November 1885. It appeared by the evidence, that the lessor of the plaintiff had title to the premises in question, being a farm of one hundred and five acres, with a wood lot of sixty seven and ten hundredths acres, all in Sandyston, in said county.

On the 10th of February, and as of the term of February 1834, of the Common Pleas of Hunterdon county, judgment was signed before one of the Judges of that court, in favour of Samuel Evans, the plaintiff in error, against Adams, the defendant, for four hundred dollars of debt with costs, on a bond and warrant of attorney, given by him to the plaintiff.

<p>Testator in his will says — “ I give and bequeath to my son Daniel, the sum of one hundred and fifty pounds, to be paid to him at the age of twenty-one years. It is my will, that the plantation whereon I now live, to be equally divided betweeu my two sons J and N, to them, their heirs and assigns forever.” The, testator then directs that they shall have possession on a certain day, named in the will, that his executor pay to his daughters Iraney and Actia, a legacy of fifty pounds each; that his wife have the use of his plantation^ until his sons J. and N. come into possession, with the use of all the living stock, provided she remains his widow; that she should have the choice of two rooms for the use of herself and daughters as long as they remained unmarried, and that J. and N. should provide her with necessaries, at the discretion of his executors; that his wife should pay taxes, if the profits of the place were sufficient, but if not, then his executors are to pay it out of “ any money belonging ” to his estate, and then adds, “ If any thing more should arise, to be divided among my five youngest children.” He next gives and bequeaths to his wife, all his household furniture, “ to dispose of it to her daughters as she sees fit,” except his clock to if., his desk to J., and his gun to another son, Daniel. Then follow these clauses, “ it is my will, when my hoys come to their place, that my wife have two eows, and then to find her hay and pasture; hut if she marries, to descend to my two daughters. Item, it is my will, that if my wife should decease, or marry before my sons come to their place, then the stock to remain at the discretion of my executors, for the benefit of my youngest children, and if she remain my widow, and lives until my sons come to their plantation, it is my will, that J. and if. shall have my stock, and farming utensils; and if any of my children by this, my present wife, should die without lawful issue, then such heqveathments to descend to the survivors; the hoy’s part to the boys, and the girl’s part to the girls. The testator, after making some further provisions for his wife, concludes with these words. “ Item, it is my will, that if either of my boys should” incline to sell his land, he should sell it to his brother, and no other person ; namely, J. or if. Held, that the word “ bequeathments ’’ must he limited to the personal bequests made to his five children by his last wife, designated as his youngest children, and that J. and if. took estates in fee simple, in the plantation upon condition notto alienate in theft lifetimes, but to each other.</p>

<p>This was an action of debt for a legacy, brought in this court. The facts of the case are fully detailed in the opinion of the court, delivered by the Chief Justice.</p>

<p>S. 11. Hamilton, in behalf of Lucy Sears, moved for a rule admitting her, in forma pauperis, to sue out a writ of certiorari to the Common Pleas of Burlington county, to remove into this court, the judgment and proceedings of the CommonPleas, in a matter of appeal, wherein judgment had been given against the said Lucy Sears, aud in favour of Tindall, the appellant. In support of this application, the counsel read an affidavit, made by Lucy Sears, stating “that she is poor, and not of ability to sue according to law, for the redress of injuries .and wrongs, or the recovery of her demands and rights; and that she verily believes, she has just and legal cause of action against William Tindall. To this affidavit, the counsel in support of the application, annexed and read a certificate -signed by him, suggesting to this court, that he had attended to the action mentioned in the affidavit; that he is of opinion, that she has good cause of action, and that great wrong and injustice has been done to her by the court below, in reversing the judgment she had obtained before the Justice.</p>

This was an action of ejectment for lands in the county of Bergen.

<p>In trover, the defendant pleaded specially a judgment, recovered by him against one Samuel Combs, and execution thereupon; that by virtue of that execution, the officer levied upon, and sold, and he the defendant bought at such sale, the mules in question; and then averred, that the said mules at the time of the levy, belonged to the said Samuel Combs, the defendant in execution. To this plea the plaintiff replied, that the mules at the time of the levy, were not the property of Samuel Combs, but that they were her own proper goods, and concluded to the country, and thereupon issue was joined. Sold, that upon the trial of this issue, it was not necessary, that the defendant should produce the record; and that the Court of Common Pleas erred, in overruling the testimony of a witness which went to show the use and possession of the mules by Samuel Combs, and his acts of ownership over them, and the knowledge of the plaintiff that they were seized as his property, and that she was present at the sale, and neither forbid it, nor made any claim to the mules. Such evidence is prima facie, and until contradicted, sufficient evidence of the ownership of Samuel Combs.</p>

At the last February term of this court, judgment was rendered in favour of the defendant, on the ground of the variance between the record declared on, and the record produced. 2 Green, 572. The court granted a rule to show cause, why the declaration should not be so amended, as to make it conform with the record produced.

<p>This was a certiorari directed to the Orphans’ Court of the county of Middlesex, the history and facts of the case, are disclosed in the opinion of the court.</p>

This was an action of debt on a money bond; the defendant pleaded specially, the substance of which is set out in the opinion of the court, delivered by Justice Fobd. To this plea, the plaintiff demurred, and there was a joinder in demurrer.

<p>This was a certiorari directed to the Orphans’ Court.</p>

<p>This was a certiorari directed to the Court of Common Pleas of the County of Saleip.</p>

<p>An appeal was depending between the parties in the Common Pleas of Sussex. It came on to be tried upon the merits, and after hearing the evidence and the arguments of counsel, the conrt being equally divided on the question, whether the plaintiff below was entitled to recover; and therefore unable to decide the cause, ordered the appeal to be dismissed. Strader the appellant, having obtained a rule of this court, to show cause why a mandamus should not issue, requiring the Court of Common Pleas to restore the appeal, and proceed to judgment.</p>

This was a certiorari directed to a Justice of the Peace, to remove into this court, a judgment rendered in a court for the trial of small causes.

<p>The Constable returned, that he had served the summons “ by reading it to a white person, over the age of fourteen, and left a copy with her at the place of abode.” Held, that this return did not warrant the Justice to proceed in the absence of the defendant.</p> <p>The Justice stated in his record, that “ the plaintiff filed his demand for thirty dollars, the defendant not appearing, the plaintiff proved his demand, and I gave judgment for the same.” Held, this is not siich a judgment as the law requires.</p>

This was a certiorari directed to a Justice of the Peace, removing a judgment rendered before him in the court for the trial of small causes.

This was a certiorari directed to a Justice of the Peace of the county of Hunterdon. The action below was against the plaintiff in certiorari and one Sutton, who were partners — the facts and legal points in dispute, will be disclosed in the opinion of the court.

This was a certiorari directed to the Orphans’ Court of the county of Gloucester, removing into this court, the final decree of that court, upon the account of the surviving executor of Thomas Coles, deceased.

<p>A farm was conveyed to A. S. in trust for C. (the panper) and his wife during their joint lives; and after the death of the survivor of them, to their children in fee. C. the pauper paid the consideration money, took possession of the farm, and resided upon it about five years, receiving the rents and profits, and paying the taxes. Held, that C. the pauper was so seized of a freehold estate, as to give him a settlement.</p>

This cause was removed into this court by a writ of error to the Common Pleas of the county of Monmouth. The matters in dispute will be found in the opinion of the court, delivered by the Chief Justice.

<p>This was a certiorari directed to a Justice of the Peace.</p>

This was a certiorari directed to the Court of Common Pleas of the county of Somerset. The facts and points of the casé will be found in the opinion of this court, delivered by the Chief Justice.

<p>If an appeal bond, without a seal, is accepted and sent up by the Justice, the Court of Common Pleas under the statute, (Hair. Comp. 5,) ought to permit the appellant ' to substitute a new bond; and if they refuse so to do, a mandamus will issue from this court.</p>

<p>If a witness has been lawfully admitted and sworn, on the trial below, either party has a right to call and examine him on the trial of the appeal.</p>

<p>A report of referees will not be set aside, because the referees report the title to the land to be in the lessors of the plaintiff, instead of, in the plaintiff; nor because the referees report, that the lessors of the plaintiff are tenants in common of the whole premises, though the declaration contains no joint demise of the whole, but three separate demises for entire parcels of land.</p>

<p>In the absence of any evidence to the contrary, or any circumstance to lead to a different conclusion, it must be taken for granted, that the appeal was demanded bn the day, mentioned in the transcript, as the day of giving judgment, and having such evidence, the Common Pleas should not have dismissed the appeal, on the ground of its not appearing by the record, when it was demanded.</p>

This was a suit brought originally in the Court of Common Pleas of the County of Middlesex, and the judgment therein rendered, removed into this court by writ of error. The opinion of the court delivered by the Chief J ustice, contains a statement of the points in controversy.

<p>This was a certiorari directed to the Common Pleas of Somerset county.</p>

<p>The affidavit required by the statute to entitle the party to an appeal, should not be indorsed on the back oí the bond, but should be on a separate paper. And the affidavit and bond should be distinct instruments, for the one gives jurisdiction to the court, the other is a security to the party.</p>

This was an action of debt for penalties incurred by the defendant, under the act to prevent the unlawful waste and destruction of timber, Rev. Laws, 700.

<p>This court will grant a certiorari in a matter of private road, it it appear that but four of the six surveyors signed the return ; and the writ in such case, should be entitled as between the applicant therefor, as plaintiff in certiorari, and the applicant for the road, as defendant. It is a matter in which the public have no such interest, as to justify the use of the name of the State.</p>

<p>This was a certiorari directed to the Court of Common Pleas of the county of Morris. '</p>

<p>The Court of Common Pleas refused to discharge a petitioner for the benefit of the Insolvent Laws, because in the advertisement of his application, the word “Junior” had been omitted to be added to his name. Held, that there is no remedy for the petitioner, but to make his application de novo.</p>

This was a certiorari directed to the Court of Common Pleas of the county of Salem, to remove into this court the proceedings in a matter of road.

On certiorari to Warren Common Pleas, in Matter of Insolvency. The case is stated in the bill of exceptions. This cause came 011 to be heard at the Court of Common Pleas holden at Belvidere, in and for the county of Warren, on Wednesday the 11th February 1835, upon the proceedings and papers filed in the cause. The counsel for applicant, offered in evidence the papers filed and proceedings of the court, as contained in the minutes of the special term, on 16th January last.